Appendix — Federal Maritime Commission v. Pacific Maritime Ass'n

Supreme Court brief1978

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No. 76-938

FEDERAL MARITIME COMMISSION AND

UNITED STATES OF AMERICA,

Petitioners

— 2

PACIFIC MARITIME ASSOCIATION, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR CERTIORARI FILED JANUARY 5, 1977

CERTIORARI GRANTED FEBRUARY 28, 1977

Supreme Court of the United States

OcToser TERM, 1976

No. 76-938

FEDERAL MARITIME COMMISSION AND

UNITED STATES OF AMERICA,

Petiti

—

PACIFIC MARITIME ASSOCIATION, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page

Relevant Docket Entries 1

FMC Docket No. 72-48

C.A.D.C. No. 76-1140

C.A.D.C. No. 76-1215

0 . q

Petition .. — to Amend Cuter af

Investigation 15

———— Comal to Petition — —

Petition to Sever Jurisdictional Issues 17

uur Selader tn Petitien end De —— —-„— 20

First Supplemental Order Severing Jurisdictional Issues 21

Petition of ILA to Intervene 2...

Affidavits :

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Milton A. Mowat (of — | RR EE 5

11 8

Edmund J. Flynn (of December 14, 1972) 5

B. H. Goodenough (of December 14, 19727

Curt J. 000 —————vꝙ—7r*—ͤĩÄ«ê α————5ßv5rv:˖.—

Pred Nele ————7—7—7—7—ç—çꝑ—ͤ—„⏓⸗,v«;ö *

Memorandum of Law of Hearing 2— 3 *

Memorandum of Law of IIKK¶4K¶˖w

Affidavit of B. H. Goodenough (January 10, 1973)

Reply of Hearing Counsel to Memoranda of LW

Affidavit of Milton A. Mowat (January 12, 1973)

Supplement to Original Petition by Petitioner ae

Second Supplemental Order Consolidating J urisdictional

1 —5ꝙ—————7—3———.—ç——————

Petition of Wolfsburger Transport—Gesellachaft m.b.H. for

Leave to Interwen—————.ðù⁊k—

Intervention Granted (Wolfsburger Transport—Gesell-

99599 ——ꝙ＋—r——.—7——r—r—5ßv8＋v—⸗.éꝗ.ʒů——————

Affidavit of Edmund J. Flynn (March 1, 1974)

Response of Hearing Counsel to Second — Order

Consolidating Jurisdictional Issues

Affidavits :

Edmund J. Flynn (March 28, 1974)

Milton A. Mowat (March 21, 197)

Order: Proceeding Held in Abeyance Pending Judicial Re-

Exhibits : f

180968 ———775ð“? ———ß§ß5—ł'4

PMA-ILWU Memorandum of — June 24.

— ͤ

Order of the Supreme Court granting certior arri

(The order of the Commission and the decision and judgment

of the Court of Appeals were printed in the petition for

writ of certiorari and thus need not be reprinted.)

316

Docket No. 72-48—Federal Maritime Commission

PACIFIC MARITIME ASSOCIATION—COOPERATIVE WORKING

ARRANGEMENTS; POSSIBLE VIOLATIONS OF SECTIONS

15, 16 AND 17, SHIN Act, 1916

RELEVANT DOCKET ENTRIES

S rr === ———— ——-—-— ——

DATE FILINGS—PROCEEDINGS

9-6-72—Served Order of Investigation to appear in Federal

gation is denied.

9-12-72—Appeared F.R. Page 18494, Vol. 37, No. 177.

9-11-72— Served notice assigning proceeding to Adminis-

trative Law Judge Bryant for hearing and initial decision.

9-18-72—Received notice of appearance of Edward D. Ransom

and Robert Fremlin, Lillick, McHose, Wheat Adams &

Charles as attorneys for Pac. Maritime Ass’n.

9-21-72—Received Petition of Pacific Maritime Association

to Amend Order of Investigation.

10-3-72—Received Reply of H.C. to Petition of PMA to Amend

Order of Investigation.

10-6-72—Received Petition of Council of North Atlantic

Shipping Associations.

10-13-72—Received Response of Pacific Maritime Association

to Hearing Counsel’s Reply to Petition.

10-16-72—Received Reply by Port of Seattle to H.C.’s Petition

for Severance of Jurisdictional Issues.

10-17-72—Received Joinder in Petition and Response of Inter-

national Longshoremen’s and Warehousemen’s Union

with Pacific Maritime Association for an amendment

of the Commission’s Order of Investigation and joins in

the response of the Pacific Maritime Association to H.C.’s

Reply to said Petition.

(1)

— — er

— — — —

DATE FILINGS—PROCEEDINGS

10-19-72—Served First Supplemental Order Severing Juris-

dictional Issues to appear in F. R.

—Appeared F.R. Thurs., Oct. 26, 1972—pg. 22903-22904,

Vol. 37, No. 207.

10-25-72—Petition to Intervene granted by Administrative

Law Judge to Council of North Atlantic Shipping As-

sociations.

11-1-72—Served Notice of Permission to Intervene (Port of

Seattle)

11-18-72—Received Petition of International Longshoremen’s

Ass’n, AFL-CIO, to Intervene.

12-5-72—Served notice granting permission to intervene to

ILA.

12-15-72—Received Memorandum of Port of Seattle on Sec.

15 Jurisdictional Issues (Aff. of Richard D. Ford; Peti-

tion for Severance and Stay); Affidavits of Fact and

Memorandum of Law of Attorneys for Petitioner Ports;

Memorandum and Affidavits of Pac. Maritime Ass'n.

12-18-72—Received Memorandum of Law of Intervenor Coun-

cil of North Atlantic Shipping Ass’n; Joinder by Inter-

national Longshoremen’s and Warehousemen’s Union in

the Memorandum submitted by PMA; Memorandum of

Law of H.C.; (12-15) Correction to PMA’s Legal Memo-

randum.

12-19-72—Received Memo. of Law on behalf of International

Longshoremen’s Ass’n, AFL-CIO.

1-12-78—Received Reply Memorandum of Pacific Maritime

Association on Jurisdictional Issues and Affidavit of

B.H. Goodenough.

1-12-78-—Received Reply of H.C. to Memorandum of Law.

1-12-73—Received Reply Memorandum of Port of Seattle.

1-15-78—Received Reply Memorandum of North Atlantic

Shipping Associations.

—E=— So

DATE FILINGS—PROCEEDINGS

1227 Received Memorandum of Law in Rebuttal on Behalf

of Petitioner Ports.

1-30-74—Served Second Supplemental Order Consolidating

Jurisdictional Issues to appear in F. R.

2-4-74—Appeared F.R. Page 4506, Vol. 39, No. 24.

2-25-74—Served notice granting permission to Wolfsburger

Transport-Gesellschaft m.b.H. for leave to intervene.

8-4-74—Served notice reassigning proceeding to Administra-

tive Law Judge Seymour Glanzer.

3-4-74—Received Response of Port of Seattle to Second Sup-

plemental Order Consolidating Jurisdictional Issues.

8-6-74—Received Memorandum of Law of Petitioner Ports in

Response to Second Supplemental Order Consolidating

Jurisdictional Issues.

8-18-74—Received Response of H.C. to Second Supplemental

Order Consolidating Jurisdictional Issues.

4-1-74—Received Reply Memorandum of Port of Seattle in

Response to Second Supplemental Order Consolidating

Jurisdictional Issues.

4-2-74—Received Reply Memorandum of Law of Pacific Mari-

time Ass’n in Response to Second Supplemental Order

Consolidating Jurisdictional Issues.

4-3-74—-Received Response and Supnorting Affidavit to Memo-

randum of Law of PMA ana Affidavit of Edmund J.

4-5-74—Sent memo. to Commission re responses to first and

second supplemental orders; Commission has considered

responses to the first supplemental orders.

4-12-74—Received Motion of Council of North Atlantic Ship-

ping Assens for Leave to File a Memorandum of Law to

the Reply of Petitioner Ports filed Apr. 1, 1974.

Administrative Law Judge at a date and place to be

determined and announced by presiding judge—Order to

appear in Federal Register.

2-14-75—Appeared Page 6823, Vol. 40, No. 32.

2-19-75—Received Petition of PMA to Hold Further Hearing

in Abeyance.

3-4-75—Served Judge Glanzer’s notice of proceeding held in

abeyance pending Judicial Review.

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

75-1140

PETITION FOR REVIEW OF ORDER OF THE

FEDERAL MARITIME COMMISSION

PACIFIC MARITIME ASSOCIATION, PETITIONER

FEDERAL MARITIME COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

CoUNCIL OF NORTH ATLANTIC SHIPPING A880.

Ports OF ANACORTES, ET AL., INTERVENOR

RELEVANT DOCKET ENTRIES

DATE FILINGS—PROCEEDINGS

(L) 2-18-75 4-Petitioner’s petition for review of an order

of the FMC (m-13) 42

(R) 3-28-75 Clerk’s order granting the motion of the Council

of North Atlantic Shipping Asso. for leave to intervene;

(R)4-2-756 Clerk’s order granting petitioner's motion to con-

solidate and nos. 75-1140 and 75-1215 are hereby consoli-

dated for consideration on the merits.

(R)4-8-75 Clerk’s order granting motion of the Ports of

Anacortes, et al for leave to intervene; counsel for the

intervenor in the

(R)5-7-75 Order per CJ Bazelon granting respondents’ mo-

tion for leave to have record in no. 75-1140 treated as the

record in no. 75-1215 and the Clerk shall indicate on the

docket in no. 75-1215 that the record on file in no. 75-1140

is deemed as filed therein

(G)6-20-75 15-Petitioner’s brief (m-19)

(G)6-20-75 15-Joint Appendix (m-20)

(G)6-26-75 25-Intervenor’s (Council of North Atlantic Ship-

ping Associations) brief (Corrected) (m-24) (OK-DMC)

(G)8-14-75 165-Intervenor’s (Ports of Anacortes, et al.) brief

(m-13)

(R)2-11-76 Per Curiam order sua sponte, that the parties

address this issue by supplemental memoranda to be filed

simultaneously not later than February 25, 1976; Wright,

McGowan and Tamm, CJ

23)

(H) 2-25-76 4-Respondents’ supplemental memorandum (m-

23)

ping Asso.) supplemental meme indum (m-20)

(K)2-27-76 Argued before Wright, McGowan and Tamm,

CJ; The Court directed counsel for the parties to file sup-

plemental memoranda with the Clerk on or before March

10, 1976

(G)3-8-76 4-Respondents’ supplemental memorandum (m-5)

(G)3-9-76 15-Petitioner’s supplemental memorandum (m-5)

8-27-76 Opinion for the Court filed by Circuit Judge Tamm.

8-27-76 Judgment remanding case to the Federal Maritime

Commission for further proceedings. (n)

on Certified copy of opinion and judgment issued to the

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

75-1215

PETITION FOR REVIEW OF ORDER OF THE

FEDERAL MARITIME COMMISSION

THE UNITED STATES OF AMERICA, RESPONDENTS

—_ ͤ P ß̃̃ ————

DATE FILINGS—PROCEEDINGS

(B) 2-28-75 4-Petition for review of an order of the Federal

Maritime Commission (m-25) 4-14

(R)4-2-75 Clerk’s order granting the petitioner’s in no.

75-1140 motion to consolidate and nos. 75-1140 and 75-

1215 are hereby consolidated for consideration on the

merits

(R)5-7-75 Order per CJ Bazelon granting respondents’ mo-

tion for leave to have record in no. 75-1140 treated as the

record in no. 75-1215; and the Clerk shall indicate on the

docket in no. 75-1215 that the record on file in no. 75-1140

is deemed as filed therein

(G)6-20-75 15-Joint Appendix (m-19)

(K)6-24-75 15-Petitioner’s Brief (m-19)

(K)11-8-75 15-Petitioner’s Reply Brief (m-30)

| (R)2-11-75 Per Curiam order sua sponte, that the parties

— — —

address this issue by supplemental memoranda to be filed

simultaneously not later than February 25, 1976; Wright,

McGowan and Tamm, CJ

—

DATE ~ FILINGS—PROCEEDINGS

20)

(G) 2-25-76 4-Respondents’ supplemental memorandum (m-

23)

(K)2-27-76 Argued before Wright, McGowan and Tamm,

CJ; The Court directed counsel for the parties to file

supplemental memoranda with the Clerk on or before

March 10, 1976

(G)3-8-76 4-Respondents’ supplemental memorandum (m-

(G)3-8-76 25-Petitioner's supplemental memorandum (m-5)

8-27-76 Opinion for the Court filed by Circuit Judge Tamm.

8-27-76 Judgment remanding case to the Federal Maritime

Commission for further proceedings. (n)

FEDERAL MARITIME COMMISSION

[Served September 6, 1972—

Federal Maritime Commission]

Docket No. 72-48

PACIFIC MARITIME ASSOCIATION—COOPERATIVE WORKING

ARRANGEMENTS; POSSIBLE VIOLATIONS OF SECTIONS

15, 16 AND 17, SHIPPING ACT, 1916

ORDER OF INVESTIGATION

The Ports of Anacortes, Bellingham, Everett, Grays

Harbor, Olympia Port Angeles, Portland and Tacoma

practices resulting from the implementation thereof.

Both PMA and the ILWU have filed replies urging de-

nial of Petitioners’ request.

Petitioners, are municipal corporations owning and

erating marine terminal facilities in the States of Wash-

ington or Oregon. None of the Petitioners is a member

of PMA.

PMA is a corporation and existing under

the laws of the State of California whose membership

includes steamship lines, steamship agents, stevedoring

companies and marine terminal companies operating at

Pacific Coast ports of the United States.

ILWU is an unincorporated association and is the

bargaining agent representing longshoremen, marine

checkers and dock workers with related skills, who are

employed by the members of PMA at Pacific Coast ports

of the United States.

Specifically, the agreement which Petitioners would

have the Commission investigate is a so-called Supple-

mental Memorandum of Understanding No. 4, dated April

25, 1972, which allegedly supplements a master collec-

tive bargaining agreement establishing the “hiring halls”

which must be utilized by Petitioners to obtain longshore

labor. As regards the Supplemental Memorandum, Pe-

titioners explain that:

directly employing any member of the joint work

force, and that any nonmembers’ “separate ILWU

contract” must conform to said Memorandum. Any

nonmember who fails to conform to the manpower

allocation and the referral system of the PMA and

ILWU is disqualified from employing any member of

the joint work force. Said Memorandum subjects

nonmembers to payment of assessments and dues and

acceptance of proportional liability as to obligations

of the PMA and its member companies, and compels

such nonmembers to submit to the labor policies of

the PMA as respects strikes and lockouts.

Petitioners submit that the aforementioned Supple-

mental Memorandum as well as the underlying master

collective bargaining contract are “agreements” within

the meaning of section 15 of the Shipping Act, 1916,

which should be filed for Commission approval pursuant

to that section.

Further, Petitioners maintain that the Supplemental

Memorandum and the practices contemplated thereby are

detrimenta! to the commerce of the United States, con-

trary to the public interest, unfair, unjust, discrimina-

tory and unduly prejudicial and violative of sections 15,

16 and 17 of the Shipping Act, 1916 in that they:

(1) Would permit the PMA and the ILWU to

monopolize, dominate and control the business of mov-

}

storage

(2) Would force shippers and consignees to deal

with nonmembers of the PMA, including the Peti-

tioners’ ports, on terms substantially less

PMA’s response to the petition for investigation denies

all but a few unessential allegations contained therein.

the strength of the fact that the ILWU, one of the

contracting

. 2

Commission has no authority over the agreements be

tween it and PMA.

The Commission has considered this petition by. these

such

“eontracts” involve underlying agreements among and

between the members of PMA they are within the Com-

mission’s jurisdiction and should be made subject to a

formal investigation.

THEREFORE IT IS ORDERED, That pursuant to

section 22 of the Shipping Act, 1916, (46 U.S.C. 821)

an investigation be instituted to determine :

randum

standing No. 4 entered into by PMA and the ILWU

embody any agreements between and among the

members of PMA, which agreements are subject to

the requirements of Section 15 of the Shipping Act,

1916 (46 U.S.C. 814) and should be filed for ap-

proval under that section, or whether such agree-

ments otherwise exist ;

ILWU of the master collective bargaining contract

and Supplemental Memorandum of U i

No. 4 will result in any practices which will subject

any person, locality or description of traffic to

or unreasonable prejudice or disadvantage in

tion of section 16 of the Shipping Act,

U.S.C. 815);

Whether

unreasonable

ping Act, 1916 (46 US.C. 816) ;

4. Whether any labor policy considerations would

operate to exempt these agreements or Prien 18.

sulting therefrom from any provision of section 15,

16 or 17 of the Shipping Act, 1916; and

are

IS FURTHER ORDERED, That a public hearing

be held before an examiner of the Commissions Office

FINALLY, IT IS ORDERED, That the motion of the

ILWU to dismiss the petition for investigation is denied.

By the Commission.

/s/ Joseph C. Polking

JosEPH C. POLKING

Assistant Secretary

[SEAL]

BEFORE THE FEDERAL MARITIME COMMISSION

[Received Sept. 21, 1972

Caption Omitted}

PETITION OF PACIFIC MARITIME ASSOCIATION

TO AMEND ORDER OF INVESTIGATION

t Pacific Maritime Association (PMA) here-

by petitions the Commission for an amendment of its

Order of Investigation, dated September 6, 1972, on the

following grounds:

Section 15, the Commission rule t is

within the labor exemption from the Shipping Act adopted

in the Commission’s decision of August 25, 1972, in

United Stevedoring Corp. v. Boston Shipping Ass’n., Doc-

ket No. 70-8, or that if the agreement is not within said

ILWU-PMA Nonmember Participation Agreement.

The issue of the approvability of the Nonmember Par-

ticipation Agreement, or under agreements between

of the aforementioned filing of the agreement this issue

before the Commission for determination. In

ty of issues in this investigation and in

by requests that the investigation in Docket No. 72-48

be broadened by amending the Commission’s Order of

or any underlying agreements between PMA members

embodied therein are subject to Section 15 and are not

within the labor exemption from the Shipping Act, that

said agreement or agreements be approved pursuant to

Section 15.

Dated: September 19, 1972.

Respectfully submitted,

EDWARD D. RANSOM

ROBERT FREMLIN

LILLICK, McHose, WHEAT, Apams & CHARLES

By /s/ Edward D. Ransom

EDWARD D. RANSOM

811 California Street

San Francisco, California 94104

Attorneys for Respondent PMA

[Caption Omitted }

REPLY OF HEARING COUNSEL TO PETITION

TO AMEND ORDER AND PETITION TO SEVER

JURISDICTIONAL ISSUES

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BEFORE THE FEDERAL MARITIME COMMISSION

Received Oct. 17, 1972

[Caption Omitted]

JOINDER IN PETITION AND RESPONSE

Reply to said Petition.

DATED: October 12, 1972.

Respectfully submitted,

GLADSTEIN, LEONARD, PATSEY

AND ANDERSEN

By /s/ Norman Leonard

NORMAN LEONARD

Attorneys for INTERNATIONAL

LONGSHOREMEN’S AND

WAREHOUSEMEN’S UNION

1182 Market Street

San Francisco, CA 94102

Telephone: (415) 626-3077

FEDERAL MARITIME COMMISSION

[Served October 19, 1972—

Federal Maritime Commission |

[Caption Omitted]

FIRST SUPPLEMENTAL ORDER

SEVERING JURISDICTIONAL ISSUES

for

PMA has now submitted the PMA-ILWU

mental Memorandum of Understanding No. 4 for a de-

Port 2 a

termination of its subjectivity to section 15 and, should

it be found subject to that section, for its approval. By

virtue of the aforementioned filing of the agreement and

in view of “the identity of issues in this investigation and

in any consideration of approvability”, PMA has con-

currently filed therewith a Petition requesting that the

Commisison amend its Order of Investigation in this

proceeding to include as an issue for determination the

approvability of the PMA-ILWU Supplemental Memo-

randum and any underlying agreements embodied therein.

proceeding for an expeditious determination. This Peti-

tion is well taken. The issues relating to ble preju-

dicial, discriminatory, or detrimental resulting

from implementation of the subject agreements by their

nature require resolution on the basis of a fully de-

veloped evidentiary record. However, the purely legal

Commission

such agreements pursuant to section 15 may not involve

genuine issues of material fact and, consequently, may be

determinable on the basis of affidavits of fact and memo-

randa of law. Should it appear from the affidavits and

memoranda that genuine issues of material fact do exist,

ty of obtaining tious tion

of the critical threshold issue. In addition, the Commis-

sion wishes to consider the of the subjectivity

well as the Supplemental Memorandum and the under-

lying agreements embodied in both.

THEREFORE, IT IS ORDERED, That the first or-

dering p ph of the Commission’s Order of Septem-

ber 6, 1972, be amended as follows:

No. 4 entered into by PMA and the ILWU and any

agreements between and among the members of

PMA embodied therein should, if found subject to the

ts of section 15 of the Shipping Act, 1916,

and found not within any labor exemptions, be ap-

a ey a a ee

IT IS FURTHER ORDERED, That pursuant to sec-

22 of the Shipping Act, 1916, 46 U.S. C. 821, the

and oral argument. Should any party feel that an evi-

dentiary hearing be required, that party must accompany

any request for such hearing with a statement setting

forth in detail the facts to

re-

quired to be filed with the Secretary, Federal Maritime

Commission, Washington, D.C. 20573. Copies of any

papers filed with the Secretary should also be served

upon all parties hereto. Time and date of oral argu-

ment if requested and/or deemed necessary by the Com-

mission will be announced at a later date; and

IT IS FURTHER ORDERED, That notice of this or-

der be published in the Federal Register and that a copy

thereof and notice of hearing be served upon Petitioners

and both the Pacific Maritime Association and the Inter-

national Longshoremen’s and Warehousemen’s Union, in-

— and on behalf of their respeetive members;

IT IS FURTHER ORDERED, That notice of this or-

der and notice of hearing be mailed directly to the De

partment of J ustice, the Department of Labor and the

National Labor Relations Board; and

IT IS FURTHER ORDERED, That all future notices

issued by or on behalf of the Commission with regard

to this phase of the proceeding shall be mailed to Peti-

tioners, the Pacific Maritime Association and the Inter-

IT IS FURTHER ORDERED, That the proceedings

before the Presiding Administrative Law Judge be stayed

pending determination of the severed issues by the Com-

By the Commission.

/s/ Francis C. Hurney

FRANCIS C. HURNEY

Secretary

[SEAL }

26 27

BEFORE THE FEDERAL MARITIME COMMISSION and Employers are in many respects analogous to the

collective bargaining agreement in effect between the

Received Nov. 13, 1972] Pacific Maritime Association (PMA) and the Interna-

tional =" and Warehousemen’s Union

(Caption Omitted] (ILWU). petition, which seeks an investigation

pursuant to Section 22 of the Act of a collec-

tive bargaining agreement Petitioner. It is the pos

ment, interests of Petitioner. It is the posi-

PETITION OF INTERNATIONAL ment involved in the petition of Ports of Anacortes,

LONGSHOREMEN’S ASSOCIATION, AFL-CIO, ne ope ty he ten, etal

agreements to which your

TO INTERVENE Petitioner herein is a party, are neither subject

Shipping Act of 1916 nor to the jurisdiction of

F EF

Your Petitioner, INTERNATIONAL LONGSHORE-

MEN’S ASSOCIATION, AFL-CIO, (ILA)

I. That Petitioner is an unincorporated association

(labor organization) with its principal place of business

at 17 Battery Place, Borough of Manhattan, City and

State of New York.

II. Petitioner and its affiliated Locals are parties to

collective bargain! ts with Employer-

ville, Texas, Puerto Rico, the Great Lakes and Canada.

III. The collective bargaining agreements, as afore-

said, cover the terms and conditions of employment of

Petitioner’s members who are engaged in longshore work

guar

(lighter-aboard-ship operations) .

IV. The collective bargaining agreements in effect be-

tween Petitioner and the various Employer-Associations

WHEREFORE, Petitioner, having a substantial in-

terest in the matters before the Commission, respectfully

leave to intervene and be treated as a party

herein at all stages of the proceeding.

Dated: New York, N.Y.

November 2, 1972

Respectfully submitted,

GLEASON & MILLER

/s/ Thomas W. Gleason

THOMAS W. GLEASON

A member of the firm

Attorneys for Petitioner,

International Longshoremen’s

Association, AFL-CIO

1450 Broadway

New York, N.Y. 10018

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 15, 1972]

[Caption Omitted]

AFFIDAVIT OF FACTS RELATIVE TO

SEGREGATED ISSUE OF JURISDICTION

STATE OF OREGON )

) ss

COUNTY OF MULTNOMAH )

depose and say: I am one of the attorneys for the peti-

tioner ports in the above entitled proceeding and make

1972 during which time the said parties discussed vari-

ous aspects of Supplemental Memorandum of Under-

phrased accounts of what was said by the individuals

indicated.”

The substance of said notes, as they relate to the fore-

going issues, are summarized as follows:

November 16, 1970 Session—First Meeting

Article XVI of the ILWU Contract Demands, attached

to the notes of said meeting, provided as follows:

“The contract to provide that PMA will accept all

fringe benefit contributions from any employer,

whether or not such employer is a member of the

PMA.” .

December 7, 1970 Session—Second Meeting

At the meeting, the PMA delivered a letter, dated

December 7, 1970 to Mr. Bridges and his Committee.

Paragraph XVI of that letter contained the following

demand:

“The Employers propose that all applicable Sections

of the Agreement be amended to eliminate nonmem-

ber participation under any provisions of the Agree-

ment unless they are not permitted by law to become

members of the Association. Further, the Employers

Agreement be amended as of July 1, 1971 to exclude

nonmember participation.”

With respect to such demand, the following colloquy

occurred at the meeting:

Bridges: We intend to do this. Explain what you

mean on item XVI.

Goodenough: So far as the Employers are con-

cerned, we want all those who participate to be PMA

members. Otherwise, we don’t want any partici-

pating in the benefits.

December 9, 1970 Session—Third Meeting

During the meeting, the following colloquy occurred:

Bridges: There are many ways.

February 3, 1971 Session Sixth Meeting

During the meeting the following colloquy occurred:

Goodenough: When you are talking public docks February 18, 1971 Session—Eleventh Meeting

6 are you talking about section At the meeting, the following colloquy occurred

Bridges: Yes, with some enlargements. Bridges: We will put the freight forwarders and

Ward: Another example is where a third party consolidators out of business. We will double handle

sets up a business and no longshoremen are used the cargo and you pay the bill. We will force the

and no PMA employers are involved. others into line.

Goodenough: There are bona fide industrial Goodenough: It is fine to say these tings, Dut

docks. These are not in on. We then have the

not use the vessel?

Bridges: No! We know what you are leading to. Goodenough: We yo.s Bet of Ginge Se os

The hei! with the courts and the NLRB actions.

February 4, 1971 Session—Seventh Meeting Bridges: an offer and inelude all these

During the meeting the following colloquy oreurred: ~~ ote PMA wl be gg poe

Bridges: On Page 18, on the fringe benefits, if you wish, and we will handle non-PMA compa-

what do you mean by “unless such nonmember is nies first.

prohibited by law . . .“

L : i or — 4 are laws gov- March 12, 1971 Session—19th Meeting

erning port authorities which p bit them from .

joining PMA. There is also the military. During the meeting, the following colloquy occurred:

Bridges: Explain what you mean by amending Bridges: Here's what we have in mind. We real-

agreements to exelude nonmember participation. ize there are many complications. We are talking

Goodenough: We have supplemental plans today about longshore work beyond Section 1 as described.

that allow use of ILWU labor and payments into You are saying the cargo is delivered and PMA has

various funds. It is our position that if they don't no control. There are variations which include in-

belong to the “Employers’ Union” then they cannot volvements with Port properties. These should be

participate in any of the benefit plans and this will handled at the local level.

apply to all non-PMA members. Goodenough: You are saying to us that, when

At the meeting, the PMA representatives presented a r ~

further draft of proposals, entitled PMA Draft No. 4-A. you would deal with the party doing work outside

Arie XVI, ened Fringe Benet, Cotsitins 8 te haring FHA, oer

or re-

spect to the December 7, 1970 Session. tions. What if the local party is a non-PMA mem-

PMA member. We simply get rid of the problem During the meeting the following colloquy occurred:

here and deal with it locally.

Goodenough: You can only be talking about a Bridges: You want the option and a CFS docu-

non-PMA member. ment.

Bridges: If it is a PMA member doing the work Goodenough : Our proposal only refers to the

we are talking about we would negotiate with him. Teamster jurisdiction on the dock and likewise the

Goodenough: If a PMA member releases control, forwarders and consolidators.

then your problem is with the non-PMA member. Bridges: Why can’t we settle that problem on

Ward: The key to this is the idea that you re- the containers?

lease control of the cargo while it is on your prem- Goodenough: There is no way for us to put con-

ises, and then others do the work we are talking tainer stuffers out of business. The consolidators

about. In a sense, you suvcontract. and forwarders are not PMA members.

Goodenough: We don’t subcontract. Bridges: Then there is no hope of an agreement

* . . . between us.

Bridges: We want to correct this by changing

the language so as to avoid — 1 — March 31, 1970 Session Twenty - Sixth Meeting

authorities are involved. We want to get it

to a local level and handle it there. We are only ana — — the following colloquy occurred

dealing with the terminal operation. respect to container freight stuffing:

There ollowed discussion which is not reported Ward: The Fact Finding Team has experience

— ; along these lines. Take Matson and PMT, for in-

March 26, 1971 Session—Twenty-Third Meeting 9 Fay come n them?

During the meeting, the following colloquy occurred : Cancel

with respect to the proposal of PMA that the problem of Goodenough: What is the implication?

jurisdiction be handled by way of a guaranteed annual dges :

wage:

: We think our proposal is the only

way to handle the issue. There is little significance

in the number of forwarders and consolidators con-

mean. They would all be treated the same—mem-

bers and nonmembers. Maybe we would charge the

nonmembers more. Give me an answer on what you

mean by fragmenting your members—this concerns

me.

Goodenough: Try Paragraph 1.5(2) under the

transition. The nonmember company has a legal

right.

ori : The best you have on this is up to June

30. The document disappears. Section 1.534 covers.

Goodenough: Why doesn’t 1.5(2) cover it? The

nonmember company delivers cargo to himself and

has a legal right to do this. This is what Sea-Land

and U.S. Lines do.

Bridges: The answer is just the same. The way

you spell it out is illegal. You will find out on June

30.

Goodenough: Our stevedores would like to stop

those containers, but they can’t.

Bridges: I agree they want the work, but they

can tell those people they can’t handle those contain-

ers.

Goodenough: What about port authorities who

employ longshoremen? What about Local 9 vs. Local

19, for instance. Will this continue?

Bridges: No.

Goodenough: If company off dock employs ILWU

help—say a consolidator employs Local 13 or Local

10—will these containers go?

Bridges: Yes.

Goodenough: Assume Local 6 and Local 9 signs

agreements with nonmembers. Will these containers

go?

Bridges: We will straighten that situation out

ourselves with our locals. The same goes with the

port authorities. We won't bother you with this.

You are talking about the Port of Seattle. We are

going to give our local the same treatment as the

Teamsters. 5 1 5

Goodenough: If I can get these zone descriptions

from each area, can we discuss on this basis?

Bridges: If port commissions are within the zone

area, are they included?

Goodenough: If within the zone area, then I as-

sume yes.

Bridges: All port operations will be included.

Goodenough: If they are a member company,

then they will be covered. If it is a nonmember and

they have an agreement with you, then you play

“footsies”.

Bridges: We are not talking about the Port of

Seattle, not Peoria or Chieago.“

Goodenough: Then we can talk constructively

regarding the zone concept?

Bridges: Yes.

Goodenough: Then I understand, (1) in_port

operations where the problem is between two ILWU

segments, you will handle and (2) where member

companies have agreements and they are terminated

they will move to the ILWU and there is no relief

on the IBT; on nonmembers with CFS operations,

they must come under the terms of our CFS agree-

ment and, in the instance of nonmember steamship

companies, they are to be told by the PMA steve-

dore that their containers cannot be handled.

Bridges: I assume you are talking about prob-

lems on the ninety days’ cancellation. We don’t want

you to do anything illegal.

Ward: We told you earlier that what we would

do with nonmember steamship companies. We won't

work them.

April 8, 1971 Session—Thirtieth Meeting

At the meeting, the PMA submitted a revised proposal

dated the same date. Article XVI relating to fringe

benefit contributions contained the same language as ear-

lier proposals; i.e., eliminating nonmember participation

under any provisions of the agreement unless such non-

member is prohibited by law from becoming a member

of PMA. Also, amending all supplemental agreements

h Ag it appears in the minutes. The third word in the first line—

„not“ should probably be now.

to the Coast Agreement to exclude nonmember partici-

pation on and after the effective date of the new agree-

ment.

In the colloquy which occurred relating to the fringe

benefits, the following was stated:

Loveridge: On the fringe benefits, what is the

reason?

Goodenough: We don’t want non-PMA members

sharing in the “goodies”.

June 4, 1971 Session—Thirty-Fourth Meeting

In the meeting, the following colloquy occurred :

Goodenough: Let's say we made a mistake and

we start to work out a CFS agreement that will

work. What about the consolidators and forwarders?

Bridges: Put them out of business. We'll help

June 7, 1971 Session—Thirty-Sizth Meeting

During the meeting, the following colloquy occurred:

Goodenough: On paid holidays, our position is

there shall be four paid holidays effective in 1973.

On the fringe benefit contributions, our position re-

mains the same on nonmember participation.

Bridges: What does that mean?

Goodenough: It means that those nonmember

companies will have to figure out for themselves how

to handle vacations, pensions, and welfare.

Bridges: Could we agree that a nonmember pays

a dollar an hour more?

Goodenough: That nonmember is dealing with

you—not through a PMA member.

Bridges: We agree in principle. Let’s find a way

to do it legally.

Goodenough: That is spelled out in our April 8

document.

Bridges: This is another way of saying that they

all must deal through a PMA member.

Goodenough :

tinued to work during shut downs.

At this point the minutes disclose the following:

Discussion)“

Bridges: On this point, we agree in principle.

We will have to make up our mind what we do.

August 30, 1971 Session—Forty-Third Meeting

The following colloquy occurred during the meeting:

: On Page 12, Item XVI, Fringe

Benefit Contributions.

Bridges: How do we do that?

Goodenough: Under the PMA Bylaws, we will

offer membership.

Bridges: Put it this way—any contract we

reached in the strike will only apply to PMA mem-

bers. It will not apply to anybody else.

Goodenough: I am not sure what you are saying.

Bridges: We'll only include PMA members in our

contract and will not include any non-PMA members

without your approval.

Goodenough: Right.

Bridges: So they will still be on strike. The

agreement cannot apply to anybody without your

approval. We could reach agreement with them at a

slight charge. You don’t need our permission for

this. We see nothing wrong with it.

40 41

September 18, 1971 Session—Fifty-Eighth Meeting

In the meeting, the following colloquy occurred with

respect to the container stuffing issue.

: We have the same problem with other

ports who are not PMA members, but we have no

answer. The easy way would be to force them into

PMA.

Bridges: Is that what you propose?

Flynn: No. We are interested in protecting the

work opportunity that normally would be under the

Coast Agreement. The moving party—meaning you

Bridges: We will think about it.

Flynn: We have gotten involved with lawyers

and we need language to protect the work and juris-

diction of longshoremen. It is needed for defense

against

be included in our document—it is not aimed at driv-

ing people out of business.

Bridges: We have to be careful of language.

Language covering work, yes, but not jurisdietion.

Flynn: Some provision of the agreement could

be held illegal. The tax —it is applicable o various

kinds of cargo and could be held discriminatory.

Would it apply to all cargo?

Bridges: Would that cover Sea-Land? He is a member of PMA, unless such cargo is first unstuffed

member. Maybe a different tax. and restuffed by a PMA member under the terms

Flynn: Do you mean to tax them less? of the PCLACA or this CFS supplement.”

Ra * load inside the zone—do |

ve the same tax January 11, 1972 Session—Eighty-Second Meeting

Flynn: Yes. Any other questions? or

Pig a! Titer ee At a meeting the following colloquy occurred :

Bridges: We have no interest in the tax. We Bridges: On your zone concept didn’t you pro-

want the guarantee. pose double handling for nonmembers?

Flynn: Yes, but we can’t have it for our mem-

September 19, 1971 Session—Fifty-Ninth Meeting bers.

In the meeting, the following colloquy occurred : Bridges: For our members we want double han-

dling.

January 31, 1972 Session—Eigthy-Sizth Meeting

At the meeting, the first items of discussion were as

follows:

Bri : We'd like to discuss your demand for

your — shop. We think it's illegal but we think

it’s all right.

: There is no consensus on this side of the

table that we'll go out on strike for this demand.

(The proposal as to nonmember participation was

; rotracted

tions disclose that written proposals were invariab at-

tached to the minutes of the meetings, in this instance the

proposal as to nonmember participation is missing).

Bridges: We agree with that—supplemental

agreements.

Flynn: If the supplemental agreements are bet-

ter, we want the benefit of them.

Bridges: We mean better from our side. We are

not against it.

Flynn: Take into consideration the New York

case of freight forwarders using non-ILA labor. The

court said it was proper for the New York Shipping

Association to deny that company membership.

Bridges: I think we are talking about no non-

members would be party to our funds.

Bridges: I assume you still have an escape clause

for members. Now nonmembers under your proposal

would have to become members.

Flynn: We'll give them a ninety day grace period.

They can sign a letter of intent.

Bridges: If we sign an agreement with a non-

PMA company that is the same or better than the

one we negotiate and we do it right now, we would

have to have a clause in that agreement saying they

will join PMA.

Flynn: And by joining PMA they would be bound

by agreement with you.

Flynn: And to join our Union they have to abide

by our agreements.

Bridges: You've always said no cheaper deals.

Flynn: We've always said they should not be

inconsistent with our contract.

Bridges: Let's say sixty days or no contract un-

less they join your Union.

Flynn: If an employer wants to participate in

the functions they have to join.

Bridges: What's the penalty if they don’t?

Flynn: They would not be under our funds—

welfare, pensions or vacation plan or be able to use

the dispatch hall.

Bridges: How do we enforce that? It gets down

to compulsory unionism. I promised the grain com-

panies to explore this subject. If we sign up to-

morrow, we could say unless they join PMA within

thirty days that contract would be cancelled.

: We can’t tell you what to do or a way

to get around it. We would look at the agreement

and if it is not inconsistent with ours we would ad-

mit that company. If we had not yet reached agree-

ment with you, we would table their membership

application until we did.

February 6, 1972 Session—Eighty-Ninth Meeting

During the meeting, the following colloquy occurred:

: Let's go over the other major items. We

still have retroactivity and economic items remain-

ing for discussion. Now the items that are

non-economic are (1) manning—LASH sh and RO-

a 0

RO; (2) clerks’ jurisdiction; (3) PMA nonmember

participation proposals; and (4) steady skilled men

(being discussed at the local level).

Bridges: We said that if the Union follows a

principle then we would make you whole. What’s

your nonmember proposal mean?

Flynn: We want the grain elevators to join PMA.

Bridges: We agree that this contract won’t cover

grain ships until they join PMA.

Bridges: On your distressed ports we will accept

as written. On all the other items let’s negotiate

until Wednesday night, then if no agreement we will

go to the arbitrator, but it won't hold up a settle

ment.

Bridges: IRS, grievance machinery, stop-work

meetings, high-piling, industrial docks, nonmember

participation, pending lawsuits, protection against

dispatch call lawsuits, manning, clerks’ jurisdiction,

union’s scope of work (industrial docks).

February 8, 1972 Session—Ninety-First Meeting

At the meeting, Mr. Kagel, the arbitrator, stated as

follows: “I request that we have a subcommittee avail-

able this afternoon for two purposes: (1) To go over all

agreed documents and (2) Begin going over the non-

economic items. We can do this today and tomorrow

and I now find I can do it on Thursday and Friday,

if necessary.”

Immediately following the February 8, 1972 meeting,

a press conference was held at which time Mr. Kagel

announced that the ILWU and PMA negotiating com-

mittees had reached agreement on all economic issues.

The statement also stated that certain specific non Seo.

nomie issues will be mediated and if necessary, arbitrated

by Sam Kagel.

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 15, 1972]

[Caption Omitted]

AFFIDAVIT OF FACTS RELATIVE TO

SEGREGATED ISSUE OF J URISDICTION

STATE OF OREGON .

CouNTY OF MULTNOMAH )

I, MILTON A. MOWAT, being first duly sworn upon

oath depose and say: I am the Manager, Regulatory Af:

fairs, of the Port of Portland, one of the petitioner

ports. I make this affidavit of

to me, at my request, by the cognizant officials of each

individual port, for incorporation in this affidavit on be-

half of all petitioner ports.

The relevant data is set forth for each petitioner port

in the alphabetical order of such petitioner ports.

Geographical Location of Petitioner Ports

Port of Anacortes:

Bellingham:

North terminal, consisting of be

to end 1,500 feet long; berth B

shed space and 90,400 square foot sprinkled trans-

it and warehouse space.

South terminal consists of one berth 450 long, with

a water depth of 50 feet below mean lower low water,

together with 118,000 square feet of sprinklered

warehouse space together with a Burlington North-

ern Railway rail connection.

1,000 vessel capacity Squalicum Small Boat Harbor

and industrial area with cold storage capacity to

60,000,000 pounds.

Bellingham International Airport:

Small boat harbor at Blaine, Washington with a 500

vessel capacity. The industrial fill at this location

holds a varied group of enterprises as well as prop-

erty for future industrial expansion.

Everett:

Depository for alumina ore shipped from Jamaica,

including a specially designed crane unloader, stor-

construction, a log back-up storage and wood chip

handling facility comprising 17 acres of fill.

Current includes a new concrete pier and

p terminal which, when leted,

gether with associated marinas, an airport, indus-

trial lands, industrial buildings and industrial de-

velopment districts.

Quay type ocean pier 2,100 feet in length backed

by 70,000 square feet of transit sheds and 30 acres

of open cargo yards, together with associated cargo

handling equipment.

Two deep water piers, providing three berths and a

dolphin facility which provides two additional berths,

together with all necessary associated cargo hand-

ling equipment.

Portland:

Marine facilities include three terminals with 22

general and alized berths capable of handling

containers, roll-off, general cargo, motor ve-

hicles, liquid and dry bulk commodities, including

1,100,000 square feet of covered area and 3,500,000

square feet of cargo area to handle in transit

cargoes. In tion, 8 storage warehouses for the

combined storage capacity in excess of 376,000,000

square feet. The Port also owns and operates large

quantities of industrial lands, as well as the Port-

50 51

SERVICES PERFORMED BY PETITIONER PORTS

UTILIZING ILWU PERSONNEL AND IMPACT OF

IMPLEMENTATION OF THE SUPPLEMENTAL

MEMORANDUM UPON THE RENDITION

OF SERVICES

Port of Anacortes:

four berths for the handling of logs and other bulk

and outside storage; associated cargo handling facili-

ties including seven large cranes and other loading

and unloading facilities. Also, a railroad yard fa-

cility capable of handling and storing 185 rail cars

within the switching yard, plus operating

Total Investments of Petitioner Ports

ILWU personnel utilized in servicing of vessels to

and from dockside storage facilities, loading rail-

cars and trucks, and performing handling and proc-

Port Present Investment Budgeted or Proposed essing services in and about the warehouses. All

1 $4,506,816 $700,000 cargo handled at the port utilizes ILWU members.

Bellingham 13,800,000 ote All marine facilities at the port are owned and op-

Everett 12,000,000 ——— erated by the port. There are no facilities leased to

Grays Harbor ae 4 “4 stevedoring companies or other members of PMA.

—— 4,500,000 570.000 Stevedoring companies, members of PMA, perform

Portland 44,000,000 21,667,000 the work of loading and unloading cargo to and

(marine tncitition enty) from vessels, utilizing ILWU personnel.

Tacoma 40,016,011 — Local Contracts, Relates to storing of canned salmon

. n port’s storage warehouses. workers may be

Tonnage Handled by Petitioner Ports out on a minimum 4-hour basis to load out

(Figures are from last available fiscal year) one or two trucks requiring not more than one-half

290,282 day. This deviates from the Coast Agreement re-

Anacortes 506.000 quirements and, if eliminated, would cost additional

Bellingham amounts for labor

Everett 709,016 .

Grays Harbor 2,300,000

Olympia —.— Impact of the Supplemental Memorandum:

— - 2.375.008 (1) If the port refuses to execute the Supplemen-

Tacoma 2,244,593 tal Memorandum, it would be denied to use of

ILWU personnel. The ILWU would not permit any

Total ILWU Payroll for Bach Petitioner Fort WU pace. Rabil te employ 1EWU —

(Data for last available fiscal year) na n 1 N the com-

$246,242.54 p 8 on 290,

— — $114,428.13 000 tons of cargo during the last fiscal year and

Everett $ 60,009.85 applying the accepted benefit figure of $15 per ton

Grays Harbor $363,146.00 to the community, the resultant loss to the community

Olympia $190,618.66 in dollars would be $4,350,000. In addition, the loss

— — mannan of additional payroll to personnel other than ILWU

Tacoma $1,491,652.63 personnel would exceed $200,000.

erly the cost-of-service of such stevedoring companies.

While the concentration of cargo flows in a few, se-

lected ports might achieve certain operating efficien-

cies, it would result in severe losses to local pro-

ducers, shippers and manufacturers whose business

operations lie within the tributary area of the port.

(3) If the port executes the Supplemental Memo-

randum, it would entail an cation of its re-

sponsibilities to the public whose monies built the

port facilities; delegate to a private organization

(the PMA) its authority with respect to labor

policies and p res relative to longshore and ter-

minal employees; and would violate state laws gov-

erning public port bodies.

Port of Bellingham:

ILWU personnel utilized in the usual terminal serv-

ices associated with cargo from a land-based

facility to shipside and versa, including load-

ing and unloading rail cars and trucks, high-piling

cargo for storage, of cargo from place of

rest on the dock to the ship’s gear and vice versa,

and the checking of cargo.

All marine facilities at the port are owned and op-

erated by the port. No operational areas

to the Port of Anacortes. Based on 506,000 tons

oie ope e of 8 por on i te

app t per

overall community, the resultant loss to the com-

munity in dollars would be $7,590,000. In addition,

roxima 125 direct port jobs, exclusive of

ILWU personnel, would be terminated immediately,

representing an annual payroll of $1.1 million dol-

— 4 31.6 million dollars in annual

te operations revenues would be lost. Such

revenues are new' monies coming into the port

distriet from outside its tributary area to which a

would continue loading and ships as

ployees of PMA stevedoring if the

were to hire non-ILWU personnel to perform i

terminal services is purely academic. No such

Heer a BET

at . J

Hl i (if tag

1 1 F in ii 12111

i111 at 117 4 12415 2845

f ! f

il e ie He 15 11125 a

4926215 112175 it

1 aia! wi pity

5 1 723 if ra 38 322 85

l f i 1

1 25 ie

fi ate

His Bib

133723 232 A

All marine facilities at the port are owned

erated by the port. There are no to

stevedoring companies or other members of PMA.

Stevedoring companies, members of PMA, perform

the work of loading and unloading cargo to and

cost.

Impact of the Supplemental Memorandum:

See, generally, the data set forth above with respect

to the Port of Anacortes. The same situation pre-

vails at this port. Based on 668,887 tons of cargo

port personnel other than ILWU

personnel would exceed $92,000 annually.

personnel are utilized in providing handling

Le., delivery of cargo from last place of rest

the ship’s work. All cargo handled at the port

tilizes ILWU personnel.

All marine facilities at the port are owned and oper-

ated by the port. There are no facilities leased to

stevedoring companies or other members of PMA.

Stevedoring companies, members of PMA, perform

the work of loading and unloading cargo to and from

vessels, utilizing ILWU personnel exclusively.

Local Contracts. Relates to using checkers from the

ILWU local rather than obtaining them from the

Checkers’ Union in Seattle. If this arrangement

were terminated by virtue of the Supplemental

Memorandum, it would result in additional travel

expense and travel pay with respect to importing

checkers from the Seattle area.

Impact of the Supplemental Memorandum:

See, generally, the data set forth above with respect

to the Port of Anacortes. The same situation pre-

vails at this port. Based on 866,000 tons of cargo

during the last fiscal year, and applying the accepted

benefit figure of $15 per ton to the community, if

the port were denied the use of ILWU personnel,

the resultant loss to the community in dollars would

be $12,990,000. In addition, the loss of additional

payroll to personnel of the port other than ILWU

personnel would be approximately $350,000 per an-

num.

Port of Portland:

The port employs three general categories of labor

that are ILWU personnel. The dockmen, from

ILWU Local #8, load and unload containers, rail

chines, cranes, and miscellaneous stevedoring equip-

ment. Men from the Local are also used to

crosses the docks and that cargo stored in the port’

warehouses. Local #92, the Foreman-Walking Boss

Local, supplies the foremen that supervise the long-

shore gangs. These three locals are the only source

of labor which the port uses in its marine terminal

operations. Such personnel have sole labor jurisdic-

tion over the movements of cargoes over the public

marine terminals operated by the Port of Portland.

The port owns and operates all of the public marine

terminals in Portland with two exceptions. These

two exceptions are: The Matson Navigation Com-

pany lease from the port of approximately five acres

of yard area and the preferential assignment of

Berth No. 408 which Matson utilizes in handling

container ships in the Hawaiian trade; and the

Brady-Hamilton Stevedoring Company lease of the

Sea-Land Service Dock to load logs for export to the

Orient. There are specialized privately owned ma-

rine terminal facilities in the Portland area which

handle bulk grain, limestone, wood chips, iron ore,

salt, fertilizer, and paper products, but there are no

other public marine terminal facilities except those

owned and operated by the port.

Local Contracts. The port has the privilege of ob-

taining “self-supervising checkers” from Local #40.

It thus has the privilege of reducing the manning

complement to only one man to receive and deliver

cargo if the work load is at a minimum and the fa-

cility must be kept open. This one man can receive

and deliver freight by himself without the necessity

marine terminal facilities, the loss of revenue to

Are

181

* 25

option and has performed the stevedoring services in

several instances. This flexibility promotes true com-

petitive bidding.

Port of Tacoma:

ILWU personnel are utilized directly by the

all terminaling operations performed on its

2 2

fa?

111

Fae

117

t hiring hall. Stevedoring companies, members Notary Publie for Oregon

PMA, — the work of and unloading My Commission Expires: 3/23/76

loading work aboard vessels, would refuse

cargo which was handled by non-[LWU members

that in the past was performed by ILWU members.

In short, it would result in complete closure of all

port operations.

Impact of the Supplemental Memorandum:

See, generally, the data set forth above with respect

to the Port of Anacortes. The same situation pre-

vails at this port. Based on 2,244,593 tons of cargo

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 15, 1972

[Caption Omitted]

AFFIDAVIT OF RICHARD D. FORD

STATE OF WASHINGTON )

)

CouNTY OF KING )

RICHARD D. FORD, being first duly sworn, upon

oath deposes and says that:

STATUS OF AFFIANT

1. My name is Richard D. Ford. I am the Deputy

General Manager and Legal Officer of the Port of Seattle,

an Intervenor herein. My business address is Post Office

Box 1209, Seattle, Washington 98111.

2. In my capacity as General Manager of the Port of

Seattle, I have an extensive knowledge of the marine

terminal operations of the Port of Seattle. In addition,

I have knowledge of marine terminal operations at United

States West Coast Ports. I have personal knowledge of

the matters contained herein.

3. This affidavit is made pursuant to an order of the

Commission served October 19, 1972 severing jurisdic-

tional issues for independent and expeditious determina-

tion.

STATUS OF PARTIES

4. The Pacific Maritime Association (PMA) is a

multi-employer bargaining unit representing steamship

lines, stevedoring companies, and marine termina! opera-

tors on the United States Pacific Coast.

5. The International Longshoremen’s and Warehouse-

men’s Union (ILWU) represents employees engaged in

longshore, marine clerk, and warehouse work on the

United States Pacific Coast.

727151

ith

brs

tera

Hit

3682 f

eie

Boe

cere

—

the PMA and ILWU on February 10, 1972 (herein-

after referred to as the basic agreement). The basic

agreement governs the performance of longshore and

marine clerk work at West Coast Ports. The agreement

was not complete but left certain specific areas subject

to later agreements. Among these subjects was the status

of non-PMA employers of ILWU labor.

b. Supplemental Memorandum of Understanding No.

4. Supplemental Memorandum of Understanding No. 4

is entitled “ILWU-PMA Nonmember Participation

Agreement” and was entered into on or about April

25, 1972 (hereinafter referred to as the nonmember

agreement). The nonmember agreement was prepared in

a form which was separate and apart from the basic

agreement and which was to be executed by non-PMA

members who employed ILWU labor.

ACTS OF PMA TO COMPEL SEATTLE TO

BECOME A PMA MEMBER

10. As will be shown herein, the nonmember agree-

ment is not a bona fide collective bargaining agreement,

but rather is, instead, a device designed by PMA to

compel independent employers to join PMA or become

subject to their regulation. The promulgation of the non-

member agreement is only the latest in a series of actions

by PMA to compel the Port of Seattle, and other non-

PMA member ports, to join PMA.

11. The PMA has been and continues to be dominated,

directed and controlled by ocean carriers, stevedoring

companies and other who have their headquarters and

large financial investments within the State of Cali-

fornia. The voting and other provisions of its organiza-

tional agreement and bylaws of the PMA are designed

to perpetuate the domination of such members over the

policies and affairs of the PMA, no matter how many

additional members are admitted. Should the Port of

Seattle be forced to join the PMA, the Port of Seattle

would consistently be outvoted on matters of concern

to it; for example, ocean carriers have one vote for each

50,000 tons of cargo, while port members only have one

vote; 11 of the 15 directors of the PMA are selected

by ocean carriers and the other four are selected by the

remaining members; 6 of the 7 director members of

the PMA Executive Committee must be ocean carrier

selectees; and the Board of Directors may by majority

vote suspend or expel any member.

12. On December 23, 1970, a letter was sent to the

Port of Seattle, among other ports, from PMA, request-

ing those ports to join PMA. The letter threatened to

exclude non-PMA members from the use of PMA-ILWU

hiring halls and from participation in PMA-ILWU bene-

fit plans. This threatened action would prevent the Port

of Seattle from hiring longshore and marine clerk labor

from ILWU Locals 19 (longshoremen) and 52 (checkers).

As will be discussed below, such action would seriously

disrupt the operation of marine terminal facilities at the

Port of Seattle.

18. On January 29, 1971, representatives of PMA

visited Seattle for the express purpose of soliciting non-

PMA member ports, including Seattle, to join PMA. At

a meeting of representatives from Northwest Ports, rep-

resentatives of PMA again requested that the Port of

Seattle become a PMA member.

14. On February 26, 1971, representatives of PMA

organized a meeting of Pacific Northwest Ports at

Sacramento, California, with the objective of compelling

the Port of Seattle, and other ports, to join PMA.

15. In June of 1971, just prior to the commencement

of the Pacific Coast longshore strike, I had several tele-

phone conversations with Mr. Ben Goodenough, Vice

President of PMA and one of PMA’s principal negotia-

tors with the ILWU. Mr. Goodenough again requested

that the Port of Seattle join PMA. Mr. Goodenough told

me that unless Seattle joined PMA, Seattle could ex-

pect to be excluded from the use of PMA-ILWU hiring

halls and from the participation in PMA-ILWU benefit

plans. Mr. Goodenough made it clear that PMA did not

intend to permit a major operating port like Seattle to

remain outside PMA.

warehouses unless and until the Port of Seattle

THE CFS AMENDMENT

16. On February 10, 1972, PMA and ILWU executed

a Memorandum of Understanding containing a provision

at page 25 and numbered paragraph 1.55 of the Con-

tainer Freight Station Supplement which would have the

effect of irreparably harming the business of the Port

of Seattle. The subject provision would require that con-

tainers destined for non-PMA facilities employing ILWU

labor (such as the Port of Seattle) be t unstuffed

by a PMA member employing ILWU labor. This pro-

vision would not apply, by its terms, to a con r

destined for a facility operated by a PMA member. The

practical effect of paragraph 1.55 (hereinafter referred

to as the CFS amendment) was to require the double

dling of maritime container cargo destined for Port

0 acquiesced to PMA’s demands and became a

PMA

17. On March 9 and 10, 1972, I had telephone con-

versations with the aforementioned Mr. Goodenough. Mr.

Goodenough personally participated in negotiations con-

ducted between the PMA and the ILWU. Mr. Good-

told me that the CFS amendment was drafted

to take care of what was regarded as “the Seattle prob-

lem” and the plain inference I drew from my conversa-

tion was that the PMA intended to penalize the Port

of Seattle so long as Seattle remained outside the PMA.

18. On April 4, 1972, the Port of Seattle instituted

an antitrust action against the Pacific Maritime As-

sociation, International Longshoremen’s and Warehouse-

men’s Union, and their affiliated members and locals for

the purpose of enjoining implementation of the CFS

amendment. Port of Seattle v. Pacific Maritime Associa-

tion and Internationa’ Longshoremen’s and Warehouse-

men’s Union, et al., United States District Court, West-

ern District of Washington, Civil No. 214-72C2. An or-

der has been issued by the Federal District Court for

the Western District of Washington restraining the PMA

and ILWU from implementing the provisions of the CFS

amendment. The case is now awaiting trial.

THE NONMEMBER AGREEMENT

19. On July 24, 1972, the Port of Seattle received a

letter from PMA and ILWU under date of July 20, 1972.

A copy of the letter is marked “Exhibit A” and at-

letter further advised that if the Port

quired to employ ILWU labor on the same terms as mem-

bers of PMA (3), and must specifically forfeit any ad-

10). At the conclusion of the ing basic

FEA te can te Mibais Tr

negotiations (Paragraph 9). The agreement is ;

PMA and ILWU must agree on any termina of the

obligations imposed the nonmember (Paragraph 13).

22. The terms of the nonmember agreement would com-

pel the Port of Seattle to accept labor policy as dictated

by PMA. The terms of the agreement are designed so

as to make it more onerous to be a nonmember of the as-

sociation than to be a member. A nonmember, for in-

stance, is required to pay dues, but has no vote in the or-

ganization. Furthermore, while a PMA member may

resign its membership, a nonmember is bound in perpe-

tuity under the nonmember agreement. In summary, the

nonmember agreement is only the latest and most bla-

tent attempt to force the Port of Seattle (and other

ports) into joining PMA.

SEATTLE REFUSES TO JOIN PMA

23. After a thorough consideration of the alternatives

involved, the Port of Seattle advised PMA and ILWU

of the Port’s letter rejecting the ILWU-PMA demands

is marked Exhibit C“, attached hereto, and is by this

reference incorporated herein as if set forth in full. As is

stated in the letter, it is the policy of the Port of Seattle

to remain an independent employer of longshore labor.

The legislature of the State of Washington has vested

in the Port Commission of the Port of Seattle the re-

sponsibility for the determination of labor relations pol-

icy for the Port. Execution of the nonmember agree-

ment would constitute an unlawful delegation of legis-

lative authority from the Port of Seattle to PMA. The

Port of Seattle desires and intends to remain an inde-

pendent operating Por

24. As set forth in Exhibit D, the Port of Seattle

funding of joint PMA-ILWU employee trust funds.

EFFECT OF DENIAL OF LONGSHORE LABOR

25. If the Port of Seattle is denied access to longshore

labor from ILWU Locals 19, 52 and 98, the Port will be

terminal facilities owned and operated by the Port of

Seattle: Terminals 20, 37, 90, 91, 102 and 115. The

closure of these marine terminal facilities would seriously

disrupt the flow of maritime commerce through the

of Seattle.

26. The Port of Seattle is a leading west

for transpacific commerce. The Port has been, is now, and

will be pursuing an extensive program for the acquisition

of land, the construction of facilities, and the ordering of

extensive equipment to handle maritime cargo. In par-

ticular, the Port of Seattle has concentrated on the

velopment of containerized general cargo. The book

of the Port of Seattle’s investment in marine land, facili-

ties and equipment (including work then in process) in

1971 increased by over $25,000,000.00 to in excess of

$137,000,000.00. This increase was due in substantial

part to improvements in the Port’s container handling

capability. The Port has extensive plans for the further

utilization and expansion of existing container facilities

and for the development of new container facilities. If

. in this

that marine terminal facilities of the Port of Seattle

fect upon competition in maritime commerce and related

industries both at the Port of Seattle and on the west

coast of the United States generally. The Port of Seattle

is the largest “operating” port on the United States

Pacific Coast. Many port authorities, particularly in

California, are mere landlords of marine terminal facili-

ties which are leased to PMA members. While the Port

of Seattle leases some marine terminal facilities to PMA

members, the Port of Seattle independently owns and

operates the terminals which are enumerated in para-

graph 25. If the Port of Seattle is denied access to

ILWU labor, it will not be able to operate marine termi-

nal facilities. The Port of Seattle may be forced to lease

those facilities to PMA members, which would substan-

tially lessen the competition for maritime traffic. If the

Port of Seattle were required to close its marine termi-

nals, there would be a substantial adverse effect on com-

merce and also a lessening of competition. The anticom-

petitive effect of a denial of access to longshore labor

cannot be doubted, but the Port of Seattle stands pre-

pared to offer additional evidence, including statistical

information, on the effect of such a denial.

PMA-ILWU NEGOTIATIONS

28. In my capacity as Deputy General Manager and

Legal Officer of the Port of Seattle, I have knowledge

relating to the course of negotiations between the PMA

and ILWU which led to the conclusion of the basic agree-

ment and nonmember agreement. In addition, the Port

of Seattle has in its possession, and I have examined,

copies of minutes from PMA-ILWU negotiating sessions

between November 16, 1970 and February 8, 1972. These

minutes provide some evidence as to the intentions of

the parties in the execution of both the basic agreement

and the nonmember agreement.

29. With regard to the basic agreement, the Port of

Seattle has taken the position that the CFS amendment

contained at page 25 and numbered paragraph 1.55 is

an unlawful attempt by PMA and ILWU to adversely

affect the competitive status of the Port of Seattle as an

independent marine terminal operator. The basis of

Seattle’s claim is set forth in full in the Port of Seattle’s

ILWU work force. Thus, the impact of what has been

styled a “collective bargaining agreement” will lie not

ber agreement will have a direct result in the immediate

termination of the use of the ILWU work force by non-

PMA members.

BARGAINING NOT IN GOOD FAITH

32. The collective bargaining which led to the non-

member agreement was not conducted in good faith.

There was a prior design by PMA members to use the

;

existence of the collective bargaining process to thrust

unprecedented demands upon non-PMA member port au-

thorities. The PMA-ILWU negotiating minutes show

that on February 4, 1971, PMA submitted at the nego-

tiating sessions a draft contract which was entitled num-

ber 4-A.

Paragraph XVI of that draft (page 18) provides in

pertinent part as follows:

“Amend all applicable sections of current agreement

to eliminate nonmember participation under any

provisions of the agreement unless such nonmember

is prohibited by law from becoming a member of

PMA. Amend all supplemental agreements to the

Coast agreement to exclude nonmember participa-

tion on and after effective date of the new agree-

ment.”

The existence of PMA draft 4-A shows that PMA, and

not the union, originated the demand for exclusion of

nonmembers.

33. In later negotiating sessions, PMA representa-

tives obtained the acquiescence of labor representatives

in developing a program which would force nonmembers

into joining PMA. On the 58th meeting of negotiators

on September 18, 1971, the following dialogue was re-

corded between Mr. Edward Flynn, representing PMA,

and Mr. Harry Bridges, representing the ILWU:

“Flynn We have the same problems with other

Ports who are not PMA members, but we have no

— The easy way would be to force them into

MA.

Bridges Is that what you propose?

Flynn ‘No.’ We are interested in protecting the

work opportunity that normally would be under the

Coast Agreement. The moving party—meaning you

—should propose an answer. Will you give us a

proposal?

Bridges We will think about it.

Flynn We have gotten involved with lawyers and

we need language to protect the work and jurisdic-

“Flynn What about the other public docks who

are not PMA members???

Bridges Our agreement with the Port of Seattle

is hanging fire.

Flynn You were more effective with them—they

pay no attention to us.”

SUBJECT OF NONMEMBER AGREEMENT

APPLIES TO NONMEMBERS

111221

‘i i 1

NEED FOR EVIDENTIARY ——

/s/ Richard D. Ford

31245

is 1 1

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7 5 -

tab: tf vil 5

sha . i ate

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1 sh

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8 127 8

da eee

STATE OF WASHINGTON

— — —

COUNTY OF KING

Richard D. Ford, being first duly sworn, on oath,

deposes and says: That he has read the foregoing affi-

davit, knows the contents thereof, and believes the sam

to be true as stated.

/s/ Richard D. Ford

RICHARD D. Forp

Subscribed and sworn to before me this 14th day of

December, 1972.

% Michael B. Crutcher

Notary Public in and for the State of

Washington, residing at Seattle.

Exnrisit A“

July 20, 1972

Received Jul. 24, 1972, Exeeutive Dept., Port of Seattle]

;

this letter. On this basis each may use the PMA-ILWU

joint work force and participate in the several plans

involved until August 19, 1972.

Pacific Maritime Association and the International

is s and Warehousemen’s Union have reached

agreement on a new ILWU-PMA nonmember participa-

tion agreement. By agreement between the

nonmembers who wish to participate in the

PMA-ILWU joint work force in the future

425

585

une

382821

ile

C. J.

urer, Pacific Maritime Association, P.O. Box 786

Francisco, California 94120. The signatures of

ternational of the ILWU, as well as PMA, will

F F

125

gee

175

sedi

Nonmember Participation Agreement will no longer

ply to your company.

There is enclosed a schedule of the current payments

for participation, with the effective dates of each, which

are the same for members and nonmembers.

INTERNATIONAL LONGSHOREMEN’S AND

WAREHOUSEMEN’S UNION on behalf of

itself and all longshore and clerks locals

in California, Oregon and Washington

/s/ (Illegible}

/s/ IIllegible]

PACIFIC MARITIME ASSOCIATION

on behalf of its members

/s/ Ed. J. Flynn

Exuisit B“

ILWU-PMA NONMEMBER PARTICIPATION

AGREEMENT

The PMA-ILWU jointly registered work force (here-

inafter referred to as the “joint — 22 —

a result of the registration process ng in

under successive Pacific Coast Longshore and Clerks

ts (herein called “PCLCA”) and the Walking

Bosses and Foremen’s Agreement. These agreements have

work force have jobs“ in which they work on an in-

basis

or related to the movemen — N

from ships in California, Oregon ;

— are not members of PMA. The

1. A business entity not a member of PMA must par-

ticipate in this ILWU-PMA Nonmember Participation

if it uses men in the joirt work force.

2. The nonmember participant’s separate ILWU con-

members of PMA. The nonmember participant shall ob-

tain men, units of men and of men through the

allocation system operated by from the dispatching

halls operated jointly by ILWU and PMA. If a non-

member participant obtains men within the joint work

force other than through the allocation system or the

dispatching system referred to herein, such nonmember

participant shall thereafter be disqualified from use of

the joint work force, subject to the conditions of para-

a. A nonmember participant may obtain and employ

a man in the joint work force on a steady basis in the

same way a member may do so. When such participant

employe 2 man to work on a steady basis, it shall notify

PMA immediately. On request from PMA, each such

participant shall furnish to PMA a list of men it is

using on a steady basis. Steady men shall participate

in the Pay Guarantee Plan in accordance with the rules

that are adopted by PMA and ILWU.

b. For purposes of 1.53 through 1.57 of the Con-

tainer Freight Station Supplement (CFSS) of the

PCLCA, a nonmember participant who uses the joint

work force at terms and conditions of employment no

more favorable to the nonmember participant than those

provided under the PCLCA, including the CFSS, may be

deemed to be a “member of PMA” insofar as it is 80

using the joint work force.

Note: If a prospective nonmember participant has an

agreement with the ILWU which provides for utilization

of the joint work force at terms and conditions of em-

ployment more favorable to the nonmember than those

provided under the PCLCA, including the CFSS, such

nonmember must alter that agreement to conform to the

PCLCA, including the CFSS, in order to become a non-

member participant.

4. The nonmember participant shall participate in the

ILWU-PMA Pension Plan, the ILWU-PMA Welfare

Plan, the PMA Vacation Plans (longshoremen and clerks,

and walking bosses/foremen) and the ILWU-PMA

Guarantee Plans (longshoremen and clerks/ and walking

bosses/foremen) in accordance with the terms applicable

to such participation. Such nonmember shall make pay-

ments into these Plans at the same rates and at the same

times as members of PMA are to make the respective

payments. Attached are statements of terms and con-

ditions currently in effect with respect to such participa-

tion. Nonmember Participants shall be subject to the

same audits as members of PMA.

5. The nonmember participant shall use the PMA cen-

tral pay system and central records office and must sign

the stand“ d forms of participation documents for the

PMA member company for purposes of

termining the individual longshoreman’s eligibility for

i tee, promotion,

transfer, advancement in registered status, seniority, and

all other aspects of his work history as a member of the

of PMA or of the PMA membership with re-

spect to any PMA action in the PMA-ILWU collective

bargaining and contracting relationship that is covered

Hit

gies

fl:

111

7831

= 3

‘

apply to each nonmember participant the same as it

applies to PMA members provided written notice there-

of is given by PMA to the nonmember t. The

nonmember participant so notified shall the PMA

labor policy in regard to such situation as its labor

10. A nonmember participant who carries on work

during any work stoppage within the PCLCA or the

Walking Bosses and Foreman’s Agreement contract period

or during any post-contract strike or lockout in knowing

violation of any labor policy of PMA referred to in para-

graphs 8 through 9 hereof

right thereafter to obtain

work force. Any

12. It is believed that all provisions of this agreement

are now lawful, and it is

tinue to be lawful. Should there at any

upon

notice of the termination of this entire agreement.

13. The ILWU-PMA Nonmember Participation Agree-

ment shall be binding and continue in effect without a

terminal date, unless jointly terminated by the PMA

and ILWU. An entity may terminate its participation

work force nor to participate in the Pension, Welfare,

Vacation and Pay Guarantee Plans existing between

ILWU and PMA.

Dated:

Agreed to by

(Participant)

Approved by

INTERNATIONAL LONGSHOREMEN’S AND

WAREHOUSEMEN’s UNION, on behalf

of itself and all longshore and clerks

locals in California, Oregon and

Washington

Approved by

PACIFIC MARITIME ASSOCIATION

on behalf of its members

EXHIBIT C“

’ PORT OF SEATTLE

P.O. Box 1209

Seattle, Washington 93111

August 2, 1972

Pacific Maritime Association

P.O. Box 7861

San Francisco, California 94120

International Longshoremen’s &

Warehousemen’s Union

150 Golden Gate Avenue

San Francisco, California 94102

Re: ILWU-PMA Nonmember Participation Agreement

Gentlemen :

The Port of Seattle is in receipt of your letter dated

July 20, 1972, together with your proposed form of

“ILWU-PMA Nonmember Participation Agreement.”

By your cover letter you advised that the Port of

Seattle, as a nonmember of the Pacific Maritime Associa-

tion, is required to enter into the ILWU-PMA Nonmem-

ber Participation Agreement before August 19, 1972, or

suffer involuntary exclusion from the use of ILWU long-

shore labor on the docks of the Port of Seattle.

You are aware that the Port of Seattle has tradi-

tionally employed members of the II. WU longshore work

force and that it is essential to the operation of the

Port’s marine facilities that such traditional hiring be

continued in the future. You are further aware that

the Port of Seattle enjoys independent contracts with

ILWU Locals 9 and 52 which are currently in full force

and effect. The Port of Seattle has always paid its fair

share of the cost of PMA hiring halls and contributions

to joint PMA-ILWU employee trust funds.

The proposed nonmember agreement restricts the use

of ILWU longshore labor solely to participants in the

ILWU-PMA Nonmember Participation Agreement. Sepa-

rate agreements between nonmembers and ILWU locals

become subject to the overall terms of the Nonmember

Participation Agreement. A nonmember is required to

pay PMA dues in the same amount as a PMA member

and also becomes financially liable for other PMA ob-

ligations. Nonmembers must observe work stoppages or-

dered by PMA. In summary, the proposed agreement

confers upon an nonmember all the responsibilities of

PMA members but without the right to vote to determine

PMA policy.

The proposed agreement can only be designed to coerce

the Port of Seattle, and other affected ports, into joining

PMA. The Port of Seattle will not acquiesce in such a

demand.

The Port of Seattle does not accept the terms of the

proposed nonmember agreement. It is the policy of the

Port of Seattle to remain an independent employer of

longshore labor. Furthermore, the legislature of the State

of Washington has vested in the Port Commission of the

Port of Seattle the responsibility for determining labor

relations policy for the Port. Execution of the proposed

nonmember agreement would effectively delegate to PMA

that responsibility. Apart from any other considerations,

such a delegation of authority would be in violation of

the law of the State of Washington.

The Port of Seattle stands willing to continue in its

use of ILWU longshore labor on the same terms as it has

in the past. The Port of Seattle will bear its fair share

of PMA assessments for contributions to the maintenance

of hiring halls, reasonable overhead expenses of PMA,

funds. The Port of Seattle would be willing to formalize

those undertakings in a written agreement with PMA

and ILWU. But the Port of Seattle cannot and will not

delegate to the Pacific Maritime Association its authority

to determine matters of labor policy.

This is a matter of vital importance. The Port of

Seattle respectfully requests your early response to this

letter. So that there is no misunderstanding, please be

advised that in the event PMA and ILWU insist on im-

plementation of the proposed nonmember agreement, the

Port of Seattle will have no other option but to avail it-

self of whatever legal remedies it may have to insure

the continued use of ILWU longshore labor and to resist

efforts by PMA to coerce the Port into association mem-

bership.

Yours very truly,

/8/ Richard D. Ford

RICHARD D. Fox

uty General M

RDF: mn 1 mr aed

BEFORE THE FEDERAL MARITIME COMMISSION

[Received Dec. 15, 1972

Docket No. 72-48

AFFIDAVIT OF EDMUND J. FLYNN

Crry AND COUNTY OF SAN FRANCISCO )

)

STATE OF CALIFORNIA 88.

Edmund J. Flynn, being first duly sworn, deposes and

says:

I am the president of Pacific Maritime Association.

Pacific Mari Association (PMA) is a maritime em-

ployers’ collective bargaining association of some 120

steamship operators, terminals, stevedores and related

companies covering the entire United States Pacific Coast,

excluding Alaska.

After many years of relative peace on the waterfront,

representatives of the PMA and the ILWU entered into

negotiations for a new contract, the existing contract

terminating June 30, 1971. I participated in all of the

negotiations. The first official negotiating meeting took

place November 16, 1970. Negotiations continued through

ninety-one (91) before the Memorandum Of

U ~~

dated 10, 1972 was signed. On

July 1, 1971, ILWU went on an extended strike.

Nonmember P t was not one

of the subjects resolved by the 10th Memo-

randum. It was included as a subject which would sub-

sequently be resolved by further or mediation,

The question of non-PMA members participation in

the ILWU-PMA fringe benefit program and any other

facets of the agreement between the ILWU and PMA

was a matter of arms-length negotiation between the

Union and the PMA from the beginning to the of

the fifteen months of negotiations leading to final agree-

ment. At the very first meeting on November 16, 1970

the Union presented a document entitled “Contract De-

mands” which included the following:

“XVI. Fringe Benefits Contributions

The contract provide that PMA will accept all

fringe benefit contributions from any employer

whether or not such employer is a member of the

PMA.“

At the second meeting of the negotiating committees

held December 7, 1970, PMA presented its response to

the ILWU’s Contract Demands and PMA’s Item XVI,

Fringe Benefit Contributions, reads as follows:

“XVI. Fringe Benefit Contributions.

The Employers propose that all applicable Sec-

tions of the Agreement be amended to eliminate non-

member participation under any provisions of the

Agreement unless they are not permitted by law to

become members of the Association. Further, the

Employers propose that all supplemental agreements

to the Coast Agreement be amended as of July 1,

1971 to exclude nonmember participation.”

It is apparent from the foregoing that the ILWU and

PMA at the outset of the negotiations were at the op-

posite ends of the pole on the question as to participation

by nonmembers in various ~ jointly adopted and

agreed to by PMA and ILWU. While nonmember par-

ticipation was brought up from time to time in the course

of a long period of negotiations, the parties were more

directly concerned with the direct economic issues and,

hence, this subject was not fully explored until after

settlement of the other issues as I mention above. PMA

repeated its same demands in a memorandum dated

is an ob-

vious advan to nonmembers, not only in having

available the PMA-ILWU workforce but also having the

substantial economic benefit of funded programs involv-

ing thousands of employees, rather than to have to es-

created additional administrative burdens to PMA to

have nonmembers participate in some joint ILWU-PMA

programs but not necessarily in all.

While a nonmember has been thus permitted to have

benefits of the efforts of PMA in establishing a joint

workforce and to have a choice of the fringe benefits,

From the Union’s standpoint there is an advantage

in having some of its members able to continue to work

for nonmembers PMA members operations are

shut down. On the other hand, as has long been recog-

nized by Mr. Bri president of the ILWU, there are

advantages to the Union in having the employers unified

on a coastwise basis. This has been a goal of the Union

as well as PMA.

It was in no sense the objective of PMA in

the Union’s agreement to the Nonmember Participation

with the PMA-ILWU joint workforce was grossly in-

equitable, difficult to administer, put the members at a

competitive disadvantage and should nct continue.

The nonmember employers with which the PMA was

most concerned were those stevedoring employers who

loaded or discharged cargo using the PMA-ILWU joint

workforce and availed themselves of the fringe benefits

and PMA services while taking adv

pages involving PMA. The public ports rarely do

doring, do not load and discharge ships themselves and

hence do not concern the PMA members and PMA labor

ment No. 4) holds out to nonmembe

portunity to have many of the benefits of PMA member-

ship but at the same to incur some of the obligations.

Not only was it not the motive of PMA and ILWU

in Supplement No. 4 to put any nonmembers out of

business or injure them but also the agreement does not

have that effect. In the first place neither joining PMA

nor entering into a nonmember agreement are onerous;

secondly, ILWU and nonmembers have full freedom to

enter into collective bargaining contracts; and thirdly,

and clerks are available outside the ILWU-

PMA joint registered workforce.

There is no t between PMA and ILWU that

would prevent ILWU from supplying labor to anyone.

There is no agreement expressed or implied between

PMA and ILWU as to the terms negotiated with a non-

member must be equal or better than those negotiated

with PMA. Nor is there any agreement between PMA

and ILWU that would require a nonmember stevedor-

ing company, terminal company, public dock or steamship

company to employ PMA-ILWU registered longshore-

men unless such company desired to participate in the

PMA fringe benefits. In the past if the Union and a

nonmember negotiated a contract which included PMA’s

benefits they would have to get PMA’s consent to use

the PMA administrative machinery for such benefits.

In sum, neither ILWU nor nonmembers are restricted

in bargaining with each other by the Nonmember Par-

— Agreement (Supplement No. 4) under inves-

There are longshoremen and clerks who are members

of the ILWU and who are not a part of the PMA-

ILWU joint, registered workforce. There are also workers

—

of nonmembers who perform functions of longshoremen

and clerks on the Pacific Coast who do not belong to

the ILWU. Further, there is nothing to prevent another

nonmember starting his own workforce and providing his

own fringe benefits.

Thus, any nonmember of PMA who does not choose

to sign the Nonmember Participation Agreement or join

PMA is not prevented from continuing or beginning any

business. The principal difference between the situa-

tion before the new Nonmember Participation Agree-

ment (Supplement No. 4) and after it is implemented

is that such participating nonmember could no longer

pick and choose which part of the total package he de-

sires. He also can no longer have the benefits without

concomitant responsibilities.

One of the obligations which petitioners object to is

the provisions of Article 6 that the nonmember participant

shall pay to the PMA “an amount equal to the dues and

assessments that a PMA member would pay.” In theory,

this provision is imminently fair. Why should PMA

members subsidize nonmembers? In practice this pro-

vision makes little or no change in the payments now

made by nonmembers who use the joint workforce and

participate in the fringe benefits. Such a nonmember

has always paid (and is still paying since Supplement

No. 4 is suspended) manhour dues which helps defray

the cost, though not the entire PMA cost, of dispatching

hall and administration of the fringe benefit program.

The other dues or assessments paid by PMA members

are tonnage dues. These dues are paid by the vessel

operator if he is a PMA member. If the vessel operator

is not a PMA member then the tonnage dues are paid

by the stevedoring company. However none of the pe

titioning ports are stevedores, none of them load or

unload ships themselves. So they do not now pay the

tonnage dues and they would not pay tonnage dues on

signing the Nonmember Participation Agreement.

Supplement No. 4 does require that the nonmember

who signs the agreement use the PMA central pay sys-

tem and central records. There is an assessment to de-

fray the cost. Most nonmembers who use the joint work-

foree now use the PMA central pay system and central

records. It is a bargain. The cost is far less than would

be incurred if the nonmember were to undertake the func-

tions of the central pay system and central records on

their own. There is an advantage in maintaining com-

plete records and in coordinating payments through

PMA’s central pay system. In fact, it is a great ad-

ministrative inconvenience to the longshoremen and to

the employer of longshoremen if the employer does not

use PMA’s central pay system. This is one of the rea-

sons to require its use by those who sign the Nonmem-

ber Participation Agreement.

Supplement No. 4 would also require a nonmember who

signs the Participation Agreement to abide by PMA’s

labor policy. Simply stated that means if PMA mem-

bers are denied use of the hiring hall and denied the use

of longshoremen through a strike, nonmembers would

agree not to use the hiring hall and not to employ ILWU

longshoremen. On the other side of the picture, if PMA

determined that its labor policy called for a legitimate

lockout and members refused to employ ILWU labor, the

nonmembers would do so also. This is a part of the be-

lief by PMA that nonmembers should not be permitted

“to have their cake and eat it too.” Nor should PMA

members be placed at a competitive disadvantage vis-a-

vis nonmembers. Some of the examples of what has

occurred in the past and which makes this provision

necessary and reasonable are outlined in the Affidavit

of Mr. Ben Goodenough.

I should like to stress that the Nonmember Participa-

tion Agreement in all its aspects has been a frequent

subject of discussion and collective bargaining between

PMA and ILWU. It directly relates to the typical collec-

tive bargaining matters of the mechanics of the use of

the hiring hall, distribution of the workforce, availability

of the important fringe benefits including pensions, wel-

fare, vacations and pay guarantees, and the orderly ad-

ministration of such programs.

/8/ Edmund J. Flynn

EDMUND J. FLYNN

President

Pacific Maritime Association

Subscribed and sworn to before me this 14th day of De-

cember, 1972.

/s/ (Tllegible}

Notary Public

BEFORE THE FEDERAL MARITIME COMMISSION

[Received Dec. 15, 1973

Docket No. 72-48

AFFIDAVIT OF B. H. GOODENOUGH

City AND CouNTY OF SAN FRANCISCO )

)

STATE OF CALIFORNIA .

B. H. Goodenough, being first duly sworn, deposes and

says:

My name is B. H. Goodenough. I am Vice President,

Shoreside Labor Relations, Pacific Maritime Association

where I have been employed for fifteen years. I have

been an active participant in all negotiations for collec-

tive bargaining agreements between Pacific Maritime

Association and the International Longshoremen’s and

Warehousemen’s Union since 1957, and am responsible

for employer contract administration of those agreements.

The subject of the participation of nonmember com-

panies and entities who utilize the PMA-ILWU jointly

registered workforce has been a matter of concern for

both the Union and the employers for many years. The

basic concern of the employers hinges around specific

problems involving nonmembers. A terse description of

the major problems is as follows:

(1) Certain nonmembers have been able to work dur-

ing periods of strikes and work stoppages when PMA

member companies could not work. For example, during

the PMA shutdown of the Port of Los Angeles-Long

Beach in November and December of 1968, referred to

below, National Metals Company at Los Angeles-Long

Beach Harbor continued to work; and during the most

recent longshore strike, a company operating in the

Puget Sound Area, known as Foss Alaska, continued to

employ longshore labor and handle cargo all during the

strike.

(2) Certain nonmember companies have been given

preference by being able to secure men during gang

shortage periods when member companies, who receive

men through the allocations procedures, were forced to

remain idle or work with less gangs of men than their

normal entitlement. This forced idleness and has caused

losses to PMA members in vessel operating expenses and

in loss of cargo.

(3) Certain nonmembers have been able to arrange

with certain- International Longshoremen’s & Warehouse-

men’s locals for a workforce, a privilege not

readily granted, if at all, to member companies, thus

depriving members of maximum utilization of the PMA-

ILWU joint workforce on days when the nonmember has

work available. However, if reduced work opportunity

occurs in the nonmember entity operation, the nonmem-

ber steady men go to the joint dispatching hall and ac-

cept work for member companies.

ts with nonmembers allowing them to par-

ticipate in the particular fringe benefits they choose

have existed in the West Coast longshore industry since

about 1950.

As a result of those listed practices, nonmembers who

signed nonmember participation agreements for the var-

ious fringe benefits negotiated for the ILWU workforce,

and such nonmembers who utilized the joint dispatch

halls and Pacific Maritime Associations’s central record

offices had accrued to them all of the advantages of the

collective bargaining agreements and services of Pacific

Maritime Association. They suffered none of the unfavor-

able situations accruing to members when conflict arose

between the parties signatory to the collective bargain-

ing t, namely, Pacific Maritime Association and

the International Longshoremen’s & Warehousemen’s

Union.

Aar

111

Poe

145

5 8

“:

1115

Pacific Maritime Association, passing a resolution, at its

regular quarterly meeting on March 11, 1970, which

is attached as Exhibit A (it should be noted that the

second example stated above occurred after the passage

of the attached resolution, but it is an example of the

type of problem that has existed and kept repeating it-

self uver a long period of time).

It was recognized by the Board of Directors that the

implementation of that resolution could not be done uni-

laterally by the Association because, in order to put it

into operation, a modification of the collective bargaining

agreement, and certain supplemental agreements thereto,

was required. This called for bargaining with the ILWU.

Inasmuch as the then existent agreement had a terminal

date of June-30, 1971, it was decided by the Employers

that they would seek the necessary contract revisions

when the negotiations for the new agreement began.

The Union was aware of the passage of this resolution

and also was aware that the Association had refused to

grant nonmember status to the entity referred to in item

(2) immediately preceding, that is the incident which

occurred in May and June of 1970.

Though the collective bargaining agreement negotiated

in 1966 did not terminate until June 30, 1971, the parties

agreed late in 1970, in recognition of the many prob-

lems they had to discuss, to open negotiations at an early

date. The first meeting between the parties occurred

on November 16, 1970 at which time the ILWU pre-

sented its contract demands dated 11/6/70 and revised

as of 11/13/70, in an eight-page document. In light

of their knowledge of the resolution passed by the Board

of Directors of PMA (Exhibit A attached), and the As-

sociation position in regard to the nonmember participa-

tion status of the above referred to employer who had

resigned from PMA, the Union included as Item XVI in

their demands a section headed “Fringe Benefit Contribu-

tions” which read as follows:

“The contract to provide that PMA will accept all

fringe benefit contributions from any employer, whether

or not such employer is a member of the PMA.”

Following receipt of those demands, the employers

took time to analyze them and the second negotiating ses-

sion for the new agreement took place on December 7,

1970, at which time the employers gave a written re-

sponse to the demands that had been submitted by the

Union, in the form of a letter addressed to the ILWU,

Attention of Mr. Henry Bridges, and signed by B. H.

Goodenough. Item XVI of that response dealing with

the question of fringe benefit contributions read as fol-

lows:

“The employers propose that all applicable sections

of the Agreement be amended to eliminate nonmember

participation under any provisions of the Agreement un-

less they are not permitted by law to become members

of the Association. Further, the Employers propose that

all supplemental agreements to the Coast Agreement be

amended as of July 1, 1971 to exclude nonmember par-

ticipation.”

Thus, at the outset of negotiations PMA and the Union

proposed entirely opposite treatment of nonmember par-

ticipation.

There were, during the course of negotiations for the

new agreement which lasted from November 16, 1970

until an agreement was signed on February 10, 1972,

references to the nonmember participation situation in

numerous discussions. I think it is proper to state that

there were no definitive negotiations on the subject. The

from

this item was referred to from time to time

negotiations, it was never given close analysis and scru-

tiny. mune Se See Sess SP a in the

second part of the strike w took place early in 1972,

the parties called upon the services of Sam Kagel, the

permanent Cost Arbitrator for the PMA-ILWU Agree-

ment, to serve as a mediator to see if resolution of the

remaining unresolved items could be brought about. This

was in the week prior to the final settlement which oc-

curred on February 10, 1972. During those discussions,

100

with Mr. Kagel present, the parties presented their re-

spective opposing positions on the subject of nonmember

participation, and I think it is proper to say that they

both interpreted the remarks of the mediator to imply

“A plague on both your houses!” The issue was not re-

solved when the final Agreement was signed, but was

included in a list of unresolved items, eleven in number,

on which the parties agreed—when they signed the Feb-

ruary 10, 1972 Memorandum of Understanding—they

would endeavor to resolve by further negotiations or

mediation and, if those two processes failed, the ultimate

resolution would be placed in the hands of the Coast

Arbitrator, Kagel, and his decision would be final and

binding.

Thus, following the conclusion of the strike, and the

signing of the Memorandum, the parties set out to re-

solve—through negotiation—the unresolved item just

mentioned. Early in the last week of February, 1972,

the parties met on this subject and PMA presented to the

Union committee a document entitled, “Suggested Ap-

proach to Nonmember Participating Agreement Issue,”

which is attached as Exhibit B. The parties discussed

this draft document. The Union indicated they would

like to have time to study it and prepare a response. The

parties met again on February 25, 1972 and the Union

responded with a document entitled, “ILWU Response

to PMA Suggested Approach to Non-Member Participat-

ing Agreement Issue.” This is attached as Exhibit C.

There then followed a series of meetings between the

parties, and a continuing and progressing exchange of

documents as they neared resolution. The first of those

is attached as Exhibit D, entitled, “Supplemental Memo-

randum Of Understanding—Draft, March 3, 1972.”

That was followed with another draft dated March 6th,

attached as Exhibit E, and revision of that document

through the process of collective bargaining finally

brought about the document which the parties signed,

identified as No. 4 Supplemental Memorandum of Under-

standing, dated April 25, 1972, signed for PMA on be-

half of its members by B. H. Goodenough, and for the

tered workmen, working for nonmembers, the benefits

that have been negotiated for those members with PMA

Anyone familiar with the West Coast labor relations

in the maritime industry, as well as outside the mari-

time industry, is aware that the PMA-ILWU fringe

as the PMA services in regard to the administration of

the various Trust Agreements arising from those plans,

with the payroll and record keeping services ren-

by PMA, give the ILWU employees benefits equal

to and in many instances better than provided in other

8 F

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104

Exuisit A to B. H. Goodenough’s Affidavit

EXCERPT FROM MINUTES OF REGULAR

QUARTERLY MEETING OF BOARD OF DIRECTORS

BARGAINING STRENGTH OF THE ASSOCIATION:

March 11, 1970

The Chairman reported that the Coast Executive Com-

mittee recommended to the Board of Directors the adop-

tion of the following resolution in regard to non-members:

“It is hereby resolved by the Board of Directors of

PMA that:

“1. Subject to the provisions of Article IV, Section

1 of the PMA By-Laws, membership in PMA is open to

any employer who directly or ly employs em-

ployees represented by unions with whom PMA has col-

lective bargaining relationships. The Board of Directors

shall continue to have the power to deny membership

bargaining

PMA operates individually as part of its labor relations

activities, or operates jointly with unions in conjunction

with its collective bargaining commitmen

The Chairman explained the resolution

pose for it by stating that it would provide greater bar-

105

gaining strength within che Association, as well as greater

solidarity to resolve disputes.

Considerable discussion then occurred as to the resolu-

tion following which it was duly moved, seconded and

unanimously carried that the resolution as presented

above be adopted.

106

EXHIBIT B

SUGGESTED APPROACH TO NONMEMBER

PARTICIPATING AGREEMENT ISSUE

Basic Problems with Nonmembers

Certain nonmember companies have been able to work

during periods of strikes and work stoppages when

members could not work.

Certain nonmembers have been able to secure men

during gang shortage periods when member com-

panies who receive men through the allocations pro-

cedure were forced to remain idle or work with less

gangs or men than their normal entitlement.

Certain nonmembers have been able to arrange with

the ILWU for a steady work force thus depriving

members of maximum utilization of the jointly regis-

tered work force on whatever days the nonmember

has work available. However, if reduced work op-

portunity occurs in the nonmember company the non-

member’s steady men then go to the joint dispensing

hall and accept work for member companies.

In order to solve those basic problems and still permit

nonmembers to participate in the various fringe benefit

plans and use the joint dispatching halls the following

suggestions are submitted.

Any nonmember who has signed nonmember partici-

pating agreements and who employs a steady work

force by arrangement with an ILWU local or locals

or the International, from the jointly registered PMA-

ILWU work force, shall submit a list of its steady

men and effective date of their steady employment

to the Pacific Maritime Association. The registered

men shown on the list on the date of their employment

in such status then become the responsibility of the

nonmember employer insofar as pay guarantees are

concerned and insofar as work’ opportunity is con-

cerned for the term of the PCL & CD, ie, to July

107

1, 1973. Such men shall be considered as not avail-

able to member com and shall not be tched

to member com during the term of the con-

tract. Such men shall not be eligible for payments

under the PMA-ILWU Pay Guarantee Plan for the

term of the Agreement and their paid hours shall

not be included in computing “80% of the average

paid hours” in the local as referred to in paragraph

3.2 of the Pay Guarantee Plan.

The nonmember employer of such steady men will

not be assessed the determined contribution rate for

the Pay Guarantee Plan for its steady employees.

However, said assessment will be payable as it applies

to men employed on a casual basis by a nonmember.

Nonmembers to sign Nonmember Participat-

t for Welfare, Pension, and Vacations

and who comply fully with PMA-ILWU contract pro-

visions in regard to use of joint dispatching halls,

Section 8.18, and the vacation plans, Section 7.43 may

do so provided they comply with the foregoing pro-

visions in regard to steady men and the Pay Guaran-

tee Plan. Failure to comply shall automatically can-

cel the Nonmember Participating Agreements for that

nonmember company and their steady men will not

have future hours counted for fringe benefit plans.

Further, there shall be no further dispatch of extra

men to that nonmember during the time of the con-

tract and none of the identified steady men of that

nonmember shall be eligible for dispatch for the term

of the Agreement.

. Nonmembers who do not employ steady men shall be

covered under nonmember participating agreements

if they so desire provided,

(a) All orders for men, units of men, or gangs are

placed through the PMA allocation system and such

men, units or gangs are dispatched in proper alloca-

tion sequence or ordered by PMA allocator. Failure

of the nonmember employer or of the joint dispatchers

to comply with this rule shall automatically cancel

all nonmember participating agreements for involved

108

nonmember company and that company shall not be

permitted use of the joint dispatching hall or the use

of the Central Records Office payroll services for the

duration of the contract.

Should a strike, illegal work stoppage or lockout oc-

cur during the term of the Agreement, during which

period member companies are not placing orders or

the Union is not taking orders in the joint dispatch

hall then no nonmember who is signatory to non-

member participating agreements and is using the

joint dispatch and the Central Records Office shall be

entitled to dispatch of men. If such nonmember works

jointly registered men during such a period, all non-

member participating agreements will be cancelled for

the term of the Agreement and dispatching hall and

Central Records Office utilization will be cancelled

during the term of the Agreement. Any hours worked

by registered men for such nonmember after such

cancellation will not be considered as hours worked

under the Agreement and men who work such hours

will be disqualified for Pay Guarantee Payments for

the term of the Agreement.

. Nonmember companies who do not employ steady

men and who wish to sign nonmember participating

agreements will be required to sign a nonmember

participating agreement for the Pay Guarantee Plan.

Hours worked for such nonmember who remains in

compliance with the foregoing rules shall be included

in calculation of average paid hours under 3.2 of the

Pay Guarantee Plan.

Ik a strike should occur at the termination of the

Agreement, nonmembers signatory to nonmember

participating agreements shall not work with jointly

registered men during the strike. If they do, then

their nonmember signatory agreements will not be re-

instated when work is resumed and the hours worked

during the strike will not be considered as hours

worked under the Agreement.

. PMA member companies shall not serve as payroll

agents for nonmember companies for longshoremen,

clerks or Walking Bosses/Foremen.

109

Exuisit C

DRAFT—February 25, 1972

ILWU RESPONSE TO PMA SUGGESTED

APPROACH TO NON-MEMBER PARTICI-

PATING AGREEMENT ISSUE

Solution

In order to solve those basic problems as are defined

in PMA’s SUGGESTED APPROACH and still permit

nonmembers to participate in the various fringe benefit

plans and use the joint dispatching halls the following

force by arrangement with an ILWU local or locals or

the International from the jointly registered PMA-ILWU

work force shall submit a list of its steady men and

effective date of their steady employment to the PMA

within 10 days of notice.

The registered men shown on the list in such status

then become the responsibility of the nonmember em-

ployer insofar as pay guarantees are concerned i

sofar as work opportunity is concerned for the

the PCLCD (Pacific Coast Longshore and Clerk’s Docu-

ment) which expires July 1, 1973. Such men

considered as not available to member companies and

shall not be dispatched to member com during the

term of the contract except during peak periods of man-

power shortage, and then only by mutual agreement of

the Joint Port LRC

Such men shall not be eligible for payments under the

PMA-ILWU Pay Guarantee Plan for the term of the

Agreement and their paid hours as steady men shall not

included in computing “80% of the average paid

72 f

21 2

110

Guarantee Plan for its steady employees. However said

assessment will be payable as it applies to men employed

on a casual basis by a nonmember. (Define casual basis

—week by week?)

Nonmembers desiring to sign Nonmember Participat-

ing Agreement for Welfare, Pension and Vacations and

who comply fully with PMA-ILWU contract provisions

in regard to use of joint dispatching halls, Sec. 8.13, and

the vacation plans, Sec. 7.43, 7.44, may do so provided

they comply with the foregoing provisions in regard to

steady men and the Pay Guarantee Plan. Failure to

comply shall automatically cancel the Nonmember Par-

ticipating Agreements for that nonmember company and

their steady men will not have future hours counted for

fringe benefit plans. Further, there shall be no further

dispatch of extra men to that nonmember during the

time of the contract and none of the identified steady

men of that nonmember shall be eligible for dispatch for

the term of the Agreement unless they shall return to

the dispatch hall within 7 days of such cancellation.

2. Nonmembers who do not employ steady men shall

be covered under nonmember participating agreements

if they so desire, provided,

(a) All orders for men, units of men or gangs are

placed through the PMA allocation system where such

procedure is now in effect, and such men, units or gangs

are dispatched in accordance with section 8.13. Deliber-

ate violation by the nonmember employer or by the joint

dispatchers of this rule shall automatically cancel all

nonmember participating agreements for involved non-

3. Should a strike, illegal work stoppage or lockout

which

ing such a period, all that nonmember’s participating

will be cancelled for the term of the Agree-

ment, and dispatching hall and Central Records Office

utilization will be cancelled during the term of the Agree-

ment. Any hours worked by registered men for such

ticipating agreement for the Pay Guarantee Plan. Hours

worked for such nonmember who remains in compliance

lawful order, then their nonmember signatory agreements

will not be reinstated when work is resumed, and the

hours worked during the strike will not be considered

as hours worked under the Agreement, except that such

reinstatement shall be subject to negotiations by the

6. PMA member companies shall not serve as payroll

agents for nonmember companies for longshoremen, clerks

or walking bosses /foremen.

7. PMA member companies shall be allowed to steve-

dore, husband, or otherwise act as agents for nonmember

vessel when all cargo handling operations are performed

by the ILWU-PMA work force. Nonmember vessels who

perform cargo-handling operations with a non-ILWU-

PMA workforce shall not be stevedored, husbanded, or

serviced in any manner by a PMA member or the ILWU-

PMA workforce, unless:

112

(a) The nonmember vessel shall pay to the JPLRC

the full cost of the joint dispatch hall incurred for dis-

patch of men to such nonmember vessel; and

(b) An additional tax shall be paid on cargo tonnage

handled by any non-[LWU-PMA workforce, and use of

such tax monies to be determined by the Joint Coast

Labor Relations Committee.

8. Nonmember companies who have signed nonmem-

ber participating agreements and non-members who de-

sire to sign such nonmember agreements, and are per-

forming cargo-handling operations shall be allowed to

continue such cargo handling operations.

113

ExuHisit D

SUPPLEMENTAL

MEMORANDUM OF UNDERSTANDING

The “Memorandum of Understanding” between the

Parties dated February 10, 1972 spells out in Item (D)

of “General Provisions Applicable to The Pacific Coast

Longshore and Clerks Agreement” a listing of eleven

(11) items to be resolved by further negotiation, media-

tion or arbitration.

This “Supplemental Memorandum of Understanding”

is considered as the resolution to Item 9 (a) under the

aforementioned Item (D).

The Parties agree that a new form of supplementary

nt covering nonmember employers and their em-

agreeme

ployees will be prepared containing the following provi-

sions.

(1) A definition of a nonmember employer along the

following lines:

“A nonmember is a business entity such as a company,

corporation, or public port, or port commission, with

whom the International Longshoremen’s and Warehouse-

men’s Union on behalf of itself or one of its longshore

or clerks locals has a separate collective bargaining

agreement outside the Pacific Coast Longshore and Clerks

Agreement covering work normally considered under the

scope, terms, and conditions of the ILWU-PMA Pacific

Coast Longshore and Clerks Agreement and utilizing as

its work force employees jointly registered by the Parties

to the ILWU-PMA Pacific Coast Longshore and Clerks

Agreement.

(2) The new supplementary agreement for nonmembers

shall include the following provisions.

(a) Participation in all of the supplemental agree-

ments to the aforesaid agreement such as Welfare, Pen-

sion and Pay Guarantee Plans as well as the Vacation

Plan provided in the aforesaid agreement, and the use

of the joint dispatching halls provided for by the Parties

to the aforesaid agreements. In addition, this new sup-

plemental agreement shall provide that nonmember com-

114

panies signing the new Nonmember Agreement shall par-

ticipate in the PMA Central Records System and be as-

sessed the same manhour and tonnage dues and payroll

assessments to support the various services rendered by

the Association on behalf of its members as are Associa-

tion members.

And further, that any future assessments applicable

to members provided for under the By-Laws of the Asso-

ciation shall automatically apply to nonmembers who

have signed the Nonmember Participating Agreement.

Nonmembers desiring to sign the new Nonmember

Participating Agreement shall not be permitted to select

from the aforementioned those parts in which they would

like to participate but, rather, they shall participate in

all or none. If it be the latter, they will not be eligible

for nonmember participation nor will they be eligible for

utilizaiton of the PMA-ILWU jointly registered work

force.

(3) The new Nonmember Participating Agreement shall

also include provisions as follows.

(a) A nonmember who has signed the Nonmember

Participating Agreement and employs a steady work

force by arrangement with an ILWU local or locals, or

the International, from the jointly registered PMA-

ILWU work force, shall submit a list of its steady men

and effective date of their steady employment to the

Pacific Maritime Association. The registered men shown

un the list on the date of their employment in such steady

status then become the responsibility of the nonmember

employer insofar as Pay Gurantees are concerned. Such

men shall be considered as not available to member com-

panies and shall not be dispatched to member companies

so long as they remain as steady employees of the non-

member. However, their paid hours shall be included in

computing the various tests under the Pay Guarantee

Plan in the applicable port or local.

(b) Nonmembers signing the Nonmember Participat-

ing Agreement must comply with the provisions of sec-

tion 8.13 of the PCL & CA. All orders for men, units

of men, or gangs shall be placed through the

Maritime Association Allocations System and such men,

(5) As soon as the N

HUI

Ib.

Exuisit E

March 6, 1972

SUPPLEMENTAL

MEMORANDUM OF UNDERSTANDING

The “Memorandum of Understanding” between the

Parties dated February 10, 1972 spells out in Item (D)

of “General Provisions Applicable to The Pacific Coast

Longshore and Clerks Agreement” a listing of eleven

(11) items to be resolved by further negotiation, media-

tion or arbitration.

This “Supplemental Memorandum of Understandi

is considered as the resolution to Item 9 (a) under

aforementioned Item (D).

The Parties agree that a new form of Nonmember

Participating Agreement covering nonmember employers

and their employees will be prepared containing the fol-

lowing provisions.

(1) A definition of a nonmember employer along the

following lines:

“A nonmember is a business entity such as a company,

corporation, or public port, or port commission, with

whom the International Longshoremen’s and Warehouse-

men’s Union on behalf of itself or one of its longshore

or clerks locals has a separate collective bargaining

ment outside the Pacific Coast Longshore

Agreement covering work under the scope,

conditions of the ILWU-PMA Pacific Coast Longshore

employees jointly dy the to the ILWU-

PMA Pacific Coast and Clerks Agreement.”

(2) The new Nonmember Participating Agreement shall

provide for the following:

(a) The parvicipation in all of the Benefit Plans of

TTL:

118

matically cancel the Nonmember Participating Agree-

ment for the involved nonmember.

(e) Should a strike or lockout occur that is in viola-

tion of section 11.1 of the PCL & CA during the term

titled to the dispatch of men. If such nonmember works

during such period, the Nonmember Participating Agree-

ment will be cancelled. Any hours worked by registered

men or casuals for such nonmember after such cancella-

tion will not be considered as hours worked under the

(d) r ae 3a

Agreement, nonmembers signatory to the Nonmember

Nonmember

when work is resumed, and hours worked during the

strike will not be considered as hours worked under the

Agreement.

(5) As soon as the Nonmember Participating Agree-

ment form is prepared and agreed to by the Parties, all

present nonmember companies signatory to existing non-

ber Participating Agreements thirty (30) days from the

date of notification. Such companies will be asked to

sign the new Nonmember Participating Agreement and

advised that, if they have not done so thirty (30) days

119

from the date of notification, jointly registered men will

not be permitted to accept employment with the company

until the company signs a Nonmember Participating

Agreement.

INTERNATIONAL LONGSHOREMEN’S AND

WAREHOUSEMEN’S UNION, on behalf of

itself and all longshore and clerks lo-

cals in California, Oregon and Wash:-

ington

Dated:

PACIFIC MARITIME ASSOCIATION

on behalf of its members:

120

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 15, 1972]

Docket No. 72-48

AFFIDAVIT OF CURT J. MYERS

Crry AND COUNTY OF SAN FRANCISCO .

88.

STATE OF CALIFORNIA )

Curt J. Myers, being first duly sworn, deposes and

says:

I am Treasurer of Pacific Maritime Association and

as such am familiar with all dues, assessments and fringe

benefit funding. Our Shoreside Division is financed by

a combination of man hour dues and tonnage dues. The

principal activities of the Division are: Contract negotia-

tion, day to day contract administration including ar-

121

under the new participation agreement (Supplement No.

4) pay tonnage dues. The one exception is the Port

of Longview which is also a stevedore in that it dis-

charges bulk cargo directly from vessels. The Northwest

Port Authorities are and have been paying PMA man

hour dues on the labor they employ because they use the

joint PMA-ILWU dispatch hall. They also pay into the

various PMA-ILWU fringe benefit funds in the same

manner as PMA members because they operate under

the prior nonmember agreements covering participation

in those funds.

The Central Records and Pay Office is financed by pay-

roll dues which are levied upon each payroll processed

through that facility. All of the Port Authorities in the

Northwest avail themselves of this facility except the

Ports of Grays Harbor, Olympia, and Port Angeles.

These three ports have minimal payroll volume.

Aside from the exception with respect to minimal ac-

tivity by the Port of Longview, the Northwest Ports

contributions now and on implementation of Supplement

No. 4 (the new Nonmember Participation Agreement)

is the same. The principal difference is that they now

participate in the fringe benefit a under the

terms of their own collective bargaining agreement with

the ILWU and they participate voluntarily in the PMA

man hour dues program and Central Records Payroll

program whereas if they sign the new agreement they

will have to take the whole package.

/s/ Curt J. Myers

Curt J. MYERS

Treasurer

Pacific Maritime Association

Subseribed and sworn to before me this 13 day of De-

cember, 1972.

/s/ E. A. Phillips

Notary Public

122

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 18, 1972

Docket No. 72-48

AFFIDAVIT OF FRED HUNTSINGER

Crry AND COUNTY OF SAN FRANCISCO ;

88.

STATE OF CALIFORNIA )

FRED HUNTSINGER, being first duly sworn, deposes

and says:

I am a member of the Coast Committee of the Inter-

national Longshoremen’s and Warehousemen’s Unior

(ILWU) and as such actively participated in the negotia-

tions between ILWU and PMA in 1970, 1971 and 1972

resulting in the Memorandum Of Understanding of Feb-

ruary 10, 1972 and in Supplement No. 4, the Nonmember

Participation Agreement.

Supplement No. 4 (to the Memorandum Of Under-

standing between ILWU and PMA of February 10,

1972), the ILWU-PMA Nonmember Participation Agree-

ment, was the result of arms-length collective bargaining.

ILWU initially proposed November 16, 1970, that PMA

accept all nonmembers into the fringe benefit programs.

PMA initially proposed that nonmembers be entirely

excluded under any provisions of the agreement or any

supplemental agreements. The give and take of collective

bargaining finally resulted in the compromise between

these opposite positions which is embodied in Supplement

No. 4.

The ILWU-PMA joint workforce, the hiring hall ma-

chinery, the central payroll system, and the various fringe

benefits have been developed jointly by PMA and ILWU

after considerable effort over a long period of years.

basis that the ports and the ILWU can agree upon under

the collective bargaining process.

Neither ILWU nor PMA was motivated in agreeing

to Supplement No. 4 by a desire or intent to put the pe-

titioning ports or any employer out of business or to

injure them. Nor does the agreement operate in that

way. There are men who perform longshore and clerk

functions who are not part of the registered ILWU-PMA

joint workforce who are available to nonmembers who do

not sign the Partici t.

Upon full tion the ILWU reached the con-

clusion in the negotiations that ha

ticipate in some parts of the ILWU-PMA program and

not all is a great administrative inconvenience. We also

concluded that PMA’s position, that if nonmembers have

the benefits jointly sponsored by PMA and ILWU they

should have obligations which PMA members have, is

basically fair.

124

The items covered by Supplement No. 4 to Memo

randum of Understanding are matters which have been

traditionally the subject of collective bargaining in the

West Coast longshoring industry.

/s/ Fred Huntsinger

._ FRED HUNTSINGER

Subscribed and sworn to before me this 14th day of De-

cember, 1972.

/s/ Martin Friedman

Notary Public

125

BEFORE THE FEDERAL MARITIME COMMISSION

Received Dec. 18, 1972]

[Caption Omitted]

MEMORANDUM OF LAW OF HEARING COUNSEL

I. INTRODUCTION

A. The Petition of Certain Pacific Northwest Ports

The Commission initiated this proceeding by Order of

Investigation served September 6, 1972 in response to

a petition filed by eight ports in the Pacific Northwest.’

Petitioners allege the existence of agreements between

the Pacific Maritime Association (PMA) a corporation

organized and existing under the laws of the State of

California consisting of steamship lines, steamship agents,

stevedoring companies and marine terminal companies

and the International Longshoremen’s and Warehouse-

men’s Union (ILWU), an unincorporated association

which is the bargaining agent for longshoremen, marine

checkers and dock workers who are employed at Pacific

Coast ports of the United States. Petitioners contend

that the PMA and ILWU have entered into an agree-

ment known as Supplemental Memorandum of Under-

standing No. 4 (SMU No. 4) dated April 25, 1972, which

allegedly supplements a PMA-ILWU master collective

bargaining agreement establishing hiring halls which

must be utilized by Petitioners to obtain longshore labor.

Petitioners allege that SMU No. 4 is intended to apply

only to nonmemebers of the PMA and provides among

other things that:

1) a nonmember of the PMA must become a party to

the PMA-ILWU labor ts if it wishes to employ

any member of the joint PMA-ILWU work force;

2) a nonmember must conform his separate ILWU

contract to the requirements of SMU No. 4;

The eight ports are Anacortes, Bellingham, Everett, Grays Har-

bor, Olympia, Port Angeles, and Tacoma (of the State of Washing-

ton) and Portland (of the State of Oregon).

3) any nonmember who fails to conform to the man-

power allocation and referral system established by the

PMA and ILWU is disqualified from employing any mem-

ber of the joint work force;

4) nonmemebers are subject to assessments, dues, and

other obligations imposed on PMA members and must

furthermore submit to the labor policies of the PMA as

respects strikes and lockouts.

Petitioners allege that SMU No. 4 and the underlying

master collective bargaining agreement are “agreements”

within the meaning of section 15 of the Shipping Act,

1916 which should be filed for approval pursuant to that

section but have not been filed. Furthermore, it is al-

leged that the PMA and ILWU have demanded that

Petitioners execute the “ILWU-PMA Nonmember Par-

ticipation Agreement” established by SMU No. 4.

Petitioners allege that SMU No. 4 and the practices

contemplated thereby are detrimental to the commerce

of the United States, contrary to the public interest, un-

fair, unjust, discriminatory and unduly prejudicial in

violation of sections 15, 16, and 17 of the Shipping Act,

1916 in certain enumerated respects. Specifically, it is

alleged that they:

(1) Would permit the PMA and the ILWU to monopo-

lize, dominate and control the business of moving cargo

in foreign and interstate commerce from and to the

Petitioners’ ports, including the handling and storage of

such cargo while at such ports.

(2) Would force shippers and consignees to deal with

nonmembers of the PMA, including the Petitioners’ ports,

on terms substantially less advantageous than with mem-

bers of the PMA, thereby enforcing a concerted boycott

by shippers and consignees of such nonmembers. The

effect of such boycott would be to make it difficult or

impossible for nonmembers, including Petitioners’ ports,

to remain in business.

(3) Would force Petitioners and others similarly situ-

ated to join the PMA in order that the latter could con-

trol their activities, including dictating the labor policies

of the Petitioners.

127

(4) Would regulate, dominate and restrain interstate

and foreign commerce with respect to moving and stor-

ing cargo to be operated and carried out under artificial

and noncompetitive conditions.

(5) Would achieve for the PMA an exclusive, prefer-

ential and cooperative working arrangement.

(6) Would permit the PMA and ILWU to control and

regulate the marine terminal operators of Petitioners and

prevent and destroy competition of the Petitioners with

member cormpanies of the PMA.

Petitioners pray that the Commission enter into an

investigation of SMU No. 4 and the practices contem-

plated thereunder and after hearing find them to be in

violation of the Shipping Act, 1916, declare them to be

unlawful and void, and order the PMA to cease and

desist from the aforesaid violations.

In reply to the petition, the PMA generally denies all

but a few unessential allegations contained therein. Fur-

thermore, the PMA asserts that it does not fix or regu-

late transportation rates, publish tariffs, etc. but exists

solely to represent its members in collective bargaining

negotiations, administer and implement collective bar-

gaining agreements between its members and the ILWU

and other maritime unions, and to establish labor policies

consistent with such labor activities. Wherefore, it is

asserted that the PMA is not an “other person” within

the meaning of section 1 of the Shipping Act, 1916. Fur-

thermore, it is asserted by the PMA that the ILWU, one

of the two contracting parties to the agreements in issue,

is not an “other person” within the meaning of the Act

nor is otherwise covered by the Act, and that consequently

neither the master PWA-ILWU agreement nor the SMU

No. 4 is subject to submission, review, and/or approval

by the Commission pursuant to the Act. Similarly, the

ILWU has moved the Commission to dismiss the petition

an the grounds that the ILWU is not subject to the juris-

diction of the Federal Maritime Commission nor is the

SMU No. 4 which is a collective bargaining contract.

On October 19, 1972, in response to a petition filed by

Hearing Counsel the Commission issued its First Supple-

128

mental Order Severing Jurisdictional Issues. In this

Order the Commission severed the issue of the Commis-

sion’s jurisdiction under section 15 over the subject agree-

ments for expeditious determination by the Commission

and further set down for determination whether any

labor policy considerations would operate to exempt the

practices resulting from these agreements from the pro-

visions of sections 16 and 17 of the Shipping Act, 1916,

and whether these agreements, if found subject to sec-

tion 15, should be approved, disapproved, or modified

pursuant to that section.

B. Pending Antitrust Cases in the Courts

There are pending three proceedings in the courts in-

volving essentially the same parties and subject matter

as are before the Commission. In Port of Anacortes et

al. v. PMA and ILWU, Civil No. 72-618, U.S. District

Court for the District of Oregon, the eight Pacific North-

west ports allege that defendants PMA and ILWU have

combined and conspired to restrain trade in violation of

antitrust laws by performing acts and adopting programs

designed to monopolize and control the movement of

cargo in foreign and interstate commerce from and to

Pacific Northwest Coast ports, including the handling of

such cargo while at such ports; compel shippers and

consignees to deal solely with members of the PMA to

the exclusion of plaintiffs by certain means; eliminate

plaintiffs as non-PMA member competitors or in the

alternative to force plaintiffs to join the PMA; fix prices

and terms for services rendered by plaintiffs and enable

PMA to collect additional funds as dues or in lieu there-

of; and regulate and restrain interstate and foreign

commerce in moving and storing cargo, and otherwise

cause the businesses of moving and storing cargo to be

operated so as to eliminate competition in said business.

Plaintiffs further allege that over the past several

years defendants have engaged in an attempt to compel

plaintiffs to become PMA members and that the PMA

has threatened to exclude non-PMA members including

the plaintiffs ports from the use they now enjoy of PMA-

ILWU hi halls. The unlawful activity of defendants

PMA and ILWU, it is alleged, is directly motivated by

their desires to compel plaintiffs ports to become PMA

members, or, in the alternative, to prevent or substan-

tially impair the ability of plaintiffs ports to compete

directly with PMA members in cargo handling in Pacific

Northwest Coast ports.

The plaintiff ports specifically refer to the SMU No.

4 and describe its effects in the same manner as in their

that defendants have announced their intention to en-

force the provisions of SMU No. 4 against plaintiffs and

to deny access to the joint work force as to any of the

plaintiffs who fail to adhere to the conditions and require-

ments of said memorandum and that unless defendants

are immediately restrained, plaintiffs will suffer imme-

diate and irreparable damage to their business and prop-

Plaintiffs also allege in a separate different count that

the SMU No. 4 and underlying agreement establishing

hiring halls are subject to section 15 of the Shipping Act,

1916 and are therefore unlawful until approved by the

Federal Maritime Commission and ask the court to en-

join defendants from implementing the provisions of the

SMU No. 4 until the Commission has had adequate time

to carry out its powers.’

The plaintiffs also pray the court for a declaratory

*In a final count in their complaint before the court, plaintiffs

allege that they are precluded from entering into SMU No. 4 by

applicable laws of the States of Oregon and Washington which

forbid the ports from delegating control over labor policies.

for

case and furthermore asked the Court to stay proceedings pending

the alleged agreements

under the Shipping Act, 1916. By order dated October 3, 1972 inter-

130

In the second case before the courts, The Port of Long-

view v. PMA and ILWU, Civil No. 72-626, U.S. District

Court for the District of Oregon, the plaintiff port alleges

that defendants have entered into a number of agree-

ments including that of April 25, 1972 (SMU No. 4)

and have conspired to restrain interstate and foreign

commerce by monopolizing and controlling the business

of moving cargo in foreign and domestic commerce from

and to West Coast ports, eliminating plaintiff port as a

non-PMA member competitor, forcing plaintiff and others

to join the PMA, diverting cargo to PMA members, im-

posing the terms and conditions of the PMA-ILWU agree-

ment upon no parties thereto, and fixing prices for serv-

ices rendered by plaintiff.

Plaintiff alleges the existence of an additional agree-

ment between the PMA and Local 92 of the ILWU

affecting the hiring of walking bosses and furthermore as-

serts that as a municipal corporation it is forbidden

by the law of the State of Washington from delegating

its authority with respect to labor policies. Plaintiff asks

the court to enjoin defendants from implementing and

enforcing the various agreements and from engaging in

the allegedly unlawful conspiracy, combination and con-

duct in violation of the antitrust laws and for other re-

lief.*

In the third case, Port of Seattle v. PMA et al., Civil

No. 214-72C2, U.S. District Court for the Western Dis-

trict of Washington at Seattle, plaintiff Port of Seattle al-

leges that defendants PMA and ILWU have combined and

conspired to monopolize, dominate, and control commerce

to and from West Coast ports, and have utilized their

monopoly power and domination of the market to force

plaintiff and others into joining the PMA and to remove

the Port of Seattle and others from competition. Plaintiff

vention was granted and the proceedings were stayed without

prejudice.

»The Commission was granted intervention in the Longview case

on November 28, 1972. We are advised that the Court has also

stayed that proceeding.

ant PMA has engaged in an attempt to compel the Port

of Seattle to become a PMA member and has threatened

to exclude non-PMA members including the Port of

Seattle from the use they now enjoy of PMA-ILWU hir-

ing halls and participation in PMA-ILWU benefit plans,

with the objective of compelling the Port of Seattle to

become a PMA member or, in the alternative, to re-

move the Port from competition with members.

employer who is signatory to the PMA-ILWU collective

ts. Thus, it is alleged, containers

be delivered directly to the PMA-member warehouse with-

out any requirement for unstuffing at a container freight

particular provisi

to put the Port of Seattle out of business and that defend-

ants have refused to release containers from container

yards unless and until such containers are first de-

livered to CFS transit sheds for unstuffing by employees

of PMA members.

Plaintiff alleges violations of sections 1 and 2 of the

Sherman Act and section 3 of the Clayton Act and seeks

132

C. Pending Proceeding Before the National Labor Re-

— Swe

Still additional proceedings involving PMA and ILWU

agreements are before the National Labor Relations

Board. In International Longshoremen’s and Warehouse-

men’s Union, Local 18, et al. and Pacific Maritime As-

sociation and California Cartage Company, Inc. et al.,

Case Nos. 21-CC-1326, 21-CE-103, 109, 111, 112 and

116, Administrative Judge James T. Rasbury issued a

Decision on October 19, 1972 in which he found that

certain agreements relating to Container Freight Stations

(which include section 1.55 referred to in the Seattle

case above) were in violation of section 8(e) of the

National Labor Relations Act and that respondent Unions

had furthermore violated section 8 (b) (4) (i) and (ii)

(B) of that Act. The basis for these findings were the

facts that by agreement with the ILWU respondent PMA

had refused to do business with certain companies that

were not employing ILWU labor for the stuffing and

stripping of containers and that ILWU was inducing

employees of the PMA to refuse to handle containers

stuffed by those companies. Respondents were ordered to

cease and desist from implementing the unlawful agree-

ments and from carrying out the unlawful practices de-

scribed. The PMA was furthermore ordered to publish

a notice which among other things stated that the PMA

would not give effect to any provision of the PMA-

ILWU CFS Supplemental Agreement which restricted

handling of containers by employees of companies that

are not members of the PMA.“

*This Decision will become the decision of the NLRB unless

exceptions are filed as provided in sections 102.46 and 102.48 of the

NLRB’s Rules and Regulations. Earlier, on May 16, 1972, the

NLRB had obtained a temporary injunction against the PMA and

ILWU in the case of Wilford W. Johansen, Regional Director v.

ILWU Local 10 et al., Civil No. 72-892-JWC, U.S. District Court

Central District of California.

133

II. LABOR-RELATED CASES BEFORE THE

COMMISSION

This is the fourth case before the Commission involv-

ing the difficult question of determining the scope of the

Commission’s jurisdiction under the Shipping Act, 1916

with regard to labor-related agreements. The difficulty

in this area stems from the fact that the issue is es-

sentially one of line drawing and one which involves

reconciliation of conflicting statutory policies.

In the first of these cases, Volkswagenwerk v. Federal

Maritime Commission, et al., 390 U.S. 261 (1968) the

Supreme Court held that an agreement among persons

subject to the Shipping Act to assess themselves for

the purpose of contributing to a mechanization fund es-

tablished under the collective bargaining agreement with

the union must be filed with the Commission for approval

under section 15 of the Shipping Act, 1916. The union

was not a party to the assessment agreement in the

t being formulated and

executed exclusively by the Pacific Maritime Association.

It was therefore only indirectly related to the collective

bargaining agreement between the PMA and ILWU.

The Court emphasized that neither the agreement creat-

ing the PMA nor the collective bargaining agreement

between the PMA and ILWU were in issue, stating:

“those agreements, reflecting the national labor policy

of free collective bargaining by representatives of the

parties’ own unfettered choice, fall in an area of

concern to the National Labor Relations Board

390 U.S. at p. 278.

Unfortunately as Mr. Justice Harlan pointed out in

Volkswagen, the Court’s reliance on a nebulous “area of

concern” standard was unfortunate since it provided

little guidan-- to signatories to agreements as to the

status of their agreements under labor, antitrust, or

shipping law. 390 U.S. at p. 286. Mr. Justice Harlan

recognized, however, that the problem of reconciliation of

the various statutory policies was one in which

my A had provided very little guidance. 390 U.S. at

ial

134

In the second case, United Stevedoring Corp. v. Boston

Shipping Association (BSA), FMC Docket No. 70-3, Re-

port on Remand from the United States Court of Appeals

for the Fifth Circuit, August 25, 1972, the Commission

had under consideration three labor-related agreements,

viz., the incorporation papers and bylaws establishing

the BSA, an agreement providing for hiring and alloca-

tion of labor among stevedores, and an agreement among

stevedores establishing certain “first call-recall” assign-

ment rights as to labor gangs. The Commission found

that all three agreements were entitled to so-called labor

exemption and therefore held that they need not be filed

for approval under section 15 of the Act. Moreover, the

Commission, enunciated certain criteria to be used in

determining whether a particular agreement fell within

the scope of the labor exemption. We discuss the Com-

mission’s decision in some detail in the next section.

The third case is New York Shipping Association—

NYSA-ILA Man-Hour/Tonnage Method of Assessment;

Possible Violation of Sections 15, 16, and 17, Shipping

Act, 1916, F.M.C. Docket No. 72-51, Order to Show

Cause served September 14, 1972. That case involves an

agreement entered into between the NYSA and the ILA

levying an assessment on carriers and stevedores for the

purpose of funding certain fringe benefits established

elsewhere in the collective bargaining agreement. Al-

though the assessment agreement in that case is the

successor to a previous agreement approved with modi-

fications by the Commission in Agreement No. T-2336—

New York Shipping Association Cooperative Working

Arrangement, F.M.C. Docket No. 69-57, June 14, 1972,

13 Pike & Fisher S.R.R. 73, it is contended that the

agreement is entitled to the labor exemption on the

grounds that the agreement is the result of collective

bargaining with the ILA.

135

III. THE CRITERIA ESTABLISHED BY THE COM-

MISSION IN UNITED STEVEDORING CORP.

v. BOSTON SHIPPING ASSOCIATION

The scope of the so-called labor exemption from anti-

trust and regulatory law has been determined by the

Commission recently in United Stevedoring Corp. v. Bos-

ton Shipping Association (BSA), cited above. In that

case which involved three labor-related agreements the

Commission applied doctrines of law which had evolved

through the courts in a number of cases arising under

the antitrust laws. These agreements comprised first,

the basic organic agreements establishing a multiemployer

bargaining unit, second, an agreement as to allocation

of labor gangs among stevedores, and third, an agree-

ment as to the right of stevedores to exercise assignment

and reassignment rights over labor gangs.

The Commission found that all three agreements fell

within the scope of the labor exemption, the first agree-

ment being primarily a collective bargaining unit, the

second, nothing more than hiring by employers of em-

ployees, and the third, consisting of matter which had

been the subject of good-faith bargaining having only

limited competitive effects and without impact on en-

tities outside the collective bargaining group. Multilith

Report, pp. 10, 11.

In arriving at its decision in the BSA case, the Com-

mission determined several issues which have been raised

by’ respondents in this proceeding. Thus, the Commission

held that the BSA as an entity is subject to FMC juris-

diction although its members and not the association

itself actually perform transportation services on the

principal that the association acts as agent of its mem-

bers as does a conference, citing Far East Conference

v. F. M. C., 337 F.2d 146 (1964). Multilith Report, p.

4. This principle holds even if, as the Commission stated,

“some members of the BSA may not be subject to our

jurisdiction.” Multilith Report, p. 4. Similarly, FMC

jurisdiction would attach to the PMA as an entity. Other-

wise, as the Commission observed, persons who are clearly

subject to FMC jurisdiction could band together in the

136

form of an association and engage in matters of Shipping

Act concern with regulatory impunity. Multilith Report,

p. 4. Such a result, as the Commission stated, “would

frustrate the entire purpose of the Act” and the Com-

mission “will not tolerate such a device to blunt our

regulation of this nation’s maritime industry.” Multi-

lith Report, p. 4. We do not contend that the members

of the PMA have established that association in order

to evade regulation, only that the association as an entity

apart from its members is subject to the Shipping Act.

The Commission discussed at some length the problem

concerning accommodation of the Shipping Act with labor

act policies in the BSA case. The Commission recognized

the judicially-sanctioned doctrine whereby the fruits of

collective bargaining are generally exempted from ap-

plication of antitrust laws. On the other hand the Com-

mission specifically acknowledged its responsibilities ac-

cording to the Volkswagen case in which the Supreme

Court first determined that labor-related assessment

agreements are subject to section 15 of the Act. As the

Commission stated:

“ [Wie must adhere to the guidelines set forth

in Volkswagenwerk Aktiengesellschaft v. F. M. C., 390

U.S. 261 (1968) in which we were reproached for

taking ‘an extremely narrow view of a statute that

uses expansive language.

The Commission cited the three leading cases in this

particular area of law, namely, Allen Bradley Co. V.

Local 3, International Brotherhood of Electrical Workers,

325 U.S. 797 (1945), United Mine Workers v. Penning-

ton, 381 U.S. 657 (1965), and Amalgamated Meat Cut-

ters v. Jewel Tea Co., 381 U.S. 676 (1965). In the first

two cases the Supreme Court held that the agreements

between management and the Union were not exempt

from the antitrust laws since the Court had found con-

certed effort by management and the Union to eliminate

The Commission did recognize that the agreement in the Volks-

wagen case was not embodied in the collective bargaining agreement

but was in implementation of a provision therein. Multilith Report,

p. 5, n. 6.

137

competition in the industries involved. In the latter case,

the Court found no conspiracy between employers and

the Union to eliminate competition but rather a legiti-

mate effort on the part of the Union to obtain favorable

— — a particular employer. Maultilith Report,

pp. 6, 7.

Following discussion of these cases the Commission

enunciated several principles. First, that the of

exemption of labor-related matters from application of

the antitrust laws is analogous to that involving exemp-

tion from the shipping laws. Maultilith Report, p. 6.

Hence the doctrines which have evolved in the antitrust

cases can be applied in the instant case.

Second, as the Commission stated:

“(t}he mere fact that a collective bargaining agree-

ment involves a mandatory subject of bargaining

does not ipso facto exempt the agreement from the

antitrust laws.” Multilith Report, p. 7.

— Supreme Court stated in the Pennington ease, eited

above:

This is not to say that an agreement resulting

from union- employer negotiations is automatically

exempt from Sherman Act scrutiny simply because

the negotiations involve a compulsory subject of bar-

gaining . . . . But there are limits to what a union

or an employer may offer or extract in the name of

wages, and because they must bargain does not mean

that the agreement reached may disregard other

law.” 381 U.S. at pp. 664, 65.

Third, since even the matters which are mandatory

subjects of collective bargaining under the labor laws are

not necessarily exempt from antitrust or regulatory laws,

the mere presence of matters in collective bargaining

agreements confers no immunity from antitrust or regu-

latory law. As the Commission stated:

“The mere fact, therefore, that a certain agreement

is part of a collective bargaining agreement does not

138

automatically immunize that agreement from the

antitrust laws.” Multilith Report, p. 11.“

Elsewhere the Commission stated:

“We cannot, however, subscribe to the view that col-

lective bargaining agreements be granted a blanket

exemption from the Shipping Act.” Multilich Re-

port, p. 9.

Fourth, in determining whether labor-related agree-

ments are subject to the provisions of the Shipping Act,

1916, the Commission will proceed on an ad hoe case-by-

case basis. In making such determinations, furthermore,

the Commission will consider the criteria evolved in the

courts as guidelines or “rules or thumb” for each factual

situation. Thus, the Commission will consider such factors

as whether the agreement was the result of good-faith

collective bargaining, the subject matter was a manda-

tory subject of bargaining, whether the Union was acting

alone rather than at the behest of or in combination with

nonlabor groups, and whether the result of the bargain-

ing imposes terms on entities outside of the collective

bargaining group. Furthermore, the Commission will ex-

amine whether the agreement is the type of activity

which attempts to affect competition under the antitrust

laws or the Shipping Act and whether the impact of

the agreement upon business is significant or indirect and

remote. Finally, the relief requested or the sanction

imposed by law must then be weighed against its effect

upon the collective bargaining agreement. Multilith Re-

port, p. 8.

Moreover, the Commission held that it would give

consideration to labor policy on an ad hoc basis with

respect to possible violations of sections 16 and 17 of the

Shipping Act.

* Even Mr. Justice Douglas who dissented in Volkswagen from the

majority opinion that the FMC had jurisdiction over the assess-

ment agreement in question stated :

“To be sure, the parties to a collective bargaining pact must

frame their agreement to fit within the standards of the anti-

trust laws or any other governing statutes.” 390 U.S. at p. 312.

139

IV. PMA-ILWU AGREEMENTS WHICH APPLY TO

NON-PMA MEMBERS ARE NOT ENTITLED TO

A LABOR EXEMPTION BECAUSE OF THE NA-

TIONAL POLICY ENCOURAGING COLLECTIVE

BARGAINING. HOWEVER SUCH ARGEE-

MENTS APPEAR TO RAISE SUBSTANTIAL

ANTITRUST AND LABOR RATHER THAN

SHIPPING ACT PROBLEMS.

It seems clear, we submit, on the basis of the Commis-

sion’s decision in the BSA case and the cases cited there-

in that the agreement or agreements between PMA and

the ILWU embodied in the SMU No. 4, section 1.55 of

the Memorandum of Understanding regarding container

stuffing and stripping, and related agreements alleged in

the various complaints filed in the courts, are not entitled

to the so-called labor exemption from antitrust or regu-

latory law. Assuming as we must for purposes of deter-

mining jurisdiction that all the allegations by the Pacific

Northwest ports are true in fact, it appears that the

PMA and ILWU are simply attempting to coerce the

of the PMA by

same terms and conditions

“A business entity not a member of PMA must par-

ticipate in this ILWU-PMA Nonmember Participa-

tion t if it uses men in the joint work

force. nonmember participant’s separate ILWU

contract must conform with the provisions hereof,

inclusion in the joint work force.” (See Appendix,

SMU No. 4, paragraphs 1 and 2).

There are allegations, as we have seen, that the PMA.

has for some time been attempting to bring non-member

140

PMA ports into the association and that together with

the ILWU and PMA has conspired to accomplish this

objective and eliminate outside competition. It may be

that if this alleged conspiracy were to succeed the Pacific

Northwest ports who were previously free to contract

with the ILWU on an individual port-by-port basis free

and clear of PMA policies would suffer particular com-

petitive harm. However, the particular activity which

has given rise to the various complaints and petition, we

submit, stripped to its essence is a conspiracy or combi-

nation between a group of employers and a union to

force PMA membership on outsiders or impose terms and

conditions of their collective bargaining agreement upon

parties outside the collective bargaining unit with the

objective of monopolizing and controlling the entire in-

dustry on the West Coast.

This type of activity involving a conspiracy or combi-

nation between a group of employers and a union is one

which courts have traditionally dealt with in antitrust

cases. In such cases the Supreme Court has held time

and again that the parties to the conspiracy are not pro-

tected by the national policy encouraging collective bar-

gaining if they combine to restrain trade. Typically, the

Supreme Court has held:

“But when the unions particiapted with a combina-

tion of business men who had complete power to

eliminate all competition among themselves and to

prevent all competition from others, a situation was

created not included within the exemptions of the

Clayton and Norris-LaGuardia Acts.” Allen Bradley

Co. v. Local 3, International Brotherhood of Elec-

trical Workers, cited above, at p. 809.

Furthermore, the Supreme Court has made clear that

unions lose their protection from the reach of antitrust

laws if they enter into a combination with nonlabor i.e.,

employer groups. In this regard the Court has stated

that the unions must act:

“in pursuit of their own labor union policies and not

at the behest of or in combination with nonlabor

141

groups. Amalgamated Meat Cutters v. Jewel

Tea Co., cited above at pp. 689, 690. See also /nter-

continental Container Transport Corp. v. New York

Shipping Association, 426 F.2d 884, 886, 87 (2d Cir.

1970).

There is no protection from the antitrust laws merely

because a particular combination or conspiracy to re-

strain trade was the subject of collective bargaining and

actually became incorporated into a collective bargaining

agreement. United Stevedoring Corp. v. Boston Shipping

Association, cited above, at p. 11; United Mine Workers

v. Pennington, cited above, at pp. 664, 65.

The alleged agreements which are the subject of this

proceeding bear a striking resemblance to that found

unlawful under the antitrust laws by the Supreme Court

in the case of United Mine Workers v. Pennington, cited

above. In that case a group of large employers in the

mining industry had agreed with the union to impose

certain labor standards on smaller employers outside of

the immediate bargaining group. It was contended that

this scheme was intended to eliminate from competition

the smaller mine operators who allegedly could not with-

stand the costs of the particular terms and conditions of

employment which would be forced upon them. The

Court held:

“But we think a union forfeits its exemption from

the antitrust laws when it is clearly shown that it

has agreed with one set of employers to impose a

certain wage scale on other bargaining units. One

group of employers may not conspire to eliminate

competitors from the industry and the union is liable

with the employers if it becomes a party to the con-

spiracy. This is true even though the union’s part

in the scheme is an undertaking to secure the same

wages, hours, or other conditions of employment from

the remaining employers in the industry.” 381 U.S.

at pp. 665-66.

The Court held that parties to a collective bargaining

unit could not by agreement attempt to impose labor

142

standards outside of that unit or settle these matters for

an entire industry. Thus, the Court stated:

„. . . [T]he policy of the antitrust laws is clearly

set against employer-union agreements seeking to

prescribe labor standards outside the bargaining

unit.” 381 U.S. at p. 668.

“But there is nothing in the labor policy indicating

that the union and employers in one bargaining unit

are free to bargain about the wages, hours and

working conditions of other bargaining units or to

attempt to settle these matters for the entire indus-

try.” 381 U.S. at p. 666. .

“Thus the relevant labor and antitrust policies com-

pel us to conclude that the alleged agreement be-

tween UMW and the large operators to secure uni-

form labor standards throughout the industry, if

proved, was not exempt from

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