COLUMBIA, S.C. – Governor Henry McMaster has filed an amicus brief in S.C. State Ports Authority v. National Labor Relations Board, urging the U.S. Court of Appeals for the Fourth Circuit to end the International Longshoremen's Association's (ILA) ongoing "secondary boycott" of the S.C. State Ports Authority’s (SCSPA) new Hugh K. Leatherman, Sr. Terminal in North Charleston. 

On December 16, 2022, the National Labor Relations Board (NLRB), issued a split decision that reversed an Administrative Law Judge’s earlier ruling that the ILA's "secondary boycott" was unlawful. The national labor union’s "secondary boycott" has prohibited carriers from calling on the Leatherman Terminal unless and until SCSPA gives all container work at the new facility to ILA members, including the work traditionally and consistently performed by state employees.

“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,” said Governor McMaster. “I will not allow unions and their unlawful boycotts to hold our State’s resources, jobs, or supply chain hostage as they seek to advance their own self interests. South Carolinians have earned our prosperity, and we must continue to preserve it and enhance it, not bargain it away in response to labor union boycotts, third-party threats, or coercive pressure campaigns.”

"This court should not sanction the ILA’s indirect effort to extort new work from a third party by attempting to force the SCSPA to either convert a significant state asset into a ‘sunk cost’ or allow the ILA to acquire lift-equipment work traditionally and consistently performed at the Port by state employees, on state property, and using state equipment," the brief argues. "Full utilization of the Leatherman Terminal will provide both short- and long-term benefits for South Carolina’s transportation system, as well as much needed relief to the Wando Welch Terminal and associated infrastructure. Unfortunately, the ILA’s coercive tactics have needlessly exacerbated these problems and delayed utilization of the infrastructure intended and constructed to address them.” 

The brief continues, "The Court should not allow the ILA and the NLRB to put South Carolina at a competitive disadvantage in economic development by not allowing the State to realize the benefits of its investments in, and unleash the full potential of, the Leatherman Terminal and the Port of Charleston."

Background:

In operating the Port of Charleston, SCSPA has for decades used what is known as a hybrid division of labor, utilizing state employees to operate state-owned lift equipment to load and unload container ships that call at the Port’s Terminals, while ILA-represented employees perform the remainder of the longshore work at the Port.

As the State was close to opening the Leatherman Terminal, the U.S. Maritime Association sent SCSCPA a letter informing SCSPA that the Maritime Association’s collective bargaining agreement might prohibit the Maritime Association’s members from calling at the Leatherman Terminal because some jobs there were performed by state employees, rather than union members. The ILA demanded that SCSPA give all jobs at the Leatherman Terminal to union members. SCSPA insisted on continuing to use the labor model that SCSPA had successfully employed for 50 years.

Less than two weeks after the first ship called at the Leatherman Terminal in April 2021, the ILA sued the Maritime Association and the shipping line in New Jersey state court for $300 million. Soon other shipping lines began requiring that their ships call at other SCSPA terminals, for fear of also being sued by the ILA. 

SCSPA and the State, along with Maritime Association, filed unfair labor charges with the NLRB, claiming that the lawsuit in New Jersey violated multiple provisions of federal labor law because the ILA was trying to gain, rather than preserve, union jobs and because it sought an unlawful, secondary aim beyond pressuring the other party to the collective bargaining agreement.

The Administrative Law Judge ruled for SCSPA, ordering the ILA to drop the New Jersey lawsuit, but a divided NLRB panel reversed that decision. The SCSPA appealed the decision to the Fourth Circuit.

On Friday, April 7, the governor’s counsel filed an amicus curiae, or “friend of the court,” brief in support of SCSPA.

The Fourth Circuit is expected to hear oral arguments in S.C. State Ports Authority v. NLRB on June 6, 2023, in Baltimore, Maryland.

The full brief can be found here.