Governors McMaster and Kemp are asking the U.S. Supreme Court to rule against longshoremen’s boycott of the port terminal
COLUMBIA, S.C. – South Carolina Governor Henry McMaster and Georgia Governor Brian Kemp have filed a brief in support of the SC State Ports Authority (SCSPA)’s petition for a writ of certiorari in SC State Ports Authority v. National Labor Relations Board submitted. The governors’ brief asks the U.S. Supreme Court to grant the petition, correct the lower court’s decision, and end the International Longshoremen’s Association’s (ILA) ongoing “secondary boycott” of the SCSPA’s Hugh K. Leatherman Terminal in North Charleston, South Carolina, which threatens to disrupt port-related investments and operations in both South Carolina and Georgia.
On December 16, 2022, the National Labor Relations Board (NLRB) issued a separate decision reversing an administrative law judge’s earlier ruling that the ILA’s “secondary boycott” was unlawful. The ILA’s “secondary boycott” has prevented trucking companies from using the Leatherman Terminal unless and until SCSPA turns over all lifting work at the facility to ILA members, including work traditionally and regularly performed by state employees. For decades, both SCSPA and the Georgia Ports Authority (GPA) have used a hybrid work model in which state employees operate all government cranes at state ports. After the Fourth Circuit issued a 2-1 decision earlier this year affirming the NLRB’s decision, the SCSPA filed a petition for writ of certiorari on September 25, 2023, asking the U.S. Supreme Court to review and revoke this decision.
“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 Henry McMaster. “I will not stand idly by and allow unions and their unlawful boycotts to hold our state’s resources, jobs and supply chain hostage while foreign union bosses seek to advance their own interests at the expense of state workers. South Carolinians have worked hard to earn our prosperity, and we must continue to preserve and increase it, not bargain for it under the threat of union boycotts and coercive pressure campaigns. Particularly at a time when the Southeast is leading the nation in both population and job growth, I am pleased that Governor Kemp is joining me in this fight to advance our states’ shared interests in protecting our ports and improving our to maintain and advance the regional supply chain.”
“The success of the Georgia Ports Authority speaks for itself, as the ports support hundreds of thousands of jobs in Georgia and billions of dollars in revenue statewide,” said Governor Brian Kemp. “To maintain this momentum, it is important that the port retains the authority to decide on the appropriate operating model that ensures long-term performance and benefits the consumer. By taking these actions with our partners in South Carolina, we aim to support the future prosperity of our ports and the GPA’s role in shaping that future.”
“Unless this court grants the SCSPA’s petition and corrects the Fourth Circuit’s error, South Carolina will be unable to fully realize its $1.5 billion investment absent the indirect claims according to the ILA and allows the ILA to ‘consume’.”[e] “All jobs at the Leatherman Terminal and abandons the state’s longstanding decisions about how it will operate its ports and guarantee South Carolinians the right to work free from union coercion,” the brief states.
The document also states that “Georgia, like South Carolina, faces the same challenges with its port expansion plans.” “Without correction from this court, the Fourth Circuit’s authorization of indirect union coercion threatens to disrupt similar infrastructure investments and economic development initiatives in Georgia. The brief continues: “Allowing unions to threaten and thwart decades-long government investment strategies will hamper infrastructure maintenance and improvements, stifle economic development, and fail to incentivize supply chain improvements.”
In operating the Port of Charleston, SCSPA has for decades used what is known as a hybrid division of labor, in which state employees are assigned to operate state-owned cranes and lifting equipment to load and unload container ships calling at the port’s terminals, while ILA-deputized employees do the work the rest of the port work in the port.
With the state about to open the Leatherman Terminal, the US Maritime Association (USMX), whose members include shipping container carriers, sent the SCSPA a letter informing the SCSPA that USMX’s collective bargaining agreement with the ILA could potentially prohibit USMX members from using the Leatherman terminal because some of the work there was done by state employees rather than union members. The ILA demanded that the SCSPA hand over all jobs at the Leatherman Terminal to union members. SCSPA insisted on continuing to use the working model that SCSPA had successfully used for 50 years.
Less than two weeks after the first ship docked at the Leatherman Terminal in April 2021, ILA sued USMX and the shipping company in a New Jersey state court for $300 million. Other shipping companies soon demanded that their ships call at other SCSPA terminals for fear of also being sued by the ILA.
SCSPA and the state, along with USMX, filed an unfair labor conditions lawsuit with the NLRB, alleging that the New Jersey lawsuit violated several provisions of federal labor law because the ILA sought to attract rather than retain union jobs and because she was aiming for such an illegal, secondary goal that goes beyond exerting pressure on the other party to the collective agreement.
The administrative law judge ruled in favor of the SCSPA and ordered the ILA to drop the New Jersey lawsuit, but a divided NLRB panel overturned that decision. The SCSPA appealed the decision to the Fourth Circuit.
On April 7, 2023, Governor McMaster’s attorney filed an amicus curiae (or “friend of the court”) brief in support of the SCSPA.
On June 6, 2023, the Fourth Circuit heard oral arguments in SC State Ports Authority v. NLRB in Baltimore, Maryland.
On July 28, 2023, the Fourth Circuit issued a 2-1 ruling affirming the NLRB’s decision. The Fourth Circuit’s majority opinion held that the ILA’s actions did not constitute a secondary boycott prohibited by the National Labor Relations Act, but were instead permitted by a “job retention” exception. The dissenting judge strongly disagreed with the majority’s conclusion, insisting that the ILA could not possibly retain jobs because the ILA never operated the lifting facilities at the Port of Charleston. The dissent highlighted, among other things, comments from an ILA official who stated that the union wanted “100 percent” of the work at the Leatherman terminal and that the ILA was “interested in using up all the jobs.”
On September 25, 2023, SCSPA petitioned the U.S. Supreme Court for a writ of certiorari.
Like the SCSPA, the GPA has historically and consistently used a hybrid work model in which state employees operate all government-owned cranes at Georgia’s ports, and Georgia recently announced similar port expansion plans that may be derailed by the ILA’s secondary boycott , unless the U.S. Supreme Court corrects the Fourth Circuit’s decision.
On October 30, 2023, Governor McMaster’s counsel, along with Governor Kemp’s counsel, filed an amici curiae (or “friend of the court”) brief on behalf of the Governors in support of SCSPA’s petition.
Governor McMaster will be represented by counsel from the Governor’s Office (Thomas A. Limehouse, Jr., Chief Legal Counsel; Wm. Grayson Lambert, Senior Litigation Counsel; Erica W. Shedd, Deputy Legal Counsel), and Governor Kemp will be represented by Executive Counsel, David B. Dove.