Longshoremen Ila Local 27 (Kingcome Navigation)

National Labor Relations Board - Board Decisions

Aug 19, 1987

285 N.L.R.B. 357 (N.L.R.B. 1987)

}
LONGSHOREMEN ILA LOCAL 27 (KINGCOME NAVIGATION) 357
International Longshoremen 's and Warehousemen's
Union, Local 27 and International Longshore-
men's and Warehousemen 's Union, Local 32
and ]Kingcome Navigation , Company, Ltd. Case
19-CD-447
19 August 1987
DECISION AND ORDER QUASHING
NOTICE OF H TEARING
By CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
The charge in this Section 10(k) proceeding was
filed 27 October 1986 by the Employer, alleging
that the Respondents, International Longshore-
men's and Warehousemen's Union Locals Nos. 27
and 32, violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed ac-
tivity with an object of forcing the Employer to
assign certain work to employees they represent
rather than to the Employer's unrepresented em-
ployees presently assigned to do the work. The
hearing was, held on 18 and 19 November 1986
before Hearing Officer Patrick F. Dunham.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to 'a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer, Kingcome Navigation Company,
Ltd., is a Canadian corporation, which owns and
operates two self-propelled log barges or ships. On
board the ships are' loading cranes, which are oper-
ated from the ship rather than from a dock or
barge as would be customary.
At, issue in this dispute is the assignment of work
of loading logs from the water aboard the Employ-
er's motorized barges.
At the hearing, the Union. moved to quash the
notice of 10(k) hearing asserting that the Board
lacks jurisdiction because the ships are not engaged
in commerce as required by the Act. We find the
Union's "motion to be meritorious. Therefore, for
the reasons stated below, we grant the Union's
motion to quash.
The Employer operates two foreign flag vessels,
both staffed exclusively by foreign crews. The Em-
ployer's vessels periodically enter United States
waterways when delivering or loading shipments
of logs in Washington and Alaska. The Employer's
vessels are unique in that they are self-propelled,
self dumping vessels, each equipped with two large
cranes that are used to load the logs onto the
vessel. Although the two vessels differ in load ca-
pacities, both vessels function in essentially the
same manner.
When a vessel arrives in port, the logs to be
loaded are pushed by tugboats out alongside the
vessel. The two cranes are then used simultaneous-
ly to lift bundles of logs out of the water and onto
the vessel's deck. During loading, there are small
"dozer boats" used to keep the logs in position for
loading. These dozer boats, which are stored on
the vessel when not in use, are operated by the
Employer's employees. The logs are loaded across
the deck of the ship so that when the ballast tanks
on one side of the ship are flooded and the deck of
the ship tilts sharply to the side, the logs slide off
the deck into the water, end first. The load must be
assembled with the appropriate amount of over-
hang over the edge of the deck and the logs inter-
locked in such a manner so that the entire load will
slip off together during dumping.
The dispute now before the Board centers on the
loading work done by the Employer's employees.
The Employer contends that its experienced crew-
members should continue to perform this work,
while the Union contends that its members who
perform traditional crane work should be awarded
the work. There is a question whether the dispute
includes the dozer boat work as well as crane oper-
ation work; however, because we decline to assert
jurisdiction, we find it unnecessary to determine
the scope of the dispute.
The Union, in support of its motion to quash, as-
serts that a necessary predicate for a finding by the
Board of an unfair labor practice under Section
8(b)(4)(D), which would give rise to a 10(k) hear-
ing, is that the person threatened, coerced, or re-
strained must have been engaged in "commerce or
in an industry affecting commerce."1 The Union,
in essence, contends that a foreign flag vessel oper-
ating with a foreign crew cannot be found to be in
commerce as defined by the Act, and that conse-
quently, the Union's picketing, directed at a foreign
flag vessel employing a foreign crew, does not
affect commerce as defined by the Act, and thus
cannot be an 8(b)(4)(D) violation. The Employer,
on the other hand, asserts that where, as here, the
dispute is between a foreign ship and an American
union representing American employees, rather
than between a foreign ship and its foreign crew,
the Board has jurisdiction over the dispute.
In order to determine whether the Board has ju-
risdiction over this matter, it is necessary to decide
' The Union raises other matters in its brief before the Board, howev-
er, as we decline to assert jurisdiction we do not pass on those matters
285 NLRB No. 57
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether the Employer's operations concerned in
this case are "in commerce" as that term is used in'
the Act. As the Supreme Court has noted, that
statutory term is not self-defining (Windward Ship-
ping (London) Ltd. v. American Radio Assn., 415
U.S. 104, 112 (1974)); but, in a series of cases begin-
ning in 1957, the Court has provided guidance for
the application of the definitions of "commerce"
and "affecting commerce" in Section 2(6) and (7)
of the Act, where foreign maritime operations are
concerned.2 In Benz v. Compania Naviera Hidalgo,
353 U.S. 138 (1957), the leading case addressing
this issue, the Court held that picketing by Ameri-
can unions in support of striking foreign crews en-
gaged in a labor dispute with their foreign employ-
ers-shipowners was outside the coverage of the
Act. The Court reasoned that Congress did not
intend to allow the Act to be applied to a boycott
protesting the treatment of foreign crews because
the history of the Act "inescapably describes the
boundaries of the Act as including only the work-
ingmen of our country and its possessions." 353
U.S. at 144. In McCulloch v. Sociedad Nacional de
Marineros de Honduras, 372 U.S. 10 (1963), and
Incres Steamship Co., Ltd. v. International Maritime
Workers Union, 372 U.S. 24 (1963), both cases in-
volving disputes concerning the internal, relation
between a foreign flagship and its foreign crew, the
Court reaffirmed the proposition that maritime op-
erations of' foreign flag ships employing alien
seamen are not "in commerce" within the meaning
of the Act.
In Windward Shipping, supra, and American
Radio Assn. v. Mobile Steamship Assn., 419 U.S. 215
(1974), two cases arising out of the same dispute,
the Court addressed the question of whether pick-
eting of foreign ships by American unions to call
attention to the competitive advantage enjoyed by
those vessels because of the wage differences be-
tween foreign and domestic seamen was picketing
affecting commerce as set forth in the Act. Because
it concluded, in both cases, that the objective of
the picketing was to force the foreign shipowner to
raise his operating costs, thereby interfering with
the maritime operations of foreign vessels, the
Court found that the picketing was not "in com-
2 Sec 2(6) and (7) of the Act provide
The term "commerce" means trade , traffic, commerce, transporta-
tion, or communication among the several States , or between the
District of Columbia or any Territory of the United States and any
State or other Territory, or between any foreign country and any
State, Territory, or the District of Columbia, or within the Distract
of Columbia or any Territory, or between points in the same State
but through any other State or any Territory or the District of-Co-
lumbia or any foreign country
The term "affecting commerce" means in commerce, or burdening
or obstructing commerce or the free flow of commerce , or having
led or tending to lead to a labor dispute burdening or obstructing
commerce or the free flow of commerce
merce" as defined by the Act. The Court stated in
Windward that "[v]irtually none of the predictable
responses of a foreign shipowner to picketing of
this type . . . would be limited to the sort of wage-
cost decision benefiting American workingmen
which the LMRA was designed to regulate." 415
U.S. at 115.
The Court reached the same result in Mobile,
even though the state court plaintiffs were not the
foreign owners of the picketed ships, as they were
in Windward, but rather the stevedoring companies
that sought to service the ship and a shipper who
wished to have his crop loaded on the ship. This
change in disputants did not alter the result; how-
ever, the Court reasoned that when the primary
dispute between a union and a foreign shipowner is
beyond the Board's statutory authority, the effect
of the union's picketing of the foreign vessels on
the businesses of the United States stevedoring
companies is also beyond the scope of the Act.
More specifically, the Court noted that, -in Wind-
ward as well as in Mobile, "the response [to the
picketing] of the employees of the American steve-
dores was a crucial part of the mechanism by
which the maritime operations of the foreign ships
were to be affected." It went on to state that "[t]he
effect of the picketing on the operations of the ste-
vedores and shippers, and thence on these maritime
operations, is precisely the same whether it be
complained of by the foreign-ship owners or by
persons seeking to service and deal with the ships.
The fact that the jurisdiction of the state courts in
this case is invoked by stevedores and shippers
does not convert into `commerce' activities which
plainly were not such in Windward (footnote omit-
ted)." 419 U.S. at 224-225.
In Longshoremen Local 1416 v. Ariadne Shipping
Co., 397 U.S. 195 (1970), however, the Supreme
Court held that the Act applied to a union's picket-
ing of foreign vessels to protest substandard wages
paid by the vessels' owners to nonunion American
longshoremen working in American ports. In hold-
ing that the longshore operations were in com-
merce within the meaning of Section 2(6) of the
Act, the Court emphasized that the dispute "cen-
tered on the wages to be paid American residents,
who were employed by each foreign ship not to
serve as members of its crew but rather to do
casual longshore work." Id. at 199. The Court de-
termined that the consideration underlying the con-
struction of the statute in Benz, McCulloch, and
Incres was inapplicable because it was addressed to
situations "in which Board regulation of the labor
relations in question would necessitate inquiry into
the `internal discipline and order' of a foreign
vessel, an intervention thought likely to `raise con-
LONGSHOREMEN ILA LOCAL 27 (KINGCOME NAVIGATION)
siderable disturbances not only in the field of mari-
time law but in our international relations as well."'
Id. at 198. The Court concluded on the facts of
Ariadne that the Board's jurisdiction would not
pose a threat of improper interference in the inter-
nal affairs of the foreign flag ships. The Court indi-
cated it was putting "to one side situations in
which the longshore work, although involving ac-
tivities on an American dock, is carried out entirely
by a ship's foreign crew, pursuant to foreign ship's
articles." 397 U.S. at 199 fn. 4. Accordingly, the
Court in Ariadne was effectively silent on the
Board's jurisdiction to determine the substantive
issues in this Section 10(k) proceeding.
In National Maritime Union of America (Shippers
Stevedoring), 245 NLRB 149 (1979), the Board con-
sidered a question similar to the one presented
here. In that case, a union representing United
States seamen picketed a U.S.S.R. flag ship with
signs protesting the use of U.S.S.R. vessels, instead
of United States ships, to transport foreign cargo
purchased with United States tax dollars in viola-
tion of Cargo Preference Act, 46 U.S.C.
§ 1241(b)(1). The union's conduct was alleged to
violate Section 8(b)(4)(i) and (ii)(B) of the Act. In
finding no violation, the Board adopted the judge's
reasoning that because the picketing was aimed at
replacing the foreign ship and its foreign crew with
a United States ship and a United States crew, the
picketing necessarily affected the maritime oper-
ations of the foreign ship and consequently could
not be "in commerce" within the meaning of the
LMRA.
We find National Maritime Union instructive in
determining whether the Union's conduct is within
the coverage of the Act. As in National Maritime
Union, here we have picketing aimed at replacing
foreign crew personnel on a foreign ship with
United States crew personnel. Any response by the
foreign shipowner to such picketing would not be
limited to the sort of wage-cost decision benefiting
American workingmen which the LMRA was de-
signed to regulate, but rather would result in the
loss of work to foreign crewmen on their own na-
tional vessels. Consequently, we find that the pick-
eting by the Union necessarily interferes with the
maritime operations of a foreign flag vessel and
therefore is not "in commerce" within the meaning
of the Act.
The rationale of the Supreme Court cases cited
above lends further support to our finding. Surely
359
if we were to assert jurisdiction in this case our de-
cision as to" who is entitled to do the disputed work
would potentially interfere with the maritime oper-
ations of a foreign flag vessel.3 In this Employer's
unique operation, all the loading work is done by
crewmembers on board the vessels. Although
members of the Union may traditionally perform
such work on shore, here, if they were awarded
the work, they would necessarily have to board the
Employer's foreign vessel to perform the task.
Consequently, as the work in question is performed
on board the Employer' s vessel , any award of that
work to employees represented by the Union con-
trary to the Employer's current practice would
necessarily interfere with the on-board operations
of the Employer's vessel .4 As the Supreme Court
has consistently found that the maritime operations
of a foreign vessel are outside the scope of the
Act,5 we conclude that we cannot accept jurisdic-
tion in this case. Therefore, the Union's motion to
quash the notice of 10(k) hearing is granted.
ORDER
It is ordered that the notice of hearing issued in
this case be quashed.
3 Jurisdictional dispute proceedings under Sec 10(k) of the Act require
the Board to make an affirmative award of disputed work. See NLRB v.
Electrical Workers IBEWLoca1,1212, 364 U.S. 573 (1961).
4 Although such a work award would not necessarily be the result of
the instant proceeding were the Board to assert jurisdiction, the Board's
authority to decide the Jurisdictional dispute must , in the first instance, be
resolved irrespective of the relative merits of the parties ' substantive
claims regarding the work in dispute.
5 See also Longshoremen v. Allied International, 456 U.S 212 (1982),
wherein the Supreme Court found the refusal of an American union to
unload cargo shipped from the Soviet Union in protest of the Russian in-
vasion of Afghanistan to be "in commerce" and within the scope of the
NLRA. In reaching this result, the Court stressed (Id. at 221-222):
Unlike the situation in every case from Benz through Mobile, the
ILA's refusal to unload Allied's shipments in no way affected the
maritime operations of foreign ships . The boycott here did not aim at
altering the terms of employment of foreign crews on foreign-flag
vessels. It did not seek to extend the bill of rights developed for
American workers and American employers to foreign seamen and
foreign shipowners. The longstanding tradition of restraint in apply-
ing the laws of this country to ships of a foreign country-a tradition
that lies at the heart of Benz and every subsequent decision-there-
fore is irrelevant to this case As the Court of Appeals explained, this
drama was "played out by an all-American cast." 640 F.2d [1368], at
1374 [1st Cit . 1981] "[A]n American union has ordered its members
not to work for an American stevedore which has contracted to
service an American ship carrying goods of an American importer."
Id, at 1372 In these circumstances, the clear language of the statute
needs no further explication