The Ninth Circuit overruled the NLRB Wednesday in a union dispute, ruling that International
Longshore and Warehouse Union members have the right to perform maintenance and repair
work at Pacific Maritime Association port facilities on the West Coast.
The National Labor Relations Board had awarded the right to such work on stevedore cargo
handling equipment owned by PMA members to the International Brotherhood of Electrical
Workers. But the NLRB misapplied the law in reaching that conclusion, Judge Michael D. Hawkins
said for the U.S. Court of Appeals for the Ninth Circuit.
In particular, the NLRB reviewed the Longshoremen’s work preservation argument too strictly, the
court said. The agency’s review ignored U.S. Supreme Court precedent that requires a holistic
review of traditional work patterns unions are seeking to preserve and of how the relevant
agreements are trying to accomplish that result, the court said.
The NLRB further erred in its work preservation analysis by limiting its inquiry to whether the
Longshoremen historically performed electrical maintenance and repair work at a specific port
facility in dispute, the court said.
The facility at issue, operated by PMA member Kinder Morgan in Vancouver, Wash., had
previously subcontracted its work to electricians represented by the IBEW. The NLRB’s order
improperly “preoccupied” itself with the “precise location of the disputed work and with those non-unit
employees who stood to lose work were it to enforce the Longshoremen’s (and PMA’s)
interpretation” of their collective bargaining agreement, the court said.
But the intent of the CBA’s work preservation provisions are what matter, not whether other
employees may be displaced by union workers, the court said.
And here, the labor contract between the Longshoremen and the PMA “unambiguously assigns to
the Longshoremen all M&R work, on all present and future stevedore cargo handling equipment—including all its technological equipment and electronics—for all PMA members, at all
West Coast ports,” the Ninth Circuit said.
Compounding Errors
The Ninth Circuit took issue with other conclusions reached by the NLRB in the case and the way
it reached them.
The NLRB’s order improperly relied on a decision from a previous Section 10(k) hearing to
dispose of certain disputed issues as having already been decided in prior proceedings, the court
said.
“We affirm the well-settled rule that 10(k) decisions are not res judicata in subsequent ULP [unfair
labor practices] proceedings,” the Ninth Circuit said.
And the NLRB was wrong thrice over in its review of the plain language of the CBA provisions at
issue, the court said.
It was error to defer to its findings in the previous 10(k) decision to decide that the provisions didn’t
apply to the disputed work “without offering any additional analysis,” the court said.
It was also wrong to consult that extrinsic evidence of the CBA’s intent “without first finding a
legitimate basis for finding any of the relevant terms ambiguous,” the court said.
And finally, it “compounded that error” by using that evidence to construe the relevant provisions in
a manner that “not only ignored their plain language, but also rendered much of their newly
bargained-for provisions illusory,” the court said.
It vacated the NLRB’s order and remanded the case for further proceedings consistent with the
opinion.
Judge M. Margaret McKeown and District Judge Virginia M. Kendall, sitting by designation, joined
the opinion.
Leonard Carder LLP represented the Longshoremen. Morgan Lewis & Bockius LLP represented
PMA. In-house counsel represented the NLRB. McKanna Bishop Joffe LLP represented the IBEW.
The case is ILWU v. NLRB, 9th Cir., No. 19-70297, 10/14/20.
Reproduced with permission. Published 10/14/20. Copyright 2020 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bloombergindustry.com>