Background
SSA Terminals, LLC was bound by collective bargaining agreements with both the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM). Each agreement gave the respective union a contractual claim to maintenance and repair work at SSA’s modernized Terminal 5 in the Port of Seattle. After SSA assigned the work to ILWU and IAM threatened to picket and strike, SSA invoked § 8(b)(4)(D) of the National Labor Relations Act, triggering a § 10(k) proceeding before the National Labor Relations Board.
The Board awarded the work to IAM based on factors including SSA’s preference, the unions’ skills and training, economy and efficiency, and IAM’s prior performance of the work at Terminal 5. ILWU then pursued a contractual grievance against SSA, obtained an arbitration award requiring payments for future Terminal 5 work not performed by ILWU-represented mechanics, and was charged with violating § 8(b)(4)(D) by coercing SSA to disregard the Board’s assignment. The Board rejected ILWU’s argument that its conduct was protected work preservation and found an unfair labor practice. After a three-judge Ninth Circuit panel vacated the order under circuit precedent, the court reheard the consolidated dispute en banc.
The Court’s Holding
The en banc Ninth Circuit held that the work-preservation defense described in National Labor Relations Board v. International Longshoremen’s Association does not apply to an unfair-labor-practice charge under § 8(b)(4)(D) for refusing to abide by the Board’s resolution of a jurisdictional dispute. That defense distinguishes permissible primary labor activity from prohibited secondary activity under § 8(b)(4)(B). A jurisdictional dispute under § 8(b)(4)(D), by contrast, already presupposes primary pressure by competing unions seeking the same work from their common employer.
Allowing the defense would undermine Congress’s mechanism for conclusively resolving jurisdictional disputes because every losing union could characterize its defiance of a § 10(k) work assignment as an effort to preserve contractually claimed work. The court therefore overruled the contrary passage in International Longshore & Warehouse Union v. NLRB (Kinder Morgan), denied ILWU’s and Pacific Maritime Association’s petitions for review, and granted the Board’s cross-petition to enforce its order.
Key Takeaways
- The ILA work-preservation defense is not available against a § 8(b)(4)(D) charge arising from a union’s failure to honor the NLRB’s § 10(k) resolution of a genuine jurisdictional dispute.
- A union may violate § 8(b)(4)(D) by pursuing arbitration payments for work that the Board awarded to employees represented by another union.
- The en banc court overruled Kinder Morgan to the extent it stated that a valid work-preservation objective provides a complete defense to a § 8(b)(4)(D) violation.
Why It Matters
The decision strengthens the finality of NLRB work-assignment determinations in disputes where rival unions possess overlapping contractual claims. A losing union cannot evade the Board’s assignment by reframing coercive grievance or arbitration activity as an effort to preserve its bargained-for work.
The ruling also aligns Ninth Circuit law with the D.C. Circuit’s approach and clarifies that modernization clauses remain relevant to the Board’s work-assignment analysis but do not create an exception permitting defiance of the resulting § 10(k) determination.