Petitioners, foreign-flag shipowners and agents, sought
injunctive relief in the Texas state courts to bar, as tortious
under Texas law, the picketing of their vessels by respondent
unions, which were protesting as substandard the wages paid to the
foreign crewmen, who manned the vessels. The trial court sustained
respondents' contention that state court jurisdiction was preempted
by the Labor Management Relations Act (LMRA), and the appellate
court affirmed.
Held: Respondents' activities, which did not involve
wages paid within this country, but were designed to force the
foreign vessels to raise their operating costs to levels comparable
to those of American shippers, would have materially affected the
foreign ships' "maritime operations" and precipitated responses by
the foreign shipowners in the field of international relations
transcending the domestic wage-cost decision that the LMRA was
designed to regulate. Respondents' picketing was consequently not
activity "affecting commerce" as defined in §§ 2(6) and (7) of the
National Labor Relations Act, as amended by the LMRA, and the Texas
courts erred in holding that they were prevented by the LMRA from
entertaining petitioners' injunction suit.
Benz v. Compania
Naviera Hidalgo, 353 U. S. 138,
followed;
Longshoremen v. Ariadne Co., 397 U.
S. 195, distinguished. Pp.
415 U. S.
109-116
482 S.W.2d 675, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, STEWART, BLACKMUN, and POWELL, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS
and MARSHALL, JJ., joined,
post, p.
415 U. S.
116.
Page 415 U. S. 105
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners are the owners and managing agents of two ships
which are registered under the laws of Liberia and fly the Liberian
flag. They sought injunctive relief in the state courts in Texas to
bar picketing of their vessels by respondent unions. The trial
court denied relief, finding that the dispute was "arguably" within
the jurisdiction of the National Labor Relations Board and that the
jurisdiction of the state courts was therefore preempted. The Texas
Court of Civil Appeals affirmed, [
Footnote 1] and we granted certiorari, 412 U.S. 927
(1973), to consider whether the activities here complained of were
activities "affecting commerce" within the meaning of §§ 2(6) and
(7) of the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. §§
152(6) and (7). [
Footnote 2] We
hold that they were
Page 415 U. S. 106
not, and therefore reverse the judgment of the Court of Civil
Appeals.
I
The vessels
Northwind and
Theomana are ships
of Liberian registry, carrying cargo between foreign ports and the
United States.
Northwind is owned by petitioner Westwind
Africa Line, Ltd., a Liberian corporation, while
Theomana
is owned by petitioner SPS Bulkcarriers Corp., a Liberian
corporation, and managed by petitioner Windward Shipping (London)
Ltd., a British corporation. The crews of both vessels are composed
entirely of foreign nationals, represented by foreign unions and
employed under foreign articles of agreement.
Respondents are American maritime unions, apparently
representing a substantial majority of American merchant seamen.
[
Footnote 3] Alarmed by an
accelerating decline in the number of jobs available to their
members, these unions agreed to undertake collective action against
foreign vessels, which they saw as the major cause of their
business recession. Specifically, these unions agreed to picket
foreign ships, calling attention to the competitive advantage
enjoyed by such vessels because of a difference
Page 415 U. S. 107
between foreign and domestic seamen's wages. All parties concede
that such a difference does exist. [
Footnote 4]
The picketing here occurred at the Port of Houston, Texas, in
October, 1971. Both
Northwind and
Theomana were
docked within the port, and respondents established picket lines in
front of each vessel. There were four pickets assigned to each
vessel, carrying signs which read:
ATTENTION TO THE PUBLIC
THE WAGES AND BENEFITS PAID SEAMEN
ABOARD THE VESSEL THEOMANA [NORTHWIND]
ARE SUBSTANDARD TO THOSE OF AMERICAN
SEAMEN. THIS RESULTS IN EXTREME DAMAGE
TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS.
PLEASE DO NOT PATRONIZE THIS VESSEL.
HELP THE AMERICAN SEAMEN.
WE HAVE NO DISPUTE WITH
ANY OTHER VESSEL ON THIS SITE.
[Printed names of the six unions.]
These signs were supplemented by pamphlets of similar import.
[
Footnote 5] The pickets were
instructed not to
Page 415 U. S. 108
discuss the picketing with anyone, and they appear to have
followed their instructions.
The picketing, although neither obstructive nor violent, was not
without effect. Longshoremen and other port workers refused to
cross the picket lines to load and unload petitioners' vessels.
Petitioners filed separate suits in a Texas state court, asking the
court to enjoin the picketing as tortious under Texas law. The
primary basis for petitioners' claim was that the picketing sought
to induce the owners and crews to break preexisting contracts.
Respondents presented several defenses, contending in particular
that the jurisdiction of the Texas court was preempted by the
National Labor Relations Act. [
Footnote 6]
The trial court sustained this contention, holding that
jurisdiction properly lay with the NLRB, and the Texas Court of
Civil Appeals affirmed. That court found that state jurisdiction
was preempted by the Act when "the activities complained of are
arguably either protected by section 7 or prohibited by section 8
of the NLRA as amended by the LMRA," [
Footnote 7]
see San Diego Building Trades Council v.
Garmon, 359 U. S. 236
(1959), and that the conduct here met that test. The court rejected
petitioners' argument that the picketing interfered with the
"maritime operations of foreign flag
Page 415 U. S. 109
ships,"
see McCulloch v. Sociedad Nacional,
372 U. S. 10
(1963), in such manner as to remove it from the Board's
jurisdiction. [
Footnote 8] The
court concluded:
"If [the picketing] but voices a complaint as to foreign wages
and urges the public not to patronize foreign vessels, it does not
engage in matters outside of commerce. It is peaceful picketing,
publicizing a labor dispute, of such a character that its validity
is suggested by the Court's holding in the
Marine Cooks case,
supra. It is, at least arguably, a protected activity under
section 7 of the LMRA. As such, it is an activity as to which the
exclusive jurisdiction to determine its propriety has been
preempted to the NLRB. [
Footnote
9]"
Petitioners contend that the Court of Appeals too narrowly
construed this Court's decisions denying the NLRB jurisdiction in
cases involving foreign flag ships. We therefore begin by examining
the principles established by those decisions for determining the
jurisdiction of the NLRB.
II
In a series of cases decided over the past 17 years, [
Footnote 10] this Court has
discussed the application of the Labor Management Relations Act in
situations which might be broadly described as disputes between
unions representing workers in this country and owners of foreign
flag vessels operating in international maritime commerce.
Benz
v. Compania Naviera Hidalgo, 353 U. S. 138
(1957), is the leading case on the subject. In
Benz,
Page 415 U. S. 110
the question was whether the Labor Management Relations Act,
1947, precluded a diversity suit for damages brought in the United
States District Court by foreign shipowners against picketing
American unions. The picketing had been undertaken in Portland,
Oregon, to support striking foreign crews employed under foreign
articles and had resulted in the refusal of workers to load and
repair the docked foreign ships. The District Court had awarded
damages, and the Court of Appeals affirmed.
This Court held that the shipowners' action was not preempted by
the Labor Management Relations Act. Studying the legislative
history of the Act, the Court found no indication that it was
intended to govern disputes between foreign shipowners and foreign
crews. On the contrary, the Court concluded that the most revealing
legislative history strongly suggested the bill was a "bill of
rights . . . for
American workingmen and for their
employers."
Id. at
353 U. S. 144.
(Emphasis in original.) The Court stated that this history
"inescapably describes the boundaries of the Act as including only
the workingmen of our own country and its possessions."
Ibid.
Recognition of the clear congressional purpose to apply the LMRA
only to American workers and employers was doubtless a sufficient
reason to place the picketing in
Benz outside the Act. But
the Court in that case made clear its reluctance to intrude
domestic labor law willy-nilly into the complex of considerations
affecting foreign trade, absent a clear congressional mandate to do
so:
"For us to run interference in such a delicate field of
international relations, there must be present the affirmative
intention of the Congress clearly expressed. It alone has the
facilities necessary to make fairly such an important policy
decision where the
Page 415 U. S. 111
possibilities of international discord are so evident and
retaliative action so certain."
Id. at
353 U. S. 147.
In the 17 years since
Benz was decided, Congress has in no
way indicated any such "affirmative intention," and this Court has
continued to construe the LMRA in accordance with the dictates of
that case.
The reasoning of
Benz was reaffirmed in
McCulloch
v. Sociedad Nacional, 372 U. S. 10
(1963), and
Incres S.S. Co. v. Maritime Workers,
372 U. S. 24
(1963), decided together six years later. In
McCulloch, we
held that the National Labor Relations Board had improperly assumed
jurisdiction under the Act to order an election involving foreign
crews of foreign flag ships. Rejecting the Board's "balancing of
contacts" theory, the Court said:
"[T]o follow such a suggested procedure to the ultimate might
require that the Board inquire into the internal discipline and
order of all foreign vessels calling at American ports."
372 U.S. at
372 U. S. 19.
[
Footnote 11] In
Incres, we applied this rationale to a situation involving
union picketing of a foreign ship in an effort to organize the
foreign crew. Reversing the holding of a New York state court that
the picketing was arguably within the jurisdiction of the NLRB, the
Court said:
"The Board's jurisdiction to prevent unfair labor practices,
like its jurisdiction to direct elections, is based upon
circumstances 'affecting commerce,' and we have concluded that
maritime operations of foreign flag ships employing alien seamen
are not in 'commerce' within the meaning of § 2(6), 29 U.S.C. §
152(6)."
372 U.S. at
372 U. S.
27.
Page 415 U. S. 112
But
Benz and its successor cases have not been read to
exempt all organizational activities from the Act's protections
merely because those activities in some way were directed at an
employer who was the owner of a foreign flag vessel docked in an
American port. In
Longshoremen v. Ariadne Co.,
397 U. S. 195
(1970), the Court held that the picketing of foreign ships to
protest substandard wages paid by their owners to nonunion American
longshoremen was
"in 'commerce' within the meaning of § 2(6), and thus might have
been subject to the regulatory power of the National Labor
Relations Board."
Id. at
397 U. S. 200.
The pickets in
Ariadne, unlike the pickets in
Benz or
Incres, were primarily engaged in a
dispute as to whether an employer should hire unionized or
nonunionized American workers to perform longshoremen's work,
[
Footnote 12] and the
substandard wages which they were protesting were being paid to
fellow American workers. The Court specifically noted: "[T]his
dispute centered on the wages to be paid American residents."
Id. at
387 U. S. 199.
The term "in commerce," as used in the LMRA, is obviously not
self-defining, and certainly the activities in
Benz,
McCulloch, and
Incres, held not covered by the Act,
were literally just as much "in commerce" as were the activities
held covered in
Ariadne. Those cases which deny
jurisdiction to the NLRB recognize that Congress, when it used the
words "in commerce" in the LMRA, simply did not intend that Act to
erase longstanding
Page 415 U. S. 113
principles of comity and accommodation in international maritime
trade. In
Lauritzen v. Larsen, 345 U.
S. 571,
345 U. S. 577
(1953), the Court commented on the congressional intent with
respect to the Jones Act of 1920 in these words:
"But Congress in 1920 wrote these all-comprehending words not on
a clean slate, but as a postscript to a long series of enactments
governing shipping. All were enacted with regard to a seasoned body
of maritime law developed by the experience of American courts long
accustomed to dealing with admiralty problems in reconciling our
own with foreign interests and in accommodating the reach of our
own laws to those of other maritime nations. [
Footnote 13]"
We are even more reluctant to attribute to Congress an intention
to disrupt this comprehensive body of law by construction of an Act
unrelated to maritime commerce and directed solely at American
labor relations.
III
The picketing activities in this case do not involve the
inescapable intrusion into the affairs of foreign ships that was
present in
Benz and
Incres; respondents seek
Page 415 U. S. 114
neither to organize the foreign crews for purpose of
representation nor to support foreign crews in their own wage
dispute with a foreign shipowner. But those cases do not purport to
fully delineate the threshold of interference with the maritime
operations of foreign vessels which makes the LMRA
inapplicable.
The picket signs utilized at the docks where the
Northwind and
Theomana were tied up protested the
wages paid to foreign seamen who were employed by foreign
shipowners under contracts made outside the United States. At the
very least, the pickets must have hoped to exert sufficient
pressure so that foreign vessels would be forced to raise their
operating costs to levels comparable to those of American shippers,
either because of lost cargo resulting from the longshoremen's
refusal to load or unload the vessels or because of wage increases
awarded as a virtual self-imposed tariff to regain entry to
American ports. Such a large-scale increase in operating costs
would have more than a negligible impact on the "maritime
operations" of these foreign ships, and the effect would be by no
means limited to costs incurred while in American ports. Unlike
Ariadne, the protest here could not be accommodated by a
wage decision on the part of the shipowners which would affect only
wages paid within this country.
In this situation, the foreign vessels' lot is not a happy one.
A decision by the foreign owners to raise foreign seamen's wages to
a level mollifying the American pickets would have the most
significant and far-reaching effect on the maritime operations of
these ships throughout the world. A decision to boycott American
ports in order to avoid the difficulties induced by the picketing
would be detrimental not only to the private balance sheets of the
foreign shipowners, but to the citizenry of a country as dependent
on goods carried in foreign bottoms as is ours. Retaliatory action
against American vessels in
Page 415 U. S. 115
foreign ports might likewise be considered, but the employment
of such tactics would probably exacerbate and broaden the present
dispute. Virtually none of the predictable responses of a foreign
shipowner to picketing of this type, therefore, would be limited to
the sort of wage-cost decision benefiting American workingmen which
the LMRA was designed to regulate. This case, therefore, falls
under
Benz, rather than under
Ariadne. [
Footnote 14]
Since we hold that respondents' picketing was not "in commerce"
as defined by the Act, we do not reach the question of whether the
activity was otherwise of such a nature that state courts would be
precluded by the LMRA from entertaining an action to enjoin it. Our
conclusion that the activities here involved were not "in commerce"
within the meaning of §§ 2(6) and (7) of the NLRA, as amended by
the LMRA, resolves a question which, of course, is one for the
courts in the first instance.
Ariadne, 397 U.S. at
397 U. S. 200.
The Court of Civil Appeals was therefore wrong in holding that the
courts of the
Page 415 U. S. 116
State of Texas were prevented by the LMRA from entertaining
petitioners' suit for an injunction.
Reversed.
[
Footnote 1]
482 S.W.2d 675 (1972).
[
Footnote 2]
The definitions in §§ 2(6) and (7), 29 U.S.C. §§ 152(6) and (7),
as amended by the Labor Management Relations Act, 1947, are as
follows:
"(6) The term 'commerce' means trade, traffic, commerce,
transportation, or communication among the several States, or
between the District of Columbia or any Territory of the United
States and any State or other Territory, or between any foreign
country and any State, Territory, or the District of Columbia, or
within the District of Columbia or any Territory, or between points
in the same State but through any other State or any Territory or
the District of Columbia or any foreign country."
"(7) The term 'affecting commerce' means in commerce, or
burdening or obstructing commerce or the free flow of commerce, or
having led or tending to lead to a labor dispute burdening or
obstructing commerce or the free flow of commerce."
[
Footnote 3]
Respondents describe themselves in their brief as "six labor
organizations who collectively represent the overwhelming majority
and practically almost all American merchant seamen." Brief for
Respondents 2.
[
Footnote 4]
The petitioners state:
"We do not contest the fact that the wages of foreign crews on
foreign ships are substantially lower than those paid to American
seamen on American ships."
Brief for Petitioners 19. The brief notes some estimates that
the American wage costs are between 2 1/2 to 4 times higher than
the foreign wage costs.
Id. at 19 n.
[
Footnote 5]
These pamphlets stated:
"To the Public -- American Seamen have lost approximately 50% of
their jobs in the past few years to foreign flag ships employing
seamen at a fraction of the wages of American Seamen."
"American dollars flowing to these foreign ship owners operating
ships at wages and benefits substandard to American Seamen, are
hurting our balance of payments in addition to hurting our economy
by the loss of jobs."
"A strong American Merchant Marine is essential to our national
defense. The fewer American flag ships there are, the weaker our
position will be in a period of national emergency."
"PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR
ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A
STRONG AMERICAN MERCHANT MARINE."
"Our dispute is limited to the vessel picketed at this site, the
S.S. ______."
(App. 21).
[
Footnote 6]
The courts below considered only this ground advanced by
respondents, finding it dispositive. We express no opinion on the
merits of respondents' other contentions.
[
Footnote 7]
482 S.W.2d at 678.
[
Footnote 8]
Id. at 680-682.
[
Footnote 9]
Id. at 682.
[
Footnote 10]
Benz v. Compania Naviera Hidalgo, 353 U.
S. 138 (1957);
McCulloch v. Sociedad Nacional,
372 U. S. 10
(1963);
Incres S.S. Co. v. Maritime Workers, 372 U. S.
24 (1963);
Longshoremen v. Ariadne Co.,
397 U. S. 195
(1970).
[
Footnote 11]
The Court in
McCulloch also noted that the Board's
actions had "aroused vigorous protest from foreign governments and
created international problems for our Government." 372 U.S. at
372 U. S.
17.
[
Footnote 12]
The evidence in
Ariadne showed that the work at issue
was performed partly by members of the foreign ships' crews and
partly by outside labor. 397 U.S. at
397 U. S. 196.
Those workers included in the classification "outside labor" were
nonunion members. This Court noted that
"[t]he 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."
Id. at
397 U. S.
199.
[
Footnote 13]
The basic question at issue in
Lauritzen was whether
American or Danish law applied to a maritime tort which occurred in
Havana Harbor. Although analysis of the Jones Act there obviously
involved different considerations from analysis of the Labor
Management Relations Act here, it is interesting to note that some
arguments, at least, are common to both cases. In
Lauritzen, this Court rejected a "candid and brash appeal"
made by the seamen and various
amici that the Court should
"extend the law to this situation as a means of benefiting seamen
and enhancing the costs of foreign ship operation for the
competitive advantage of our own." 345 U.S. at
345 U. S. 593.
We observed at that time that such arguments were obviously better
directed to Congress.
[
Footnote 14]
We do not find the rationale of
Marine Cooks & Stewards
v. Panama S.S. Co., 362 U. S. 365
(1960), to be applicable here. Although that case involved a labor
situation strikingly similar to the situation involved in this
case, the controlling question in
Marine Cooks was the
jurisdiction of a federal district court to enjoin picketing of a
foreign flag ship under the Norris-LaGuardia Act, 29 U.S.C. § 101
et seq. The Court held that, in such circumstances, the
district courts had no jurisdiction. However, as we later noted in
McCulloch, 372 U.S. at
372 U. S. 18,
Marine Cooks
"cannot be regarded as limiting the earlier
Benz
holding . . . , since no question as to 'whether the picketing . .
. was tortious under state or federal law' was either presented or
decided."
Obviously the question whether Congress intended the federal
courts to stay out of the labor injunction business involves
significantly different considerations from the question whether
Congress intended the Labor Management Relations Act to apply to
the type of picketing of foreign ships involved here.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
Today's reversal of the Texas Court of Civil Appeals does not,
of course, end this case. There remain for disposition on remand
two of the respondents' defenses not reached by the Texas courts,
namely (1) that Texas law does not proscribe respondents'
picketing, and (2) that, in any event, the First and Fourteenth
Amendments protect respondents' conduct. [
Footnote 2/1]
But the fact that today's decision does not finally decide the
legality of respondents' picketing should not obscure the
significance of the Court's holding. Ninety-five percent of our
export trade has already fled American-flag vessels for cheaper,
foreign-registered shipping. [
Footnote
2/2] In holding that respondents' picketing against foreign
flag vessels does not give rise to a dispute "affecting commerce"
within the National Labor Relations Board's jurisdiction, the Court
effectively deprives American seamen, among all American employees
in commerce, of any federally protected weapon with which to try to
save their jobs. [
Footnote 2/3]
Additionally, the Court creates new difficulties
Page 415 U. S. 117
for the Board in its administration of the Act by making the
Boards statutory jurisdiction turn on the identity of the
competitor that might be affected by the picketing -- a distinction
relevant in the determination whether picketing is protected or
prohibited activity under the Act, but a distinction rejected in
other contexts in the determination of Board jurisdiction.
[
Footnote 2/4]
There is, of course, no doubt that Congress possesses the power
to subject foreign shipping in American territorial
Page 415 U. S. 118
waters to the federal labor laws. [
Footnote 2/5] And the Court concedes that the picketing
activities involved here fall literally within the term "commerce"
as used in the Labor Management Relations Act.
Ante at
415 U. S.
112.
After acknowledging the paucity of support for an exclusion in
the term "commerce," the Court, however, concludes that, prior
cases construing the "affecting commerce" limitation in §§ 2(6),
2(7), and 10 (29 U.S.C. §§ 152(6), 152(7), and 160) support the
holding that respondents' picketing against foreign flag vessels is
conduct not cognizable by the Board. With respect, I think that the
Court misreads those cases, and also fails to take account of other
relevant congressional and judicial guidance that leads to a
contrary conclusion.
As the Court concedes, none of the cases relied upon reached the
question before us, that is, whether American seamen may employ
economic weapons to try to save their jobs by improving the
competitive positions of their domestic employers
vis-a-vis foreign shipping. Yet the Court relies upon
those decisions as supporting the proposition that we must conclude
that Congress "simply did not intend that Act [LMRA] to erase
longstanding principles of comity and accommodation in
international maritime trade,"
ante at
415 U. S.
112-113, because the economic impact upon foreign
shipping from respondents' picketing might severely disrupt the
maritime operations of foreign vessels. Not a word or sentence in
any opinion in those cases supports that reading. Rather, those
decisions
Page 415 U. S. 119
rested squarely upon the reasoning that, in circumstances where
Board cognizance of a dispute will necessarily involve Board
inquiry into the labor relation between foreign crews and foreign
vessels, Congress could not be understood to have granted the Board
jurisdiction of the dispute.
In
Benz v. Compania Naviera Hidalgo, 353 U.
S. 138 (1957), the seminal case in this area, an
American union attempted to organize the foreign crew of a vessel
operating under a foreign flag. The Court, holding that Congress
did not fashion the LMRA "to resolve labor disputes between
nationals of other countries operating ships under foreign laws,"
id. at
353 U. S. 143,
said:
"It should be noted at the outset that the dispute from which
these actions sprang arose on a foreign vessel. It was between a
foreign employer and a foreign crew operating under an agreement
made abroad under the laws of another nation. The only American
connection was that the controversy erupted while the ship was
transiently in a United States port and American labor unions
participated in its picketing."
Id. at
353 U. S. 142.
Similarly, subsequent decisions also turned jurisdiction on the
determination whether Board cognizance would require the Board to
inquire into the internal relations between the foreign ship's crew
and its foreign owner. In
McCulloch v. Sociedad Nacional,
372 U. S. 10
(1963), we held that the Board did not have jurisdiction to order
an election on a foreign flag vessel, for
"to follow such a suggested procedure to the ultimate might
require that the Board inquire into the internal discipline and
order of all foreign vessels calling at American ports."
Id. at
372 U. S.
19.
In
Incres S.S. Co. v. Maritime Workers, 372 U. S.
24 (1963), the issue was whether the Board had power
to
Page 415 U. S. 120
adjudicate the legality of the efforts of a union to organize
the members of a foreign crew. Again, the Court held that the Board
was without jurisdiction under the Act, since adjudication of that
question would require that the Board examine into the relations
between that crew and its foreign flag employer.
Id. at
372 U. S.
27-28.
The question whether a labor dispute would necessitate Board
inquiry into the relations between foreign vessels and crews was
yet again central in
Longshoremen v. Ariadne Co.,
397 U. S. 195
(1970), the most recent of the cases where we sustained Board
jurisdiction of a dispute involving picketing of a foreign flag
ship in protest against wages being paid to American longshoremen
unloading the foreign vessel in an American port. We held that the
prohibited inquiry would not result in that case, explaining:
"We hold that [the longshoremen's] activities were not
['maritime operations of foreign flag ships']. 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."
Id. at
397 U. S.
200.
Thus, the only appropriate issue in the instant case is whether
NLRB cognizance of respondents' picketing
Page 415 U. S. 121
would require that the Board inquire into the "internal
discipline and order" of foreign vessels, and thus threaten
"interference in the internal affairs of foreign flag ships likely
to lead to conflict with foreign or international law." Tested by
that principle, I conclude, contrary to the Court, that this case
falls under
Ariadne, rather than under
Benz.
Ariadne is the controlling precedent even if the Court
is correct that this dispute "could not be accommodated by a wage
decision on the part of the shipowners which would affect only
wages paid within this country."
Ante at
415 U. S. 114.
For respondents' picketing is not directed at forcing the
shipowners to make that or any other accommodation that could be
characterized as interference with relations between crews and
shipowners. Respondents' target is to persuade shippers not to
patronize foreign vessels, and respondents have no concern with the
form of the shipowners' response that makes their efforts succeed.
[
Footnote 2/6]
Similarly,
Ariadne is the controlling precedent even if
the Court is right that
"[v]irtually none of the predictable
Page 415 U. S. 122
responses of a foreign shipowner to picketing of this type . . .
would be limited to the sort of wage-cost decision benefiting
American workingmen which the LMRA [as it amended the NLRA] was
designed to regulate."
Ante at
415 U. S. 115.
The question whether this case falls within the Board's
jurisdiction does not turn on the "predictable responses" of the
foreign shipowner but, under our cases from
Benz to
Ariadne, solely on the question whether cognizance of
respondents' activity would involve the Board in an examination
into the internal relations between the foreign crews and
shipowners. Cognizance of respondents' conduct in this case would
not appear to require that inquiry. In any event, as the Texas
Court of Civil Appeals correctly observed, it suffices for Board
jurisdiction of that conduct that it is arguable whether that
inquiry is required, for, in such case, it is for the Board to
determine in the first instance whether that conduct involves a
labor dispute within its cognizance.
San Diego Building Trades
Council v. Garmon, 359 U. S. 236
(1959).
But my disagreement with the Court does not rest alone on its
failure adequately to rationalize and distinguish the case law. As
the Court states, the Nation's labor laws must be read in light of
the longstanding involvement of Congress with maritime affairs. If
that involvement is examined, however, it will demonstrate that,
beginning with its first session, 1 Stat. 55, Congress has been
deeply engaged in legislating to protect American vessels from
competition, usually by enacting discriminatory laws against
foreign flag vessels. Myriad hearings and reports reflect
congressional determination that the American merchant marine,
largely because of protections afforded American seamen's wages and
working conditions in collective bargaining fostered by the
National Labor Relations Act, shall have legislative help
Page 415 U. S. 123
to support its efforts to compete on equal terms for a share of
our foreign commerce. [
Footnote
2/7]
This congressional support was highlighted as recently as 1970,
in amendments to the Merchant Marine Act, 1936, 46 U.S.C. § 1101
et seq., to which we may look with profit. The declaration
of policy of that Act, as amended in 1970, states as its purpose
that
"[i]t is necessary for the national defense and development of
[the United States'] foreign and domestic commerce that the United
States shall have a merchant marine (a) sufficient to carry its
domestic water-borne commerce and a substantial portion of the
water-borne export and import foreign commerce of the United
States. . . ."
That merchant marine is further to be "owned and operated under
the United States flag by citizens of the United States, insofar as
may be practicable," and is to be "manned with a trained and
efficient citizen personnel." 46 U.S.C. § 1101.
See also
Merchant Marine Act, 1920, 46 U.S.C. § 861. The 1936 Act furthers
those aims by providing subsidies for the construction and
operation of American flag shipping, 46 U.S.C. §§ 1151, 1171, and
goes far in imposing discriminations against foreign flag shipping
in regard to certain types of freight. 46 U.S.C.
Page 415 U. S. 124
§ 1241.
See also 46 U.S.C. §§ 251, 808 (restricting
coastwise trade). Far from conduct in conflict with Congress'
legislative policies in the maritime field, respondents' picketing
seeks precisely the same goals.
Yet the Court, although not remotely suggesting that
respondents' picketing constitutes an illegal intrusion by private
citizens into foreign affairs, reaches a conclusion that
necessarily implies that Congress was content to leave the whole
problem to resolution by the States. It is inconceivable that
Congress meant to leave regulation of activity in this area of
predominantly national concern to disparate state laws reflecting
parochial interests.
I would affirm the judgment of the Texas Court of Civil
Appeals.
[
Footnote 2/1]
See NLRB v. Fruit & Vegetable Packers, 377 U. S.
58 (1964);
id. at
377 U. S. 76
(Black, J., concurring);
Thornhill v. Alabama,
310 U. S. 88
(1940).
[
Footnote 2/2]
See S.Rep. No. 91-1080, p. 16 (1970).
See also
id. at 17 (Chart 7: Projected Decline in Seafaring Job
Opportunities in Foreign Trade Fleet from 1969 to 1980).
[
Footnote 2/3]
Those meager materials to be found in the congressional debates
concerning the Labor Management Relations Act contradict the notion
that Congress meant to distinguish among American workingmen for
purposes of defining the Board's jurisdiction over labor disputes
affecting commerce.
See H.R.Rep. No. 245, 80th Cong. 1st
Sess., 4 (1947), discussed in
Benz v. Compania Naviera
Hidalgo, 353 U. S. 138,
353 U. S.
142-144 (1957).
See also Longshoremen v. Ariadne
Co., 397 U. S. 195,
397 U. S.
198-199 (1970).
[
Footnote 2/4]
Thus, the Court refused to make that distinction even where the
language of the Act might have been read as indicating that
Congress meant to draw it. In
Teamsters v. New York, N.H. &
H.R. Co., 350 U. S. 155
(1956), a union engaged in the over-the-road trucking of freight
picketed a railroad loading yard to protest the "piggy-backing" of
truck trailers on railroad cars that was curtailing their
opportunities for employment. The railroad, subject to the Railway
Labor Act, 45 U.S.C. § 151
et seq., was a "person"
exempted from the NLRA's definition of "employer." 29 U.S.C. §
152(2).
Nonetheless, the Court relied upon the finding of the lower
court that the "union was in no way concerned with [the railroad's]
labor policy," and held that the dispute was subject to the
jurisdiction of the National Labor Relations Board. The Court
said:
"This interpretation permits the harmonious effectuation of
three distinct congressional objectives: (1) to provide orderly and
peaceful procedures for protecting the rights of employers,
employees and the public in labor disputes so as to promote the
full, free flow of commerce, as expressed in § 1(b) of the Labor
Management Relations Act; (2) to maintain the traditional separate
treatment of employer employee relationships of railroads subject
to the Railway Labor Act; and (3) to minimize 'diversities and
conflicts likely to result from a variety of local procedures and
attitudes toward labor controversies.'
Garner v. Teamsters
Union, 346 U. S. 485,
346 U. S.
490."
350 U.S. at
350 U. S.
160-161.
In contrast, there is no wording in the statute, or any
legislative history, supporting a reading that Congress meant to
draw that line as to seamen.
[
Footnote 2/5]
See Benz v. Compania Naviera Hidalgo, supra, at
353 U. S.
142:
"It is beyond question that a ship voluntarily entering the
territorial limits of another country subjects itself to the laws
and jurisdiction of that country.
Wildenhus's Case,
120 U. S.
1 (1887). . . . It follows that, if Congress had so
chosen, it could have made the Act applicable to wage disputes
arising on foreign vessels between nationals of other countries
when the vessel comes within our territorial waters."
[
Footnote 2/6]
The picket signs were not directed to improvement of the foreign
crews' wages and working conditions. The protest was carefully
phrased to appeal to shippers not to patronize the foreign ships
because payment of wages "substandard to those of American seamen .
. . results in extreme damage to our wage standards and loss of our
jobs." Thus, cognizance of the dispute to determine the legality of
the picketing as an unfair labor practice need not involve the
Board in an inquiry whether the picketing called for an employer
response in the form of an increase in the crews' wages. This would
not, of course, mean that respondents would prevail on the merits.
There may well be a question, for example, whether the picketing
falls within the ban of § 8(b)(7), 29 U.S.C. § 158(b)(7), as
prohibited recognitional picketing.
See Rosen, Area
Standards Picketing, 23 Lab.L.J. 67 (1972); Note, Picketing for
Area Standards: An Exception to Section 8(b)(7), 1968 Duke L.J.
767.
[
Footnote 2/7]
See, e.g., H.R. Rep. No. 91-1073 (1970); S.Rep. No.
91-1080 (1970); Hearings on H.R. 12324 and H.R. 12569 before the
Subcommittee on Merchant Marine of the House Committee on Merchant
Marine & Fisheries, 92d Cong., 2d Sess. (1972) (Cargo for
American Ships); Hearings on H.R. 15424, H.R. 15425, and H.R. 15640
before the Subcommittee on Merchant Marine of the House Committee
on Merchant Marine & Fisheries, 91st Cong., 2d Sess. (1970)
(President's Maritime Program, pt. 2); Hearings on S. 3287 before
the Merchant Marine Subcommittee of the Senate Committee on
Commerce, 91st Cong., 2d Sess. (1970) (the Maritime Program);
Hearings on H.R. 1897, H.R. 2004, and H.R. 2331 before the House
Committee on Merchant Marine & Fisheries, 88th Cong., 1st Sess.
(1963) (Maritime Labor Legislation).