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. After SSA modernized and reopened Terminal 5 at the Port of Seattle, it initially assigned that work to ILWU. IAM threatened to picket and strike, prompting SSA to invoke Section 8(b)(4)(D) of the National Labor Relations Act and ask the National Labor Relations Board to resolve the competing claims.
Following a Section 10(k) hearing, the Board awarded the work to IAM based on factors including SSA’s preference, the unions’ respective skills and training, economy and efficiency, and IAM’s prior performance of the work at Terminal 5. ILWU then pursued a contractual grievance and obtained an arbitration award requiring payments for future Terminal 5 work not performed by ILWU members. The Board concluded that this effort to obtain compensation for work awarded to IAM violated Section 8(b)(4)(D). A three-judge Ninth Circuit panel 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 is not a defense to a Section 8(b)(4)(D) unfair-labor-practice charge arising from a union’s failure to honor the Board’s resolution of a jurisdictional dispute. That defense distinguishes permissible primary activity from prohibited secondary activity under Section 8(b)(4)(B). A jurisdictional dispute under Section 8(b)(4)(D), by contrast, already involves primary pressure by rival unions seeking the same work from the same employer.
Allowing either union to characterize its defiance of a Section 10(k) work award as work preservation would prevent the Board from conclusively resolving jurisdictional disputes, contrary to the statutory scheme. The court therefore overruled the contrary passage in International Longshore & Warehouse Union v. NLRB (Kinder Morgan), denied ILWU’s and the Pacific Maritime Association’s petitions for review, 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 ILA work-preservation defense does not excuse noncompliance with an NLRB Section 10(k) work-assignment decision in a true jurisdictional dispute.
- The en banc court overruled Kinder Morgan to the extent it stated that a valid work-preservation objective provides a complete defense to a Section 8(b)(4)(D) charge.
- A union may violate Section 8(b)(4)(D) by pursuing arbitration payments for work that the Board awarded to employees represented by another union.
Why It Matters
The decision strengthens the finality of the NLRB’s mechanism for resolving overlapping union claims to the same work. Once the Board assigns disputed work under Section 10(k), the losing union cannot avoid an unfair-labor-practice finding merely by framing continued contractual enforcement as an effort to preserve bargaining-unit work.
The ruling also aligns the Ninth Circuit with the distinction between secondary-boycott cases under Section 8(b)(4)(B) and jurisdictional-dispute cases under Section 8(b)(4)(D), while leaving the Board responsible for considering collective bargaining agreements, modernization provisions, and other relevant factors when making the initial work assignment.