Sometimes employers are subject to multiple collective bargaining agreements (CBA’s) that allow different unions to perform the same work for the employer. When this issue arises, the employer cannot resolve the dispute without breaching its obligation to one of the unions. This is known as a “jurisdictional dispute,” which gives rise to one of the rare occasions under the National Labor Relations Act that an employer can bring an unfair labor practice (ULP) charge against a union.
Ninth Circuit: Kinder Morgan Controls, Work-Preservation Defense Applies
A decision by the Ninth Circuit in International Longshore and Warehouse Union v. National Labor Relations Board (NLRB) stemmed from one such dispute between two unions - the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) – who both claimed the right under their CBA to perform certain work for SSA Terminals. Unable to resolve the dispute itself, SSA invoked section 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice (ULP) for a union to “threaten, coerce, or restrain” an employer with the goal of forcing the employer to assign work to employees in one union over another union. When the Board finds cause to believe section 8(b)(4)(D) has been violated, it can hold a hearing to award the disputed work to one of the competing unions. After doing so, the Board assigned the work to IAM.
Refusing to accept the Board’s decision, ILWU then filed a grievance under its CBA against SSA. The Board then filed a ULP against ILWU alleging that its pursuit of the grievance was illegal. ILWU contended that its grievance was lawful under the “work preservation” defense outlined in a 2020 Ninth Circuit decision (Kinder Morgan). Under this “work preservation” doctrine, a union’s conduct is legal if it engages in “primary” activity aimed against the employer itself as opposed to “secondary” activity which is aimed at one employer with the goal of inducing that employer to take some action against a third party with whom the union has a dispute.
The Board held ILWU was not entitled to invoke this “work preservation” defense, but the Ninth Circuit disagreed, holding that, even though Kinder Morgan involved allegations of secondary activity, this defense still applied to primary activity. As a result, the Board was directed to consider the application of the “work preservation” defense in the first instance.
Practical Takeaways for Employers
The Ninth Circuit’s decision confirms that, at least within its jurisdiction, a union may assert the “work-preservation” defense in response to a charge under Section 8(b)(4)(D), even where there is no allegation of secondary activity. This marks a significant expansion of the defense beyond its traditional use under Section 8(b)(4)(B) and introduces new procedural and strategic considerations for employers navigating jurisdictional disputes. Importantly, the decision signals that a union’s post–Section 10(k) grievance activity may be protected if it satisfies a two-part test: that the objective is to preserve work traditionally performed by its members, and that the employer has the authority to assign that work. The ruling may also narrow the Board’s practical ability to enforce jurisdictional determinations, potentially leading to continued inter-union disputes and exposing employers to double liability for work already reassigned under a valid Section 10(k) order. Employers with overlapping bargaining relationships or jurisdictional exposure under multiple CBAs should consult with experienced labor counsel early in the process—particularly when responding to grievances or arbitration demands that follow a Section 10(k) ruling.
If you have questions about this decision or related labor law issues, please contact one of our experienced labor and employment CDF attorneys.
*Special thanks to CDF law clerk Ryan Kim for his research and contributions for this article.
