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United States: National Labor Relations Board Decision with Regard to Jurisdiction Over Commercial Activities of Foreign Governments in the United States*
Published online by Cambridge University Press: 20 March 2017
Abstract
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- Type
- Judicial and Similar Proceedings
- Information
- Copyright
- Copyright © American Society of International Law 1977
Footnotes
*
[Reproduced from the text provided by the National Labor Relations Board.
[The U.S. Foreign Sovereign Immunities Act of 1976 appears at 15 I.L.M. 1388 (1976). The Congressional Committee Report on the Jurisdiction of United States Courts in Suit sagainst Foreign States appears at 15 I.L.M. 1398 (1976).]
References
1 The name of the Petitioner appears as amended at the hearing to reflect the merger of the Amalgamated Clothing Workers of America with the Textile Workers Union.
2 Thereafter, the Board denied Petitioner’s request for a postponement of the oral argument. It also denied requests from counsel in SK Products Corp., Case 13-RC-14229, for oral argument in that case and its consolidation for argument herewith. The instant Employer opposed such consolidation.
3 Chairman Fanning in his dissenting opinion in AGIP, USA, supra, did reach the question of the Board’s legal jurisdiction, and would have asserted jurisdiction over the employer therein. He did not participate in British Rail international.
4 Ill. Rev. Stat. Ch. 16 ½ §501, et seq.
5 At the oral argument, counsel for the State Bank indicated that both Italy and France are currently operating state-owned banks in the Chicago area under the Foreign Banking Act.
6 Amalgamated Bank of New York, 92 NLRB 545 (1950). In N.L.R.B. v. Bank of America National Trust & Savings Association. 130 F.2d 624, 626 (1942), cert. denied 318 U.S. 791, enforcing an early Board Order appearing in 14 NLRB 207 (1939), and 26 NLRB 198 (1940), the Ninth Circuit stated:
The impact upon commerce of the partial or complete cessation of its banking operations would be felt immediately throughout the country, and indeed the world. ... The dependence of commerce upon the continuity of credit furnished by these great banking institutions is as marked as was its dependence upon the electric energy furnished by the intrastate utilities involved in Consolidated Edison Co. v. N.L.R.B.. 305 U.S. 197.
7 A $50,000 standard is applicable to this type of enterprise. H P 0 Service, Inc., 122 NLRB 394 (1958).
8 See The Royal Bank of Canada (San Juan Branch), 67 NLRB 403 (1946). In that case Jurisdiction was asserted over a foreign corporation conducting a general banking business in the Territory of Puerto Rico by virtue of a certificate of registration issued by the Puerto Rican Government. The decision also noted that the unfair labor practices involved had occurred within the Territory of Puerto Rico over which the Board had plenary jurisdiction. See also Delta Match Corporation. 102 NLRB 1400, fn. 2 (1953), deeming immaterial the fact that the employer was a wholly owned subsidiary of a Swedish corporation, as it was authorized to and does engage in business in the State of LouisianaנNo further inquiry was made in either case into ownership or control.
9 See N.L.R.B. v. Bank of America National Trust & Savings Association. 130 F.2d 624, 626-627. Expresaio unius est exclusio alterius.
10 Foley Bros.. Inc. v. Filardo. 336 U.S. 281, 285 (1948). In that case, the Supreme Court found that there was no language in the Eight Hour Law in question that gives “any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control."
11 The Court also relied on the “law of nations” and the particular Treaty of Friendship, Commerce and Consular Rights which provided that merchant vessels flying the flags and having the papers of either country “shall, both within the territorial waters of the other High Contracting Party and on the high seas, be deemed to be the vessels of the Party whose flag is flown."
12 American Banana Company v. United Fruit Company 213 U.S. 347, 357 (1909) ; 50 Am. Jur. Statutes, 510, par. 487. See also Restatement of the Law Second; Foreign Relations Law of the United States, sec. 38. Territorial Interpretation of United States Law (American Law Institute Publishers, 1965).
13 Chief Justice Marshall, in an early case regarding the doctrine of sovereign immunity, stated: “The jurisdiction of the nation within its own territory is necessarily exclusive aid absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validly from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.” The Schooner Exchange v. M’Faddon. 7 Cranch 116, 135 (1812), upholding a plea of immunity supported by an executive branch suggestion, by noting that in the circumstances involved a recognition of immunity was supported by the law and practice of nations.
14 Herbert Harvey. Inc., 171 NLRB 238 (1968), relied upon by the Employer, is not germane. Although the Board indicated that it could not assert jurisdiction over the World Bank because that international organization enjoys “the privileges and immunities from the laws of the sovereignty in which it is located customarily extended to such organizations,” the immunity was not merely implied. There is a specific statutory basis in the International Organization Immunities Act, 22 U.S.C. § 288, et seq., which grants a type of “sovereign immunity” to such organizations.
15 See C. P. Clare and Company. 191 NLRB 589, 590 (1971), explicating British Rail on the sole ground of ownership by an agency of the British Government. Although the American corporation in British Rail was a wholly owned subsidiary, that in AGIP was 97-percent foreign government owned. The State Bank of India is presently 92-percent foreign government owned.
16 P. L. 94-583, enacted Oct. 21, 1976, 90 Stat. 2891, amending Title 28 of the United States Code to add “Chapter 97---Jurisdictional Immunities of Foreign States,” and defining the jurisdiction of the United States courts in suits against foreign states, including political subdivisions of a foreign state or an agency or instrumentality thereof.
17 Sec. 1603(b) defines an “agency or instrumentality of a foreign state” as any entity---
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States
as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
Under 28 U.S.C. (1332(c) “a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business."
18 Sec. 1603(d) states: “A ‘commercial activity’ means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act” rather than by reference to its purpose."
19 H. Rept. 94-1487, House Committee on the Judiciary, 94th Cong., 2d Secs., p. 7. The legislative history also recognizes that “As a general matter, entities which meet the definition of an ‘agency or instrumentality of a foreign state’ could assume a variety of forms, including a state trading corporation, a mining enterprise, a transport organisation such as a shipping line or airline, a steel company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable in its own name.” (Emphasis supplied.) Ibid. pp. 15-16. The emphasized examples indicate entities similar to those which have been involved in NLRB cases in this area, e.g. British Rail international, Inc., the instant case, and AGIP, USA. Inc. We note, but find it unnecessary to discuss herein, the fact that both British Rail and AGIP involved American corporations.
20 Although Member Penello dissented from the grant of review in this case, he joins in the Board’s opinion asserting jurisdiction over the Employer. In view of the enactment of the Foreign Sovereign Immunities Act of 1976, which did not become effective until January of this year, Member Penello believes that declining jurisdiction over the Employer or discretionary grounds is no longer appropriate.
21 Chairman Fanning joins in overruling AGIP USA, Inc., for the same reasons that led him to dissent therefrom and for such additional considerations as are expressed in this decision.
22 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236 (1966); N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 13 within 7 days of the date of this Decision on Review and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.