State lawmakers, organizations ask U.S. Supreme Court to overturn union port win

The Fourth Circuit Court of Appeals ruled in favor of the union in its fight for jobs at Leatherman terminal
A sign marks the site of a new South Carolina Ports Authority terminal named for longtime...
A sign marks the site of a new South Carolina Ports Authority terminal named for longtime state Sen. Hugh Leatherman on Monday, Oct. 25, 2021, in North Charleston, S.C. Currently, the International Longshoremen's Association is calling on the Biden administration for help resolving a labor dispute at the terminal. (AP Photo/Meg Kinnard)(Meg Kinnard | AP)
Published: Oct. 31, 2023 at 8:52 AM EDT|Updated: Oct. 31, 2023 at 1:06 PM EDT
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CHARLESTON, S.C. (WCSC) - As the U.S. Supreme Court decides if it will hear arguments in the ongoing dispute over 270 South Carolina port jobs and a $1.5 million port, several lawmakers and organizations are weighing in and urging the court to take up the case.

The National Right to Work Legal Defense Foundation on Friday filed an amicus brief in support of overturning the ruling from the Fourth Circuit Court of Appeals that sided with the International Longshoreman’s Association allowing them to fill every role at the $1.5 billion facility.

South Carolina has long run on a hybrid model that allows state employees to operate the cranes at state port facilities while other jobs are filled by union workers.

The NRWF in the brief argues that handing the crane jobs to the union would have continued consequences beyond the initial job loss of the state employees and violates secondary boycott rules.

They argue that even if the state employees were to join a contractor with a union contract those employees would be passed over in favor of union members with longer seniority.

The labor dispute began when the ILA sued the United States Maritime Alliance for sending shipping lines to Hugh K. Leatherman Terminal shortly after the completion of its first phase two years ago. The union alleged the move violated the terms of a master contract prohibiting the use of newly constructed terminals where ILA dockworkers do not perform all unloading tasks.

READ MORE: SC Ports asks US Supreme Court to overturn ruling on Hugh Leatherman Terminal

For years, the ILA union held master contracts with major shipping companies along the coast and those contracts are updated over time. The most recent contract states that at any newly-opened port, unless all the jobs from the ship to the gate are performed by union members, the shipping companies will not use the new port. That’s what’s been happening at the Hugh Leatherman terminal since it opened.

Shipping line containers subsequently called off. The South Carolina State Ports Authority viewed the move as an illegal strong-arm tactic to grab new lines of work and argued a solely unionized staff would increase operational costs. The state favored a narrow definition of the jobs entitled to ILA members that excluded “lift-equipment jobs” like cranes operation.

However, the U.S. Court of Appeals for the 4th Circuit endorsed a broader definition. Two of the three judges affirmed the National Labor Relations Board’s conclusion that “work” involved “the loading and unloading generally at East and Gulf Coast ports.”

The South Carolina Ports Association has called the practice a violation of secondary boycott laws. Because of the threat of lawsuits from the ILA, U.S. Maritime Association carriers will not use Leatherman.

“In their effort to maintain and expand their stranglehold on port employment all across the East Coast, ILA union bosses are putting the livelihoods of hundreds of Leatherman employees in jeopardy – employees who work side-by-side with unionized workers at Leatherman and have done nothing wrong,” National Right to Work Foundation President Mark Mix said. “The Supreme Court must reverse the Biden NLRB’s erroneous ruling letting this union gambit move forward, bearing in mind that the real victims here are the nonunion port workers whose jobs ILA officials want to seize.”

The nonprofit isn’t the only one to fill a brief in support of overturning the ruling.

Gov. Henry McMaster and Georgia Gov. Brian Kemp filed a brief in support of the SCSPA arguing the appellate court’s decision expanded the scope of the work-preservation doctrine beyond what was allowed under the National Labor Relations Act.

“The Leatherman Terminal is a state-of-the-art facility and a critical part of South Carolina’s economic-development portfolio and continued competitive advantage,” McMaster said. “I will not stand idly by and allow unions and their unlawful boycotts to hold our State’s resources, jobs, and supply chain hostage as out-of-state labor bosses seek to advance their own interests at the expense of state employees. South Carolinians have worked hard to earn our prosperity, and we must continue to preserve it and enhance it, not bargain it away under threats of labor union boycotts and coercive pressure campaigns. Particularly at a time when the Southeast is leading the nation in both population and job growth, I appreciate Governor Kemp joining me in this fight to maintain and advance our States’ shared interests in protecting our ports and enhancing our regional supply chain.”

“The Fourth Circuit’s decision creates a roadmap for unions to erode the equal dignity and sovereignty of the States,” the governors argue.

Ultimately, the decision will also impact Georgia’s Port of Savannah and North Carolina’s Port of Wilmington which both operate under hybrid models.

“The success of the Georgia Ports Authority speaks for itself, with the ports supporting hundreds of thousands of Georgia jobs and billions of dollars in revenues statewide,” Brian Kemp said. “To continue that momentum, it’s essential the port retains the authority to decide the appropriate operating model that secures long-term performance and benefits the consumer. By taking this action alongside our partners in South Carolina, we aim to support the future prosperity of our ports and the role of GPA in shaping that future.”

The brief argues that the Fourth Circuit’s decision undermines the pro-competitive principles that the NLRA was designed to protect and that the decision has allowed unions to use their power to harm businesses that are not unionized.

That argument was reiterated by South Carolina’s senators, Lindsey Graham and Tim Scott who also filed an amicus brief asking the court to take up the case.

“There is no doubting this case’s importance,” Graham and Scott said. “It is important for the people of South Carolina. It is important to ensure consistent application of the law nationwide. And it is important to vindicate the federal constitutional structure, so that the People remain governed by a nation of laws, rather than ruled by administrative fiat.”

The South Carolina Manufacturers Alliance said port choice is a decision that’s made based on the contents of a container, shipping routes, access to inland shipping and final destination.

“The Fourth Circuit’s coastwide view of the work caused it to treat containers of cargo as fungible, without regard to the contents of the particular containers,” the alliance said.

The U.S. Chamber of Commerce, South Carolina Chamber of Commerce and the National Association of Manufacturers said the court’s decision “blurs the critical line between work preservation and acquisition.”

“The result of this conflation will be to dramatically increase the range of circumstances when unions are allowed to engage in pressure campaigns—wielding them not as a shield to preserve their own jobs, but as a sword to take away the jobs of non-union employees,” court documents state.

The groups argue the “consequences for the law and the national economy would be dire” should the court uphold the Fourth Circuit’s decision.

They argue that the Fourth Circuit misapplied the precedents used when they ruled in favor of the union.

A response from the government’s original deadline has since been extended to Nov. 29.