International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 1

372 NLRB No. 66 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 19 and International Association of Ma- chinists and Aerospace Workers, District Lodge 160, Local Lodge 289 and SSA Terminals, LLC and Pacific Maritime Association, Party in In- terest. Cases 19–CD–269624 and 19–CD–269637 April 6, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On March 4, 2022, Administrative Law Judge Michael A. Rosas issued the attached decision. The Respondents and the Party in Interest filed exceptions and supporting briefs, the General Counsel and the Charging Parties filed answering briefs, and Respondents and the Party in Interest filed reply briefs. In addition, the General Coun- sel and the Charging Parties filed cross-exceptions and supporting briefs, Respondents and the Party in Interest filed answering briefs, and the Charging Parties filed reply briefs.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 1 We grant the Charging Parties’ motions to take administrative no- tice of prior Board decisions and public case documents as they are official records of the Board. We deny Charging Party International Association of Machinists’ (IAM) request that we take administrative notice of and/or reopen the record to admit a May 2022 Pacific Mari- time Association (PMA) report, because this report involves adjudica- tive facts that are subject to reasonable dispute. See Menorah Medical Center, 362 NLRB 1746, 1759 fn. 9, 1764 fn. 24 (2015), enfd. in part 867 F.3d 1288 (D.C. Cir. 2017). We also deny Respondent Interna- tional Longshore and Warehouse Union’s (ILWU) motion to strike Charging Party SSA Terminals’s reply brief on the ground that it is an improper sur-reply, because it does not affect our disposition of the case. Finally, we deny IAM’s meritless motion to revoke the certifica- tion that the Board issued in Shipowners’ Assn. of the Pacific Coast, 7 NLRB 1002 (1938), as IAM proffers no evidence that ILWU is unable to fulfill its statutory obligations. See Bally’s Park Place, Inc., 257 NLRB 777, 777 fn. 1 (1981). 2 Pursuant to the General Counsel’s and SSA Terminals’s cross ex- ceptions, we clarify that (1) the number of mechanic shifts ILWU- represented employees worked for SSA Terminals in Oakland, Seattle, and Tacoma steadily grew from 0 in 2007 to 25,501 in 2019; (2) until 2008, all of SSA Terminals’s maintenance and repair work in the ports of Seattle and Tacoma was performed by IAM; (3) SSA Terminals does not operate Pier 91 at the Port of Seattle nor was it the entity involved in Machinists Lodge 160 (SSA Marine, Inc.), 357 NLRB 126 (2011); and to adopt the recommended Order as modified and set forth in full below.4 In adopting the judge’s finding that ILWU5 failed to establish a legitimate work-preservation defense, we note that the Board has long held that “a work preservation defense requires a showing that ‘the union's members had previously performed the work in dispute and the union was not attempting to expand its work jurisdic- tion.’”6 Here, prior to the instant dispute, ILWU Local 19-represented employees performed this new mainte- nance and repair work for SSA Terminals on a temporary and inconsistent basis. Subsequently, during the penden- cy of the Section 10(k) proceeding, SSA Terminals con- tinued to assign the disputed work to ILWU Local 19- represented mechanics. We agree with the judge that ILWU Local 19’s limited performance of the work, pri- marily during the 10(k) proceeding and with an employer who had only recently begun work at Terminal 5, is in- sufficient to establish a work-preservation defense under our Section 8(b)(4)(D) precedent. We reject the argument, made by ILWU and PMA, that ILWU had a valid work-preservation defense under the Ninth Circuit’s decision in International Longshore & Warehouse Union v. NLRB, 978 F.3d 625 (9th Cir. 2020) (Kinder Morgan). Although Kinder Morgan also involved a dispute between two unions over work, only one of the unions in that case—ILWU—had a collective- bargaining agreement with the employer that covered the disputed work; the other union had a collective- (4) the parties stipulated at the Sec. 10(k) hearing that this was a “clas- sical jurisdictional dispute” but, contrary to the judge, made no further stipulation about SSA Terminals’s conduct; (5) ILWU pursued its contractual claim after the Sec. 10(k) award but before SSA Terminals reassigned the work to IAM in response to that award; (6) we do not rely on the judge’s description of Longshoremen ILWU Local 19 (Seat- tle Tunnel Partners), 361 NLRB 1031 (2014), because it does not re- flect the holding of that case; and (7) SSA Marine Vice President Ed- ward DeNike, not labor economist John O’Grady, testified that ports require a significant increase in container traffic in order to offset the costs of transitioning to automation. The above changes do not affect our disposition of this case. 3 We have amended the judge's Conclusions of Law to clarify that ILWU only pursued its lost work opportunity claims after the Board issued its 10(k) decision. 4 We shall substitute a new notice to conform to the Order as modi- fied, the Board's standard remedial language, and our recent decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). Member Kaplan acknowledges and applies Paragon Systems as Board precedent, alt- hough he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance, 369 NLRB No. 68 (2020). 5 Except where the differentiation is needed for clarity, Respondents ILWU and ILWU Local 19 are hereinafter collectively referred to as ILWU. 6 Stage Employees IATSE Local 39 (Shepard Exposition Services), 337 NLRB 721, 723 (2002) (quoting Teamsters Local 107 (Reber-Friel Co.), 336 NLRB 518, 521 (2001)). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 bargaining agreement with a subcontractor of the em- ployer. Thus, Kinder Morgan involved allegations under both Section 8(b)(4)(D), which pertains to jurisdictional disputes, and Section 8(b)(4)(B), which prohibits certain types of secondary conduct against “neutral” employers. The instant case, by contrast, involves two unions, ILWU and IAM, that each have a collective-bargaining agree- ment with the same primary employer, SSA Terminals, covering the same maintenance and repair work at issue. Neither union has historically represented employees of the employer performing this work at the disputed site, nor did either claim that the Board lacked jurisdiction during the Section 10(k) proceedings. Accordingly, un- like in Kinder Morgan, the real nature and origin of this dispute involves two union agreements with the same employer that cover the same work, and the employer is not seeking to reassign that work from union workers who have historically performed it.7 The Board and courts have treated such disputes as textbook jurisdic- tional disputes.8 Moreover, this case presents an unusual situation in that ILWU sought to enforce its contractual claims to the disputed work solely in response to the Board’s Section 10(k) determination awarding the work to the IAM. The Board, however, has only considered the work- preservation defense under Section 8(b)(4)(D) in cases where the disappointed union asserts a work preservation defense based on putative job loss not caused in the first instance by the employer’s compliance with the 10(k) award.9 Here, SSA Terminals originally assigned the new maintenance and repair work at Terminal 5 to ILWU-represented employees. It was only after the Board awarded the disputed work to IAM (and even be- fore SSA Terminals complied with that award), that ILWU unlawfully pursued its contractual claim to the work via arbitration. The arbitrator subsequently di- rected SSA Terminals to pay ILWU lost work opportuni- ty claims. Although in arbitration ILWU had claimed 7 Therefore, we reject ILWU’s contention that it was SSA Termi- nals that created the instant dispute. 8 See, e.g., Int’l Longshoremen’s & Warehousemen’s Union v. NLRB, 884 F.2d 1407, 1412 (D.C. Cir. 1989); Operating Engineers Local 18 (Donley’s, Inc.), 363 NLRB 1784 (2016), enfd. 712 Fed. Appx. 511 (6th Cir. 2017); Bloomsburg Graphics Commun. Union, Local No. 732-C, 308 NLRB 1190, 1192 fn.4 (1992). As the Supreme Court has recognized, Congress enacted Sec. 10(k) and the related Sec. 8(b)(4)(D) to authorize the Board to resolve these types of jurisdictional disputes. NLRB v. Radio & Television Broadcast Engineers, 364 U.S. 573, 576, 578 (1961). 9 See, e.g., Int’l Longshore & Warehouse Union, 371 NLRB No. 125, slip op. at 3–4 (2022); Operating Engineers Local 18 (Donley’s, Inc.), above at 1784-1785; Longshoremen ILWU Local 14 (Sierra Pa- cific Industries), 318 NLRB 462 (1995), enfd. 85 F.3d 646 (D.C. Cir. 1996). that SSA Terminals had breached its contractual obliga- tion to defend its assignment of the maintenance and repair work to ILWU in the Section 10(k) proceeding, the basis for its work-preservation defense is the Board’s determination awarding the disputed work to employees represented by IAM, and the resulting compliance of SSA Terminals with that award.10 Accordingly, we reject ILWU’s work-preservation de- fense and adopt the judge’s finding that ILWU violated Section 8(b)(4)(ii)(D) by continuing to pursue the disput- ed maintenance and repair work after the Board’s Section 10(k) decision and seeking to have that work assigned to ILWU Local 19-represented employees, rather than em- ployees represented by IAM.11 AMENDED CONCLUSIONS OF LAW 1. Substitute the following for paragraph 3. “3. By pursuing lost work opportunity claims under the 2008 PCLCD after the Board’s Section 10(k) deci- sion issued in order to force the Employer to assign the maintenance and repair work at Terminal 5 in the Port of Seattle to ILWU-represented employees, rather than em- ployees represented by IAM, ILWU has engaged in un- fair labor practices in violation of Section 8(b)(4)(ii)(D).” ORDER The National Labor Relations Board orders that the Respondents, International Longshore & Warehouse Un- ion and International Longshore & Warehouse Union, Local 19, their officers, agents, and representatives, shall 1. Cease and desist from (a) Threatening, coercing, or restraining SSA Termi- nals, LLC, or any other person engaged in commerce or in an industry affecting commerce, where an object of their actions is to force or require SSA Terminals, LLC to assign maintenance and repair work at Terminal 5 in the Port of Seattle to employees who are members of, or represented by the International Longshore & Warehouse Union and International Longshore & Warehouse Union, Local 19, rather than to employees who are members of, or represented by, International Association of Machin- ists and Aerospace Workers, District Lodge 160, Local Lodge 289. 10 As the courts have recognized, “Congress intended to afford em- ployers protection when their actions conform to a Board determination under section 10(k).” Int’l Union of Operating Engineers v. Sullivan Transfer, Inc., 650 F.2d 669, 677 (5th Cir. 1981) (emphasis added); see also UAW & its Local 519 v. Rockwell Int'l Corp., 619 F.2d 580, 584 (6th Cir. 1980) (“We agree with the district court’s holding that when an employer has been acting in accord with an ultimate NLRB § 10(k) ruling, it is not liable for damages to the disappointed union.”). 11 Member Kaplan would consider revisiting the Board’s approach to Sec. 8(b)(4)(D) and 10(k) proceedings in a future appropriate case. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 3 (b) Pursuing lost work opportunity claims and seeking to enforce the arbitration award of the Coast Arbitrator in order to obtain maintenance and repair work performed at Terminal 5 in the Port of Seattle by employees repre- sented by the International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify the Joint Coast Labor Committee estab- lished by the 2008 PCLCD, in writing, that they have withdrawn both its claim filed on September 14, 2020, against SSA Terminals, LLC, and the lost work- opportunity claims filed after the Coast Arbitrator’s No- vember 30, 2020 award, and request, in writing, that the Coast Arbitrator vacate his November 30, 2020 award on those claims. (b) Post at their respective Seattle, Washington offices and meeting halls copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondents’ authorized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents cus- tomarily communicate with employees and members by such means. The Respondents shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. 12 If the Respondents’ offices and meeting halls are open to and ac- cessible to a substantial complement of employees and members, the notice must be posted within 14 days after service by the Region. If the offices and meeting halls involved in these proceedings are closed or accessible by a substantial complement of employees and members due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the offices and meeting places reopen and are accessible by a substantial complement of employees and members. If, while closed or not accessible by a substantial com- plement of employees and members due to the pandemic, the Respond- ents are communicating with its employees and members by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically post- ed was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” (c) Within 14 days after service by the Region, deliver to the Regional Director for Region 19 signed copies of the Respondents’ notice to employees and members for posting by SSA Terminals, LLC, at its jobsite, if it wish- es, in all places where notices to employees are custom- arily posted. (d) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. April 6, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONALLABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten, coerce, or restrain SSA Termi- nals, LLC, or any other person engaged in commerce or in an industry affecting commerce, where an object of our actions is to force or require SSA Terminals, LLC to assign maintenance and repair work at Terminal 5 in the Port of Seattle to employees who are members of, or represented by us, rather than to employees who are DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 members of, or represented by, International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. WE WILL NOT pursue lost work opportunity claims and seek to enforce the arbitration award of the Coast Arbi- trator in order to obtain maintenance and repair work performed at Terminal 5 in the Port of Seattle by em- ployees represented by the International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. WE WILL notify the Joint Coast Labor Committee es- tablished by the 2008 PCLCD, in writing, that we have withdrawn both our claim filed on September 14, 2020, against SSA Terminals, LLC, and the lost work oppor- tunity claims filed after the Coast Arbitrator’s November 30, 2020 award, and WE WILL request, in writing, that the Coast Arbitrator vacate his November 30, 2020 award on those claims. INTERNATIONAL LONGSHORE & WAREHOUSE UNION AND INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 19 The Board’s decision can be found at www.nlrb.gov/case/19-CD-269624 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Helena Fiorianti, Esq., for the General Counsel. Eleanor Morton and Lindsay Nicholas, Esq. (Leonard Carder LLP), of San Francisco, California, for the Respondent. James J. McMullen, Jr., Esq. (Gordon & Reese LLP), of San Diego, California, for Charging Party SSA. David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), of Emeryville, California, Charging Party IAM. Jonathan Fritts, Esq. (Morgan Lewis & Bockius), of Washing- ton, DC, for Party-in-Interest PMA DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried virtually by remote Zoom technology on September 7 through 10, and December 6, 2021. The consolidated com- plaint alleges an unfair labor practice violation of Section 158(b)(4)(ii)(D) of the National Labor Relations Act (the Act)1 based on the efforts of the Respondents International Long- shore and Warehouse Union and International Longshore and Warehouse Union Local,19 (collectively ILWU) to acquire maintenance and repair work (M&R work) from employees of SSA Terminals, LLC (the Employer) represented by the Inter- national Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289 (IAM) at the Port of Seat- tle. The complaint specifically premises the alleged violation on ILWU’s effort to acquire the disputed M&R work by pursu- ing a contractual claim with Party-in-Interest, the Pacific Mari- time Association (PMA), thereby nullifying the National Labor Relations Board’s (the Board) earlier Decision and Determina- tion in International Association of Machinists and Aerospace Workers, District Lodge No. 160 and SSA Terminals, LLC, 369 NLRB No. 126 (2020) (the Section 10(k) award).2 On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, ILWU, IAM, PMA, and the Employer, I make the following FINDINGS OF FACT I. JURISDICTION The Employer, a Delaware corporation, operates a marine terminal at the Port of Seattle, Washington, where it annually derives gross revenues in excess of $500,000, and purchases and receives goods valued in excess of $50,000 from points outside the State of Washington. ILWU admits, and I find, that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and ILWU and IAM are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties 1. PMA The West Coast ports handle over 50 percent of the nation’s containerized imports and exports.” U.S. v. PMA, 229 F. Supp. 2d 1008 (N.D. Cal. 2002). “The domestic business impact of this trade is more than $2 trillion annually, or 12.5 percent of U.S. GDP.”3 In 1938, the Board certified the multi-employer group that is now the PMA. The Board found that the integrat- ed nature of the industry and history of bargaining struggles and conflict made a coastwise, multi-employer unit the appro- priate one and expressly rejected a single employer or facility- 1 29 U.S.C. §§ 151-169. 2 ILWU’s contends that the Section 10(k) decision “was null and void ab initio” because it lost a quorum when then-Chairman Ring recused himself from the three-member panel. The Board would disa- gree. See New Process Steel v. NLRB, 560 U.S. 674, 688 (2010) (“the group quorum provision [of Sec. 3(b)] still operates to allow any panel to issue a decision by only two members if one member is disquali- fied.”) See also D.R. Horton, Inc., 357 NLRB 2277, 2277 fn. 1 (2012), enfd. in rel. part, 737 F.3d 344 (5th Cir. 2013); NLRB v. New Vista Nursing & Rehabilitation, 870 F.3d 113, 127-128 (3d Cir. 2017). 3 See PMA 2020 Annual Report. (R. Exh. 21 at 35). INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 5 by-facility approach. Shipowners’ Assn. of the Pac. Coast, 7 NLRB 1002, 1022-24 (1938), petition for review dismissed sub nom. AFL v. NLRB, 103 F.2d 933 (D.C. Cir. 1939), affd., 308 U.S. 401 (1940) (certifying unit of “all the workers employed at longshore labor in the Pacific Coast ports of the United States”). PMA consists of 60 members and is controlled by an 11- member Board of Directors and Coast Steering Committee, both of which include the Employer. Pursuant to the Board’s 1938 order, PMA’s multi-employer group includes both “indi- rect employers” (i.e., ocean carriers or domestic carriers that transport cargo to and from the West Coast) and “direct em- ployers” (i.e., terminal operators, stevedoring companies, maintenance and repair companies) of longshore labor. As the Board explained in a case affirming its earlier decision: [E]mployers in the shipping industry on the Pacific coast have a direct and vital interest in the terms and conditions of em- ployment for longshoremen. The history of labor relations in that industry has been fraught with extraordinary problems, which have extended beyond the customary employer- employee relationship. As the Board pointed out in 1938, the statute defines the term “employer” to include any person act- ing as an agent for an employer “directly or indirectly.” All members of PMA have given that agency the authority to act as their agent and PMA, in turn, is clearly the agent of em- ployers employing longshoremen. In this particular industry the community of interest of the participating employers is unmistakable. ILWU Local 13 (Cal. Cartage), 208 NLRB 994, 996–997 (1974). 2. ILWU ILWU is the collective-bargaining representative of a coast- wide bargaining unit consisting of longshore workers, marine clerks and guards at the 29 ports on the West Coast of the Unit- ed States from Bellingham, Washington to San Diego, Califor- nia. Nine of those ports include or consist entirely of container terminals: Port of Seattle, Port of Tacoma, Port of Portland, Port of Oakland, Port of San Francisco, Port of Los Angeles, Port of Long Beach, Port of San Diego, and Port Hueneme. Local 19 is the ILWU affiliate that represents longshore work- ers in the coastwise unit at the Port of Seattle. Historically, ILWU members have performed all stevedoring work on the West Coast for PMA members, including the Em- ployer. They tie-up ocean vessels, operate cranes to load and unload container cargo from and onto ships, operate yard trac- tors to transport containers between docks and storage yards, and operate yard tractors to move cargo within the storage yards. ILWU marine clerks record the movement of cargo into and out of the terminal and on the dock and yard. ILWU members also maintain and repair (M&R work) the equipment used by the stevedores to move, including portainer cranes, transtainers, multiple types of gantry cranes, side-picks, top handlers, trucks, forklifts, containers and chassis. Others per- form mechanic work in addition to performing other longshore duties. Some are registered mechanics who perform M&R ex- clusively or almost exclusively; others perform mechanic work in addition to other longshore duties.4 As of December 2020, PMA members employed nearly 15,000 ILWU members, including casual workers who typical- ly work part-time, at the West Coast ports. Since 2002, when ILWU and PMA agreed to the introduction of widespread use of technology at West Coast ports, and 2008, when they agreed to allow automation at West Coast ports, the registered work- force has grown by 42 percent and the number of ILWU me- chanic shifts per container box increasing in various ports by 36 percent.5 From 2008 to 2020, the number of ILWU mechanic shifts performed for PMA members, including the Employer, steadily grew from 0 in 2007 to 25,501 shifts in 2019.6 In contrast, containers loaded and unloaded by PMA members during the same period increased by approximately five percent. As of August 2021, 2692 ILWU members, mostly full-time, had been assigned to perform M&R work at West Coast ports, including Pier 91 at the Port of Seattle.7 Other West Coast ports where ILWU members perform M&R work include the jointly man- aged Port of Tacoma, Oakland, Coos Bay, Port Angeles, Longview, Portland, Port Hueneme, and San Diego. 3. IAM IAM’s Local 160 is a Seattle-based affiliate that represents the Employer’s mechanics at Terminals 5, 18, and 30 in Seattle. Until 2008, all of the Employer’s work in the Ports of Seattle and Tacoma was performed by IAM. The Employer and its predecessors and affiliates have had collective bargaining agreements with the IAM for M&R work on equipment owned or leased by the Employer in the Puget Sound area for dec- ades.8 Currently, the Employer has a collective bargaining agreement with IAM, which also covers the Puget Sound.9 That agreement states, in part, that IAM-represented employees shall perform “all M&R work” and repair all equipment owned or leased by the Employer in the Puget Sound area. Id. Prior to July 16, 2020, however, IAM had never represented employees who performed M&R work for the Employer at Terminal 5 in Seattle. 4. The Employer The Employer operates marine facilities, including container terminals, around the world. Container terminals accommodate large container ships with container cranes. The Employer’s services include the loading and unloading of containers from ships and trucks, and the maintenance and repair of the equip- ment used in these operations. Stevedoring work at the Employer’s container terminals is performed by ILWU members. Its West Coast operations in- clude Terminals 5, 18, and 30, and Pier 91at the Port of Seattle. At West Coast ports, the Employer employs either ILWU or IAM locals to maintain and repair cargo-handling equipment. In the Port of Seattle, following a similar Section 10(k) pro- 4 R. Exh. 43. 5 R. Exh. 21 at 35. 6 Jt. Exh. 3 at 289–290. 7 R. Exh. 22-28. 8 Jt. Exh. 73 at 18–19. 9 CP Exh. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ceeding, ILWU-represented workers have performed M&R work for the Employer at Pier 91. See Machinists Lodge 160 (SSA Marine, Inc.), 357 NLRB 126 (2011) (awarding work at Terminal 91 in Seattle to ILWU and incorporating by reference a prior vacated decision in SSA Marine, Inc., 355 NLRB 23 (2010). At Terminals 18 and 30, however, the Employer em- ploys mechanics represented by IAM locals. Edward DeNike is the Executive Vice President of the Em- ployer’s parent company, SSA Marine, Inc. (SSA Marine), and has been involved in the management of stevedore companies and marine terminal operations for over 53 years. DeNike has been the Employer’s chief operating officer since its inception in 1999. The Employer and SSA Marine, have maintained collective-bargaining agreements with the IAM to perform M&R work in the Puget Sound area dating back to the 1940s. The current agreement between the IAM and the Employer began on July 1, 2017, and expires on June 30, 2023.10 B. The ILWA-PMA Agreement PMA, on behalf of itself and its member companies, negoti- ates the collective-bargaining agreement with ILWU (the ILWU-PMA agreement). The ILWU-PMA agreement consists of two documents: the Pacific Coast Longshore Contract Doc- ument (PCLCD), which covers longshore workers in the coast- wide, multiemployer bargaining unit, and the Pacific Coast Clerks Contract Document (PCCCD), which covers marine clerks. The agreement is renegotiated approximately every three years. PMA administers those agreements and provides payroll services for its employer-members. In 1978, ILWU and PMA agreed that the maintenance “of containers of any kind and of chassis, and the movement inci- dental to such maintenance and repair,” and “of all stevedore cargo handling equipment.” would be performed by ILWU- represented workers.11 The PMA Employers who were doing business with non-ILWU members could continue. During the 2008 negotiations, ILWU agreed to give PMA Employers the right to automate operations and introduce new technologies. In exchange, the PMA Employers agreed to assign ILWU members to perform additional M&R on equipment used to handle cargo and load and unload ships, including electronics and technical equipment. The agreement did not apply to “red- circled” facilities, i.e., those where non-ILWU members al- ready performed M&R work. However, it designated the work for ILWU members at all existing and new facilities. It was also agreed that vacated facilities later occupied would be con- sidered “new marine terminal facilities.” The most recent ILWU-PMA agreement became effective July 1, 2019, and expires July 1, 2022.12 The ILWU-PMA agreement is administered by the Coast Labor Relations Com- mittee (CLRC). The CLRC is comprised of PMA members, including the Employer, assisted by PMA staff on one side, and ILWU officers on the other. On the employer side of the table, PMA’s chief executive officer chairs a bargaining committee consisting of PMA members, assisted by PMA staff. Any final 10 Jt. Exh. 3, 35, 56, 81; CP Exh. 15. 11 Jt. Exh. 4(a) at Sec. 1.71. 12 Jt. Exh. 4(a)-(b) § 1.1. agreement with ILWU must be approved by PMA’s Board of Directors. On the union side of the table, ILWU’s President chairs a bargaining committee consisting of representatives elected by ILWU locals based on the West Coast, assisted by staff and counsel. Agreements reached must be ratified by the membership. The ILWU-PMA agreement includes the follow- ing pertinent provisions: 1.51 The individual employer shall not be deemed to be in violation of the terms of the Contract Document assigning work to longshoremen if he assigns work to a nonlongshore- man on the basis of a good-faith contention that this is permit- ted under an exception provided for herein. 1.52 Should there be any dispute as to the existence or terms of any exception, or should there be no reasonable way to per- form the work without the use of nonlongshoreman, work shall continue as directed by the employer while the dispute is resolved hereunder. 1.53 Any such dispute shall be immediately placed before the Joint Coast Labor Relations Committee by the party attacking any claimed exception or proposing any change in an excep- tion or any new exception. The Joint Coast Labor Relations Committee decision shall be promptly issued and shall be fi- nal unless and until changed by the parties or that Committee. The Committee may act on the grounds set forth in Section 1.54 or on any other grounds. Both parties agree that its posi- tion on such a dispute shall in no case be supported by, or give rise to threat, restraint or coercion. 1.54 Any such dispute that is not so resolved by the Commit- tee within 7 days after being placed before it, may be placed before the Coast Arbitrator on motion of either party. The Ar- bitrator shall decide whether an exception should be upheld and may do so on the following grounds only: (a) Nonlongshoreman were assigned the skilled or un- skilled labor in dispute under practices existing as of January-August 10, 1959, arrived at by mutual consent and as thereafter modified or defined by the parties or the Joint Coast Labor Relations Committee, or; (b) Cranes are not available on a bare boat basis and reasonable bona fide efforts to obtain them have been made and there is no reasonable substitute crane availa- ble. 1.7 This Contract Document shall apply to the mainte- nance repair of containers of any kind and of chassis, and the movement incidental to such maintenance and repair. (See Section 1.81.) 1.71 This Contract Document shall apply to the mainte- nance and repair of all stevedore cargo handling equip- ment. (See Section 1.81.) INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 7 1.72 It is recognized that the introduction of new tech- nologies, including fully mechanized and robotic- operated marine terminals, necessarily displaces tradi- tional longshore work and workers, including the operat- ing, maintenance and repair, and associated cleaning of stevedore cargo handling equipment. The parties recog- nize robotics and other technologies will replace a cer- tain number of equipment operators and other traditional longshore classifications. It is agreed that the jurisdiction of the ILWU shall apply to the maintenance and repair of all present and forthcoming stevedore cargo handling equipment in accordance with Sections 1.7 and 1.71 and shall constitute the functional equivalent of such tradi- tional ILWU work. It is further recognized that since such robotics and other technologies replace a certain number of ILWU equipment operators and other tradi- tional ILWU classifications, the pre-commission instal- lation per each Employer’s past practice (e.g., OCR, GPS, MODAT, and related equipment, etc., excluding operating system, servers, and terminal infrastructure, etc.), post-commission installation, reinstallation, re- moval, maintenance and repair, and associated cleaning of such new technologies perform and constitute the functional equivalent of such traditional ILWU jobs. (See Section 1.81 and Letter of Understanding - Clarifi- cation and Exceptions to ILWU Maintenance and Repair Jurisdiction.) 1.73 The scope of work shall include the pre- commission installation per each Employer’s past prac- tice (e.g., OCR, GPS, MODAT, and related equipment, etc., excluding operating system, servers, and terminal infrastructure, etc.), post-commission installation, rein- stallation, removal, maintenance and repair, and associ- ated cleaning of all present and forthcoming technologi- cal equipment related to the operation of stevedore cargo handling equipment (which term includes containers and chassis) and its electronics, that are controlled or inter- changed by PMA companies, in all West Coast ports. (See Section 1.81 and Letter of Understanding - Clarifi- cation and Exceptions to ILWU Maintenance and Repair Jurisdiction.) 1.731 In accordance with Sections 1.7, 1.71, 1.72, and 1.73, the maintenance and repair work on all new marine terminal facilities that commence operations after July 1, 2008, shall be assigned to the ILWU. New marine ter- minals shall include new facilities, relocated facilities, and vacated facilities. (See Section 1.81 and Letter of Understanding – Clarification and Exceptions to ILWU Maintenance and Repair Jurisdiction.) 1.74 PMA members and their affiliated companies shall not engage in subterfuge to avoid their maintenance and re- pair obligations under this Agreement to the ILWU. Containers and chassis, owned, leased, or interchanged by a carrier controlling, controlled by or under common control with an agency company that is a PMA member shall be deemed to be owned, leased or interchanged by that PMA member company when that equipment is on a dock. 1.75 All on dock activities associated with the plugging and unplugging of vessels for cold ironing or its equiva- lent shall be performed by ILWU Longshore Division employees, except for US Flag vessels and crews as to their work on the vessel, as may be contractually as- signed to them as of July 1, 2008. (See Section 1.81 and Letter of Understanding – Clarification and Exceptions to ILWU Maintenance and Repair Jurisdiction.) 1.76 The Employers shall assign work in accordance with Section 1 provisions and as may be directed by the CLRC or an arbitration award, which the Employersshall defend in any legal proceeding. PMA shall participate along with the individual Employers assigning the work in anylegalproceeding. 1.81 ILWU jurisdiction of maintenance and repair work shall not apply at those specific marine termi- nals that are listed as being “red-circled” in the July 1, 2008 Letter of Understanding on this subject. Red- circled facilities, as they are modified/upgraded (e.g., in- troduction of new technologies), or expanded, while maintaining the fundamental identity of the pre-existing facility, shall not result in the displacement of the recog- nized workforce and shall not be disturbed, unless as de- terminedby the terminal owneror tenant. 1.811 This Contract Document shall apply to all move- ment of containers and chassis under one of the fol- lowing conditions: (a) when containers or chassis are moved on a dock from a container yard to or from a storage area adjacent to a maintenance and repair facili- ty on the same dock, such movement will be made by ILWU personnel, and (b) when an employer does not use a storage area adjacent to a maintenance and repair facility and the movement is directly between a container yard and a maintenance and repair facility on the same dock, such movement will be made by ILWU personnel. If there is objection by the union having contractual rights at such facility, (a) above shall be applied and ILWU personnel shallmove the containers or chassis to a storage area adjacent toa maintenanceandrepair facility. This Section 1.811 does not apply to: (a) movements of containers or chassis to or from roadability check sta- tions in the container yard for repairs required for over the road haulage; or (b) movements for emergency repair and emergency maintenance of laden refrigerated con- tainers. C. Automation at Container Terminals (1) The Pace of Automation13 13 ILWU called John O’Grady, an expert in labor market economics, to testify regarding automation in the container ship industry. O’Grady’s testimony essentially reflected his review and analysis of peer-reviewed literature, industry reports, and data available from pub- lic entities. (R. Exh. 41.) The General Counsel challenged his conclu- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Automation entails the replacement of equipment operators in the unloading and loading of container ship cargo with robot- ic and similar technologies, eliminating the need for workers to operate cargo handling equipment including cranes, transtain- ers, bomb carts, gantry cranes, to move cargo by automated systems. Process automation is the implementation of optical character recognition (OCR) and radio frequency identification (RFID). These processes include gate entry and exit controls, vehicle and container identification, radiation scanning, driver identification, and routing within the terminal. Process automa- tion eliminates marine clerk jobs; robotic technologies elimi- nate dockside, yard and landside jobs.14 The automation of ports began in the 1990s. As reported in numerous Journal of Commerce articles over the past 15 years, automation has grown gradually throughout the world. Factors in transitioning to port automation include labor costs, widen- ing of the Panama Canal creating new inter-port competition for cargoes from Asia, and governmental pressures to replace traditional equipment with so-called “green” technologies are all factors driving automation. PMA Annual Reports also mention automation as a strategy to lure additional container business.15 By 2021, there were approximately 40 partially or fully au- tomated terminals worldwide. Twenty terminals have installed equipment to automate some systems and processes during the past six years. Although the Employer operates ports world- wide, it has semi-automated only two terminals—Manzanillo International Terminal in Panama (2015) and Tuxan Port Ter- minal in Mexico (2016).16 Other PMA members have also automated their container terminals throughout the world.17 Currently, only three West Coast container terminals have automated or are expected to automate their equipment opera- tions. The TraPac terminal in the Port of Los Angeles semi- automated in 2016. Long Beach Container Terminal fully au- tomated its terminal in 2017. In 2019, the Maersk Terminal sions on the grounds that his report did not focus on marine clerks or the performance of M&R work, he did not interview port employers, and overlooked data specific to the West Coast. O’Grady, however, credibly testified that conducting interviews was not the “preferred research methodology” in his profession because it typically results in biased responses of little to no evidentiary value in objectively identify- ing industry trends. (Tr. 673–674, 762.) Therefore, I credited O’Grady’s opinion, but only to extent that it was supported by the trade information and reporting that he relied upon in his report. See Meijer, Inc., 329 NLRB 730, 734 (1999) (relying on, inter alia, opinion of labor economist reached based on survey of existing research). See also In Allen v. Hylands, Inc., 773 Fed. Appx. 870, 873 (9th Cir. 2019) (toxicol- ogy expert’s opinion admissible where “derived from a literature re- view citing to several peer-reviewed sources in his field”); In Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) (lower court erred by excluding expert opinion formed from review of other experts’ opin- ions). 14 R. Exhs. 7, and 41 at 15. 15 The articles focused on the benefits of automation, but did not ex- plore at length the complexities and costs involved in such transitions. (R. Exhs. 12 at 2, 15 at 2, 13 at 3–4, 46 at 3, 47 at 1, 48 at 1–2, 49 at 1– 3, 50 at 2, 52 at 1–2, 53 at 1–2, 55 at 1–3, 58 at 2, 61 at 1–2.) 16 R. Exhs. 36 at 14, and 41 at 13–14. 17 R. Exhs. 21 at 8, and 36 at 14–15. began the transition of automating its machinery and equipment in the Port of Long Beach.18 Recently, Total Terminals, Inc. announced that it would be fully automating its terminal at the Port of Long Beach.19 As explained by the industry reports and studies, however, the fact that more West Coast container ter- minals have not automated can be attributed to the volume of container traffic into and out of the ports further north.20 (a) McKinsey & Co. In 2018, global management consulting firm McKinsey & Co. surveyed 40 participants from the United States, China, Europe, the Middle East and Singapore. The companies were leading practitioners from shipping companies, automation equipment suppliers, port-asset management firms, and aca- demic experts. In the ensuing report, McKinsey & Co. ex- plained that automation in port operations was becoming a trend, with a twist: Executive Summary Although ports have adopted automation more slowly than comparable sectors, notably mining and warehousing, the pace is now starting to accelerate. Automated ports are safer than conventional ones. The number of human-related dis- ruptions falls, and performance becomes more predictable. Yet, the up-front capital expenditures are quite high, and the operational challenges –a shortage of capabilities poor data, solid operations, and difficulty handling exceptions – are very significant. A McKinsey survey indicates that while operat- ing expenses decline, so does productivity, and the returns on invested capital are currently lower than the industry norm. Nonetheless, successful automated ports show that careful planning and management can surmount these difficulties: operating expenses could all by 25 to 55 percent and produc- tivity could rise by 10 to 35 percent. And in the long run, these investments will lead the way toward a new paradigm– call it Port 4.0–the sift from asset operator to service orches- trator, part of a larger transition to Industry 4.0, or digitally enabled efficiency gains throughout the world economy. Port 4.0 will generate more value for port operators, suppliers, and customers alike, but that value isn’t proportionally distributed across ports and their ecosystems. Innovative business mod- els and forms of collaboration will be required to realize this vision. The difficult economics of port automation The first automated container port was developed in Europe in the early1990s. Sincethen,manyports – more than20 in the past six years—have installed equipment to automate at least 18 R. Exh. 36 at 14. 19 This finding is based on Williams’ unrefuted testimony. (Tr. 190– 191.) 20 O’Grady concluded, based on industry reports, that competitive pressures will ultimately lead the Port of Seattle and other West Coast container terminals to invest in automation. (Tr. 444; R. Exh. 41 at 9– 10, 16, 22.) As explained in the following industry publications, how- ever, that conclusion is undermined by cost considerations. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 9 some of the processes in their terminals (see sidebar, “What is port automation?”). Almost 40 partly or fully automated ports now do business in various parts of the world, and the best esti- mates suggest that atleast $10 billion has beeninvested in such projects. Themomentum will probably accelerate:anaddition- al$10billionto $15billionisexpectedoverthenextfiveyears. On theface ofit,container ports seemideal places to automate. The physical environment is structured and predictable. Many activities arerepetitive and straightforward. They generate vast amounts of readily collected and processed data. Better still, the value from automation includes not only cost savings but also performance and safety gains for ports and the companies thatdobusinessthere. Nonetheless, ports are moving more slowly than sectors with comparable complexities (Exhibit 1), in part because the eco- nomics of automating them haven’t lived upto expectations. In the mining sector, which is also process driven and asset inten- sive, some early movers in automation have improved costs and productivity by 20 to 40 percent. In the warehousing busi- ness,theimprovementshavebeen estimatedat10to30percent. Manufacturers of cars and trucks have also successfully auto- mated complex processes,and someoftheequipmenttheyuse, such as automated guided vehicles and materials-handling ro- bots,arehighlyrelevantforports. Yet our recentsurvey of industry leadersindicates thatthereal- world performance of most automated ports doesn’t increase sufficiently in every material way. Safety improves, the num- ber of human-related disruptions (such as shift changes) falls significantly, and performance becomes more predictable. But practitionersrespondingto the survey thinkthat these ports, es- pecially fully automated ones, are generally less productive than their conventional counterparts. The return on invested capital of assets at some automated ports is falling short by up to one percentage point from the industry norm of about 8 per- cent.21 More than half of the participants expected the partial or to- tal conversion to automation of at least 50% of the top 50 exist- ing ports (brownfield projects) by 2023. With respect to previ- ously undeveloped ports (greenfield projects), 80% of the par- ticipants expected at least half of such projects to be semi- or fully automated. The report tempered those expectations, how- ever, cautioning port operators and investors about the costs and impact on productivity at automated terminals: Up-front capital outlays are high. We estimate that to justify these investments, the operating expenses of an automated greenfield terminal would have to be 25 percent lower than those of a conventional one or productivity would have to rise by 30 percent while operating expenses fell by 10 percent The respondents to McKinsey’s survey expect automation to cut operating expenses by 25 to 55 percent and to raise 21 R. Exh. 37 at 2. productivity by 10 to 35 percent, in line with our estimates of what might be possible. But today these expectations general- ly aren’t realized, especially in fully automated projects. Our survey indicates that operating expenses at automated ports do indeed fall, but only by 15 to 35 percent (Exhibit 2). Worse, productivity actually falls, by 7 to 15 percent. An executive of a global port operator told us, for example, that at fully auto- mated terminals, the average number of gross moves per hour for quay cranes—a key indicator of productivity—is in the low 20s. At many conventional terminals, it is in the high 30s. With numbers like these, automation can’t overcome the bur- den of the up-front capital expenditures. (b) Moody’s Investor Services In a June 2019 industry report, Moody’s Investor Services issued a similar mixed assessment of the global prospects for automating ports.22 In the last 10 years, a growing number of US and international ports have implemented semi or fully automated container terminal systems, looking to gain operating efficiencies and competitive advantages. We expect more ports to implement automation over the next decade. Automation can lower oper- ating costs, increase throughput capacity, improve service reli- ability and reduce emissions. However, significant capital in- vestment, uncertain productivity gains, potential disruptions to active operations andlabor concerns are key risks. Automatedterminalshave40%-70%lowerlaborrequirements, one of the most significant expenses for operators. However, peak productivity does not always exceed conventional facili- ties, and there is significant political and social risk associated with labor unions due tothe impact on employment. * * * Adoptionofautomationisgrowingglobally.While adoption of automation is relatively low globally, it represents an oppor- tunity for ports to addressmultiple challenges. However, it can restrict flexibility, is expensive and potentially disruptive to implement. There are also risks that automation will not deliver the benefits that terminals expect. * * * Automatedterminalshave40%-70%lowerlaborrequirements, oneofthemostsignificantexpenses foroperators Labor accounts for more than 50% of the cost structure of a conventional terminal operator. In most developed countries, port labor is unionized. In the US, port labor costs have histori- cally risen annually in excess of inflation and continue to do so based on current wage schedules. Incorporating automation in- 22 Moody’s tracks the port sector regularly to support its assessment of the credit risk associated with container port operators when they access capital markets to finance their investments in equipment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 to container terminal operations can improve labor productivi- ty, commonly measured as man- hours per lift, by more than 50%, depending on the mix of automated and conventional handlingin the operation. Automation replaces labor-intensive processes with capital- intensive ones, changing the variable costs associated with the daily hiring of longshoremen into fixed costs associated with robotic handling equipment. This increases fixed costs and can reduce financial flexibility, particularly because the capital outlay is significant. However, in contrast to annually escalat- ing labor costs, the capital/ equipment costs are fixed and amortized over time, and over volume, which affords better predictability of long-term operating costs and better scalabil- ity (see [report’s] Exhibit 1). Operating cost predictability is al- so partially attributable to lower performance variability in au- tomated operations, with robotic processes less subject to acci- dent, error, fatigue and other variables.23 Moddy’s described various benefits to port automation: con- sistent, reliable productivity; improved asset utilization and the ability to add capacity without degrading productivity; lower emissions with electric vehicles replacing diesel-powered vehi- cles; and, although the process can expect initial challenges due to periodic refinement, the system can be incrementally modi- fied to resolve issues as necessary. On the other hand, efforts to automate can expect political risks associated with opposition to automation due to opposi- tion by organized labor, and state and local governments that regulate and financially port operations. Automation is expen- sive and potentially disruptive to implement. Costs are sub- stantial and there are conflicting studies as to whether the cost of automating is worth the cost. In some cases, it results in reduced productivity.24 Moody’s also explained that container terminal automation, while growing globally, was “still quite low” as of 2018—only 3 percent of 1300 terminals worldwide. In its report of “Exist- ing and planned automated container terminals,” Moody’s listed only five in the United States, including the TraPac and Long Beach Container Terminals on the West Coast.25 (2) Potential Loss of ILWU-Unit Jobs from Automation The 2002 PCLCD, OCR and RFID technologies implement- ed at many West Coast ports, including the Employer’s four largest terminals, have eliminated clerk positions.26 At the Ports of Los Angeles and Long Beach, the following equipment has also been replaced by robots: straddle carrier, rubber tired gantry, front-end loader, reach stacker, rail-mounted gantry, portainer (ship to-shore crane, yard truck (UTR, hustler truck or tractor), and port forklift truck. As a result, several positions 23 R. Exh. 36 at 1–3. 24 R. Exh. 36 at 5–12. 25 R. Exh. 36 at 14–15. 26 DeNike has publicly touted the automation of West Coast contain- er terminals with OCR and RFID equipment as a necessary reduction in costs. (Tr. 583–584, 621, 790––591.) previously performed by ILWU-represented employees have been eliminated: tractor drivers, transtainer operators, side-pick operators, top-pick operators, swingmen, signal jobs, and pin jobs.27 Going forward, the Employer and other PMA members have the right to automate cargo loading and unloading operations. Should the Employer or any other PMA member transition in the future to semi-automate its equipment, 30 percent to 40 percent of the ILWU-unit’s equipment operators would likely be eliminated. In the case of full automation, the displacement of equipment operators would range from 30 to 90 percent.28 Although the Employer has automated the systems and pro- cesses at its West Coast facilities, it has semi-automated equipment in only one instance. At its three Port of Long Beach terminals, the Employer has approximately 30 ship-to- shore cranes, the primary mechanism of marine terminal productivity. In 2015, it installed a semi-automatic crane and assist mechanism for one ship-to-shore crane. That installation, however, did not result in the elimination of crane drivers.29 Notwithstanding the potential threat to equipment operator positions posed by automation, there is no evidence, beyond the four 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 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 an- nual volume of at least 1 million containers (TEUs).30 As the following PMA records show, automation in systems and pro- cesses at West Coast ports, as well as automation at the Ports of Los Angeles and Long Beach resulted in a decrease in ILWU- 27 The loss of ILWU jobs from automation at the Ports of Los Ange- les and Long Beach is undisputed. (Tr. 187, 202, 208–209, 504–505; R. Exh. 6.) 28 O’Grady estimated an average overall reduction in labor costs of 53 percent based on the elimination of the following ILWU unit posi- tions: container handler—100 percent; UTR/tractor driver—97 percent; and clerk/supervisors—80 percent. Positions that would remain in- cluded: supercargo; gearman; foreman; crane operator; signalmen; and swingmen/conemen. (R. Exh. 41 at 18–24; Tr. 444–446.) Based on his assumption that automation will accelerate significantly, O’Grady concluded that over 30 percent of ILWU-unit jobs would be displaced over the next 5 to 10 years. After 10 years, that figure would increase to a level between 50 percent and 70 percent. (R. Exh. 42 at 24–25; Tr. 445.) 29 In a September 2015 Journal of Commerce article, DeNike alluded to the PCLCD’s requirement that two drivers be assigned to each crane for four hours-on, four hours-off arrangement, will continue: “We’re not trying to reduce the number of crane drivers.” (R. Exh. 44.) 30 The article also reported that the Employer’s $400,000 investment in the semiautomated crane had not yet reached the expected level of productivity during its first 4 months in use. Id. at 3. In contrast, the Ports of Los Angeles and Long Beach do not have that problem. Alt- hough he recalled PMA’s insistence that during 2008 bargaining that its members had the right to automate, Bartelson’ s distinction between the Port of Seattle and the Ports of Los Angeles and Long Beach explained the likely reason why the Employer has yet to automate the Port of Seattle: “[Y]ou could add up, you know, Oakland, Seattle, Tacoma, and combine it together, and it would not be what Los Angeles and Long Beach, moves through its (indiscernible) volumes for instance.” (Tr. 507–508.) INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 11 represented active longshore workers and mechanics between 2008 and 2010, and again between 2010 and 2015. By 2020, however, the total number of active longshore workers and clerks increased to a level surpassing the 2010 levels, when the effects of automation kicked in. Year Longshore Clerks Total Increase / Decrease 2005 10,106 1,888 11,994 - 2008 11,582 1,898 13,480 +1,486 2010 11,031 1,686 12,717 -763 2015 10,535 1,638 12,173 -544 2020 11,084 1,646 12,730 +557 Moreover, between 2007 and 2019, the number of ILWU- represented mechanics at West Coast ports increased by 31.82 percent, and the number of mechanic shifts per container box increased by 36 percent, including years when volume de- creased. During a similar period—2007 to 2020—the number of ILWU-represented mechanic shifts worked for the Employer at the Ports of Oakland, Seattle and Tacoma increased by 31.82 percent.31 C. The Disputed Work In the 2008 agreement, Terminal 5 was designated as a “red- circled” facility because it was operated by American President Lines (APL), a PMA Employer that used IAM-represented employers to perform M&R work. However, Terminal 5 lost its “red-circle” status and reverted to “new” status after APL vacated that facility in 2014.32 In 2018, the Employer leased Terminal 5 from the Northwest Seaport Alliance. The Northwest Seaport Alliance consists of the Ports of Seattle and Tacoma. Initially, the lease was short term while the terminal was being modernized. In accordance with the PCLCD, the Employer hired ILWU-represented me- chanics to perform maintenance on a handful of cranes that needed to be certified before they could be used. It also hired additional ILWU mechanics from Los Angeles in January 2019.33 On March 18, 2019, IAM informed the Employer that it would take economic action in response to the recent assign- ment of M&R work at Terminal 5 to non-IAM mechanics. On March 19, 2019, the Employer filed an unfair labor practice charge in Case 19–CD–238056 pursuant to Section 10(k) of the Act alleging that IAM violated Section 8(b)(4)(D) of the Act by threatening to engage in prohibited activity in order to force the Employer to assign the work to employees repre- sented by the IAM instead of employees represented by the ILWU. 31 Jt. Exh. 98–99. 32 J. Exh. 56 at 2; Jt. Exh. 100 at 2. 33 Jt. Exh. 74 at 373–375. D. The Section 10(k) Award A hearing on the competing claims was held on April 24 and 25, and June 6, 2019, before Hearing Officer Daniel Hickey. Based on the rulings of, and record developed by, the Hearing Officer, the Board awarded the disputed work to IAM- represented mechanics. In that decision, dated July 16, 2020, the Board provided the relevant background for the disputed work: During contract negotiations in July 2008, the PMA and ILWU signed a Letter of Understanding (LOU) providing that, for the years 2008–2013, any terminal operating with a non-ILWU work force would be “red-circled.” This meant that PMA members could continue to use non-ILWU em- ployees at the red-circled terminals but had to use ILWU la- bor at all other terminals. Importantly, the LOU also provided that a terminal would lose its red-circle status if it is vacated by the terminal operator. The 2014–2019 ILWU-PMA agreement notes that “ILWU jurisdiction of [M&R] work shall not apply at those specific marine terminals that are listed as being ‘red-circled’ in the [LOU].” Terminal 5 at the Port of Seattle is owned by the Northwest Seaport Alliance and, from 1997 to 2014, was leased and op- erated by PMA-member American President Lines. Because American President Lines used IAM-represented mechanics to perform M&R work, Terminal 5 was red- circled. In 2014, American President Lines ceased its operations at Terminal 5 and, for the next 4 years, Terminal 5 and its cranes remained mostly unused. In 2018, the Northwest Seaport Alliance, in a joint partnership between the Ports of Seattle and Tacoma, developed a mod- ernization plan, which included reopening Terminal 5 and leasing its operation to the Employer.7 In August 2018, the Employer unveiled plans to reopen Terminal 5 for container cargo and informed IAM that, because the terminal had lost its red-circle status, the Employer would use ILWU labor to perform M&R work at Terminal 5. IAM offered to supply mechanics but, in or about September 2018, on the advice of the PMA, the Employer assigned the work to ILWU- represented mechanics, who have performed it ever since. In January 2019, the Employer subcontracted some of the M&R work to Pacific Crane Maintenance, LLP, which used ILWU-represented mechanics from Southern California. By letter dated March 18, 2019, IAM informed the Employer that it would take economic action against the Employer, includ- ing picketing and striking, unless the Employer assigned the disputed work at Terminal 5 to IAM-represented employees. The Board then considered the following factors in determin- ing the assignment of the disputed work at Terminal 5: (1) Board certifications and collective-bargaining agreements This factor was neutral. There was no evidence of a Board certification concerning the employees involved in the dispute. On the other hand, the Employer had current labor agreements DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 for M&R work with both unions. Its agreement with IAM applied to all M&R work at Puget Sound Regional Intermodal, Marine or Container Terminals.” Section 1.731 of the ILWU- PMA agreement provided that “the maintenance and repair work on all new marine terminal facilities that commence oper- ations after July 1, 2008, shall be assigned to the ILWU,” and that “[n]ew marine terminals shall include new facilities, relo- cated facilities, and vacated facilities.” (Emphasis in original.) (2) Employer preference and past practice This factor favored IAM. Although the Employer declined to state a preference during the Section 10(k) hearing, the Board inferred the Employer’s preference from DeNike’s tes- timony that, but for the IILWU-IAM agreement, the Employer “would have used [IAM represented mechanics] we already had working for us [at terminals 18 and 30].” With respect to past practice, the IAM mechanics performed the M&R work for the previous owner, not the Employer. However, the Board placed decisive weight on the Employer’s stated intention to use cranes at Terminal 5 that were previously used by IAM mechanics. (3) Current assignment of the work This factor favored ILWU since the disputed work was cur- rently assigned to its members. However, the Board rejected ILWU’s contention “that this factor on its own should result in the work being awarded to ILWU-represented mechanics.” ILWU had argued that in prior Section 10(k) cases between the parties, “the Board has endorsed the employer’s assignment of the work and the maintenance of the status quo.” The Board distinguished this dispute from those cases based on the fact that those employers, unlike the Employer here, expressed a preference for the workers currently assigned the work. (4) Area and industry practice This factor was neutral, as both IAM- and ILWU-represented mechanics performed M&R work at the Port of Seattle. IAM represented mechanics at Terminals 18, 25, and 30. ILWU represented mechanics at Terminal 46 and, for a brief period, at Terminals 5. While finding that this factor did not weigh in favor of either party, the Board noted that, “[w]ith the July 2019 closing of Terminal 46, a majority of the M&R work at the Port of Seattle would be done by IAM-represented mechan- ics.” However, “at the nearby Port of Tacoma and other Puget Sound facilities, most M&R work is performed by ILWU- represented employees.” (5) Relative skills and training This factor favored IAM. The Board based this finding on several considerations: IAM’s established apprenticeship pro- gram; the ILWU’s failure to establish a union-wide level of skills and training; and IAM mechanics had more experience handling Terminal 5’s cranes. (6) Economy and efficiency of operations This factor slightly favored IAM. The record established “that there were more costs associated with using ILWU- represented mechanics than there are with using IAM- represented mechanics.” This conclusion was based on: the daily hourly cost differentials; payments for ILWU’s hiring hall based on an hourly assessment on labor; the cost of providing tools for ILWU-represented mechanics; the loss of efficiency attributable to the inability of ILWU-represented mechanics to take the tools with them as they work in the Employer’s various terminals; the ability to transfer IAM-represented mechanics from other terminals to Terminal 5 without having to spend time calling for additional mechanics from a hiring hall and interviewing them. (7) Job loss This factor favored ILWU, as the closure of Terminal 46 was projected to result in the layoff of 45 ILWU-represented me- chanics. If they were awarded the disputed work, that job loss would be partially mitigated by the Employer’s hiring of ap- proximately 15 ILWU-represented mechanics at Terminal 5. IAM-represented mechanics, on the other hand, would only experience a loss of hours since they would continue perform- ing M&R work at the Employer’s other terminals in the area. (8) Conclusion Based on the foregoing, the Board concluded that the factors of employer preference, past practice, skills and training, and economy and efficiency of operations favored an award of the disputed work to IAM, while current assignment of work and jobs loss favored an award to ILWU-represented employees. In making this determination, the Board noted that “we are award- ing the work to employees represented by IAM, not to the IAM. This determination is limited to the controversy that gave rise to this proceeding.” Id. at 3–6.34 E. Arbitration On October 5, 2020, the Employer began assigning the dis- puted work at Terminal 5 to two or three IAM-represented mechanics on a daily basis. In response, ILWU pursued a claim against the PMA Employers at a special meeting of the CLRC on September 14, 2020. After ILWU and PMA failed to resolve the grievance, it went to arbitration (the Claim). The Claim was heard by Coast Arbitrator John Kagel (the Coast Arbitrator) on October 13–14, 2020. The Coast Arbitrator framed ILWU’s position as follows: The [ILWU] stated that the [PMA] are in violation of Section I.76 at Terminal 5 in Seattle. Section 1.76 . . . requires the [PMA] to legally defend all work assignments required by Section l of the PCLCD. However, In total disregard for Sec- tion 1.76, [the Employer] initiated legal proceedings before the NLRB in the form of Section 10k work dispute hearing where [the Employer] failed and refused to defend the work assignment of maintenance and repair work to ILWU- represented mechanics at Terminal 5 in Seattle. In fact, [the Employer] used the NLRB Section 10k legal proceeding to undo and evade ILWU maintenance and repair jurisdiction by stating and/or implying preference for the work to be assigned to workers represented by another union which the NLRB en- dorsed in its July 16, 2020 Decision. PMA did not stop or 34 The parties stipulated that the Section 10(k) hearing was “a classic jurisdictional dispute that certainly did not arise out of any conduct on [the Employer’s] part in any way.” (Jt. Exh. 73 at 23.) INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 13 correct the violation. The [ILWU] further stated that Section 1.76 was negotiated in 2008 as a key part of the quid pro quo over automation. At that time, the [PMA] agreed in various new subsections to Section 1, including Section l .76, to assign maintenance and repair work and its functional equivalent to the ILWU Section 1.76 was the parties agreed mechanism to make sure that the Employers stood by these commitments and did not use out- side legal proceedings in particular the NLRBs Section 10k work dispute proceedings to escape or override their Section 1 work assignment commitments to the ILWU. As such Section 1.76 is a material and indispensable part of the parties’ quid pro quo and bargain for the Employers contractual ability to undertake automation on the terms described in the PCLCD. [The Employer’s] violation of Section 1.76 and PMA’s failure to prevent or remedy such violation nullifies the bargain con- cerning automation. ILWU initially requested that the Coast Arbitrator issue the following remedies against the Employer and PMA Employers: One. That the employer [SSA] be held to have violated Section 1.76 of the PCLCD as described, with a clear statement that 1.76 was violated. Two. That their violation of 1.76, as described, nullifies the 2008 bargain and contractual provisions enabling automation. And, Mr. Arbitrator, if you can't find in your determination to go that far, you obviously, as the Arbitrator, have the authority to remedy what you see appropriate with your find- ings. And three, our third motion, that any PMA member compa- ny that should subcontract to SSA Terminal 5 in Seattle the handling of ships, containers, cargo equipment under the member company's control without utilizing ILWU repre- sented mechanics is financially obligated to pay all lost wages and benefits, including benefit fund contributions, related liquidated damages, and attorney's fees available under the plans and ERISA. ILWU did not assert a work preservation basis for the Claim. As explained by the Coast Arbitrator, the absence of a request- ed remedy for the reassignment of the disputed work back to ILWU-represented mechanics was attributable to the Board’s Section 10(k) award: The witnesses in this arbitration case were legal counsel for the ILWU, SSA and PMA. They concurred, as the T-5 NLRB decision stated, that a major factor in the Board’s 10(k) determination of which of the competing un- ions prevail is which union the employer prefers. And, at least at the time of these hearings, that preference, as adopted by the Board, precludes the losing union from making a direct legal appeal of, or attack on, the work as- signment the Board awards. (Tr. 80, 83) The losing union could not seek lost work opportunity claims on pain of an unfair labor practice charge against it from the victorious un- ion or the employer. ([Arbitration] Tr. 135) In addition to the aforementioned remedies, the Coast Arbi- trator granted ILWU’s motion to amend the remedies for time lost work opportunities for all Terminal 5 M&R work not per- formed by ILWU-represented mechanics. On the second day of the arbitration, the Ninth Circuit denied enforcement of the Board’s decision in in International Longshore and Warehouse Union and International Longshore and Warehouse Union Local 4, 367 NLRB No. 64 (2019), which upheld the PCLCD’s terms for M&R work assignments to ILWU-represented elec- tricians at a terminal in Vancouver, Washington. In that case, the court held that past Section 10(k) rulings by the Board did not foreclose further review of work assignment issues. Based on the Ninth Circuit decision, ILWU modified its request for remedies to also include “the traditional contractual remedies from [the Employer], including the assignment of the work to the ILWU workforce consistent with the PCLCD and lost work opportunity claims for any future violations of Section 1 M&R jurisdiction at Terminal 5.” However, ILWU’s request for a remedy nullifying the Employer’s “right to automate Coast- wide until such time as it complies with Section 1.7 (and sub- sections) at Terminal 5,” was denied. During the arbitration, PMA argued that, since the 2008 agreement, it been increasing ILWU’s jurisdiction at West Coast ports in exchange for the right to automate and mecha- nize equipment. In support of that assertion, it referred to evi- dence that the Employer and other PMA members increased mechanic shifts from 0 in 2007 to 25,501 in 2019. PMA fur- ther noted the Employer had worked with ILWU to expand the latter’s jurisdiction pursuant to the 2008 agreement by assign- ing M&R work to ILWU-represented mechanics at Pier 91, “even though historically [it] assigned [M&R] work in the Pu- get Sound to machinists under [the] IAM Contract.”35 In his decision dated, November 30, the Coast Arbitrator de- termined that the Employer violated Section 1.76 and ordered that the Employer “will pay lost work opportunity claims for any future [Terminal 5] M&R work not performed by ILWU- represented [m]echanics.” He considered the Board’s conclu- sions in the Section 10(k) decision, but distinguished the issues there from the one posed by the Claim. As explained in his decision, the Coast Arbitrator based the Employer’s violation of Section 1.76 solely on its position during the Section 10(k) litigation: SSA’s Requirement to State a Preference: According to the record in this case, during the 2008 bargain- ing, a specific issue arose with reference to [the Employer]. At that time, and now, [the Employer] has operations at facili- ties both which are, and are not, red-circled. PMA told the Union that [the Employer] had given it assurances that [the Employer] would “. . . go with the ILWU” in 10(k) proceed- ings as would all PMA employers. “Ed DeNike had given his 35 Jt. Exh. 2 at 164–166; Jt. Exh. 3 at 252, 291–292; Jt. Exh. 34, fn.2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 personal assurance on behalf of [the Employer], which in- cluded designating the ILWU as the employer’s preference in such proceedings.” ([arbitration transcript] Tr. 60–63) With reference to Section 1.76, a knowledgeable PMA representative, in sworn testimony, stated: “. . . It [Section 1.76] was intended so that in a 10(k) proceeding or any court proceeding the member company would abide by the agreement, defend its position to employ the ILWU and, as you said, to prefer the ILWU.” (Un. Ex. 34, p. 439, see also Un. Ex. 35, p. 1997) He was asked if a CLRC decision designating the ILWU be assigned to the work “was intended to af- fect [the Employer’s] decision as to how it should present its employer preference at the 10(k) hearing?” He responded: “Well, first of all, the contract should do that. But the CLRC in referencing 1.76 was certainly expecting that. But, again, also Sec- tion 1 of the contract requires that.” (Un. Ex. 35, p. 1997) Asked if Section 1.76 “…was intended to take away the right of a PMA member to prefer non-ILWU labor in a Section 10(k) hearing, …”, his answer was: “It was intended so that in the event of a 10(k) hearing that the PMA member would not only prefer to utilize the ILWU work force but would defend the decision to do so.” (Un. Ex. 35, pps. 2079- 2080) From the foregoing, Section 1.76 requires an employer to as- sign PCLCD Section 1 M&R non-red-circled work to the ILWU; and, if that assignment is attacked in a 10(k) pro- ceeding, to defend it. That defense is to include a state- ment of employer preference for the ILWU. The wording of Section 1.76 itself supports that view by in- cluding the requirement to “defend.” The ILWU’s work as- signment in this case was attacked by the IAM. SSA had pledged to defend against that attack. That required an active affirmative defense, not a passive attempt to evade one, as occurred here. Neutrality, in this context, where em- ployer preference is crucial, if not necessarily totally de- terminative, is no such defense. By not preferring the ILWU employee assignment, SSA knocked out the significant weight given by the Board decision by that required preference, particularly where two other 10(k) factors were found to favor the ILWU as the decision states. It further hamstrung the Union, which could then not argue that that factor favored the Union in the Union’s statement of its position. It forced the PMA to fall back, in its suggestions to the Union, on an argument only about industry practice in support of the ILWU, where there was no statement of employer prefer- ence. (Er. Exs. 28–30, Tr. 237) And, ultimately, SSA even forfeited its claimed neutrality by that position allowing the Board to draw its inference that SSA favored the IAM, contrary to its obligation under the PCLCD.36 Legal Analysis I. APPLICABLE LAW In order to establish a violation of section 8(b)(4)(ii)(D), "[t]here must, in short, be either an attempt to take a work as- signment away from another group, or to obtain the assignment rather than have it given to the other group." Carpenters Local 1307 (Dearborn Village LLC), 331 NLRB 245, 247 (2000). In relevant part, Section 8(b)(4)(ii) states that it is an unfair labor practice for a labor organization to “threaten coerce, or restrain any person engaged in commerce or an industry affecting commerce,” where the object is: (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in an- other labor organization or in another trade, craft, or class, un- less such employer is failing to conform to an order or certifi- cation of the Board determining the bargaining representative for employees performing such work[.]” The Board’s jurisdictional determination in a Section 10(k) decision, although not res judicata, carries heavy weight in a subsequent unfair labor practice proceeding regarding the dis- puted work. Plasterers’ Local 79, 404 U.S. 116, 126–127 (1971) (“for all practical purposes the Board’s [§ 10(k)] award determines who will prevail in the unfair labor practice pro- ceeding.”); Intl. Longshoremen’s Union Local 6 (Golden Grain), 289 NLRB 1, 2 (1988) (parties may relitigate “factual issues concerning the elements of the 8(b)(4)(D) violation” even if they were raised and decided in the underlying Section 10(k) proceeding). A party may not, however, relitigate “threshold matters that are not necessary to prove an 8(b)(4)(D) violation.” Intl. Longshoremen’s Union Local 6, 289 NLRB at 2, fn.4; Operative Plasterers & Cement Masons Intl. Assn. Local 200, AFL–CIO, 357 NLRB 2212, 2214 (2011) (threshold matters that may not be relitigated in the Section 8(b)(4)(D) proceeding include whether the dispute was properly before the Board); Intl. Longshoremen’s Union, Local 14 (Sierra Pacific Industries), 318 NLRB 462, 464 (1995) (Board rejected chal- lenge to its Section 10(k) jurisdiction and analysis of the tradi- tional factors in the unfair labor practice proceeding). As the Board explained in ILWU (Kinder Morgan), supra at 3: When an unfair labor practice complaint is issued related to a prior 10(k) proceeding, a respondent may relitigate factual is- sues concerning the elements of the 8(b)(4)(ii)(D) violation 36 Jt. Exh. 100 at 11–13. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 15 that were raised in the underlying 10(k) proceeding; that is, a respondent may litigate the issue of whether it has engaged in forbidden conduct with a forbidden objective. See Teamsters Local 216 (Granite Rock Co.), 296 NLRB 250, 250 (1989), enfd. 940 F.2d 667 (9th Cir. 1991). But it is well settled that a party to a Board 10(k) proceeding cannot relitigate the Board’s ultimate work assignment in a subsequent 8(b)(4)(ii)(D) case. Marble Polishers Local 47-T (Grazzini Bros.), 315 NLRB 520, 522 (1994), citing Longshoremen ILA Local 1566 (Holt Cargo), 311 NLRB No. 166, slip op. at 2 (1993) (not reported in Board volumes). From this, “[i]t logi- cally follows that a party cannot relitigate the various factors . . . that the Board considers in making its 10(k) determina- tion.” Id. In cases where a respondent union is permitted to contest the Board’s Section 10(k) findings, it must present evidence to show that the findings were not correct. Marble Polishers Local 47-T (Grazzini Bros.), 315 NLRB at 522 (Board’s finding in Section 10(k) proceeding regarding lack of Board certification of union confirmed in subsequent unfair labor practice proceed- ing where union failed to present evidence showing the Board’s finding was not correct). A respondent may also relitigate factual issues by introduc- ing new or previously unavailable evidence, or show that the Board’s findings in a Section 10(k) decision are incorrect. It may not, however, seek to undermine such an award to another union by enforcing a collective-bargaining agreement through arbitration in order to coerce an employer. See Plasterers Local 200, 357 NLRB 2212, 2214 (union had an illegal objective when it responded to a Board decision awarding the work to employees represented by another union by seeking to obtain the work, or monetary damages in lieu thereof, and then seek- ing to confirm the arbitration award in district court). Intl. Longshoremen’s Local 13 v. NLRB, 884 F.2d 1407, 1413 (D.C. Cir. 1989), enforcing Intl. Longshoremen’s Union Local 13 (Sea-Land), 290 NLRB 616 (1988) (the Section 10(k) award “trumps the collective-bargaining agreement”); Marble Polish- ers Local 47-T (Grazzini Bros.), 315 NLRB at 522 (respondent violated Section 8(b)(4)(d) by seeking to enforce a collective- bargaining agreement through the state employment relations agency after the Board’s Section 10(k) decision awarded the work to another union). As the Board explained in ILWU (Kinder Morgan), supra at 5: It is well settled that a union’s pursuit of a lawsuit or arbitra- tion to obtain work that the Board previously has awarded to employees represented by another union has an illegal objective and violates Section 8(b)(4)(ii)(D). See Sheet Metal Workers, Local 37 (E.P. Donnelly), 357 NLRB 1577, 1578 (2011), and cases cited therein, enfd. 737 F.3d 879 (3d Cir. 2013). See also Machinists Lodge 160 (SSN Marine, Inc.), 360 NLRB 520, 521-22, 315 NLRB at 522–52. II. THE WORK IN DISPUTE ILWU contends that, notwithstanding the Board’s jurisdic- tional award of the disputed work to IAM, it had a lawful ob- jective in grieving the Employer’s breach of Section 1.76 of the PCLCD because the Employer failed to express its preference for ILWU in the Section 10(k) proceeding. With the exception of testimony by O’Grady, an expert in labor market economics regarding automation in the industry, and evidence regarding the presence of ILWU-represented mechanics at West Coast ports, the parties made the same arguments, and submitted es- sentially the same evidence in support thereof, to the Board in the Section 10(k) hearing: (1) the PCLCD Section 1.731’s requirement that M&R work at new terminals be assigned to ILWU mechanics; (2) but for the PCLCD, the inference that the Employer would have used IAM mechanics to use cranes at Terminal 5 that were previously used by IAM mechanics; (3) the PCLCD’s assignment of the work in dispute to ILWU mechanics at all non-red-circled, including new, terminals; (4) the performance of M&R work by IAM and ILWU me- chanics in the Ports of Seattle, Tacoma and other Puget Sound facilities; (5) the relative skills, experience and training of IAM and ILWU mechanics; and (6) the relative daily hourly and other costs, efficiencies and transferability in using either IAM or ILWU mechanics; and the job loss that would result to either IAM- or ILWU- represented mechanics by not being awarded the work in dis- pute. After assessing the aforementioned evidence and arguments, the Board concluded that the factors of employer preference, past practice, skills and training, and economy and efficiency of operations favored an award to IAM-represented employees, while the current assignment of work and jobs loss favored ILWU-represented employees. Following the Section 10(k) award, ILWU succeeded in pur- suing the Claim before the Coast Arbitrator. That is certainly a new development, as is the Coast Arbitrator’s decision that the Employer breached the ILWU-PMA agreement by failing to state a preference during the Section 10(k) hearing. On the other hand, the Coast Arbitrator’s decision essentially con- firmed the Board’s Section 10(k) jurisdictional determination that PCLCD Section 1.76 assigned the work in dispute at “new” port facilities, including Terminal 5, to ILWU-represented me- chanics. Constrained by that contractual provision, the Em- ployer was reluctant to express a preference at the Section 10(k) hearing. During this unfair labor practice hearing, the Employer again failed to state its partiality in awarding the work to either ILWU or IAM. Regardless of ILWU’s primary motive in pursuing arbitra- tion—the Employer’s breach of its duty to defend the work of ILWU-represented mechanics in the Section 10(k) proceed- ing—its contractual rights cannot force an employer to ignore a Section 10(k) award. Otis Elevator, 309 NLRB 273, 274 (union unlawfully sought enforcement of arbitral awards that were DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 inconsistent with the Board’s Section 10(k) decision). The reason for this is because such post-Section 10(k) conduct “di- rectly undermines the § 10(k) award, which, under the congres- sional scheme, is supposed to provide a final resolution to the dispute over which group of employees are entitled to the work at issue.” Roofers Local 30 (Gundle Construction), 307 NLRB 1429, 1430 (1992). Accord Plasterers Local 200, 357 NLRB at 2214; Marble Polishers Local 47-T (Grazzini Bros.), 315 NLRB at 523. III. THE WORK PRESERVATION DEFENSE Notwithstanding ILWU’s effort to circumvent the Board’s jurisdictional determination through arbitration, it proffered new evidence in this proceeding insisting that it sought to pre- serve the work of ILWU-represented mechanics at a “new” terminal. ILWU first asserted this defense before the Coast Arbitrator. The fact that it did not raise the work preservation defense at the Section 10(k) proceeding, however, does not preclude such an argument now. Although the Board does not engage in de novo consideration of the merits, it does consider new evidence and arguments in Section 8(b)(4) proceedings following a Section 10(k) decision. See Marble Polishers Local 47-T (Grazzini Bros.), 315 NLRB at 522 (respondent permitted to proffer new or previously unavailable evidence that a genu- ine issue of material evidence exists). Cf. ILWU (Kinder), supra at 3 (rejecting the same arguments made in the Section 10(k) proceeding). A. The Applicable Standard As explained by the Supreme Court, a labor organization with contractual rights to work that it has “traditionally” per- formed at a jobsite may lawfully undertake actions whose “sole objective” is to protect its members from the diminution of that work. Nat'l Woodwork Mfr. Assn., 386 U.S. 612, 648 (1967) (union's boycott in support of a contractual restriction was primary, and therefore lawful, because it had as the "sole objective the protection of Union members from a diminu- tion of work" that "traditionally had been performed . . . on the jobsite."). More specifically, the union’s actions must, (1) have as its objective the preservation of work traditionally performed by employees represented by the union; and (2) the contracting employer must have the power to give the employees the work in question—the so-called “right of con- trol” test. NLRB v. Longshoremen (ILA I], 447 U.S. 490, 504 (1980). See also NLRB v. International Longshoremen's Ass'n (ILA II), 473 U.S. 61, 81, n.21 (1985) (the loading and un- loading of containers is the “functional equivalent” of the tradi- tional longshore work, i.e., handling cargo going onto or com- ing from a ship). The Board has consistently applied the Supreme Court’s standards regarding the work preservation defense by rejecting union efforts to claim disputed work based on secondary objec- tives. To be claimable, the work in question must either have been actually performed by unit members or be the functional equivalent of, or sufficiently related to, the work they per- formed before it was eliminated by technological changes. See, e.g., Service Employees Local 32B-32J (Nevins Realty Corp.), 313 NLRB 392, 400 (1993) (rejecting a union’s claim over the disputed work solely because it falls within the union’s trade jurisdiction). In that respect, the functional equivalent will be deemed to include employees that have performed the disputed work for the specific employer, not whether such work has been performed by employees in the multiemployer bargaining unit as a whole. See, e.g., Longshoremen ILWU Local 19 (Seattle Tunnel Partners), 361 NLRB 1031, 1035, 1036 (2014); La- borers Local 310 (Donley’s, Inc.), 360 NLRB 903, 907, 908- 909 (2014). Finally, the duration of the work is critical, as performance of the disputed work for a brief, temporary period is insufficient to establish the work as “claimable.” United Food & Commercial Workers, Local 367 (Quality Food Cen- ters, Inc.), 333 NLRB 771, 772 (2001). B. Applicability of Kinder Morgan ILWU relies heavily on the Court of Appeals for the Ninth Circuit’s decision in Kinder Morgan, another case in which ILWU contested its members’ rights to M&R work under the 2008 PCLCD. 978 F.3d 625 (9th Cir. 2020). In a Section 10(k) decision, the Board awarded PMA-member company Kinder Morgan’s electrical M&R work at the Port of Vancou- ver to another union, the International Brotherhood of Electrical Workers (IBEW). IBEW’s members had performed the disput- ed work at that facility for many years. After that decision, ILWU continued to pursue its contractual grievances through arbitration, asserting its entitlement to the M&R work under the 2008 M&R provisions in the Coast Agreement. Automation had not been introduced at Kinder Morgan’s terminal or any- where else in the Port of Vancouver. Kinder Morgan and the IBEW filed unfair labor practice charges and a complaint is- sued alleging that ILWU violated Section 8(b)(4)(ii)(D). After a hearing, Administrative Law Judge William Schmidt dismissed the complaint on the ground that the PCLCD recog- nized, and ILWU’s enforcement against Kinder Morgan demonstrated, a work preservation objective. He found that ILWU’s objective in seeking M&R work from Kinder Morgan was to offset job losses that ILWU and PMA anticipated from West Coast terminal automation and robotics. The Board re- versed, finding the ILA cases inapplicable because the case was allegedly not a “complex” one concerning “technological dis- placement.” The Board also held that because ILWU was seek- ing work that another union had previously performed for Kinder Morgan at the Port of Vancouver, ILWU’s objective was unlawful “work acquisition” and not “work preservation.” After granting review, the Ninth Circuit denied enforcement and vacated the Board’s order.37 Essentially, the court disa- greed with the Board’s application of the ILA I and ILA II deci- sions, and held that ILWU’s work preservation defense was lawfully premised on the application of the PCLCD to the dis- puted electrical M&R work. 978 F.3d at 637–639. The court disagreed with the Board’s “narrow work preservation analy- sis” and interpreted the PCLCD to encompass the work at issue. Id. at 639–642. Kinder Morgan is distinguishable from the instant matter and inapplicable to the facts here. First, ILWU did not raise, and the Board did not address, the work preservation defense in the 37 See Longshoremen ILWU Local 4, 367 NLRB No. 64 (2019). INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 17 Section 10(k) decision awarding the disputed work to IAM. Second, the primary issues in Kinder Morgan were whether the PCLCD encompassed electrical M&R work, and whether or not ILWU had a primary or secondary object by pursuing the work. Here, it is undisputed that the work in dispute was covered by the M&R work provisions of the PCLCD. Moreover, as dis- cussed below, ILWU’s efforts to acquire the disputed work at Terminal 5 was secondary to its prime objectives of acquiring the M&R work at “new” West Coast ports in order to amelio- rate the potential threats to unit jobs from automation. C. ILWU Failed to Establish a Legitimate Work Preservation Objective Other than the temporary assignment of M&R work prior to the issuance of the Board’s Section 10(k) decision, ILWU- represented mechanics never performed M&R work for the Employer at the Port of Seattle. See Longshoremen ILWU Local 19 (Seattle Tunnel Partners), 361 NLRB 1031, 1035, 1036 (2014) (functional equivalent will be deemed to include em- ployees that have performed the disputed work for the specific employer, not whether such work has been performed by em- ployees in the multiemployer bargaining unit as a whole). Alt- hough ILWU pursued M&R work in the 1978 PCLCD for its members, there was no such assignment of M&R work to members of ILWU by the Employer at any of its locations until 2008, and not at the Port of Seattle, except for a brief period of time in 2018. Thus, ILWU cannot meet its burden of establishing that the work in dispute has been work traditionally performed by its members. Contra Machinists District 190 1414 (SSA Termi- nals, LLC), 344 NLRB 1018 (2005), affd. 253 Fed. Appx. 625 9th Cir. 2007) (ILWU had a legitimate work preservation ob- jective where unit employees historically performed reefer work for targeted employer). See also Laborers Local 310, 360 NLRB at 907 (“isolated assignments . . . provide [the union] no basis to raise a valid work preservation claim regarding the disputed work”), quoting Stage Employees IATSE Local 39 (Shepard Exposition Services), 337 NLRB 721, 723 (2002). Even were the functional equivalent be deemed to include the ILWU’s West Coast multiemployer bargaining unit, ILWU’s work preservation defense would still fail. In cases where, as here, the work involves a complex case of technolog- ical displacement, it is necessary to analyze the traditional work patterns that the parties allegedly seek to preserve, and how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. ILA I, 447 U.S. at 505-507. That analysis must consider “all the surround- ing circumstances, including nature of the work both before and after the innovation.” National Woodwork, 386 U.S. at 644. Here, the “innovation” at issue is automated cargo handling equipment, and the intent of the language in the parties’ 2008 PCLCD was to protect “traditional longshore work and work- ers” in the face of the anticipated introduction of this equip- ment. It is undisputed that several West Coast ports have automat- ed, or are in the process of automating, the operation of cargo- loading and unloading equipment (tractors, top picks, reach stackers, automatic stacking cranes, front-end loaders and reach stackers). However, the preponderance of the evidence— provided mostly by ILWU—does not establish that the Em- ployer or other PMA members will automate more terminals over the next five to ten years. Notwithstanding DeNike’s past comments extolling the benefits of port automation and the need to do “more and more of this automation,”38 the record established a major hurdle in such a transition—the capital costs. As O’Grady confirmed, in order to offset the costs of transitioning to automation, ports require a significant increase in container traffic—approximately 1 million containers per year. Indeed, in the past 14 years, only four PMA members, all in the Southern California region, have automated or an- nounced an intention to introduce automated cargo-handling equipment. The Employer is not one of them. Finally, while automation has displaced some traditional longshore work and workers, specifically stevedores, it has not reduced M&R shifts at West Coast ports, much less at the Port of Seattle. Under the circumstantial analysis required in Na- tional Woodwork, M&R work, which does not fall within the PCLCD’s description of the traditional longshore work of load- ing and unloading cargo, is not the functional equivalent of traditional stevedoring work. D. Relationship of the Employer’s Breach of the PCLCD to the Charge Finally, ILWU challenges the validity of the Employer’s charge on the ground that the Coast Arbitrator found that it breached the PCLCD. Aside from any evidence that the Em- ployer’s actions or intended actions pose a “genuine job threat” to the ILWU-represented mechanics, however, its neutral posi- tion during arbitration does not preclude it from relief under Section 8(b)(4)(ii)(D). See, e.g., NLRB v. Plasterers’ Local Union No. 79, 404 U.S. at 130 (Section 8(b)(4)(ii)(D) was en- acted to protect both partisan and neutral employers); Intl. Longshoremen’s Union v. NLRB, 884 F.2d 1407, 1412 n.7 (D.C. Cir.1989) (“that an employer may prefer one group of employees over another . . . does not render the dispute non- jurisdictional”). In conclusion, ILWU violated Section 8(b)(4)(ii)(D) by seek- ing to acquire M&R work at Terminal 5 in the Port of Seattle through arbitration after the Board’s Section 10(k) decision awarded the work to IAM. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. 2. ILWU and IAM are labor organizations within the mean- ing of Section 2(5) of the Act. 3. By continuing to pursue its lost work opportunity claims under the 2008 PCLCD after the Board’s Section 10(k) deci- sion issued in order to force the Employer to assign the mainte- nance and repair work at Terminal 5 in the Port of Seattle to ILWU-represented employees, rather than employees repre- sented by IAM, ILWU has engaged in unfair labor practices in violation of Section 8(b)(4)(ii)(D). 4. The aforementioned unfair labor practices affect com- 38 R. Exh. 39; Tr. 583–584, 621. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that that ILWU has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ILWU shall be ordered to cease efforts to require the Em- ployer to assign the disputed work its members maintenance and repair work at Terminal 5, rather than IAM-represented employees. ILWU shall also be ordered to cease efforts to enforce the Coast Arbitrator’s award, notify the Joint Coast Labor Committee that it has withdrawn its lost work opportuni- ty claims, and asked the Coast Arbitrator to vacate his award. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended39 ORDER The Respondent, International Longshore & Warehouse Un- ion and International Longshore & Warehouse Union, Local 19, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening, coercing, or restraining SSA Terminals, LLC, or any other person engaged in commerce or in an indus- try affecting commerce, where an object of our actions is to force or require SSA Terminals, LLC to assign maintenance and repair work at Terminal 5 in the Port of Seattle to employ- ees who are members of, or are represented by the International Longshore & Warehouse Union and International Longshore & Warehouse Union, Local 19, rather than to employees who are members of, or represented by, International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. (b) Pursuing lost work opportunity claims and seeking to en- force the arbitration award of the Coast Arbitrator in order to obtain maintenance and repair work performed at Terminal 5 in the Port of Seattle by employees represented by the Internation- al Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. 2. Take the following affirmative actions necessary to effec- tuate the policies of the Act. (a) Notify the Joint Coast Labor Committee established by the 2008 PCLCD, in writing, that it has withdrawn its lost work opportunity claims filed on September 14, 2020 against SSA Terminals, LLC, and request, in writing, that the Coast Arbitra- tor vacate his November 30, 2020 award on those claims. (b) Within 14 days after service by the Region, post at their respective offices and meeting halls copies of the attached no- tice marked “Appendix.” Copies of the notice, on forms pro- vided by the Regional Director for Region 19 after being signed by the Respondents’ authorized representative, shall be posted by the Respondents and maintained for 60 consecutive days in conspicuous places including all places where notices to em- 39 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ployees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondents to ensure that the notic- es are not altered, defaced, or covered by any other material. (c) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. March 4, 2022 APPENDIX NOTICE TOEMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT threaten, coerce, or restrain SSA Terminals, LLC, or any other person engaged in commerce or in an indus- try affecting commerce, where an object of our actions is to force or require SSA Terminals, Inc. to assign maintenance and repair work at Terminal 5 in the Port of Seattle to employees who are members of, or are represented by us, rather than to employees who are members of, or represented by, Internation- al Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289. WE WILL NOT pursue lost work opportunity claims and seek to enforce the arbitration award of the Coast Arbitrator in order to obtain maintenance and repair work performed at Terminal 5 in the Port of Seattle by employees represented by the Interna- tional Association of Machinists and Aerospace Workers, Dis- trict Lodge 160, Local Lodge 289. WE WILL notify the Joint Coast Labor Committee established by the 2008 PCLCD, in writing, that we have withdrawn our lost work opportunity claims filed on September 14, 2020 against SSA Terminals, LLC, and WE WILL request, in writing, that the Coast Arbitrator vacate his November 30, 2020 award on those grievances. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION,LOCAL 19 (LABOR ORGANIZATION) The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CD-269624 or by using the QR code below. Alternatively, you can obtain a copy of the decision INTERNATIONAL LONGSHORE AND WAREHOUSE UNION 19 from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.