Allied Intern., Inc. v. International Longshoremen's Ass'n, AFL-CIO, AFL-CIO

• Decision Date: 06 January 1981
• Docket Number: AFL-CIO,No. 80-1425,80-1425
• Parties: 106 L.R.R.M. (BNA) 2659, 90 Lab.Cas. P 12,589, 1980-81 Trade Cases 63,826 ALLIED INTERNATIONAL, INC., Plaintiff, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1368

640 F.2d 1368

106 L.R.R.M. (BNA) 2659, 90 Lab.Cas. P 12,589,

1980-81 Trade Cases 63,826

ALLIED INTERNATIONAL, INC., Plaintiff, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO et al.,

Defendants, Appellees.

No. 80-1425.

United States Court of Appeals, First Circuit.

Argued Oct. 8, 1980.

Decided Jan. 6, 1981.

Duane R. Batista, Boston, Mass., with whom Danielle DeBenedictis, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for plaintiff, appellant.

Ernest L. Mathews, Jr., New York City, with whom Charles R. Goldburg, New York City, Condon & Doyle, Boston, Mass., and Thomas W. Gleason, New York City, were on brief, for defendants, appellees.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

CAMPBELL, Circuit Judge.

This is an appeal from a decision of the district court, 492 F.Supp. 334, denying plaintiff-appellant's motion for a preliminary injunction and granting defendants-appellees' motion to dismiss. ¹

The facts are much like those recently before this court in Walsh v. ILA, Local 799, 630 F.2d 864 (1st Cir. 1980). Allied International, Inc., is an importer of Russian wood products, which has contracted with two agencies of the USSR for the purchase of birch hardwood and plywood. Allied has also contracted (through a third Soviet agency) with Waterman Steamship Co. for the shipment of these wood products to the United States from the USSR. Waterman employs John T. Clark & Son, a stevedoring company, to unload its ships docking in Boston. Clark's initial source of longshoremen is a hiring hall, operated by defendants International Longshoremen's Association (ILA) and its Local 799 pursuant to a collective bargaining agreement between the unions and the Boston Shipping Association.

On January 9, 1980, one of Waterman's ships, the Walton, was in Boston unloading a portion of Allied's plywood and hardwood, prior to further unloading at other ports along the East Coast. On that date, defendant Thomas Gleason, President of the ILA, ordered ILA members to cease handling cargoes bound for or arriving from the Soviet Union, in protest of the invasion of Afghanistan by Soviet armed forces. ² In response to Allied's inquiries, Gleason informed Allied that ILA members would unload the Walton's cargo in Boston, but not at any other United States port. As a result, Waterman cancelled the Walton's scheduled calls, and unloaded all of Allied's wood products cargo in Boston, where it was stored, accruing demurrage and security charges. Waterman also restricted the cargo then being loaded into the Middleton in Leningrad to one-third its scheduled size, cancelled its delivery to scheduled United States ports, and unloaded the wood products in Montreal. In addition, Waterman repudiated its agreement to transport Allied's wood products aboard the Jefferson, which had not yet been loaded. ILA and Local 799 representatives informed Allied on March 12 and March 25, 1980 that no ILA members would unload any cargo originating in the USSR.

On March 31, 1980, Allied filed a complaint in the district court alleging that the ILA's actions violated (1) the National Labor Relations Act (NLRA) prohibition against secondary boycotts, section 8(b)(4), 29 U.S.C. § 158(b)(4), for which Allied has a private right of action under section 303 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 187, and (2) the Sherman Act, 15 U.S.C. § 1, and (3) constituted tortious interference with Allied's business relationships, in violation of admiralty law. The action was consolidated with Walsh v. ILA, supra, in which the Regional Director of the NLRB sought a preliminary injunction against the ILA Russian boycott. In a memorandum of June 17, 1980, the district court concluded that Allied had failed to state a cause of action on any of its three legal theories, and consequently dismissed the complaint. We examine each of appellant's claims seriatim.

Secondary Boycott

The district court relied on its decision in Walsh v. ILA, 488 F.Supp. 524 (D.Mass.1980), in holding that Allied had not alleged a violation of NLRA section 8(b)(4), 29 U.S.C. § 158(b)(4), the secondary boycott prohibition. We did not reach the merits of the secondary boycott question on appeal in Walsh, because we considered the issue foreclosed in that case by the decision in Baldovin v. ILA, Civ.No. 80-259 (S.D.Tex. Feb. 15, 1980). Baldovin involved the ILA's refusal to load grain aboard a ship bound for the Soviet Union, and the district court held the NLRB lacked jurisdiction over the dispute because it was not "in commerce." Subsequent to our decision in Walsh, the Court of Appeals for the Fifth Circuit affirmed that holding. Baldovin v. ILA, 626 F.2d 445 (5th Cir. 1980). Because this case concerns parties different from those in Baldovin, that decision has no preclusive effect here. We therefore confront the secondary boycott issue on the merits.

Section 8(b)(4) provides, in pertinent part:

"(b) It shall be an unfair labor practice for a labor organization or its agents

(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing...."

We proceed first to the same question decided negatively by the Fifth Circuit in Baldovin whether the secondary activity in question is sufficiently related to commerce to come within the prohibitions of the NLRA. See NLRA §§ 2(6) & (7), 29 U.S.C. §§ 152(6) & (7). While this case does not, as did Baldovin and Walsh, require consideration of the jurisdiction of the National Labor Relations Board, see NLRA § 10(a), 29 U.S.C. § 160(a), the secondary boycott prohibition itself reaches only activities aimed at individuals "employed by any person engaged in commerce or in any industry affecting commerce."

At first blush, it might appear too plain for discussion that the ILA's refusal to unload Allied's goods affects both commerce and a person engaged in commerce. Allied, Waterman and Clark are American companies and the ILA is an American union. All engage regularly in business affecting the transportation of goods among the several states. Indeed, the instant dispute arose when the ILA's actions allegedly impeded Allied's ability to move its wood products from Boston to other ports along the East Coast, and Allied contends that the ILA continues to frustrate its ability to transport its goods into this country.

However, the terms "in commerce" and "affecting commerce," as used in the NLRA, are "obviously not self-defining," Windward Shipping (London) Ltd. v. American Radio Association, 415 U.S. 104, 112, 94 S.Ct. 959, 964, 39 L.Ed.2d 195 (1974). They must be considered in light of the gloss placed upon them in a series of Supreme Court cases dealing with the scope of jurisdiction under the Act.

In Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), the Court held that the protections of the Act did not extend to picketing by American unions in support of a strike staged by foreign seamen against their foreign shipowner-employers. Since Congress did not intend the Act to cover "wage disputes arising on foreign vessels between nationals of other countries," id., at 142, 77 S.Ct. at 702, the Act did not preempt a state law damage action brought by the shipowners against the unions.

While Benz relied solely on the legislative history of the NLRA, Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), joined the Benz rationale to the Act's "affecting commerce" terminology. Incres, like Benz, considered whether the NLRA deprived a state court of jurisdiction over picketing of foreign-flag ships by American unions in support of a labor dispute between shipowners and a foreign crew. Concluding that "maritime operations of foreign-flag ships employing alien seamen are not 'in commerce' within the meaning of (NLRA) § 2(6)," id., at 27, 83 S.Ct. at 613, the Court held that the Act did not protect the picketing from operation of state law. In McCulloch v. Sociedad Nacional de Marineros, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), a companion case to Incres, the Court held that the NLRB had no jurisdiction to order a "representation election" among the foreign crews of foreign-flag vessels.

In contrast, the Court in ILA, Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), held that picketing directed at foreign-flag ships in order to protest substandard wages paid to non-union American longshoremen was arguably protected by section 7 of the Act, and thus not subject to the jurisdiction of the Florida courts. As the Court later described the case, in Windward Shipping (London) Ltd. v. American Radio Association, supra, 415 U.S. at 114, 94 S.Ct. at 965, Ariadne differed from Benz and Incres in that the protest "could be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country." In Windward Shipping itself, however, the Court again held that picketing foreign ships to protest wages paid to foreign seamen was not activity "affecting commerce," even though the picketing was staged by American unions not...