# Appendix — Federal Maritime Commission v. Pacific Maritime Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1696%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 435 U.S. 40 ## Text 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 : CN 888——————çꝙ—tĩCaꝰs 3ñl. 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“? ———ߧß5—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 Register. Motion of ILWU to dismiss petition for investi- 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. 5 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) (C)9-17-75 15-Respondents’ brief (m-15) (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 (C)2-24-76 15-Petitioner’s supplemental memorandum (m- 23) (H) 2-25-76 4-Respondents’ supplemental memorandum (m- 23) (C) 2-25-76 25-Intervenor's (Counci >of North Atlantic Ship- 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 C. 7 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) (C)9-17-75 15-Respondents’ brief (m-15) (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 (C)2-24-76 25-Petitioner’s supplemental memorandum (m- 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- 5) (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) 9 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 10 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- 5 f . i 3 } 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 14 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] 15 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 16 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 il ui $53 J f 81 8 8 ö H iil 8 ö 5 patie = <= ff yf SEE; fi 3 | ö : Hitt 13 2 i : 23212 125 : 28 4 i i N n 115 til 15 UHL 3 Hu Ga * it 1 1 + 1 11 ath i e a 1175 ie 11 SH Hi 115 2 1142545 2: it 11471 3 112 210 Hi Fae 11 — 3 . 2721 illi i: 2 fan e ll i 41 HH ; 155 iil 136 14117 * f ut ‘ at Kais 1113 11 ie f * 20 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 21 FEDERAL MARITIME COMMISSION [Served October 19, 1972— Federal Maritime Commission | [Caption Omitted] FIRST SUPPLEMENTAL ORDER SEVERING JURISDICTIONAL ISSUES 38 et 5 | i 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 f a 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; an 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 to 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 29 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 we 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. 36 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? 87 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. 42 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 44 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. 46 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- 3 i ff 7 ef i 1 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 : a ö 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 1 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 R] 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 i = i H i 10 Are i z i 181 11 1 5 Hl * 25 ay E 5 sz 2 i 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 SS fa? 111 Th 1 Fae 10 117 4 5 7 1 N . : : 1 8. : f N 7 5 A 2 t hiring hall. Stevedoring companies, members Notary Publie for Oregon PMA, — the work of and unloading My Commission Expires: 3/23/76 i 3 i 4 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 62 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. 1 iE 727151 ith lt brs tera Hit Ae 3682 f eie +H 4 Boe cere : — 5 J 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 66 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. 67 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. 69 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 70 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 : : ; ' 1 72 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 ie 111221 ‘i i 1 NEED FOR EVIDENTIARY —— /s/ Richard D. Ford e 31245 is 1 1 i ee z 7 5 - tab: tf vil 5 sha . i ate : 1 2 s 1455 1. 1 1 sh af 4717 A 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. 77 Exnrisit A“ July 20, 1972 Received Jul. 24, 1972, Exeeutive Dept., Port of Seattle] ; 3 5 8 ys 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 5 fh 425 585 at He + une 382821 ile zi 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 1 F F af $2 a 8 . 72 i ic 7 125 ah 15 gee 55 175 in 1 sedi Nonmember Participation Agreement will no longer ply to your company. 78 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 79 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 i | 1 i > 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 be 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 1 fl: 111 Tl Le 7831 = 3 d 5 : ‘ 4 F 5 r 1 i iF 82 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 of 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) By 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 84 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. 85 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 87 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 : i 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 = 8 3 S D 7 9 — 92 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. 5 Aar ig 111 Poe 8 145 1 f i 1 : ö 5 8 a 1 f 2 gi 4 ay “: ie E f 2 z : 4 T 4 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 I 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 | | : | : | 1 1 i 1 iF 4 17 hs 1111 11 4 „ 11155 1 12716 i ait ul : : Hill * i 75 1 171 12715 wt il 1 3 a 1 ays 25 5 1 5 : ang Ha He Hil; 272 ift 1145 111 Hake i TH 1112 1215 : 1 te _3 eet H AEE en es Pies ae ae 114 LL THE ii taal 1 e ih iin Ht , 1 + I lit F Ar ili: iii 10 } ii 1 975 Z . 111251 ie 111 i 1 423 oe 2171 11 2 SH Fees 17111 e e %% i = 1211 F 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 1. 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. 1. 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 z * 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 | 5 f 3 i 5 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, i : : : = f i i | a H 11 H i : (5) As soon as the N | | : HUI I Ib. 1 i 1 é i | : 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 LI 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 8 | 5 : 0 4. TTL: f i i 1 ai | i 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 t. (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- [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1696%3A02. Public record. Not legal advice.