On April 7, 2023, the NAM filed an amicus brief urging the Fourth Circuit to reverse an NLRB decision that eviscerates the long-standing prohibition on secondary boycotts. Although the NLRA protects the right to strike or picket a primary employer (an employer with whom a union has a labor dispute), it seeks to keep neutral employers from being dragged into the fray by making it unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer.
This case involves the South Carolina State Ports Authority (SCSPA), which has operated the Port of Charleston for the last 50 years by employing state workers to run lift-equipment and members of the International Longshoremen’s Association (ILA) to perform the other longshoreman work there. The SCSPA opened another terminal at the Port in 2022, requiring the same division of labor. ILA subsequently sued the United States Maritime Alliance (USMX)—a multi-employer association of carriers that deliver and pick up containers at the ports—and two of its carrier-members who used the new terminal for $300 million. ILA alleged that the USMX and the two carrier members were violating the parties’ collective bargaining agreement by using state employees to perform port work. USMX, the State of South Carolina and the SCSPA filed unfair labor charges against the union, maintaining that the lawsuit sought to obtain an illegal secondary objective in violation of the NLRA’s secondary boycott provision. The NLRB disagreed and ruled against the plaintiffs in a 2-1 decision, concluding that ILA’s lawsuit had a lawful work-preservation objective. Board member John Ring dissented, reasoning that this is a “classic case of unlawful secondary pressure.
We argue in our amicus brief that the ILA’s lawsuit is a quintessential secondary boycott: ILA is coercing the carriers to stop doing business at the new terminal unless a different party—the SCSPA—accedes to the union’s demands to hire more union workers to perform jobs that union members had never performed at the Port. The NLRB’s decision guts the distinction between work preservation and work acquisition and incorrectly concludes that carriers have control over the work assignments of another entity (the SCSPA). Allowing this decision to stand would turn the NLRA upside down, converting the clear statutory ban on secondary boycott activity into a presumptive authorization. All manufacturers have an interest in limiting this type of coercive and intimidating conduct by unions.
Unfortunately, on July 28, 2023, the Fourth Circuit denied the petition for review.