IAMAW District Lodge No. 160 (SSA Terminals, LLC)

373 NLRB No. 39 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 Association of Machinists and Aerospace Workers, District Lodge No. 160 and SSA Termi- nals, LLC and International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 19 and Pacific Mar- itime Association and MSC Mediterranean Ship- ping Company S.A. Case 19–CD–303801 March 29, 2024 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX This is a jurisdictional dispute proceeding under Section 10(k) of the National Labor Relations Act (the Act). SSA Terminals, LLC (the Employer) filed a charge on Septem- ber 21, 2022,1 alleging that the Respondent, International Association of Machinists and Aerospace Workers, Dis- trict Lodge No. 160 (IAM), violated Section 8(b)(4)(D) of the Act by threatening to engage in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by International Longshore and Warehouse Union, Local 19 (ILWU). A hearing was held on Novem- ber 3–4 and November 29-December 1, before Hearing Officer Ann Marie Skov. Thereafter, the Employer, IAM, ILWU, Intervenor Pacific Maritime Association (PMA), and Party-in-Interest MSC Mediterranean Shipping Com- pany S.A. (MSC) filed posthearing briefs. ILWU in its brief sought to quash the Section 10(k) notice of hearing, and IAM submitted multiple motions to the Board.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 All dates in this decision are in 2022 unless otherwise stated. 2 Three such motions were filed on January 6, 2023, the deadline set by the hearing officer for submitting briefs to the Board. First, IAM re- quested that the Board take administrative notice of pending proceedings in the United States District Court for the District of Oregon that alleg- edly threatens the solvency of ILWU. We deny this request because IAM has failed to show with requisite specificity that taking such notice would assist in reaching a determination on the issues, see Dahl Fish Co., 279 NLRB 1084, 1109 (1986), especially as doing so would require us to speculate about the case’s outcome and its effect on the ILWU. Second, IAM asked the Board to remand the case and direct the reporting service to provide the tape backup to the parties so that the parties could propose changes to the transcript. We deny that motion because the inadvertent and harmless errors in the transcript do not impede our ability to decide the case, nor do they justify unnecessarily delaying the proceedings. Third, IAM requested that the Board take administrative notice of a long list of NLRB decisions involving other unions representing workers in ports, explaining it sought such notice to “undermine the ILWU/PMA position that there is a hegemony and that only the coast wide unit is appropriate.” We find it unnecessary to pass on that request because it raises an issue that is not relevant to deciding this case. On February 8, 2023, IAM submitted a Motion to Take Administra- tive Notice of a news report about the ongoing ILWU-PMA negotiations, to which all three intervenors filed opposing responses. The three The Board affirms the hearing officer’s rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer, a Delaware limited liability company, is engaged in the business of marine terminal management at several ports on the West Coast of the United States, including Seattle, Washington. The parties also stipulated that during the 12-month period ending November 3, the Employer provided services val- ued in excess of $50,000 from Seattle, Washington, di- rectly to customers located outside the State of Washing- ton. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties also stipulated, and we find, that IAM and ILWU are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer operates and manages marine cargo ter- minals and provides stevedoring services at various ports along the Pacific Coast, including terminals 5, 18, and 30, and pier 91 at the Port of Seattle. Terminal 5, owned by the Northwest Seaport Alliance, reopened in 2018 in a joint partnership between the Ports of Seattle and Tacoma, and leased its operation to the Employer. Since then, the Employer has operated and assigned work at Terminal 5. The Employer is a member of the PMA, a multiem- ployer organization of port operators and cargo shipping companies,3 and the Employer has been party to a series of PMA’s Pacific Coast Labor Contract Documents (PCLCD) with ILWU. The most recent PCLCD ran from July 1, 2019-July 1, 2022. PMA and ILWU have been intervenors all argued that the news report, for the purposes for which it was offered, was uncorroborated hearsay. We agree and deny the motion on that basis. See Siren Retail Corp. d/b/a Starbucks, 372 NLRB No. 10, slip op. at 1 fn. 1 (2022) (“The Board does not take judicial notice of hearsay statements absent a showing or basis to conclude that the state- ments properly fall within an exception to the hearsay rule and/or are free from reasonable dispute.”) (internal quotations omitted). On October 4, 2023, IAM filed a letter with the Board seeking to have the Board take administrative notice that ILWU had filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of California. On October 5, 2023, ILWU submitted a letter in response to IAM’s October 4 letter. Subsequently, on December 22, 2023, IAM filed a motion, opposed by ILWU, requesting that the Board take administrative notice of certain filings in the bankruptcy proceeding. As IAM has not demonstrated with requisite specificity that taking notice of these matters would assist in reaching a determination of the dispute, we decline the requests. See Dahl Fish, above, 279 NLRB at 1109. Even assuming the Board were to take administrative notice of these bankruptcy matters, we would not find the information relevant to determining which group of employees should perform the disputed work. See Teamsters Local 174 (Airborne Express), 340 NLRB 137, 141 fn. 13 (2003). 3 Such shipping companies include the Party-in-Interest MSC. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 negotiating to reach a successor PCLCD and in the mean- time have been complying with and operating under most of the 2019–2022 agreement’s terms. ILWU members primarily perform stevedoring work for the Employer, but also perform maintenance and repair work at a number of the Employer’s terminals on the Pacific Coast. The Em- ployer is also party to a collective-bargaining agreement with IAM covering employees performing maintenance and repair work at a number of its terminals on the Pacific Coast, including Terminal 5 and several other terminals in the Port of Seattle. The cold ironing work in dispute is the physical plug- ging and unplugging of a ship to shore power so that the ship’s diesel engines do not have to run continuously to provide power to the vessel.4 Cold ironing is considered to be more environmentally friendly because when a ship’s diesel engines are not the power source, that re- duces emissions, noise, and vibrations relative to relying on shoreside electrical power to operate necessary func- tions (e.g., maintaining refrigeration for some cargo). Cold ironing had not yet begun at Terminal 5 at the time of the hearing due to issues with the shoreside electrical system; however, cold ironing was expected to begin there shortly. There were plans to cold iron two ships that called at Terminal 5 in fall 2022 but, due to various factors, the cold ironing did not occur. B. Work in Dispute The parties stipulated that the disputed work is the per- formance of cold ironing work at Terminal 5 at the Port of Seattle in Seattle, Washington. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that IAM violated Section 8(b)(4)(D), and there- fore that the Board is required to make an award of the disputed work under Section 10(k) of the Act. The Em- ployer determined that it should assign new cold ironing work at Terminal 5 to ILWU because it is specified in the PCLCD. With regard to the factors the Board usually ap- plies in 10(k) cases, the Employer, PMA, and MSC argue that the disputed work should be assigned to ILWU- represented employees. The Respondent Union, IAM, contends that the Em- ployer is required to assign the disputed cold ironing work to employees it represents by the Board’s decision in Ma- chinists Lodge No. 160 (SSA Terminals, LLC), 369 NLRB No. 126 (2020). In that decision, the Board awarded maintenance and repair (M&R) work at Terminal 5 to IAM. IAM also contends that if the Board rejects that 4 The process is called “cold ironing” because the metallic engines become relatively “cold” after they are turned off. 5 On April 13, 2023, and again on July 10, 2023, IAM submitted a citation of additional authority, Longshoremen ILWU, 372 NLRB No. 66 (2023). The Board in that decision found that ILWU violated Sec. 8(b)(4)(ii)(D) by seeking to enforce an arbitration decision contrary to argument and applies the usual factors for 10(k) decisions, it must award the work to IAM-represented employees. ILWU contends that the hearing should be quashed be- cause the assignment of cold ironing work is a work- preservation dispute, the Employer and IAM colluded to create this dispute and—to the extent the case turns on in- terpreting the Board’s 2020 decision awarding M&R work to IAM—an unfair labor practice charge adjudication is the exclusive means of enforcing a prior 10(k) decision. If the Board decides against quashing the hearing, ILWU ar- gues that, based on the usual 10(k) factors, the Board must award the disputed work to ILWU-represented employ- ees.5 D. Applicability of the Statute The Board may proceed with a determination of a dis- pute under Section 10(k) of the Act only if there is reason- able cause to believe that Section 8(b)(4)(D) has been vi- olated. This standard requires finding that there is reason- able cause to believe that there are competing claims to the disputed work, and that a party has used proscribed means to enforce its claim to the work in dispute. Addi- tionally, there must be a finding that the parties have not agreed on a method for the voluntary adjustment of the dispute. See, e.g., Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137, 1139 (2005). We find that these requirements have been met. 1. Competing claims for work The parties stipulated, and we find, that ILWU and IAM both claim the disputed work. Additionally, ILWU de- mands that the Board quash the notice of hearing on the ground that this is a work-preservation dispute. Histori- cally, the Board has not quashed 10(k) proceedings on that ground unless the dispute is “fundamentally over the preservation, for one group of employees, of work they have historically performed [so that] it is not a jurisdic- tional dispute.” Machinists District 190 Local 1414 (SSA Terminal, LLC), 344 NLRB 1018, 1020 (2005), affd. 253 Fed.Appx. 625 (9th Cir. 2007) (unpublished decision). It is undisputed in this case that neither union has historically performed the cold ironing work at Terminal 5. Neither is the dispute of the Employer’s own making. See, e.g., Teamsters Local 107 (Safeway Stores), 134 NLRB 1320, 1322–1323 (1961). The Employer in this case did not cre- ate a work-preservation dispute with ILWU; the two un- ions created a dispute by each claiming the cold ironing work. That is a classic jurisdictional dispute suitable for a 10(k) proceeding. Accordingly, we find that there are competing claims for the work in dispute. the Board’s 2020 award of maintenance and repair work to workers rep- resented by IAM. Echoing arguments in its initial brief, IAM contends that the Board’s 2023 decision dictates the result in this case. ILWU filed a response opposing IAM’s April 13 contentions and reasserting its own contentions that the hearing should be quashed or, alternatively, that the disputed work should be awarded to ILWU-represented employees. MACHINISTS LODGE NO. 160 (SSA TERMINALS, LLC) 2. Use of proscribed means We find reasonable cause to believe that IAM used means proscribed by Section 8(b)(4)(D) to enforce its claim to the work in dispute. By letters dated on or about September 22 and 27, IAM notified the Employer that it would take all actions necessary, including picketing and striking, to obtain assignment of the disputed work. Ab- sent affirmative evidence that the threat was a sham or the product of collusion, this establishes reasonable cause to believe that the statute has been violated. Teamsters Local 631 (Freeman Expositions, Inc.), 372 NLRB No. 57, slip op. at 3 (2023). ILWU claims collusion between the Em- ployer and IAM but did not prove it through the required “affirmative evidence,” instead relying on such “passive” evidence as the Employer’s failure to enforce a no-strike clause through a grievance or lawsuit and IAM’s failure (to date) to take economic action against the Employer. Such evidence falls short of the evidence the Board re- quires to prove collusion. See Laborers Local 210 (Su- rianello General Concrete Contractor), 351 NLRB 210, 211 (2007). 3. No voluntary method for adjustment of dispute The parties stipulated, and we find, that there is no agreed-upon method for voluntary adjustment of the dis- puted work that would bind all parties. Based on the foregoing, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary adjustment of the dispute. We accordingly find that the dispute is properly before the Board for determination and therefore deny ILWU’s demand to quash the notice of hearing. E. Merits of the Dispute Section 10(k) requires the Board to make an affirmative award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Columbia Broadcasting), 364 U.S. 573, 577 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). The following factors are relevant in making the deter- mination of this dispute. 6 On July 10, 2023, IAM submitted a citation of additional authority, Carpenters (Performance Contracting, Inc.), 372 NLRB No. 84 (2023), claiming that decision supports awarding the work to IAM due to ILWU’s agreement having expired. On July 17, 2023, the ILWU and PMA submitted responses, in part distinguishing Carpenters because the assigning employer had no agreement or relationship with the other dis- putant, the SMART union, due to the employer’s having sold its branch with SMART-represented employees. By contrast, and as discussed 1. Board certifications and collective- bargaining agreements The parties stipulated that the Employer is not failing to conform to a Board certification applicable to the work in dispute. Therefore, the certification factor is not relevant to our determination. Since 2008, ILWU-PMA agreements, to which the Em- ployer is bound, have expressly assigned cold ironing work to ILWU. Because the most recent of ILWU’s agreements has expired, IAM invokes Board 10(k) deci- sions giving no weight to expired union agreements when the other union in the dispute has a current agreement that could cover the work. See Operating Engineers Local 478 (Deluca/Lombardo), 314 NLRB 589, 591 (1994); Carpen- ters Northeast Ohio Council Local 1929 (Luedtke Engi- neering), 307 NLRB 1323, 1325 (1992); Stage Employees IATSE Local 41 (Greyhound Exhibitgroup), 270 NLRB 369, 370 (1984); Longshoremen ILWU Local 54 (Hugo Neu & Sons), 248 NLRB 775, 777 (1980). However, the Board considers an expired agreement relevant to 10(k) determinations when the employer con- tinues to maintain the terms of that agreement while it and the union negotiate a new agreement. For example, in Electrical Workers IBEW Local 26 (Washington Post), 268 NLRB 902, 905 (1984), the Board rejected the con- tention than an expired agreement is entitled to no weight because “the parties continued to honor it while attempt- ing to negotiate a new agreement.” In that decision, the Board further found that the agreement factor favored the union with the expired agreement. Id. Indeed, the Board has consistently accorded weight to an expired agreement when—unlike in the decisions cited by IAM—the em- ployer maintains that agreement’s terms. See, e.g., Long- shoremen ILWU, Alaska Longshore Division and ILWU, Unit 22 (American President Lines, LTD), 369 NLRB No. 63, slip op. at 1 fn. 3, 4 (2020) (when the employer and the union “are honoring and operating under the collective- bargaining agreement, even though it has expired,” that agreement is given as much weight as another union’s cur- rent agreement); see also Operating Engineers Local 150 (Jack Gray Transport, Inc. d/b/a Lakes Rivers Transfer), 364 NLRB 1824, 1825–1826 (2016) (according equal weight to a collective-bargaining agreement that expired after the dispute arose and a current collective-bargaining agreement).6 The record shows that the Employer is continuing to maintain the terms of the 2019–2022 PCLCD while nego- tiations for a successor agreement are ongoing. Therefore, below, in the instant case, the assigning employer continues to honor its expired agreement with ILWU while a new ILWU agreement is being negotiated. We agree that the Board’s analysis of the agreement factor in Carpenters does not militate in favor of assigning the work here to the IAM. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 we deem that contract’s provisions relevant to the agree- ment factor, including section 1.75, which specifically mentions covered employees being assigned cold ironing work: “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 em- ployees.” IAM’s current agreement does not mention cold ironing, but IAM claims that language giving it jurisdic- tion over “maintenance and repair” (M&R) work—includ- ing references to “facilities and operations,” “cranes,” and “future work created by advancements in technology or changes in existing technology necessary to perform all M&R work”—covers cold ironing work. Similar lan- guage in collective-bargaining agreements between the Employer and other IAMs entities in California has been interpreted as permitting the employees covered by those agreements to perform cold ironing work at other ports. However, in 10(k) decisions, the Board applies the prin- ciple that “[i]n interpreting collective-bargaining agree- ments, the specific is favored over the general.” Electrical Workers Local 47, 368 NLRB No. 11, slip op. at 7 (2019) (quoting Steelworkers Local 392 (BP Minerals), 293 NLRB 913, 914–915 (1989)); see also Laborers Local 265 (Henkels & McCoy, Inc.), 360 NLRB 819, 824 (2014) (quoting Laborers Local 1184 (Golden State Boring & Pipejacking), 337 NLRB 157, 159 (2001)). Under that principle, PCLCD’s express reference to “cold ironing work” obviously applies more specifically to such work than the general M&R provisions on which IAM relies. Based on the foregoing, we find that the collective-bar- gaining agreement factor favors awarding the disputed work to employees represented by ILWU. 2. Employer preference The Board has usually “placed great weight on the fac- tor of employer preference in making work assignment awards.” Machinists (Hudson General Hospital), 326 NLRB 62, 67 (1998). The Employer’s chief operating of- ficer, Edward DeNike, testified that he prefers the dis- puted work be assigned to employees represented by ILWU. The Employer expressed the same preference in its posthearing brief. In September, the Employer even assigned the disputed work to ILWU-represented employ- ees, though at the time of the hearing no employees have yet performed cold ironing work at Terminal 5. The Board usually does not examine the reasons for the employer’s preference unless there is evidence that the employer was coerced. Laborers Local 829 (Mississippi Lime Co.), 335 NLRB 1358, 1360 fn. 5 (2001); see also New England Regional Council of Carpenters Local 33 7 IAM acknowledges that only ILWU-represented employees have performed cold ironing work in the Seattle/Puget Sound area, but it at- tempts to distinguish those instances at pier 91 in Seattle and at the TOTE facility in Tacoma because the ships docking at those facilities are not container ships and therefore utilize a different, less extensive cold iron- ing process than that which will be used on the container ships docking (New England Finish Systems), 366 NLRB No. 24, slip op. at 7 (2018). The IAM claims that the Employer’s preference in this case was coerced based on a series of communications among ILWU, PMA, and the Employer from August 22 to early September. In those communications, PMA told the Employer to issue a written pledge stating that in any future 10(k) cases it would express a preference for ILWU to perform any PCLCD section 1 work (which would in- clude cold ironing) in dispute. DeNike signed such a pledge on behalf of the Employer. We reject IAM’s coercion argument, in part because DeNike testified that it was not because of this pledge, but instead the specific language of the PCLCD agreement it- self, which influenced his preference that ILWU be as- signed the disputed work. In addition, the Board has held in a decision regarding the same parties that “even if the Employer’s preference had been influenced by its obliga- tions as a member of the PMA, that would not establish coercion or that its preference was somehow illegitimate.” Machinists Lodge 160 (SSA Marine, Inc.), 355 NLRB 23, 26 (2010), incorporated by reference, 357 NLRB 126 (2011). Thus, we find that this factor favors awarding the dis- puted work to employees represented by ILWU. 3. Industry and area practice The record shows that the relevant IAM agreement co- vers only the Seattle-Puget Sound area and that any ILWU employees who would perform the disputed work would be from that area. Accordingly, we find that Seattle-Puget Sound is the relevant area for determining industry and area practice. See, e.g., Painters & Allied Trades District Council 36 (Freemen Exposition, Inc.), 370 NLRB No. 6, slip op. at 4 (2020) (analyzing practice of employers in the San Francisco area); Machinists Local 724 (Holt Cargo), 307 NLRB 1394, 1397 (1992) (analyzing employer area practice at the Port of Philadelphia). ILWU accurately contends that only employees it rep- resents have and are performing cold ironing work in the Seattle/Puget Sound area. ILWU-represented employees have performed cold ironing work there, under agree- ments binding a related entity to the Employer, SSA Ma- rine, since 2009. In contrast, IAM-represented employees have never performed cold ironing work in the Seattle/Pu- get Sound area. As only ILWU-represented employees have performed cold ironing work in the Seattle/Puget Sound area, we find that this factor favors awarding the work in dispute to em- ployees represented by ILWU.7 at Terminal 5. Therefore, IAM requests that the Board consider the prac- tice at container ports in California where crane mechanics perform cold ironing work. However, ILWU performs cold ironing work throughout the Pacific Coast, but it is the only of the two unions to perform it in the Seattle/Puget Sound, the specific area of the dispute. MACHINISTS LODGE NO. 160 (SSA TERMINALS, LLC) 4. Relative skills The Employer’s chief operating officer, DeNike, testi- fied that the Employer “employs mechanics from both ILWU and IAM who possess these same skillsets and ex- perience levels.” The Employer repeated in its brief that it judged the members of both unions to have “compara- ble” skillsets. As noted earlier, ILWU-represented employees have performed cold ironing work in the Seattle/Puget Sound area, while IAM-represented employees have not. How- ever, one of the Employer’s crane managers trained IAM- represented employees in cold ironing and its risks. ILWU argues that the employees it represents received a “full day” of “arc-flash” training rather than the alleged “half day” of cold ironing training that IAM-represented employees received. We find that neither the extra “half- day” of a specific type of electronic work training, nor some of ILWU-represented employees’ experience with performing a different type of cold ironing, is sufficient to rebut the judgment of the Employer and its chief operating officer that the employees represented by each union have comparable skills regarding the work in dispute. Thus, we find that this factor does not favor awarding the work in dispute to employees represented by either un- ion. 5. Economy and efficiency of operations The Employer made no argument about this factor at the hearing or in its brief. Intervenor PMA states in its posthearing brief that “[a]ny differences in economy and efficiency between the two unions are negligible.” Party- in-interest MSC argues in its posthearing brief that assign- ing cold ironing to ILWU-represented employees would be more “efficient” because they are “more familiar” with MSC’s vessels and equipment, but also states that, “[i]t is not clear from the record which [union] would cost less for any given vessel calling T5.” Each union contends that this factor favors assigning the work to employees it represents, with each emphasizing different facts, many of which are in dispute and that would therefore require us to make credibility determina- tions that, under our precedents, we consistently have re- fused to make in 10(k) cases. See, e.g., Longshoremen ILWU Local 12 (Southport Lumber Co.), 367 NLRB No. 16, slip op. at 4 fn. 17 (2018). For example, IAM argues that it would be more expen- sive to use the ILWU work force because whenever those employees perform cold ironing work, each would have to be paid for an entire shift. However, the Employer’s chief operating officer, DeNike testified that the Employer would have to pay each ILWU-represented employee for only 2 hours of cold ironing work. IAM also argues it would be less costly to assign cold ironing work to employees it represents because IAM me- chanics are already onsite working for the Employer, so the Employer would bear no additional cost when assigning them to perform cold ironing. But that argument overlooks that cold ironing would occur only when a ship is docked at Terminal 5, making it likely that ILWU- represented employees would also be onsite and therefore also already be being paid by the Employer when called on to perform cold ironing. In addition, IAM’s argument fails to take into account the opportunity cost of whatever IAM mechanics could be doing when not performing cold ironing work. ILWU argues that having employees it represents per- form cold ironing is more efficient because DeNike testi- fied that the Employer’s plan was to have ILWU- represented employees “perform a variety of other work when not performing cold ironing.” However, the same is and would continue to be true of the Employer’s IAM- represented employees as well. ILWU additionally argues IAM mechanics would often have to come from some other location within the Port of Seattle to perform cold ironing at Terminal 5, which would be inefficient. How- ever, ILWU-represented employees would also have to come from somewhere when notice came that a ship was on its way to Terminal 5 and would need cold ironing, and similarly when a ship was about to depart. In sum, based on the record, it is not now possible for the Board to determine which union’s represented em- ployees would perform the cold ironing work more eco- nomically and efficiently. Thus, we find that this factor does not favor awarding the work in dispute to employees represented by either union. 6. Job loss Although not always a factor, the Board has considered job loss when making an award of the work in dispute. See, e.g., Machinists Lodge No. 160 (SSA Terminals, LLC), 369 NLRB No. 126, slip op. at 6 (citing Iron Work- ers Local 40 (Unique Rigging), 317 NLRB 231, 233 (1995)). In this case, IAM admits that there is no risk of job loss for employees it represents. ILWU presents evi- dence of jobs employees it represents lost in 2019 and 2020, but no proof that any employees it represents would lose a job if ILWU was not awarded the cold ironing work. Thus, we find that this factor does not favor awarding the work in dispute to employees represented by either un- ion. 7. Prior Board cases IAM contends that the assignment of disputed cold iron- ing work to employees it represents is required by Machin- ists Lodge No. 160 (SSA Terminals, LLC), above, a 2020 Board decision involving the same unions and the Em- ployer, at the same location, as this case. In that decision, the Board awarded to IAM-represented employees the “maintenance and repair work on SSA Terminal’s equip- ment at Terminal 5 [in Seattle].” Id., slip op. at 6. IAM further argues that the Board’s 2023 reaffirmation of that 2020 decision in International Longshore and Warehouse Union, above, which held that ILWU violated Section DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 8(b)(4)(ii)(D) by seeking to enforce an arbitration decision contrary to the 2020 ruling, also requires awarding cold ironing work to IAM-represented workers. However, in neither of those prior decisions did the Board mention cold ironing work, which in 2020 (and at the time of the hear- ing) had not yet been performed at Terminal 5. Therefore, in those prior decisions the Board was not asked to and did not consider whether the factors on which we based the award in the 2020 decision—“employer preference, past practice, skills and training, and economy and efficiency of operations”—would similarly apply to cold ironing work. The cold ironing work the Board awards in this de- cision is distinct from the maintenance and repair work at issue in the earlier decisions, and requires a different legal and factual analysis, which is set forth above.8 Thus, we find that this factor does not favor awarding the work in dispute to employees represented by either un- ion. Conclusion After considering all the relevant factors, we conclude that employees represented by ILWU are entitled to per- form the work in dispute. We reach this conclusion rely- ing on the factors of collective-bargaining agreements, employer preference, and industry and area practice. In making this determination, we award the work to em- ployees represented by ILWU, not to that labor organiza- tion or to its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of SSA Terminals, LLC, represented by International Longshore and Warehouse Union, Local 19, are entitled to perform cold ironing work at Terminal 5 at the Port of Seattle in Seattle, Washington. 2. Respondent International Machinists and Aerospace Workers, District Lodge No. 160, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force SSA Terminals, LLC to assign the disputed work to employees represented by it. 3. Within 14 days from this date, International Machin- ists and Aerospace Workers, District Lodge No. 160, shall notify the Regional Director for Region 19 in writing whether it will refrain from forcing SSA Terminals, LLC, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determi- nation. Dated, Washington, D.C. March 29, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 8 Having rejected IAM’s contention that the Board’s prior 2020 or 2023 decisions dictate the result in this case, we find it unnecessary to pass on ILWU’s argument that a new 10(k) proceeding is inappropriate for disputing a work assignment or award based on a prior 10(k) decision.