West India Fruit and Steamship Co., Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1961

130 N.L.R.B. 343 (N.L.R.B. 1961)

WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 343
Chester Luka George Delnick
Lawrence Lucas Stanley Nowak
John Niewinski Joseph Petek
Albert Miller Raymond Ostrowski
James Johnson William Lynch
Joseph Niewinski
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of their right to self -organization , to form labor organizations,
to join or assist Warehousemen and Mail Order Employees , Local No. 743,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Help-
ers of America , or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purposes of collectively bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the extent that such member-
ship may be affected by an agreement requiring membership in a labor organi -
zation as a condition of employment , as authorized in Section 8(a)(3) of the
Act.
WE WILL NOT discriminate in regard to the hire or tenure of employment or
any term or condition of employment of any employee because of membership
in or activities on behalf of Warehousemen and Mail Order Employees, Local
No. 743, International Brotherhood of Teamsters , Chauffeurs , Warehousemen,
and Helpers of America , or because he is engaged in concerted activities for
the mutual aid or protection of the employees.
AETNA PLYWOOD AND VENEER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
West India Fruit and Steamship Company, Inc. and Seafarers
International Union of North America , Atlantic & Gulf Dis-
trict, AFL-CIO. Case No. 15-CA-1454. February 16, 1961
DECISION AND ORDER
This proceeding is brought under Section 10(b) of the National
Labor Relations Act. On December 31, 1958, the Seafarers Interna-
tional Union of North America, Atlantic & Gulf District, AFL-CIO,
herein called the Union, filed a charge with the National Labor Rela-
tions Board. On January 2, 1959, a copy of the charge was served
upon the Respondent, West India Fruit and Steamship Company, Inc.
Thereafter, the General Counsel for the National Labor Relations
Board issued a complaint and notice of hearing, dated April 23, 1959,
alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. Copies
of the complaint and notice of hearing were duly served upon the
parties.
With respect to the unfair labor practices the complaint alleges in
substance that (1) from on or about December 22 to on or after De-
cember 31, 1958, the Respondent interrogated its employees on the
130 NLRB No. 46.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SS Sea Level concerning their activities with respect to the Union,
offered certain benefits and made certain threats to discourage mem-
bership in the Union, and engaged in other activities to induce its
employees to withdraw from membership in the Union; and (2) on or
about December 26, 1958, transferred or laid off at Havana, Cuba,
certain named employees because said employees had joined the Union
or otherwise engaged in concerted activities for purposes of collective
bargaining and other mutual aid and protection.
Respondent filed a motion to dismiss and an answer and an amended
answer in which it denied committing the unfair labor practices as
alleged and in which it contends essentially that the Board does not
have jurisdiction over the Respondent, the SS Sea Level, the subject
matter of the complaint and/or the employees involved.
Thereafter, the parties entered into three stipulations dated June 5,
26, and 29,1959, and on the last date filed with the Board a "Motion to
Transfer Proceedings to the Board." In the motion the parties agreed
that the charge, complaint, the answer, the amended answer, and the
stipulations referred to above would constitute the entire record in
this case. The parties further stipulated that they waived a hearing
before a Trial Examiner, the making of findings of fact and con-
clusions of law by a Trial Examiner, and the issuance of an Inter-
mediate Report and Recommended Order, and that they desired to
submit this case for findings of facts, conclusions of law, and order
directly to the Board. The motion also indicated that the parties
reserved the right to file briefs.
By an order issued July 2, 1959, the Board granted the motion,
approved the stipulations and made them a part of the record herein,
and transferred the case to, and continued it before, the Board. There-
after the parties filed briefs. Though denying in its answers the com-
mission of any unfair labor practices, the Respondent in its brief
limited its argument to the contention that the Board, under the
provisions of the Act, does not have jurisdiction of the subject matter
of this case,' while the General Counsel and the Union in their briefs
contend inter alia that the Act is applicable. The Respondent bases
its jurisdictional contentions essentially on the facts that the SS Sea
Level, the ship on which the seamen subject of the alleged unfair
labor practices were employed, was of Liberian registry and that none
of the seamen were residents or nationals of the United States.
Peninsular & Occidental Steamship Company 2 and Eastern Ship-
ping Corporation, McCormick Shipping Corporation 3 pending before
i The American Committee for Flags of Necessity was, pursuant to its request dated
November 7, 1959, granted permission to, and subsequently did, file briefs as amicus
curiae on the issue of the Board's jurisdiction . In its briefs, the Committee contends, in
support of Respondent 's position, that the operations involved do not fall within the
jurisdiction of the Act.
2 12-CA-255.
12-RC-415.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 345
the Board raise jurisdictional issues similar to those involved in the
present case.' On May 18, 1960, the Board issued a consolidated
notice of hearing in all three cases for purposes of oral argument, such
argument to be limited to the jurisdictional issues. The hearing was
held on May 31, 1960, and all parties in the three cases were repre-
sented by counsel and participated in the argument.'
Upon the entire record of this case, the Board 6 makes the following
findings of fact and conclusions of law.
* On October 28, 1960, the Attorney General on behalf of the United States of America
and at the request of the Department of State and the Department of Defense filed a
motion for leave to intervene in this proceeding and in the Peninsular & Occidental case,
the Eastern Shipping case, and United Fruit Company , Case No. 2-RC-10379, for the
purpose of filing a brief presenting the views of the Department of State on certain
matters of maritime and international law present in these cases and the views of the
Department of Defense on certain defense policy considerations concerning the assertion
of jurisdiction by the Board over the foreign -flag ships subject of these cases . The motion
was granted on November 14, 1960, and the brief of the United states was filed on Novem-
ber 18, 1960 . Pursuant to their requests , Seafarers International Union of North America,
Atlantic & Gulf District, AFL-CIO, and National Maritime Union of America , AFL-CIO,
were granted permission to file, and did file on December 9 and 8, 1960 , respectively , briefs
in reply to the brief of the United States.
5 Counsel for amicus curiae, the American Committee for Flags of Necessity , was notified
of the hearing , but not invited to participate . United Fruit Company, Case No. 2-RC-
10379, currently pending before the Board also involves certain jurisdictional issues
raised in the present cases. At the time of issuing its notice of hearing herein , the Board
had not decided whether or not oral argument should be held in that case. However, the
United Fruit Company, The National Maritime Union of America , AFL-CIO, petitioner in
the United Fruit case, and Sociedad Naccional de Marinos de Hondoras , a Honduran
organization which may have a substantial interest in the outcome of the United Fruit
case , were all invited to participate as amicus curiae in the oral argument Only the
National Maritime Union accepted the invitation and appeared through counsel at the
hearing Copies of the notice of hearing were sent to the governments of Liberia , Panama,
and Honduras as ships flying their flags are involved in the various cases . Also copies of
the notice were sent to the Department of Defense , Department of Justice, Department of
Labor , Department of State , and to the Maritime Administration
On December 14, 1960 , the Seafarer 's International Union filed a motion with the Board
requesting additional oral argument In view of the considerations and contentions con-
tained in the brief of the United States. As the positions of the various parties are
clearly stated and the Issues raised by the Attorney General In his brief are fully con-
sidered in the reply briefs of the Seafarers and Maritime Unions, the motion for addi-
tional oral argument is hereby denied
6 On February 7, 1961 , Peninsular & Occidental Steamship Company and Green Trading
Company filed with the Board a "motion . . to Disqualify Board Member Joseph Alton
Jenkins from participation , deliberation and decision" in the present case and those cases
cited in footnote 10 of this decision which are presently pending before the Board. On
February 10, 1961, West India Fruit and Steamship Company filed a motion in which it
in effect joined in the motion previously filed seeking the disqualification of Member
Jenkins The motions were referred to Member Jenkins. He concluded that the facts as
alleged did not support a conclusion of personal bias or prejudice on his part with respect
to the issues raised , or parties involved in the cases before the Board . His general state-
ments concerning desirable public policy do not in his view support at all the asserted
conclusion that in a particular case he will, or even desires to , distort present applicable
law in reaching his result. Thus, Member Jenkins is fully convinced not only that the
motions fail to show any basis for a finding of personal bias or prejudice but that in fact
no such bias or prejudice exists. Consequently , he finds no reason for disqualifying
himself.
The Board has considered the above motions and finds that the grounds presented therein
for the disqualification of Board Member Jenkins are legally insufficient . Accordingly, the
Board denies the motions to disqualify Member Jenkins and also the requests for re-
argument and reconsideration of the cases Involved herein.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The business of the Respondent and its operations involved in
this proceeding
The Respondent is a corporation organized under the laws of the
State of Virginia and is engaged primarily in certain maritime oper,
ations between the United States and Cuba. Respondent's officers,
directors, and stockholders are all citizens of the United States. Its
home office is at Norfolk, Virginia; its main operating office at West
Palm Beach, Florida. It maintains a freight office at New York, New
York, and a branch office at New Orleans, Louisiana. It also has a
general agent at Havana, Cuba, who handles all its ships' business at
that port and obtains crew members for the ships.
The alleged unfair labor practices which are detailed below in-
volved only the unlicensed crew of Respondent's vessel, the SS Sea
Level, and of the eight ships owned by the Respondent the Sea Level
is alone involved in this proceeding.
The Sea Level was built in England in 1928 and was under British
registry and flew the Canadian flag until sometime in the 1930's when
she was transferred to American registry. At such times she was
owned and operated by Seatrain Lines, Inc., a Delaware corporation.
In 1949 Seatrain discontinued operation of the vessel and laid her up
without crew in the Mississippi River at Belle Chasse, Louisiana.
On August 28, 1954, Respondent considered purchasing the ship
from Seatrain, but concluded that it could not, for economic reasons,
be effectively operated under American ° registry between Havana
and New Orleans, as intended, in competition with ships of foreign
registry.8 Respondent, therefore, decided to purchase the vessel only
if it could be transferred foreign and operated with a crew composed
of foreign nationals. Consequently, on August 28, 1954, Respondent
applied, as required by law, to the United States Department of Com-
merce, Maritime Administration, for permission to transfer the Sea
Level to Liberian registry and flag, approval of such transfer being
granted on September 30, 1954, subject to certain standard conditions
with which Respondent has fully complied. These conditions inter
alia, prohibit sale of the ship by Respondent without prior approval
of the Maritime Administration and also authorize requisition of the
ship by the United States in time of war or national emergency. As
approval for the requested transfer foreign had been granted, Re-
spondent purchased the vessel. It thereupon completed the transfer
of the vessel to Liberian registry and flag, thereby subjecting her to
9 The term "American" is used throughout this decision as a synonym for United States.
8 Exhibits were placed in evidence to show that the Respondent in operating the Sea
Level between the United States and Havana would in fact be faced primarily with compe-
tition from ships of foreign registry and flag. We make no finding on this point, but
assume for purposes of this decision that Respondent was in fact confronted principally
with such competition.
i WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 347
the maritime and other pertinent laws of the Republic of Liberia,
with which Respondent has at all times complied. The date of Li-
berian registry was November 12, 1954, and since that time the home
port of the Sea Level has been Monrovia, Liberia, as required by the
law of that nation.
Since purchased and placed in operation by Respondent in 1954,
the Sea Level has operated only between Havana, Cuba, and Belle
Chasse, Louisiana, as a common carrier in international and foreign
commerce. She has never been in Liberian waters, and, insofar as
the record indicates, has never carried cargo destined for, nor originat-
ing in, Liberia. The Sea Level is a car ferry, carrying cargo con-
tained in railroad boxcars owned by various American railroads and
rented on a per diem basis by Respondent. The boxcars are loaded
aboard the vessel at Belle Chasse and thence carried to Havana where
they are placed ashore and sent to their ultimate consignee who un-
loads them. The cars are then reloaded by Cuban shippers, placed
back aboard the vessel, and returned to Belle Chasse where they are
discharged and sent to their United States destination. Tonnage-wise
the shipments from Havana, which is mostly sugar, exceeds somewhat
the shipments of cargo from Belle Chasse, while the gross revenue
from shipments to Cuba exceeds somewhat the gross revenue derived
from shipments originating in Cuba. Respondent's annual gross
revenue from these shipments exceeds $50,000.
The Sea Level calls weekly at Belle Chasse and at Havana. It is
fueled at Belle Chasse, and provisioned both in Belle Chasse and
Havana. Each November the ship is drydocked for approximately
1 week in New Orleans for maintenance and repairs, at which time
she undergoes, as required by Liberian law, inspections and surveys,
conducted by the American Bureau of Shipping, a nongovernmental
international classification society acting as agent for and representa-
tive of the Liberian government. The Sea Level is subject to no
inspections or regulations by any agency of the United States Gov-
ernment except those that are generally applied to all foreign flag
vessels visiting American ports. She carries all shipping papers
required by Liberian law, which papers must be displayed in order
to enter or clear a United States port. American Government author-
ities have always found the papers in order and have always permitted
entrance and clearance of the ship.
When Respondent purchased the Sea Level in 1954, she was without
a crew 9 and remained so until a crew was employed in Havana, Cuba,
and transported to New Orleans where the ship lay. The original
crew of the Sea Level under Respondent's operations, like all sub-
sequent crews, was composed almost wholly of nonresident, foreign
9 As used throughout this decision the word "crew " means the unlicensed crew.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nationals, principally Cubans who are normally hired in Havana by
Respondent's general agent. The crew sign Liberian shipping articles
which are opened aboard the vessel in New Orleans. Among other
things, the articles establish generally the rights and obligations
'existing between the master and crew, provide that compensation for
injury shall be determined by Liberian law, and further provide for
interpretation of the articles by Liberian authorities. Unlike crews
of American flag vessels engaged in foreign commerce, the crew of
the Sea Level is not paid off before the United States Shipping
Commissioner.
As for the officers of the Sea Level, they are usually foreign na-
tionals and all hold licenses issued by the government of Liberia.
The complaint, as noted above, alleges that Respondent violated
Section 8 (a) (1) and (3) of the Act, through the conduct and acts of
certain of its officers and agents. As is set forth in detail below the
conduct and acts alleged to constitute such violations involve the crew
of the Sea Level and occurred upon the high seas and in the port of
Havana, Cuba.
The Respondent contends that the Board does not have legal juris-
diction in the case and that, therefore, the complaint should be dis-
missed. The jurisdictional issue as presented does not question
essentially the applicability of the Act to the Respondent, an American
corporation, and its shore operations within the United States.
Rather it is the Respondent's position that the Act does not apply
to its international seaborne operations specifically involved in this
proceeding.'°
Insofar as material here, the Act with respect to its jurisdictional
scope and impact provides in Section 10(a) that the Board is em-
powered to prevent unfair labor practices "affecting commerce." In
Section 2(6) it defines "commerce" as meaning "Trade, traffic, com-
merce, or communication . . . between any foreign country and any
state ...," and in Section 2(7) "affecting commerce" is stated as
meaning "in commerce, or burdening or obstructing commerce or the
free flow of commerce, as having led or tending to lead to a labor
dispute burdening or obstructing commerce or the free flow of
commerce."
As the Sea Level is regularly engaged in sailing between Belle
Chasse in the State of Louisiana and Cuba, a foreign country, its
10 As noted above , the basic jurisdictional issue involved here is present also in Penin-
sular & Occidental Steamship Co., and Green Trading Company , Case No. 12-CA-255,
Eastern Shipping Corporation, McCormick Shipping Corporation , Case No. 12-RC-415,
and United Fruit Company, Case No. 2-RC-10379. In deciding this jurisdictional issue
in the present case, we have given full consideration not only to arguments and positions
of the parties to the present proceeding but also to those of the parties to the above
entitled cases , as well as those of all parties who appeared and participated in the oral
argument , insofar as the arguments of such parties were directed toward the broad juris-
dictional issue involved in this proceeding.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 349
operations are clearly in "commerce" as defined by the Act," and as
the alleged unfair labor practices involve the crew of that vessel they
"affect commerce" as thus defined. Further, none of the provisions
cited above, nor any other provision of the Act, directly or indirectly
exempts the maritime industry or seafarers from the Act's coverage .12
In fact, the Act has consistently, and without judicial objection, been
applied to shipping operations and shipboard personnel." Thus,
under a literal reading of the provisions of the Act and in view of the
cases cited, the Respondent and its shipping operations here involved
are within the jurisdictional coverage of the Act. The issue now
before the Board does not, therefore, involve determining on what
basis, if any, the Act's jurisdiction over Respondent and its operations
rests, but rather determining whether certain attendant circumstances
limit or bar, as contended by Respondent, the jurisdiction of the Act
is this proceeding.
1. The extraterritorial issue
It is contended that the application of the Labor Act to the sea-
borne operations here involved requires giving the Act an unwar-
ranted extraterritorial application. In support of this position re-
liance is placed on the well-established canon of construction that a
statute presumptively operates only within the territory of the na-
tion and its possessions including of course the territorial waters.''
However, if applied literally to the Labor Act, this presumption
would, first, preclude jurisdiction of that Act over American flag ves-
sels in international and foreign waters-a jurisdiction which cannot,
with perhaps some limited exceptions, be seriously questioned and
which in fact is conceded. Secondly, it would not bar application of
the Act to the Sea Level while in domestic waters, for it is beyond
question that a vessel voluntarily entering United States territorial
waters is not exempt from the Nation's jurisdiction and the applica-
tion of its laws simply because it flies a foreign flag.15 To avoid these
11 Moreover , as such sailings are regular on a weekly basis and as Respondent ' s annual
gross income from the operation of the Sea Level is in excess of $50 . 000, the effect on
commerce of the Sea Level ' s operations is not de mtnimis . See N.L.R.B. v . Richland
Laundry & Dry Cleaners , 207 F. 2d 305 (C A. 9).
12 See in particular Section 2 ( 2) defining "employer" and listing specifically certain
exclusions and Section 2(3) for "employee" and those specifically excluded In neither
section is the maritime industry given special consideration , and the only general limita-
tion with respect to employers and employees is a derivative one based on Sections
9(c) (1) and 10 ( a), that their conduct "affect" commerce
13 N L .R B. v. Pittsburgh S S. Company, 337 U.S . 656; Southern Steamship Company v.
N L.R B , 316 U S. 31; N L.R.B. v . Waterman Steamship Corporation , 309 US 206;
Peninsular & Occidental S.S. Co v. N.L R B., 98 F 2d 411 ( C.A. 5), cert denied 305
U S 653 ; Texas Co. v. N.L .R.B., 120 F. 2d 186 (CA. 9 ) ; New York and Porto Rico
Steamship Company et al., 34 NLRB 1028; Lykes Brothers Steamship Company, Inc.,
2 NLRB 102
"Steele v Bulova Watch Co. Inc., 344 U S. 280, 285 ; Foley Bros . v. Filardo , 336 U.S.
281, 285 ; Jackson v. S S. Archimedes, 275 U S. 463, 466-467.
15 Marine Cooks & Stewards , AFL etc, et al. v. Panama Steamship Company, Ltd . et al.,
360 U.S. 365 , 372; William Benz et al . v. Compania Naviera Hidalgo S A , a corporation,
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implications of the extraterritorial argument, resort is had to the
admiralty doctrine that a ship is a part of the territory of the nation
whose flag she flies. Thus if this doctrine is applicable, there is no
question of extraterritoriality involved in applying the Act to an
American flag vessel wherever she may be for such a vessel is American
territory, while on the other hand a foreign flag vessel in U.S. waters
or even one tied up at a U.S. pier is foreign territory and, thus, to
reach it, the Labor Act would have to be given an extraterritorial
application. However, reliance here on the ship-territory doctrine
is misplaced, for, as the Supreme Court has emphatically held, that
doctrine is wholly inapplicable where the issue in question is the
territorial or geographic reach of a statute.18 There is, therefore,
clearly no question of extraterritoriality directly involved with re-
spect to applying the Act to a foreign flag vessel, such as the Sea
Level, while in American waters.
However, it is contended, even assuming the Act's jurisdiction over
foreign flag vessels in U.S. waters is not directly barred, that the Act,
nevertheless, cannot be applied to a vessel such as the Sea Level be-
cause if the Board's territorial jurisdiction is to be fully vindicated
it must in effect follow the vessel onto the high seas and into foreign
waters and ports in order to reach there conduct involved in unfair
labor practice charges. Clearly, if we are to consider fully the mat-
ters alleged in the complaint in this proceeding, we shall have to look
to incidents occurring on the high seas and in Cuban territorial
waters, and it is argued that such areas are outside our jurisdiction
under the presumption against extraterritorial application of a
statute.17 But that canon of construction is clearly inapplicable to the
Labor Act, at least with respect to its jurisdiction over vessels in
American commerce while on the high seas, for as the Supreme Court
has pointed out the doctrine is a "valid approach whereby unex-
pressed Congressional intent may be ascertained." 18 However, in Sec-
tion 2(6), Congress has expressly stated that the Act shall apply to
foreign commerce such as that in which the Sea Level participates."'
353 U.S. 138, 142; Cunard S.S. Co. v. Mellon , 262 U S. 100, 124; Patterson v. Bark
Eudora, 190 U.S. 169, 179.
19 Cunard S.S. Co. v Mellon, 262 U.S. 100 , 123; Seharrenburg v Dollar Steamship
Company, at at, 245 U S. 122, 127
17 This argument is, of course, as applicable to American-flag vessels as it is to those
of foreign flag
>e Foley Bros . v. Filardo, 336 U.S. 281, 285 . There can be no question but Congress has
the power to project the impact of its laws beyond the territorial boundaries of the
Nation. See , for example , Steele v . Bulova Watch Co., Inc ., 344 U.S 280, 285; Skirwtes
v Florida, 313 U S. 69, 73 ; Blackmer v . United States, 284 U.S . 421, 436-437; U S.
Navigation Co , Inc v. Cunard Steamship Co., Ltd , at al, 284 U.S 474.
19 In view of this express jurisdiction of the Labor Act over such commerce the airline
cases on which the Respondent and other employers in part rely are not in point See
Air Line Dispatchers Assn v. National Mediation Board, et al., 189 F 2d 685 (C A D C
Air Line Stewards, etc, Assn. v Transworld Air Lines, 173 F. Supp. 369 (D.C.S F N.Y
affd 273 F 2d 69 (C.A. 2) ; Air Line Stewards Assn. etc v. Northwest Airlines, Inc.
267 F 2d 170 ( C.A. 8), cert . denied 361 U.S. 901 . In those cases , the courts held the
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 351
Furthermore, we have no doubts, in view of pertinent court decisions,
that a general grant of power over foreign commerce, such as in the
Labor Act, of necessity includes the authority to reach prohibited
acts even though occurring in foreign territory when such acts have
a direct effect on trade between the United States and foreign coun-
triesa0 In Steele v. Bulova Watch Co., Inc.," the Supreme Court
was most explicit on the point. There it found within the proscrip-
tion of the Lanham Trade Mark Act 22 certain deceptive practices con-
summated in Mexico and directed towards Mexicans. In reaching its
conclusion, the Court stated:
We do not deem material that Petitioner affixed the mark
"Bulova" in Mexico City rather than here, or that his purchase
of supplies in the United States [to be used in his Mexico busi-
ness] when viewed in isolation do not violate any of our laws.
They were essential steps in the course of business consummated
abroad; acts in themselves legal lose that character when they
become part of an unlawful scheme. "In such a case it is not
material that the source of the forbidden effects ... upon com-
merce arise in one phase or another of that programs!." 23 ... In
sum we do not think that Petitioner by so simple a device can
evade the thrust of the laws of the United States in a privileged
sanctuary beyond our borders.24 [Emphasis supplied.]
Clearly, we have here but a restatement of that Court's holding in
Consolidated Edison Co. of New York, Inc. v. N.L.R.B., et al., 21
National Mediation Board had no jurisdiction over airline employees living and working
outside American territory. But the Railway Labor Act which was involved, unlike the
NLRA, is expressly limited, in scope to American territory.
20 United States v. Timken Roller Bearing Co., 83 F. Supp. 284, 309 (D.C.N.D. Ohio) ;
affd. 341 U.S. 593. The above language, i.e., "direct effect on trade," certainly suggests
the "affecting commerce" provision of Section 2(7) of the Labor Act. However, that
term has been given such a broad, comprehensive meaning in its domestic application that
it would, as thus construed, afford no sure guide where the extraterritorial impact of the
Act is in issue. Consequently, in our consideration of the reach of the Act beyond
American territory, we have looked only to the authority conferred upon the Board under
the general grant of jurisdiction over foreign commerce as set forth in Section 2(6) of the
Act. We do not imply that Section 2(7) is inapplicable to the situation now before us.
Rather our point is that the foreign impact of the Act cannot be established simply by
applying a domestic definition of "affecting commerce" to events foreign. On the con-
trary, it is our view that the term "affecting commerce" must here be construed in con-
formity with court decisions delimiting the reach of domestic statutes with respect to
their foreign impact.
21344 U.S. 280.
2215 USCA Sees. 1051, etc.
23 Citing Mandeville Island Farms, at at . v. American Crystal Sugar Co., 334 U.S.
219, 237.
24 344 U.S. 280, at 287. See also United States v. Timken Roller Bearing Co., supra;
Thomsen et at. v. Cayser of at., 243 U.S. 66; Branch v. Federal Trade Commission. 141
F. 2d 31 (C.A. 7) ; Compagnie Generale Transatlantique v. American Tobacco Co., 31 F. 2d
663 (C.A. 2). In all these cases the courts, in dealing with statutes regulating, inter alia,
foreign commerce found within the reach of the statutes' prohibitions acts performed
outside the territorial jurisdiction of the United States. Compare United States v.
Bowman, 260 U.S. 94, and United States v. Nord Deutscher Lloyd, 223 U.S. 512.
46 305 U.S. 197, 222.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where, in construing the commerce coverage of the Labor Act, it
stated ". . . it is the effect upon interstate or foreign commerce, not
the source of the injury, which is the criterion ...."
In view of the foregoing considerations, we find no occasion here
for applying, as it is contended we should, a presumption against
extraterritorial construction of a statute and thereby limit the reach
of the Act, contrary to the unambiguous meaning of its jurisdictional
provisions, to events occurring in domestic territorial waters. We
need not determine, however, what may be the ultimate impact of the
statute beyond American territory. It is enough that we now find
that the Act's reach extends to events occurring not only on the high
seas but to acts committed within the territorial jurisdiction of a
foreign nation when such acts involve an employer and its seamen
both engaged in that seaborne trade specifically within the coverage
of the commerce provision of the Labor Act.
We' do not believe that the Supreme Court's holding in Foley Bros.
v. Filardo, cited above, requires, as is contended, a different conclu-
sion. The 8-hour law 28 involved in that case provided, in effect,
that its benefits applied to all employees working under "every con-
tract" between the United States and private contractors. Neverthe-
less, the Supreme Court held the law not applicable, under the pre-
sumption against extraterritorial application, to an American citizen
working under such a contract in Iraq and Iran. The Court stated,
in effect, it could not be presumed that the broad, literally universal
jurisdictional language extended the law's regulation to the working
conditions of foreign nations, which were the primary concern of
foreign governments, not the Congress of the United States .27 But
we are not dealing here with broad, unlimited jurisdictional provi-
sions, but rather with ones which specifically apply to the commerce
involved in this proceeding. To be sure, the commerce reached by
Section 2(6) and (7) may be extensive, but it is nevertheless limited
by those provisions.28 Moreover, we are not being asked to apply the
Labor Act so as to regulate that conduct, if any of the Respondent
which in its operation and effect is "confined within the limits of a
foreign nation" and, thus, is the primary concern of a foreign gov-
ernment. The seaborne operations here involved occur within, as well
as without, the territorial jurisdiction of the United States. Clearly a
strike of the Sea Level's crew would have immediate effects within the
territory of the United States, whether or not that strike occurred in
29 40 USCA 325a
27 336 U.S at 286. The Court did not hold, however, that the eight hour law had no
extraterritorial reach, but expressly reserved decision on the point as it was unnecessary
to its decision. 336 U.S. at 287, footnote 2.
Is N L N B. v. Jones d Laughlin Steel Corporation, 301 U.S. 1, 31, where the Court
notes that Section 2(6) specifically defines "commerce " and that the definition of "affect-
ing commerce" In Section 2(7) is "one of exclusion as well as inclusion."
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 353
Cuba or Belle Chasse. It is the foreign commerce of the United States
that is involved in this proceeding, and that surely is a domestic
interest of the United States as the provisions of the Labor Act,
themselves clearly exemplify. The protection or regulation of such
commerce involves, as one court has stated, "no attempt to act beyond
the territorial jurisdiction of the United States"," though it may
require, as in this case, giving a statute an extraterritorial impact if
the statutory policy is to be made effective.
In sum, we find no merit in the argument that we are without juris-
diction because of extraterritorial considerations." We, therefore,
turn to the contentions that other considerations divest the Board
of jurisdiction.
2. The foreign aspects of the case
As noted, the Sea Level is of Liberian registry; its crew, composed
of nonresident foreign nationals. These facts, it is argued, preclude,
directly or indirectly, application of the Act in this proceeding. How-
ever, none of the provisions of the Act consider the nationality of a
vessel or the residence or citizenship of its crew as material factors
in determining jurisdiction. The question, then is one of determining
whether or not these foreign aspects do in fact divest the Board of
the jurisdiction it would otherwise have over the seaborne commerce
involved.
A. Foreign registry : effect on jurisdiction
Generally stated the issue is whether the Act under its broad juris-
dictional standards covering, in effect, all employers engaged in com-
merce is applicable where a vessel of foreign registry is involved; or
whether, as contended by Respondent, the law of the nation of a ship's
registry, that is flag law, alone applies. The United States with other
maritime nations of the world, has as a principle of comity accepted
the general maritime law, including the flag law doctrine, in order to
avoid conflicts of law in international seaborne commerce. Neverthe-
less, there can be no doubt that Congress has the power to regulate
foreign flag vessels engaged, as the Sea Level, in the foreign commerce
of this nation.31 In Congress chooses to exercise this power and bring
foreign flag vessels within the scope of a domestic statute, the general
maritime law, including flag law, must give way to the extent it is in
conflict with such statute.32 Consequently, the issue before us is that
zB See Branch v. Federal Trade Commission, 141 F 2d 31, 35 (C.A 7).
81 Insofar as it is inconsistent with our decision here, Detroit & Canada Tunnel Corpo-
ration, 83 NLRB 727, is hereby overruled.
81 See, for example, Lauritzen v Larsen, 345 U S. 571, 578, and William Benz, et al. v.
Compania Naviera Hidalgo , S.A., a corporation, 353 U.S. 138.
as See The Lottowana, 88 U S 558, 572-573; The '(Scotland," 105 U.S. 25, 29; Farrell v.
United States, 336 U S. 511, 517; Evangelinos v. Andreavapor CIA Nav S.A, et at.,
162 F. Supp . 520, 522 (D.C.S D.N.Y.).
597254-61-vol. 130-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of determining whether the Act does apply despite the foreign regis,
try of the Sea Level. And the problem of construction arises from
the fact that the Labor Act in its jurisdictional provisions neither
specifically includes nor excludes foreign flag operations.
In Lauritzen v. Larsen,33 involving the Jones Act,34 the Supreme
Court set forth guidelines to aid the courts in determining the appli-
cation of domestic statutes with general jurisdictional provisions to
shipping operations having foreign aspects; in Romero v. Interna-
tional Term. Co.," the Court stated that the Lauritzen guidelines ap-
plied to maritime status generally; and in William Benz et al. v. Com-
pania Naviera Hidalgo, S.A., a corporation," the Court treated mari-
time principles and cases as being applicable to consideration of the
Labor Act in the maritime field. We, thus, conclude that the Laurit-
zen guidelines are applicable to the problem now before us.
The Court tells us in Lauritzen that in determining whether or not
a domestic statute applies in a situation such as we have here the an-
swer is found by "ascertaining and valuing points of contact between
the transactions and the governments whose competing laws are in-
volved" and by "weighing ... the significance of one or more con-
necting factors between the shipping transaction regulated and the
national interests served by the assertion of authority," 37 such as the
allegiance of the shipowner, the registry of the vessel, and the allegi-
ance or domicile of the seamen 38 In Lauritzen the Court was dealing
with the Jones Act involving tort claims and designed to protect sea-
men. Consequently, the contacts, as considered, reflect in part the
problems arising under that Act. In Romero, however, the Court
stated that in applying the broad principles for choice of law and
applicable criteria announced in Lauritzen "due regard must be had
for the differing interests advanced by the varied aspects of maritime
law... ." 39 In this proceeding we are, of course, dealing with a
statute, not only designed primarily to protect American commerce '41
but one which depends for its jurisdiction upon the presence of such
commerce. Thus, in accord with the admonition of Romero we believe
that where the Labor Act is involved "foreign commerce of the United
States" is both an important and necessary contact within the intent
of Lauritzen.
33 345 U.S. 571.
SS 40 USC, Sec. 088.
88 358 U.S. 354, 382.
8° 353 U.S. 138.
81'345 U.S. 571 , at 582.
S9 The Court in Lauritzen listed seven contacts which had been considered in earlier
cases as significant contacts in determining the applicability of statutory law to foreign
maritime operations Four of these it rejected as not being of decisive importance in mak-
ing such a determination, thus leaving the three mentioned above.
ae 358 U S. 354, at 382.
40 See, for example , N.L R.B. v. Fant Milling Company , 300 U S. 301, 308
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 355
Clearly, as lower court cases construing Lauritzen show, it is not
necessary that the significant. contacts noted above be all American to
warrant the application of domestic laws4i In fact, in certain Jones
Act cases, the courts have found that act applicable where but one of
the important Lauritzen contacts-American ownership-has been
present.4a Thus, the task before us, as we read the cases, is to deter-
mine whether or not the facts in the present situation which constitute
contacts between the operation of the Sea Level and the United States
are substantial-that is more than minimal but not necessarily pre-
ponderant.43 The question is shortly answered, for here we have sub-
stantial continuing American foreign commerce and the American
employer. These factors, we find, warrant application of the Labor
Act in this proceeding.44
It is, nevertheless, maintained that flag law governs all and that
American ownership and commerce are not, as we have concluded,
decisive factors. In support of this position reliance is placed on the
Court's statement in Lauritzen on the role of the flag law. There the
Supreme Court wrote :
Perhaps the most venerable and universal rule of maritime law
relevant to our problem is that which gives cardinal importance
to the law of the flag. . . . It is significant to us here that the
weight given to the ensign overbears most other connecting events
in determining applicable law.
It is this principle, it is argued, that underlies the "reasoning" of
Lauritzen. But if flag law were the sole connecting factor of con-
sequence, then the Court's whole exposition of the problem of im-
portant contacts in Lauritzen would seem to have been unnecessary.
Further, in William Benz et al., v. Compania Naviera Hidalgo, S. A.,
a corporation, supra, where the Court had before it the question of
the applicability of the Labor Act to a, situation involving a foreign
flag vessel, the registry of the vessel was given no more consideration
by the Court in reaching its result than a number of other attendant
;' See Bartholomew v Universe Tankshtips , Inc.. 263 F. 2d 437, 440 (CA. 2), cert.
denied 359 U S. 1000; Zielinski v. Emprese Hondurena de Vapores, 113 F. Supp. 93
(D.C.S D N.Y.).
*' Bobolakis v. Companies Panamena Maritima San Gerassimo , S.A., at at., 168 F.
Supp. 236 (D.C S.D N.Y) ; Rodriguez v. Solar Shipping , Ltd.. et at., 169 F. Supp. 79
(D.C.S D.N Y) But see, Argyros v. Polar Companla de Navegacion Ltda, 146 F. Supp.
624 (D C S D N Y.), and Mproumeriotis V. Seacrest Shipping Co., Inc., et al, 149 F. Supp.
265 (D C S D N Y.), which, it is contended , cast doubt on the validity of the holdings in
Boholakis and Rodriguez . However, in Bartholomew cited supra, the court of appeals
stated that Argyros and bfproumeriotis "must be considered of doubtful validity," 263
F 2d 437, at 443, footnote 4
's See Bartholomew , 263 F. 2d 437, at 440.
" See Afron Transport Co at at. v National Maritime Union, at al , 169 F. Supp 416,
425 (D C S D N Y.), where the court stated that Bobolakis and Lauritzen give some color
to the claims that ownership is enough to make statutes such as "Taft-Hartley" appli-
cable to foreign vessels. Also, same case, 175 F Supp. 285
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, such as the commerce involved, the ownership of the
vessel, and the status of the crew. Moreover, in lower court cases the
argument of the supremacy of flag law over all other connecting fac-
tors has been inevitably rejected.41
It is also urged that the internal economy of a ship is subject ex-
clusively to the law of the nation of a ship's registry. However, the
internal order doctrine is but a part of the broader flag law rule and
became a part of the general maritime law because normally a coastal
state has no interest in the internal affairs of a foreign vessel. But
the internal order doctrine raises no new issues here for it clearly was
considered by the Supreme Court in its Lauritzen discussion of flag
law generally.46 Consequently, what has been concluded above with
respect to the broader flag law rule is applicable here to the internal
order doctrine.
Moreover, even if it is assumed that the principles of Lauritzen
were not applicable, we do not believe that the internal order doctrine
would necessarily be controlling. To be sure, that doctrine broadly
stated has wide application in that it provides that ". . . the law of
the flag controls the internal economy of a ship" and "not the law of
the place where she may, from time to time, happen to be." However,
the doctrine carries the important limitation that it is applicable if
the events involved affect only the internal economy or discipline of
a vessel.47 But this restriction would alone appear to make the inter-
nal order doctrine inapplicable in a Labor Act proceeding in view of
the congressional finding in Section 1 of that Act that the disputes
to which it applies "have the intent or necessary effect of burdening
or obstructing commerce." Consequently, any finding here that the
labor disputes to which the Act applies affect only the internal order
of a vessel would be in direct contradiction of the statutory policy by
which we are bound.
45 Bartholomew, supra, at 443 ; Bobolakis , supra, at 273 ; Zielinski, supra, at 95 . See also
Incre8 Steamship Co. v. Intl. Maritime takers ( NY S C App. Div . 1st Dept. ), 40 CCH
Lab. Cas para. 667000, and Navios Corp . v. Maritime Union ( Pa. Sup. Ct. ED ), 47
LRRM 2315 . In support of their flag law argument the companies cite Arthur J. McQuade
v. Compansa de Vapores San Antonio , S A. (D C. S D N Y ), 131 F Sapp . 365, Evanaelinos
v. Andreavapor CIA, Nat). S.A (D C S.D.N.Y.), 162 F. Supp 520, Crivas v. Allsanza
Compania Armadora ( D C S D.N . Y ), 150 F. Supp . 708 However , these cases involved
no question of the applicability of U.S law, but rather a choice of foreign law only.
46 The Court in discussing flag law made this point clear by quoting from United States
v Flores, 289 U S 137 , 157-158 , the internal order doctrine The Respondents ' attempt
to distinguish Jones Act cases on the ground a Jones Act claim does not involve the in-
ternal order of a ship would thus seem to be without merit See also Taylor v. Atlantic
Maritime Co at at , 179 F 2d 597 , 598-599 ( CA. 2), stating specifically a Jones Act
claim involves internal order of a vessel.
41 Kyriakos v Goulandris , at al , 151 F . 2d 132, 138 ( C A 2) , witdenhus 's Case, 120
U.S. 1, 18 ; United States v Flores , 289 U.S 137 , 157-158 ; Cunard Steamship Company v.
Mellon, 262 U S 100 , 123; Lauritzen v. Larsen, supra, at 585; Patterson v. Bark Eudora,
190 U S 169 , 177-178 As for United States v. Flores , supra, it is not, as contended by
Respondents , authority for a contrary conclusion In that case an American seaman was
tried in an American court for murder committed on a U S owned and operated vessel
while it was 250 miles up the Congo River The Supreme Court held the U S . court had
jurisdiction on the basis of flag law, but it also pointed out that local authorities possessed
a concurrent jurisdiction which, however, they did not attempt to exercise.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 357
In fact, we have considerable doubts that application of the labor
Act to seaborne commerce involves any interference in the internal
order and discipline of a vessel-at least of the kind that the internal
order doctrine is intended, under appropriate circumstances, to pre-
clude. First, it should be noted that that doctrine was developed
and acquired its meaning more than a hundred years ago '9-that is,
at a time when the rights and obligations created by the Act were
unknown at law 49 Second, the courts have flatly told the Board
that the rights guaranteed by the Act cannot be applied in such a
fashion as to curtail the traditional authority which of necessity a
master must exercise over his crew, or to relieve the crew individually
or collectively of its traditional obligations and responsibilities to
the ship, its officers and owners, including their obligation to respect
such terms or conditions of employment as are specified in their exist-
ing shipping articles.50 Clearly, there is nothing in the Act that pre-
scribes what working conditions must exist upon a vessel or directs
a shipowner or a master as to the manner in which disciplinary prob-
lems shall be handled. To be sure, the Act's bargaining obligation
may indirectly result in such matters being dealt with in a labor agree-
ment, but the terms of such an agreement at least to the extent they
deal with internal order and discipline are the private agreement of
the parties to the contract; they are not prescribed by any provision
of the Act 51
Thus, it is our conclusion that the internal order doctrine no more
than the general flag law rule of which it is a part alone precludes
the Act's jurisdiction in the present proceeding.
It is further contended in support of the arguments based upon the
foreign registry of the Sea Level that the Act's jurisdiction is barred
by article X of the United States-Liberian Consular Convention 52
41 See Wildenhus's Case, supra, at 12.
41 See Pennsylvania Railroad System v. Pennsylvania Railroad Company, 267 U.S.
203; Agwilines Inc. v. N.L.R.B., et at., 87 F. 2d 146 (C.A. 5).
so Southern Steamship Company v. N.L.R.B., 316 U.S. 31; Texas Co. v. N.L.R.B., 120
F. 2d 186 (C.A. 9) ; Peninsular & Occidental S.S. Co. v. N.L.R.B., 98 F. 2d 411 (C.A. 5) ;
also, Rees et at. v. United States, 95 F. 2d 784 (C.A. 4).
51 In fact, there is no obligation under the Act for the parties to enter into any agree-
ment at all. See Section S(d).
We are aware that the Supreme Court in Marine Cooks, etc. v. Panama Steamship
Company, Ltd., 362 U.S. 365, in discussing William Benz et at. v. Compania Naviera
Hidalgo S.A., a corporation, 353 U.S. 138, seems to assume that the Labor Act as applied
to shipping governs the "internal economy" of vessels. But as far as we can determine
that issue has never been litigated. Rather, it appears that the coupling of that term
with the Labor Act is the result of the decision in Compania Maritimes Sansoc Limatada,
Case No. 20-RC-809, not published in Board volumes. In that decision the Board merely
sustained the action of its Regional Director in dismissing a petition. It did not con-
sider issues presented to it on the basis of testimony taken at a hearing and fully
argued. At any rate, questions of interpretation of the Act in the "foreign maritime"
field are at this time primarily the responsibility of this Board for such questions have
never been presented for full consideration heretofore in any Board case or court proceed-
ing to which the Board was a party. See N.L.R.B. v. Insurance Agent's International
Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 493, footnote 23.
54 Stat. 1751, 1756-1757.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and article XV of the Treaty of Friendship, Commerce and Navi-
gation,53 both of 1938. Neither of these agreements-or similar
ones-have , when raised, ever alone been held to bar application of
the Labor Act 5A or Jones Act.55
Insofar as it is involved here the Consular Convention provides:
A consular officer shall have exclusive jurisdiction over contro-
versies arising out of the internal order of private vessels of his
country, and shall alone exercise jurisdiction in cases, wherever
arising, between officers and crews, pertaining to the enforce-
ment of discipline on board, provided the vessel and the persons
charged with wrongdoing shall have entered a port within his
consular district. Such an officer shall also have jurisdiction
over issues concerning the adjustment of wages and the execution
of contract relating thereto provided, however, that such juris-
diction shall not exclude the jurisdiction conferred on local au-
thorities under existing or future laws.
It is argued that a labor dispute as defined in Section 2(9) of the
Act is a controversy arising out of the internal order of a vessel and,
thus, within the exclusive jurisdiction of the Liberian Counsel. But
insofar as such disputes apply to wages and wage contracts the con-
vention on its face provides for jurisdiction by American authorities
under applicable domestic laws. Further, we believe that cases deal-
ing with such conventions clearly establish that they were not intended
to, and do not apply to, the present type of situation. Thus, as the
Supreme Court stated in effect in ZVildenhus's Case,56 the conventions
of the kind here involved were designed to embody in a definite form
the general flag law with respect to control over the internal order of
a vessel and, consequently, are, we conclude, applicable, as is flag law,
only to those matters of internal order that do not affect the coastal
nation .17 As we conclude that the conventions were designed to cover
only minor disputes and disciplinary matters occurring on ship-
board," not those situations where an important statutory policy of
littoral state is involved,59 and as the labor disputes covered by the
Act as indicated above, create "substantial obstructions" to the free
- 54 tat 1739, 1745
s* Afran Transport Co, et al. v National Maritime Union, 169 F Supp 416, 420
(DIC.S D.N.Y.).
56 The Paula, 91 F 2d 1001, 1003 (C.A 2) , Cerradin v. United Fruit, 60 F 2d 927,
929-930 (CA. 2)
Qe 120 U.S. 1, 12.
67 Such was the effect given such a convention in Wildenhus's Case; see also, Petition
of Georgakapoulos, 85 F. Supp. 37, 43 (D C.E D. Pa ), where the court held a convention
similar to the Liberian one here, not applicable "when the disorders on a vessel are of
such a nature as to cause a breach of the peace or serious trouble in port or on shore "
58 As stated above the Labor Act cannot be applied in such a manner as to restrict or
otherwise alter the traditional rights and obligations of a ship's crew and officers with
respect to such matters
59 See Heros, et al . v. Cockinos, 177 F 2d 570. 572 (CA 4),
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 359
flow of the commerce of the United States, we find that the Consular
Convention does not bar the jurisdiction of the Act in this proceeding.
As for article XV of the Treaty, it provides :
Merchant vessels and other privately owned vessels under the
flag of either of the High Contracting Parties, and carrying the
papers required by its national laws in proof of nationality shall,
both within the territorial waters of the other High Contracting
Party and on the high Seas, be deemed to be the vessels of the
Party whose flag is shown.
We read this article as stating no more than that the Liberian flag
flown by the Sea Level and the required papers are absolute proof of
her Liberian nationality. However, we fail to see in what manner
applying the Labor Act to seaborne operations in which the Sea
Level is concerned would place in issue the nationality of that vessel.
Certainly, it would no more be a denial of the ship's nationality than
the requirement that she submit to various inspections by American
authorities on entering and clearing our harbors. The registration of
the vessel is not being attacked; no attempt is being made to construe
it. The issue is whether the Liberian nationality of the vessel, which
we accept without question," divests the Board of that jurisdiction it
would have but for that foreign nationality. In finding that it does
not, we are divesting or attempting to divest Liberia as the flag state
of its paramount rights, for example, to control the movement of, to
requisition, or to tax the vessel. But there is nothing inconsistent be-
tween our recognizing the foreign nationality of a foreign flag vessel,
and the application of the Act in those situations where the foreign
state in effect permits its vessel to be operated as an integral part of
an essentially domestic enterprise engaged in a continuing and im-
mediate manner in both the foreign and domestic commerce of this
Nation.61 We conclude that article XV has no bearing on the matters
now before us.61
eo In Peninsular & Occidental Steamship Go. et at., 120 NLRB 1097 , 1101, the Board in
considering the operations of two Liberian -flag vessels in American foreign commerce
stated that the ships "may not properly be considered for jurisdiction purposes as foreign
vessels ," If the statement appears to question the nationality of the vessels , It was not
intended to do so, and any such implication of the language we hereby expressly reject.
The statement was intended to convey only the conclusion that the ships were part of an
American , not foreign , enterprise.
a The Department of State through the brief of the United States, cautions that treaties,
international law, and comity will not permit this agency to "develop by virtue of any
particular considerations applicable to the flags of Honduras , Liberia and Panama"-the
nations whose ships are involved in the cases now before the Board-special principles
which single out the ships of those nations for regulation under the Act, However, we
believe it is clear from the foregoing consideration of the many issues raised in this pro-
ceeding that we have not sought to treat in a disparate manner the vessels of any particu-
lar nation or nations . Rather, we have, as the Attorney General contends we must do,
applied principles which are wholly independent of the particular flag the ship here flies.
67 Also brought to our attention is paragraph 1 of article V of the Convention on the
High Seas, negotiated in 1958 at the United Nations Conference on the Law of the Sea.
The United States signed the convention and- the Senate has given Its advice and consent
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, it might be noted that article XIV of the Treaty 63 could
well be construed as requiring the Act be applied to Liberian vessels.
It provides that such vessels "be accorded the same treatment" as
American vessels, which are, of course, subject to the Act, at least
while engaged in American domestic and foreign commerce as is the
Sea Level. However, we need not consider the applicability, if any,
of that article to the issues in this proceeding in view of our ultimate
jurisdictional finding below.84
b. Nonresident, foreign-national status of the crew : effect on
jurisdiction
We do not agree with the Respondent that the fact the crew of the
Bea Level is composed of nonresident, foreign nationals affects our
jurisdiction in this case. Section 2(3) of the Act does not, as indi-
cated above, contain any exclusionary language couched in terms of
nationality or residence and the Board has found the Act to apply
where nonresident alien employees have been involved.65 To be sure
the employees in those cases worked on American soil for periods
ranging from a few months to several years but such fact does not
afford a sound basis for distinguishing those cases from the present
one for the seamen here are working within the territorial jurisdiction
of the United States while the Sea Level is in American waters, which
is a substantial portion of her time. And at all times they are work-
ing within the foreign commerce of this Nation.
The Board once stated :
The Act does not differentiate between citizens and non-citizens.
In order to effectively carry out the purposes of the Act we con-
clude that no distinction should be drawn on such a basis.66
The reasoning there is equally applicable to a "resident" or "non-
resident" criterion and is also consistent with Supreme Court state-
for ratification . The convention has not come into force . However, even assuming it
were in effect , it would not require a different result here , for like article XV of the
Treaty of Friendship quote above , it merely provides insofar as is here material that the
nationality of a vessel is established by its registration and flag. Consequently , the dis-
cussion above with respect to article XV of the Treaty is applicable to paragraph 1 of
article V of the convention.
ea 54 Stat . at 1745.
14 If there were a direct conflict between the Labor Act and the consular convention
and treaty it would seem that under the circumstances here the Labor Act would take
precedence under the well-settled doctrine that a statute later in time (here enacted 1947)
supersedes a prior treaty ( here 1938 ) dealing with the same subject matter See, for
example, Moser V. US., 341 U.S. 41, 45; Heros et al. v. Cockinos, 177 F. 2d 570, 572
(C.A. 4), involving a consular convention . Especially would this seem to be the case
under the language of Section 10(a) of the Act which provides that the Board 's power
over unfair labor practices "shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement , law or otherwise "
es Italia Societa per Arfonl dd Navigazione , 118 NLRB 1113 , 1117; Brown Company,
109 NLRB 173, 175.
OGDan Logan, et al ., 55 NLRB 310 , 315, footnote 12.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 361
ments that in interpreting an act, the question is not whether a particu-
lar class, seemingly within the language, was intended to be included,
but rather whether it was intentionally excluded.67 As stressed in
Fant Milling Company,88 this Board was created to advance the public
interest in eliminating obstructions to commerce, not to adjudicate
private controversies. Under such a statutory policy, it would be
anomalous at best to base jurisdiction upon the citizenship and resi-
dence of the parties involved, rather than up their relationship to the
protected commerce of this nation. Surely, a labor dispute involving
the Sea Level would affect American commerce neither more nor less
because the crew is foreign rather than American. The Supreme
Court stated in effect in Lauritzen that the allegiance of the seamen is
but one of several consequential contacts; we can perceive no reason
why it should be considered a decisive one here.69 We find it is not?°
We have, thus, concluded that neither the foreign registry of the
Sea Level nor the nonresident, alien status of her crew divests the
Board of jurisdiction. But we are told that William Benz et al. v.
Compania Naviera Hidalgo, S.A., a corporation," requires a different
result.
In that case the Supreme Court held in effect that the Labor Act
does not apply to a labor dispute arising on a foreign vessel, between
a foreign employer and a foreign crew operating under an agreement
made abroad under the laws of another nation, where the only Ameri-
can connections are that the controversy erupted while the ship was
transiently in a United States port and American labor unions
picketed on behalf of the foreign seamen.
The present controversy is, however, between an American em-
ployer and an American union acting on its own and its members' be-
half. The dispute arose aboard a vessel which is engaged exclusively
in American foreign commerce, which operates regularly out of an
American port, and which is drydocked and regularly provisioned in
the United States. The foreign contacts are the registry of the vessel
and the nationality of the crew which works under foreign articles
signed, however, in the United States. Benz can surely be distin-
guished on its facts,'2 and its result is clearly in accord with the prin-
e7 See Uravie, Admintstratrix v. Jarka, 282 U.S. 234, 239 . Also, The Levy Court of
Washington County v. Tench Ringold, Esq ., 30 U.S. 290, 292 ; Barr v. United States, 324
U.S. 83, 90.
61 N.L R.B. v. Pant Milling Company, 360 U.S. 301, 308.
11 In fact there was far more reason to consider the allegiance of the crew an important
consideration under the Jones Act which , as noted, was involved in Lauritzen, than
there is to accord it such weight here, for the Tones Act was designed primarily to pro-
tect American seamen. See Gambera v . Bergoty, 132 F. 2d 414, 416 ( C.A. 2), cert. denied
319 U S. 742.
"To the extent that Pennsylvania Greyhound Lines, et al , 13 NLRB 28 , and Detroit &
Canada Tunnel Corporation, 83 NLRB 727 , are inconsistent with our result here they
are overruled.
71353 U.S. 138.
12 See Peninsular & Occidental Steamship Co., 120 NLRB 1097, 1101 , footnote 7.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciples of Lauritzen, as we have understood them in relation to the
Labor Act. Nevertheless, the Courts' opinion contains certain broad
language which, it is argued, precludes applying the Act here. But
the factual differences, shown above, between that case and the present
one, require something more than according such language sweeping
implications, as Respondent would have us do, without first under-
standing the part that language played in the Court's opinion.
"[W]ords of our opinions," the Court cautions, "are to be read in the
light of facts in the case under discussion . . . . [G]eneral expres-
sions transposed to other facts are often misleading." 71
In our reading of its opinion, the Court in Benz considered pri-
marily but two issues. First, it almost summarily dismissed com-
merce as a possible basis for jurisdiction because, as it emphasized, the
ship was "transiently" or "temporarily" in American waters when the
dispute arose.74 Second, it considered whether in the absence of such
commerce jurisdiction could be based on the broad statutory defi-
nitions of "employer" and "employee" which, if literally applied,
brought the parties to the disputes within the coverage of the Labor
Act. It concluded, that as the Act was not intended to apply to "na-
tionals of other countries operating ships under foreign law," as the
Act was concerned with "industrial strife between American em-
ployers and employees," no such sweeping application to foreign
nationals could be implied. But though Benz holds at least that the
Labor Act does not extend to a foreign flag vessel, its foreign owner
and foreign crew absent substantial American commerce, we find no
support for the conclusion urged on us in this proceeding that Benz
also holds that the presence of those foreign factors alone bars the
Act even when the undertaking is, as here, essentially an American
enterprise operating almost exclusively, if not wholly, in American
commerce, as that term is defined in Section 2 (6) of the Act. As we
pointed out above, the Supreme Court in considering the jurisdictional
73 Armour 4 Co v. Wantack, et at., 323 U.S . 126,133; also , Hughes et at. v Superior
Court of California for Contra Costa County, 339 U.S. 460, 465.
74 Whether or not the Court was concerned with the de minimis nature of the American
commerce of the vessel , or the "happenstance" nature of the relationship of the labor
dispute to that commerce is not clear . It might be noted that in Lauritzen, where Jones
Act jurisdiction was sought on the basis the seamen had signed articles in the United
States the Court in denying jurisdiction noted the place of contracting was "fortuitous"
( 345 U.S at 588 ). Similarly , in Romero where jurisdiction was sought on the place of
injury-American territorial waters-the Court noted , the "fortuitous circumstances of
the place of injury" ( 358 U.S. at 384 ). In Benz, of course, the dispute "happened" to
arise while the ship was "temporarily" in American waters. In all three cases the Court
seems to be holding that something more than a chance or fortuitous connection to sub-
stantial American interests is required before it will find a congressional intent to regu-
late the event . In this proceeding the relationship of the Sea Level to American commerce
and American interests is clearly something far more than fortuitous . And equally clear
is the substantial connections of the labor dispute to American commerce , the American
employer and union, and even American seamen. Though the ship and seamen immedi-
ately involved are foreign the dispute is domestic. Cf. Marine Cooks , etc. v. Panama
Steamship Company, Ltd ., 362 U.S. 385 , 371, footnote 12
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 363
coverage of the Act has stated "... it is the effect upon . . . foreign
commerce, not the source of the injury, which is the criterion ...." 'b
It has also noted that Board was not created to adjudicate private
controversies71 Were we, as the Respondent urges, to look only to the
nationality of the crew here or only to the nationality of the Sea Level
we would certainly be doing violence to this language of the Court.
We do not believe the Court intended any such result in Benz77
We are mindful that the application of domestic statutes to mari-
time operations with foreign incidents creates at least an incipient
conflict with the rights of foreign nations and also a danger of placing
certain unwarranted burdens upon seaborne commerce. Considerable
emphasis is placed upon comments to this effect by the Supreme
Court.78 But it was this very problem which the Supreme Court
considered and sought to resolve in Lauritzen in establishing guide-
lines for determining the applicability of domestic statutes to partially
foreign maritime operations. As the principles announced in that
case support the Act's jurisdiction in this proceeding, we do not be-
lieve the application of the Act will create those conflicts or burdens
the Court has held must be avoided.
Moreover, the type of conflicts or burdens involved in Lauritzen
and Romero are not present in this proceeding. Reference was made
in those cases by various foreign nations to the adverse economic
effects to the countries concerned and to their shipowners of applying
the Jones Act to their vessels and to the unequal treatment of seamen
if some "fortuitous" event were sufficient to support jurisdiction of
that Act79 But those cases involved, as did Benz, wholly foreign
75 Consolidated Edison Co. of New York, Inc. v N.L.R .B., 305 U.S. 197, 222.
7B N L.R.B. v. Fant Milling Company, 360 U.S 301, 308.
77 Also emphasized is the Court ' s conclusionary language in Benz that the legislative
history of the Labor Act sets its boundaries "as including only the working men of our
country and its possessions" (353 U.S at 144 ). This language like that quoted above
must, we feel , be read in the full context of the Court's opinion . Moreover , even stand-
ing alone it requires some interpretation of who are the working men of our country and
possessions . No citizenship or residence requirement is necessarily involved. In Foley
Bros v Filardo , 336 US 281 , 286, the Court wrote :
The absence of any distinction between citizen and alien labor indicates to us that
the statute [the Eight Hour Law] was intended to apply only to those places where
the labor conditions of both citizens and aliens are a probable concern of Congress.
Congress has, of course , specifically stated in the Labor Act its concern with labor condi-
tions in American commerce , and we believe a fair interpretation of the Court's Benz
language is that the workingmen covered are at least those employed by a domestic em-
ployer in the foreign commerce of the Nation.
19 Lauritzen v. Larsen, 345 U S. 571 , 581 ; Romero v. International Terminal Operating
Co., et at., 358 U.S 354, 384 ; William Benz et at. v. Compania Naviera Hidalgo, S.A.,
a Corporation, 353 U.S. 138, 147.
7e Lauritzen : Brief of the United Kingdom of Great Britain and Northern Ireland in
support of petition for writ of certiorari , pp. 2-4; Brief of the Royal Danish Government,
pp. 8-9. Romero: Brief of the Government of Denmark , pp. 2-4 ; Brief of the Govern-
ment of the United Kingdom of Great Britain and Northern Ireland, pp . 4-5. In those
briefs the various governments in seeking the application of flag law were urging it to
protect their shipowners , not merely their vessels. In fact the briefs talk mostly in terms
of the rights of shipowners and of the effect of certain decisions on the nationals of the
governments involved
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maritime operations and events which the normal course of maritime
commerce happened to bring within the possible reach of American
jurisdiction. Here, however, the situation is vastly different for we
are dealing with essentially American commerce and the American
shipowner. In fact in this case the commerce of the flag nation is not
involved at all, for as noted the Sea Level has never been in Liberian
waters; neither are nationals of the flag nation concerned for the
employer is American; the crew, Cuban.80
In Benz to be sure, the Court was concerned with submitting a ship
at each harbor to a new bargaining relationship if a mere "temporary"
contact with American waters were enough to support jurisdiction in
labor matters. But where as here the vessel regularly and frequently
sails from our harbors application of the Act would, if anything, tend
to stabilize the bargaining relationship as it has in its other domestic
applications 81
In sum then, we find that the Act is applicable to the Employer and
its seaborne commerce involving the SS Sea Level.
3. Alleged conflicting domestic policies
It is contended that even if we find that the Labor Act is applicable
here, we should not assert jurisdiction because to do so will affect
adversely the defense policies of the United States. The argument
in support of this contention runs generally as follows : United States
flag vessels, because of high operating costs resulting inter alia from
domestic taxes, statutory maritime standards, and union-sponsored
working conditions, cannot compete successfully in international mari-
time trade. Consequently, American flag vessels have, on the one
hand, been placed in mothball fleets while, on the other, relatively
few new ships have been placed in American flag service, with the
overall result that the active American flag merchant fleet has become
wholly inadequate to meet the basic defense requirements of the Nation
in event of an emergency. A solution, or at least partial solution, to
the problem was found, it is contended, in the Panllbhon 82 registry
of vessels owned or under the control of American citizens and corpo-
80 Thus, any financial burden that might result from applying the Labor Act would fall
on an American company, not Liberian , and any interference with commerce would affect
American and not Liberian trade.
81 The Court also stated in Benz that application of the Act would result under the
circumstances there in changing the contractual relationship between crew and captain.
Such was the purpose of the strike and sympathetic picketing in that case . However, the
courts have, as we pointed out above, held that the collective -bargaining process cannot
under protection of the Act be used to compel alteration of shipping articles in effect.
See cases cited in footnote 50, above.
82 Panisbhon is the term usually employed in referring to "flag of convenience" ships
of Panamanian , Liberian , and Honduran registry. We use the term "flag of convenience"
herein solely because It seems to be the most commonly accepted term to describe so-called
"flag of necessity " or "run-away flag" vessels such as the Sea Level There is to be im-
plied no tone of censure in our employment of the term . Its use is dictated solely by
convenience.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 365
rations. Such registration has been eagerly offered and to the ship
operators it affords certain direct economic and other benefits which
make it possible for them to compete successfully in international
seaborne trade. While this economic advantage of Panlibhon regis-
tration provides the incentive for ship operators to seek such registra-
tion, national defense requirements are met because under Panlibhon
registration, unlike the situation that would prevail under other flags,
the American owners, direct or indirect, are free to enter into agree-
ments with the maritime administration to turn the vessels over to the
United States in event of emergency. The underlying American
ownership coupled with the agreements gives this Nation, it is argued,
"effective control" of these Panlibhon vessels for defense purposes."'
Consequently, about 1952, the Maritime Administration with the
support of the Department of Defense encouraged, or at least facili-
tated, the transfer of American vessels to Panlibhon flags, thereby,
it is contended, keeping the vessels in active service and preventing
their being laid up in mothball fleets where they would not be imme-
diately available in event of an emergency. However, such transfers
were permitted only on the condition the owner enter into an agree-
ment such as that mentioned above and further agreed not to transfer
the vessel to other registration without prior approval of the Mari-
time Administration. Thus, continuing "effective control" of the
vessels was maintained. The Sea Level was transferred foreign sub-
ject to such agreements. However, the present problem, as outlined
in the Attorney General's brief, appears not to involve primarily
American vessels transferred foreign subject to the above agreements,
but rather new vessels built abroad by American interests and reg-
istered Panlibhon. As these vessels have never been under the U.S.
flag the Maritime Administration has not been able to require their
owners to enter into the above agreements. However, it has managed,
so the Attorney General states, to obtain agreements from the owners
to turn the ships over to the United States in an emergency. But,
for unexplained reasons, the Maritime Administration has not ap-
parently obtained or been able to obtain agreements requiring its prior
approval of a transfer of these vessels to other registry. Conse-
quently, the owners of these vessels can go freely to other flags if Pan-
libhon registry ceases to maintain its advantages, and "in the opinion
of the Secretary of Defense such movements [to other foreign flags]
will probably be to the traditional maritime registries of Europe." In
that event the United States will have no "effective control" of the
ships, it is argued, because the laws of such nations provide, unlike
13 The ultimate utility of such control, if it in fact exists as a practical matter, has been
seriously questioned Thus, though the ships may be under effective U S control, their
alien crews are not, and the question has been raised as to where the crews shall be
found to man the ships immediately in event of war. See Panlibhon Registration, 60
Columbia Law Review 711, 721-722
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those of the Panlibhon States, for requisition by those governments
of their ships in event of an emergency.
To apply the Labor Act to Panlibhon vessels will, it is contended
destroy the economic incentive for American shipowners to maintain
and enlarge the "flag of convenience" fleet. Thus, American vessels
will be laid up and not maintained in an active status under "effective
control" while, in the opinion of the Secretary of Defense, foreign
built Panlibhon vessels will be transferred to other flags and owner-
ship beyond the reach of the United States in event of an emergency.
Consequently, to assert jurisdiction over Panlibhon vessels will, the
argument runs, subvert the defense policies served by the maintenance
of a Panlibhon fleet under effective American control. We should
not, therefore, it is concluded, assert jurisdiction in cases involving
Panlibhon vessels. What in effect we are asked to do is find that
application of the Labor Act will undermine the flag of convenience
fleet. However, in view of the many economic incentives 84 in Pan-
libhon registration, we cannot, at least on the record before us, reach
any such conclusions. In fact the record here is devoid of any evi-
dence of the effect on Panlibhon vessels of applying the Labor Act.
At most we have but the statement of the Secretary of Defense set
forth in the brief of the United States that in his opinion it will dis-
courage such registration. But while the policy of the Department
of Defense with respect to its interest in maintaining a Panlibhon
fleet for defense purposes is established by the Secretary's statement
to that effect, the results of applying the Labor Act is a question of
fact which cannot be established by an opinion, especially under the
circumstances here, where no evidence is offered in support of the
opinion. At any rate, for us to decide that application of the Labor
Act would undermine the Panlibhon fleet under effective United
States control would require our finding in the absence of substantial
evidence that the major overriding factor motivating American ship-
ping interests to turn to Panlibhon registration is the desire to escape
the jurisdiction of the Labor Act.85 Consequently, any conclusion
as to the detrimental effects of the Act here would be born of specu-
lation, and we do not believe that speculation is a sufficient basis to
support a finding that it will not effectuate the national policies set
forth in the Act to proceed in the case.
Moreover, we believe that the basis of our decision finding jurisdic-
tion should allay, at least in part, the fears that application of the Act
84 Among the economic advantages of Panlibhon registration have been listed : (1) tax
savings, ( 2) increased market value of the ship, (3 ) lower wage and other operating
costs, ( 4) avoidance of U S. standards for vessel condition , and (5 ) cheapness of repairs
abroad. See The Flag-of-Convenience Fleet, 69 Yale Law Journal 498 , 499-500 (Janu-
ary 1960)
85 In his brief , the Attorney General suggests that the Board would have jurisdiction
over a foreign vessel if it had been transferred foreign for the purpose of avoiding obliga-
tions under the Labor Act. See brief of the United States, p 16
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 367
will cause a flight of Panlibhon vessels to European registry, for
behind these fears seems to be the assumption that in its application
the Act will be directed against Panlibhon registration in particular.
But as the Department of State has argued, we cannot under treaties,
maritime law, and comity single out the ships of Panlibhon states for
special treatment or regulation, and we have not done so. The Sea
Level here flies the Liberian flag. Our result with one possible nar-
row exception would be the same whatever her flag. Clearly, she
would find no sanctuary in European registry if those American con-
tacts warranting application of the Act remained otherwise substan-
tially unchanged. Consequently, as European documentation would
provide no inevitable "escape" from the Labor Act, we fail to see how
its application would necessarily encourage shipping operators to
abandon Panlibhon registry with its many economic advantages.
Furthermore, we have grave doubts that even were it conclusively
shown that application of the Act did have substantial adverse effects
on the flag of convenience fleet we would be free to refuse to exercise
our jurisdiction for such reason when the maritime operation, like
that here, possesses those substantial American contacts which under
Lauritzen establish the Act's jurisdiction. We are, of course, aware
that the Supreme Court has told this agency that :
The Board has not been commissioned to effectuate the policies
of the Labor Relations Act so single-mindedly that it may wholly
ignore other and equally important Congressional objectives.
Frequently, the entire scope of Congressional purpose calls for
careful accommodation of one statutory scheme to another, and
it is not too much to demand of an administrative body that it
undertake this accommodation without excessive emphasis upon
its immediate task.88
However, the encouragement of transfers foreign and of the main-
tenance of a flag of convenience fleet does not rest on any stated con-
gressional policy. At most Congress has but specified under what
conditions a ship may be transferred," but as an affirmative policy for
military and other purposes, the transfer foreign program and the
support of a foreign flag fleet are the creatures of the Maritime Ad-
ministration and Department of Defense .88 In fact, present national
policy as established by Congress is directed toward building up an
American flag fleet, manned by citizen personnel, not toward transfers
foreign and the maintenance of a flag of convenience fleet with its
concomitant alien crews. Thus in its last comprehensive considera-
sa Southern Steamship Company v . N.L R.B., 316 U.S. 31, 47
B'' Shipping Act of 1916, Sec. 9, 39 Stat . 730, Sees. 37 , 41, added by 40 Stat. 901, 902,
as amended , 46 U S.C., Sees. 808, 835 , 839 (1958 ). As we accept for all purposes the
Liberian nationality of the Sea Level, we do not, of course , question the legality or effec-
tiveness under American law of such transfer.
88 See Panlibhon Registration, supra, at 712-713.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of maritime matters, Congress stated in Subchapter I "Declara-
tion of Policy" of the Merchant Marine Act of 1936:
It is necessary for the national defense and development of its
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 and
to provide shipping service on all routes essential for maintaining
the flow of such domestic and foreign water-borne commerce at
all times, (b) capable of serving as a naval and military aux-
iliary in time of war or national emergency, (c) owned and
operated under the United States flag by citizens of the United
States, insofar as may be practicable,89 and (d) composed of the
best-equipped, safest, and most suitable types of vessels, con-
structed in the United States and manned with a trained and
efficient citizen personnel. It is declared to be the policy of the
United States to foster the development and encourage the main-
tenance of such a merchant marine. [Emphasis supplied.]"
Consequently, even if the Labor Act did in its application adversely
affect the Panlibhon fleet under effective American control, there
would not result that clash with other congressional policy considered
in Southern Steamship Company. Rather the situation here is more
akin to that in Local 1976, United Brotherhood of Carpenters and
Joiners of America, AFL, et al. (Sand Door Plywood Co.) v.
N.L.R.B.,91 where the Supreme Court admonished the Board that
there was no suggestion in Southern Steamship Company that "the
Board should abandon an independent inquiry into the requirements
of its own statute and mechanically accept standards elaborated by
another agency under a different statute for a wholly different
purpose."
It is suggested, however, that Congress has adopted the present
policy supporting Panlibhon registration for defense purposes. In
19 The meaning of "insofar as practical " has been variously interpreted Some would
have it modify "United States flag" and thus be an escape clause supporting a transfer
foreign policy and maintenance of a foreign -flag fleet. However, the legislative history
of clause ( c) shows that the problems dealt with by Congress did not concern "foreign
flag" operations at all. Rather , the issue was that of private versus Government owner-
ship of merchant vessels and the emphasis to be placed as a matter of national policy on
each type of ownership . Consequently , it is readily apparent from a reading of the
legislative history that "insofar as practical" was intended to modify , as good English
usage would require, "citizens of the United States " and not "United States flag" See
80 Cong. Rec. 9899-9900 , 10569 ( 1936 ). In fact congressional debates show without
question that Congress was concerned only with fostering American -flag operations with
citizen crews . See, for example, 80 Cong Rec. 9915 , 9916 , 10570 ( 1936) Even absent
the legislative history such a construction would be required by the unqualified emphasis
on a "citizen " crew, which experience shows is not only inconsistent with foreign-flag
operations but is a requirement sought to be avoided by such operations
90 46 USCA, Sec. 1101.
91357 U. S 93, 111.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 369
support of this position , attention is drawn to a number of congres-
sional hearings dealing with the foreign flag issue and to the fact
proposed legislation designed to curtail or strictly regulate transfers
foreign failed of enactment 92 However, we do not view these events
subsequent to enactment of the Merchant Marine Act of 1936 as sup-
planting the clear national policy of favoring American flag-citizen
crew operations specifically enunciated in Subchapter I of that Act,
quoted above.93
A national defense contention similar to that discussed here was
urged in the Afran Transport 94 case which concerned the application
of the Norris-La Guardia Act to situations arising out of foreign flag
operations. The court rejected the argument, stating:
Plaintiffs deal at some length with the general maritime and
defense policies of the United States which they assert bear on
the present situation and which view with approval the practice
of operating vessels under foreign flags of convenience or neces-
sity. Such policies do not authorize this court to disregard the
plain mandate of Congress laid down in the Norris-La Guardia
Act. . . . If Congress desired to implement such policies by
granting the plaintiffs immunity from the Norris-La Guardia
prohibition, it was free to do so. But this it has not done.95
The reasoning of the court is in our view applicable to the situation
before us. Especially so, as Congress subsequent to the Board's as-
serting jurisdiction over certain foreign flag operations 96 reviewed
and amended the Labor Act with respect to the Board's assertion of
jurisdiction but did not preclude the Board's acting with respect to
foreign flag vessels affecting national defense 97 In fact, we find the
argument here that the Board should stay its hand because of national
defense considerations clearly at odds with our well-established line
of cases that hold "it best effectuates the policies of the Act to assert
jurisdiction over all enterprises . . . whose operations exert a sub-
stantial impact on the national defense . . ." and that this Board has
"a special responsibility . . . to reduce the number of labor disputes
which might have an adverse effect on the Nation's defense effort." 98
92 See, e g, Hearings on Ship Transfers To Foreign Flag Before the Subcommittee on
Merchant Marine and Fisheries of the Senate Committee on Interstate and Foreign
Commerce , 85th Cong ., 1st less ( 1957 ) See also Panlibhon Registration, 60 Columbia
Law Review 711, 716-718 (1960).
13 See Fogarty v United States , 340 U S . 8, 13-14
94 Afran Transport Co. v. Maritime Union , 169 F . Supp. 416 ( U.S D C S D N.Y ).
91169 F. Supp . 416, at 425.
60 See Peninsular & Occidental Steamship Co., 120 NLRB 1097.
B7Labor-Management Reporting and Disclosure Act of 1959, Sec. 701 ( a), 73 Stat 519,
541, amending Section 14 of the Labor Act.
21 See Ready Mimed Concrete & Materials , Inc, 122 NLRB 318, 320; also Maytag Air-
craft Corp, 110 NLRB 594; Taichert's, Inc, 107 NLRB 779, Westport Moving and
Storage Company, Crate Making Division , 91 NLRB 902
597254-61-vol 130-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
These cases have not been distinguished. In fact, they have not even
been mentioned by any of the parties. Insofar as the national defense
is involved, it would, thus, appear to be a factor warranting our exer-
cise of jurisdiction-not one supporting inaction.
Furthermore, the basis of the argument that national defense con-
siderations require that we not exercise our jurisdiction is, if not
erroneous, one with which we cannot agree, for lying behind it is the
necessary premise that application of the Labor Act to maritime oper-
ations creates burdens which are competitively disadvantageous and
which disrupt the commerce involved. This argument would be as
equally applicable to American as to foreign flag shipping. In fact,
it would appear to apply with equal force in all those situations in-
volving an enterprise affecting national defense and subject to for-
eign competition of countries with lower business taxes than, and
terms of employment inferior to, those prevailing in this country. At
any rate, in following the argument to its logical conclusion we should
not, in the name of national defense and insofar as shipping is con-
cerned, assert jurisdiction over any international maritime operations
including those under the American flag. However, Congress has
stated that the Act in its application is beneficial and desirable to
facilitate the free flow of commerce and to eliminate the cause of
certain obstructions to commerce. It is not for us to say Congress is
wrong.99 We have no doubts that other agencies of Government are
faced with immediate problems-here ones involving defense mat-
ters-that present no ready solution. But we cannot in effect partici-
pate in an expedient resolution which requires us to substitute our
judgment for that of Congress and ignore the expressed policy and
mandate of the Labor Act. If applying the Labor Act to ships such
as the Sea Level creates a conflict with other important national in-
terests it is for Congress to indicate the accommodation to be made
between the statutory policy and those interests, and not for this
Board to do so either directly or indirectly by accepting determina-
tions made by other agencies not responsible for administering the
provisions of the Labor Act.
Lastly, we believe that under Section 14(c) (1), recently added to
the Labor Act,... we cannot refuse to assert jurisdiction in this pro-
ceeding. That section provides in part that :
The Board, in its discretion, may . . . decline to assert jurisdic-
tion over any labor dispute involving any class or category of
employers, where, in the opinion of the Board, the effect of such
labor dispute on commerce is not sufficiently substantial to war-
rant the exercise of its jurisdiction. . . .
99 See American Federation of Labor, et al., 120 NLRB 969, 970-971.
100 See footnote 97, above.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 371
As the very basis of the national defense argument interposed here
rests on the substantial role foreign flag operations play in our sea-
borne commerce and as the Sea Level's operations alone clearly have a
substantial impact on our foreign commerce, we believe it apparent
that under the language quoted above we cannot refuse to assert juris-
diction over foreign flag operations generally on the ground they in-
volve a class or category of employers engaged in a particular type
of enterprise which does not substantially affect commerce, nor can
we for a similar reason refuse to proceed in this case. But perhaps
of more immediate concern here is the proviso following the above-
quoted language of 14 (c) (1) which reads that :
The Board shall not decline to assert jurisdiction over any labor
dispute over which it would assert jurisdiction under the stand-
ards prevailing upon August 1, 1959.
On May 23, 1958, the Board issued its decision in Peninsular & Occi-
dental Steamship Co."' asserting jurisdiction over the employers there
and their seaborne operations involving two Liberian flag vessels on
the basis of then existing standards, and on December 11, 1958, HPO
Service, Inc., 112 issued in which the Board decided "it will assert juris-
diction over all . . . freight enterprises engaged in the furnishing of
interstate transportation services . .. which derive at least $50,000
gross revenues per annum from such operations. . . ." Neither of these
cases has been overruled or modified. Consequently, reading them to-
gether we find that on August 1, 1959, we would without question as-
sert jurisdiction over an employer operating foreign flag vessels-
assuming, of course, statutory jurisdiction-if its annual gross income
from its interstate or foreign commerce operations was $50,000 or
more. Moreover, the fact that national defense considerations were
present would not have supported a different result, for, as indicated
above the Board considers it has a special responsibility to act where
the national defense is involved, and, in fact, on the crucial date of
August 1, 1959, the standard prevailed that the Board would assert
jurisdiction over "all enterprises . . . whose operations exert a sub-
stantial impact on national defense. ...7103 Consequently, as Re-
spondent West India's annual gross income from the operations of
the Sea Level alone exceeds $50,000, we find that under the Section
14(c) (1) proviso we cannot, contrary to explicit congressional direc-
tion, refuse to assert jurisdiction in this proceeding. We further find
that if national defense is, as maintained, substantially involved in
the operation of foreign flag vessels such as the Sea Level, under
effective United States control, we are in view of our national defense
im 120 NLRB 1097.
302122 NLRB 394, 395.
'' Ready Mix Concrete & Materials, Inc., 122 NLRB 318.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standard similarly bound by Section 14(c) (1) to exercise our juris-
diction here.
In view of the foregoing we find that the Respondent and its mari-
time operations subject of the complaint are engaged in and affect
commerce within the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the policies of the Act to assert jurisdiction in
this proceeding.
B. The labor organization involved
Seafarers International Union of North America , Atlantic & Gulf
District , AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
C. The unfair labor practices
The Facts
On December 22, 1958, the Union's representative went aboard the
Sea Level, which was docked at Belle Chasse, and secured from 24 of
the crew signed cards authorizing the Union to represent them for
the purposes of collective bargaining. The following day the Sea
Level sailed for Havana. While the ship was underway on December
23, Rodulfo M. Siblesz Giraud, captain of the Sea Level, asked each
member of the crew if they had signed a union authorization card
and, in receiving an affirmative reply, stated that he would have to let
the Respondent know about it.la' The next day while the ship was on
the high seas, Giraud told the crew that Respondent would like them
to revoke the union cards, that in signing the cards they had caused
serious problems for Respondent and for themselves, and that as a
result the Sea Level would probably stop sailing into Belle Chasse.
He also stated that the best thing the crew could do was to revoke the
cards and that the Respondent might take drastic measures upon
arrival of the ship at Havana. He did not specify what the "drastic"
measures might be.
The Sea Level arrived in Havana on December 25, at which time
the crew was instructed to be present the next day for a meeting with a
representative of the Respondent. On December 26, Capt. A. D.
Warren, manager of Respondent's operations at West Palm Beach,
Florida, spoke to the assembled crew. He questioned them as to why
they had signed the authorization cards and stated he could not under-
stand why they had signed in view of their long service with the
Company and the fact they were Cubans on a Liberian ship while the
104 There is some dispute as to whether this questioning and statement by Giraud
occurred while the ship was in U.S. territorial waters or on the high seas. In view of
decision above we need not decide the question as our result would be the same in either
event.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 373
Union was American. He then added that there was no need for them
to sign the cards because any complaint they had against the Com-
pany would be taken care of by him. Some of the employees then
stated they had signed up because Garmas had told them it would
benefit the Company and themselves if they did so. Warren denied
that signing up would be of benefit to the Company or to the men. He
then told the crew that those who had signed union cards could not go
on the Sea Level's return trip to the United States, and that they
could not sail at all on the Sea Level until he had time to think the
matter over and procure advice. Some of the crew stated at this
point that they wished to revoke their union cards. Warren then dis-
tributed to all of the employees documents which had previously been
prepared by the Respondent and were in form revocations of the em-
ployees' membership in the Union. The crew signed the revocations
and returned them to Warren and the ship's officers.
On the evening of December 26, the Sea Level sailed for Belle
Chasse, at which time 24 members of the crew were placed ashore with-
out duties because they had signed the Union's authorization cards.
They were returned to duty upon the Sea Level on or about January
12,1959.
Concluding Findings
Upon the foregoing and the entire record, we find that the Respond-
ent interfered with, restrained, and coerced its employees in violation
of Section 8(a) (1) of the Act, and discriminated against its em-
ployees in violation of Section 8(a) (3). In finding that the Respond-
ent violated Section 8(a) (1), we rely specifically on the following
conduct :
(1) The veiled or open threats made on December 23 and 24, 1958,
by Captain Giraud of the Sea Level, who we find is a supervisor within
the meaning of the Act, (a) that he would have to tell Respondent the
crew had signed union cards, (b) that by signing the cards they had
caused serious problems for themselves, and (c) that because they had
signed cards the Sea Level might stop sailing to Belle Chasse and that
the Respondent might take drastic measures when the ship arrived at
Havana.
(2) The statements made at the same time by Captain Giraud that
he would like the crew to revoke their union cards, and that the best
thing the crew could do was revoke their cards.
(3) The promise and the threat made on December 26,1958, by Cap-
tain Warren, Respondent's operations manager at West Palm Beach,
Florida, (1) that it was unnecessary for the crew to sign union cards
as he would take care of any complaints they have against the Com-
pany, and (2) that the employees who had signed could not sail on
the Sea Level's return trip to the United States or at any time until he
had time to think the matter over.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The distribution on the above date by Captain Warren to the
•crew for their signatures of revocation-of-union authorization forms
prepared by Respondent.
(5) The questioning in the context of the above unfair labor prac-
tices by Captain Giraud on December 23, 1958, of each crew member
as to whether he had signed a union card, and Captain Warren's ques-
tioning the assembled crew on December 26, 1958, as to why they had
signed such cards.'os
We further find that when, upon the sailing of the Sea Level on
December 26, the Respondent had 24 crew members placed ashore
without duties because they had signed union cards, it thereby un-
lawfully discriminated in regard to terms or conditions of employ-
ment to discourage membership in the Union,"' in violation of Section
8(a) (3), and interfered with, restrained, and coerced the employees
in the exercise of their rights protected by Section 7 of the Act in
violation of Section 8(a) (1).
D. The effect of the unfair labor practices upon coinnnerce
The activities of Respondent set forth in section C, above, occurring
in connection with the operations of Respondent described in section
A, above, have a close, intimate, and substantial relation to trade,
traffic, commerce, and transportation among the several States and
between foreign nations and the United States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
E. The remedy
Having found that Respondent engaged in certain unfair labor
practices we shall order that it cease and desist therefrom and that it
take certain affirmative action which we find necessary to remedy, and
to remove, the effects of the unfair labor practices and to effectuate
the policies of the Act.
Respondent's repeated unlawful activities go to the very heart of
the Act and indicate a purpose to defeat self-organization of its
employees. We are convinced that the unfair labor practices com-
mitted by Respondent are potentially related to other unfair labor
practices proscribed by the Act, and that the danger of their com-
mission in the future is to be anticipated from Respondent's conduct
in the past. The preventive purposes of the Act will be thwarted
unless the Board's order is coextensive with the threat. Accordingly,
in order to make effective the interdependent guarantees of Section 7
and thus effectuate the policies of the Act, we shall order that Respond-
105 Blue Flash Empress, Inc., 109 NLRB 591.
109 There is no evidence the employees were discharged , even temporarily , or that they
did not receive full pay while placed ashore. The parties stipulated no question of backpay
is involved in this proceeding.
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 375
ent cease and desist from in any manner infringing upon the rights
of employees guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire
record in the case , we make the following:
CONCLUSIONS OF LAW
1. Seafarers International Union of North America , Atlantic &
Gulf District, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, Respondent
has engaged in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
3. By discriminating in regard to terms or conditions of employ-
ment to discourage membership in the Union, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (3) of
the Act.
The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, West India Fruit and
Steamship Company, Inc., its officers , agents, successors , and assigns,
shall :
1. Cease and desist from :
(a) Threatening employees with changes in working conditions,
and terms of employment and unspecified recriminatory action be-
cause of their adherence to, and support for, Seafarers International
Union of North America, Atlantic & Gulf District, AFL-CIO, or any
other labor organization.
(b) Soliciting and aiding its employees to revoke their union
authorization cards for the Seafarers International Union of North
America, Atlantic & Gulf District, AFL-CIO, or any other union.
(c) Offering employees promises of benefit in order to discourage
membership in, and activity on behalf of, the Seafarers International
Union of North America, Atlantic & Gulf District, AFL-CIO, or any
other labor organization.
(d) Interrogating its employees concerning their union activities
in a manner violating Section 8 (a) (1) of the Act.
(e) Discouraging membership in, and activity on behalf of, the
Seafarers International Union, Atlantic & Gulf District, AFL--CIO,
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'or any other labor organization by discriminating with respect to
terms or conditions of employment.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Seafarers International
Union, Atlantic & Gulf District, AFL-CIO, or any other labor organi-
zation , to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in both Spanish and English on its bulletin boards on the
SS Sea Level and at such other places as notices to the crew of that
vessel are normally posted and at its office, pier, or other shore facilities
at Belle Chasse, Louisiana, copies of the notice attached hereto marked
"Appendix A." 107 Copies of said notice, to be furnished by the Re-
gional Director for the Fifteenth Region, shall, after being signed by
Respondent's representative, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER RODGERS, dissenting : 101
My colleagues have determined that pursuant to Section 2(6) and
(7), the jurisdictional reach of the Act extends to the operations of
American shipowners who register their vessels with, and fly the flags
of foreign nations, and that the policies of the Act will be effectuated
by asserting jurisdiction over these shipowners and their operations.
I disagree.ioa
107 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
109 Member Kimball joins Member Rodgers in his dissent . Although he was not present
at the oral argument, he has reviewed the transcript thereof, together with the extensive
briefs submitted by the parties as well as the amici.
100 Contrary to my colleagues ' Interpretation , I can find no mandate under Section
14(c) (1 ) of the 1959 amendments which requires the Board to abandon its discretionary
function of determining for itself whether the assertion of jurisdiction will "effectuate
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC . 377
In my opinion, the present national defense policies of the United
States persuasively beckon and, in a sense, compel the Board to decline
to assert its jurisdictional prerogative. This national policy, insofar
as it is relevant to present considerations may be conveniently reduced
to two basic tenets :
First, that the branches of the Federal Government charged with
the responsibility for maintaining an adequate merchant marine in
the interest of national defense have recognized that American ship-
owners cannot operate at an economic advantage in the streams of
foreign commerce if the registration of their vessels is restricted
solely to the United States.il°
Secondly, that these branches of the Federal Government, rather
than suffer the entire loss of the merchant marine to the economic and
strategic advantage of foreign interests, or to have on hand an obsolete
or scrapped array of vessels bearing the American flag, have encour-
aged American shipowners to register their vessels with the
PANLIBHON nations whereby "effective U.S. control" can be main-
tained in the event of a national emergency.lll
This policy has received the express support of the Department of
State, Defense, Navy, Commerce, and the Maritime Administration,
and has implicitly been approved by the House and Senate subcom-
mittees which were specially convened in 1957 to inquire into the
problems surrounding foreign flag transfers and reserve fleet sur-
the policies of the Act." The body of the section specifically leaves to "the opinion of
the Board" the determination as to what is or is not a substantial effect on commerce,
while the proviso to the section merely freezes the Board's dollar volume "standards
prevailing upon August 1, 1959" so that monetary considerations cannot be upgraded.
See Flatbush General Hospital, 126 NLRB 144, and William Benz et al. v. Compania
Naviera Hidalgo, S.A., a Corporation, 353 U.S. 138, 142.
In addition, my colleagues advert to "our well-established line of cases" where the
Board has asserted jurisdiction over enterprises whose operations exert a substantial im-
pact on the national defense. This body of precedent is totally irrelevant where, as in
the present context, the national interests to be preserved do not involve solely American
industries which operate solely in fixed locations and solely within the borders of the
United States. Because the United States defense considerations in the instant situation
are so inextricably intertwined with the Nation's foreign relations, a mechanical assertion
of jurisdiction, as adopted by my colleagues, would not only produce "an adverse effect
on the Nation's defense effort, but would, in all likelihood, destroy the advances already
made in its initial establishment and continued maintenance.
no For example, in its Project "Walrus" Report, the Panel on Wartime Use of the
U.S. Merchant Marine made the following conclusions and recommendations, inter alia:
. . . Pending resolution of management-labor problems, the continued operations
under "flags of convenience" of those U.S. owned and controlled merchant ships that
are presently so registered, represent a practical and at present the only economical
means of sustaining an important segment of the U.S. owned merchant marine. At
present there is no satisfactory alternative. [Emphasis supplied.]
Proposed Program for Maritime Administration Research vol. II: Contributing Studies,
Maritime Research Advisory Committee, National Academy of Sciences, National Research
Council (1960), at p. 85.
m As stated by Thomas S. Gates, then Secretary of the Navy, the term "effective
U.S. control" originated in 1947 "as a planning concept, and it has been used consistently
since that date in evaluating transportation capabilities for mobilization purposes."
House Subcommittee on Merchant Marine and Fisheries , Study of Vessel Transfer, Trade-in
and Reserve Fleet Policies, 85th Cong., 1st sess ., May-July 1957 , pp. 630-631.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vival.112 Further, in the smiths brief filed in this proceeding by the
Department of Justice, the Department of State called to the Board's
attention the fact that "its [the Board's] assertion of jurisdiction over
foreign flag vessels might evoke enactment of defensive legislation
or the taking of retaliatory action by the States [foreign nations]
affected." In the same brief the Secretary of Defense is quoted as
saying: "In my considered judgment, the subjection of these foreign
flag vessels to the jurisdiction of the United States Labor Manage-
ment Relations Act would very likely have the effect of driving them
to registration under the flags of [non-PANLIBHON] nations" with
a consequent loss of "effective U.S. control."
The foregoing legislative materials and Departmental expressions
amply illustrate the scope and gravity of the defense considerations,
and also indicate the degree of concern which other nations and other
branches of our Government might express if that policy is inter-
fered with. My colleagues would, nonetheless, disregard these ex-
pressions in the belief that "present national policy as established by
Congress is directed toward building up an American flag fleet,
manned by citizen personnel." 119 Their position, however, wholly
ignores, and is, in fact, at odds with the interpretation placed on ex-
isting legislation by those who are responsible for administering its
provisions.114
Moreover, I cannot distinguish-as my colleagues are doing-na-
tional purposes which are expressly set forth in specific legislation,
from national purposes which are achieved either through rule, regu-
lation, or policy promulgated pursuant to, and in accord with such
legislation, by the agency to which such legislation has been en-
trusted.il5 In both cases the formulation of policy must, of necessity,
U See House Subcommittee on Merchant Marine and Fisheries , Study of Vessel Transfer,
Trade-in and Reserve Fleet Policies , supra, note 113; Senate subcommittee on Merchant
Marine and Fisheries of the Committee on Interstate and Foreign Commerce , Ship Trans-
fers to Foreign Flag[s], 85th Cong., let sess, 1957, on S. 1488, passim.
na In support of this view my colleagues apparently are relying upon the Merchant
Marine Act of 1936 where the following policy statement appears :
It is necessary for the national defense and development of Is foreign and domestic
commerce that the United States shall have a merchant marine . . . ( c) owned and
operated under the United States flag by citizens of the United States insofar as may
be practicable . . . . [ Emphasis supplied.]
114 Commenting upon the specific provision of the Merchant Marine Act of 1936, noted
supra , footnote 113, Thomas S. Gates, then Secretary of the Navy , Adm H. L. Collins,
Assistant Chief of Naval Operations for Logistics , and Adm. Walter C Ford , Acting
Maritime Administrator , all agreed that the policy of encouraging the transfer of vessels
to foreign flags pursuant to the policy of "effective control " was in full accord with the
stated purposes of the 1936 Act. House Subcommittee on Merchant Marine and Fisheries,
supra, footnote 112, at pp. 656-657.
na In Southern Steamship Company v . N.L.R.B , 316 U . S. 31, 47 , the Supreme Court
admonished the Board not "to effectuate the policies of the Labor Relations Act so single-
mindedly that it may wholly Ignore other and equally important Congressional objectives."
My colleagues , however, say that "even if the Labor Act did in its application adversely
affect the Panlibhon fleet under effective American control , there would not result that
clash with other Congressional policy considered In Southern Steamship Company." I
WEST INDIA FRUIT AND STEAMSHIP COMPANY, INC. 379
keep within the bounds of lawfully delegated authority and, so long
as such policy is kept within these bounds and is not clearly erroneous,
such policies acquire the status and force of law. Thus, when faced
with such "other and equally important Congressional objectives" it
is not for this Board to question the soundness of the policies devised
by the legislative and executive branches of our Government 118
Rather, where such an all-pervading governmental policy is estab-
lished, it is incumbent upon the Board to accommodate itself within
the overall Federal scheme so as to advance, rather than defeat, these
national objectives.
Consequently, in view of the foregoing considerations, I would find
that the assertion of jurisdiction in this proceeding would not effec-
tuate the policies of the Act. I would, therefore, dismiss the com-
plaints in their entirety.
MEMBER KIMBALL took no part in the consideration of the above
Decision and Order.
disagree . My colleagues ' conclusion is based on an erroneous premise as to what current
national policy is. Compare, supra, footnote 113 with footnote 114
318 My colleagues have intimated that the soundness of the "effective control" concept is
questionable in view of the difficulties which exist , "as a practical matter ," in attempting
to recruit crews to man the vessels in the event of war. As brought out by Walter C.
Ford, Deputy Maritime Administrator , during the House hearings , while no "definite
plans" had been developed, there was no question but that sufficient trained men were
available who could be drawn from the Naval Reserve, or through a wartime draft. In
addition , "the unions could be organized to the point of where they would certainly fur-
nish the men" as they did in the Korean emergency . House Subcommittee on Merchant
Marine and Fisheries , Study of Vessel Transfer , Trade-in and Reserve Fleet Policies,
85th Cong , 1st sess , May-July 1957 , at p. 607. See also, statement of the then Secretary
of the Navy, House hearings , supra, p. 632.
APPENDIX
NOTICE To ALL EMPLOYEES IN THE CREW OF THE SS "SEA LEVEL"
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT stop, or threaten to stop, your shipping on the
SS Sea Level because you join or support the Seafarers Inter-
national Union of North America, Atlantic & Gulf District,
AFL-CIO, or any other labor organization.
WE WILL NOT threaten you that drastic measures or other ac-
tion might be taken because you join or support the Seafarers
International Union of North America, Atlantic & Gulf District,
AFL-CIO, or any other union.
WE WILL NOT promise to take care of your complaints in order
to discourage your joining or supporting the Seafarers Interna-
tional Union of North America, Atlantic & Gulf District,
AFL-CIO, or any other union.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT ask you if you signed union cards , or why you
signed them , nor ask you to revoke the cards , nor supply you with
forms to revoke your union cards in order to discourage you from
joining or supporting the Seafarers International Union of
North America , Atlantic & Gulf District , AFL-CIO, or any
other union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of your right to self-organization, to
form labor organizations , to join or assist the Seafarers Interna-
tional Union of North America, Atlantic & Gulf District,
AFL-CIO, or any other labor organization , to bargain collec-
tively through representatives of your own choosing , and to en-
gage in union or other concerted activities for the purpose of
collective bargaining or other mutual aid and protection, or
legally to refrain from such activities.
All of you are free to become , remain, or refrain from becoming
or remaining members of any union , or other labor organization, ex-
cept to the extent that this right is affected by a bargaining agree-
ment that conforms with Section 8(a) (3) of the Act, as modified by
the Labor -Management Reporting and Disclosure Act of 1959.
WEST INDIA FRUIT AND STEAMSHIP C031PANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Local 490, International Hod Carriers Building and Construc-
tion Laborers Union , AFL-CIO, and J . Carl Dicus , Sr., Busi-
ness Agent (Dickmann -Pickens-Bond Construction Company)
and Arthur Block and James White and Oree Jefferson and
Magness S . Ward . Cases Nos. 06-CB-72, 06-CB-73, 26-CB-74,
and 26-CB-77 (formerly 32-CB-72, 32-CB-73, 32-CB-74, and
32-CB-77, respectively). February 16, 1961
DECISION AND ORDER
On July 24, 1959, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, Local 490 and its business agent, J. Carl Dicus, Sr.,
had engaged in and were engaging in unfair labor practices in viola-
tion of Section 8(b) (1) (A) and (2) of the Act and recommending
that they cease and desist therefrom and take certain affirmative action,
130 NLRB No. 27.