Benz v. Compania Naviera Hidalgo, S.A./Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The case involves a contest between American unions and a foreign ship. The foreign ship came to Portland, Oregon, to load a cargo of wheat for carriage to India. The crew members were paid about one-third the amount of cash wages that are paid to American seamen on American vessels carrying grain to the Orient. This foreign ship is in competition with those American vessels.

American unions, therefore, have a interest in the working conditions and wages of the seamen aboad this foreign vessel. Their interest is in the re-employment of the foreign crew at better wages and working conditions. And they peacefully picketed the foreign vessel to further that interest.

The judgment we sustain today is one in damages against members of the American union who engaged in that peaceful picketing. It is for conduct precisely regulated by the Taft-Hartley Act.

If, as the District Court found, the purpose of the picketing was to prevent the repairing and loading of the foreign vessel, the question then arises whether the peaceful picketing was not a secondary boycott condemned by § 303(a)(1) of the Act.

If the purpose of the peaceful picketing was to force the foreign vessels to bargain with one of the American unions without any of them being first certified as the representative of the seamen, the question arises whether that was not a violation of § 303(a)(2) of the Act.

If either § 303(a)(1) or § 303(a)(2) was violated, then the injured person may sue in the federal courts for damages, as provided in § 303(b). The Court bases its decision that the Act is inapplicable on the conclusion that the underlying controversy was between the foreign vessel and its crew. It intimates, however, that the Act would apply if this suit had been brought by the American independent contractors whose employees refused to cross the picket line, although the identical conduct by the American unions were involved. But, even if we assume arguendo that the foreign vessel would not be subject to the regulatory provisions of the Act, it could nonetheless sue under § 303(b) to get protection from any unfair labor practice condemned by the Act. That is indeed the force of our ruling in Local Union No. 25 of International Brotherhood of Teamsters, etc. v. New York, N.H. & H.R. Co., 350 U.S. 155, 160-161, 76 S.Ct. 227, 230-231, 100 L.Ed. 166.

The Labor Board has asserted jurisdiction over unions that bring their pressures to bear on vessels of foreign registry. (In the matter of Sailors' Union of the Pacific, 92 N.L.R.B. 547), at the same time that it has declined to assume jurisdiction over the foreign vessel. Id., pp. 560-561.

If there is to be peace along the waterfront and a full and free flow of commerce as declared in § 1 of the Act, these American unions should be subject only to disciplinary action by the federal agencies to whom Congress has entrusted the job of law enforcement. Only by applying those centralized controls can we avoid the 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters, Chaufferus & Helpers Local Union, 346 U.S. 485, 490, 74 S.Ct. 161, 166, 98 L.Ed. 228.

There is no hiatus in the federal regulatory scheme as was true in United Construction Workers, Affiliated with United Mine Workers of America v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025. The facts alleged in the complaint, if true, might constitute unfair labor practices under the Act; and Congress has provided, as against American unions, both an administrative remedy and a remedy by way of damages. I see no answer therefore to the conclusion that state law has been pre-empted by federal law within the meaning of our decision in Weber v. Anheuser-Busch Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.

If American unions or their members are to be mulcted in damages for unfair labor practices affecting commerce, Congress has provided the way in which it shall be done.