N.L.R.B. v. Dredge Operators, Inc.

• Citation: 19 F.3d 206
• Decision Date: 21 April 1994
• Docket Number: No. 93-4847,93-4847
• Parties: 146 L.R.R.M. (BNA) 2217, 127 Lab.Cas. P 11,079 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DREDGE OPERATORS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 206

19 F.3d 206

146 L.R.R.M. (BNA) 2217, 127 Lab.Cas. P 11,079

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DREDGE OPERATORS, INC., Respondent.

No. 93-4847.

United States Court of Appeals, Fifth Circuit.

April 21, 1994.

Margaret Gaines-Neigus, Aileen Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, N.L.R.B., Washington, DC, for respondent.

Bernard Marcus and Sheldon Winford Snipe, Deutsch, Kerrigan & Stiles, New Orleans, LA, for petitioner.

Sidney H. Kalban, Phillips Cappiello Kalban Hofmann & Katz, New York City, for intervenor.

Hugh Frank Malone, Regional Director, NLRB, New Orleans, LA, other interested party.

Application for Enforcement of an Order of the National Labor Relations Board.

Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN ^*, District Judge.

FRANK A. KAUFMAN, District Judge:

Respondent-appellant Dredge Operators, Inc. ("DOI") is a Louisiana corporation which operates an ocean-going, United States flag vessel known as the dredge Stuyvesant. On April 8, 1991, the National Maritime Union ("NMU" or "Union") filed a representation petition with the National Labor Relations Board ("NLRB"), seeking to represent a bargaining unit composed of the unlicensed members of the crew of the Stuyvesant, which was based at that time in Galveston, Texas. ¹ In mid-April the vessel sailed to San Francisco, from which it departed on April 27, 1991, for Hong Kong where it arrived on May 23, 1991. Since that time, the Stuyvesant has been engaged in dredging work for the new Hong Kong international airport pursuant to a contract with the government of Hong Kong.

On April 30, 1991, the representation hearing was held with regard to the aforementioned April 8, 1991, petition. Following the hearing, the Regional Director ordered, on May 28, 1991, that an election be held by mail ballot. DOI's request for review of the direction of election was denied on July 29, 1991. After the August 7, 1991 election, the Board certified the NMU as the statutory collective bargaining representative of the unlicensed seamen employed aboard the Stuyvesant on April 14, 1992. ² On April 28, 1992, the union requested collective bargaining negotiations with DOI which request DOI subsequently refused in a letter dated May 18, 1992. In that letter, DOI stated that the NLRB lacked jurisdiction over the Stuyvesant and that Hong Kong labor laws requiring the hiring of a certain percentage of Hong Kong employees conflicted with United States labor laws mandating that a United States flag vessel employ only Americans.

Currently, the Stuyvesant employs 12 Hong Kong crewmembers and 14 American crewmembers. DOI had obtained work permits from the Hong Kong government in July 1991 and April 1992 to employ American crew members. The work permits were conditioned upon DOI's agreement to retain the 12 Hong Kong crew members and to lay off American workers before Hong Kong workers in the event of a reduction in force. In a letter dated November 5, 1991, the Coast Guard notified DOI that the requirement of U.S. Shipping Act, 46 U.S.C. Sec. 8103(b)(1)(A), that a United States flag-vessel carry a full American crew would be suspended for the time being. The Coast Guard subsequently wrote to the Department of State explaining that DOI had hired Hong Kong workers with Coast Guard permission. According to DOI, the Department of State has not responded to that letter.

Following DOI's refusal to negotiate with the union, NMU filed a refusal to bargain charge against DOI on June 8, 1992. The NLRB then issued, on July 10, 1992, a "Complaint and Notice of Hearing" charging DOI with violations of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(5) and (1), ("NLRA" or "the Act"), ³ by refusing to bargain with the union. Apparently, the NLRB set no hearing date, nor did it give an actual notice of any hearing date with regard to the July 10, 1992, complaint.

General Counsel for the NLRB filed a motion for summary judgment on November 9, 1992, to which DOI responded on December 3, 1992, along with a cross-motion for summary judgment. In the meantime, on November 12, 1992, the Board had transferred the proceeding from the Regional Director to the NLRB in Washington D.C. for resolution. On December 16, 1992, the Board granted the Board's motion for summary judgment and ordered DOI to cease and desist and to bargain with the Union. 309 NLRB No. 159 (December 16, 1992). The Board determined that DOI had adduced no additional evidence requiring a reexamination of the prior April 30, 1991, representation hearing and that accordingly, DOI's refusal to bargain with the Union violated the NLRA. The Board also rejected as lacking merit DOI's contention that the July 19, 1992, complaint must be dismissed because it did not include a notice of hearing. In response to DOI's contention that it was no longer engaged in commerce, the Board found that DOI is an employer engaged in commerce within the meaning of the Act, noting that DOI received over $1 million at its Louisiana headquarters from the government of Hong Kong. The NLRB brings an application for enforcement of the NLRB's order, which DOI opposes. ⁴

We uphold the Board's findings of fact if they are supported by substantial evidence. NLRB v. Houston Bldg. Serv. Inc., 936 F.2d 178, 180 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1159, 117 L.Ed.2d 407 (1992) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). The Board's interpretation of the statutes it is charged with administering is upheld if reasonable and "is entitled to considerable deference." NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 829, 104 S.Ct. 1505, 1510, 79 L.Ed.2d 839 (1984) (citing NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978)). For the reasons stated herein, we enter judgment enforcing the Board's order.

I.

DOI first asserts that the NLRB lacks jurisdiction over this case because the Stuyvesant operates in Hong Kong territorial waters under contract with the Hong Kong government and has no present intention of returning to the United States. In addition, DOI contends that it is not engaged in "commerce" within the meaning of section 2(6) of the NLRA, 29 U.S.C. Sec. 152(6). ⁵

The Supreme Court "has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963). DOI concedes that the NLRB is not constitutionally barred from exercising jurisdiction over the Stuyvesant, but argues that comity concerns should prevent such an exercise of jurisdiction.

DOI relies almost exclusively on a series of Supreme Court cases concerning labor disputes aboard foreign flag vessels. In Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), the Supreme Court declined to apply the NLRA to an American union which was picketing on behalf of foreign crewmembers of a foreign flag vessel owned by a foreign corporation which was temporarily in an American port. The crew was made up entirely of nationals of countries other than the United States, and wages and hours of employment were governed by a British agreement. The Court noted that "a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country," but that "[t]he exercise of that jurisdiction is not mandatory." Id. at 142, 77 S.Ct. at 702. The question therefore which arose in Benz was "one of intent of the Congress as to the coverage of the Act." Id. The Court concluded that "Congress did not fashion [the NLRA] to resolve labor disputes between nationals of other countries operating ships under foreign law." Id. at 143, 77 S.Ct. at 702.

In Windward Shipping (London), Ltd. v. American Radio Ass'n, 415 U.S. 104, 111, 94 S.Ct. 959, 963, 39 L.Ed.2d 195 (1974), the Supreme Court noted that "[i]n the 17 years since Benz was decided ... this Court has continued to construe the [NLRA] in accordance with the dictates of that case." Writing in Windward, the Supreme Court recalled the decision in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), where "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." 415 U.S. at 111, 94 S.Ct. at 963. Continuing in Windward, the Court also noted Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), in which "we applied [the Benz and McCulloch] rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew, [and] 'concluded that maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of [the Act].' " 415 U.S. at 111, 94 S.Ct. at 964 (quoting Incres, 372 U.S. at 27, 83 S.Ct. at 613).

Nevertheless, in Windward, the Supreme Court further pointed out that Benz and its successor cases had not "exempt[ed] 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." Id. at 112, 94 S.Ct. at 964. In support of that proposition, the Court cited to International Longshoremen's Ass'n v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), in which 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 Sec. 2(6).' " 415 U.S. at 112, 94 S.Ct. at 964 (quoting Ariadne, 397 U.S. at 200, 90 S.Ct. at 874). In the light...