Bill Mongelluzzo, June 22, 2015, JOC.com
A West Coast terminal operator that suffered through three years of International Longshore and Warehouse Union work slowdowns at the Port of Portland is promoting legislation that would make maritime labor slowdowns illegal.
The Preventing Labor Union Slowdowns Act was introduced over the weekend by U.S. Sen James Risch, R-Idaho. The PLUS Act would amend the National Labor Relations Act to make intentional slowdowns by maritime unions an unfair labor practice. Labor organizations engaging in slowdowns would be subjected to federal court injunctions to stop those actions, and injured parties, including importers and exporters, could file damage claims against the union.
“This makes it clear slowdowns are illegal. Slowdowns are not prohibited by federal law now,” said Elvis Ganda, CEO of ICTSI Oregon.
ILWU slowdowns during the 2104-15 contract negotiations with the Pacific Maritime Association lasted from early November until a tentative contract was reached on Feb. 20. Employers responded to the slowdowns by cutting back on night and weekend work opportunities for longshoremen. The slowdowns and employers’ retaliation resulted in the worst West Coast port congestion since the 2002 ILWU contract negotiations.
U.S. importers and exporters sustained huge economic damage due to port congestion, and this has focused the attention of Congress on the harm that can be caused by sustained work slowdowns as a bargaining tactic. “The work slowdown is a dishonest and pernicious practice,” Ganda said. “The longshoremen get full pay for working at half speed,” he said.
The prolonged work slowdowns and West Coast port congestion have attracted widespread attention in Congress. The PLUS Act is the third bill submitted in Congress the past two months to address such job actions.
Ganda believes the PLUS Act will be less difficult to pass because it amends the National Labor Relations Act, which already governs waterfront labor actions on both coasts. “We’re not reinventing the wheel, we’re just amending the act,” he said. Some employers and cargo interests have proposed placing the ILWU and International Longshoremen’s Association under the Railway Labor Act, which would prevent dockworker strikes and slowdowns and employer lockouts during contract negotiations, but Ganda said placing the unions under a different labor act would be quite difficult to pull off.
Both the ILA and United States Maritime Alliance, which represents port employers on the East and Gulf Coasts, have already come out against placing dockworkers under the Railway Labor Act.
Proving an intentional prolonged slowdown would not necessarily be easy, but it is possible with the correct record keeping and documentation. Proving intentional one-day or one-shift slowdowns would be more difficult, but exposing the union to financial damages by employers as well as non-PMA members such as importers and exporters would serve as a deterrent in some cases, Ganda said.
Most terminal operators keep detailed records of the daily productivity of their ship-to-shore cranes, yard cranes, gate operations and other activities throughout the facility. Ganda said this detailed information is used to establish key performance indicators and to improve productivity.
ICTSI knows a work slowdown when it sees one. ILWU Local 8 in Portland began a series of work slowdowns at Terminal 6, the port’s only container terminal, in June 2012, and the slowdowns continued until three months ago.
At that time the two largest shipping lines calling in Portland, Hanjin Shipping Co. and Hapag-Lloyd, said they could no longer tolerate the poor productivity, and they pulled out of the Pacific Northwest port. The two lines accounted for 99 percent of Portland’s container volume.
During the prolonged slowdowns, ICTSI filed two claims for damages with the NLRB and won both claims before NLRB administrative law judges, Ganda said. The cases are now in the hands of a federal court. If ICTSI eventually wins the cases, ICTSI could potentially collect millions of dollars in damages from the ILWU, he said.
The PLUS Act would potentially give importers and exporters the same recourse as terminal operators. For example, importers who missed the holiday season because their merchandise was sitting on a vessel at anchorage, or exporters whose crops rotted in the fields because port congestion prevented the loading of the export commodities onto vessels could possibly collect damages, Ganda said.
The purpose of the PLUS act is to prevent work slowdowns lasting from months to years, as ICTSI Portland experienced. However, even short maverick slowdowns could become less frequent if the ILWU knew the employer or cargo interest could seek damages under the PLUS Act, Ganda said.