Everport Terminal Servs., Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 26 August 2022 |
| Docket Number | 20-1411,C/w 20-1412, 20-1432 |
| Parties | EVERPORT TERMINAL SERVICES, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1546, AFL-CIO and International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1414, AFL-CIO, Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Ashley C. Parrish argued the cause for petitioner Everport Terminal Services, Inc. On the briefs were Jeffrey S. Bucholtz and Brigham M. Cheney.
Emily M. Maglio argued the cause for petitioner International Longshore and Warehouse Union. With her on the briefs was Eleanor Morton.
Gregoire Sauter, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, and Julie Broido, Supervisory Attorney.
David A. Rosenfeld argued the cause and filed the brief for intervenors in support of respondent.
Before: Srinivasan, Chief Judge, Rao, Circuit Judge, and Edwards, Senior Circuit Judge.
This case arises from a dispute over which union—the International Association of Machinists ("IAM") or the International Longshore and Warehouse Union ("ILWU")—is entitled to represent the mechanic workforce at the Ben Nutter Terminal in Oakland, California. For many years, the Terminal's mechanics were represented by the IAM. In 2015, Everport Terminal Services, Inc., took over the Terminal's operation and decided to hire a new workforce. As a member of the multi-employer Pacific Maritime Association ("PMA"), Everport was party to a collective bargaining agreement negotiated between the PMA and the ILWU. As Everport read that agreement, it required Everport to prioritize ILWU applicants in hiring its new mechanics and to recognize the ILWU as their representative. Everport therefore gave qualified ILWU applicants first choice of the available mechanic positions, filling the remaining vacancies with applicants from the Terminal's existing, IAM-represented workforce.
After the IAM cried foul, the National Labor Relations Board ("Board") found that Everport had unlawfully discriminated against the Terminal's incumbent mechanics on the basis of their IAM affiliation; that it had violated its statutory obligation to recognize and bargain with the incumbent mechanics’ chosen union, the IAM; and that it had prematurely recognized the ILWU as the representative of the Terminal's mechanics. The Board also found the ILWU had unlawfully demanded and accepted recognition from Everport. In its order, the Board did not dispute—or even engage with—Everport's reading of the PMA-ILWU agreement, instead dismissing it as a "red herring." Because that was arbitrary, we grant the petitions for review and vacate the Board's order.
Workers at West Coast ports have historically bargained with their employers on a coastwide basis. In 1938, the Board certified the ILWU as the bargaining representative for "all the workers employed at longshore labor in the Pacific Coast ports of the United States." Shipowners’ Ass'n of the Pac. Coast , 7 NLRB 1002, 1022 (1938). Coastwide representation was necessary, the Board found, because employers were coordinating workers’ terms of employment on a coastwide basis. See id. at 1023–24 ; see also Cal. Cartage Co. v. NLRB , 822 F.2d 1203, 1206 (D.C. Cir. 1987) (). Since 1949, West Coast port operators have bargained with the ILWU through the Pacific Maritime Association, a "multi-employer bargaining representative ... with the primary purpose of negotiating, executing, and administering collective bargaining agreements." PMA v. NLRB , 967 F.3d 878, 881 (D.C. Cir. 2020). ILWU members will work only for port operators that are in the PMA, and because of the Board's decision to certify a coastwide bargaining unit, the ILWU represents virtually all skilled longshoremen on the West Coast.
All PMA employers are bound by the terms of a collective bargaining agreement negotiated between the PMA and the ILWU, the Pacific Coast Longshore Contract Document ("Longshore Contract"). The Longshore Contract specifies the longshore jobs PMA employers must give to ILWU members. It also sets the terms of employment for those workers—the wages and benefits they receive, the process through which they are hired, and the reasons for which they may be fired.
The Longshore Contract's scope is broad, reaching "[v]irtually all longshore work at West Coast ports," ILWU v. NLRB ("Kinder Morgan "), 978 F.3d 625, 630 (9th Cir. 2020), and the Board has upheld many of its jurisdiction setting provisions as consistent with the National Labor Relations Act, see PMA , 256 NLRB 769, 770 (1981) ; cf. IAM, Loc. Lodge No. 1484 v. ILWU, Loc. 13 , 781 F.2d 685, 688 n.2 (9th Cir. 1986). In its earliest iterations, it covered stevedore work—i.e., loading and unloading ships. Later, the PMA and the ILWU expanded the Longshore Contract to cover mechanics—the workers who maintain and repair the equipment used to load and unload ships—but agreed that PMA members who had employed non-ILWU mechanics before 1978 could continue doing so. PMA , 256 NLRB at 769–70. The parties again modified the Longshore Contract in 2008, making clear that mechanic work at "all new marine terminal facilities that commence operations after July 1, 2008, shall be assigned to the ILWU." As before, however, they made an exception for terminals where non-ILWU mechanics were employed before 2008—sites the parties designated as "red-circled." Thus, if non-ILWU mechanics had been employed at a terminal since before 1978, the Longshore Contract's amendments permit PMA members to continue employing them.
For all work that falls within its scope, the Longshore Contract sets out a hiring process that PMA members must follow. At each port on the West Coast, the ILWU maintains dispatch halls where ILWU jobseekers may submit applications. PMA members may hire only from these dispatch halls and must allocate work based on applicants’ qualifications, skills, and seniority. The PMA and the ILWU, however, have historically made a limited exception for mechanics. If there are too few ILWU members seeking mechanic work at the relevant dispatch hall, then after offering jobs to all of the hall's qualified mechanics, a PMA member may fill any remaining vacancies "off the street." These non-ILWU hires are onboarded through the so-called "Herman-Flynn process." Off-the-street hires are subjected to a ninety-day probationary period, after which they become "registered" employees that are entitled to the same benefits as ILWU members and are required to pay ILWU dues.
This case centers on twenty-seven mechanic positions at the Ben Nutter Terminal. The Terminal was "red-circled" in 2008 because non-ILWU mechanics had been working there since before 1978.
For many decades, the Terminal was operated by two PMA members—Marine Terminals Corporation ("Marine") and its subsidiary, Miles Motor Transport System ("Miles")—whose stevedores were represented by the ILWU and whose mechanics were represented by the IAM.1 In 2002, Evergreen Marine Corporation acquired the right to operate the Terminal and then subcontracted the Terminal's operation to Marine and Miles. In 2012, Evergreen entrusted the Terminal's operation to its subsidiary, Everport, which again rehired Marine and Miles to run the Terminal. The same workforce remained at the Terminal—Marine and Miles continued using ILWU-represented stevedores and IAM-represented mechanics—and Everport had no direct relationship with these workers.
In 2015, dissatisfied with the state of the Terminal's operations, Everport resolved to operate the Terminal itself and informed Marine and Miles that their contract would end on December 4, 2015. Everport needed to hire stevedores from the ILWU to run the Terminal, so it joined the PMA in June 2015. Everport explored subcontracting the Terminal's mechanic work, but ultimately decided to employ the Terminal's mechanics directly.
The ILWU informed Everport that if it chose to employ its own mechanics, it would need to hire them from the local dispatch hall. "[T]he ‘red-circle’ waiver at the [Terminal] is fully based on the direct bargaining relationship between [Marine and Miles] and IAM," the ILWU explained. "Upon termination of the subcontracting relationship with [Marine and Miles ], the ‘red circle’ waiver no longer applies." After Marine and Miles ceased operations, the Terminal would become a "new marine terminal"—which the Longshore Contract defined to include "vacated facilities." As such, its red-circle status would lapse and the Terminal's mechanic jobs would come within the ILWU's jurisdiction. Therefore, according to the ILWU, Everport was obligated to hire its mechanics from the ILWU dispatch hall and, if necessary, through the Herman-Flynn process. The ILWU was clear that "failure to comply with the full terms of the [Longshore Contract] will result in the Union pursuing all available remedies."
Unsure of its obligations, Everport consulted the PMA, which corroborated the ILWU's reading of the Longshore Contract. According to the PMA, after Marine and Miles ceased operations at the Terminal, it would "no longer [be] a red-circle facility because Everport had no prior agreement with any union at the Terminal and the Terminal was [being] vacated." Based on the PMA and the ILWU's mutual understanding of their contract, Everport told the ILWU that "qualified [ILWU] workers will receive first consideration for steady mechanic jobs." Everport indicated that if vacancies remained after exhausting the pool of qualified ILWU applicants, it would try to rehire the mechanics currently working for Marine and Miles.
After learning of Everport's job postings at the ILWU...
To continue reading
Request your trial
-
Viasat, Inc. v. Fed. Commc'ns Comm'n
...897 F.3d at 225.Here, the Group has given us no insight into how it relates with its members. Two purported members submitted affidavits, 47 F.4th 782 but neither describes involvement in the Group beyond a bare assertion of membership. See Baddiley Decl. ¶ 2; Malina Decl. ¶ 2. And the Grou......