Longshoremen ILA (Coastal Stevedoring Co.)

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 412 (N.L.R.B. 1993)

412
313 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Upon charges filed by Coastal Stevedoring Company (Coastal)
on November 27, 1990 (Coastal filed an amended charge on June
3, 1991); by Canaveral Port Authority on November 20, 1990; and
by Port Canaveral Stevedoring, Inc., Patrick T. Lee, W.T. Cox, Jr.,
Mather Ward, George Scheidler, and Ben Pekin Family Partnership
d/b/a Port Canaveral Stevedoring Limited (Canaveral) on December
5, 1990, the General Counsel of the National Labor Relations Board
issued an order consolidating cases, and a consolidated amended
complaint and notice of hearing on July 23, 1991. The complaint al-
leges that the Respondent and the National Council of Dockworkers
Unions of Japan, the Japanese Labor Union Association, and the
Japan Seaman’s Union (Japanese Unions), have been parties to a
common plan, scheme, and/or joint venture having the object of
forcing neutrals to cease doing business with Coastal, Canaveral, and
other nonunion stevedoring companies and/or to alter their business
relationships concerning the shipment of citrus fruit from Ft. Pierce
and Port Canaveral, Florida, to Japan. The complaint further alleges
that the Respondent has violated Sec. 8(b)(4)(ii)(B) of the Act
through the conduct of the Japanese Unions which threatened eco-
nomic harm to neutrals unless the job of loading citrus fruit onto
vessels in Florida was performed by union labor. The Respondent
filed a timely answer admitting in part and denying in part the alle-
gations of the complaint.
2 The General Counsel filed a motion to strike a letter appended
to the Respondent’s brief and certain factual assertions which, ac-
cording to the General Counsel, are not a part of the record. The
General Counsel’s motion to strike the appended letter is granted, as
the letter is not part of the record. The other matters which the Gen-
eral Counsel seeks to strike from the Respondent’s brief are more
in the nature of interpretations of the stipulation than they are addi-
tions of facts not contained in the record. We have not relied on
these matters in making our decision and we find it unnecessary to
strike them.
International Longshoremen’s Association, AFL–
CIO and Coastal Stevedoring Company and
Canaveral Port Authority and Port Canaveral
Stevedoring, Inc., Patrick T. Lee, W. T. Cox,
Jr., Mather Ward, George Scheidler, and Ben
Pekin Family Partnership d/b/a Port Canaveral
Stevedoring Limited. Cases 12–CC–1226, 12–
CC–1227–1, and 12–CC–1227–2
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case poses the question whether the Respond-
ent is responsible, under Section 8(b)(4)(ii)(B), for
threats made in Japan by Japanese Unions to neutral
persons (exporters, shippers, and importers) who are
involved in the Florida-Japan citrus trade. Also raised
is the issue of whether the Board has jurisdiction in
this case.
The threats were that citrus would not be unloaded
in Japan if these neutral persons continued to do busi-
ness with nonunion stevedoring companies in the
United States. The Respondent has a primary dispute
with these nonunion companies.
We conclude that the Respondent is responsible for
the conduct of the Japanese Unions, and that the Board
has jurisdiction in this case. We hold that the Respond-
ent has violated Section 8(b)(4)(ii)(B) as alleged.1
On November 21, 1991, the General Counsel, the
Respondent, and the Charging Parties filed a stipula-
tion of facts and a joint motion to transfer proceedings
directly to the Board. The parties waived a hearing and
the issuance of a decision by an administrative law
judge and indicated their desire to submit the case di-
rectly to the Board for findings of fact, conclusions of
law, and a decision. The parties also agreed that the
charges, complaints, answers to complaints, and the
stipulation of facts would constitute the entire record
before the Board.
On January 27, 1992, the Board issued an order
granting the parties’ motion, approving the stipulation,
and transferring the proceedings to the Board. There-
after, the General Counsel,2 the Charging Parties, and
the Respondent filed briefs. The National Association
of Manufacturers filed a brief as an amicus curiae.
On October 26, 1993, the Board heard oral argument
in this case.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
Coastal, a Florida corporation with an office and
place of business in Ft. Pierce, Florida, is engaged in
business as a stevedoring company. During 1990,
Coastal performed stevedoring services valued in ex-
cess of $50,000 for shipping companies sailing in
intercoastal or international waters, which shipping
companies annually have a gross volume of business
in excess of $500,000. Indian River Citrus Sales, Inc.
(IRCS), a Florida corporation with an office and place
of business in Wabasso, Florida, is engaged in the
business of exporting citrus fruit. During 1990, IRCS
sold and shipped from points located in Florida citrus
fruit valued in excess of $50,000 directly to points lo-
cated outside the State of Florida. Canaveral is owned
by general partner Port Canaveral Stevedoring, Inc.,
and limited partners Patrick T. Lee, W. T. Cox Jr.,
Mather Ward, George Scheidler, and the Ben Pekin
Family partnership, doing business as and trading
under the name of ‘‘Port Canaveral Stevedoring Lim-
ited.’’ Canaveral maintains an office and place of busi-
ness at Port Canaveral, Florida, and is engaged in busi-
ness as a stevedoring company. During 1990, Canav-
eral performed stevedoring services valued in excess of
$50,000 for shipping companies sailing in intercoastal
or international waters, which shipping companies an-
nually have a gross volume of business in excess of
$500,000. We find that Coastal, IRCS, and Canaveral
are employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. We also find
413LONGSHOREMEN ILA (COASTAL STEVEDORING CO.)
3 The season runs from approximately October or November until
April or May.
that the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Japan is a major importer of citrus fruit grown in
Florida. For several years, Florida grapefruit has been
shipped to Japan from Ft. Pierce and Port Canaveral,
Florida, pursuant to agreements between American ex-
porters such as Indian River Citrus Sales (IRCS) and
Japanese importers such as Sumisho Fruits and Vege-
tables Co. (Sumisho). The grapefruit is loaded onto
Japan-bound ships by employees of American steve-
doring companies and is unloaded in Japan by employ-
ees of Japanese stevedoring companies.
Coastal is the only stevedoring company operating
at Ft. Pierce. It is a nonunion company. Canaveral is
also a nonunion stevedoring company. It performs ste-
vedoring services at Port Canaveral, which is operated
by the Canaveral Port Authority, a state port authority
which leases space to union and nonunion companies.
The Respondent represents employees of certain steve-
doring companies, many of which operate out of
Tampa, Florida. The Respondent is engaged in a pri-
mary labor dispute with Coastal and Canaveral con-
cerning their failure to hire employees represented by
a union.
Before the 1990–1991 citrus export season,3 the Re-
spondent’s representatives visited Japan and met with
representatives of the Japanese Unions. At these meet-
ings, the Respondent expressed concern about the fact
that Japanese importers and shipping companies were
using nonunion stevedores at Port Canaveral and Ft.
Pierce. The Respondent requested assistance from the
Japanese Unions in preventing this use of nonunion
stevedores.
The Japanese Unions responded to this request for
support by widely disseminating communications to
stevedoring companies, citrus importers, and shipping
companies, asking that they ensure that citrus fruit is
loaded in Florida by stevedoring companies that hired
union-represented employees. The Japanese Unions
also warned that Japanese dockworkers would not un-
load fruit loaded in the United States by nonunion
labor. Typical of these communications is a letter
dated April 5, 1990, written by President Toshio
Kamezaki on behalf of the Japanese dockworkers to
President Gorman of Florida Transport Systems, Inc.
(a nonunion stevedoring company in Ft. Lauderdale,
Florida). Kamezaki refers to the fraternal relations that
the Japanese Unions have had for many years with the
Respondent. He sets forth the request made by the Re-
spondent ‘‘for our cooperation,’’ and states:
Having discussed the matter at our Executive
Committee in March, we agreed never to tolerate
Japanese importing firms or shipping companies
to carry out activities that may lead to the destruc-
tion of ILA, and your company to reject talks
with ILA on this matter. We have decided to take
actions in Japanese ports in full support of ILA.
Kamezaki further states that he will communicate with
citrus importers and shipping companies and ‘‘will
make them sure to never conclude contracts with ste-
vedoring companies attempting to destroy ILA . . .
and that Japanese dockworkers’ [sic] unions are ready
to boycott [sic] the unloading of the cargo in Japanese
ports in the event that early, favorable solution should
not be made.’’ (S. Exh. 9.)
In a letter dated October 4, 1990, the Respondent’s
president, John Bowers, informed Kamezaki that the
Respondent was planning to picket nonunion stevedor-
ing companies at Ft. Pierce and Port Canaveral. He
stated: ‘‘[W]e hope to have your support in a form
which will bring this matter to the attention of the Jap-
anese people, your government and the Japanese ship-
pers and importers who are directly and indirectly in-
volved.’’ He ended by stating, ‘‘Your further support
in denying the unloading and landing of these picketed
products in your country will also be most helpful to
the members of the International Longshoremen’s As-
sociation and organized labor in the United States
which supports our effort.’’ (S. Exh. 14.)
The Japanese Unions circulated copies of the Bow-
ers letter of October 4, 1990, to citrus importers and
exporters and to shipping companies. Japanese import-
ers such as Imperial Corporation, Tokyo, expressed
concern to Florida exporters (such as IRCS) that citrus
which was loaded by nonunion longshoremen in Flor-
ida would not be unloaded by Japanese dockworkers.
In late October 1990, after failing to obtain assur-
ances that Japanese dockworkers would unload fruit
loaded by nonunion stevedores, Sumisho and its car-
rier, Cool Carriers (Svenska) AB, directed the ship,
Bagno El Triunfo, not to go to Ft. Pierce as scheduled
but to instead go to the port of Tampa for unloading
by longshoremen represented by the Respondent. By
letter dated November 6, 1990, the Respondent’s spe-
cial consultant, Ernest Lee, told the National Council
of Dockworkers’ Unions of Japan that the diversion of
the Bagno El Triunfo to Tampa was ‘‘a direct result
of your very timely and effective notices to relevant
parties in Japan of your support for our efforts.’’ Lee
added:
Your continued efforts on our behalf will be most
appreciated. Rather than diversions, we would be
pleased to see incoming vessels contracting with
and employing union stevedores at Port Canaveral
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Sec. 8(b)(4)(ii) provides that:
It shall be an unfair labor practice for a labor organization or
its agents—to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce, where . . .
an object thereof is—
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person . . . .
and Fort Pierce for their unloading and ours. We
believe this can be accomplished. [S. Exh. 26.]
During early December 1990, Japanese importers
such as Japan Produce Corp. informed various U.S. ex-
porters, such as Gulf Stream Citrus Sales, that their
ships would be loaded at Tampa instead of Port Ca-
naveral because of concern that the Japanese Unions
would otherwise refuse to unload the fruit in Japan.
The Japanese Unions’ threat to support the Respondent
by refusing to unload the fruit that had been loaded by
nonunion labor caused all the citrus shipments from
Florida to Japan during the 1990–1991 export season
to be shipped through the port of Tampa where they
were loaded by stevedores represented by the Respond-
ent. No ships were scheduled for Port Canaveral or Ft.
Pierce during that season for the same reason.
B. Contentions of the Parties
The General Counsel argues that the Respondent, in
furtherance of its primary dispute with Coastal and Ca-
naveral Stevedoring, pressured participants in the Flor-
ida-Japan citrus trade, neutral to the primary dispute,
by bringing about a threatened boycott by Japanese
Dockworkers of any citrus fruit loaded by the pri-
maries in Florida. The General Counsel contends that
this pressure constitutes a threat within the meaning of
Section 8(b)(4)(ii) for an object proscribed by subpara-
graph (B).4
The General Counsel further contends that the Re-
spondent is responsible for the actions of the Japanese
Unions under four theories of law; three are grounded
in agency law and the fourth is grounded in joint-ven-
ture principles. First, the General Counsel contends
that the Respondent, by its October 4, 1990 letter re-
questing that the Japanese Unions refuse to unload cit-
rus fruit loaded by the primaries, authorized the Japa-
nese Unions’ subsequent threat to boycott. Second, by
its letter of November 6, 1990, thanking the Japanese
Unions for their actions and requesting continued as-
sistance, the Respondent ratified those actions. Third,
the General Counsel asserts that the Japanese Unions
had apparent authority to act for the Respondent. Such
authority was created by the Japanese Unions’ dissemi-
nation of the Respondent’s October 4, 1990 letter and
by the Respondent’s failure to stop or object to the
Japanese Unions’ course of conduct. Fourth, the Gen-
eral Counsel argues that the Respondent is responsible
for the Japanese Unions’ conduct because the Re-
spondent and the Japanese Unions acted together in
joint venture in pursuit of the common goal of elimi-
nating the use of nonunion stevedores at Port Canav-
eral and Ft. Pierce, Florida.
Having established, to his satisfaction, that the Re-
spondent was responsible for the conduct of the Japa-
nese Unions, the General Counsel contends that the
Board has jurisdiction over the conduct of the Japanese
Unions. In this regard, the General Counsel argues that
the conduct was initiated in the United States and was
aimed at influencing the Respondent’s primary labor
dispute in the United States.
The Respondent contends that the conduct of the
Japanese unions cannot be attributed to the Respondent
on a theory of agency or joint venture. The Respond-
ent asserts that there is no authority for the proposition
that the Respondent’s request for assistance from the
Japanese Unions amounts to an authorization of the
Japanese Unions to act for the Respondent. Similarly,
there is no authority to support a finding that the Re-
spondent’s expression of gratitude to the Japanese
Unions for assistance is a ratification of the Japanese
Unions’ conduct. Further, the Respondent argues that
there is not even the appearance that the Japanese
Unions were acting pursuant to the authority of the Re-
spondent. Finally, the Respondent argues that its rela-
tionship with the Japanese Unions does not meet any
of the defining features of joint venture such as con-
trol, proprietary interest, or sharing of profits and
losses.
The Respondent also contends that the Board does
not have jurisdiction over the conduct at issue here be-
cause the conduct occurred exclusively outside the ter-
ritorial boundaries of the United States and was com-
mitted solely by foreign entities.
C. Discussion
No direct conduct by the Respondent is alleged to
be unlawful in this case. All the allegedly unlawful
acts were committed solely by the Japanese Unions.
The initial question before us, therefore, is whether the
Respondent is responsible for the conduct of the Japa-
nese Unions. If responsibility is established and if the
conduct falls within the proscriptions of Section
8(b)(4)(ii)(B), then the question remains whether the
Board has jurisdiction. For the reasons set forth below,
we answer each of these questions in the affirmative.
The relationship between the Respondent and the Japa-
nese Unions in this case is such that the former is re-
sponsible for the conduct of the latter. The conduct at
issue is of the type proscribed by Section
8(b)(4)(ii)(B). And the Board has jurisdiction to find a
violation and to prescribe a remedy for the unlawful
conduct.
415LONGSHOREMEN ILA (COASTAL STEVEDORING CO.)
5 Sec. 2(13) provides:
In determining whether any person is acting as an ‘‘agent’’ of
another person so as to make such other person responsible for
his acts, the question of whether the specific acts performed
were actually authorized or subsequently ratified shall not be
controlling.
6 93 Cong.Rec. 6858–59. Senator Taft explained that the definition
was added expressly to avoid a Supreme Court interpretation of the
Norris-LaGuardia Act which exempted organizations from liability
for illegal acts committed in labor disputes unless there was proof
of actual instigation, participation or ratification. Carpenters v. U.S.
330 U.S. 395 (1947).
7 Longshoremen Local 1814 v. NLRB, 735 F.2d 1384, 1394 (D.C.
Cir. 1984), cert. denied 469 U.S. 1072 (1984). See also Machinists
v. NLRB, 311 U.S. 72, 80 (1940); H. J. Heinz Co. v. NLRB, 311
U.S. 514, 521 (1941).
8 184 NLRB 398 (1970).
9 Id. at 398.
1. The Japanese Unions acted as agents of
the Respondent
The Taft-Hartley amendments of 1947 expressly in-
corporated the common law of agency into the Act by
adding the Section 2(13) definition of agency.5 In re-
ferring to the definition, Senator Taft stated: ‘‘This re-
stores the law of agency as it has been developed at
common law. . . . The conferees agreed that the ordi-
nary law of agency should apply to employer and
union representatives.’’6 When applied to labor rela-
tions, however, agency principles must be broadly con-
strued in light of the legislative policies embedded in
the Act:
Transplantation of ordinary agency law, which
arises out of ordinary contract and tort disputes,
into the NLRA context necessarily requires sen-
sitivity to the particular circumstances of indus-
trial labor relations. Courts have concluded that
under the NLRA, agency principles must be ex-
pansively construed, including when questions of
union responsibility are presented.7
The first step in our analysis, therefore, must be an
examination of ‘‘the particular circumstances of indus-
trial labor relations’’ involved in this case. Beyond
question, the Respondent attempted to cause economic
pressure to be brought to bear against neutral shippers,
importers, and exporters involved in the Florida-Japan
citrus trade in order to further the Respondent’s pri-
mary dispute with nonunion stevedoring companies in
Florida. In its brief to the Board and at oral argument,
the Respondent admits that it induced the Japanese
Unions to engage in a secondary boycott, which boy-
cott clearly would have been in violation of Section
8(b)(4)(ii)(B) had it been conducted by a U.S. union
on U.S. territory. The particular labor relations practice
at issue here, therefore, involves a classic attempt by
a U.S. union to cause secondary pressure to be placed
on neutral persons to force those persons to cease
doing business with the U.S. employers with whom the
Respondent has a primary labor dispute in the United
States.
The only aspects of this case which remove it from
a text-book scenario of 8(b)(4)(ii)(B) conduct is (1) the
involvement of foreign entities and (2) the exertions of
economic pressure outside U.S. territory. The Respond-
ent contends that these aspects alone are sufficient to
require a different result both in the application of
agency principles and in the assertion of jurisdiction.
We disagree.
Initially, we think it clear that if the threats at issue
here had been made, at the Respondent’s request, by
a U.S. union in the United States, the Respondent
would have been held responsible for the threats. In
Pipefitters Local 280 (Aero Plumbing Co.),8 the Board
found authorization and ratification of conduct in cir-
cumstances similar to those of the instant case. There,
the respondent, Plumbers Local 280 (Local 280),
sought an agreement which contained permissive, non-
mandatory subjects of bargaining with Aero Plumbing.
Aero resisted. When Local 280 discovered that Aero
would be working in the jurisdiction of Plumbers
Local 78 (Local 78), Local 280 told Local 78 that
Aero had not signed a contract with Local 280. It told
Local 78 to ‘‘be on the lookout, maybe they could get
Auckerman [part-owner of Aero] to sign the con-
tract.’’9 Five days later, Local 78 picketed the jobsite
in Local 78’s jurisdiction where Aero was working.
The next day the general contractor at the jobsite told
Auckerman that if he did not get the pickets off the
job, Aero’s contract would be canceled. Two days
later, Aero signed the contract with Local 280. The
judge found no evidence that Local 280 authorized or
ratified Local 78’s picketing. The judge therefore
found that Local 280 was not responsible for that pick-
eting. The Board, however, disagreed. It noted that
Local 280 informed Local 78 that Aero would be in
its jurisdiction, that Aero had not signed a contract
with Local 280, and that Local 78 should try to get
Aero ‘‘to sign the contract.’’ In these circumstances,
the Board concluded that Local 280 was responsible
for Local 78’s conduct.
Concededly, secondary pressure was not present in
Aero Plumbing, supra. Instead, the issue was whether
the Respondent violated Section 8(b)(1)(B) and (3) by
coercing Aero into acceptance of a contract containing
nonmandatory subjects of bargaining. The agency prin-
ciples, however, apply with equal force to cases in-
volving secondary boycotts. In each instance, the ques-
tion is whether the respondent is responsible for the
conduct of another entity. Applying the Aero Plumbing
principles to the facts of the instant case, we would
find the Respondent responsible for the threats of boy-
cott had those threats been made by a U.S. union in
the United States. The Respondent informed the unions
of its dispute with nonunion stevedoring companies,
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 See also Longshoremen (Shipside Packing Co.), 227 NLRB 659
(1976), where the Board found respondent Local 333 responsible for
unlawful conduct of respondent Local 953 even though there was no
evidence of Local 333’s direct involvement in unlawful conduct. The
Board noted that Local 333 was a direct beneficiary of the activity
of Local 953, was aware of Local 953’s conduct, and made no effort
to discourage or disclaim the conduct. The Board concluded that
‘‘Respondent Local 333 was aware of the activities, knew they were
on behalf of the employees it represents, and, therefore, is respon-
sible for the activities found illegal herein.’’ Id. at 659 fn. 1.
and requested assistance from the unions in preventing
the use of nonunion stevedores. The unions granted the
Respondent’s request. Asserting that they were acting
on behalf of and in support of the Respondent, the
unions threatened various neutral shippers, importers,
and exporters with the refusal to unload fruit that had
been loaded by nonunion labor. In many instances a
copy of the Respondent’s request for assistance was
enclosed with the unions’ threats of boycott. The
unions’ threats produced results. Ships were diverted
from ports using nonunion labor to Tampa, Florida,
where they were loaded by stevedores represented by
the Respondent. The Respondent did nothing to dis-
avow or halt the unions’ threats. To the contrary, the
Respondent applauded the unions’ ‘‘timely and effec-
tive action’’ and requested their continued action on
the Respondent’s behalf. The Respondent’s conduct is
virtually identical to that of the Local 280 in Aero
Plumbing with respect to informing the other union of
its difficulties with an employer, requesting certain
supportive action by the other union, and taking full
advantage of the benefits of the other union’s action.
These actions amounted to authorization and ratifica-
tion of conduct in Aero Plumbing, supra; they clearly
would amount to the same here if all the players were
American and if the action had taken place in the
United States.10
The issue, therefore, is whether the application of
these principles should bring about a different result
solely because the other unions are foreign entities and
the threats they made occurred outside of the United
States. We think not. We first address the fact that the
other unions are foreign entities. In our view, the iden-
tity of the agent is irrelevant to the issue of agency.
That is, if a union (or an employer) acts through the
instrumentality of another entity, it makes no dif-
ference whether that other entity is domestic or for-
eign. The essential point is that the union is acting
through the instrumentality of another entity. Thus, for
example, if the Japanese Unions had acted (on behalf
of the Respondent) inside the U.S., the Respondent
would be responsible even though its instrumentality
was Japanese.
We now consider the fact that the conduct here oc-
curred in a foreign country. Notwithstanding this fact,
we believe that a finding of responsibility is warranted.
The parties stipulated that Japan is a major importer of
citrus fruit grown in Florida. Japanese stevedores and
American stevedores are linked together by the Flor-
ida-Japan citrus trade. The same fruit is loaded by the
Respondent and unloaded by the Japanese Unions. The
actions of one have a direct impact on the terms and
conditions of employment of the other. If, for example,
the Respondent’s lawful dispute with the nonunion ste-
vedoring companies resulted in disruption of the load-
ing of fruit in Florida, the Japanese unions would feel
the impact in the form of decreased work in Japan. In
addition, current telecommunications place all entities
involved in the Florida-Japan citrus trade in immediate
contact. As Charging Party Coastal stressed at oral ar-
gument, the fax machine figured prominently in the
events at issue here. Letters from Japan reached Amer-
ican shores in the time that it takes to place a tele-
phone call.
In these circumstances, we see little difference be-
tween the interactions of the Respondent and the Japa-
nese Unions here and those of one local union request-
ing and receiving assistance from a separate local in a
different geographic area as in Aero Plumbing, supra.
In each case, the unions are involved in the same type
of work. In each case, the unions are separated geo-
graphically. In each case, the respondent requested as-
sistance for its dispute and received direct benefits
from the requested action. Given the trade links and
rapid communications, we believe that the fact that the
geographic separation in this case involves separate
countries rather than separate counties is not of com-
pelling significance in applying the principles of agen-
cy.
We further believe that policy considerations support
a finding of agency here. Everything that happened in
this case was initiated by the Respondent and had the
sole purpose of assisting the Respondent in its primary
labor dispute with nonunion companies in Florida. The
Respondent concedes that the actions taken by the Jap-
anese Unions are a classic secondary boycott. To allow
the factor of geography to prevail in determining the
liability for the disputed conduct would be to permit
the Respondent to escape responsibility for actions it
set in motion—actions of the type Congress clearly in-
tended to proscribe with the enactment of Section
8(b)(4)(ii)(B). In an increasingly global economy, the
opportunities abound for U.S. unions to initiate harm-
ful secondary activities by unions representing employ-
ees of the foreign trade partner. Permitting U.S. unions
to escape responsibility purely on geographical
grounds for the economic harm they unleash subverts
the purpose of the Act.
For all these reasons, we find that the Respondent
authorized and ratified the disputed conduct of the Jap-
anese Unions. We conclude that the Respondent is re-
sponsible for threats made by the Japanese Unions to
neutrals involved in the Florida-Japan citrus trade that
417LONGSHOREMEN ILA (COASTAL STEVEDORING CO.)
11 Dowd v. Longshoremen ILA, 975 F.2d 779 (11th Cir. 1992).
12 EEOC v. Arabian American Oil, 499 U.S. 244 (1991); American
Radio Assn. v. Mobile S.S. Assn., 419 U.S. 215 (1974); Windward
Shipping Ltd. v. American Radio Assn., 415 U.S. 104 (1974);
McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963); and Benz v.
Compania Naviera Hidalgo, 353 U.S. 138 (1957).
13 Dowd v. Longshoremen ILA, 975 F.2d at 788.
14 Id. at 789.
15 Id.
16 Id. at 791.
fruit loaded in Florida by nonunion labor would not be
unloaded in Japan.
2. The disputed conduct meets the elements of a
violation of Section 8(b)(4)(ii)(B)
Having found that the Respondent is responsible for
the actions of the Japanese Unions, we find those ac-
tions fall within the proscription of Section
8(b)(4)(ii)(B). The parties stipulated that an object of
the Respondent’s conduct was to affect a primary dis-
pute with Coastal and Port Canaveral Stevedoring. The
parties also stipulated that the importers, exporters, and
shipping companies contacted by the Japanese Unions
were neutral to the labor dispute between the Respond-
ent and Coastal and Port Canaveral Stevedoring, and
were persons engaged the commerce or an industry af-
fecting commerce within the meaning of Section
8(b)(4)(ii)(B). It is undisputed that the Japanese
Unions’ threats to refuse to unload fruit loaded by non-
union labor in Florida constituted coercive economic
pressure. The Japanese Unions, acting as agents of the
Respondent, threatened a secondary boycott of the kind
prohibited by the Act. We, therefore, find that the dis-
puted conduct falls within the proscriptions of Section
8(b)(4)(ii)(B).
3. The Board has jurisdiction over the
disputed conduct
The final question we address is whether the con-
duct attributable to the respondent is within the
Board’s jurisdiction. The Respondent contends that
there is no jurisdiction because the events occurred
outside the geographic territory of the United States
and, therefore, are beyond the application of the Act.
We disagree. We find that the Board has jurisdiction
over conduct initiated by a U.S. union and carried out
by agents of a U.S. union, which conduct has the in-
tent and effect of embroiling neutral persons engaged
in commerce in a primary labor dispute between a U.S.
union and U.S. employers located within the territory
of the United States.
The United States Court of Appeals for the 11th Cir-
cuit addressed the issue of jurisdiction in its decision
granting the Board’s petition for injunctive relief under
Section 10(l) in this proceeding.11 Although the court
was making only a reasonable cause determination, we
fully agree with the court’s reasoning, and we find that
jurisdiction lies in this case.
The court rejected the Respondent’s argument that
certain Supreme Court cases12 restricted the scope of
the Act to conduct occurring only within the territory
of the United States. The court stated: ‘‘The Benz
cases do not represent generally applicable boundaries
of commerce, but instead a judgment that Congress did
not intend to interfere with the internal operation of
foreign vessels.’’13 The court further stated that the
Supreme Court’s refusal to allow extraterritorial appli-
cation of Title VII in EEOC v. Arabian American Oil,
supra, ‘‘is in fact a presumption that Congress intended
to avoid ‘clashes between our laws and those of other
nations which could result in international discord.’’’14
(Citation omitted.)
The court then determined that several factors in the
instant case support the assertion of jurisdiction:
(1) the NLRA is here applied, as Congress in-
tended, to protect persons in commerce from a
secondary boycott, (2) the conduct was intended
and had the effect of creating on unlawful second-
ary boycott in the United States, (3) certain sig-
nificant conduct in furtherance of the secondary
boycott occurred within the geographic territory
of the United States, and (4) the fact that the
Board is acting against a domestic labor organiza-
tion subject to regulation under the NLRA.15
The court concluded that the threats made by the Japa-
nese Unions were within the scope of the Act:
Although the Supreme Court has limited the
scope of the NLRA to avoid interference with the
internal affairs of other nations, the Act is prop-
erly applied to the conduct of a domestic labor
union which solicits a foreign union to apply
pressure overseas with the intent and result of cre-
ating a secondary boycott in the United States.
Further, the conduct charged in the Board’s peti-
tion is not wholly extraterritorial; the letters re-
questing and ratifying the boycott threatened by
the Japanese Unions were sent from the United
States. Under these circumstances, nothing in the
text or intent of the NLRA compels us to allow
ILA to evade responsibility for effecting a suc-
cessful secondary boycott in violation of the
NLRA.16
We agree with the 11th Circuit’s analysis. Assertion of
jurisdiction in this case in no way interferes with the
laws of Japan or affects the employment conditions of
Japanese employees. Our remedial Order simply re-
quires that the Respondent cease and desist from re-
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 This is not to say that the request, standing alone, was the unfair
labor practice. As explained above, the unfair labor practice was the
conduct of the Japanese Unions, for which the Respondent is respon-
sible. However, the remedy for this unfair labor practice is confined
to the Order described above.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
questing that the Japanese Unions engage in secondary
boycott activities in support of the Respondent.17
Accordingly, we assert jurisdiction and find that the
Respondent violated Section 8(b)(4)(ii)(B) of the Act.
CONCLUSION OF LAW
The Respondent, acting through the Japanese
Unions, threatened, coerced, or restrained shipping
agents, shipping companies, citrus exporters, citrus im-
porters, the Canaveral Port Authority, and other per-
sons engaged in commerce or in an industry affecting
commerce, who are neutral to the dispute between the
Respondent and Coastal and between the Respondent
and Canaveral and other nonunion stevedoring compa-
nies operating at Port Canaveral, Florida, where an ob-
ject thereof was to force or require them to cease
doing business with Coastal, and with Canaveral Ste-
vedoring and other nonunion stevedoring companies
operating at Port Canaveral, Florida, and with each
other, and/or to otherwise alter their business relation-
ships related to the shipment of citrus fruit from Ft.
Pierce and Port Canaveral, Florida, to Japan. The Re-
spondent thereby engaged in unfair labor practices af-
fecting commerce in violation of Section 8(b)(4)(ii)(B)
of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, International Longshoremen’s Association,
AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from requesting that the Japa-
nese Unions or others threaten, coerce, or restrain ship-
ping agents, shipping companies, citrus exporters, cit-
rus importers, the Canaveral Port Authority, and other
persons engaged in commerce or in an industry affect-
ing commerce, who are neutral to the dispute between
the Respondent and Coastal Stevedoring Company and
between the Respondent and Port Canaveral Stevedor-
ing, Inc. and other nonunion stevedoring companies
operating at Port Canaveral, Florida, where an object
thereof is to force or require them to cease doing busi-
ness with Coastal Stevedoring Company and with Port
Canaveral Stevedoring, Inc. and other nonunion steve-
doring companies operating at Port Canaveral, Florida,
and with each other, and/or to otherwise alter their
business relationships related to the shipment of citrus
fruit from Ft. Pierce and Port Canaveral, Florida, to
Japan.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, repudiate, and disavow in writing its
letter of October 4, 1990.
(b) Post in its business offices and meeting halls
copies of the attached notice marked ‘‘Appendix.’’18
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained by it for 60 consecutive days, in con-
spicuous places including all places where notices to
its members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(c) Promptly after receipt of copies of the notice
from the Regional Director, return signed copies for
posting by Coastal Stevedoring Company, Port Canav-
eral Stevedoring, Inc., and other nonunion stevedoring
companies operating at Port Canaveral, Florida, those
parties willing, at all places where notices to their re-
spective employees are customarily posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, concurring in the result.
I agree with my colleagues that in the unique cir-
cumstances of this case the Respondent, International
Longshoremen’s Association, AFL–CIO, is appro-
priately held responsible, under Section 8(b)(4)(ii)(B)
of the Act, for threats made by Japanese Unions to
neutral persons who are involved in the Florida-Japan
citrus trade.
The prohibition against secondary boycotts in Sec-
tion 8(b)(4) of the Act was drafted to protect neutral
parties from illegal boycotts in their many forms and
it is apparent from prior case law and the legislative
history that Congress intended the prohibition against
secondary boycotts to reach broadly. Longshoremen v.
Allied International, 456 U.S. 212, 225 (1982).
There is no dispute in this case that neutral parties
in the Florida-Japan citrus trade were in fact threat-
ened. In light of the harm effected in this case, the dis-
positive question is whether the Respondent is respon-
sible for that proscribed harm.
The Respondent concedes in the parties’ stipulation
of facts that it repeatedly invoked the aid of the Japa-
nese Unions to threaten neutral persons doing business
with nonunion stevedoring companies in the United
States, with whom the ILA has a primary labor dis-
pute. Thus, the Respondent stipulates that in the spring
419LONGSHOREMEN ILA (COASTAL STEVEDORING CO.)
of 1989, an ILA delegation went to Japan for meetings
with several Japanese Unions to ‘‘express its concern
over Japanese and foreign importers and shipping com-
panies directly or indirectly utilizing non-union steve-
dores at Port Canaveral and Fort Pierce, Florida, and
requested assistance from these entities.’’ The Re-
spondent additionally stipulated that its representatives
met with Japanese Unions in early 1990 and again in
the spring of 1990 to request their ‘‘cooperation with
respect to the matter of the loading of citrus fruit
bound for Japan at the Port of Fort Pierce and Port Ca-
naveral, Florida.’’ The ILA followed up these visits
with a letter to Japanese Dockworkers President
Kamezaki reiterating its request for support.
Following these requests for Japanese aid, the Japa-
nese Unions wrote Japanese citrus importers, various
shipping companies, and nonunion stevedoring compa-
nies in Florida and informed these neutrals that the
Japanese Unions would take cooperative action with
the ILA and boycott the unloading of citrus that was
loaded in the U.S. by nonunion stevedores.
The Respondent further stipulates that by letter
dated October 4, 1990, to the Japanese Dockworkers’
Union, it requested their continued support and
pledged to provide them with ‘‘photographs and de-
scriptive material which will aid in your effort.’’
Upon the failure of various importers to obtain as-
surances that the Japanese Dockworkers would unload
the Florida citrus in Japan, Japanese importers and
their shipping lines directed their ship, the Bagno El
Triunfo, to go to the port of Tampa for loading by
ILA-represented longshoremen.
The Respondent stipulates that by letter dated No-
vember 6, 1990, it thanked the Japanese Unions for
their help and noted that the diversion of the Bagno El
Triunfo ‘‘is a direct result of your very timely and ef-
fective notices to relevant parties in Japan of your sup-
port for our efforts. The Bagno El Triunfo will be han-
dled by ILA in Tampa. Thank you.’’ The Respondent
further requested the continued support of the Japanese
Unions. The parties stipulate that thereafter numerous
ships were likewise diverted to the port of Tampa for
loading by ILA-represented longshoremen.
The Respondent thus stipulates that it repeatedly in-
voked the aid of the Japanese Unions and sought their
assistance in pressuring neutrals in the Japan-Florida
citrus trade. Even though the Respondent acknowl-
edges its conduct, it attempts to avoid legal respon-
sibility for the conduct of the Japanese Unions on its
behalf by arguing that each technical element of the
law of agency is not present in this case. However, as
my colleagues recognize, the principles of agency law
must be applied flexibly in the context of labor rela-
tions. With this legal analysis as a backdrop, I believe
that the General Counsel has established a causal link
between the ILA’s invocation of action and the Japa-
nese Unions’ heeding that call to hold the ILA respon-
sible under the National Labor Relations Act.
Accordingly, under these particular circumstances,
where the Respondent concedes and stipulates that it
successfully sought the Japanese Unions’ agreement to
engage on its behalf in secondary boycott conduct
which the Act proscribes, I agree with my colleagues
that the Respondent is responsible for that conduct and
that it violated Section 8(b)(4)(ii)(B) of the Act.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT request that the Japanese Unions or
others threaten, coerce, or restrain shipping agents,
shipping companies, citrus exporters, citrus importers,
the Canaveral Port Authority, and other persons en-
gaged in commerce or in an industry affecting com-
merce, who are neutral to the dispute between us and
Coastal Stevedoring Company and between us and
Port Canaveral Stevedoring, Inc. and other nonunion
stevedoring companies operating at Port Canaveral,
Florida, where an object thereof is to force or require
them to cease doing business with Coastal Stevedoring
Company and with Port Canaveral Stevedoring, Inc.
and other nonunion stevedoring companies operating at
Port Canaveral, Florida, and with each other, and/or to
otherwise alter their business relationships related to
the shipment of citrus fruit from Ft. Pierce and Port
Canaveral, Florida, to Japan.
WE WILL rescind, repudiate, and disavow in writing
our letter of October 4, 1990.
INTERNATIONAL LONGSHOREMEN’S AS-
SOCIATION, AFL–CIO