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January 18, 1962

Frank W. McCULLOCH, Chairman, and Philip Ray Rodgers, Boyd Leedom, John H.Fanning, and Gerald A. Brown, Members, National Labor Relations Board, Defendants

The opinion of the court was delivered by: HOLTZOFF

The question presented in this case is whether the National Labor Relations Board has authority to order that an election for the designation of representatives for the purposes of collective bargaining, be held among foreign seamen employed on foreign merchant ships that have occasion to visit American ports and that are owned by a foreign corporation that is a subsidiary of an American corporation.

 On December 16, 1961 the plaintiff brought this action against the members of the Board to enjoin and restrain them from conducting the election on the ground that in ordering it, the Board had exceeded its legal authority. A temporary restraining order was issued on the same day. A hearing was held on December 20, 1961. The National Maritime Union of America, AFL-CIO, was granted leave to intervene as a defendant, since it had been a party to the proceeding before the Board. A motion for a preliminary injunction and a motion by the defendants to dismiss the complaint for failure to state a claim upon which relief can be granted were heard at length. A decision on these two motions was reserved in order to accord to the Department of Justice an opportunity to submit a statement as to its attitude and as to the position of the Department of State concerning the matter. *fn1"

 The pertinent facts may be summarized as follows. Empresa is a corporation organized under the laws of Honduras, where it maintains its principal office and place of business. It owns and operates a fleet of seagoing vessels, which are registered under the laws of Honduras and fly the flag of that country. The crews of these ships are composed entirely of citizens of Honduras, with the exception of one person, who is a British subject. All of the seamen are members of a Honduran labor union, which is the plaintiff in this action, and which is briefly known as Sociedad. They were hired in Honduras under shipping articles executed in that country. Sociedad is recognized by the Government of Honduras as the sole collective bargaining agent of these seamen. Collective bargaining agreements are in effect between Empresa and Sociedad. Empresa is a subsidiary of United Fruit Company, a New Jersey corporation. The ships in question make voyages and carry freight between Central and South American ports, as well as between Central and South American ports and ports of the United States.

 On November 13, 1959, the National Maritime Union of America, AFL-CIO, filed a petition with the National Labor Relations Board, seeking to represent as a single unit all unlicensed seamen employed on ships owned by various subsidiaries of the United Fruit Company, including Empresa. Statutory authority for maintaining such a proceeding is found in 29 U.S.C.A. ยง 159(c). The Union claimed that it represented a number of these employees. It does not appear whether the activity of the American Union was instigated by any of the seamen, or whether the Union was interjecting itself on its own initiative.

 Honorable Celeo Davila, Ambassador of Honduras, promptly submitted a formal written protest, dated November 29, 1961, against the decision of the Board, in which he courteously but firmly called attention to the fact that a treaty between Honduras and the United States, signed on November 7, 1927, provided that merchant vessels under the flag of either of the contracting parties, should be deemed to be the vessels of the party whose flag they fly, both within the territorial waters of the other party and on the high seas. He also called attention to some of the other facts that have already been summarized and to certain principles of international law.

 At the argument of the motions before this Court, a representative of the Department of Justice was present as an observer. The Court invited him to submit a statement of the views of the Government as to the merits of the Honduran note, and time was accorded for that purpose. Subsequently this Court received a formal communication from Honorable William H. Orrick, Jr., Assistant Attorney General, dated January 10, 1962, the pertinent portions of which read as follows:

 'The Department of State informs me that, although the Department does not support all the statements in the Honduran Note, it agrees with the conclusion that jurisdiction of the National Labor Relations Board should not attach in this case.

 'We are sending copies of this letter to the counsel of record.'

 Counsel for the National Labor Relations Board responded by a letter dated January 12, 1962, in which he took issue with the Department of Justice and the Department of State, and adhered to his original position that the Board had acted within the scope of its authority.

 This disagreement between counsel for various agencies of the Government complicates the problem before the Court and requires more elaborate and exhaustive discussion than might otherwise be needed. The Attorney General, as the chief legal officer of the Government, through his representatives, indicates that the Department of State is of the opinion that the jurisdiction of the National Labor Relations Board should not attach in this case. It is a reasonable inference that in transmitting the views of the Department of State, the Department of Justice was, in effect, approving or concurring in them. On the other hand, counsel for the National Labor Relations Board, which theoretically is also an agency of the Executive branch of the Government, strikes a dissonant note and seeks to uphold the jurisdiction of the Board. Ordinarily, the Attorney General, through members of his staff, or through the United States Attorney, appears in behalf of the Government. If there are any differences of opinion between Government agencies, they are generally adjusted intramurally, and the definitive position of the Government is presented to the Courts by the Attorney General through his representatives. *fn2"

 It was at first assumed that these Boards and Commissions were included entirely within the Executive branch of the Government. The Supreme Court in Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S. Ct. 869, 79 L. Ed. 1611, however, held that to a considerable extent such regulatory bodies were independent of the Executive. Thus in order to secure their independence, members of such boards and commissions, unlike other appointees of the President, were not subject to removal by the President at will. Mr. Justice Sutherland in his learned and thoughtful treatment of this topic indicated that these agencies were in part quasi-legislative and in part quasi-judicial. It may well be that from the standpoint of political science and constitutional law, we are gradually evolving a Federal government divided into four coordinate branches, instead of three. This is not said in any critical vein, but merely in the interest of clarity of thought. It is entirely possible that the development will prove salutary. The law and political institutions cannot stand still or remain static.

 The issue to be decided in this litigation, namely, the status of a merchant ship in a foreign port, lies in a field that has frequently been discussed by the courts as well as by publicists and commentators. These discussions are not always consistent with each other and some of them are difficult to reconcile. For example, there are divergent statements as to whether a merchant ship is a part of the territory of the country whose flag it flies when it is in the territorial waters or a harbor of a foreign country.

 In United States v. Rodgers, 150 U.S. 249, 260, 14 S. Ct. 109, 113, 37 L. Ed. 1071, it was stated that as concerns transactions on board merchant ships, the vessels 'are deemed to be within the country of their owners. Constructively they constitute a part of the territory of the nation to which the owners belong.'

 In United States v. Flores, 289 U.S. 137, 155, 53 S. Ct. 580, 77 L. Ed. 1086, Mr. Justice Stone observed that a merchant vessel is deemed to be a part of the territory of the sovereignty whose flag it flies for the purposes of jurisdiction to punish crimes committed on board ship. It does not lose that character ...

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