In today’s News and Commentary, engineers and technicians reject Boeing’s contract proposals and authorize a strike, and the Ninth Circuit holds that unions charged under section 8(b)(4)(D) cannot invoke the work-preservation defense to disregard a 10(k) work assignment determination.

Members of the Society of Professional Engineering Employees in Aerospace (SPEEA), which represents approximately 17,000 Boeing engineers and technicians, rejected Boeing’s proposed contracts and authorized their bargaining teams to call a strike after the current agreements expire on October 6. Union members cited concerns that salaries have failed to keep pace with inflation and that SPEEA-jobs are moving out of state. Around 64% of members voted to reject the contracts, while nearly 88% voted to authorize a strike. SPEEA members previously went on strike for 40 days in 2000.

In ILWU v. NLRB, the en banc Ninth Circuit held that a union charged under section 8(b)(4)(D) cannot invoke the ILA work-preservation defense to justify disregarding a section 10(k) work assignment determination, overruling the contrary portion of its earlier decision in Kinder Morgan. Section 8(b)(4)(D) prohibits a union from using specified forms of pressure to force an employer to assign disputed work to employees of that union rather than employees of another. When the Board has reasonable cause to believe that a union has exerted such pressure, section 10(k) authorizes the Board to decide which competing group of employees is entitled to perform the work. In this case, employer SSA Terminals operated under overlapping collective bargaining agreements with ILWU and the Machinists, and both unions claimed the right to the same work. After the Board assigned the work to the Machinists, ILWU pursued a grievance and obtained an arbitral award requiring SSA to compensate ILWU for future lost work opportunities. The Board concluded that ILWU’s pursuit of that remedy unlawfully pressured SSA to disregard the section 10(k) determination. The en banc court denied ILWU’s petition for review and granted the Board’s cross-petition for enforcement.

The court explained that the ILA defense addresses a different statutory problem under section 8(b)(4)(B), the NLRA’s secondary-boycott provision. Section 8(b)(4)(B) generally prohibits a union from pressuring a neutral party in order to force that party to stop doing business with the employer involved in the underlying labor dispute, while leaving unions free to direct lawful primary pressure at that employer. The ILA work-preservation defense allows a union to defeat a section 8(b)(4)(B) charge by showing that its objective was to preserve work traditionally performed by its members and that the contracting employer had the power to assign that work. Section 8(b)(4)(D), by contrast, covers jurisdictional disputes, presupposing primary pressure because rival unions seek the same work from the same employer. According to the court, allowing the union that loses the section 10(k) proceeding to characterize its continued pursuit of the work as “work preservation” would let it circumvent the Board’s determination and prevent the statutory process from conclusively resolving jurisdictional disputes.