The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL LONGSHORE No. 23-632
AND WAREHOUSE UNION;
NLRB No.
INTERNATIONAL LONGSHORE
19-CD-269637
AND WAREHOUSE UNION,
LOCAL 19,
Petitioners, OPINION
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND
AEROSPACE WORKERS,
DISTRICT 160, LOCAL LODGE
289,
Intervenor.
PACIFIC MARITIME No. 23-658
ASSOCIATION,
NLRB No.
Petitioner,
19-CD-269637
v.
NATIONAL LABOR RELATIONS
2 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
BOARD,
Respondent,
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND
AEROSPACE WORKERS,
DISTRICT 160, LOCAL LODGE
289,
Intervenor.
NATIONAL LABOR RELATIONS No. 23-780
BOARD,
NLRB No.
Petitioner,
19-CD-269637
v.
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION;
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION,
LOCAL 19,
Respondents,
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND
AEROSPACE WORKERS,
DISTRICT 160, LOCAL LODGE
289,
Intervenor.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 3
INTERNATIONAL ASSOCIATION No. 23-793
OF MACHINISTS AND
NLRB No.
AEROSPACE WORKERS,
19-CD-269637
DISTRICT 160, LOCAL LODGE
289,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted March 24, 2026
Pasadena, California
Filed August 20, 2026
Before: Mary H. Murguia, Chief Judge, and Ronald M.
Gould, Milan D. Smith, Jr., Morgan B. Christen, Bridget S.
Bade, Kenneth K. Lee, Daniel A. Bress, Lawrence
VanDyke, Lucy H. Koh, Holly A. Thomas and Salvador
Mendoza, Jr., Circuit Judges.
Opinion by Judge Christen
4 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
SUMMARY *
Labor Law
The en banc court denied petitions for review by the
International Longshore and Warehouse Union (ILWU) and
the Pacific Maritime Association (PMA) and granted a
cross-petition for enforcement by the National Labor
Relations Board of the Board’s order awarding the right to
perform maintenance and repair work for SSA Terminals,
LLC to the International Association of Machinists and
Aerospace Workers (IAM).
Two labor unions, ILWU and IAM, claimed the right to
perform the same maintenance and repair work for SSA
Terminals pursuant to their respective collective bargaining
agreements in what is known as a “jurisdictional dispute”—
a conflict arising from overlapping scopes of work within
each union’s contract. Recognizing that an employer caught
in the middle of a jurisdictional dispute is ill-equipped to
resolve it, Congress amended the National Labor Relations
Act (NLRA) to empower the Board to decide which of the
competing unions shall be awarded the work and deemed the
failure of the non-prevailing union to respect the Board’s
decision an unfair labor practice.
SSA Terminals invoked § 8(b)(4)(D) of the NLRA and
asked the Board to decide which union should be awarded
the maintenance and repair work. The Board awarded the
work to IAM. ILWU then filed a grievance, alleging that
SSA Terminals violated its collective bargaining agreement
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 5
by failing to defend its right to do the work during the
Board’s proceedings, and an arbitrator ruled in ILWU’s
favor. The following month, IAM and SSA filed an unfair
labor practice charge with the Board alleging that ILWU
violated § 8(b)(4)(D) of the NLRA by pursuing a grievance
intended to coerce SSA Terminals to reassign the work to
ILWU in contravention of the Board’s decision. The Board
determined that ILWU violated § 8(b)(4)(D) by failing to
comply with the Board’s decision, and rejected ILWU’s
work-preservation defense, in which ILWU argued that the
arbitration was a permissible work-preservation activity
because it sought to pressure SSA Terminals to comply with
its contractual obligation to assign the maintenance and
repair work to ILWU.
The sole issue the en banc court resolved was whether a
union charged with violating § 8(b)(4)(D) may invoke the
work-preservation defense described in National Labor
Relations Board v. International Longshoremen’s
Association (ILA), 447 U.S. 490, 504 (1980). The en banc
court held that (1) the ILA work-preservation defense is not
a defense to an unfair labor practice charge under
§ 8(b)(4)(D) of the NLRA for failure to abide by the Board’s
resolution of a jurisdictional dispute, and (2) overruled the
passage in International Longshore & Warehouse Union v.
National Labor Relations Board (Kinder Morgan), 978 F.3d
625 (9th Cir. 2020), that stated otherwise.
In ILA, the Supreme Court explained that by enacting
§ 8(b)(4)(B), Congress intended to prohibit unions from
engaging in secondary activity (activity directed at a third-
party with the goal of coercing that party to take some action
against the employer with whom the union has a dispute)
while allowing unions to engage in primary activity (activity
a union undertakes directly against its contracting employer
6 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
for the purpose of preserving work traditionally performed
by union members). The Supreme Court acknowledged that
the work-preservation defense can defeat an accusation of
secondary activity in violation of § 8(b)(4)(B).
The en banc court held that, although ILA work-
preservation can be a defense to a § 8(b)(4)(B) unfair labor
practice charge, it does not necessarily follow that the
defense applies to a § 8(b)(4)(D) charge because the
theoretical bases for each charge are different. Section
8(b)(4)(B) seeks to preserve the right of labor organizations
to bring pressure on offending employers in primary labor
disputes without involving a third-party, and the inquiry is
whether the union’s conduct is primary. In contrast,
§ 8(b)(4)(D) presupposes primary activity because each
union in a jurisdictional dispute seeks to secure work from
its own employer. Accordingly, the ILA work-preservation
defense is inapplicable to a § 8(b)(4)(D) charge.
The en banc court therefore denied ILWU’s and PMA’s
petitions and granted the Board’s cross-petition for
enforcement.
In a concurrently filed memorandum disposition, the en
banc court addressed whether substantial evidence
supported the Board’s work-assignment decision and IAM’s
petition challenging the adequacy of the remedy imposed by
the Board.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 7
COUNSEL
Kathleen Foley (argued), Zimmer Citron & Clarke LLP,
Washington, D.C.; Michael E. Kenneally (argued), James D.
Nelson, and Jonathan C. Fritts, Morgan Lewis & Bockius
LLP, Washington, D.C.; Gregory Nelson, Morgan Lewis &
Bockius LLP, New York, New York; Robert S. Remar, Law
Office of Robert Remar, San Francisco, California; Kirsten
Donovan, ILWU Coast Longshore Division, San Francisco,
California; Ira L. Gottlieb, Julie Gutman-Dickinson, Erica
Deutsch, and Sarah W. True, Bush Gottlieb A Law
Corporation, Glendale, California; Robert H. Lavitt, Travis
Lavenski, and Julian Gonzalez, Barnard Iglitzin & Lavitt
LLP, Seattle, Washington; Lindsay R. Nicholas, Leonard
Carder LLP, Oakland, California; Geoffrey J. Rosenthal,
Morgan Lewis & Bockius LLP, Philadelphia, Pennsylvania;
for Petitioners.
Micah P.S. Jost (argued), Attorney; Kira D. Vol, Supervising
Attorney; David Habendtreit and Meredith Jason, Assistant
General Counsel; Ruth E. Burdick, Deputy Associate
General Counsel; Peter S. Ohr, Associate General Counsel;
Lynisa B. Michalski and Stephanie Cahn, Acting Deputy
General Counsel; William B. Cowen, Acting General
Counsel; Jennifer A. Abruzzo, General Counsel; National
Labor Relations Board, Washington, D.C.; for Respondent.
David A. Rosenfeld (argued), Weinberg Roger & Rosenfeld,
Emeryville, California, for Intervenor.
John P. Sheridan and Daniel Wolff, Mazzola Mardon PC,
New York, New York, for Amicus Curiae International
Longshoreman’s Association.
8 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
OPINION
CHRISTEN, Circuit Judge:
Two labor unions claim the right to perform the same
maintenance and repair work for SSA Terminals, LLC
pursuant to their respective collective bargaining
agreements. There is no dispute that both unions, ILWU 1
and IAM, 2 are entitled to the work under their contracts, and
the parties further agree that the employer cannot award the
work to one union without breaching its contractual
obligations to the other. This sort of dispute is known as a
“jurisdictional dispute” because it is a conflict arising from
overlapping scopes of work within each union’s contract.
Congress has recognized that an employer caught in the
middle of a jurisdictional dispute is ill-equipped to resolve
it. Regardless of the union to which the employer assigns
the work, the other union may picket or strike. With the
potential of a never-ending dispute in mind, Congress
amended the National Labor Relations Act (NLRA) to
empower the National Labor Relations Board (Board) to
decide which of the competing unions shall be awarded the
work. Congress deemed the failure of the non-prevailing
union to respect the Board’s decision an unfair labor
practice.
Here, the Board awarded SSA Terminals’ equipment
maintenance and repair work to IAM. ILWU responded by
1
For simplicity, we use “ILWU” to refer to the International Longshore
and Warehouse Union and the International Longshore and Warehouse
Union - Local 19.
2
We use “IAM” to refer to the International Association of Machinists
and Aerospace Workers, District 160, Local Lodge 289.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 9
pursuing a grievance and arbitration against SSA Terminals.
That prompted a new proceeding before the Board in which
SSA Terminals and IAM accused ILWU of an unfair labor
practice for failing to abide by the Board’s decision. ILWU
asserted a “work-preservation” defense, as described by the
Supreme Court in National Labor Relations Board v.
International Longshoremen’s Association (ILA), 447 U.S.
490, 504 (1980). The Board rejected ILWU’s defense, and
the parties petitioned for review of the Board’s assignment-
of-work determination and, separately, review of its unfair
labor practice charge ruling. 3
A three-judge panel of our court vacated the Board’s
order because it was bound by our decision in International
Longshore & Warehouse Union v. National Labor Relations
Board (Kinder Morgan), 978 F.3d 625 (9th Cir. 2020).
Sitting en banc, we now overrule the statement in Kinder
Morgan that an ILA work-preservation defense may defeat
an unfair labor practice charge for failure to abide by the
Board’s resolution of a jurisdictional dispute. We therefore
deny the petitions challenging the Board’s order and grant
the Board’s cross-petition for enforcement. 4
3
In our concurrently filed memorandum disposition, we address whether
substantial evidence supported the Board’s work-assignment decision
and IAM’s petition challenging the adequacy of the remedy imposed by
the Board (No. 23-793).
4
We consolidated ILWU’s, Pacific Maritime Association’s, and IAM’s
petitions for review, as well as the Board’s cross-petition for
enforcement, all of which arise from the same Board order. We also
granted IAM leave to intervene and granted leave to the International
Longshoremen’s Association to file an amicus brief in support of
ILWU’s and Pacific Maritime Association’s petitions for review. We
deny SSA Terminals’ opposed motion for leave to file an amicus brief
because the proposed amicus brief raises issues and seeks remedies not
10 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
I.
A.
SSA Terminals, LLC (SSA Terminals or SSA) operates
container terminals in the Port of Seattle. A container
terminal is a port built for large container ships. These ships
require specialized equipment to load and unload cargo.
SSA Terminals is responsible for maintaining the
specialized equipment used at its terminals, and it assigns
that work—which the parties refer to as “maintenance and
repair work”—to union-represented employees pursuant to
separate collective bargaining agreements. Relevant for our
purposes, SSA Terminals was bound by collective
bargaining agreements with both ILWU and IAM. SSA
Terminals’ agreement with IAM gave IAM-represented
mechanics the right to perform the maintenance and repair
work at SSA’s Puget Sound Region container terminals.
This agreement anticipated modernization by requiring that
“any future work created by advancements in technology or
changes in existing technology necessary to perform all
[maintenance and repair] work will continue to be performed
by the employees covered by this Agreement including but
not limited to technology and automation.”
SSA Terminals is a member of the Pacific Maritime
Association (PMA), a multi-employer association, and the
PMA has a collective bargaining agreement with ILWU. As
a PMA-member employer, SSA Terminals is bound by the
agreement. Section 1.72 of that agreement allows PMA-
member employers to introduce automation at their
briefed by the parties. See Am. Trucking Ass’ns, Inc. v. City of Los
Angeles, 559 F.3d 1046, 1053 n.11 (9th Cir. 2009). We deny IAM’s and
the Board’s pending motions to strike SSA’s amicus brief as moot.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 11
terminals—but in exchange, the agreement expands the
scope of ILWU’s jurisdiction to cover “installation,
reinstallation, removal, maintenance and repair, and
associated cleaning of such new technologies.” Section 1.76
of the agreement requires PMA-member employers to
defend the assignment of work to ILWU “in any legal
proceeding.”
Prior to 2018, SSA Terminals employed workers
represented by ILWU and IAM at container terminals it
operated in the Port of Seattle. ILWU stevedores
secured ocean-going vessels and moved cargo to and from
the vessels. 5 IAM-represented mechanics maintained and
repaired equipment at the terminals, including the equipment
used to load and unload cargo. IAM performed maintenance
and repair work for a different operator at Terminal 5, which
functioned as a container terminal until it closed in 2014.
In 2018, SSA Terminals decided to reopen Terminal 5,
modernize it, and relocate some operations there. SSA
Terminals signed a lease and spent one year modernizing
Terminal 5. Terminal 5 is no more than a five- to ten-minute
drive from other terminals operated by SSA. Terminal 5
reopened in 2019.
The reopening of Terminal 5 triggered SSA Terminals’
contractual obligations under both collective bargaining
agreements. PMA asserted that SSA Terminals was required
to assign the Terminal 5 maintenance and repair work to
ILWU. Though SSA Terminals had never assigned
maintenance and repair work to ILWU at a container
terminal in the Port of Seattle, it assigned the Terminal 5
5
Stevedores manage the loading and unloading of ships. See Stevedore,
Black’s Law Dictionary (12th ed. 2024).
12 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
work to ILWU. IAM threatened to picket and strike if the
work was not reassigned to its members. To prevent IAM
from doing so, SSA Terminals invoked § 8(b)(4)(D) of the
NLRA and asked the Board to decide which union should be
awarded the work. 6
B.
Subject to three conditions that are not disputed here,
once a § 8(b)(4)(D) unfair labor practice charge is filed,
§ 10(k) of the NLRA authorizes the Board to conduct a
hearing and determine which of the competing unions shall
be awarded the disputed work. See 29 U.S.C. § 160(k). The
Board’s determination of a jurisdictional dispute under
§ 10(k) is not immediately reviewable, but it may be
challenged through future unfair labor practice proceedings
if there is a subsequent allegation of a § 8(b)(4)(D) violation
for failure to comply with the Board’s § 10(k) decision.
Henderson ex rel. NLRB v. Int’l Longshoremen’s &
Warehousemen’s Union Loc. 50 (Henderson), 457 F.2d 572,
577 (9th Cir. 1972).
Here, following a § 10(k) hearing in July 2020, the Board
awarded the Terminal 5 maintenance and repair work to
IAM. The Board found: (1) SSA Terminals preferred IAM;
(2) “the factors of skills and trainings, and economy and
efficiency” favored IAM; and (3) IAM’s experience
performing the maintenance and repair work at Terminal 5,
during a period when it was operated by the previous
employer, all counseled in favor of IAM. By October of that
6
Following the parties’ convention, we refer to both § 8(b)(4)(i)(B) and
(D) and § 8(b)(4)(ii)(B) and (D) of the NLRA as § 8(b)(4)(B) and (D),
respectively. For purposes of this opinion, the distinction between
§ 8(b)(4)(i)(B) and (D) and § 8(b)(4)(ii)(B) and (D) are immaterial.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 13
year, SSA Terminals had reassigned the Terminal 5
maintenance and repair work to IAM.
ILWU filed a grievance, alleging that SSA Terminals
violated section 1.76 of its collective bargaining agreement
by failing to defend its right to do the work during the
Board’s § 10(k) proceedings. More specifically, ILWU
argued that SSA Terminals violated section 1.76 because it
refused to state a preference for ILWU during the § 10(k)
hearing. ILWU pursued its grievance to arbitration, and
asked the arbitrator to direct SSA Terminals to “assign the
[maintenance and repair] work at Terminal 5 to the ILWU
workforce,” to nullify SSA Terminals’ right to automate its
operations until it complies with the terms of the collective
bargaining agreement at Terminal 5, and to order SSA
Terminals to compensate ILWU for the lost work
opportunity from any future Terminal 5 work not performed
by ILWU. The arbitrator decided in ILWU’s favor and
ordered SSA Terminals to “pay lost work opportunity claims
for any future [Terminal 5 maintenance and repair] work not
performed by ILWU-represented Mechanics.” The
arbitration award acknowledged that whether such a remedy
may be “subject to unknown future unfair labor practice
charges or other legality” would be “judged in other
forums.” The following month, IAM and SSA filed an
unfair labor practice charge with the Board. In it, they
alleged that ILWU violated § 8(b)(4)(D) of the NLRA by
pursuing a grievance intended to coerce SSA Terminals to
reassign the work to ILWU in contravention of the Board’s
§ 10(k) decision.
Board complaints are heard by administrative law judges
(ALJs), who make “findings of fact, conclusions of law, and
. . . [provide] recommendations for the proper disposition of
the case” to the Board. 29 C.F.R. § 102.45(a). Before the
14 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
ALJ, ILWU did not dispute that pursuing its grievance in
defiance of the § 10(k) award may violate § 8(b)(4)(D).
Instead, it argued that the arbitration was a permissible work-
preservation activity because it sought to pressure SSA
Terminals to comply with its contractual obligation to assign
the Terminal 5 work to ILWU. ILWU specifically invoked
a work-preservation defense, which was first described in
National Woodwork Manufacturers Association v. National
Labor Relations Board, 386 U.S. 612 (1967). The Supreme
Court further elaborated upon the work-preservation defense
in ILA, 447 U.S. 490 (1980).
The ALJ rejected ILWU’s work-preservation defense
and found that ILWU violated § 8(b)(4)(D) by failing to
comply with the Board’s § 10(k) decision. The Board
affirmed this ruling. ILWU and PMA petitioned our court
for review, challenging the Board’s § 8(b)(4)(D) ruling and
its underlying § 10(k) award. The Board cross-petitioned to
enforce its decision. IAM intervened in support of the Board
and filed a separate petition challenging the adequacy of
relief ordered by the Board.
In support of their petitions for review, ILWU and PMA
invoke our decision in Kinder Morgan, which they read to
allow ILWU to assert an ILA work-preservation defense in a
§ 8(b)(4)(D) proceeding. A three-judge panel of our court
vacated the Board’s order, holding that in light of our
decision in Kinder Morgan, ILWU was allowed to assert an
ILA work-preservation defense in response to the
§ 8(b)(4)(D) unfair labor practice charge. One member of
the panel wrote separately to urge our court to reconsider
Kinder Morgan en banc. We granted the Board’s and IAM’s
petitions for en banc review and vacated the three-judge
panel opinion. We also granted ILWU’s motion to permit
supplemental briefing. Having considered the parties’
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 15
supplemental briefing and oral argument, we are persuaded
that the work-preservation defense asserted by ILWU does
not defeat a § 8(b)(4)(D) charge arising from the failure to
comply with the Board’s resolution of a jurisdictional
dispute.
II.
We have jurisdiction pursuant to § 10(e) and (f) of the
National Labor Relations Act. 29 U.S.C. § 160(e), (f). We
review de novo questions of law and “exercise [our]
independent judgment in deciding whether an agency has
acted within its statutory authority.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 412 (2024).
III.
A.
By definition, jurisdictional disputes arise when multiple
unions seek to enforce irreconcilable contractual rights to
perform the same work for the same employer, such that the
employer cannot assign the work to one union without
breaching its obligations to the other. See USCP-WESCO,
Inc. v. NLRB, 827 F.2d 581, 583–85 (9th Cir. 1987).
Jurisdictional disputes have disruptive consequences and
were historically the cause of extended work stoppages. See
Comm. on Labor & Pub. Welfare, Legislative History of the
Labor Management Relations Act, 1947, at 951–52 (1974).
Before the mid-twentieth century, the Board typically did
not wade into jurisdictional disputes. See NLRB v. Radio &
Television Broad. Eng’rs Union, Loc. 1212 (CBS), 364 U.S.
573, 580 (1961). Instead, unions and employers set up
independent and joint tribunals to arbitrate the disputes
themselves. Id. These efforts fell short, and “widely
expressed dissatisfaction with jurisdictional strikes”
16 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
continued. Id. The severity of the detrimental effects of
jurisdictional disputes and ensuing strikes spurred President
Truman to urge Congress in 1947, “if the ‘rival unions are
unable to settle such disputes themselves, provision must be
made for peaceful and binding determination of the issues.’”
Id. (citation omitted).
Congress responded by amending the NLRA to establish
a two-part mechanism for the Board to resolve jurisdictional
disputes. Id. at 581–82. Section 8(b)(4)(D) deems it an
unfair labor practice for a labor organization to “forc[e] or
requir[e] any employer to assign particular work to
employees in a particular labor organization . . . rather than
to employees in another labor organization,” unless the
employer is acting in defiance of a Board order. 29 U.S.C.
§ 158(b)(4)(D). The Supreme Court has explained that
§ 8(b)(4)(D) “must be read in light of [§] 10(k) with which
it is interlocked.” NLRB v. Plasterers’ Loc. Union No. 79
(Texas Tile), 404 U.S. 116, 123 (1971). A complaint filed
pursuant to § 8(b)(4)(D) triggers a process described in
§ 10(k) that requires the Board to award contested work so
long as three conditions are met. Specifically, the Board
must verify that there exists:
reasonable cause to believe that (1) a union
has used a proscribed means—such as
picketing or threatening to picket—to enforce
its claim to the work in dispute; (2) there are
competing claims to the disputed work
between rival groups of employees; and
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 17
(3) there is no agreed-upon method for
resolving the dispute voluntarily.
Recon Refractory & Constr. Inc. v. NLRB, 424 F.3d 980, 988
(9th Cir. 2005); see also Texas Tile, 404 U.S. at 123–24.
Here, the Board deemed these three conditions satisfied
because IAM had threatened to strike if the Terminal 5
maintenance and repair work was not reassigned to it, and
the other two conditions were uncontested.
In a § 10(k) proceeding, the Board looks to a variety of
factors to decide which union or group of employees is
entitled to perform the disputed work. The factors include
employer preference, the relative skills of the competing
groups, industry practice, and whether considerations of
economy and efficiency of operations favor one group of
employees over the other. Texas Tile, 404 U.S. at 132 n.26.
If the Board determines that the employees represented by
the union that was originally charged with the unfair labor
practice are entitled to perform the disputed work, the Board
will dismiss the unfair labor practice charge as to that union.
29 C.F.R. § 102.91.
If, after the Board issues its § 10(k) ruling, the non-
prevailing union attempts to coerce the employer into
reassigning the disputed work to it, any person may file a
new complaint alleging an unfair labor practice under
§ 8(b)(4)(D). See id. In a § 10(k) proceeding, “the Board
need only find that there is reasonable cause to believe that
a [§] 8(b)(4) (D) violation has occurred, while in the
[§] 8(b)(4)(D) proceeding itself the Board must find by a
preponderance of the evidence that the [charged] union has
violated [§] 8(b)(4)(D).” Int’l Tel. & Tel. Corp., Commc’ns
Equip. & Sys. Div. v. Local 134, Int’l Bhd. of Elec. Workers
(ITT), 419 U.S. 428, 447 (1975) (citation omitted). In this
18 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
way, the initial § 10(k) award provides “the parties a sort of
‘advisory opinion’ that previews the Board’s probable
assessment of the merits.” Kinder Morgan, 978 F.3d at 634
(quoting ITT, 419 U.S. at 446). “It is not, however, a
binding, final disposition,” and it may be challenged only in
the course of review of a subsequent final § 8(b)(4)(D) order.
Id.; see also Henderson, 457 F.2d at 577. The threat of a
follow-on § 8(b)(4)(D) charge operates as the de facto
enforcement scheme for the Board’s § 10(k) decision.
Here, the Board’s § 10(k) ruling awarded the
maintenance and repair work at Terminal 5 to IAM. ILWU
initiated a grievance and an arbitration proceeding against
SSA Terminals, seeking compensation for its lost work.
ILWU does not deny that seeking an arbitral award of in-lieu
payments for lost work may amount to “coercion” pursuant
to § 8(b)(4)(D), nor could it. See Small v. Operative
Plasterers’ & Cement Masons’ Int’l Ass’n Loc. 200, 611
F.3d 483, 492 (9th Cir. 2010) (“[A]llowing the losing party
in a 10(k) dispute to pursue payments for work that the
Board awarded to employees other than those involved in the
grievance necessarily subverts the Board’s 10(k) award.”
(alteration in original) (quoting Iron Workers Loc. 433, 309
NLRB 273, 274 (1992))); Int’l Longshoremen’s &
Warehousemen’s Union, Loc. 32 v. Pac. Mar. Ass’n, 773
F.2d 1012, 1018 (9th Cir. 1985); Sheet Metal Workers Int’l
Ass’n, 357 NLRB 1577, 1578–79 (2011). Instead, ILWU
argues that its grievance and arbitration were permissible
because ILWU sought to persuade SSA Terminals to comply
with its contractual obligations to assign Terminal 5 work to
ILWU. In other words, ILWU contends that by pursuing its
grievance and arbitration, it merely sought to preserve work
it was contractually entitled to perform, not to extract
additional work from SSA Terminals. The sole issue we
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 19
resolve here is whether a union charged with violating
§ 8(b)(4)(D) may invoke the ILA work-preservation defense.
B.
To understand the ILA work-preservation defense, it is
necessary to understand the function served by § 8(b)(4)(B)
of the NLRA, and the difference between “primary” and
“secondary” activity. In ILA, the Supreme Court explained
that by enacting § 8(b)(4)(B), Congress intended to prohibit
secondary activity while allowing unions to engage in
primary activity. 447 U.S. at 504; see also NLRB v. Enter.
Ass’n of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic
Tube, Ice Mach. & Gen. Pipefitters of N.Y. & Vicinity, Loc.
Union No. 638 (Pipefitters), 429 U.S. 507, 510 (1977).
Primary activity is any activity a union undertakes directly
against its contracting employer “for the purpose of
preserving work traditionally performed by union
members,” even if the union’s demands may have the
collateral effect of causing the employer to cease employing
members of a different union. Pipefitters, 429 U.S. at 510;
see also NLRB v. Int’l Longshoremen’s Ass’n (ILA II), 473
U.S. 61, 78 & n.18 (1985) (explaining that primary activity
is permissible even when it has “severe” consequences for
“the employment opportunities of employees not
represented by the union” (quoting ILA, 447 U.S. at 507
n.22)).
By contrast, secondary activity encompasses activity
directed at a third-party with the goal of coercing that party
to take some action against the employer with whom the
union has a dispute. ILA, 447 U.S. at 503–04; Nat’l
Woodwork, 386 U.S. at 623–25. A union acting with a
secondary purpose aims to “disrupt the business relations of
a neutral” third-party. ILA II, 473 U.S. at 79. For example,
20 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
a union in the building industry engages in primary activity
when it refuses to install doors precut by a manufacturer
because it aims to safeguard its traditional work of cutting
and fitting doors at construction sites. See Nat’l Woodwork,
386 U.S. at 617, 645–46. A union engages in secondary
activity if, in an effort to pressure its employer to retain
delivery work for union drivers, it pickets neutral retailers
selling the employer’s products to induce those retailers to
cease doing business with the employer. See Pye v.
Teamsters Loc. Union No. 122, 61 F.3d 1013, 1022 (1st Cir.
1995); Nat’l Woodwork, 386 U.S. at 626 n.16 (explaining
that “[t]he gravamen of a secondary boycott is that its
sanctions bear, not upon the employer who alone is a party
to the dispute [with the union], but upon some third party
who has no concern in it” and that the aim of a secondary
boycott “is to compel [the third party] to stop business with
the employer in the hope that this will induce the employer
to give in to his employee’s demands” (quoting Int’l Bhd. of
Elec. Workers, Loc. 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.
1950), aff’d, 341 U.S. 694 (1951))).
Section 8(b)(4)(B) addresses Congress’s concern with
secondary activity by making it an unfair labor practice for
a union to “forc[e] or requir[e] any person . . . to cease doing
business with any other person.” 29 U.S.C. § 158(b)(4)(B).
The Supreme Court’s ILA decision articulated a two-part
work-preservation test to determine whether an activity is a
permissible primary activity or a secondary activity
proscribed by § 8(b)(4)(B). First, to qualify as a primary
activity, the activity “must have as its objective the
preservation of work traditionally performed by employees
represented by the union.” ILA, 447 U.S. at 504; see also
Kinder Morgan, 978 F.3d at 637 (explaining that “the
dispositive measure” between primary and secondary
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 21
activities is the purpose of the challenged conduct).
“Second, the contracting employer must have the power to
give the employees the work in question.” ILA, 447 U.S. at
504. This requirement excludes activities intended to exert
indirect pressure on union employers via tactics aimed at
third parties. Id. at 504–05 (explaining that where the second
prong of the ILA work-preservation defense test is not met,
“it is reasonable to infer that the agreement has a secondary
objective, that is, to influence whoever does have such
power over the work” (emphasis added)).
In ILA, the Supreme Court acknowledged that the work-
preservation defense can defeat an accusation of secondary
activity in violation of § 8(b)(4)(B). See id. at 503–04; see
also Pipefitters, 429 U.S. at 510; Nat’l Woodwork, 386 U.S.
at 622; Hous. Insulation Contractors Ass’n v. NLRB, 386
U.S. 664, 668–69 (1967). The Court has not extended this
defense to a § 8(b)(4)(D) charge.
C.
Although ILA work-preservation can be a defense to a
§ 8(b)(4)(B) charge, it does not necessarily follow that the
defense applies to a § 8(b)(4)(D) charge because “the
theoretical bases for each charge are different.” Int’l
Longshoremen’s & Warehousemen’s Union v. NLRB (Sea-
Land), 884 F.2d 1407, 1412 (D.C. Cir. 1989) (citation
omitted). As explained, § 8(b)(4)(B) seeks to “preserv[e] the
right of labor organizations to bring pressure to bear on
offending employers in primary labor disputes,” without
involving a third-party. Nat’l Woodwork, 386 U.S. at 626–
27 (citation omitted). The § 8(b)(4)(B) inquiry therefore
turns on whether the union’s conduct is primary—i.e.,
whether it is directed at “the labor relations of the contracting
employer vis-à-vis his own employees”—or instead
22 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
improperly targets neutral third-parties. Id. at 645. In
contrast, § 8(b)(4)(D) presupposes primary activity because
each union in a jurisdictional dispute seeks to secure work
from its own employer that it is contractually entitled to
perform. A primary dispute becomes a “jurisdictional
dispute” only when rival unions claim the same work from
the same employer. That is, unlike a § 8(b)(4)(B) charge, a
§ 8(b)(4)(D) charge inherently involves primary pressure
directed at the employer who has the power to assign the
disputed work.
The Supreme Court has explained that Congress enacted
§ 8(b)(4)(D) and § 10(k) as intertwined provisions “to
protect employers and the public from the detrimental
economic impact of ‘indefensible’ jurisdictional strikes.”
Texas Tile, 404 U.S. at 130 (footnote omitted). To this end,
§ 10(k) requires the Board to provide conclusive resolutions
to jurisdictional disputes, thereby avoiding intractable and
“intolerable” labor conflicts. CBS, 364 U.S. at 580. The
Supreme Court has relied on Congress’s strong indictment
of jurisdictional disputes to bolster the Board’s mandate to
resolve them. For instance, the Supreme Court has required
the Board to make affirmative awards of disputed work
rather than accepting the employer’s initial assignment of
work as determinative, id. at 582 (explaining that § 10(k)
“was designed to provide . . . an effective compulsory
method of getting rid of what were deemed to be the bad
consequences of jurisdictional disputes”), and the Court has
directed the Board to proceed to a § 10(k) hearing if two
disputing unions, but not the employer, agree on a private
mode of dispute resolution, Texas Tile, 404 U.S. at 136–37.
Allowing an ILA work-preservation defense to a
§ 8(b)(4)(D) charge would undermine Congress’s intent to
“solve the knotty problem of wasteful work stoppages due to
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 23
[jurisdictional] disputes.” CBS, 364 U.S. at 580. This is so
because, by definition, all unions in a true jurisdictional
dispute can claim that they aim to preserve their right to
perform the disputed work pursuant to their contracts. If a
union could avoid liability for a § 8(b)(4)(D) unfair labor
practice charge simply by characterizing defiance of the
Board’s § 10(k) determination as “work preservation,” the
Board’s ability to provide final resolutions to jurisdictional
disputes would be thwarted. The interpretation that ILWU
and PMA advocate permits an end run around the scheme
Congress enacted to resolve jurisdictional disputes. As the
Supreme Court has explained, the potential for a follow-on
§ 8(b)(4)(D) charge is the only way to “implement the
Board’s [§] 10(k) decision.” Texas Tile, 404 U.S. at 127.
Having reviewed these interlocking provisions, we are
persuaded that the ILA work-preservation defense is
inapplicable to a § 8(b)(4)(D) charge.
D.
ILWU’s and PMA’s arguments to the contrary are
unavailing. First, they invoke our decision in Kinder
Morgan, a case involving facts analogous to those in this
appeal. There, two unions, ILWU and the Electrical
Workers union, laid claim to the same work. Kinder
Morgan, 978 F.3d at 629. After a § 10(k) hearing, the Board
awarded the work to the Electrical Workers, but ILWU
continued to seek the work by pursuing a grievance before
an arbitrator. Id. at 631–32. The arbitrator found that ILWU
was entitled to the work. Id. at 632. After ILWU attempted
to enforce the arbitral award, the Electrical Workers filed an
unfair labor practice charge with the Board under
§ 8(b)(4)(D). Id. ILWU presented a work-preservation
defense, which the Board rejected. Id. at 633 & n.10.
24 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
Notably, the Board did not argue before the three-judge
panel in Kinder Morgan, as it does now, that the ILA work-
preservation defense is inapplicable to a § 8(b)(4)(D)
charge. 7 See id. at 634–37. And as far as we can tell, neither
did the parties. Instead, in Kinder Morgan, the Board
focused its argument on its contention that its § 10(k)
decision precluded ILWU from relitigating certain
arguments at a subsequent § 8(b)(4)(B) hearing. See id. We
rejected that position, relying on our own precedent and
Supreme Court authority establishing that § 10(k)
determinations do not have preclusive effect in follow-on
§ 8(b)(4)(D) proceedings. Id. at 630. The Board argued in
the alternative that ILWU could not satisfy the ILA work-
preservation defense because it could not show: (1) that its
objective was to preserve work it traditionally performed;
and (2) that the contracting employers had the power to
assign the work. See id. at 637–42. Our decision in Kinder
Morgan vacated the Board’s ruling that ILWU violated
§ 8(b)(4)(D). Id. at 643. In doing so, we stated that “[a]
valid work preservation objective provides a complete
defense against alleged violations of [§] 8(b)(4)(D), as well
as against jurisdictional disputes under [§] 10(k).” Id. at
637. This part of our decision in Kinder Morgan departed
from the D.C. Circuit’s decision in Sea-Land, 884 F.2d 1407.
Sea-Land held that a union accused of violating § 8(b)(4)(D)
for failing to abide by an adverse § 10(k) decision cannot
invoke the ILA work-preservation defense because such a
defense undermines the Board’s ability to conclusively
resolve jurisdictional disputes. See id. at 1411–13. We are
persuaded by the reasoning in Sea-Land.
7
We grant ILWU’s motion to take judicial notice of the Board’s
Answering Brief before the Kinder Morgan court.
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 25
The Supreme Court cases cited in Kinder Morgan do not
support a contrary result because they involved § 8(b)(4)(B)
charges arising from allegations of secondary activities. See
Kinder Morgan, 978 F.3d at 637–38 (citing Nat’l
Woodwork, 386 U.S. at 644–46; ILA, 447 U.S. at 503–
07; ILA II, 473 U.S. at 79–82). The case Kinder Morgan
cites that directly considers the availability of a work-
preservation defense to a § 8(b)(4)(D) charge was Recon,
424 F.3d 980. See Kinder Morgan, 978 F.3d at 637.
Somewhat confusingly, Recon involved a different type of
work-preservation defense.
The work-preservation defense in Recon stemmed from
the Board’s decision in Highway Truckdrivers & Helpers,
Local 107 (Safeway), 134 NLRB 1320 (1961). See Recon,
424 F.3d at 987–91. There, the Board held that a bona fide
jurisdictional dispute does not exist where an employer
reassigns work, from one union with a contractual right to
perform it to another union that had no previous claim to the
work, because “[s]ections 8(b)(4)(D) and 10(k) were
designed to resolve competing claims between rival groups
of employees, . . . not to arbitrate disputes between a union
and an employer where no such competing claims are
involved.” Safeway, 134 NLRB at 1322 (emphasis added).
Safeway explained that the dispute there was not a
jurisdictional dispute at all. Id. at 1323. Rather, the
employer created the dispute by his unilateral action, and
except for the employer’s decision to reallocate the union’s
work, the employees to whom the employer transferred the
work would have had no valid claim to it. Id.; see also CBS,
364 U.S. at 582 (explaining that § 8(b)(4)(D) and § 10(k)
presume “that the employer has been placed in a situation
where he finds it impossible to secure the benefits of stability
26 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
from” his contracts with two competing unions, “not because
he refuses to satisfy the unions”).
Unlike the parties in Safeway, all parties to this dispute
agree that this case presents a “classic jurisdictional
dispute,” in which both unions are contractually entitled to
perform SSA Terminals’ maintenance and repair work. As
such, the work-preservation defense described in Safeway
does not apply. Though the parties did not litigate the
question in Kinder Morgan, the Safeway work-preservation
defense—which really asks whether there is a jurisdictional
dispute to begin with—does not lend support to the
proposition that the ILA work-preservation defense is
available to defend against a § 8(b)(4)(D) charge.
Finally, ILWU and PMA urge us to hold that the ILA
work-preservation defense should at least apply to a
§ 8(b)(4)(D) charge where the accused union’s activities
were an attempt to enforce a bargained-for work
modernization clause that anticipates changes in the way
work is performed. We are not persuaded. First, as we have
explained, the statutory scheme is not designed to allow
circumvention of the Board’s § 10(k) determination without
consequence. Second, ILWU’s and PMA’s suggested
exception offers little in the way of a limiting principle
because work modernization clauses aimed at preserving
union work in the face of advances in technology are
commonplace. Both collective bargaining agreements at
issue in this dispute, for example, contain work
modernization clauses.
ILWU and PMA also stress that bargained-for
modernization clauses are beneficial to all concerned
because they minimize the risk of labor disputes and serve
to preserve work for unions. We acknowledge the important
INT’L LONGSHORE & WAREHOUSE UNION V. NLRB 27
benefits of work modernization clauses, see Kinder Morgan,
978 F.3d at 639–40, but the concern that the Board will
disregard bargained-for contract provisions is unfounded.
Indeed, the Board necessarily considers the terms of the
parties’ collective bargaining agreements when deciding the
merits of their respective claims to the disputed work. See
Texas Tile, 404 U.S. at 132 n.26; Int’l Ass’n of Machinists,
Lodge No. 1743, 135 NLRB 1402, 1410–11 (1962). Nor
does today’s decision relieve the Board of its obligation to
take a holistic approach when defining a labor organization’s
“traditional work,” a task that is particularly important—and
nuanced—when a jurisdictional dispute arises from
technological advances in an employer’s operations. See
ILA, 447 U.S. at 505–08 (directing the Board to take a
holistic approach when defining “traditional work” to avoid
the risk of forcing unions and employers into “intransigence”
when adapting to new technology).
IV.
Allowing the ILA work-preservation defense to defeat a
§ 8(b)(4)(D) charge for failing to abide by a § 10(k) decision
would frustrate the scheme Congress enacted to conclusively
resolve jurisdictional disputes. Accordingly, we hold that
ILA work-preservation is not a defense to an unfair labor
practice charge under § 8(b)(4)(D) and overrule the passage
in Kinder Morgan that states otherwise. 8 The petitions of
8
Pursuant to SEC v. Chenery Corp., 318 U.S. 80, 95 (1943), ILWU and
PMA urge us to not consider the Board’s argument to overrule Kinder
Morgan in part because it was not a ground the Board relied upon when
adjudicating the § 8(b)(4)(D) charge. Chenery does not prevent us from
determining whether a prior decision of our court is correct as a matter
of law. See Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 304 (D.C.
Cir. 2015) (explaining that Chenery applies to “determination[s]
28 INT’L LONGSHORE & WAREHOUSE UNION V. NLRB
ILWU (No. 23-632) and PMA (No. 23-658) challenging the
Board’s order are DENIED and the Board’s cross-petition
for enforcement (No. 23-780) is GRANTED.
specially entrusted to an agency’s expertise” and not determinations that
“a court usually makes”); see also Loper Bright, 603 U.S. at 373–74.