Computer Sciences Raytheon

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 966 (N.L.R.B. 1995)

966
318 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer’s name appears as amended at the hearing.
2 By Order dated January 11, 1995 (not included in bound vol-
umes), the Board denied the Petitioner’s request that the Board direct
a different procedure or response format for either the Justice De-
partment’s submission or for the parties’ reply to the submission.
The Petitioner subsequently filed a reply to the Justice Department’s
submission.
Computer Sciences Raytheon1 and Local Union No.
2088, International Brotherhood of Electrical
Workers, AFL–CIO, Petitioner. Case 12–RC–
7612
August 31, 1995
DECISION ON REVIEW AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 20, 1993, the Regional Director for Region
12 issued a Decision and Order in which he dismissed
the instant petition because he found that the National
Labor Relations Board is without statutory jurisdiction
over the Employer’s employees working on the islands
of Antigua and Ascension. The Employer is a United
States company, and the Petitioner seeks to represent
only the Employer’s employees who are United States
citizens working on the islands. The Petitioner sought
review of the Regional Director’s decision. By Order
dated February 4, 1994 (not included in bound vol-
umes), the Board requested that the parties file supple-
mental briefs addressing the question of whether the
provisions in either of the Status of Forces Agreements
(SOFAs) in effect between the United States and the
respective governments of the islands of Antigua and
Ascension would permit a finding that application of
United States labor law to United States citizens work-
ing for a United States company on military bases on
those islands would not be ‘‘extraterritorial’’ as that
term is used in EEOC v. Arabian American Oil Co.,
499 U.S. 244 (1991).
The Board, by Order dated August 25, 1994 (not in-
cluded in bound volumes), granted the Petitioner’s re-
quest for review of the Regional Director’s determina-
tion and dismissal of the petition. On the same date,
the Board requested that the Civil Division of the De-
partment of Justice solicit the views or experiences of
other government agencies, including the Departments
of State, Defense, and Commerce, on the application
of United States law on military bases located in for-
eign countries pursuant to SOFAs or similar agree-
ments. The Board also expressed interest in whether
those government agencies were aware of any impedi-
ments or factors that the Board should consider in de-
termining whether to assert jurisdiction.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having carefully considered the entire record, in-
cluding the request for review, the Employer’s opposi-
tion brief, the supplemental briefs of the parties, the
Justice Department’s statement of position, and the Pe-
titioner’s reply to the Justice Department’s submission,
we have decided to affirm the Regional Director’s de-
cision. For the reasons discussed below, we find that
the Board lacks statutory jurisdiction over the instant
matter.
I. THE EMPLOYER’S OPERATIONS
The Employer provides technical services to the
Space Command of the United States Air Force in the
Eastern Range pursuant to a contract with the United
States Government. These services are provided by the
Employer at Cape Canaveral Air Force Station, Patrick
Air Force Base, and Jonathan Dickinson Missile
Tracking Annex, all located in Florida; on two U.S.
flagships, the USNS Redstone and the USNS Observa-
tion Island; and at United States military bases on the
islands of Ascension and Antigua. The Petitioner cur-
rently represents employees at each of the Employer’s
locations, except Ascension and Antigua, under three
separate collective-bargaining agreements. Through the
instant petition, the Petitioner seeks to represent a unit
of approximately 140 employees employed on the
military bases on Ascension and Antigua.
Ascension is a possession of the United Kingdom of
Great Britain and Northern Ireland. It is a remote is-
land in the South Atlantic situated approximately mid-
way between Africa and South America. Ascension
does not have an indigenous population and the island
is closed to visitors other than those who have permis-
sion from the British Government. There are no com-
mercial flights to Ascension, and visitors must fly on
either a United States or a British military aircraft.
Antigua is a sovereign nation that gained its inde-
pendence from Great Britain in 1981. Antigua is lo-
cated in the Caribbean Sea approximately 1200 miles
from Patrick Air Force Base in Florida. The island is
accessible by both commercial and military airlines.
The employees working at the facilities on Antigua
and Ascension are generally hired for, and assigned to,
those stations permanently; they are not routinely ro-
tated back to the Employer’s stations in the United
States. The employees located in Ascension and Anti-
gua perform the same general duties as the employees
located at the Employer’s other facilities. They may
apply for transfers to the mainland, but only permanent
transfers are available. The employees are interviewed
and hired at Patrick Air Force Base in Florida. In addi-
tion, the payroll, permanent records, and personnel
files for Ascension and Antigua are handled and main-
tained at Patrick Air Force Base. The island employees
have the same health insurance, pension plan, and
401(k) plan as the mainland employees and are eligible
967COMPUTER SCIENCES RAYTHEON
3 The SOFA between Antigua and the United States was signed on
December 14, 1977 (TIAS 9054), and is currently in effect.
4 The SOFA between Great Britain and the United States regarding
Ascension Island was signed on June 25, 1956 (TIAS 3603: 7 U.S.T.
1999), and is currently in effect.
5 The Petitioner cites, inter alia, Alcoa Marine Corp., 240 NLRB
1265 (1979); and Van Camp Sea Food Co., 212 NLRB 537 (1974).
for workers’ compensation benefits pursuant to the De-
fense Base Act and the Longshoremen’s and Harbor
Workers’ Compensation Act, as are the mainland em-
ployees. The Employer’s operations on both islands are
headed by station managers who, in turn, report to the
Employer’s manager of ships and stations located at
Patrick Air Force Base. Temporary assignments of em-
ployees from Antigua and Ascension to the mainland
do not occur frequently. Mainland employees are tem-
porarily transferred somewhat more frequently to the
islands to fill in for island employees or to perform
special modifications. While on the islands, the main-
land employees continue to be covered by their respec-
tive collective-bargaining agreements.
The Employer employs both United States citizens
and foreign nationals at the facilities in Antigua and
Ascension. The foreign nationals generally perform
support (nonelectronic) work because United States se-
curity clearance requirements prevent them from per-
forming technical work. The Employer has a contract
with the Antigua Workers Union covering Antiguans
working at the base in Antigua, but this contract spe-
cifically excludes United States citizens. The United
States citizens occupy job classifications different from
those of the Antiguans. The Petitioner seeks to rep-
resent only the United States citizens employed by the
Employer on Antigua and Ascension.
II. THE STATUS OF FORCES AGREEMENTS
Both the Status of Forces Agreement (SOFA) be-
tween the United States and Antigua,3 and the SOFA
between the United States and Great Britain,4 provide
the United States with the right to operate facilities on
the islands of Antigua and Ascension for certain de-
fense purposes. The Petitioner contends that the
SOFAs ‘‘reflect a limited cession of authority to the
United States’’ and that the facilities operated by the
United States are ‘‘effectively federal enclaves, in
which the operation of local law is suspended in def-
erence to the authority of the United States.’’ The Em-
ployer, on the other hand, maintains that the SOFAs
are ‘‘simply rules of conduct that apply to civilian em-
ployees of defense contractors . . . as well as military
personnel.’’ As described in more detail below, the
SOFAs specify the rights granted by the other coun-
tries to the United States.
III. THE CONTENTIONS OF THE PARTIES
A. The Petitioner
The Petitioner maintains that the Board has statutory
jurisdiction over the petitioned-for unit of employees
on the islands of Antigua and Ascension and further
maintains that the Board should exercise its discretion
to assert jurisdiction. The Petitioner asserts that the
Board has statutory jurisdiction because the Act’s defi-
nition of the term ‘‘commerce’’ includes trade ‘‘be-
tween any foreign country and any State’’ and because
the SOFAs cede jurisdiction of labor relations matters
to the United States. Moreover, the Petitioner cites
cases in which the Board has previously asserted juris-
diction outside the territorial lands and waters of the
United States.5 Finally, the Petitioner argues that the
Board should exercise its discretion to assert jurisdic-
tion because the employees in the petitioned-for unit
are engaged in the same work as those employees that
it already represents at all the Employer’s other facili-
ties and because the Employer’s facilities (in Florida,
on the flagships, and on the bases on Ascension and
Antigua) are integrated, as demonstrated by the fact
that the Employer’s facilities operate under a single
contract with the Department of Defense to provide
services in connection with a missile and satellite
tracking system in the Eastern Test Range.
B. The Employer
The Employer argues that the Board does not have
statutory jurisdiction in this case. It contends that the
Supreme Court has interpreted the Act to extend only
to employees whose work is within the United States
or its legally recognized territories; that neither Anti-
gua nor Ascension is a ‘‘territory’’ as that term is used
in the Act; and that the SOFAs do not allow the
United States to apply its Federal labor laws on either
island. The Employer argues, in the alternative, that
even assuming it possessed jurisdiction, the Board
should exercise its discretion and decline to assert ju-
risdiction because the islands of Ascension and Anti-
gua are remote, difficult to access, and it would not ef-
fectuate the purposes of the Act to assert jurisdiction.
C. The Department of Justice
At the Board’s request, the Justice Department solic-
ited views from the Departments of Commerce, De-
fense, and State regarding the Board’s jurisdiction in
this case. The Justice Department submitted to the
Board a summary of the Federal agencies’ responses.
In the summary, the Department of Justice argued that
the Board should not assert jurisdiction, citing serious
questions regarding the Board’s authority to do so
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Petitioner contends that under the Board’s decision in Long-
shoremen ILA (Coastal Stevedoring Co.), 313 NLRB 412 (1993),
enf. denied on other grounds 56 F.3d 205 (D.C. Cir. 1995), and
under the 11th Circuit’s decision in Dowd v. Longshoremen ILA, 975
F.2d 779 (1992), affg. 781 F.Supp. 1565 (M.D. Fla. 1991), the focus
in determining jurisdiction is whether regulation of the employment
practice at issue is an appropriate application of U.S. law and wheth-
er it interferes with, or impacts on, labor relations of a foreign gov-
ernment. While we agree with the Petitioner that those are relevant
concerns in deciding whether to exercise our discretion to assert ju-
risdiction, the test for initially deciding whether we have statutory
jurisdiction is correctly set forth above. The decisions in Coastal Ste-
vedoring are inapposite to the instant case. In Coastal Stevedoring,
the Board examined whether it had jurisdiction over an alleged un-
fair labor practice against a U.S. labor organization, carried out in
Japan by agents of the U.S. union, and in which the conduct resulted
in an allegedly unlawful secondary boycott within the United States.
The instant case involves a request that the Board exercise jurisdic-
tion over a representation petition covering United States citizens
who are employed by a United States employer, but who do not
work within a territory of the United States. Because the issue in-
volved in this case is the extraterritorial applicability of the Act, the
test from Aramco and Foley governs.
7 Sec. 2(6) of the Act provides that
The term ‘‘commerce’’ means trade, traffic, commerce, trans-
portation, or communication among the several States, or be-
tween 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 Ter-
ritory or the District of Columbia or any foreign country.
8 In an earlier decision, the Supreme Court, in dicta, noted that the
Act’s definition of ‘‘commerce’’ is more narrow than that in the Fair
Labor Standards Act because the NLRA does not include the term
‘‘possession,’’ as does the FLSA. Vermilya-Brown Co. v. Connell,
335 U.S. 377, 388 fn. 15 (1948). In Vermilya-Brown, the Court held
that the FLSA covers employees of American contractors engaged
in construction of a U.S. military base in Bermuda on land leased
to the United States by Great Britain for a period of 99 years. The
Court’s decision was based on: its finding that the lease terms allow
Congress to regulate labor matters on the base; the definition of
‘‘commerce’’ in the FLSA includes the term ‘‘possession;’’ and the
FLSA contains broad language describing the purpose of that Act
‘‘to regulate labor relations in an area vital to our national life.’’ Id.
at 390.
under both domestic law and foreign municipal and
international law. It further argued that: United States
military bases are not extraterritorial enclaves; the
SOFAs involved in this case are executive agreements
which did not require Congressional approval; and, in
the Justice Department’s experience, labor law is in-
tensely territorial. In addition, the Department of Jus-
tice warned of possible problems if the Board should
assert jurisdiction, including the creation of distinctions
between United States employers, non-United States
employers, United States employees, and non-United
States employees, and the creation of potential for liti-
gation in foreign courts (or in U.S. courts by foreign
plaintiffs) regarding application of the Act in foreign
countries.
IV. ANALYSIS
A. Applicable Principles
It is a basic precept of statutory construction that, in
the absence of a manifestation of a contrary intent, it
is presumed that Congressional legislation does not
apply outside the territorial jurisdiction of the United
States. Foley Bros. v. Filardo, 336 U.S. 281, 285
(1949). This rule ‘‘is based on the assumption that
Congress is primarily concerned with domestic condi-
tions.’’ Id. ‘‘It serves to protect against unintended
clashes between our laws and those of other nations
which could result in international discord.’’ EEOC v.
Arabian American Oil Co., 499 U.S. 244, 248 (1991)
(Aramco). The test for determining whether Federal
legislation applies abroad is ‘‘whether ‘language in the
[relevant Act] gives any indication of a Congressional
purpose to extend its coverage beyond places over
which the United States has some sovereignty or has
some measure of legislative control.’’’ Aramco, 499
U.S. at 248, quoting Foley Bros., 336 U.S. at 285.6
The Foley/Aramco test is therefore essentially a two-
part test. The first part focuses on the statute that a
party seeks to extend beyond the geographical bound-
aries of the United States. The second part focuses on
the characteristics of the particular area in which the
conduct to be regulated by the statute occurs—whether
it is an area in which, notwithstanding its foreign loca-
tion, ‘‘the United States has some sovereignty . . . or
some measure of legislative control,’’ i.e., whether the
contended-for application of the statute would be truly
‘‘extraterritorial.’’ Id.
The Supreme Court has already decided the first part
of the test so far as the Act we administer is con-
cerned. It has held that even though the Act contains
broad language referring to foreign commerce in its
definition of ‘‘commerce,’’ such language does not
support a finding that the Act applies abroad. Aramco,
499 U.S. at 251–252, citing McCulloch v. Sociedad
Nacional, 372 U.S. 10 (1963).7 The Court specifically
referred to the Act’s lack of any specific language re-
flecting congressional purpose to apply the Act in
other countries. Id. Congress has not amended the Act
in any relevant respect since the Court construed it as
not having extraterritorial application, so we are there-
fore bound to presume that Congress did not intend
that the Act would apply on the islands of Ascension
or Antigua unless the United States, by treaty or other-
wise, has achieved sovereignty or some measure of
legislative control over places located there.8
Thus, the issue in this case is whether the Employ-
er’s operations in Antigua and Ascension are located
in places in which the ‘‘United States has some sov-
ereignty or has some measure of legislative control.’’
It is clear that the United States has no sovereignty
over either Antigua, which is itself a sovereign nation,
or over Ascension, which is a possession of Great Brit-
ain. We, therefore, turn to the question of whether the
969COMPUTER SCIENCES RAYTHEON
9 Other provisions of the SOFA govern: the United States’ use of
Ascension’s public services and utilities, payment of taxes, and juris-
diction over criminal matters; shipping and aviation; establishment of
a United States military post office; claims for compensation; and
the actual provision of sites for the United States operations in As-
cension. In addition, the SOFA exempts U.S. nationals from the ap-
plication of the immigration and taxation laws of Ascension.
United States has some measure of legislative control
over the places in which the petitioned-for employees
work in Ascension or Antigua.
B. The SOFAs Do Not Confer a Sufficient
‘‘Measure of Legislative Control’’
The Petitioner contends that the SOFAs, which es-
tablish the United States military bases on Ascension
and Antigua, provide the United States with a measure
of legislative control sufficient to permit application of
the Act to the petitioned-for unit of employees. We
cannot agree. We find that neither SOFA grants suffi-
cient rights to the United States to support application
of the Act to employees working on the military bases
involved in this case.
1. The Ascension Island SOFA
The Ascension SOFA explicitly sets out the rights
and privileges accorded to the United States and spe-
cifically confines those rights to the purposes con-
nected with the operation of the Long Range Proving
Ground. Article II, paragraph 1, of that SOFA provides
that the United States:
shall have the right in the Range Area: (a)to
launch, fly, and land guided missiles; (b) to estab-
lish, maintain and use an instrumentation and a
communications system including radar, radio,
land lines and submarine cables for operational
purposes in connection with the Long Range
Proving Ground; (c) to operate such vessels and
aircraft as may be necessary for purposes con-
nected directly with the operation of the Long
Range Proving Ground.
Article XIX further limits the authority granted to the
United States by providing that ‘‘[n]either the United
States of America nor the United States authorities
shall exercise any rights granted by this Agreement, or
permit the exercise thereof, except for the purposes
specified in this Agreement.’’ (Emphasis added.)9 The
language of the SOFA thus clearly limits the rights of
the United States to certain specified military purposes
and, with the exception of those provisions governing
criminal jurisdiction, the SOFA does not grant the
United States the right to apply its own laws to indi-
viduals on the island of Ascension.
We are not persuaded by the Petitioner’s reliance on
article XXV, paragraph 2 of the SOFA which provides
that ‘‘no laws of Ascension Island which would dero-
gate from or prejudice any of the rights conferred on
the Government of the United States of America by
this Agreement shall be applicable within the Range
Area, save with the concurrence of the Government of
the United States of America.’’ That provision specifi-
cally refers to ‘‘the rights conferred on [the United
States] by this Agreement’’ (emphasis added) and we
find that the Agreement itself does not confer the right
on the United States to apply, in significant measure,
its laws to individuals on the military base. Our inter-
pretation is further supported by the fact that the
SOFA explicitly describes those powers and rights that
the United States has on the island. (See those rights
listed in fn. 8.) Under the doctrine of expressio unius
est exclusio alterius, the absence from the list of a pro-
vision regarding application of United States Federal
labor laws on the military base is evidence that this
power was not granted to the United States.
In sum, we agree with the Regional Director and
conclude that the Ascension SOFA does not provide
the United States with sufficient legislative control on
the military base to support a finding that the Act ap-
plies to the petitioned-for unit of employees on the is-
land of Ascension.
2. The Antigua SOFA
Although it presents a somewhat closer question, we
also agree with the Regional Director and conclude
that the SOFA between Antigua and the United States
does not establish a sufficient measure of legislative
control to allow application of the Act to the peti-
tioned-for unit of employees working on the island of
Antigua. The General Description of Rights set forth
in article II in the Antigua SOFA is somewhat broader
than that of the Ascension SOFA. It provides that:
The United States Government shall have and
enjoy, in accordance with the terms and condi-
tions of this Agreement, the rights, power and au-
thority which are necessary for the development,
use, operation and protection for military purposes
of the defense areas which are described in the
Annex hereto. The United States Government
shall have and enjoy such rights of access, rights
of way and easements as may be necessary for
these purposes.
Article I of the Antigua SOFA defines the phrase
‘‘military purposes’’ as:
(a) the installation, construction, maintenance and
use of military equipment and facilities, including
facilities for the training, accommodation, hos-
pitalization, recreation, education and welfare of
members of the United States Forces; and (b) all
other activities of the United States Government,
United States contractors and authorised service
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The provisions of the Antigua SOFA regulate: the use of public
services; taxes; criminal jurisdiction; civil claims; establishment of a
United States post office; establishment of a commissary; use of
motor vehicles; use of currency; and establishment of a Joint Con-
sultative Board made up of representatives of the United States and
Antigua. As in the Ascension SOFA, we find it significant that the
detailed enumeration of rights and powers granted to the United
States does not include a provision allowing the United States to
apply its labor laws on the military base on Antigua.
11 We note that art. VI of the Antigua SOFA specifically states
that, with respect to local workers employed by U.S. contractors,
‘‘full regard shall be given to employment practices generally ob-
tained for similar employment in Antigua,’’ but contains no com-
parable reference to employment practices for nonlocal labor. The
fact that there is not a comparable provision for application of Anti-
guan practices to nonlocal labor is an insufficient basis on which to
find that Antigua granted the United States the right to apply United
States labor laws to nonlocal labor.
12 Although the Board found that it had statutory jurisdiction, the
Board exercised its discretion to decline to assert jurisdiction be-
cause of foreign relations considerations.
13 Star-Kist Samoa, Inc., 172 NLRB 1467 (1968).
14 U.S. v. Standard Oil of California, 404 U.S. 558, rehearing de-
nied 405 U.S. 969 (1972).
15 The Board’s decision was enforced in Micronesian Tele-
communications Corp. v. NLRB, 820 F.2d 1097 (9th Cir. 1987).
16 The Northern Mariana Islands were entrusted to the United
States by the United Nations after World War II. The covenant was
negotiated to take effect upon the termination of the trusteeship.
organizations carried out for the purposes of this
Agreement[.]
Although these provisions are broader than those in the
Ascension SOFA, it is evident that Antigua’s grant of
rights to the United States was made for limited mili-
tary purposes, and these purposes do not contemplate
general application of United States’ domestic law to
individuals on the island except as specifically per-
mitted by the SOFA.10 The Petitioner contends that its
position is supported by the language of article VI(1)
of the SOFA, which governs the United States’ pur-
chase of local goods and services, because that provi-
sion is ‘‘prefaced’’ by the phrase ‘‘subject to United
States’ policies or regulations.’’ This language, how-
ever, merely provides that the preference for procuring
goods and labor from Antigua is subject to United
States’ policies or regulations; it does not refer in any
way to a general application of United States laws on
the military base.11
We accordingly conclude that the Antigua SOFA
does not provide the United States with sufficient leg-
islative control on the military base to support a find-
ing that the Act applies to the petitioned-for unit of
employees on Antigua.
C. A No-jurisdiction Finding Is Consistent with
Board Precedent
The instant case is distinguishable from cases in
which the Board has found that it has statutory juris-
diction abroad. In Contract Services, 202 NLRB 862
(1973), the Board found that it had statutory jurisdic-
tion over a United States employer operating a bus
transportation service in the Panama Canal Zone and
employing Panamanian nationals. The Board’s decision
that it had jurisdiction was based on the fact that the
Canal Zone was governed by the Canal Zone Code
which was enacted by Congress and which included a
system of magistrate courts with power of appeal to a
Federal district court.12 In Van Camp Sea Food Co.,
212 NLRB 537 (1974), the Board overruled an earlier
case13 and held that American Samoa is a ‘‘Territory’’
as that term is used in Section 2(6) of the Act. The
Board relied on a subsequent Supreme Court deci-
sion14 that held American Samoa to be a ‘‘territory’’
as defined by the Sherman Act (15 U.S.C. §§ 1 et
seq.) and the Board noted that other Federal labor leg-
islation, such as the Fair Labor Standards Act (29
U.S.C. §§ 201 et seq.) and the Labor-Management Re-
porting and Disclosure Act (29 U.S.C. §§ 401 et seq.),
already applied in American Samoa. Finally, in Micro-
nesian Telecommunications Corp., 273 NLRB 354
(1984),15 the Board found that it had statutory jurisdic-
tion over an employer doing business in the Northern
Mariana Islands because a covenant, approved by the
inhabitants of the Islands and enacted into law by the
U.S. Congress, provided that the Islands would become
a commonwealth in political union with, and under the
sovereignty of, the United States.16
The decisions in Contract Services, Van Camp Sea
Food, and Micronesian Telecommunications are distin-
guishable from the present case because in those cases
the Board was presented with operations in locations
where the United States clearly had a measure of legis-
lative control (as evidenced by the fact that the Pan-
ama Canal Zone, American Samoa, and the Northern
Mariana Islands were each already governed in some
way by laws enacted by the U.S. Congress). In con-
trast to those cases, Congress has not enacted any laws
governing Antigua or Ascension. Especially when
compared to the agreements allowing United States
legislation in the other three cases, it is clear that the
SOFAs involved in this case are merely limited grants
of authority to the United States allowing for existence
of a military base for specified reasons and establish-
ing the ground rules by which individuals on the bases
are to conduct themselves. Finally, we find this case
distinguishable because the SOFAs are agreements ne-
gotiated and entered into by the executive branch—
they are not approved by Congress.
This case is more similar to RCA OMS, Inc. (Green-
land), 202 NLRB 228 (1973), in which the Board
found that it had no jurisdiction over an employer op-
erating a system of radar and communications stations
for the United States Government on five sites in
971COMPUTER SCIENCES RAYTHEON
17 Although not discussed in the Board’s decision, it is likely that
the five Distant Early Warning sites were located in Greenland pur-
suant to an agreement between the United States and Denmark simi-
lar to the SOFAs at issue in this case. See Vermilya-Brown Co. v.
Connell, supra, 335 U.S. at 385 fn. 9.
18 The Justice Department also notes that United States embassies
remain the territory of the receiving state, do not constitute territory
of the United States, and are not within the territorial jurisdiction of
the United States. Restatement (Second) of the Foreign Relations
Law of the United States § 77 comment a (1965). See, e.g., McKeel
v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir. 1983), cert.
denied mem. 469 U.S. 880 (1984).
Greenland.17 The Board considered that: the employer
had employees in the United States and in Canada who
were organized pursuant to the respective laws of those
countries; the employees were required to have U.S.
Government security clearance; the employees were
hired in the United States; the employees were paid
from the United States; and the employees returned to
their original hiring location in the United States upon
completion of their jobs in Greenland. The Board
found, however, that these factors were outweighed by
the fact that Greenland is a Danish possession clearly
not within the Board’s jurisdiction under the Act. We
find similarly in this case that those factors establish-
ing connections with the United States are insufficient
to overcome the presumption against extraterritorial
application of the Act.
The Petitioner argues that the U.S. military bases on
Ascension and Antigua can be analogized to U.S. flag-
ships and suggests that because the Board has found
statutory jurisdiction over U.S. flagships, the Board
should also find that it has statutory jurisdiction over
the military bases. See Dredge Operators, 309 NLRB
984 (1992), enfd. 19 F.3d 206 (5th Cir. 1994); and
Alcoa Marine Corp., 240 NLRB 1265 (1979). We find
this argument unpersuasive. It is a ‘‘well-established
rule of international law that the law of the flag state
ordinarily governs the internal affairs of a ship.’’
McCulloch v. Sociedad Nacional, 372 U.S. 10, 21
(1963). There is no such rule regarding military bases
set up in foreign countries pursuant to agreements ne-
gotiated and signed by the executive branch of the
United States. Indeed, the Justice Department main-
tains that U.S. military bases overseas are not
extraterritorial enclaves, but rather are part of the terri-
tory of the foreign states in which they are located.18
Therefore, we do not find that the military bases at
issue in this case are analogous to U.S. flagships.
Conclusion
Accordingly, for all the reasons discussed above, we
find that the Board does not have statutory jurisdiction
over the instant petition.
ORDER
The Regional Director’s Decision and Order is af-
firmed and the petition is dismissed.