International Longshore and Warehouse Union, Locals 8 & 40 v. Port of Portland

The Employment Relations Board does not have jurisdiction to hear complaints under the Public Employee Collective Bargaining Act unless they are based off a public employer's illegal acts.

International Longshore and Warehouse Union (Union) appealed the Employment Relations Board’s (ERB) order dismissing a complaint alleging unfair labor practices by the Port of Portland (the Port). The Port is a public entity that owns and operates Terminal 6 marine port. Until 1994, the Port employed Union members at Terminal 6. In 1994, the Port transferred management of Terminal 6 to a private contractor, who continued to employ Union members. In 2012, a separate contractor was hired and did not employ Union members. The Union filed a complaint with the ERB under the Public Employee Collective Bargaining Act (PECBA), alleging that the use of non-Union workers violated a previous collective bargaining agreement. The ERB dismissed the complaint without a hearing, reasoning that since the Union’s members were employees of a private contractor, it had no jurisdiction to hear the complaint because the PECBA requires an unfair labor practice complaint to arise from a public employer’s unlawful acts. On appeal, the Union argued that the ERB erred in dismissing the complaint because even though the workers did not work for the Port “in a direct sense,” they were nonetheless public employees because (1) the Port directed work through the private contractor, and (2) Union employees continued to perform the Port’s maintenance work. The Court held that the finding that the Union’s members were employed by the private contractor, not the Port was supported by substantial evidence. Affirmed.