American Radio Ass'n v. Mobile Steamship Ass'n

Mr. Justice Stewart, with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join,

dissenting.

The issue in the present case is quite different from the issue decided last Term in Windward Shipping v. American Radio Assn., 415 U. S. 104. Because the dispute in this case clearly “affects commerce” and thus falls within the exclusive regulatory power of the National Labor Relations Board, I would reverse the judgment before us.

In Windward Shipping, the owners and managing agents of two foreign-flag vessels sought injunctive relief in state courts in Texas to bar picketing of their vessels by several American maritime unions. The unions were attempting to publicize the competitive advantage enjoyed by foreign-flag vessels because of the substantial disparity between foreign and domestic seamen’s wages. The vessels’ owners and managing agents asked the state courts to enjoin the picketing as tortious under Texas law. The primary basis for this claim was that the picketing sought to induce the foreign-flag vessel owners and their foreign crews to break pre-existing contracts. The Texas courts concluded that they lacked jurisdiction to consider the complaint of interference with contract because the dispute between the foreign-flag shipowners and the American unions was “arguably” within the jurisdiction of the National Labor Relations Board.

In reversing the judgment of the Texas Court of Civil Appeals, this Court reaffirmed earlier cases that had recognized that “Congress, when it used the words 'in commerce’ in the [Labor Management Relations Act], simply did not intend that Act to erase longstanding principles of comity and accommodation in international maritime *235trade.” 415 U. S., at 112-113. In those earlier cases the Court had concluded that maritime operations of foreign-flag ships employing alien seamen are not in “commerce” within the meaning of § 2 (6) of the National Labor Relations Act, as amended by the LMRA, 29 U. S. C. § 152 (6). Therefore, disputes affecting those operations do not “affect commerce,” and are not within the jurisdiction of the Board. See Benz v. Compania Naviera Hidalgo, 353 U. S. 138; McCulloch v. Sociedad Nacional, 372 U. S. 10; Incres S. S. Co. v. Maritime Workers, 372 U. S. 24.

Although the union activity sought to be enjoined by the foreign-flag shipowners in Windward Shipping did not involve the same degree of intrusion into the internal affairs of foreign vessels that was present in Benz, Mc-Culloch, and Ineres, the Court concluded that the economic impact upon foreign shipping from the unions’ conduct might severely disrupt the maritime operations of the foreign vessels. “Virtually none of the predictable responses of a foreign shipowner to picketing of this type,” the Court noted, “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. Cf. Longshoremen v. Ariadne Co., 397 U. S. 195. Accordingly, the Court held that the Texas courts had jurisdiction over the foreign shipowners’ complaint that the union activity was interfering with pre-existing contracts between the owners and their crews.

The question presented by this case, however, is not whether state-court jurisdiction over a dispute between owners of foreign-flag vessels and American maritime unions is outside the scope of the Act, as it was in Windward Shipping. Rather, the question is whether state courts have jurisdiction over a complaint by an association of American stevedoring companies that secondary pressure caused by the picketing of American maritime unions constituted a wrongful interference with the *236American companies’ right to carry on their lawful business. Neither the language of the Act nor the principles of comity underlying our decision in Windward Shipping support the Court’s conclusion that this dispute between American employers and American unions is outside the jurisdiction of the Labor Board.

As in Windward Shipping, the labor dispute in this case began when six American maritime unions picketed a foreign vessel to publicize the adverse consequences to American seamen of the low wages paid by the foreign shipowner. As a result of the picketing, American longshoremen and other workers employed by the member companies of the Mobile Steamship Association refused to service the foreign-flag vessel. It was this allegedly unlawful secondary pressure generated by the maritime unions’ picketing that the Mobile Steamship Association sought to enjoin in state court as a tortious interference with its right to contract and to carry on its lawful business.

The allegedly tortious secondary pressure that formed the basis for Mobile Steamship Association’s state-court complaint is precisely the type of concerted activity made subject to Board regulation by § 8 (b) (4) (i) (B) of the National Labor Relations Act. as amended, 73 Stat. 542, 29 U. S. C. § 158 (b)(4)(i)(B). That section, designed to shield neutral third parties from the adverse impact of labor disputes in which they are not involved, makes it an unfair labor practice for a labor organization “to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities . . . where ... an object thereof is . . . forcing or requiring any person ... to cease doing business with any other person . . . .”

I cannot agree with the Court’s conclusion that the *237secondary dispute between the American maritime unions and the Mobile Steamship Association that is the basis for this lawsuit fails to satisfy all the jurisdictional requirements of § 8 (b)(4)(B).1 Windward Shipping and the cases on which it relied have established that the maritime operations of foreign-flag ships employing alien seamen are not in “commerce” within the meaning of the Act. Accordingly, we held in those cases that labor disputes affecting those operations do not “affect commerce,” so far as the Act is concerned. But those decisions cannot be read to suggest that American stevedor-ing companies whose American employees load and unload both American- and foreign-flag vessels in American ports are not “engaged in commerce or in an industry affecting commerce.” Indeed, in Longshoremens v. Ariadne Co., 397 U. S., at 200, we held that longshoremen servicing foreign-flag vessels in American ports are in “commerce” within the meaning of § 2 (6) of the Act, and thus subject to the regulatory power of the Board. Consequently, stevedoring companies employing such longshoremen must be “engaged in commerce or in an industry affecting commerce” within the meaning of §8 (b)(4) (B), and a labor dispute affecting their operations necessarily “affects commerce” within the meaning of the Act.

The Court’s contrary conclusion appears to be based on the premise that it would be “wholly inconsistent” to hold that the unions’ picketing was not “affecting commerce” so far as the primary dispute with the foreign-flag shipowner was concerned but was “affecting commerce” in the secondary dispute here involved. Ante, at 224. The Court does not indicate that a secondary *238dispute between the maritime unions and the Mobile Steamship Association could never “affect commerce” within the meaning of the Act, unlike the Windward Shipping dispute between the unions and the foreign shipowners which would never “affect commerce.”

If the maritime unions had a primary dispute with American-flag shipowners, that dispute would clearly “affect commerce” within the meaning of the Act, and would thus clearly fall within the Board’s regulatory power. To avoid inconsistency the Court would presumably conclude that a secondary dispute between steve-doring companies and maritime unions in such a situation would also “affect commerce.” The Court would thus make the determination whether an American stevedoring company was “engaged in an industry affecting coih-merce,” the § 8 (b)(4)(B) jurisdictional requirement, depend entirely on whether in a particular case a primary labor dispute to which the stevedoring company was not privy was between an American union and an American-flag shipowner or an American union and a foreign-flag shipowner. “The anomaly of such a result is reason enough to question it. .. .” Ante, at 221.

More importantly, the Court’s conclusion that this secondary dispute between an American employer and American unions does not affect commerce because the primary dispute between the unions and foreign-flag shipowners is not within the Board’s jurisdiction squarely conflicts with our decision, in Hattiesburg Building & Trades Council v. Broome, 377 U. S. 126. In that case, an employer subjected to secondary pressure brought suit in state court to enjoin picketing at its premises. After finding that the primary employer was not in “commerce” within the meaning of the Act, the state court ruled that the pre-emption doctrine of San Diego Building Trades Council v. Garmon, 359 U. S. 236, was not applicable. The state court then enjoined the secondary picketing of the union. This Court unanimously reversed that judgment, *239holding that the record clearly showed that “the secondary employer’s operations met the [Board’s] jurisdictional requirements. Since the union’s activities in this case were arguably an unfair labor practice, the state court had no jurisdiction to issue the injunction.” 377 U. S., at 127 (emphasis added; citations omitted).

The Unanimous holding in Broome that exclusive Board jurisdiction over a secondary dispute exists although the primary dispute did not “affect commerce” within the meaning of the Act finds solid support in the language of § 8 (b) (4) (B) itself. The section expressly requires that the neutral, secondary employer be “engaged in commerce or in an industry affecting commerce.” However, it requires only that the primary object of the secondary pressure be a “person.” As defined by § 2 (1) of the Act, 29 U. S. C. § 152 (1), there is no requirement that a “person,” which includes “individuals, labor organizations, partnerships, associations, [and] corporations,” either be “engaged in commerce or in an industry affecting commerce,” or otherwise be within the jurisdiction of the Act. See Plumbers’ Union v. Door County, 359 U. S. 354 (governmental unit); Teamsters Union v. N. Y., N. H. & H. R. Co., 350 U. S. 155 (railroad). Thus, the fact that the foreign-flag vessel which was the primary object of the unions’ picketing activity was not in “commerce” cannot stand as a bar to the Board’s exercise of jurisdiction over the secondary dispute in this case.

Neither considerations of comity nor a “reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade,” Windward Shipping v. American Radio Assn., 415 U. S., at 110, justifies the Court’s disregard of the clear language of §8 (b)(4)(B) or its failure to follow the Broome decision. The dispute before the Alabama courts did not involve the maritime operations of the foreign-flag vessel that was the primary target of the unions’ activity. The shipowners were not parties to the state-court law*240suit. The injunction approved by the Alabama Supreme Court is concerned solely with union interference with operations and contractual relations of the Mobile Steamship Association at the Port of Mobile. That one of the contractual relationships allegedly interfered with was between members of the Association and a foreign-flag vessel is not apparent from the face of the state-court injunction.2

In short, the dispute between American workingmen and unions and their American employers was well within the boundaries of the Act as we have defined those boundaries in Windward Shipping, Benz, McCulloch, and Incres. As such, it is indistinguishable from a number of *241secondary boycott cases over which the Board has exercised its exclusive jurisdiction. For example, in Sailors’ Union of the Pacific (Moore Dry Dock), 92 N. L. R. B. 547, the Board considered charges by an American dry-dock owner that union picketing of a Panamanian ship tied up at the drydock constituted unlawful secondary activity. The union was picketing in an attempt to be recognized as the bargaining representative of the Panamanian shipowner’s crew. Prior to the Board’s consideration of the secondary dispute, the union had filed a petition for certification with the Regional Director of the NLRB. The petition was dismissed “ ‘inasmuch as the internal economy of a vessel of foreign registry and ownership is involved.’ ” Upon appeal, the Board sustained the Regional Director’s action on the ground that “ ‘upon the facts presently existing in this case, it does not appear that the Board has jurisdiction over the [e]m-ployer.’ ” Id., at 560-561. Notwithstanding the Board’s refusal to exercise jurisdiction over the primary dispute because it involved a foreign-flag vessel, the Board assumed jurisdiction over the secondary dispute between the union and the drydock owner. This Court in Benz observed that the Board’s assumption of jurisdiction over the secondary dispute in Moore Dry Dock was very different from an attempt to assert jurisdiction over the primary dispute involving the foreign-flag shipowner. Benz v. Compania Naviera Hidalgo, 353 U. S., at 143 n. 5.3

Because the secondary dispute in this case implicates only American employers and their American employees, following the literal language of §8 (b)(4)(B) and *242recognizing the Board’s exclusive jurisdiction over the dispute would not in any way undermine the principles of comity emphasized in our decision in Windward Shipping. The Board will only decide whether the secondary effects of the dispute are prohibited by § 8 (b)(4)(B). Exercise of this jurisdiction will not “thrust the National Labor Relations Board into ‘a delicate field of international relations.’ ” Longshoremen v. Ariadne Co., 397 U. S., at 199. Certainly a Board decision that secondary pressure violated § 8 (b)(4)(B) would not risk interference with international maritime trade. Nor would a decision that the secondary pressure did not violate § 8 (b) (4) (B) endanger the foreign-flag shipowners’ interests in preserving the integrity of their maritime operations from the impact of the unions’ picketing. These interests are fully protected under Windward Shipping by permitting the foreign-ship owner to seek an injunction in state court.

Where activities by parties subject to the regulatory power of the National Labor Relations Board are “arguably” prohibited by § 8 of the National Labor Relations Act, the general rule is that the jurisdiction of the Board is exclusive, pre-empting both federal- and state-court jurisdiction. San Diego Building Trades Council v. Garmon, 359 U. S., at 245; see Longshoremen v. Ariadne Co., supra, at 201-202 (White, J., concurring). Despite this rule the Solicitor General has suggested as amicus curiae that we recognize concurrent jurisdiction in state courts and the Board to enjoin secondary conduct when the primary dispute involves a foreign-flag vessel. Congress adopted such a proposal for concurrent state-court jurisdiction to award damages for conduct that violates § 8 (b) (4). § 303, Labor Management Relations Act, as amended, 29 U. S. C. § 187; see Teamsters Union v. Morton, 377 U. S. 252. But Congress expressly rejected a proposal for a comparable exception to the general rule of exclusive jurisdiction for complaints seeking injunctive *243relief against secondary conduct arguably prohibited by § 8 (b) (4) ,4 The only distinction between the amendment providing for general concurrent jurisdiction over secondary conduct rejected by Congress and the scheme suggested by the Government is that the Solicitor General would limit concurrent state-court jurisdiction to secondary disputes in which the primary employer was a foreign-flag shipowner. Windward Shipping fully protects the interests of these shipowners in maintaining the integrity of the maritime operations of their vessels by permitting them to seek state-court injunctions. Consequently, this distinction cannot justify overruling the congressional determination that American employers who enjoy the protection of § 8 (b) (4) should be limited to securing injunctive relief through the Board.

The Solicitor General also argues that there is no justification for the pre-emption doctrine in cases involving secondary disputes where the primary dispute is outside the jurisdiction of the Board. That position, of course, directly conflicts with Hattiesburg Building & Trades Council v. Broome, 377 U. S. 126, where this Court, as previously noted, reversed a state-court injunction directed against secondary conduct, holding the pre-emption doctrine applicable even though the Board had no jurisdiction over the primary dispute.

*244Moreover, even though the primary dispute is outside the Board’s jurisdiction, there is a continuing need to avoid development of conflicting rules of substantive law governing concerted secondary conduct. Through initial passage and subsequent amendment of §8 (b)(4)(B), Congress has clearly stated that certain types of secondary activity are illegal without regard to the identity of the primary employer. But just as deliberately, Congress has chosen not to prohibit resort to certain types of secondary pressure. If the Alabama law of secondary boycotts can be applied to proscribe conduct that Congress decided not to prohibit when it enacted § 8 (b) (4) (B), “the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. ‘For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.’ ” Teamsters Union v. Morton, 377 U. S., at 260, quoting Garner v. Teamsters Union, 346 U. S. 485, 500.

The need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the National Labor Relations Board, the agency created by Congress for that purpose, is a “primary justification for the pre-emption doctrine.” Vaca v. Sipes, 386 U. S. 171, 180. Because the secondary activity of the maritime unions challenged by the Mobile Steamship Association “arguably” violates § 8 (b) (4) (B) of the Act, that need is fully present in the instant case.

In sum, the dispute between the American unions and the American stevedoring companies in this case clearly “affects commerce” within the meaning of the Act and thus falls within the exclusive regulatory power of the National Labor Relations Board. The judgment of the Alabama Supreme Court should, therefore, be reversed.

Nobody has suggested that the maritime unions engaged in the secondary picketing are not “labor organizations” within the meaning of §2 (5) of the Act, 29 U. S. C. § 152 (5), or that the longshoremen and other workers who refused to cross the picket lines and service the foreign-flag vessel are not “employees” within the meaning of § 2 (3), 29 U. S. C. § 152 (3).

The Alabama courts enjoined the six maritime unions, their officers, members, and employees, from:

“1. Loitering, congregating, or picketing, by standing, walking, marching, sitting, or otherwise, at or near any part of the premises owned, occupied, or used by members of Complainant Mobile Steamship Association, Inc.
“2. In any manner interfering with or obstructing, by words or actions, any person or persons working for or desiring to work for members of Complainánt Mobile Steamship Association, Inc.
“3. Interfering with the operations of any member of Complainant Mobile Steamship Association, Inc. in any manner whatsoever.
“4. Picketing or interfering at or near Complainant Mobile Steamship Association, Inc. and its members’ premises or premises used by Complainant Mobile Steamship Association’s members in a manner calculated to intimidate Complainant Mobile Steamship Association’s members’ employees or anyone working in association with the Complainant Mobile Steamship Association’s members, or any other person entering or leaving or attempting to enter or leave Mobile Steamship Association’s members' premises, or calculated to induce any such persons not to report or apply for work at Mobile Steamship Association’s members’ premises, or any facility used by Mobile Steamship Association’s members.
“5. Picketing directed at vessels with whom members of the Mobile Steamship Association, Inc. have contractual relations.
"6. Interfering with the contractual relations existing or to exist between the members of the Mobile Steamship Association, Inc. and companies owning and/or operating vessels calling at the Port of Mobile.”

The only two Courts of Appeals that appear to have addressed the question have also sustained Board jurisdiction over secondary disputes involving American employers and unions despite the fact that the primary dispute involved foreign-flag vessels. Madden v. Grain Elevator Workers Local 418, 334 F. 2d 1014 (CA7); Grain Elevator Workers 418 v. NLRB, 126 U. S. App. D. C. 219, 376 F. 2d 774.

When Congress was considering the Taft-Hartley bill in 1947, an amendment was proposed in the Senate which would have given an injured party suffering from a secondary boycott the right to go directly into a district court and seek injunctive relief. 93 Cong. Rec. 4835. Senator Taft opposed the amendment, arguing that resistance to providing a private injunctive remedy in cases of secondary boycotts was so strong that the language of the committee bill authorizing the Board alone to obtain injunctive relief should be retained. Senator Taft proposed that private parties be given only the right to sue for damages. Id., at 4843-4844. The amendment was thereafter defeated, id., at 4847; and Senator Taft’s proposal for a private-damages remedy, presently LMRA § 303, 29 U. S. C. § 187, was adopted. 93 Cong. Ree. 4874-4875.