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Hardy-Mahoney v. Everport Terminal Services, Inc.

United States District Court, N.D. California

March 23, 2017

VALERIE HARDY-MAHONEY, Regional Director of the Thirty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board Petitioner,


          RICHARD SEEBORG United States District Judge


         Section 10(j) of the National Labor Relations Act (29 U.S.C. Section 160(j)), authorizes the National Labor Relations Board (the “Board”) to petition a federal district court for interim injunctive relief pending the Board's final resolution of an unfair labor practice charge. Petitioner Valerie Hardy-Mahoney, in her capacity as the Regional Director of the Thirty-Second Region of the Board, seeks such relief here against respondents Everport Terminal Services, Inc., and the International Longshore and Warehouse Union, in connection with charges the Board is currently adjudicating regarding events that took place in 2015.

         In light of the fact that the Board effectively requests an injunction returning circumstances to the status quo ante of well over a year ago, and given respondents' showing that their defenses are, at a minimum, not frivolous, the Board had failed to show that an injunction under section 10(j) is warranted. The petition will therefore be denied.


         There is little dispute as to the central facts.

         a. Historical context

         Since a 1938 settlement of longstanding labor strife in the West Coast longshore industry, the International Longshore and Warehouse Union (“ILWU”) has been certified as the bargaining representative for a coast-wide bargaining unit covering all Pacific Coast ports. In most locations, this meant that the ILWU represented not only all longshore workers, but also employees engaged in so-called “maintenance and repair” work (“M&R”).

         Employers typically belong to the Pacific Maritime Association (“PMA”) formed in 1949 by the merger of two earlier multi-employer associations. The PMA exists primarily to negotiate and administer agreements between its members and the ILWU.

         In the 1960s, the “container revolution” brought intermodal containers with standardized dimensions, complete with cranes to lift those containers on and off vessels, thereby changing the nature of longshore work. At least in part because of those changes, some conflict arose between the ILWU and another union, the International Association of Machinists (“IAM”). Employees represented by the IAM had historically performed M&R work for trucks, tractors, mobile cranes, and other mechanical equipment in and around the ports. For the next forty years the ILWU and IAM apparently jockeyed for position to determine which would represent various categories of workers, as the nature of the jobs changed.

         By 2008, ILWU had come effectively to claim jurisdiction over “longshore M&R work.” Under a written agreement, however, some terminals were “red circled, ” whereby certain grandfathered exceptions supplanted ILWU jurisdiction over M&R work. Those exceptions existed where non-ILWU mechanics historically had provided M&R labor and had separate bargaining history with the specific terminal operator. The Ben E. Nutter Terminal at the Port of Oakland, the subject of the present controversy, was designated as a “red circled” exception, because its M&R employees had historically been represented by IAM.

         b. Everport's acquisition of the Nutter Terminal operations

         Dating to approximately 1968, the Nutter Terminal had been operated by Marine Terminals Corporation and/or Miles Motors Transport System (collectively “MTC”). In 2002, the Port of Oakland assigned the right to operate the Nutter Terminal to Evergreen Marine Corporation (Taiwan), Ltd. (“EMC”). Between 2002 and 2015, however, EMC, and later its wholly-owned subsidiary Everport, effectively continued to operate the terminal in conjunction with MTC, through a joint enterprise they formed known as “STS.” The details of the transactions and the entities involved are not material, because it is not disputed that prior to December of 2015, the Nutter Terminal workers were employees of MTC or STS, and were represented by either ILWU or IAM, as appropriate for their positions. The current dispute involves only what happened after December of 2015 to those MTC employees who had been represented by IAM- the so-called “MTC Mechanics.”

         On July 30, 2015, Everport, which by then had been assigned EMC's rights, gave notice it was terminating the relationship with MTC/STS as of December 5, 2015, and that it would thereafter operate the Nutter Terminal itself. Weeks earlier, Everport had applied, and been approved, for membership in the PMA. The ILWU took the position that the “red circle” exception to ILWU jurisdiction over M&R work at Nutter Terminal would not apply once Everport assumed direct operation at the facility. Everport argues, in effect, that it had no real choice but to accept it had an obligation to hire M&R workers through the “joint longshore dispatch” procedures applicable to employers in the PMA, and employees represented by the ILWU. Everport asserts that in October and November of 2015, its attorneys had “several discussions” with counsel for the IAM ...

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