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Face number 20-1411 et al.

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Everport Terminal Services, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Parrish for the petitioner, Everport Terminal Services, Inc.

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Ms.

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Malio for the petitioner, International Longshore and Warehouse Union.

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Mr. Soder for the respondent, Mr. Rosenfeld for the interviewees.

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Good morning, council.

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Mr. Parrish, please proceed when you're ready.

[00:00:25] Speaker 06:
Good morning.

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Thank you, your honors.

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May it please the court, Ashley Parrish for Everport.

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This case involves a dispute over which union Everport should have negotiated with for the maintenance and repair work at the terminal it operates in Oakland, either the longshoremen, the ILW, or the machinists, IAM.

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Everport's position is straightforward because the board has designated the longshoremen as the coast-wide unit.

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We were required to agree to the longshore contract, which required in turn Everport to use the longshoremen for this work.

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As your honors may have noticed, there's a disconnect in the briefing.

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The board never meaningfully engages with our basic argument as to why we are obliged to work with the Longshoremen.

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And there's a reason for that.

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The board is using this enforcement case, it appears, to try to change the rules that it has put in place and that have governed the work on the courts for decades.

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This morning, I'd like to focus on three points.

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First, I'll explain.

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Longshoremen did not historically

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have representation rights in this group.

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That came years after it started.

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So that is kind of a fabricated assertion on your side of the case.

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I'm not saying you're fabricating, but that is not a correct assertion.

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That came after a long period of time.

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The point, I'm most interested in hearing what you have to say.

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What the board is doing is saying that whenever you think your contractual

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arguments are.

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They don't trump the successor rule.

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The board has a legal rule they're relying on.

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They say the successor rule applies and that's that.

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And they do not agree with you to the extent that you're arguing it, that there was any accretion upon which you could rely.

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Those are legal determinations and I don't know why we don't defer to them.

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They say the successor rule applies and you can't argue that your notion of the contract

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of Trump's life.

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So your honor, let me take that in terms.

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First, let me be clear.

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We're not arguing accretion.

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What we are arguing, though, is that the board has set up a process where, as the employer, we have only one choice.

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If we want to operate a terminal, we must have longshoremen.

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Those are the folks that take the cargo off of the container.

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So we have to enter into a contract with the longshoremen.

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The only way to do that under the history, and this is a long history, Judge Edwards.

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But it doesn't start from the very beginning.

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Your honor, it may not.

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In the context of this case, that's not insignificant because you're suggesting something that is inaccurate.

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It hasn't always been this way.

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The machinists have been around and the machinists were properly around before this change and they had bargaining rights.

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So, I mean, you're making an inconsistent argument.

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You're saying there's no conceivable way the machinists can be here in this area because

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The longshoremen always, well, that's not true.

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The machinists were here properly and there was no claim that the longshoremen could have come out and moved them out when they were there before these changes were made.

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And what the board said was under the successor doctrine, the machinist, the employer is required to recognize the machinist, not the longshoreman.

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So your honor, with respect, I understand your question and I understand how you framed it and I agree with how you're framing it, but I disagree with your premise and I'm not debating with you that the machinists have been here for a long time.

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What I'm saying is for the stevedore work, not the repair and maintenance, let's put that aside, for the stevedore work which any terminal operator needs to use,

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There is only one bargaining unit that's been deemed appropriate by the board that is the longshoreman and that has been true for a long time now your honor, I agree with you there has been a long running dispute between the two unions as to which union is responsible for the maintenance work and the longshoreman will tell you.

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that for a long time, this type of maintenance and repair work is something they've been responsible for.

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But Your Honor, I don't need to win that argument.

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What I need to tell you is that the board has set up a system that if I want to operate the port, I have to go to the longshore for the stevedore work.

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And because the board has designated them as the appropriate union,

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there is now the longshore contract.

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Now, the board does not dispute that we needed to enter the longshore contract with them, nor does it dispute that the Ninth Circuit decision from just last year says that under that agreement, it's unambiguous that this maintenance and repair or maintenance and repair work in general must be assigned to the longshoremen.

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And so the problem, Judge Edwards, is we are in the middle.

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I'm sorry, Judge Rao.

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Oh, Mr parish mean my question I guess is a factual what I mean could could everport have hired longshoreman without joining the PMA would it have access to longshoreman without joining the PMA.

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Judge Rao, my understanding is no, and for two reasons.

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One is that as a matter of long-standing principle, it has been a multi-employer bargaining unit, which is the Pacific Maritime Association, the PMA, and that we could not individually bargain with the Longshore Union.

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And two, because the Longshore Union has this collective

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The only way we could do that is to join the longshore contract with them.

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So you're saying that's true as a matter of law, not just as a practical matter, because that's what I wasn't clear from the briefing.

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I mean, it sounds like practically speaking, that's true.

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But I'm wondering if that's also formally true as a matter of contract.

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It is both.

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I'm sorry.

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Let me say it's both with the exception of the last bit that you said, which is that the reason it is legally true is because the board has decided that the longshoremen are the coast-wide bargaining unit and because of the existence of the PMA.

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Now, Your Honor.

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That's a different question though.

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They might be the coast-wide bargaining unit, but does that mean that you have to join the PMA in order to bargain with them?

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under the way it's been set up, yes, by the board.

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And your honor, this is not something... Our main point here is that the board is free to change the rules.

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Now, there's good reasons why the board wouldn't do that, but the board is free to change the rules anytime it wants prospectively.

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And if you take a look at, say, for example, the 1981 PMA decision, the board has looked at these specific contractual provisions and it says they're fine.

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It has enforced them.

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It's even

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how there's an unfair labor practice against the IAM for not complying with these provisions and trying to get work, maintenance and service work that was assigned to the ILW.

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Judge Rao, I think you're very- I guess my question in part arises from the fact that it seems like there are these, there's this, I mean, as you mentioned earlier, right, that the board and your arguments and the board's arguments are talking past each other to some large degree.

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And the board is talking about successorship and you are talking about your obligations

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under the contract.

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And so I guess my questions are really running to, did you have to enter into this contract?

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I mean, it seems like some of the board's arguments are you didn't have to join the PMA in order to run your business.

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But it sounds like what you're saying is you did have to join the PMA.

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Your Honor, I am saying that.

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I am also saying that the Board has never questioned the lawfulness of joining the PMA.

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It doesn't dispute.

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In fact, it concedes that the Longshore Contract is controlling.

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And in the tests that they apply under the burdens test, it's a question of what is the appropriate bargaining unit, which unit, and that's answered by the system that the Board has put in place.

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The PMA doesn't conclusively determine as a matter of law that with respect to disputed work,

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and an appropriate bargaining unit, it goes to the longshoremen.

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Because in the same unit, before this dispute, the machinists represented the employees in the appropriate unit.

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I mean, that's the piece that makes no sense in your argument.

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This is the same unit.

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It was red marked or whatever you call it.

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It was understood by everyone that the machinists

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are the representative in this piece.

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It's just like a little lump in this whole coast.

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There is this piece, and this piece is represented by the machinists.

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No one ever assumed that the PMA said otherwise.

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No one.

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So all you had, the facts that now come up is the employer said, okay, we're going to close it down for a minute.

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Okay, we're opening up for a minute.

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And now we're going to continue.

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And the board said, yeah, you're right in the successor area.

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And the law is the machinists continue to represent period.

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So your honor, you put your finger right on it.

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And that's a problem, which is that under the longshore contract, there is a red circle requirement, which is why the machinists were at that time appropriate union under the interpretation of that contract by both PMA

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and by the longshoremen.

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The board does not dispute this and defers to that interpretation.

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We are no longer red-circled because Everport took over the operations and did not have a pre-existing relationship with the machinists.

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But the problem is there is a fiction that we accept.

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When you have a successor, they did previously represent.

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You're running up against, you're trying to say our contract trumps

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the legal requirement and you're trying to say your contract is the legal requirement.

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That's not correct here because the successor rule is a rule.

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There is a fiction that assumes that the employer is still there.

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That's what the successor rule assumes.

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Your honor, I completely agree with you that that's the successor rule assumes.

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The successor rule says you must identify the appropriate bargaining unit.

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The board has set up the system that the appropriate bargaining unit for

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stevedore longshoreman work is the longshoreman.

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It's a coast wide unit.

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The board has allowed them to have a collective bargaining agreement with PMA that governs all the ports up inside the coast.

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And as the ninth circuit decision makes clear, that agreement says that all new maintenance work that's not red circled has to go to them.

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Are you saying that the work that's being done in this area

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Evergreen, Seaside, Marine, et cetera, is different than what was previously being done?

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Your honor, I'm saying that the, that under the long- No, no, no, no, no.

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Answer my question.

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Is the work different?

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Your honor, most largely no.

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If you look at the record- Okay.

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So, okay.

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That's what I thought.

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So different employer names, but the work's the same, right?

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Correct, Your Honor.

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Okay.

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So forget your contract, because quite frankly, that's your biggest problem.

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The contract doesn't trump the law.

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So the works being done, no one, not the board, not the longshoremen, no one assumed that the unit as constructed before this change was improperly assigned to a union that did not have bargaining rights.

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They had majority bargaining rights that were not impermissible under the law.

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There was a moment when they closed down and then they reopened.

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And under the established law, the board said they didn't really close.

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It's a successor.

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That's your problem.

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Your view of what the contract, the PMA may or may not say is not correct because the successor rule trumps you out.

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With respect, no, Your Honor.

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And the reason is, is because the Board gets to choose which is the appropriate union.

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The Board- Again, in applying the successor rule, they are, but they are making a determination as to the appropriate unit.

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That's exactly what the successor rule is.

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But Your Honor, the successor rule says, what's the appropriate union?

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You then have to look at what the appropriate union is.

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What you're saying is the default is, the default in any other situation would be that it would be the existing unit.

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The problem is that in the coast, on the west coast, we were in a situation where it was lawful for us to join the PMA and under the terms of the longshore contract that the board has essentially approved, that work has to be assigned and the appropriate unit is now the longshoreman.

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That is now is your problem.

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The problem I have is that as the employer, there is nothing I can do.

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If you were to agree with the other side, then I would have an unfair labor practice against me for not complying with the contract because the board would say... You know what?

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I'd take good odds on your side that you'd win that one hands down if you had an opinion from this court that said the successor rule trumps.

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And that they are bargaining with the appropriate union in an appropriate bargaining.

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And I don't think you've been you may have other problems.

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I'm no fool.

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I understand when you got two unions fighting over this kind of work, you might run into other problems.

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And as the employer, you don't want the aggravation.

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That isn't the question.

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Your honor, the problem is, is that that's all perspective looking at the board wants to set up that system.

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It can easily say, look, the coast wide bargaining unit will not be the longshoremen.

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It can easily say that the longshore provisions in the contract that we're going around in circles because the board has already said, but your piece belongs to the machinists.

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They already said that.

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And you're saying, but wait, it's not there anymore.

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And the board said, sure it is because of the successor rule.

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Your honor, the Ninth Circuit last year in the decision we cite, the Kinder Morgan decision, rejects the board's position and says this piece does not belong to the machinists.

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It belongs to the longshoremen.

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So can I ask the following question, which is you have one set of arguments that you think you need in order to win at the end of the day.

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I'm more interested in what we should do with the case that we have right now.

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It seems to me that the way Judge Edwards understands the relationship between the successor rule and what you're thinking is your contractual obligations, that may be the state of the law.

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If the board announces that that's the state of the law, well, then you've got something that you need to contend with because it's at least conceivable as a matter of law that the successor rule trumps contract.

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could happen.

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You may think that that doesn't make any sense and that puts you in a bad position and that's unworkable and then that's just something the board's going to have to contend with.

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My question is

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even if that's where the law ends up, does the decision that we're reviewing do the work?

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Because one other way to look at it is that maybe the board reaches that conclusion at the end of the day, but we just can't tell from the ALJ opinion that was ratified by the board that it engaged on these issues.

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And less than until we see that the board is engaged with it and thinks that even in the contractual scenario that you outlined,

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way the board's decision can't be affirmed on that basis.

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And for example, you know, one question you need to win on the red circle exception not carrying forward even under your theory of the case.

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And right now we assume, I know that you assume that and you say that the board doesn't contradict that assumption.

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And I take your point on that.

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But at the end of the day, for you to prevail that would need to be true.

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And one question I have is,

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an intermediate way to look at the case is, regardless of whether you're right or the competing way of looking at it is right, which is that the successor rule just carries the day over and above the contractual obligations that you say you have, that we just can't discern that conclusion from the board's reasoning at this point.

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And so it at least needs to go back to the board for the board to wrestle with this.

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Your Honor, I completely agree with that.

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And I think that under the Ports American case, this court decided in 2020, the board's failure to engage is a reason to remand.

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The challenge we have, Your Honor, is that you will see that if this was a question as to what the right policy should be going forward,

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we would completely agree with you that there's no more role.

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The problem that we have is not that we're asking whether the contract trumps the board's rules.

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What we're asking the court to find is that the board's rules trump the board's new rule.

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And the problem is that we're put in this position where in an enforcement context, the board has never, and in fact on its brief on appeal, appears to concede the logical steps in our argument.

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So the reason why I agree with you, Your Honor, that at a minimum you need to send it back is they haven't engaged.

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But if you look at the concessions they've made and the decisions they've made in the past as to how they've set up the bargaining unit, this is not an enforcement case.

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This is a question of the board changing its policy, which it's free to do going forward, but not retroactively.

[00:17:35] Speaker 00:
Well, even as to that, I mean, that might be an argument that you have in your back pocket no matter what.

[00:17:39] Speaker 00:
But for us, at least from where I sit, it's a little bit difficult to understand how all these things interrelate until I see an analysis and an explanation that elucidates the board's perspective on how they do.

[00:17:54] Speaker 06:
Your Honor, I mean, it's a fair point.

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There's no doubt that the board has not engaged.

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It doesn't even engage in its brief before the court.

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So I understand why the court feels at sea in terms of addressing the issues.

[00:18:06] Speaker 04:
Mr. Parrish, I guess following up on Judge Trinivasan's point, I mean, do you think that there's an argument that as a matter of law, the contract needs to trump the successorship rule?

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Or do you, do you agree that, you know, on remand th

[00:18:30] Speaker 06:
Thank you, your honor.

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I don't agree that the board is free to decide either direction on remand.

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And the reason is, is because it's not that the contract per se trumps.

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It's the fact that the board has made the decision that the coast-wide bargaining unit is the longshoremen.

[00:18:47] Speaker 05:
And once it did that... When do you think they did that?

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The history doesn't support that the machinists have been around

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I mean, we're just going in circles.

[00:18:57] Speaker 05:
Machinists have been around before.

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They have been around in this particular area, which is coast-wide.

[00:19:03] Speaker 06:
Your honor, I'm sorry.

[00:19:04] Speaker 06:
You think I'm disputing that with you, and I'm not.

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What I'm disputing with you is that for the stevedore work, for the stevedore work itself, that's something the machinists have never done.

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That's only the longshoremen.

[00:19:17] Speaker 05:
I asked you well into the argument, is the work being done in this new

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in this area, which is not new, it's just new employers, the same work.

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And you said, yes, it's the same work that was done before.

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And then I said, and the machinists were the representatives, right?

[00:19:35] Speaker 05:
And you said, yes.

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So your argument's not making sense.

[00:19:38] Speaker 05:
And my colleagues may be right.

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It may be that we're just going to keep going in circles.

[00:19:43] Speaker 05:
And maybe the board has to clarify what they're talking about.

[00:19:45] Speaker 05:
But your claim that this is somehow new doesn't make sense on the record of this case.

[00:19:50] Speaker 05:
It's not new.

[00:19:52] Speaker 06:
So, Your Honor, the problem is that I'm not being clear enough to you because I'm not going in circles.

[00:19:57] Speaker 06:
I understand what you're saying and I'm trying to respond.

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What I'm saying is that

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there is a first we know that the stevedore work has always been the longshoreman we all agree with that there has been as the process that the courts have changed there has been a long-standing dispute as to what to do with the the work that could be done by either the machinist or the longshoreman that is in the record you can see it in all the board's decisions these these decisions come up all the time

[00:20:24] Speaker 06:
Then what has happened is that since 1978 and through the 1980s, there has been the longshore contract, which the Ninth Circuit last year ruled contrary to the board unambiguously assigns

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repair and machine work to the longshoremen.

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And so Judge Edwards, what I'm trying to say and Judge Rao, what I'm answering into your question is that because the board has set up a system where they've given for the stevedore, the longshore work, to the longshoremen, and the longshoremen have then negotiated a long-standing

[00:20:56] Speaker 06:
collective bargaining agreement that covers more than just that, Judge Edwards, that goes into the work that the machinists also do.

[00:21:03] Speaker 06:
But the board has looked at that many times, and it has many times said that those provisions are appropriate.

[00:21:09] Speaker 06:
And then last year in the Ninth Circuit, it was clear that the Ninth Circuit said that unambiguously includes this type of work.

[00:21:15] Speaker 06:
And so Judge Rau, the answer is when you put those two things together, there's only one result, which is that the board would have to reach the conclusion on remand that there's a legal

[00:21:24] Speaker 06:
requirement that we did what we were supposed to do and the board would have to change it going forward.

[00:21:29] Speaker 04:
So, is your if just so I understand so your argument is that if they wanted to change it going forward they would have to engage in rulemaking that they can't do this through an enforcement action.

[00:21:42] Speaker 06:
I'm sorry, Your Honor.

[00:21:43] Speaker 06:
Yes.

[00:21:43] Speaker 06:
So there's a couple of provisions.

[00:21:45] Speaker 06:
They could do it under section nine of the act and section 10.

[00:21:50] Speaker 06:
One is a complaint against the union.

[00:21:51] Speaker 06:
So there could be a complaint relating to the contract itself.

[00:21:56] Speaker 06:
And then the board could look at that and say, we don't think those contract provisions.

[00:21:59] Speaker 06:
So it could address Judge Edwards' questions and say, look, we think this work really belongs to the machinists, not to longshoremen.

[00:22:06] Speaker 06:
we don't think the Ninth Circuit was correct about this or in any event we think that the provisions are improper and it could change the agreement if it wanted to.

[00:22:14] Speaker 06:
And then under nine it has the ability to certify an appropriate bargaining unit.

[00:22:19] Speaker 06:
It could if it wanted to open all this up and I'm not suggesting it would want to because there's a lot of history here.

[00:22:25] Speaker 06:
But the reason why it selected the longshoremen as the coast-wide bargaining unit for the longshore stevedore work a long time ago has some reasons but it could open that up and could change that if it wanted to.

[00:22:36] Speaker 04:
And so absent those actions, your position is that making that decision in your enforcement action would be impermissibly retroactive.

[00:22:48] Speaker 06:
Right.

[00:22:48] Speaker 06:
What we did was the natural consequence of the system that the board has set up.

[00:22:53] Speaker 06:
And the problem is that the board's arguments about successorship

[00:22:58] Speaker 06:
don't address the threshold question, which is what is the appropriate union?

[00:23:01] Speaker 06:
We have this threshold argument that says in figuring out the appropriate union unit, you have to look at what the board set up with the system it's done in terms of having this coast-wide unit.

[00:23:12] Speaker 05:
Was the prior unit appropriate?

[00:23:18] Speaker 06:
Yes, Your Honor, because- Well, I mean, that's the problem.

[00:23:20] Speaker 05:
I mean, you know what I'm going to now ask.

[00:23:22] Speaker 05:
If the prior unit was appropriate,

[00:23:24] Speaker 05:
Under all of your analysis, contract legal and everything else, if the prior unit was appropriate, what you're looking at is a situation where the board is essentially saying the prior unit still exists.

[00:23:37] Speaker 06:
The prior unit was appropriate until Everport took over the port.

[00:23:44] Speaker 05:
We're going in circles.

[00:23:46] Speaker 05:
How does the successor rule come in?

[00:23:49] Speaker 06:
What I'm saying is that in terms of asking the appropriateness question before you get to the successor rule, what you would say is that we're bound by

[00:23:57] Speaker 06:
the collectively bargained agreement and under that it has rules for red circling as to when a unit that was previously appropriate remains appropriate and the distinction there which the board does not dispute is whether there was a pre-existing relationship.

[00:24:10] Speaker 06:
If Everport had a pre-existing relationship then under those circumstances the machinist would have been appropriate and would have remained appropriate and we would have had to under the longshore contract continue working with them.

[00:24:21] Speaker 06:
Okay, which is why they remain there because under the seaside and the two organizations that work for seaside there were that pre existing relationship, which is why the machine is continued under the long for contract typically if we if we vacate an agency determination on arbitrary and capricious grounds because

[00:24:40] Speaker 00:
it hasn't wrestled with some of the arguments that you're putting forward now, it goes back and the agency can do it again.

[00:24:46] Speaker 00:
And the agency is free to reach the same result.

[00:24:49] Speaker 00:
It just has to come up with reasoning that's non-arbitrary and capricious in order to sustain the result.

[00:24:54] Speaker 00:
And then that's judicially reviewed.

[00:24:56] Speaker 00:
And then the court that reviews that determines whether the new determination survives scrutiny.

[00:25:01] Speaker 06:
So, the judge reading of Austin, let me, let me see if I can be really clear because I think I understand you exactly.

[00:25:06] Speaker 06:
If we think that if you piece together what the board has said before, and what it doesn't dispute here.

[00:25:15] Speaker 06:
to answer Judge Rao's question, there's only one legally permissible determination here.

[00:25:20] Speaker 06:
But I agree with you that if you don't agree with that, and if you agree with that, it would save everyone a lot of trouble from going back and forth.

[00:25:26] Speaker 06:
But if you don't agree with that, in the sense that you can't piece it together, then obviously you can remand and we can be back before the court on the same issues.

[00:25:34] Speaker 00:
Right, you can you can make the same argument before the board to tell the board on remand.

[00:25:38] Speaker 00:
Actually, you don't have any discretion in this based on the Ninth Circuit decision and the other understandings.

[00:25:42] Speaker 00:
You can only go one way unless you're only going to do it prospectively, and then we'll have to see what the board says about that.

[00:25:48] Speaker 00:
And then a court that's reviewing that determination to make an assessment.

[00:25:52] Speaker 06:
You're right, Your Honor.

[00:25:52] Speaker 06:
The only thing I'd say is we've said it and the board's conceded all of the central things.

[00:25:56] Speaker 06:
And the reason why it isn't engaging is because it has no it has no answer, because there is no answer, because all it says is

[00:26:03] Speaker 06:
Judge Edwards, which is your analysis, which is, oh, successorship.

[00:26:07] Speaker 06:
But the problem is that there's a step before that, which says, what's the appropriate union?

[00:26:11] Speaker 06:
The board has put that in place.

[00:26:12] Speaker 06:
And the board doesn't dispute any of the threshold.

[00:26:14] Speaker 06:
He agrees with us that it was fine for us to join the PMA.

[00:26:17] Speaker 06:
It agrees with us in its brief that the longshore contract is governing.

[00:26:21] Speaker 06:
And once it's made those two concessions and it agrees that the longshoremen are the appropriate unit, once it's made those three concessions, there's nowhere else for the board to go.

[00:26:30] Speaker 00:
Well, unless the board thinks that the way the successor rule operates is that when you have a phenomenon like the red circle exception that just essentially there's a session rule just essentially makes that permanent.

[00:26:42] Speaker 06:
Right.

[00:26:42] Speaker 06:
Except for your honor, it hasn't made it has not made.

[00:26:46] Speaker 05:
We're just going in circles.

[00:26:48] Speaker 05:
Yeah, I hear you.

[00:26:50] Speaker 00:
Thank you.

[00:26:52] Speaker 00:
Let me make sure my colleagues don't have additional questions for you at this time.

[00:26:54] Speaker 00:
You have a little bit of time.

[00:26:55] Speaker 00:
We'll give you a little time for rebuttal.

[00:26:57] Speaker 00:
Let me make sure we don't have further questions for you at this time.

[00:27:01] Speaker 00:
And we'll hear from your colleague on the same side, Ms.

[00:27:06] Speaker 00:
Malio.

[00:27:08] Speaker 01:
Good morning, Your Honors.

[00:27:09] Speaker 01:
May it please the court, Emily Malio for Petitioner, ILWU.

[00:27:14] Speaker 01:
I would like to start my argument addressing the questions of successorship that were brought up earlier.

[00:27:19] Speaker 01:
And in particular, the board's finding here on successorship depends on its finding that Everport discriminated against machinists in hiring of mechanics.

[00:27:34] Speaker 01:
And that, but for that discrimination, they're, they wouldn't- They discriminated against who?

[00:27:41] Speaker 05:
You said machinists?

[00:27:42] Speaker 01:
Yeah, the machinists.

[00:27:44] Speaker 01:
And but for that discrimination, a majority of the employees hired would have been machinists.

[00:27:51] Speaker 01:
That is a necessary element of successorship under the board's case here.

[00:27:57] Speaker 01:
Now the board though found that discrimination because Everport followed the longshore agreement.

[00:28:04] Speaker 01:
So there really is no way to divorce these two concepts.

[00:28:08] Speaker 01:
The successorship depends on a finding that complying with the longshore agreement

[00:28:13] Speaker 01:
specifically the requirement to exhaust the hall before you consider any external applicants, was unlawful discrimination.

[00:28:23] Speaker 01:
And for that reason, I think it is important that successorship is not just based on the facts that are not contested here, that the work remains similar or that there was these prior historic bargaining units before a report took over.

[00:28:39] Speaker 01:
The question really depends on

[00:28:41] Speaker 01:
was a discrimination, an awful discrimination for Everport to comply with the contract.

[00:28:46] Speaker 01:
And likewise for my client, did my client violate the act by, you know, engaging in conduct that I think the act was enacted to protect, ensuring compliance with this collective bargaining agreement and advocating for the workers it represents.

[00:29:03] Speaker 04:
Ms.

[00:29:03] Speaker 04:
Smalley, could Everport have hired longshoremen without joining the PMA?

[00:29:11] Speaker 01:
No, the only way to access the pool of longshoremen, as well as meet marine clerks, is to be bound by the longshore agreement.

[00:29:20] Speaker 04:
So longshoremen who are members of the ILW don't work at any of the non-PMA ports at all.

[00:29:30] Speaker 01:
Or terminals are for non-PMA.

[00:29:32] Speaker 04:
No, so they only work at PMA.

[00:29:37] Speaker 04:
That's correct.

[00:29:39] Speaker 04:
Terminals, yeah, okay.

[00:29:40] Speaker 01:
Yeah, it's not the sort of contract where an employer can, you know, access the pool of workers and just say, okay, we'll comply with the economic terms.

[00:29:49] Speaker 01:
I know there are those types of contracts.

[00:29:51] Speaker 01:
This contract does not allow that.

[00:29:52] Speaker 01:
You have to be bound by all of the terms of the agreement, be part of the multi-employer bargaining association in order to access those workers.

[00:30:00] Speaker 01:
Access the workers.

[00:30:02] Speaker 05:
Thank you.

[00:30:03] Speaker 05:
You raise an interesting point.

[00:30:05] Speaker 05:
which was a little bit perplexing to me.

[00:30:08] Speaker 05:
You're essentially saying that, you're saying directly, the discrimination occurred in following the alleged contract rules, which required them to hire the longshoremen.

[00:30:25] Speaker 05:
You're giving preference to longshoremen when you shouldn't have.

[00:30:32] Speaker 01:
I believe so, but it's a longshoreman and marine clerk.

[00:30:35] Speaker 01:
So when Everport joined the Pacific Maritime Association and became bound by the agreement, the ILDW demanded and Everport complied with its obligations to hire marine clerks, with its obligations to hire longshoremen.

[00:30:50] Speaker 01:
With the exception of longshore mechanics, both of those aspects were not concerned at all.

[00:30:55] Speaker 05:
The board seems to be, in your analysis, the board seems to be doing or saying or suggesting

[00:31:01] Speaker 05:
is that to the extent that that contract gave preference to longshoremen in areas in a unit that was always understood to be manned by or people by machinists, that was impermissibly discriminatory.

[00:31:24] Speaker 05:
And it's not going to trump the successor rule.

[00:31:27] Speaker 05:
That's essentially what the board seems

[00:31:29] Speaker 05:
in your view seems to be doing, right?

[00:31:32] Speaker 05:
In other words, yeah, there's the contract, but the contract's discriminatory.

[00:31:36] Speaker 05:
So we're not going to fight you on whether you had to join that, join in that contract.

[00:31:42] Speaker 05:
The red circle still should continue, but not in this modified form, which gives preference to the longshoremen.

[00:31:51] Speaker 05:
That's what the board seems to be saying, right?

[00:31:54] Speaker 01:
I mean, to the extent I understand the board's theory in this case, I believe it is that Everport discriminated against the machinists by applying the longshore contract.

[00:32:05] Speaker 05:
But at the same time, Applying the modified notion of the red circle.

[00:32:10] Speaker 05:
In other words, because previously it was it was clearly a recognized units with machinists in it.

[00:32:20] Speaker 01:
Well, I mean, I wouldn't say it's a modified contract.

[00:32:24] Speaker 05:
Both the party modified application, modified application of the red circle.

[00:32:29] Speaker 01:
Yeah.

[00:32:30] Speaker 01:
The parties who bargained the contract, PMA and the LWU both agreed that the red circle expired when MTC, the formal operator left the Nutter terminal.

[00:32:42] Speaker 05:
Right.

[00:32:42] Speaker 05:
That's what I mean.

[00:32:42] Speaker 05:
The modified, the red circle was no longer there.

[00:32:46] Speaker 01:
Right.

[00:32:46] Speaker 05:
And that was what I was saying.

[00:32:48] Speaker 05:
If that results in your now

[00:32:51] Speaker 05:
hiring people in a discriminatory way so that the people who formerly worked in this same successor area are now being denied jobs or limited jobs.

[00:33:02] Speaker 05:
That's discriminatory, and it's not going to avoid collision with the successor rule.

[00:33:08] Speaker 05:
That's essentially what the board seems to be saying, right?

[00:33:12] Speaker 01:
Yeah, that complying with the contract, that Everport, by complying with the contract,

[00:33:17] Speaker 01:
that that is the action that leads for the but for determination that but for compliance with the contract, more machinists would have been.

[00:33:25] Speaker 05:
Yeah, I mean, and this is where I disagree with your colleague on your side.

[00:33:30] Speaker 05:
I'm not saying that the board is right, but our understanding of what's going on seems to differ.

[00:33:37] Speaker 05:
The board can say that a contractual provision results in impermissible discrimination.

[00:33:43] Speaker 05:
I don't know whether they've done it aptly here and then maybe they have it and it is very confusing.

[00:33:48] Speaker 05:
But it seemed to me that's what was going on here.

[00:33:50] Speaker 05:
The board was saying, yeah, whatever, you have that contract and you may have signed it, but that contract cannot allow you to impermissibly discriminate against a group that is otherwise protected by the successor rule.

[00:34:05] Speaker 01:
I think the challenge, well first is the board had no concern with the application to the vast majority of employees that work for Everport.

[00:34:16] Speaker 01:
But the challenge here is figuring out where the, it's kind of a shifting schedule, order.

[00:34:28] Speaker 01:
The contract binds Everport.

[00:34:30] Speaker 01:
Everport's required to comply with the contract.

[00:34:34] Speaker 01:
The parties to the contract agreed that the red circle no longer applied.

[00:34:37] Speaker 01:
Everport's required to comply with it for all sorts of workers.

[00:34:41] Speaker 05:
When you say no longer applies, no longer applies with respect to what?

[00:34:45] Speaker 01:
The red circle has expired.

[00:34:48] Speaker 05:
No longer applies as a notion or no longer applies in this situation?

[00:34:53] Speaker 01:
In this situation because Everport had taken over the terminal.

[00:34:56] Speaker 05:
Yeah, and that's where you have a direct collision with the successor rule.

[00:35:00] Speaker 05:
And that's where the board conceptually seems to be saying, you know, you may be part of a contract, but you can't be part of a contract that discriminates against protected workers.

[00:35:10] Speaker 05:
That seems to be what's going on.

[00:35:12] Speaker 05:
We'll hear from the board.

[00:35:13] Speaker 05:
I mean, I'm trying to make some sense out of this.

[00:35:15] Speaker 05:
I understand you can't read a contract the way you and Mr. Parrish are suggesting.

[00:35:23] Speaker 05:
Well, but there's a contract provision.

[00:35:25] Speaker 05:
and acknowledge that and it's discriminatory and it's therefore the board is bound itself.

[00:35:30] Speaker 05:
That's not the way it works.

[00:35:33] Speaker 05:
But I don't know whether the board has clearly said that.

[00:35:36] Speaker 05:
I don't know whether it's justified.

[00:35:38] Speaker 05:
But I'm trying to understand what you all are saying.

[00:35:41] Speaker 05:
The red circle was part of that contract.

[00:35:44] Speaker 05:
And the only place the red circle notion has been eliminated is with respect to this unit that we're talking about that has always been represented by machines, right?

[00:35:56] Speaker 01:
I wouldn't say necessarily the only time, but at any time a the employer that was employing the machinist ceases operations, the red circle.

[00:36:05] Speaker 05:
That's, that's, that's the whole point.

[00:36:07] Speaker 05:
The question is, can the

[00:36:08] Speaker 05:
A union and employer under a contract make that determination.

[00:36:11] Speaker 05:
The board says, no, we're making the determination.

[00:36:14] Speaker 05:
This is a successor employer.

[00:36:17] Speaker 05:
It's not an employer as you claim in the contract that has disappeared.

[00:36:20] Speaker 05:
That seems to be the fight that's going on here.

[00:36:23] Speaker 01:
And to be clear, though, the board is not challenging the interpretation of the agreement that the red circle expired.

[00:36:29] Speaker 05:
No, but they're saying it's discriminatory.

[00:36:32] Speaker 05:
They're saying you're saying that the contract which expires it as to these people is discriminatory.

[00:36:39] Speaker 05:
You're agreeing with that.

[00:36:40] Speaker 05:
I don't know whether that analysis makes sense, but that seems to be what they're doing.

[00:36:45] Speaker 05:
They're saying, yeah, we understand what you're saying about the contract.

[00:36:48] Speaker 05:
You're exactly right.

[00:36:49] Speaker 05:
The problem is it's discriminatory.

[00:36:52] Speaker 01:
And I think this leads to the dilemma that Everport is bound by the contract, bound to follow the contract, including the contract.

[00:37:03] Speaker 05:
I don't know why that bothers the two of you.

[00:37:05] Speaker 05:
That's just not a troublesome notion.

[00:37:08] Speaker 05:
a union or an employer claim to be protected by a contract that's prohibited by the National Labor Relations Act, that's no defense.

[00:37:16] Speaker 05:
You can't say, but I'm just following the contract.

[00:37:19] Speaker 05:
If the board legitimately says the contract insofar as it does this as unlawful, that's where I'm not following your two arguments at all.

[00:37:30] Speaker 05:
I am following your argument to the extent that you're saying we don't really know what the devil the board did here.

[00:37:35] Speaker 05:
We don't understand how they justified it.

[00:37:36] Speaker 05:
But I'm not following that argument.

[00:37:39] Speaker 05:
That is, but the contract says it's okay.

[00:37:42] Speaker 05:
And so we can discriminate and avoid the successor rule.

[00:37:45] Speaker 05:
I don't follow that one.

[00:37:46] Speaker 01:
Yeah.

[00:37:47] Speaker 01:
Well, I guess the first piece is it's not my position that there was discrimination.

[00:37:51] Speaker 01:
And the second piece is that the board has repeatedly upheld the application of these sections of the contract as being lawful.

[00:38:00] Speaker 05:
Gotcha.

[00:38:00] Speaker 05:
Okay.

[00:38:01] Speaker 05:
I just want to make sure I'm understanding.

[00:38:03] Speaker 05:
We're here with the board has to say.

[00:38:06] Speaker 01:
Thank you, Your Honor.

[00:38:08] Speaker 05:
I'm not moving a tree.

[00:38:09] Speaker 05:
I was just thinking out loud.

[00:38:11] Speaker 05:
Of course.

[00:38:11] Speaker 05:
It's your job to move.

[00:38:15] Speaker 00:
Noted.

[00:38:17] Speaker 00:
If my colleagues don't have additional questions for you, Miss Malio, we will hear from the board now.

[00:38:23] Speaker 00:
Thank you, Miss Malio.

[00:38:24] Speaker 00:
Mr. Souter.

[00:38:26] Speaker 07:
Good morning, Your Honor.

[00:38:27] Speaker 07:
As may please the court, Greg Souter for the National Liberations Board.

[00:38:31] Speaker 07:
I'd like to pick up where all this argument is going and say,

[00:38:35] Speaker 07:
We basically have on one side of report that's using, that starts with the longshore contract and its provisions.

[00:38:45] Speaker 07:
And we, the board, obviously we start with the National Labor Relations Act.

[00:38:49] Speaker 07:
And the act says that employees have a right to decide who they want to select as their collective bargaining representative or nobody at all.

[00:39:01] Speaker 07:
Okay.

[00:39:02] Speaker 07:
So we have in this case, a unit of,

[00:39:06] Speaker 07:
machinists of mechanics who have recognized the machinists as their collective bargaining representative.

[00:39:14] Speaker 07:
We now have a new employer, Everport, who steps in as a successor into the shoes of the predecessors.

[00:39:22] Speaker 07:
And because Section 7 and 9A protect the rights of employees to choose their own bargaining representative, Everport can't just walk in and say,

[00:39:36] Speaker 07:
Because I'm a party to this other contract, I can completely ignore your choice of representative.

[00:39:43] Speaker 04:
Mr. Sonner, though, that is to talk about this longshore contract as if it's just some random private agreement that Everport entered into.

[00:39:53] Speaker 04:
But that's not what it is, right?

[00:39:55] Speaker 04:
I mean, the longshore agreement is one that the board has ratified.

[00:39:59] Speaker 04:
It's been in existence for a long time.

[00:40:02] Speaker 04:
And I mean, it doesn't seem like the board disputes that for Everport to continue hiring Longshoremen, they needed to join the PMA and they needed to have access to those workers.

[00:40:14] Speaker 04:
So it's not as though they're trying to hide behind, you know, just just a private contract that they came up with.

[00:40:20] Speaker 04:
It's it's a board sanctioned contract that they're operating under.

[00:40:25] Speaker 07:
Well, all you know, all units that have been certified by the board are board sanctions.

[00:40:30] Speaker 07:
But I would really push back against the notion that the west coast unit is somehow some kind of super unit that has

[00:40:39] Speaker 07:
prerogatives and privileges that other bargaining units or area-wide bargaining units don't have.

[00:40:46] Speaker 04:
So let me ask you this.

[00:40:47] Speaker 04:
So when Everport took over operation of the terminal, the longshoremen who worked there were members of the ILW.

[00:40:55] Speaker 04:
Is that right?

[00:40:55] Speaker 04:
Yep.

[00:40:56] Speaker 04:
So in order to retain those workers, wouldn't Everport have to join the PMA in order to have access to those workers?

[00:41:06] Speaker 07:
Well, getting back to the question you've asked both Mr. Parrish and Ms.

[00:41:09] Speaker 07:
Maggio, the board does not dispute that in order to obtain Steve Dorr labor on the West Coast, Everport has to join the PMA.

[00:41:20] Speaker 04:
Okay, so that then is a lot, I mean, and that's the only way they can continue to operate the terminal, presumably.

[00:41:28] Speaker 07:
That's the only way they can continue to have Steve Dorr labor at the terminal.

[00:41:34] Speaker 07:
Not maintenance and repair workers, but for Steve Dorr labor, yes.

[00:41:38] Speaker 04:
Right.

[00:41:39] Speaker 04:
So then what would you have had Everport do?

[00:41:44] Speaker 04:
from what they did here.

[00:41:46] Speaker 04:
I mean, practically speaking, in order to continue to run their business, what would be the action that they were supposed to take without running a file of the board's various, either the successorship rule or the longshore agreement?

[00:42:01] Speaker 07:
Right.

[00:42:01] Speaker 07:
Well, honestly, Your Honor, this comes down to, frankly, a business mistake by Everport.

[00:42:08] Speaker 07:
They initially thought that they could hire a contractor

[00:42:14] Speaker 07:
who would then be able to negotiate the issues between IM and ILWU.

[00:42:20] Speaker 07:
When that contractor flaked out on them towards September, they were their backs to the wall because they didn't have a backup plan.

[00:42:30] Speaker 07:
If Everport had hired an ILWU contractor to do the maintenance and repair work, we would not be where we are now.

[00:42:41] Speaker 07:
Everport could have

[00:42:43] Speaker 07:
terminated the previous contractors, said you guys are done, hired somebody new who would come in as a new employer, not a successor to the previous ones, a new employer who would come in with its own ILWU labor obtained from the ILWU Joint Hiring Hall.

[00:43:01] Speaker 07:
And voila, that's where we would be.

[00:43:04] Speaker 07:
But what they did is they put all their eggs in the basket of Joe Gregorio, who was already involved

[00:43:12] Speaker 07:
up to his neck in litigation, in this litigation between, I mean, other litigations, but related to the same issues between ILWU and IM.

[00:43:22] Speaker 07:
And after several months of hesitating, he decided he just couldn't take on another potential dispute that would bog him down in the courts.

[00:43:32] Speaker 07:
And he said no.

[00:43:33] Speaker 07:
And at that point, I'm sorry.

[00:43:35] Speaker 00:
Can I ask a question?

[00:43:37] Speaker 00:
The alternative

[00:43:38] Speaker 00:
scenario that you've outlined, which is you replace the existing subcontractor, I guess, with a different subcontractor who's then associated with the ILWU rather than with the machinists.

[00:43:53] Speaker 00:
Then that doesn't implicate the successor rule because you still have machinists who have been there working and they would be replaced in that scenario.

[00:44:05] Speaker 07:
The successor rule obtains your honor only if the

[00:44:08] Speaker 07:
the new employer steps into the shoes of the prior employer.

[00:44:13] Speaker 07:
And that involves substantial continuity of operations, continued appropriateness of bargaining unit and majority of employees.

[00:44:25] Speaker 07:
If you have a new contractor who's an ILWU contractor who gets

[00:44:31] Speaker 07:
their staff from the ILWU Joint Hiring Hall, he's not a successor employer.

[00:44:37] Speaker 07:
Now, if the ILWU Joint Hiring Hall can't give him quality mechanics to do his job, and he has to go back to the previous mechanics, the mechanics for the predecessors and hire them, he can't discriminate against

[00:44:55] Speaker 07:
those mechanics and arbitrarily try to keep them under a minority so that he still has a majority ILW bargaining unit.

[00:45:04] Speaker 04:
Do you understand what I'm saying?

[00:45:06] Speaker 04:
I guess I don't understand why the subcontractor would not be a successor, but Everport is a successor.

[00:45:13] Speaker 04:
If you're managing, I mean, maybe I'm not following.

[00:45:17] Speaker 07:
Sure.

[00:45:18] Speaker 07:
Everport is a successor in this case because it started hiring from

[00:45:25] Speaker 07:
the predecessor's employers.

[00:45:28] Speaker 07:
Now, if it had done, if it had not discriminated in hiring, right, at all, and it ended up with a majority of ILWU employees from the joint hiring hall and a minority of IM employees, then it would not be a successor.

[00:45:44] Speaker 07:
Why?

[00:45:45] Speaker 07:
Because its employees are no longer of the majority of the previous year.

[00:45:50] Speaker 05:
And how do you think they discriminated in hiring?

[00:45:53] Speaker 07:
Oh, Your Honor, the record is full of evidence of that.

[00:45:57] Speaker 07:
They told Troy, who was running the system, actually told the employees that he was under orders to make sure that IM had only 49% of the resulting units and that ILWU would be 51%.

[00:46:14] Speaker 07:
They actually told

[00:46:21] Speaker 07:
They actually contacted employees to schedule interviews and then rescinded those interviews and in some cases rescinded job offers because those employees were represented by IM and not ILWU.

[00:46:33] Speaker 05:
It was said if they had done it legitimately in your view, whatever that means and ended up with the same percentage, it would have been OK.

[00:46:41] Speaker 05:
And the long showman would have permissibly been the bargaining.

[00:46:45] Speaker 07:
Yes, representative.

[00:46:47] Speaker 07:
Yes.

[00:46:47] Speaker 07:
The problem is that they knew going into that

[00:46:50] Speaker 07:
that it wouldn't happen because the ILWU knew that it couldn't give them the same kind of employees with the same kind of experience working on that very terminal on those very machines.

[00:47:04] Speaker 07:
And they knew therefore that they had to figure out a system to make sure that ILWU would end up being the majority.

[00:47:12] Speaker 07:
I mean, Troy actually told his bosses

[00:47:16] Speaker 07:
the power and crane mechanics that ILWU are sending me are not good enough.

[00:47:22] Speaker 07:
And then he went back and even though there were crane mechanics from the predecessors who were qualified, there was no dispute about that.

[00:47:30] Speaker 07:
But instead of hiring from them, which would have put him over the 49% threshold, he went back, re-interviewed the poor quality ILWU mechanics and hired them.

[00:47:42] Speaker 07:
So yes, just to summarize the point, if ILWU, I'm sorry, if Everport had run a completely impartial hiring process and ended up with the majority ILWU unit, it would not be a successor.

[00:48:01] Speaker 07:
Can I ask this question?

[00:48:03] Speaker 07:
Oh, go ahead, Judge.

[00:48:04] Speaker 05:
I just want to follow up to make sure I'm understanding the argument in effect.

[00:48:10] Speaker 05:
Do you agree

[00:48:14] Speaker 05:
the analysis is so bizarre, the board's analysis, that the contractual provision, the contractual provisions that they're following are not discriminatory?

[00:48:29] Speaker 05:
On longshoremen, is that contractual provision discriminatory or not?

[00:48:35] Speaker 07:
I don't think it's, I don't think it's discriminatory.

[00:48:38] Speaker 07:
I don't think the board held it was discriminatory.

[00:48:40] Speaker 05:
Wait, wait.

[00:48:41] Speaker 05:
Okay.

[00:48:41] Speaker 05:
So you don't think it is, and the board didn't hold that it was discriminatory.

[00:48:45] Speaker 05:
The contractual provision says, initially it was construed permissibly to red circle, this area that we're talking about.

[00:48:57] Speaker 05:
Later, the interpretation you're saying now conceding, permissibly said, it's not a red circle area anymore.

[00:49:05] Speaker 05:
So under the contract that this employer was bound by, they're supposed to hire from the longshore.

[00:49:13] Speaker 05:
And you're saying that's not a discriminatory provision.

[00:49:17] Speaker 05:
Then how is there a problem?

[00:49:21] Speaker 05:
Forget what they did when they came in and the nasty things that were said and all of that.

[00:49:28] Speaker 05:
Just take it at the contractual level.

[00:49:30] Speaker 05:
You're saying the contractual provision was not unlawful.

[00:49:35] Speaker 05:
And the contractual provision properly changed because the employer changed.

[00:49:41] Speaker 05:
Wait a minute.

[00:49:43] Speaker 05:
I want you to understand what my premise is.

[00:49:44] Speaker 05:
The contractual provision as the parties are construing it changed.

[00:49:50] Speaker 05:
So the red circle was gone and they were obliged to hire from the longshoremen's hiring shop.

[00:50:00] Speaker 05:
Okay.

[00:50:00] Speaker 07:
My turn?

[00:50:01] Speaker 05:
Yeah.

[00:50:02] Speaker 07:
Okay.

[00:50:02] Speaker 05:
My turn.

[00:50:04] Speaker 05:
So how do we have a problem?

[00:50:06] Speaker 07:
So we are not disputing, the parties, the PMA and the ILWU, are free to interpret their contract as they see fit.

[00:50:17] Speaker 05:
No, they're free within the bounds of the law.

[00:50:20] Speaker 05:
I'm getting you to confirm that the board is not saying that that contractual provision is unlawful, right?

[00:50:28] Speaker 05:
The board has not premised its decision on a finding that the contractual provision is unlawful, right?

[00:50:35] Speaker 05:
No.

[00:50:35] Speaker 05:
The contractual provision, as I'm understanding it both from preparation and listening to all of you today, says for this unit, you have to hire from the longshoreman because the red circle is gone.

[00:50:51] Speaker 05:
You have to hire from the longshoreman.

[00:50:52] Speaker 05:
That's what the contract says.

[00:50:54] Speaker 05:
Right.

[00:50:54] Speaker 05:
And you're saying that's not impermissible.

[00:50:57] Speaker 07:
It's not impermissible for them to interpret their contract that way, but they cannot rely on their contract and use their contract as a basis to steamroll the section seven rights of employees.

[00:51:10] Speaker 05:
No, no, no, no.

[00:51:11] Speaker 05:
You can't have it pulled.

[00:51:12] Speaker 05:
You can't have it pulled.

[00:51:13] Speaker 05:
I'll let my colleagues.

[00:51:14] Speaker 00:
No, please.

[00:51:15] Speaker 00:
I think I'm following up on Judge Edwards in the following way.

[00:51:20] Speaker 00:
It seems to me it would be one thing if the

[00:51:24] Speaker 00:
employer said, what I want to do, I want to get the machinists out of there.

[00:51:29] Speaker 00:
I don't like the machinists.

[00:51:30] Speaker 00:
I want to get the longshoremen in.

[00:51:33] Speaker 00:
And the way I'm going to do that is I'm going to construe the contract so that it allows me to do that.

[00:51:39] Speaker 00:
So I'm biased against the machinists.

[00:51:42] Speaker 00:
I've got anti-union bias against that particular union.

[00:51:44] Speaker 00:
I want to make that work.

[00:51:45] Speaker 00:
I'm just going to come up with some argument of the contract.

[00:51:47] Speaker 00:
And then the board, I think, would be free to say, well, you can't.

[00:51:51] Speaker 00:
You can't act on bias against a union.

[00:51:54] Speaker 00:
That's an unfair labor practice.

[00:51:56] Speaker 00:
But it seems to me that your argument today sort of conflates two different things.

[00:52:00] Speaker 00:
One is

[00:52:02] Speaker 00:
I'm bound by a contract.

[00:52:03] Speaker 00:
I'm not acting on anti-union bias against one particular union.

[00:52:07] Speaker 00:
The contract just tells me what I need to do.

[00:52:10] Speaker 00:
And I'm just following the contract.

[00:52:12] Speaker 00:
That's one interpretation.

[00:52:13] Speaker 00:
And the second is a scenario along the ones that I outlined, which is that I have anti-union bias against the machinists, regardless of the contract.

[00:52:23] Speaker 00:
And I'm not understanding

[00:52:25] Speaker 00:
which one of those you're relying on.

[00:52:28] Speaker 00:
Because if you're relying on the second, then that's always a principle out there that an employer can't act on that basis as a means of evacuating one union and substituting a different one that's preferred, unless there's the requisite procedures to make sure that the employees want that to happen.

[00:52:45] Speaker 00:
But it seems to me that you're equating acting under the contract and having bias against the machinists.

[00:52:53] Speaker 00:
And they seem to me to be two different things.

[00:52:55] Speaker 07:
Well, your analysis omits one important player, and that's the ILWU.

[00:53:03] Speaker 07:
You know, Everport here is, it's not Everport interpreting the contract.

[00:53:08] Speaker 07:
It's ILWU and PMA telling Everport what the contract says according to them.

[00:53:14] Speaker 05:
So what?

[00:53:14] Speaker 07:
But that's either right or wrong.

[00:53:16] Speaker 07:
I mean, it says there's any... So what?

[00:53:17] Speaker 05:
If they're telling them and it's not impermissible, if it was impermissible, this is what I'm trying to... And you...

[00:53:25] Speaker 05:
No comment.

[00:53:27] Speaker 05:
The board is not finding that the contract provision is impermissible or unlawful.

[00:53:34] Speaker 05:
There's no such finding, right?

[00:53:36] Speaker 05:
Right.

[00:53:37] Speaker 05:
OK.

[00:53:39] Speaker 05:
The contract provision properly construed.

[00:53:42] Speaker 05:
I don't care who's construing it or who's telling someone else to construe it that way.

[00:53:46] Speaker 05:
The contract properly construed got rid of the red circle, which means this group

[00:53:55] Speaker 05:
was no longer protected in the sense that machinists were there, this group was now subject to hiring from the long shoulder.

[00:54:04] Speaker 05:
That's the way the contract is interpreted, right?

[00:54:07] Speaker 05:
That's the way the employer hired.

[00:54:12] Speaker 05:
I don't know.

[00:54:12] Speaker 07:
It's unlawful.

[00:54:13] Speaker 07:
But that's where you hit up against the rights of the employees who are already there.

[00:54:20] Speaker 05:
No, no, no.

[00:54:21] Speaker 07:
It's fine, Your Honor, if

[00:54:25] Speaker 07:
the employer hires from the ILWU hiring hall and doesn't intentionally screen out the others.

[00:54:38] Speaker 07:
That's where the discrimination happens.

[00:54:40] Speaker 05:
Anyone who's on the other side of that process is going to say, I was screened out.

[00:54:45] Speaker 05:
And the employer's answer is, yeah, because I have to hire from the hiring hall.

[00:54:49] Speaker 05:
This is no longer a red circle under the contract that the board says is lawful.

[00:54:54] Speaker 05:
I have to go through the hiring hall.

[00:54:56] Speaker 05:
So yeah, you're asking me, am I intentionally going to the longshoreman's hiring hall?

[00:55:02] Speaker 05:
Yeah, I am.

[00:55:03] Speaker 05:
And then the employee or prospective employee says, well, that means they're preferred over me.

[00:55:09] Speaker 05:
Yeah.

[00:55:11] Speaker 05:
And so I'm not getting it.

[00:55:13] Speaker 05:
If the board has not, it seems to me the board cannot possibly reach this decision, which I guess is what Mr. Parish was begging me to try and understand.

[00:55:23] Speaker 05:
If the board has not said that that contract, which the board endorses, is not impermissible, and then no one is disagreeing that the red circle is gone under the contract, and then all the employer did was to hire in a manner that's consistent with the contract, how can that be an UOP?

[00:55:45] Speaker 05:
In other words, what I'm suggesting to you is the reference to successor is bogus.

[00:55:53] Speaker 07:
I strongly disagree, Your Honor.

[00:55:55] Speaker 05:
You can, but you've got to explain how.

[00:55:57] Speaker 07:
Right.

[00:55:58] Speaker 07:
Well, because the way the successorship analysis works is you step into the previous employer's shoes, and you have to negotiate with the previous employer's employees.

[00:56:10] Speaker 07:
And if you have another contract telling you that you can't, well, that doesn't allow you to ignore what the National Labor Act said.

[00:56:18] Speaker 05:
The other contract

[00:56:19] Speaker 05:
that you're talking about is a contract that binds the employer and the board doesn't doubt it.

[00:56:25] Speaker 07:
It doesn't bind the employees who were there.

[00:56:30] Speaker 05:
No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no,

[00:56:48] Speaker 05:
And we agree that the red circle disappeared now because that's what their contract says.

[00:56:53] Speaker 05:
It disappeared.

[00:56:54] Speaker 05:
It wasn't intended to be discriminatory.

[00:56:55] Speaker 05:
It just disappeared.

[00:56:56] Speaker 05:
It's a new employer.

[00:56:58] Speaker 05:
And so under that contract, they have to go to the longshoreman shop.

[00:57:02] Speaker 05:
And that's what they did.

[00:57:05] Speaker 05:
You can't then somehow say the successor rule trumps if the board agrees that this contractual provision is of longstanding and was in play and it's lawful.

[00:57:16] Speaker 07:
Here's the difference.

[00:57:18] Speaker 07:
your honor, between, I think what you're sort of alluding to is kind of the Kinder Morgan scenario here.

[00:57:27] Speaker 07:
In Kinder Morgan, you had an employer that had a bunch of, that had the contracted work to an employer that had, that was connected to the electricians.

[00:57:42] Speaker 07:
The longshoremen came along and said, this is our work, this is our turf, you can't,

[00:57:48] Speaker 07:
give that work to the electricians.

[00:57:50] Speaker 07:
So what did the employer do?

[00:57:52] Speaker 07:
It got rid of the contractor.

[00:57:55] Speaker 07:
Well, we don't know what happened, but basically based on the outcome of that ruling, what the employer would have had to do is get rid of that contractor and hire a new contractor with Longshoremen.

[00:58:07] Speaker 07:
In that case, there is no disruption of the collective bargaining relationship that exists between the first contractors,

[00:58:16] Speaker 07:
and the electricians, the first contractor's employees and the electricians.

[00:58:19] Speaker 07:
They are still represented by the electricians.

[00:58:23] Speaker 07:
Nobody has stepped on their Section 7 right to choose who they want to bargain for them.

[00:58:29] Speaker 07:
In this case, that's not what we have.

[00:58:32] Speaker 07:
We have a situation where Everport is acquiring the work, taking it in-house, becoming a successor employer, and then telling employees

[00:58:45] Speaker 07:
You can't be with your prior union with IM.

[00:58:51] Speaker 07:
You have to join the longshoremen.

[00:58:53] Speaker 05:
Could they lawfully sign the PMA contract?

[00:58:57] Speaker 05:
I'm sorry?

[00:58:58] Speaker 05:
Could that employer that you're talking about lawfully sign the PMA contract?

[00:59:02] Speaker 05:
Which employer?

[00:59:04] Speaker 05:
The one you're calling a successor.

[00:59:06] Speaker 05:
Was it permissible for them to sign the PMA contract?

[00:59:09] Speaker 07:
Sure, there are.

[00:59:10] Speaker 05:
Sure, okay.

[00:59:12] Speaker 07:
There are employers who have multiple contracts with different unions for different units.

[00:59:18] Speaker 07:
That happens all the time.

[00:59:19] Speaker 00:
The problem here is- What you must be saying at the end of the day then is that it's okay for Everport to sign the PMA contract.

[00:59:33] Speaker 00:
It's okay for Everport to implement the consequences of that contract vis-a-vis the longshoremen.

[00:59:40] Speaker 00:
which means that they have to hire longshoremen as the stevedores.

[00:59:46] Speaker 00:
But it's not okay to follow the part of the contract that ended the red circle exemption with respect to.

[00:59:53] Speaker 05:
And that's not what the board said.

[00:59:57] Speaker 07:
I just.

[00:59:58] Speaker 07:
The board is not taking an opinion as to the interpretation of the red circle terminal.

[01:00:05] Speaker 07:
It's established that the parties to a contract can interpret their contract as they see fit.

[01:00:12] Speaker 07:
So that's why we haven't said one way or another, and the board hasn't said one way or another whether that provision discriminates or not.

[01:00:18] Speaker 07:
But the end result here is absolutely discrimination.

[01:00:23] Speaker 05:
Kindamorgan was not a successive case.

[01:00:26] Speaker 04:
No.

[01:00:27] Speaker 04:
When the board fails to engage with that reasoning, though, it doesn't explain what the relationship is between

[01:00:33] Speaker 04:
This admittedly valid contract and the successorship analysis.

[01:00:38] Speaker 04:
I mean, isn't that ultimately the problem is that the board nowhere engages with that.

[01:00:43] Speaker 04:
Well, with that conflict.

[01:00:46] Speaker 07:
Well, I would I would submit, Your Honor, that what what Everport Everport's problem here is with the Burns analysis, which is turning 50 years next year.

[01:00:54] Speaker 07:
This is the Burns analysis.

[01:00:57] Speaker 04:
And this longshore contract is even older than that.

[01:00:59] Speaker 04:
Right.

[01:01:00] Speaker 04:
You know, the agreements.

[01:01:02] Speaker 07:
The Burns analysis doesn't factor when you have an employer who is a successor employer or reputed successor who steps into a new situation and is already party to some other contract.

[01:01:16] Speaker 05:
The problem is council under the burns analysis and you agree the part of the test is the majority of the employees are coming from the predecessor.

[01:01:28] Speaker 05:
And that's easily avoided here permissibly because the longshoremen contract has been signed and the red circle is in play.

[01:01:39] Speaker 05:
So you can't meet the burns test.

[01:01:41] Speaker 05:
They can easily avoid the 50% and permissibly

[01:01:45] Speaker 05:
avoid the 50% hiring.

[01:01:47] Speaker 05:
So you can't meet the third part of the burns test.

[01:01:51] Speaker 07:
No, they know they is your honor, the fact that the contract allows them to says that they have to pick ILW employees, yeah, does not allow them to violate the law, which says that you can't discriminate against which you're talking about the successor ship rule, you're talking about discrimination.

[01:02:15] Speaker 07:
If they want to pick, like I said, if they had wanted to go at this above the board and just let the chips fall where they may, hire ILWU, interview ILWU, interview IM, and have the chips fall where they may, and they ended up with a majority ILWU unit, we would not have a problem here.

[01:02:38] Speaker 07:
They intentionally discriminated.

[01:02:41] Speaker 07:
against the predecessors' employees, and they can't use the longshore contract as an excuse to do so.

[01:02:49] Speaker 05:
Okay.

[01:02:50] Speaker 05:
We're going around, sir.

[01:02:51] Speaker 05:
Yeah, gotcha.

[01:02:52] Speaker 00:
Okay.

[01:02:53] Speaker 00:
Unless my colleagues have additional questions for you, Mr. Souter, we'll hear from Mr. Rosenfeld now.

[01:03:00] Speaker 00:
Thank you.

[01:03:03] Speaker 02:
Well, let me see if I can try to make some sense out of this since I've been involved in virtually every one of these cases for the last 30 years.

[01:03:10] Speaker 02:
The drought, the fact is that Everport could have hired Stevenorts, the people who load and unload the ships and operates equipment off the street and gone non-union.

[01:03:23] Speaker 02:
They didn't have to sign the PMA agreement.

[01:03:26] Speaker 02:
But I will concede as a practical matter that they had to sign the agreement and hire longshore employees because otherwise they would have massive pickets not more than five miles from my house.

[01:03:36] Speaker 02:
And there are no other longshore, that is,

[01:03:39] Speaker 02:
workers who unload ships, who have that training.

[01:03:42] Speaker 02:
So as a practical matter as to the workers who load and unload the ships, they signed with the PMA and obligated themselves to hire Longshore.

[01:03:52] Speaker 02:
But at that point, it was perfectly clear from the get-go that Everport, ETS, would be a perfectly clear successor, a successor to the former operator, STS, who had hired the same group of Longshoremen.

[01:04:08] Speaker 02:
So our report becomes what we call a perfectly clear successor.

[01:04:12] Speaker 02:
And that's all discussed in the judge's decision at length.

[01:04:15] Speaker 02:
She's got 30 pages, 25 pages of analysis of these issues beginning roughly at page 371 or two of the joint appendix.

[01:04:26] Speaker 02:
That's also true of the watchman.

[01:04:28] Speaker 02:
It's also true of the walking bosses or other units that the aisle review represents.

[01:04:32] Speaker 02:
Perfectly clear, they're going to hire a majority of those people.

[01:04:35] Speaker 02:
They weren't going to go out

[01:04:36] Speaker 02:
and advertise for people off the street or look for other unions.

[01:04:40] Speaker 02:
But if they tried to operate nine union and hired enough longshoremen to load and unload the ships, the teachers could have come in and organized those workers and representatives.

[01:04:49] Speaker 02:
That's just not practical.

[01:04:51] Speaker 02:
It's a different story as to the mechanics.

[01:04:54] Speaker 02:
Because as Judge Edwards points out, if the IWU had enough mechanics who were available in the Port of Oakland to work at this facility,

[01:05:05] Speaker 02:
They could have simply said, if you send us all your mechanics, we'll hire them, no problem.

[01:05:10] Speaker 02:
And they would have been what we call a perfectly clear successor or successor.

[01:05:14] Speaker 02:
There would have been no discrimination because they were a successor.

[01:05:20] Speaker 02:
And they hired people from that source.

[01:05:24] Speaker 02:
The problem in this case was that as the airport recognized this problem,

[01:05:31] Speaker 02:
And they thought the solution was to hire Joe Gregorio and his companies to do the maintenance work.

[01:05:38] Speaker 02:
Gregorio has a company that works up and down the coast, from Seattle to Los Angeles.

[01:05:42] Speaker 02:
He has several hundred mechanics.

[01:05:45] Speaker 02:
That's his business.

[01:05:47] Speaker 02:
He could have supplied 25 mechanics easily to work in this facility, move them up from LA or from Seattle, and move them here and work.

[01:05:57] Speaker 02:
And had he done that, there would have been no issue of successorship

[01:06:00] Speaker 02:
because he would have been a subcontractor.

[01:06:04] Speaker 02:
Gregorio talked to them, and finally, late in October, said, I can't do this.

[01:06:09] Speaker 02:
I'm out of here.

[01:06:11] Speaker 02:
And SCS then didn't go look for another subcontractor who could perform the work, since they said, OK, we'll take it in-house.

[01:06:19] Speaker 02:
And then when they began the hiring process, they then discriminated.

[01:06:23] Speaker 05:
Jay, when you say the consequence of he would have been a subcontractor,

[01:06:28] Speaker 05:
the red circle rule would not have come into play.

[01:06:31] Speaker 05:
Is that what you're saying?

[01:06:32] Speaker 05:
The changed red circle rule.

[01:06:34] Speaker 05:
The red circle would have remained.

[01:06:35] Speaker 05:
Is that what you're suggesting?

[01:06:36] Speaker 05:
I'm trying to understand as a practical matter.

[01:06:38] Speaker 05:
In other words, if he was a sub, it's the same employer, but I'm not sure what you're saying because I'm not sure what you're doing with the control.

[01:06:47] Speaker 05:
Are you saying they couldn't sign the PMA if there was some problem there?

[01:06:52] Speaker 05:
No, they could sign it.

[01:06:54] Speaker 05:
Okay, so keep that in play.

[01:06:56] Speaker 05:
I'm listening to you, but you can't take that out of play.

[01:07:00] Speaker 05:
They signed the PMA.

[01:07:01] Speaker 05:
The PMA says something about changed employer on whether the red circle is in play or not.

[01:07:07] Speaker 05:
And that affects where they have to look for employees, as I understand it.

[01:07:13] Speaker 02:
Well, they thought that the Red Circle agreement was in play until the PMA, their association told them, sorry, it doesn't look like it's in play.

[01:07:24] Speaker 02:
And so you're going to have to find another solution.

[01:07:27] Speaker 02:
And that created the problem here because they didn't learn this until September, but they were still relying on hiring the subcontractor.

[01:07:35] Speaker 05:
OK, I'm not being unsympathetic in not understanding the practical problems in trying to deal with this.

[01:07:42] Speaker 05:
Was that impermissible?

[01:07:44] Speaker 05:
That is, the PM's in play.

[01:07:45] Speaker 05:
Was that unlawful?

[01:07:46] Speaker 05:
Is that what the board said?

[01:07:47] Speaker 05:
They signed the PM and the PMA clearly gives preference to the Longshoremen hiring law.

[01:07:53] Speaker 02:
The signing of the agreement was not unlawful.

[01:07:55] Speaker 02:
It was the application of the agreement in this case because they never became a successor to

[01:08:07] Speaker 02:
the subcontractors who were IAM represented because they couldn't find enough longshore mechanics.

[01:08:14] Speaker 02:
Again, had the same situation existed for the group.

[01:08:18] Speaker 05:
Everport never became a successor.

[01:08:22] Speaker 02:
Never became a successor legitimately and with respect to the IWU.

[01:08:28] Speaker 02:
They became a successor with respect to the IAM because the historic bargaining unit

[01:08:36] Speaker 00:
Do you think that they were right or wrong to be persuaded the way you understand the facts?

[01:08:43] Speaker 00:
And I'm not disputing that at this point.

[01:08:45] Speaker 00:
They initially thought that the red circle exception, they being Everport, initially thought that the red circle exception would continue to apply.

[01:08:52] Speaker 00:
And the way you're describing it, they were then persuaded by others that it didn't apply anymore.

[01:08:59] Speaker 00:
Was that right or was that wrong?

[01:09:01] Speaker 02:
Well, that's the right description of what happened.

[01:09:03] Speaker 02:
But as the judge points out, and the board adopted the findings at page 386 of the record, the red herring issue is really a red herring.

[01:09:12] Speaker 02:
The red circle language is really a red herring.

[01:09:14] Speaker 02:
It's sort of irrelevant to this whole thing, because whatever port did was, again, had they hired 27 mechanics in the IWU, no question, it never would have been an issue.

[01:09:27] Speaker 02:
because they would have been a perfectly clear successor, meaning from the get-go, meaning September or August of 2015, it was clear they were going to have a complete workforce or majority workforce by W members.

[01:09:41] Speaker 02:
The problem was they weren't what we call a perfectly clear successor.

[01:09:45] Speaker 02:
They couldn't make a decision which union would apply until they knew who the workforce was.

[01:09:52] Speaker 02:
If the workforce was all hired off the street, all non-union,

[01:09:56] Speaker 02:
they couldn't have applied the agreement until after those workers apply.

[01:10:00] Speaker 00:
So if it doesn't matter to you whether, if the red circle is a red herring, as you put it, or as it's been put, and it doesn't matter to you at all whether the red circle exception continued to apply, then that just means it doesn't matter to you at all what the contract requires.

[01:10:15] Speaker 00:
Right.

[01:10:15] Speaker 00:
Right?

[01:10:16] Speaker 02:
No, that's right.

[01:10:17] Speaker 02:
In this case, it doesn't matter and can't be applied, although they could sign the agreement in the spring of 2015

[01:10:25] Speaker 02:
and apply it to the longshore workers who load and unload the ships because they always intended to and everyone knew that they would hire from their predecessor SDS.

[01:10:35] Speaker 02:
They would hire all their employees.

[01:10:36] Speaker 02:
They didn't discriminate.

[01:10:37] Speaker 02:
They kept the same longshore workers coming in and when the ship showed up, they'd unload the ships, they'd load them, they'd go away, they'd come back a few days later.

[01:10:46] Speaker 02:
It was the same group of longshore, perfectly clear successor, no issue, no discrimination.

[01:10:51] Speaker 02:
But as to the mechanics, it was the reverse situation where they thought they had a plan.

[01:10:57] Speaker 02:
The plan fell apart.

[01:10:58] Speaker 02:
And then the only way that they could preserve their successorship with the IWU was to discriminate against the IAM mechanics because the IWU didn't have enough.

[01:11:08] Speaker 00:
I mean, I understand the worldview that says that

[01:11:11] Speaker 00:
Even if Everport thinks that the contract requires them to preference ILWU workers over machinists, it doesn't matter what the contract says.

[01:11:23] Speaker 00:
The law, meaning the NLRA, just doesn't allow that.

[01:11:26] Speaker 00:
You have to act as if the red circle exception just continues.

[01:11:30] Speaker 00:
The law just requires that.

[01:11:32] Speaker 00:
It's not that the contract, in fact, I understand that worldview as a conceptual matter,

[01:11:37] Speaker 00:
I guess it just, as the long argument this morning indicates, there's a lot of thought that goes into that and to understand how all these things interrelate.

[01:11:46] Speaker 00:
And I'm just not seeing that in the board's, in the ALJ's opinion that was ratified by the board.

[01:11:53] Speaker 00:
The engagement at that level that leads me to understand why it doesn't matter what the contract

[01:12:01] Speaker 00:
says and that the law, the way you're looking at it, which is that the NLRA just says, I don't care what the contract says, you still have to continue as if the red circle exception is in effect.

[01:12:11] Speaker 00:
That seems like a pretty significant conclusion as to which there's just an assumption that that has to be right.

[01:12:18] Speaker 02:
I do not agree that they had to operate as if the red circle language was in effect.

[01:12:27] Speaker 02:
PMA said the red circle language didn't apply.

[01:12:30] Speaker 02:
From the machine's point of view, we thought it did, but it made no difference because Everport had the right and need to hire people directly.

[01:12:39] Speaker 02:
They couldn't subcontract it, which was their solution.

[01:12:42] Speaker 02:
I think Mr. Soder was right that had PMMC, PCMC, Joe Gregorio taken the work, he would have a total crew would have been able to do the work.

[01:12:52] Speaker 02:
And there were other LW subcontractors who could have done the work.

[01:12:55] Speaker 02:
They just in November, that is Everport, didn't go out and try to find another subcontractor to do the work.

[01:13:02] Speaker 02:
They made the business decision to hire directly.

[01:13:05] Speaker 02:
They had already made the decision to hire directly the longshore workers, the loaders and unloaders.

[01:13:10] Speaker 02:
Now they made the decision to hire directly the mechanics.

[01:13:13] Speaker 02:
And they didn't in November know whether the crew that they hired, the 27, would be off the street, non-union.

[01:13:23] Speaker 02:
They didn't know whether they'd be IWU.

[01:13:25] Speaker 02:
didn't know whether they'd be machinists because they didn't know how the hiring would happen.

[01:13:30] Speaker 02:
So they hatched a plan in order to assure their right to continue representation of out of you to discriminate against anybody who applied.

[01:13:39] Speaker 02:
They would hire 51% out of you and 49% machinists.

[01:13:45] Speaker 02:
That was an unlawful scheme and that's what

[01:13:48] Speaker 02:
the record is chock full of, what they had to do at that point was say, this is what a successor always does.

[01:13:55] Speaker 02:
They say, we don't know who we're going to hire.

[01:13:58] Speaker 02:
We're going to operate the same business.

[01:13:59] Speaker 02:
We're going to advertise for workers.

[01:14:01] Speaker 02:
We're going to interview the former workers.

[01:14:03] Speaker 02:
And if the former workers become a majority, we will recognize the union.

[01:14:08] Speaker 02:
That's what Burns says.

[01:14:10] Speaker 02:
What they

[01:14:11] Speaker 02:
So they can hire from any source, depends on whether they hire majority.

[01:14:15] Speaker 02:
In this case, they didn't hire a majority of mechanics who were all qualified, all 27 of them, machinists, because they hired unqualified longshoremen and specifically said, we're going to discriminate and hire only 51%.

[01:14:31] Speaker 02:
And they lost the right under love's barbecue

[01:14:35] Speaker 02:
to say we are a legitimate successor.

[01:14:38] Speaker 02:
Love says you can't claim successorship status if the majority status depends upon discrimination.

[01:14:46] Speaker 02:
And normally the way it works is the successor employer says, okay, I'll hire and only hires 40% of the union workers and then 60% non-union and says, hey, we're free.

[01:14:56] Speaker 02:
We're non-union.

[01:14:57] Speaker 02:
We didn't hire a majority.

[01:14:58] Speaker 02:
Here it's the reverse.

[01:15:00] Speaker 02:
Okay.

[01:15:01] Speaker 05:
Are you saying, I don't, I'm not, one last question.

[01:15:04] Speaker 05:
I'm not following.

[01:15:05] Speaker 05:
Are you saying they were or were not a successor?

[01:15:08] Speaker 02:
I'm saying they were a successor under Burns because for two reasons.

[01:15:13] Speaker 05:
Wait, they were, they were a successor.

[01:15:15] Speaker 05:
What?

[01:15:17] Speaker 05:
I'm having trouble hearing you.

[01:15:19] Speaker 02:
Okay.

[01:15:20] Speaker 02:
There are two tests of successorship under Burns.

[01:15:23] Speaker 02:
Continuity of the work and of the organization.

[01:15:26] Speaker 02:
Right.

[01:15:26] Speaker 02:
There's no dispute with that.

[01:15:28] Speaker 02:
Number two, you have to hire a majority.

[01:15:31] Speaker 05:
I understand.

[01:15:32] Speaker 05:
What's your conclusion?

[01:15:33] Speaker 05:
Were they a successor or not?

[01:15:36] Speaker 02:
They are a successor as to the machinists.

[01:15:38] Speaker 02:
They are not a successor as to the LWU.

[01:15:41] Speaker 02:
Because they are not a successor because when the hiring was done, they discriminated against the machinists.

[01:15:48] Speaker 02:
And had they hired a majority of machinists,

[01:15:51] Speaker 02:
They would have clearly been the successor after the machinist and loves barbecue says successor cases cited by the board that when you discriminate against the former employees.

[01:16:02] Speaker 02:
And don't hire them because of their union status then or non union status, you lose the right to simply say you're free of the former obligation.

[01:16:11] Speaker 05:
What percentage, as best you know, in the pre-existing unit that was shut down and then reopened was longshoremen as opposed to machinists?

[01:16:24] Speaker 05:
What percentage were machinists?

[01:16:26] Speaker 05:
They weren't all machinists, right?

[01:16:29] Speaker 02:
No, they were.

[01:16:29] Speaker 02:
Okay.

[01:16:30] Speaker 02:
Let's go back.

[01:16:31] Speaker 02:
There are two different groups here.

[01:16:33] Speaker 05:
In the very beginning, when this first started, this area, what percentage of the employees, approximately, were machinists handling the work that was there to be done as opposed to Longshoremen?

[01:16:47] Speaker 02:
At the Nutter Terminal or in Oakland?

[01:16:50] Speaker 05:
At the very beginning, when this all started.

[01:16:53] Speaker 02:
When this all started, up until December 5, all the workers performing the maintenance work were members of the machinists.

[01:17:01] Speaker 02:
In December 5, they were terminated.

[01:17:03] Speaker 05:
Were there any longshoremen working in this area?

[01:17:07] Speaker 02:
Yes, as there were some longshoremen working on December 5 and thereafter doing longshore work.

[01:17:17] Speaker 00:
Not as maintenance workers, though.

[01:17:18] Speaker 00:
The maintenance workers were all machinists.

[01:17:20] Speaker 05:
The maintenance workers were always machinists, right?

[01:17:23] Speaker 02:
Always machinists until December 5 when they were all terminated.

[01:17:27] Speaker 02:
Then it changed because Everport began hiring

[01:17:31] Speaker 02:
to staff up a crew to, and they started hiring a few people here and there because they had to continue to do maintenance.

[01:17:38] Speaker 02:
And they hired people and then employed them through December.

[01:17:42] Speaker 02:
And then when ships started coming in, they of course hired much bigger crews of workers, the long shore workers to load and load the ships.

[01:17:49] Speaker 02:
And at that point they hired up to 27 workers, it's all on the record.

[01:17:54] Speaker 02:
And they discriminated against the machinists and favored the LWU

[01:17:58] Speaker 02:
and they lost the right under laws to claim successorship as to the out of you.

[01:18:03] Speaker 02:
They had the same navigation.

[01:18:05] Speaker 00:
I think we understand.

[01:18:07] Speaker 00:
I think we have that aspect of your argument.

[01:18:10] Speaker 00:
I want to make sure there's not any other questions that we have for you at this time, Mr. Rosenfeld.

[01:18:16] Speaker 02:
Now, let me just take off on one other point here, which is that- If you could do it efficiently, I would appreciate it.

[01:18:23] Speaker 02:
Now, I think that the board's point here is that the successorship doctrine

[01:18:29] Speaker 02:
In this context, Trump supersedes the union's agreement.

[01:18:33] Speaker 02:
I agree with the LW agreement that says we get to perform all the maintenance work.

[01:18:37] Speaker 02:
They don't in this facility, they don't in other facilities in Oakland, they don't in other facilities in Tacoma, in Seattle, because the machines represent workers for other contractors and even for some other contractors who are parties to the same agreement.

[01:18:52] Speaker 02:
It's a history error, and that's the point.

[01:18:55] Speaker 02:
Thank you.

[01:18:56] Speaker 00:
Appreciate that.

[01:18:58] Speaker 00:
Thank you, Mr. Rosenfeld.

[01:18:59] Speaker 00:
Mr. Parrish, we'll give you three minutes for rebuttal.

[01:19:03] Speaker 06:
Thank you, Your Honors.

[01:19:04] Speaker 06:
So the entire case that has been framed, both by the relief that the board has ordered and in the charge that was filed, you can see this on JA 401, was that we engaged in discriminatory practices because we did not bargain with the machinists.

[01:19:19] Speaker 06:
That's the whole case.

[01:19:21] Speaker 06:
And so the discrimination flows from the fact that we are complying with the longshore contract.

[01:19:29] Speaker 06:
And I will just highlight what we've learned for this argument because it's clarified what I was trying to articulate.

[01:19:35] Speaker 06:
But I think your questions have pulled this out.

[01:19:37] Speaker 06:
Judge Edwards, as you heard, he is not saying at the board that the contract itself is discriminatory.

[01:19:43] Speaker 06:
In fact, we know that the board has consistently said the provisions are fine.

[01:19:47] Speaker 06:
We've also heard this morning that no one disputes that the red circle is gone because of the way that Everport relates to the existing machinists.

[01:19:56] Speaker 06:
We were told that.

[01:19:56] Speaker 06:
You heard the board lawyers say we were told that.

[01:19:59] Speaker 06:
Everport was told that we must comply with that by both PMA and by the Longshoremen Union.

[01:20:05] Speaker 06:
And they are not disputing that interpretation of the contract.

[01:20:08] Speaker 06:
Judge Rao, you asked me earlier, and you've asked several times, did we have to join the PMA?

[01:20:13] Speaker 06:
The answer is yes.

[01:20:15] Speaker 06:
Then the next question is, was there anything unlawful about joining the PMA?

[01:20:19] Speaker 06:
The answer is no.

[01:20:21] Speaker 06:
Are the provisions fine?

[01:20:22] Speaker 06:
Yes, and the Ninth Circuit has held that the

[01:20:24] Speaker 06:
Longshore contract specifically covers repair and maintenance work.

[01:20:28] Speaker 06:
All of that together means that this is not us engaging in a discriminatory practice, it's us complying with the system that has been set up by the board.

[01:20:37] Speaker 06:
Judge Sreenivasan, you asked about the question of bias and you put your finger exactly on it.

[01:20:42] Speaker 06:
There is no bias here, the allegation of bias.

[01:20:45] Speaker 06:
What there is an allegation of is an employer that is trying to do its best

[01:20:50] Speaker 06:
to comply with this Byzantine rules that the board has set up and now wants to change.

[01:20:55] Speaker 06:
But the rules are that as long as we are okay to join the PMA, as long as the longshore contract is controlling, then everything else flows from that.

[01:21:04] Speaker 06:
And this attempt to try to say there's additional discrimination doesn't work.

[01:21:08] Speaker 06:
In fact, if you take a look at the longshore amicus brief, if anything, the allegations work in their favor, not in favor

[01:21:15] Speaker 06:
of the machinists.

[01:21:16] Speaker 06:
So Your Honor, I agree with, I'll just finish here, Judge Srinivasan, you are correct that at a minimum the court needs to send this back because no one can make head or tails of what the board has done.

[01:21:26] Speaker 06:
But Your Honor, if you listen to the concessions that have been made this morning and the concessions that have been made in the brief, there's only one result, which is that if they want to change the rules, they can do it prospectively, they can't do it retroactively on the idea

[01:21:39] Speaker 06:
that we've violated the law.

[01:21:42] Speaker 06:
Unless you have any questions, I want to thank the court for its time.

[01:21:45] Speaker 06:
We appreciate it.

[01:21:47] Speaker 00:
Thank you, counsel.

[01:21:48] Speaker 00:
Thank you to all counsel.

[01:21:50] Speaker 00:
We'll take this case under submission.