The National Labor Relations Board (NLRB) files this supplemental reply brief in response to petitions for review and a cross-application for enforcement of an order by the NLRB. The core issue revolves around the interpretation and application of Section 8(b)(4)(D) of the National Labor Relations Act, which prohibits unions from engaging in secondary boycotts to force an employer to assign particular work.

The NLRB argues that the Ninth Circuit's decision in International Longshore & Warehouse Union v. NLRB (Kinder Morgan), 978 F.3d 625 (9th Cir. 2020), established an incorrect precedent by allowing secondary-boycott work-preservation claims to serve as a defense in jurisdictional disputes under Section 8(b)(4)(D). The NLRB contends that Kinder Morgan incorrectly interpreted prior Supreme Court cases, such as NLRB v. ILA, 447 U.S. 490 (1980), which dealt with work-preservation objectives under Section 8(b)(4)(B) (prohibiting secondary boycotts). The NLRB asserts that the ILA cases merely considered work-preservation as a factor in determining the lawfulness of a union's objective, not as a blanket defense that could shield a union from a Section 8(b)(4)(D) violation.

The NLRB's primary argument is that the rationale from NLRB v. ILA is inapplicable to Section 8(b)(4)(D) cases because, in jurisdictional disputes, the employer is typically innocent, and the Act provides a mechanism (Section 10(k) hearings) for the Board to resolve the dispute itself rather than simply prohibiting coercion. The D.C. Circuit, in Int’l Longshoremen’s & Warehousemen’s Union v. NLRB (Sea-Land Serv., Inc.), 884 F.2d 1407 (D.C. Cir. 1989), correctly held that work-preservation claims under Section 8(b)(4)(B) do not preclude a Section 10(k) jurisdictional dispute proceeding. The NLRB argues that Kinder Morgan directly conflicts with Sea-Land and overrules established Board precedent, such as Teamsters Loc. 107 (Safeway Stores, Inc.), 134 NLRB 1320 (1961), which outlines the framework for analyzing work-preservation claims in Section 8(b)(4)(D) disputes.

The NLRB further argues that the cases cited by the petitioners, including those involving ILWU's work-preservation agreements, treated such agreements as factors to be weighed in Section 10(k) proceedings, not as absolute defenses. The NLRB emphasizes that before Kinder Morgan, there was no expectation that work-preservation agreements would prevent the Board from resolving jurisdictional disputes. The Board believes Kinder Morgan sows industrial strife by allowing unions to pressure innocent employers and creates uncertainty regarding which circuit's precedent will apply.

Regarding the Section 10(k) award, the NLRB asserts that substantial evidence supports its decision to assign maintenance work at Terminal 5 to the International Association of Machinists and Aerospace Workers (IAM). The Board properly weighed the competing collective-bargaining agreements of both ILWU and IAM, finding that since both contracts covered the work, this factor neutralized itself. The NLRB argues that ILWU's contract did not hold superior weight due to its work-preservation clause, as IAM's contract also addressed automation and preserved work. The Board also contends that it reasonably inferred the employer's (SSA) preference for IAM, despite SSA's reluctance to state a preference at the hearing, by relying on testimony and other record evidence, which aligns with the Board's precedent in similar situations. The NLRB criticizes the petitioners' arguments that changed facts necessitate a remand, stating that such arguments were not presented to the Board and that the court lacks jurisdiction to consider them.

The NLRB concludes by requesting that the Court overrule Kinder Morgan, deny the petitions for review, and grant the Board's cross-application for enforcement of its order.

Significant Cases Cited

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