International Longshore and Warehouse Union v. National Labor Relations Board, No. 19-70297 (9th Cir. 2020)Annotate this Case
This appeal involves a years-long intra-union dispute over the right to perform certain maintenance and repair (M&R) work for Kinder Morgan Terminals (Kinder Morgan) at its Bulk Terminal facility in Vancouver, Washington.
The Ninth Circuit granted the petitions for review, denied the cross-petition for enforcement, vacated the Board's order, and remanded for further proceedings. First, the panel reaffirmed the well-settled rule that Section 10(k) of the National Labor Relations Act decisions are not res judicata in subsequent unfair labor practices (ULP) proceedings. Therefore, the panel held that the Board erred in deeming its 10(k) decision "dispositive" of the Longshoremen's work preservation defense. Second, the panel rejected the Board's construction of the work preservation defense, noting that the Supreme Court has twice disallowed such a narrow focus on past performance of the precise work in dispute as ill-suited to the holistic, circumstantial inquiry that is indispensable where, as here, parties strike agreements aimed at preserving union jobs in the face of technological threats to traditional union work. The panel held that the Board erred by disregarding this binding precedent and instead making past performance of the specific work at issue the beginning and end of its analysis. Third, the panel held that the 2008 collective bargaining agreement (CBA) encompasses the disputed work which both unions claim. In this case, the Board erred by using extrinsic evidence to inject ambiguity into the CBA's unambiguous terms and, by extension, assessing the Longshoremen's work preservation defense based on that erroneous construction.