Amicus Curiae Brief — South Carolina State Ports Authority, et al., Petitioners v. National Labor Relations Board, et al.

No. 23-325

IN THE

Supreme Court of the United States

SOUTH CAROLINA STATE PORTS AUTHORITY, ET AL.,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, ET AL.,

Respondents.

On Petition for Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA, SOUTH CAROLINA CHAMBER OF COMMERCE, AND NATIONAL

ASSOCIATION OF MANUFACTURERS AS AMICI

CURIAE SUPPORTING PETITIONERS

BRIAN WEST EASLEY

COURTNEY L. BURKS

JONES DAY

90 S. 7th St., Ste. 4950

Minneapolis, MN 55419

NOEL J. FRANCISCO

Counsel of Record

ANTHONY J. DICK

RYAN M. PROCTOR

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-5485

njfrancisco@jonesday.com

Counsel for Amici Curiae

(Additional counsel listed on inside cover)

STEPHANIE A. MALONEY

TYLER S. BADGLEY

U.S. Chamber Litigation

Center

1615 H Street, NW

Washington, DC 20062

ERICA KLENICKI

MICHAEL A. TILGHMAN II

NAM Legal Center

733 Tenth Street, NW

Suite 700

Washington, DC 20001

Counsel for Amici Curiae

(continued from front cover)

i

QUESTIONS PRESENTED

1. Whether a union’s unlawful secondary boycott is

shielded by the work-preservation defense because

the targeted secondary employer could choose to take

its business elsewhere and, in that way, can “control”

the primary employer’s work assignments.

2. Whether a union’s unlawful secondary boycott is

shielded by the work-preservation defense even when

no bargaining unit jobs are threatened.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

TABLE OF AUTHORITIES..................................... iii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT .............................................................. 6

I.

II.

The Fourth Circuit’s Decision Eviscerates the Ban on Secondary Boycotts. .............. 7

A.

The Fourth Circuit’s Decision

Blurs the Critical Line Between

Work Preservation and Acquisition. ........................................................ 9

B.

The Fourth Circuit’s Decision

Nullifies the Requirement of Employer Control over Work Assignments. .................................................. 12

The Fourth Circuit’s Decision Will Distort the Law and Damage the Economy. ...... 16

A.

The Fourth Circuit’s Decision Undermines Congress’s Clear Intent. ..................................................... 17

B.

The Fourth Circuit’s Decision

Threatens the State and National

Economy. ............................................. 19

CONCLUSION ......................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bill Johnson’s Restaurants, Inc. v.

NLRB,

461 U.S. 731 (1983) ................................................ 8

Cemex Constr. Materials Pac., LLC,

372 NLRB No. 130 (2023) ...................................... 4

Connell Constr. Co. v. Plumbers &

Steamfitters Loc. Union No. 100,

421 U.S. 616 (1975) .............................................. 18

Deangulo, Clifton (York Corp.),

121 N.L.R.B. 676 (1958)....................................... 13

Hooks ex rel. NLRB v. Int’l Longshore &

Warehouse Union,

544 F. App’x 657 (9th Cir. 2013).......................... 15

ILA v. Allied Int’l, Inc.,

456 U.S. 212 (1982) .............................................. 13

Int’l Longshore & Warehouse Union v.

NLRB,

705 F. App’x 1 (D.C. Cir. 2017) ............................ 15

Loc. Union No. 25, A/W Int’l Bhd. of

Teamsters, Chauffeurs,

Warehousemen & Helpers of Am. v.

NLRB,

831 F.2d 1149 (1st Cir. 1987) .............................. 15

Longshoremen Loc. 1291

(Holt Cargo Sys.),

309 N.L.R.B. 1283 (1992)..................................... 10

iv

Marrowbone Dev. Co. v. Dist. 17, United

Mine Workers of Am.,

147 F.3d 296 (4th Cir. 1998) ................................ 13

McLaren Macomb,

372 N.L.R.B. No. 58 (2023) .................................... 4

Nat’l Woodwork Mfrs. Ass’n v. NLRB,

386 U.S. 612 (1967) .................................. 12, 17, 18

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,

429 U.S. 507 (1977) ................ 10, 12, 13, 14, 15, 18

NLRB v. Int’l Longshoremen’s Ass’n,

447 U.S. 490 (1980) .................................... 9, 10, 13

Sheet Metal Workers, Loc. Union No. 91

v. NLRB,

905 F.2d 417 (D.C. Cir. 1990) ................................ 8

Teamsters Loc. 610

(Kutis Funeral Home),

309 N.L.R.B. 1204 (1992)..................................... 10

Tesla, Inc.,

370 N.L.R.B. No. 88 (2021) .................................... 4

Thryv, Inc.,

372 N.L.R.B. No. 22 (2022) .................................... 4

STATUTES

National Labor Relations Act,

29 U.S.C. § 151 et seq. .................. 1, 3–8, 13, 16–19

29 U.S.C. § 151 ....................................................... 6

29 U.S.C. § 158 ............................. 3, 7, 8, 16–18, 23

v

OTHER AUTHORITIES

David M. Ebel, Subcontracting Clauses and

Section 8(e) of the National Labor Relations Act, 62 Mich. L. Rev. 1176 (1964) ............... 13

H.R. Rep. No. 80-245 (1947)................................ 13, 17

Letter of Commissioner Sola to

President Joe Biden (June 24, 2022)............. 21, 22

Kris Maher, Strikes Becoming More Common

Amid Inflaction, Tight Labor Market,

Wall St. J., Sept. 16, 2022.................................... 22

Memorandum GC 21-04, NLRB General

Counsel (Aug. 12, 2021) ......................................... 4

Memorandum GC 23-04, NLRB General

Counsel (Mar. 20, 2023) ......................................... 4

Office of Inspector General, Report of

Investigation, OIG-I-569

(July 8, 2023) .......................................................... 5

Sup. Ct. R. 37.6 ............................................................ 1

Dr. Joseph C. Von Nessen, The Economic Impact of the South Carolina

Ports Authority: Statewide and Regional Analysis, University of South

Carolina Moore School of Business

(Oct. 2023) ............................................................ 20

Jennifer Williams-Alvarez & Mark Maurer,

Auto Industry Finance Chiefs Watch for

Ripple Effects from UAW Strike,

Wall St. J., Sept. 22, 2023.................................... 22

1

INTEREST OF AMICI CURIAE

The Chamber of Commerce of the United

States of America (the “Chamber”) 1 is the world’s

largest

business

federation.

It

represents

approximately 300,000 direct members and indirectly

represents the interests of more than three million

companies and professional organizations of every

size, in every industry sector, and from every region of

the country. An important function of the Chamber is

to represent the interests of its members in matters

before Congress, the Executive Branch, and the courts.

To that end, the Chamber regularly files amicus

curiae briefs in cases, like this one, that raise issues

of concern to the nation’s business community.

The Chamber and its members have an interest in

the critical protection afforded by the “secondary

boycott” provisions in the National Labor Relations

Act (“NLRA”), 29 U.S.C. § 151 et seq., which make it

unlawful for a union to entangle “neutral” parties in

labor disputes involving other employers. A proper

and effective application of that prohibition is

essential to the free flow of commerce.

The South Carolina Chamber of Commerce

(the “State Chamber”) is a not-for-profit, statewide

organization with a purpose to represent the interests

of South Carolina’s business community. The State

Chamber’s mission is to serve as the leading voice for

business in South Carolina with a vision of making

1 Pursuant to this Court’s Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part

and no entity or person, aside from amici curiae, their members,

or their counsel, made any monetary contribution intended to

fund the preparation or submission of this brief.

2

South Carolina’s economy the most vibrant in the

United States, creating opportunity and prosperity for

all.

The State Chamber’s membership comprises

businesses from across the state and across industries,

from startups and family-owned businesses to multinational enterprises—all of whom call South Carolina

home. The State Chamber aims to protect the

interests of South Carolina’s business community by

identifying and addressing issues that may impair

economic development and growth, and routinely

participates in state and federal litigation as an

amicus. The State Chamber has a keen interest in

defending and promoting the state’s right-to-work

status.

The State Chamber’s member companies rely on

the efficient and reliable movement of goods to and

from the South Carolina State Ports Authority, as

they look to remain competitive in a global

marketplace and recognize the crucial role the SCSPA

plays as an economic engine for the entire

Southeastern United States.

The National Association of Manufacturers

(“NAM”) is the largest manufacturing association in

the United States, representing small and large

manufacturers in all fifty states and in every

industrial sector. Manufacturing employs nearly 13

million men and women, contributes over $2.8 trillion

to the U.S. economy annually, has the largest

economic impact of any major sector, and accounts for

over half of all private-sector research and

development in the nation. The NAM is the voice of

the manufacturing community and the leading

3

advocate for a policy agenda that helps manufacturers

compete in the global economy and create jobs across

the United States.

Amici submit this brief in support of Petitioners

South Carolina State Ports Authority and State of

South Carolina to illustrate how the underlying

opinions of the Fourth Circuit and the National Labor

Relations Board undermine the statutory purposes of

the NLRA and erode the protection against unlawful

secondary boycott activities.

SUMMARY OF ARGUMENT

In this case, the National Labor Relations Board

(“NLRB”) broke with both this Court’s and its own

precedent and blessed an unlawful secondary boycott

that the International Longshoreman Association

(“ILA”) used to tighten its grip on container work at

ports on the east coast. Rather than correct this error,

the Fourth Circuit adopted the Board’s erroneous

reasoning, eviscerating the longstanding ban on

secondary boycotts and threatening dramatic

consequences for both labor law and the national

economy.

In upholding the ILA’s secondary pressure tactics,

the Fourth Circuit ignored the plain language and

clear purpose of the NLRA. The Act is explicit. Section

8(b)(4) makes it an unfair labor practice for a union

“to threaten, coerce, or restrain any person engaged in

commerce” with the goal of forcing that person “to

cease doing business with any other person.” 29 U.S.C.

§ 158(b)(4)(ii)(B). That is exactly what happened here:

The ILA coerced a group of maritime shipping carriers

to cease doing business at the Port of Charleston

unless the port authority acceded to the union’s

4

separate demand to hire more union workers for new

jobs operating lift equipment. As the dissenting Board

member explained, “[y]ou could not ask for a more

classic case of unlawful secondary pressure.” App.

101a (dissent of Member Ring). And as Judge

Niemeyer explained in his dissent from the Fourth

Circuit panel majority, this is exactly the type of

“‘dangerous” union practice that “widen[s] industrial

conflict by creating coercive pressures on neutral

employers.” App. 48a.

By upholding this “classic” secondary boycott, the

Fourth Circuit’s decision enables a disturbing recent

trend at the NLRB. The current Board is deliberately

abandoning precedent and tilting the playing field in

favor of unions, while ignoring statutory directives to

the contrary. See, e.g., Cemex Constr. Materials Pac.,

LLC, 372 NLRB No. 130 (2023) (disregarding over

fifty years of precedent by forcing employers to

recognize unions without first holding a secret-ballot

election); McLaren Macomb, 372 N.L.R.B. No. 58

(2023) (holding that the NLRA prohibits standard

confidentiality and non-disparagement terms in

settlement); Thryv, Inc., 372 N.L.R.B. No. 22 (2022)

(allowing, for the first time, consequential damages in

unfair labor practice cases for any “direct and

foreseeable” financial harms); Tesla, Inc., 370 N.L.R.B.

No. 88 (2021) (ignoring sixty years of precedent by

prohibiting commonplace workplace dress codes and

uniform policies that limit but do not ban display of

union insignia); cf. Memorandum GC 21-04, NLRB

General Counsel (Aug. 12, 2021), and Memorandum

GC 23-04, NLRB General Counsel (Mar. 20, 2023)

(identifying numerous precedents the NLRB General

Counsel intends to challenge). It has even resorted to

5

violating procedural rules for union elections to create

pro-union outcomes, as an Inspector General report

recently found. See Office of Inspector General, Report

of Investigation, OIG-I-569 (July 8, 2023), available at

https://tinyurl.com/2p8nx4s6.

Part of the balance struck by the NLRA is that

unions cannot deploy pressure tactics against

companies with whom they have no direct dispute to

extract concessions from other employers. In this case,

the Fourth Circuit ignored that principle and

distorted the NLRA in ways that will have dramatic

consequences for both the law of secondary boycotts

and the broader national economy. The Fourth

Circuit’s decision conflicts with the holdings of at least

three other circuits, including the Ninth, meaning

that the same union pressure tactics that are banned

by statute on the west coast are now purportedly

protected by the same federal statute on the east coast.

The practical consequences of the Fourth Circuit’s

decision in this very case should not be overlooked.

With the union’s secondary boycott still in place, the

new state-of-the-art Leatherman Terminal at the Port

of Charleston is lying virtually dormant because no

carriers are willing to deposit their cargo there, since

the union now has a free hand to retaliate against

them if they do. And other ports and shippers

throughout the east coast will be vulnerable to similar

boycotts—boycotts that are illegal under governing

precedent in the west coast. This comes at precisely

the time when the nation’s supply chain is most in

need of additional capacity. That stark result is at

odds not only with common sense, but also with the

law. This Court should grant review and reverse the

decision below.

6

ARGUMENT

An overriding objective of the NLRA is to

“minimize industrial strife” and to “eliminate …

substantial obstructions to the free flow of commerce.”

29 U.S.C. § 151. As a result, the ban on secondary

boycotts has long been a feature of American labor law.

Simply put, the ban on secondary boycotts prohibits

unions from targeting one company with economic

pressure in order to influence a different company to

make pro-union concessions. For example, a union

cannot call for a strike against employer A in order to

make it stop doing business with employer B as a way

of pressuring employer B to hire union workers.

This case involves a slightly different form of

secondary pressure that is no less pernicious and

unlawful. The union here filed a dubious $300 million

lawsuit against a group of maritime shippers,

threatening them with substantial liability unless

they stopped calling at the Port of Charleston. The

avowed purpose of the suit is to deprive the Port of the

shippers’ business, and pressure the Port to hire union

workers to operate lift equipment at the new

Leatherman Terminal, even though lift-equipment

operators at the Port have always been non-union

public employees.

Instead of enjoining this classic secondary boycott,

the Fourth Circuit sharply departed from precedent

and upheld it. To do so, the Fourth Circuit distorted

and expanded what has previously been understood

as a very narrow exception to the secondary boycott

prohibition. Under the so-called “work preservation”

exception, a union may pressure one employer to

influence another employer’s hiring decisions only if

7

two strict conditions are met: First, the union’s action

must genuinely be aimed at “preserving” existing

union jobs rather than acquiring new ones. Second,

the targeted employer must have actual “control” over

the employees of the second employer. Here, neither

of those conditions is met: The union’s attack on the

maritime shippers is designed to acquire new jobs at

the Leatherman Terminal, not to preserve preexisting union jobs. Moreover, the shippers do not

“control” the port employees, who are employed and

controlled exclusively by the port authority.

The Fourth Circuit’s contrary decision lends a

judicial imprimatur to the Board’s recent trend of

ignoring precedent in ways that are both inconsistent

with the NLRA and contrary to employer and

employee interests. This decision is inflicting

immediate harm on South Carolina and the entire

east coast, and threatening serious consequences for

the nation’s supply chain. In other words, the Fourth

Circuit is enabling the very harms that the NLRA is

meant to prevent.

I.

The Fourth Circuit’s Decision Eviscerates

the Ban on Secondary Boycotts.

The NLRA prohibits secondary boycotts. The

statute makes it unlawful to “threaten, coerce, or

restrain any person engaged in commerce” with the

objective of “forcing” that person “to cease doing

business with any other person.” 29 U.S.C.

§ 158(b)(4)(ii); see also id. § 158(e) (prohibiting the use

of “any contract or agreement” to achieve the same

end). Here, the ILA has done exactly that: It has sued

a group of shipping carriers seeking $300 million in

damages to force them to stop doing business at the

8

new Leatherman Terminal of the Port of Charleston.

The gravamen of the lawsuit is that ILA’s collectivebargaining agreement with the U.S. Maritime

Alliance requires the carriers to stop calling at the

Leatherman Terminal because the South Carolina

State Ports Authority (“SCSPA”), which runs the

Terminal, is adhering to its longstanding practice of

using non-union state employees to perform liftequipment work there. The union’s conduct is thus a

classic secondary boycott: It is coercing the carriers to

stop doing business at the Terminal unless a different

party—the SCSPA—accedes to the union’s demands

to hire more union workers.

It makes no difference that ILA has chosen a

lawsuit to enforce its collective-bargaining agreement

as its means of pressuring the carriers. “It is well

established that the otherwise lawful exercise of

rights afforded by a collective bargaining agreement

can become unlawful when aimed at securing an

objective proscribed by section 8(b)(4).” Sheet Metal

Workers, Loc. Union No. 91 v. NLRB, 905 F.2d 417,

424 (D.C. Cir. 1990); accord Bill Johnson’s

Restaurants, Inc. v. NLRB, 461 U.S. 731, 737 n.5

(1983); App. 13a.

In the proceedings below, the Administrative Law

Judge (“ALJ”) recognized that the union’s conduct was

flatly illegal. App. 153a–54a. But the Board reversed

that decision, upholding the union’s pressure

campaign under the so-called “work preservation”

defense. App. 71a–72a. And the Fourth Circuit

affirmed that conclusion. App. 24a, 27a. In reaching

that result, the Board and the Fourth Circuit

misapplied the law in a way that guts the NLRA’s

prohibition on secondary boycotts.

9

This Court has laid out a two-part test to

determine if a union pressure campaign is authorized

under the work-preservation defense: First, the union

“must have as its objective the preservation of work

traditionally performed by employees represented by

the union.” NLRB v. Int’l Longshoremen’s Ass’n, 447

U.S. 490, 504 (1980) (“ILA I”) (emphasis added). In

other words, while the union may seek to preserve its

members’ jobs, it cannot pressure an employer to

award its members new jobs that they have not

previously performed. And second, the employer

targeted by the union’s pressure tactics must actually

“have the power to give the employees the work in

question.” Id. The union cannot target one employer

as a way of indirectly coercing the hiring decisions of

a different employer. If the union fails either prong of

this test, then its conduct is prohibited.

Applying that test here should have been easy.

The ILA’s members have never performed liftequipment work at the Port of Charleston, and the

carriers targeted by the ILA have no control over who

is assigned that work. But instead of following that

simple path, the Fourth Circuit distorted both prongs

of the law to favor the union.

A. The Fourth Circuit’s Decision Blurs the

Critical Line Between Work Preservation and Acquisition.

The purpose of the ILA’s pressure campaign

against the carriers was clearly not to preserve its

members’ jobs at the Port of Charleston, but instead

to acquire new jobs that its members had never before

performed at the Port. In reaching a contrary result,

the Fourth Circuit conflated work preservation with

10

work acquisition. The result of this conflation will be

to dramatically increase the range of circumstances

when unions are allowed to engage in pressure

campaigns—wielding them not as a shield to preserve

their own jobs, but as a sword to take away the jobs of

non-union employees.

The distinction between work preservation and

work acquisition is clear and longstanding. The

proper inquiry looks to the traditional division of work

between union and non-union members at the

particular job site in question. As this Court has

explained, when distinguishing between preserving

existing work and acquiring new work, “the Board

must focus on the work of the bargaining unit

employees, not on the work of other employees …

doing the same or similar work.” ILA I, 447 U.S. at

507. For instance, the union members in Pipefitters

had “[t]raditionally … performed the internal piping

on heating and air-conditioning units on the jobsite”

as a general matter. 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, 429 U.S. 507, 512 (1977). But because they

had no history of doing so at the particular “site” they

were boycotting, this Court held they were not

engaged in work preservation. Id. at 530.

The NLRB’s previous decisions have honored this

basic point. See, e.g., Longshoremen Loc. 1291 (Holt

Cargo Sys.), 309 N.L.R.B. 1283, 1286 (1992) (“With

the exception of one brief period 20 years ago … the

Union has never performed this work at the Terminal.

Its claim that it was entitled to preserve its work is

unavailing, because it performed no work that was

capable of preserving.” (emphasis added)); Teamsters

11

Loc. 610 (Kutis Funeral Home), 309 N.L.R.B. 1204,

1206 (1992) (union jobs outside local union does “not

establish a work-preservation interest”). Thus, if a

union wants to justify its conduct by asserting a

purpose of job preservation, it must show that its

members have traditionally performed the jobs in

question at the location in question.

Applying that local-job-site principle here, this

case is straightforward. As the ALJ correctly found,

union members have never performed lift-equipment

work at the Port of Charleston. App. 113a. Instead, for

nearly five decades, the Port has operated under a

“hybrid” model where some other work has been

handled by union members, but lift-equipment work

has been consistently handled by state employees who

are not union members. Id. As a result, the ILA’s effort

to have lift-equipment jobs taken away from nonunion state employees and reassigned to union

members at the Port of Charleston is plainly an

attempt at job acquisition, not job preservation.

Following the Board’s lead, the Fourth Circuit did

not disagree with the ALJ’s findings that non-union

members have always performed the relevant liftequipment work at the Port of Charleston. App 6a–7a,

18a; see App. 57a. Instead, the Fourth Circuit held as

a matter of law that the ILA’s pressure campaign was

properly aimed at work preservation because the ILA

represents other members at different ports who

perform the same type of work. The Circuit reasoned

that the ILA’s collective-bargaining agreements cover

“all ports from Maine to Texas,” including some ports

where lift-equipment work is performed by union

members. App. 18a. Thus, the Circuit held that by

insisting on union members taking the new lift-

12

equipment jobs at the Port of Charleston, the union

really was just preserving the general type of union

work at issue at a “coast-wide” level. App. 18a.

By adopting that rationale, the Fourth Circuit

defied this Court’s decisions and eviscerated the

distinction between work preservation and work

acquisition. Pipefitters squarely held that the job

“site,” not the general type of work a union’s members

“[t]raditionally” perform, sets the benchmark for the

work-preservation inquiry. 429 U.S. at 512, 530; supra

p. 10. The Fourth Circuit tellingly did not cite

Pipefitters on this point. See App. 15a-24a.

Moreover, “[t]he touchstone” for identifying

permissible work-preservation boycotts is that they

concern only the “relations of the contracting

employer vis-à-vis his own employees.” Nat’l

Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 645

(1967). But under the Fourth Circuit’s coast-wide

definition of the work in question, the work performed

by ILA members for SCSPA in Charleston is defined

with reference to what other ILA members outside of

the local union do for other employers at other ports in

different parts of the country. This topsy-turvy

approach to defining work “preservation” gives a

green light for unions to use pressure tactics to take

away jobs from non-union workers in places where

they have long worked, as long as any union anywhere

else performs the same type of work.

B. The Fourth Circuit’s Decision Nullifies

the Requirement of Employer Control

over Work Assignments.

The Fourth Circuit’s decision is even more

misguided in how it construed the second prong of the

13

work-preservation defense. Under the second prong, a

union must show that the targeted employer actually

has “the power to give [union] employees the work in

question.” ILA I, 447 U.S. at 504. This captures the

core purpose of the ban on secondary boycotts, which

is to prevent unions from targeting a neutral company

“in order to obtain work [from a different employer]

that the [neutral company] has no power to assign.”

Pipefitters, 429 U.S. at 521.

As the Fourth Circuit itself previously recognized,

this type of secondary pressure is hostile to the free

flow of commerce because it “tends to enlarge the

primary labor dispute between the union and the

‘unfair’ employer by involving neutral employers in

the controversy, thereby magnifying the disruptive

effects of the altercation on the economy.” Marrowbone

Dev. Co. v. Dist. 17, United Mine Workers of Am., 147

F.3d 296, 301 (4th Cir. 1998) (quoting David M. Ebel,

Subcontracting Clauses and Section 8(e) of the

National Labor Relations Act, 62 Mich. L. Rev. 1176,

1177 (1964)). Moreover, Congress found it unjust for

union boycotts to ensnare “neutral parties, ‘the

helpless victims of quarrels that do not concern them

at all.’” ILA v. Allied Int’l, Inc., 456 U.S. 212, 225,

(1982) (quoting H.R. Rep. No. 80-245, at 23 (1947)).

In Pipefitters, this Court recognized that the

Board had followed the power-to-assign test “at least

since 1958.” 429 U.S. at 525. In that year, the Board

held that a union violated the NLRA by mounting a

pressure campaign against its employer, a

subcontractor, that was “powerless” to give the union

additional work that the union sought to obtain from

the general contractor. Id. (citing Deangulo, Clifton

(York Corp.), 121 N.L.R.B. 676 (1958)).

14

A similar situation arose in Pipefitters itself.

There, a subcontractor had agreed with its union that

it would have its employees cut and thread pipe at the

job site. Id. at 512. The general contractor at the site,

however, decided to purchase pre-cut and prethreaded pipe for the job. Id. The subcontractor’s

union objected to having the cutting and threading

work taken away. Id. at 512–13. Its members thus

refused to handle pre-cut and pre-threaded pipe,

effectively pressuring the subcontractor to stop

working with the general contractor. Id. The Court

held that this “refusal to handle” was an unlawful

secondary boycott of the subcontractor, because the

subcontractor had no right to control the cutting and

threading work at issue. See id. at 524–28. It was

entirely up to the contractor what type of pipe it would

purchase for the job. And that the subcontractor could

have simply refused to work with the general

contractor—and instead work only for contractors

who would not use uncut and unthreaded pipe—was

irrelevant to the inquiry. Id.

Here, the Fourth Circuit blessed the Board’s

defiance of precedent and evisceration of the “power

to assign” test. Agreeing with the Board, it held that

the freight carriers were fair game to be targeted by

the union’s pressure tactics even though the carriers

have no control whatsoever over whether union

workers are assigned lift-equipment work at the Port

of Charleston. App. 24a–27a; see App. 72a. Indeed, the

Fourth Circuit acknowledged that SCSPA “exclusively

controls” the assignment of “the lift-equipment work

at the Port of Charleston.” App. 24a. But nevertheless,

the Circuit held that the carriers effectively do have

control over the assignment of the work in question,

15

because “they could bypass the Port of Charleston

entirely and call on other fully union ports.” Id.

(emphasis added) (cleaned up).

This reasoning conflates the ability to choose a

service provider with the right to control which

workers the service provider may employ. As a result,

it directly contradicts Pipefitters and guts the “power

to assign” test. After all, a company targeted by union

pressure can almost always decide to refuse to do

business with service providers that do not use union

labor, in favor of those that do. If that were enough to

show that the neutral company has the “power to

assign” the work in question, then the test would

virtually always be met. Secondary boycotts then

would be presumptively lawful, not unlawful.

This conflation also runs headlong into the

uniform view of other circuits. See, e.g, Hooks ex rel.

NLRB v. Int’l Longshore & Warehouse Union, 544 F.

App’x 657, 658 (9th Cir. 2013) (the “argument

regarding the shipping carriers[’] ability to bypass the

Port conflates the carriers’ control over their

containers with the legal question of whether they

have the ‘right to control’ the assignment of the work”

at the port); Int’l Longshore & Warehouse Union v.

NLRB, 705 F. App’x 1, 3 (D.C. Cir. 2017) (enforcing the

NLRB’s decision that “labor practices targeted against

… the shipping carriers, or any other neutral party to

pressure the Port to re-assign the dockside reefer

work [to union members] were unlawful secondary

boycotts targeting an employer that did not have the

right to control the work”); Loc. Union No. 25, A/W

Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen &

Helpers of Am. v. NLRB, 831 F.2d 1149, 1152 (1st Cir.

1987) (union engaged in unlawful secondary activity

16

by targeting subcontractor to pressure the contractor

to favor union jobs, when the contractor “alone

possessed and exercised the right to control the

work”).

If the Fourth Circuit’s contrary decision is left

standing, the same union pressure tactics will be

deemed illegal on the west coast and a statutory right

on the east coast. Absent the intervention of this

Court, any company on the east coast can be targeted

by a union pressure campaign on the theory that it

somehow has effective control over the work

assignments of other companies it deals with—

companies that the union wants to employ its

members. That opens the door to exactly the type of

secondary boycott activity—and all of the attendant

economic harms—that Congress expressly prohibited

when it enacted Sections 8(b)(4)(ii) and 8(e) of the

NLRA.

II. The Fourth Circuit’s Decision Will Distort

the Law and Damage the Economy.

As demonstrated above, the Fourth Circuit’s

decision in this case radically transforms the law of

secondary boycotts under the NLRA. Under the

correct approach, which the NLRB previously

followed, the “work preservation” inquiry served to

ensure that secondary boycotts could not happen.

Union pressure campaigns were allowed only as

defensive tactics targeting employers who had the

power to assign away jobs that union members were

already performing at a particular job site. But under

the Board’s and Fourth Circuit’s new approach,

unions can target companies with no power to assign

the jobs at issue, even if the union’s members have

17

never performed the jobs at the site in question. If that

approach were accepted it would turn the NLRA

upside down, converting the clear statutory ban on

secondary boycott activity into a presumptive

authorization. The consequences for the law and the

national economy would be dire.

A. The Fourth Circuit’s Decision Undermines Congress’s Clear Intent.

In essence, the Fourth Circuit’s decision seeks to

reauthorize a specific form of union misconduct that

Congress already squarely considered and rejected

over 75 years ago. Prior to the enactment of Section

8(b)(4), the ban on secondary boycotts was

temporarily lifted in 1932 under the NorrisLaGuardia Act, which “abolished … the distinction

between primary activity … and secondary activity.”

Nat’l Woodwork, 386 U.S. at 623. In the wake of that

change, it was widely recognized that the resulting

“[l]abor abuses of the broad immunity granted by the

Norris-LaGuardia Act” negatively affected commerce.

Id.; see also H.R. Rep. No. 80-245, at 95 (1947)

(Minority Report) (“No one can deny that labor unions

have engaged in some activities that are so clearly

unjustifiable that this Congress can and should

legislate against them immediately.”). As a direct

result, Congress enacted Section 8(b)(4) to reinstate

the ban on secondary activity targeting neutral

employers.

The current ban on secondary boycotts thus

represents Congress’s codified view of the correct

“balance to be struck” between the right of labor to

organize and require the primary employer to

bargain, and the need to prevent the type of “[l]abor

18

abuses” that had targeted neutral parties and

restricted the free flow of goods in commerce. Nat’l

Woodwork, 386 U.S. at 619, 623. As this Court has

explained, secondary boycotts are prohibited due to

their “significant adverse effects on the market and on

consumers—effects unrelated to the union’s

legitimate goals of organizing workers and

standardizing working conditions.” Connell Constr.

Co. v. Plumbers & Steamfitters Loc. Union No. 100,

421 U.S. 616, 624 (1975). Indeed, allowing a union to

target a neutral company with pressure tactics to

extract concessions from a different employer has

“substantial anticompetitive effects, both actual and

potential, that would not follow naturally from the

elimination of competition over wages and working

conditions.” Id. at 625.

The Fourth Circuit’s decision here undermines

Congress’s choice to ban secondary boycotts in two

clear respects. First, the entire point of the ban is that

a union seeking to obtain work from one employer

should not be able to pressure a different employer

(with no power to assign the work in question) as an

indirect way of achieving its demands. But that is

exactly what the Fourth Circuit’s decision allows.

While paying lip service to the “power to assign work”

test under Pipefitters, it says that an employer has the

power to assign work at a company whenever it could

choose to refuse to do business with that company in

favor of a different company that employs union labor.

Supra pp. 14–16. In practice, that logic has the

inevitable effect of blessing the exact type of

secondary boycott Section 8(b)(4) was designed to

prevent.

19

Second,

the

Fourth

Circuit’s

decision

impermissibly expands the permissible use of union

pressure campaigns, by allowing not only defensive

tactics to preserve union jobs, but also offensive tactics

to acquire new ones. Under the long-established

approach, unions could not pressure an employer to

award work at a job site that union members had

never previously performed. But under the Fourth

Circuit’s new departure from clear precedent, unions

can do exactly that if they represent other employees

who perform the same type of work at different job

sites. That declares open season on non-union jobs,

allowing them to be directly targeted by hard-knuckle

union tactics. It also raises the stakes dramatically for

representation fights at every job site, as a union

representing employees in one place would give it

leverage to coercively acquire the same type of work

at other sites.

None of this is consistent with the balance

Congress struck under the NLRA, which expressly

limits unions’ objectives to preserving jobs that union

members actually hold by negotiating directly with

the employer. The Fourth Circuit’s decision ignores

that balance, making other employers and other jobs

collateral damage.

B. The Fourth Circuit’s Decision Threatens

the State and National Economy.

The economic and competitive harm flowing from

the Fourth Circuit’s decision has already been felt in

the Port of Charleston and the state of South

Carolina, and if not remedied it will inflict lasting

harm on the entire east coast and the nation’s supply

chain.

20

South Carolina’s ports drive significant economic

growth, not only in the state of South Carolina, but

throughout the entire southeast region of the United

States. A recent economic impact study of the SCSPA

showed that “[t]he total economic impact resulting

from all activities associated with SC Ports on the

state of South Carolina is estimated to be

approximately $86.7 billion.” Dr. Joseph C. Von

Nessen, The Economic Impact of the South Carolina

Ports Authority: Statewide and Regional Analysis,

University of South Carolina Moore School of

Business, at 4 (Oct. 2023), https://scspa.com/wpcontent/uploads/sc-ports-economic-impact-study2023.pdf. The direct and indirect activities of the

SCSPA and other port users supports over 260,000

jobs across the state, or “1 out of every 9 jobs in South

Carolina.” Id. at 25. An additional $10.0 billion is

generated through business transactions outside of

South Carolina that require the use of South Carolina

port facilities. Id. at 4. Moreover, the “economic ripple

effect” caused by the direct and indirect activities of

the SCSPA and other port users outside of the state of

South Carolina, supports an additional 38,548 jobs

across the southeastern region of the United States.

Id. at 4, 14, 32.

Increasing activity at the Port of Charleston is

necessary to South Carolina’s development and to

driving economic growth for the southeastern United

States. But development of new terminals requires

significant investments, as demonstrated by South

Carolina’s over $1.5 billion invested in the

Leatherman Terminal. App. 105a. This investment in

economic development is wasted if carriers cease

doing business at the Terminal. And additional jobs—

21

including jobs for ILA union members and state

employees at the Port of Charleston, as well as jobs

that would be created through the Port’s “economic

ripple effect”—will not be created if the Leatherman

Terminal lies all but dormant.

Here, the ILA’s conduct has resulted in the

Leatherman Terminal sitting virtually idle, as

carriers have been deterred from calling there due to

the threat of hundreds of millions of dollars in

damages that the union is threatening through its

punitive lawsuit. By scaring the carriers away from

the Terminal, the union has thus effectively frustrated

the significant investment that South Carolina has

made in the Port to spark economic development in

the state and the region. It has also prevented job

growth for both the ILA’s members and others

throughout the state of South Carolina.

Moreover, the fact that the ILA’s actions are

occurring in a time of unprecedented disruption in the

global supply chain in major United States ports

compounds the harm to American consumers. As

recognized by Federal Maritime Commissioner Louis

E. Sola, the harm caused by significant

underutilization of the Leatherman Terminal will

impact our nation’s economy and the global supply

chain. Letter of Commissioner Sola to President Joe

Biden (June 24, 2022), https://www.fmc.gov/letter-ofcommissioner-sola-to-president-joe-biden-2/

(explaining that “the excessive backlog of vessels in

one major port creates a domino effect in all others

across the country”). The delays caused by carriers’

refusal to use the Leatherman Terminal without fear

of litigation by the ILA “contributes to the delay in the

import and export of needed commodities and

22

contributes to the general level of Co2 emissions as

ships loiter at sea awaiting an opening at the pier.” Id.

(“With every additional vessel queued up at sea

waiting for a berth, Americans suffer with empty

shelfs and higher prices.”). Artificially reducing

capacity through the authorization of ILA’s conduct

adds further strain to our already strained supply

chains.

The harm to South Carolina, the east coast, and

the country from this decision is also part of a broader

pattern of disruption caused by the extreme lengths

the present NLRB is willing to go to privilege union

interests above all other considerations. The Board

has eviscerated its precedents meant to ensure a

reasonable balance of employer and employee

interests, and even openly flouted its role as neutral

arbiter, in a ham-fisted effort to maximize union

victories. Supra pp. 4–5. The result has been economic

disruption throughout the country. Strikes tripled

between 2021 and 2022 and currently threaten to

cripple the domestic auto industry. 2 At a time when

Americans are facing sharp increases in the cost of

living and shortages of consumer goods, the country

needs a fair NLRB, not one that will countenance any

Kris Maher, Strikes Becoming More Common Amid

Inflaction, Tight Labor Market, Wall St. J., Sept. 16, 2022,

https://www.wsj.com/articles/more-workers-head-to-picketlines-amid-higher-inflation-and-a-tight-job-market11663320635; Jennifer Williams-Alvarez & Mark Maurer, Auto

Industry Finance Chiefs Watch for Ripple Effects from UAW

Strike, Wall St. J., Sept. 22, 2023, https://www.wsj.com/articles/auto-industry-finance-chiefs-watch-for-ripple-effects-fromuaw-strike-88c17372.

2 See

23

disruption that favors the short-term interests of

unions.

The Fourth Circuit erred in authorizing the ILA’s

conduct. It not only misapplied controlling precedent,

but also ignored the totality of the circumstances

surrounding the ILA’s conduct and harm it caused to

competition and the broader economy—the precise

type of harms Sections 8(b)(4)(ii) and 8(e) are intended

to prevent. If the Fourth Circuit’s decision remains

standing and its flawed analysis is applied in future

cases, both the economy and consumers will suffer

significant harm.

CONCLUSION

For the reasons explained, the Court should grant

certiorari, and hold that the ILA’s lawsuit against

USMX and its carrier members violates NLRA

Section 8(b)(4)(ii) and Section 8(e).

24

October 30, 2023

Respectfully submitted,

STEPHANIE A. MALONEY

TYLER S. BADGLEY

U.S. Chamber Litigation

Center

1615 H Street, NW

Washington, DC 20062

NOEL J. FRANCISCO

Counsel of Record

ANTHONY J. DICK

RYAN M. PROCTOR

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

ERICA KLENICKI

MICHAEL A. TILGHMAN II

NAM Legal Center

733 Tenth Street, NW

Suite 700

Washington, DC 20001

BRIAN WEST EASLEY

COURTNEY L. BURKS

JONES DAY

90 S. Seventh Street, Ste.

4950

Minneapolis, MN 55419

Counsel for Amici Curiae