Background
The International Longshore and Warehouse Union and the International Association of Machinists and Aerospace Workers each had a collective bargaining agreement entitling its members to perform maintenance and repair work for SSA Terminals, LLC. When SSA reopened and modernized Terminal 5 at the Port of Seattle, it initially assigned the work to ILWU. IAM threatened to picket and strike, prompting SSA to ask the National Labor Relations Board to resolve the competing claims under Sections 8(b)(4)(D) and 10(k) of the National Labor Relations Act.
The Board awarded the work to IAM, relying on factors including SSA’s preference, the unions’ relative skills and training, economy and efficiency, and IAM’s prior performance of the work at Terminal 5. After SSA reassigned the work to IAM, ILWU pursued a contractual grievance and obtained an arbitration award requiring payment for future Terminal 5 work not performed by ILWU-represented mechanics. IAM and SSA then charged that ILWU had violated Section 8(b)(4)(D) by using the grievance and arbitration to pressure SSA to disregard the Board’s work assignment. The Board sustained the charge and rejected ILWU’s work-preservation defense.
The Court’s Holding
Sitting en banc, the Ninth Circuit held that the work-preservation defense described in NLRB v. International Longshoremen’s Association does not apply to an unfair-labor-practice charge under Section 8(b)(4)(D) for failing to abide by the Board’s resolution of a jurisdictional dispute. The court overruled the passage in its 2020 Kinder Morgan decision stating that a valid work-preservation objective provides a complete defense to such a charge.
The court explained that the ILA defense distinguishes permissible primary 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 rival unions seek the same work from the same employer. Allowing the losing union to characterize its defiance of a Section 10(k) assignment as work preservation would undermine Congress’s mechanism for conclusively resolving jurisdictional disputes.
The court denied ILWU’s and the Pacific Maritime Association’s petitions for review and granted the Board’s cross-petition to enforce its order. Issues concerning the evidentiary support for the work assignment and IAM’s challenge to the remedy were addressed in a concurrently filed memorandum disposition.
Key Takeaways
- The ILA work-preservation defense is unavailable when a union is charged under Section 8(b)(4)(D) with refusing to honor the Board’s resolution of a genuine jurisdictional dispute.
- A union may not evade a Section 10(k) work assignment by pursuing arbitration for payments based on work that the Board awarded to another union.
- The en banc court overruled Kinder Morgan only to the extent it stated that an ILA work-preservation defense could defeat a Section 8(b)(4)(D) charge.
Why It Matters
The decision strengthens the finality of the NLRB’s process for resolving overlapping union claims to the same work. Once the Board assigns work in a genuine jurisdictional dispute, the losing union cannot rely on its contractual work-preservation objective to justify coercive efforts to obtain the work or compensation for its loss.
The ruling also clarifies that work-preservation principles serve different functions under Sections 8(b)(4)(B) and 8(b)(4)(D). Although modernization clauses and other contractual provisions remain relevant to the Board’s assignment analysis, they do not create an exception allowing a union to disregard the resulting award.