International Longshore & Warehouse Union, Locals 8 & 40 v. Port of Portland, 279 Or. App. 146

Background

Terminal 6 at the Port of Portland was operated by the Port until 1993; thereafter stevedoring and longshore work were performed by private contractors under separate collective bargaining agreements (CBAs).
The Port and ILWU previously had a 1984 CBA, but the Port later informed ILWU it did not employ longshore workers and that the 1984 agreement had no effect; longshore labor at Terminal 6 has been privately managed since the 1990s.
In 2010 the Port leased Terminal 6 to ICTSI, which began operations in 2011 and employs ILWU members under a Pacific Maritime Association CBA; ICTSI also contracted with the Port to perform crane maintenance at Terminal 6.
ILWU filed an unfair labor practice complaint with the Employment Relations Board (ERB) alleging the Port refused to bargain over a successor to the 1984 agreement and refused to arbitrate alleged contractual violations (ORS 243.672(1)(e) and (g)).
ERB dismissed the complaint without a hearing for lack of jurisdiction, finding ILWU’s members are employees of private contractors (ICTSI), not the Port, and that petitioner never alleged its members were Port employees; ERB relied in part on ILWU’s own admissions and related NLRB findings.
On review, the court affirmed: ERB did not err because ILWU conceded its members are ICTSI employees and never pleaded or argued below that the Port employed those workers, so ERB properly found no factual issue requiring a hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ERB had jurisdiction under PECBA to hear ILWU’s unfair labor practice complaint	ILWU argued Port’s control, direction, and assignment of crane maintenance amounted to employment such that ERB had jurisdiction to require bargaining/arbitration	Port argued ILWU’s members are employees of private contractors (ICTSI) and ERB’s jurisdiction is limited to public employer–employee disputes	Held: ERB lacked jurisdiction because ILWU never alleged its members were Port employees and conceded they are ICTSI employees; dismissal without hearing affirmed
Whether ERB should have held a hearing on whether Port’s direction amounted to employment	ILWU contended its allegations that the Port controls and directs maintenance raised a factual issue requiring a hearing on employment status	Port pointed to ILWU’s statements and record evidence showing ICTSI employed the workers; no factual dispute was properly pleaded	Held: No hearing required—ILWU did not plead or argue below that Port employed the workers, and substantial evidence supports ERB’s finding that they were ICTSI employees
Proper interpretation of PECBA’s requirement that collective bargaining involves a public employer and representative of its employees	ILWU argued ERB applied too narrow a definition of "employ," urging tests like "right to control" would show employment	Port maintained PECBA requires the affected employees be public employer’s employees for ERB jurisdiction	Held: Court did not decide the broader statutory interpretation issue (ILWU did not preserve it on appeal) and ruled on the record-specific concession and lack of pleading

Key Cases Cited

Portland Assn. Teachers v. Mult. Sch. Dist. 1, 171 Or. App. 616 (Or. App. 2000) (standard of review for ERB orders and scope of judicial review of agency contested cases)
OSEA v. Salem-Keizer School Dist. 24J, 103 Or. App. 221 (Or. App. 1990) (ERB may dismiss without hearing where investigation shows no issue of fact or law)
McQuiggin v. Burr, 119 Or. App. 202 (Or. App. 1993) (factors for right-to-control test in employment status analysis)
SAIF v. DCBS, 250 Or. App. 360 (Or. App. 2012) (right-to-control test examines employer’s right to direct the individual’s performance)