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ILWU-PMA HANDBOOK SPECIAL SECTION 13.2 GRIEVANCE PROCEDURES AND GUIDELINES FOR REMEDIES, CLRC POLICY ON ADA COMPLIANCE AND REASONABLE ACCOMMODATION AND CLRC AGREEMENT ON USERRA July 1, 2008 – July 1, 2014 Between INTERNATIONAL LONGSHORE AND WAREHOUSE UNION and PACIFIC MARITIME ASSOCIATION Published June 15, 2009 Name ______________________________________ Port _______________________________________ Local No. _______ Reg. No. ___________________

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ILWU-PMA HANDBOOK SPECIAL SECTION 13.2 GRIEVANCEPROCEDURES AND GUIDELINES FORREMEDIES, CLRC POLICY ON ADACOMPLIANCE AND REASONABLEACCOMMODATION AND CLRCAGREEMENT ON USERRA

July 1, 2008 – July 1, 2014

Between

INTERNATIONAL LONGSHORE AND WAREHOUSEUNION

and

PACIFIC MARITIME ASSOCIATION

Published June 15, 2009

Name ______________________________________

Port _______________________________________

Local No. _______ Reg. No. ___________________

LETTER OF UNDERSTANDING “A” ILWU-PMA EQUAL EMPLOYMENT

OPPORTUNITY POLICY & PROCEDURES 1. Policy Against Discrimination, Harassment & Retal-iationAll workers in the longshore industry shall be treated with

dignity, respect and courtesy. It has been for decades and con-

tinues to be the policy of the Pacific Maritime Association

(PMA), its member companies and the International Long-

shore and Warehouse Union and its Locals (ILWU) that dis-

crimination, harassment, and retaliation of any kind for filing

or supporting a complaint of discrimination or harassment,

committed by anyone, will not be tolerated in connection with

any action subject to the terms of the Pacific Coast Longshore

& Clerk’s Agreement (the PCLCA or Agreement) (including

at work sites, joint dispatch halls, training sites, and other lo-

cations, when reasonably related to employment covered by

this Agreement).

The policy against discrimination and harassment stated in

Section 13 of the Pacific Coast Longshore & Clerk’s Agreement

shall be administered as described in this document.

2. Responsibility for Following Section 13.2 All longshore workers, clerks, walking bosses/foremen, su-

perintendents or managers, outside truck drivers, vendors, con-

tractors and others are required to follow this Policy and shall not

engage in any Prohibited Conduct in connection with any action

subject to the terms of the PCLCA (including at work sites, joint

dispatch halls, training sites, and other locations, when reasonably

ADDENDA EQUAL EMPLOYMENT OPPORTUNITYPOLICIES & PROCEDURES

1

related to employment covered by this Agreement). It is impor-

tant not to assume that the Employers, PMA or the ILWU know

of particular incidents of discrimination or harassment. Dis-

crimination and harassment can be eliminated from the work-

place only if everyone working under the PCLCA who

experiences or sees such problems files a grievance using the

Special Section 13.2 Grievance Procedures for discrimination

and harassment. It is also important if you believe you are a vic-

tim of discrimination, harassment or retaliation that you imme-

diately inform the offending party that you find his or her conduct

offensive and ask that it be stopped.

3. Examples of Prohibited Conduct Under 13.2 Discrimination and harassment can take many forms. Cer-

tain actions or even words can constitute discrimination and

harassment. As a general matter, it is a violation of this Pol-

icy for anyone to treat another in a way that is threatening, in-

timidating, embarrassing or offensive, or that denies a person

equal treatment and opportunities because of his or her sex,

race or other unique characteristics. So-called “good inten-

tions” or “joking around” (as determined by the Arbitrator)

does not excuse Prohibited Conduct.

To assist you in recognizing and avoiding behavior which

may be considered harassing, discriminatory, or retaliatory,

the following examples of Prohibited Conduct are listed:

Physical Harassment: Unwelcome touching or grabbing

or sexual assault, blocking someone’s movement, standing

unnecessarily close.

Verbal Harassment : Racial or sexual jokes, name-call-

ing, using slurs, derogatory terms, belittling remarks, or abu-

EQUAL EMPLOYMENT OPPORTUNITY ADDENDAPOLICIES & PROCEDURES

2

sive language related to a person’s gender, race or other defin-

ing characteristics.

Visual Harassment: Displaying objects, messages, pic-

tures, pornography, graffiti, or drawings of a sexual or racial

nature; engaging in offensive and unwelcome personal con-

duct such as offensive gestures, staring (especially at particu-

lar body parts), mooning, leering; showing a lack of respect

for privacy in toilet facilities and locker rooms.

Unwelcome Romantic or Sexual Attention: Unwelcome

flirting, pressuring another for a date and unwelcome sexual ad-

vances; also demanding sexual favors or romantic attention as a

condition of any type of employment benefit.

Discriminatory Dispatch, Job Assignments and Disci-

pline :Assigning work based on sex or race, segregating

workers by sex or ethnic group on work assignments, disci-

plining or evaluating women more harshly than men (or vice

versa), setting someone up to fail, hard-timing (such as failing

to help co-workers of one sex or ethnic group to the same de-

gree as you help co-workers of another sex or ethnic group),

filing false reports because of the person’s sex or race.

4. Special Section 13.2 Grievance Procedures for Com-plaints of Discrimination, Harassment &•Retaliation All registered and casual longshore workers and clerks

have the right and responsibility to promptly report any Pro-

hibited Conduct of which they are aware to their Local

(through the ILWU business agent or a Union official) and

on-the-job supervision (such as the walking boss/foreman or

clerk supervisor or management). To correct any incidents of

discrimination, harassment (including hostile work environ-

ADDENDA EQUAL EMPLOYMENT OPPORTUNITYPOLICIES & PROCEDURES

3

ment) or retaliation which violate this Policy, the longshore

worker or clerk experiencing the problem must promptly file,

within fifteen (15) calendar days of the incident, a grievance

under the ILWU-PMA Special Section 13.2 Grievance Pro-

cedures For The Resolution of Complaints Re Discrimination

and Harassment Under the Pacific Coast Longshore and

Clerks Agreement (referred to as the “Special Grievance Pro-

cedures”), a copy of which is included (Letter of Under-

standing “B”). Grievances may be filed only by longshore

workers, clerks, union locals, PMA and its member compa-

nies.

In your grievance, please provide as much detail as you

can, including identifying the names of witnesses and of those

you believe to be responsible, describing what happened as

well as when and where the Prohibited Conduct occurred.

Grievances will be addressed and resolved as quickly, fairly

and confidentially as reasonably possible.

Upon being notified of any complaint of Prohibited Con-

duct, the union Business Agent shall, as needed, identify for

the grievant the grievance procedure available. Once a walk-

ing boss/foreman or clerk supervisor learns of a complaint of

Prohibited Conduct, he or she shall immediately report it to

management and take other appropriate action.

5. Grievance Procedures for Challenges to ContractualProvisions or Rules, Including Claims for Registrationor Selection for Casual Status, or Other Section 13.3Claims; and Procedures for Requests for ReasonableAccommodation of Disabilities

Grievances and complaints alleging that a contractual pro-

vision or rule is discriminatory as written or as applied, as

EQUAL EMPLOYMENT OPPORTUNITY ADDENDAPOLICIES & PROCEDURES

4

well as discrimination claims seeking elevation, registration or

selection for casual status, and discrimination claims based

on disability, protected family care or medical leave status,

veteran status, political affiliation, marital status, membership

or non-membership in the Union, or activity for or against the

Union or absence thereof, are not to be filed under the Special

Section 13.2 Grievance Procedures, but instead are to be filed

and processed with the Joint Port Labor Relations Committee

(JPLRC) under the grievance procedures in Section 17.4 of

the PCLCA.

Likewise, requests for “reasonable accommodation” for

disabilities recognized under state or federal law will not be

processed under the Special Section 13.2 Grievance Proce-

dures but instead must be brought to the local JPLRC pur-

suant to separate procedures established for such requests

(CLRC Policy on ADA Compliance and Reasonable Accom-

modation), a copy of which is included.

6. Special Section 13.2 Remedies & Penalties Longshore workers, clerks, walking bosses/foremen, su-

perintendents or managers, outside truck drivers, vendors,

contractors, or others who violate Section 13.2 of the Agree-

ment, as described in this Policy, by engaging in Prohibited

Conduct in connection with any action subject to the terms of

the PCLCA (including at work sites, joint dispatch halls, train-

ing sites, and other locations, when reasonably related to em-

ployment covered by this Agreement) will be subject to

discipline or penalties up to and including termination, dereg-

istration or permanent loss of dispatch privileges or loss of

access to employer sites. Likewise, PMA Employers, PMA

offices and ILWU Locals are subject to all appropriate reme-

ADDENDA EQUAL EMPLOYMENT OPPORTUNITYPOLICIES & PROCEDURES

5

dies for directly violating this Policy, including mandatory

training, distribution of notices to employees, and changes in

policies and practices found to violate this Policy. Violations

of this Policy are subject to the included Guidelines for Reme-

dies & Penalties in Cases of Discrimination, Harassment &

Retaliation Under the Special Section 13.2 Grievance Proce-

dures.

LETTER OF UNDERSTANDING “B” ILWA-PMA Special Grievance/

Arbitration Procedures for the Resolution of Complaints Re Discrimination andHarassment Under Section 13.2 of the

Pacific Coast Longshore & ClerksAgreement

I. Section 13.2 Complaints Covered by Special Proce-duresAll registered and casual longshore workers and marine

clerks, as well as PMA, all ILWU locals and employers cov-ered by the PCLCA, have the right to file a complaint concern-ing incidents of discrimination or harassment (includinghostile work environment) in connection with any action sub-ject to the terms of the PCLCA (including at work sites, jointdispatch halls, training sites, and other locations, when reason-ably related to employment covered by the PCLCA) based onrace, creed, color, sex (including gender, pregnancy, sexualorientation), age (forty or over), national origin, or religious orpolitical beliefs, or alleging retaliation of any kind for filing orsupporting a complaint of such discrimination or harassment.All grievances of this type are referred to in this document gen-

SPECIAL GRIEVANCE/ARBITRATION PROCEDURES ADDENDAFOR THE RESOLUTION OF COMPLAINTS REDISCRIMINATION AND HARASSMENT

6

erally as “Discrimination and Harassment” grievances. A de-tailed statement of policy, rules of conduct and penalty guide-lines for proven offenses are set forth in the ILWU-PMA EqualEmployment Opportunity Policy (Letter of Understanding“A”), copies of which may be obtained from any PMA orILWU local office and joint dispatch halls. Special complaintforms for claims of Discrimination and Harassment shall beavailable to all persons upon request at all PMA and ILWU lo-cal offices and joint dispatch halls. Discrimination and Ha-rassment grievances shall be processed pursuant to thefollowing special grievance/ arbitration procedures:

II. Brief Summary of These Special Section 13.2 Proce-dures The basic steps for processing a grievance of Discrimina-

tion and Harassment under the Special Procedures are as fol-lows. This summary only provides highlights of the SpecialProcedures. Please see Section III, below, for more details.

1) Grievances are to be filed within fifteen (15) calendardays of the incident by facsimile or mail with the identified Ar-bitrators on Special 13.2 Grievance forms, with a copy sent byfacsimile or mail to the JPLRC c/o the local PMA office, asstated on the Special Section 13.2 Grievance Form. (The AR-BITRATOR may, in his/her discretion, excuse late filings incertain circumstances, described below).

2) A hearing before the ARBITRATOR, recorded by acourt reporter, will be held within fourteen (14) calendar days(or, in certain circumstances described below, within thirty(30) calendar days) after the grievance is received by the AR-BITRATOR.

3) Any party may, no later than five (5) calendar days be-fore the hearing, ask the ARBITRATOR to direct witnesses toappear.

ADDENDA SPECIAL GRIEVANCE/ARBITRATION PROCEDURESFOR THE RESOLUTION OF COMPLAINTS RE

DISCRMINIATION AND HARASSMENT

7

4) The ARBITRATOR will issue a written decision with-in fourteen (14) calendar days after the close of the hearing.

5) Any party may, within fifteen (15) calendar days of be-ing mailed the Area Arbitrator’s decision, file an appeal by fac-simile or mail with the COAST APPEALS OFFICER, with acopy sent by facsimile or mail to the JPLRC c/o the local PMAoffice. Appeals shall be based solely on the written record ofthe hearing.

6) Any party may, within ten (10) calendar days of theCOAST APPEALS OFFICER’s receiving the appeal, file a re-sponse or opposition.

7) A ruling on the appeal shall be sent out within fourteen(14) days of the COAST APPEALS OFFICER’s receivingthe appeal.

III. Detailed Special Grievance ProceduresThe following are the detailed provisions of the special

grievance procedures for claims of Discrimination and Ha-rassment under Section 13.2 of the PCLCA:

1) A complaint alleging discrimination or harassment (in-cluding hostile work environment) in connection with any ac-tion subject to the terms of the PCLCA based on race, creed,color, sex (including gender, pregnancy, sexual orientation),age (forty or over), national origin, or religious or political be-liefs, or alleging retaliation of any kind for filing or supportinga complaint of such discrimination or harassment shall be filedby the grievant, or the Union on his/her behalf, or by PMA orits member companies, by sending the Special Section 13.2Grievance Form by facsimile or mail to the ARBITRATORidentified on the form, with a copy by facsimile or mail to thelocal JPLRC, c/o the local PMA office. The ARBITRATORand/or the local PMA office shall immediately send a copy ofthe complaint, showing date of receipt, to the local PMA office,

SPECIAL GRIEVANCE/ARBITRATION PROCEDURES ADDENDAFOR THE RESOLUTION OF COMPLAINTS REDISCRIMINATION AND HARASSMENT

8

the involved ILWU Local Union(s), the Joint Coast Labor Re-lations Committee (“JCLRC”), any person accused of anywrongdoing, and any involved Employer. Complaints must befiled within fifteen (15) calendar days of the alleged miscon-duct in order to be timely. The ARBITRATOR may in his orher discretion excuse any late filings only for reasons stated inSection 17.411 of the PCLCA up to six (6) months.

2) The JPLRC or the ARBITRATOR may issue temporarydirectives pending the grievance proceedings to protect thegrievant or the integrity of the investigation, including but notlimited to temporary job re-assignment, dispatch, transfer, orseparation of the accused from the grievant.

3) Immediately upon receipt of a complaint, the ARBI-TRATOR shall issue a notice of hearing for a date not morethan fourteen (14) calendar days after the date the complaintwas received. The ARBITRATOR may schedule the hearingup to thirty (30) calendar days after receipt of the grievancewhen his or her availability or workload so requires. The AR-BITRATOR shall ensure that written notice of the hearing isprovided to the grievant, the accused, the involved Employer,PMA, and the appropriate ILWU Local(s).

4) The grievant and any longshore worker or clerk ac-cused of Discrimination or Harassment may each have oneregistered (Class A or Class B) worker to assist and representhim/her in these proceedings. The grievant and such accusedworker may also instead request in writing that their ILWU Lo-cal appoint a union representative, who is acceptable to them,to assist them, which appointment shall be made within two (2)calendar days of such request. In cases where the grievant andaccused worker are represented by the same ILWU Local, theLocal shall assign separate union representatives, who are ac-ceptable to them, to assist them. Union representation will be

ADDENDA SPECIAL GRIEVANCE/ARBITRATION PROCEDURESFOR THE RESOLUTION OF COMPLAINTS RE

DISCRMINIATION AND HARASSMENT

9

provided in all cases where requested regardless of whether theUnion agrees or disagrees with the merits of the complaint andsuch representation shall not be considered as any indication ofthe Local’s position concerning the complaint.

5) The arbitration hearing shall be transcribed by a courtreporter. All witnesses shall be duly sworn to testify truthful-ly. No attorneys shall be allowed to participate in any of theproceedings or be present in the hearing room. Only parties,(including two persons on behalf of, respectively, the involvedILWU Local(s), PMA, the involved Employer, those represen-tatives designated under paragraph four (4)), and witnesses di-rectly involved in the matter, may attend the hearing as theproceedings are to be treated as confidential to protect the pri-vacy rights of those involved. Non-party witnesses shall be ex-cluded from the hearing except when testifying, unlessotherwise permitted by the ARBITRATOR. The ARBITRA-TOR may exclude participants in order to take testimony on therecord of an unusually sensitive or embarrassing nature.

6) The ARBITRATOR shall, on his/her own initiative orupon request by the grievant or accused, direct in writing allmaterial witnesses to appear at the arbitration hearing .Any in-dividual, Employer, ILWU Local or PMA official who fails toappear at the hearing upon at least three (3) calendar days pri-or notice shall be subject to appropriate penalties as deter-mined by the JPLRC or the ARBITRATOR.

7) No post-hearing briefs shall be filed with the ARBI-TRATOR.

8) As a condition for providing reporting services, thecourt reporter shall, within five (5) calendar days of each hear-ing date, deliver the original plus three copies of the hearingtranscript, including all exhibits, as follows: The original to theARBITRATOR, and three copies to the JPLRC, c/o the local

SPECIAL GRIEVANCE/ARBITRATION PROCEDURES ADDENDAFOR THE RESOLUTION OF COMPLAINTS REDISCRIMINATION AND HARASSMENT

10

PMA office (one copy for the ILWU Local Union, one copy forPMA, and one copy for the COAST APPEALS OFFICER’suse in the event of an appeal). The parties may obtain from theJPLRC a copy of the transcript upon request. No later thanfourteen (14) calendar days after the close of the hearing, theARBITRATOR shall issue his or her written decision. The AR-BITRATOR is empowered to issue all appropriate remedies,except that any request for elevation, registration or casual sta-tus shall be referred to the JPLRC, to be processed under §17.4of the PCLCA as provided in §13.3 of the PCLCA. The AR-BITRATOR shall ensure that a copy of the decision is immedi-ately sent to all parties.

9) The decision of the ARBITRATOR in cases covered bythese special procedures shall be final and binding on all par-ties unless a timely appeal is filed as specified below.

10) Any party may, within fifteen (15) calendar days of thedate a copy of the ARBITRATOR’S decision is mailed to suchperson or organization, file an appeal with the COAST AP-PEALS OFFICER. To be timely, the appeal must be mailed orfaxed to the COAST APPEALS OFFICER, with a copy bymail or facsimile to the JPLRC, c/o the local PMA office, with-in the fifteen (15) calendar day period, and it must contain allthe argument intended as support for the appeal. The COASTAPPEALS OFFICER shall ensure that copies of the appeal, iftimely filed, are immediately sent to the ARBITRATOR, Lo-cal Union(s), PMA and all other parties involved with a coverletter specifying the right to file a response or opposition with-in ten (10) calendar days of when the COAST APPEALS OF-FICER received the appeal. Upon receiving a copy of anappeal filed with the COAST APPEALS OFFICER, the localPMA office shall immediately forward the written record ofthe hearing (which is the transcript of the hearing and its ex-

ADDENDA SPECIAL GRIEVANCE/ARBITRATION PROCEDURESFOR THE RESOLUTION OF COMPLAINTS RE

DISCRMINIATION AND HARASSMENT

11

hibits, and the decision received from the ARBITRATOR) tothe COAST APPEALS OFFICER.

11) An appeal shall be based solely on the written recordof the hearing and no appeal hearing shall be permitted. TheCOAST APPEALS OFFICER may affirm, vacate or modifythe decision of the ARBITRATOR, including but not limited toincreasing or reducing the penalty, within his/her sound dis-cretion.

12) A ruling on the appeal shall be sent out within fourteen(14) calendar days of when the COAST APPEALS OFFICERreceived the appeal. An appeal may be denied before receipt orconsideration of any response or opposition at the discretion ofthe COAST APPEALS OFFICER. No other appeal shall beavailable.

13) The JPLRC shall promptly implement the remediesprovided in the final decision. No other appeals or proceed-ings, including appeals to the JCLRC or the Coast Arbitrator,shall be allowed in cases involving Section 13.2 claims in or-der to ensure their final resolution with all due speed.

14) In the event the ARBITRATOR is not available to heara case within the thirty (30) calendar day time frame underthese Special Procedures, the JCLRC shall appoint another Ar-bitrator to timely conduct the hearing for that particular case.

15) In the event any one ARBITRATOR’S workload be-comes prohibitive, the JCLRC shall appoint a special arbitra-tor whose sole function shall be the adjudication of grievancesunder the Special Section 13.2 Procedures.

16) The term “days” in this document means calendardays.

17) These provisions are subject to modification by theJCLRC.

SPECIAL GRIEVANCE/ARBITRATION PROCEDURES ADDENDAFOR THE RESOLUTION OF COMPLAINTS REDISCRIMINATION AND HARASSMENT

12

18) The procedures set forth in this Policy may be flexiblyapplied in particular cases when the facts and circumstanceswarrant it. The time lines for accomplishing particular steps ofthe procedure are intended as guidelines , not strict time limits,which may be extended or waived in appropriate circum-stances. Failure to strictly comply with the time lines shall notconstitute a violation of the Policy.

LETTER OF UNDERSTANDING “C”GUIDELINES FOR REMEDIES AND

PENALTIES IN CASES OFDISCRIMINATION, HARASSMENT &

RETALIATION UNDER THE SPECIAL SECTION 13.2 GRIEVANCE

PROCEDURESLongshore workers, clerks, walking bosses/foremen, su-

perintendents or managers, outside truck drivers, vendors,

contractors, or others who violate Section 13.2 of the Agree-

ment, as described in the ILWU-PMA Equal Employment Op-

portunity Policy & Procedures (Letter of Understanding “A,”

referred to as the Policy), by engaging in discrimination or

harassment (including hostile work environment) in connec-

tion with any action subject to the terms of the PCLCA (un-

derstood to include work sites, joint dispatch halls, training

sites, and other locations, when reasonably related to em-

ployment covered by this Agreement) based on race, creed,

color, sex (including gender, pregnancy, sexual orientation),

age (forty or over), national origin, or religious or political

beliefs, or by engaging in retaliation of any kind for filing or

supporting a complaint of such discrimination or harassment

ADDENDA SPECIAL GRIEVANCE/ARBITRATION PROCEDURES

13

(referred to generally as “Prohibited Conduct”) will be subject

to discipline or penalties up to and including termination,

deregistration or permanent loss of dispatch privileges or loss

of access to employer sites. Likewise, PMA Employers, PMA

offices and ILWU Locals are subject to all appropriate reme-

dies for directly violating this Policy, including mandatory

training, distribution of notices to employees, and changes in

policies and practices found to violate this Policy.

The minimum discipline for any individual found guilty of

violating this Policy shall be seven (7) days off work, and at-

tending Diversity Training without pay. The minimum disci-

pline for any individual found guilty of retaliating against

someone for complaining of Prohibited Conduct or retaliat-

ing against someone for assisting another who complained,

or for quid pro quo harassment (for example, demanding sex-

ual favors for dispatch or job assignments) or for physical ha-

rassment shall be one month off work and attending Diversity

Training without pay. Remedies may also include reassign-

ment from a location where the victim works; time off with-

out pay for longer periods (for example, thirty (30) days,

ninety (90) days, one year); permanently being ineligible from

supervisory and/or dispatcher positions; loss of steady posi-

tions; or other remedies as deemed appropriate in cases

processed under the Special Section 13.2 Grievance Proce-

dures. Anyone found guilty shall, prior to returning to work,

be required to review an approved training video (such as

“EEO Shapes”), without pay, and sign a statement agreeing to

abide by the Policy and not to engage in Prohibited Conduct

in the future.

SPECIAL GRIEVANCE/ARBITRATION PROCEDURES ADDENDA

14

Pursuant to the Special Section 13.2 Grievance Proce-

dures, the Arbitrator is to consider all relevant factors in de-

termining the appropriate remedy, including the nature and

severity of the Prohibited Conduct, the degree of physical

and/or mental harm, the weight of the evidence and testimony,

whether there was a continuing course of conduct or a single

incident, whether the accused previously committed Prohib-

ited Conduct of any kind, and any mitigating circumstances.

Where appropriate, given the nature of the violation and the

parties’ desire to prevent and promptly remedy discrimination

and harassment, the Special Section 13.2 Grievance Proce-

dures are to be used to punish misconduct as well as educate

and provide an opportunity to correct behavior, consistent

with principles of progressive discipline. However, serious

penalties shall be imposed for serious violations of this Policy,

and the maximum penalties of job termination, deregistration

or permanent loss of dispatch privileges may be imposed on

guilty employees, supervisors and managers, where found ap-

propriate under the Special Section 13.2 Grievance Proce-

dures. In determining penalties, a prior offense that predates

by five years or more the dates of the current offense shall not

be considered.

CLRC POLICY ON ADA COMPLIANCE ANDREASONABLE ACCOMMODATION

I. Statement of PolicyIt is the policy of the Joint Coast Labor Relations Committee

not to discriminate against disabled workers in hiring, dispatchand promotion, and to provide reasonable accommodations forapplicants and incumbent workers who have covered disabilities

ADDENDA SPECIAL GRIEVANCE/ARBITRATION PROCEDURES

15

within the meaning of state and federal law.Further, it is the policy of the JCLRC that the Joint Port Labor

Relations Committee in each port shall engage in an interactiveprocess with applicants for industry employment and incumbentworkers who claim to have covered disabilities to determinewhether reasonable accommodations exist which would enablethe applicant or incumbent worker to enter or continue workingin the longshore industry.

Otherwise qualified applicants and employees found to beable to safely perform longshore and clerk work with or withoutreasonable accommodations as may be required by law will be soemployed. Applicants and employees found to be unable to per-form longshore work safely with or without reasonable accom-modation shall not be employed and shall not be eligible fordispatch to such work.

The JPLRC will provide notice of this policy prohibiting dis-crimination and of the procedures for considering and resolvingrequests for accommodation to potential applicants for industryemployment, and members of the incumbent workforce (includ-ing identified casual and registered workers) as required by law.II. Accommodation Procedures

Requests for reasonable accommodation shall be consideredand resolved by the local JPLRCs in accordance with Section17.4 of the PCLCA as modified herein. The Joint Port LRC shallbe responsible for determining the following issues:

1. whether the worker in question is qualified to performwork under the PCLCA;

2. whether the worker in question has a bona fide disabilitythat limits his or her ability to perform satisfactorily theessential functions of the job he or she holds or desires;and

3. if so, whether the disability may be reasonably accom-modated without imposing an undue hardship on the

CLRC POLICY ON ADA COMPLIANCE ADDENDAAND REASONABLE ACCOMMODATION

16

Union or the Employers or without violating the bonafide seniority provisions of the PCLCA except to the ex-tent as may be required by law.

All three issues must be found in the affirmative in order forthe JPLRC to grant reasonable accommodation. The JPLRC hasthe discretion to select the accommodation it considers most ap-propriate, giving due consideration to the suggestions and pref-erences of the applicant or employee seeking accommodation.

A. Written Request for Accommodation Requests for accommodation by applicants for industry

employment or incumbent workers who believe they are en-titled to accommodation under the ADA or other applicablestate law must be submitted in writing to the Joint Port LRC.In the written request, the individual seeking accommodationshall provide the Joint Port LRC with following information.

1. The nature and extent of the claimed disability; 2. The precise job-related limitations he/she believes

are imposed by the claimed disability; 3. Information and/or suggestions as to any accommo-

dation(s) that would enable the individual to over-come the job-related limitations and perform thework safely and satisfactorily.

The individual should include any medical documenta-tion and other information which he or she believes is rele-vant and would assist the JPLRC in reaching a decision.

If the employee or applicant seeking accommodation re-quires assistance in preparing a written request for accom-modation, JPLRC personnel will assist in putting the requestin writing. Further, in circumstances where it is apparent thatan applicant or employee is disabled and may require rea-sonable accommodation, JPLRC personnel shall advise theapplicant or employee of the procedure for requesting an ac-commodation.

ADDENDA CLRC POLICY ON ADA COMPLIANCEAND REASONABLE ACCOMMODATION

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B. Interactive Process re: Accommodation Request1) Initial Meeting

Within 7 days after receiving a written request for ac-commodation, the Joint Port LRC shall provide the indi-vidual with written acknowledgment that the request hasbeen received along with a written request to appear be-fore the JPLRC to review the accommodation request andto discuss alternatives. At this time, the Committee mayrequest that the individual bring additional documenta-tion or information to this initial meeting which the Com-mittee believes is or may be relevant and/or would assistin reaching a decision, including, in appropriate cases, amedical release. The initial meeting should be scheduledto take place as soon as is practicable, depending on thecircumstances giving rise to the accommodation request,but no later than 14 days following receipt of the writtenaccommodation request.2) Opinion of Medical Specialist

Following the initial meeting, the JPLRC may, in itsdiscretion, obtain an opinion from a designated medicalspecialist regarding: 1) whether the applicant or employeesuffers from a disabling condition which limits one ormore major life activity, 2) the applicant or employee'sfunctional abilities and limitations with respect to the es-sential functions of the job he or she holds or seeks; and3) possible accommodations.

One medical specialist shall be designated in eachport to assist the JPLRC in reviewing requests for rea-sonable accommodation. Each designated specialist shallbe made aware and become knowledgeable of the natureand requirements of longshore and clerk work and the es-tablished conditions and waterfront operations in the in-dustry. The designated medical specialist shall also beknowledgeable as to the legal standards and requirements

CLRC POLICY ON ADA COMPLIANCE ADDENDAAND REASONABLE ACCOMMODATION

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related to the employment of disabled workers with orwithout reasonable accommodation.

In determining whether a particular applicant or em-ployee has a disabling condition which limits one or moremajor life activity, the medical specialist will be asked torender an opinion based on any and all of the followings/he deems appropriate: an independent medical exami-nation of the individual by an appropriate health carepractitioner, the individual's medical history, medical re-ports from the individual's personal physician, reexami-nation of the individual, medical tests, x-rays, etc.

The medical specialist shall provide the JPLRC witha written report setting forth an opinion as to whether theapplicant or employee has a disability which limits oneor more major life activity along with an opinion as to theindividual's functional abilities and limitations in relationto the essential functions of the job which the employeeor applicant holds or seeks. Where appropriate, the med-ical specialist shall also issue an opinion and/or recom-mendation as to any accommodations that s/he believeswould enable the disabled applicant or employee to workin the industry.

In the absence of unusual circumstances, the JPLRCwill schedule an appointment for the applicant or em-ployee with the medical specialist to occur within 14 daysfollowing the initial meeting. In the absence of unusualcircumstances, the medical specialist, in turn, will pro-vide his or her written report to the JPLRC within 14 daysafter this appointment takes place.3) Additional Meeting Before JPLRC

Within 7 days following receipt of the medical spe-cialist's written report, the JPLRC may, in its discretion,invite the applicant or employee to attend a further hear-ing before the JPLRC and/or request the individual to pro-

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vide additional documentation or information relevant tothe accommodation request. The JPLRC may also, in itsdiscretion, proceed to gather any additional information itdeems appropriate in determining whether a reasonableaccommodation exists, including consulting with legalcounsel and other technical assistance before rendering adecision.

In the absence of unusual circumstances, the JPLRCshall conclude the interactive process and prepare a writ-ten referral and recommendation to the Joint Coast LRCregarding the proper disposition of the request no laterthan 14 days following receipt of the medical specialists'written report. The JPLRC shall make its recommenda-tion to the Joint Coast LRC regarding the accommoda-tion request based on the facts developed during theinteractive process.

C. Referral and Recommendation to the JCLRCIn the absence of unusual circumstances, within 14 days

following receipt of the JPLRC's written referral and recom-mendation, the JCLRC shall provide the applicant or em-ployee involved written notification of its decision, includinga written explanation of the basis for its decision.

If the Joint Coast LRC agrees on the disposition of the ac-commodation request, such decision shall be final and no ap-peal may be taken therefrom. If the Joint Coast LRC does notagree on the disposition of the accommodation request, theaccommodation request shall be immediately referred to theCoast Arbitrator for decision. In such cases, the decision ofthe Coast Arbitrator shall be based solely on the writtenrecord of the JPLRC and Joint Coast LRC proceedings.

III. TrainingJPLRC members in each covered port, and the members of

the Joint Coast LRC will be provided instruction as to the legal

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requirements related to employment of disabled employees withor without reasonable accommodations along with training as tothe proper handling of requests for reasonable accommodationby disabled employees and applicants.IV. Temporary Accommodation While Requests Are BeingProcessed

1. Temporary accommodations may be granted to indi-viduals who have filed a request for accommodation under theCLRC ADA policy while the accommodation request is underreview. Requests for temporary accommodation shall be actedupon at the initial meeting held by the Joint Port LRC with an ap-plicant for disability accommodation upon receipt, review andapproval by the Joint Port LRC of certification from the appli-cant's own health care provider -- on the JPLRC form (availableat all PMA or ILWU local offices and Joint Dispatch Halls) --that (1) the applicant has work restrictions that result from a men-tal or physical impairment, (2) but that he or she can nonethelessperform particular work tasks without creating a risk of injury tohim/herself of others with specified accommodations.

2. Temporary accommodations granted by the Joint PortLRC shall be limited to an initial ninety (90) day period. The 90day period may be extended by the Joint Port LRC in time incre-ments not to exceed 30 days in length, until the CLRC accom-modation process is concluded provided that delays in completingthe interactive process for determining appropriate accommoda-tions under the CLRC policy result do not result from conduct ofthe applicant intended keep the temporary accommodation inplace for longer than necessary. It is the responsibility of the em-ployee who has been granted a temporary accommodation to con-tact the Joint Port LRC before the temporary accommodationexpires in order to renew it in the event that interactive processis ongoing.

3. Temporary accommodations granted by the Joint PortLRC shall be consistent with all seniority-based rules for dispatch

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and promotion within the industry and shall not interfere with theseniority-based expectations of other workers. For example, noapplicant seeking temporary or permanent accommodations shallbe promoted from one registration status or job classification toanother (such as Class B to Class A registration status, or from thelongshore to marine clerk or foremen's registration lists) as a dis-ability accommodation, where such promotions are fundamen-tally seniority based.

4. Temporary JPLRC accommodations do not need tomirror the accommodation sought under the CLRC Policy beingrequested by the individuals, if the JPLRC, in communicationwith the individual, reasonably believes the temporary accom-modation will be effective and is reasonable and that, with thataccommodation, the individual can safely and efficiently performthe job's essential function.

5. Temporary JPLRC accommodations do not mean the JPLRCagrees to the CLRC Policy request of the individual, nor will an individ-ual be entitled to retain that accommodation if the JCLRC eventually de-cides to the contrary. The JCLRC retains the authority to decide theappropriate response to the CLRC Policy request and may revoke, amendor replace any temporary accommodation put into place by a JPLRC andmay deny a request, notwithstanding that a temporary accommodationwas provided by a JPLRC.

6. Nothing in the handling of a request under the CLRCPolicy, including any grant of a temporary/interim accommoda-tion, shall be construed as an admission by the PMA and its mem-bers and/or the ILWU and its local affiliates, or as evidence thatan individual is disabled, is regarded as disabled, or has a recordof disability within the meaning of the Americans With Disabil-ities Act or any federal, state or local law. V. Scope of ProceduresThe procedures described above shall be utilized in all cases

where accommodations have been requested by applicants for in-

dustry employment and by incumbent workers with respect to hir-ing, dispatch and promotion within the industry.This policy sets forth the procedure to be used by the local com-

mittees and the JCLRC for considering and resolving accommo-dation requests presented by disabled applicants and employeesunder the Americans With Disabilities Act and applicable statelaw. Nothing in this policy may be construed to require the ILWUand the PMA to provide applicants or employees with particularaccommodations or to provide accommodations where, in theopinion of the Committee, none are warranted. Nor may this poli-cy be construed as acceptance by the ILWU or the PMA of addi-tional, greater or different legal or financial responsibilities thanthose which are imposed on them by law for providing accommo-dations to disabled applicants or employees.The procedures set forth in this policy may be flexibly applied

by the JPLRCs and JCLRC in particular cases when, in the judg-ment of the Committee, the facts and circumstances warrant it.The time lines for accomplishing particular steps of the procedureare intended as guidelines, not strict time limits, which may be ex-tended or waived in appropriate circumstances. Failure of the lo-cal committees or the JCLRC to strictly comply with the time linesshall not constitute a violation of the policy.

UNIFORMED SERVICES EMPLOYMENTAND REEMPLOYMENT RIGHTS ACT (USERRA, Reference CLRC Meeting No. 11-03, Item 1 and CLRC Meeting No. 26-06, Item 1)I. IntroductionIt is and has been the intent of the Coast Parties to comply with

the Uniformed Services Employment and Reemployment RightsAct (USERRA) and any applicable state laws. For purposes of

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benefits under the PCL&CA, the Coast Parties additionally intendby this Policy to provide some benefits, as stated here, greater thanmay be required by these laws as they currently exist. In doing so,the Coast Parties do not waive any applicable defenses to anyclaim which may be raised outside the context of the PCL&CAand do not intend to suggest that any greater remedies are availableoutside the PCL&CA than are provided by statute. This Policy explains the benefits available to those eligible as a

result of leaves of absence covered under USERRA, which be-came effective October 13, 1994. Any benefits sought as a resultof military service pre-dating USERRA will be addressed on acase-by-case basis and with consideration of the then-applicablestatute(s). This Policy clarifies, updates, and replaces Section 6.6of the Coastwise Rules, all PCL&CA provisions, JCLRC MeetingMinutes, Arbitration Awards, etc. regarding military service.II. Who Is Covered By This Policy?Under USERRA, a covered employee may take unpaid

leave(s) “necessitated by reason of service in the uniformed serv-ices” not to exceed a cumulative total of five years (with certainstatutory exceptions, such as service required by a declared war ornational emergency) (“Uniformed Services Leave”) and, upon re-turning and meeting certain statutory requirements, includingtimely reapplication/return to work, promptly be reinstated. Covered Employees are those who, prior to Uniformed Servic-

es Leave, performed longshore or clerk work under the PCL&CAthat was not for a “brief, nonrecurrent period” (for which “there isno reasonable expectation that such employment will continue in-definitely or for a significant period”). Therefore, only employeeson jointly recognized lists (Unidentified and Identified Casuals,Class “B” and Class “A” Registrants) who are of active status andare eligible for dispatch at the time when they begin taking Uni-formed Services Leave will be eligible for coverage under thisPolicy.

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An employee is on a “jointly recognized list” only if Coast La-bor Relations Committee or Joint Port Labor Relations Commit-tee meeting Minutes adds the employee by name to the Casual,Class “B” or Class “A” ranks, or adopts into those ranks a writtenlist containing the employee’s name and the employee has not sub-sequently been removed from those ranks. A permanent revoca-tion of dispatch rights or the permanent placement on anon-dispatch list is conclusive evidence of an employee’s removalfrom the Casual, Class “B” or Class “A” ranks. However, other ev-idence, such as the fulfillment of the reason the parties created a“jointly recognized list,” also may be evidence of an employee’sremoval from those ranks.Covered Service means voluntary or involuntary active duty,

active duty for training, initial active duty for training, inactiveduty training, full-time National Guard duty, and absences for cer-tain related exams. This includes periodic/intermittent obliga-tions (for example, annual National Guard and/or Reserveobligations, for weekend drills, training exercises, etc.). Covered“uniformed services” mean the Armed Forces (the Army, Navy,Air Force, Marine Corps, Coast Guard), including Reserve units,the Army National Guard and Air National Guard, the Commis-sioned Corps of the Public Health Service, and any other cate-gories designated by the President in time of war or nationalemergency.III.What Must Be Done To Obtain Benefits Under This Pol-icy?To be entitled to benefits under this Policy, and consistent with

USERRA, an employee (or his/her military representative) must:(1) provide advance notice of military service obligations to theJPLRC, care of PMA (preferably in writing), unless giving ad-vance notice is impossible, unreasonable, or precluded by militarynecessity – in that case, notice must be provided as soon as possi-ble; (2) complete his/her service on honorable terms and not bedisqualified for various reasons set forth in USERRA; and (3)

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promptly (as defined below) upon completing military serviceseek reinstatement from the JPLRC, care of PMA (preferably inwriting), and provide available documentation of the length andcharacter of service and nature of discharge. Requests for reinstatement, or seniority credits, must be filed

with the JPLRC within ninety (90) days of completing any service.Employees are encouraged to bundle together timely requests forseniority credits, so that the JPLRC may address them all at once.However, seniority credits will only be provided through the re-turn-to-work-notice periods provided by statute, which are ex-plained in Section IV below and vary depending on how long theemployee was on leave.Any employee who is injured or ill as a result of his/her Uni-

formed Services Leave is encouraged to contact the JPLRC athis/her earliest opportunity and to review the ADA Policy & Pro-cedures.To the extent provided by USERRA, reinstatement may be de-

nied where circumstances have changed which make reemploy-ment impossible, unreasonable or an undue hardship (where, forexample, a position was eliminated for unrelated business rea-sons). The Coast Parties do not intend by this Section to modifytheir rights or obligations under the PCL&CA. IV. What Benefits Are Available Under This Policy?

A. Reinstatement, Hours Crediting, RegistrationUSERRA generally provides for reinstatement to the position,

along with applicable benefits, an employee would have held hads/he not taken Uniformed Services Leave. Reinstatement includesseniority and seniority-based benefits (for example, wage rates,registration, promotion, clerk transfers, welfare eligibility, pen-sion credits) that would have been attained had the employee re-mained continuously employed (generally, only those whichcome about as a result of how long one is in or works in the Indus-try). USERRA does not entitle service members to any benefits to

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which they would not otherwise be entitled had they “remainedcontinuously employed.”When a JPLRC receives a request for reinstatement or other

benefits under USERRA, it shall first determine whether the indi-vidual is entitled to benefits under USERRA (covered employee,covered service, advance notice, timely request to return to workor receive credit, honorable terms of discharge, etc.). The JPLRCshave the discretion to waive the requirements for advance noticeand/or to extend the 90-day time period for seeking reinstatementfor leaves which began or were completed before this Policy wasadopted.Where the JPLRC determines that an employee is entitled to

benefits under USERRA, reinstatement with appropriate seniori-ty crediting shall be provided by calculating an appropriate hourscredit. To determine seniority crediting, the JPLRC shall credit ahall employee with eight (8) hours of work for each time his/herplug or dispatch number came up for available work during the pe-riod of any Uniformed Services Leave, with the limitation that nomore than eight (8) hours shall be credited for each 24 hour periodof leave. For any period in which dispatch records are insuffi-ciently available to conduct this review, the JPLRC shall credit ahall employee with the highest hours worked in his/her Port by asimilarly situated employee during that period (so, using casualhours where a casual is on leave, Class “B” hall longshore hourswhere a Class “B” hall longshore employee is on leave, etc.). TheJPLRC shall credit a steady employee with all hours provided byhis/her steady work guarantee during the period of any UniformedServices Leave. The hours credit shall be considered to have accrued over the

days, weeks, months or years during which the individual was ab-sent due to Uniformed Services Leave, not to have accrued all atonce when the hours credit is provided. While this Policy providesall employees with 90 days to seek reinstatement and senioritycredits after returning from leave, seniority credits will only be

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provided through the return-to-work-notice periods provided bystatute, which vary depending on how long the employee was onleave: for leaves less than 31 days, this means the next workdayfalling eight hours after service ends; for leaves of 31-to-180 days,this means 14 days after service ends; for leaves of more than 180days, this means 90 days after service ends. The JPLRC shall ad-vise PMA promptly after completing the calculations so that thehours credit may promptly be entered into PMA’s database. Where a registration, elevation, or clerk transfer took place dur-

ing the employee’s Uniformed Services Leave, and/or prior to en-try of his/her hours credits into the PMA database, to determinewhether the employee returning from a Uniformed ServicesLeave should be considered for such registration, elevation orclerk transfer, the JPLRC shall, in addition to calculating the fullhours credit described above, calculate how many of the hourscredits or other seniority accrued before the generally applicablehours cut-off date (if any) for that registration, elevation or clerktransfer. Where the hours or seniority credit from a UniformedServices Leave (including obligatory annual exercises – for ex-ample, National Guard or Reserve training) would have renderedan employee eligible for a registration, elevation or clerk transferthat occurred during his/her Uniformed Services Leave, theJPLRC shall promptly register, elevate or transfer him/her. Where the JPLRC does not believe that an individual seeking

reinstatement is currently qualified for the position to which s/hewould otherwise be reinstated, the JPLRC shall promptly arrangefor appropriate training necessary to achieve that qualification. Appropriate documentation shall be included in the JPLRC

minutes addressing USERRA requests. For example, the JPLRCshall include the amount of hours credited, the methodology used,the date range(s) reviewed and to which the credits apply.

B. Fringe BenefitsUniformed Service Members should direct questions about

welfare and pension benefits (if any), to the appropriate plan. It is

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the intent of the JCLRC that all benefits required by USERRA beprovided.V. Statement of Non-RetaliationThe ILWU and PMA prohibit discrimination or retaliation

against anyone because of their past, current or future UniformedService Leaves, or for bringing a complaint or participating in pro-ceedings under USERRA or applicable state statutes. VI. Grievance ProcedureGrievances regarding the treatment of Uniformed Services

Leave under this Policy may be filed under Section 17 of thePCL&CA. Those seeking consideration under this Policy and/orgrievants are requested to provide available documentation sup-porting their requests.

NO DISCRIMINATIONItem XXII, June 22, 1962 — Memorandum ofAgreementThe parties hereby state that during the negotiations result-

ing in this Memorandum of Agreement they discussed the pro-visions of Section 13, No Discrimination, of the basicAgreement and agreed that the parties are jointly responsiblefor the total implementation of the provisions therein and theUnion agrees that it will administer its internal affairs so as tofulfill its share of this joint responsibility.Item XI, July 1, 1975 — Memorandum of Agree-mentTo formalize the agreement that has been reached and

placed in effect between the International Longshoremen’sand Warehousemen’s Union and the Pacific Maritime Associ-ation that there be no discrimination on the basis of “sex” in theterms, meaning, application, implementation and administra-tion of their collective bargaining contracts, and in the exercise

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of control over the registered lists, the terms of each of the col-lective bargaining contracts between the International Long-shoremen’s and Warehousemen’s Union and Pacific MaritimeAssociation are amended to provide as follows:(a) All collective bargaining contracts shall provide that

there shall be no discrimination in connection with“sex.”

(b) All words, terms or definitions of employees used in thecollective bargaining contracts are used as being wordsof common gender, and not as being words of eithermale or female gender, and hence have equal applica-bility to female and male persons wherever such wordsare used.

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