419 U.S.

215
95 S.Ct. 409
42 L.Ed.2d 399

AMERICAN RADIO ASSOCIATION, AFL-CIO, et al.,

Petitioners,
v.
MOBILE STEAMSHIP ASSOCIATION, INC., et al.
No. 73-748.
Argued Oct. 21, 1974.
Decided Dec. 17, 1974.

Syllabus
Respondents, an association representing stevedoring companies, and a
shipper, sought injunctive relief in an Alabama state court against
picketing of a foreign-flag ship by petitioner maritime unions which were
protesting as substandard the wages paid the foreign crewmen who
manned the ship. The trial court issued a temporary injunction, and the
Alabama Supreme Court affirmed. Petitioners contend that the state courts
were without jurisdiction to grant relief, and that the issuance of an
injunction interfered with their free speech rights. Held:
1. The jurisdiction of the Alabama courts was not pre-empted by the
National Labor Relations Act (NLRA). Windward Shipping v. American
Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195. Pp. 219-228.
(a) Even if there is a dispute between petitioners and respondents
independent of petitioners' dispute with foreign-flag ships, it is subject to
state-court disposition unless it satisfies the jurisdictional requirements of
the NLRA. P. 221.
(b) The fact that the state court's jurisdiction is invoked by stevedores and
shippers, rather than by the foreign-ship owners as in Windward, supra,
does not convent into 'commerce' within the meaning of the NLRA's
jurisdictional requirements, activities that plainly were not such in
Windward. Pp. 221-225.
(c) Neither the shipper seeking to ship his products, the stevedores who

contracted to unload the foreign-flag vessel's cargo, nor the longshoremen

employed to do the unloading, were, for the purposes of jurisdiction of the
National Labor Relations Board over a dispute directly affecting the
maritime operations of foreign-flag vessels, 'engaged in or affecting
commerce' within the purview of the NLRA, and therefore petitioners'
picketing did not even 'arguably' constitute an unfair labor practice under
8(b)(4) of the Act, the secondary boycott provision. Pp. 225-228.
2. The Alabama courts' action in enjoining the picketing violated no right
conferred upon petitioners by the First and Fourteenth Amendments,
because that action is well within that 'broad field in which a State, in
enforcing some public policy, whether of its criminal or its civil law, and
whether announced by its legislature or its courts, could constitutionally
enjoin peaceful picketing aimed at preventing effectuation of that policy,'
International Brotherhood of Teamsters, Local 695, A.F.L. v. Vogt, Inc.,
354 U.S. 284, 293, 77 S.Ct. 1166, 1170, 1 L.Ed.2d 1347. Pp. 228-232.
(a) Since the picketing here was for a prohibited purpose, it is not entitled
to protection on the ground that the place where it occurred constituted a
public forum for presentation of lawful communications. Amalgamated
Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308,
88 S.Ct. 1601, 20 L.Ed.2d 603, distinguished. P. 230.
(b) The injunction is supported by a 'valid public policy.' In the context in
which the Alabama Supreme Court stated the public policy to be the
prevention of 'wrongful interference' with respondents' businesses, that
term obviously refers to third parties' efforts to induce employees to cease
performing services essential to the conduct of their employer's business,
third-party participation being critical to picketing being categorized as
'wrongful interference.' Pp. 230-231.
(c) Petitioners' contention that the record fails to support the conclusion
that there was a substantial question whether the picketing constituted
'wrongful interference,' is without merit, since the question whether
evidence is sufficient to make out a cause of action created by state law
and tried in the state courts is a matter for decision by those courts. Pp.
231-232.
291 Ala. 201, 279 So.2d 467, affirmed.
Howard Schulman, New York City, for petitioners.
Frank McRight, Mobile, Ala., for respondent Mobile Steamship
Association, Inc.

Alex F. Lankford, III, Mobile, Ala., for respondent Robert E. Malone.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Petitioners are the six maritime unions which appeared before this Court as
respondents in Windward Shipping (London) Ltd. v. American Radio Assn.,
AFL-CIO, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974). We granted
their petition for certiorari to the Supreme Court of Alabama, 415 U.S. 947, 94
S.Ct. 1468, 39 L.Ed.2d 562, in order to review their contentions that this case
was distinguishable from Windward on the pre-emption issue, and that the
temporary injunction upheld by that court had infringed rights guaranteed to
them under the First and Fourteenth Amendments to the United States
Constitution.1

As in Windward, this case arises from picketing designated to publicize the

adverse impact on American seamen of the operations of foreign-flag carriers
which employ foreign crewmen at wages substantially below those paid to
American seamen. As in Windward, the picketing occurred during 1971, but in
this case it took place in Mobile, Ala., and was directed against the Aqua Glory,
a ship of Liberian registry. The pickets displayed the same signs and distributed
the same literature as they did in Windward,2 and they were subject to the same
instructions.

The picketing in each case also had similar results. In Windward, we observed:
'The picketing, although neither obstructive nor violent, was not without effect.
Longshoremen and other port workers refused to cross the picket lines to load
and unload petitioners' vessels.' 415 U.S., at 108, 94 S.Ct., at 962. Here, the
Supreme Court of Alabama, in affirming a temporary injunction issued by the
Alabama Circuit Court, said of petitioners' activities in Mobile:

'Posting the pickets, as was done on the dock adjacent to the Aqua Glory,
brought about an immediate refusal by the stevedore workers of the locals of
International Longshoremen's Association to cross the picket line of the
appellant unions. About eighty percent of the cargo ships that enter the Port of
Mobile, said under a foreign-flag and are manned by alien crews.'3

* It is apparent from the facts already stated that the Houston picketing in
Windward and the Mobile picketing here were for all practical purposes
identical. Petitioners refer to Windward as 'involving the union petitioners in the
identical national picketing dispute as part of the Committee's program . . ..'
Brief for Petitioners 7 n. 1. But petitioners contend that since the state-court

plaintiffs in this case are not the foreign owners of a picketed ship, as they were
in Windward, but are instead stevedoring companies which seek to service the
ship4 and a shipper who wishes to have his crops loaded on it, the question of
preemption of state-court jurisdiction by the National Labor Relations Act
should be answered differently than it was in Windward.5 Petitioners reason
that respondents could have charged them with an unfair labor practice under
the secondary boycott provision of the National Labor Relations Act, 8(b)(4),
49 Stat. 452, as amended, 29 U.S.C. 158(b)(4), and that since petitioners'
activities were arguably prohibited under that section, the respondents'
exclusive remedy was to seek relief from the National Labor Relations Board.
Cf. San Diego Building Trades Council, Millmen's Union, Local 2020 v.
Garmon 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
6

Petitioners' position in this respect contrasts markedly with their posture in the
Windward litigation. There petitioners, as respondents in this Court, urged that
'peaceful and truthful primary picketing, non obstructive and without trespass
upon private property, by American workers protesting substandard wages and
benefits paid,' are activities 'actually protected by the Act.' Brief for
Respondents in No. 72-1061, O.T.1973, p. 15. They also urged that 'the
American seamen's activities at bar constitutes [sic] typical lawful primary
picketing, sanctioned and protected by the Act, Garner [v. Teamsters Union,
346 U.S. 485 [74 S.Ct. 161, 98 L.Ed. 228 (1953), and Longshoremen v.
Ariadne Co., 397 U.S. 195, 202 90 S.Ct. 872, 25 L.Ed.2d 218 (1970).' Brief for
Respondents in No. 72-1061, O.T.1973, p. 16. Petitioners apparently urged the
same arguments in the Texas Court of Civil Appeals, whose judgment we
reviewed in Windward, because that court stated:

'[A]ppellees' picketing carefully remained within the guidelines for permissible

picketing on the premises of a secondary employer promulgated in Sailor's
Union of the Pacific, 92 N.L.R.B. 547 and adopted in Local 761, Inter. Union
of Elec., Radio and Mach. Wkrs. v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6
L.Ed.2d 592 (1961)'6

Petitioners, having failed to persuade this Court in Windward that their Houston
picketing was protected under 7 of the National Labor Relations Act, 29
U.S.C. 157, now contend that their Mobile picketing was at least arguably a
secondary boycott prohibited by 8(b)(4)(B) of the Act, 29 U.S.C. 158(b)(4)
(B). They would have us hold not only that there is an independent controversy
between petitioner unions, representing American seamen, and the contracting
stevedores represented by respondent, but also that this independent dispute is
subject to the jurisdiction of the Board.

Acceptance of petitioners' argument would result in a rule whereby a state court

had jurisdiction over a complaint for injunction filed by a foreign-ship owner
claiming that picketing activities of a union were interfering with his business
relationships with a contract stevedore, but the same court would have no
jurisdiction where the contract stevedore sought an injunction on precisely the
same grounds. The anomaly of such a result is reason enough to question it, but
we believe that there is a more fundamental flaw in petitioners' claim.

10

Even if there is a dispute between petitioners and respondents which is, in some
semantic sense, independent of petitioners' dispute with foreign-flag ships, that
dispute is subject to state-court disposition unless it satisfies the jurisdictional
requirements of the NLRA. In this regard, we note that a necessary predicate
for a finding by the Board of an unfair labor practice under 8(b)(4)(i) is that
the individual induced or encouraged must be employed by a 'person engaged
in commerce or in an industry affecting commerce.' Similarly, a necessary
predicate for finding an unfair labor practice under 8(b)(4)(ii) is that the
person threatened, coerced, or restrained must have been engaged in 'commerce
or in an industry affecting commerce,' and a necessary predicate for Board
jurisdiction of unfair labor practices under 10(a) of the Act, 29 U.S.C.
160(a) is that they be practice 'affecting commerce.'

11

Petitioners interpret Windward as having done nothing more than establish that
the maritime operations of foreign ships are not 'in commerce.' They assume
that Windward said nothing about either the business activities of persons
seeking to deal with such ships, or about whether, for these purposes, those
activities are 'in commerce' or 'affecting commerce.' Petitioners therefore are
able to state that the requirements of 8(b)(4) and 10 are satisfied because:

12

'Unquestionably, the Association, constituting stevedoring companies

employing longshoremen to load and discharge vessels at the port of Mobile,
Alabama, is an 'employer' engaged in 'commerce' under the Act, and equally
unquestionably, respondent Malone, delivering his soybeans to the dock
elevator, is a 'person' engaged in 'commerce,' under the Act.' Brief for
Petitioners 15-16.

13

We do not believe, however, that the line of cases7 commencing with Benz and
culminating in Windward permit such a bifurcated view of the effects of a
single group of pickets at a single site.

14

In Windward we stated that our task was to determine 'whether the activities . . .
complained of were activities 'affecting commerce' within the meaning of . . .

the National Labor Relations Act,'8 and we concluded that they were not. 415
U.S., at 105-106, 94 S.Ct., at 961, 39 L.Ed.2d 195. We recognized that the
picketing activities did not involve the inescapable intrusion into the affairs of
foreign ships that was present in Benz and Incres, but we went on to say that the
latter cases 'do not purport to fully delineate the threshold of interference with
the maritime operations of foreign vessels which makes the LMRA
inapplicable.' 415 U.S., at 114, 94 S.Ct., at 965. We further observed:
15

'At the very least, the pickets must have hoped to exert sufficient pressure so
that foreign vessels would be forced to raise their operating costs to levels
comparable to those of American shippers, either because of lost cargo
resulting from the longshoremen's refusal to load or unload the vessels, or
because of wage increases awarded as a virtual self-imposed tariff to regain
entry to American ports. Such a large scale increase in operating costs would
have more than a negligible impact on the 'maritime operations' of these
foreign ships, and the effect would be by no means limited to costs incurred
while in American ports. Unlike Ariadne, the protest here could not be
accommodated by a wage decision on the part of the shipowners which would
affect only wages paid within this country.'9 Ibid. (Emphasis supplied.) While
we thus spoke in Windward of the effect of the Houston pickets on the
maritime operations of foreign ships, the quoted passage shows that we fully
recognized that this effect would not be produced solely by the pickets and the
messages carried by their signs. It would be produced in large part by the
refusal of American workmen employed by domestic stevedoring companies to
cross the picket line in order to load and unload cargo coming to or from the
foreign ships. Since Windward held that the Houston picketing was not in or
affecting commerce, it would be wholly inconsistent to now hold, insofar as
concerns Board jurisdiction over a complaint by respondents, that the employer
of the longshoremen who honored the picket line, or the shipper whose goods
they did not handle, was in or affecting commerce.

16

That we found it unnecessary to expressly state this conclusion in Windward

suggests not the point is an undecided one, but that such a conclusion inevitably
flows from the fact that the response of the employees of the American
stevedores was a crucial part of the mechanism by which the maritime
operations of the foreign ships were to be affected. The exaction of the
'selfimposed tariff to regain entry to American ports' does not depend upon
American shippers heeding the message on the picket signs and declining to
ship their cargoes in foreign bottoms. The same pressure upon the foreign-flag
owners will result if longshoremen refuse to load or unload their ships. The
effect of the picketing on the operations of the stevedores and shippers, and
thence on these maritime operations, is precisely the same whether it be

complained of by the foreign-ship owners or by persons seeking to service and

deal with the ships. The fact that the jurisdiction of the state courts in this case
is invoked by stevedores and shippers does not convert into 'commerce'
activities which plainly were not such in Windward.10
17

Our dissenting Brethren contend that our disposition is inconsistent with the
Court's decision in Hattiesburg Building and Trades Council v. Broome, 377
U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172 (1964), and with the Board's decision
in Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547
(1950).Hattiesburg dealt with the quite different question of applying the
Board's own limitation of its statutory jurisdiction to those case which have
'asubstantial effect on commerce.' 23 N.L.R.B.Ann.Rep. 7 (1958) (emphasis
added). The Board had promulgated a series of administratively established
standards, in effect ceding to state courts and agencies disputes involving
entities which admittedly 'affected commerce,' but whose volume of interstate
business was not 'sufficiently substantial to warrant the exercise of [Board]
jurisdiction.' 29 U.S.C. 164(c). The standards provided that they could be
'satisfied by reference to the business operations of either the primary or the
secondary employer.' Hattiesburg, supra, 377 U.S., at 126, 84 S.Ct., at 1157.
Because of this provision, the Board had not in fact ceded its jurisdiction over
the particular dispute that had been presented to the Mississippi courts.
InHattiesburg this Court did no more than enforce the natural consequence of
this fact by holding that Garmon deprived the state courts of jurisdiction. We
find nothing in that holding inconsistent with what we say or hold here.
CertainlyHattiesburg does not, as Mr. Justice STEWART's dissent would have
it, stand for the proposition that a secondary employer's domestic business
activities may be the basis for Board jurisdiction where the primary dispute is
beyond itsstatutory authority over unfair labor practices 'affecting commerce.'
29 U.S.C. 160(a).

18

That dissent's treatment of Moore Dry Dock, supra, reads a great deal more into
the 1950 Board decision than its language and analysis can support. The
decision itself contains no reference whatever to the jurisdiction of the Board
over the primary employer, the foreign-flag vessel Phopho, and neither the
decision nor the Trial Examiner's report considered the jurisdictional challenge
presently confronting this Court. The Trial Examiner's report, from which that
dissenting opinion quotes, did state that the Board, in an apparently unreported
determination, had previously dismissed a petition for election aboard the
Phopho, 92 N.L.R.B. 547, 560-561. The report later acknowledged that the
Board had 'left somewhat obscure the precise legal basis' of its jurisdictional
ruling, a comment which was evoked by the contention that because the
primary employer was 'clearly engaged in commerce,' the ruling must have

been based on a different jurisdictional defect. Id., at 568. This Court in Benz v.
Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957),
not only noted that Moore Dry Dock involved a different situation, but also
rather pointedly stated: 'We need only say that these cases are inapposite,
without, of course, intimating any view as to their result.' 353 U.S., at 143 n. 5,
77 S.Ct., at 702. A 1950 Board precedent such as this can scarcely be regarded
as controlling when it is clearly contrary to the thrust of this Court's BenzWindward line of cases.
19

Petitioner rely on Local Union No. 25 of International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. Y., N. H.
& H. R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166 (1956), and Plumbers,
Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298, A.
F. of L. v. County of Door, 359 U.S. 354, 79 S.Ct. 844, 3 L.Ed.2d 872 (1959),
for the proposition that even though the Board may not have jurisdiction over
the primary labor relations of a party which is excluded from the Act's
definition of 'employer,'11 it is nonetheless competent to consider secondary
disputes involving such a party. In Teamsters Union, supra, a railroad was held
to be barred from seeking relief in the state courts against a secondary boycott.
The Court held that while the railroad was not a statutory 'employer,' it was
nonetheless a 'person' protected by 8(b)(4). A similar result was reached in
Door County, supra, in which a non-'employer' county sought state court relief,
not with respect to activities of its own employees, but with respect to a claimed
secondary boycott arising from picketing against a nonunion subcontractor
working on an addition to the county courthouse. While these cases establish
the proposition that an entity which is not within the Act's definition of
'employer' may nonetheless be a 'person' for purposes of protection against
secondary boycotts, neither they nor any other case decided by this Court
suggests that the Board has jurisdiction of 8(b)(4) complaints if the alleged
unfair labor practice does not affect commerce. Indeed, in Door County, supra,
the Court pointedly inquired whether the out-of-state origin of construction
materials was sufficient to establish the jurisdictionally required effect on
interstate commerce. 359 U.S., at 356, 79 S.Ct., at 845.

20

Here, neither the farmer seeking to ship his soybeans, the stevedores who
contracted to unload the cargo of the foreign-flag vessel, nor the longshoremen
whom the stevedores employed to carry out this undertaking, were for these
purposes engaged in or affecting commerce within the purview of the National
Labor Relations Act. Therefore the petitioners' picketing did not even 'arguably'
violate 8(b)(4)(B) of that Act. Since Congress did not intend to strain through
the filament of the NLRA picketing activities which so directly affect the
martime operations of foreign vessels, we hold that the Alabama courts were

competent to apply their own law in resolving the dispute between petitioners
and respondents unless, as petitioners claim, such a resolution violated
petitioners' rights under the First and Fourteenth Amendments.
II
21

After concluding that the state courts had jurisdiction, the Supreme Court of
Alabama considered whether the picketing was protected by the First and
Fourteenth Amendments. Relying on International Brotherhood of Teamsters,
Local 695, A.F.L. v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347
(1957), it concluded that if the picketing compromised valid public policies, it
was not protected by its putative purpose of conveying information. The court
therefore thought that the matter narrowed to whether or not the picketing had a
purpose or objective to 'wrongfully interfere' with respondents' businesses.
Recognizing that the unions were appealing a temporary injunction, issued as a
matter of equitable discretion to preserve the status quo pending final resolution
of the dispute, the court inquired only whether there was evidence of a
prohibited purpose sufficient to establish that the trial judge had not abused the
'wide discretion' he possesses in such matters. The court found such evidence in
the testimony of a local union official charged with carrying out the picketing.
He had expressed the hope that union men would not cross the lines, that the
port would become cluttered with foreign ships unable to load or unload, and
that the docks would be shut down. On this basis the court concluded that a
substantial question was presented as to whether the picketing had a prohibited
purpose, and that the trial judge had not abused his discretion.

22

Petitioners repeat their First and Fourteenth Amendment arguments before this
Court. They contend that the picketing was expressive conduct informing the
public of the injuries they suffer at the hands of foreign ships, and 'imploring
the public' to "Buy American' or 'Ship American." Brief for Petitioners 21. This
conduct, they contend, constitutes 'the lawful exercise of protected fundamental
rights of free speech,' and is thus not subject to injunction.

23

We think this line of argument is foreclosed by our holding in Vogt, supra.

There the Court, in an opinion by Mr. Justice Frankfurter, reviewed the cases in
which we had dealt with disputes involving the interests of pickets in
disseminating their message and of the State in protecting various competing
economic and social interests. Vogt endorsed the view that picketing involves
more than an expression of ideas, 354 U.S., at 289, 77 S.Ct., at 1168, and
referred to our 'growing awareness that these cases involved not so much
questions of free speech as review of the balance struck by a State between
picketing that involved more than 'publicity' and competing interests of state

policy.' Id., at 290, 77 S.Ct. at 1169. The Court concluded that our cases
'established a broad field in which a State, in enforcing some public policy,
whether of its criminal or its civil law, and whether announced by its legislature
or its courts, could constitutionally enjoin peaceful picketing aimed at
preventing effectuation of that policy.' Id., at 293, 77 S.Ct., at 1171. We believe
that in the case now before us Alabama's interference with petitioners' picketing
is well within that 'broad field.'
24

Petitioners seek to escape from Vogt in three ways. First, they contend that this
case is squarely controlled by Amalgamated Food Employees Union, Local 590
v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603
(1968). In that case, claim petitioners, picketing 'identical as at bar, [designed]
to peacefully and truthfully publicize substandard wages and concomitantly
request the public not to patronize the picketed entity,' was held to be protected.
Brief for Petitioners 20. In rejecting this contention, we need only point out that
Logan Valley concerned the location of picketing, not its purpose; indeed, it
was on exactly this basis that the Logan Valley Court distinguished the line of
cases culminating in Vogt. 391 U.S., at 314, 88 S.Ct., at 1606. Logan Valley
established only that in some circumstances private business property can be so
thoroughly clothed in the attributes of public property that it may not be
completely closed as a public forum to those who wish to present otherwise
lawful communications.

25

Petitioners' second argument is that the injunction here is not supported by a

'valid public policy,' as required by Vogt. They point out that while the
Alabama Supreme Court stated the public policy to be the prevention of
'wrongful interference' with respondents' businesses, it did not expressly define
that term. We, however, think it obvious that in this context 'wrongful
interference' refers to efforts by third parties to induce employees to cease
performing services essential to the conduct of their employer's business. That
third-party participation is critical to picketing being categorized as 'wrongful
interference' is clear from Pennington v. Birmingham Baseball Club, 277 Ala.
336, 170 So.2d 410 (1964), a case cited by the Alabam Supreme Court in its
opinion in this case.

26

In Pennington the Supreme Court of Alabama indicated that the state policy
against 'wrongful interference' is quite analogous to the federal policy of
prohibiting secondary boycotts, and is based on similar considerations. The
State's policy also appears to be based on the state interest in preserving its
economy against the stagnation that could be produced by pickets' disruption of
the businesses of employers with whom they have no primary dispute. At
Mobile the picketing threatened to eliminate the 70% to 80% of the stevedores'

business that depended on foreign shipping, and to cause serious losses for
farmers whose agricultural crops required immediate harvesting and shipping.12
Under Vogt, supra, the State may prefer these interests over petitioners'
interests in conveying their 'Ship American' message through the speech-plus
device of dockside picketing.
27

Petitioners' final contention is that the record fails to support the conclusion
that a substantial question existed as to whether the picketing constituted
'wrongful interference' under Alabama law. The question of whether evidence
is sufficient to make out a cause of action created by state law and tried in the
state courts is a matter for decision by those courts. Insofar as petitioners'
argument on this score may be read to suggest that the evidence before the
Alabama court would not support a finding that their activities were such as
could be enjoined under Vogt, supra, we reject it. Petitioners seem to argue that
the Alabama courts were bound by the statements of purpose appearing on the
pickets' signs and literature, and that in any event one local official's statements
of his hopes and expectations as to the picketing's effect could not override
those stated purposes. This argument ignores the wide latitude open to triers of
fact to make factual determinations on the basis of rational inferences which
arise from the nature, location, and effect of picketing. See Vogt, supra, 354
U.S. at 286, 295, 77 S.Ct., at 1167, 1171; Local Union No. 10, United
Association of Journeymen, Plumbers and Steamfitters of United States and
Canada of A.F.L. v. Graham, 345 U.S. 192, 197-200, 73 S.Ct. 585, 587-589, 97
L.Ed. 946 (1953).

28

Concluding that the jurisdiction of the Alabama courts in this case was not preempted by the National Labor Relations Act, and that the action of those courts
in enjoining the picketing at Mobile violated no right conferred upon petitioners
by the First and Fourteenth Amendments, we affirm the judgment of the
Supreme Court of Alabama.

29

Affirmed.

30

Mr. Justice DOUGLAS, dissenting.

31

I agree with my Brother STEWART that the dispute in the present case is
within the jurisdiction of the National Labor Relations Board and that that
jurisdiction is exclusive of state jurisdiction. The foreign-flag ship involved in
the present controversy is Liberian. Hence I add a few observations generated
by Noe l Mostert's Supership (1974) discussing the problems of the big new oil
tankers and their vast pollution of the oceans of the world. He puts Liberian-

flag ships in the following perspective:

32

'Liberia now has the world's largest merchant marine, followed by Japan and
Britain, and her lead is rapidly increasing; flag of convenience fleets have
regularly grown at rates more than twice those of world fleets as a whole.
Liberia and Panama together now own, on paper, nearly a quarter of world
shipping. Tankers dominate these expatriate fleets.

33

'Thirty-five to 40 percent of the Liberian tonnage is American-owned, and an

additional 10 percent of it is American-financed, which helps explain where the
American merchant fleet, in steady decline since the end of the war, has taken
itself. According to law, American-flag ships must be built in the United States
and must be three-quarters manned by Americans. American shipbuilding costs
used to be double those elsewhere (inflation abroad has helped make them
competitive again), and American seamen's wages are still higher than
elsewhere. . . .

34

'Flag of convenience operators often say that their ships, especially many of
those under the Liberian flag, are among the largest, best-equipped, and most
modern in the world. This may be true. But ships are only as good as the men
who run them, and the record is not impressive. Old ships traditionally have a
higher casualty rate than new ones. Liberian losses between 1966 and 1970 not
only averaged twice as high as those of the other major maritime nations, but,
contrary to the rule, the ships they were losing were on the whole new ones,
certainly newer than the ones lost by the other principal merchant marines: the
average age of Liberian losses in that four-year period was 8.7 years, while that
of the Japanese and Europeans averaged 12 years.

35

'To a disconcerting degree, oil cargoes have been delivered in recent years by
improperly trained and uncertificated officers aboard ships navigating with
defective equipment.' Id., at 5859.

36

While the Liberian-flag vessel in the present case was not an oil tanker, the
quoted passages demonstrate the scope of the public interest of our people in
keeping marine traffic in more responsible hands than those which the 'flag of
convenience' commonly uses. No public issue is today more important, at least
to the life of the oceans of the world and the well-being of our own working
force. Large national interests ride on today's decision. Congress, in this type of
case, has appropriately made the National Labor Relations Board the exclusive
arbiter of the present controversy, as my Brother STEWART convincingly
demonstrates. I accordingly would reverse the judgment below.

37

Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice
BRENNAN, and Mr. Justice MARSHALL join, dissenting.

38

The issue in the present case is quite different from the issue decided last Term
in Windward Shipping (London) Ltd. v. American Radio Assn., 415 U.S. 104,
94 S.Ct. 959, 39 L.Ed.2d 195. Because the dispute in this case clearly 'affects
commerce' and thus falls within the exclusive reglatory power of the National
Labor Relations Board, I would reverse the judgment before us.

39

In Windward Shipping, the owners and managing agents of two foreign-flag

vessels sought injunctive relief in state courts in Texas to bar picketing of their
vessels by several American maritime unions. The unions were attempting to
publicize the competitive advantage enjoyed by foreign-flag vessels because of
the substantial disparity between foreign and domestic seamen's wages. The
vessels' owners and managing agents asked the state courts to enjoin the
picketing as tortious under Texas law. The primary basis for this claim was that
the picketing sought to induce the foreign-flag vessel owners and their foreign
crews to break pre-existing contracts. The Texas courts concluded that they
lacked jurisdiction to consider the complaint of interference with contract
because the dispute between the foreign-flag shipowners and the American
unions was 'arguably' within the jurisdiction of the National Labor Relations
Board.

40

In reversing the judgment of the Texas Court of Civil Appeals, this Court
reaffirmed earlier cases that had recognized that 'Congress, when it used the
words 'in commerce' in the [Labor Management Relations Act], simply did not
intend that Act to erase longstanding principles of comity and accommodation
in international maritime trade.' 415 U.S. at 112-113, 94 S.Ct., at 964. In those
earlier cases the Court had concluded that maritime operations of foreign-flag
ships employing alien seamen are not in 'commerce' within the meaning of
2(6) of the National Labor Relations Act, as amended by the LMRA, 29 U.S.C.
152(6). Therefore, disputes affecting those operations do not 'affect
commerce,' and are not within the jurisdiction of the Board. See Benz v.
Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709;
McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547;
Incres S. S. Co. v. Maritime Workers, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d
557.

41

Although the union activity sought to be enjoined by the foreign-flag

shipowners in Windward Shipping did not involve the same degree of intrusion
into the internal affairs of foreign vessels that was present in Benz, McCulloch,
and Incres, the Court concluded that the economic impact upon foreign

shipping from the unions' conduct might severely disrupt the maritime
operations of the foreign vessels. 'Virtually none of the predictable responses of
a foreign shipowner to picketing of this type,' the Court noted, 'would be
limited to the sort of wage cost decision benefitting American workingmen
which the LMRA was designed to regulate.' 415 U.S. at 115, 94 S.Ct., at 965.
Cf. International Longshoremen's Local 1416, A.F.L.C.I.O. v. Ariadne
Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218. Accordingly, the
Court held that the Texas courts had jurisdiction over the foreign shipowners'
complaint that the union activity was interfering with pre-existing contracts
between the owners and their crews.
42

The question presented by this case, however, is not whether state-court

jurisdiction over a dispute between owners of foreign-flag vessels and
American maritime unions is outside the scope of the Act, as it was in
Windward Shipping. Rather, the question is whether state courts have
jurisdiction over a complaint by an association of American stevedoring
companies that secondary pressure caused by the picketing of American
maritime unions constituted a wrongful interference with the American
companies' right to carry on their lawful business. Neither the language of the
Act nor the principles of comity underlying our decision in Windward Shipping
support the Court's conclusion that this dispute between American employers
and American unions is outside the jurisdiction of the Labor Board.

43

As in Windward Shipping, the labor dispute in this case began when six
American maritime unions picketed a foreign vessel to publicize the adverse
consequences to American seamen of the low wages paid by the foreign
shipowner. As a result of the picketing, American longshoremen and other
workers employed by the member companies of the Mobile Steamship
Association refused to service the foreign-flag vessel. It was this allegedly
unlawful secondary pressure generated by the maritime unions' picketing that
the Mobile Steamship Association sought to enjoin in state court as a tortious
interference with its right to contract and to carry on its lawful business.

44

The allegedly tortious secondary pressure that formed the basis for Mobile
Steamship Association's state-court complaint is precisely the type of concerted
activity made subject to Board regulation by 8(b)(4)(i)(B) of the National
Labor Relations Act, as amended, 73 Stat. 542, 29 U.S.C. 158(b)(4)(i)(B).
That section, designed to shield neutral third parties from the adverse impact of
labor disputes in which they are not involved, makes it an unfair labor practice
for a labor organization 'to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his employment to use,

manufacture, process, transport, or otherwise handle or work on any goods,

articles, materials, or commodities . . . where . . . an object thereof is . . . forcing
or requiring any person . . . to cease doing business with any other person . . ..'
45

I cannot agree with the Court's conclusion that the secondary dispute between
the American maritime unions and the Mobile Steamship Association that is
the basis for this lawsuit fails to satisfy all the jurisdictional requirements of
8(b)(4)(B).1 Windward Shipping and the cases on which it relied have
established that the maritime operations of foreign-flag ships employing alien
seamen are not in 'commerce' within the meaning of the Act. Accordingly, we
held in those cases that labor disputes affecting those operations do not 'affect
commerce,' so far as the Act is concerned. But those decisions cannot be read
to suggest that American stevedoring companies whose American employees
load and unload both American-and foreign-flag vessels in American ports are
not 'engaged in commerce or in an industry affecting commerce.' Indeed, in
International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping
Co., 397 U.S., at 200, 90 S.Ct., at 874, we held that longshoremen servicing
foreign-flag vessels in American ports are in 'commerce' within the meaning of
2(6) of the Act, and thus subject to the regulatory power of the Board.
Consequently, stevedoring companies employing such longshoremen must be
'engaged in commerce or in an industry affecting commerce' within the
meaning of 8(b)(4)(B), and a labor dispute affecting their operations
necessarily 'affects commerce' within the meaning of the Act.

46

The Court's contrary conclusion appears to be based on the premise that it

would be 'wholly inconsistent' to hold that the unions' picketing was not
'affecting commerce' so far as the primary dispute with the foreign-flag
shipowner was concerned but was 'affecting commerce' in the secondary
dispute here involved. Ante, at 224. The Court does not indicate that a
secondary dispute between the maritime unions and the Mobile Steamship
Association could never 'affect commerce' within the meaning of the Act,
unlike the Windward Shipping dispute between the unions and the foreign
shipowners which would never 'affect commerce.'

47

If the maritime unions had a primary dispute with American-flag shipowners,

that dispute would clearly 'affect commerce' within the meaning of the Act, and
would thus clearly fall within the Board's regulatory power. To avoid
inconsistency the Court would presumably conclude that a secondary dispute
between stevedoring companies and maritime unions in such a situation would
also 'affect commerce.' The Court would thus make the determination whether
an American stevedoring company was 'engaged in an industry affecting
commerce,' the 8(b)(4)(B) jurisdictional requirement, depend entirely on

whether in a particular case a primary labor dispute to which the stevedoring

company was not privy was between an American union and an American-flag
shipowner or an American union and a foreign-flag shipowner. 'The anomaly of
such a result is reason enough to question it . . ..' Ante, at 221.
48

More importantly, the Court's conclusion that this secondary dispute between
an American employer and American unions does not affect commerce because
the primary dispute between the unions and foreign-flag shipowners is not
within the Board's jurisdiction squarely conflicts with our decision in
Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126, 84 S.Ct.
1156, 12 L.Ed.2d 172. In that case, an employer subjected to secondary
pressure brought suit in state court to enjoin picketing at its premises. After
finding that the primary employer was not in 'commerce' within the meaning of
the Act, the state court ruled that the pre-emption doctrine of San Diego
Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S.
236, 79 S.Ct. 773, 3 L.Ed.2d 775 was not applicable. The state court then
enjoined the secondary picketing of the union. This Court unanimously
reversed that judgment, holding that the record clearly showed that 'the
secondary employer's operations met the [Board's] jurisdictional requirements.
Since the union's activities in this case were arguably an unfair labor practice,
the state court had no jurisdiction to issue the injunction.' 377 U.S., at 127, 84
S.Ct., at 1157 (emphasis added; citations omitted).

49

The unanimous holding in Broome that exclusive Board jurisdiction over a

secondary dispute exists although the primary dispute did not 'affect commerce'
within the meaning of the Act finds solid support in the language of 8(b)(4)
(B) itself. The section expressly requires that the neutral, secondary employer
be 'engaged in commerce or in an industry affecting commerce.' However, it
requires only that the primary object of the secondary pressure be a 'person.' As
defined by 2(1) of the Act, 29 U.S.C. 152(1), there is no requirement that a
'person,' which includes 'individuals, labor organizations, partnerships,
associations, [and] corporations,' either be 'engaged in commerce or in an
industry, affecting commerce,' or otherwise be within the jurisdiction of the
Act. See Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and
Apprentices of Local 298 A.F. of L. v. County of Door, 359 U.S. 354, 79 S.Ct.
844, 3 L.Ed.2d 872 (governmental unit); Local Union No. 25. of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
v. New York, N.H. & H.R.R., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166
(railroad). Thus, the fact that the foreign-flag vessel which was the primary
object of the unions' picketing activity was not in 'commerce' cannot stand as a
bar to the Board's exercise of jurisdiction over the secondary dispute in this
case.

50

Neither considerations of comity nor a 'reluctance to intrude domestic labor law

willy-nilly into the complex of considerations affecting foreign trade,'
Windward Shipping (London) Ltd. v. American Radio Assn., 415 U.S., at 110,
94 S.Ct. at 963, 39 L.Ed.2d 195, justifies the Court's disregard of the clear
language of 8(b)(4)(B) or its failure to follow the Broome decision. The
dispute before the Alabama courts did not involve the maritime operations of
the foreign-flag vessel that was the primary target of the unions' activity. The
ship-owners were not parties to the state-court lawsuit. The injunction approved
by the Alabama Supreme Court is concerned solely with union interference
with operations and contractual relations of the Mobile Steamship Association
at the Port of Mobile. That one of the contractual relationships allegedly
interfered with was between members of the Association and a foreign-flag
vessel is not apparent from the face of the state-court injunction.2

51

In short, the dispute between American workingmen and unions and their
American employers was well within the boundaries of the Act as we have
defined those boundaries in Windward Shipping, Benz, McCulloch, and Incres.
As such, it is indistinguishable from a number of secondary boycott cases over
which the Board has exercised its exclusive jurisdiction. For example, in
Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, the Board
considered charges by an American drydock owner that union picketing of a
Panamanian ship tied up at the drydock constituted unlawful secondary
activity. The union was picketing in an attempt to be recognized as the
bargaining representative of the Panamanian shipowner's crew. Prior to the
Board's consideration of the secondary dispute, the union had filed a petition
for certification with the Regional Director of the NLRB. The petition was
dismissed "inasmuch as the internal economy of a vessel of foreign registry and
ownership is involved." Upon appeal, the Board sustained the Regional
Director's action on the ground that "upon the facts presently existing in this
case, it does not appear that the Board has jurisdiction over the [e]mployer."
Id., at 560-561. Notwithstanding the Board's refusal to exercise jurisdiction
over the primary dispute because it involved a foreign-flag vessel, the Board
assumed jurisdiction over the secondary dispute between the union and the
drydock owner. This Court in Benz observed that the Board's assumption of
jurisdiction over the secondary dispute in Moore Dry Dock was very different
from an attempt to assert jurisdiction over the primary dispute involving the
foreign-flag shipowner, Benz v. Compania Naviera Hidalgo, 353 U.S., at 143
n. 5, 77 S.Ct., at 702, 1 L.Ed.2d 709.3

52

Because the secondary dispute in this case implicates only American employers
and their American employees, following the literal language of 8(b)(4)(B)
and recognizing the Board's exclusive jurisdiction over the dispute would not in

any way undermine the principles of comity emphasized in our decision in

Windward Shipping. The Board will only decide whether the secondary effects
of the dispute are prohibited by 8(b)(4)(B). Exercise of this jurisdiction will
not 'thrust the National Labor Relations Board into 'a delicate field of
international relations." International Longshoremen's Assn. Local 1416 v.
Ariadne Shipping Co., 397 U.S., at 199, 90 S.Ct., at 874, 25 L.Ed.2d 218.
Certainly a Board decision that secondary pressure violated 8(b)(4)(B) would
not risk interference with international maritime trade. Nor would a decision
that the secondary pressure did not violate 8(b)(4)(B) endanger the foreignflag shipowners' interests in preserving the integrity of their maritime
operations from the impact of the unions' picketing. These interests are fully
protected under Windward Shipping by permitting the foreign shipowner to
seek an injunction in state court.
53

Where activities by parties subject to the regulatory power of the National

Labor Relations Board are 'arguably' prohibited by 8 of the National Labor
Relations Act, the general rule is that the jurisdiction of the Board is exclusive,
pre-empting both federal-and state-court jurisdiction. San Diego Building
Trades Council v. Garmon, 359 U.S., at 245, 79 S.Ct., at 779-780; see
International Longshoremen's Local 1416 v. Ariadne Co., supra, 397 U.S., at
201-202, 90 S.Ct., at 875-876 (White J., concurring). Despite this rule the
Solicitor General has suggested as amicus curiae that we recognize concurrent
jurisdiction in state courts and the Board to enjoin secondary conduct when the
primary dispute involves a foreign-flag vessel. Congress adopted such a
proposal for concurrent state-court jurisdiction to award damages for conduct
that violates 8(b)(4). 303, Labor Management Relations Act, as amended,
29 U.S.C. 187; see Local 20, Teamsters, Chauffeurs & Helpers Union v.
Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280. But Congress expressly
rejected a proposal for a comparable exception to the general rule of exclusive
jurisdiction for complaints seeking injunctive relief against secondary conduct
arguably prohibited by 8(b)(4).4 The only distinction between the amendment
providing for general concurrent jurisdiction over secondary conduct rejected
by Congress and the scheme suggested by the Government is that the Solicitor
General would limit concurrent state-court jurisdiction to secondary disputes in
which the primary employer was a foreign-flag shipowner.Windward Shipping
fully protects the interests of these shipowners in maintaining the integrity of
the maritime operations of their vessels by permitting them to seek state-court
injunctions. Consequently, this distinction cannot justify overruling the
congressional determination that American employers who enjoy the protection
of 8(b)(4) should be limited to securing injunctive relief through the Board.

54

The Solicitor General also argues that there is no justification for the pre-

emption doctrine in cases involving secondary disputes where the primary

dispute is outside the jurisdiction of the Board. That position, of course,
directly conflicts with Hattiesburg Building & Trades Council v. Broome, 377
U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172, where this Court, as previously noted,
reversed a state-court injunction directed against secondary conduct, holding
the pre-emption doctrine applicable even though the Board had no jurisdiction
over the primary dispute.
55

Moreover, even though the primary dispute is outside the Board's jurisdiction,
there is a continuing need to avoid development of conflicting rules of
substantive law governing concerted secondary conduct. Through initial
passage and subsequent amendment of 8(b)(4)(B), Congress has clearly stated
that certain types of secondary activity are illegal without regard to the identity
of the primary employer. But just as deliberately, Congress has chosen not to
prohibit resort to certain types of secondary pressure. If the Alabama law of
secondary boycotts can be applied to proscribe conduct that Congress decided
not to prohibit when it enacted 8(b)(4)(B), 'the inevitable result would be to
frustrate the congressional determination to leave this weapon of self-help
available, and to upset the balance of power between labor and management
expressed in our national labor policy. 'For a state to impinge on the area of
labor combat designed to be free is quite as much an obstruction of federal
policy as if the state were to declare picketing free for purposes or by methods
which the federal Act prohibits." Local 20, Teamsters, Chauffeurs & Helpers
Union v. Morton, 377 U.S., at 260, 84 S.Ct., at 1258; quoting Garner v.
Teamsters, Chauffeurs and Helpers Local Union, No. 776, 346 U.S. 485, 500,
74 S.Ct. 161, 171, 98 L.Ed. 228.

56

The need to avoid conflicting rules of substantive law in the labor relations area
and the desirability of leaving the development of such rules to the National
Labor Relations Board, the agency created by Congress for that purpose, is a
'primary justification for the preemption doctrine.' Vaca v. Sipes, 386 U.S. 171,
180, 87 S.Ct. 903, 912, 17 L.Ed.2d 842. Because the secondary activity of the
maritime unions challenged by the Mobile Steamship Association 'arguably'
violates 8(b)(4)(B) of the Act, that need is fully present in the instant case.

57

In sum, the dispute between the American unions and the American
stevedoring companies in this case clearly 'affects commerce' within the
meaning of the Act and thus falls within the exclusive regulatory power of the
National Labor Relations Board. The judgment of the Alabama Supreme Court
should, therefore, be reversed.

The decision of the Supreme Court of Alabama is reported at 291 Ala. 201, 279
So.2d 467 (1973). Because that court validated only a temporary injunction,
and remanded for trial on the merits, an issue has been raised as to our
jurisdiction to consider this case. We think that Local No. 438, Construction
and General Laborers Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d
514 (1963), is conclusive of the finality of the judgment below for the purposes
of 28 U.S.C. 1257.

The pickets carried signs which read:

'ATTENTION TO THE PUBLIC THE WAGES AND BENEFITS PAID
ABOARD THE VESSEL [name of vessel] ARE SUBSTANDARD TO THOSE OF THE AMERICAN SEAMEN.
THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARD
AND THE LOSS OF OUR JOBS.
PLEASE DO NOT PATRONIZE [THIS VESSEL].
HELP THE AMERICAN SEAMEN.
WE HAVE NO DISPUTE WITH OTHER VESSELS AT THIS SITE.'
[Printed names of the six unions.] App. 6a. They distributed literature which
stated:
'To the PublicAmerican Seamen have lost approximately 50% of their jobs in
the past few years to foreign flag ships employing seamen at a fraction of the
wages of American Seamen.
'American dollars flowing to these foreign shipowners operating ships at wages
and benefits substandard to American Seamen, are hurting our balance of
payments in addition to hurting our economy by the loss of jobs.
'A strong American Merchant Marine is essential to our national defense. The
fewer American flag ships there are, the weaker our position will be in a period
of national emergency.
'PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS,
HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY
HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE.

'Our dispute here is limited to the vessel picketed at this site, the S. S. _____'
Id., at 7a.
[Printed names of the six unions.]
3

291 Ala., at 205, 279 So.2d, at 470.

The stevedoring companies appear here through their bargaining representative,

Mobile Steamship Association, Inc.

Petitioners also suggest that the result should be different because Windward
did not involve vessels which, while flying foreign flags, were American
owned. Petitioners do not, however, direct our attention to any evidence in the
record as to the ownership of the Agua Glory. In any event, we think this factor
irrelevant, in light of McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10, 19, 83 S.Ct. 671, 676, 9 L.Ed.2d 547 (1963).

Windward Shipping (London) Ltd. v. American Radio Assn., 482 S.W.2d 675,
678 (1972).

Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709
(1957); McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9
L.Ed.2d 547 (1963); Incres S.S. Co. v. International Maritime Workers Union,
372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963).

The relevant definitions appear in 29 U.S.C. 152(6) and (7):

'(6) The term 'commerce' means trade, traffic, commerce, transportation, or
communication among the several States, or between the District of Columbia
or any Territory of the United States and any State or other Territory, or
between any foreign country and any State, Territory, or the District of
Columbia, or within the District of Columbia or any Territory, or between
points in the same State but through any other State or any Territory or the
District of Columbia or any foreign country.
'(7) The term 'affecting commerce' means in commerce, or burdening or
obstructing commerce or the free flow of commerce, or having led or tending to
lead to a labor dispute burdening or obstructing commerce or the free flow of
commerce.'

Our Brother STEWART suggests in dissent that International Longshoremen's

Ass'n Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25
L.Ed.2d 218 (1970), requires reversal here, because in that case it was held that
longshoremen servicing foreign-flag vessels in American ports are in

'commerce' within the meaning of the Act. But the Ariadne court, in
distinguishing Benz, supra, and McCulloch, supra, stated that '[t]he
considerations and informed the Court's construction of the statutue' in those
cases 'are clearly inapplicable to the situation presented here. The participation
of some crew members in the longshore work does not obscure the fact that this
dispute centered on the wages to be paid American residents, who were
employed by each foreign ship not to serve as members of its crew but rather to
do casual longshore work.' 397 U.S., at 199, 90 S.Ct., at 874. The Court in
Windward reiterated that distinction:
'The picketers in Ariadne, unlike the picketers in Benz or Incres, were primarily
engaged in a dispute as to whether an employer should hire unionized or
nonunionized American workers to perform longshoremen's work, and the
substandard wages which they were protesting were being paid to fellow
American workers.' 415 U.S., at 112, 94 S.Ct., at 964.
Here the picketing which triggered the dispute was not directed toward any
wages or conditions of employment of the longshoremen. It was instead
directed to substandard wages being paid to the crews of foreign-flag vessels
throughout those vessels' worldwide maritime operations. In Ariadne, on the
contrary, the picketing was directed toward requiring a foreign-flag vessel to
hire unionized American workers, rather than nonunionized American workers,
to service vessels berthed in American ports. That the latter effect does not
surpass 'the threshold of interference with the maritime operations of foreign
vessels which makes the LMRA inapplicable,' Windward, supra, at 114, 94
S.Ct., at 965, certainly provides no support for the proposition that the former
effect also does not surpass that threshold.
10

In so holding, we need cast no doubt on those cases which hold that the Board
has jurisdiction under 8(b)(4) of domestic secondary activities which are in
commerce, even though the primary employer is located outside the United
States. See Madden v. Grain Elevator, Flour and Feed Mill Workers,
International Longshoremen Assn., Local 418, 334 F.2d 1014 (CA7 1964), cert.
denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965); Grain Elevator,
Flour and Feed Mill Workers, International Longshoremen Assn., Local 418,
A.F.L.-C.I.O. v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774, cert. denied,
389 U.S. 932, 88 S.Ct. 296, 19 L.Ed.2d 285 (1967).

11

The definition appears in 29 U.S.C. 152(2):

'(2) The term 'employer' includes any person acting as an agent of an employer,
directly or indirectly, but shall not include the United States or any wholly
owned Government corporation, or any Federal Reserve Bank, or any State or

political subdivision thereof, or any corporation or association operating a

hospital, if no part of the net earnings inures to the benefit of any private
shareholder or individual, or any person subject to the Railway Labor Act, as
amended from time to time, or any labor organization (other than when acting
as an employer), or anyone acting in the capacity of officer or agent of such
labor organization.'
12

The record indicates that all grain storage facilities in the Mobile area were full.
Additional soybeans could be harvested only as those already stored were
transferred to waiting vessels. App. 77a-80a.

Nobody has suggested that the maritime unions engaged in the secondary
picketing are not 'labor organizations' within the meaning of 2(5) of the Act,
29 U.S.C. 152(5), or that the longshoremen and other workers who refused to
cross the picket lines and service the foreign-flag vessel are not 'employees'
within the meaning of 2(3), 29 U.S.C. 152(3).

The Alabama courts enjoined the six maritime unions, their officers, members,
and employees, from:
'1. Loitering, congregating, or picketing, by standing, walking, marching,
sitting, or otherwise, at or near any part of the premises owned, occupied, or
used by members of Complainant Mobile Steamship Association, Inc.
'2. In any manner interfering with or obstructing, by words or actions, any
person or persons working for or desiring to work for members of Complainant
Mobile Steamship Association, Inc.
'3. Interfering with the operations of any member of Complainant Mobile
Steamship Association, Inc. in any manner whatsoever.
'4. Picketing or interfering at or near Complainant Mobile Steamship
Association, Inc. and its members' premises or premises used by Complainant
Mobile Steamship Association's members in a manner calculated to intimidate
Complainant Mobile Steamship Association's members' employees or anyone
working in association with the Complainant Mobile Steamship Association's
members, or any other person entering or leaving or attempting to enter or leave
Mobile Steamship Association's members' premises, or calculated to induce any
such persons not to report or apply for work at Mobile Steamship Association's
members' premises, or any facility used by Mobile Steamship Association's
members.
'5. Picketing directed at vessels with whom members of the Mobile Steamship
Association, Inc. have contractual relations.

'6. Interfering with the contractual relations existing or to exist between the
members of the Mobile Steamship Association, Inc. and companies owning
and/or operating vessels calling at the Port of Mobile.'
3

The only two Courts of Appeals that appear to have addressed the question
have also sustained Board jurisdiction over secondary disputes involving
American employers and unions despite the fact that the primary dispute
involved foreign-flag vessels. Madden v. Grain Elevator, Flour and Feed Mill
Workers, International Longshoremen Assn., Local 418, 334 F.2d 1014 (CA7);
Grain Elevator, Flour and Feed Mill Workers, International Longshoremen
Assn., Local 418, A.F.L.-C.I.O. v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d
774.

When Congress was considering the Taft-Hartley bill in 1947, an amendment

was proposed in the Senate which would have given an injured party suffering
from a secondary boycott the right to go directly into a district court and seek
injunctive relief. 93 Cong.Rec. 4835. Senator Taft opposed the amendment,
arguing that resistance to providing a private injunctive remedy in cases of
secondary boycotts was so strong that the language of the committee bill
authorizing the Board alone to obtain injunctive relief should be retained.
Senator Taft proposed that private parties be given only the right to sue for
damages. Id., at 4843-4844. The amendment was thereafter defeated, id., at
4847; and Senator Taft's proposal for a private-damages remedy, presently
LMRA 303, 29 U.S.C. 187, was adopted. 93 Cong.Rec. 4874-4875.