Pac. Mar. Ass'n v. Nat'l Labor Relations Bd.
| Decision Date | 04 August 2020 |
| Docket Number | 19-1109,19-1110,No. 19-1101,C/w 19-1103,19-1101 |
| Citation | 967 F.3d 878 |
| Parties | PACIFIC MARITIME ASSOCIATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Michael E. Kenneally, Washington, DC, argued the cause for petitioner. With him on the briefs were Jonathan C. Fritts, Brigham M. Cheney, and Thomas A. Lenz.
Eric Weitz, Washington, DC, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, David Habenstreit, Acting Deputy Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.
Before: Srinivasan, Chief Judge, and Rogers and Rao, Circuit Judges.
The National Labor Relations Board determined that Pacific Maritime Association ("Pacific") and Long Beach Container Terminal ("Long Beach") committed two distinct unfair labor practices in violation of the National Labor Relations Act when they applied disciplinary provisions of one employee's collective bargaining agreement for resolving discrimination complaints to an employee represented by a different union under a collective bargaining agreement with different procedures and remedies. Pacific and Long Beach (hereinafter referred to together as "The Employers"), seek to avoid their statutory obligations by contending that they reasonably interpreted their contractual agreement with the disciplined employee to permit the use of procedures and imposition of penalties that were not included in this agreement, and their disciplinary action did not unilaterally change the terms and conditions of the disciplined employee's employment. In view of the plain text of the Employers' agreement that covered the disciplined employee and the record before the Board, we deny their petitions for review and grant the Board's cross-applications for enforcement of its Order.
Pacific Maritime Association ("Pacific") and Long Beach Container Terminal ("Long Beach") are involved in shipping, longshore, and cargo-handling industries at ports on the Pacific coast. Pacific is a mutual benefit corporation that serves as the multi-employer bargaining representative for its employer members, with the primary purpose of negotiating, executing, and administering collective bargaining agreements ("CBAs"). One of its members, Long Beach, operates a marine container terminal at the Port of Long Beach and employs both watchmen and marine clerks. Each classification of employee is represented by a different union, and Pacific has entered into separate agreements with each union. We begin with a summary of those CBAs.
Watchmen at the Port of Long Beach have long been represented by ILWU, Warehouse, Processing and Distribution Workers Union, Local 26 ("Local 26"). Under the Watchmen's Agreement, Local 26 and Pacific jointly operate a dispatch hall that refers watchmen to work for Pacific's members. Article 18 establishes a procedure for addressing disciplinary issues and other disputes arising under the Agreement. Article 16 of the Agreement broadly prohibits discrimination against "any person" on the basis of "race, color, national origin ... or political beliefs ...." Pursuant to Article 18(C), a Joint Labor Relations Committee of employer and union representatives establishes the rules and penalties governing watchmen's conduct; employers retain an unrestricted right of discipline for five offenses. Otherwise, Article 18(D)(1) requires the employer to "attempt to notify and discuss the alleged incident with the individuals involved" and Local 26. "Following a good faith discussion with the Union, or inability to contact the designated Union representative within a reasonable time period," the employer may file a formal complaint, Article 18(D)(1), or request a meeting with the Joint Committee, Article 18(E). "If a satisfactory settlement cannot be reached" by the Joint Committee, then "either party may refer the matter" to the contractual Watchmen Arbitrator. Id. Rules control the arbitration process, including the parties' selection of arbitrators, and rules also limit appeals.
Article 18(H) provides that the "grievance machinery" in the Watchmen's Agreement "shall be the exclusive remedy with respect to any dispute arising under [it] and no other remedies shall be used by the Union, the Employer, or any covered employee until the grievance procedures have been exhausted." Where a disciplinary action affecting a watchman's dispatch right is involved, Article 18(I) specifies that an employer complaint shall only be applicable "to the terminal where the complaint arose." Article 21 states that no provision of the contract "may be amended, modified, changed, altered or waived, except by a written document executed by the parties hereto."
The marine clerks are represented by the International Longshore and Warehouse Union ("the International"). The Pacific Coast Longshore and Clerks' Agreement ("Clerks' Agreement") covers approximately 25,000 longshore workers and marine clerks at Pacific coast ports. This CBA contains its own mechanism for the signatory unions and employers to address disputes regarding covered longshore workers and marine clerks. Notably for present purposes, the Clerks' Agreement includes Section 13.2, which establishes a special grievance procedure for resolving allegations of discrimination or harassment. Under this streamlined procedure, an individual employee may file a complaint, which will be assigned directly to an arbitrator. The arbitrator must promptly schedule an evidentiary hearing to investigate the alleged incident. Within fourteen days after the hearing, the arbitrator shall issue a written decision that includes, as necessary, disciplinary penalties consistent with the guidelines in the Clerks' Agreement. The arbitrator's decision is final, with only limited appeal. In addition to the broad prohibition on discrimination in Section 13.1, side agreements set forth rules of conduct and examples of conduct warranting discipline. In July 2014, Pacific and the International clarified, by letter of understanding ("2014 LOU"), that Section 13.2 complaints may be brought against "other employees of [Pacific's] member companies," but those outside employees may not file Section 13.2 complaints.
The events giving rise to the Board's determination that the Employers had violated the Act began on March 28, 2017. Demetrius Pleas, a watchman represented by Local 26, and a marine clerk represented by the International had a work-related argument during which both men allegedly engaged in racial name-calling. At the time, Pleas was working for Long Beach. The two employees resolved the matter informally that day, but on March 30, 2017, the marine clerk filed a grievance against Pleas pursuant to Section 13.2 of the Clerks' Agreement. Long Beach informed Local 26 the next day that it was investigating the incident and intended, if necessary, to pursue discipline against Pleas under Article 18(C) of the Watchmen's Agreement. Long Beach ultimately concluded that there was insufficient evidence Pleas engaged in wrongdoing to warrant filing a formal Article 18 complaint, but warned Pleas that future incidents would be dealt with through the Watchmen Joint Committee process.
Meanwhile, the Arbitrator assigned to the Section 13.2 grievance scheduled a hearing for May 3, 2017. Counsel for Local 26 wrote Pacific that Local 26 was not bound by Section 13.2 and neither Local 26 nor Pleas would participate in the hearing, and requested that Pacific not take any adverse action against Local 26 members based on these proceedings. Pacific responded by letter that Long Beach and the other Pacific employer members would implement whatever discipline the Arbitrator determined would be appropriate. Neither Pleas nor a Local 26 representative attended the arbitration hearing, but representatives from Pacific and Long Beach did attend and actively participated. At the beginning of the hearing the Arbitrator stated that he did not "really have authority over Mr. Pleas" pursuant to the Clerks' Agreement and that "it would be up to the Employer to enforce any decision if any if action was needed." Arb. Hr'g Tr. 19–20 (May 3, 2017). Pacific made a statement that the "direct employer" (referring to Long Beach) "is prepared to implement any decision made by the Arbitrator," and that Pleas (the watchman) "is subject to complaints under Section 13.2 of the [Clerks' Agreement] as outlined in the 2014 LOU" between Pacific and the International. Arb. Dec. 3 (June 5, 2017).
The Arbitrator proposed that Pleas be barred from working at Long Beach until a final decision was rendered. In his final decision, the Arbitrator found that Pleas had violated Section 13.2 policies and should be suspended from working at all Pacific employer member terminals for twenty eight days, and also required to undertake an unpaid training video and to sign a statement pledging to abide by Section 13.2 policy before returning to work. See id. at 8. Local 26 appealed; the Arbitrator's Order and Decision were sustained, rejecting Local 26's jurisdictional argument. In July 2017, Pacific notified its employer members of Pleas' suspension from working at terminals covered by the Clerks' Agreement.
Local 26 filed unfair labor practice charges against the Employers in May 2017, alleging that they had violated the Act by committing two theoretically distinct unfair labor practices in disciplining watchman Pleas under the Section 13.2 procedure in the Clerks' Agreement: (1) impermissibly modifying the Watchmen's Agreement and (2) unilaterally imposing a new term and condition of employment without bargaining. The Board affirmed the decision of an administrative law judge ("ALJ") that the Employers had violated Sections 8(a)(5) and (1) of the Act under either of the...
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