Background
International Longshore and Warehouse Union (ILWU) and International Association of Machinists and Aerospace Workers (IAM) each claimed a contractual right to perform maintenance and repair work for SSA Terminals, LLC at the Port of Seattle’s modernized Terminal 5. Because assigning the work to either union would breach SSA’s obligations to the other, the dispute was a classic jurisdictional dispute under the National Labor Relations Act.
After IAM threatened to picket and strike, SSA invoked Section 8(b)(4)(D), and the National Labor Relations Board conducted a Section 10(k) proceeding. The Board awarded the work to IAM based on factors including SSA’s preference, IAM’s skills and training, efficiency considerations, and IAM’s prior experience performing the work at Terminal 5.
ILWU then pursued a contractual grievance against SSA for failing to defend ILWU’s claim and obtained an arbitration award requiring payment for future Terminal 5 work not performed by ILWU-represented mechanics. IAM and SSA filed an unfair-labor-practice charge, and the Board concluded that ILWU’s pursuit of the grievance coerced SSA to disregard the Section 10(k) award in violation of Section 8(b)(4)(D). A three-judge Ninth Circuit panel initially vacated the Board’s order under circuit precedent, but the court granted rehearing en banc.
The Court’s Holding
The en banc Ninth Circuit held that the work-preservation defense described in NLRB v. International Longshoremen’s Association does not apply to a Section 8(b)(4)(D) charge based on a union’s failure to abide by the Board’s resolution of a jurisdictional dispute. That defense distinguishes permissible primary labor activity from prohibited secondary pressure under Section 8(b)(4)(B). A jurisdictional dispute under Section 8(b)(4)(D), by contrast, already presupposes primary pressure because competing unions seek the same work from their common employer.
The court reasoned that allowing every losing union to characterize its continued pursuit of disputed work as work preservation would undermine Congress’s system for conclusively resolving jurisdictional disputes. It therefore overruled the passage in International Longshore & Warehouse Union v. NLRB (Kinder Morgan) stating that a valid work-preservation objective provides a complete defense to a Section 8(b)(4)(D) violation.
The court denied ILWU’s and the Pacific Maritime Association’s petitions challenging the Board’s order and granted the Board’s cross-petition for enforcement. A concurrently filed memorandum disposition addressed challenges to the evidentiary support for the work assignment and the adequacy of the Board’s remedy.
Key Takeaways
- The International Longshoremen’s Association work-preservation defense applies to secondary-activity charges under Section 8(b)(4)(B), not to defiance of a jurisdictional-work determination under Section 8(b)(4)(D).
- A union may violate Section 8(b)(4)(D) by pursuing arbitration and payments for work that the Board awarded to another union under Section 10(k).
- The en banc court overruled contrary language in Kinder Morgan and aligned the Ninth Circuit with the D.C. Circuit’s treatment of the issue.
Why It Matters
The decision strengthens the finality of NLRB work-assignment determinations in jurisdictional disputes. A union that loses a Section 10(k) proceeding cannot avoid an unfair-labor-practice finding merely by describing later efforts to obtain the work or compensation as enforcement of a work-preservation clause.
The ruling does not make modernization clauses irrelevant. The Board still must consider collective bargaining agreements and assess traditional work in context when assigning disputed work, including when technological change produced the overlap. But once the Board resolves a genuine jurisdictional dispute, the losing union cannot use the International Longshoremen’s Association defense to circumvent that resolution.