Int'l Longshore & Warehouse Union v. Port Portland

• Citation: 279 Or.App. 146,379 P.3d 1167
• Decision Date: 22 June 2016
• Docket Number: A157850
• Court: Court of Appeals of Oregon
• Parties: International Longshore and Warehouse Union, Locals 8 & 40, Petitioner, v. Port of Portland, Respondent.

279 Or.App. 146

379 P.3d 1167

International Longshore and Warehouse Union, Locals 8 & 40, Petitioner,

v.Port of Portland, Respondent.

A157850

Court of Appeals of Oregon.

Argued and submitted January 11, 2016.

June 22, 2016

Kevin Keaney, Oregon, argued the cause and filed the briefs for petitioner.

Randolph C. Foster, Portland, argued the cause for respondent. With him on the brief was Stoel Rives LLP.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

SHORR

, J.

This labor case arises from the contentious relationship between the various parties involved in the operations of the Terminal 6 marine port owned by respondent, the Port of Portland (the Port). Petitioner, International Longshore and Warehouse Union (ILWU), Locals 8 & 40, filed a complaint with the Employment Relations Board (ERB) alleging that the Port had committed certain unfair labor practices under the Public Employee Collective Bargaining Act (PECBA), ORS 243.650

to 243.782. ERB dismissed the complaint without a hearing, reasoning that, because petitioner's members were not employees of the Port, but, rather, were employees of the Port's private contractor, it had no jurisdiction to hear the complaint. Moreover, ERB concluded that petitioner neither pleaded nor asserted that it represented employees of the Port, which ERB concluded was a requirement for it to have jurisdiction over the complaint. ERB adhered to its decision on reconsideration.

Petitioner seeks review of ERB's order dismissing the complaint and ERB's reconsideration order. Petitioner assigns error to ERB's determination that its members are not employed by the Port, and contends that ERB should have let the case proceed to a hearing. We conclude that, under our standard of review, the board did not err. Petitioner, who acknowledged that its members are employees of a private contractor, never alleged or argued below that its workers are instead—or also—employees of the Port. Accordingly, we affirm.

We begin with our standard of review. “[W]e review for whether ERB has correctly identified the applicable legal principles; we further review for substantial evidence and for substantial reason.” Portland Assn. Teachers v. Mult. Sch. Dist. 1 , 171 Or.App. 616, 626–27, 16 P.3d 1189 (2000)

; see ORS 183.482(8) (providing for judicial review of agency orders in contested cases and defining the scope of that review). We draw the following facts and procedural history from ERB's orders and the record. Because the resolution of this case depends on the nature of the contractual relationship between petitioner and the Port, as well as precisely what petitioner alleged to ERB, we relate those facts in some detail.

Terminal 6 of the Port of Portland is a large marine port terminal located on the Columbia River that handles containerized cargo. Between 1974 and 1993, the Port employed longshore workers represented by petitioner at Terminal 6. That employment relationship was governed by collective bargaining agreements negotiated between petitioner and the Port, the last of which was signed in 1984 (the 1984 agreement). The 1984 agreement stated that, under its terms, it would extend “in yearly increments * * * unless either party notifies the other, in writing, * * * of its desire to modify the Agreement.”

In 1993, the Port transferred management of the stevedoring operations of Terminal 6 to a private contractor. In 1994, the Port sent petitioner a letter stating that it was terminating the 1984 agreement and that the Port “currently does not employ, nor does the Port intend to employ, following expiration of [the 1984 agreement,] * * * members of any of the three ILWU local unions for the operation of any of its Marine terminal facilities.” Approximately two months later, the Port “officially rescinded” that notice of cancellation “in order to promote its relationship with the ILWU,” but reiterated that it did “not currently nor does it intend in the foreseeable future to [employ] members of the three ILWU locals,” and, therefore, “the Port is not an employer of longshore labor and as a result, the [1984 agreement has] no effect.” Longshore labor at Terminal 6 continued to be privately managed from 1994 onward.

In 2010, the Port entered into an agreement to lease Terminal 6 to ICTSI Oregon, Inc. (ICTSI), a private corporation, for 25 years. Under that agreement, ICTSI assumed container operations at Terminal 6, but the Port reserved for itself the repair and maintenance of six “Hammerhead” cranes located there. ICTSI began operations in 2011 and employs petitioner's members for the operation of Terminal 6. That employment is subject to a separate collective bargaining agreement negotiated between ILWU and the Pacific Maritime Association, a multiemployer bargaining agency that represents terminal operators and shippers in the West Coast container shipping industry, including ICTSI. The Port is not a member of the Pacific Maritime Association.

Prior to ICTSI assuming operation of Terminal 6, the Port solicited public bids from contractors for the repair and maintenance of the Hammerhead cranes. ICTSI was the successful bidder and entered into a separate contract with the Port to perform that work. ICTSI has employed petitioner's members to work on the Hammerhead cranes under that maintenance contract. Additionally, in 2012, the Port hired a separate contractor for the maintenance and repair work on one of the Hammerhead cranes, and that contractor did not employ petitioner's members for that work.

Following that 2012 maintenance work, petitioner raised a series of grievances with the Port, alleging that the use of non-ILWU labor violated provisions of the 1984 agreement. The Port refused to address or arbitrate those grievances, asserting that the 1984 agreement was no longer effective because the Port did not employ any of petitioner's members and the 1984 agreement had been “replaced and superseded” by petitioner's collective bargaining agreement with the Pacific Maritime Association, which includes the private contractor ICTSI. Petitioner later sent the Port “official notice” of its intention to negotiate and modify the terms of the 1984 agreement. The Port refused to enter into contract negotiations on the ground that it did not employ petitioner's members. After unsuccessful attempts to arbitrate the dispute, petitioner filed the unfair labor practice complaint underlying this appeal.

In its complaint, petitioner alleged that the Port committed unfair labor practices under two provisions of PECBA. First, petitioner alleged that, by refusing to negotiate a successor agreement to the 1984 agreement, the Port violated ORS 243.672(1)(e)

, under which it is an unfair labor practice for a public employer to “[r]efuse to bargain collectively in good faith with the exclusive representative” of its bargaining employees. Second, it alleged that, by refusing to arbitrate the dispute, the Port violated ORS 243.672(1)(g), under which it is an unfair labor practice for a public employer to “[v]iolate the provisions of any written contract with respect to employment relations including an agreement to arbitrate.” Petitioner included with the complaint a brief set of factual allegations stating, as relevant here, that the 1984 agreement continued to be in effect but the Port refused to renegotiate its terms, that the Port “controls the maintenance and repair” of the cranes at Terminal 6, and that petitioner's members perform that maintenance and repair work. Petitioner did not allege that its members were employed by the Port.

In response, the Port argued that the complaint should be dismissed because ERB has jurisdiction only to decide disputes “between ‘a public employer and the representative of [the public employer's] employees,’ ” and that it was “undisputed that [petitioner] is not the representative of any current Port employee.” (Quoting ORS 243.650(4)

;¹ first set of brackets in original.) The Port asserted that petitioner's members were employees only of ICTSI. In support of its response, the Port attached various documents, including a transcript excerpt from related federal litigation before the United States District Court for the District of Oregon in which petitioner agreed that the Port did not employ petitioner's Local 8 members.² In that excerpt, counsel for petitioner admitted that “there is no collective bargaining agreement between the Port and [ILWU] Local 8”; that the 1984 agreement was “an old, expired collective bargaining agreement”; and that, because the Port did not employ ILWU members, there could be no collective bargaining relationship.

The Port also attached a decision from the National Labor Relations Board (NLRB) in another related dispute that found that “the Port has not employed workers under [the 1984 agreement] for more than two decades,” and that “there is no basis on which to conclude that [the 1984 agreement] remains viable for any purpose.” Int'l Longshore & Warehouse Union, AFL–CIO , 363 NLRB No. 12 (slip. op. at 24)

, 2015 WL 5638153, at *2 (NLRB Sept. 24, 2015).³

The administrative law judge (ALJ) assigned by ERB to investigate petitioner's complaint in this case issued petitioner an order to show cause why the case should proceed to a hearing. In that order, the ALJ stated that she was prepared to dismiss the complaint for multiple reasons, including that it appeared that petitioner's members were not employees of the Port, which would leave ERB with no jurisdiction over the complaint. In response, petitioner did not assert that its members were employed by the Port. Instead, petitioner argued that the ALJ was mistaken that PECBA required that petitioner's members be Port employees for ERB to have jurisdiction. Petitioner also asserted that the 1984 agreement continued to be effective and provided a sufficient basis for the complaint to proceed.

The ALJ then emailed both parties a short set of questions. Petitioner's responses to three of those questions...