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WINDWARD SHIPPING (LONDON) LTD. ET AL. v. AMERICAN RADIO ASSOCIATION

SUPREME COURT OF THE UNITED STATES


decided: February 19, 1974.

WINDWARD SHIPPING (LONDON) LTD. ET AL
v.
AMERICAN RADIO ASSOCIATION, AFL-CIO, ET AL.

CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, FOURTEENTH SUPREME JUDICIAL DISTRICT.

Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 116.

Author: Rehnquist

[ 415 U.S. Page 105]

 MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioners are the owners and managing agents of two ships which are registered under the laws of Liberia and fly the Liberian flag. They sought injunctive relief in the state courts in Texas to bar picketing of their vessels by respondent unions. The trial court denied relief, finding that the dispute was "arguably" within the jurisdiction of the National Labor Relations Board and that the jurisdiction of the state courts was therefore pre-empted. The Texas Court of Civil Appeals affirmed,*fn1 and we granted certiorari, 412 U.S. 927 (1973), to consider whether the activities here complained of were activities "affecting commerce" within the meaning of §§ 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 450, 29 U. S. C. §§ 152 (6) and (7).*fn2 We hold that they were

[ 415 U.S. Page 106]

     not, and therefore reverse the judgment of the Court of Civil Appeals.

I

The vessels Northwind and Theomana are ships of Liberian registry, carrying cargo between foreign ports and the United States. Northwind is owned by petitioner Westwind Africa Line, Ltd., a Liberian corporation, while Theomana is owned by petitioner SPS Bulkcarriers Corp., a Liberian corporation, and managed by petitioner Windward Shipping (London) Ltd., a British corporation. The crews of both vessels are composed entirely of foreign nationals, represented by foreign unions and employed under foreign articles of agreement.

Respondents are American maritime unions, apparently representing a substantial majority of American merchant seamen.*fn3 Alarmed by an accelerating decline in the number of jobs available to their members, these unions agreed to undertake collective action against foreign vessels, which they saw as the major cause of their business recession. Specifically, these unions agreed to picket foreign ships, calling attention to the competitive advantage enjoyed by such vessels because of a difference

[ 415 U.S. Page 107]

     between foreign and domestic seamen's wages. All parties concede that such a difference does exist.*fn4

The picketing here occurred at the Port of Houston, Texas, in October 1971. Both Northwind and Theomana were docked within the port, and respondents established picket lines in front of each vessel. There were four pickets assigned to each vessel, carrying signs which read:

"ATTENTION TO THE PUBLIC

THE WAGES AND BENEFITS PAID SEAMEN ABOARD THE VESSEL THEOMANA ARE SUBSTANDARD TO THOSE OF AMERICAN SEAMEN. THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARDS AND LOSS OF OUR JOBS. PLEASE DO NOT PATRONIZE THIS VESSEL. HELP THE AMERICAN SEAMEN. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL ON THIS SITE."

[Printed names of the six unions.]

These signs were supplemented by pamphlets of similar import.*fn5 The pickets were instructed not to

[ 415 U.S. Page 108]

     discuss the picketing with anyone, and they appear to have followed their instructions.

The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels. Petitioners filed separate suits in a Texas state court, asking the court to enjoin the picketing as tortious under Texas law. The primary basis for petitioners' claim was that the picketing sought to induce the owners and crews to break pre-existing contracts. Respondents presented several defenses, contending in particular that the jurisdiction of the Texas court was pre-empted by the National Labor Relations Act.*fn6

The trial court sustained this contention, holding that jurisdiction properly lay with the NLRB, and the Texas Court of Civil Appeals affirmed. That court found that state jurisdiction was pre-empted by the Act when "the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA,"*fn7 see San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), and that the conduct here met that test. The court rejected petitioners' argument that the picketing interfered with the "maritime operations of foreign-flag

[ 415 U.S. Page 109]

     ships," see McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), in such manner as to remove it from the Board's jurisdiction.*fn8 The court concluded:

"If [the picketing] but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court's holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been preempted to the NLRB."*fn9

Petitioners contend that the Court of Appeals too narrowly construed this Court's decisions denying the NLRB jurisdiction in cases involving foreign-flag ships. We therefore begin by examining the principles established by those decisions for determining the jurisdiction of the NLRB.

II

In a series of cases decided over the past 17 years,*fn10 this Court has discussed the application of the Labor Management Relations Act in situations which might be broadly described as disputes between unions representing workers in this country and owners of foreign-flag vessels operating in international maritime commerce. Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957), is the leading case on the subject. In Benz

[ 415 U.S. Page 110]

     the question was whether the Labor Management Relations Act, 1947, precluded a diversity suit for damages brought in the United States District Court by foreign shipowners against picketing American unions. The picketing had been undertaken in Portland, Oregon, to support striking foreign crews employed under foreign articles and had resulted in the refusal of workers to load and repair the docked foreign ships. The District Court had awarded damages and the Court of Appeals affirmed.

This Court held that the shipowners' action was not pre-empted by the Labor Management Relations Act. Studying the legislative history of the Act, the Court found no indication that it was intended to govern disputes between foreign shipowners and foreign crews. On the contrary, the Court concluded that the most revealing legislative history strongly suggested the bill was a "bill of rights . . . for American workingmen and for their employers." Id., at 144. (Emphasis in original.) The Court stated that this history "inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions." Ibid.

Recognition of the clear congressional purpose to apply the LMRA only to American workers and employers was doubtless a sufficient reason to place the picketing in Benz outside the Act. But the Court in that case made clear its reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade, absent a clear congressional mandate to do so:

"For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the

[ 415 U.S. Page 111]

     possibilities of international discord are so evident and retaliative action so certain." Id., at 147.

In the 17 years since Benz was decided, Congress has in no way indicated any such "affirmative intention," and this Court has continued to construe the LMRA in accordance with the dictates of that case.

The reasoning of Benz was reaffirmed in McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), and Incres S. S. Co. v. Maritime Workers, 372 U.S. 24 (1963), decided together six years later. In McCulloch, we held that the National Labor Relations Board had improperly assumed jurisdiction under the Act to order an election involving foreign crews of foreign-flag ships. Rejecting the Board's "balancing of contacts" theory, the Court said:

"To follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports." 372 U.S., at 19.*fn11

In Incres we applied this rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew. Reversing the holding of a New York state court that the picketing was arguably within the jurisdiction of the NLRB, the Court said:

"The Board's jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances 'affecting commerce,' and we have concluded that maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of § 2 (6), 29 U. S. C. § 152 (6)." 372 U.S., at 27.

[ 415 U.S. Page 112]

     But Benz and its successor cases have not been read to exempt all organizational activities from the Act's protections merely because those activities in some way were directed at an employer who was the owner of a foreign-flag vessel docked in an American port. In Longshoremen v. Ariadne Co., 397 U.S. 195 (1970), the Court held that the picketing of foreign ships to protest substandard wages paid by their owners to nonunion American longshoremen was "in 'commerce' within the meaning of § 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board." Id., at 200. The pickets in Ariadne, unlike the pickets in Benz or Incres, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen's work,*fn12 and the substandard wages which they were protesting were being paid to fellow American workers. The Court specifically noted: "This dispute centered on the wages to be paid American residents." Id., at 199.

The term "in commerce," as used in the LMRA, is obviously not self-defining, and certainly the activities in Benz, McCulloch, and Incres, held not covered by the Act, were literally just as much "in commerce" as were the activities held covered in Ariadne. Those cases which deny jurisdiction to the NLRB recognize that Congress, when it used the words "in commerce" in the LMRA, simply did not intend that Act to erase longstanding

[ 415 U.S. Page 113]

     principles of comity and accommodation in international maritime trade. In Lauritzen v. Larsen, 345 U.S. 571, 577 (1953), the Court commented on the congressional intent with respect to the Jones Act of 1920 in these words:

"But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations."*fn13

We are even more reluctant to attribute to Congress an intention to disrupt this comprehensive body of law by construction of an Act unrelated to maritime commerce and directed solely at American labor relations.

III

The picketing activities in this case do not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres ; respondents seek

[ 415 U.S. Page 114]

     neither to organize the foreign crews for purpose of representation nor to support foreign crews in their own wage dispute with a foreign shipowner. But those cases do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable.

The picket signs utilized at the docks where the Northwind and Theomana were tied up protested the wages paid to foreign seamen who were employed by foreign shipowners under contracts made outside the United States. At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the "maritime operations" of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.

In this situation, the foreign vessels' lot is not a happy one. A decision by the foreign owners to raise foreign seamen's wages to a level mollifying the American pickets would have the most significant and far-reaching effect on the maritime operations of these ships throughout the world. A decision to boycott American ports in order to avoid the difficulties induced by the picketing would be detrimental not only to the private balance sheets of the foreign shipowners but to the citizenry of a country as dependent on goods carried in foreign bottoms as is ours. Retaliatory action against American vessels in

[ 415 U.S. Page 115]

     foreign ports might likewise be considered, but the employment of such tactics would probably exacerbate and broaden the present dispute. Virtually none of the predictable responses of a foreign shipowner to picketing of this type, therefore, would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA was designed to regulate. This case, therefore, falls under Benz rather than under Ariadne.*fn14

Since we hold that respondents' picketing was not "in commerce" as defined by the Act, we do not reach the question of whether the activity was otherwise of such a nature that state courts would be precluded by the LMRA from entertaining an action to enjoin it. Our conclusion that the activities here involved were not "in commerce" within the meaning of §§ 2 (6) and (7) of the NLRA, as amended by the LMRA, resolves a question which, of course, is one for the courts in the first instance. Ariadne, 397 U.S., at 200. The Court of Civil Appeals was therefore wrong in holding that the courts of the

[ 415 U.S. Page 116]

     State of Texas were prevented by the LMRA from entertaining petitioners' suit for an injunction.

Reversed.

Disposition

482 S. W. 2d 675, reversed.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.

Today's reversal of the Texas Court of Civil Appeals does not, of course, end this case. There remain for disposition on remand two of the respondents' defenses not reached by the Texas courts, namely (1) that Texas law does not proscribe respondents' picketing, and (2) that, in any event, the First and Fourteenth Amendments protect respondents' conduct.*fn1

But the fact that today's decision does not finally decide the legality of respondents' picketing should not obscure the significance of the Court's holding. Ninety-five percent of our export trade has already fled American-flag vessels for cheaper, foreign-registered shipping.*fn2 In holding that respondents' picketing against foreign-flag vessels does not give rise to a dispute "affecting commerce" within the National Labor Relations Board's jurisdiction, the Court effectively deprives American seamen, among all American employees in commerce, of any federally protected weapon with which to try to save their jobs.*fn3 Additionally, the Court creates new difficulties

[ 415 U.S. Page 117]

     for the Board in its administration of the Act by making the Board's statutory jurisdiction turn on the identity of the competitor that might be affected by the picketing -- a distinction relevant in the determination whether picketing is protected or prohibited activity under the Act, but a distinction rejected in other contexts in the determination of Board jurisdiction.*fn4

There is, of course, no doubt that Congress possesses the power to subject foreign shipping in American territorial

[ 415 U.S. Page 118]

     waters to the federal labor laws.*fn5 And the Court concedes that the picketing activities involved here fall literally within the term "commerce" as used in the Labor Management Relations Act. Ante, at 112.

After acknowledging the paucity of support for an exclusion in the term "commerce," the Court, however, concludes that prior cases construing the "affecting commerce" limitation in §§ 2 (6), 2 (7), and 10 (29 U. S. C. §§ 152 (6), 152 (7), and 160) support the holding that respondents' picketing against foreign-flag vessels is conduct not cognizable by the Board. With respect, I think that the Court misreads those cases, and also fails to take account of other relevant congressional and judicial guidance that leads to a contrary conclusion.

As the Court concedes, none of the cases relied upon reached the question before us, that is, whether American seamen may employ economic weapons to try to save their jobs by improving the competitive positions of their domestic employers vis-a-vis foreign shipping. Yet the Court relies upon those decisions as supporting the proposition that we must conclude that Congress "simply did not intend that Act [LMRA] to erase longstanding principles of comity and accommodation in international maritime trade," ante, at 112-113, because the economic impact upon foreign shipping from respondents' picketing might severely disrupt the maritime operations of foreign vessels. Not a word or sentence in any opinion in those cases supports that reading. Rather, those decisions

[ 415 U.S. Page 119]

     rested squarely upon the reasoning that, in circumstances where Board cognizance of a dispute will necessarily involve Board inquiry into the labor relations between foreign crews and foreign vessels, Congress could not be understood to have granted the Board jurisdiction of the dispute.

In Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957), the seminal case in this area, an American union attempted to organize the foreign crew of a vessel operating under a foreign flag. The Court, holding that Congress did not fashion the LMRA "to resolve labor disputes between nationals of other countries operating ships under foreign laws," id., at 143, said:

"It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing." Id., at 142.

Similarly, subsequent decisions also turned jurisdiction on the determination whether Board cognizance would require the Board to inquire into the internal relations between the foreign ship's crew and its foreign owner. In McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), we held that the Board did not have jurisdiction to order an election on a foreign-flag vessel, for

"to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports." Id., at 19.

In Incres S. S. Co. v. Maritime Workers, 372 U.S. 24 (1963), the issue was whether the Board had power to

[ 415 U.S. Page 120]

     adjudicate the legality of the efforts of a union to organize the members of a foreign crew. Again, the Court held that the Board was without jurisdiction under the Act, since adjudication of that question would require that the Board examine into the relations between that crew and its foreign-flag employer. Id., at 27-28.

The question whether a labor dispute would necessitate Board inquiry into the relations between foreign vessels and crews was yet again central in Longshoremen v. Ariadne Co., 397 U.S. 195 (1970), the most recent of the cases where we sustained Board jurisdiction of a dispute involving picketing of a foreign-flag ship in protest against wages being paid to American longshoremen unloading the foreign vessel in an American port. We held that the prohibited inquiry would not result in that case, explaining:

"We hold that [the longshoremen's] activities were not ['maritime operations of foreign-flag ships']. The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' 'internal discipline and order.' Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in 'commerce' within the meaning of § 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board." Id., at 200.

Thus, the only appropriate issue in the instant case is whether NLRB cognizance of respondents' picketing

[ 415 U.S. Page 121]

     would require that the Board inquire into the "internal discipline and order" of foreign vessels, and thus threaten "interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law." Tested by that principle, I conclude, contrary to the Court, that this case falls under Ariadne rather than under Benz.

Ariadne is the controlling precedent even if the Court is correct that this dispute "could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country." Ante, at 114. For respondents' picketing is not directed at forcing the shipowners to make that or any other accommodation that could be characterized as interference with relations between crews and shipowners. Respondents' target is to persuade shippers not to patronize foreign vessels, and respondents have no concern with the form of the shipowners' response that makes their efforts succeed.*fn6

Similarly, Ariadne is the controlling precedent even if the Court is right that "virtually none of the predictable

[ 415 U.S. Page 122]

     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 [as it amended the NLRA] was designed to regulate." Ante, at 115. The question whether this case falls within the Board's jurisdiction does not turn on the "predictable responses" of the foreign shipowner but, under our cases from Benz to Ariadne, solely on the question whether cognizance of respondents' activity would involve the Board in an examination into the internal relations between the foreign crews and shipowners. Cognizance of respondents' conduct in this case would not appear to require that inquiry. In any event, as the Texas Court of Civil Appeals correctly observed, it suffices for Board jurisdiction of that conduct that it is arguable whether that inquiry is required, for in such case it is for the Board to determine in the first instance whether that conduct involves a labor dispute within its cognizance. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

But my disagreement with the Court does not rest alone on its failure adequately to rationalize and distinguish the case law. As the Court states, the Nation's labor laws must be read in light of the longstanding involvement of Congress with maritime affairs. If that involvement is examined, however, it will demonstrate that, beginning with its first session, 1 Stat. 55, Congress has been deeply engaged in legislating to protect American vessels from competition, usually by enacting discriminatory laws against foreign-flag vessels. Myriad hearings and reports reflect congressional determination that the American merchant marine, largely because of protections afforded American seamen's wages and working conditions in collective bargaining fostered by the National Labor Relations Act, shall have legislative help

[ 415 U.S. Page 123]

     to support its efforts to compete on equal terms for a share of our foreign commerce.*fn7

This congressional support was highlighted as recently as 1970, in amendments to the Merchant Marine Act, 1936, 46 U. S. C. § 1101 et seq., to which we may look with profit. The declaration of policy of that Act, as amended in 1970, states as its purpose that "it is necessary for the national defense and development of [the United States'] foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States . . . ." That merchant marine is further to be "owned and operated under the United States flag by citizens of the United States, insofar as may be practicable," and is to be "manned with a trained and efficient citizen personnel." 46 U. S. C. § 1101. See also Merchant Marine Act, 1920, 46 U. S. C. § 861. The 1936 Act furthers those aims by providing subsidies for the construction and operation of American-flag shipping, 46 U. S. C. §§ 1151, 1171, and goes far in imposing discriminations against foreign-flag shipping in regard to certain types of freight. 46 U. S. C.

[ 415 U.S. Page 124]

     § 1241. See also 46 U. S. C. §§ 251, 808 (restricting coastwise trade). Far from conduct in conflict with Congress' legislative policies in the maritime field, respondents' picketing seeks precisely the same goals.

Yet the Court, although not remotely suggesting that respondents' picketing constitutes an illegal intrusion by private citizens into foreign affairs, reaches a conclusion that necessarily implies that Congress was content to leave the whole problem to resolution by the States. It is inconceivable that Congress meant to leave regulation of activity in this area of predominantly national concern to disparate state laws reflecting parochial interests.

I would affirm the judgment of the Texas Court of Civil Appeals.

Counsel FOOTNOTES

* Briefs of amici curiae urging reversal were filed by Solicitor General Bork and Allan A. Tuttle for the United States; by Frank L. Wiswall, Jr., for the Republic of Liberia; by Bryan F. Williams, Jr., for the West Gulf Maritime Assn., Inc.; and by Frank McRight for the Mobile Steamship Assn.

J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.


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