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

• Decision Date: 15 October 1992
• Docket Number: No. 91-3908,AFL-CI,D,91-3908
• Citation: 975 F.2d 779
• Parties: 141 L.R.R.M. (BNA) 2489, 61 USLW 2260, 123 Lab.Cas. P 10,408 Francis E. DOWD, Regional Director of Region 12 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff-Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,efendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 779

975 F.2d 779

141 L.R.R.M. (BNA) 2489, 61 USLW 2260,

123 Lab.Cas. P 10,408

Francis E. DOWD, Regional Director of Region 12 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board Plaintiff-Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO Defendant-Appellant.

No. 91-3908.

United States Court of Appeals Eleventh Circuit.

Oct. 15, 1992.

Ernest L. Mathews, Jr., Herzl S. Eisenstadt, New York City, for defendant-appellant.

J. David Richeson, James G. Brown, Richeson & Brown, Orlando, Fla., for amicus curiae Coastal Stevedoring Co.

Ellen A. Farrell, Laura Goodman, NLRB, Washington, D.C., Margaret Diaz, NLRB, Tampa, Fla., for plaintiff-appellee.

Paul M. Heylman, Robert L. Duston, Washington, D.C., for amici curiae Canaveral Stevedoring, Inc. and the Canaveral Port Authority.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH, Circuit Judge, JOHNSON ^*, and BOWNES ^**, Senior Circuit Judges.

BIRCH, Circuit Judge:

In this case we must decide whether an American labor union which induces a foreign union to pressure foreign importers engaged in commerce, with the purpose and effect of establishing a secondary boycott in the United States, commits a violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1988) ("NLRA"). Finding that the Regional Director of the National Labor Relations Board (the "Board") had articulated a substantial legal and factual basis to support a finding that unfair labor practices had been committed, the district court imposed a temporary injunction under section 10(l ) of the NLRA. 781 F.Supp. 1565. We AFFIRM.

I.

For the past several years, Florida grapefruit has been shipped to Japan from Fort Pierce and Port Canaveral pursuant to agreements between American exporters and Japanese importers. The International Longshoremen's Association ("ILA") is engaged in a labor dispute with Coastal Stevedoring Company ("Coastal") and Port Canaveral Stevedoring Limited ("Canaveral"), which operate from Fort Pierce and Port Canaveral respectively. Both Coastal and Canaveral use non-union labor to load shipments of grapefruit bound for Japan, where the fruit is unloaded by employees of Japanese stevedoring companies.

Prior to the 1990-1991 shipping season, ILA delegates visited Japan and met with representatives of the National Council of Dockworkers' Unions of Japan, the Japan Labor Union Association, and the Japan Seamen's Union (collectively, the "Japanese Unions"). The ILA expressed its concern over the use of non-union labor at several Florida ports and requested the assistance of the Japanese Unions in pressuring participants in the citrus trade to use stevedoring companies which employ union labor. In various communications, widely disseminated among participants in the grapefruit export industry, Japanese Union officials requested that importers ensure that the fruit they purchased was loaded in Florida by stevedoring companies that hire union employees. Further, these communications warned that dockworkers belonging to the Japanese Unions would refuse to unload fruit loaded in American ports by non-union labor.

In a letter dated October 4, 1990, ILA president John M. Bowers informed Toshio Kamezaki, president of the National Council of Dockworkers' Unions of Japan, of ILA's plans to picket Coastal and Canaveral. He stated that "[y]our further support in denying the unloading and landing of these picketed products in your country will also be most helpful to the members of the International Longshoremen's Association...." R1-24-6.

Several Japanese importers expressed their concern to Florida exporters and stevedoring companies that Japanese dockworkers would not handle fruit loaded in Florida by non-union labor. Subsequent communications reveal that, as a result, at least one ship was diverted from Fort Pierce, where it would have been handled by non-union labor, to Tampa, where it was loaded by longshoremen represented by ILA. In a letter to the National Council of Dockworkers' Unions of Japan dated November 6, 1990, ILA special consultant Ernest Lee noted that the diversion of this ship to Tampa was "a direct result of your very timely and effective notices to relevant parties in Japan of your support for our efforts." R1-1-Ex. 8. Further, Lee noted that "[y]our continued efforts on our behalf will be most appreciated." Id. These efforts continued with demonstrated success. After news of the boycott threatened by the Japanese Unions on behalf of ILA filtered through the industry, neither Canaveral nor Coastal handled another shipment of citrus bound for Japan for the remainder of the 1990-1991 export season.

On June 14, 1991, the Board filed a petition for injunction pursuant to section 10(l ) of the NLRA alleging that there was reasonable cause to believe that ILA had threatened, coerced, or restrained neutral persons to cease doing business with Coastal and Canaveral in violation of NLRA section 8(b)(4)(ii) and that injunctive relief was just and proper. The magistrate judge issued a report and recommendation that the petition be granted.

Following review of the record, the district court adopted the report of the magistrate judge and ordered ILA, pending a final adjudication by the Board, to refrain from threatening persons neutral to the dispute with Coastal and Canaveral and to repudiate its written request soliciting the aid of the Japanese Unions.

II.

Section 8(b)(4)(ii)(B) of the NLRA prohibits coercion or refusals to deal aimed at employers or others not principally involved in an underlying labor dispute, i.e., "secondary" or "neutral" employers, while preserving the right of labor organizations to bring such pressure against employers primarily involved in the dispute. ¹ Section 10(l ) of the NLRA is thus an exception to the general prohibition in the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (1988) against federal injunctions in labor disputes. Section 10(l ) authorizes the district court to grant interim injunctive relief pending the Board's resolution of charges involving certain labor practices, such as the secondary boycott at issue here, which are likely to have a particularly disruptive effect upon the flow of commerce. 29 U.S.C. § 160(l ).

When confronted with a petition for injunction under section 10(l ), the "function of the District Court is not to determine whether an unfair labor practice has in fact been committed, but simply to determine whether there is reasonable cause to believe that a violation of the [National Labor Relations] Act has occurred." Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445, 454 (5th Cir.1980). The district court's inquiry into reasonable cause "is limited to evaluating whether the Board's 'theories of law and fact are not insubstantial and frivolous.' " Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir.1992), (quoting Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1189 (5th Cir.1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976)). ² This deferential review is appropriate at the injunction stage even where the theory underlying the petition is "untested" or "novel," in order to preserve the legal issue for Board determination. Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 789 (5th Cir.1973). In addition to demonstrating reasonable cause to believe that an unfair labor practice has occurred, the Board must show that equitable relief is "just and proper" under the circumstances. 29 U.S.C. § 160(l ); Arlook, 952 F.2d at 372.

The conclusion of the district court that the Board has presented a substantial and not frivolous legal theory is subject to our plenary review on appeal. Arlook, 952 F.2d at 372. Neither the Board's evidentiary showing nor the equitable propriety of the injunction has been questioned by ILA. ILA challenges only the Board's legal theory, arguing that ILA did not "threaten, coerce, or restrain" any person as required by section 8(b)(4)(ii)(B), and that the conduct of the Japanese Unions, while clearly of the type proscribed by this section, may not be attributed to ILA. Further, ILA contends that the district court had no jurisdiction to grant an injunction because the conduct at issue occurred beyond the territorial scope of the NLRA. We find it instructive to address the jurisdictional issue after first considering ILA's objection that its conduct does not fall within the language of section 8(b).

III.

ILA argues that it did not "threaten, coerce, or restrain" any person in commerce, as required to find a violation of section 8(b)(4)(ii), but merely requested the aid of the Japanese Unions, who in turn threatened various Japanese importers. The Board urges us to attribute the conduct of the Japanese Unions to ILA based on theories of agency, ratification, and joint venture. ³ ILA maintains that the record is devoid of any evidence that the dealings between ILA and the Japanese Unions satisfy the formal requisites of an agency or joint venture relationship, or to support the Board's theory of ratification.

When adjudicating an unfair labor practice under the NLRA, common law concepts of agency are to be applied broadly to effectuate the statutory purpose. In condemning certain unfair labor practices by an employer, the Supreme Court stated:

The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondeat superior. We are dealing here not with private rights nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence.

International Ass'n of...