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Bowater Steamship Co. v. Patterson

March 28, 1962


Author: Friendly

Before LUMBARD, Chief Judge, CLARK and FRIENDLY, Circuit Judges.

FRIENDLY, C. J.: The facts, stipulated or testified, include the following:

Plaintiff, The Bowater Steamship Company, Ltd., an English corporation, owns the M/V Gladys Bowater, a British registered ship. Plaintiff is owned by Bowater Paper Company, Limited, an English corporation, which also owns The Bowater Corporation of North America, Limited, a Canadian corporation, which, in turn, owns Bowater's Newfoundland Pulp and Paper Mills, Limited, a Canadian corporation. Bowater's Newfoundland operates pulp and paper mills in the Province of Newfoundland, where it has timber lands and licenses to timber rights and lands owned by others. Bowater's Newfoundland sells its paper to a subsidiary, Newfoundland Export and Shipping Company, Limited, which in turn sells some of it to Bowater Paper company, a New York corporation owned by Bowater Corporation of North America, which sells to consumers in the United States. Paper thus sold is transported by seven British registered vessels, including the Gladys Bowater, owned by plaintiff and chartered by it to Bowater's Newfoundland.

International Woodworkers of America, hereafter IWA, whose secretary and certain of whose members were named as defendants, is a labor organization with officers and members in the United States and Canada. Beginning late in 1956, IWA sought to organize employees of contractors in Newfoundland who were cutting timber for Bowater's Newfoundland and also employees of Anglo-Newfoundland Development Company, a competing concern with which Bowater's had no corporate affiliation but which had at one time joined with Bowater's in "joint and common labor agreements" covering the woods employees. The Newfoundland Labor Relations Board certified IWA as collective bargaining agent for the employees of Anglo-Newfoundland and of some of the Bowater contractors.

Bargaining by IWA with Anglo-Newfoundland and with the Bowater contractors having failed to produce an agreement, and Anglo-Newfoundland having refused to accept an award by the Newfoundland conciliation service, the IWA called a strike in December, 1958. The strike affected virtually all of Anglo-Newfoundland's lumbering operations. Bowater's announced it would supply Anglo-Newfoundland with pulp wood and did so; this led to a strike by the workers of contractors on Bowater lands. The strike was characterized by violence; a new union was formed, at the urging of the Premier of the Province. Thereupon Anglo-Newfoundland and Bowater issued a joint statement that "Under no circumstances * * * will A.N.D. and Bowater sign any agreement with the I.W.A.," and that if the companies' wood supplies became exhausted through IWA's efforts, they would shut down their mills. On March 6, 1959, the Newfoundland House of Assembly adopted 1959 Trade Union (Emergency Provisions) Act No. 2. This revoked the certification of "each trade union named in the schedule to this Act," to wit, Locals 2-254 and 2-255 of IWA; invalidated any agreements made with any such union; and provided that any such union shall not apply for certification, and that the Labor Relations Board shall not grant certification, without the consent of the Lieutenant-Governor in Council.

In July, 1959, the Gladys Bowater sailed from Newfoundland with a cargo including newsprint destined for two Buffalo papers. The newsprint had been sold to Bowater Paper Company of New York, which resold it to the users. The officers and crew of the Gladys Bowater were British nationals, hired under British articles and represented by British labor organizations. On her arrival in Buffalo on August 3, a picket appeared at the dock with a sign reading

"SS Gladys Bowater Unfair to Organized Labor, International Woodworkers of America, AFL-CIO."

The longshoremen who had been engaged to unload her cargo refused to do so.

Plaintiff then began this action in the Western District of New York, alleging jurisdiction under 28 U.S.C. § 1331, in general terms, and seeking temporary and permanent injunctive relief and damages. A temporary restraining order was issued on August 6, 1959, without a hearing. The picketing ceased; the Gladys was unloaded and sailed on August 8. However, plaintiff pressed the motion for a temporary injunction because of the likely resumption of picketing on further voyages of the Gladys or other Bowater vessels. November 4, 1959, Judge Burke concluded that plaintiff was entitled to a preliminary injunction and directed that a decree be settled on notice; however, none was presented. After the Supreme Court's decision, on April 18, 1960, in Marine Cooks & Stewards v. Panama SS. Co ., 362 U.S. 365, the judge called for briefs and further argument. He concluded, on September 15, 1960, that, under that decision, the Norris-LaGuardia Act, 29 U.S. C. §§ 101-115, deprived him of jurisdiction to grant an injunction. The appeal is from that ruling, 28 U.S.C.§ 1292(a)(1); we affirm.

Since inquiry at the argument revealed that picketing of plaintiff's vessels has not been resumed despite the denial of a temporary injunction more than a year ago, we have considered whether we ought decline to pass upon the thorny issue decided by the District Judge. Plainly defendant's failure to resume picketing does not require us to dismiss plaintiff's appeal as moot; "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case," United States v. W.T. Grant Co ., 345 U.S. 629, 632 (1953), and cases cited. Still, as was there said, in order to obtain an injunction, or, we should suppose, to warrant a remand for the issuance of one, "the moving party must satisfy the court that relief is needed" - there must be "some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." 345 U.S. at 633. Here, upon our inquiry at the argument, the defendants, far from disclaiming intention to repeat the allegedly illegal conduct, indicated they might well resume picketing unless our decision should indicate that this would be enjoined. Hence we cannot properly affirm on the simple basis that no need for an injunction now appears.

Section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, deprives a Federal court of "jurisdiction" to issue an injunction "in any case involving or growing out of any labor dispute to prohibit any person or persons participating in or interested in such dispute * * * from * * * (e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence." Section 13(c), 29 U.S.C. § 113(c), defines "labor dispute" broadly to include "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." Section 13(a), 29 U.S.C. § 113(a), says that "A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; * * * or when the case involves any conflicting or competing interests in a 'labor dispute' (as defined in this section) of 'persons participating or interested' therein (as defined in this section)." The latter class is defined in § 13(b), 29 U.S.C. § 113(b), as a person or association against whom relief is sought "if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation."

Plaintiff first argues that defendants are in the industry or trade of wood-cutting whereas plaintiff is in that of shipping, hence plaintiff and defendants are not "persons who are engaged in the same industry, trade, craft, or occupation." Apart from other possible answers, this argument places more weight on the separate corporate identities of the various Bowater companies than these can properly bear. Assuming, as we may, that plaintiff and Bowater's Newfoundland had sufficient independence to be regarded, in contract or tort litigation, as separate both from the ultimate parent, Bowater Paper Company, Ltd., and from each other, see Bartle v. Home Owners Cooperative, Inc ., 309 N.Y. 103, 127 N.E. 2d 832 (1955), it does not follow that they ought to be so regarded for application of the Norris-LaGuardia Act. Whether a subsidiary corporation is to be considered a separate entity "cannot be asked, or answered, in vacuo ," Latty, The Corporate Entity as a Solvent of Legal Problems, 34 Mich. L. Rev. 597, 603 (1936); the issues in each case must be resolved in the light of the policy underlying the applicable legal rule, whether of statute or common law. Contrast Hart Steel Co. v. Railroad Supply Co ., 244 U.S. 294 (1917), and Chicago, M. & St. P. Ry. v. Minneapolis Civic & Commerce Assn ., 247 U.S. 490 (1918), with In re Gibraltor Amusements, Ltd ., 291 F.2d 22 (2 Cir.), cert. denied, 368 U.S. 925 (1961), and Empresa Hondurena de Vapores, S.A. v. McLeod, - F.2d -, - and (2 Cir. 1962). As the Supreme Court has repeatedly taught, the policy behind the Norris-LaGuardia Act was a strong one; we cannot think Congress would have meant this to be defeated by the fragmentation of an integrated business into a congeries of corporate entities, however much these might properly be respected for other purposes.*fn1 Nothing turns on the fact that the picket was not an employee but represented a union seeking to organize employees, Lauf v. E.G. Skinner & Co ., 303 U.S. 323 (1938). Neither is there weight in plaintiff's argument that the woods workers in Newfoundland are employed by contractors rather than by Bowater's Newfoundland. For, again apart from other possible answers such as Bowater's assistance to Anglo-Newfoundland, there was abundant evidence that Bowater's and Anglo-Newfoundland were directing the policy as to recognition of the IWA, and § 13(c) explicitly tells us that a labor dispute may exist "regardless of whether the disputants stand in the proximate relation of employer and employee." See Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc ., 311 U.S. 91 (1940); Aetna Freight Lines, Inc. v. Clayton, 228 F.2d 384, 386-387 (2 Cir. 1955), cert. denied, 351 U.S. 950 (1956).

The applicability of the Norris-LaGuardia Act would thus have been patent if the timber lands had been, say, in Minnesota and a vessel owned by an affiliate of their owner had brought the paper down the lakes to Buffalo from the west rather than the east. The problem here arises from the foreign aspects of the case. These are always important, and may be critical; we have recently recognized that where such aspects exist, statutory words often are not "stretched to their literal bounds because statutes relating to international matters are construed in accordance with international usage," Empresa Hondurena de Vapores, S.A. v. McLeod, supra, at - . However, in that same opinion, at -, we pointed out the distinction between the application to a largely foreign setting of an affirmative regulatory statute, there the National Labor Relations Act, and, referring to Marine Cooks, the withholding by the Norris-LaGuardia Act of a particular remedy in a particular set of courts against conduct occurring in our own country. See The Supreme Court, 1959 Term, 74 Harv. L. Rev. 95, 193-194 (1960).

We read Marine Cooks as settling a number of points in this area. One is that inapplicability of the picketing provisions of the Labor Management Relations Act of 1947 to a labor dispute because of the latter's foreign contacts, Benz v. Compania Naviera Hidalgo, S.A ., 353 U.S. 138 (1957), does not carry similar inapplicability of the Norris-LaGuardia Act in its train, 362 U.S. at 369. Another is that the foreign registry of a vessel, there the S. S. Nikolos, does not give a district court "jurisdiction" to enjoin picketing which the court would not have if the ship flew our own flag, 362 U.S. at 372. A third is that the Norris-LaGuardia Act applies even when, as there, the American seamen who were picketing were not intervening in a dispute between the crew of the vessel and its owner, as in the Benz case, but rather were seeking to discourage labor practices of ...

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