Van Camp Sea Food Co.

VAN CAMP SEA FOOD CO. 537 Van Camp Sea Food Company and United Cannery & Industrial Workers of the Pacific, Los Angeles and Vicinity District, AFL-CIO, Petitioner. Case 37- RC-1916 July 23, 1974 RULING ON ADMINISTRATIVE APPEAL Having duly considered the Petitioner's appeal from the Regional Director's administrative dismissal of the instant petition for lack of jurisdiction over the territory of American Samoa, the Board finds as fol- lows: On November 14, 1973, Petitioner filed a petition to represent a unit of the 600 production and mainte- nance employees of the Employer at its location on the island of American Samoa. The Regional Director administratively dismissed the petition under the au- thority of Star-Kist Samoa, Inc., 172 NLRB 1467, wherein the Board held that American Samoa, an unincorporated, unorganized territory,' was not with- in the jurisdiction of the Act. In its appeal, the Peti- tioner urges that the 1972 Supreme Court decision in U.S. v. Standard Oil of California,2 wherein American Samoa was found to be a covered territory within the meaning of the Sherman Act, compels a reversal of Star-Kist. We agree. In ruling in the Star-Kist case that Samoa was not a "Territory" within the meaning of Section 2(6) of the Act,' the Board drew a distinction between orga- nized and unorganized territories. However, in Stan- dard Oil the Supreme Court in defining the scope of the word "Territory" as used in section 3 of the Sher- man Act 4 rejected the dichotomy between organized and unorganized territories and concluded that American Samoa was a covered territory on the broad i The status of "incorporation" denotes a territory declared by statute or treaty to be a part of the United States The term "organized" refers to Congssional establishment of a system of local self-government. 244 U.S. 558, rehearing denied 405 U.S. 969. 3 Sec 2(6) of the Act defines "commerce" as: trade, traffic, commerce transportation , 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 District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. ° Sec. 3 provides in pertinent part; Every contract, combination in form of trust or otherwise, or conspi- racy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or com- merce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Colum- bia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is declared illegal view that "Congress intended by [Section] 3 `to exert all the power it possessed in respect [to] the subject matter-trade and commerce . . . [and] to include all territories to which its powers might extend....' " Contrary to the Employer, the Board is convinced that this holding of the Supreme Court is equally ap- plicable to the word "Territory" as used in Section 2(6) of the Act, for it is clear that in regulating labor relations under the Act, the Congress intended to exercise fully the same plenary and comprehensive commerce power which it had exercised in regulating commerce under the Sherman Act.5 On the basis of the foregoing, the Board finds that it has statutory jurisdiction over American Samoa. Furthermore, as it appears that other aspects of labor relations in American Samoa are regulated by other Federal legislation,' the Board finds that it would ef- fectuate the policies of the Act to assert jurisdiction over any person who satisfied our jurisdictional stan- dards? Accordingly, the instant petition is hereby reinstat- ed and the case is remanded to the Regional Director for further processing. CHAIRMAN MILLER, concurring: I concur in the result reached by the majority. If we are correct, as I think we are, in reading the Supreme Court's decision in Standard Oil of California, 404 U.S. 558(1972), as rendering erroneous our previous view that American Samoa was without our jurisdic- See, e.g, Ronrico Corporation, 53 NLRB 1137, 1143, and N.LR.B v Gonzalez Padm Co., 161 F.2d 353 (C A, 1, 1947). 6 For example, The Fair Labor Standard Act, 29 U.S.C. 201, et seq, and the Labor-Management Reporting and Disclosure Act of 1959, 29 U S.C § 401, et seq 7 We agree with our dissenting colleague that the Board, subject to the proviso of Sec. 14(c)(1) of the Act, is empowered to decline to assert jurisdic- tion when it appears that such an assertion ofjunsdiction would not effectu- ate the policies of the Act. Contrary to our dissenting colleague, however for the reasons stated in the majority decision, particularly the rejection of any distinction between "organized" and "unorganized" territories by the Su- preme Court in defining the word "Territory" in the Standard Oil decision, we feel the ambit of the Court' s decision requires a similar definition of the word "Territory" in Sec 2(6) of our Act. Thus, on the basis of the clear import of the Court' s decision, we have concluded that the Board has statuto- ry jurisdiction over American Samoa. Further, as explicated in our decision, other Federal labor statutes are applied over enterprises in American Samoa and our discretionary power to continue to decline jurisdiction is no longer warranted Our agency has an obligation to interpret and follow the trend of the Supreme Court's decisions as they presently or may affect the Act we administer In view of the Court's decision, we do not deem the continued pendency of H R. 756 as precluding our following the interpretation of the Supreme Court regarding a commerce clause similar to the one in our Act Thus, our action here is based on cogent reasons We are not here asserting jurisdiction over this Employer or any other employer without a hearing Our decision merely reinstates the petition earlier dismissed by the Regional Director and remands it to him for further processing The parties have an opportunity to raise any relevant issues they desire, if they so choose, at a representation hearing. Finally, in response to the contention that additional appropriations may be required, we say only that the proper exercise of the mandate under our Act is sometimes more costly than at other times; howev- er, while we strive to exercise caution in the expenditure of the appropriations entrusted to our agency, we shall not do so to the exclusion of extending the protection of our Act to those entitled to it 212 NLRB No. 76 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion as an unorganized territory, then I simply see no rational legal basis on which we can decline jurisdic- tion here. Whatever our concerns about the costs, or administrative difficulties incident to accepting the Supreme Court's determination, I see no more legal basis for declining jurisdiction over a substantial tuna canning factory operated by a manufacturer, which happens to be located in American Samoa than would exist if it were located in Hawaii (assuming the com- merce data which will be forthcoming in the course of our processing this petition shows that this Employer meets our jurisdictional standards). Member Kennedy's colorful rhetoric 8 offers, in my view, no adequate rebuttal to careful and rational legal analysis: MEMBER KENNEDY, dissenting: I would affirm the Regional Director's dismissal of the petition herein. Assuming arguendo that the Board has statutory jurisdiction over American Samoa, I be- lieve that it would not effectuate the policies of the Act to assert jurisdiction herein. In its discretion, the Board, subject to the proviso of Section 14(c)(1) of the Act, is empowered to decline to assert jurisdiction? The Board has not previously asserted jurisdiction over firms located in American Samoa. See Star-Kist Samoa, Inc., 172 NLRB 1467(1968). Indeed, the Board has declined jurisdic- tion over the Pago Pago plant with which we are here concerned. See Van Camp Sea Food Division, 172 NLRB 1469(1968). No cogent reason has been pre- sented for the assertion of jurisdiction over such firms at this time. Contrary to my colleagues, I do not construe the Supreme Court's decision in the Standard Oil case (which involved interpretation of sec. 3 of the Sher- man Anti-Trust Act) as a signal to this Board to assert jurisdiction in American Samoa.1° I have no intention of defying or disregarding a decision of the United States Supreme Court. I find no statement in the cited case which can be fairly interpreted as an instruction or suggestion that we no longer have discretion to refrain from asserting jurisdiction in American Samoa on policy grounds. My colleagues correctly point out that other Feder- al labor statutes are applied over enterprises in American Samoa. They ignore the fact that Congress has expressly directed that the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., be applied to territories. "And may there be no moaning at the Bar / When I put out to sea" etc. 9 In Facilities Management Corporation, 202 NLRB 1 144 (1973), the Board declined to assert jurisdiction over an employer located on Wake Island 10 A single case hardly qualifies as a "trend " There is no such mandate in our Act. Congress has been aware of our earlier decisions declining to assert jurisdiction in American Samoa. It is significant, in my view, that H.R. 756, which was introduced in January 1973 and which provided for the coverage of our Act in American Samoa, has not been adopted by the Congress. The failure of the Con- gress to pass that legislation justifies the conclusion that a majority of the Congress does not favor our assertion of jurisdiction in American Samoa. I note that the Board's refusal to assert jurisdiction in the earlier decisions in the Van Camp Sea Food Division and Star-Kist Samoa cases were predicated in part upon the "absence of a clear congressional mandate." It cannot be doubted that the decision of my col- leagues to assert jurisdiction in American Samoa will require a substantial increase in congressional appro- priations for the operation of this Agency. In my view, it is unwise to expand our jurisdiction by decision when Congress has expressly considered and failed to approve such expansion. I believe it unseemly for the Board to enlarge jurisdiction in the absence of con- gressional action and then attempt to justify larger appropriations. I would await congressional direction to assert jurisdiction in American Samoa and the Agency would then be in a better posture to seek increased appropriations. If there are cogent reasons for asserting jurisdiction in this case, my colleagues should state them. I recog- nize that it is the prerogative of a majority of this Board to expand its jurisdiction. So long as there is legal jurisdiction, I think it unlikely that reviewing courts will interfere with such expansion. If this is the judgment of my colleagues, so be it. Henceforth, how- ever, I trust, we will be spared the familiar' refrain that the Board's caseload is increasing." If we are unwill- ing to adhere to the wise judgments of our predeces- sors in declining jurisdiction of policy grounds, we should not belabor our rising caseload. See my dissent in Allen & O'Hara Developments, Incorporated d/b/a Illini Tower, 210 NLRB 355(1974). For the reasons stated, I believe that the purposes of the Act would not be effectuated by the assertion of jurisdiction in this case. 11 See address by Chairman Miller. Labor Law Conference, Louisiana State University, Baton Rouge, Louisiana, January 22, 1971, National Law- yers Club, Washington, D.C, May 27, 1971, Pacific Coast Labor Law Con- ference, May 12, 1972; Symposium of the Allegheny County Bar Association, May 26, 1972, Labor Relations Law Section, ABA Annual Convention, Washington, D.C August 7, 1973. Addresses by Member Fanning - Fourth Annual Federal Trial Examiners Conference Washington, D C., September 1966, Fifth Annual Labor Rela- tions Institute, Atlanta, Georgia, November 21, 1968 ; 14th Annual South- eastern Conference on Current Trends in Collective Bargaining, Knoxville, Tennessee, November 21, 1969; Annual Meeting of the Connecticut Bar Association, New Haven, Connecticut October 19, 1970, Labor Law Semi- nar, Kansas City, Missouri, March 25, 1970