International Longshoremen's Ass'n, AFL-CIO v. N.L.R.B.

• Decision Date: 03 August 1995
• Docket Number: No. 93-1812,AFL-CI,P,93-1812
• Citation: 312 U.S. App DC 241,56 F.3d 205
• Parties: 149 L.R.R.M. (BNA) 2449, 312 U.S.App.D.C. 241, 63 USLW 2780, 130 Lab.Cas. P 11,369 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Canaveral Port Authority, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 205

56 F.3d 205

149 L.R.R.M. (BNA) 2449, 312 U.S.App.D.C.

241, 63 USLW 2780,

130 Lab.Cas. P 11,369

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Canaveral Port Authority, et al., Intervenors.

No. 93-1812.

United States Court of Appeals District of Columbia Circuit.

Argued May 11, 1995.

Decided June 6, 1995.

Rehearing and Suggestions for Rehearing

In Banc Denied Aug. 3, 1995.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Ernest L. Mathews, Jr., New York City, argued the cause for petitioner. With him on the briefs was Maura R. Cahill, New York City.

Robert J. Englehart, Atty., N.L.R.B., Washington, DC, argued the cause for respondent. With him on the briefs were Linda R. Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Frederick Havard, Supervisory Atty., Washington, DC. Howard E. Perlstein, Deputy Asst. Gen. Counsel, and John H. Fawley, Atty., Washington, DC, entered appearances.

Robert L. Duston, Washington, DC, argued the cause and filed the brief, for intervenor Canaveral Port Authority.

Betty S. Murphy, Washington, DC, argued the cause for intervenor Coastal Stevedoring Co., et al. With her on the joint brief were David A. Grant and Robert L. Duston, Washington, DC.

Before: EDWARDS, Chief Judge, WALD and BUCKLEY, Circuit Judges.

HARRY T. EDWARDS, Chief Judge:

This case requires us to decide whether a domestic labor union commits an unfair labor practice under the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. Sec. 151 et seq. (1988), by seeking the support of Japanese unions in connection with labor disputes involving nonunion employers in the United States. Petitioner International Longshoremen's Association ("ILA") seeks review of a decision of the National Labor Relations Board ("NLRB" or "Board") holding that the ILA violated section 8(b)(4) of the Act, 29 U.S.C. Sec. 158(b)(4), by establishing a secondary boycott through the actions of its putative agents, the Japanese unions. Because we hold that the Board erred in attributing the actions of the Japanese unions to the ILA, we grant the petition for review and remand the case to the Board.

In 1947, Congress amended the NLRA with the enactment of the Labor Management Relations Act, ch. 120, 61 Stat. 136 (1947) ("LMRA"). A principal provision of the LMRA was the section 8(b)(4) proscription of "secondary boycotts"--a practice aptly described as "a combination to influence A by exerting some sort of economic or social pressure against persons who deal with A." FELIX FRANKFURTER & NATHAN GREENE, THE LABOR INJUNCTION 43 (1930) (footnote omitted). As this description implies, secondary boycotts embroil neutral parties in disputes between employees and their employers, and it is for this reason that Congress has condemned them. See International Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 225, 102 S.Ct. 1656, 1664, 72 L.Ed.2d 21 (1982) (stating that Congress drafted section 8(b)(4) "to protect neutral parties, the helpless victims of quarrels that do not concern them at all") (internal quotations omitted). However, in drafting section 8(b)(4), Congress did not create a "sweeping prohibition" on all forms of secondary boycotts. Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 98, 78 S.Ct. 1011, 1015, 2 L.Ed.2d 1186 (1958). Rather, the provision "describes and condemns specific union conduct directed to specific objectives." Id. Thus, section 8(b)(4)(i) specifically targets union actions to engage in, or induce or encourage others employed in commerce to engage in, a strike or refusal to work on goods, see 29 U.S.C. Sec. 158(b)(4)(i), and section 8(b)(4)(ii) prohibits union actions to threaten or coerce persons engaged in commerce, see id. Sec. 158(b)(4)(ii), where in either case the object of such action is to force a person to cease using or otherwise dealing in the products of another, see id. Sec. 158(b)(4)(B). In this case, the ILA did neither.

The undisputed facts reveal that the ILA merely requested assistance from Japanese labor unions in its dispute with two nonunion stevedoring companies engaged in Florida's citrus fruit export trade. In response, the Japanese unions gave notice that their members would refuse to unload any fruit in Japan that had been loaded in Florida by nonunion workers. As a consequence of this threat, all Florida-Japan citrus shipments were redirected to new ports of embarkment during the 1990-1991 export season. The parties adversely affected by these actions--the two stevedoring companies and one neutral party--filed unfair labor practice charges against the ILA.

Upon reviewing the unfair labor practice charges, the Board held that the ILA had violated the prohibition against secondary boycotts. In reaching this conclusion, however, the Board could not rely on section 8(b)(4)(i), for, although the ILA arguably induced or encouraged other employees to refuse to handle goods, the employees to whom the ILA's entreaties were addressed were Japanese longshoremen, who are not employed by a person "engaged in commerce" as the Act requires. 29 U.S.C. Sec. 158(b)(4)(i). Nor could the Board find that the ILA's actions, standing alone, fell within the scope of section 8(b)(4)(ii), because the Japanese unions, not the ILA, issued the alleged threats that created the boycott. Nevertheless, the Board held that the ILA's actions fell within the scope of section 8(b)(4)(ii) pursuant to a theory of agency law. Under this theory, the Board held that the Japanese unions acted as the agents of the ILA merely because the ILA requested the Japanese unions' actions and benefited from the results of those actions.

In its petition for review, the ILA claims that the Board's agency theory is untenable. We agree. Not only is the Board's theory completely without support in nearly 50 years of NLRB and judicial precedent interpreting the secondary boycott provision of the NLRA, but it flies in the face of the common law agency principles that Congress sought to incorporate into the Act. Put simply, the ILA and the Japanese unions were completely independent entities; neither exercised any control over the other. If they were bound together at all, it was by a spirit of labor solidarity, but such a spiritual link is too frail to render one union the agent of another. Thus, we reject the Board's theory and remand the case for further consideration.

I. BACKGROUND

This case arises from a labor dispute in the Florida citrus export industry. Japan is a major importer of Florida citrus fruit, and, prior to the events at issue in this case, Florida exporters had shipped fruit to Japan from Fort Pierce and Port Canaveral for several years pursuant to agreements between American exporters and Japanese importers. In the shipping process, American stevedores load the fruit on ships bound for Japan, where the fruit is unloaded by Japanese stevedores. Coastal Stevedoring Co. ("Coastal"), a nonunion company, is the sole stevedoring company in Fort Pierce. Port Canaveral Stevedoring, Ltd. ("Canaveral"), also a nonunion company, conducts business from Port Canaveral, which is operated by a Florida state entity, the Canaveral Port Authority. The ILA has been engaged in labor disputes with Coastal and Canaveral regarding those companies' failures to hire union-represented employees.

Before the 1990-91 citrus export season, ILA representatives visited Japan and met with representatives of several Japanese unions to express concern that Japanese importers were using the services of nonunion stevedores at Port Canaveral and Fort Pierce, and to request assistance in their ongoing dispute with nonunion companies. In response, the Japanese unions asked numerous stevedoring companies, citrus importers, and shipping companies to ensure that all citrus fruit they imported from Florida was loaded by union workers. Further, the Japanese unions warned that they would refuse to unload any fruit loaded by nonunion workers.

In a letter to the Japanese dockworkers' unions dated October 4, 1990, ILA President John Bowers stated that the ILA was planning to picket nonunion stevedoring companies at Fort Pierce and Port Canaveral, and asked for the support of the Japanese unions. Bowers closed the letter by stating, "Your 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 [ILA] and organized labor in the United States which supports our effort." Letter from John Bowers to Toshio Kamezaki (Oct. 4, 1990), reprinted in Joint Appendix ("J.A.") 64. The Japanese unions circulated copies of Bowers's letter to various citrus importers, exporters, and shipping companies. As a result, Japanese importers expressed concern to Florida exporters that citrus fruit loaded by nonunion workers would not be unloaded by Japanese longshoremen.

By late October 1990, after having failed to obtain assurances that Japanese dockworkers would unload fruit loaded by nonunion workers, one Japanese importer, Sumisho Fruits and Vegetables Co., and its carrier, Cool Carriers, Inc., directed the ship Bagno El Triunfo to go to Tampa for loading by union stevedores, instead of to Fort Pierce as originally scheduled. By letter dated November 6, 1990, ILA Special Consultant Ernest S. Lee wrote to the Japanese dockworkers' unions to state that the diversion of the ship was "a direct result of your very timely and effective notices to relevant parties in Japan of your support for our efforts.... Thank you." Letter from Ernest S. Lee to Toshio Kamezaki (Nov. 6, 1990), reprinted in J.A. 79. In the letter, Lee also advised that "[y]our continued efforts on our behalf will be most appreciated." Id. Following the lead of Sumisho Fruits and Vegetables, several Japanese importers during December 1990 informed...