Two Unions Claim the Same Work – Why Employers Need to Know About Section 10(k) of the NLRA

What can employers do when two unions both claim that a job belongs to their members? Section 10(k) of the National Labor Relations Act provides a mechanism for the National Labor Relations Board to resolve jurisdictional disputes between two unions, but even a 10(k) decision often sparks additional disputes and litigation. A recent decision by the full U.S. Court of Appeals for the Ninth Circuit held that a union cannot utilize a so-called “work preservation” argument to justify its actions after the Board makes a determination in a 10(k) proceeding. This decision overruled a prior case from the Ninth Circuit in International Longshore and Warehouse Union v. NLRB (Kinder Morgan), in which the court had allowed a union (the ILWU) to use a “work preservation” defense in litigation where the union was seeking to claim the work it lost to another union in a 10(k) proceeding. 

Background

SSA Terminals, LLC operates container terminals at the Port of Seattle. The IAM had a collective bargaining agreement with SSA to perform maintenance work for SSA, while the ILWU had an agreement with the Pacific Maritime Association (PMA), a multi-employer association of which SSA was a member, and that agreement applied to the same work. After SSA reopened one of its terminals, both IAM and ILWU claimed the right to perform the same maintenance work, and SSA asked the Board to decide which union should be awarded the work, invoking Section 8(b)(4)(D) of the NLRA, which prohibits unions from using economic pressure against an employer to force the employer to assign work to their members instead of members of another union.

After the Board awarded the work to the IAM, the ILWU filed a grievance alleging that SSA violated its CBA by failing to defend the ILWU’s right to the work, and an arbitrator ruled for the ILWU. SSA and the IAM then filed an unfair labor practice charge against the ILWU, alleging that the ILWU violated Section 8(b)(4)(D) of the NLRA by pursuing a grievance in order to coerce SSA to reassign the work to the ILWU, even though the Board had ruled for the IAM.

The ILWU defended itself under a “work preservation” theory, in which a union argues that its goal was to preserve work that the union had historically been performing under its labor agreement. The Board rejected this argument and determined that ILWU had violated the NLRA.

The Court’s Decision

The Ninth Circuit upheld the Board’s decision to award the work to the IAM and rejected the ILWU’s “work preservation defense.” In doing so, it overturned the holding from its own 2020 decision in Kinder Morgan, in which it held that “work preservation” was a “complete defense” against alleged violations of Section 8(b)(4)(D). 

The court rejected Kinder Morgan’s holding and adopted the DC Circuit’s Sea-Land decision, which held that a union accused of violating Section 8(b)(4)(D) for failing to follow a jurisdictional award by the NLRB cannot invoke a work preservation defense. The court adopted this reasoning because allowing unions to invoke a work preservation defense would undermine the Board’s ability to conclusively resolve jurisdictional disputes, thereby frustrating Congress’ legislative purpose.

Going Forward

Employers now have an easier path to resolving difficult work disputes between multiple labor unions. For employers that belong to multi-employer associations, this can make difficult work allocation decisions a far less painful process. By eliminating a work preservation defense in proceedings after the NLRB has ruled in a jurisdictional dispute hearing, the court has strengthened the ability of employers to use Section 10(k) to resolve jurisdictional disputes. Notwithstanding this very favorable decision, employers should always try to resolve jurisdictional disputes before resorting to the NLRB’s jurisdictional dispute procedures because Section 10(k) proceedings can be time consuming and potentially costly.