Walsh v. International Longshoremen's Ass'n

• Decision Date: 30 April 1980
• Docket Number: Civ. A. No. 80-559-S.
• Citation: 488 F. Supp. 524
• Parties: Michael F. WALSH, Acting Regional Director of the First Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO and Local 799, International Longshoremen's Association, AFL-CIO, Respondents.
• Court: U.S. District Court — District of Massachusetts

488 F. Supp. 524

Michael F. WALSH, Acting Regional Director of the First Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO and Local 799, International Longshoremen's Association, AFL-CIO, Respondents.

Civ. A. No. 80-559-S.

United States District Court, D. Massachusetts.

April 30, 1980.

John S. May, Boston, Mass., for petitioner.

Joseph T. Doyle, Boston, Mass., for respondents.

MEMORANDUM AND ORDER

SKINNER, District Judge.

Petitioner commenced this action on March 27, 1980, seeking preliminary injunctive relief pursuant to § 10(1) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(1), pending final disposition of alleged unfair labor practices now before the National Labor Relations Board. The Board herein alleges, in support of its petition, that respondents have engaged in and continue to engage in conduct constituting a secondary boycott, in violation of §§ 8(b)(4)(i) and 8(b)(4)(ii)(B) of the Act, 29 U.S.C. §§ 158(b)(4)(i) and 158(b)(4)(ii)(B).

The facts are undisputed and may be briefly summarized. Allied International, Inc. ("Allied"), a Massachusetts corporation, is engaged in the import, purchase, and sale of wood products. Waterman Steamships Lines ("Waterman"), a New York corporation, transports freight to and from foreign and domestic ports, through the use of various oceangoing vessels of United States registry, including the WALTON, the MIDDLETON, and the JEFFERSON. John T. Clark & Son of Boston, Inc. ("Clark"), a Massachusetts corporation, is a stevedoring company, engaged in docking, loading and unloading oceangoing vessels in the port of Boston, and has been employed by Waterman to perform these services for all of its ships docking in Boston. The initial source of longshoremen for Clark's operations is a hiring hall operated by the respondents International Longshoremen's Association ("ILA"), and its Local 799, pursuant to a collective bargaining agreement between the Boston Shipping Association and respondent unions.

Allied has contracted with two agencies of the Soviet Union for the purchase and transport of birch plywood and hardboard from the U.S.S.R. Pursuant to Waterman's contract with a third Soviet agency for the shipment of Soviet goods, Waterman and Allied have established the terms and conditions of Allied's shipments from the U.S. S.R. through direct negotiations.

On January 9, 1980, Thomas Gleason, President of respondent ILA, ordered union members to cease handling Russian ships and Russian cargoes, apparently in protest of the Soviet invasion of Afghanistan.¹ On that date, the WALTON was in Boston, unloading a portion of Allied's plywood and hardboard purchased from the Soviet Union, prior to further unloading at ports along the East Coast. Gleason informed Allied at that time that ILA members would not unload WALTON's cargo at any United States ports other than the port of Boston. As a result, Waterman cancelled the WALTON's scheduled calls, and unloaded all of Allied's wood products cargo in Boston, where it is currently stored, accruing demurrage and security charges. Waterman also restricted the cargo then being loaded onto the MIDDLETON in Leningrad to one-third its scheduled size, cancelled its delivery to scheduled United States ports, and unloaded the wood products in Montreal. In addition, Waterman has repudiated its agreement to transport Allied's wood products aboard the JEFFERSON. Allied subsequently made arrangements with a Soviet agency to transport its cargo on board two vessels of U.S.S.R. registry, scheduled to arrive in late April or early May 1980. Respondents informed Allied on March 12 and March 25 that no ILA members would unload any cargo originating in the U.S.S.R.

On February 26, 1980, March 6, 1980, and March 26, 1980, Allied filed charges with the Board alleging that the ILA and Local 799 were engaging in a secondary boycott, in violation of §§ 8(b)(4)(i) and (ii)(B) of the Act, by forcing Clark to cease doing business with Waterman and Allied, Waterman to cease doing business with Allied, and Waterman, Allied, and Clark to cease doing business with the U.S.S.R. The Board here seeks a § 10(1) injunction pending resolution of these charges.

§ 10(1) provides, in pertinent part:

Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B), or (C) of section 158(b) of this title, . . . the preliminary investigation of such charge shall be made forthwith . . .. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law.

Congress had determined that such preliminary relief may be critical to the effectuation of the purposes of the Act; traditional requirements for injunctive relief do not apply. Union de Tronquistas de Puerto Rico v. Arlook, 586 F.2d 872, 878 (1st Cir. 1978). The Regional Director must demonstrate (1) a reasonable cause to believe that an unfair labor practice has occurred, (2) legal theories to support the charge that are not "without substance", and (3) that a temporary injunction would be "just and proper" in light of the Act's purposes. Arlook, supra, at 876. The ultimate factual resolution is for the Board, subject to review by the Court of Appeals. Hirsch v. Building & Constr., Trades Council of Phila. & Vic., 530 F.2d 298, 302 (3rd Cir. 1976); Douds v. International Brotherhood of Teamsters, 139 F.Supp. 702, 712 (S.D.N.Y. 1956). If this court is convinced that the theories advanced by the petitioner are wrong, it must deny injunctive relief. Danielson v. Joint Bd. of Coat, Suit & Allied Garment Wkrs. Union, 494 F.2d 1230 (2d Cir. 1974).

Issue Preclusion

Before deciding whether the grounds exist to issue an injunction, I must first determine the legal effect of two prior federal court decisions arising out of this same dispute. On February 15, 1980, Judge Black of the Southern District of Texas denied a § 10(1) petition sought by the Board to require ILA members in the port of Houston to load grain destined for the U.S.S.R. Baldovin v. Int'l Longshoremen's Assoc., AFL-CIO, No. H-80-259 (S.D.Tex. Feb. 15, 1980). On March 4, 1980, Judge Edenfield of the Southern District of Georgia granted a § 10(1) petition covering the ports of Savannah and Brunswick. Mack v. Int'l Longshoremen's Assoc., AFL-CIO, No. CV 480 051 (S.D.Ga. Mar. 4, 1980). The parties here argue that I am bound under the doctrines of issue preclusion by one or the other of these decisions, choosing the opinion most favorable to their respective positions.

Under the judicially developed doctrine of res judicata, a final judgment "on the merits" bars a subsequent suit on the same cause of action by the same parties and their privies. Where the second suit between the same parties is upon a different cause of action, collateral estoppel precludes relitigation of issues actually litigated and determined in the prior suit. Lawlor v. National Screen Service, 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597-8, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). In Baldovin and Mack, as in the present case, the Board sought preliminary § 10(1) relief against the ILA and its locals. Although the different local unions may not be bound by decisions involving other ports, the Board might arguably have been estopped from filing a § 10(1) petition against the ILA once Baldovin was decided. Judge Edenfield in Mack, noting that the conduct complained of occurred after that covered by Baldovin, declined to apply res judicata to the case before him, because "subsequent conduct, even if it is of the same nature as the conduct complained of in a prior lawsuit, may give rise to an entirely separate cause of action. Kilgoar v. Colbert County Board of Education, 578 F.2d 1033, 1035 (5th Cir. 1978)." Neither the case cited nor Judge Edenfield's opinion sheds any light on why the principle of collateral estoppel would not apply to the separate cause of action.

The decision in Baldovin turned on the issue of jurisdiction of the NLRB. The court there decided that the controversy did not relate to "commerce" as defined in the NLRA, citing Windward Shipping (London) Ltd. v. American Radio Association, AFL-CIO, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974) and American Radio Association, AFL-CIO v. Mobile Steamship Association, Inc., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974). Apparently, the ships involved were of foreign registry, although that is not expressly stated in the opinion.

In Mack, Judge Edenfield did not feel bound by that decision, for the reason noted above. He held that the existence of a labor dispute is not an indispensable prerequisite to NLRB jurisdiction and that there was cause to believe that the defendants were engaged in a secondary boycott in that the defendants were "attempting to coerce Occidental Chemical the consignee to cease doing business with the Russians — by refusing to do longshoremen's work" for the stevedoring firms. It is not clear whether the ships involved were of United States or foreign registry. In any case, no attempt was made to distinguish Baldovin on that ground. I will make no such attempt either, because I do not...