Ilwu v. NLRB ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL LONGSHORE AND No. 19-70297
WAREHOUSE UNION;
INTERNATIONAL LONGSHORE AND NLRB Nos.
WAREHOUSE UNION, LOCAL 4, 19-CC-092816
Petitioners, 19-CC-115273
19-CD-092820
v. 19-CD-115274
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 48;
KINDER MORGAN TERMINALS,
Intervenors.
2 ILWU V. NLRB
NATIONAL LABOR RELATIONS No. 19-70604
BOARD,
Petitioner, NLRB Nos.
19-CC-092816
v. 19-CC-115273
19-CD-092820
INTERNATIONAL LONGSHORE AND 19-CD-115274
WAREHOUSE UNION;
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 4,
Respondents.
PACIFIC MARITIME ASSOCIATION, No. 19-71471
Petitioner,
NLRB Nos.
v. 19-CC-092816
19-CC-115273
NATIONAL LABOR RELATIONS 19-CD-092820
BOARD, 19-CD-115274
Respondent.
OPINION
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted September 2, 2020
Seattle, Washington
Filed October 14, 2020
ILWU V. NLRB 3
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Virginia M. Kendall, *
District Judge.
Opinion by Judge Hawkins
SUMMARY **
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Eleanor Morton (argued) and Lindsay R. Nicholas, Leonard
Cardner LLP, San Francisco, California, for
Petitioners/Cross-Respondents International Longshore and
Warehouse Union, and International Longshore and
Warehouse Union, Local 4.
Michael E. Kenneally (argued) and Jonathan C. Fritts,
Morgan Lewis & Bockius LLP, Washington, D.C., for
Petitioner Pacific Maritime Association.
Heather S. Beard (argued), Attorney; Kira Dellinger Vol,
Supervisory Attorney; David Habenstreit, Assistant General
Counsel; Meredith Jason, Acting Deputy Associate General
Counsel; Alice B. Stock, Deputy General Counsel; Peter B.
Robb, General Counsel; National Labor Relations Board,
Washington, D.C.; for Respondent.
Elizabeth Joffe (argued), McKanna Bishop Joffe LLP,
Portland, Oregon, for Intervenor International Brotherhood
of Electrical Workers, Local 48.
6 ILWU V. NLRB
David L. Schenberg and Timothy A. Garnett, Ogletree
Deakins Nash Smoak & Stewart P.C., St. Louis, Missouri,
for Intervenor Morgan Kinder.
Kevin Marrinan and John P. Sheridan, Marrinan & Mazzola
Mardon P.C., New York, New York, for Amicus Curiae
International Longshoremen’s Association, AFL-CIO.
Robert H. Lavitt, Barnard Iglitzin & Lavitt LLP, Seattle,
Washington, for Amici Curiae Maritime Union of Australia,
and International Transport Workers’ Federation.
OPINION
HAWKINS, Circuit Judge:
We address 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. In 2008, Local
4 of the International Longshore and Warehouse Union (the
Longshoremen) 1 and the Pacific Maritime Association
(PMA), an association of West Coast port operators,
negotiated a collective bargaining agreement (CBA) with the
Longshoremen in which they agreed to offset anticipated
future losses of longshore jobs to automation by expanding
the Longshoremen’s jurisdiction to include additional work
at facilities run by PMA members. One such member,
Kinder Morgan, had previously subcontracted the electrical
1
The union’s international organization is also a Petitioner. Since
their differences are immaterial here, and for ease of reference, we refer
to them collectively as “the Longshoremen” and to their members as
“Longshoremen.”
ILWU V. NLRB 7
M&R work at its Vancouver facility to a company that
employed electricians represented by Local 48 of the
International Brotherhood of Electrical Workers (the
Electrical Workers). 2 Relying on CBA language that
covered the work in question, the Longshoremen filed
several grievances to enforce the new CBA when Kinder
Morgan continued using Electrical Workers even after the
agreement took effect. When the Electrical Workers
responded by threatening to picket the Vancouver facility,
Kinder Morgan asked the National Labor Relations Board
(the Board) to intervene.
A cacophony of agency and arbitral decisions ensued.
Following a 2011 hearing under section 10(k) of the
National Labor Relations Act (NLRA), 29 U.S.C. § 160(k),
the Board awarded the disputed work to the Electrical
Workers over the Longshoremen’s defense that they were
preserving work secured under the new CBA. Meanwhile,
the arbitrator assigned to the Longshoremen’s grievances
found as a matter of contract interpretation that the CBA
covered the disputed work. As the Longshoremen took steps
to enforce their arbitral victory, the Electrical Workers filed
unfair labor practices (ULP) charges, and the Board filed a
complaint alleging that the Longshoremen’s continued
pursuit of the disputed work violated section 8(b)(4) of the
NLRA, 29 U.S.C. § 158(b)(4). In 2014, an administrative
law judge (ALJ), after a seven-day hearing, found the
Longshoremen’s actions were aimed at preserving
bargained-for work and dismissed the complaint.
Five years later, the Board disagreed. Reversing the
ALJ, the Board again rejected the Longshoremen’s work
2
In addition to referring to the union organization as “the Electrical
Workers,” we similarly refer to its members as “Electrical Workers.”
8 ILWU V. NLRB
preservation defense, found them in violation of the NLRA,
and ordered them to cease all attempts to obtain the disputed
work, to withdraw its grievances, and to request vacatur of
their favorable arbitral award. The Longshoremen and
PMA 3 now seek review of this order, and, in a counter-
petition, the Board seeks its enforcement. 4
We resolve three issues here. First, we reaffirm the well-
settled rule that 10(k) decisions are not res judicata in
subsequent ULP proceedings. Indeed, our and the Board’s
own case law expressly allow parties in ULP proceedings to
relitigate arguments previously rejected in 10(k) decisions.
We therefore hold that the Board erred in deeming its 10(k)
decision “dispositive” of the Longshoremen’s work
preservation defense. Second, we reject the Board’s
construction of the work preservation defense. 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
3
We previously denied without prejudice the Board’s motion to
dismiss PMA’s petition because it was not a party to the underlying
proceedings. The Board has since conceded the petition’s timeliness and
declined to renew its motion “because PMA makes essentially the same
arguments as ILWU, which undisputably has standing.” We do not
address it further.
4
On July 2, 2019, we consolidated the Longshoremen’s and PMA’s
petitions for review and the Board’s cross-petition for enforcement—all
of which arise from the same Board order. We also granted Kinder
Morgan and the Electrical Workers leave to intervene, and each has filed
a brief in support of the Board’s cross-petition. Finally, we granted leave
to the Maritime Union of Australia and the International
Longshoremen’s Association, AFL-CIO, to participate as amici, and
each has filed an amicus brief in support of the petitions for review.
ILWU V. NLRB 9
union work. We hold 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, we hold that the 2008 CBA encompasses
the disputed work which both unions claim. Subject only to
exceptions not at issue here, the plain language of the
agreement unambiguously assigns to the Longshoremen all
M&R work, on all present and future stevedore cargo
handling equipment—including its technological equipment
and electronics—for all PMA members, at all West Coast
ports. 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.
Accordingly, we grant the petitions for review, deny the
cross-petition for enforcement, vacate the Board’s order, and
remand for further proceedings.
BACKGROUND
The Longshoremen and PMA have a decades-long
collective bargaining relationship. Int’l Longshoremen’s &
Warehousemen’s Union (Cal. Cartage), 208 NLRB 986,
987 (1974). The Longshoremen have represented a
coastwide collective bargaining unit of longshore workers at
West Coast ports since 1938. Shipowners’ Ass’n of the Pac.
Coast, 7 NLRB 1002, 1025 (1938). As a multiemployer
association whose members, including Kinder Morgan,
employ Longshoremen at ports along the West Coast, PMA
is responsible for negotiating and administering CBAs on its
members’ behalf. Kinder Morgan operates marine terminals
at several West Coast ports, including its Vancouver facility,
which it has operated since the 1990s. Int’l Brotherhood of
Elec. Workers, Local 48 (IBEW), 357 NLRB 2217, 2217
(2011).
10 ILWU V. NLRB
Virtually all longshore work at West Coast ports is
covered by a single CBA called the Pacific Coast Longshore
Contract Document (PCLCD). Most relevant for our
purposes is the version negotiated in 2008—specifically, its
terms addressing the anticipated introduction of labor-saving
automation technologies at West Coast ports. The language
in section 1.71 of the agreement remained the same as in
previous iterations, providing that the PCLCD “shall apply
to the maintenance and repair of all stevedore cargo handling
equipment.” The parties then added two new provisions. In
section 1.72, the Longshoremen and PMA stipulated:
It is recognized that the introduction of new
technologies, including fully mechanized and
robotic-operated marine terminals,
necessarily displaces traditional longshore
work and workers, including the operating,
maintenance and repair, and associated
cleaning of stevedore cargo handling
equipment. The parties recognize robotics
and other technologies will replace a certain
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 traditional
ILWU work.
And in section 1.73, they further agreed that
[t]he scope of work shall include . . .
maintenance and repair . . . of all present and
ILWU V. NLRB 11
forthcoming technological equipment related
to the operation of stevedore cargo handling
equipment (which term includes containers
and chassis) and its electronics, that are
controlled or interchanged by PMA
companies, in all West Coast ports.
Simply put, the parties decided that PMA members could
increase their use of automated equipment, and in exchange,
the Longshoremen’s jurisdiction would expand to offset the
corresponding loss of traditional longshore work. 5
This case emanates from conflicting constructions of
these new terms—specifically, whether they encompass the
disputed work at Kinder Morgan’s Vancouver facility.
Before 2008, Kinder Morgan had subcontracted such work
to a subcontractor which employed workers under its own
CBA with the Electrical Workers. See ILWU, 367 NLRB
5For PMA members that already had contracts with other unions,
Section 1.81 of the PCLCD states that
ILWU jurisdiction of maintenance and repair work
shall not apply at those specific marine terminals 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.,
introduction of new technologies), or expanded, while
maintaining the fundamental identity of the pre-
existing facility, shall not result in the displacement of
the recognized workforce and shall not be disturbed,
unless as determined by the terminal owner or tenant.
Since the Board found that the 2008 PCLCD does not encompass the
disputed work, it did not decide whether Section 1.81 excludes electrical
M&R work performed at Kinder Morgan’s Vancouver facility from the
Longshoremen’s jurisdiction. See Int’l Longshore & Warehouse Union
(ILWU), 367 NLRB No. 64 (Jan. 31, 2019).
12 ILWU V. NLRB
No. 64, slip op. at 2. When this arrangement continued
beyond the 2008 PCLCD’s operational date, the
Longshoremen filed several grievances arguing that Kinder
Morgan’s use of Electrical Workers violated sections 1.71
through 1.73 of the agreement. The Longshoremen’s local
president also penned a letter demanding that Kinder
Morgan hire Longshoremen to perform the disputed work.
The Electrical Workers responded by threatening to picket
the Vancouver facility if Kinder Morgan capitulated to the
Longshoremen’s demands. 6 Caught in the middle, Kinder
Morgan then filed charges against the Electrical Workers
with the Board and requested a 10(k) hearing, see 29 U.S.C.
§ 160(k).
On December 31, 2011, the Board issued its 10(k)
determination. After a three-day hearing and briefing from
Kinder Morgan, the Electrical Workers, and the
Longshoremen, the Board awarded the disputed work to the
Electrical Workers. IBEW, 357 NLRB at 2221. Citing the
unions’ competing claims to the same work, the Electrical
Workers’ use of picketing threats against Kinder Morgan,
and the absence of an agreed-upon method to resolve the
dispute, the Board made its threshold finding of a bona fide
jurisdictional dispute. Id. at 2218. It then rejected the
Longshoremen’s defense that they had acted lawfully to
preserve work bargained for under the 2008 PCLCD. The
Board instead noted the disputed work’s past performance
6
The Longshoremen and PMA question the sincerity of the
Electrical Workers’ picketing threats by claiming that Kinder Morgan
and the Electrical Workers concocted a superficially jurisdictional
dispute to invite Board intervention. The Board twice rejected, and the
ALJ did not consider, this argument. See IBEW, 357 NLRB at 2218;
ILWU, 367 NLRB No. 64, slip op. at 5 n.6. Because we vacate the
Board’s order based on antecedent legal errors, we, too, decline to
address it.
ILWU V. NLRB 13
by Electrical Workers, a concomitant lack thereof by the
Longshoremen, and an absence of contractual language
explicitly assigning electrical maintenance work to the
Longshoremen. Id. at 2218–19. It then discounted the
language in sections 1.71 through 1.73 as too “general” to
support the work’s reassignment to the Longshoremen,
credited Kinder Morgan’s preference for Electrical Workers,
dismissed the Longshoremen’s evidence of past
performance of electrical M&R work as too sparse, noted
Electrical Workers’ superior skills and training, and thus
deemed their continued use more economical. Id. at 2219–
20.
The Area Arbitrator assigned to the Longshoremen’s
earlier-filed grievances reached the opposite conclusion. 7
On February 21, 2012, the arbitrator issued an award finding
that the Longshoremen’s jurisdiction under the 2008
PCLCD encompasses the disputed work and referred the
matter to the Coast Labor Relations Committee (CLRC),
which ordered Kinder Morgan to “take the necessary steps
to assign the work in dispute” to Longshoremen. Over the
next several months, Kinder Morgan and the Longshoremen
worked with the CLRC to implement the order, including
preparing job postings for the work in question and
interviewing Longshoremen candidates. While that was
being accomplished, Kinder Morgan continued sending the
work to its subcontractor and its Electrical Workers, to
which the Longshoremen responded by physically
7
The designated Area Arbitrator had originally found that a July 28,
2008 Letter of Understanding (LOU) exempted Kinder Morgan’s
Vancouver facility from the relevant provisions of the PCLCD. On
appeal, however, the Coast Arbitrator concluded that the LOU included
no such exemption and remanded to the Area Arbitrator.
14 ILWU V. NLRB
obstructing Electrical Workers’ access to the Vancouver
facility.
On November 8, 2012, the Electrical Workers went back
to the Board and filed ULP charges against the
Longshoremen. On June 28, 2013, 8 the Board filed a
complaint alleging that the Longshoremen’s actions violated
section 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4). The
Board based its allegations on the Longshoremen’s failure to
withdraw its grievances, its efforts to enforce its favorable
arbitral award, and its attempts to prevent Electrical Workers
from performing electrical M&R work at Kinder Morgan’s
Vancouver facility.
An ALJ dismissed the complaint on August 13, 2013.
Following a seven-day hearing, the ALJ found that
(1) Longshoremen had previously performed electrical
M&R work at “numerous” PMA-affiliated facilities;
(2) contrary to the Board’s 10(k) decision, the 2008 PCLCD
encompasses both present and future electrical M&R work,
including the disputed work here; (3) the work preservation
doctrine recognizes the validity of such agreements; and
(4) Kinder Morgan, as a PMA member, is bound by its
terms.
The Board disagreed. On January 31, 2019, it reversed
the ALJ’s dismissal and found that the Longshoremen’s use
of the grievance process and physical obstruction of jobsites
constituted ULP under the NLRA. The Board began by
stating that its initial 10(k) decision precluded the
Longshoremen from reasserting its work preservation
defense against the ULP charges. It also rejected the ALJ’s
8
After amending its complaint several times, the Board filed the
operative consolidated complaint on October 22, 2013.
ILWU V. NLRB 15
finding of past performance of the disputed work by
Longshoremen, as well as the ALJ’s constructions of the
PCLCD and the work preservation doctrine. The Board then
ordered the Longshoremen to cease and desist from said
activities, to withdraw its grievances against Kinder Morgan,
and to request vacatur of the arbitrator’s decision concluding
that the terms of the 2008 PCLCD encompass electrical
M&R work.
These petitions for review and cross-petition for
enforcement followed. 9
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the petitions and cross-
petition under 29 U.S.C. § 160(e) and (f). We will enforce
the Board’s order if it “correctly applied the law and if its
factual findings are supported by substantial evidence in the
record as a whole.” Plaza Auto Ctr., Inc. v. NLRB, 664 F.3d
286, 291 (9th Cir. 2011) (quotation marks omitted). While
we accord the Board’s interpretations of the NLRA
“considerable deference,” Recon Refractory & Constr., Inc.
v. NLRB, 424 F.3d 980, 987 (9th Cir. 2005) (quotation marks
omitted), its legal interpretations generally must follow
Supreme Court and circuit case law, NLRB v. Ashkenazy
Prop. Mgmt. Corp., 817 F.2d 74, 75 (9th Cir. 1987), and
absent explanation, adhere to its own precedent, NLRB v.
Great W. Produce, Inc., 839 F.2d 555, 557 (9th Cir. 1988).
Substantial evidence supports a factual finding if a
9
The Longshoremen and PMA filed their petitions on February 1
and June 13, 2019, respectively, and the Board filed its cross-petition on
March 28, 2019.
16 ILWU V. NLRB
reasonable juror could have reached the Board’s conclusion.
Plaza Auto, 664 F.3d at 291.
ANALYSIS
Congress enacted the ULP provisions in section 8(b)(4)
of the NLRA, 29 U.S.C. § 158(b)(4), to protect “neutral
employer[s]” caught between competing unions. Nat’l
Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 625–26
(1967). We limit our discussion to one of these provisions. 10
Subsection (D) makes it a ULP for a union to threaten or
coerce any person with the object of “forcing or requiring
any employer to assign particular work to employees in a
particular labor organization . . . rather than to employees in
another labor organization.” 29 U.S.C. § 158(b)(4)(D).
“Section 8(b)(4)(D), however, must be read in light of
[section] 10(k) with which it is interlocked.” NLRB v.
Plasterers’ Local Union No. 79, 404 U.S. 116, 123 (1971).
If the Board has reasonable cause to believe section
8(b)(4)(D) was violated, Int’l Tel. & Tel. Corp. v. Local 134,
Int’l Brotherhood of Elec. Workers (ITT), 419 U.S. 428, 445
n.16 (1975), section 10(k) “empower[s] and direct[s]” the
Board “to hear and determine” the dispute unless the parties
can timely demonstrate that “they have adjusted, or agreed
upon methods for the voluntary adjustment of, the dispute.”
29 U.S.C. § 160(k). This scheme encourages the swift, often
10
Although the underlying complaint alleges that the
Longshoremen’s actions violated Section 8(b)(4)(ii)(B) and (D), the
Board’s analysis focuses almost entirely on subsection (D), save for a
two-sentence paragraph at the end stating that the same actions by the
Longshoremen also violated subsection (B)’s secondary boycott
prohibition. See ILWU, 367 NLRB No. 64, slip op. at 8. Because the
latter finding depends entirely on the Board’s erroneous application of
subsection (D), we do not address subsection (B) separately here.
ILWU V. NLRB 17
informal resolution of disputes by giving the parties a sort of
“advisory opinion” that previews the Board’s probable
assessment of the merits before the long slog of formal ULP
proceedings begins in earnest. ITT, 419 U.S. at 446; see also
id. at 441–47 (describing purpose, function, and limitations
of 10(k) proceedings). It is not, however, a binding, final
disposition. Id. at 444.
I. The Board’s 10(k) Decision Does Not Bar Re-
Litigation of the Longshoremen’s Work Preservation
Defense
We begin with the Board’s determination that its 10(k)
decision precluded the Longshoremen from reasserting their
work preservation defense in the subsequent ULP
proceeding. The Board found its prior decision “dispositive
of the question whether the Longshoremen had a valid work
preservation objective” and deemed the Longshoremen’s
continued invocation of the defense an invalid attempt “to
relitigate the Board’s assignment of the disputed electrical
M&R work to IBEW-represented employees.” Though it
now calls this finding “largely immaterial” given its
purported reconsideration of the 10(k) decision later in the
order, the Board still maintains that it “reasonably relied on
precedent precluding such re-litigation.” Not as we see it.
The Supreme Court has long held that “[t]he findings and
conclusions in a [section] 10(k) proceeding are not res
judicata on the unfair labor practice issue in the later
[section] 8(b)(4)(D) determination.” ITT, 419 U.S. at 446.
If a union does not follow the Board’s 10(k) decision, “the
Board must prove [by a preponderance of the evidence] the
union guilty of a [section] 8(b)(4)(D) violation before a
cease-and-desist order can issue.” Plasterers’ Local, 404
U.S. at 122 n.10. This typically entails revisiting some of
the arguments rejected during a 10(k) proceeding, at which
18 ILWU V. NLRB
time the Board need only have found reasonable cause to
believe section 8(b)(4)(D) was violated before issuing an
award. See id.; ITT, 419 U.S. at 445 n.16. “Indeed,
reconsideration of [section] 10(k) rulings appears implicitly
contemplated by the statutory scheme, given that a [section]
8(b)(4)(D) proceeding involves a full adversarial
adjudication, in contrast with the informal proceedings
required under [section] 10(k).” Pac. Maritime Ass’n v.
NLRB (PMA), 827 F.3d 1203, 1211 (9th Cir. 2016).
Board case law has long observed this anti-preclusion
rule. See Longshoremen ILWU Local 6 (Golden Grain), 289
NLRB 1, 2 (1988) (“[W]e overrule prior Board cases to the
extent they suggest that a respondent in an 8(b)(4)(D)
proceeding is not entitled to relitigate factual issues
concerning the elements of the 8(b)(4)(D) violation that were
raised in an underlying 10(k) proceeding unless it presents
new or previously unavailable evidence.”); accord Plumbers
Local 290 (Streimer Sheet Metal Works), 323 NLRB 1101,
1101 n.3 (1997) (“In light of the Respondent’s election . . .
to relitigate the unfair labor practice issue, we find no need
to review the Board’s decision reached under a different
evidentiary standard in the Sec. 10(k) proceeding.”); Tile,
Marble, Terrazzo Finishers & Shopworkers, Local 47-T
(Grazzini Bros.), 315 NLRB 520, 521 (1994) (“[A]
respondent is entitled to a hearing . . . if the respondent
denies the existence of an element of the 8(b)(4)(D)
violation, either directly or by raising an affirmative
defense.”); Teamsters Local 216 (Granite Rock Co.),
296 NLRB 250, 250 (1989) (“[A] respondent may relitigate
factual issues concerning the elements of the 8(b)(4)(D)
violation that were raised in the underlying 10(k)
proceeding.”). Yet the Board offered no explanation before
it departed from that rule here. See Great W. Produce, 839
F.2d at 557. Nevertheless, that does not end our analysis.
ILWU V. NLRB 19
Even as it has eschewed giving certain findings in 10(k)
decisions res judicata effect, the Board has concurrently
maintained that parties cannot “relitigate threshold matters
that are not necessary to prove an 8(b)(4)(D) violation.”
Golden Grain, 289 NLRB at 2 n.4. Albeit passingly, the
Board seizes upon such language here by suggesting that it
reasonably relied on this rule in barring re-litigation of the
Longshoremen’s work preservation defense in the
subsequent ULP proceedings. We disagree.
The “threshold matters” mentioned in Golden Grain
refer to the initial jurisdictional assessment. Indeed, the
decision’s immediately subsequent reference to “the
threshold issue of whether there had been an agreed method
of settlement,” see id., points directly to the initial “three-
step inquiry” used to determine whether there is a valid
jurisdictional dispute warranting Board intervention under
section 10(k), see Recon Refractory, 424 F.3d at 988. This
threshold inquiry asks whether “(1) a union has used a
proscribed means—such as picketing or threatening to
picket—to enforce its claim to the work in dispute; (2) there
are competing claims to the disputed work between rival
groups of employees; and (3) there is no agreed-upon
method for resolving the dispute voluntarily.” Id. If the
Board answers each of these in the affirmative, it then
proceeds to the heart of the 10(k) inquiry by awarding the
disputed work “based on considerations such as the
employer’s past practice, industry custom, and contract
rights.” Id.This is not merely the most reasonable reading of a
“threshold matters” exception, but the only one that rests
within the bounds set by our previous decisions and those of
the Supreme Court. See ITT, 419 U.S. at 446; PMA,
827 F.3d at 1211. Not so of the Board’s preferred approach,
20 ILWU V. NLRB
which would effectively nullify Golden Grain’s distinction
of some issues as “threshold” by converting the entire 10(k)
process into a threshold inquiry, and by extension, creating
an exception that swallows the anti-preclusion rule. See
Ashkenazy Prop., 817 F.2d at 75.
The Board fell into this very trap in Grazzini Brothers,
upon which the Board now relies in defending its use of a
more expansive exception. There, after acknowledging the
anti-preclusion rule, the Board nevertheless granted
dispositive weight to the findings supporting its earlier 10(k)
award—in that instance, concerning the existence of a CBA
between the respondent and the employer. 315 NLRB at
521–22. Citing its “well settled” rule that a party cannot
relitigate a 10(k) work assignment in a later ULP
proceeding, 11 the Board announced that “[i]t logically
follows that a party cannot relitigate the various factors,
including the existence or nonexistence, of a collective-
bargaining agreement, that the Board considers in making its
10(k) determination.” Id. at 522. Addressing Golden
Grain’s “threshold matters” exception in a footnote, the
Board simply stated that barring re-litigation of the factors
going to the merits of a 10(k) award “is consistent with the
Board’s holding that it will not permit renewed litigation of
threshold or preliminary matters not necessary to prove an
8(b)(4)(D) violation.” Id. at 522 n.7. Not really.
We begin by noting the rather breathtaking scope of such
an exception. The entire 10(k) proceeding consists of two
components: an initial jurisdictional finding and an award
11
Because Board case law explicitly excludes affirmative defenses
from those “threshold matters” excepted under Golden Grain, we need
not address the Board’s potentially narrower rule against relitigating
10(k) work assignments.
ILWU V. NLRB 21
based on considerations like past practice, industry custom,
and CBAs. See Recon Refractory, 424 F.3d at 988. If, as
Grazzini Brothers suggests, Golden Grain’s bar on
relitigating “threshold matters” encompasses both parts, then
the anti-preclusion rule loses all practical meaning. But that
is not the case.
Nothing in Golden Grain supports the more expansive
“threshold matters” exception that the Board recognized in
Grazzini Brothers and now relies upon here. To the
contrary, Golden Grain and its progeny reinforce our stated
view that the exception refers exclusively to the Board’s
initial jurisdictional inquiry. See 289 NLRB at 2 n.4 (using
“agreed upon method of settlement” inquiry as example of a
“threshold matter”); Granite Rock Co., 296 NLRB at 250 n.2
(same); Streimer Sheet Metal Works, 323 NLRB at 1103–04
(“[W]hile I am bound by the Board’s 10(k) findings as to
certain ‘threshold matters,’ I am nevertheless required to
judge the lawfulness of the picketing in the light of the
parties’ ‘relitigation’ during this trial of certain ‘factual
issues concerning the elements of the [alleged] 8(b)(4)(D)
violation,’ including their relitigation of certain matters as
to which the Board made findings in the 10(k) decision, and
on which the General Counsel now relies as evidence that
the picketing had a ‘proscribed,’ work-reassignment
‘object.’” (emphasis added, footnote omitted));
Architectural Metal Workers Local 513 (Custom
Contracting), 292 NLRB 792, 793 (1989) (“The
Respondent’s affirmative defense does not raise such purely
preliminary or threshold matters. This would be the case had
the Respondent asserted that the Employer did not meet the
Board’s jurisdictional standards.”). Thus, even if we were
to accept the Board’s claim that its 10(k) work assignments
are unreviewable, see Grazzini Bros., 315 NLRB at 522, that
presumption necessarily excludes those parts of the 10(k)
22 ILWU V. NLRB
determination that go to the merits of subsequent ULP
charges, including affirmative defenses like work
preservation. See id. at 521 (“[A] respondent is entitled to a
hearing . . . if the respondent denies the existence of an
element of the 8(b)(4)(D) violation, either directly or by
raising an affirmative defense.”).
In sum, the Board’s expansion of the “threshold matters”
exception in Grazzini Brothers and its later reliance on the
same here find no support in the precedents of the Supreme
Court, of this Court, or of the Board itself. And in neither
instance did the Board either distinguish its finding from the
anti-preclusion rule, see Ashkenazy Prop., 817 F.2d at 75, or
explain its departure from the narrower construction
advanced by the Golden Grain line of cases, see Great W.
Produce, 839 F.2d at 557. We therefore hold that the Board
erred in finding its 10(k) determination dispositive of the
Longshoremen’s work preservation defense, and we
overrule Grazzini Brothers to the extent it holds to the
contrary. 12
II. The Board’s Application of the Work Preservation
Doctrine
We turn next to the Board’s analysis of the
Longshoremen’s work preservation defense. Unmoved by
the Board’s preclusion argument, the ALJ proceeded to the
merits and found that the Longshoremen’s negotiation of and
12
The Board also refused to consider the Longshoremen’s collusion
argument, see supra note 5, based on the Board’s erroneous conclusion
that its 10(k) determination precluded the issue’s reconsideration during
the ULP proceedings. It did not, however, offer an alternative analysis
of the argument as it did with the Longshoremen’s work preservation
defense. We therefore decline to address the issue before remanding to
the Board for consideration under the appropriate legal standard.
ILWU V. NLRB 23
attempts to enforce the 2008 PCLCD had aimed “to limit the
more recent outsourcing of unit jobs to nonunit employees
in order to diminish these looming adverse consequences on
unit employees who face the loss of the jobs they have been
performing for years.” When the Board reversed, it followed
its initial preclusion finding with an alternative analysis
concluding that the ALJ had misconstrued the work
preservation doctrine; that the relevant terms of the 2008
PCLCD do not encompass the disputed work; and that only
the electrical M&R work performed at Kinder Morgan’s
Vancouver facility was relevant to the Longshoremen’s
defense. This was also error.
A valid work preservation objective provides a complete
defense against alleged violations of section 8(b)(4)(D), as
well as against jurisdictional disputes under section 10(k).
See Nat’l Woodwork, 386 U.S. at 644–46; Recon Refractory,
424 F.3d at 988–89. “The touchstone is whether the
agreement or its maintenance is addressed to the labor
relations of the contracting employer vis-à-vis his own
employees.” Nat’l Woodwork, 386 U.S. at 645. “The effect
of work preservation agreements on the employment
opportunities of employees not represented by the union, no
matter how severe, is of course irrelevant to the validity of
the agreement so long as the union had no forbidden
secondary purpose to affect the employment relations of the
neutral employer.” NLRB v. Int’l Longshoremen’s Ass’n
(ILA I), 447 U.S. 490, 507 n.22 (1980); accord The N.Y.
Presbyterian Hosp., 354 NLRB 71, 77 (2009) (“[U]nions
and employers are entitled to negotiate contracts that
‘preserve’ unit work by way of no-subcontracting or similar
clauses, even if the enforcement of such agreements may
cause the contracting employer to cease doing business with
someone else.”). In a word, the dispositive measure is
purpose, not effect.
24 ILWU V. NLRB
A. The Board’s Doctrinal Framework
The first friction point concerns the contours of the work
preservation doctrine itself. Central to this dispute are the
parties’ assessments of the Supreme Court’s elaboration of
the doctrine in ILA I and NLRB v. International
Longshoremen’s Association (ILA II), 473 U.S. 61 (1985).
The Longshoremen and PMA predictably prefer the ALJ’s
view, which characterized these cases as a rejection of “the
Board’s highly restrictive view that the work preservation
doctrine is confined only to work traditionally performed by
unit employees.” The Board meanwhile falls back on its
own view that these cases examine only “one aspect of the
work preservation doctrine—identifying the ‘work in
controversy’ in a ‘complex case of technological
displacement’”—and thus offer little assistance here. In fact,
the ILA cases are not unlike this one.
In ILA I, the Court began by reiterating a two-part test
for determining whether a CBA provision constitutes a
lawful work preservation agreement. The first part requires
that the agreement “have as its objective the preservation of
work traditionally performed by employees represented by
the union.” ILA I, 447 U.S. at 504. The second provides that
“the contracting employer must have the power to give the
employees the work in question,” or rather, the “right of
control.” Id. “The rationale of the second test is that if the
contracting employer has no power to assign the work, it is
reasonable to infer that the agreement has a secondary
objective, that is, to influence whoever does have such
power over the work.” Id. at 504–05.
The sticking point in ILA I was the doctrine’s application
in cases where, as here, “employees’ traditional work is
displaced, or threatened with displacement, by technological
innovation.” Id. at 505. Because the union workers there
ILWU V. NLRB 25
had never performed the precise work at issue at the precise
location in question, the Board found that the union’s
objective had been work acquisition rather than work
preservation, and thus, secondary in nature. Id. at 506. The
Court disagreed. Since technology often alters altogether the
way that work gets done, the Court explained that the
doctrine “must also apply to situations where unions attempt
to accommodate change while preserving as much of their
traditional work patterns as possible.” Id. at 506. Otherwise,
only those agreements that “respond to change with
intransigence” would be valid—something Congress had
never intended. Id.The Court instead advanced a more holistic approach to
defining disputed work. That assessment requires “a careful
analysis of the traditional work patterns that the parties are
allegedly seeking to preserve, and of how the agreement
seeks to accomplish that result under the changed
circumstances created by the technological advance.” Id. at
507. The greater the complexity, the broader the industrial
and vocational scope of the analysis. Id. But in all cases,
the focus must be “on the work of the bargaining unit
employees, not on the work of other employees who may be
doing the same or similar work,” and on how the agreement
attempts to preserve jobs impacted by the introduction of
new technologies. Id.Five years later, the Court in ILA II repudiated once more
the Board’s preoccupation with “employees outside the
bargaining unit.” 473 U.S. at 82. First, the Court familiarly
renounced concerns with the “extra-unit effects” of an
otherwise legitimately motivated agreement. Id. at 79.
There was no question that the union’s motive for executing
the agreement was preserving its members’ jobs, and thus,
no reasonable inference of aggrandizement was to be
26 ILWU V. NLRB
gleaned from evidence of the agreement’s effects on others.
Id. Second, the Court rejected the Board’s understanding
that work eliminated by innovation cannot possibly be
preserved. Id. at 80–81. But as the Court observed, job
elimination itself often forms the impetus for such
agreements. Id. Thus, the relevant inquiry must remain
whether
a union’s activity is primary or secondary—
that is, whether the union’s efforts are
directed at its own employer on a topic
affecting employees’ wages, hours, or
working conditions that the employer can
control, or, instead, are directed at affecting
the business relations of neutral employers
and are “tactically calculated” to achieve
union objectives outside the primary
employer-employee relationship.
Id. at 81. Of course, the “preservation/acquisition
dichotomy” might still, in certain cases, help to detect
tactical agreements aimed at acquiring work even absent any
threat of job losses. Id. at 79 n.19. The Board’s error there
was making acquisition a talisman. As happened here.
Two compounding errors beset the Board’s work
preservation analysis. It erred first by deeming the ILA cases
inapplicable here. Neither case suggests its work
preservation framework should be reserved only for
particularly complex cases of technological displacement.
To the contrary, ILA I specifically contemplates its
application to both the “simple case” and “more complex
cases.” 447 U.S. at 507. “Whatever its scope,” the inquiry
remains the same: focused on bargaining unit workers rather
than non-unit workers currently doing the same or similar
ILWU V. NLRB 27
work; unconcerned with the work’s precise location; and
accommodative toward change (or even the threat of
change), including the elimination of traditional work. See
id. at 505, 507–08 & n.22; ILA II, 473 U.S. at 79–82.
The Board subsequently erred by limiting its work
preservation inquiry to whether Longshoremen had
historically performed electrical M&R work at Kinder
Morgan’s Vancouver facility. The ILA cases underscore the
primacy of the work preservation agreement’s purpose, even
if its enforcement comes at a cost to extra-unit workers. For
the ALJ, the terms of the PCLCD left little doubt about the
Longshoremen’s intent—perhaps most notably, the parties’
mutual anticipation of robotics- and other technology-
inflicted displacements of existing longshore work under
section 1.72. If the PCLCD indeed covers the disputed
work, then it at least stands to reason that the Longshoremen
sought the disputed work, not to achieve some unrelated
union objective or to inflict harm on Electrical Workers or
the subcontractor that employed them, but “to limit the more
recent outsourcing of unit jobs to nonunit employees in order
to diminish these looming adverse consequences on unit
employees who face the loss of the jobs they have been
performing for years.” See ILA II, 473 U.S. at 79 n.19 (“An
agreement bargained for with the objective of work
preservation in the face of a genuine job threat . . . is not
‘acquisitive’ . . . even though it may have the incidental
effect of displacing work that otherwise might be done
elsewhere or not be done at all.”). The Board’s order does
not mention this possibility, much less address it.
Instead, the Board appears to have fallen “into the same
analytical trap” about which the ILA cases warn. See ILA II,
473 U.S. at 82. Its ULP order is preoccupied with the precise
location of the disputed work and with those non-unit
28 ILWU V. NLRB
employees who stood to lose work were it to enforce the
Longshoremen’s (and PMA’s) interpretation of the PCLCD.
See ILA I, 447 U.S. at 506–08; ILA II, 473 U.S. at 79. So,
too, of its initial 10(k) decision. See IBEW, 357 NLRB at
2218–19. As a result, neither engages the fundamental
inquiry of work preservation—namely, whether the
Longshoremen negotiated and attempted to enforce the 2008
PCLCD in pursuit of a primary or secondary purpose. See
ILA II, 473 U.S. at 81. The Board instead employs the same
“wooden application” of the preservation/acquisition
dichotomy, wherein the Longshoremen’s purpose is
presumed secondary once it is determined that
Longshoremen have not performed the precise work in
question, irrespective of the parties’ contractually enshrined
aim of preempting automation-induced job losses. See ILA
II, 473 U.S. at 80 n.19; cf. id. at 75–76 (secondary purpose
possible where “union engaged in activity to reach out to
monopolize jobs or acquire new job tasks when their own
jobs are not threatened” (quotation marks omitted)). But that
is not the rule.
The ILA cases make clear that not all bargained-for work
in a legitimate work preservation agreement must be work
that was traditionally performed by that union’s workers.
See id. at 80–81 (“‘Elimination’ of work in the sense that it
is made unnecessary by innovation is not of itself a reason to
condemn work preservation agreements . . . to the contrary,
such elimination provides the very premise for such
agreements.”); ILA I, 447 U.S. at 506 (doctrine applies
“where unions attempt to accommodate change while
preserving as much of their traditional work patterns as
possible” (emphasis added)). To be sure, the acquisition of
previously unperformed work may, in certain
circumstances—for example, where union jobs have not
been threatened, see ILA II, 473 U.S. at 75–76, or where that
ILWU V. NLRB 29
work is markedly different from the union’s traditional
work, see id. at 81—suggest a secondary purpose. The
Board made no such finding here. Rather, it made prior
performance of electrical M&R work at Kinder Morgan’s
Vancouver facility a talisman, and in so doing, it eluded the
“inferential and fact-based” inquiry that the doctrine
requires. See id. at 81.
Simply put, the Board’s narrow work preservation
analysis is incompatible with the Supreme Court’s holistic,
circumstantial inquiry. We therefore hold that the Board
erred in finding the ILA cases inapplicable here and instead
making past performance and extra-unit effects the
beginning and end of its analysis. The success of any work
preservation defense here, however, depends upon one final,
antecedent issue to which we now turn.
B. The 2008 PCLCD Encompasses Electrical M&R
Work
The Longshoremen’s work preservation defense
necessarily assumes that the disputed electrical M&R work
is covered by the agreement it claims to defend. Otherwise,
its grievance actions and attempts to physically prevent
Electrical Workers from performing electrical M&R work
for Kinder Morgan lose their inference of a primary
objective. In its 10(k) decision, the Board concluded that the
2008 PCLCD does not encompass electrical M&R work
because its terms are “very general” and contain “no explicit
mention of electrical work.” IBEW, 357 NLRB at 2219. It
also found that the 2008 changes to the PCLCD anticipating
automation-related displacement “were directed at new
work to be based on the introduction of new technologies.”
Id. The Board then deferred to these findings without
offering any additional analysis in its ULP order. This, too,
was error.
30 ILWU V. NLRB
The Board and the intervenors overstate the deference
owed to the Board’s contract interpretations. “Although the
Board has occasion to interpret collective-bargaining
agreements in the context of unfair labor practice
adjudication, the Board is neither the sole nor the primary
source of authority in such matters.” Litton Fin. Printing
Div. v. NLRB, 501 U.S. 190, 202 (1991) (citation omitted);
accord NLRB v. Dist. Council of Iron Workers, 124 F.3d
1094, 1098 (9th Cir. 1997) (de novo review of collective
bargaining agreements). Courts and arbitrators fill that role.
Litton, 501 U.S. at 202. We therefore owe no deference to
the Board’s construction of CBAs. See Local Joint Exec.
Bd. of Las Vegas v. NLRB, 540 F.3d 1072, 1078 (9th Cir.
2008); accord Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d
364, 373 (D.C. Cir. 2017) (“[W]e owe no deference to the
Board’s interpretation of a disputed collective bargaining
agreement.” (citation omitted)). We instead construe such
agreements “according to ordinary principles of contract
law” unless federal labor policy dictates otherwise. M & G
Polymers USA, LLC v. Tackett, 574 U.S. 427, 435 (2015).
As with all contracts, the intent of the parties is
paramount. Id. And in this case, that inquiry begins and
ends with the plain language of the 2008 PCLCD. See id.(“Where the words of a contract in writing are clear and
unambiguous, its meaning is to be ascertained in accordance
with its plainly expressed intent.” (quotation marks
omitted)).
Section 1.71 of the PCLCD provides, as it long has, that
the agreement “shall apply to the maintenance and repair of
all stevedore cargo handling equipment.” Citing the parties’
expectation of automation-induced displacement of
traditional longshore work, however, the parties in 2008
added two new terms. The first (section 1.72) provides “that
ILWU V. NLRB 31
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
traditional ILWU work.” And the second (section 1.73)
relevantly states that
[t]he scope of work shall include . . .
maintenance and repair . . . of all present and
forthcoming technological equipment related
to the operation of stevedore cargo handling
equipment (which term includes containers
and chassis) and its electronics, that are
controlled or interchanged by PMA
companies, in all West Coast ports.
Neither supports the Board’s proscribed limitations.
First, neither term reinforces the Board’s conclusion that
the “contract language demonstrate[s] that the collective-
bargaining agreement changes were directed at new work to
be based on the introduction of new technologies.” See
IBEW, 357 NLRB at 2219. The Board’s analysis does not
specify what language led to its “new work only”
construction. Meanwhile, the terms’ application to “all
present and forthcoming stevedore cargo handling
equipment” and to “all present and forthcoming
technological equipment related to the operation of
stevedore cargo handling equipment” express a contrary
intention. Such language unambiguously encompasses both
new and preexisting M&R work, and therefore, the parties’
negotiations, post-agreement conduct, and industry customs
bear no relevance to its meaning. See Pierce Cnty. Hotel
Emps. & Rest. Emps. Health Tr. v. Elks Lodge, 827 F.2d
1324, 1327 (9th Cir. 1987) (“Extrinsic evidence is
32 ILWU V. NLRB
inadmissible to contradict a clear contract term.” (citation
omitted)).
Second, the Board was not free to ignore the plain
meaning of the phrase “maintenance and repair of all
stevedore cargo handling equipment” simply because such
language is “very general.” See IBEW, 357 NLRB at 2219.
A contractual term bearing a broad general meaning is no
more inherently ambiguous than a similarly sweeping
statutory provision. See Arizona v. Tohono O’odham
Nation, 818 F.3d 549, 557 (9th Cir. 2016). In either case,
mere generality tends to denote breadth, not ambiguity. See
id. Neither the Board nor the intervenors point to a
contractual provision suggesting an intent to limit the scope
to mechanical M&R work. Nor do they explain how this
more general language is inherently susceptible to
conflicting meanings.
Regardless, the parties’ inclusion of the phrase “and its
electronics” in section 1.73 resolves whatever ambiguity the
phrase “maintenance and repair of all stevedore cargo
handling equipment” alone might have embodied—at least
insofar as it concerns the inclusion of electrical M&R work.
And it directly contradicts the Board’s conclusion that the
PCLCD omits an “explicit mention of electrical work.” See
IBEW, 357 NLRB at 2219. Neither the Board nor the
intervenors suggest how work on the “electronics” of “all
stevedore cargo handling equipment” might reasonably
entail something other than electrical maintenance and repair
work. As we see it, it is unlikely that it does. Thus, the
Board again erred in looking outside the four corners of the
2008 PCLCD to inject ambiguity into this otherwise clear
contract term. See Pierce, 827 F.2d at 1327.
Third, we conclude that the Board’s view that section
1.72’s functional equivalence clause pertains only to the
ILWU V. NLRB 33
work previously encompassed by section 1.71 is untenable.
This construction not only misreads section 1.72 and ignores
section 1.73, but also renders the functional equivalence
clause itself superfluous.
Read in relevant part, the functional equivalence clause
of section 1.72 states “that the jurisdiction of the ILWU . . .
shall constitute the functional equivalent of such traditional
ILWU work.” The Board’s attempt to anchor this language
to section 1.72’s intervening reference to section 1.71
ignores section 1.72’s compound predicate structure. The
correct reading of the functional equivalence clause does not
define the scope of work. Section 1.73 does that. The clause
instead enshrines the parties’ agreement that the scope of
work included within the Longshoremen’s jurisdiction will
be considered the functional equivalent of its traditional
work.
More fundamentally, the Board’s reading of
the functional equivalence clause
impermissibly renders sections 1.72 and 1.73
redundant. See Alday v. Raytheon Co.,
693 F.3d 772, 784 (9th Cir. 2012) (“As in all
contracts, the collective bargaining
agreement’s terms must be construed so as to
render none nugatory and avoid illusory
promises.” (quotation marks omitted)). All
parties agree that section 1.71 did not change
in 2008. However, if, as the Board suggests,
section 1.72’s functional equivalence clause
only reiterates the scope of work covered by
previous versions of the PCLCD, then the
parties’ addition of sections 1.72 and 1.73 in
2008 accomplished nothing. The parties
would have no need for a functional
34 ILWU V. NLRB
equivalence clause if the 2008 PCLCD
merely continued to encompass the same
scope of work covered by previous versions.
And likewise, the parties would have had no
reason to add a term defining the scope of
work if section 1.71 had already done so.
All told, the Board misconstrued the 2008 PCLCD in its
10(k) decision and, by extension, in its ULP order. The
Board erred by consulting extrinsic evidence without first
providing a legitimate basis for finding any of the relevant
terms ambiguous. It then compounded that error by relying
on such evidence to construe sections 1.72 and 1.73 in a
manner that not only ignored their plain language, but also
rendered much of their newly bargained-for provisions
illusory. We hold that, subject only to exceptions not at issue
here, the plain language of the 2008 PCLCD unambiguously
assigns to the Longshoremen all M&R work, on all present
and future stevedore cargo handling equipment—including
its technological equipment and electronics—for all PMA
members, at all West Coast ports.
CONCLUSION
For these reasons, we conclude that the Board erred by
according the findings in its 10(k) determination preclusive
weight, by ignoring Supreme Court precedent in favor of an
impermissibly narrow construction of the work preservation
doctrine, and in construing the 2008 PCLCD as excluding
the disputed work. We accordingly GRANT both petitions
for review, DENY the cross-petition for enforcement,
VACATE the Board’s order, and REMAND for further
proceedings consistent with this opinion.