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 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 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.

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https://cdn.ca9.uscourts.gov/datastore/opinions/2026/08/20/23-632.pdf