International Longshore and Warehouse Union v. National Labor Relations Board, No. 19-70297 (9th Cir. 2020)
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This appeal involves a years-long intra-union dispute over the right to perform certain maintenance and repair (M&R) work for Kinder Morgan Terminals (Kinder Morgan) at its Bulk Terminal facility in Vancouver, Washington.
The Ninth Circuit granted the petitions for review, denied the cross-petition for enforcement, vacated the Board's order, and remanded for further proceedings. First, the panel reaffirmed the well-settled rule that Section 10(k) of the National Labor Relations Act decisions are not res judicata in subsequent unfair labor practices (ULP) proceedings. Therefore, the panel held that the Board erred in deeming its 10(k) decision "dispositive" of the Longshoremen's work preservation defense. Second, the panel rejected the Board's construction of the work preservation defense, noting that the Supreme Court has twice disallowed such a narrow focus on past performance of the precise work in dispute as ill-suited to the holistic, circumstantial inquiry that is indispensable where, as here, parties strike agreements aimed at preserving union jobs in the face of technological threats to traditional union work. The panel held that the Board erred by disregarding this binding precedent and instead making past performance of the specific work at issue the beginning and end of its analysis. Third, the panel held that the 2008 collective bargaining agreement (CBA) encompasses the disputed work which both unions claim. In this case, the Board erred by using extrinsic evidence to inject ambiguity into the CBA's unambiguous terms and, by extension, assessing the Longshoremen's work preservation defense based on that erroneous construction.
Court Description: Labor Law. The panel granted petitions for review, denied the National Labor Relations Board’s cross-petition for enforcement, and remanded for further proceedings in an intra-union dispute over the right to perform certain maintenance and repair (“M&R”) work for Kinder Morgan Terminals at its Bulk Terminal facility in Vancouver, Washington. In 2008, Local 4 of the International Longshore and Warehouse Union and the Pacific Maritime Association (“PMA”) negotiated a collective bargaining agreement (CBA) in which PMA agreed to expand Longshoremen’s jurisdiction to include additional work at facilities run by PMA members. Kinder Morgan, a PMA member, had previously subcontracted the electrical M&R work at its Vancouver facility to a company that employed electricians represented by Local 48 of the International Brotherhood of * The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. 4 ILWU V. NLRB Electrical Workers. The Longshoremen filed several grievances to enforce the new CBA when Kinder Morgan continued using Electrical Workers even after the CBA took effect. Kinder Morgan asked the Board to intervene. Agency and arbitral decisions ensued. Following a 2011 hearing under section 10(k) of the National Labor Relations Act (the “NLRA”), the Board awarded the disputed work to the Electrical Workers over the Longshoremen’s defense that they were preserving work secured under the CBA. The Longshoremen and PMA sought review of the Board’s order rejecting the Longshoremen’s work preservation defense, finding the Longshoremen in violation of the NLRA, and ordering them to cease all attempts to obtain the disputed work, to withdraw its grievances, and to request vacatur of their favorable arbitral award. The panel reaffirmed the well-settled rule that 10(k) decisions are not res judicata in subsequent unfair labor practice proceedings. The panel held, therefore, that the Board erred in deeming its 10(k) decision dispositive of the Longshoremen’s work preservation doctrine. The panel rejected the Board’s construction of the work preservation defense. The panel noted that the Supreme Court has disallowed a narrow focus on past performance of the precise work in dispute as ill-suited to a holistic, circumstantial inquiry required here where the parties have agreements aimed at preserving union jobs in the face of technological threats to traditional union work. The panel held that the Board erred by disregarding this binding precedent and instead making past performance of the specific work at issue the beginning and end of its analysis. ILWU V. NLRB 5 The panel held that the 2008 CBA encompassed the disputed work which both unions claimed. The panel further held that the plain language of the CBA unambiguously assigned to the Longshoremen all M&R work, on all present and future stevedore cargo handling—including its technological equipment and electronics—for all PMA members, at all West Coast ports. The panel held that the Board erred by using extrinsic evidence to inject ambiguity into the CBA’s unambiguous terms and, by extension, assessing the Longshoremen’s work preservation defense based on that erroneous construction.
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