Filed: Apr. 22, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-22-2004 Asplundh Tree Expert v. NLRB Precedential or Non-Precedential: Precedential Docket No. 02-1151 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Asplundh Tree Expert v. NLRB" (2004). 2004 Decisions. Paper 742. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/742 This decision is brought to you for free and open access by the Opi
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-22-2004 Asplundh Tree Expert v. NLRB Precedential or Non-Precedential: Precedential Docket No. 02-1151 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Asplundh Tree Expert v. NLRB" (2004). 2004 Decisions. Paper 742. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/742 This decision is brought to you for free and open access by the Opin..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-22-2004
Asplundh Tree Expert v. NLRB
Precedential or Non-Precedential: Precedential
Docket No. 02-1151
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Asplundh Tree Expert v. NLRB" (2004). 2004 Decisions. Paper 742.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/742
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PRECEDENTIAL Before: McKEE and GREENBERG,
Circuit Judges, and LIFLAND, District
UNITED STATES COURT OF
Judge*
APPEALS FOR THE THIRD CIRCUIT
(Opinion filed: April 22, 2004)
Nos. 02-1151/1543
STEVEN R. SEMLER, ESQ. (Argued)
ASPLUNDH TREE EXPERT
COMPANY, Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
Petitioner No. 02-1151
2400 N Street, NW
v.
Washington, D.C. 20037
NATIONAL LABOR RELATIONS
BOARD, Attorneys for Asplundh Tree Expert
Company
Respondent
________
ARTHUR R. ROSENFELD, ESQ.
General Counsel, National Labor
NATIONAL LABOR RELATIONS
Relations Board
BOARD,
JOHN E. HIGGINS, JR., ESQ.
Petitioner No. 02-1543
Deputy General Counsel
v.
JOHN H. FERGUSON, ESQ.
ASPLUNDH TREE EXPERT
COMPANY, Associate General Counsel
Respondent AILEEN A. ARMSTRONG, ESQ.
Deputy Associate General Counsel
Petition for Review and Cross- CHARLES DONNELLY, ESQ.
Application for Enforcement of an
Supervisory Attorney
Order of the National Labor Relations
Board Proceeding 9-CA-360005
*
The Hon. John C. Lifland, District
Judge of the United States District Court
for the District of New Jersey, sitting by
Argued: November 8, 2002 designation.
JOHN R. McINTYRE, ESQ. (Argued) United States, the Board did not have
jurisdiction over the unfair labor practices
Attorney
charge. Accordingly, we will vacate the
National Labor Relations Board Board’s decision.
1009 14th Street, NW I. FACTS
Washington, D.C. 20570 Asplundh provides tree trimming
services throughout the eastern United
Attorneys for National Labor Relations
States and maintains its principal place of
Board
business in Willow Grove, Pennsylvania.
Much of Asplundh’s work is performed
for utility companies that need to keep
their power lines cleared of tree limbs.
One of Asplundh’s operations is based in
Cincinnati, Ohio, where it primarily
OPINION
performs line clearance work for the
Cincinnati Gas & Electric Company.
Asplundh’s employees are represented by
Local 171 of the International Brotherhood
of Electrical Workers (“IBEW”). A
collective bargaining agreement between
McKEE, Circuit Judge.
Asplundh and IBEW covers Asplundh’s
Asplundh Tree Expert Company workers when they are engaged in line
petitions for review of a decision of the clearance work on the property of
National Labor Relations Board (“NLRB” Cincinnati Gas & Electric Company or its
or “Board”) wherein the NLRB ruled that subsidiaries.
Asp lundh committed unfair labor
Asplundh also offers its services to
practices by threatening to lay off Dennis
utilities and other entities in other states.
Brinson and by discharging Brinson and
In that capacity, it assigns its employees to
Eric Crabtree in response to their
perform work related to storms, natural
concerted complaint about working
disasters and natural emergencies. Several
conditions while on temporary work
provincial governments in Canada retained
assignment in Ottawa, Canada. Those
Asplundh to assist in clearing electrical
employees also briefly withheld their
lines, trimming tree limbs and cleaning
services in support of their job related
streets after a major ice storm struck
complaints. The Board has cross-applied
eastern Canada in January 1998. Ottawa,
for enforcement of its order. However,
Ontario was among the entities that
we hold that since the National Labor
contracted for Asplundh’s services
Relations Act (“NLRA”) does not apply
following that storm, and on January 12,
outside the territorial jurisdiction of the
2
Asplundh’s Cincinnati operation prepared keep pace with Lacey, who was leading
to send 10 crews of 2 employees each to the caravan. Some employees received no
that Canadian city. per diem or food money for the
uninterrupted travel time. By the time the
Asplundh does not require its
employees arrived in Ottawa on the
employees to travel outside of their
evening of January 14, many of them were
locality for emergency storm cleanup
hungry, fatigued and disgruntled.
work like the Ottawa assignment.
Instead, employees volunteer for such Once in Ottawa, Lacey reserved
work, and are compensated in part by a hotel rooms for all of the employees which
per diem covering their food and lodging he paid for at a negotiated price of $61 per
while working away from home. room per night. That rate was obviously
less than the $75 per night Lewis had told
On January 13, a group of 20
the employees was available for their
employees met in a parking lot before
lodging. Concomitantly, some of the
leaving for Ottawa. At the meeting,
employees began to feel that the $25 per
Supervisor Darrell Lewis told the
diem for food was insufficient to cover the
employees that they would receive per
high cost of food in Ottawa.
diem payments in the amount of $25 for
food and that Asplundh would pay up to At least four employees – Brinson,
$75 per day for hotel rooms.1 Crabtree, Shane Duff and Ron Noble –
met on the first night in Ottawa and
The group left for Ottawa later that
discussed their dissatisfaction with the
day in a caravan of Aslpundh trucks.
problems they had encountered en route as
Lewis did not travel to Ottawa, and
well as the amount of their per diem. They
Foreman Ronald Lacey was therefore left
discussed augmenting the per diem with
in charge of the assignment. On the 31
the $14 remaining from the difference
hour trip to Ottawa, the employees did not
between the $75 that Asplundh was
take any breaks lasting longer than 3
willing to spend per hotel room and the
hours. They also experienced a number
$61 that Lacey was actually paying. They
of problems including malfunctioning
agreed that they should discuss the matter
heaters and taillights. Several crews
with Lacey and decided that Brinson
became lost when they were unable to
would be the spokesperson.
On January 15 and 16, the cleanup
1
Some employees understood Lewis crews worked 12-hour days without
to have said they would get up to $75 a incident. However, at some point during
night for motel expenses; however, Lewis that period, Duff obtained the hotel phone
testified before the ALJ that he told them number of his brother, Mike Gilbert, who
that Asplundh could pay up to $75 a day was working in Quebec for Asplundh on
for their rooms, and the NLRB apparently another storm cleanup assignment. Gilbert
accepted that testimony as credible.
3
and Duff spoke numerous times during were “making the Company look bad.”
the course of those two days. They Lewis then told Brinson that a number of
compared notes and concluded that crews would be laid off when they
Asplundh employees on assignment in returned to Cincinnati and that the Ottawa
Quebec were better off than Asplundh employees were making it easier for Lewis
employees in Ottawa. For example, to decide whom to lay off.
Gilbert told Duff that the Quebec crew’s
Brinson relayed his conversation
supervisor paid for all of their food and
with Lewis to a group of crew members,
phone calls, and occasionally even treated
told them it was time to decide what they
employees to steak dinners. Brinson also
wanted to do, and then left to let them
talked to Gilbert and told co-workers
make a decision. A short time later,
Cra b t r e e and N oble a bou t the
Brinson realized that most of the crew
circumstances of the workers in Quebec.
members had left to go to their work
After hearing about this disparity, the
assignment.
Ottawa crew decided to confront Lacey
and request a larger per diem. Lacey then approached Brinson,
who was standing with Crabtree, Duff and
On the morning of January 17,
Noble, and asked them what they were
Brinson phoned Lacey and told him that
going to do. Brinson replied that they still
the employees wanted a $14 increase in
wanted to discuss their situation before
their per diem payments – the difference
going to work. Lacey responded by
between the $75 authorized for hotel
demanding Brinson’s truck keys. After
rooms and the actual $61 room cost.
Brinson handed over his keys, Lacey asked
Brinson also indicated that the employees
Crabtree what he wanted to do. Crabtree
might not work if their per diem payments
replied: “I’m with Dennis [Brinson]. I still
were not increased. Lacey then called
think we need to have something done
Cincinnati and spoke with Lewis, the
about this.” Lacey then asked Crabtree for
supervisor. Lacey told Lewis of the
his keys, and after Crabtree gave them to
employees’ request and of the possibility
Lacey, Lacey said “this means you quit.”
that they might not work if their concerns
Lacey also admonished Brinson and
were not addressed. Lewis instructed
Crabtree for sticking up for their fellow
Lacey not to raise the per diem payments
employees and then told them to “get
and told Lacey that “if they’re not going
home the best way you f...g can.” Duff
to take the trucks out, that means they
and Noble briefly considered joining
quit.”
Brinson and Crabtree in their refusal to
Lacey went to the hotel lobby to work, but Brinson, concerned about Duff’s
meet with the employees, placed another and Noble’s job security, convinced them
call to Lewis, then handed Brinson the that they ought to go to work.
phone. Lewis told Brinson that the
Soon thereafter, Brinson and
employees were “whiny cry babies” and
4
Crabtree returned to Cincinnati by bus. threatening Brinson with layoff because of
Once back in Cincinnati, Brinson his concerted activity and by discharging
repeatedly offered to return to work, but Brinson and Crabtree for engaging in that
neither he nor Crabtree were ever allowed same activity.
to return to their jobs with Asplundh.2
Asplundh filed exceptions to the
II. PROCEDURAL HISTORY ALJ’s decision. On November 30, 2001,
the Board affirmed the ALJ’s decision. It
On May 29, 1998, Brinson filed a
ordered Asplundh to cease and desist from
charge with the Board alleging that
engaging in unfair labor practices and
Asplundh “discharged its employees
from interfering with employees in the
Dennis Brinson and Paul Eric Crabtree
exercise of the rights guaranteed by § 7 of
because of their protected, concerted
the NLRA, 29 U.S.C. § 157. The Board
activities.” App. at 419. On January 22,
also ordered Asplundh to reinstate Brinson
the General Counsel issued a complaint
and Crabtree, make them whole, remove
and hearings were thereafter held before
any reference to improper conduct from
an administrative law judge. The ALJ
their personnel files, and post a remedial
ruled that Asplundh had engaged in unfair
notice at its Cincinnati location.
labor practices, in violation of § 8(a)(1) of
the NLRA, 29 U.S.C. § 158(a)(1),3 by Asplundh’s petition for review and
the Board’s a cross-application for
2
enforcement followed.
The Board and Asplundh agree that
because the collective b argain ing III. DISCUSSION
agreement between IBEW Local 171 and Asplundh argues that the Board’s
Asplundh was limited to work on the
property of Cincinnati Gas & Electric
Company and its subsidiaries, Local 171
was not the employees’ exclusive . . . mutual aid or protection. . . .” The
representative for the purposes of “mutual aid or protection” clause of § 7
employment in Ottawa. protects employees’ concerted activity that
relates to their terms and conditions of
3
Section 8(a)(1) of the NLRA, 29 employment, whether or not they are
U.S.C. § 158(a)(1), makes it an unfair engaged in union related activity. NLRB v.
labor practice for an employer to Washington Aluminum Co., 370 U.S. 9, 14
“interfere with, restrain, or coerce (1962). Section 8(a)(1) also makes it in
employees in the exercise” of the rights unfair labor practice for an employer to
guaranteed in Section 7 of the NLRA, 29 discharge an employee in response to the
U.S.C. § 157. Section 7, in turn, employee’s participation in protected,
guarantees employees the right to engage concerted activity. Tri-State Trucking
in “concerted activities” not only for self- Serv., Inc. v. NLRB,
616 F.2d 65, 69 (3d
organization, but also “for the purpose of Cir. 1980).
5
finding of violations of § 8(a)(1) of the longstanding principle of American law
NLRA was not supported by substantial ‘that legislation of Congress, unless a
evidence. However, we must first contrary intent appears, is meant to apply
resolve Asplundh’s challenge to the only within the territorial jurisdiction of
Board’s exercise of jurisdiction over an the United States.’” Id. (quoting Foley
unfair labor practices charge arising from Bros., Inc. v. Filardo,
336 U.S. 281, 285
“offending” conduct that occurred in (1949)).
Canada.4
This canon of construction
Although Congress undoubtedly is a valid approach whereby
has the authority “to enforce its laws unexpressed congressional
beyond the territorial boundaries of the intent may be ascertained. It
United States[,] . . . [w]hether Congress serves to protect against
has in fact exercised that authority . . . is unintended clashes between
a matter of statutory construction.” our laws and those of other
EEOC v. Arabian American Oil Co., nations which could result
(“ARAMCO”), 499 U.S. 244, 248 (1991) in international discord.
(citations omitted).5 Moreover, “[i]t is a
In applying this rule of
4
Asplundh argued before the ALJ and construction, we look to see
the Board, that because the conduct whether language in the
giving rise to the unfair labor practices relevant Act gives any
charge occurred outside the United States, indication of a congressional
the Board did not have jurisdiction. Both purpose to exte nd its
the ALJ and the Board rejected coverage beyond places
Asplundh’s argument. However, we owe over which the United
no deference to the NLRB’s view because States has sovereignty or has
the extraterritorial application of a statute some measure of legislative
is purely a matter of statutory construction control. We assume that
not involving agency expertise. Cleary v. Congress legislates against
United States Lines, Inc., 728 F.2d 607, the bac k d r o p o f the
610 n.6 (3d Cir. 1984).
5
In ARAMCO, the Supreme Court held However, in the wake of ARAMCO,
that protections against employment Congress amended Title VII to protect
discrimination of Title VII of the Civil United States citizens employed abroad by
Rights Act of 1964 did not extend United States employers. Spector v.
extraterritorially to protect United States Norwegian Cruise Line Ltd., 356 F.3d 641,
citizens employed abroad by United 646 n.4 (5th Cir. 2004) (citing 42 U.S.C. §
States
employers. 499 U.S. at 248-59. 2000e(f) (2000)).
6
presumption again st assignment.6 This argument is not without
e x tr a t e rr i to r i a lity. some force and certainly appears
Therefore, unless there is consistent with the labor policy endemic in
the affirmative intention of the NLRA. However, as noted above, our
t h e C ongress clearl y task is one of statutory interpretation.
e x p r e s s ed , w e m u s t Accordingly, sound policy positions
presume it is primarily advocated by either side neither constrain
concerned with domestic nor influence our inquiry. See ARAMCO,
conditions. 499 U.S. at 248.
As ARAMCO teaches, we begin our
analysis with the language of the NLRA.
ARAMCO, 499 U.S. at 248 (citations,
Section 10 of that Act provides that “[t]he
internal quotations, ellipses and brackets
Board is empowered, as hereinafter
omitted).
provided, to prevent any person from
Asplundh bases its argument that engaging in any unfair labor practice
the Board lacked jurisdiction over the (listed in sectio n 15 8) aff ecting
unfair labor practices charge largely upon commerce.” 29 U.S.C. § 160(a).
the presumption against extraterritoriality Admittedly, the NLRA defines the
which the Court explained in ARAMCO. jurisdictional terms “affecting commerce”
T h e B o a r d a c k n o w l e d g e s t h is a n d “ c o m m e r ce ” v er y br oa dl y. ,
presumption against extraterritoriality.
Indeed, the Board, has applied the
6
jurisdictional test of ARAMCO in holding In its brief, the Board cites to
that the NLRA does not apply abroad. December 12, Inc., 273 N.L.R.B. 1 (1984),
See, e.g., Computer Sciences Raytheon, enf’d,
772 F.2d 912 (9th Cir. 1985), in
3 1 8 N L R B 9 6 6 , 9 6 8 ( 1 9 9 5 ). which it held that it was appropriate for it
Nonetheless, the Board now contends that to assert jurisdiction over a United States
the assumption of jurisdiction over the employer and its United States employee,
unfair labor practices charge at issue here ordinarily stationed in the United States,
is “entirely compatible” w ith the who was discharged for engaging in
presumption against extraterritoriality. protected activity while on a temporary
Board’s Br. at 22. assignment in Australia. In asserting
jurisdiction, the Board noted that the fact
In the Board’s view, it is
that the “activities occurred outside the
appropriate for it to assume jurisdiction
United States did not render them any less
when a United States citizen is working
protected.” Id. at 5 n.11. However,
on a short-time, temporary assignment
December 12 was decided before
outside the United States, with the clear
ARAMCO. Moreover, the unlawful
expectation of returning to the United
discharge in December 12 occurred in the
States upon co mp letion of the
United States, not in Australia.
7
“‘[A]ffecting commerce’ means in similarly broad jurisdictional reach of Title
commerce, or burdening or obstructing VII in ARAMCO. Title VII then stated that
commerce or the free flow of commerce, “[a]n employer is subject to Title VII if it
or having led or tending to lead to a labor has employed 15 or more employees . . .
dispu te burd enin g or obstructing and is engaged in an industry affecting
commerce or the free flow of commerce.” commerce.” ARAMCO, 499 U.S. at 249.
29 U.S.C. § 152 (7). Similarly, the NLRA “An industry affecting commerce” was
broadly defines “commerce” as: defined as “any activity, business, or
industry in commerce or in which a labor
trade, traffic, commerce,
dispute would hinder or obstruct
transportation, or
commerce or the free flow of commerce
communication among the
and includes any activity or industry
several States, or between
'affecting commerce' within the meaning
the District of Columbia or
of the Labor-Management Reporting and
any Territory of the United
Disclosure Act of 1959. . .” . Id.
States and any State or
“Commerce,” in turn, was defined as
other Territory, or between
“trade, traffic, commerce, transportation,
any foreign country and
transmission, or communication among the
any State, Territory, or the
several States; or between a State and any
District of Columbia, or
place outside thereof; or within the
within the District of
District of Columbia, or a possession of
Columbia or any Territory,
the United States; or between points in the
or between points in the
same State but through a point outside
same State but through any
thereof.” Id. (internal quotation marks
other State or any Territory
omitted) (emphasis added).
or the District of Columbia
or any foreign country. The petitioners in ARAMCO argued
that the broad definition of “employer” and
“commerce” in Title VII reflected
29 U.S.C. § 152(6) (1988) (emphasis Congress’ intent to give the EEOC
added). extraterritorial jurisdiction. ARAMCO,
499 U.S. at 251. The Court rejected that
Thus, a literal reading of the
argument reasoning that such broad
jurisdictional and definitional provisions
jurisdictional terms were nothing more
of the NLRA seems to not only favor the
than “boilerplate language” that Congress
NLRB’s extraterritorial exercise of
had used in numerous other enactments.
jurisdiction, it seems to dictate that result
The Court held that such “boilerplate” was
and end our jurisdictional inquiry.
simply not enough to defeat the
However, in interpreting this seemingly
presumption against the extraterritorial
broad language, we are not free to ignore
application of Title VII. Id. (cited statutes
the Supreme Court’s interpretation of the
8
omitted). In doing so, the Court support a conclusion that Congress
reiterated, “we have repeatedly held that intended to empo wer the Equal
even statutes that contain broad language Employment Opportunity Commission to
in their definitions of ‘commerce’ that exercise jurisdiction beyond the United
expressly refer to ‘foreign commerce’ do States, despite the broad definitions
not apply abroad.” Id., at 251. (emphasis suggesting the contrary. The Court
in original).7 buttressed reliance on presumption against
extraterritorial jurisdiction by noting that
The Court held that the wording of
Congress had not included any mechanism
Title VII was not sufficient to rebut the
for the extraterritorial enforcement of the
presumption against extraterritoriality and
Act’s protections. The Court reasoned:
[t]his conclusion is fortified
7
The Court specifically cited New by other factors suggesting a
York Central R. Co. v. Chisholm, 268 purely dom estic focus,
U.S. 29, (1925), wherein it had addressed including Title VII's failure
the extraterritorial application of the even to mention foreign
Federal Employers' Liability Act (FELA), nations or proceedings
45 U.S.C. § 51 et seq. “FELA provides desp ite a n um ber o f
that common carriers by railroad while provisions indicating a
engaging in ‘interstate or foreign concern that the sovereignty
commerce’ or commerce between ‘any of and laws of States not be
the States or territories and any foreign unduly interfered with, and
nation or nations’ shall be liable in the Act's failure to provide
damages to its employees who suffer any mechanisms for its
injuries resulting from their employment. overseas enforcement. It is
§ 51.” 499 U.S. at 251. “Despite this also reasonable to conclude
broad jurisdictional language,” the Court that had Congress intended
“found that the Act ‘contains no words Title VII to apply overseas,
which definitely disclose an intention to it would have addressed the
give it extraterritorial effec t[.]” subject of conflicts with
ARAMCO, 499 U.S. at 251 (citing foreign laws and
Chisholm, 268 at 31). Thus, despite procedures, as it did in
Congress’s reference to “interstate or amending the Age
foreign commerce,” the Court in Chisolm, Discrimination in
concluded that “there was no jurisdiction Employment Act of 1967
under FELA for a damages action by a (ADEA) to apply abroad.
United States citizen employed on a
United States railroad who suffered fatal
injuries at a point 30 miles north of
the 499 U.S. at 245. Similarly, in enacting the
United States border into Canada.”
Id.
9
NLRA, Congress included no mechanism temporarily abroad. Although we are
for extraterritorial enforcement, and did sympathetic to the argument that the
not provide a method for resolving any NLRA should apply abroad under the
conflicts with labor laws of other nations. circumstances here, we must determine if
Given the obvious potential for conflict the NLRA does apply abroad. As noted
where United States companies employ above, that is an inquiry governed by
workers oversees, this omission strikes us statutory construction as guided by
as more than a mere oversight. It is Supreme Court precedent; it is not an
consistent with the Supreme Court’s inquiry governed by the kind of policy
conclusion that broad definitional considerations the NLRB urges upon us.
language is little more than “boilerplate”
The NLRB contends that its
in the absence of an express manifestation
assertion of jurisdiction was appropriate
of extraterritorial intent. 8
for three reasons. First, the unfair labor
Therefore, absent more, we can not practices charge “involves an employment
interpret the “boilerplate language” before relationship that has been shown to be
us in the NLRA in a manner that would primarily within the territorial boundaries
inject the expression of congressional of the United States.” 9 Board’s Br. at 22.
intent required to stretch it to cover the
employees Asplundh temporarily detailed
9
to Canada. Moreover, the Board is not To support this assertion, the Board
able to point to any language in the cites to its findings in the administrative
NLRA that would support its position proceedings that
given the rationale of ARAMCO. In fact,
the Board seems to completely ignore the Brinson and Crabtree are
fact that we are confronted with an issue Americans who were
of statutory construction rather than employed by an American
policy. Instead, the Board advances a employer in the United
number of reasons why the NLRA should States and who performed
apply to United States citizens working their regular work in the
United States. Their
assignment in Canada was
8
We realize, of course, that the both brief and temporary.
world’s economies are exponentially While in Canada they were
more tightly interwoven today than when supervised by an American
the NLRA was first enacted. However, supervisor. Moreover, the
this does not negate our view of the results of [Asplundh’s]
significance of the omission of any conduct were principally felt
mechanism for resolving conflicts with in the United States. Thus,
foreign laws or enforcing the protections [Asplundh] did not simply
of the NLRA abroad. r e p l a ce B r i n s o n a n d
10
Second, its “remedial order has no Board’s exercise of jurisdiction can be
extraterritorial reach, as it will only seen as “reasonable,” however, that is not
require a U.S. employer to take action – tantamount to determining if it was
namely, reinstatement, backpay and a authorized. As noted above, given the
notice posting – in the United States.” 10 Court’s holding in ARAMCO, the language
Id. at 23. Third, “failure to assert of the NLRA simply can not be read as an
jurisdiction would not only deny Brinson expression of the congressional intent
and Crabtree relief to which they would required to empower the Board to exercise
otherwise unquestionably be entitled;” it jurisdiction over Asplundh’s conduct here.
would also frustrate the remedial and
deterrent purposes of the NLRA.
Id.
Moreover, although the Board’s
Accordingly, the Board argues that it was
argument to the contrary has significant
reasonable for it to assume jurisdiction
appeal at first blush, we believe the
over the unfair labor practices charge
Board’s “policy” argument is nothing more
because the “fact that Brinson and
than a “balancing of contacts” test that the
Crabtree were briefly in Canada. . . when
Supreme Court has already rejected in a
they staged their short-lived protest was
case it decided before ARAMCO.
little more than a fortuity for U.S. workers
employed by a U.S. enterprise.” Id. In McCulloch v. Sociedad Nacional
de Marineros de Honduras, 372 U.S. 10
We do not disagree that the
(1963), an American corporation, United
Fruit, was the beneficial owner of a
number of cargo vessels which made
Crabtree on their regular sailings between the United States,
C a n a d i a n Latin America and other ports transporting
a s s i g nm e n t , b u t the American corporation’s products. Id.
in stead . . . at 12. Each vessel was legally owned by a
effectively fired foreign subsidiary of the American
them from their jobs corporation, flew the flag of a foreign
in the United States. nation, carried a foreign crew and had
other contacts with the nation of its flag.
App. at 2. Id. A portion of United Fruit’s fleet of
10 beneficially owned vessels consisted of
In its decision the Board noted that
vessels legally owned by Empresa
because its remedial order only affects a
Hondurena de Vapores, a Honduran
United States employer “there is no
corporation. Id. at 13. However, all of the
danger that an assertion of jurisdiction
stock of that Honduran corporation was
will lead to a conflict between the labor
owned by United Fruit. Id. The crews on
laws of the United States and Canada or
the vessels were recruited by Empresa
o th er w ise interfere w ith fore ign
Hondurena in Honduras and all of the
relations.” App. at 2.
11
crewmen were Honduran citizens who from holding an election,11 id. at 15-16,
claimed Honduras as their residence and and the district court granted the Honduran
home port with the exception of one union’s request for relief.
Id.
Jamaican. Id. The crew’s wages, terms
There, as here, the inquiry turned on
and conditions of employment, etc., were
“the coverage of the National Labor
controlled by a bargaining agreement
Relations Act.” 372 U.S. at 12. The
between Empresa Hondurena and a
question before the Court was “whether
Honduran union, Sociedad Nacional de
the Act extends to the crews engaged in
Marineros de Honduras. The agreement
such a maritime operation.” Id. Both sides
was governed by Honduran labor law.
Id.
agreed that Congress had the power to
at 14.
extend the coverage of the NLRA to
However, United Fruit, the parent “crews working foreign-flag ships, at least
corporation of Empresa Hondurena, while they were in American waters[].”
determined the ports of call of the vessels, Id., at 17. The question was “whether
their cargoes and sailings, and integrated Congress had exercised that power.”
Id.
the Honduran vessels into its broader fleet For the purposes of our inquiry, it is
organization. The Honduran vessels important to note the test the NLRB had
made regular and periodic stops at various used to determine its jurisdiction over the
ports between Central and South America petition for certification. That was a
as well as ports in the United States.
Id. “balancing of contacts” test that the Board
had developed in determining jurisdiction
An American maritime union, the
in other cases involving the NLRA’s
National Maritime Union of America,
application to foreign-flag ships and their
AFL-CIO, filed a petition seeking
crews. Id. at 15, 19. Simply put, under
certification as the representative of the
that balancing test, if the Board found that
crewmen employed on certain of the
Honduran vessels. Id. at 13. The NLRB
granted the un ion’s p etition for 11
The Sociedad filed suit in the District
certification, asserting jurisdiction based
of Columbia district court. However,
on its finding that the vessels’ “maritime
Empresa also filed two suits in a New
operations involved substantial United
York district court, which denied relief to
States conta cts, outw eighin g th e
Empresa. The Court of Appeals for the
numerous foreign contacts present.” Id.
Second Circuit reversed the district court.
at 14-15. Sociedad, the Honduran union,
All three actions were consolidated in the
responded by seeking an injunction to
Supreme Court and, for appellate
prevent the regional director of the NLRB
jurisdictional reasons not necessary to
recite, the Supreme Court chose the
Sociedad’s case as the proper “vehicle for
. . . adjudication on the merits.” 372 U.S.
at 16.
12
the American contacts in the dispute were Id. at 19. Consequently, the Supreme
substantial, it asserted jurisdiction under Court rejected the Board’s “balancing of
the NLRA; however, if it found that the contacts” test and concluded that the
foreign contacts outw eighe d th e question before it was “more basic;
American contacts, the Board concluded namely, whether the Act as written was
the NLRA did not apply and would not intended to have any application to foreign
assert jurisdiction.
Id. at 17-18. registered vessels employing alien
seamen.” Id. (emphasis added). In other
The Court began its review of the
words, the inquiry turned on statutory
injunction noting the “question of
construction rather than an analysis of the
application of laws of the United States to
comparative impact the Board’s exercise
foreign-flag ships and their crews has
of jurisdiction would have on the
arisen often and in various contexts.” Id.
jurisdictions potentially affected by the
at 17. It next noted that using the Board’s
underlying dispute or the Board’s action.12
“balancing of contacts” test to determine
jurisdiction
might require that the 12
In ARAMCO, the Court specifically
Board inquire into the
referred to McCulloch, writing:
internal discipline and
order of all foreign vessels
[I]n McCulloch v. Sociedad
calling at American ports.
Nacional de Marineros de
Such activity would raise
Honduras, 372 U.S. 10
considerable disturbance
(1963), w e a d dressed
not only in the field of
whether Congress intended
maritime law but in our
t h e N a t i o n al L a b or
international relations as
Relations Act (NLRA), 29
w ell. I n a d d i t io n ,
U.S.C. §§ 151-168, to apply
enforcement of Board
overseas. Even though the
orders would project the
NLRA contained broad
courts into application of
language that referred by its
the sanctions of the Act to
terms to foreign commerce,
foreign-flag ships on a
§ 152(6), this Court refused
purely ad hoc weighing of
to find a congressional
contacts basis. This would
intent to apply the statute
inevita bly lead to
abroad because there was
embarrassment in foreign
not “any specific language”
affairs and be entirely
in the A ct reflectin g
i n f e a s ib l e i n a c t u a l
congressional intent to do
practice.
so.
13
After examining the language in the [Asplundh], Crabtree had
NLRA, the Court concluded “that the worked outside of southern
jurisdictional provisions of the Act do not Ohio only once prior to his
extend to maritime operations of foreign- termination, and that was on
flag ships employing alien seamen.” Id. a brief emergency
at 13. assignment within th e
United States. The Ottawa
Thus, after McCulloch, the Board’s
assignment during which the
“balancing of contacts” cannot be used to
pair were discharged was
manufacture jurisdiction in the absence of
scheduled to last for only
clearly expressed congressional intent to
about 2 weeks, at the end of
extend the NLRA to United States
which the employees were
citizens temporarily working abroad for a
to return to their permanent
United States employer. Perhaps
employment base in the
realizing this, the Board attempts to craft
Cincinnati area. Thus . . . ,
a new jurisdictional test to justify its
Br inson and C rabtree
assertion of jurisdiction here. It argues
maintained work stations in
that the employee’s “work station”
the United States, as their
determines whether the NLRA applies.
employment was based in
According to the Board, Brinson’s and
the United States, and not in
Crabtree’s “work station” was the United
Canada.
States. The Board argues:
Brinson, who lives in
southern Ohio, had been Board’s Br. at 27-28. The Board claims
employed by [Asplundh] in that the major advantage of its new “work
the Cincinnati area for 8 station” theory is that the assertion of
y e a r s p r i o r t o h is jurisdiction under the test has no
termination. He had never extraterritorial effect because the
worked for [Asplundh] permanent “work station” remained the
outside of greate r United States.
Cincinnati. Like Brinson,
However, the Board’s “work
Crabtree was also a
station” rule also spawns a policy driven
southern Ohio resident. In
analysis at the expense of one driven by
o v e r 12 years w i th
statutory interpretation. Adopting the
Board’s “work station” inquiry also
requires an examination of the specific
ARAMCO, 499 U.S. at 251-52 (citing impact of the extraterritorial application to
McCulloch, 372 U.S. at 19). the acts in question. Nothing in
McCulloch suggests that such a case by
14
case inquiry can overc om e the country.” (emphasis added).13
presumption against extraterritoriality in
Ironically, although the Board seeks
the absence of express jurisdictional
to import the ADEA’s workplace
language. Spector v Norwegian Cruise
exemption into the NLRA, that exemption
Line, Ltd., 356 F.3d 641, 648 n.8
was applied to deny extraterritorial
(“McCulloch did not examine individual
application of the ADEA in each ADEA
applications of the NLRA to reach its
case the Board relies upon here.
result. Instead, the Court pointed to the
prospective conflict that would result. . . Finally, we are mindful of the fact
. This impending conflict exemplified the that Congress knows how to provide for
strong basis for its canon of construction e xtraterritorial applic ation of its
mandating a clear congressional intent.”). enactments when it intends them to operate
Moreover, the Board has cited no outside of the United States. For example
authority to support its claim that a “work in 1984, after a number of courts of
station” rule even exists under the NLRA. appeals held that the ADEA did not
Rather, the cases the Board relies upon in operate extraterrito rially, 1 4 Congress
urging that we adopt a “work station” expressly amended the ADEA to provide
a n a l y s i s a r i se u n d e r t h e A ge for limited extraterritorial application.
Discrimination in Employment Act Denty v. SmithKline Beecham Corp., 109
(“ADEA”), 29 U.S.C. §§ 623(f)(1),
(g)(1). See Board’s Br. at 26-27 (citing 13
Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d Parenthetically, we mention, without
554 (7th Cir. 1985); Cleary v. United deciding, that a convincing argument can
States Lines, 728 F.2d 607 (3d Cir. 1984); be made that Brinson’s and Crabtree’s
Wolf v. J. I. Case Co.,
617 F. Supp. 858 “work station” was in Canada, not the
(E.D. Wis. 1995); Lopez v. Pan Am World United States. As noted earlier, Asplundh
Servs., Inc.,
813 F.2d 1118 (11th Cir. does not require its employees to travel
1987)). Furthermore, the Board has outside of their locality for emergency
failed to fully analyze the foundations of cleanup work. Instead, it seeks volunteers.
the ADEA’s “work station” rule. We Therefore, Brinson and Crabtree were not
noted in Cleary v. United States Lines, sent to Ottawa in the regular course of
728 F.2d 607, 713 (3d Cir. 1984), that their employment. In addition, as noted in
ADEA § 626(b), prior to its amendment
n.2, supra, the volunteers were not covered
in 1984, incorporated the extraterritorial by the collective bargaining agreeement
exemption of the Fair Labor Standards between IBEW Local 171 and Asplundh
Act’s § 13(f), 29 U.S.C. § 213(f), which while on assignment in Ottawa.
specifically barred jurisdiction of the 14
We held that the ADEA did not
ADEA “with respect to any employee
operate outside the confines in the United
whose services during the work week are
States in Cleary v. United States Lines,
performed in a workplace within a foreign
Inc., 728 F.2d 607 (3d Cir. 1984).
15
F.3d 147, 150 & n.2 (3d Cir. 1997) (citing
cases). In 1991, following the Supreme
Court’s decision in ARAMCO, Congress
temporary and limited nature of their
amended both Title VII and the
assignment is not without force.
Americans with Disabilities Act to
Extraterritorial application of the NLRA
s i m i la r l y p r o v i d e f o r l i m i t e d
here certainly does not appear to create the
extraterritorial application. See Torrico v.
potential for international discord that was
International Business Machines Corp.,
so evident from the circumstances in
213 F. Supp. 2d 390, 399 (S.D. N.Y.
McCulloch. There, recognition of the
2002). However, Congress has never
union by the NLRB would have created a
amended the NLRA to provide for
direct conflict with the Honduran Labor
extraterritorial application under any
Code that recognized Sociedad as the sole
circumstances despite the C ourt’s
Honduran bargaining agent. McCulloch,
decision in McCulloch over 40 years ago
372 U.S. at 20. The facts thus presented
expressly limiting the territorial reach of
“[t]he presence of highly charged
the NLRA.
international circumstances,” which raised
IV. CONCLUSION the potential of construing the laws of the
United States in a manner that might
Despite the broad “boilerplate”
“violate the law of nations[]” absent a
definitions in the NLRA, we can discover
contrary interpretation. Id. at 21.
no cleary expressed congressional
intention that that Act was intended to
Moreover, McCulloch was based in
apply to employees working temporarily
large part upon the Court’s prior decision
outside of the United States for United
in Benz v. Compania Naviera Hidalgo,
States employers. Therefore, we hold the
S.A., 353 U.S. 138 (1957). That case
Board did not have jurisdiction over the
involved the Labor Management Relations
unfair labor practices charge here.
Act of 1947 (“LM RA”) and raised the
Accordingly, we will vacate the Board’s
specter of applying the labor law of the
decision and dismiss the petition for
United States to a “controversy involving
review and cross-application for
damages resulting from the picketing of a
enforcement. 15, 16
foreign ship operated entirely by foreign
seamen under foreign articles while the
15
Because of our holding, we need not vessel [was] temporarily in an American
determine whether Asplundh violated § port.” Id., at 139. Those two cases have, in
8(a)(1) of the NLRA. turn, furnished the foundation for many of
the extraterritorial disputes that followed.
16
As we have noted throughout our See Spector v. Norwegian Cruise Line,
discussion, the Board’s position that the Ltd. supra generally for a discussion of the
employees here should be afforded the cases arising from Benz, McCulloch, and
protection of the NLRA given the ARAMCO.
16
The presumption a g ai n st
e x t r a t e r r i t o ri a l a p p l i ca t i o n of
congressional enactments is, in large
measure, based upon the notion that
legislation is nearly always enacted in
response to domestic concerns. See Smith
v. United States, 507 U.S. 197, 204 n.5
(“[T]he presumption is rooted in a
number of considerations, not the least of
which is the commonsense notion that
Congress generally legislates w ith
domestic concerns in mind.”). The
difficulties we have already discussed
with an ad hoc approach to these difficult
issues certainly mitigates against creating
exceptions to the extraterritorial reach of
the NLRA to accommodate the kind of
dispute before us here. However, given
the seemingly incongruous result we
believe the text of the NLRA and prior
decisions require, Congress can amend
the NLRA to extend its protections to
these kinds of work assignments if that is
what it intended. However, given the
current wording of the NLRA, “the
[NLRB’s] arguments should be directed
to Congress rather than to us.”
McCulloch, 372 U.S. at 22.
17
