The National Maritime Union of America (NMU) has petitioned to set aside an order of the National Labor Relations Board holding it to be in violation of Section 8(b)(4)(i)(ii)(B) of the Labor-Management Relations Act, 61 Stat. 136 (1947), as amended, 29 U.S.C.A. 151 et seq. The Board has requested enforcement. We are presented with a somewhat novel set of circumstances in which to define the reach of Congress' purpose to contain within narrow limits the industrial strife which, in the language of the legislative declaration of policy, 'interferes with the normal flow of commerce' to the detriment of the public interest. We conclude that what the Board hs done here falls within the range of the statutory provisions having that purpose, and we garnt enforcement of its order.

* The S.S. Maximus, while owned and operated by the Grace Line, was manned in part by members of the Marine Engineers' Beneficial Association (MEBA). However, upon its sale by Grace to a new owner, Cambridge Arriers, these personnel were replaced by members of NMU with whom Cambridge Carriers had an existing collective bargaining agreement.1 Shortly after this sale, the Maximus was in Philadelphia to load food and drugs for Cuba as part of the ransom of the Bay of Pigs prisoners. This activity was stopped from June 10 until June 20, 1963, when MEBA representatives picketed the ship carrying signs charging Cambridge Carriers with being unfair to the members of that union formerly employed on the Maximus. While that ship was so idled, NMU made a retaliatory counter-move. This response took the form of NMU picketing of other ships in Philadelphia, in Houston and Galveston, Texas, and in New Orleans, manned by MEBA members. The order before us relates only to the events in New Orleans;2 and these events, in turn, relate to two steamship companies.

Delta Steamship Lines Inc., uses the Poydras Street wharf in New Orleans. Bloomfield Steamship Company uses the Cotton Warehouse wharf. Neither has contracts with NMU. Both have contracts with MEBA. On June 17, 1963, NMU started picketing the ships of each, with signs bearing the legend: 'Information picketing. MEBA Engineers interfere with employers lawfully recognizing NMU.'

In the case of Delta, one of its ships, the S.S. Del Valle, was in port at the time the picketing began. The longshorehen ordered by Delta on June 17 and 18 appeared on the dock but would not cross the picket line at the foot of the gangplank. At 1:00 P.M. on June 18, the Del Valle was moved away from the wharf to a general anchorage point, and the picketing stopped. Later that afternoon, another Delta ship, the S.S. Del Mar, arrived at the wharf. There being no pickets, the longshoremen ordered by Delta boarded the ship and began unloading it. The next morning the pickets reappeared, and the longshoremen would not cross the line. This same morning the Del Valle was brought back to the wharf but the longshore gangs ordered for it similarly observed the line. This continued until the afternoon of the 20th, at which time, the MEBA picketing of the Maximus in Philadelphia having ended, the NMU picketing in New Orleans stopped.

Delta meanwhile had, on June 17, concluded that certain repairs needed to be made to the Del Valle. The work was awarded to two local companies unaffiliated with Delta. The general manager of one informed Delta, upon finding the picket line, that his men would not cross it. The shop superintendent of the other came to the wharf to take a part away for repair, but would not cross the line to remove the part. Delta's own carpenters and painters in New Orleans, after consultation with their union business agents, refused to come aboard to do their usual work on ships in port.

Bloomfield had one ship, the Neva West, at its dock on June 17. As in the case of Delta, carpenters and longshoremen reporting upon order would not cross the picket line.3 The pipefitter foreman of a local marine repair company, which had received an order from Bloomfield to do some work, upon asking permission of a picket to go aboard to make the repair, was told that he could not do so. On June 18, Bloomfield's vice president in New Orleans called NMU's port agent. The former represented that the Neva West required only a few hours work in order to clear that port, and that the delay was subjecting Bloomfield to losses it could not prevent. The NMU agent refused this request to call off the pickets, as he did a similar and more urgent request the next day. The agent purported to recognize the truth of Bloomfield's pleas that it had no apparent power to solve NMU's problems in Philadelphia, but he told the Bloomfield officer: 'We want you to be good and mad. * * * I want you to call Paul Hall (the International President of SIU) and tell him to call off the MEBA pickets on the Maximus.'

NMU argued to the Board that its picketing was purely informational in character, designed solely to apprise MEBA crew members on the ships in New Orleans of the arbitrary conduct of their brethren in Philadelphia and thereby to generate a grass-roots insistence that this shadow be lifted from the fair name of MEBA. The Board did not believe this claim to be borne out by the facts. Although accepting NMU's protestations that it had no quarrel with either Cambridge Carriers in Philadelphia, or Delta and Bloomfield in New Orleans, the Board found that the purpose of the New Orleans picketing was to close down and prevent all cargo handling and maintenance and repair operations on the ships in question. It found this purpose not only in the peculiar susceptibilities of all waterfront labor to the appearance of a picket line irrespective of what the signs say, but more concretely in the evidence of the particular picketing arrangements and the acts done and statements made by NMU personnel in connection with it. The Board translated these findings into the unfair labor practices banned by Section 8(b)(4)(i) and (ii)(B) of the Act. It considered that its findings established that NMU had fallen afoul of these provisions of the statute by having induced and encouraged individuals employed by Bloomfield, Delta, and the local stevedores and service contractors to refuse to perform work aboard the three ships, and by coercing and restraining those employers, all with the object of forcing or requiring such employers to cease doing business with each others.

The facts as found by the Board appear to us to be supported by substantial evidence in the record; and, indeed, NMU's contentions here are not founded upon any significant challenge to those findings.4 We are also of the view that those facts fit within the contours of the language used by Congress in Section 8(b)(4)(i) and (ii)(B).5 NMU argues to us, however, that the mere matching of fact to word does not automatically conclude the matter, and we do not reject that proposition out of hand in the case of this part of the Act. It has been vividly but accurately characterized as 'one of the most labyrinthine provisions ever included in a federal labor statute'; and the Supreme Court has admonished that at least one of its component sections cannot be applied literally.6 NMU suggests three reasons why the Board's order cannot stand: one is couched in jurisdictional terms; the second asserts that a proper construction of the statute excludes the conduct in question from its ban; and the third descries constitutional impediments to be overcome if the first two fail to command acceptance.

NMU first argues that the Board was without jurisdiction to entertain this unfair labor practice complaint because there was no 'labor dispute,' as that term is defined in Section 2(9) of the Act. But Section 2 is the 'Definitions' section of the Act, reflecting a salutary technique of modern legislative draftsmanship whereby words and phrases used elsewhere in the statute in substantive contexts are given precise definition. Section 2 does not purport to define the Board's jurisdiction; and the term 'labor dispute,' which is defined in paragraph (9), does not appear at all in the part of the statute with which we are presently concerned, that is to say, Section 8(b)(4)(i) and (ii)(B). There are, of course, other sections of of the Act in which 'labor dispute' is an operative term, but nowhere in the Act is there an overriding declaration that none of its provisions apply unless there is a 'labor dispute' as defined in Section 2(9).

The only authority cited by NMU in support of its jurisdictional point is NLRB v. International Longshoremen's Ass'n, 332 F.2d 992 (4th Cir. 1964). There the Board had found an unfair labor practice violative of Section 8(b)(4)(ii)(B) in the refusal of a union to supply men to load a British ship which had been engaged in the Cuban trade. At the time of the Cuban missile crisis in October, 1962, the union adopted a policy of refusing to load ships which had taken part in such trade, and the ship in question, the S.S. Tulse Hill, was named on the union's blacklist. Thus, upon the Tulse Hill's arrival at Baltimore in January, 1964, the union failed to respond to the request of Maryland Ship Ceiling Company, an independent stevedoring company, for gangs of carpenters to fit the ship for cargo. There was no picketing of the ship nor any other kind of interference with its operations.

The Board's jurisdiction was attacked on the ground, among others, that there was no 'labor dispute' as defined in Section 2(9). With one judge dissenting, two members of the court accepted this argument. They appeared to regard the union activity complained of as political in character and, accordingly, as not within the purview of the Act. They justified this construction of the Act by saying that a 'labor dispute' as defined in Section 2(9) relates to terms and conditions of employment, which the ideological differences before them did not, and by noting that the Act was passed, in the words of the Supreme Court, 'to regulate the conduct of people engaged in labor disputes.' Marine Cooks & Stewards, etc. v. Panama S.S. Co., 362 U.S. 365, 372, 80 S. Ct. 779, 784, 4 L. Ed. 2d 797 (1960).

The court, however, did not think it the part of prudence to stand upon this finding of a complete lack of jurisdiction in the Board. Noting that it was 'dealing with a case of first impression and one likely to be offered for review on certiorari,' it thought it appropriate to reach the merits as a hedge against the possibility that the Supreme Court might view the jurisdictional issue differently. And, reaching the merits, it denied enforcement on the ground that the facts as found by the Board did not add up to a violation of Section 8(b)(4)(ii)(B).

We think this decision not to rest upon the jurisdictional issue a highly prudential one. The resolution made of that issue was, as the court explicitly recognized, one of 'first impression,' and no direct authority could be adduced for it.7 The quoted phrase of the Supreme Court appears in a Norris-La Guardia Act case, in which the Court was passing on the jurisdiction of a district court to enjoin a strike, not the jurisdiction of the Board to entertain a charge of an unfair labor practice. It is not our function to say whether the Fourth Circuit was right or wrong in its jurisdictional ruling in the Tulse Hill case. We note only that the same result in practical effect (namely, the relieving of the union from the burden of the Board's order) was reached on another basis; and we are not persuaded by the authority of that case to deny the existence of jurisdiction in this one. As the Fourth Circuit thought it wise to do, so do we move on to NMU's second contention that, even if the Board had jurisdiction, it erroneously appraised NMU's conduct as subject to the strictures of Section 8(b)(4)(i) and (ii)(B) of the Act.

NMU's argument essentially is that Congress in enacting Section 8(b)(4) was addressing itself to the matter of secondary boycotts; that a secondary boycott traditionally and necessarily entails the existence of a dispute with a primary employer; and that, since NMU had no quarrel with Cambridge Carriers in Philadelphia, the sine qua non of prohibited secondary activity in New Orleans was missing. It points to many passages in the legislative history where secondary boycotts are unquestionably referred to in this traditional sense.8 And, as a decisional precedent, it rests upon Douds v. International Longshoremen's Ass'n, 224 F.2d 455 (2nd Cir.), cert. denied, 350 U.S. 873, 76 S. Ct. 117, 100 L. Ed. 772 (1955).9

Although the term 'secondary boycott' has been widely used as a convenient short-hand reference to the conduct forbidden by Section 8(b)(4), the phrase nowhere appears in that section or, indeed, anywhere else in the Act. Certain acts, when done for a specified object, are proscribed. The mere fact that the language of this Section comprehends the familiar patterns of a sectiondary boycott in the customary sense does not inexorably dictate the ocnclusion that it excludes all variations from those patterns. Where, as here, act and object fall comfortably within the letter of the statute, the Board's hand is to be stayed only upon a persuasive showing that they are beyond its spirit.

NMU has not convinced us that they are. The legislative history of so controversial a statute as this tends to be a welter of assertion and counter-assertion from which some comfort may be taken by almost any proponent of a particular construction. We are entitled to interpret Section 8(b)(4) in the light of the Congressional declaration of purpose and policy 'to promote the full flow of commerce' and 'to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare.' A 'central legislative purpose,' so we have recently said, was 'to confine labor conflicts to the employer in whose labor relations the conflict had arisen, and to wall off the pressures generated by that conflict from unallied employers.'10 The legislative proceedings giving rise to Section 8(b)(4) make clear that Congress wished its proscription to be broad enough to realize this purpose.11

In this framework, Cambridge Carriers is the employer with whom, and Philadelphia the place where, the trouble started. The occasion was the purchase by Cambridge Carriers of a ship which, prior to its sale, had been manned by MEBA personnel. NMU now protests that it cannot be under the ban of the statute because, even if Cambridge Carriers is to be thought of as a 'primary employer,' NMU, representing its employees, had no quarrel with it and no occasion to put pressure upon it to do other than what it was already doing. The pressures it sought to mobilize in New Orleans, so it is said, were directed solely against MEBA and not the primary employer. There are not answers to this. The first is that Congress clearly desired to protect neutral employers from the ramifying effects of inter-union, as well as union-employer, strife.12 And the second is that the neutral employer may be hurt just as badly by pressures generated in support of a primary employer as by those directed against him. It is the victim's neutrality which we conceive to be the central element of Congressional concern in this area.13 Cambridge Carriers, in a sense, voluntarily placed itself in a position where it was exposed to labor strife. Delta and Bloomfield, and the companies with which they did business in New Orleans, were wholly outside the orbit of this conflict. They were neutral, both in terms of their interest in and of their capacity to satisy NMU's purposes. We believe the Board fairly read Section 8(b)(4)(i) and (ii)(B) as an expression of a Congressional purpose not to permit NMU to force a suspension of business relationships in New orleans because of its dissatisfaction with a similar suspension which disadvantaged its members and their employer in Philadelphia.14

Whatever the meaning of Douds v. International Longshoremen's Ass'n, supra, may be, we are not impelled to reach a different result here becaue of it. It seems to say that if the ultimate objective is not prohibited by statute, an intermediate step in pursuit of that goal is not to be treated as illegal even though the statute, in both letter and spirit, appears to make it so. This is the kind of ratiocination more likely to be encountered in a reversal of criminal contempt convictions, as Douds was, than in less dramatic reviews of Board orders, which perhaps accounts for the fact that the Second Circuit, in the ten years since that decision, apparently had no further occasion to refer to it until very recently. In any event, the Second Circuit has itself now removed this obstacle, at least so far as concerns the set of facts immediately before us. The three judges of that court who granted enforcement of the Board's orders in the two related proceedings that grew out of NMU's picketing in Houston, Galveston, and Philadelphia, see note 2 supra, had no difficulty distinguishing Douds. In so doing they pointed out that the application of that case argued for there, and here, by NMU was 'at odds with' the language of the statute, the authoritative construction of that language by the Supreme Court, and the overwhelming weight of authority in other circuits.15

In Amalgamated Meat Cutters, etc. v. NLRB, 99 U.S.App.D.C. 24, 29, 237 F.2d 20, 25 (1956), cert. denied 352 U.S. 1015, 77 S. Ct. 556, 1 L. Ed. 2d 545 (1957), we were confronted with this same argument derived from the dichotomy of an assertedly legal ultimate objective, on the one hand, and an intermediate illegal purpose, on the other. In sustaining the Board order under Section 8(b)(4)(A), we said that the legality of the ultimate goal 'does not insulate the Union's actions where the Board finds on sufficient evidence, as here, that such ultimate object is sought by prohibited means. A finding of an illegal intermediate object is all that is required.' Thus, even though NMU's ultimate interest here be taken to be the innocent one of protecting its agreements from embarrassments of the kind caused by MEBA's picketing of the Maximus in Philadelphia, it could not seek to secure that interest through the illegal intermediate activity of closing down the operations of neutral employers in New Orleans.

NMU's third line of attack on the Board's order derives from the First Amendment. It reiterates NMU's claim before the Board that the only purpose of the picketing was to convey to MEBA crew members the information that their fellows in Philadelphia were engaged in reprehensible conduct. Thus, so goes the argument, if NMU may not effectuate this purpose by appropriate means, such as displaying signs setting forth this information, its constitutional rights of free speech are infringed. The Board, however, upon all the evidence before it, found NMU's purpose to be not simply to inform but to close down all operations by inducing all persons to refrain from crossing the picket line. This finding rested upon substantial evidence beyond that of the mere carrying of the signs as a 'signal,' and we need not view the case as presenting the free speech issue on that basis alone.

The Supreme Court has been careful to protect the area provided by Congress for peaceful picketing against unconstitutional encroachment. See NLRB v. Fruit and Vegetable Packers, etc., 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964). But conduct, including picketing, that is calculated to produce the secondary pressures forbidden by Section 8(b)(4) is not protected by the First Amendment. International Bhd. of Elec. Workers, etc. v. NLRB, 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299 (1951); and see Truck Drivers and Helpers Local 728, etc., v. NLRB, 101 U.S.App.D.C. 420, 249 F.2d 512, (1957), cert. denied, 355 U.S. 958, 78 S. Ct. 543, 2 L. Ed. 2d 533 (1958).16

The petition is denied; and the Board's request for enforcement is granted.

It is so ordered.