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

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 ...


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