Date: Friday, April 14, 2023
Source: Sourcing Journal
A jurisdictional dispute at the Port of Seattle that reportedly held up West Coast dockworker contract negotiations at the turn of the year just got a legal wrench tossed in its direction—one that could ultimately determine who takes care of maintenance and repairs at one of the port’s terminals.
The National Labor Relations Board (NLRB) ruled that the International Longshore and Warehouse Union (ILWU) violated federal labor law in its attempt to acquire maintenance and repair work related to the use of cold ironing shore power to supply electric power to ships docked at the port’s Terminal 5.
The board also established that the union failed to establish a legitimate work-preservation defense, which it says requires showing that “the union’s members had previously performed the work in dispute and the union was not attempting to expand its work jurisdiction.”
Prior to the dispute, employees represented by the ILWU’s Local 19 chapter performed this new maintenance and repair work for the terminal’s operator, SSA Marine, on a “temporary and inconsistent basis,” the NLRB said.
ILWU illegally pursued the work via a contract claim in arbitration against SSA Marine, which handled the work that the NLRB gave to the International Association of Machinists and Aerospace Workers (IAM) in July 2020, the board said in its Thursday decision.
“The board concluded that the factors of employer preference, past practice, skills and training, and economic efficiency of operations favored an award of the disputed work to IAM,” the decision said, while also acknowledging “the current assignment of work and job loss favored an award to ILWU-represented employees.”
The ILWU will appeal the NLRB’s decision.
“The ILWU is confident that the NLRB decision, which cannot go into effect without court approval, will on appeal be overturned as legally wrong,” ILWU coast committeeman Cam Williams told Sourcing Journal. “The ILWU expects that the companies’ signatory to its collective bargaining agreement abide by the terms of the contract they negotiated.”
Representing more than 22,000 West Coast dockworkers, the ILWU contended the work was granted to its members under prior collective bargaining agreements with employers, represented by the Pacific Maritime Association (PMA). The union first filed its claims in September 2020 and November 2020, initially arguing that the work in question under a 2019 contract had to be assigned to its own members, and not those of IAM.
In publishing the decision, the NLRB affirmed a March 2022 judge’s ruling, findings and conclusions that rejected the arguments of the ILWU.
In particular, the NLRB ruled that the ILWU engaged in unfair labor practices, and ordered the union to cease and desist from “threatening, coercing or restraining” SSA Marine to assign work to ILWU or ILWU Local 19 members, instead of employees represented by IAM.
Despite the decision, appeals from the ILWU are likely to continue to wade their way through the U.S. courts.
The convoluted labor battle over the working jurisdiction could have implications reaching far beyond the Port of Seattle, particularly as the ILWU and PMA remain deadlocked in their negotiations to sign a new labor contract. This dispute has dragged for more than eight months since the previous deal expired on July 1, with the dockworkers still working despite the lack of an agreement in place.
In the latest period of labor unrest, terminal operations closed at the Ports of Los Angeles and Long Beach for Thursday’s night shift and Friday’s day shift. Work resumed with Friday’s night shift.
One of the central issues shaping the scuffle between the ILWU and PMA has been the use of automated equipment at terminals, with the union citing concerns of the technology replacing dockworker job. Both sides initially agreed to allow automation at West Coast ports in 2008, but the topic has only gotten more contentious as newer technologies have slowly been incorporated into areas like container handling; gate entry and exit controls; vehicle and container identification; and routing, among others.
According to PMA records cited in the NLRB ruling, automation in systems and processes at West Coast ports, as well as automation at the Ports of Los Angeles and Long Beach, resulted in a 763-person decrease in ILWU-represented active longshore workers and mechanics between 2008 and 2010. From 2010 to 2015, the employee count was reduced again by 544.
However, by 2020, the total number of active longshore workers and clerks increased by 557 to 12,730 total longshore workers and clerks, surpassing the 2010 levels.
Moreover, between 2007 and 2019, the number of ILWU-represented mechanics at West Coast ports increased by nearly 32 percent, and the number of mechanic shifts per container box increased by 36 percent, including years when volume decreased.
And while 20 terminals have installed equipment to automate some systems and processes during the past six years, just three West Coast container terminals have automated or are expected to automate their equipment operations, the NLRB ruling found.
“Notwithstanding the potential threat to equipment operator positions posed by automation, there is no evidence, beyond the PMA members that have automated or are in the process of automating, that other terminal operators will do so within the next five to ten years,” the NLRB said. “The obstacle is cost since, in order ‘to achieve the desired return on investment to automation in a reasonable amount of time,’ a terminal needs to realize an annual volume of at least 1 million containers (TEUs).”