What happens when the Port of Portland brings in an outside contractor to run its container terminal operations? Columnist Richard Read, writing for OregonLive.com, called it “reefer madness”: work that had been assigned to the Electrical Workers union since 1974 suddenly becomes a bone of contention with the International Longshore and Warehouse Union (ILWU)’ trucks needing to plug in their refrigerated containers called “reefers” back up and wait for hours during sudden “slowdowns”; ships are diverted to other ports; and the National Labor Relations Board is called in to decide which union’s members are entitled to perform the work. Electrical Workers Local 48 (ICTSI Oregon, Inc.), 358 NLRB No. 102 (August 13 2012). (pdf)

In 2011 the Port of Portland entered into a 25-year lease with ICTSI Oregon, Inc. to operate a marine terminal dock handling, among other things, reefers. Since 1974, members of the International Brotherhood of Electrical Workers (IBEW) employed by the Port had performed the work of plugging in, monitoring, and unplugging the reefers under a labor agreement to which the IBEW and Port were bound. Under the terms of ICTSI’s lease with the Port, the IBEW employees of the Port were to continue performing the reefer work.

After entering into the lease with the Port, the ICTSI joined the Pacific Maritime Association (PMA), and in so doing bound itself to a labor agreement with the ILWU. The ILWU claimed the reefer work for its members, filing grievances that culminated in a PMA/ILWU joint committee meeting to which neither ICTSI nor the IBEW were invited. Not surprisingly, the PMA/ILWU joint committee declared that ILWU members were entitled to perform the reefer work. The IBEW then threatened to picket ICTSI if the work were to be assigned to the ILWU members. In addition, work by ILWU members on the docks unaccountably began to slow to a crawl, and an unfair labor practice charge was filed with the NLRB.

The NLRB had little difficulty concluding that the factors of employer preference, past practice, and collective-bargaining agreements favored the award of the disputed work to members of the IBEW rather than the ILWU. More interesting was the question of whether there was a cognizable work jurisdiction dispute at all, given that the Port – a public employer not subject to the NLRB’s jurisdiction – controlled the assignment of the reefer work to the IBEW members, who were employed by the Port, not ICTSI. The ILWU argued that inasmuch as ICTSI, the only statutory employer involved, did not control the work assignment, the NLRB was without jurisdiction over the work assignment dispute. The NLRB held otherwise, saying that its cases required only that the NLRB have jurisdiction over the employer the union has targeted with picketing or threats of picketing in support of a work assignment claim. Here, the IBEW had threatened ICTSI, a private-sector employer subject to the NLRB’s jurisdiction. The NLRB also dismissed the ILWU argument that it was asserting a “work preservation” claim rather than a claim for reassignment of the work.

This case affirms once again that in jurisdictional dispute hearings under Section 10(k) of the National Labor Relations Act, the factors considered by the NLRB tend to favor the employer’s existing assignment of the work. The case demonstrates also that whether these proceedings are available at all can turn upon the decisions made by the competing unions. Had the IBEW threatened to picket only the public entity (the Port) rather than ICTSI, the NLRB would likely have been without jurisdiction to resolve the dispute. In this instance, the IBEW chose to target ICTSI, the employer who did not control the work assignment, but whose involvement would enable the NLRB to intercede. The result – at least for now – is that the IBEW retains the work.