The deliberations of an Administrative Law Judge are expected to delay resolution of Portland's Terminal 6 dispute.
An Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a preliminary decision and recommended order on May 30 that for the period of September 2012 to June 2013 longshore workers employed at Terminal 6 in Portland engaged in unfair labor practices by driving trucks slowly, refusing to hoist cranes in bypass mode, and refusing to move more than one 20-foot container at a time on older trailers in an effort to force International Container Terminal Services, Incorporated (ICTSI) and carriers who call at Terminal 6 to cease doing business with the Port of Portland.
He incorporated the findings made earlier by a different ALJ that the alleged slowdowns were designed to pressure "neutral" ICTSI to force the Port of Portland to assign work that it controlled – work on containers owned and controlled by steamship companies that have a collective bargaining agreement with the International Longshore and Warehouse Union (ILWU). That decision is currently under appeal.
This latest preliminary 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." Still, the findings relative to a concerted slowdown are absurd and wrong, says the union.
"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," stated ILWU Local 8 Secretary-Treasurer Troy Mosteller.
On the issue of operating equipment in bypass mode, for example, an industry arbitrator ruled last week, 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 Arbitrator concluded: "This was an immediate danger to health and safety."
ICTSI's effort to force equipment operators to operate equipment in a manner that conflicts with safety standards is also currently under investigation by the U.S. 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, Friday's ALJ decision would force longshore workers to operate cranes in a manner that is in direct conflict with industry and OSHA safety standards.
"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," stated ILWU's Coast Committeeman Leal Sundet.
"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 U.S."
The ILWU filed exceptions to the first ALJ decision, which remains pending and non-binding. The ILWU will file exceptions to Friday's ALJ decision, which is also non-binding. It will be years until there is a final outcome in this matter.
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