US – The protracted, and ever more acrimonious, disputes at the Port of Portland took another turn recently when an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a preliminary decision and recommended order on May 30, 2014 that for the period of September 2012 to June 2013 longshore workers employed at Terminal 6 engaged in unfair labour practices by driving trucks slowly, refusing to hoist cranes in bypass mode, and refusing to move more than one 20-foot shipping container of freight at a time on older trailers in an effort to force management company International Container Terminal Services Inc (ICTSI) to abandon the port.
The latest episode comes after rulings on who was contracted to work on reefer boxes as they passed through the supply chain. A previous judge took the view that the electricians, employed by the port, had responsibility for plugging, unplugging, and monitoring refrigerated containers not the longshoremen who work for Philippine group ICTSI. In the judge’s opinion this was traditionally the status quo whereas the unions believed that the International Longshore and Warehouse Union’s (ILWU) 2008 coastwise labour agreement with the Pacific Maritime Association (PMA) meant responsibility for these works had transferred to its members. For thirty six years the work was the responsibility of the port but the union maintains that when the terminal management transferred to ICTSI so did responsibility for the equipment concerned and the PMA deemed it to be an ILWU staff job.
This July 2013 judgement is still subject to appeal but the latest ruling referred to it when saying the ILWU had breached the ruling by allowing workers to engage in obstructive practices. The containers concerned are owned by the shipping lines which bear their names and the contract for handling them is with the PMA, not the Port of Portland. The ILWU is naturally scathing in its criticism of the Court’s decision saying the latest decision, which is not binding until it, too, is finally adopted by the NLRB, simply extends the potential damage period another nine months and will be resolved on the legal argument of ‘control'.
It goes on to state that the findings relative to a concerted slowdown are ‘absurd and wrong’. The ILWU then is at pains to point out that actions it says its members have taken to preserve health and safety whilst working have been brushed aside despite going against written and recognised manners of use. ILWU Local 8 Secretary-Treasurer Troy Mosteller, commented:
“The ruling, either by ignorance or by total indifference to safety on the docks, puts longshore workers in the position of having to either perform work in a manner that puts lives at risk or be accused of hard timing ICTSI; it’s an absurd outcome.”
The row extends to the ILWU’s employers, on the issue of operating dockside handling equipment in bypass mode, for example, an industry arbitrator ruled on May 25, that ICTSI’s effort to force crane operators to operate in bypass mode or ‘above the drive limit switch’ (this allows the operator to lift the crane higher than the maximum manufacturer’s set lift capacity) was inconsistent with the design and approved use of the cranes and, thus, inconsistent with industry safety standards. The union says the Arbitrator concluded ‘this was an immediate danger to health and safety’.
The union claims ICTSI’s behaviour in this ‘effort to force equipment operators to operate equipment in a manner that conflicts with safety standards’ is also currently under investigation by the US Department of Labor Occupational Safety and Health Administration (OSHA), which issued a Notice of Alleged Safety or Health Hazards against ICTSI and held an initial hearing last week. If the ALJ recommendation is adopted by the NLRB and then enforced in court, the latest ALJ decision would force therefore attempt to have workers operate cranes in a manner that is in direct conflict with industry and OSHA safety standards. Considering the fine incurred by ICTSI earlier this year for 18 breaches of health and safety regulations this is likely to be taken very seriously. ILWU’s Coast Committeeman Leal Sundet, said:
“Basically, ICTSI has successfully duped the Board into employing its Administrative Law Judges for the purposes of sanctioning ICTSI’s abuse of the safety standards that have been developed over decades and are designed to protect the men and women who risk their lives daily in this dangerous occupation. ICTSI arbitrated complaints of slowdowns ten times during the nine months that this latest ALJ decision covers and ILWU Local 8 won eight times, this ALJ ignored it.
“Last week, an industry arbitrator told ICTSI that their position on operating in bypass mode was a threat to safety and a violation of our collective bargaining agreement. The ALJ’s preliminary decision says we should operate in bypass mode, risk our lives and the lives of others, lifting cargo with a crane higher than the cranes established maximum lift capacity. I have to hand it to ICTSI, it’s a pretty clever use of the Board as a hammer on working people here in the US."
The ILWU filed exceptions to the first ALJ decision, which remains pending and non-binding. The ILWU says it will file exceptions to the latest ALJ decision, which is also non-binding and that it believes that it will be years until there is a final outcome in this matter. Unfortunately we can’t see anyone arguing that particular point.