Baldovin v. International Longshoremen's Ass'n, AFL-CIO, AFL-CIO

• Decision Date: 25 September 1980
• Docket Number: AFL-CIO,Nos. 80-1174,80-7174,s. 80-1174
• Citation: 626 F.2d 445
• Parties: 105 L.R.R.M. (BNA) 2549, 89 Lab.Cas. P 12,302 Louis V. BALDOVIN, Jr., Regional Director of Region 23 of the National Labor Relations Board, etc., Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,, et al., Defendants- Appellees. Curtis L. MACK, Regional Director of Region 10 of the National Labor Relations Board, etc., Plaintiff-Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 445

626 F.2d 445

105 L.R.R.M. (BNA) 2549, 89 Lab.Cas. P 12,302

Louis V. BALDOVIN, Jr., Regional Director of Region 23 of

the National Labor Relations Board, etc., Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, et al.,

Defendants- Appellees.

Curtis L. MACK, Regional Director of Region 10 of the

National Labor Relations Board, etc., Plaintiff-Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, et al.,

Defendants- Appellants.

Nos. 80-1174, 80-7174.

United States Court of Appeals Fifth Circuit.

Sept. 25, 1980.

Joseph E. Mayer, Washington, D.C., for Louis V. Baldovin and Curtis L. mack.

Robert E. Williams, McGuiness & Williams, Washington, D.C., for American Farm Bureau Federation, et al., amicus curiae.

Bray & Watson, Houston, Tex., Seymour M. Waldman, New York City, James R. Watson, Jr., Houston, Tex., for International Longshoremen's Ass'n, and S.A.G.C.D.

Mandell & Wright, Sidney L. Ravkind, Houston, Tex., Thomas W. Gleason, Ernest L. Mathews, Jr., New York City, for International Longshoremen's Ass'n Local No. 872.

Lee & Clark, Fred S. Clark, Savannah, Ga., for ILA Locals 1414 & 1423.

Wayne S. Bishop, Thomas P. Gies, Washington, D.C., for Occidental Chemical Co., amicus curiae.

Appeal from the United States District Court for the Southern District of Texas (No. 80-1174).

Appeal from the United States District Court for the Southern District of Georgia (No. 80-7174).

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

These cases pose the important question whether the prohibition of secondary boycotts in the Labor Management Relations Act bans the refusal by an American maritime union to work for a stevedore loading cargo destined for or originating in the Union of Soviet Socialist Republics based on the union's desire to voice a political protest and to avoid giving aid and comfort to a nation whose policies it considers inimical. Following Supreme Court decisions that hold a dispute between a union and a foreign entity not to be "in commerce" and, therefore, not prohibited by the LMRA, we affirm the decision of the District Court for the Southern District of Texas denying an injunction to the National Labor Relations Board and we vacate the injunction issued by the district court for the Southern District of Georgia.

I.

The events giving rise to these controversies ¹ are set forth in our opinion in New Orleans Steamship Ass'n v. General Longshore Workers, ILA, Local Union No. 1418, 626 F.2d 455 (5 Cir. 1980). Because of its objection to the invasion of Afghanistan by the Soviet Union and in order to avoid enhancing the economic well-being of a nation it considers unfriendly, the International Longshoremen's Association (ILA) refused to load cargo aboard ships bound for the U.S.S.R. At the Port of Houston, ILA locals and their members refused to load a cargo of unembargoed corn produced in the United States aboard a ship destined for the Soviet Union. The ILA refusal to work occurred, of course, in the United States and has affected the farmers who produce grain, the transportation companies who move it to ports and the stevedores who load it aboard vessels.

The ILA concedes that it has no dispute with any person doing business at the Port of Houston and that its sole dispute is with the U.S.S.R. The Texas Farm Bureau, the Kansas Farm Bureau and the American Farm Bureau Federation each filed separate unfair labor practice charges with the National Labor Relations Board (NLRB) alleging that the ILA and its Houston locals were violating Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act (NLRA) as amended by the Labor Management Relations Act (LMRA), 29 U.S.C. § 158(b)(4)(i) and (ii)(B), commonly known as the "secondary boycott" provisions. The Regional Director, Baldovin, investigated the charges, determined that there was reasonable cause to believe that the ILA and its locals were violating the Act as charged and that a complaint should issue, and, as required by Section 10(l ) of the Act, 29 U.S.C. § 160(l ), filed a petition for temporary injunctive relief pending the Board's final adjudication of the unfair labor practice charges. After a hearing, the petition was denied. ²

Two ILA locals had agreements with shippers and stevedoring companies operating in the Port of Brunswick, Georgia, containing no-strike clauses. Local 1414 refused to supply workers to unload a shipment of anhydrous ammonia from Russia and Local 1423 refused to unload a load of potash from the U.S.S.R. Mack, the NLRB Regional Director for that area, sought an injunction against the ILA boycott in the Southern District of Georgia. Differing with the Texas District Court, that court issued a preliminary injunction.

II.

Section 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4), provides, in pertinent part, "(i)t shall be an unfair labor practice for a labor organization or its agents: (i) to engage in, . . . 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 . . . handle or work on any goods . . . or to perform any services; . . . (ii) . . . where . . . an object thereof is: . . . (B) forcing or requiring any person. . . to cease doing business with any other person . . . ." These provisions implement the "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284, 1297 (1951). See also National Woodwork Manufacturers Ass'n v. N.L.R.B., 386 U.S. 612, 620-627, 87 S.Ct. 1250, 1255-59, 18 L.Ed.2d 357, 364-368 (1967); N.L.R.B. v. Local 825, Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406-407, 27 L.Ed.2d 398, 404-405 (1971).

This section does not prohibit a union from taking traditional primary action against an employer, such as striking or picketing, in furtherance of a dispute with that employer. See Local 761, Electrical, Radio & Machine Workers v. N.L.R.B., 366 U.S. 667, 672-674, 81 S.Ct. 1285, 1288-90, 6 L.Ed.2d 592, 596-598 (1961). However, it does prohibit a union from bringing pressure to bear against an employer with whom it has no dispute (a "secondary" or "neutral" employer) when one of the union's objectives is either to force that neutral employer to cease doing business with any other person or to cause some other person to cease doing business with the neutral employer. Cf. NLRB v. Retail Store Employees Union, ---U.S. ----, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980) (Section 8(b)(4)(ii)(B) forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott completely a neutral party's business).

To paraphrase the Supreme Court's explanation of the primary-secondary dichotomy in National Woodwork, 386 U.S. at 644-645, 87 S.Ct. at 1268-69, 18 L.Ed.2d at 378, the "touchstone" is whether the union's concern is with the labor relations of the employer against whom its pressures are directed vis-a-vis its own employees (protected "primary" activity) or whether the activity is "tactically calculated to satisfy union objectives elsewhere" (prohibited "secondary" activity). Accord, N.L.R.B. v. Enterprise Ass'n & General Pipefitters, Local 638, 429 U.S. 507, 511, 97 S.Ct. 891, 894-95, 51 L.Ed.2d 1, 8 (1977).

All of the parties agree that the ILA does not seek to affect the labor relations of the employers with whom it has contracts or the terms and conditions of employment of their employees. The ILA's dispute is exclusively with the Soviet government which is the only authority capable of responding to its protest. The stevedoring, shipping, exporting or importing companies and all other persons doing business in the port of Houston and in other ports along the east and gulf coasts are completely neutral with regard to the ILA's dispute with the Soviet Union. The ILA boycott is, therefore, secondary within the meaning of the Act. It violates the purpose of the secondary boycott ban: to compel the union to confront the employer with whom it has its real or primary dispute pursuant to the usual procedures of the NLRA.

III.

The secondary boycott provisions reach any activities aimed at individuals employed by a "person engaged in commerce or in an industry affecting commerce. . . ." NLRA Section 8(b)(4)(i)(B), as amended, 29 U.S.C. § 158(b) (4)(i)(B). These provisions buttress the general limitation of the NLRA, as amended by the LMRA, to activities "affecting commerce." NLRA Section 1, as amended, 29 U.S.C. § 151; NLRA Section 2(6) and (7), as amended, 29 U.S.C. § 152(6) and (7). The NLRB's jurisdiction over secondary boycotts is also confined to secondary activity "affecting commerce." NLRA Section 10(a), as amended, 29 U.S.C. § 160(a).

The direction of legislation toward activities affecting commerce arose from the constitutional provision authorizing Congress "to regulate Commerce . . . among the several States," U.S.Const. Art. I, § 8, cl. 3, and the implicit limitation of congressional power to the subjects delegated to it by the Constitution. The Congress lacks transcendent legislative authority with regard to labor relations as well as other matters. Its authority to prescribe labor-management ordinances derives from its power over interstate commerce. See N.L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313-314, 9 L.Ed.2d 279, 281 (1963); Guss v. Utah Labor Relations Board, 353 U.S. 1, 3, 77 S.Ct. 598, 599, 1 L.Ed.2d 601, 603 (1957); Consolidated Edison Co. of New York v. N.L.R.B. 305 U.S. 197, 222, 59 S.Ct. 206, 213, 83 L.Ed. 126, 136 (1938). While it may legislate about matters arising in or affecting interstate...