Setting precedents

"While getting little or no co-operation from the ILWU, ICTSI Oregon is actively working to bring business back to Terminal 6," Elvis Ganda, ICTSI
Single-minded: the ILWU is focused on appealing the labour board's rulings. Credit: ILWU
Volumes drop: container traffic at Terminal 6 is down by 86%. Credit: Port of Portland
Volumes drop: container traffic at Terminal 6 is down by 86%. Credit: Port of Portland
Damaging: ICTSI believes that the ILWU’s strategy is "to the detriment of the entire region". Credit: ICTSI
Damaging: ICTSI believes that the ILWU’s strategy is "to the detriment of the entire region". Credit: ICTSI
"The ILWU does not want ports competing with each other over labor costs and work/safety rules," John Ahlquist, University of California, San Diego
"The ILWU does not want ports competing with each other over labor costs and work/safety rules," John Ahlquist, University of California, San Diego
"While getting little or no co-operation from the ILWU, ICTSI Oregon is actively working to bring business back to Terminal 6," Elvis Ganda, ICTSI
"While getting little or no co-operation from the ILWU, ICTSI Oregon is actively working to bring business back to Terminal 6," Elvis Ganda, ICTSI

ICTSI's Portland woes are a test for the US West and East Coasts, says Martin Rushmere

A three-year dispute at the Port of Portland, Oregon continues with a seeming stalemate that has led to the almost complete shutdown of the only container terminal. The International Longshore and Warehouse Union, which controls all unloading/offloading on the US West Coast is in the process of asking a federal court to overturn a National Labour Relations Board (NLRB) ruling that its strike action was illegal. On top of this, the union has been fined at least $30m, although that figure is also in dispute.

The industry debate is whether what happened at Portland is an isolated and exceptional incident. Consensus of opinion is that terminal operator ICTSI broke or was unaware of an unwritten rule among ports and terminal operators that the first point of contact for any dockworker negotiations on the US West Coast must be the ILWU.

"Definite information is somewhat hazy," says a consultant speaking in a private capacity, "but it appears that ICTSI dealt directly with the electricians' union, leaving out the ILWU. My personal opinion is that the terminal operator didn't realise what the repercussions would be and did not deliberately set out to antagonise the dockworkers' union. Now of course we get increasing hardline attitudes from both sides."

The port authority is staying out of the fight. Bill Wyatt, executive director, says the port is a landlord under a 25-year lease agreement and is not involved, but emphasises that the trade union "works successfully" at all the other terminals. Container traffic, which accounts for 15% of all marine cargo, is down by 86% following the departures of Hanjin and Hapag Lloyd because of the disruptions at the terminal.

Elvis Ganda, chief executive of ICTSI in North America, emphasises that the labour board made two rulings that declared the union guilty of violating labour laws. "Now, instead of working co-operatively with ICTSI Oregon and other key stakeholders to encourage the return of major shipping lines and return container volumes to historic levels, the ILWU is concentrating solely on appealing the two adverse NLRB decisions. 

"The ILWU’s strategy is to the detriment of the entire region. While getting little or no co-operation from the ILWU, ICTSI Oregon is actively working to bring business back to Terminal 6."

John Ahlquist, associate professor of School of Global Policy and Strategy at the University of California, San Diego, sees the outcome as being important for overall dock labour relations on the West Coast. "A new contract [between the ILWU and the Pacific Maritime Association, representing the employers] is not due to be negotiated until 2019. If ICTSI wins this then the negotiations could end up being a free-for-all as other port operators seek to re-jigger their positions. 

"This could likely result in very serious job action if the PMA can't rein in its members," says Prof Ahlquist. "For the moment the other PMA members do not appear to be supporting ICTSI and the ILWU is going out of its way to paint ICTSI as distinct from the other PMA members. I think they all see this path as one likely to be very damaging to all concerned."

Other industry observers say the International Longshoremen's Association, the US East Coast equivalent of the ILWU, is taking its cue from what happens in this dispute.

From the ILWU perspective, the labour board ruling was made through an unfair set of laws, the Taft-Hartley provisions, brought in as part of legislation in the 1940s.These prohibit "secondary picketing", whereby unions set up a strike at an operation that is connected to, but not actually part of, the original cause of grievance. They also strongly uphold an employee's right to cross a picket line and go to work --- although union membership rules expressly forbid this.

Richard Hankins, a partner specialising in labour law at the law firm of McGuire Woods calls the laws "a complex area" and says, "The unions certainly don't like them and I have not heard an employer criticise them."

Labour attorney and former trade union leader Joe Burns sees the authorities as using Taft-Hartley to undermine union activity and solidarity. "This is being misused in the ICTSI case through the use of legal fictions. The general issue is that the NLRB is being used to undermine effective trade unionism."

He says that although the ICTSI dispute appears to be about "a couple of jobs" - the ILWU objected to an electrician's union doing some work - the real issue is a continuation of an increasing trend to fragment union solidarity. "The ILWU is one of the few areas of standardised union agreement left in the country. There is a pattern to force unions to bargain separately with each employer and even for individual plants [factories] to bargain with an employer."

Says Prof Ahlquist: "The ILWU does not want ports competing with each other over labor costs and work/safety rules. The ILWU's ability to do this, dating back to the 1930s, is what has enabled the union to successfully transform jobs that were previously dangerous, poorly paid, and volatile into ones that are stable, long-term, well-paying and safer.

"The ILWU appears to view the Portland situation as an effort by an employer - a PMA member no less - to try and undermine its coastwise contract which would represent both a chink in the armour and a demonstration to other PMA members that the ILWU can be defeated," he continues. "While the initial number of workers and shipping traffic implicated is relatively small, the union appears to be taking this very seriously. 

"I think the union is willing to make this an extended fight. Exactly what happens with the NLRB is only part of the story; the ILWU is betting that it can wait out the employers before it faces any serious consequences for any alleged job actions.

"Our legal framework for collective bargaining issues is based around a 1930s conception of the firm and work and it breaks the regulation of unions in the public and private sector apart. Quasi-public infrastructure like ports can make this problem even thornier. 

"I am betting that the ILWU will win this particular round but a lot hinges on the results of this year's elections. If we get a Republican president and the GOP (Republican Party) retains control of Congress then we may see legislation that is basically designed to hurt the ILWU; it has already been introduced in the House of Representatives but it is not going anywhere this session."    

The port authority knows a tough task lies ahead. Mr Wyatt says Asia, Europe and Latin America are being looked at for new services. "While regional cargo volumes continue to grow and will support container operations, restoring service is a complex challenge and will likely require the collaboration of the port, ICTSI, shippers and longshore labour to be successful. Recruitment of a replacement transpacific carrier the size of Hanjin may take several years."

Prof Ahlquist adds that the ILWU's big achievements have been "the coastwise, multi-employer labour contract and the union-controlled hiring hall, both dating to the 1930s. These victories were extracted after long, bitter, and violent strikes. These strikes, the union's success, and the close-knit nature of dock work make these workers extremely proud of their union and position. 

"For many dockworkers the union is a matter of identity as much as a job. But it is a small union and it is surrounded by hostile political, economic, and technological forces as well as a much diminished labour movement. As a result it takes threats, especially to its core institutions, very seriously."



FINDING A WAY OUR OF THE IMPASSE

Strikes and antagonism at US West Coast ports get most public and media attention because the issues are of national importance. Localised labour disputes occur every month but are of interest only in surrounding towns and regions.

"The basic set of labour laws is the same throughout the economy," says McGuire Woods' Richard Hankins, "but ports probably get more participation and attention from the Federal Mediation and Conciliation Service."

This little known government agency mediates in private sector and government disputes and has been called on a number of times to intervene in the six-yearly contract negotiations on the US West Coast. Although styled as an 'independent' government agency, it has to be notified of an impending strike – and if it gets nowhere, the labour relations board is eventually called in.

Oregon politicians are under pressure from business and civic leaders to find a way out of the impasse, as investors and customers question the reliability of the supply chain.

One proposal is for state authorities to set up the Oregon Container Shipping Authority, which would be a state agency. This would have the power to litigate against attempts to illegally stop the flow of containers through the port and could put an end to extended, and usually damaging, strikes.

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