Respondents, a Liberian corporation and a Panamanian
corporation, employed foreign crews to operate cruise ships to the
Caribbean from Florida. When the vessels berthed at Florida ports,
the ships' crews in part and outside labor in part performed the
loading, which the petitioner union picketed, protesting that the
longshore work was being done at substandard wage rates.
Respondents obtained injunctive relief against the picketing from
the Florida courts, which held that the picketing was beyond the
jurisdiction of the National Labor Relations Board (NLRB) and could
be enjoined as violative of Florida law.
Held: Since this dispute centered on wages to be paid
American longshoremen working on American docks, and did not
concern the ships' "internal discipline and order," it was not
within the scope of "maritime operations of foreign-flag ships,"
which are outside the jurisdiction of the NLRB. Petitioner's
peaceful primary picketing arguably constituted protected activity
under § 7 of the National Labor Relations Act, and, thus, the
NLRB's jurisdiction was exclusive, and preempted that of the
Florida courts. Pp.
397 U. S.
198-201.
215 So. 2d 51, reversed.
Page 397 U. S. 196
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question presented here is whether the National Labor
Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151
et
seq., preempts state jurisdiction to enjoin peaceful picketing
protesting substandard wages paid by foreign-flag vessels to
American longshoremen working in American ports. The Florida courts
held that there was no preemption, citing
McCulloch v. Sociedad
Nacional, 372 U. S. 10
(1963), and
Incres Steamship Co. v. International Maritime
Workers Union, 372 U. S. 24
(1963). We granted certiorari. 396 U.S. 814 (1969). We reverse.
In 1966, the respondents, a Liberian corporation and a
Panamanian corporation, operated cruise ships to the Caribbean from
Port Everglades and Miami, Florida. Respondent Ariadne Shipping
Company operated the S.S.
Ariadne, of Liberian registry,
with a crew subject to Liberian ship's articles. Respondent
Evangeline Steamship Company operated S.S.
Bahama Star, of
Panamanian registry, with a crew subject to Panamanian ship's
articles. The uncontradicted evidence showed that "[l]oading of the
ship, stowage and loading of automobiles, loading cargo and ship
stowage" occurred whenever either vessel berthed at Port Everglades
or Miami, "[p]art of it [performed] by employees of the ship and
some of it by outside labor." The petitioner is a labor
organization representing longshoremen in the Miami area. Although
none of those doing the longshore work for the ships belonged to
the union, whenever either vessel docked at Port Everglades or
Miami in May, 1966, petitioner stationed a picket near the vessel
to patrol with a placard protesting that the longshore
Page 397 U. S. 197
work was being done under substandard wage conditions. [
Footnote 1] Respondents obtained
temporary injunctive relief against the picketing from the Circuit
Court for Dade County. [
Footnote
2] That court rejected petitioner's contention that the subject
matter was preempted, holding that, under
McCulloch, the
picketing was beyond the reach of the regulatory power of the
National Labor Relations Board, and hence could be enjoined, since
it violated Florida law. The temporary injunction was affirmed by
the District Court of Appeal for the Third District of Florida in a
brief per curiam order citing
McCulloch and
Incres. 195 So. 2d 238 (1967). Thereafter the Circuit
Court, without further hearing, made the injunction permanent. The
District Court of Appeal again affirmed, although noting that the
testimony "tended to show" that the picketing was carried on to
protest against the substandard wages paid for the longshore work.
215 So. 2d 51,
Page 397 U. S. 198
53 (1968). [
Footnote 3] The
Supreme Court of Florida denied review in an unreported order.
McCulloch and
Incres construed the National
Labor Relations Act to preclude Board jurisdiction over labor
disputes concerning certain maritime operations of foreign-flag
vessels. Specifically,
Incres, 372 U.S. at
372 U. S. 27,
held that "maritime operations of foreign-flag ships employing
alien seamen are not in
commerce' within the meaning of 2(6)
[of the Act]." See also Benz v. Compania Naviera Hidalgo,
353 U. S. 138
(1957). This construction of the statute, however, was addressed to
situations in which Board regulation of the labor relations in
question would necessitate inquiry into the "internal discipline
and order" of a foreign vessel, an intervention thought likely to
"raise considerable disturbance not only in the field of maritime
law, but in our international relations, as well."
McCulloch, 372 U.S. at 372 U. S.
19.
In
Benz, a foreign-flag vessel temporarily in an
American port was picketed by an American seamen's union,
supporting the demands of a foreign crew for more favorable
conditions than those in the ship's articles which they signed
under foreign law, upon joining the vessel in a foreign port. In
McCulloch, an American seamen's union petitioned for a
representation election among the foreign crew members of a
Honduran-flag vessel who were already represented by a Honduran
union, certified under Honduran labor law. Again, in
Incres, the picketing was by an American union formed "for
the primary purpose of organizing foreign seamen on foreign-flag
ships." 372 U.S. at
372 U. S. 25-26.
In these cases, we concluded that, since the Act primarily concerns
strife between
Page 397 U. S. 199
American employers and employees, we could reasonably expect
Congress to have stated expressly any intention to include within
its coverage disputes between foreign ships and their foreign
crews. Thus, we could not find such an intention by implication,
particularly since to do so would thrust the National Labor
Relations Board into "a delicate field of international relations,"
Benz, 353 U.S. at
353 U. S. 147. Assertion of jurisdiction by the Board
over labor relations already governed by foreign law might well
provoke "vigorous protests from foreign governments and . . .
international problems for our Government,"
McCulloch, 372
U.S. at
372 U. S. 17,
and "invite retaliatory action from other nations,"
id. at
372 U. S. 21.
Moreover, to construe the Act to embrace disputes involving the
"internal discipline and order" of a foreign ship would be to
impute to Congress the highly unlikely intention of departing from
"the well established rule of international law that the law of the
flag state ordinarily governs the internal affairs of a ship," a
principle frequently recognized in treaties with other countries.
Ibid.
The considerations that informed the Court's construction of the
statute in the cases above are clearly inapplicable to the
situation presented here. The participation of some crew members in
the longshore work does not obscure the fact that this dispute
centered on the wages to be paid American residents, who were
employed by each foreign ship not to serve as members of its crew,
but rather to do casual longshore work. There is no evidence that
these occasional workers were involved in any internal affairs of
either ship which would be governed by foreign law. [
Footnote 4] They were American residents,
hired to work exclusively on American docks as longshoremen,
Page 397 U. S. 200
not as seamen on respondents' vessels. The critical inquiry then
is whether the longshore activities of such American residents were
within the "maritime operations of foreign-flag ships" which
McCulloch, Incres, and
Benz found to be beyond
the scope of the Act.
We hold that their activities were not within these excluded
operations. The American longshoremen's short-term, irregular and
casual connection with the respective vessels plainly belied any
involvement on their part with the ships' "internal discipline and
order." Application of United States law to resolve a dispute over
the wages paid the men for their longshore work, accordingly, would
have threatened no interference in the internal affairs of
foreign-flag ships likely to lead to conflict with foreign or
international law. We therefore find that these longshore
operations were in "commerce" within the meaning of § 2(6), and
thus might have been subject to the regulatory power of the
National Labor Relations Board. [
Footnote 5]
The jurisdiction of the National Labor Relations Board is
exclusive and preemptive as to activities that are "arguably
subject" to regulation under § 7 or § 8 of the Act.
San Diego
Building Trades Council v. Garmon, 359 U.
S. 236,
359 U. S. 245
(1959). The activities of petitioner in this case met that test.
The union's peaceful primary
Page 397 U. S. 201
picketing to protest wage rates below established area standards
arguably constituted protected activity under § 7.
See
Steelworkers v. NLRB, 376 U. S. 492,
376 U. S.
498-499 (1964);
Garner v. Teamsters Union,
346 U. S. 485,
346 U. S.
499-500 (1953)
Reversed.
[
Footnote 1]
A picket was also stationed in front of the terminal through
which passengers embarked and disembarked. This picket carried a
sign alleging that the ships were unsafe, and passed out handbills
to the same effect.
[
Footnote 2]
The injunctive order was in four paragraphs. Paragraphs 1 and 2
prohibited picketing with signs, or distributing handbills stating,
alleging, or inferring that the vessels were unsafe. The petitioner
abandoned its appeal from these provisions, and they are not before
us. Paragraph 4 was set aside on appeal.
See n 3,
infra. Paragraph 3 therefore is
the only provision under review in this Court. It prohibits
petitioner from:
"Picketing or patrolling with signs or placards indicating or
inferring that a labor dispute exists between [respondents] and
[petitioner], by any statement, legend or language alleging [that
respondents] pay their employees substandard wages."
Initially, petitioner directed the picketing not at respondents'
ships, but at Eastern Steamship Lines, Inc., a Florida corporation
that acted as respondents' general agent. Eastern obtained a
temporary injunction, 193 So. 2d 73 (1966), whereupon petitioner
shifted the picketing to the ships themselves.
[
Footnote 3]
The Court of Appeal set aside paragraph 4 of the injunction,
which prohibited,
"[b]y any manner or by any means, including picketing or the
distribution of handbills, inducing or attempting to induce
customers and potential customers of [respondents] to cease doing
business with [respondents]."
215 So. 2d at 52 n. 1.
[
Footnote 4]
We put to one side situations in which the longshore work,
although involving activities on an American dock, is carried out
entirely by a ship's foreign crew, pursuant to foreign ship's
articles.
[
Footnote 5]
The Board has reached the same conclusion in similar situations.
See, e.g., International Longshoremen's & Warehousemen's
Union, Local 1, 161 N.L.R.B. 451 (1966);
Marine Cooks
& Stewards Union, 156 N.L.R.B. 753 (1966);
New York
Shipping Assn., Inc., 116 N.L.R.B. 1183 (1956).
Cf. Uravic
v. Jarka Co., 282 U. S. 234
(1931).
Our conclusion makes it unnecessary to consider petitioner's
further contention that, in the absence of any evidence of an
illegal objective, prohibition of peaceful picketing to publicize
substandard wages deprived petitioner of freedom of speech in
violation of the First and Fourteenth Amendments.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
STEWART join, concurring.
I agree with the majority that the Florida courts were in error
in concluding that the National Labor Relations Act does not govern
relations between the operators of foreign-flag vessels and the
American longshoremen who work on such vessels while they are in
American ports. However, I would not rest reversal on the
conclusion that the union's conduct in this case was "
arguably
subject' to regulation under § 7 or § 8 of the Act." The union's
picketing was clearly not proscribed by any part of § 8 of the Act.
The only possible dispute could be over whether the picketing was
activity protected by § 7 of the Act or whether the picketing was
neither protected nor prohibited by the Act, and therefore was
subject to state regulation or prohibition. If the National Labor
Relations Act provided an effective mechanism whereby an employer
could obtain a determination from the National Labor Relations
Board as to whether picketing is protected or unprotected, I would
agree that the fact that picketing is "arguably" protected should
require state courts to refrain from interfering in deference to
the expertise and national uniformity of treatment offered by the
NLRB. But an employer faced with "arguably protected" picketing is
given by the present federal law no adequate means of obtaining an
evaluation of the picketing by the NLRB. The employer may not
himself seek a determination from the Board, and is
Page 397 U. S.
202
left with the unsatisfactory remedy of using "self-help"
against the pickets to try to provoke the union to charge the
employer with an unfair labor practice.
So long as employers are effectively denied determinations by
the NLRB as to whether "arguably protected" picketing is actually
protected except when an employer is willing to threaten or use
force to deal with picketing, I would hold that only labor activity
determined to be actually, rather than arguably, protected under
federal law should be immune from state judicial control. To this
extent,
San Diego Building Trades Council v. Garmon,
359 U. S. 236
(1959), should be reconsidered. I concur in the Court's judgment in
this case because, in my view, the record clearly indicates that
the peaceful, nonobstructive picketing on the public docks near the
ships was union activity protected under the National Labor
Relations Act.
See Garner v. Teamsters Union, 346 U.
S. 485,
346 U. S.
499-500 (1953).