PCMC/Pacific Crane Maintenance Company, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 2013

359 N.L.R.B. 1206 (N.L.R.B. 2013)

1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 136
PCMC/Pacific Crane Maintenance Co., Inc. and/or
Pacific Marine Maintenance Co., LLC, a single
employer, and/or PCMC/Pacific Crane Mainte-
nance Co., LP, their successor and International
Association of Machinists and Aerospace Work-
ers, AFL–CIO, District Lodge 190, Local Lodge
1546, and District Lodge 160

International Longshore and Warehouse Union (Pa-
cific Crane Maintenance Co., Inc.) and Interna-
tional Association of Machinists and Aerospace
Workers, AFL–CIO, District Lodge 190, Local
Lodge 1546. Cases 32–CA–021925, 32–CA–
021974 (formerly 19–CA–029645), 32–CA–
021977 (formerly 19–CA–029692), 32–CA–
023613, and 32–CB–005932
June 24, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
This case arises as a result of a transfer of work and
the unit of employees who performed that work from one
company to a related company, the two of which, it was
stipulated at the hearing, constituted a single employer.
After the transfers, the single employer withdrew recog-
nition from the union that had represented the employees
for over 40 years and recognized a different union as
their representative.
The employees were permanently laid off by Pacific
Marine Maintenance Co., LLC (PMMC) and hired the
next day as new employees by Pacific Crane Mainte-
nance Co., Inc. (PCMC) (together, the Respondent Em-
ployer or Employer) when their work was contempora-
neously transferred from PMMC to PCMC. At the same
time, the Respondent Employer withdrew recognition
from the Machinists District Lodge 190, Local Lodge
1546, and Machinists District Lodge 160, affiliated with
the International Association of Machinists and Aero-
space Workers, AFL–CIO (collectively, the Machinists
or the Union), the employees’ representative, and recog-
nized in its place the International Longshore and Ware-
house Union (ILWU or Respondent Union), the repre-
sentative of PCMC’s preexisting complement of employ-
ees.
1

1 On February 12, 2009, Administrative Law Judge Clifford H. An-
derson issued the attached decision. The Acting General Counsel and
the Charging Party filed exceptions and supporting briefs. The Re-
spondent Employer and the Respondent Union filed answering briefs.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
The Acting General Counsel alleged that the Respond-
ent Employer acted unlawfully when it withdrew recog-
nition from the Machinists, extended recognition to the
ILWU, and applied its existing collective-bargaining
agreement with the ILWU to the unit employees. Cor-
relatively, the Acting General Counsel alleged that the
ILWU acted unlawfully when it accepted that recognition
and agreed to apply the existing collective-bargaining
agreement to the unit employees. The judge dismissed
all of those allegations.
We reverse. Based on the parties’ stipulation that
PMMC and PCMC were at all times material a single
employer, we find that the Respondent Employer was
obligated to bargain with the Machinists over the layoff
of the unit employees from PMMC and the terms and
conditions under which they would be offered continued
employment with PCMC.
2
We further find that the bar-
gaining unit retained a distinct community of interest
upon the transfer of unit work and unit employees to
PCMC, and that the Respondent Employer therefore vio-
lated Section 8(a)(5) and (2) by withdrawing recognition

The Acting General Counsel and the Machinists have excepted to
some of the judge’s credibility findings. The Board’s established poli-
cy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
We grant the Machinists’ motion to take administrative notice of the
complaint filed in a class action lawsuit (the Coudriet suit) in the Unit-
ed States District Court for the Western District of Washington. We
do not, however, give any weight to the assertions of fact contained in
the complaint. We deny the ILWU’s motion to strike certain state-
ments of fact from the Machinists’ brief on the ground that they are not
supported by record evidence. We shall, however, adopt the ILWU’s
suggested alternative and give no consideration to these purported
statements of fact. See Sunshine Piping, Inc., 351 NLRB 1371, 1372
fn. 12 (2007).
The Respondent Employer urges the Board to disregard certain of
the Acting General Counsel’s exceptions because they fail to comply
with Sec. 102.46 of the Board’s Rules and Regulations. We find that
the Acting General Counsel’s exceptions are in substantial compliance
with the Board’s Rules, and we have therefore considered them.
We have amended the judge’s conclusions of law, and substituted a
new remedy, Order, and notice to conform to the violations found. We
have modified the judge's recommended Order to provide for posting of
the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010).
2 Upon the parties’ entering into that stipulation, counsel for the
Acting General Counsel withdrew a complaint allegation that PCMC
was PMMC’s successor under NLRB v. Burns Security Services, 406
U.S. 272 (1972), and thereafter relied solely on a single-employer theo-
ry to establish the violations. Nonetheless, the judge included a succes-
sorship analysis in his decision. The Acting General Counsel excepts
to the judge’s inclusion of that analysis. We find merit in the exception
and therefore do not rely on the judge’s successorship analysis. How-
ever, we shall rely on the facts included there insofar as they are rele-
vant in determining whether the former PMMC unit remained appro-
priate for bargaining following the transition to PCMC. See below.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1207
from the Machinists, extending recognition to the ILWU,
and applying its collective-bargaining agreement with the
ILWU to the unit employees. In addition, we find that
the ILWU violated Section 8(b)(1)(A) and (2) by accept-
ing recognition as the unit employees’ representative and
agreeing to apply its collective-bargaining agreement,
including the union-security provisions, to the unit em-
ployees.
3

I. BACKGROUND
A. Underlying Facts
PCMC was incorporated in 1990 to perform marine
terminal maintenance and repair (M&R) work at ship-
ping terminals on the West Coast. After joining the Pa-
cific Maritime Association (PMA), a multiemployer as-
sociation, PCMC agreed to honor the PMA’s contract
with the ILWU (PMA-ILWU Agreement). PCMC grew
over the years. By the end of its first decade in business,
it was performing M&R work for various companies at
terminals in ports up and down the West Coast. It per-
formed a significant portion of that work for Maersk, a
shipping company.
4

In 1999, Maersk acquired the assets and operations of
another shipping company, Sealand, at terminals in Long
Beach and Oakland, California, and Tacoma, Washing-
ton. To acquire this work, Maersk agreed to continue to
use Sealand’s M&R mechanics, whom the Machinists
had represented since the 1960s. But Maersk did not
want to employ the former Sealand M&R mechanics
directly; it sought a contractor to employ those mechan-
ics and perform the M&R work at the three terminals.
To fill that need, PCMC entered into a partnership in late
1999 with another company, Marine Terminals Corp., to
form PMMC and to bid on the work.
5

Thereafter, Maersk and PMMC entered into a contract
under which PMMC began performing the former
Sealand work. PMMC retained Sealand’s Machinists-
represented M&R mechanics, recognized the Machinists
as their bargaining representative, and adopted Sealand’s

3 In August 2007, Pacific Crane Maintenance Co., LP purchased the
business and assets of PCMC and continued to operate the business
essentially in the same form. Prior to the purchase, Pacific Crane
Maintenance Co., LP was put on notice of PCMC’s potential liability in
this case. Pacific Crane Maintenance Co., LP is a named respondent
and a stipulated successor employer in this proceeding under both
Burns, supra, and Golden State Bottling v. NLRB, 414 U.S. 168 (1973).
Accordingly, Pacific Crane Maintenance Co., LP is jointly and several-
ly liable for the Respondent Employer’s unfair labor practices.
4 “Maersk” refers to Maersk, Inc., North America and/or its busi-
ness units Maersk Pacific/APM Terminals and Maersk Equipment
Services, Inc.
5 PMMC was headed by a four-member policy committee; the poli-
cy committee’s chairman and one of its committee members were, at
the same time, PCMC’s chief executive officer and chief operating
officer, respectively.
collective-bargaining agreement with the Machinists. In
2002, PMMC and the Machinists renewed that agree-
ment (the Machinists Agreement). That same year,
Maersk and PMMC renewed their contract but, at
Maersk’s insistence, on a month-to-month basis.
Over time, Maersk became dissatisfied doing business
with PMMC, deeming it too expensive owing to the la-
bor costs of the Machinists Agreement. In late 2004,
Maersk asked PMMC to submit a new bid in order to
retain the work. PMMC told Maersk that PMMC could
not do the work for less than the current contract rate,
with any labor cost increases incurred under a new Ma-
chinists collective-bargaining agreement to be passed
through to Maersk per industry practice. Maersk also
contacted PCMC. Maersk informed PCMC that the
PMMC-Machinists collective-bargaining agreement was
set to expire in early 2005 and that the labor costs under
that agreement were expected to rise by 12 percent; it
asked if PCMC could perform the work at a lower cost
than PMMC. PCMC responded that it could do so, be-
cause its M&R employees were covered by the lower
cost PMA-ILWU Agreement, which would not expire
until 2008.
On January 6, 2005,
6
Maersk representatives met with
principals of both PMMC and PCMC to discuss the situ-
ation. Maersk representatives opened the meeting by
announcing that Maersk expected to reduce its costs by
transferring the work to PCMC. Maersk, PMMC, and
PCMC then discussed how they could transition from a
PMMC/Machinists to a PCMC/ILWU work force and
the allocation of costs that would be incurred in such a
transition. They then worked out the details of a new
contract between Maersk and PCMC for the work.
Shortly after the meeting, Maersk emailed the meeting
participants to document its decision to terminate the
PMMC contract and transfer the work to PCMC.
On January 25, Maersk terminated its month-to-month
contract with PMMC effective the end of March and
awarded the work to PCMC. On January 26, PMMC
sent a letter to the Machinists (and posted it at the
PMMC Maersk worksites) announcing the loss of the
Maersk work and estimating that the unit employees
would be laid off about April 1. PMMC also enclosed
(and posted) a memo from PCMC, explaining how
PMMC’s Oakland and Tacoma mechanics could apply
for employment with PCMC.
7
The memo announced
that PCMC would begin performing the PMMC unit
work at the Oakland and Tacoma ports about April 1,

6 All subsequent dates are in 2005, unless otherwise stated.
7 By this time, PMMC was no longer performing the former Sealand
work at Long Beach. In 2002, that work had been consolidated at a
new Los Angeles terminal and PCMC was performing the work.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and that PCMC was “seeking qualified applicants to join
our existing work force in each of these ports.”
On February 4, the Machinists sought immediate nego-
tiations with PMMC over, among other things, the deci-
sion to cease work and the effects of that decision on the
unit employees. The Machinists also requested detailed
information regarding the relationship between PMMC
and PCMC. On February 17, PMMC agreed to bargain
with the Union over the effects of the layoffs, but assert-
ed that the decision itself was effectively made by
Maersk, not PMMC, when Maersk decided to use anoth-
er contractor. PMMC denied that a single-employer rela-
tionship existed between itself and PCMC,
8
and it re-
fused to furnish the information that the Machinists re-
quested.
On March 1, PCMC sent employment offers to 75–80
of the approximately 100 unit employees at Oakland and
Tacoma. The offer identified their work as belonging to
PCMC’s ILWU-represented bargaining unit and covered
by the PMA-ILWU Agreement. On March 9, PCMC
sent wage schedules and other information to those
PMMC employees who had accepted employment, and it
initiated new hire screening for them. By letter the next
day, the Machinists demanded that PCMC recognize it as
the representative of the PMMC unit employees. PCMC
refused to recognize the Machinists, explaining that it
had recognized the ILWU as the representative of its
“new employees” and that they were covered by the
PMA-ILWU Agreement. PMMC laid off the Machinists
represented mechanics on March 30 when its contract
with Maersk expired.
9

On March 31, PCMC hired 76 of the former PMMC
employees (and 6 more shortly thereafter), purportedly as
new employees, on condition that they be represented by
the ILWU, and it included them in the coastwide ILWU
bargaining unit and applied the PMA-ILWU Agreement
to them. PCMC permanently placed six of the former
PMMC Tacoma employees at the terminal of another
company, Evergreen, to perform nonunit work. At the
same time, PCMC permanently transferred 10 of its Ev-
ergreen based mechanics to Maersk’s Tacoma terminal to
perform unit work.
After the unit employees began working for PCMC,
they continued to perform essentially the same work, at
the same locations, and in the same organizational units
as before. The only significant changes in their terms
and conditions of employment resulted from the applica-
tion of the PMA-ILWU Agreement and PCMC’s “lean

8 The stipulation that PMMC and PCMC constituted a single em-
ployer was reached only after the hearing was underway.
9 Several PMMC managers transferred to PCMC management posi-
tions on or about the same date.
staffing” model of operations. Under its lean staffing
model, PCMC maintained steady employee complements
at each of its terminal operations that were just large
enough to perform the M&R work at the terminal during
slack periods. It temporarily expanded its work force
during periods of heightened workload by transferring
mechanics from other terminals and using the ILWU
hiring hall.
10
Commencing on March 31, PCMC as-
signed unit employees nonunit work and nonunit em-
ployees unit work, in accordance with its lean staffing
model.
11

B. The Complaint
The final amended consolidated complaint alleged in
relevant part that PMMC and PCMC were a single em-
ployer (the Respondent Employer) and that the Respond-
ent Employer violated Section 8(a)(5) and (1) by an-
nouncing to unit employees that they would be laid off
from PMMC and any potential reemployment would be
as members of the existing PCMC ILWU-represented
work force; engaging in direct dealing with unit employ-
ees by offering them employment under the terms and
conditions of the PMA-ILWU Agreement; unilaterally
laying off unit employees; unilaterally changing terms
and conditions, including by assigning nonunit work to
unit employees and unit work to nonunit employees; and
withdrawing recognition from the Machinists. In addi-
tion, the complaint alleged that the Respondent Employer
violated Section 8(a)(2) and (1) by recognizing the Re-
spondent Union as the representative of the unit employ-
ees and applying the PMA-ILWU Agreement, including
its union-security provisions, to the unit employees. The
complaint further alleges that the Respondent Union vio-
lated Section 8(b)(1)(A) and (2) by accepting recognition
from the Respondent Employer and agreeing to apply the
PMA-ILWU Agreement, including its union-security
provisions, to the unit employees.
The Acting General Counsel’s theory of the case, as
litigated at the hearing and argued to the judge, was that
the change in the paper identity of the unit employees’
“employer” from PMMC to PCMC did not, in and of
itself, alter the Respondent Employer’s preexisting obli-
gation to bargain with the Machinists as to those em-
ployees because PMMC and PCMC were, for labor law
purposes, the same entity. Thus, the single-employer

10 As members of the ILWU, the unit employees became eligible to
use the ILWU hiring hall to obtain additional shifts with the Respond-
ent Employer and other signatories to the PMA-ILWU Agreement that
requested employees through the hiring hall.
11 In contrast, while working for PMMC, unit employees performed
unit work at a single terminal (Oakland or Tacoma) with a stable work
force composed of other unit employees who were permanently as-
signed to the same terminal.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1209
stipulation meant that PMMC and PCMC together con-
stituted a single employing enterprise and thereby fore-
closed any argument that the change from PMMC to
PCMC as the “employer” provided an opportunity for a
change in the status of the unit employees’ bargaining
representative. The Acting General Counsel argued fur-
ther that the Respondent Employer has failed to establish
that its conduct was privileged because the historical unit
lost its separate identity and was lawfully merged into
the ILWU coastwide unit.
C. The Judge’s Decision
Despite the parties’ single-employer stipulation, the
judge rejected the Acting General Counsel’s single-
employer theory. As he saw it, PMMC and PCMC acted
independently of one another in bidding for the unit
work, and Maersk’s decision to award the work to
PCMC caused PMMC to lose the work. The judge ex-
plained, further, that PMMC’s loss of all unit work and
all prospects for obtaining unit work necessitated the
layoff of its employees. The judge reasoned that PMMC
did not violate Section 8(a)(5) by refusing to bargain
about a decision over which it had no control.
The judge additionally found that PCMC did not suc-
ceed to PMMC’s bargaining obligation because the his-
torical unit lost its distinct identity and was lawfully
merged with the larger ILWU coastwide bargaining unit.
In reaching this conclusion, the judge primarily relied on
the interchange of unit and nonunit employees that re-
sulted from application of the lean staffing model and
from hiring hall usage practices under the PMA-ILWU
Agreement. The judge found that the lean staffing mod-
el was “a fundamental change in the employer’s choice
in business model that has permanent and significant
consequences to the unit employees whose loyalties and
orientation would shift, in part, from the PMMC model
of the single employer who provides all the work the
employee does in a single place, to the larger multi-
facilities perspective of the multiterminal employer
and—to the extent the employee registers for his or her
own dispatch employment [through the hiring hall], to
the far wider perspective of the PMA-ILWU coastwide
unit.”
The judge rejected the Acting General Counsel’s con-
tention that the Respondent Employer’s unilateral appli-
cation of the lean staffing model and the PMA-ILWU
Agreement (including its hiring hall provisions) were
themselves violative of Section 8(a)(5) and, therefore,
could not be relied upon in determining whether the his-
torical bargaining unit remained appropriate. Citing
First National Maintenance
12
and AG Communication
Systems,
13
the judge found that PCMC’s decision to inte-
grate the two historically separate units and thereafter
apply the business model in place at all of its other ter-
minal operations constituted an entrepreneurial decision
not amenable to collective bargaining.
Having found that the PMMC mechanics were sub-
sumed within the larger ILWU coastwide unit, the judge
dismissed the unfair labor practice allegations that were
premised on the continuing representative status of the
Machinists, including those related to the unilateral
changes in the unit employees’ terms and conditions of
employment; the withdrawal of recognition from the
Machinists and recognition of the ILWU as the collec-
tive-bargaining representative of the unit employees; and
the application of the PMA-ILWU Agreement, including
its union-security provision, to the unit employees.
The Acting General Counsel asserts that the judge
erred by discounting the single-employer stipulation and,
in consequence, erroneously treating PMMC and PCMC
as separate, independent actors in his analysis. Looked
at properly, the Acting General Counsel asserts, the Re-
spondent Employer, as a single employer, violated Sec-
tion 8(a)(5) by laying off and rehiring the unit employees
without bargaining with the Machinists, and by its sub-
sequent unilateral changes to their terms and conditions
of employment. The Acting General Counsel further
contends that the historical unit survived the transition to
PCMC and the Respondent Employer was therefore ob-
ligated at all relevant times to recognize and bargain with
the Machinists.
For the reasons set out below, we find merit in the po-
sition of the Acting General Counsel. We therefore re-
verse the judge’s decision and find the violations alleged.
II. ANALYSIS
As stated, the parties stipulated that PMMC and
PCMC together constituted a single enterprise, the Re-
spondent Employer. Board and court precedent therefore
dictates that the Respondent Employer be held responsi-

12 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679–
680 (1981) (core entrepreneurial decisions regarding the scope and
direction of the employer’s business are subject to bargaining “only if
the benefit, for labor-management relations and the collective-
bargaining process, outweighs the burden placed on the conduct of the
business” and “a desire to reduce labor costs” is “peculiarly suitable for
resolution within the collective-bargaining framework”).
13 AG Communication Systems Corp., 350 NLRB 168, 171–172
(2007), affd. sub nom. Electrical Workers Local 21 v. NLRB, 563 F.3d
418 (9th Cir. 2009) (employer did not violate Sec. 8(a)(5) by failing to
provide union with notice and an opportunity to bargain over decision
to fully integrate separate bargaining units, because the decision in-
volved a change in the scope and direction of the enterprise within the
meaning of First National Maintenance, supra).
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ble to bargain with the Machinists regardless of which of
its corporate manifestations nominally employed the bar-
gaining unit employees.
14
In other words, the Respond-
ent Employer could not escape its bargaining obligation
by the simple device of laying off the Machinists-
represented employees from PMMC on March 30 and
then rehiring them as “new” employees of PCMC on
March 31, given that PMMC and PCMC were, for labor
law purposes, the same entity.
Accordingly, if the Respondent Employer desired to
cooperate with Maersk in effecting the transfer of the
unit work and unit employees from PMMC to PCMC, it
was first obligated to bargain (to agreement or impasse)
with the Machinists about any changes in the unit em-
ployees’ terms and conditions of employment, including
the layoff of the unit employees’ from PMMC, whether
they would be reemployed by PCMC, and what their
initial terms and conditions would be upon reemploy-
ment.
15
The judge found that the Respondent Employer
had no obligation to bargain about these matters because,
first, they were the direct result of Maersk’s decision to
award the unit work to PCMC, a decision outside of the
Respondent Employer’s control and, second, they were
exempt from bargaining under First National Mainte-
nance, supra. The layoff, reemployment, and unilateral
changes, however, were not an inevitable consequence of
Maersk’s decision, but were only “one of a number of
responses to changed circumstances.”
16
Thus, the Re-

14 Pathology Institute, 320 NLRB 1050, 1050 (1996) (“an employ-
ment transfer of represented employees from one to another of [the]
entities [constituting a single employer] will not, of itself, obliterate a
historic unit and whatever obligations have arisen as a result of its
existence”), enfd. mem. 116 F.3d 482 (9th Cir. 1997), cert. denied 522
U.S. 1028 (1997); Hahn Motors, Inc., 283 NLRB 901 (1987); Blumen-
thal Theatres Circuit, 240 NLRB 206, 217 (1979).
15 See, e.g., Naperville Jeep/Dodge, 357 NLRB 2217, slip op. at
2218–2219 and fn. 7 (2012); Blumenthal Theatres Circuit, 240 NLRB
at 217.
16 Holly Farms Corp., 311 NLRB 273, 277–278 (1993), enfd. 48
F.3d 1360 (4th Cir. 1995), affd. 517 U.S. 392 (1996). In Holly Farms,
the Board found that the respondent employer’s decision to integrate its
operations and merge two bargaining units with a history of separate
representation was insulated from bargaining under First National
Maintenance, supra. But the Board found that the employer violated
Sec. 8(a)(5) by failing to bargain about “the various ways in which the
integration might affect the employment status and wages and benefits
of [the represented employees].” Id. at 278. The Board emphasized
that the terms under which the employees were offered employment
with the surviving entity were not an inevitable consequence of the
functional integration of the employer’s operations, but “were only one
of a number of responses to changed circumstances.” Id. See also
Naperville Jeep/Dodge, 357 NLRB 2252, 2253–2254 and fn. 7, in
which the Board found that when the respondent employer closed one
of two entities comprising a single employer and merged the represent-
ed employees of the closed entity into the larger group of unrepresented
employees of the surviving entity, it was obligated to bargain with the
union that represented the employees of the closed entity over such
spondent Employer could have bargained with the Ma-
chinists over the transfer of the unit employees to PCMC
without an intervening layoff and loss of seniority. Al-
ternatively, it could have maintained the unit employees’
terms and conditions while it negotiated with the Ma-
chinists over cost saving concessions.
Contrary to the judge’s findings, the layoff and unilat-
eral changes did not constitute a core entrepreneurial
decision exempt from bargaining under First National
Maintenance, supra. The basic nature of the Respondent
Employer’s operation remained the same, as did the
work of the unit employees. Indeed, the judge found that
“[g]enerally the same employees, now PCMC employ-
ees, were doing the identical work . . . at the same facility
and locations within the facility using the same tools and
equipment to do so.”
The overwhelming record evidence establishes, more-
over, that the decisions at issue were motivated by a de-
sire to reduce labor costs. Although, as the judge found,
Maersk was focused on its costs during the bidding pro-
cess, the Respondent Employer’s focus was on the man-
ner in which it would achieve the cost-savings that
Maersk sought and incorporated into the Maersk-PCMC
contract. The record shows in this regard that PMMC
charged Maersk a contract rate of approximately $74 an
hour for the Oakland and Tacoma M&R work, while
PCMC’s contract rate was approximately $65 an hour. It
is undisputed that the difference in the contract rates
charged by PMMC and PCMC was attributed by Maersk
and the Respondent Employer to the higher labor costs
associated with operating under the Machinists Agree-
ment as compared to the PMA-ILWU Agreement. Ac-
cordingly, when Maersk awarded the contract to PCMC,
the Respondent Employer laid off the entire bargaining
unit of approximately 100 employees and rehired fewer
of them (approximately 80) to perform the same work as
members of its ILWU-represented work force and under
the terms and conditions of the PMA-ILWU Agreement.
It also increased the percentage of employees on the day
shift in order to reduce shift differentials and overtime,
and it applied its lean staffing model.
Those changes, all of which ultimately affected labor
costs, were amenable to bargaining with the Machinists.
Thus, the Respondent Employer could have bargained
with the Machinists to see if it would make concessions
on wages, hours, benefits, and staffing levels. Further,
although PCMC, unlike PMMC, used a lean staffing
model, the Respondent Employer could have bargained
with the Machinists for a comparable arrangement, per-

matters as layoffs, preferential hiring, wages, work locations, sched-
ules, carryover of seniority, and other terms and conditions of employ-
ment.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1211
haps including the temporary transfer of Machinists-
represented mechanics from other terminals to assist as
needed when there was an increase in work at the Oak-
land and Tacoma terminals. By bargaining over these
issues, the Respondent Employer might have won con-
cessions from the Machinists that would have allowed it
to perform the work profitably at the bid price accepted
by Maersk. Although such an outcome was not assured,
that did not nullify the Respondent Employer’s obliga-
tion to notify and, upon request, bargain with the Ma-
chinists over any changes in the terms and conditions of
employment of the unit employees. By failing to do so,
the Respondent Employer violated Section 8(a)(5) of the
Act.
We also reverse the judge’s findings that the historical
bargaining unit did not survive the transfer of the unit
work from PMMC to PCMC on March 31 and that the
PMMC mechanics were lawfully merged into the ILWU-
PMA bargaining unit. The Board considers the tradi-
tional community-of-interest factors to determine wheth-
er a unit remains appropriate for bargaining in light of
changed circumstances, see, e.g., Safeway Stores, 256
NLRB 918 (1981), but gives significant weight to the
parties' history of bargaining in separate units: “compel-
ling circumstances are required to overcome the signifi-
cance of bargaining history.”
17
Given that the Machinists
had represented the historical bargaining unit for nearly
40 years, the Respondent Employer, as the party assert-
ing that a merger occurred, has the burden of establishing
that such “compelling circumstances” exist.
18
We find
that it has failed to satisfy that burden.
19

17 Naperville Jeep/Dodge, 357 NLRB No. 183, slip op. at 2 (quoting
ADT Security Services, 355 NLRB 1388, 1388 (2010), and Radio Sta-
tion KOMO-AM, 324 NLRB 256 (1997)). See also Serramonte
Oldsmobile, 318 NLRB 80, 104 (1995), enfd. in relevant part 86 F.3d
227 (D.C. Cir. 1996); Children's Hospital, 312 NLRB 920, 929 (1993)
(“Both the Board and the courts have long recognized not only that the
traditional factors, which tend to support the finding of a larger or sin-
gle unit as being appropriate, are of lesser cogency where a history of
meaningful bargaining has developed, but also that this fact alone sug-
gests the appropriateness of a separate bargaining unit and that compel-
ling circumstances are required to overcome the significance of bar-
gaining history.”) (internal quotation marks omitted), enfd. sub nom.
California Pacific Medical Center v. NLRB, 87 F.3d 304 (9th Cir.
1996).
18 See Naperville Jeep/Dodge, 357 NLRB 2252, 2252.
19 The judge found that the 2002 loss of the non-crane maintenance
and repair work at Maersk’s Long Beach terminal and the consequent
layoff of about 70 unit employees had effectively destroyed the histori-
cal bargaining unit. We view the facts differently. The fact that, in
2005, approximately 100 unit employees remained at the Oakland and
Tacoma locations demonstrates that the historical bargaining unit re-
mained intact. See Pathology Institute, 320 NLRB at 1051 (multi-
location bargaining unit retained its separate identity when it was re-
duced in scope and composition).
As of March 31, there were no significant changes to
the former PMMC unit employees’ terms and conditions
of employment that might warrant a finding of “compel-
ling circumstances.”
20
On that date, as discussed above,
the unit employees generally continued to perform the
same work at the same location, with the same tools and
equipment as they had before the merger, working under
separate immediate supervision from the ILWU-
represented employees.
The only significant changes in the unit employees’
terms and conditions resulted from the Respondent Em-
ployer’s application of the PMA-ILWU Agreement to
the unit employees and its assignment of unit employees
to perform nonunit work at nonunit locations and of non-
unit employees to perform unit work. We do not consid-
er these changes in determining whether the former
PMMC unit lost its separate identity. By failing to bar-
gain with the Machinists over the terms and conditions
under which the PMMC employees would be offered
employment with PCMC, the Respondent Employer vio-
lated the Act. Accordingly, it cannot now rely on the
results of those unfair labor practices to establish an inte-
gration of operations requiring the merger of bargaining
units.
21

The judge, citing AG Communication, supra, 350
NLRB 168, found that the Respondent Employer had a
“well-defined plan” in place—its lean staffing model—
when it merged the two units and withdrew recognition
from the Machinists. The judge therefore deemed it ap-
propriate to consider the interchange of unit and nonunit
employees that occurred on and after March 31, in de-
termining whether the former PMMC unit retained a dis-
tinct community of interest. We find the judge’s reliance
on AG Communication to be misplaced, as that case is
factually distinguishable. In AG Communication, the

20 In determining whether circumstances exist that warrant the mer-
ger of bargaining-unit employees into a larger unit or employee group,
the Board examines the nature of the operations “at the time of the
withdrawal of recognition unless there is a well-defined plan or timeta-
ble for achieving fuller functional integration.” Comar, Inc., 339
NLRB 903, 910 (2003). PMMC effectively withdrew recognition from
the Machinists, and PCMC refused to recognize it, on March 31. For
the reasons explained below, the evidence falls short of establishing
that the Respondent Employer had a “well-defined plan or timetable for
achieving fuller functional integration” after that date. Id. Thus, we
consider whether changed circumstances existed as of March 31.
21 See Naperville Jeep/Dodge, 357 NLRB 2252, slip op. at 2253 (“In
determining whether an established bargaining unit retains its distinct
identity, we do not consider the effects of the Respondent’s unlawful,
unilateral changes to the existing unit employees’ terms and conditions
of employment, as giving weight to such changes would reward the
employer for its unlawful conduct.”); Comar, Inc., 349 NLRB 342,
357–358 (2007); Deaconess Medical Center, 314 NLRB 677, 677 fn. 1
(1994); Holly Farms, 311 NLRB at 277–278.

1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Board, distinguishing Holly Farms, supra, found that the
employer did not violate Section 8(a)(5) by integrating
separate bargaining units without bargaining with the
union that represented the smaller unit and subsequently
withdrawing recognition from that union, because it act-
ed pursuant to a “well-defined plan or timetable for
achieving full functional integration of operations at the
time the withdrawal of recognition occurred.” 350
NLRB at 172 fn. 8. In so finding, the Board emphasized
that the employer’s integration decision was not animat-
ed by a desire to reduce labor costs; rather, it was part of
a large-scale organizational restructuring that reflected a
core change in the scope and direction of the enterprise
contemplated by First National Maintenance, supra. Id.
at 172.
By contrast, the Respondent Employer’s decision to
merge the two historically separate units was based pre-
dominantly on labor costs and was not accompanied by
the full functional integration of the units or a large-scale
organizational restructuring within the ambit of First
National Maintenance. Indeed, even 9 months after the
consolidation, the bargaining units were not integrated to
such a degree as to negate the separateness of the PMMC
unit. Although some interchange occurred, the majority
of the work performed by the unit employees continued
to be unrelated to, and functionally distinct from, the
work of PCMC’s preexisting complement of employees.
These facts confirm that when the Respondent Employer
withdrew recognition from the Machinists on March 31,
it had no plans to fully integrate the former PMMC unit
into its existing operations. The Respondent Employer
therefore was not entitled to rely on its unilateral changes
in the unit employees’ terms and conditions of employ-
ment on or after March 31 to justify refusing to bargain
with the Machinists. Comar, Inc., 339 NLRB at 910–
911; Holly Farms, 311 NLRB at 279.
In sum, having found, by virtue of the single-employer
stipulation, that the Respondent Employer had a continu-
ing obligation to recognize and bargain with the Machin-
ists as the exclusive bargaining representative of the unit
employees and that the Machinists bargaining unit re-
mained an appropriate unit after the transfer of the Oak-
land and Tacoma M&R work to PCMC, we further find,
as alleged in the complaint, that the Respondent Employ-
er violated Section 8(a)(5) and (1) of the Act by engaging
in the following conduct: (1) announcing to employees
on January 26 that, after March 31, they would be laid
off from PMMC and offered reemployment with PCMC
contingent upon their agreeing to representation by the
ILWU; (2) bypassing the Machinists and engaging in
direct dealing by offering employment to the unit em-
ployees under the terms and conditions of the PMA-
ILWU Agreement; (3) refusing to bargain with the Ma-
chinists on request; (4) unilaterally laying off the unit
employees effective March 30; (5) on and after March
31, employing the unit employees under terms and con-
ditions of employment different from those set out in the
Machinists Agreement; (6) on and after March 31, as-
signing unit employees to perform nonunit work and
assigning nonunit employees to perform unit work with-
out notifying the Machinists or giving it an opportunity
to bargain over the assignments; and (7) withdrawing
recognition from the Machinists.
We also find, as alleged, that the Respondent Employ-
er violated Section 8(a)(2) by granting assistance and
recognition to the ILWU as the exclusive collective-
bargaining representative of the unit employees, and by
applying the PMA-ILWU Agreement, including its un-
ion-security provisions, to the unit employees at a time
when the ILWU did not represent an unassisted and un-
coerced majority of the employees in the unit. Finally,
we find that the ILWU violated Section 8(b)(1)(A) and
(2) by accepting such recognition and applying the PMA-
ILWU Agreement, including its union-security provi-
sions, to the unit employees at a time when it had not
demonstrated that it had exclusive majority representa-
tive status.
22

AMENDED CONCLUSIONS OF LAW
1. PCMC/Pacific Crane Maintenance Company, Inc.
and Pacific Marine Maintenance Co., LLC, a single re-
spondent employer, and PCMC/Pacific Crane Mainte-
nance Company, LP, as a successor to PCMC/Pacific
Crane Maintenance Company, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. District Lodge 190, Local Lodge 1546, and District
Lodge 160, affiliated with the International Association
of Machinists and Aerospace Workers of America, AFL–
CIO (Machinists or the Union), and the International
Longshore and Warehouse Union (ILWU or the Re-
spondent Union) are labor organizations within the
meaning of Section 2(5) of the Act.
3. The Machinists is, and at all material times has
been, the exclusive joint bargaining representative for the
following appropriate unit:
All employees performing work described in and cov-
ered by “Article 1, Section 2. Work Jurisdiction” of the

22 There were no exceptions to the judge’s findings that the Re-
spondent Employer violated Sec. 8(a)(5) by modifying the Bulletin
Board Provision of the Machinists Agreement by imposing new re-
strictions concerning what materials could be placed on the bulletin
board at its Oakland facility, and that it did not unlawfully modify the
Union Access Provision of the Machinists Agreement at the Tacoma
facility.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1213
April 1, 2002 through March 31, 2005 collective-
bargaining agreement between the Union and . . .
PMMC, herein called the Agreement; excluding all
other employees, guards, and supervisors as defined in
the Act.
4. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by notifying the Machinists and the
unit employees that the unit employees would be laid off
from PMMC and employees interested in continuing to
perform unit work could do so only if they were hired as
employees of PCMC under ILWU representation.
5. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by bypassing the Machinists and di-
rectly offering unit employees continued employment in
the unit on the basis of terms and conditions of employ-
ment different from those set forth in the Machinists
Agreement, including its wage and fringe benefit provi-
sions, and on condition that they be represented by the
ILWU.
6. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by refusing to bargain collectively, on
request, with the Machinists as the exclusive collective-
bargaining representative of the unit employees concern-
ing wages, hours, and other terms and conditions of em-
ployment.
7. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by unilaterally modifying the Bulletin
Board Provision of the Machinists Agreement by impos-
ing new restrictions concerning what materials could be
placed on the bulletin board located in its Oakland, Cali-
fornia facility.
8. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by laying off unit employees without
first notifying the Machinists and giving it a meaningful
opportunity to bargain regarding the decision to lay off
unit employees.
9. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by altering the unit employees’ terms
and conditions of employment without first notifying the
Machinists and bargaining to agreement or impasse re-
garding such changes in the wages, hours, and working
conditions of the unit employees.
10. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by assigning unit employees to nonunit
positions and locations, and by assigning nonunit em-
ployees to perform unit work, without first notifying the
Machinists and giving it a meaningful opportunity to
bargain about such assignments and the effects of such
assignments.
11. The Respondent Employer violated Section 8(a)(5)
and (1) of the Act by withdrawing recognition from the
Union as the exclusive collective-bargaining representa-
tive of the unit employees and thereafter continuously
failing and refusing to bargain with the Machinists as the
exclusive collective-bargaining representative of the unit
employees.
12. The Respondent Employer violated Section 8(a)(2)
and (1) of the Act by granting assistance to the Respond-
ent Union and recognizing it as the exclusive collective-
bargaining representative of the unit employees, and by
applying the terms and conditions of employment of the
PMA-ILWU Agreement, including its union-security
provisions, to the unit employees, at a time when the
Respondent Union did not represent an unassisted and
uncoerced majority of the employees in the unit, and
when the Machinists was the exclusive collective-
bargaining representative of the unit employees.
13. The Respondent Union violated Section 8(b)(1)(A)
and (2) by accepting recognition from the Respondent
Employer as the exclusive collective-bargaining repre-
sentative of the unit employees, and by agreeing to the
application of the PMA-ILWU Agreement, including its
union-security provisions, to the unit employees, at a
time when it did not represent an uncoerced majority of
the employees in the unit and the Machinists was the
exclusive collective-bargaining representative of the em-
ployees in that unit.
AMENDED REMEDY
Having found that the Respondent Employer and the
Respondent Union have engaged in certain unfair labor
practices, we shall order them to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent Employer shall be ordered to with-
draw recognition from the Respondent Union as the col-
lective-bargaining representative of the unit employees
unless and until the Respondent Union has been certified
by the Board as their collective-bargaining representa-
tive. In addition, the Respondent Union shall be ordered
to cease accepting the Respondent Employer’s recogni-
tion unless and until it is so certified. Both Respondents
will be ordered to cease and desist applying the PMA-
ILWU Agreement, including its union-security provi-
sions, and any extension, renewal, or modification there-
of, to the unit employees.
The Respondent Employer also will be ordered to rec-
ognize and, on request, bargain with Machinists District
Lodge 190, Local Lodge 1546, and District Lodge 160,
affiliated with the International Association of Machin-
ists and Aerospace Workers, AFL–CIO (Machinists), as
the joint bargaining representative of the unit employees
with respect to wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed document. As discussed below,
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

we find that an affirmative bargaining order is warranted
in this case as a remedy for the Respondent Employer’s
unlawful withdrawal of recognition. The Respondent
Employer shall also be required to rescind, on the Ma-
chinists’ request, any or all of the unilateral changes to
the unit employees’ terms and conditions of employment
made on or after March 31, 2005, and to make the unit
employees whole for any loss of earnings and other ben-
efits attributable to its unlawful conduct. The make-
whole remedy shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
The Respondent Employer additionally will be re-
quired to offer reinstatement to all employees laid off
from PMMC on March 30, 2005, and not reemployed by
PCMC, and to make them whole for any loss of earnings
and other benefits suffered as a result of their unlawful
layoff. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra. The Respondent Employer also will
be required to expunge from its files and records any and
all references to the unlawful layoffs and notify the af-
fected employees in writing that this has been done and
that the discharge will not be used against them in any
way.
The Respondent Employer also will be required to
make all contractually required contributions to the Ma-
chinists benefit funds that it failed to make, including any
additional amounts due the funds on behalf of the unit
employees in accordance with Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979), and to make the
employees whole for any expenses they may have in-
curred as a result of the Respondent Employer’s failure
to make such payments, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981), such amounts to be computed
in the manner set forth in Ogle Protection Service, supra,
with interest as prescribed in New Horizons for the Re-
tarded, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra.
23

23 At compliance, the Respondent Employer may litigate the issue of
whether the contributions due the Machinists benefit funds may be
offset by payments the Respondent Employer may have made on behalf
of the unit employees to the ILWU benefit funds. We observe, howev-
er, that employees have a stake not only in receiving agreed-upon bene-
fits, but also in the viability of the benefit funds administered by their
own chosen collective-bargaining representative. Diverting contribu-
tions from those funds “undercut[s] the ability of those funds to provide
The Respondent Employer additionally shall be or-
dered to (1) compensate the unit employees for any ad-
verse income tax consequences of receiving their back-
pay in one lump sum and (2) file a report with the Social
Security Administration allocating the backpay to the
appropriate calendar quarters, as set forth in Latino Ex-
press, Inc., 359 NLRB No. 44 (2012).
Further, the Respondent Employer and the Respondent
Union will be ordered jointly and severally to reimburse
all present and former unit employees who joined the
Respondent Union on or since March 31, 2005, for any
initiation fees, periodic dues, assessments, or any other
monies they may have paid or that may have been with-
held from their pay pursuant to the PMA-ILWU Agree-
ment, together with interest as prescribed in New Hori-
zons for the Retarded, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra.
We also shall order the Respondent Employer and the
Respondent Union to post the Board’s standard Notice to
Employees and Notice to Employees and Members, re-
spectively. In addition, in light of the close factual con-
nection between the unfair labor practices committed by
the Respondent Employer and the Respondent Union, we
will further order each Respondent to post a signed copy
of the other Respondent’s notice, which will be provided
by the Region, in the same places and under the same
conditions as each posts its own notice.
Finally, as stated above, for the reasons set forth in
Caterair International, 322 NLRB 64 (1996), we find
that an affirmative bargaining order is warranted in this
case as a remedy for the Respondent Employer’s unlaw-
ful withdrawal of recognition. The Board has consistent-
ly held that an affirmative bargaining order is “the tradi-
tional, appropriate remedy for an 8(a)(5) refusal to bar-
gain with the lawful collective-bargaining representative
of an appropriate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required the
Board to justify, on the facts of each case, the imposition
of an affirmative bargaining order. See, e.g., Vincent
Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C.
Cir. 2000); Lee Lumber & Bldg. Material Corp. v. NLRB,
117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos,
Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In

for future needs.” Stone Boat Yard v. NLRB, 715 F.2d 441, 446 (9th
Cir. 1983); see Active Transportation Co., 340 NLRB 426, 426 fn. 2
(2003), enfd. 112 Fed. Appx. 60 (D.C. Cir. 2004).
To the extent that an employee has made personal contributions to a
fund that are accepted by the fund in lieu of the employer’s delinquent
contributions during the period of the delinquency, the Respondent
Employer will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to the amount that the Respondent
Employer otherwise owes the fund.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1215
Vincent, supra at 738, the court summarized its require-
ment that an affirmative bargaining order “must be justi-
fied by a reasoned analysis that includes an explicit bal-
ancing of three considerations: ‘(1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act over-
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violations of the Act.’”
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case and find
that a balancing of the three factors warrants an affirma-
tive bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining through their
designated representative by the Respondent Employer's
withdrawal of recognition, its resultant refusal to bargain
collectively with the Machinists, and its recognition of
the ILWU, and by the ILWU’s acceptance of that recog-
nition. It is particularly appropriate here, where the Re-
spondent Employer not only laid off the unit employees
and significantly changed their terms and conditions of
employment without notice to or bargaining with the
Machinists, but also overrode the unit employees’ exer-
cise of their Section 7 rights by their choice to be repre-
sented by the Machinists, and further conditioned their
continued employment on their acceptance of representa-
tion by the ILWU. At the same time, an affirmative bar-
gaining order, with its attendant bar to raising a question
concerning the Machinists’ continuing majority status for
a reasonable time, does not unduly prejudice the Section
7 rights of employees who may oppose continued repre-
sentation by the Machinists. The duration of the order is
no longer than is reasonably necessary to remedy the ill
effects of the violation. It is only by restoring the status
quo ante and requiring the Respondent Employer to bar-
gain with the Machinists for a reasonable period of time
that the employees will be able to fairly assess the Ma-
chinists’ effectiveness as a bargaining representative in
an atmosphere free of the Respondent Employer’s un-
lawful conduct. The employees can then determine
whether continued representation by the Machinists is in
their best interest, in light of the changed circumstances
resulting from the transfer of the unit work to PCMC.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. It removes the Re-
spondent Employer's incentive to delay bargaining in the
hope of discouraging support for the Machinists. It also
ensures that the Machinists will not be pressured by the
Respondent Employer’s withdrawal of recognition and
its readiness to recognize a different union to achieve
immediate results at the bargaining table following the
Board's resolution of its unfair labor practice charges and
the issuance of a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent Employer's and the Respondent Union’s viola-
tions, because it would allow a challenge to the Machin-
ists’ majority status before the taint of the Respondent
Employer’s unlawful withdrawal of recognition and sub-
sequent recognition of the Respondent Union has dissi-
pated. Such a result would be particularly unfair in cir-
cumstances such as those here, where the nature of the
Respondent Employer's unfair labor practices likely cre-
ated a lasting negative impression of the Machinists in
the bargaining unit, and where the Respondent Employer
immediately recognized a replacement union that has
been able to develop relationships with bargaining unit
employees while the Machinists litigated its charges. We
find that those circumstances outweigh the temporary
impact the affirmative bargaining order will have on the
rights of employees who oppose Machinists' continued
union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case.
ORDER
A. The Respondent Employer, PCMC/Pacific Crane
Maintenance Co., Inc. and Pacific Marine Maintenance
Co., LLC, a single employer, and PCMC/Pacific Crane
Maintenance Co., LP, as a successor to PCMC/Pacific
Crane Maintenance Co., Inc., Oakland, California, and
Tacoma, Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively, on request, with
Machinists District Lodge 190, Local Lodge 1546, and
Machinists District Lodge 160, affiliated with Interna-
tional Association of Machinists and Aerospace Work-
ers, AFL–CIO (collectively the Machinists), as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit (the
unit) concerning wages, hours, and other terms and con-
ditions of employment:
All employees performing work described in and cov-
ered by “Article 1, Section 2. Work Jurisdiction” of the
April 1, 2002 through March 31, 2005 collective-
bargaining agreement between the [Machinists and Pa-
cific Marine Maintenance Co., LLC (PMMC)] . . .; ex-
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

cluding all other employees, guards, and supervisors as
defined in the Act.
(b) Withdrawing recognition from the Machinists as
the exclusive collective-bargaining representative of the
unit employees.
(c) Granting assistance to International Longshore and
Warehouse Union (ILWU or Respondent Union) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when the
ILWU did not represent an unassisted and uncoerced
majority of the employees in the unit, and when the Ma-
chinists was the exclusive collective-bargaining repre-
sentative of the unit employees.
(d) Applying the terms and conditions of employment
of the collective-bargaining agreement between the Re-
spondent Employer and the ILWU (the PMA-ILWU
Agreement) including its union-security provisions, to
the unit employees at a time when the ILWU did not
represent an unassisted and uncoerced majority of the
employees in the unit, and when the Machinists was the
exclusive collective-bargaining representative of the unit
employees.
(e) Notifying the Machinists and the unit employees
that the unit employees would be laid off and that they
could continue performing unit work only if they were
hired as employees of Pacific Crane Maintenance Com-
pany, Inc. (PCMC) and were represented by the ILWU.
(f) Bypassing the Machinists and directly offering unit
employees continued employment in the unit on the basis
of terms and conditions of employment different from
those set forth in PMMC’s 2002–2005 collective-
bargaining agreement with the Machinists (the Machin-
ists Agreement) and on condition that they be represent-
ed by the ILWU.
(g) Unilaterally modifying the Bulletin Board Provi-
sion of the Machinists Agreement by imposing new re-
strictions concerning what materials could be placed on
the bulletin board located in its Oakland, California facil-
ity.
(h) Laying off unit employees without first notifying
the Machinists and giving it a meaningful opportunity to
bargain regarding the decision to lay off unit employees.
(i) Altering the unit employees’ terms and conditions
of employment without first notifying the Machinists and
bargaining to agreement or impasse regarding such
changes in the wages, hours, and working conditions of
the unit employees.
(j) Assigning unit employees to nonunit positions and
locations, or assigning nonunit employees to perform
unit work, without first notifying the Machinists and giv-
ing it a meaningful opportunity to bargain about such
assignments and the effects of such assignments.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from the
ILWU as the exclusive collective-bargaining representa-
tive of the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
the ILWU, including its union-security provisions, to the
unit employees, unless and until that labor organization
has been certified by the National Labor Relations Board
as the exclusive representative of those employees.
(c) Recognize and, on request, bargain with the Ma-
chinists as the exclusive collective-bargaining representa-
tive of the unit employees concerning wages, hours, and
other terms and conditions of employment.
(d) Notify the Machinists in writing of all changes
made to the unit employees' terms and conditions of em-
ployment on and after March 31, 2005, and, on request
of the Machinists, rescind any or all changes and restore
terms and conditions of employment retroactively to
March 30, 2005.
(e) Make the unit employees whole, with interest, for
any losses sustained due to the unlawfully imposed
changes in wages, hours, benefits, and other terms and
conditions of employment in the manner set forth in the
remedy section of this decision.
(f) Within 14 days from the date of this Order, offer
full reinstatement to all employees laid off from PMMC
on March 30, 2005, and not reemployed by PCMC, to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(g) Make whole all employees laid off from PMMC
on March 30, 2005, and not reemployed by PCMC on
March 31, 2005, for any loss of earnings and other bene-
fits suffered as a result their unlawful layoff, in the man-
ner set forth in the remedy section of this decision.
(h) Compensate the unit employees for any adverse
income tax consequences of receiving their backpay in
one lump sum, and file a report with the Social Security
Administration allocating the unit employees’ backpay to
the appropriate calendar quarters.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs and,
within 3 days thereafter, notify the affected employees in
PCMC/PACIFIC CRANE MAINTENANCE CO. 1217
writing that this has been done and that the unlawful
layoffs will not be used against them in any way.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Make all delinquent contributions to the Machin-
ists benefit funds on behalf of the unit employees that
have not been paid since March 31, 2005, including any
additional amounts due the funds, in the manner set forth
in the remedy section of this decision.
(l) Make the unit employees whole for any expenses
ensuing from the failure to make the required contribu-
tions to the Machinists benefit funds, in the manner set
forth in the remedy section of this decision.
(m) Jointly and severally with the ILWU, reimburse
all unit employees for all initiation fees, dues, and other
moneys paid by them or withheld from their wages pur-
suant to the PMA-ILWU Agreement, with interest.
(n) Rescind the unlawfully imposed restrictions con-
cerning what materials could be placed on the bulletin
board located in its Oakland, California facility.
(o) Within 14 days after service by the Region, post at
its facilities in Oakland, California, and Tacoma, Wash-
ington, copies of the attached notice marked “Appendix
A.”
24
Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by
the Respondent Employer’s authorized representative,
shall be posted by the Respondent Employer and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, or
other electronic means, if the Respondent Employer cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent Employer to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent Employer has gone out of business or closed
the facilities involved in these proceedings, the Respond-
ent Employer shall duplicate and mail, at its own ex-

24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
pense, a copy of the notice to all current and former em-
ployees employed by the Respondent Employer at its
Oakland and Tacoma facilities at any time since January
26, 2005.
(p) Within 14 days after service by the Region, post at
the same places and under the same conditions as in the
preceding subparagraph signed copies of the Respondent
Union's notice to members and employees marked “Ap-
pendix B.”
(q) Furnish the Regional Director with signed copies
of the Respondent Employer’s notice to employees
marked “Appendix A” for posting by the Respondent
Union at its facilities where notices to members and em-
ployees are customarily posted. Copies of the notice, to
be furnished by the Regional Director, shall be signed
and returned to the Regional Director promptly.
(r) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent Em-
ployer has taken to comply.
B. The Respondent Union, International Longshore
and Warehouse Union, Oakland, California, and Tacoma,
Washington, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Accepting assistance and recognition from Re-
spondent Pacific Crane Maintenance Company, Inc. or
its successor Pacific Crane Maintenance Company, LP
(collectively PCMC) as the exclusive collective-
bargaining representative of the employees in the unit
described below (the unit) at a time when the Respondent
Union did not represent an uncoerced majority of the
employees in the unit, and when the Machinists District
Lodge 190, Local Lodge 1546, and Machinists District
Lodge 160, affiliated with International Association of
Machinists and Aerospace Workers, AFL–CIO (collec-
tively the Machinists) was the exclusive collective-
bargaining representative of the employees in that unit:
All employees performing work described in and cov-
ered by “Article 1, Section 2. Work Jurisdiction” of the
April 1, 2002 through March 31, 2005 collective-
bargaining agreement between the [Machinists and Pa-
cific Marine Maintenance Company, LLC (PMMC)]
. . .; excluding all other employees, guards, and super-
visors as defined in the Act.
(b) Maintaining and enforcing the PMA-ILWU
Agreement, or any extension, renewal, or modification
thereof, including its union-security provisions, so as to
cover the unit employees, unless and until it has been
certified by the Board as the collective-bargaining repre-
sentative of those employees.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Decline recognition as the exclusive collective-
bargaining representative of the unit employees, unless
and until ILWU has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Jointly and severally with the Respondent Em-
ployer, reimburse all present and former unit employees
for all initiation fees, dues, and other moneys paid by
them or withheld from their wages pursuant to the PMA-
ILWU Agreement, with interest.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at
its headquarters and at its offices and meeting halls in
Oakland, California, and Tacoma, Washington, copies of
the attached notice marked “Appendix B.”
25
Copies of
the notice, on forms provided by the Regional Director
for Region 32, after being signed by the Respondent Un-
ion’s authorized representative, shall be posted by the
Respondent Union and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees and members are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, or other elec-
tronic means, if the Respondent Union customarily
communicates with its members by such means. Rea-
sonable steps shall be taken by the Respondent Union to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Within 14 days after service by the Region, post at
the same places and under the same conditions as in the
preceding subparagraph signed copies of the Respondent
Employer's notice to employees marked “Appendix A.”
(f) Furnish the Regional Director with signed copies
of the Respondent Union’s notice to members and em-
ployees marked “Appendix B” for posting by the Re-

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent Employer at its facilities where notices to em-
ployees are customarily posted. Copies of the notice, to
be furnished by the Regional Director, shall be signed
and returned to the Regional Director promptly.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent Union
has taken to comply.

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain collectively, on re-
quest, with Machinists District Lodge 190, Local Lodge
1546, and Machinists District Lodge 160, affiliated with
International Association of Machinists and Aerospace
Workers, AFL–CIO (collectively the Machinists) as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit (the
unit) concerning wages, hours, and other terms and con-
ditions of employment:
All employees performing work described in and cov-
ered by “Article 1, Section 2. Work Jurisdiction” of the
April 1, 2002 through March 31, 2005 collective-
bargaining agreement between [the Machinists and Pa-
cific Marine Maintenance Company, LLC (PMMC)]
. . .; excluding all other employees, guards, and super-
visors as defined in the Act.
WE WILL NOT withdraw recognition from the Machin-
ists as the exclusive collective-bargaining representative
of the unit employees and thereafter fail and refuse to
recognize the Machinists as the exclusive collective-
bargaining representative of the unit employees.
WE WILL NOT grant assistance to the International
Longshore and Warehouse Union (the ILWU) and rec-
ognize it as the exclusive collective-bargaining repre-
PCMC/PACIFIC CRANE MAINTENANCE CO. 1219
sentative of the unit employees at a time when the ILWU
does not represent an unassisted and uncoerced majority
of the employees in the unit, and when the Machinists is
the exclusive collective-bargaining representative of the
unit employees.
WE WILL NOT apply the terms and conditions of em-
ployment of our collective-bargaining agreement with
the ILWU (the PMA–ILWU Agreement), or any exten-
sions, renewals, or modifications of that agreement, in-
cluding its union-security provisions, to the unit employ-
ees unless and until we have been certified by the Na-
tional Labor Relations Board as the collective-bargaining
representative of those employees.
WE WILL NOT notify the Machinists or the unit em-
ployees that the unit employees will be laid off and that
they can continue performing bargaining unit work only
if they are hired as employees of Pacific Crane Mainte-
nance Co., Inc. or Pacific Crane Maintenance Co., LP
(collectively PCMC) and are represented by the ILWU.
WE WILL NOT bypass the Machinists and directly offer
unit employees continued employment in the unit on the
basis of terms and conditions of employment different
from those set forth in our 2002–2005 collective-
bargaining agreement with the Machinists (the Machin-
ists Agreement), or on the condition that they be repre-
sented by the ILWU.
WE WILL NOT unilaterally modify the Bulletin Board
Provision of the Machinists Agreement by imposing new
restrictions concerning what materials can be placed on
the bulletin board located in our Oakland, California fa-
cility.
WE WILL NOT lay off unit employees without first noti-
fying the Machinists and giving it a meaningful oppor-
tunity to bargain regarding the decision to lay off the unit
employees.
WE WILL NOT change the unit employees’ wages,
hours, and other terms and conditions of employment
without first notifying the Machinists and giving it a
meaningful opportunity to bargain about such changes.
WE WILL NOT assign unit employees to nonunit posi-
tions and locations, or assign nonunit employees to per-
form unit work, without first notifying the Machinists
and giving it a meaningful opportunity to bargain about
such assignments and the effects of such assignments on
the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
the ILWU as the exclusive collective-bargaining repre-
sentative of our employees in the unit described above,
unless and until the ILWU has been certified by the Na-
tional Labor Relations Board as the exclusive collective-
bargaining representative of those employees.
WE WILL recognize and, on request, bargain with the
Machinists as the exclusive collective-bargaining repre-
sentative of our employees in the unit described above
concerning wages, hours, and other terms and conditions
of employment.
WE WILL notify the Machinists in writing of any
changes made on and after March 31, 2005, in the rates
of pay, hours of work, job benefits, and other terms and
conditions of employment of the unit employees, and WE
WILL, on request, rescind any or all of our unlawfully
imposed changes and restore the terms and conditions of
employment that existed as of March 30, 2005.
WE WILL make the unit employees whole, with inter-
est, for any losses sustained due to our unlawfully im-
posed changes in wages, benefits, and other terms and
conditions of employment.
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to all unit employees laid
off from PMMC on March 30, 2005, and not reemployed
by us, to their former jobs or, if those jobs no longer ex-
ist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make whole all unit employees laid off from
PMMC on March 30, 2005, and not reemployed by us on
March 31, 2005, for any loss of earnings and other bene-
fits suffered as a result of their unlawful layoff, less any
net interim earnings, with interest.
WE WILL compensate the unit employees for any ad-
verse income tax consequences of receiving their back-
pay in one lump sum, and WE WILL file a report with the
Social Security Administration allocating the unit em-
ployees’ backpay to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the March
30, 2005 layoff of the unit employees, and WE WILL,
within 3 days thereafter, notify the affected employees in
writing that this has been done and that we will not use
the unlawful layoffs against them in any way.
WE WILL make all delinquent contributions to the Ma-
chinists benefit funds on behalf of the unit employees
that we have not made since March 31, 2005, with inter-
est.
WE WILL make whole the unit employees for any ex-
penses ensuing from our failure to make required contri-
butions to the Machinists benefit funds, with interest.
WE WILL, jointly and severally with the ILWU, reim-
burse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the PMA-ILWU Agreement, with interest.
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

WE WILL rescind the restrictions that we unlawfully
imposed concerning what materials could be placed on
the bulletin board located in our Oakland, California fa-
cility.
PCMC/PACIFIC CRANE MAINTENANCE CO.,
INC. AND PACIFIC MARINE MAINTENANCE CO.,
LLC, A SINGLE RESPONDENT EMPLOYER; AND
PCMC/PACIFIC CRANE MAINTENANCE CO., LP,
AS SUCCESSOR TO PCMC/PACIFIC CRANE
MAINTENANCE CO., INC.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT accept assistance or recognition from
Pacific Crane Maintenance Co., Inc. or its successor Pa-
cific Crane Maintenance Co., LP (collectively PCMC),
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit (the
unit), at a time when we do not represent an uncoerced
majority of the employees in the unit, and when Machin-
ists District Lodge 190, Local Lodge 1546, and Machin-
ists District Lodge 160, affiliated with International As-
sociation of Machinists and Aerospace Workers, AFL–
CIO (collectively the Machinists) is the exclusive collec-
tive-bargaining representative of those employees:
All employees performing work described in and cov-
ered by “Article 1, Section 2. Work Jurisdiction” of the
April 1, 2002 through March 31, 2005 collective-
bargaining agreement between the [Machinists and Pa-
cific Marine Maintenance Co., LLC (PMMC)] . . . ; ex-
cluding all other employees, guards, and supervisors as
defined in the Act.
WE WILL NOT maintain and enforce our collective-
bargaining agreement with PCMC (the PMA-ILWU
Agreement), or any modifications, renewals, or exten-
sions of that agreement, including its union-security pro-
visions, so as to cover the unit employees, unless and
until we have been certified by the National Labor Rela-
tions Board as the collective-bargaining representative of
those employees.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL decline recognition as the exclusive collec-
tive-bargaining representative of PCMC’s employees in
the unit described above, unless and until we have been
certified by the National Labor Relations Board as the
exclusive collective-bargaining representative of those
employees.
WE WILL, jointly and severally with the Respondent
Employer, reimburse all present and former employees in
the unit described above for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the PMA-ILWU Agreement, with interest.
INTERNATIONAL LONGSHORE AND WAREHOUSE
UNION
Valerie M. Hardy-Mahoney, Esq., Kathleen C. Schneider, Esq.,
and Ryan E. Connolly, Esq., for the General Counsel.
Howard C. Hay, Esq. (Paul Hastings, Janofsky & Walker ), of
Costa Mesa, for Respondents California for Pacific Crane
Maintenance Company, Inc., and Pacific Crane Mainte-
nance Company, LP.
J. Al Latham, Esq. (Paul Hastings, Janofsky & Walker), of Los
Angeles, California, for Respondent Pacific Marine
Maintenance Co., LLC.
David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), of
Alameda, California, for District Lodge 190, Local Lodge
1546 affiliated with the International Association of Ma-
chinists and Aerospace Workers of America, AFL–CIO.
Terry C. Jensen, Esq. (Robblee Brennan & Detwiler), of Seat-
tle, Washington, for District Lodge 160 affiliated with the
International Association of Machinists and Aerospace
Workers of America, AFL–CIO.
Matthew D. Ross, Jacob F. Rukeyser, and Robert S. Remar
Esqs. (Leonard Carder), of San Francisco, California, for
the International Longshore and Warehouse Union.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned consolidated case in trial in Oakland, Cali-
fornia, and Seattle, Washington, over the period September
2007 to June 2008. Posthearing briefs were timely submitted.1
The matter arose as follows. On March 14, 2005, District
Lodge 190/Local Lodge 1546 and District Lodge 160, affiliated
with the International Association of Machinists and Aerospace
Workers of America, AFL–CIO (sometimes collectively the
Charging Party, the IAM, or the Machinists) filed a charge with
Region 32 of the National Labor Relations Board (the NLRB or

1 I granted an all-party motion at trial allowing submission of reply
briefs, which briefs were timely submitted on November 10, 2008.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1221
the Board), docketed as Case 32–CA–021925, against Pacific
Crane Maintenance Company, LP (Respondent PCMC or
PCMC) and amended that charge on March 16, 2005. The
amended charge alleged violations of Section 8(a)(1), (2), (3),
and (5) of the National Labor Relations Act (the Act).
On February 15, 2005, Charging Party District Lodge 160,
affiliated with the International Association of Machinists and
Aerospace Workers of America, AFL–CIO (Charging Party
District Lodge 160) filed a charge with Region 19, docketed as
Case 19–CA–029645, against Pacific Marine Maintenance Co,
LLC (Respondent PMMC or PMMC) and amended that charge
on March 18, 2005. The charge was subsequently transferred
from Region 19 to Region 32 and renumbered as Case 32–CA–
021974. The charge alleged violations of Section 8(a)(1), (2),
(3), and (5) of the Act.
On March 18, 2005, District Lodge 160 filed a charge with
Region 19, docketed as Case 19–CA–029692, against Pacific
Maritime Maintenance Co., LLC (PMMC) and PCMC (some-
times collectively Respondent Employers) and amended that
charge on April 4, 2005. The charge was subsequently trans-
ferred from Region 19 to Region 32 and renumbered as Case
32–CA–021977. The amended charge alleged violations of
Section 8(a)(1), (2), (3), and (5) of the Act.
Based on the above charges, on May 31, 2007, the Regional
Director issued a consolidated complaint against Respondent
Employers which was, on August 15, 2007, and subsequently,
amended on various occasions. The Respondent Employers
filed or made appropriate on record answers to the complaint
and all subsequent amendments to the complaints.
On November 5, 2007, the Charging Party filed a charge
with Region 32, docketed as Case 32–CA–023613, against
PCMC/Pacific Crane Maintenance Company, LP. On Decem-
ber 14, 2007, the Regional Director issued a complaint regard-
ing Case 32–CA–023613 and, on December 18, 2007, the Gen-
eral Counsel moved that I consolidate that complaint with the
instant consolidated matter. At trial on January 14, 2008, I
granted the unopposed motion. A timely answer was filed to
the complaint.
On April 7, 2005, District Lodge 190 filed a charge with Re-
gion 32 docketed as Case 32–CB–005932 against the Interna-
tional Longshore and Warehouse Union (the ILWU or Re-
spondent Union). The charge alleged violations of Section
8(b)(1)(A) and (2) of the Act. On May 31, 2007, the Regional
Director for Region 32 issued a complaint against Respondent
Union. The Respondent Union filed a timely answer to the
complaint.
The final amended consolidated complaint against Respond-
ent Employers, as variously amended during the proceeding,
alleges that Respondents PMMC and PCMC, in engaging in the
actions alleged in the complaints, acted as a single, integrated
business enterprise and a single employer. Further, it alleges
PMMC maintained a collective-bargaining relationship with the
Machinists respecting unit employees located in Seat-
tle/Tacoma, Washington, and Oakland, California, reflected in
a collective-bargaining agreement entered into with the Ma-
chinists in 2002. In early 2005, PMMC notified the Machinists
that unit employees would all be laid off effective April 1,
2005; that PMMC would no longer do the Maersk work on
which the unit employees had heretofore been employed; that
PCMC would from that time forward undertake the unit work
employing employees represented by the ILWU, and that if
PMMC’s unit employees wished to work for PCMC doing the
Maersk unit work under an ILWU contract, they should apply
to PCMC for new employment.
The final amended consolidated complaint against Respond-
ent Employers alleges that Respondent Employers, in mid-
February through mid-March 2005, restricted contractually-
established Machinist agent access to one of the unit employ-
ees’ work areas and ceased the provision of contractually
agreed upon on-premises bulletin board space to the Machin-
ists—all without prior notice to or bargaining with the Machin-
ists respecting such limitations, the effects of such limitations
and without obtaining the Machinist’s consent to such changes.
The final amended consolidated complaint against Respond-
ent Employers further alleges that Respondent Employers, in
late March 2005, withdrew recognition of the Machinists as the
unit employees’ representative effective with the employees’
discharge by Respondent PMMC and further alleges that Re-
spondent PMMC in fact discharged the unit employees, effec-
tive on or about March 30, 2005, without bargaining with the
Machinists respecting the discharges or unit terms and condi-
tions of employment following the discharges, and without
obtaining the Machinists’ consent to such changes. The com-
plaint also alleges that Respondent Employers granted the
ILWU recognition as the representative of employees in the
bargaining unit on or about March 31, 2005, and applied the
terms and conditions of a preexisting collective-bargaining
agreement with the ILWU to unit employees including the con-
tract’s union-security clause, all at a time when the ILWU did
not represent an uncoerced majority of the employees in the
unit.
The complaint in Case 32–CA–023613 against Respondent
PCMC/Pacific Crane Maintenance Company, LP (sometimes
PCMC, LP) additionally alleges that various purchases and
changes of ownership and changes in business organization and
legal form occurred at relevant times respecting Respondent
Employers, and that these new entities and participating indi-
viduals have at all times material been kept informed of Re-
spondent Employers’ potential liabilities under the instant com-
plaints, and that Respondent PCMC, LP has continued the em-
ploying entity of Respondent PCMC and is a successor to Re-
spondent PCMC. Further the complaint in Case 32–CA–
023613 alleges that Respondent PCMC LP granted the ILWU
recognition as the representative of employees in the bargaining
unit, on or about August 15, 2007, and applied the terms and
conditions of a preexisting collective-bargaining agreement
with the ILWU to unit employees; including the contract’s
union-security clause, all at a time when the ILWU did not
represent an uncoerced majority of the employees in the unit.
The above-recited allegations of the final complaint against
Respondent Employers are also alleged to violate Section
8(a)(1), (2), and (5) of the Act. The complaints do not allege,
as was alleged in the Charging Party’s charges, that Respondent
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Employers violated Section 8(a)(3) of the Act or that Respond-
ent Employers were alter egos of one another.2
The allegations of the complaint against Respondent ILWU
allege that on or about March 31, 2005, the ILWU accepted
recognition from Respondent PCMC as the representative of
unit employees and applied the terms and conditions of a preex-
isting collective-bargaining agreement with PCMC to unit em-
ployees including the contract’s union-security clause, all at a
time when the ILWU did not represent an uncoerced majority
of the employees in the unit and at a time when the ILWU did
not properly represent unit employees. This conduct is alleged
in the complaint to violate Section 8(b)(1)(A) and (2) of the
Act.
FINDINGS OF FACT
Upon the entire record herein, including very helpful briefs
from each of the parties, I make the following findings of fact.3
I. JURISDICTION
Respondent PCMC is, and has been at all material times, a
California State corporation, with an office and place of busi-
ness in Long Beach, California, and has been engaged in the
maintenance and repair of waterfront terminal cranes and other
stevedoring equipment, including at terminals located in the
ports of Long Beach, Los Angeles and Oakland, California, and
Seattle and Tacoma, Washington.
The pleadings establish that Respondent PCMC, during the
period immediately following the issuance of the complaint
against it herein, derived gross annual revenues in excess of
$50,000 from its business operations and provided services
valued in excess of $50,000 to customers located outside the
State of California.
Based on the above, there is no dispute and I find Respond-
ent PCMC is, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent PMMC is, and has been at all material times, a
California limited-liability company, with offices and places of
business in the ports of Long Beach, California, and Tacoma,
Washington, and has been engaged in the maintenance and
repair of waterfront terminal containers and other stevedoring
equipment, including at terminals located in the ports of Long
Beach, and Tacoma, Washington.
The pleadings establish that Respondent PMMC, during the
period immediately following the issuance of the complaint
against it, herein, derived gross annual revenues in excess of
$50,000 from its business operations and provided services

2 For that reason the references to “alter ego” in the various com-
plaint case captions have been removed.
3 The parties submitted pretrial statements of position, posthearing
briefs. and reply briefs. I granted an unopposed posthearing motion of
the General Counsel to receive into evidence certain inadvertently
omitted evidence.
As a result of the pleadings and the stipulations of counsel at the tri-
al, there were few disputes of fact regarding collateral matters. Where
not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
valued in excess of $50,000 to customers located outside the
State of California.
Based on the above, there is no dispute and I find Respond-
ent PMMC is and has been at all times material an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATIONS
The pleadings establish, there is no dispute, and I find each
of the following institutions are labor organizations within the
meaning of Section 2(5) of the Act:
1. Local Lodge 1546 affiliated with District Lodge 190 and
the International Association of Machinists and Aerospace
Workers of America, AFL–CIO.
2. District Lodge 190 affiliated with the International Associa-
tion of Machinists and Aerospace Workers of America, AFL–
CIO.
District Lodge 160, affiliated with the International Associa-
tion of Machinists and Aerospace Workers of America, AFL–
CIO.
The International Association of Machinists and Aerospace
Workers of America, AFL–CIO.
The International Longshore and Warehouse Union.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves issues and allegations and a series of
events of some complexity. To facilitate understanding, the
circumstances and issues are initially summarized below and
are thereafter followed by a more complete development of the
facts, events, party positions, argument, analysis, and conclu-
sions.
A. Grossly Simplified Initial Statement of Facts,
Allegations, Issues, and Positions
1. Abbreviated facts
For many years PMMC had contracted with shipping entity
Maersk4 to provide maritime terminal-based longshore and
shipping equipment maintenance and repair services at Maersk
terminals5 along several West Coast ports. Charging Party
Machinists represented a bargaining unit of employees of Re-
spondent PMMC who undertook the contracted work at Maersk
terminals in the ports of Tacoma, Washington, and Oakland,
California. The Machinists and PMMC’s most recent collec-
tive-bargaining agreement (sometimes PMMC-IAM contract)
covering the noted employees was effective, by its terms, from
April 1, 2002, through March 31, 2005. The contract sets forth

4 Maersk, a major international shipping company, has various inter-
national and United States divisions and subdivisions. The specific
organizational units of Maersk that employed particular agents of
Maersk involved, herein, are not material to the issues herein. Accord-
ingly all corporate subentities and their employees are generically re-
ferred to simply as Maersk or Maersk employees or agents.
5 The two Maersk terminals involved herein also served another
shipping entity; Horizon, which obtained essentially the identical ser-
vices Maersk did, albeit on a far smaller scale, in essence in a “me too”
contract relationship with PMMC and PCMC for the similar but lesser
volume of service required by that shipper.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1223
the following language in article 1 [spelling and capitalization
as in the original]:

Section 2—Work Jurisdiction

This agreement shall cover but not be limited to, all
following types of work: Maintenance, Body and Fender
Work, Painting, Rebuilding, Dismantling, Assembling,
Repairing, Installing, Erecting, Welding and Burning (or
grinding processes connected therewith), Inspecting, Di-
agnosing, Cleansing, Preparing or Conditioning of all units
and auxiliaries (includes refrigeration and air conditioning
(units) related to passenger cars, buses, pickups, motor cy-
cles, tractors, trucks, trailers, cargo containers, generator
sets, refrigeration units, dollies, forklifts, shovels, trench
digging and excavating equipment) and all work histori-
cally being performed under this contract.
This Agreement shall also cover terminal maintenance,
lubricating, fueling, washing, cleaning, polishing, steam
rack operations, tire repairing, tire service operations, parts
and stockroom operations, shop and yard cleanup, stock
and parts pick-up and delivery as presently and hereafter
being performed by employees represented by the Union.
This Agreement shall apply to all facilities and opera-
tions where the Employer does business and has commer-
cial control.
Section 3. EMPLOYEES COVERED: Employees
covered by this Agreement shall include, but not be lim-
ited to: Mechanics, Apprentices, Painters, Maintenance
Employees, Body and Fender Mechanics, Fuelers, Wash-
ers, Tiremen, Partsmen and such other employees as may
be presently and hereafter represented by the Union.
. . . .
Section 6. SINGLE BARGAINING UNIT: The
common problems and interests with respect to the basic
terms and conditions of employment of the employees
covered hereby have resulted in the establishment of this
Agreement. Accordingly, the Unions and the Employer
covered by this Agreement acknowledge that the employ-
ees covered by this Agreement constitute a single employ-
er multi-union collective bargaining unit.

For many years PCMC also contracted with Maersk and oth-
er shippers and stevedore companies, to provide maritime ter-
minal-based longshore and shipping equipment maintenance
and repair services at many West Coast ports. The Respondent
ILWU represented the mechanic employees of Respondent
PCMC who undertook the noted contracted work at West Coast
terminals as part of a large, multiemployer contract covering
longshore and mechanic employees on the West Coast docks.
The multiemployer association signatory to this agreement, and
of which PCMC is a longtime member, is the Pacific Maritime
Association (PMA). The relevant contract covering the noted
PCMC/ILWU employees was effective by its terms from Ju-
ly 1, 2002, through July 1, 2008. That agreement, at section 1,
defines the work covered to include longshore work of signato-
ry employers in West Coast ports in various particulars and
addresses maintenance and repair in part at sections 1.7, et seq.:

1.70 This Contract Document shall apply to the
maintenance and repair of containers of any kind and of
chassis and the movement incidental to such maintenance
and repair.
1.71 This Contract Document shall apply to the
maintenance and repair of all stevedore cargo handling
equipment.
1.8 Any type of work assigned herein in Sections . . .
1.7 and 1.71 to longshoremen that was done by nonlong-
shoremen employees of an employer or by subcontractor
pursuant to a past practice that was followed as of July 1,
1978, may continue to be done by nonlongshoremen em-
ployees of that employer or by subcontractor at the option
of said employer.
1.81 This Contract Document shall apply to all move-
ment of containers and chassis under one of the following
conditions: (a) when containers or chassis are moved on a
dock from a container yard to or from a storage area adja-
cent to a maintenance and repair facility or from a storage
area adjacent to a maintenance and repair facility from the
same dock. . . .

At all relevant times, the Parties stipulated Respondents
PMMC and PCMC have been involved in the events in conten-
tion as a single employer under Board decisional standards.
Maersk was aggressive in managing its costs and pressured
its contractors to reduce their charges to it: indicating that it
reserved the option to bring the contracted terminal work in-
house or to obtain another vendor. It placed such pressure on
PMMC in 2004. In late 2004, Maersk agents contacted PCMC
and solicited a bid by it for the work then being done by
PMMC. Maersk also contacted PMMC respecting the cost of
its contract work in Oakland and Tacoma. PCMC responded
that it would do the Oakland and Tacoma work, as it was then
doing the other Maersk work it then had, in the same manner
and at the same cost. PMMC informed Maersk that it would
continue the work at the rate then in place, with the rate to ad-
just upon the negotiation of the new IAM/PMMC contract to
replace the one expiring on March 31, 2005.
While the evidence is in dispute as to the extent communica-
tion occurred between their agents, PMMC did not formally
inform the Machinists of the position Maersk was taking with
respect to the terminal mechanics contract nor formally seek to
reopen the current IAM/PMMC contract to lower labor costs
which could be passed through to Maersk or ask for conces-
sions in any renewal agreement.
At a meeting with Maersk agents on January 6, 2005, in
Charlotte, North Carolina, attended by Maersk, PCMC, and
PMMC agents, Maersk announced that effective the end of
March 2005, the work then performed by PMMC for Maersk in
Tacoma and Oakland would be done by PCMC. The details of
the transition were discussed and arranged.
Thereafter, PMMC told its unit employees that PMMC
would terminate its unit employees effective on or about March
31, 2005, and also informed the Machinists that as of the unit
employees discharge the Machinists would no longer be recog-
nized as the representative of PMMC’s unit employees. The
unit employees were informed they could apply for employ-
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ment with Respondent PCMC who would be performing the
Maersk work lost by PMMC under a collective-bargaining
agreement Respondent PCMC had with Respondent ILWU.
PMMC mechanic employees applied to PCMC for employ-
ment. By about March 1, 2005, PCMC determined to hire ap-
proximately 75–80 PMMC employees and sent them employ-
ment offer letters which were accepted. By March 9, PCMC
had sent the new employees information regarding ILWU con-
tract terms and other initial employment protocols which were
being implemented.
As part of this series of events, the Machinists demanded
PCMC recognize it as the mechanics employees’ representa-
tive, which demand was refused. PCMC at all times from be-
fore the hire of employees6 recognized the ILWU as the repre-
sentative of its new mechanics employees which it and the
ILWU treated as an accreted part of the Coastwide bargaining
unit to which the Coastwide collective-bargaining agreement,
including the union-security provisions, applied.
On March 30, 2005, PMMC discontinued operations. On
March 31, 2005, PCMC took over the operations previously
undertaken by PMMC having hired the great bulk of the termi-
nated PMMC Machinist-represented bargaining unit employ-
ees, who in turn constituted the great majority of the mechanic
employees who had been actually doing the work lost by
PMMC. This work and the employees working for PMMC
doing it were considered by both PCMC and the ILWU to be
accreted into and an inseparable part of the ILWU
PMA/Coastwide unit and covered by the West Coast ILWU
PMA/ Coastwide longshore collective-bargaining agreement.
Both PMMC and PCMC refused to recognize the Machinists
after PMMC’s discontinuance of the Maersk contract mechanic
work as the representative PMMC’s former employees or of the
employees now doing the work for PCMC that PMMC had
previously undertaken.
2. Allegations of the complaints in contention
Charging Party Machinists filed the previously noted charges
with the Board which were found to be meritorious in part by
the General Counsel and were included in the complaints de-
scribed above. Essentially, the General Counsel’s complaints
make three types of allegations. First, the Government con-
tends that PMMC7 in its conduct both in its affirmative actions,
and in its omission to take certain actions, all in the first quarter
of 2005, failed in its duty to bargain in good faith with the Ma-
chinists respecting the termination of its unit employees8 and

6 PCMC inquired of the ILWU about the availability of mechanic
applicants through the ILWU/PMA hiring hall before any hires oc-
curred.
7 The parties stipulated that PCMC and PMMC were a single em-
ployer midtrial. The earlier complaint allegations were directed indi-
vidually against either PCMC or PMMC, but later amendments merged
Respondent Employers as actors under a single-employer theory. Con-
ceptually, it is easier for portions of the factual presentation and analy-
sis to retain the earlier distinctions between PCMC and PMMC as
actors.
8 The counsel for the General Counsel made clear in her Position on
the Issues and Statement of Position, at 5, that PMMC engaged in ef-
fects bargaining regarding the termination of its Oakland and Tacoma
Maersk operations. She also noted the General Counsel did not allege
wrongfully withdrew recognition of the Machinists as the rep-
resentative of the PMMC and PCMC unit employees. In so
doing, the complaints allege the Respondent Employers violat-
ed Section 8(a)(1) and (5) of the Act.
Second the Government’s complaints allege that, even if
PMMC is not found to have violated the Act as described
above, when PCMC hired the great majority of the PMMC unit
employees who then constituted the great majority of the bar-
gaining unit doing its new Maersk maintenance and repair work
in Oakland and Tacoma, PCMC was a legal successor to
PMMC and became obligated to recognize the Machinists as
the representative of those employees in a Tacoma and Oakland
M&R mechanics’ bargaining, and in consequence, could not
properly withhold recognition of the Machinists as those em-
ployees’ representative and also could not recognize the ILWU
as the representative of the employees by asserting they had
accreted into the much larger coastwide bargaining unit. By
undertaking the described acts and omissions, the Government
further alleges, PCMC violated Section 8(a)(1), (2), and (5) of
the Act. Respondent ILWU, in accepting such improper recog-
nition from PCMC as the representative of the mechanics unit
employees and in enforcing the union-security clause of the
Coastwide ILWU contract as to these employees, the com-
plaints allege, violated Section 8(b)(1)(A) and (2) of the Act.
Third, the Government contends that in the final month of its
employment of unit employees in Oakland and Tacoma,
PMMC improperly restricted contractually-provided Machinist
union agent access to the jobsites and limited the unit employ-
ees’ contractual rights to use a bulletin board on site for union
business. This conduct is alleged by the complaints to have
been done without bargaining with the Machinists or obtaining
their consent and therefore violates Section 8(a)(1) and (5) of
the Act.
The Respondents oppose all of these arguments and allega-
tions and deny in any way violating the Act. They contend that
there was no statutory obligation for Respondent Employers to
bargain over the decision to lay off the PMMC unit employees
and that the PMMC bargaining unit employees hired by PCMC,
along with all other employees hired to undertake the duties
previously undertaken by PMMC, were properly accreted into
the PMA-ILWU Coastwide bargaining unit at the very onset of
their employment for PCMC. Thus, PMMC’s discontinuance
or withdrawal of recognition of the Machinists as the mechan-
ics unit representative and PCMC’s granting of recognition to
the ILWU as the representative of the mechanic employees who
undertook PCMC’s Tacoma and Oakland Maersk M&R opera-
tions was proper. Finally, they contend the argued restrictions
of union agent access and bulletin board use did not occur as
alleged, and further, would not have violated the Act in all
events in as much as the employee activity involved was not
union activities of the type the union was contractually entitled
to engage in.

failure and refusal to provide information to the IAM because the in-
formation issues were subsumed by and in the complaints’ single-
employer allegations.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1225
3. Issues and the Parties’ positions
In greatly simplified form, the first set of allegations respect-
ing PMMC’s bargaining obligation during the events at issue
requires consideration of the bargaining and contractual rela-
tions of the parties and the events leading to the termination of
PMMC unit employees for purposes of determining if Re-
spondent PMMC had a bargaining obligation with respect to
any or all of its decisions taken in the period preceeding the
discharges and, if it had such bargaining obligations under the
Act, whether or not it met its obligations and/or whether or not
it could present defenses to those alleged obligations. Both, the
details of the events themselves and their legal consequences
are in dispute and the parties perceive the bargaining obliga-
tions of an employer under the Act in the circumstances pre-
sented very differently. The implications and general conse-
quences of the single employer status of PCMC and PMMC on
these questions is also an important issue.
The second group of allegations, as set forth above, dealing
with the bargaining rights and obligations of PCMC in hiring
PMMC mechanics also requires consideration of the relations
of the parties and the events. Part of the issue of representation
rights of PMMC employees deals with the facts and statutory
presumptions respecting employee representational preferences.
Critical to that determination is a decision respecting what bar-
gaining units were appropriate under Board law at relevant
times. This latter question brings into issue unit appropriate-
ness and most importantly accretion issues applicable to the
employees in contest. That consideration includes a broad
consideration of: (1) the West Coast marine terminal bargaining
units as they are relevant to the work of maintenance and repair
of marine terminal-based loading and container-related equip-
ment; (2) the organizational structure and practices of PCMC
respecting its mechanics; and (3) the practices of PMMC re-
specting its mechanics; and, finally, (4) a close consideration of
the terms and conditions of employment of Respondent Em-
ployer’s mechanics at relevant times.
The Charging Party and the General Counsel argue that the
appropriate Oakland and Tacoma Maersk terminals PCMC
mechanic unit, on and after March 31, 2005, is a unit of em-
ployees identical to, or very similar to PMMC unit of mechanic
employees terminated in March 2005. They argue that that
bargaining unit is favored by the Board and, considering that
unit in particular, there is no question the Machinists under
Board law must be held to have at all times represented a ma-
jority of unit employees under both PMMC and PCMC. The
Charging Party and the General Counsel argue that Respondent
PCMC was obligated to recognize the Machinists as the unit
employees’ representative and to fulfill their statutory duty to
bargain with the Machinists respecting it. Consequently, the
Charging Party and the General Counsel further argue, the
recognition of the ILWU and the application to unit employees
of the ILWU/PMA contract and its union-security provisions
were also improper.
The Respondents argue to the contrary that PCMC, in adding
the Maersk mechanic work in question on March 31, 2005, to
its own already significant coastwide complement mechanic
employees engaged in operations for Maersk and other marine
shippers, from the onset, accreted the newly-awarded mechan-
ics work and the newly-hired M&R mechanics employees into
its West Coastwide mechanics operations—all of which em-
ployees had both historically and at all relevant times been
covered by the West Coast longshore contract between PCMC
and other employers as members of the PMA multiemployer
association, and the ILWU. The Respondents argue that the
record in this case supports a finding that no other bargaining
unit remained appropriate at the time PCMC assumed the
Maersk Tacoma and Oakland operations and, therefore, the
Respondents’ conduct in regards thereto was permitted under
the Act.
Respecting the third category of allegations concerning
PMMC’s alleged restrictions on Machinists agents’ access to
the workplace and use of jobsite bulletin boards, Respondent
Employers challenge the version of events offered by the
Charging Party and the General Counsel and further argue addi-
tional events and circumstances rendered the restrictions, such
as actually occurred, benign and nonviolative of the Act.
B. Background
1. The West Coast Longshore industry9
Those who work along the shore to load and unload ships are
commonly referred to as longshore employees.10 As the title
conveys, there is both a geographical element and an occupa-
tional element to the term. As used in modern times, the term
longshore industry includes not just the employees and em-
ployers who actually load and unload ships, but the entire
“along shore” or marine terminal-based panoply of employee
occupations and equipment utilized in the loading and unload-
ing of ships in the broader sense.

9 Current definitions relevant to the U.S. Longshore industry may be
found in U.S. Department of Labor, Occupational Safety and Health
Administration Safety and Health standards concerning the marine
terminal and longshoring industries, Set forth at Title 29 Code of Fed-
eral Regulations (CFR) Part 1917 (June 30, 2000) which states in part:
§1917.1—Scope and applicability

The regulations of this part apply to employment within a marine ter-
minal as defined in §1917.2, including the loading, unloading, move-
ment, or other handling of cargo, ships’ stores, or gear within the ter-
minal or into or out of any land carrier, holding or consolidation area,
any other activity within and associated with the overall operation and
functions of the terminal, such as the use and routine maintenance of
facilities and equipment. All cargo transfer accomplished with the use
of shore-based material handling devices shall be regulated by this
part.

§1917.2—Definitions
. . . .
Marine terminal means wharves, bulkheads, quays, piers, docks, and
other berthing locations and adjacent storage or adjacent areas and
structures associated with the primary movement of cargo or materials
from vessel to shore or shore to vessel including structures which are
devoted to receiving, handling, holding, consolidating, and loading or
delivery of waterborne shipments or passengers, including areas de-
voted to the maintenance of the terminal or equipment. The term does
not include production or manufacturing areas nor does the term in-
clude storage facilities directly associated with those production or
manufacturing areas.
10 Or, similarly, but from Latin origins, “stevedores.”
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The United States ships and receives goods coming from or
going to eastern and transpacific areas generally at its West
Coast ports. By the early part of the 20th century significant
ports had evolved in Southern California, the San Francisco
Bay Area, the Portland, Oregon area, the Puget Sound, Wash-
ington area, and in various smaller locales. Those locations
have become ever more active shipping locations. The West
Coast longshore industry has had a colorful organizational his-
tory which is set forth in detail in the Board’s decision, Ship-
owners’ Assn. of the Pacific Coast, 7 NLRB 1002 (1938), certi-
fying the ILWU as the longshore employees’ representative in
an essentially coastwide marine terminal bargaining unit. Over
the following half century, what had been essentially but not
entirely, a coastwide unit became even more so as various un-
ion locals and West Coast ports not originally part of the 1930s
bargaining unit joined thereafter. So, too, additional West
Coast employers came together into a single-multi-employer
association which in recent times has been titled the Pacific
Maritime Association (sometimes the PMA). Later ILWU M &
R mechanics, the employees who undertake the on terminal
maintenance and repair of stevedoring equipment, containers
and associated equipment, were added to the Coastwide steve-
dore bargaining unit.
Two powerful post-World War II trends have been contribu-
tory causes of profound change in the longshore industry over
the years. First has been the extraordinary and continuing
growth in the volume of materials shipped through the ports of
the world and the West Coast ports of the United States in par-
ticular and, second has been the important and ongoing techno-
logical changes in the shipment of goods by means of container
systems which move goods in large containers carried on pur-
pose built container ships.
Containers of ever larger size carried in ever larger numbers
by ever larger container ships has caused repeated rebuilding
and/or replacement of shipping terminals to facilitate faster
unloading of large ships and to provide significantly larger land
areas to receive and process the very large numbers of contain-
ers involved in loading or unloading large modern container
ships. Part and parcel of this process has been a fantastic in-
crease in the size, complexity, and number of machines and
devices in use at terminals in the increasingly mechanized load-
ing and unloading process. All of these things have had im-
portant consequences for the employment mix at marine termi-
nals over time.
Essentially, the technological changes described have mas-
sively increased the amount of equipment in operation in the
loading and unloading process. The maintenance and repair of
this equipment has significantly increased the on-terminal
needs for maintenance and repair mechanics to keep the me-
chanical aspect of the loading and unloading process in good
order.
For the shipping terminal engaged in the loading and unload-
ing of commercial cargo ships, efforts focus on the times when
a ship or ships is docked at the terminal to be loaded and/or
unloaded. With a ship’s departure, i.e., when no ship is at the
dock, terminal work and personnel needs plummet and all is in
anticipation of the next ship’s arrival. Loading and unloading
ships is classically intermittent work for longshore employees.
Longshore employment for this reason has historically in-
volved—to a significant proportion—episodic or casual em-
ployment by individual longshore employees or gangs of em-
ployees at multiple terminals over time as opposed to steady or
full time employment with a single employer at a single marine
terminal. Longshore employees generally work for many of the
local area shipping or stevedore companies, and at many termi-
nals in the local port or ports to be fully employed.
This need of longshore employers for significant numbers of
longshore employees for repeated short periods of casual em-
ployment supported the historic staffing technique of the
“shapeup” wherein labor applicants were chosen from the
crowd of soliciting applicants seeking casual longshore work.
The West Coast longshore industry, as part of the 1930s organ-
ization process discussed by the Board in Shipowners’ Assn. of
the Pacific Coast, supra, rejected that earlier method of long-
shore “shapeup” hire and created, and thereafter has utilized a
joint hiring hall process in which the employer association and
the ILWU jointly controlled the number of experienced unit
members using the hiring hall and provided for the dispatch of
hiring hall registrants to employers on a short-term basis allow-
ing the employers to smoothly meet their short-term longshore
employment loading and unloading requirements as ships ar-
rived and departed. In an important sense, the pool of long-
shore hiring hall registrants were employees of the PMA-ILWU
joint hiring hall rather than employees of any particular em-
ployer member of the PMA.
Over time, the various technological changes in shipping de-
scribed above have driven the physical growth of the terminals,
the size of terminal employers’ employment complements and
the amount, size, and complexity of the machinery used on the
docks to load and unload ships and move about and otherwise
handle the cargo, i.e., containers, to be loaded or that have been
unloaded. Further these changes have to a degree changed the
composition of the skill set of longshore employees in the bar-
gaining unit. As the amount and complexity of equipment in
use in loading and unloading ships has increased, the number of
mechanics and other specialized terminal longshore employees
has also grown. Because many of these specialized workers
work on specialized terminal equipment rather than being di-
rectly or exclusively involved with the loading or unloading of
ships, these specialized employees have been increasingly em-
ployed by terminal employers on a full-time basis, i.e., as
steady hands, rather than as dispatch employees who are em-
ployed for traditionally brief periods, being dispatched out of
the hiring hall and returning again to the hall at the end of the
short period of employment to obtain another dispatch for like
employment for a like period.11

11 Herein, a full-time employee of a single employer is a “steady”
employee and a request for the hiring hall to dispatch an employee for
full-time employment is a request for a steady hand. A casual employ-
ee employed for a single work shift or other short period often related
to the duration of the task of loading or unloading a particular vessel, is
a hall hand and a request for the dispatch of such an employee would be
a request for a “hall” dispatch. Respecting M&R mechanics in the
hiring hall process, the terms applied herein are similar: hall mechanics
and steady mechanics.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1227
Highly relevant to the issues herein, maritime shippers or
their terminal contractors, have over time hired more and more
maintenance and repair (M&R) mechanics to maintain and
repair the myriad machines and equipment used in the container
shipping processes.
Since the 1930s, as noted supra, the West Coast longshore
workers have been represented essentially exclusively by the
ILWU and that representation has evolved into a single, all-
encompassing, multiemployer/multiport, coastwide unit. The
union representation of the various specialized trades and occu-
pations on the dock has not been so monolithic. M&R mechan-
ics on the West Coast docks have a history of representation by
both the ILWU and by the IAM with each labor organization
continuing to represent these individuals and clearly desirous to
this day of continuing to represent these individuals. The M&R
mechanics who work on the large land-based container cranes
which unload the containers historically have been separately
represented by a variety of labor organizations including the
ILWU.
While the ILWU represented and now represents a number
of terminal M&R mechanics coastwide, including both crane
and noncrane mechanics, individually or collectively for vari-
ous employers at various locations, credible Machinists witness
testimony suggests that the IAM-represented terminal M&R
mechanic employment is of like or superior numbers and has
had a similar long history. Particular West Coast areas, ports,
or even individual terminals or carriers have differing histories
of mechanic representation by particular labor organizations.
Some areas or ports employ a mixture of ILWU and IAM rep-
resented mechanics. Other areas such as the Puget Sound had a
history of greater IAM representation of mechanics. See the
Board’s discussion in Machinists District 160 Local 289 (SSA
Marine), 347 NLRB 549 (2006). PMA agents credible testi-
mony herein suggested the port of Tacoma did not have ILWU
represented mechanics until PCMC ILWU represented mechan-
ic employees obtained employment at the port as described
herein.
Rivalry between the ILWU and the IAM in representing this
craft arose in part because of the technological changes de-
scribed which, over time, has caused mergers between differ-
ently represented units. Various efforts over the years to reach
agreement or accommodation between the ILWU and the Ma-
chinists respecting these employees have not always been suc-
cessful. See, e.g., Machinists District 160 Local 289 (SSA Ma-
rine), supra.
This evolution and conflict between the ILWU and the IAM
respecting the representation of terminal-based M&R mechan-
ics is not new and has been discussed in earlier Board deci-
sions. Of particular value for its background discussion is the
Board’s decision in Pacific Maritime Assn., 256 NLRB 769
(1981), which describes earlier arrangements and circumstances
involving the ILWU and Machinists and shipping companies
and terminals that are predecessors to the terminals involved
herein, Sealand for example. By the time of the events in con-
tention here, at least generally and at the terminals at issue
herein, M&R mechanic work in any given location was not
divided between the ILWU and Machinists on the basis of a
jurisdictional division of the work. Rather, as will be discussed
in detail below, different terminals utilized M&R mechanics in
essentially similar ways with some shipping companies, or their
contractors employing Machinist-represented mechanics on a
single employer or single terminal basis and other shipping
companies, or their contractors, at other terminals employing
ILWU-represented M&R mechanics. Generally, the ILWU
mechanics were in the West Coast bargaining unit under the
PMA-ILWU Coastwide contract. The IAM-represented em-
ployees were in single-employer units and not under any mul-
tiemployer agreement. The ILWU unit had the hiring halls
described. The Machinist units did not operate hiring halls.
2. The nature and organization of terminal maintenance
and repair work12
In order to understand the work of mechanics engaged in
terminal maintenance and repair, the nature of container ship-
ping must be briefly considered. Container ships essentially
load and carry large metal containers which are not stuffed or
unstuffed at the terminal. During the shipping process full
containers arrive at the terminal and are stored awaiting load-
ing. Containers are constructed to be able to be stacked up to
six containers high and terminal equipment is able to select,
move, carry, stack, and unstack containers as part of the loading
and unloading process. Once loaded, containers are secured on
the vessel and the reverse applies for unloading ships with the
containers taken off the vessel and stored onsite during unload-
ing to await removal from the dock.
The containers are designed to be transported by truck by be-
ing mounted on a chassis which in essence is rather like a flat-
bed truck trailer, i.e., an arrangement of road-ready wheels and
associated load bearing and drivability equipment comprising a
custom structure on which the shipping container may be safely
mounted and the entire apparatus pulled by tractor truck on
roads to its intended destination. What may seem to be the body
of a truck on our freeways is often a container from a ship
mounted on a container chassis pulled by a tractor truck. Many
containers are simply inert storage containers but others are for
refrigerated cargo and are constructed for that purpose and
equipped with onboard refrigeration equipment and onboard
power generation equipment, to power the refrigeration equip-
ment when other power is not available.
Generally, an arriving vessel will require container off-
loading before loading. Very large—often up to 180-feet
high—terminal-based, rail-mounted stationary cranes off load a
ship’s containers and the containers are sorted and stacked in
great number and to great heights at the shippers facility in
anticipation of their being mounted on chassis and taken away
from the terminal to their destination by tractor truck or by rail.
Loading is essentially the reverse. In anticipation of ship-
ping, containers have been loaded with material away from the
terminal and then hauled on container chassis by tractor trucks
to the terminal grounds. There the containers are separated
from their chassis and the containers are sorted and stacked to
great heights and in great numbers anticipating vessel loading.

12 Dispute specific discussion of the relationship and comparison of
the PMMC and post-PMMC PCMC operation is discussed separately in
detail infra. The instant presentation is simply descriptive for back-
ground purposes.
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

When loading of the vessel begins, containers are selected in
their proper order from the stacks and are delivered to the sta-
tionary crane areas and loaded aboard the vessel.
The above-delicate description does not do justice to the ac-
tual process which involves skilled employees and large num-
bers of large pieces of equipment moving thousands of contain-
ers in an organized choreography under tight time constraints
and often conducted essentially without break around the clock
in all weather. During this process equipment malfunctions, is
damaged, or is discovered to be damaged or dysfunctional. As
necessary and possible, the things that do not work are repaired
or set aside and the process goes on till the loading is concluded
and the ship disembarks. Then the process turns to putting
things again in order, dispersing off loaded containers, collect-
ing containers to be shipped in future and anticipating the next
vessel’s arrival, loading and unloading.
The various container moving and loading equipment must
regularly be maintained and repaired as needed. The heavy
stationary cranes must be tended to as appropriate and are often
handled by mechanics in their own department with separate
onsite facilities. The remaining noncrane M&R mechanics are
often considered as a separate noncrane single unit. This group
may have several departments although skills and training often
allow transfer and interchange between and among them. Gen-
erally, the large and very large devices—often able to straddle
and stack or carry away containers from or to high stacks of
containers—are maintained and repaired where they are nor-
mally located at the terminal. Smaller equipment is normally
taken to maintenance buildings with multiple bays allowing
mechanics ready access to the mechanics equipment and tools
necessary for specialized tasks.
Mechanics involved with the power or drive train elements
of equipment work in the terminal M&R power department.
Refrigeration equipment maintenance and repair respecting
containers which are able to carry refrigerated contents occurs
in the reefer (refrigeration) department. On board power gen-
eration equipment allowing container refrigeration to be self-
sustaining when away from auxiliary power connections is
maintained and repaired in the gen-set (generator sets) depart-
ment. Maintenance and repair of chassis is undertaken in the
chassis department. The roadability department insures that the
arriving and or departing containers and associated equipment
is safe and legal for road hauling by tractor trucks.
The short ship arrival/departure cycle with its varying labor
demands for both longshore employees and mechanics has been
described. M&R mechanics also experience additional cycles
or spikes of work duties: some predictable some by chance.
Thus for example, seasonal cycles may change the number of
refrigerated containers in use: exported seasonal fruits, import-
ed Alaska frozen seafood, at a terminal with concomitant in-
crease in mechanic work hours necessary to handle the mainte-
nance and repair of the refrigerated containers and power sets
in use. Changes in product demand may change the volume
and type of freight with implications for maintenance and repair
at the terminal. These and other circumstances—not least a
tradition of contractors quickly dealing with the terminals
M&R needs quickly—produce a less than stable or predictable
workload for the M&R mechanic work force.
3. The history of Respondent Employers
a. The Pacific Crane Maintenance Company (PCMC)
In 1990 two individuals, Steven McLeod, PCMC’s chief ex-
ecutive officer, and Joe Gregorio Sr.,13 PCMC’s chief operating
officer, incorporated Pacific Crane Maintenance Company, Inc.
with the intention to contract marine terminal shipper mainte-
nance and repair work. Soon thereafter, PCMC obtained a con-
tract to do some of a shipping company’s port of Long Beach
marine terminal-based equipment maintenance and repair. To
fulfill its contractual obligations it hired terminal-based M&R
mechanics.
PCMC’s initial terminal-based mechanics were soon orga-
nized by the ILWU, and, in 1991, based on presentation of
authorization cards, PCMC recognized the ILWU and soon
joined the Pacific Maritime Association and adopted the
Coastwide PMA—ILWU agreement known as the Pacific
Coast Longshore Contract Document or PCLCD which covered
among others both longshore employees and marine terminal
M&R mechanics. In mid-1992, PCMC acquired an additional
contract from a second shipper to do some of the shippers port
of Los Angeles terminal-based equipment maintenance and
repair work. The work was very similar to the work earlier won
and the two terminals, while at different Southern California
ports, were within commute distance.14
From the onset of performing work at multiple terminals,
PCMC did not maintain separate personnel inflexibly assigned
to particular terminals but rather treated its M&R mechanics as
flexible in their place of work and transferred full-time or
steady mechanics and supervisory staff as needed between its
terminal operations, and also utilized the ILWU hiring hall to
augment its full-time or steady M&R complement with dis-
patched or hall mechanics for short period as necessary to meet
short term staffing needs.
The transfers of PCMC’s full-time M&R employment staff
took place by assignment and were not voluntary or employee
initiated. McLeod testified PCMC from its inception used a
“Lean Staff Model”15 which involved minimum staffing of full-
time or “steady” staff on individual terminals. Such a perma-
nent or steady full-time employee complement was deliberately
kept to a limited size just sufficient to undertake nonpeak or
bottom cycle M&R mechanic workloads. As was inevitable
and expected, work demands would exceed the capacity of the
lean staff at specific terminals. As necessary the terminal work
force would, through temporary interterminal transfers of

13 The two remained its owners and corporate officers through the
events in controversy herein.
14 The California ports of Long Beach and Los Angeles are physical-
ly close and in many ways are treated as a single workplace. The situa-
tion is similar in the Washington ports of Seattle and Tacoma.
15 Much of the business model testimony was from McLeod and
Gregorio Sr. Charging Party Machinists took umbrage at what it be-
lieved and argued, on brief, was PCMC’s self-characterized, posthoc,
recently designed, litigation-based, “lean” model. PCMC’s 2002 corre-
spondence with the PMA makes it clear however, that in fact from its
beginnings, PCMC intended its operations to utilize both mechanic
bargaining unit inter-terminal transfers and short-term hiring hall dis-
patch mechanic unit work force augmentation.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1229
PCMC mechanics and augmented by hall mechanics obtained
through hiring hall dispatch calls. Thus, the work force could
be expanded as necessary to fulfill temporary business spikes at
one terminal or another or during cyclical or other business
peaks in work force needs and could then be quickly contracted
when the demand reduced. Thus, by utilizing the hiring hall
dispatch system and interterminal transfers as needed, PCMC
could maintain a smaller permanent or “steady” unit comple-
ment which was sufficient for slower periods and expand rapid-
ly, if temporarily, at any necessary location when the press of
business required it. McLeod testified that this staffing model
and its great flexibility was efficient and kept labor costs to a
minimum—allowing more competitive bidding for the work.
Over the years, the business prospered. PCMC took on more
work under contract with shippers to do equipment mainte-
nance and repair at marine terminals at the ports of Los Angeles
and Long Beach. In some cases the M&R mechanic work on
stationary cranes was included in the contracts awarded to
PCMC. In other cases at other terminals, stationary cranes
were handled by other providers whose crane mechanic em-
ployees may or may not have been represented by the ILWU.
As the West Coast Longshore industry terminals and business
volumes grew, the maintenance and repair work for shippers
also grew and PCMC grew as well. PCMC grew both by ac-
quiring work at new or expanded terminals and by acquiring
existing work done by others. In some cases, PCMC took over
work done by the contracting shippers own employees and in
other cases replaced contractors who, like PCMC, did the work
under contract for a terminal shipper.
On various occasions, the work PCMC undertook had been
previously done by employees represented by the IAM and on
other occasions by the ILWU. PCMC regularly offered em-
ployment to some—although not all—of the mechanics of the
previous service provider at the terminals where the work was
to be done. Without exception, however, when new work was
obtained by PCMC and new employees were hired to do the
work, recognition was extended to the ILWU respecting the
employees doing that work and the PMA-ILWU Coastwide
agreement was applied to the new mechanic employees as it
was to all PCMC’s mechanics.
PCMC at all relevant times has provided marine terminal
equipment maintenance and repair services to terminal opera-
tors and shippers. It has continuously maintained its member-
ship in the Pacific Maritime Association and, through that asso-
ciation, its contractual relationship with the ILWU respecting
all its maintenance and repair mechanics. Over the years, it
expanded from the Southern California ports into Northern
California and into the Puget Sound. The volume of its busi-
ness and its employee complement grew. A significant portion
of its business was done for the Maersk shipping line.
b. The Pacific Marine Maintenance
Company (PMMC)
In 1999, Maersk was in discussions with Sealand, a marine
shipper and an early user of containerized shipping on the West
Coast, concerning possible acquisition of assets and operations
at Sealand’s West Coast terminals located in Long Beach, Oak-
land, and Tacoma.16 Sealand had since the 1960s recognized
the IAM as the exclusive representative of its employees in a
single multiterminal unit of mechanics engaged in M&R work
at these three terminals. Apparently, as part of the general dis-
cussions, PCMC was informed by Maersk of the possibility of
Maersk contracting out the M&R work at these terminals
should it acquire the Sealand West Coast operations.
It was apparently also required as part of the Sealand acqui-
sition by Sealand that any and all M&R work acquired by
Maersk was to be done by IAM-represented employees.
McLeod testified without contradiction that, in order to “have
an entity to respond to a proposal to do maintenance work”
PCMC and Marine Terminals Corporation, a separate M&R
contractor, created a partnership, Respondent PMMC.17 In due
course PMMC bid on and was awarded the Maersk contract for
M&R work at the former Sealand terminals,18 hired the former
mechanics, recognized the IAM as the unit’s representative and
thereafter undertook the M&R work. At all times thereafter to
the events in controversy, PMMC and the IAM had a single-
employer contract covering the unit employees doing this work.
There was no pattern or practice of interchange between
PMMC unit employees at different ports or between other em-
ployers’ IAM-represented M&R mechanics and PMMC’s me-
chanics.
C. The Events19
In the beginning of 2002, PMMC was performing work for
Maersk at its Long Beach, Oakland, and Tacoma operations,
which had previously been Sealand. PMMC was working un-
der the previously assumed Sealand-IAM collective-bargaining
agreement which was to expire on March 31, 2002. PCMC was
also performing work for Maersk at a separate location it had
long maintained at the port of Los Angeles at pier J. PCMC
was performing that work with mechanics represented by the

16 Before 1984 the Puget Sound, Washington Sealand terminal was
located in Seattle.
17 There might have been contract/labor law issues arising from a
M&R contractor signatory to the PMA-ILWU agreement recognizing
the IAM as representative of a unit of M&R mechanics doing terminal
based work at West Coast terminals. See, e.g., Pacific Maritime Assn.,
256 NLRB 769 (1981). Such IAM represented mechanics work being
done by a contractor with no representational relationship with non-
IAM labor organizations would likely have presented fewer ancillary
difficulties.
18 Sealand’s terminals had a shipping company tenant, Horizon Lines
(formerly CSX), who essentially carried on a “me-to” relationship with
the master shipper at the terminals and who also contracted with
PMMC. Horizon represented approximately 20 percent of the M&R
work involved on Maersk terminals done by PMMC at relevant times.
Other terminals on the west coast and mentioned herein may also have
had primary/control shippers and second, smaller shipper ten-
ants/passive shippers. These essentially passive me-to tenant shippers
did not have independent roles in the circumstances described herein
and generally have been omitted from the presentation of events where
not independently relevant.
19 Where not specifically noted, the evidence relied on in this por-
tion of the decision is from uncontested credible testimony or from
uncontested credible documentary evidence. Certain specific events and
circumstances are discussed in detail later in the decision.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ILWU, in the coastwide unit and under the PMA-ILWU
Coastwide agreement.
PMMC and the IAM prepared for the 2002 contract negotia-
tions in early 2002 aware that Maersk was involved in prepara-
tions to consolidate its Southern California operations at a new
port of Los Angeles terminal: pier 400 and that the consolida-
tion would involve moving and consolidating work that was at
that time being done both by mechanics employed by PCMC
represented by the ILWU and PMMC mechanics represented
by the IAM.
At the first bargaining session held on March 5, 2002, with
the IAM, PMMC’s lead negotiator, Captain John McNeill,
confirmed the planned Maersk consolidation in Southern Cali-
fornia and informed the IAM that PMMC had not been award-
ed a Maersk contract to do any work at the consolidated termi-
nal. He stated further that Maersk had also put its continuing
contract with PMMC for its remaining work in Tacoma and
Oakland on a month-to-month basis.
Negotiations for the new agreement extended to over a dozen
bargaining sessions in March and April 2002 and included a
brief extension of the existing contract and a strike vote of unit
employees. The final contract was agreed upon at the final May
1, 2002 session and was ratified by employees and went into
effect in April. By its terms it was effective from
April 1, 2002, to March 31, 2005.
Maersk consolidated its Southern California terminal opera-
tions in two stages in September and October 2002, initially
transferring its pier 400 operations to its new terminal pier 400
in Los Angeles and following with the transfer of its’ Long
Beach Sealand terminal operations. The new pier J operations
consolidated the Maersk shipping and M&R mechanic work
into a single terminal. The mechanic work at pier 400 was giv-
en by Maersk to PCMC. The mechanics who had worked at the
preconsolidation terminals—both IAM and ILWU represented
units—were melded into a single force at the pier and were
included in the ILWU-PMA coastwide unit and covered by the
ILWU-PMA coastwide contract. All PMMC M&R mechanics
who were laid off by PMMC when the Long Beach operations
were discontinued were employed by PCMC. The ratio of
PCMC mechanic employees transferred to the new operation to
the PMMC mechanic employees transferred was about three to
one. No grievances were filed under any contract: ILWU or
IAM. No unfair labor practice charges were filed by any party.
In December 2003, Maersk awarded PCMC the M&R crane
mechanic contract for the large stationary container cranes at
the Maersk terminal at the port of Oakland.20 At the time
PMMC was doing the noncrane M&R mechanic work at the
terminal. The crane mechanic work areas were separately lo-
cated at the terminal and the two types of mechanics work:
crane and noncrane mechanics work on the dock had had a
history of separate bargaining units and representation by sepa-
rate labor organizations. No interchange occurred between the

20 PCMC has obtained an M&R crane contract from a separate em-
ployer at a separate Oakland terminal, Hinjin, a year or two earlier.
The crane work awarded at the Oakland Maersk terminal has previous-
ly been done by a separate entity: SSA—Stevedoring Service of Amer-
ica.
PCMC ILWU crane and PMMC IAM noncrane operations at
the terminal.
PCMC, in late 2004, obtained a Maersk contract for all its
crane M&R work at its port of Tacoma terminal and at about
the same time also obtained crane and noncrane M&R work for
Evergreen21 at the Pierce County terminal in the port of Taco-
ma (hereinafter sometimes referred to as the Evergreen termi-
nal). The former Evergreen noncrane work at the old terminal
had been done by IAM-represented employees of Tacoma-
Seattle Trailer Repair (TSTR) whose bid on the work at the
new terminal was not accepted.
Seemingly at all times, but specifically by early 2004,
Maersk was rigorously cost conscious respecting its M&R me-
chanic contracts and constantly made PMMC’s agents and
principals aware that it wished the lowest possible contract cost
and was not adverse to seeking a new contractor or bringing the
work in house to obtain savings. Despite this apparent unhap-
piness, Maersk negotiated the PMMC contract labor rate in
April 2004 at the scheduled contract opening, but kept up com-
plaints respecting costs.
A separate employer, TSTR, employed repair mechanics per-
forming contract repair services off dock in Tacoma under a
contract with the IAM. Darrin Del Conte, then PMMC vice
president, testified that in mid-September 2004 he telephoned
James Beno, the directing business representative of District
Lodge 190. Del Conte testified:

It was a phone conversation and it started off about
there was some work that was being taken away from our
Maersk facility up in Tacoma, and it was being done by an
off dock vendor called TSTR, and I was upset that they
were letting that work go off dock, because I felt that was
work that our mechanics should have been doing, and
clearly could have been doing. So, I brought that to his at-
tention but then also in the context of the meeting, I told
him that I wanted the same contract, the TSTR contract,
otherwise I indicated to him that I felt that we[‘]d be out of
business come March, if I didn’t t get that contract.
Q. What did Mr. Beno say?
A. He kind of chuckled.
Q. You didn’t ask for another meeting with him to re-
negotiate the contract, did you?
A. Not at the time I did not.

Beno did not recall the conversation nor its specifics or context
but did not deny the conversation took place.
IAM Area Director Donald Crosatto testified he had received
a phone call from Del Conte regarding a change in an arbitra-
tion date. After the date was changed, Del Conte told Crosatto
that he had looked at the TSTR contract with the IAM which he
viewed as more favorable to TSTR than the PMMC contract
was to PMMC and asked Crosatto why PMMC did not receive
the same favorable terms. Del Conte said that PMMC would
be more competitive if it had a deal like TSTR. Crosatto testi-
fied he told Del Conte that TSTR’s contract applied only to the
Puget Sound and that TSTR was primarily an off-dock employ-

21 PCMC had for some years performed work for Evergreen at a
terminal or terminals at the port of Los Angeles.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1231
er doing off-dock work. Crosatto told Del Conte that he re-
garded PMMC’s competition as on dock stevedoring contrac-
tors and that PMMC’s contract was very competitive with those
entities. Del Conte did not testify respecting this conversation.
Gregorio Sr. testified that in late 2004 he was telephoned by
Maersk representatives in a conference call asking if PCMC
could perform the PMMC work more cheaply than PMMC was
performing it. He testified that the Maersk representatives
noted the PMMC-IAM agreement was going to expire in 2005
and they expected a 12-percent raise in IAM labor costs, but
that the PCMC/PMA-ILWU contract did not expire until 2008.
Gregorio informed the Maersk agents that PCMC could per-
form the work at its then current contract rate with Maersk. No
other witness testified regarding this conversation.
Del Conte testified that in the same period he, on behalf of
PMMC, received a telephone conference call from Maersk
agents regarding his best bid on PMMC’s current work for
Maersk. Del Conte testified that, in this conversation and oth-
ers at about this time, he told Maersk that PMMC could not do
the work for less than its current contract rates with any labor
increases incurred under a new IAM contract also being includ-
ed as per industry practice.
An all-day meeting was held at Maersk’s offices in Char-
lotte, North Carolina, on January 6, 2005, between various
agents of Maersk and agents and principals of PCMC and
PMMC. The meeting opened with the announcement by
Maersk that they expected to reduce their costs by transferring
the Tacoma and Oakland work to PCMC and the ILWU work
force.
Gregorio Sr. testified that Darrin Del Conte and McLeod
spoke at the meeting on behalf of PMMC:

Darrin Del Conte was trying to convince them to, you
know, leave the work with Pacific Marine.
Q. What did he say?
A. He said that he had tried to get a concession from
the IAM, a cheaper contract, and that the IAM pretty much
laughed at him. And that he wasn’t sure where he could
go from here, but, he wanted to retain the business. Steve
McLeod then spoke up and said whatever the increase is in
the IAM contract in 2005 March, will only pass through
the increase, we won’t put a burden on the rate increase.
So, if it’s [sic] two dollars, you’ll just pay the two dollars,
but that’s the best we could do. That he looked internally
inside the company and they couldn’t come up with any
cheaper way to do the business than the rate they were cur-
rently charging them. And that they couldn’t get any con-
cessions out of the IAM at this time, and couldn’t guaran-
tee that the cost was not going to increase in March of 05.

This testimony was not corroborated by other meeting partici-
pants who testified.
The meeting proceeded to an exchange in which PCMC and
PMMC agents talked about relative costs and efficiencies of
operation and the uncertainty of the rates that would be negoti-
ated in the upcoming IAM negotiations. No suggestion was
offered that the IAM might offer concessions which would
significantly change PMMC’s estimated operating costs.
Maersk agents made it clear that they wished to avoid any labor
difficulties, but they preferred the ILWU contract to the IAM
and expected costs to decrease as a result of a contract change.
The remainder of the meeting involved discussing the specifics
of the transition from a PMMC/IAM to PCMC/ILWU work
force as well as an allocation of costs between the parties for
expenses incurred as part of the noted transition and the scope
of the work. These details and additional details of the new
contract for this work between Maersk and PCMC were dis-
cussed. Soon after the meeting adjourned, Maersk issued an e-
mail to the meeting participants communicating its decision to
terminate the PMMC contract and transfer the work to PCMC.
In due course a transition plan was put in place.
PMMC’s Del Conte and Terry Murphy testified respecting a
meeting held in Oakland on January 14, 2005, with IAM repre-
sentatives Beno and Crosatto. Del Conte testified:

A. [The meeting] was to resolve some outstanding
grievances and in that meeting also I once again asked for
the TSTR contract.
Q. What did [Beno] say when you asked for the TSTR
contract?
A. A similar response, a chuckle.
Q. That was the entirety of his response to that sub-
ject?
A. It was to my best recollection, it was kind of a
chuckle kind of scoffed at the notion that we’d ask for a
reduced labor rate like that.

Del Conte testified he did not mention to Beno and Crosatto the
January 6 meeting held with Maersk or what was said at that
meeting. Murphy corroborated Del Conte respecting the meet-
ing. Del Conte testified that he did not tell the Machinists of
PMMC’s loss of the contract or PCMC’s gain of the Maersk
Tacoma and Oakland work considering it a confidential matter
as of that time.
Beno and Crosatto denied that any meeting such as that de-
scribed by Del Conte and Murphy ever took place or that a
telephone call in lieu of such a meeting ever occurred. Substan-
tial documentary evidence was introduced by the parties estab-
lishing that Del Conte and Murphy were in fact in Oakland on
January 14 and also suggesting that neither Beno nor Crosatto
had any scheduled meeting with Del Conte and Murphy on that
date or concerning that subject.
On January 25, 2005, Maersk officially terminated the
PMMC contract effective the end of March 2005. The follow-
ing day PMMC Vice President Terry Murphy sent a letter to the
various IAM representatives which PMMC also posted at the
PMMC Maersk worksites. The letter announced PMMC’s loss
of the Maersk/Horizon work and estimated the permanent
layoff of all unit employees as occurring on or about April 1,
2005. The letter further asserted: “Please contact the under-
signed regarding any questions or any issues you want to dis-
cuss.” The letter also noted it was attaching a “memorandum
from the new contractor explaining how our employees may
apply for employment with them.” The attached memorandum
was from PCMC and directed to PMMC mechanics in Oakland
and Tacoma. It announced that PCMC had been awarded the
work to begin on or about April 1, 2005, and that PCMC was
seeking “well qualified applicants to join our existing work
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

force in each of these ports, where we already do this kind of
work for other companies at other terminals and hope you will
apply with us.” The memorandum described the application
procedures and set a February 3, 2005 deadline for receipt of
applications.
By letter dated February 4, 2005, James Beno wrote Darrin
Del Conte an answering letter acknowledging PMMC’s January
26 letter. It sought immediate negotiations over the effects of
the closures on unit members and demanded to negotiate over
the decision to stop work. The letter further requested a very
extensive list of information directed to a complete and detailed
disclosure of the business and financial relationship between
PCMC and PMMC.
On February 17, 2005, Terry Murphy responded to Beno’s
letter of February 4 with copies to other IAM agents: Hursey,
Crosatto, and Kucera. The letter agreed to negotiate over the
effects of the closures, asserted that Maersk not PMMC made
the decision to use another contractor, and denied any single-
employer relationship existed between PCMC and PMMC
without answering the detailed questions propounded by Beno
in his earlier letter.
PCMC determined that it would fulfill its Tacoma and Oak-
land M&R staffing needs from PMMC applicants. On March
1, 2005, PCMC sent employment offer letters to 75–80 PMMC
unit members from the two sites. The jobs on offer were spe-
cifically identified as included in the ILWU represented bar-
gaining unit and covered by the PCMC/PMA-ILWU coastwide
collective-bargaining agreement. The letters specified the posi-
tions offered giving the recipients to March 7, 2005, to accept
the employment offers. On March 9, 2005, PCMC sent ILWU
wage schedules and other employment information to those
who had accepted the job offers. It also initiated PMA new hire
screening, physical fitness and agility/strength examinations for
those who accepted the employment offers.
On March 10, 2005, Beno sent PCMC a letter demanding
recognition as the representative of its Maersk based Tacoma
and Oakland M&R mechanics. He also did so on several sub-
sequent occasions including March 18 and 23, 2005. PCMC
refused to recognize the IAM by letter dated March 25, 2005,
indicating it had recognized the ILWU as the employees’ repre-
sentative and that they were covered under the ILWU/PMA
coastwide contract.
The then current PMMC-IAM contract, inter alia, contained
the following two provisions:

Article 6—Visitation

Authorized Representatives of the [IAM] shall have access to
the [PMMC’s] establishments during working hours for the
purpose of adjusting disputes, investigating working condi-
tions, collection of dues, and ascertaining that the Agreement
is being adhered to; provided, however, there is no interrup-
tion of the firm’s working schedule.

Article 10—Bulletin Boards

The Employer agrees to furnish and maintain a bulletin board
on which the [IAM] will be allowed suitable space.

The Tacoma unit employees of PMMC worked inside a
fenced secure area at the terminal which had guard controlled
access. IAM Directing Business Representative Don Hursey,
in the period before February 2005, regularly visited the unit
members on site gaining access to the facility by presenting his
driver’s license to the guard, indicating he was present on offi-
cial business, and being immediately waived through. Hursey
testified he had never been restricted to particular times of day
or days of the week and had never announced a visit in advance
or sought permission to visit the site.
Hursey testified that on January 27, 2005, he arrived at the
Tacoma site early in the morning in response to telephone calls
from the job steward seeking his presence. He was granted
access in the usual manner and met with various unit employ-
ees who were very concerned about their future given that they
had received notification that they were to be laid off by
PMMC but might be able to obtain employment from PCMC.
Given the strong interest of the employees he returned—in the
same unrestricted manner as earlier—at the lunch period and
held lunchroom meetings with unit members. As part of the
meetings, unit employees reported ILWU solicitations had
occurred on site. Hursey supplied the unit members blank IAM
authorization cards and he solicited and collected signed IAM
authorization cards.
Hursey next drove to the site on February 15, 2005, at about
3:30 p.m. He testified he attempted to pass through the access
gate to visit unit members but was turned down by the gate
guard: “I showed him my ID, told him who I was, I wanted to
go see the guys and he looked at a list and said [‘]you’re not
allowed on the premises[’].” After unsuccessfully arguing with
the guard, Hursey used his cell phone. He testified:

I called Terry Murphy at his office at the facility and
he wasn’t there. So, I got a hold of [PMMC Tacoma Ter-
minal Manager] Lyle Kagey and had an argument with
Lyle that, you know, I had every right to be in there,
what’s going on, how come you’re not allowing me on the
terminal?
Q. What did Lyle said?
A. Lyle said that I was disruption and was not allowed
on the terminal.

In high dudgeon, Hursey drove to his office where a short time
later he received a telephone call from Terry Murphy. Hersey
testified Murphy told him:

That there must have been some type of a misunderstanding,
that there didn’t seem to be a problem. He just asked me if I
would try to contact him ahead of time before I came down
there. I said I didn’t have any problem with that . . . .

Sometime in the next few days, Hursey received a letter from
Murphy dated February 17, 2005, with the following text:

On Tuesday, 2/15/05, terminal security at APM Ter-
minals in Tacoma denied you access to the PMMC work
site portion of the terminal.
I called you at your office shortly after hearing of the
situation and asked that you simply call the PMMC man-
ager in advance of your visit, stating the time and purpose
of your visit, which you agreed you would do for future
visits to the worksite. I understood you will come at em-
PCMC/PACIFIC CRANE MAINTENANCE CO. 1233
ployee lunch time to hold eliminate any disruption to op-
erations.
With all that is currently happening, it is imperative
that disruption in meeting our customer’s needs be mini-
mized as much as possible.

Hursey replied to Murphy by letter of February 23, 2005, with
the following text:

I received your letter today dated February 17, 2005,
wherein you have asked me to simply advise the manager
of my visit in advance and to list the nature of my visit.
When you contacted me shortly after the incident on
February 15th, it seemed reasonable to notify you in the
future of my intent to visit my membership. This is not
uncommon in many of my contracts.
After reviewing the current PMMC contract, I have no
requirements to notify you in advance or to advise you of
the intent of my visit. I still do not have a problem being
courteous in letting you know of my intent to visit your fa-
cility, but in no way am I giving up my rights per the labor
agreement nor am I limiting my access to anything other
than the established past practice that has been recognized
by both parties today.
Let this serve as notice that I do not intend to change
my rights of visitation.

On March 11, 2005, Hursey heard reports that the ILWU
steward from the PMMC Tacoma jobsite and ILWU union
representatives were on site soliciting ILWU membership au-
thorization cards from the PMMC mechanics. At the conclu-
sion of an unrelated meeting in the morning, Hursey drove to
the jobsite arriving at about 11 a.m. Arriving at the guard
shack and presenting his identification, Hursey was told by the
guard, in his memory: “You know you’re not allowed here.”
Following some argument, Hursey called the PMMC super-
visor, Lyle Kagey. Hursey testified:

I called Lyle and say what’s going on? I’ve got every
right to be in here, why are you not letting me in there?
And he said that you can’t come in.
Q. Did he tell you why?
A. Yeah. He said it was just orders. He told me that—
first he told me that I didn’t give them advance notice.
Then he said that was his orders.

Hursey was not allowed entrance, left the site, and testified he
did not thereafter attempt to enter the facility. The IAM’s site
chief, Steward Dennis Wolff’s calendar, however, indicated
Hursey did in fact visit the facility again later that month.
At relevant times, the PMMC area at Maersk’s Oakland ter-
minal had one bulletin board, a corkboard, and a glass wall
outside the foremen’s office that was for IAM use. Union ma-
terials had, at all times before the events in issue, regularly been
posted on each surface by unit members and shop stewards
without difficulty or incident. On March 10, 2005, the IAM
sent by facsimile transmission to the parts room at the site a
copy of Beno’s letter to PCMC demanding recognition as the
bargaining representative of its Oakland M&R mechanics. The
letter was posted by the IAM on both bulletin locations. On the
same day, without notifying the IAM, PMMC Vice President
Del Conte directed the removal of the postings under the theory
that the matters concerned PCMC and not PMMC. The IAM’s
site shop steward, Randy Castillo, testified that he was told by a
PMMC agent, by way of explanation regarding the removal of
the posted document, that it had been removed at the direction
of Del Conte, that it did not concern PMMC but rather PCMC
and, if the IAM had a problem with its removal, to call Del
Conte.
Following an exchange of scheduling letters, bargaining took
place between PMMC and the IAM on March 15, 2005. The
bargaining session encompassed discussions of PMMC’s future
business intentions, whether or not lower IAM/PMMC contract
rates would have allowed PMMC to retain Maersk’s custom
with a better bid, and various other matters. The possible hire
of the 25 or so PMMC laid-off employees not as yet hired by
PCMC was also discussed.
Hursey testified he complained of having problems obtaining
access to the PMMC worksite in Tacoma and that he had filed
unfair labor practice charges as a result. Del Conte told him he
would have to first telephone the jobsite and schedule an ap-
pointment if he wished to enter the facility. At the meetings
end, in Crosatto’s memory, Del Conte said to the IAM repre-
sentatives that if they would give PMMC the contract rates in
the TSTR contract, PMMC could still go back to Maersk and
try to see if Maersk would accept the deal. Hursey recalled that
he took the remark as sarcastic and responded that the IAM
would get back to Del Conte. In the event, the IAM later con-
sidered the matter in house and decided not to respond to Del
Conte’s remarks.
On March 30, 2005, PMMC completed operations at the
Maersk terminals in Tacoma and Oakland and all its unit em-
ployees at those locations were laid off. On March 31, 2005,
PCMC commenced operations at the Maersk terminals in Ta-
coma and Oakland.22 Initially 79 PMMC unit employees re-
ported as PCMC employees with 3 more reporting by April 6.
Six of the former PMMC but now PCMC employees were
placed at the Evergreen terminal in Tacoma a few miles away
from the Maersk terminal where PCMC also had an M&R me-
chanic contract. At the same time 10 of the PCMC Evergreen
based mechanics were transferred to Maersk’s Tacoma termi-
nal.
In August 2007, PCMC, LP purchased the business and as-
sets of PCMC and continues to operate the business of PCMC
in basically unchanged form. Prior to the purchase PCMC, LP
was put on notice of PCMC’s potential liability in the instant
cases. Further, there is no dispute that, if PCMC is found to be
obligated to bargain with the IAM as of August 2007, PCMC,
LP is a successor to that obligation under NLRB v. Burns Secu-
rity Services, 406 U.S. 272 (1972), and a successor to PCMC
under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).

22 A detailed recitation of the work performed by PMMC and the
work done by PCMC is set forth, infra.
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

D. Analysis and Conclusions
1. The various theories of violations of the Act
a. What is not alleged or in issue
In considering the allegations of the complaints and the ar-
guments of the parties thereon, it is critical to keep in mind the
separate theories of violations of the Act advanced and argued
by the Government and, perhaps equally important, the theories
of and violations of the Act not alleged in the complaint and
thus not before me for consideration.
Initially it is important to note that the complaints do not al-
lege a violation of Section 8(a)(3) of the Act: only violations of
Section 8(a)(1), (2), and (5) are alleged. Thus, Respondent
Employers herein are not—either alone, in a joint effort, or on
behalf of others as their agent or agents—alleged to have dis-
criminated against employees or job applicants because of their
union activities or affiliations. Such allegations were contained
in the charges underlying the complaints, but the General
Counsel specifically declined to include those allegations in the
complaints underlying this case.
Second, the General Counsel does not allege in his com-
plaints that Respondents PCMC and PMMC were at any time
alter egos of one another, limiting the “relationship” complaint
allegation to the proposition—now a stipulated matter—that the
two entities at relevant times were a single employer. Again
the underlying charges contained such “alter ego” allegations
but these allegations were not included in the complaints here-
in. The Board holds that the term “alter ego” commonly de-
scribes a relationship where one entity ceases operations and a
second entity begins the same or similar operation to defeat
union representation, See, e.g., Cadillac Asphalt Paving Co.,
349 NLRB 6, 8 (2007). The Board also holds that a motive to
evade labor law obligations is an important factor to consider in
determining alter ego status even if not a required element.
Park Maintenance, 348 NLRB 1373 fn. 3 (2006).
The fact that these contentions are absent from the instant
case essentially distinguishes those Board cases in which the
actions of an employer, or employers, acting as a single em-
ployer, are designed to defeat or avoid union recognition or a
union contract by undertaking an overall strategy designed and
intended to dislodge the union. Such cases explicitly find the
employer’s actions violate Section 8(a)(1) and (3) of the Act
thereby and the analysis of the associated 8(a)(5) allegations in
the same complaint take place in that context. In the instant
case, the Government makes no contention that the actions of
the Respondents is informed by union animus, but rather bases
its theories of violation entirely on Section 8(a)(1), (2), and (5)
contentions.23
Further, although the Charging Party argues in part that there
are two separate IAM represented bargaining units: one in-
volved at each of the two facilities, Tacoma and Oakland, the
General Counsel has consistently pled a single IAM/PMMC
bargaining unit and the IAM/PMMC contract also refers to a
single bargaining unit including all PMMC locations. I find the

23 Prohibited antiunion discrimination may occur against union activ-
ity or representation generally or against activities or representation by
a particular labor organization or labor organizations.
Charging Party is foreclosed by the General Counsel’s com-
plaint and the Government’s position at trial from arguing to
the contrary.
b. The principal bargaining theories
The complaints allege two essentially independent theories
to ascribe to Respondent Employers an obligation to recognize
and bargain with the IAM respecting a unit of M&R mechanics
employed at the Maersk Tacoma and Oakland terminals on and
after March 31, 2005. The first theory is described in the Gen-
eral Counsel’s Reply Brief at 3:

[T]he central theory of the instant complaint [is] that a single
employer may not unilaterally lay off and rehire its own em-
ployees in furtherance of a plan to cast off a collective bar-
gaining relationship in order to acquire a different labor con-
tract with less expensive wages, benefits, and working condi-
tions.

If this contention is correct, argues the General Counsel, then
the IAM remains the bargaining representative of a post layoff
unit whether employed by PMMC or PCMC. The Charging
Party supports the General Counsel’s theory and the Respond-
ent’s oppose it.
The second or alternate theory of the General Counsel and
the Charging Party to ascribe to Respondent Employers an
obligation to recognize and bargain with the IAM respecting a
unit of M&R mechanics at the Maersk Tacoma and Oakland
terminals on and after March 31, 2005, is that PCMC was a
successor to PMMC under the Supreme Court’s decision in
NLRB v. Burns Security Services, 406 U.S. 272 (1972), and was
obligated to recognize the IAM as the representative of the
continuing unit of M&R mechanics initially employed by
PMMC and thereafter by PCMC at the Maersk terminals in
Oakland and Tacoma. The Charging Party supports the General
Counsel’s theory and the Respondents oppose this theory as
well.
Either of the two theories, if it successfully obligates Re-
spondent Employers to recognize the IAM as the representative
of a unit of M&R mechanics employed by PCMC at the Maersk
terminals in Oakland and Tacoma, it also sustains the allega-
tions against Respondent ILWU that it accepted recognition
from Respondent PCMC as the representative of unit employ-
ees and applied the terms and conditions of a preexisting col-
lective-bargaining agreement with PCMC to unit employees,
including the contract’s union-security clause, at a time when
the ILWU did not properly represent unit employees.
c. The separate contract workplace access
denial allegations
Finally as separate allegations of 8(a)(1) and (5) violations of
the Act, the complaints allege that Respondent PMMC improp-
erly unilaterally discontinued or fatally limited and hampered
its provision of contractually-established access and bulletin
board posting rights to the IAM at a time when PMMC still
recognized the IAM as the representative of its M&R contract
employees and the IAM contract was in effect in violation of
Section 8(a)(5) the Act. Respondent Employers dispute these
allegations.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1235
d. The allegations against Respondent ILWU
The allegations of the complaint against Respondent ILWU
allege that the ILWU accepted recognition from Respondent
PCMC as the representative of PMMC’s former employees as
part of the ILWU/PMA Coastwide unit of employees and ap-
plied the terms and conditions of the coastwide ILWU/PMA
collective-bargaining agreement, including the contract’s un-
ion-security clause, to PMMC former unit employees: all at a
time when the ILWU did not represent an uncoerced majority
of those former PMMC employees This conduct is alleged in
the complaint to violate Section 8(b)(1)(A) and (2) of the Act.
There is no dispute that Respondent ILWU accepted recogni-
tion from Respondent PCMC as the representative of unit em-
ployees and applied the terms and conditions of a preexisting
collective-bargaining agreement with PCMC as a member of
the PMA to unit employees including the contract’s union-
security clause. As noted supra, the essential issue on which
the ILWU allegations turn is that which is also in issue respect-
ing Respondent Employers: under Board law, were Respondent
Employers obligated to recognize and bargain with the IAM
respecting a unit of M&R mechanics at the Maersk terminals in
Oakland and Tacoma on and after March 31, 2005? If there
was no such obligation, recognition of the ILWU was proper
and the relevant complaint allegations are without merit. If the
former PMMC unit remained viable into those employees’
PCMC employment a Burns successorship bargaining obliga-
tion would attach and the employees in that continuing unit
would at all times have been represented by the IAM. If this
were true, the ILWU’s conduct in accepting recognition as
these employees representative and applying the contract and
its union-security provisions to the employees was improper
and violative of Section 8(b)(1)(A) and (2) of the Act.
2. The General Counsel’s theory that Respondent
Employers violated Section 8(a)(1) and (5) of the Act
in terminating PMMC’s unit employees on or about
March 30, 2005, by failing to bargain with the IAM
respecting that unit of employees, and by withdrawing
recognition from the IAM as the representative of
those employees
There is no dispute that the IAM represented PMMC’s
Maersk-based Tacoma and Oakland M&R mechanics at least
till March 30, 2005, under an IAM/PMMC contract due to ex-
pire by its terms on March 31, 2005. There is also no dispute
that Maersk, ever cost conscious and anxious to obtain the best
possible terms from its subcontractors, announced to PMMC
and PCMC, as set forth in greater detail supra, that it was solic-
iting bids from each for a M&R contract to replace that then
held by PMMC. The counsel for the General Counsel proceeds
from this point with her theory:

[C]ounsel for the General Counsel concedes that there is no
obligation on the part of Respondent Employer to have pre-
vented Maersk’s decision to seek lower labor rates. However,
Respondent-Employer is still responsible for the actions it
took and those it failed to take, in response to Maersk’s re-
quest for lower IAM labor rates.24

24 The GC Reply Br. at 4.

Respondent Employers emphasize that they did not decide to
end PMMC’s contract with Maersk: rather Maersk did. PCMC
and PMMC had each bid for the reopened contract at its previ-
ous contract rate. It was only when informed by Maersk, Re-
spondent Employers argue, that the Maersk contract had been
awarded to PCMC that PMMC, having no other employment
for unit employees, announced the unit employees would be
laid off and, at the end of the contract, in fact did lay them off.
This was simply not a voluntary action by Respondent PMMC,
but rather was a necessary reaction to Maersk’s refusal to ex-
tend the PMMC contract for the work the unit was employed by
PMMC to do.
The General Counsel alleges that when faced with the fact
that Maersk desired lower contract costs and was calling for a
new bid on the contract and the further fact that PCMC was
also going to bid on the contract, Respondent PMMC had an
obligation to notify the IAM of this state of affairs and offer to
bargain with the IAM to provide the IAM an opportunity to
negotiate contract concessions which would allow PMMC to
place a more competitive bid with Maersk respecting a new
M&R contract to replace the existing contract held by PMMC
to do the work. In failing to notify the IAM of the situation and
provide the IAM offer to bargain concessions, the General
Counsel argues, the Respondent PMMC violated Section
8(a)(5) of the Act when it failed to notify the IAM or offer to
bargain and rather simply rebid its current contract rate with
Maersk and lost the Maersk contract in consequence. In such a
situation, argues the General Counsel and the Charging Party,
PMMC, or Respondent Employers could not terminate the unit
employees without violating Section 8(a)(5) of the Act.
The General Counsel with the concurrence of the Charging
Party argues its theory is supported by the line of Board cases
following the lead decision, the Supreme Court’s holding in
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964). In that seminal case, the Court held that an employer
could not make a determination to subcontract out maintenance
operations done by the represented unit to subcontractors—with
the consequence of laying off the unit employees who had done
the work heretofore—based on a desire to achieve lower labor
costs without notifying the representing union and providing it
an opportunity to bargain concessions which might achieve the
lower labor costs the employer needed and preserve the unit
work for the represented employees. The Court held that a
desire to reduce labor costs was a matter peculiarly suitable for
resolution within the collective-bargaining framework and that
the Board could require employers to provide such notice and
offer to bargain to unions representing their employees if they
were considering contracting out unit work in an effort to lower
labor costs. Employers who failed to make the required provi-
sions could not properly lay off their own employees in order to
save labor costs.
Respondent Employers deny the validity under the cases of
the General Counsel’s theory and offer a myriad of defenses
should the threshold theory of a Fibreboard violation be sus-
tained.25

25 These defenses include, inter alia: The complaints do not support
the violations asserted, that Respondent Employers’ provided an oppor-
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

a. Initial consideration of PMMC’s bargaining
obligation absent single-employer status
The instant case presents a complicated confluence of vari-
ous theories in an unusual factual context which, for purpose of
analysis, makes it initially useful to deconstruct the General
Counsel’s case against the Employers and consider its constitu-
ent parts.
Assuming for purposes of this initial analysis, that PMMC
was a independent employer, stranger to PCMC, and that no
bargaining or contract defenses to a Fibreboard violation apply,
what if any bargaining obligation was raised by PMMC’s ac-
tions and omissions in response to the Maersk rebid circum-
stances? Put another way, to what extent does a Fibreboard
type bargaining obligation arise under the posited facts? Since
the Government makes no contention that Maersk’s actions or
motives may be attributed to Respondents through some agency
theory, the action of PMMC at issue herein is its placing of a
bid on the Maersk M&R contract without notifying the IAM of
the situation and providing it an opportunity to make conces-
sions in wages and benefits which would have allowed PMMC
to make a more competitive bid on the Maersk contract.
Putting the issue another way: Was PMMC making a bid on
a contract to provide mechanics work to Maersk which was the
basis for employment of PMMC’s unit employees a mandatory
subject of bargaining under the Act as was found by the Court
in Fibreboard with regard to employer subcontracting? In my
view a service providing enterprise or labor contractor making
a bid to perform labor services to a client is akin to a manufac-
turing employer offering its products for sale at a given price to
a customer. If this is a correct analogy, the question may be put
more broadly: Is an employers pricing of its products to its
customers a mandatory subject of bargaining? Must an employ-
er inform its represented employees’ union, when considering
bidding on an important sales contract the loss of which could
impact on the bargaining unit, of the risks involved and provide
the union with an opportunity to make concessions that would
allow the employer to offer its product at a more competitive
price to its clients or customers? And, if it fails to do so and
because its price is not accepted, is it impermissible to lay off
employees no longer needed to manufacture the products or
supply the services which are now not being sold? No party
cites post-Fibreboard cases on the subject, but in my view the
General Counsel’s Fibreboard argument must start with that
fundamental question.
Chief Justice Warren writing for the majority in Fibreboard
concluded that “contracting out” unit work was a mandatory
subject of bargaining. Initially he noted that the subject was of
importance to unit employees and that their employment was
clearly at stake. He noted further at 379 U.S. at 211–212:

tunity to the IAM to bargain at relevant times and the Union refused to
do so, that the IAM waived any right to bargain by the terms of its
collective-bargaining agreement and past bargaining history, that the
violation is inconsistent with the Courts decision in First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and that it is incon-
sistent with the Board’s decision in AG Communication Systems, 350
NLRB 168 (2007).
The inclusion of “contracting out” within the statutory
scope of collective bargaining also seems well designed to
effectuate the purposes of the National Labor Relations
Act. One of the primary purposes of the Act is to promote
the peaceful settlement of industrial disputes by subjecting
labor-management controversies to the mediatory influ-
ence of negotiation. The Act was framed with an aware-
ness that refusals to confer and negotiate had been one of
the most prolific causes of industrial strife.4 Labor Board
v. Jones & Laughlin Steel Corp., 30 U.S. 1, 42–43. To
hold, as the Board has done, that contracting out is a man-
datory subject of collective bargaining would promote the
fundamental purpose of the Act by bringing a problem of
vital concern to labor and management within the frame-
work established by Congress as most conducive to indus-
trial peace.
The conclusion that “contracting out” is a statutory
subject of collective bargaining is further reinforced by in-
dustrial practices in this country. While not determinative,
it is appropriate to look to industrial bargaining practices
in appraising the propriety of including a particular subject
within the scope of mandatory bargaining.5 Labor Board
v. American Nat. Ins. Co., 343 U.S. 395, 408. Industrial
experience is not only reflective of the interests of labor
and management in the subject matter but is also indica-
tive of the amenability of such subjects to the collective
bargaining process. Experience illustrates that contracting
out in one form or another has been brought, widely and
successfully, within the collective bargaining framework.6
Provisions relating to contracting out exist in numerous
collective bargaining agreements,7 and “[c]ontracting out
work is the basis of many grievances; and that type of
claim is grist in the mills of the arbitrators,” United Steel-
workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584.
______________________________________
4 See declaration of policy set forth in 1 and 101 of the Labor-
Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. 141,
151 (1958 ed.).
5 See Cox and Dunlop, Regulation of Collective Bargaining
by the National Labor Relations Board, 63 Harv. L. Rev. 389,
405–406 (1950).
6 See Lunden, Subcontracting Clauses in Major Contracts,
Pts. 1, 2, 84 Monthly Lab. Rev. 579, 715 (1961).
7 A Department of Labor study analyzed 1,687 collective bar-
gaining agreements, which applied to approximately 7,500,000
workers (about one-half of the estimated work force covered by
collective bargaining agreements). Among the agreements stud-
ied, approximately one-fourth (378) contained some form of a
limitation on subcontracting. Lunden, supra, at 581.

Applying the Courts analysis to PMMC’s bidding on the
Maersk contract, as in Fibreboard, unit jobs were clearly at
stake. Indeed since PMMC was in effect a “one customer”
employer at the time, essentially all unit jobs were at stake if
PMMC’s bid was unacceptable to Maersk. Unlike subcontract-
ing however, employer pricing of its products does not meet the
further analysis undertaken by Chief Justice Warren in the
quoted portion of Fibreboard above. Thus, following the
Courts analysis, bargaining about the employer’s pricing deci-
sions has not been a common or even infrequent industrial
PCMC/PACIFIC CRANE MAINTENANCE CO. 1237
practice. Collective-bargaining contracts do not commonly
address pricing and pricing is clearly not the grist in the mills of
the arbitrators.
Beyond Fibreboard there have been no cases cited or found
by me which hold that employer pricing of its products or ser-
vices for sale is a mandatory subject of bargaining under the
Act. I find therefore that there is no law which makes an em-
ployer’s pricing strategies a mandatory subject of bargaining
however risky or consequential to the terms and conditions of
employment of that employer’s represented employees. I find
that PMMC’s decision on how much to bid on the Maersk con-
tract in January 2005 was such a pricing decision and not a
Fibreboard-type subcontracting decision which is a mandatory
subject of bargaining.
I find based on the above, on the paucity of authority offered,
and on the basic notion in Board jurisprudence that an adminis-
trative law judge must follow Board law rather than make new
law, that PMMC’s bidding on the Maersk contract in early
2005 was a pricing decision which was not a mandatory subject
of bargaining and therefore PMMC did not have to notify and
provide an opportunity to the IAM to bargain concerning con-
cessions which had the potential to effect PMMC’s bid26 on the
Maersk contract and the likelihood that PMMC unit employees
would continue to do Maersk’s Oakland and Tacoma terminals
M&R mechanics work. Therefore, I would find no PMMC
failure to bargain.
That finding having been made, I further find there were no
Board remedial consequences to PMMC for its bidding on the
Maersk contract without notification to and provision of an
offer to bargain to the IAM. More specially, PMMC’s loss of
its contract and loss of all the unit work the contract provided,
when Maersk ended its relationship with PMMC, were not a
consequence of any failure to bargain with the IAM. Simply
put: no wrong no remedy.
The consequence of this latter conclusion is that PMMC also
had no duty to engage in “decision” bargaining over the layoff
of its unit employees at the conclusion of its Maersk contract.27
PMMC was not in any legal sense herein liable for the Maersk
decision to award the contract to another. And, PMMC did not
decide to lay off the unit employees: the loss of all unit work
commanded it. Further, with the loss of all unit employment
and the consequential termination of all unit employees,
PMMC no longer employed employees represented by the IAM
and on that basis it permissibly withdrew recognition of the
IAM.
All of the above being so in the artificial factual circum-
stances propounded, no violation of the Act under the General
Counsel’s initial theory of a violation would have occurred

26 Respondents argue a variant of this analysis: that the decisions
taken by PMMC to bid on the Maersk contract, if mandatory subjects
of bargaining, were exempt because the decisions went to PMMC’s
relationship to its customer—a matter at that heart of its management
plan and not a matter of its evaluation of its own costs and hence not
bargainable under First National Maintenance Corp. v. NLRB, 452 U.S.
666 (1981). See discussion of that doctrine, infra.
27 This analysis does not address effects bargaining which is not an
issue herein. See the General Counsel’s Statement of Position quoted,
supra at fn. 8.
were PCMC an independent employer with no connection to
PMMC. And, it would then not be necessary to consider the
various Respondents asserted bargaining and contract defenses
to the General Counsel’s prima facia case alluded to above.
b. Does the fact that PMMC and PCMC were single
employers at all relevant times change the analysis
immediately above that PMMC had no obligation to
offer to bargain with the IAM before terminating
its employees?28
(1) An important narrowing of the issue and argument
For counsel for the General Counsel, the fact that PCMC and
PMMC were single employers at all relevant times virtually
carries her theory of a violation. Thus, she argues at page 7 of
her Statement of Position:

As [a single employer, PMMC and PCMC] are but divisions
of a single enterprise, and PCMC, therefore was not entitled
to abandon its bargaining relationship with the [IAM]. Thus,
as a single employer, PCMC was obligated to respond to the
[IAM’s] pre-March 31 bargaining requests and to bargain to
impasse regarding all changes in terms and conditions of em-
ployment, including layoffs, wages, benefits, and temporary
transfers to non-unit positions and temporary assignments of
non-bargaining unit employees to bargaining unit positions
[footnote omitted].

There is no doubt that the Board has regularly addressed a
variety of settings and circumstances where alter ego employers
and single-employer entities engage in a course of wrongful
conduct which begins with one entity’s employees being repre-
sented by a union and ends with the other entity engaging in
essentially the same business without union representation. It
is not atypical for alter ego employers to engage in a course of
conduct motivated by union animus and designed to end union
representation while continuing—often in disguised form—the
initial business whose employees were originally represented
but are not thereafter. In such a setting where alter ego rela-
tionships are established, or where union animus motivates
conduct and/or where disguised continuance may be a factor,
the Board regularly finds the continuing entity responsible to
bargain with the representing union concerning both the origi-
nal discontinuance of operations and the renewal of operations.
Further, traditional remedies for actions in violations of 8(a)(1)
and (3) of the Act also frequently apply which includes rein-
statement and, in some cases, restoration of the status quo ante.

28 While necessary to fully understand the contentions of the parties,
it is not fair to the counsel for the General Counsel’s case or her theory
of a violation to suggest she made the arguments rejected above. Ra-
ther, in her pretrial statement of position counsel for the General Coun-
sel explicitly indicated that her initial theory of a violation required or
was dependent on a finding of single employer status for PMMC and
PCMC. Were that not to be found, she argued in her statement of posi-
tion, her alternative theory also referred to herein as the second theory
of a violation or “Burns” successor theory would apply. Indeed the
complaint was originally explicitly pled in “alternative theories of
violation.” Following the midtrial stipulation of the parties that PCMC
and PMMC were a single employer at all relevant times, the complaint
was amended to dispense with the alternate theory structure.
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The instant case, however, is not a case of the type noted.
Thus, as discussed supra, the Charging Party’s alter ego conten-
tions contained in the original charges involved herein were
rejected by the General Counsel and not included in the com-
plaints. So, too, antiunion or animus allegations of violations
of Section 8(a)(1) and (3) of the Act were also set forth in the
Charging Party’s charges but rejected by the General Counsel
and not included in the complaints. And, importantly, the Gen-
eral Counsel made it clear that the Government was not alleg-
ing that Maersk’s conduct was alleged as a violation of the Act
or that any Respondent herein had actual or constructive control
respecting or responsibility for Maersk’s conduct herein.
And, further, again as discussed above, the actions of PCMC
as a part of the single employer in hiring PMMC employees
conditioned on their accepting employment as ILWU repre-
sented employees working under the coastwide ILWU/PMA/
PCMC contract, and as part of that bargaining unit, and in re-
fusing at all times to recognize or bargain with the IAM re-
specting those employees, did not take place in the context of
or as part of a course of conduct initiated in wrongful failure to
bargain by PMMC were it acting as a separate and independent
employer in laying off the IAM-represented employees.
The point of all the above is simply that the instant actions of
the PCMC as part of the single-employer entity in the above-
described events are not per se violative of Section 8(a)(5) of
the Act as a follow-on to earlier wrongful action or as a contin-
uing part of an illegally motivated pattern and practice or
scheme to defeat union representation. This being so, the ar-
guments marshaled by the General Counsel and the Charging
Party in support of the allegations at issue here must be consid-
ered only to the extent the cases cited and arguments made do
not rely on such precursor conduct and/or earlier findings of
violations of Section 8(a)(1) and (3) of the Act.
Thus, for example, the General Counsel’s case citation in her
initial posthearing brief for the proposition that the single em-
ployer, Respondent Employers herein, had an obligation to
retain the unit employees is Blumenfeld Theaters Circuit, 240
NLRB 206 (1979), a Board case that also found that the em-
ployees discharged had been discharged in violation of Section
8(a)(3) of the Act and were discharged as part of a course of
antiunion conduct. Thus the Board noted:

The discharge of all bargaining unit employees and their re-
placement with nonunion employees can only be viewed as
part of its overall strategy to dislodge the Unions from the
theater. By discharging the bargaining unit employees on Sep-
tember 6, 1977, when the theater temporarily closed and by
refusing to reinstate them on September 28, when the theater
reopened, BTC and the Roxie Partnership violated Section
8(a)(3) and (1) of the Act. [240 NLRB at 217.]

(2) The single-employer Respondent Employers’
obligation, if any, to bargain about PMMC’s decision
to bid on the Maersk contract and decision to terminate
the PMMC unit employees and withdraw recognition
of the IAM
The General Counsel and the IAM argue that Respondent
Employers, as a single employer, were obligated to bargain
with the IAM before PMMC placed its bid on the Maersk con-
tract and, when, PMMC failed to do so; and when it lost the
Maersk contract and PCMC won the Maersk work, PCMC
became obligated to bargain with the IAM respecting the transi-
tion of employee employment from PMMC to PCMC and
PCMC was obligated to recognize the IAM as the representa-
tive of the former PMMC unit as a separate PCMC bargaining
unit independent of and apart from the ILWU/PMA/PCMC unit
and contract.
Turning initially to the decision of PMMC as a single em-
ployer with PCMC to bid on the Maersk contract, I find no
reason to deviate from my earlier conclusion that PMMC simp-
ly did not have an obligation under the Act to notify and bar-
gain with the labor organization that represented its employees
concerning the pricing of its product to its client/customer.
Whether or not PMMC was a single employer with PCMC or a
free-standing employer with no relation to PCMC does not, in
my view, make a represented employer’s decision to bid on a
customers work—conceptually identical to setting the price on
the employer’s product—more or less a bargainable subject
under the Act. Extending the analysis set forth above, I find no
obligation on the part of the single-employer Respondents to
notify and bargain with the IAM concerning PCMC’s decision
to bid on the Maersk contract.
The question of whether or not the PCMC/PMMC single
employer could in effect end the PMMC/IAM bargaining rela-
tionship by terminating all PMMC unit employees and immedi-
ately thereafter hiring the great bulk of those terminated em-
ployees the following day as PCMC/ILWU-represented em-
ployees is a different issue. It is one not addressed supra in
considering PMMC’s bargaining obligation.
I have found there was no obligation to bargain with the
IAM by either PMMC or PCMC concerning their bids on the
Maersk contract. There is no contention that Respondent Em-
ployers bear some responsibility for the award of the contract
by Maersk to PCMC. Given that the decision that PMMC
would no longer be doing the Maersk work was taken by
Maersk, disregarding effects bargaining with the IAM which
occurred, it is not apparent to me given the fact that no earlier
unfair labor practices had occurred, how PMMC had a nonef-
fects bargaining obligation respecting the terminations or had
an obligation to continue to recognize the IAM as the repre-
sentative of the discharged employees.
The counsel for the General Counsel argues:

[R]espondent Employer could not lawfully withdraw recogni-
tion from the union and advise it and its employees that in or-
der for them to continue to perform bargaining unit work,
they would all have to be laid off, and rehired as longshore-
men. [GC Reply Br. at 5.]

In effect, the Government treats the single employer as an un-
divided whole—or an alter ego—in making its analysis and
argument. On the facts of this case, however, with its inde-
pendent actions of PMMC and PCMC and the unchallenged,
unalleged, actions of the independent party Maersk influencing
and causing important outcomes, the two Respondent Employ-
ers, even though a single employer by stipulation, are not alter
ego employers undertaking with common purpose a coordinat-
PCMC/PACIFIC CRANE MAINTENANCE CO. 1239
ed if disguised anti-IAM course of conduct. Single employers
are liable for one another’s unfair labor practices in many cases,
but they are not to be simply per se, without more, considered a
single entity for issues of continuity of bargaining obligations
under the Act.
At this stage of the analysis, in evaluating the post-Maersk
bid conduct of PCMC and PMMC, I do not find the record
supports a unitary analysis. I therefore will here consider, to at
least some extent, the General Counsel’s arguments against
considering the two Respondent Employers actions separately.
Thus, to the extent the General Counsel’s argument address-
es PMMC’s actions, i.e., the termination of employees as op-
posed to PCMC’s statements and actions respecting PMMC’s
employees I reject the argument and find the Act was not vio-
lated by PMMC. As set forth above, PMMC had no obligation
to notify and bargain with the IAM respecting it bid. When it
lost its bid, it lost all unit work effective March 31, 2005. This
cessation of work was not as a result of its wrong doing or as a
result of its decision to abandon the work and, setting aside
effects bargaining not at issue here, created no bargaining obli-
gation on PMMC’s part with respect to the IAM concerning the
bargaining unit. Further, and on the same basis, I find that
PMMC, on and after March 31, 2005, having neither unit em-
ployees nor evident prospects of obtaining work to offer such
employees, could terminate its employees effective March 31,
2005. See also the discussion of AG Communication Systems,
350 NLRB 168 (2007), infra.
In summary, I have found that PMMC did not violate the Act
under the General Counsel’s first theory of Respondent Em-
ployers’ failure to meet their bargaining obligations to the IAM.
PMMC as one part of the single-employer Respondents is
therefore not liable for any conduct alleged to have been under-
taken by it and which was a violation of Section 8(a)(5) under
this theory. These findings, however, have addressed only the
PMMC conduct, not the PCMC’s subsequent conduct described
supra which is also alleged by the complaints as a violation of
Section 8(a)(5) which are addressed immediately below.
What remains under the first theory of bargaining violation
of the General Counsel is the conduct of PCMC. Thus, before
PMMC’s discontinuance of services for Maersk while the unit
was still employed on the job by PMMC, PCMC solicited the
PMMC/IAM bargaining unit members to apply for employment
with PCMC doing Maersk’s M&R mechanics work at the same
locations with the explicit condition that the work done would
be covered by the PMA/PCMC-ILWU Coastwide contract and
the unit employees would be represented by the ILWU. There-
after Respondent PCMC hired the great bulk of the PMMC
bargaining unit, applied the terms and conditions of the
PMA/PCMC-ILWU Coastwide contract to those employees,
declined to recognize the IAM as representative of the Tacoma
and Oakland mechanics and recognized the ILWU as the repre-
sentative of its new Oakland and Tacoma mechanic employees
as part of the PMA/PCMC-ILWU Coastwide multiemployer
unit.
Under this first theory29 Respondent Employers, because
they are a single employer and were at all relevant times, may
not destroy the IAM’s representative status respecting the
M&R mechanics performing work at the Maersk terminals by
the conceit or device of simply having PMMC discharge the
unit employees at the end of March 30, 2005, and then have
PCMC simply hire them for the same tasks to commence the
following morning of March 31, 2005.
The conduct at issue in this portion of the analysis may not
be so easily dismissed as conduct that could be considered as
undertaken by one of the single-employer Respondents inde-
pendently because the actions were in response to prior deci-
sions and actions taken by outsiders. Here, the PCMC solicita-
tion of PMMC’s employees to apply to PCMC and the subse-
quent hire by PCMC of essentially all of the PMMC unit em-
ployees is a connected train of events—a nexus that from the
perspective of PCMC’s actions places the two Respondent
Employers actions in tandem and suggests the employment of
the PMMC unit employees was essentially continuous through
the transition to PCMC employment. And from this continua-
tion of representation theory, the General Counsel further alleg-
es that the various unilateral changes in unit employees terms
and conditions of employment put in place by PCMC30 in
changing the PMMC terms and conditions of employment ap-
plied to its unit employees to the ILWU contract terms and
conditions as PCMC employees as well as their refusal to rec-
ognize and bargain with the IAM as representative of PCMC
employees are additional violations of Section 8(a)(5) of the
Act.
On this point the parties discussed the Board’s recent case:
AG Communication Systems, 350 NLRB 168 (2007). Re-
spondent Employers rely heavily on AG Communication for the
proposition that single employers have no obligation to bargain
with a labor organization representing a bargaining unit consol-
idated with a bargaining unit of the other member of the single
employer concerning the decision to consolidate the units or to
recognize that union as representing any part of the consolidat-
ed unit. The General Counsel and the Charging Party argue the
case is distinguishable. AG Communication is recent law and
worthy of discussion both for itself and for its discussion of
First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981).
In AG Communication Systems, supra, the Board found that
two entities AG Communication and Lucent Technologies were
a single employer at relevant times. The two entities made and
implemented a decision to integrate a bargaining unit of AG
employees represented by an IBEW local into a bargaining unit
of Lucent employees represented by a CWA local treating the
employees thereafter as represented by the CWA and with-
drawing recognition from the IBEW. The respondent in that
case argued, and the Board agreed, that its decision to purchase

29 The General Counsel’s alternative theory or second theory of find-
ing Respondent PCMC bound to recognize and bargain with the IAM is
the Burns successorship theory which has been briefly described, supra,
and will be discussed in greater detail separately below.
30 Elements of this argument are also discussed in the Burns succes-
sorship arguments, infra.
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

AG in its entirety, close AG operations and completely inte-
grate all aspects of the two companies, including the two bar-
gaining units, was a core entrepreneurial management decision
exempt for bargaining under First National Maintenance Corp.
v. NLRB, supra. The General Counsel and the Charging Party
distinguish the case based on the fact that the initial decision to
consolidate the operations was sheltered under First National
Maintenance. It is necessary to first address that issue.
In First National Maintenance Corp., the Court had reasoned
that an employers decision to shut down a part of its business
represented a significant change in the scope and direction of
the enterprise which is akin to the decision of whether to be in
business at all. The Court held that bargaining over such man-
agement decisions should be required “only if the benefit, for
labor management relations and the collective-bargaining pro-
cess, outweighs the burden placed on the conduct of the busi-
ness.” 452 U.S. at 679.
In disputing the application of First National Maintenance
Corp. to the instant case, the General Counsel and the Charging
Party argue that the process involved herein: Maersk’s unhap-
piness with the PMMC contract, Maersk’s initiation of a new
bidding process, PMMC’s loss of the Maersk contract and the
award of the contract to PCMC, the discharge of the PMMC
unit employees, the hire by PCMC of those employees and the
initiation of PCMC’s operation—in their totality, deal with
labor costs which could have been successfully addressed in
bargaining with the IAM. The Respondents argue that in the
sequence of events in this case the Respondents’ costs were not
a matter of concern to Respondent Employers and were not a
determining factor herein. Rather, the bid costs to Maersk un-
der the contract to provide Maersk mechanic services and na-
ture of the relationship between Respondent Employers and
Maersk was involved. Thus, Respondent Employers argue that
the benefits of bargaining were only indirectly related to the
Maersk issues and could not and did not outweigh Respondent
Employers right to make core entrepreneurial management
decisions in dealing with Maersk.
In resolving the First National Maintenance issue posed by
the parties above, I accept the arguments of the Respondents
and reject the arguments of the General Counsel and the Charg-
ing Party respecting the relationship of the Court’s meaning of
“labor costs” to the bid costs from Maersk’s perspective. I find
there is an insufficient relationship between the “costs” in-
volved herein to apply the Court’s labor costs analysis to the
instant facts. From the outset, as described above respecting
the application of the Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203 (1964), decision to the instant case, I have
viewed the series of events herein as involving far more attenu-
ation of causal factors than a direct Respondent Employer deci-
sion to make unilateral changes to unit employees’ terms and
conditions of employment, or their ultimate discharge because
of labor costs which might have been resolved in bargaining
with the IAM. I agree with the Respondents that the im-
portance of costs herein applied to Maersk, Respondent Em-
ployers’ customer, and only indirectly to Respondent Employ-
ers themselves. Second, the transcendent decision, the decision
ending the business relationship of PMMC with Maersk, was
taken by Maersk, and—critically—not taken by Respondent
Employers.
Having found that AC Communication, supra, and the instant
case are similar in that the initial decision to consolidate the
units in AC Communication and the decision herein to transfer
the work from PMMC to PCMC were not violations of the Act,
the attempts to distinguish it fail and its holding is applicable to
the instant case. That holding is that it is not per se improper
and a violation of the Act for respondents acting as single em-
ployers to consolidate separately represented bargaining units
and thereafter, as otherwise appropriate, continue or withhold
recognition of labor organizations under normal representation
standards. I apply that decision here to conclude that, given
there was no decision bargaining obligation on the part of
PMMC to bid on the Maersk contract or to lay off its unit em-
ployees, there was no automatic violation to be found in PCMC
hiring those employees and—at least if Respondent Employers
prevail on the Burns contentions to be discussed below—
withdrawing recognition of the IAM, and recognizing the
ILWU.
Thus, having considered the entire record and the positions
of the parties, I find PMMC’s decision to place a bid on the
Maersk contract and the decision of PMMC to lay off its em-
ployees when their work was lost did not in either case present
a mandatory subject of bargaining (effects bargaining not at
issue or addressed herein). This finding is not changed by the
fact that PCMC and PMMC are a single employer. That being
so, I further find that AG Communication Systems, 350 NLRB
168 (2007), also applies to the instant case and that Respondent
Employers did not have any per se or non-Burns statutory bar-
gaining obligation to recognize the IAM as the representative of
the former PMMC unit employees when they were hired as
PCMC employees or to bargain with the IAM respecting their
terms and conditions of employment independent of the Burns
successorship issues to be discussed infra. I find therefore that
the General Counsel’s allegations under her initial bargaining
theory are without merit and the complaint allegations depend-
ent on that theory will be dismissed.
c. Summary and conclusion respecting the General Counsel’s
theory that Respondent Employers were obligated to bargain
about the decisions to bid on the Maersk contract and the deci-
sion to terminate the PMMC unit employees and end its rela-
tionship with the IAM31
As set forth in detail above, I have found that Respondent
Employers did not have an obligation to notify and offer to
bargain with the IAM concerning the bargaining unit of M&R
mechanics performing work at the Maersk terminals in Tacoma
and Oakland in regards to any element of the bidding process
with Maersk in early 2005, or in making its decision to termi-
nate the PMMC unit employees or the decision to hire those
same employees by PCMC. Therefore, there was no violation
of the Act nor a remedy for a violation of the Act applicable to

31 The Governments theory and associated complaint allegations
predicated on or consistent with a bargaining obligation arising from a
successorship under NLRB v. Burns Security Services, 406 U.S. 272
(1972), are not addressed here but in a separate section, infra.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1241
these events save as may be independently found in the Burns
analysis—“the General Counsel’s alternate theory.” The Gen-
eral Counsel’s complaint allegations dependent on the validity
of this initial General Counsel theory of a bargaining violation
shall therefore be dismissed. The General Counsel’s complaint
allegations which may be sustained by prevailing in her alter-
nate theory of a violation—a successorship relationship estab-
lished under NLRB v. Burns Security Services, supra, are not
addressed here but in separate sections, infra.
3. The General Counsel’s successorship theory under
NLRB v. Burns Security Services, 406 U.S. 272 (1972)
a. The basic law of successorship and accretion and
the general positions of the Parties
The Board has at all times since the issuance of the Court’s
decision in NLRB v. Burns Security Services, supra, applied its
terms in what are now known as Burns sucessorship cases.
Burns held essentially that a succeeding employer, who hires a
predecessor’s unit employees in sufficient number to comprise
a majority of unit employees in the relevant unit in its new
operations, when there is continuity in operations, is bound to
recognize the labor organization which represented the prede-
cessor’s unit employees.
From the issuance of the initial complaint and the General
Counsel’s submitted statement of position to the parties’ stipu-
lation of the single-employer status of PMMC and PCMC, the
General Counsel maintained a separate “Burns Successor Al-
ternate Theory” as a backup to the “single-employer theory”
discussed, supra. Thus, the General Counsel argued, in her
Statement of Position at 8:

Under this theory, PCMC, as a Burns successor to PMMC,
had an obligation to recognize and bargain with the [IAM],
since an overwhelming majority of its employees in Oakland
and Tacoma were former [IAM]-represented employees of
PMMC. In addition the General Counsel will demonstrate
that there was a substantial continuity in operations between
the two enterprises. See Fall River Dyeing & Finishing Corp.
v. NLRB, 482 U.S. 27, 41–43 (1987).

In Fall River Dyeing v. NLRB, 482 U.S. 27 (1987), the Court
noted at 43–44:

In Burns, we approved the approach taken by the
Board and accepted by courts with respect to determining
whether a new company was indeed the successor to the
old. 406 U.S. at 280–281 and fn. 4. This approach, which
is primarily factual in nature and is based upon the totality
of the circumstances of a given situation, requires that the
Board focus on whether the new company has “acquired
substantial assets of its predecessor and continued, without
interruption or substantial change, the predecessor’s busi-
ness operations.” Golden State Bottling Co. v. NLRB, 414
U.S. at 184. Hence, the focus is on whether there is “sub-
stantial continuity” between the enterprises. Under this
approach, the Board examines a number of factors: wheth-
er the business of both employers is essentially the same;
whether the employees of the new company are doing the
same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same pro-
duction process, produces the same products, and basically
has the same body of customers. See Burns, 406 U.S. at
280 fn. 4; Aircraft Magnesium, Division of Grico Corp.,
265 NLRB 1344, 1345 (1982), enfd, 730 F.2d 767 (CA9
1984); Premium Foods, Inc., 260 NLRB 708, 714 (1982),
enfd, 709 F.2d 623 (CA9 1983).
In conducting the analysis, the Board keeps in mind
the question whether “those employees who have been re-
tained will understandably view their job situations as es-
sentially unaltered.” See Golden State Bottling Co., 414
U.S. at 184; NLRB v. Jeffries Lithograph Co., 752 F.2d
459, 464 (9th Cir. 1985). This emphasis on the employees’
perspective furthers the Act’s policy of industrial peace. If
the employees find themselves in essentially the same jobs
after the employer transition, and if their legitimate expec-
tations in continued representation by their union are
thwarted, their dissatisfaction may lead to labor unrest.
See Golden State Bottling Co., 414 U.S. 184.

The Respondents do not contest the sucessorship doctrine as
such, rather they argue it does not apply to the instant case be-
cause the PMMC bargaining unit of IAM-represented M&R
mechanics at the time PCMC took over the Maersk terminal
M&R operations in Tacoma and Oakland was accreted into the
far larger coastwide ILWU-represented unit covered by the
PMA-ILWU Coastwide contract. Thus, the Respondents argue
that there is no continuity of operations and that the predeces-
sor’s unit employees, hired at the commencement of PCMC’s
Oakland and Tacoma Maersk terminals M&R noncrane me-
chanic operations, do not constitute a majority of unit members
either in an all PCMC mechanic employees unit or in the
Coastwide PMA-ILWU unit.
The Respondents emphasize that Burns by its own terms
does not find a sucessorship appropriate where the original
predecessor bargaining unit is no longer appropriate. Thus,
Burns noted at 406 U.S. 280–281:

It would be a wholly different case if the Board had deter-
mined that because Burns’ operational structure and practices
differed from those of Wackenhut, the Lockheed bargaining
unit was no longer an appropriate one.4 Likewise, it would be
different if Burns had not hired employees already represent-
ed by a union certified as a bargaining agent [footnote omit-
ted] and the Board recognized as much at oral argument.
[Footnote omitted.] But where the bargaining unit remains
unchanged and a majority of the employees hired by the new
employer are represented by a recently certified bargaining
agent there is little basis for faulting the Board’s implementa-
tion of the express mandates of 8(a)(5) and 9(a) by ordering
the employer to bargain with the incumbent union. This is the
view of several courts of appeals and we agree with those
courts. NLRB v. Zayre Corp., 424 F.2d 1159, 1162 (7th Cir.
1970); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d 1025,
1026–1027 (7th Cir. 1969); S. S. Kresge Co. v. NLRB, 416
F.2d 1225, 1234 (6th Cir. 1969); NLRB v. McFarland, 306
F.2d at 220 [10th Cir. 1962)].
________________________________________
4 The Court of Appeals was unimpressed with the asserted
differences between Burns’ and Wackenhut’s operations: “All of
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the important factors which the Board has used and the courts
have approved are present in the instant case: `continuation of the
same types of product lines departmental organization, employee
identity and job functions.’. . . Both Burns and Wackenhut are na-
tionwide organizations; both performed the identical services at
the same facility; although Burns used its own supervisors, their
functions and responsibilities were similar to those performed by
their predecessors; and finally, and perhaps most significantly,
Burns commenced performance of the contract with 27 former
Wackenhut employees out of its total complement of 42.” 441
F.2d 911, 915 (1971). Although the labor policies of the two
companies differed somewhat, the Board’s determination that the
bargaining unit remained appropriate after the changeover meant
that Burns would face essentially the same labor relations envi-
ronment as Wackenhut: it would confront the same union repre-
senting most of the same employees in the same unit.

The Parties recognized that under the sucessorship theory of
the General Counsel’s case and the Respondents defenses to the
sucessorship allegations, the critical question is essentially
whether or not the PMMC, IAM-represented M&R mechanic
bargaining unit remained an appropriate unit under PCMC or,
whether the PMMC group was accreted into the far larger
ILWU-represented unit.
The General Counsel and the Charging Party emphasize that
the party challenging the appropriateness of an historical bar-
gaining unit bears a heavy burden to establish the contrary.
Counsel for the General Counsel noted Children’s Hospital,
312 NLRB 920, 929 (1993), holding: “Compelling circum-
stances are required to overcome the significance of bargaining
history,” and she further noted “units with extensive bargaining
history remain intact unless repugnant to Board policy” citing
P. J. Dick Contracting, 290 NLRB 150, 151 (1988). Counsel
for the General Counsel argues at page 116 of her posthearing
brief:

The Board applies a “restrictive policy” regarding accretions
in order to safeguard employee freedom of choice. See, e.g.,
Super Valu Stores, 283 NLRB 134, 135 (1987). An accretion
will not be found unless a newly-created or acquired group of
employees shares an overwhelming community of interest
with employees in a pre-existing unit. Gitano Distributing
Center, 308 NLRB 1172, 1174 (1992).

The Respondents agree that the Board generally finds an ac-
cretion only when the employees sought to be added to an ex-
isting bargaining unit have little or no separate identity and
share an overwhelming community of interest with the preex-
isting unit to which they are accreted. The Respondents argue
strenuously however that, considering the traditional factors in
accretion analyses, the instant factual situation meets the
Board’s tests. The General Counsel notes, and the Charging
Party agrees, that the issue of accretion involves fact-intensive
balancing of multiple factors including bargaining history,
functional integration of operations, employee skills and train-
ing, common control of labor relations, day-to-day supervision
and physical proximity citing Ryder Integrated Logistics, Inc.,
329 NLRB 1493 (1999); Gould, Inc., 263 NLRB 442, 445
(1982). And, not surprisingly, the General Counsel and the
Charging Party argue that no accretion may be found in the
instant case.
The Frontier decision: Frontier Telephon of Rochester, Inc.,
344 NLRB 258, 259 (2005), contains a recent discussion of the
issues in accretion analysis:

The fundamental purpose of the accretion doctrine is to “pre-
serve industrial stability by allowing adjustments in bargain-
ing units to conform to new industrial conditions without re-
quiring an adversary election every time new jobs are created
or other alterations in industrial routine are made.” NLRB v.
Stevens Ford, Inc., 773 F.2d 468, 473 (2d Cir. 1985). How-
ever, because accreted employees are absorbed into an exist-
ing bargaining unit without an election or other demonstrated
showing of majority status, the accretion doctrine’s goal of
promoting industrial stability places it in tension with the right
of employees to freely choose their bargaining representative.
Accordingly, the Board follows a restrictive policy in apply-
ing the accretion doctrine. Safeway Stores, 256 NLRB 918
(1981); Wackenhut Corp., 226 NLRB 1085, 1089 (1976).
One aspect of this long-standing restrictive policy, which was
recently restated in E. I. Du Pont de Nemours, Inc.,5 has been
to permit accretion “only when the employees sought to be
added to an existing bargaining unit have little or no separate
identity and share an overwhelming community of interest
with the preexisting unit to which they are accreted.” Supra at
608 quoting Ready Mix USA, Inc., 340 NLRB 946, 954
(2003).6 In determining, under this standard, whether the req-
uisite overwhelming community of interest exists to warrant
an accretion, the Board considers many of the same factors
relevant to unit determinations in initial representation cases,
i.e., integration of operations, centralized control of manage-
ment and labor relations, geographic proximity, similarity of
terms and conditions of employment, similarity of skills and
functions, physical contact among employees, collective bar-
gaining history, degree of separate daily supervision, and de-
gree of employee interchange. E. I. Du Pont, supra at 608;
Compact Video Services, 284 NLRB 117, 119 (1987). How-
ever, as stated in E. I. Du Pont, the “two most important fac-
tors”—indeed, the two factors that have been identified as
“critical” to an accretion finding—are employee interchange
and common day-to-day supervision.7 Super Valu Stores, 283
NLRB 134, 136 (1987), citing Towne Ford Sales, 270 NLRB
311, 312 (1984).
____________________________
5 341 NLRB 607 (2004).
6 This test is different than the traditional community-of-
interest test that the Board applies in deciding appropriate units in
initial representation cases. In that context, the Board will certify
any unit that is an appropriate unit, even if it is not the most ap-
propriate unit. Bartlett Collins, 334 NLRB 484 (2001). In the ac-
cretion context, however, “[a] group of employees is properly ac-
creted to an existing bargaining unit when they have such a close
community of interests with the existing unit that they have no
true identity distinct from it.” NLRB v. St. Regis Paper, 674 F.2d
104, 107–108 (1st Cir. 1982). Thus, the issue here is not whether
an RC petition could properly be processed in a unit consisting of
CSRs and techs. Such a unit could be an appropriate unit and, if
so, an election would be held.
7 As noted below, the absence of these two factors will ordi-
narily defeat a claim of lawful accretion. This is not to say that
PCMC/PACIFIC CRANE MAINTENANCE CO. 1243
the presence of these factors will establish a claim of lawful ac-
cretion.

And the Board has used the noted approach as recently as De-
cember 17, 2008, in Professional Janitorial Service of Houston,
Inc., 353 NLRB 595 (2008), in which the Board adopted the
decision of an administrative law judge who rejected the de-
fense of a successor that the predecessor unit had been accreted
into the successor’s existing multi-facility unit. The judge not-
ed the relevant law and the holding of the Board in Trane, 339
NLRB 866, 870 (2003), as follows:

. . . Trane, 339 NLRB 866, 870 (2003), a representation case,
the Board stated that it has long held that a petitioned-for sin-
gle-facility unit is presumptively appropriate “. . . unless it has
been so effectively merged into a more comprehensive unit,
or it is so functionally integrated, that it has lost its separate
identity.” The party opposing the single location unit bears a
heavy burden of rebutting its presumptive appropriateness.
The factors that the Board examines to determine whether this
burden was satisfied include (1) central control over daily op-
erations and labor relations, including the extent of local au-
tonomy; (2) similarity of employee skills, functions and work-
ing conditions; (3) the degree of employee interchange; (4)
the distance between the locations; and (5) bargaining history,
if any exists. (Professional Janitorial Service of Houston, Inc.,
353 NLRB No. 65, JD slip op.at 8 (December 17, 2008).

Given all the above, it is appropriate to turn to the continui-
ty/unit elements of the PMMC/PCMC transition at issue here.
Initially the evidence respecting the two operations will be set
forth and thereafter the Board’s teachings will be applied to the
operations involved.
b. The PMMC and PCMC operations at the Maersk
Oakland and Tacoma terminals32
(1) Basics
As discussed supra, PCMC began operations in 1990 as a
supplier of M&R mechanics to clients, initially, at terminals at
the ports of Southern California and over time to clients at West
Coast ports generally. PCMC from its early times recognized
the ILWU as representative of its unit employees, joined the
PMA and was signatory to the PMA-ILWU Coastwide con-
tract. PCMC also did work for Maersk at its Los Angeles ter-
minal in the 1990s. In 1999, Maersk was in the process of ac-
quiring Sealand’s operations at its three terminals at the ports of
Long Beach, Oakland, and Tacoma. The terms of the Sealand
acquisition apparently called for any acquirer to recognize the
IAM as representative of the three terminals IAM-represented
M&R mechanics. Maersk expected to contract out the terminal
M&R work at any acquired facilities as it did at its other West
Coast operations. PCMC was informed of the potential work
opportunity and, as McLeod testified, in order to “have an enti-
ty to respond to a proposal to do maintenance work,” PCMC
and Marine Terminals Corporation, a separate West Coast
M&R contractor, created a partnership: Respondent PMMC. In
due course PMMC bid and was awarded the Maersk contract

32 See also the earlier discussions at sec. II,B. Background my deci-
sion which will not be repeated in detail here.
for M&R work at the former Sealand terminals, hired the for-
mer Sealand mechanics, recognized the IAM as their repre-
sentative, and thereafter undertook the M&R work. Since
PMMC had no other unit work and the IAM had no hiring hall
or other employment referral systems in place in the relevant
areas, there was essentially no interchange of unit employees
between and among the Maersk terminals.
As discussed supra, the PMMC-IAM M&R mechanic bar-
gaining unit had existed since 1999 under PMMC and for many
years previous to that under Sealand. The PMMC unit initially
included all PMMC M&R mechanic employees working on the
three formerly Sealand, but subsequently Maersk, terminals
located in Long Beach, Oakland, and Tacoma. In 2002, with
the consolidation of Maersk facilities in Southern California
into a new facility and the consequent loss of the IAM-
represented employees work at the closed Long Beach Maersk
facility, the PMMC IAM bargaining unit was reduced to the
remaining two locations at the ports of Oakland and Tacoma.
More generally, the IAM and the ILWU have both long rep-
resented significant numbers of M&R mechanics employed on
the West Coast docks at various ports and terminals. Individual
West Coast ports have had historically different proportions of
IAM or ILWU representation of those employees. As noted
supra, neither union historically or currently does so on the
West Coast exclusively.
(2) Comparison of operations
PMMC unit employees were terminated with the end of
PMMC’s contract with Maersk at Tacoma and Oakland on
March 30, 2005. PCMC hired 32 of the PMMC Oakland unit
mechanics, and employed them at the Maersk Oakland termi-
nal. It also on an interim basis employed 11 other mechanics at
the Maersk and Hajin terminals who worked on the Maersk and
Hajin cranes at the Oakland Port. These individuals comprised
the total nonsupervisory work force used by PCMC initially in
replacing PMMC in Oakland.
On or within a few days of March 31, 2005, PCMC hired 48
of PMMC unit mechanics in Tacoma. Upon their arrival at the
Maersk terminal, six former PMMC unit employees were per-
manently33 transferred to the Evergreen terminal in Tacoma
where PCMC had an M&R contract. At the same time 10
PCMC Evergreen based mechanics were permanently trans-
ferred to the Maersk terminal doing unit work. These individu-
als comprised the initial total nonsupervisory work force used
by PCMC initially in replacing PMMC in Tacoma.
The former PMMC unit members hired by PCMC represent-
ed a majority of M&R mechanic employees hired by PMMC to
do the newly begun contract work at the Maersk terminals in
Tacoma and Oakland. The former PMMC unit members hired
by PCMC did not represent a majority of PCMC’s M&R me-
chanic employees Coastwide at all ports. Indeed, they were but

33 As noted earlier, PCMC M&R mechanics are hired and employed
specifically as multisite employees who will be transferred from termi-
nal to terminal as needed. None the less, the record establishes that, if
even only on an informal basis, mechanics are based at one terminal on
an at least semipermanent basis, and often are transferred on a tempo-
rary basis from there. It is in this sense that the term permanent is used
here.
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

a minor portion of that larger whole whose number was roughly
half a thousand. Nor did they represent a majority of the em-
ployees in the many West Coast bargaining unit covered by the
PMA-ILWU contract whose complement ran into the thou-
sands.
The essential job content of the PMMC and PCMC Maersk
terminal work in Oakland and Tacoma was very similar. Gen-
erally, the same employees, now PCMC employees, were doing
the identical work done under PMMC at the same facility and
locations within the facility using the same tools and equipment
to do so. New coveralls were issued to unit members by
PCMC, the manner of documenting time worked changed from
timeclock recordation to the submission of time report to lead
employees. Hours of shifts were adjusted from those estab-
lished under the IAM protocols to the hours established under
the PMA-ILWU contract. Facility maintenance and inbound
roadability inspection—functions comprising a small percent-
age of the PMMC units work under the PMMC Maersk con-
tract—were no longer performed by PCMC unit employees
under the PCMC Maersk contract, but were handled by others.
(3) PCMC’s integration of operations, centralized control of
management and labor relations, geographic proximity, similar-
ity of terms and conditions of employment, similarity of skills
and functions, physical contact among employees, collective-
bargaining history, degree of separate daily supervision, and
degree of employee interchange
(a) An initial matter—When in time are the listed
characteristics to be measured and considered?
The parties disputed and the case law discusses at some
length the date at which the argued successors operational cir-
cumstances should be measured and considered. This is of
importance because the employers under scrutiny are starting a
new operation and the very initial arrangements of the opera-
tion change rapidly. The new employers may have very differ-
ent staffing, supervisory organization, and other circumstances
initially which evolve rapidly over time. So, too, certain aspects
of PCMC’s unit employees’ rights and privileges become
available under the ILWU contract and hiring hall rules only
after employees accrue significant qualifying hours of employ-
ment and hence could and did not ripen in the initial period of
PCMC’s new operations.
The Court in NLRB v. Burns Security Services, 406 U.S. 272,
294 (1972), noted that when it was “perfectly clear” that an
argued successor was going to take certain action at the onset of
its operations, there the hiring of a majority of the predecessors
represented employees, the successorship analysis could go
forward as if that action had occurred at the onset of operations.
The ILWU posthearing brief argues that a predetermined
well defined plan must be considered as executed in consider-
ing the argued successor’s operations. Counsel for the ILWU
cites in support, the decision of the Board in AG Communica-
tion Systems, 350 NLRB 168 fn. 8 (2007), where the Board
noted the implementation of a “well-defined plan” and distin-
guished a contrary case: Holly Farms Corp., 311 NLRB 273,
279 (1993), and also cites Northland Hub, Inc., 304 NLRB 665
(1991), as further support for the need to consider the changes
implemented as part of a well-defined plan. Respondent Em-
ployers agrees. The General Counsel and the Charging Party
challenge any application of a well-defined plan analysis to
Respondent PCMC’s implementations in assuming the Maersk
contract.
In my view the cases support the Respondents. I find on the
facts of this case that PCMC did in fact have a well-defined
plan: its standard historically-implemented practices in place at
its other terminal operations. Thus, on the facts of this case and
relying on the implementation of the noted plan, it was perfect-
ly clear in the period well before the actual commencement of
operations that PCMC was going to not only hire a majority of
its Tacoma and Oakland Maersk mechanic employees from
among PMMC’s laid-off employees, but that PCMC was also
going to shape its new operations consistent with its other
M&R terminal-based operations under the ILWU/PMA con-
tract on the West Coast, i.e., conform its new operations to its
business model as it had without exception in assuming other
M&R service contracts at other marine terminals. Even though
the initial startup of PMMC’s operations in its initial days had
not put that model completely into effect, I find that it had in-
tended to do so and that in short order it did so. Given this
conclusion, I further find it is appropriate to consider the evolv-
ing circumstances of the PCMC startup operation in the follow-
ing days and weeks to determine the nature of PCMC’s opera-
tions. In applying this determination, I will also consider the
evidence introduced concerning the terms and conditions of
employment of PCMC’s Maersk-based Tacoma and Oakland
M&R mechanics which ripened as they accumulated enough
hours to qualify for certain privileges under the PMA-ILWU
hiring hall regulations such as unit employees becoming eligi-
ble under hiring hall regulations to register for extra mechanic
work shifts with both PCMC and other PMA/ILWU contract
signatory employers.
(b) Common control of labor relations
PCMC, with its origins and the bulk of its current unit em-
ployee complement in Southern California, maintains its head-
quarters in Long Beach, California. CEO McLeod and COO
Gregorio testified that PCMC operations are integrated and
from its earliest days have run based on consolidated rather
than terminal-specific operational planning. Terminal manning
charts for all terminals and other staffing plans are prepared by
headquarters staff rather than by worksite staff.
The PCMC operations organizational chart for April 1, 2005,
indicates that area terminal M&R managers or general manag-
ers and port managers report to Long Beach located vice presi-
dents who in turn report to COO Gregorio Sr. The vice presi-
dent of labor relations, safety, and security also reports to Gre-
gorio.
Joe Gregorio Sr. testified, and was corroborated by numer-
ous collateral witnesses, that respecting labor relations under
the contract, he retains active control of all hiring and discipline
including in Oakland and Tacoma operations and makes most
other labor relations decisions in conjunction with the vice
president and the director of labor relations located in Long
Beach. He specifically testified he personally hired each of the
M&R mechanics for Tacoma and Oakland. He also makes de-
cisions on permanent employee transfers but not temporary
PCMC/PACIFIC CRANE MAINTENANCE CO. 1245
ones. He testified further that he preferred to limit onsite layoff
and discipline authority and actions by his onsite supervision to
avoid subjective decision making and personality conflicts
where possible. As a member of the PMA and signatory to the
West Coast longshore agreement, PCMC in larger contract and
union matters deals with the PMA as the employers’ repre-
sentative who in turn deal with the ILWU or the various con-
tractual committees that deal with ILWU and or other employ-
ers in matters of policy.
The general managers at both Oakland and Tacoma regularly
visit the area terminals. They decide whether or not additional
hall mechanics should be called from the ILWU hiring hall for
any of the terminals under their supervision.
As of March 31, 2005, the Oakland Maersk terminal PCMC
operations—comprising both Maersk and Horizon M&R non-
crane contract work—was supervised onsite by General Man-
ager Al Adams who reported to Gregorio. Adams also super-
vised the crane employees who were separately located at the
site. Reporting to Adams were the M&R manager and the
crane manager. Under them were the nonsupervisory depart-
mental leads to whom the mechanics directly reported.
As of March 31, 2005, the Tacoma Maersk terminal PCMC
operations were supervised onsite by Tacoma General Manager
Kagey who, at least by April 2005, reported to Tacoma-Seattle
Area Manager McGonegle. McGonegle was responsible for
three terminals: Hanjin in Seattle for cranes, Evergreen in Ta-
coma for M&R mechanics and cranes and Maersk in Tacoma
for M&R mechanics. His offices were located in the Puget
Sound. McGonegle reported to Long Beach Crane Manager
Evans on Crane matters and to Vice President Del Conte on
Maersk M&R matters. Under them were the nonsupervisory
departmental leads to whom the mechanics directly reported.
(c) Common day-to-day supervision
The Maersk terminal at the port of Oakland has a physically
separate crane department at the terminal. Since 2002, its crane
mechanics, who also work on Hanjin terminal cranes a mile
away, have been PCMC employees represented by the ILWU
under the West Coast agreement. PMMC did not ever have the
crane maintenance contract with Maersk at Oakland. That
work had been done by other unions until its assumption by
PCMC in 2002. The Maersk terminal at the port of Tacoma
does not have a crane department. The Evergreen terminal is
some 3-to-4 miles distant from the Maersk Tacoma terminal.
The PMMC Oakland and Tacoma Maersk terminal M&R
mechanics worked under direction of nonsupervisory lead em-
ployees in the various departments: i.e., power, reefer, gen set,
etc. The departmental leads reported to the M&R or site man-
agers who reported to the general managers. The general man-
agers at both Oakland and Tacoma regularly visit the area ter-
minals. They decide whether or not additional hall mechanics
should be called from the ILWU hiring hall for any of the ter-
minals under their supervision and whether or not temporary
transfers of mechanics to and from other local terminals should
occur.
The initial Oakland Maersk terminal general manager was Al
Adams who had held the position for PMMC. Under PCMC,
he supervised both the crane and noncrane mechanics at the
terminal. He issued discipline and on one occasion he reduced a
M&R manager-proposed termination to suspension, and ap-
pointed an initial lead carrying over a PMMC foreman. Adams
reported to the executive vice president who in turn reported to
Gregorio.
Initially, the Tacoma Maersk PCMC operations were man-
aged onsite by Tacoma General Manager Lyle Kagey who soon
commenced reporting to Puget Sound Area Manager Brian
McGonegle who in turn reported to headquarters staff. Under
Kagey was an M&R manager and under him were the depart-
ment leads to whom the mechanics reported.
M&R managers are generally the full-time onsite mechanic
supervision; they meet with leads on a daily basis and discuss
work needs and priorities which are then the basis for lead as-
signments matching employees’ skills to needed work. Gener-
ally, they do not participate in decisionmaking regarding formal
complaints or the issuance of written warnings but do report on
underlying circumstances and events that may be the basis for
discipline. They also meet with the client and thereafter with
the lead staff to discuss the days work requirements. In re-
sponse to instructions received at these meetings the leads as-
sign the days work to the mechanics. During the day, the M&R
managers, one of the leads or even a representative of the client
may request the assignment of a mechanic. The managers de-
cide how the request is to be addressed. M&R managers how-
ever, by explicit workplace rule, do not directly instruct the
mechanics. All assignments, instructions and directions issued
to mechanics are made by the leads.
The leads are not supervisors but monitor and report time
and attendance, provide mechanics all their assignments and
instructions, and the leads receive and pass on information from
supervision. They also report to supervision regarding safety,
employment, and labor relations matters onsite and can investi-
gate and gather information concerning problems or untoward
events which is then transmitted to general managers, who may
act on matters initially either resolving them or passing them on
to headquarters. As noted supra, COO Gregorio plays a very
large role in hiring, firing, and discipline of all PCMC employ-
ees and headquarters and the managerial staff there are in
charge of staffing other than temporary transfers and contract
and human relations issues.
(d) Interchange and transfer
(i) General description
Following the loss of the Southern California Maersk termi-
nal work, PMMC’s entire M&R mechanic unit complement
was located at the Maersk Oakland and Tacoma terminals that
are over 700 miles apart. PMMC unit employees did not trans-
fer to, or interchange between these two PMMC locations; nor
did PMMC unit employees in any significant way transfer or
interchange with any other employers’ employees.34 Finally,
the IAM had no hiring hall available to PMMC who, at least on

34 For a period of months prior to the March 30, 2005 layoffs, i.e.,
during the period when PMMC had the TRAPAC contract and PMMC
was still working at Maersk, PMMC from time to time lent an indeter-
minate few of its mechanics to TRAPAC for work at that terminal for
apparently brief periods.
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

this record, did not regularly use casual or short time M&R
mechanic hires.
PMMC’s unit employees did transfer and interchange be-
tween the various departmental unit tasks at the terminal where
they worked on an as-needed-basis. Thus, a particular mechan-
ic might be regularly assigned to the reefer department, but be
transferred to another department on a temporary basis if his or
her skills were needed there. Or permanent transfers between
departments might occur.
So, too, PMMC mechanic employees regularly worked on
both Maersk and Horizon equipment interchangeably at each
terminal. The work content between the carriers was the same.
The equipment was the same, the tasks undertaken were essen-
tially identical, the on terminal locations where the work took
place were the same. Similar practices were in place at PMMC
operation at the Southern California Maersk terminal. There
was no transfer from the terminal but mechanics moved be-
tween departments as needed.
As discussed supra, PCMC had a uniform practice of consid-
ering M&R mechanics as transferrable; moving them on an as-
needed-basis between terminals that were is reasonable proxim-
ity and in augmenting steady staff with hall mechanics.
PCMC’s managerial witnesses credibly testified that PCMC as
a fundamental business goal worked to establish practices and
procedures which would allow maximum staffing flexibility
between and among PCMC work sites in their terminals in the
Southern California, Northern California, and Puget Sound
ports. The professed benefits obtained from such a model, they
testified, was that being able to regularly transfer staff from one
area terminal to another on short notice and, for short periods as
necessary to meet business needs, allowed PCMC to maintain
smaller work complements, i.e., its “lean staff” model, with
concomitant cost savings to it and the client.
PCMC’s transfer practices at the Maersk Tacoma and Oak-
land terminals matched the practices applied to the former
PMMC terminal mechanics respecting internal transfers and its
general interchange between and among the mechanics doing
the various types of work that the unit undertoo,35 but also had
the additional components PCMC used generally. The situation
in the Southern California ports of Long Beach and Los Ange-
les, with their multiple terminals employing many PCMC me-
chanics and a hiring hall system that had available hall mechan-
ics was not duplicated in either the port of Oakland or the port
of Tacoma. In Tacoma, while PCMC had other PCMC me-
chanics at other terminals who could interchange with the
Maersk Tacoma terminal mechanics, there was apparently no
ready supply of hall dispatch mechanics. In Oakland, while
hall dispatches were obtainable, the only other PCMC steady
mechanics in the area were few in number and were crane me-
chanics.
More specifically, the PCMC Tacoma Maersk terminal unit
employees at relevant times were geographically proximate to
other PCMC M&R mechanics working at the Tacoma Ever-
green terminal. At the onset of PCMC’s Tacoma Maersk oper-

35 As discussed, supra, the PCMC mechanics operating under a dif-
ferent contract with Maersk did not assume certain tasks done by the
PMMC mechanics.
ations when it was hiring PMMC mechanics, a dozen or so
PMMC mechanics were hired and then immediately perma-
nently assigned to the Evergreen operations and a like number
of PCMC Evergreen mechanics were similarly transferred to
the Tacoma PCMC Maersk operation. Thereafter, PCMC
Maersk mechanics were temporarily transferred to similar work
at the Evergreen terminal and Evergreen terminal mechanics
were temporarily transferred to similar work at the Maersk
terminal. Very few hall dispatches were utilized.
In Oakland, at relevant times PCMC did not have other
M&R noncrane mechanic contracts. It did, however, perform
the crane mechanic work at the Maersk terminal and at two
other terminals: TRAPAC and Hanjin. When PCMC took over
the PMMC work at the Oakland Maersk terminal, PCMC’s
noncrane terminal mechanics were called upon to assist PCMC
crane mechanics working on these terminal cranes and vice
versa. The quantum, nature and significance of the assistance
involved is disputed and is discussed infra.
In addition to the transfer and exchange of the “steady” or
full-time mechanic employees employed by PCMC and trans-
ferred between and among PCMC’s employment sites, includ-
ing the Oakland and Tacoma Maersk terminals, PCMC has
historically and at relevant recent times utilized the contractual-
ly-established PMA/ILWU joint hiring halls which are located
in the relevant ports in several ways. Initially, it is important to
keep in mind the difference between the request for the dis-
patch of, dispatch, and hire of a permanent full-time mechanic
employee, also known as a “steady” employee, and the request
for the dispatch of, dispatch, and hire of a temporary mechanic
employee for a period of a few work shifts—a temporary or
“hall” mechanic. For purposes of this discussion, the focus is
on the employment of temporary or “hall” mechanics.36
PCMC’s witnesses credibly testified that, when PCMC de-
termines it needs additional mechanics at a particular facility
for a temporary period, it puts in a request for the requisite
number of temporary mechanics at the relevant hiring hall.
Dispatched hall mechanics work for a limited number of shifts
for PCMC and then their work for PCMC ends and they return
to the hall. In some cases, if qualified mechanics are not avail-
able for dispatch at the hall at the time of request, other hall
registrants with mechanics skills may seek dispatch and may be
accepted by PCMC for temporary employment. These dis-
patched registrants are often far less skilled than PCMC’s
steady mechanics and do not arrive at the job with the complete
and substantial sets of mechanics tools than many steady me-
chanics maintain onsite. Nonetheless, these individuals—or at
least those held sufficiently qualified after onsite interview—
can be and are assigned mechanic positions with the least tech-
nical skill requirements allowing the PCMC steady mechanics
normally assigned to that work to be assigned to other posi-
tions.
Thus, the staff of mechanics at any PCMC area on a West
Coast terminal may be augmented on a quick, short time basis
through use of the PMA/ILWU joint hiring hall dispatch pro-

36 Temporary employees dispatched from the hiring hall may come
to be offered and accept continued employment as full-time or steady
mechanics and did in a few cases involved herein.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1247
cess. Implicit in this process, of course, is the existence at rele-
vant times and places of a sufficiency of hiring hall registrants
with the necessary skills who are available to answer a dispatch
request from PCMC or other employers for the dispatch of
temporary mechanics. As noted earlier, historically the ILWU
in the Tacoma area had not represented M&R mechanics until
the events involved herein and at relevant times had not had a
ready supply of qualified hiring hall mechanic registrants to
supply requests for dispatch in that area or to make obtaining
mechanics on short notice a certain matter as would be the case
in other ports.
The hiring hall dispatch process impacted the PCMC M&R
mechanics in another way: it provided employment opportuni-
ties for those mechanic employees who wished to obtain it. The
PCMC steady mechanics at all terminals, including the Oakland
and Tacoma Maersk terminals under the ILWU/PMA contract
and, with the requisite qualifying time of employment sufficient
to obtain registrant status, may register at a hiring hall to obtain
dispatches to other mechanics work, with limitations, while
remaining steady PCMC mechanics.
(ii) Quantification of PCMC mechanic transfer and
interchange at relevant times
While Respondent Employer’s witnesses in a variety of cir-
cumstances uniformly characterized the various types of inter-
change and transfers described above as a frequent and com-
mon occurrence between and among PCMC worksites includ-
ing the Oakland and Tacoma Maersk terminals, the actual evi-
dence respecting the extent of those transfers that occurred
during the relevant period was hotly disputed both at trial and
in very detailed briefs.37
As noted, the transfer/interchange involved after initial staff-
ing of the two Maersk terminals by PCMC is between the Ta-
coma area facilities and hiring hall and, separately, between the
Oakland area facilities and hiring hall. Transfers did not occur
between Tacoma and Oakland. Not discussed here as trans-
fers/interchange are either the shift of work for a mechanic
between one carrier’s equipment to another’s at a given termi-

37 Respondent Employers entered into evidence substantial summar-
ies of work record evidence respecting employee transfers and further
summarizations of those initial entered summaries. The Charging Party
on brief strenuously contested the accuracy and efficacy of Respondent
Employers’ secondary summaries of Respondent Employers’ primary
summary evidence and provided its own voluminous counter secondary
summaries in opposition as an appendix to its brief. Counsel for
PCMC in his reply brief at p. 13, fn. 1, took umbrage to the Charging
Party’s brief’s appendix and argued the Charging Party’s objections to
Respondent Employers’ summaries “should be rejected as untimely
efforts to raise objection or introduce new exhibits after the record was
closed.”
I construe PCMC’s quoted objection as a motion to strike and I deny
the motion. The evidence under contest here is the original summaries
of individual employee events. Respondent Employers’ further sum-
marization of the facts set forth in the original summaries as well as the
Charging Party’s reworking of the same original summaries from its
point of view are each simply argument and are not independent evi-
dence. Since the Charging Party has not submitted new evidence nor
attempted to do so, and since advocacy is the purpose of briefs, I shall
not strike or reject the arguments of the Charging Party’s appendix to
its brief as described.
nal: a mechanic working on a Maersk item and then a Horizon
item is not relevant here. Further, when measuring transfers
from one PCMC Tacoma Maersk terminal mechanic position
to a Tacoma non-Maersk position or vice versa for a few days
with the transferee then returning to the original jobsite, such a
short “go and return” cycle is regarded as one temporary trans-
fer not two. Additionally, Maersk noncrane mechanic transfer
for crane mechanic assistance at any terminal and crane me-
chanic transfers to, from or between terminals has been sepa-
rately noted.
(aa) Oakland
The initial PCMC Oakland Maersk terminal noncrane me-
chanic employee group staffed by mechanics hired from
PMMC on or immediately after March 31, 2005, comprised 33
employees. The entire PCMC Oakland work of all kinds dur-
ing relevant times was the Maersk terminal noncrane work, the
Maersk terminal crane mechanical work, the Trapac terminal
crane mechanical work and the Hanjin terminal crane mechani-
cal work. The PCMC crane mechanics employees involved in
the crane work noted comprised a dozen employees.
During the part of 2005 that PMMC worked under the
Maersk contract for noncrane work in Tacoma and Oakland—a
9-month period from March 31 to December 31, 2005, the 33
Maersk Oakland terminal noncrane M&R mechanic employees
worked primarily at their traditional noncrane work at the
Maersk terminal work. Eighteen of the 33—over half—worked
on cranes at the Maersk, Trapac, or Hanjin terminals or some
combination of them. Some of these employees worked a sig-
nificant number of hours on cranes, others few or very few.
Trapac and Hanjin work hours in evidence were clearly crane
work since only crane work was done by PCMC at those loca-
tions. Only evidence showing total hours worked per employee
during the period is in evidence—not the number of times a
given employee might be assigned to undertake crane work.
The data in evidence does not distinguish between hours
worked at crane or noncrane work at the Maersk terminal so it
is not possible to isolate the two. In 2005, the 33 undertook
2662 hours of paid hours of employment at the Hanjin terminal
or, assuming 8-hour days, 334 days of employment. In the
same period, the 33 undertook 273 hours of paid hours of em-
ployment at the Trapac terminal or, assuming 8-hour days, 34
days of employment. Testimony suggested Maersk terminal
crane work undertaken by the original PMMC mechanics had at
least an equivalent portion of crane work.
In the same 9-month period Oakland PCMC employed some
90-odd employees for various period and amounts of time in
addition to the original 33 mechanics. Presumably, this number
includes the 12 PMMC crane mechanic employees working on
the cranes before the noncrane operation started. Of these hires
about half worked some or all their time at the Maersk terminal.
Sixty nine of the 90 had obtained a dispatch or dispatches from
the ILWU hiring hall. Thirty three of that number were dis-
patched at least once to the Maersk terminal and 6 of that num-
ber in time became PCMC steady employees at that terminal.
The records indicate hiring hall mechanics dispatched to
Maersk Oakland totaled 33 and they worked a total of 3792
hours or 474 8-hour shifts. Included in that figure are some
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2868 hours or 359 shifts undertaken by dispatchees who be-
came steady employees. In 2006, figures varied but were not
orders of magnitude different from that set forth above.
(bb) Tacoma
In Tacoma, PCMC took over the PMMC Maersk operation
initially hiring 47 PMMC mechanics. As noted supra, PCMC
sent a half-dozen PMMC employees to the Evergreen terminal.
Of the 47 starting complement of former PMMC mechanics as
of March 31, 2005, Respondent Employers’ records establish
that through the remaining nine months of 2005, the 47 worked
at Maersk and Evergreen terminals in varying amounts. Four
never worked at Maersk. Nineteen never worked at Evergreen
and 5 worked only one shift at Evergreen. The remaining 29
worked both at Evergreen and Maersk with 10 having worked
at least 100 hours at each terminal.
Of the 54 non-PMMC mechanics employed by PCMC in the
Tacoma port in that 9-month period of 2005, some 44 percent
worked at least some time as Maersk. Hiring hall dispatching
of mechanics in Tacoma was infrequent. During the period a
single dispatchee was sent to Evergreen for one or two shifts
and a single individual was dispatched to Maersk.
In 2006, figures varied but were not orders of magnitude dif-
ferent from that set forth above. The total number of dispatched
mechanics rose to six, four of whom worked fewer than
10 hours each. The remaining two worked 18 and 90 hours,
respectively.
c. Analysis and conclusions respecting accretion
(1) Preliminary matters
The Parties’ legal arguments and citations of authority have
been presented initially, supra. As noted, the Parties do not
differ on the legal standards to apply to determine if PCMC
accreted the PMMC unit into a larger unit, so much as they
differ respecting the facts at issue and differ in how to apply
those facts and the balancing process of the analytical process.
Without detracting from the authority marshaled by the parties,
the Board’s accretion doctrine as it is undertaken in a sucessor-
ship case bears revisiting. The accretion doctrine seeks to “pre-
serve industrial stability by allowing adjustments in bargaining
units to conform to new industrial conditions without requiring
an adversary election every time new jobs are created or other
alterations in industrial routine are made.” Frontier Telephone,
Inc., 344 NLRB 274 (2005). Since accretion forecloses em-
ployees basic right to select a union representative by being
absorbed into an existing bargaining unit, historically, the
Board has followed a restrictive policy in applying the doctrine.
Towne Ford Sales, 270 NLRB 311 (1984), enfd. 759 F.2d 1477
(9th Cir. 1985). As a result, the Board finds accretion “only
where the employees sought to be added to an existing bargain-
ing unit have little or no separate identity and share an over-
whelming community of interest with the preexisting unit to
which they are accreted.” E. I. Du Pont, Inc., 341 NLRB 607,
608 (2004), quoting Ready Mix USA, Inc., 340 NLRB 946,
946–948 (2003) (citing Safeway Stores, 256 NLRB 918
(1981)).
In applying this standard, the Board examines several fac-
tors, including: interchange and contact among employees,
degree of functional integration, geographic proximity, simi-
larity of working conditions, similarity of employee skills and
functions; supervision and collective-bargaining history. Archer
Daniels Midland Co., 333 NLRB 673, 675 (2001). Though a
case will generally necessitate a “balancing of factors,”38 the
“two most important factors,”39 identified as “critical” to an
accretion finding, are employee interchange and common day-
to-day supervision.40
As applied to accretion, the heightened community-of-
interest standard is not the same as the general community-of-
interest test used to determine the initial appropriateness of a
bargaining unit. Whereas with initial bargaining, a unit need
only be appropriate, and not the most appropriate, the Board
will only uphold accretion if the community of interest between
the existing unit and the employees to be accreted is so closely
integrated that the latter employees have “no true identity dis-
tinct from” the existing unit. Frontier Telephone, 344 NLRB at
259 fn. 6.41
Because the Board views the analysis of accretion in the con-
text of a successorship differently than initial representation
unit questions or settings, it is of value to consider the Board’s
discussion of the issue in that context. In Banknote Corp. of
America, 315 NLRB 1041 (1994), enfd. 84 F.3d 637 (9th Cir.
1996), cert. denied 519 U.S. 1109 (1997), the Board considered
the possible accretion of craft units at a printing facility into a
larger single unit as part of a successorship allegation. The
Board majority found the evidence offered by the employer to
establish changes in job duties comprising the “sketchy testi-
mony of the six employees above, as well as several inconclu-
sive documents” was insufficient proof over a dissent arguing
the evidence offered was unrebutted and sufficient to establish
the original units were now inappropriate.
The Board majority noted in Banknote Corp. of America,
315 NLRB at 1043:

Critical to a finding of successorship is a determination that
the bargaining unit of the predecessor employer remains ap-
propriate for the successor employer. [Footnote omitted.] In
Burns, [406 U.S. 272 (1972)], the Supreme Court found that
the successor employer (Burns) was obligated to bargain with
the union that represented the employees of the predecessor
(Wackenhut). The Court observed however: “It would be a
wholly different case if the Board had determined that be-
cause Burns’ operational structures and practices differed
from those of Wackenhut, the Lockheed bargaining unit was
no longer an appropriate one.” Id. at 280. The Board’s
longstanding policy is that “a mere change in ownership
should not uproot bargaining units that have enjoyed a history

38 Great Atlantic & Pacific Tea Co., 140 NLRB 1011, 1021 (1963).
39 E. I. Du Pont, 341 NLRB at 608.
40 Frontier Telephone, 344 NLRB at 258–259; see also Archer Dan-
iels, 333 NLRB at 675; Towne Ford Sales, 270 NLRB at 311–312.
41 Generally, a historical unit will be found appropriate if the prede-
cessor employer recognized it, even if that unit would not be appropri-
ate under Board standards if it was being organized for the first time.
Indianapolis Mack Sales & Service, 288 NLRB 1123, 1126 (1988);
Trident Seafoods v. NLRB, 322 U.S. App. D.C. 1, 22 (D.C. Cir. 1996)
(enfg. in part Trident Seafoods, 318 NLRB 738 (1995).
PCMC/PACIFIC CRANE MAINTENANCE CO. 1249
of collective-bargaining unless the units no longer conform
reasonably well to other standards of appropriateness.” Indi-
anapolis Mack Sales & Service, 288 NLRB 1123 fn. 5 (1988).
As noted by the judge, the Board has consistently held that
long-established bargaining relationships will not be disturbed
where they are not repugnant to the Act’s policies. [Footnote
omitted.] The Board places a heavy evidentiary burden on a
party attempting to show that historical units are no longer
appropriate. See Columbia Broadcasting System, 214 NLRB
637, 642–643 (1974) (“compelling circumstances” must be
shown before the Board will disturb a historical unit).

In considering the circumstances relevant to the instant case
it is important to note several Charging Party’s and General
Counsel’s challenges to Respondent Employers’ evidence re-
specting the PCMC Tacoma and Oakland mechanics following
the March 31, 2005 commencement of operations.
First, the General Counsel and the Charging Party argue, the
Charging Party most vociferously, that the evidence offered by
Respondent Employers regarding PCMC’s “lean staffing”
business model, the evidence of its history, and the evidence of
its application to the locations at issue, comprise an incredible,
self serving, after-the-fact concoction designed for the instant
litigation which evidence in its totality and individual parts is
unbelievable and insufficient to meet the heavy evidentiary
burden the Board applies to the evidence of the party seeking
to show an accretion.
The evidentiary standard noted is a high one and I have ap-
plied it herein to the contentions involved in the analysis below.
The Charging Party’s skepticism and incredulity regarding the
proffered evidence however, in my review of the record and my
scrutiny of the multiple Respondents’ witnesses who described
the model in whole or in part, is insufficient to successfully
challenge the claims of the Respondents. The Charging Party is
indignant but offers little evidence to support indignation. I
found the descriptions offered to be plausible and the witnesses
credible. The main witness, Respondent PCMC’s CEO,
McLeod, was particularly credible in these regards and I specif-
ically credit him. The evidence offered by numerous Respond-
ents’ witnesses and the Respondents’ documents are mutually
corroborative of PCMC’s lean staffing and flexible substitution
process which the evidence demonstrates has been implement-
ed historically and applied to the sites at issue at relevant times.
I credit the evidence without addressing here the sufficiency of
that evidence to establish an accretion. Thus, without here
finding this evidence sustains the Respondents’ accretion case,
I find the evidence is not to be rejected as manufactured or
concocted. Nor as the Charging Party advances on brief, do I
find it simply “business as usual” undertaken by any profit-
seeking business.
Second, the General Counsel and the Charging Party contend
that Respondent Employers’ obligation to bargain with the
IAM either: (a) remained viable at all times without discontinu-
ity during the changeover from PMMC to PCMC or, (b) at-
tached at the time of the arithmetic majority hire by PCMC of
the PMMC employees. Thus, they argue, under the former
continuous bargaining obligation theory, that any and all
changes to the PMMC terms and conditions of employment
undertaken by PCMC without bargaining with the IAM were
wrongful unilateral changes, i.e., were violative of the Act, and
can not be considered in any accretion analysis. As noted su-
pra, I did not find a continuous bargaining obligation on the
part of Respondent Employers and therefore this argument
fails. The latter argument is in essence that the changes to the
working circumstances at the Tacoma and Oakland Maersk
terminals that PCMC put in place, after the hire and com-
mencement of employment of the former PMMC mechanics
also may not be considered in the accretion analysis. This theo-
ry too was rejected, supra. I held and here reaffirm that Re-
spondent PCMC, from the time it became aware it had obtained
the Maersk contract to do the work at issue, intended to extend
the “lean staffing” model of operations it was then using at all
its worksites and therefore had an objectively measurable,
clearly determined plan or model it intended to put in place at
the time the PMMC mechanics were hired. In such a circum-
stance, the facts and circumstances leading to the implementa-
tion of Respondent PCMC’s implemented plan may be consid-
ered even though parts of its implementation occurred well
after the initial PMMC employee complement was hired and
had begun work.
Further, I note that in regards to Respondent Employers’
bargaining history, the parties seek to characterize undisputed
events and circumstances in different ways. Thus, the Re-
spondents note that while the General Counsel and the Charg-
ing Party characterize the PMMC unit at the time of the change
in operations as being an historic bargaining unit, it clearly was
not. Rather, argue the Respondents, the two-facility unit in-
volved in 2005 was but a rump portion of a three-facility
PMMC bargaining unit that in 2002 lost the bulk of its unit
employees with the discontinuance of employment of M&R
mechanics working at a Maersk terminal in Southern California
which was closed in a terminal consolidation. Respondents
note further that even during the time the Southern California
portion of the unit was employed, the PMMC unit did not do all
the Maersk M&R mechanic work on the West Coast. PCMC
had long done a portion of the Maersk M&R mechanic work in
Southern California with ILWU represented mechanics and that
work had grown substantially when the new consolidated
Maersk terminal work was given in its entirety to PCMC in
2002.
It is also necessary to resolve the disputes respecting the sim-
ilarity or comparability of the skills and duties of the terminal-
based marine crane mechanics and the M&R noncrane mechan-
ics for purpose of evaluating the Oakland interchange and tem-
porary assignments of former PMMC nonmechanics with the
PMMC crane mechanics who worked on the cranes at the three
terminals noted above.
As described above from the onset in Oakland, PCMC in-
tended to utilize, and when underway utilized, the noncrane
former PMMC mechanics, to the extent noted in the discussion
above, to assist crane mechanics in various crane M&R opera-
tions and vice versa. The crane operations with which the non-
crane mechanics were involved were identified by several wit-
nesses as crane procedures requiring several individual me-
chanics working as a team to complete some task which in-
volved crane mechanics undertaking the skilled technical aspect
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

of the procedure and the former PMMC noncrane mechanics
providing less or even essentially unskilled participation and
support. Other assignments of former PMMC noncrane me-
chanics on cranes involved general assignments utilizing me-
chanic skills but not technical specialized crane specific skills.
At least one mechanic testified to the unique requirements of
working at substantial elevations on the marine cranes as pre-
senting an additional requirement for mechanics—he was not
comfortable at such heights. Noncrane mechanics, however, or
at least some of them, worked on container carrier equipment
which moved containers at the terminal and were large enough
to straddle long rows of containers stacked six high, i.e., also
disconcertingly high in the air.
Having considered the issue, I find based on the record as a
whole that the M&R marine crane mechanic position is a tech-
nical mechanic specialization with a separate history of both
representation and mechanic careers, but may fairly be consid-
ered a mechanics position not beyond all comparison with the
noncrane mechanic positions involved herein. I find that the
crane and noncrane mechanics, or at least some of the special-
ized noncrane mechanics, who themselves have the earlier dis-
cussed specializations and variations of skill and experience,
could and did interchange at least on the same basis as earlier
described regarding hall mechanics. Thus, the noncrane me-
chanics could assist or step in at the lesser skill and experience
required portions of the work, allowing—like the hall mechan-
ics that may have not had a full panoply of mechanic skills—to
free up the more experienced and skilled crane mechanics to
undertake the skilled portions of tasks or assignments. So, too,
I find that the crane mechanics could interchange on a like basis
to assist noncrane mechanics.
The work areas of the crane department at the Maersk termi-
nal had historically been physically separate from the noncrane
mechanic areas even as to locker, lunch and cleanup areas.
And the cranes the large land-based stationary marine crane
mechanics work on, are physically apart from the bulk of the
equipment the noncrane mechanics work on. So too separate
supervision is both historic and on going. When noncrane me-
chanics worked on cranes at the Maersk, Trapac, or Hinjin
terminals, they were under the general direction of the crane
mechanics, leads and supervision of the crane department.
A final preliminary matter is the question of the unit or units
involved in the successorship dispute. Both PMMC and PCMC
treat the Tacoma and Oakland groups as part of a single unit
even though they have no direct interchange between them.
The arithmetic arguments respecting successorship majority
based on the predecessor unit’s numbers is consistent whether
or not the two terminals comprise one unit or each is advanced
as a freestanding unit. And, as described above and as will be
discussed in greater detail below, the two Maersk terminal me-
chanics groups have quite different patterns of transfer and
interchange between staff from other PCMC facilities and the
intermingling of short-term hiring hall dispatched employees.
Should the successor analysis deal with each location inde-
pendently alternately as well as a single, two facility unit?
Having considered the matter, I conclude the successorship
issues raised by the complaints and litigated by the parties must
involve only the single, two-location unit. The two Maersk
terminals mechanics in Tacoma and Oakland must stand or fall
as successor or accretion together. I reach this conclusion be-
cause the complaints in this case—which control the Govern-
ment’s theory of the violations independent of the wishes and
hopes of the Charging Party—plead only the single, two-
location unit concerning which Respondent Employers are
obligated to bargain. Therefore, there are no half measures at
issue. Were it possible for one of the two locations to be con-
sidered successor to the single predecessor same location unit,
while the other location unit was not such a successor, then the
successorship theory undergirding this aspect of the 8(a)(5)
violation theory of the General Counsel must fail. Respondent
Employers must end up obligated to bargain respecting both
Tacoma and Oakland, or they cannot be obligated to bargain for
either.
(2) The viability of the PMMC mechanics unit during
PCMC’s operations
The cases cited make it clear that it is the survival of the pre-
decessor unit within the argued successors’ operations which is
definitive in successorship accretion analysis. Based upon all
the above consideration of the M&R mechanics in the above
presentation of the history of the industry and the ILWU and
IAM within it, the histories PMMC and PCMC, the discussion
of nature of both PCMC and PMMC’s operations and the de-
tailed consideration of the control of labor relations and em-
ployee interchange, it is possible to paint a rather detailed pic-
ture of the Tacoma and Oakland PMMC operations and its
IAM M&R mechanics bargaining unit and of the extent to
which it continued under PCMC employment at relevant times.
Summarizing portions of the histories and discussion of the
industry, supra, it is clear that M&R mechanic work on the
West Coast docks, to an extent at least similar to longshore
dock work, has on and off again work demands. The terminal-
based M&R mechanics experience frequent, cyclic and episod-
ic changes in the volume of work required at a particular termi-
nal and that the variation in workload is in some cases predicta-
ble and anticipatable and in other cases seemingly random and
unpredictable. Many of these changed work requirements last
for very short periods others for longer periods. These changes
in the press of work require varying amounts of unit staff which
make the efficient use of a fixed employment complement more
challenging than a steady work load would.
Selecting portions of and summarizing in part the material
addressed above, the two remaining locations in March 2005 of
the earlier three locations of PMMC Maersk noncrane M&R
mechanics—Tacoma and Oakland—involved skilled hands
doing Maersk M&R mechanics work without the occurrence of
unit employee transfers or cross terminal interchange with other
employers employees. It also did not involve the use of a hir-
ing hall or halls to add staff, and, finally, it occurred without
unit interchange or transfer between the Tacoma and Oakland
Maersk terminals which together comprised a single, two facili-
ty unit covered by a single-IAM/PMMC contract.
At the time of the March 2005 Oakland and Tacoma takeo-
ver of the Maersk work by PCMC, the great bulk of PMMC
M&R mechanics were hired by PCMC and continued the same
work they had done for PMMC at the same places within the
PCMC/PACIFIC CRANE MAINTENANCE CO. 1251
same facilities using the same practices and procedures as here-
tofore. In these regards essentially nothing changed in the na-
ture of operation from the perspective of the working mechanic,
save the matters discussed, supra. The changes undertaken by
PCMC, however, in taking over the PMMC operations included
putting in place its existing, longstanding transfer practices and
hiring hall usage practices already long in operation at its nu-
merous other M&R facilities in Southern California.
That set of practices put in place by PCMC included the fol-
lowing. PCMC from the inception of the Tacoma and Oakland
operations—i.e., as part of the hiring process for the PMMC
mechanics—made it plain to those it offered employment that
PCMC mechanics were not hired for a specific job at a specific
terminal in a specific port but rather were hired to do work as
assigned at the various locations PCMC had work as those
mechanics were needed to fulfill the needs of the clients.
Further, as part of the changes implemented, the former
PMMC Oakland and Tacoma M&R mechanics from the onset
were regarded by PCMC as a part of its overall unit of mechan-
ics who were part of the PMA/ILWU coastwide unit represent-
ed by the ILWU and were covered by the coastwise
PMA/ILWU collective-bargaining agreement. Thus, from the
beginning they were screened for hire, trained under, compen-
sated in accordance with, and otherwise subject to the
PMA/ILWU coastwide agreement as well as all PMA employ-
ee physical standards, general training, and safety instruction
requirements and were entitled to participate—individual crite-
ria otherwise having been met—in the hiring hall process as
hiring hall registrants.
A significant portion of the PMMC mechanics hired by
PCMC stayed put at their same old Maersk terminal, as noted
briefly above, but not necessarily without travelling to help at
other locations and not without having others sent or dispatched
to help them. In addition to being called to other locations to
perform work as needed, the former PMMC mechanic employ-
ees also got assistance from other PCMC employees when they
needed additional hands to get necessary work completed. This
assistance took two forms. First, other PCMC steady mechan-
ics were transferred to the Maersk terminal mechanic
worksites—particularly in Tacoma—to assist. Second, dis-
patch mechanics from the hiring hall—particularly in Oak-
land—were used on very short-term basis to augment the me-
chanic work force. Again, the extent of these practices is de-
scribed above.
The Tacoma and Oakland locations were treated by PCMC
the same as other PCMC work locations at other terminals.
Labor relations at the highest levels were handled by the Long
Beach headquarters or by PMA acting as employers’ agents in
dealing with the ILWU and with contract issues. PCMC head-
quarters issued manning charts to worksites setting forth specif-
ic employee staffing requirements over the period. As noted,
supra, PCMC COO Gregorio took an active and controlling
role in hiring, firing, and discipline companywide. There were
layers of PCMC management at the port, terminal and, where
relevant, within terminals for crane and noncrane mechanics
work. M&R mechanics took direction and assignment from
workplace-based nonsupervisory leads who, though they had
little direct role in discipline or labor relations, assigned me-
chanics work and were the mechanics connection to supervi-
sion. Mechanics working away from their home terminal—
such as the Oakland and Tacoma Maersk terminal-based M&R
mechanics—worked under the direction of lead and supervision
at the place where the work was being done.
All iof the above presents an unusual set of factual circum-
stances resulting from specialized work in a very specialized
industry, perhaps, but do the Board’s cases in this area address
similar circumstances to those present here in a sucessorship
accretion analysis? The broad conceptual analysis undertaken
by the Board in the various noted cases in this area has been
skillfully cited and argued by the parties at length, the more
salient portions of those arguments have been presented above.
It is clear, however, the Board requires a fact-intensive balanc-
ing of the multiple factors presented and involves the weighing
of such factors as the extent or frequency of employee transfer
or interchange, the common control of labor relations and
common day-to-day supervision in addition to other factors as
noted above.
When looking to the Board’s decisions for guidance in mak-
ing sense of the various factual circumstances described, it
must be kept in mind that, as a result of earlier findings herein,
many Board cases cited by the parties addressing accretion
issues are not on point or may be distinguished or at least dis-
counted because they involve circumstances inconsistent with
my earlier findings or they involve representation cases rather
than successorship cases.
The parties have cited many cases dealing with interchange
in representation cases where the single-facility presumption is
under challenge. Like many of the cases cited by the parties as
discussed supra, the cases are not squarely on point but may be
noted. The Board in Kapok Tree Inn, 232 NLRB 702, 703
(1977), stated its approach in determining appropriate units
considering the single-facility presumption of appropriateness
in multifacility operations:

When dealing with a multifacility operation, the well-
established Board policy is to find a single-facility unit pre-
sumptively appropriate. This presumption can be overcome,
however, by a showing of functional integration so substantial
as to negate the separate identity of the single-facility unit. In
making determinations on this issue, the Board looks to such
factors as prior bargaining history, the geographical proximity
to other facilities of the same employer, the degree of day-to-
day managerial responsibility exercised by the branch facility
management, the frequency of employee interchange, and
whether the requested single-facility unit constitutes a homo-
geneous, identifiable, and distinct employee grouping. [Haag
Drug Co., 169 NLRB 877 (1968).]

The interchange language quoted is therefore of some value,
but again it must be noted that the instant accretion analysis is
more restrictive and the evidentiary burden, as noted supra, is
great. Nonetheless, the discussion of the sufficiency of trans-
fers in the cited cases, as the Board has stated, is relevant to the
separate identity of the smaller unit compared to the larger.
In Purolator Courier Corp., 265 NLRB 659, 661 (1982), the
interchange was judged sufficient to undermine the presump-
tion of a single facility’s appropriateness where 50 percent of
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the work force worked within the jurisdiction of other branches
on a daily basis and there existed a greater degree of supervi-
sion from supervisors at other terminals than from the supervi-
sors at their own terminals. Similarly in Dayton Transport
Corp., 270 NLRB 1114 (1984), the Board found the single-
facility presumption rebutted where in 1 year there were ap-
proximately 400–425 temporary employee interchanges be-
tween terminals among a work force of 87 and the temporary
employees were directly supervised by the terminal manager
from the point of dispatch. In Cargill, Inc., 336 NLRB 1114
(2001), the Board majority did not view 13–14 instances of
interchange among 23 employees over an 8-month period as
demonstrating substantial interchange sufficient to overcome
the single-facility presumption.
The parties cite numerous other cases which involve repre-
sentation cases, unrepresented facilities and disputed or unclear
evidence of transfers or interchange. Given the unusual factual
circumstances of the instant case; hiring hall augmentation of
unit composition, crane and noncrane mechanic interchange
and both short-term and longer-term transfers—all in different
combinations at the two sites, it should not be surprising exist-
ing Board cases are not squarely in point.
Having considered the quantative analysis in the cases, I
must confess I am in agreement with the counsel for the Charg-
ing Party who notes in their reply brief at 8: “It is difficult to
discern from this welter of cases a single numerical standard.”
This being so, it is necessary to conclude the analysis of the
continued viability of the PMMC mechanic unit under the
guidance of the normative cases cited, supra, being aware that
there is a great evidentiary burden on the Respondents to estab-
lish the PMMC unit is no longer viable. And as noted earlier,
the favored perspective for consideration of all the above is the
perspective of the employees involved at the workplace and not
other more abstract, attenuated perspectives.
As noted supra, the work done by the employees in contest
was identical under PMMC and PCMC, although under PCMC
the PMMC mechanics did not perform crane M&R but under
PCMC a significant portion of the PMMC former complement
assisted PCMC crane mechanics at both Maersk’s other termi-
nals. Importantly, however, the PCMC and PMMC unit posi-
tions differed significantly in transfers to other locations and in
working with employees who had been transferred to the
Maersk terminal to help handle a heightened workload. Thus,
PMMC mechanics worked at a single worksite and were per-
manently there. There was no history of nor expectation of
leaving the worksite as a PMMC employee: in essence there
was no where else to go. And noone came to help them—it
was just the full timer staff handling the work load as best they
could. Under PCMC work was significantly different.
PCMC hired the PMMC mechanics, as it did all its mechan-
ics, explicitly and in writing in the hiring process, as travelers
who would work where assigned at local terminals without a
home location save as was convenient for the employer. A
PMMC mechanic was in essence by title and certain expecta-
tion an Oakland Maersk terminal noncrane mechanic. The
PMMC mechanic now hired by PCMC was not by title or ex-
pectation any longer exclusively a noncrane mechanic nor per-
manently located at a Maersk terminal. The mechanic might
start or even continue uninterrupted on a long-term cycle as a
mechanic who had not worked anywhere but at the Maersk
terminal. But the mechanic could neither count on that fact nor
realistically consider the place of work permanent. Thus, sev-
eral PMMC mechanics in Tacoma were immediately placed at
the Evergreen terminal upon hire by PCMC. Others were trans-
ferred from time-to-time to assist at the Evergreen terminal.
PMMC mechanics hired by PCMC in Oakland immediately
undertook crane work at the three terminals described, supra,
albeit doing crane work of the helper rather than master jour-
neyman variety.
So too PMMC mechanics worked at their trade without the
intrusion or assistance of other than permanent fellow employ-
ees. PCMC mechanics, including the PMMC hires, worked at
the Maersk Oakland and Tacoma terminals with help from
temporary mechanics of two types: other PCMC steady me-
chanics from other locations and ILWU hiring hall or dispatch
mechanics. In Tacoma, other PCMC mechanics from Ever-
green terminal were sent over when needed. In Oakland, the
crane mechanics from three terminals as described supra gave
assistance as necessary and a significant number of hall me-
chanics were dispatched when needed.
Additionally, I note the fact that the PCMC mechanic had
independent rights to the use of the dispatch hall for obtaining
not just additional shifts with PCMC but mechanic work for
any employer requesting such employees through the hiring
hall. Once qualifying hours of employment allowed its use
under the hiring hall rules, these rights were both potentially of
significant worth to PCMC mechanics desirous of additional
employment but also emphasized the multiemployer, multifa-
cility aspects of his or her employment. PMMC mechanics had
no such expectation or experience.
These factors of work location and identity of fellow work-
mates are of no small significance to the mechanic employee in
perceiving his or her employment. Thus, as a PCMC mechanic
one could expect and self-identify as a traveler in a roving mul-
tifacility capacity rather than as a static one facility employee
as under PMMC. I find these aspects of PMMC and PCMC
employment important and find they comprise an additional
multifacility consciousness as applied to the PMMC Tacoma
and Oakland Maersk mechanics which support a finding of
accretion which must be added to the evaluation of the extent of
transfer and interchange as is described supra.
Lastly, in this litany of factors to consider, I find that the
“lean staffing model” of PCMC is more than, as the Charging
Party argues on brief, “just business as usual.” Rather, I find it
an important structural adjustment to deal with the highly unu-
sual and rapidly changing staffing requirements at individual
marine shipping terminals. The Board does not list successor
employer business structural changes as a separate factor to
consider in determining accretion in sucessorship cases. How-
ever, the Court in NLRB v. Burns Security Services, 406 U.S.
272 (1972), recognized the relevance of operational changes
between the argued predecessor and successor at 280–281:

It would be a wholly different case if the Board had deter-
mined that because Burns’ operational structure and practices
PCMC/PACIFIC CRANE MAINTENANCE CO. 1253
differed from those of Wackenhut, the Lockheed bargaining
unit was no longer an appropriate one. [Footnote omitted.]

In Banknote Corp. of America, 84 F.3d 637, 648 (2d Cir. 1996),
enfg. 315 NLRB 1041 (1994), cert. denied 519 U.S. 1109
(1997), the circuit court noted:

[I]f a [successor employer] were to introduce significant evi-
dence that [the predecessor’s] units had been rendered obso-
lete by industry shifts or developments at [the predecessor],
and the Board had applied the presumption in favor of long-
established units in disregard of this evidence, we would not
hesitate to find the application of the presumption irrational.

Thus, I find that the staffing model of PCMC involving a
smaller full-time staff of mechanics augmented periodically as
necessary by PCMC mechanic transfers between terminals and
the use of the short term dispatch request process to provide
additional hall mechanic labor in busy times must be viewed as
more significant than simply tallying the number of individuals
involved, the sum of hours worked or the rate or pattern of the
labor force augmentation and rate of the transfers and dispatch-
es themselves.
The PMMC mechanic unit structure of a single group of full-
time “steady” mechanic employees undertaking their work with
the same size staff in busy moments and in slower times engen-
ders a specific identification and perspective: I help no one off
site and no one comes on site to help me. To the contrary, the
PCMC unit structure of a smaller group of full-time “steady”
mechanics handling the slow times and, when the quantum of
work increases, augmenting the staff by the addition of tempo-
rary mechanic extra terminal transfers or hiring hall dispatched
temporary or dispatch mechanics or reversing the process and
the former PMMC employees themselves going off to assist
other mechanics at other locations, engenders a completely
different perspective. I go to other terminals to help PCMC
mechanics and they or hiring hall hands come to my terminal to
help me. This difference in perspective and orientation is not
simply made manifest in a rate of transfer, but is a change in
how the work is viewed. The one work model is much more
dynamic than the other. In my view this is not simply a minor
variation in similar ways of doing business or simply doing
business a bit differently and this fact is particularly true in my
judgment from the unit employees’ perspective.
While the latter system of very short duration transfer and
hiring hall staffing in response to short-term press of work situ-
ations may seem exotic or unusual to most, to those who work
on the docks of the West Coast where ships are essentially
without exception unloaded by longshoremen who are dis-
patched to a shipper to handle a vessel for but a few days at a
time and then return to the hiring hall to await another em-
ployment cycle at a different terminal and on a different ship,
such a system is very familiar. It would be easily recognized
by the former PMMC mechanics for what it is, a rather funda-
mental change in the employer’s choice in business model that
has permanent and significant consequences to the unit em-
ployees whose loyalties and orientation would shift, in part,
from the PMMC model of the single employer who provides all
the work the employee does in a single place, to the larger mul-
ti-facilities perspective of the multiterminal employer and—to
the extent the employee registers for his or her own dispatch
employment, to the far wider perspective of the PMA/ILWU
Coastwide unit.42
Viewing the traditional indicia set forth by the Board in the
cases discussed above as controlling of the determination of
whether or not the original PMMC mechanics bargaining unit
continued to exist under the PCMC model of operations as it
was applied, viewing the extent and nature of the PCMC trans-
fer and hiring hall policies only to the extent they are reflected
in transfer and interchange rates, it is a closer question whether
or not the Board’s decisional law under such an arithmetic
analysis would hold Respondent Employers have met the heavy
evidentiary burden the cases require to establish an accretion
rather than a sucessorship. If the PMMC unit survives under
Board case law, as discussed supra, Respondent PCMC was a
successor to PMMC and it was obligated to recognize and bar-
gain with the IAM, an obligation it has at all relevant times
declined to undertake.
Given consideration of all the above factors however, on the
basis of the record as a whole, including the substantial signifi-
cance I place on the change in the former PMMC mechanic unit
members’ perspective when employed by PCMC under its lean
staffing model as described above, as compared to the simple
transfer numbers that occurred during the initial period follow-
ing PCMC’s commencement of Maersk Oakland and Tacoma
operation, and viewing that totality of circumstances from the
perspective of the PMMC unit employee now working for
PCMC, I have no doubt and here explicitly find that the former
PMMC mechanics unit did not survive under PCMC and that
under PCMC an accretion took place. Thus, I find that the all
employee PCMC unit which is a part of the far larger
PMA/ILWU Coastwide unit was the only existing PCMC
M&R mechanics unit on and after March 31, 2005. They were
all mobile employees oriented to the larger multifacility per-
spective. Given this new orientation the former PMMC unit
dissolved and did not survive.
This conclusion having been reached in conjunction with my
earlier findings, it further follows that PCMC at no time had a
bargaining obligation with the IAM respecting the PMMC unit
or any other unit of PCMC employees. Further, given the sub-
sumption of the PMMC employees into the far larger unit, it
was arithmetically impossible for the former PMMC mechanics
hired by PCMC to adversely effect the majority support for the
ILWU in the far larger unit. Accordingly, it was not improper
for PCMC in such circumstances to recognize the ILWU as the
employees’ representative as part of the larger unit and to apply
the terms of the PMA/ILWU Coastwide agreement to them,
including the union-security provisions of that contract. It,
thus, follows further that the allegations of the complaint re-
specting the PCMC’s bargaining obligations to the IAM and its
conduct in dealing with the ILWU are without merit and shall

42 Respondent Union adduced testimony from ILWU officials that
use of the hiring hall changed employee perspective from that of sole
focus on the single-employer worksite and the single employer to the
larger perspective of multiple potential worksites and employers as well
as focusing on the joint PMA ILWU hiring hall itself as a source of
industry employment.
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

be dismissed. These findings have direct consequence to the
complaint allegations against the ILWU which are discussed
below.
4. Contractual union representative access and bulletin
board use unilateral change allegations
a. The Tacoma Hursey access denial allegation
As described supra, on February 15, 2005, the IAM’s direct-
ing business representative, Don Hursey, credibly testified he
was refused entrance to the PMMC work area at the Tacoma
Maersk terminal for what he testified was the first time in a
substantial period of regular visitations of unit staff. Having
telephoned PMMC for an explanation he was initially told he
was not allowed into the facility because he was a “disruption.”
Later that day Hursey was telephoned by PMMC Vice Presi-
dent Terry Murphy and told that his exclusion was “some type
of misunderstanding” but was asked to and he agreed to try to
contact Terry Murphy ahead of time before he came down to
the facility.
Murphy wrote Hursey a letter 2 days later with the following
language:

On Tuesday, 2/15/05, terminal security at APM Ter-
minals in Tacoma denied you access to the PMMC work
site portion of the terminal.
I called you at your office shortly after hearing of the
situation and asked that you simply call the PMMC man-
ager in advance of your visit, stating the time and purpose
of your visit, which you agreed you would do for future
visits to the worksite. I understand you will come at em-
ployee lunch time to help eliminate any disruption to oper-
ations.
With all that is currently happening, it is imperative
that disruption in meeting our customer’s needs be mini-
mized as much as possible.

Hursey responded in turn a few days later:

I received your letter today dated February 17, 2005,
wherein you have asked me to simply advise the manager
of my visit in advance and to list the nature of my visit.
When you contacted me shortly after the incident on
February 15th, it seemed reasonable to notify you in the
future of my intent to visit my membership. This is not
uncommon in many of my contracts.
After reviewing the current PMMC contract, I have no
requirements to notify you in advance or to advise you of
the intent of my visit. I still do not have a problem being
courteous in letting you know of my intent to visit your fa-
cility, but in no way am I giving up my rights per the labor
agreement nor am I limiting my access to anything other
than the established past practice that has been recognized
by both parties today.
Let this serve as notice that I do not intend to change
my rights of visitation.

On March 11, 2005, Hursey again attempted to gain entrance
to the Maersk facility to visit the PMMC unit members in the
late morning and was denied entrance by a guard who told him
he was not allowed in. Hursey called from the entrance and
spoke to PMMC supervisor, Lyle Kagey, to whom he com-
plained he had been denied entrance. Kagey told him in
Hursey’s recollection: “He said it was just orders. He told me
that—first he told me that I didn’t give them advance notice.
Then he said that was his orders.”
The General Counsel argues that the IAM-PMMC contract
in effect during these events provided the IAM’s agents such as
Hursey access to the unit’s workplace. That right was wrong-
fully limited, argues the General Counsel, first by the February
11, 2005 instruction of Kagey that advance notice of any visit
to the jobsite must be obtained and second by Murphy’s letter
of February 17, 2005, which seemingly limited Hursey’s visits
to the lunch hour. Further, the General Counsel argues that in
addition to the verbal limits, the fact that access was actually
denied as described above, clearly invalidates the contract ac-
cess provision which was in so doing wrongfully unilaterally
changed. Since jobsite visitation is a mandatory subject of
bargaining, argues the Government, the unilateral change was a
violation of Section 8(a)(5) of the Act.
Respondent PMMC argues that the entire series of events
was simply a mistake or, in the words of Respondent Employ-
er’s brief at 69, “kafuffle.” PMMC makes several more specif-
ic arguments. First that, at the very most, what is involved in
this aspect of the case is a contract dispute respecting the appli-
cation of the contract visitation language’s “no interruption of
the firm’s working schedule” clause. PMMC argues most
strongly, however, that no violation could possibly lie respect-
ing the events in question because—other than on the first oc-
casion on February 11, for which PMMC apologized to Hursey
as a “misunderstanding”—there is simply no doubt that Hursey
specifically agreed to a request that he call ahead before visit-
ing the site and that he did not do so on March 11. To the ex-
tent that the General Counsel claims that the requests of Hursey
to limit his visits were improper, PMMC argues first that re-
quests are not demands and, critically, agreement was reached
respecting the visiting procedures which were thereafter fol-
lowed. Accordingly, Respondent Employers argue, no unilat-
eral changes ever occurred.
Considering the positions and arguments of the parties, I
conclude as follows. First, I do not accept the General Coun-
sel’s argument that PMMC on February 11, 2005, unilaterally
established a requirement that the IAM call in advance of an
agent visit to the jobsite. The events of that day were apolo-
gized for by Murphy and do not on their own support a viola-
tion of Section 8(a)(5) of the Act. Respecting the later events, I
agree with the Respondents that Hursey’s apparent acquies-
cence to the request that he call the site prior to a visit consti-
tutes a waiver to the access violations alleged. While it may
well be that the IAM did not have to agree to advance notice of
Hursey’s visits, once having agreed to do so as described
above, Hursey’s exclusion on March 11, 2005, which he did not
pursue further, does not rise to the level of a unilateral change
in the contract and a violation of Section 8(a)(5) of the Act.
Accordingly, I shall dismiss this allegation of the complaint.43

43 This being so, I do not find it necessary to resolve the inconsistent
testimony of Hursey and Wolff respecting whether or not Hursey re-
turned to the workplace after March 11.
PCMC/PACIFIC CRANE MAINTENANCE CO. 1255
b. The Oakland bulletin board allegation
The bulletin board events are quite simple and undisputed.
On March 10, 2005, at the Oakland Maersk facility, PMMC
caused the removal of copies of the IAM’s demand to bargain
sent to PCMC and related unfair labor practice charges. Here-
tofore, the IAM had regularly used the space involved for the
posting of IAM material with the consistent acquiescence of
PMMC.
The General Counsel notes the earlier quoted contract lan-
guage giving the IAM a right to the posting space it had histori-
cally received. Counsel for the General Counsel argues Re-
spondent PMMC’s unilateral limitation of contractually estab-
lished rights constitutes a unilateral restriction and violation of
Section 8(a)(5) of the Act citing ATC/Vancom of California,
338 NLRB 1166, 1169 (2003), and Formosa Plastics Corp.,
Louisiana, 320 NLRB 631 (1996).
Respondent Employers argument adopts the de minimus ar-
gument earlier proffered respecting the access issue above.
They argue further that to show a contract provision has been
unlawfully modified, more needs be demonstrated than a sim-
ple difference of opinion over contract interpretation or applica-
tion citing Bath Iron Works, 345 NLRB 499 (2005), and NCR
Corp., 271 NLRB 212 (1984). And such a simple disagreement
of interpretation, the Respondents argue, is precisely what oc-
curred here.
Under normal settings and circumstances, the arguments of
Respondent Employers would be correct and the allegation
properly dismissed as a contract dispute better handled under
the contract. Several factors lead me to a different conclusion
here, however. First, the contract, indeed the bargaining rela-
tionship in PMMC’s view at that time had but a few weeks life
remaining. The normal cadences of contract dispute resolution
are defeated in such a situation. Second, the categorical rejec-
tion by Respondent PMMC of any IAM posting relevant to the
near future employment and representation of the PMMC bar-
gaining unit employees by PCMC, took place at a time when
PMMC had not disclosed its single-employer status with
PCMC and when representational rights and obligations were
not definitively established. Essentially, Respondent PMMC’s
course of conduct here rises to the level of a plan to further the
single-employer’s plan that the ILWU represent the unit on and
after March 31, 2005. Thus, PMMC took steps to limit as much
as possible actions by the IAM which might be disruptive of
ILWU representation. And PMMC’s conduct occurred while
ILWU activities were being allowed at the PMMC worksite.
When the consideration of the alleged wrongful conduct is
informed by the motive revealed and consideration of the entire
context of events, I do not view the denial of posting rights to
be a matter of contract interpretation, but rather a repudiation or
at least change in the terms of the agreement as alleged by the
General Counsel. Therefore, I find that, in so doing, Respond-
ent PMMC violated Section 8(a)(5) and (1) of the Act as al-
leged in the complaint. Accordingly, I sustain the allegation.
5. The allegations against Respondent ILWU
The complaints allege Respondent ILWU, in accepting im-
proper recognition from PCMC as the representative of the
mechanics unit employees at a time the IAM-represented the
former PMMC unit, and in enforcing the union-security clause
of the coastwide ILWU contract as to these employees, violated
Section 8(b)(1)(A) and (2) of the Act. The theory of a violation
is predicated on the Government’s contention, the basis for
other allegations in the consolidated case, that the IAM at mate-
rial times remained the representative of the former PMMC unit
employees.
I have found above that the IAM did not represent any of
PCMC’s mechanic employees in Tacoma and Oakland. Based
on the same facts and analysis supporting those findings, I also
made the further finding, supra, that the employees at issue
accreted into the PMA/ILWU Coastwide bargaining unit and
were at all times material covered by the PMA/ILWU Coast-
wide contract and its union-security provisions.
Given these findings and conclusions, I further find that the
recognition of the ILWU was proper and that accordingly the
ILWU did not violate the Act as alleged in the complaints in
either accepting recognition or in applying the contract to the
employees in question. Accordingly, those complaint allega-
tions shall be dismissed.
6. Additional allegations
The General Counsel’s complaint contains allegations re-
garding successors to PCMC in order to maintain legal continu-
ity to the current time of any bargaining obligation that might
be directed to PCMC to recognize and bargain with the IAM
concerning a unit of its Tacoma and Oakland Maersk based
mechanics. I have found no obligation by PMMC to recognize
or bargain with the IAM as the representative of these employ-
ees. It is therefore unnecessary to address the continuity allega-
tions regarding such a bargaining obligation.
7. Summary and conclusions
As set forth in detail above, I have considered the various
complaint allegations of the General Counsel’s consolidated
complaints. The complaint allegations may be roughly catego-
rized as follows.
The General Counsel contended that PMMC violated Section
8(a)(1) and (5) of the Act in various particulars respecting its
bargaining relationship with the Machinists concerning a unit
of M&R mechanics in Tacoma and Oakland and its withdrawal
of recognition of the Machinists as the representative of that
unit. I have found that Respondent Employers did not violate
the Act as alleged in these particulars and I have dismissed
these allegations of the complaint save for the two access alle-
gations which are discussed immediately below
The General Counsel contended in two separate complaint
allegations that in the final month of its employment of its
M&R mechanics in Tacoma and Oakland, PMMC improperly
restricted contractually-provided Machinist Union agent access
to the jobsites and limited the unit employees’ contractual
rights to use a bulletin board on site for union business. This
conduct was alleged by the Government to have been done
without bargaining with the Machinists or obtaining their con-
sent and therefore violates Section 8(a)(1) and (5) of the Act.
I dismissed one of these allegations concerning union agent
access and sustained the other concerning bulletin board access.
The one nonmeritorious allegation shall be dismissed. The
remaining allegation is sustained.
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The General Counsel contended that PCMC, Respondent
Employers and their successors violated Section 8(a)(1) and (5)
of the Act by failing and refusing to recognize the Machinists
as the representative of a unit of M&R mechanics in Tacoma
and Oakland and by making changes in that units terms and
conditions of employment without bargaining with the Machin-
ists or obtaining their permission to do so. Further the com-
plaint alleges Respondent Employers violated Section 8(a)(1),
(2), and (5) of the Act by recognizing the ILWU as the repre-
sentative of this group of employees through wrongful inclu-
sion in a larger ILWU-represented bargaining unit and applying
the existing contract covering that larger unit to these employ-
ees, including the union-security provisions of that contract.
I found above that Respondent PCMC, and through it Re-
spondent Employers and the successors to those parties, did not
at any time have a bargaining obligation with the Machinists
respecting the unit described. Rather, I found that the unit had
been accreted into the larger ILWU Coastwide unit and that
Respondent PCMC, and through it Respondent Employers and
the successors to those parties, properly recognized the ILWU
as the employees’ representative as part of the coastwide unit
covered by the PMA/ILWU Coastwide contract and properly
applied the unit-security provisions of that contract to the em-
ployees. I therefore dismissed these allegations of the com-
plaint.
The General Counsel alleged that the ILWU, in accepting
recognition from PCMC as the representative of the mechanics
unit employees at a time the IAM represented the former
PMMC unit and in enforcing the union-security clause of the
coastwide ILWU contract as to these employees violated Sec-
tion 8(b)(1)(A) and (2) of the Act. Consistent with my findings
respecting Respondent PCMC immediately above, I have found
PCMC properly recognized the ILWU as the employees’ repre-
sentative as part of the coastwide unit covered by the
PMA/ILWU Coastwide contract and properly applied the unit
security provisions of that contract to the employees. Symmet-
rically, I further found it was appropriate for the ILWU to ac-
cept PCMC’s recognition of it as representative of these em-
ployees as part of the larger unit and to apply the union-security
provisions of the contract covering that unit to these employees.
I therefore dismissed these allegations of the complaint.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following con-
clusions of law.
1. Respondent Employers, and each of them, have been at all
times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party and Respondent ILWU are, and each
of them is, and have been at all relevant times, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent PMMC violated Section 8(a)(1) and (5) of the
Act by removing copies of IAM material posted on a contractu-
ally-provided bulletin board at the worksite at the Maersk ter-
minal at the port of Oakland in Oakland, California, which
board had been provided to the IAM for the Union’s display of
information for represented employees without bargaining with
the Machinists concerning the removal or obtaining their per-
mission to do so.
4. The unfair labor practice described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
5. The Respondents did not otherwise violate the Act as al-
leged in the complaints and all complaint allegations not sus-
tained shall be dismissed.
REMEDY
Having found that the Respondent PMMC violated the Act
as set forth above, I shall order that it cease and desist there
from. Normally, a Board remedy for violations of the Act pro-
vides for the posting of a remedial notice at the workplace
where the violation occurred. In the instant case, Respondent
PMMC no longer represents employees at the Tacoma and
Oakland locations involved and the employees employed there
are represented by a separate labor organization. In such cir-
cumstances, it is appropriate to have Respondent PMMC mail
copies of the notice to the last known address of the unit em-
ployees employed at the time of the violation.
[Recommended Order omitted from publication.]