630 F.

2d 864
105 L.R.R.M. (BNA) 2809, 89 Lab.Cas. P 12,304

Michael F. WALSH, etc., Petitioner, Appellant,

v.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
AFL-CIO, LOCAL 799,
International Longshoremen's Association, AFL-CIO,
Respondents, Appellees.
No. 80-1330.

United States Court of Appeals,

First Circuit.
Argued Aug. 1, 1980.
Decided Sept. 17, 1980.

James Holcomb, Washington, D. C., with whom William A. Lubbers,

Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Harold J. Datz,
Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, and Peter
B. Mirsky, Deputy Asst. Gen. Counsel, Washington, D. C., on brief, for
petitioner, appellant.
Duane R. Batista, Danielle de Benedictis, William G. Ferris, and Nutter,
McLennen & Fish, Boston, Mass., on brief, for Allied International, Inc.,
amicus curiae.
Ernest L. Mathews, Jr., New York City, with whom Gary G. Nicolosi,
Andre Mazzola Mardon, New York City, Joseph Doyle, Condon & Doyle,
Boston, Mass., and Thomas W. Gleason, New York City, on brief, for
respondents, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal from a decision of the district court denying a preliminary

injunction under section 10(l ) of the National Labor Relations Act, as

amended, 29 U.S.C. 160(l ).
2

The facts are essentially undisputed. In December of 1979, armed forces of the
USSR invaded Afghanistan. In protest of that action, on January 9, 1980,
Thomas Gleason, President of the International Longshoremen's Association
(ILA), ordered members of the ILA to cease handling cargoes bound for or
arriving from the USSR and all cargoes traveling on ships of USSR registry.1

As a result of this order, ILA locals in ports along the Atlantic and Gulf coasts
have refused to refer members for work involving Soviet ships or cargoes.

This policy has prevented the loading and unloading of cargoes belonging to
various shippers in these ports. At least three such shippers have responded by
filing charges with the NLRB against the ILA and the particular locals
involved. These charging parties have characterized the ILA's policy as a
secondary boycott in violation of section 8(b)(4)(i), (ii)(B) of the National
Labor Relations Act-that is, a refusal by the union to handle goods associated
with the USSR in an attempt to force the shippers, the carriers, and/or the
stevedores to cease doing business with the USSR or with each other.

The Board has adopted this characterization of the ILA's policy. While the
charges are pending with the Board, at least three regional directors have
brought actions in three federal district courts seeing preliminary injunctions
under section 10(l ) of the NLRA, 29 U.S.C. 160(l ). First, the regional
director of region 23 brought an action in the Southern District of Texas2 in
response to charges filed with the Board by the Kansas and Texas Farm
Bureaus and the American Farm Bureau Federation. The farm bureaus had filed
the charges because locals of the ILA had refused to refer longshoremen to load
grain bound for the USSR aboard the Belgium, a ship of Belgian registry under
charter by a Soviet chartering company. The District Court for the Southern
District of Texas, in an unpublished memorandum and opinion dated February
15, 1980, denied the Board's petition on the ground that the dispute was not "in
commerce," so that the Board had no jurisdiction over it.

The regional director of region 10 brought the second section 10(1 ) petition in
the Southern District of Georgia,3 in response to a charge filed by Occidental
Chemical Corporation, a manufacturer of chemical products which had been
unable to receive its shipments of raw materials originating in the USSR
because of the refusal of the ILA local in Savannah to unload the goods. In an
unpublished opinion dated March 4, 1980, the district court rejected the union's

assertion of res judicata, found jurisdiction in the Board, and issued the
requested injunction. That injunction is currently in effect and prevents the ILA
from pursuing its policy in the ports of Savannah and Brunswick, Georgia. The
rulings of both the Texas and Georgia district courts are currently on appeal to
the Court of Appeals for the Fifth Circuit.
7

The action which led to this appeal was brought by the regional director of
region 1 on March 26, 1980 in response to a charge filed by Allied
International, Inc., an American importer of wood products. Allied had
purchased certain wood products from the USSR and arranged to have them
transported to various east coast ports by Waterman Steamship Lines, a
domestic company operating ships of U.S. registry. At the time of president
Gleason's announcement, one such ship was in the port of Boston, where a
portion of Allied's products was scheduled to be unloaded. The ship was
scheduled to make further stops at other ports for additional unloading.
However, because of the ILA's policy as announced by president Gleason,
Waterman was informed that ILA members would not unload the Soviet wood
products from that ship at any ports beyond Boston, and that they would not
unload Soviet cargo from any later ships. As a result, Waterman unloaded all of
Allied's cargo in Boston, rerouted a later ship to Montreal and cancelled its
agreement to transport Soviet wood products for Allied on a third ship.

In the district court, the respondents asserted that the decision of the district
court for the Southern District of Texas in Baldovin barred this action under the
doctrine of res judicata. Respondents also argued that the Board lacked
jurisdiction over the dispute, that it lacked reasonable cause to believe that an
unfair labor practice had occurred, and that the union's action was a form of
political expression protected by the first amendment. In a memorandum and
order dated April 30, 1980, the district court rejected the claim of res judicata
and found jurisdiction in the Board, but also found no reasonable cause to
believe that an unfair labor practice had occurred.4 The court therefore denied
the petition.

In this court, the Board argues that the district court was incorrect in its
conclusion that there was no reasonable cause to believe that an unfair labor
practice had occurred. The ILA renews its jurisdictional and first amendment
defenses while supporting the district court's conclusion on the secondary
boycott issue. Neither party raised the issue of res judicata. However, since it
appeared that the doctrine might be dispositive of the case, we ordered the
parties to submit supplementary briefs on the issue. After reviewing those
briefs along with relevant portions of the records in the Baldovin and Mack
cases, we have concluded that this action is barred by the decision of the

district court in Baldovin. We therefore vacate the judgment of the district court
insofar as it is based upon the grounds stated in the court's opinion and remand
with directions that the petition be dismissed simply on the ground of res
judicata.
10

I. The Preclusive Effect of Decisions Under Section 10(l)

11

Res judicata5 is a judicially created rule that bars relitigation of claims and
issues that have been previously determined. The outlines of the rule are clearly
set forth in Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898
(1947):

12 rule provides that when a court of competent jurisdiction has entered a final
"The
judgment on the merits of a cause of action, the parties to the suit and their privies
are thereafter bound not only as to every matter which was offered and received to
sustain or defeat the claim or demand, but as to any other admissible matter which
might have been offered for that purpose." (Citations omitted.)
13

Under the narrower rule of collateral estoppel,

14
"Where
the second action between the same parties is upon a different cause or
demand ... the judgment in the prior action operates as an estoppel, not as to matters
which might have been litigated and determined, but 'only as to those matters in issue
or points controverted, upon the determination of which the finding or verdict was
rendered'." (Citations omitted.)
15

Id. at 597-98, 68 S.Ct. at 719.

16

The Supreme Court described the purposes and importance of these two related
doctrines in its recent opinion in Montana v. United States, 440 U.S. 147, 99
S.Ct. 970, 59 L.Ed.2d 210 (1979):

17
"Application
of both doctrines is central to the purpose for which civil courts have
been established, the conclusive resolution of disputes within their jurisdictions....
(Citations omitted). To preclude parties from contesting matters that they have had a
full and fair opportunity to litigate protects their adversaries from the expense and
vexation attending multiple lawsuits, conserves judicial resources, and fosters
reliance on judicial action by minimizing the possibility of inconsistent decisions."
18

Id. at 153-54, 99 S.Ct. at 974.

19

As these purposes relate to all kinds of litigation, res judicata and collateral

19

As these purposes relate to all kinds of litigation, res judicata and collateral
estoppel have been applied to every category of cases. Cf. St. Louis
Typographical Union v. Herald Co., 402 F.2d 553, 555 (8th Cir. 1968) (calling
res judicata a "principle of universal jurisprudence"). Nevertheless, the Board
argues, and the district court in this case held, that decisions in proceedings
under section 10(l ), because of their preliminary and ancillary nature, should
not be treated as final judgments so as to trigger the application of these
doctrines. The parties have cited no cases, other than the district court decision
in this case, which directly address the question of the preclusive effect of
decisions in section 10(l ) proceedings, nor have we found any such cases. We
therefore address the question as one of first impression.6

20

Section 10(l ) of the National Labor Relations Act directs regional directors of
the Board to seek preliminary injunctive relief in a district court, pending final
adjudication by the Board, whenever they have reasonable cause to believe that
certain specified unfair labor practices have occurred. 29 U.S.C. 160(l ). "The
purpose of the 10(l ) injunction is to preserve the status quo in order that the
ultimate decision of the Board would not be negated or rendered moot by
intervening events." Compton v. National Maritime Union, 533 F.2d 1270,
1276 (1st Cir. 1976). A decision in a section 10(l ) proceeding is, by the nature
of the proceeding, limited in time and scope; the decision settles only the issue
of reasonable cause, see Union de Tronquistas v. Arlook, 586 F.2d 872, 876
(1st Cir. 1978), and the relief, if granted, is effective only while the unfair labor
practice charge is pending before the Board, Sears, Roebuck & Co. v. Carpet
Layers, 397 U.S. 655, 90 S.Ct. 1299, 25 L.Ed.2d 637 (1970). Because of these
limitations, a section 10(l ) decision is not a final decision on the merits of the
underlying unfair labor practice charge, and it does not bar further litigation of
the issues involved in that charge, either before the Board, or in an enforcement
proceeding in the court of appeals. NLRB v. Denver Building & Construction
Council, 341 U.S. 675, 681-83, 71 S.Ct. 943, 947, 948, 95 L.Ed. 1284 (1951).

21

The limited effect of a section 10(l ) decision flows naturally from the limited
role of the district court in hearing the petition. The court does not decide
whether an unfair labor practice has occurred; that decision is for the Board,
subject to review by the court of appeals. Since no decision has been rendered
on that issue when the charge reaches the Board, there is nothing to preclude its
consideration of the charge.

22

But the district court in a section 10(l ) proceeding does decide the limited issue
of whether there is reasonable cause to believe that a violation has occurred so
that injunctive relief is warranted. We have been offered no persuasive reason
to view that decision on that narrow issue as anything but a final decision for

purposes of res judicata. In our view, the policies underlying the rule of res
judicata apply as well to decisions on section 10(l ) as to other decisions. The
parties in a section 10(l ) proceeding have "full and fair opportunity to litigate"
the narrow issue which is placed before the district court, see Montana v.
United States, supra, 440 U.S. at 154, 99 S.Ct. at 974. Section 10(l ) provides
for a hearing in the district court of which all persons involved in the charge
must be notified and in which all such persons must be permitted to appear and
present testimony, 29 U.S.C. 160(l ). The party against whom the petition is
decided may appeal to the court of appeals, as the Board has done in this case,
28 U.S.C. 1292(a).
23

Once the Board has been afforded this opportunity to have its petition heard
and adjudicated in the district court and to appeal the denial of relief to the
court of appeals, we see no reason to permit it to bring a second petition against
the same respondent based on the same underlying charge. This type of
repetition, which would be as expensive and vexatious to the respondent as any
other type of litigation, is exactly what the rule of res judicata is designed to
prevent. The waste of judicial resources involved in hearing such multiple
petitions would be as great as that resulting from any other repetitive litigation.
This very case illustrates that point; three district courts and two appellate
courts have been called upon to consider section 10(l ) petitions arising from
the same underlying controversy between the Board and the same union. (See
Section II, B, below, where we discuss in detail the identity of the parties.)

24

Finally, the possibility of inconsistent decisions is as great and as troublesome

under section 10(l ) as in any other area of the law. Again, this case illustrates
the danger; three district courts have reached different conclusions on the same
issues, with the result that longshoremen in Savannah are currently enjoined
from complying with a union policy which their counterparts in Houston and
Boston are free to observe.7 Ultimately, we may assume, consistency will be
achieved when the Board itself resolves the charges arising from the ILA's
January 9 directive regarding Soviet cargoes. But this may not occur for some
time; in the interim the decisions will point in different directions.

25

The policies behind the rule of res judicata therefore weigh in favor of giving
those decisions the same preclusive effect as any other category of judicial
rulings. No countervailing policy has been called to our attention that would
lead us to a contrary result. The Board argues that a ruling on a petition by one
regional director, filed under pressure of time after incomplete investigation,
should not be allowed to preclude later petitions by other regional directors,
since preclusion by such a ruling could thwart the intent of Congress to provide
quick relief from the evils of secondary boycotts. What this argument boils

down to is an assertion that the district court deciding the first petition might be
wrong. But a court can be wrong in any decision, and any decision can have
widespread effects on important national policies. The possibility of a wrong
decision does not undermine the rule of res judicata; the remedy for a wrong
decision is the right of appeal, not an unlimited opportunity to bring repetitious
petitions. We hold, therefore, that a decision on a petition under section 10(l ) is
a final decision, for purposes of res judicata, on the narrow issue which it
raises, and that doctrine is triggered by a section 10(l ) decision whenever the
usual criteria for its application are met. We shall now consider whether these
criteria are met in this case.II. The Preclusive Effect of the Baldovin Decision
on this Case
26

Under the traditional rule of res judicata, a final judgment on the merits bars a
subsequent suit on the same cause of action by the same parties and their
privies. Under the rule of collateral estoppel, a judgment in a previous suit,
whether on the same cause of action or not, bars relitigation of issues actually
determined between the same parties. Lawlor v. National Screen Service, 349
U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). Therefore, to decide whether the
Board's petition in this case is barred, we must ask

27

1) whether the Baldovin decision was "on the merits";

28

2) whether the parties here are the same as in that case;

29

3) whether the cause of action here is the same as there; and

30

4) if not, whether any issue decided in that case disposes of this case.

A. "On the Merits"

31
32

The court in Baldovin never reached the substantive questions involved in the
secondary boycott issue, since it found that the Board had no jurisdiction over
the dispute. Generally, a decision on jurisdiction is not a decision "on the
merits," as that term is usually used. However, Baldovin formally addressed the
question of the Board's jurisdiction, not the court's jurisdiction. Since the
Board's jurisdiction depends on whether the NLRA applies to the dispute, a
finding of no jurisdiction in the Board is a finding that the statute does not
apply-that is, that no violation of the NLRA has been alleged. It can be argued
that such a decision is more akin to a decision "on the merits" than is the usual
jurisdictional ruling.

33

Even if Baldovin is to be viewed as more comparable to a ruling on jurisdiction

of the court, precedent indicates that the decision would stand as a bar to
relitigation of the issue of jurisdiction. "The principles of res judicata apply to
questions of jurisdiction as well as to other issues." American Surety Co. v.
Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 101, 77 L.Ed. 231 (1932)
(constitutional claim in federal court barred by previous state court action in
which due process challenge to jurisdiction was raised and rejected). See also
Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) (finding of
jurisdictional facts by Nebraska court bars relitigation of same factual issues in
Missouri court); Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832
(1947) (diversity action in federal court barred by previous action dismissed by
state court for lack of jurisdiction); Jackson v. Irving Trust, 311 U.S. 494, 61
S.Ct. 326, 85 L.Ed. 297 (1941) (collateral attack on judgment based on lack of
jurisdiction barred by trial court's denial of motion to dismiss for lack of
jurisdiction); Stuhl v. Tauro, 476 F.2d 233 (1st Cir. 1973) (dismissal for failure
to raise a substantial federal question bars later action based on identical claim);
Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980) (dismissal of complaint for lack
of jurisdiction bars later "almost identical" complaint); 1B Moore's Federal
Practice P 0.405(5) at 655.

B. Identity of Parties
1. Petitioner
34

The named petitioner in Baldovin was Louis V. Baldovin, regional director of

the 23rd region of the National Labor Relations Board, for and on behalf of the
Board. Here, the named petitioner is Michael F. Walsh, acting regional director
of the first region of the NLRB, also acting for and on behalf of the Board. The
Board has not suggested that these two petitioners are anything but identical for
purposes of res judicata, and we think it is clear that they are identical. See
Sunshine Anthracite Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 917, 84
L.Ed. 1263 (1940) ("A judgment in a suit between a party and a representative
of the United States is res judicata in relitigation of the same issue between that
party and another officer of the government").

35

The Board does raise a different and more substantial question concerning the
identity of the petitioners in the two cases. The Board points out that each
petition arises from a charge by a different charging party. The Board
emphasizes the charging party's substantial interest in the proceedings and
suggests that the distinct interests of the separate charging parties negate the
apparent identity of the petitioners in the two cases.

36

The party who files an unfair labor practice charge with the Board certainly
does have an important interest in whatever proceedings result from the charge.
In the usual case, the charging party is the one who is most hurt by the alleged
violation and who has the most to gain from a remedy. These interests of the
charging party receive recognition in the proceedings: under section 10(b), the
Board may, in its discretion, permit the charging party (or any other person) to
intervene in its proceedings. The Board does permit such intervention under its
own regulations, 29 C.F.R. 102.46 and 102.8 (1965). Once the Board has
issued an order, the charging party may petition a court of appeals for review of
that order as a "person aggrieved" under section 10(f). Auto Workers v.
Scofield, 382 U.S. 205, 210, 86 S.Ct. 373, 377, 15 L.Ed.2d 272 (1965). If the
Board seeks enforcement of its order in a court of appeals, the charging party
may intervene. Scofield, supra. When the Board brings a petition under section
10(l ), the charging party has a statutory right to "appear by counsel and present
any relevant testimony," 29 U.S.C. 160(l ), although he may not intervene as a
party,8 see, e. g., Hirsch v. Building & Construction Trades Council, 530 F.2d
298, 307-08 (3d Cir. 1976); Solien v. Miscellaneous Drivers & Helpers Union,
440 F.2d 124, 130 (8th Cir.), cert. denied, 403 U.S. 905, 91 S.Ct. 2206, 29
L.Ed.2d 680 (1971); 3B Moore's Federal Practice P 24.06(3-8) at 24-132.

37

Nevertheless, we are not persuaded that the charging party's interest in a section
10(l ) proceeding is so great that he should be considered the real petitioner for
purposes of res judicata. Section 10(l ) operates as a "narrow exception to the
Norris-LaGuardia Act, 29 U.S.C. 101, et seq., which for the most part,
deprived the federal courts of all power to issue a labor injunction." Hirsch,
supra, 530 F.2d at 307. Congress has entrusted to the Board the sole right to
initiate an action for a preliminary injunction under section 10(l ); the charging
party has no private right to seek injunctive relief. Congress provided that the
Board may do so when it has "reasonable cause to believe" that a violation has
occurred, 29 U.S.C. 160(l ), not simply whenever a charge has been filed.
Congress intended section 10(l ) to authorize the Board to act "in the public
interest and not in the vindication of purely private rights," S.Rep.No.105, 80th
Cong., 1st Sess., at 8, quoted in Hirsch, supra, 530 F.2d at 308, in order to
prevent the widespread disruption of commerce that can result from such
violations as secondary boycotts.9 We therefore take literally the regional
director's role as petitioner in section 10(l ) proceedings, and we view the
petitioner in each section 10(l ) case as identical, regardless of the identity of
the charging party.

38

Our conclusion is confirmed when we consider the results that would flow
from our adoption of a contrary rule. In a case such as this one, where the
underlying action that is alleged to violate the Act has widespread effects, any

number of affected persons could bring charges with the Board. Here it was
Allied that brought the charge; it could have been the stevedore, or the carrier,
or Allied's customer, or all of these persons. A similar multitude of potential
charging parties is created each time the ILA invokes its announced policy in
reference to another ship or another cargo. None of these potential charging
parties could initiate an action under section 10(l ). But if were were to view
each section 10(l ) petition as raising the separate private interests of a single
charging party, the Board could bring as many petitions as it had charges,
regardless of the disposition of the previous petitions. Such repetitious petitions
would place enormous burdens on the respondent and on the courts, while
raising a danger of inconsistent decisions by the various district judges who
would hear the petitions. We conclude that a petitioner in a section 10(l )
proceeding is, both in form and in substance, the Board. The petitioners in this
case and in the Baldovin case are therefore identical for purpose of res judicata.
2. Respondent
39

Under the traditional rules of res judicata, both plaintiff and defendant in the
two actions had to be identical in order to meet the requirement of mutuality.
See Blonder-Tongue v. University Foundation, 402 U.S. 313, 317-26, 91 S.Ct.
1434, 1436-1441, 28 L.Ed.2d 788, discussing Triplett v. Lowell, 297 U.S. 638,
56 S.Ct. 645, 80 L.Ed. 949 (1936), and its predecessors. The rule of mutuality
dictated that "unless both parties (or their privies) in a second action are bound
by a judgment in a previous case, neither party (nor his privy) in the second
action may use the prior judgment as determinative of an issue in the second
action." Blonder-Tongue, supra, 402 U.S. at 320-21, 91 S.Ct. at 1439. In recent
years, however, the rule of mutuality has been modified, if not completely
abandoned. Blonder-Tongue, supra, and cases cited therein; P. I. Enterprises,
Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972).

40

Thus, it may be unnecessary for us even to consider whether the respondents in

this action are identical to those in Baldovin. But since the wisdom of the
mutuality rule is still a subject of debate, we think it advisable to state that we
have no doubt that mutuality is present here. Both in Baldovin and in this case,
the Board named the International Longshoremen's Association, AFL-CIO, as a
respondent. In each case, the Board also named one or more local subdivisions
of the ILA. 10 But the injunction requested in Baldovin would have applied to
the ILA nationwide, in every port;11 had the injunction been granted, therefore,
the ILA local named here, as well as the local subdivisions named in Baldovin,
would have been bound by it. The mutuality requirement, as stated in BlonderTongue, is therefore met.

C. Identity of the Cause of Action

41

The Baldovin case, the Mack case, and this case all arise out of a single general
policy of the ILA against the handling of Soviet cargoes and Soviet ships. But
in each case, the Board alleges facts regarding the refusal of a particular ILA
local on a particular date to refer workers to a particular stevedore for the
loading or unloading of particular goods on a particular ship. The Board argues
that these factual distinctions make each case a separate cause of action, so that
a decision in one case does not bar the others. In support of this proposition, the
Board cites Lawlor v. National Screen Service, 349 U.S. 322, 75 S.Ct. 865, 99
L.Ed. 1122 (1955); Kilgoar v. Colbert County Board of Education, 578 F.2d
1033 (5th Cir. 1978); and our opinion in Hadge v. Second General Savings &
Loan, 409 F.2d 1254 (1st Cir. 1969). The district court in Savannah accepted
this reasoning in the Mack case, and it was on this ground that that court held
the action not barred by the Baldovin decision.

42

We have serious doubts about the relevance of the cited cases to these facts. In
each of those cases, a previous judgment was held not to bar an action based on
conduct of the same nature as that originally alleged. But in each case, the
subsequent conduct was broader and more farreaching than the conduct which
led to the original complaint. Here, there is no broadening of the pattern of
conduct. Rather, the conduct in each instance is the same; each ILA local
simply follows the announced policy of the national union when it is asked to
work on Soviet cargo. To be sure, the particular application of union policy
involved in this case had not occurred at the time of the Baldovin suit, and it
had not therefore given rise to a cause of action which could have been sued on
at that time. But the ILA's policy was announced on January 8, 1980, well
before the instigation of the Baldovin suit. In Baldovin, the Board sought to
enjoin that policy and all conduct in furtherance of it. We think, therefore, that
it was that policy, and the resulting pattern of such conduct, which gave rise to
the cause of action in Baldovin, and again in this case.

43

But whether the cause of action is the same in the two cases or not, this case is
barred under the rule of collateral estoppel if the issue decided there is
dispositive here. Accordingly, we move on to consider the application of
collateral estoppel.

D. Collateral Estoppel
44

The district court in Baldovin denied the Board's petition on the ground that the
Board lacked jurisdiction over the dispute because the dispute was not "in
commerce." In this case, the district court was again required to address the

threshold issue of the Board's jurisdiction. If the jurisdictional questions in the

two cases are the same, then the question presented here was litigated and
decided against the Board in Baldovin, and relitigation of the issue is barred by
collateral estoppel.
45

The Board urges, however, that the jurisdictional issue here is not the same as
in Baldovin because the particular ship involved here is of United States
registry, while the particular ship involved there was foreign. The Board seeks
to characterize this distinction as one of "controlling fact," citing Commissioner
v. Sunnen, supra, 333 U.S. at 599-601, 68 S.Ct. at 720-721, so as to escape the
operation of collateral estoppel.

46

We have no doubt that collateral estoppel applies only where the "controlling
facts" are unchanged. But we do not think that the nation of registry of the
particular ship involved is a "controlling fact" under these circumstances. The
district court opinion in Baldovin is quite brief and offers little elaboration of
the court's reasoning. We must therefore look beyond that opinion to discern
which facts were controlling in that case.

47

We look first to the cases relied on by the Baldovin court, Windward Shipping
v. American Radio Association, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195
(1974); American Radio Association v. Mobile Steamship Association, 419
U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974); and National Maritime Union v.
Shippers Stevedoring, 245 NLRB 29 (decided by the Board on September 21,
1979). Windward Shipping and Mobile both involved picketing of foreign ships
by American unions in protest of the working conditions of the foreign crews
aboard those ships. The Supreme Court, focusing on the primary disputes-the
labor disputes between the foreign ships and their crews-held that the Board
lacked jurisdiction over the matters because they were not "in commerce"; state
court injunctions against the picketing were therefore not preempted by the
NLRA. In Mobile, the Court expressly rejected a "bifurcated view" which
could distinguish the effects of the picketing activity-an alleged secondary
dispute-from the underlying primary dispute which gave rise to the picketing.
In Shippers Stevedoring, the board adopted a decision by the Administrative
Law Judge which expressed the view that, under these cases, the Board lacked
jurisdiction over picketing by an American union of a Soviet ship in protest of
that ship's carrying of goods financed by United States government contracts.12

48

It is true that each of these cases involved ships of foreign registry. In

Windward and Mobile, the registry of the ship, along with the domicile of the
workers involved, brought the labor dispute outside the bounds of United States
commerce. But involvement of a foreign ship does not always deprive the

Board of jurisdiction. For example, the Supreme Court has allowed jurisdiction
in the Board over the picketing by an American union of a foreign ship where
the underlying dispute concerned the wages and working conditions of
American longshoremen. ILA Local 1416 v. Ariadne, 397 U.S. 195, 90 S.Ct.
872, 25 L.Ed.2d 218 (1970). We think these cases indicate that the question of
jurisdiction turns not on the registry of the ships, but on the nature and location
of the underlying dispute.13
49

We look also to the record in the Baldovin case and particularly to the position
that the Board took in that case. As we noted in Part II, B, supra, the Board
there sought an injunction against the ILA's nationwide policy and against all
ILA activity, in every port, in furtherance of that policy. The requested relief
made no distinction between United States and foreign ships. In denying the
requested injunction, the Baldovin court refused to enjoin activity related to any
ship, foreign or domestic. Since that court denied the injunction on solely
jurisdictional grounds, we may assume that it intended its jurisdictional
decision to apply to the whole dispute, not just those specific instances of ILA
action related to foreign ships. Otherwise, the Baldovin court could have issued
an injunction applicable to ILA action in regard to United States ships.

50

The results would be anomalous if we were to adopt the contrary view that the
Board urges upon us. If we interpret the Baldovin ruling as applicable only to
foreign ships, we must then address the question of jurisdiction in relation to
the particular facts before us where a ship of United States registry is involved.
If we were then to find jurisdiction in the Board and reverse the district court
on the merits, the district court would be free to issue an injunction against the
ILA's action, but that injunction could apply only to actions related to United
States ships. The ILA would remain free to refuse to handle Soviet cargo
carried by foreign ships, despite the impact of that action on American
stevedores and importers and on the flow of goods in and out of the United
States. But it would be enjoined from taking the same action when the ships
were American, even though the effect of that action on United States
commerce would be the same. We think it unlikely that the Baldovin court
intended to limit its ruling in such a way as to permit that result. In our view,
therefore, the Baldovin decision settled the issue of the Board's jurisdiction
over the ILA's policy with regard to Russian cargoes, and over all union activity
in furtherance of that policy. We need not, and do not, comment on the
correctness of the Baldovin court's ruling on jurisdiction. Our holding here is
limited to an interpretation of the scope of that ruling in relation to this case.

E. Equity

51

The doctrine of res judicata is an equitable one, and a court is not bound to give
res judicata effect to a previous judgment if an inequitable situation would
thereby result. See Sweetheart Plastics v. Illinois Tool Works, 439 F.2d 871
(1st Cir. 1971); 1B Moore's Federal Practice P 0.405(12) at 787. The Board
argues that such inequity would result here, since the charging party in this
particular case would be denied the benefit of injunctive relief against activity
which has severely injured him, without having had the opportunity to exercise
his statutory right to appear and present testimony. We have discussed the role
of the charging party in Part II, B, supra, and need not repeat that discussion
here. We point out that since the facts here are undisputed, loss of the right to
appear and present testimony is not likely to have caused harm. The issue here
is easily posed and remains the same regardless of the identity of the charging
party and the geographical area affected. We see no equitable obstacle to the
application of collateral estoppel as a bar to this action.

52

Vacated and remanded with instructions that the petition be dismissed on the
ground of res judicata.

The directive stated:

"In response to overwhelming demands by the rank and file members of the
Union, the leadership of the ILA today ordered immediate suspension in
handling all Russian ships and all Russian cargoes in ports from Maine to
Texas and Puerto Rico where ILA workers are employed.
This order is effective, across the board on all vessels and all cargoes. Grain
and other foods as well as high valued general freight. However, any Russian
ship now in process of loading or discharging at a waterfront will be worked
until completion.
The reason for this action should be apparent in light of international events
that have affected relations between the U.S. & Soviet Union.
However, the decision by the Union leadership was made necessary by the
demands of the workers.
It is their will to refuse to work Russian vessels and Russian cargoes under
present conditions of the world.
People are upset and they refuse to continue the business as usual policy as
long as the Russians insist on being international bully boys. It is a decision in

which the Union leadership concurs."

2

Baldovin v. ILA, Houston Division, Civil No. 80-259

Mack v. ILA, Savannah Division, CV 480-051

The district court also suggested that the ILA's conduct was a form of political
expression, but the decision does not appear to have been based on the first
amendment

We will use the term "res judicata" to refer to the general concept of the
preclusion of a claim or issue because of a previous judicial determination,
including the doctrine of collateral estoppel

Three cases in other circuits do touch on this question tangentially: all three
suggest, although they do not actually hold, that decisions under section 10(l )
would have the same preclusive effects as any other decisions. Madden v.
Perry, 264 F.2d 169 (7th Cir. 1959); Cosentino v. Local 28, 268 F.2d 648 (8th
Cir. 1959); NLRB v. Acker Industries, 460 F.2d 649 (10th Cir. 1972)

Both Baldovin and Mack are currently on appeal to the Fifth Circuit. But the
possibility remains that this court would, if it were to reach the merits of this
appeal, view the issues differently from that court, so that the inconsistency
between the regions would remain

We have permitted the charging party in this proceeding to file a brief amicus
curiae in this court

In Auto Workers v. Scofield, 382 U.S. 205, 220, 86 S.Ct. 373, 382, 15 L.Ed.2d
272 (1965), the Court observed with reference to unfair labor practice
proceedings that "we think the statutory pattern of the Labor Act does not
dichotomize 'public' as opposed to 'private' interests. Rather, the two interblend
in the intricate statutory scheme." We do not think this language detracts from
our conclusion here; we decline to separate the public and private interests at
stake in section 10(l ) proceedings so as to permit a separate proceeding to
vindicate the private interests of a second charging party where the identical
conduct charged has been considered in a previous section 10(l ) petition
brought by the Board. We note that the Court in Scofield allowed intervention
by the charging party in part to prevent duplicate appeals. Id., at 222 n.20, 86
S.Ct. at 384 n.20. The same consideration of avoiding duplication leads us to
our conclusion here

10

In Baldovin, the South Atlantic & Gulf Coast District, ILA, and ILA Locals
872 and 1273 were also named. Here, ILA Local 799 is named

11

The Board requested the following relief in Baldovin :

"1. That the Court issue an order directing Respondents to appear before this
Court, at a time and placed fixed by the Court, and show cause, if any there be,
why an injunction should not issue enjoining and restraining Respondents, their
officers, representatives, agents, servants, employees, attorneys and all
members and persons acting in concert or participation with them, pending the
final disposition of the matters involved herein pending before the Board, from:
(a) Striking or threatening to strike at or in the vicinity of the premises of
Cargill, Incorporated, or at or in the vicinity of the premises of any other person
engaged in commerce, or in an industry affecting commerce, doing business
with TTT Stevedores of Texas, Inc.; TTT Ship Agencies, Inc.; Sovfracht
Chartering Corporation; or any other person, the owners of the vessel
BELGIUM or the owners of any other vessel at or in the vicinity of the Port of
Houston, Texas, and in ports from Maine to Texas and Puerto Rico where
International Longshoremen's Association, AFL-CIO, workers are employed.
(b) In any manner or by any means, including orders, directions, instructions,
requests or appeals, however given, made or imparted, or by any like or related
acts or conduct, or by permitting any such to remain in existence or effect,
engaging in, or inducing or encouraging any individual employed by TTT
Stevedores of Texas, Inc., or by any other person engaged in commerce or in an
industry affecting commerce to engage in, a strike or refusal in the course of his
employment to use, manufacture, process, transport or otherwise handle or
work on any goods, articles, materials or commodities or to perform any
service, or in any manner or by any means threatening, coercing or restraining
TTT Stevedores of Texas, Inc. or any other person engaged in commerce or in
an industry affecting commerce, where in either case an object thereof is to
force or require TTT Stevedores of Texas, Inc. or any other person, to cease
doing business with Sovfracht Chartering Corporation, or any other person;
and/or to force or require TTT Stevedores of Texas, Inc., or any other person, to
cease using, selling, handling, transporting or otherwise dealing in the products
of Cargill, Incorporated, and/or the Soviet Union, or any other person, or to
cease doing business with Cargill, Incorporated, or any other person; and/or to
force or require Cargill, Incorporated, to cease doing business with the Soviet
Union and/or with TTT Stevedores of Texas, Inc.; TTT Ship Agencies, Inc.; or
any other person, or with the owners of the BELGIUM, or the owners of any
other vessel; and/or to force or require TTT Ship Agencies, Inc., to cease doing
business with Sovfracht Chartering Corporation or with the owners of the
BELGIUM, or with the owners of any other vessel; and/or to force or require
Cargill, Incorporated; TTT Stevedores of Texas, Inc.; TTT Ship Agencies, Inc.;
or any other person; the owners of the BELGIUM or the owners of any other

vessel to cease using, selling, handling, transporting or otherwise dealing in the

products marketed, distributed and sold by members of Kansas Farm Bureau,
Texas Farm Bureau and American Farm Bureau Federation, or to cease doing
business with members of Kansas Farm Bureau, Texas Farm Bureau and
American Farm Bureau Federation, all in furtherance of their boycott of grain
intended for export to the USSR.
2

That upon return of said order to show cause, the Court issue an order enjoining
and restraining Respondents in the manner set forth above

That the Court grant such further and other relief as may be just and proper."

12

The order in Shippers Stevedoring appears to be based on a finding that no

violation of the Act had occurred. But the ALJ's decision, which the Board
adopted, discusses the jurisdictional issue at great length and expresses the
view that no jurisdiction existed, even though it goes on to observe that the
jurisdictional question need not actually be decided

13

We note that Justice Stewart, in his dissent in Mobile, interpreted the majority's
decision in this way. The majority responded by disavowing any intention to
disapprove those circuit court cases that had allowed Board jurisdiction over
secondary boycotts where the primary dispute was outside the United States.
Id., 419 U.S. at 225 n.10, 95 S.Ct. at 415 n.10. But the majority also suggested
quite strongly, in the text of its opinion at 226, that the Board could not exercise
jurisdiction over a secondary boycott where the primary dispute was outside its
jurisdiction