                                                                                                                           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Precedential or Non-Precedential: Precedential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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                      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 NLRB 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
