Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Trump administration seeks rehearing en banc on work-preservation defense, (Aug 5, 2025)

By Brandi O. Brown, J.D.

The administration seeks to have the Ninth Circuit overrule Kinder Morgan, which was the basis for its June decision.

In June, a three-judge panel of the Ninth Circuit vacated an NLRB order directing the ILWU to cease and desist from pursuing maintenance work for SSA Terminals at the Port of Seattle. The panel found the Board erred when it determined that the work-preservation defense was not available in pure jurisdictional disputes, like this one, where multiple unions have valid contractual entitlements to the disputed work directly with the employer.

The court held that the Board’s position was foreclosed by International Longshore and Warehouse Union v. NLRB (Kinder Morgan). However, in a separate concurrence in the June decision, Judge Miller expressed the view that Kinder Morgan was wrongly decided and should be considered en banc.

Now, the Board has petitioned the Ninth Circuit for just that reason—requesting rehearing en banc and asking that the court overrule Kinder Morgan and, specifically, its “unprecedented application of the Section 8(b)(4)(B) work-preservation defense to alleged jurisdictional disputes under Section 8(b)(4)(D).”

Randomness caused by split.Kinder Morgan, the Board argues, “creates a circuit split on an issue of exceptional importance” and its “immunity applies at random.” In extending secondary-boycott work preservation to the jurisdictional-dispute context, it argues, Kinder Morgan squarely conflicts with longstanding D.C. Circuit precedent holding that the secondary-boycott defense cannot shield a union from the dispute-resolution process, and it immunizes unions from Board orders that Congress deemed necessary to “protect employers and the public from the detrimental economic impact of indefensible jurisdictional strikes.” The randomness results because an aggrieved party could always petition for review in the D.C. Circuit.

The case is No. 23-632.

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