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Asplundh Tree Expert v. NLRB Precedential or Non-Precedential: Precedential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

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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 Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. 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,

. 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,

(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.,

, 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,

(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,

, 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”),

(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.,

, 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.,

, citizens employed abroad by United 646 n.4 (5th Cir. 2004) (citing 42 U.S.C. § States employers.

. 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.

. As ARAMCO teaches, we begin our analysis with the language of the NLRA. ARAMCO,

(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.”

(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.,

(1984), See, e.g., Computer Sciences Raytheon, enf’d,

(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,

.

(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. . .” .

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.”

(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

(6) (1988) (emphasis Congress’ intent to give the EEOC added). extraterritorial jurisdiction. ARAMCO,

. 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.

(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.”

. (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

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.”

. “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,

(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

. Similarly, in enacting the United States border into Canada.”

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,

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.

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.

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.

. 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.

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

, 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.

Jamaican.

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.”

. 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.”

Both sides was governed by Honduran labor law.

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,

. The question was “whether their cargoes and sailings, and integrated Congress had exercised that power.”

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.

“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.

. 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.

. 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.”

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.”

.

12 the American contacts in the dispute were

. 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.

. registered vessels employing alien seamen.”

(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.”

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,

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,

-52 (citing impact of the extraterritorial application to McCulloch,

). 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.,

, 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”),

(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,

(3d Cir. 1984); be made that Brinson’s and Crabtree’s Wolf v. J. I. Case Co.,

“work station” was in Canada, not the (E.D. Wis. 1995); Lopez v. Pan Am World United States. As noted earlier, Asplundh Servs., Inc.,

(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

(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),

(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.,

(3d Cir. 1984).

, 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

(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

. 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.

. 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.,

(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

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,

, 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,

.

17