705 F. App'x 1
D.C. Cir.2017Background
- ILWU challenged NLRB decisions that found ILWU lacked a lawful work-preservation objective and denied several procedural motions.
- Dispute concerned who had the right to assign "dockside reefer" (refrigerated container) work at Port of Portland Terminal 6 after the port leased terminal operations to ICTSI.
- ALJ found the Port retained the right to control assignment of dockside reefer work despite carriers owning reefers; the Port had reserved historical work practices when leasing to ICTSI.
- NLRB affirmed the ALJ, concluding ILWU’s pressure on neutral parties (ICTSI or carriers) constituted unlawful secondary activity because those parties lacked the right of control.
- ILWU also sought to reopen the record, take administrative notice and consolidate with a related case, and to supplement exceptions to challenge the Acting General Counsel’s appointment; the Board denied these motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ILWU had a lawful work-preservation objective (right of control) | Carriers own the reefers and thus have ultimate control over who handles them | Port retained the right to assign dockside reefer work; carriers purchase terminal services and lack assignment control | Board properly found Port retained control; ILWU’s tactics were unlawful secondary activity |
| Whether Board erred in denying ILWU’s motion to reopen the record for new evidence | New evidence relevant to control and claimability should be considered | Board exercised discretion; ALJ record was sufficient | Denial affirmed; Board did not abuse discretion |
| Whether Board should have taken administrative notice of/transferred transcript and evidence or consolidated with related case | Consolidation or administrative notice necessary for complete record and consistent rulings | Board reasonably declined to consolidate or take notice; separate proceedings justified | Denials affirmed; no abuse of discretion |
| Whether ILWU could supplement exceptions to argue Acting General Counsel was unconstitutionally appointed | Acting GC lacked authority, so complaint invalid | Board title and actions were valid; procedural challenge untimely/inappropriate here | Denial affirmed; Board’s rulings stand |
Key Cases Cited
- Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92 (D.C. Cir.) (scope of appellate review of NLRB findings)
- Titanium Metals Corp. v. NLRB, 392 F.3d 439 (D.C. Cir.) (standards for setting aside NLRB orders)
- Sutter E. Bay Hosps. v. NLRB, 687 F.3d 424 (D.C. Cir.) (review standards for Board factual findings)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S.) (substantial evidence standard for administrative findings)
- NLRB v. Int’l Longshoremen’s Ass’n, AFL-CIO, 447 U.S. 490 (U.S.) (right-of-control test for lawful work-preservation objectives)
- Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837 (U.S.) (deference to reasonable agency interpretations)