National Maritime Union of America, AFL-CIO v. NLRB

• Citation: 342 F.2d 538
• Decision Date: 05 March 1965
• Docket Number: Dockets 29067,No. 234,29068.,235,234
• Parties: NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

342 F.2d 538 (1965)

NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 234, 235, Dockets 29067, 29068.

United States Court of Appeals Second Circuit.

Argued January 15, 1965.

Decided March 5, 1965.

Abraham E. Freedman, New York City (Charles Sovel, New York City, and Mandell & Wright, Houston, Tex., on the brief), for petitioner.

Stephen B. Goldberg, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Lawrence M. Joseph, Attorney, N. L. R. B., on the brief), for respondent.

Before SMITH, KAUFMAN and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

On June 10, 1963 the S. S. Maximus, owned by Cambridge Carriers, Inc., docked at Pier 84 South in Philadelphia. The vessel had been commissioned to take food and drugs to Cuba in exchange for prisoners. Although the Grace Line, from which Cambridge had acquired the vessel a short time before, had a contract with Marine Engineers Beneficial Association (hereinafter referred to as MEBA), an affiliate of Seafarers International Union (referred to as SIU), Cambridge had collective bargaining agreements with National Maritime Union (referred to as NMU) and employed, as engineers, members of NMU's affiliate, Brotherhood of Marine Officers (referred to as BMO).

Shortly after the S. S. Maximus docked, MEBA picketed at Pier 84 and displayed placards describing Cambridge as unfair to MEBA engineers. At the same time a stevedoring company failed to order the necessary gangs, thus preventing the loading of the vessel's cargo and immobilizing her crew.

In retaliation NMU established picket lines at various piers in the ports of Philadelphia, Houston and Galveston where there were docked ships which had MEBA members in their crews. The placards of the picketers bore the legend "Informational Picketing" and said, "MEBA Engineers Interferes With Lawfully Recognized N. M. U." In Philadelphia the NMU picketing commenced on June 14 at Pier 27 on the north side of which the Weyerhaeuser vessel George S. Long, manned by MEBA engineers, was moored. On June 19, the picketing was extended to cover the vessel Portmar, owned by Calmar Steamship Corporation, also manned by MEBA engineers, which was moored on the south side of Pier 27. Nacirema Operating Co., a corporation performing stevedoring services in Philadelphia for Calmar and Weyerhaeuser, and Hinkins Steamship Agency, Weyerhaeuser's agent for soliciting and receiving cargo, were unable to perform their duties because of the refusal of the longshoremen to cross the picket line which was on a public street across the entrances to the north and south sides of the pier. Hinkins asked that the picket lines be removed, but was told by one Jardine, the picket captain, and one Parisi, NMU's port agent, that the request was impossible. Previously, just before pickets were placed to cover the south side of the pier, Jardine had been asked by a clerk for Weyerhaeuser's cargo agent whether or not there was any objection to the company's receiving freight on the south side of the pier and Jardine said that there was. Pickets were thereupon placed there, and unloading operations ceased. Similarly, Calmar was unable to have its vessel Portmar discharged of cargo. When Calmar's agent asked Jardine to move the picket line so that the work could go forward, Jardine refused.

In Houston and Galveston similar work stoppages occurred as employees of the stevedoring companies refused to perform services. At Houston there were eight ships at the Navigation District wharves and eight ships at Long Reach docks. As a result of the picketing and while it lasted, no ships handled cargo and no work of any kind was done at the docks. NMU's port agent at Houston, one McDowell, knew that the work stoppages resulted from picketing at that port; he so reported to NMU's headquarters in New York, and when, on June 20, 1963, the picketing ended in Philadelphia and he was so advised, McDowell said to reporters in Houston, "I have just called off my pickets, and as far as I am concerned the port can get back into operation."

At Galveston unloading of Delta Steamship Lines' vessel Del Alba at Pier 35 was discontinued on June 17, 1963 as soon as NMU commenced picketing the pier and the work stoppage continued during the two days the pier was picketed. The NMU had no dispute with any of the shipowners, stevedoring companies or other employers at any of the docks it picketed in Philadelphia, Houston or Galveston. On the surface, the NMU's object was informational — to appeal to the public and to the MEBA rank-and-file so that they would protest against the allegedly unlawful picketing of the Maximus. But NMU made no attempts in any of the three ports to publicize by mass communications its dispute with MEBA, nor was there picketing of MEBA's headquarters. Likewise, there was a failure to inform longshoremen that it would be permissible for them to cross the picket lines and no plan was instituted, despite requests, to alter the method of picketing in order to permit the work to resume. In fact, in all ports the leaflets distributed were addressed not alone to MEBA members, but to all union men, exhorting them to cooperate with NMU in fighting MEBA and warning the shipowners and stevedoring companies that if they were unable to "stand up to outfits that try to put pressure on them in a phony beef, then they're really going to be in trouble."

Upon the foregoing facts the National Labor Relations Board found that NMU had violated § 8(b) (4) (i) (ii) (B), 29 U.S.C. § 158(b) (4) (i) (ii) (B), by inducing and encouraging employees of Weyerhaeuser, Calmar, Hinkins and Nacirema and employees of certain Houston and Galveston stevedoring companies to refuse to perform services for their employers and by threatening and coercing neutral employers with an object of forcing or requiring them to cease doing business with each other. The Board conceded that in each case NMU's ultimate object — protecting itself in a representation dispute with a rival union — was lawful. Under these circumstances, peaceful picketing directed solely at MEBA members and publicity directed at the unorganized public would have been beyond the purview of the statute. The Board concluded, however, that the immediate aim and purpose of the picketing was to exert economic pressure on the employers involved through cessation of business to compel them to cause MEBA to end the controversy on the Maximus, and hence the picketing was violative of § 8(b) (4) (i) (ii) (B). In each case it ordered NMU to cease and desist from the unfair labor practices found and to post appropriate notices.

The petitioner asks for a review of these orders and a denial of enforcement on the grounds (1) that the controversy here does not constitute a "labor dispute" within the definition of those words in § 2(9) of the Act, 29 U.S.C. § 152(9), and that therefore the Board had no jurisdiction, (2) that because the real dispute here was with MEBA, another union, and there was no dispute with a "primary employer," there could be no "secondary boycott" within § 8(b) (4), 29 U.S.C. § 158(b) (4), and, (3) that the Board's order infringed NMU's right of free speech.

We are satisfied that the controversy with which this case is concerned is a "labor dispute" within the definition of § 2(9). It is a controversy which concerns the association or representation of persons in maintaining terms or conditions of employment. It is true as the petitioner states that NMU had no quarrel at the time with Cambridge as the owner of S. S. Maximus with whom NMU had a contract. It was, however, by affirmative action of its own, seeking to fend off or retaliate for picketing of the S. S. Maximus by MEBA in their continuing warfare to gain or retain the upper hand in representing maritime employees. Several employers and their employees were directly affected. Both the purposes of the Act and the definition of "labor dispute" are broad and encompass the factual circumstances here presented. The definition of "labor dispute" in this Act and in the Norris-LaGuardia Act, § 13(c), 29 U.S.C. 113(c), are virtually identical. In Milk Wagon Drivers' Union, Local No. 753 etc. v. Lake Valley Farm Products, Inc., 311 U.S. 91, 99-100, 61 S.Ct. 122, 126, 85 L.Ed. 63 (1940), the Supreme Court said:

"This merely transformed the defendants\' activities from an effort to organize non-union men to a conflict which included a controversy between two unions. A controversy `concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment\' is expressly included within the definition of a labor dispute in the Norris-LaGuardia Act."

We see no reason why the same definition should be given a narrower construction or interpretation for the broad purposes of the Labor Management Relations Act. The petitioner advances as a reason for doing so that in the Norris-LaGuardia Act there are, in addition to the definition of "labor dispute" in § 13(c), the provisions of § 13(a) which describe the parties which must be implicated to constitute cases which "involve or grow out of a labor dispute." From this it argues that the absence of a provision in the Labor Management Relations Act, similar to § 13(a) of the Norris-LaGuardia Act, compels the conclusion that the Board's jurisdiction under § 2(9) — a provision which it claims is "narrower" in its scope than § 13 of the Norris-LaGuardia Act, read in its entirety — does not extend to inter-union controversies. This argument is not persuasive. The effect of § 13(a), though broad in itself, is to limit the cases which can be held to "involve or grow out of" a labor dispute. It does not change the definition of a labor dispute in the least. The Labor Management Relations Act contains no such...