Longshoremen Ila Local 27 (Kingcome Navigation)

} 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