Law360 (October 14, 2020, 10:17 PM EDT) — The Ninth Circuit held Wednesday that International Longshore and Warehouse Union members are entitled to do all the maintenance and repair work at the Pacific Maritime Association’s West Coast port facilities, nixing a National Labor Relations Board order saying otherwise.
In its opinion, the three-judge panel vacated the board’s finding that the dockworkers union violated the National Labor Relations Act through its efforts to stop members of the Local 48 of the International Brotherhood of Electrical Workers from performing maintenance and repair work at PMA member Kinder Morgan‘s Vancouver, Washington, facility.
According to the opinion, the ILWU filed grievances over the disputed work based on a 2008 collective bargaining agreement with PMA in which PMA agreed to expand the ILWU’s jurisdiction to additional work at facilities run by its members, including Kinder Morgan.
Kinder Morgan asked for the board’s intervention after Local 48, which represented the electricians the company subcontracted the electrical maintenance and repair work to, threatened to picket the facility in response, the opinion said.
The board held a hearing on the matter under Section 10(k) of the NLRA and rejected the ILWU’s argument that it was preserving work secured under the new CBA and awarded the disputed work to Local 48, according to the opinion.
However, the arbitrator handling the ILWU’s grievances found that the CBA did encompass the disputed work, the panel said. ILWU took steps to enforce the arbitration award, prompting Local 48 to file unfair labor practice charges at the NLRB, the opinion said.
Initially, an administrative law judge found the ILWU’s actions were geared at preserving work and dismissed the complaint; but the board reversed, finding the ILWU violated Section 8(b)(4) of the NLRA and again rejecting the union’s work preservation defense.
According to the panel, a “valid work preservation objective provides a complete defense against alleged violations” of Section 8(b)(4), which is meant to protect neutral employers that are caught between competing unions.
On Tuesday, the panel held that the board erred by focusing narrowly on whether the ILWU members had performed the disputed work in the past when weighing the union’s work preservation defense for its actions.
Instead, the NLRB should have focused its inquiry on whether the union’s actions were directed at its own employer in regard to working conditions or aimed at affecting the business relations of a neutral employer, also known as being primary or secondary, the panel held.
The Ninth Circuit further found that, contrary to the board’s conclusions, the 2008 collective bargaining agreement’s plain language unambiguously assigned to the ILWU all the maintenance and repair work — including electrical — on present and future stevedore cargo handling equipment for all of the West Coast ports of PMA members.
“The board was not free to ignore the plain meaning of the phrase ‘maintenance and repair of all stevedore cargo handling equipment’ simply because such language is ‘very general,'” U.S. Circuit Judge Michael Daly Hawkins wrote. “A contractual term bearing a broad general meaning is no more inherently ambiguous than a similarly sweeping statutory provision.”
Additionally, the panel said that it was reaffirming the “well-settled rule” that the conclusions in 10(k) hearings don’t have a preclusive effect on later labor proceedings, holding that the board wrongly asserted that its 10(k) decision on the ILWU’s work preservation defense stopped the union from relitigating it.
An NLRB spokesperson declined to comment Wednesday. Counsel for the remaining parties didn’t respond Wednesday to requests for comment.
U.S. Circuit Judges Michael Daly Hawkins and M. Margaret McKeown sat on the panel for the Ninth Circuit, and U.S. District Judge Virginia M. Kendall sat on the panel by designation.
The ILWU is represented by Eleanor Morton and Lindsay R. Nicholas of Leonard Carder LLP
The PMA is represented by Michael E. Kenneally and Jonathan C. Fritts of Morgan Lewis & Bockius LLP.
The NLRB is represented in-house by Heather S. Beard and Kira Dellinger Vol.
Local 48 is represented by Elizabeth Joffe of McKanna Bishop Joffe LLP.
Kinder Morgan is represented by David L. Schenberg and Timothy A. Garnett of Ogletree Deakins Nash Smoak & Stewart PC.
The case is ILWU et al. v. NLRB, case number 19-70297, in the U.S. Court of Appeals for the Ninth Circuit.
–Editing by Haylee Pearl.