International Longshoremen's Association, AFL-CIO, CLC, et al. v. United States Maritime Alliance, LTD, et al., 372 NLRB No. 36 (2022)

Summary: This case involves a dispute over the application of work preservation provisions in a collective bargaining agreement between the International Longshoremen's Association (ILA) and the United States Maritime Alliance, LTD (USMX), in the context of a new container handling facility at the Port of Charleston, South Carolina.

The Underlying ALJ Decision: The ALJ found that the ILA’s lawsuit against USMX and two of its carrier members, Hapag-Lloyd and OOCL, violated Section 8(b)(4)(ii)(A) and (B) and Section 8(e) of the National Labor Relations Act (NLRA).

The ALJ reasoned that the lawsuit, while based on facially valid work preservation provisions, had an unlawful secondary object of acquiring work not traditionally performed by the ILA bargaining unit. The ALJ found that the ILA sought to force USMX and its members to cease doing business with the South Carolina State Ports Authority (SCSPA) and the State of South Carolina at the new Leatherman Terminal unless the ILA performed all container work there, including lift equipment work traditionally performed by non-union state employees.

The ALJ rejected ILA's argument that the lawsuit had a lawful work preservation objective, finding no evidence of an actual or anticipated threat to ILA jobs. The ALJ also found that USMX and its carrier members did not have the power to assign the lift equipment work to ILA members, as that power resided with SCSPA.

The Board Decision: The Board reversed the ALJ’s decision, finding that ILA’s lawsuit had a lawful work preservation objective. The Board held that the ILA was attempting to preserve the traditional work of its members in the face of technological advances and that USMX and its carrier members had the power to control the work in question, specifically the loading and unloading of containers.

Key Cases Applied:

• National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612 (1967): The Supreme Court held that a work preservation agreement is lawful if its objective is to preserve work traditionally performed by bargaining unit employees.


• NLRB v. Pipefitters, 429 U.S. 507 (1977): The Supreme Court upheld the Board’s finding that a union's refusal to handle pre-threaded pipe violated Section 8(b)(4) because it was directed at the general contractor (who controlled the work), not the subcontractor (who had no power to assign the work).


• NLRB v. International Longshoremen's Association (ILA I), 447 U.S. 490 (1980): The Supreme Court established a two-part test for determining the lawfulness of a work preservation agreement: (1) the objective must be to preserve work traditionally performed by bargaining unit employees, and (2) the contracting employer must have the power to assign the work to those employees.


• NLRB v. International Longshoremen's Association (ILA II), 473 U.S. 61 (1985): The Supreme Court affirmed that work eliminated by technology can be the object of a work preservation agreement, as long as the objective is clearly one of work preservation.

The Board’s Reasoning:

The Board found that the ALJ had applied the work preservation test too narrowly by focusing on the specific lift equipment work at the new terminal instead of considering the broader scope of work traditionally performed by ILA members. The Board reasoned that the ILA's lawsuit was directed at preserving the traditional work of its members in the context of a coast-wide bargaining unit.

The Board distinguished this case from *NLRB v. Pipefitters*, finding that USMX and its carrier members had the power to control the work in question (loading and unloading containers) by virtue of their ability to bypass the Port of Charleston and call at other ports where ILA members performed all the work. The Board determined that this ability gave USMX the “right of control” over the work, satisfying the second part of the ILA I test.

The Dissent:

Member Ring dissented, arguing that the ILA's lawsuit lacked a lawful work preservation objective because USMX and its carrier members did not have the power to assign the lift equipment work to ILA members. He maintained that the work in question was the lift equipment work at the Leatherman Terminal, which the SCSPA controlled, and that USMX was merely a neutral employer in the dispute. He likened this case to *NLRB v. Pipefitters*, arguing that the ILA was using a lawsuit to indirectly pressure SCSPA to assign the work to ILA members.

Member Ring further criticized the Board's broad definition of the “work in question,” arguing that it amounted to a “cloak” for a work acquisition scheme.

Conclusion: The Board’s decision highlights the ongoing debate over the application of work preservation principles in the context of technological change. The Board’s decision emphasizes the importance of considering the scope of the bargaining unit and the employer's control over the disputed work when evaluating a work preservation defense. The Board’s focus on the broader scope of work traditionally performed by the ILA members, coupled with USMX’s ability to bypass the Port, ultimately tipped the scales in favor of a finding of lawful work preservation.