Nos. 02-1151/1543 ASPLUNDH TREE EXPERT COMPANY v. National Labor Relations Board

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Nos. 02-1151/1543
ASPLUNDH TREE EXPERT
COMPANY,
Petitioner No. 02-1151
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent
________
NATIONAL LABOR RELATIONS
BOARD,
Petitioner No. 02-1543
v.
ASPLUNDH TREE EXPERT
COMPANY,
Respondent
Petition for Review and Cross-
Application for Enforcement of an
Order of the National Labor Relations
Board Proceeding 9-CA-360005
Argued: November 8, 2002
Before: McKEE and GREENBERG,
Circuit Judges, and LIFLAND, District
Judge*
(Opinion filed: April 22, 2004)
STEVEN R. SEMLER, ESQ. (Argued)
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
2400 N Street, NW
Washington, D.C. 20037
Attorneys for Asplundh Tree Expert
Company
ARTHUR R. ROSENFELD, ESQ.
General Counsel, National Labor
Relations Board
JOHN E. HIGGINS, JR., ESQ.
Deputy General Counsel
JOHN H. FERGUSON, ESQ.
Associate General Counsel
AILEEN A. ARMSTRONG, ESQ.
Deputy Associate General Counsel
CHARLES DONNELLY, ESQ.
Supervisory Attorney
*The Hon. John C. Lifland, District
Judge of the United States District Court
for the District of New Jersey, sitting by
designation.

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JOHN R. McINTYRE, ESQ. (Argued)
Attorney
National Labor Relations Board
1009 14th Street, NW
Washington, D.C. 20570
Attorneys for National Labor Relations
Board
OPINION
McKEE, Circuit Judge.
Asplundh Tree Expert Company
petitions for review of a decision of the
National Labor Relations Board (“NLRB”
or “Board”) wherein the NLRB ruled that
Asp lundh committed unfair labor
practices by threatening to lay off Dennis
Brinson and by discharging Brinson and
Eric Crabtree in response to their
concerted complaint about working
conditions while on temporary work
assignment in Ottawa, Canada. Those
employees also briefly withheld their
services in support of their job related
complaints. The Board has cross-applied
for enforcement of its order. However,
we hold that since the National Labor
Relations Act (“NLRA”) does not apply
outside the territorial jurisdiction of the
United States, the Board did not have
jurisdiction over the unfair labor practices
charge. Accordingly, we will vacate the
Board’s decision.
I. FACTS
Asplundh provides tree trimming
services throughout the eastern United
States and maintains its principal place of
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
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
Asplundh and IBEW covers Asplundh’s
workers when they are engaged in line
clearance work on the property of
Cincinnati Gas & Electric Company or its
subsidiaries.
Asplundh also offers its services to
utilities and other entities in other states.
In that capacity, it assigns its employees to
perform work related to storms, natural
disasters and natural emergencies. Several
provincial governments in Canada retained
Asplundh to assist in clearing electrical
lines, trimming tree limbs and cleaning
streets after a major ice storm struck
eastern Canada in January 1998. Ottawa,
Ontario was among the entities that
contracted for Asplundh’s services
following that storm, and on January 12,

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Asplundh’s Cincinnati operation prepared
to send 10 crews of 2 employees each to
that Canadian city.
Asplundh does not require its
employees to travel outside of their
locality for emergency storm cleanup
work like the Ottawa assignment.
Instead, employees volunteer for such
work, and are compensated in part by a
per diem covering their food and lodging
while working away from home.
On January 13, a group of 20
employees met in a parking lot before
leaving for Ottawa. At the meeting,
Supervisor Darrell Lewis told the
employees that they would receive per
diem payments in the amount of $25 for
food and that Asplundh would pay up to
$75 per day for hotel rooms.1
The group left for Ottawa later that
day in a caravan of Aslpundh trucks.
Lewis did not travel to Ottawa, and
Foreman Ronald Lacey was therefore left
in charge of the assignment. On the 31
hour trip to Ottawa, the employees did not
take any breaks lasting longer than 3
hours. They also experienced a number
of problems including malfunctioning
heaters and taillights. Several crews
became lost when they were unable to
keep pace with Lacey, who was leading
the caravan. Some employees received no
per diem or food money for the
uninterrupted travel time. By the time the
employees arrived in Ottawa on the
evening of January 14, many of them were
hungry, fatigued and disgruntled.
Once in Ottawa, Lacey reserved
hotel rooms for all of the employees which
he paid for at a negotiated price of $61 per
room per night. That rate was obviously
less than the $75 per night Lewis had told
the employees was available for their
lodging. Concomitantly, some of the
employees began to feel that the $25 per
diem for food was insufficient to cover the
high cost of food in Ottawa.
At least four employees – Brinson,
Crabtree, Shane Duff and Ron Noble –
met on the first night in Ottawa and
discussed their dissatisfaction with the
problems they had encountered en route as
well as the amount of their per diem. They
discussed augmenting the per diem with
the $14 remaining from the difference
between the $75 that Asplundh was
willing to spend per hotel room and the
$61 that Lacey was actually paying. They
agreed that they should discuss the matter
with Lacey and decided that Brinson
would be the spokesperson.
On January 15 and 16, the cleanup
crews worked 12-hour days without
incident. However, at some point during
that period, Duff obtained the hotel phone
number of his brother, Mike Gilbert, who
was working in Quebec for Asplundh on
another storm cleanup assignment. Gilbert
1 Some employees understood Lewis
to have said they would get up to $75 a
night for motel expenses; however, Lewis
testified before the ALJ that he told them
that Asplundh could pay up to $75 a day
for their rooms, and the NLRB apparently
accepted that testimony as credible.

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and Duff spoke numerous times during
the course of those two days. They
compared notes and concluded that
Asplundh employees on assignment in
Quebec were better off than Asplundh
employees in Ottawa. For example,
Gilbert told Duff that the Quebec crew’s
supervisor paid for all of their food and
phone calls, and occasionally even treated
employees to steak dinners. Brinson also
talked to Gilbert and told co-workers
Cra b t r e e and N oble a bou t the
circumstances of the workers in Quebec.
After hearing about this disparity, the
Ottawa crew decided to confront Lacey
and request a larger per diem.
On the morning of January 17,
Brinson phoned Lacey and told him that
the employees wanted a $14 increase in
their per diem payments – the difference
between the $75 authorized for hotel
rooms and the actual $61 room cost.
Brinson also indicated that the employees
might not work if their per diem payments
were not increased. Lacey then called
Cincinnati and spoke with Lewis, the
supervisor. Lacey told Lewis of the
employees’ request and of the possibility
that they might not work if their concerns
were not addressed. Lewis instructed
Lacey not to raise the per diem payments
and told Lacey that “if they’re not going
to take the trucks out, that means they
quit.”
Lacey went to the hotel lobby to
meet with the employees, placed another
call to Lewis, then handed Brinson the
phone. Lewis told Brinson that the
employees were “whiny cry babies” and
were “making the Company look bad.”
Lewis then told Brinson that a number of
crews would be laid off when they
returned to Cincinnati and that the Ottawa
employees were making it easier for Lewis
to decide whom to lay off.
Brinson relayed his conversation
with Lewis to a group of crew members,
told them it was time to decide what they
wanted to do, and then left to let them
make a decision. A short time later,
Brinson realized that most of the crew
members had left to go to their work
assignment.
Lacey then approached Brinson,
who was standing with Crabtree, Duff and
Noble, and asked them what they were
going to do. Brinson replied that they still
wanted to discuss their situation before
going to work. Lacey responded by
demanding Brinson’s truck keys. After
Brinson handed over his keys, Lacey asked
Crabtree what he wanted to do. Crabtree
replied: “I’m with Dennis [Brinson]. I still
think we need to have something done
about this.” Lacey then asked Crabtree for
his keys, and after Crabtree gave them to
Lacey, Lacey said “this means you quit.”
Lacey also admonished Brinson and
Crabtree for sticking up for their fellow
employees and then told them to “get
home the best way you f...g can.” Duff
and Noble briefly considered joining
Brinson and Crabtree in their refusal to
work, but Brinson, concerned about Duff’s
and Noble’s job security, convinced them
that they ought to go to work.
Soon thereafter, Brinson and

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Crabtree returned to Cincinnati by bus.
Once back in Cincinnati, Brinson
repeatedly offered to return to work, but
neither he nor Crabtree were ever allowed
to return to their jobs with Asplundh.2
II. PROCEDURAL HISTORY
On May 29, 1998, Brinson filed a
charge with the Board alleging that
Asplundh “discharged its employees
Dennis Brinson and Paul Eric Crabtree
because of their protected, concerted
activities.” App. at 419. On January 22,
the General Counsel issued a complaint
and hearings were thereafter held before
an administrative law judge. The ALJ
ruled that Asplundh had engaged in unfair
labor practices, in violation of § 8(a)(1) of
the NLRA, 29 U.S.C. § 158(a)(1),3 by
threatening Brinson with layoff because of
his concerted activity and by discharging
Brinson and Crabtree for engaging in that
same activity.
Asplundh filed exceptions to the
ALJ’s decision. On November 30, 2001,
the Board affirmed the ALJ’s decision. It
ordered Asplundh to cease and desist from
engaging in unfair labor practices and
from interfering with employees in the
exercise of the rights guaranteed by § 7 of
the NLRA, 29 U.S.C. § 157. The Board
also ordered Asplundh to reinstate Brinson
and Crabtree, make them whole, remove
any reference to improper conduct from
their personnel files, and post a remedial
notice at its Cincinnati location.
Asplundh’s petition for review and
the Board’s a cross-application for
enforcement followed.
III. DISCUSSION
Asplundh argues that the Board’s
2The Board and Asplundh agree that
because the collective b argain ing
agreement between IBEW Local 171 and
Asplundh was limited to work on the
property of Cincinnati Gas & Electric
Company and its subsidiaries, Local 171
was not the employees’ exclusive
representative for the purposes of
employment in Ottawa.
3Section 8(a)(1) of the NLRA, 29
U.S.C. § 158(a)(1), makes it an unfair
labor practice for an employer to
“interfere with, restrain, or coerce
employees in the exercise” of the rights
guaranteed in Section 7 of the NLRA, 29
U.S.C. § 157. Section 7, in turn,
guarantees employees the right to engage
in “concerted activities” not only for self-
organization, but also “for the purpose of
. . . mutual aid or protection. . . .” The
“mutual aid or protection” clause of § 7
protects employees’ concerted activity that
relates to their terms and conditions of
employment, whether or not they are
engaged in union related activity. NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14
(1962). Section 8(a)(1) also makes it in
unfair labor practice for an employer to
discharge an employee in response to the
employee’s participation in protected,
concerted activity. Tri-State Trucking
Serv., Inc. v. NLRB, 616 F.2d 65, 69 (3d
Cir. 1980).

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finding of violations of § 8(a)(1) of the
NLRA was not supported by substantial
evidence. However, we must first
resolve Asplundh’s challenge to the
Board’s exercise of jurisdiction over an
unfair labor practices charge arising from
“offending” conduct that occurred in
Canada.4
Although Congress undoubtedly
has the authority “to enforce its laws
beyond the territorial boundaries of the
United States[,] . . . [w]hether Congress
has in fact exercised that authority . . . is
a matter of statutory construction.”
EEOC v. Arabian American Oil Co.,
(“ARAMCO”), 499 U.S. 244, 248 (1991)
(citations omitted).5 Moreover, “[i]t is a
longstanding principle of American law
‘that legislation of Congress, unless a
contrary intent appears, is meant to apply
only within the territorial jurisdiction of
the United States.’” Id. (quoting Foley
Bros., Inc. v. Filardo, 336 U.S. 281, 285
(1949)).
This canon of construction
is a valid approach whereby
unexpressed congressional
intent may be ascertained. It
serves to protect against
unintended clashes between
our laws and those of other
nations which could result
in international discord.
In applying this rule of
construction, we look to see
whether language in the
relevant Act 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. We assume that
Congress legislates against
the bac k d r o p o f the
4Asplundh argued before the ALJ and
the Board, that because the conduct
giving rise to the unfair labor practices
charge occurred outside the United States,
the Board did not have jurisdiction. Both
the ALJ and the Board rejected
Asplundh’s argument. However, we owe
no deference to the NLRB’s view because
the extraterritorial application of a statute
is purely a matter of statutory construction
not involving agency expertise. Cleary v.
United States Lines, Inc., 728 F.2d 607,
610 n.6 (3d Cir. 1984).
5In ARAMCO, the Supreme Court held
that protections against employment
discrimination of Title VII of the Civil
Rights Act of 1964 did not extend
extraterritorially to protect United States
citizens employed abroad by United
States employers. 499 U.S. at 248-59.
However, in the wake of ARAMCO,
Congress amended Title VII to protect
United States citizens employed abroad by
United States employers. Spector v.
Norwegian Cruise Line Ltd., 356 F.3d 641,
646 n.4 (5th Cir. 2004) (citing 42 U.S.C. §
2000e(f) (2000)).

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p r e s u m p t i o n a g a i n s t
e x t r a t e r r i t o r i a l i t y .
Therefore, unless there is
the affirmative intention of
the Congress clearly
e x p r e s s ed , w e m u s t
presume it is primarily
concerned with domestic
conditions.
ARAMCO, 499 U.S. at 248 (citations,
internal quotations, ellipses and brackets
omitted).
Asplundh bases its argument that
the Board lacked jurisdiction over the
unfair labor practices charge largely upon
the presumption against extraterritoriality
which the Court explained in ARAMCO.
T h e B o a r d a c k n o w l e d g e s t h is
presumption against extraterritoriality.
Indeed, the Board, has applied the
jurisdictional test of ARAMCO in holding
that the NLRA does not apply abroad.
See, e.g., Computer Sciences Raytheon,
3 1 8 N L R B 9 6 6 , 9 6 8 ( 1 9 9 5 ).
Nonetheless, the Board now contends that
the assumption of jurisdiction over the
unfair labor practices charge at issue here
is “entirely compatible” w ith the
presumption against extraterritoriality.
Board’s Br. at 22.
In the Board’s view, it is
appropriate for it to assume jurisdiction
when a United States citizen is working
on a short-time, temporary assignment
outside the United States, with the clear
expectation of returning to the United
States upon co mp letion of the
assignment.6 This argument is not without
some force and certainly appears
consistent with the labor policy endemic in
the NLRA. However, as noted above, our
task is one of statutory interpretation.
Accordingly, sound policy positions
advocated by either side neither constrain
nor influence our inquiry. See ARAMCO,
499 U.S. at 248.
As ARAMCO teaches, we begin our
analysis with the language of the NLRA.
Section 10 of that Act provides that “[t]he
Board is empowered, as hereinafter
provided, to prevent any person from
engaging in any unfair labor practice
(listed in sectio n 15 8) aff ecting
commerce.” 29 U.S.C. § 160(a).
Admittedly, the NLRA defines the
jurisdictional terms “affecting commerce”
a n d “ c o m m e r ce ” v er y br oa dl y.,
6In its brief, the Board cites to
December 12, Inc., 273 NLRB 1 (1984),
enf’d, 772 F.2d 912 (9th Cir. 1985), in
which it held that it was appropriate for it
to assert jurisdiction over a United States
employer and its United States employee,
ordinarily stationed in the United States,
who was discharged for engaging in
protected activity while on a temporary
assignment in Australia. In asserting
jurisdiction, the Board noted that the fact
that the “activities occurred outside the
United States did not render them any less
protected.” Id. at 5 n.11. However,
December 12 was decided before
ARAMCO. Moreover, the unlawful
discharge in December 12 occurred in the
United States, not in Australia.

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“‘[A]ffecting commerce’ means in
commerce, or burdening or obstructing
commerce or the free flow of commerce,
or having led or tending to lead to a labor
dispu te burd enin g or obstructing
commerce or the free flow of commerce.”
29 U.S.C. § 152 (7). Similarly, the NLRA
broadly defines “commerce” as:
trade, traffic, commerce,
t r a n s p o r t a t i o n , o r
communication among the
several States, or between
the District of Columbia or
any Territory of the United
States and any State or
other Territory, or between
any foreign country and
any State, Territory, or the
District of Columbia, or
within the District of
Columbia or any Territory,
or between points in the
same State but through any
other State or any Territory
or the District of Columbia
or any foreign country.
29 U.S.C. § 152(6) (1988) (emphasis
added).
Thus, a literal reading of the
jurisdictional and definitional provisions
of the NLRA seems to not only favor the
NLRB’s extraterritorial exercise of
jurisdiction, it seems to dictate that result
and end our jurisdictional inquiry.
However, in interpreting this seemingly
broad language, we are not free to ignore
the Supreme Court’s interpretation of the
similarly broad jurisdictional reach of Title
VII in ARAMCO. Title VII then stated that
“[a]n employer is subject to Title VII if it
has employed 15 or more employees . . .
and is engaged in an industry affecting
commerce.” ARAMCO, 499 U.S. at 249.
“An industry affecting commerce” was
defined as “any activity, business, or
industry in commerce or in which a labor
dispute would hinder or obstruct
commerce or the free flow of commerce
and includes any activity or industry
'affecting commerce' within the meaning
of the Labor-Management Reporting and
Disclosure Act of 1959. . .” . Id.
“Commerce,” in turn, was defined as
“trade, traffic, commerce, transportation,
transmission, or communication among the
several States; or between a State and any
place outside thereof; or within the
District of Columbia, or a possession of
the United States; or between points in the
same State but through a point outside
thereof.” Id. (internal quotation marks
omitted) (emphasis added).
The petitioners in ARAMCO argued
that the broad definition of “employer” and
“commerce” in Title VII reflected
Congress’ intent to give the EEOC
extraterritorial jurisdiction. ARAMCO,
499 U.S. at 251. The Court rejected that
argument reasoning that such broad
jurisdictional terms were nothing more
than “boilerplate language” that Congress
had used in numerous other enactments.
The Court held that such “boilerplate” was
simply not enough to defeat the
presumption against the extraterritorial
application of Title VII. Id. (cited statutes

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omitted). In doing so, the Court
reiterated, “we have repeatedly held that
even statutes that contain broad language
in their definitions of ‘commerce’ that
expressly refer to ‘foreign commerce’ do
not apply abroad.” Id., at 251. (emphasis
in original).7
The Court held that the wording of
Title VII was not sufficient to rebut the
presumption against extraterritoriality and
support a conclusion that Congress
intended to empo wer the Equal
Employment Opportunity Commission to
exercise jurisdiction beyond the United
States, despite the broad definitions
suggesting the contrary. The Court
buttressed reliance on presumption against
extraterritorial jurisdiction by noting that
Congress had not included any mechanism
for the extraterritorial enforcement of the
Act’s protections. The Court reasoned:
[t]his conclusion is fortified
by other factors suggesting a
purely dom estic focus,
including Title VII's failure
even to mention foreign
nations or proceedings
desp ite a n um ber o f
provisions indicating a
concern that the sovereignty
and laws of States not be
unduly interfered with, and
the Act's failure to provide
any mechanisms for its
overseas enforcement. It is
also reasonable to conclude
that had Congress intended
Title VII to apply overseas,
it would have addressed the
subject of conflicts with
f o r e i g n l a w s a n d
procedures, as it did in
a m e n d i n g t h e A g e
D i s c r i m i n a t i o n i n
Employment Act of 1967
(ADEA) to apply abroad.
499 U.S. at 245. Similarly, in enacting the
7 The Court specifically cited New
York Central R. Co. v. Chisholm, 268
U.S. 29, (1925), wherein it had addressed
the extraterritorial application of the
Federal Employers' Liability Act (FELA),
45 U.S.C. § 51 et seq. “FELA provides
that common carriers by railroad while
engaging in ‘interstate or foreign
commerce’ or commerce between ‘any of
the States or territories and any foreign
nation or nations’ shall be liable in
damages to its employees who suffer
injuries resulting from their employment.
§ 51.” 499 U.S. at 251. “Despite this
broad jurisdictional language,” the Court
“found that the Act ‘contains no words
which definitely disclose an intention to
give it extraterritorial effect[.]”
ARAMCO, 499 U.S. at 251 (citing
Chisholm, 268 at 31). Thus, despite
Congress’s reference to “interstate or
foreign commerce,” the Court in Chisolm,
concluded that “there was no jurisdiction
under FELA for a damages action by a
United States citizen employed on a
United States railroad who suffered fatal
injuries at a point 30 miles north of the
United States border into Canada.” Id.

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NLRA, Congress included no mechanism
for extraterritorial enforcement, and did
not provide a method for resolving any
conflicts with labor laws of other nations.
Given the obvious potential for conflict
where United States companies employ
workers oversees, this omission strikes us
as more than a mere oversight. It is
consistent with the Supreme Court’s
conclusion that broad definitional
language is little more than “boilerplate”
in the absence of an express manifestation
of extraterritorial intent.8
Therefore, absent more, we can not
interpret the “boilerplate language” before
us in the NLRA in a manner that would
inject the expression of congressional
intent required to stretch it to cover the
employees Asplundh temporarily detailed
to Canada. Moreover, the Board is not
able to point to any language in the
NLRA that would support its position
given the rationale of ARAMCO. In fact,
the Board seems to completely ignore the
fact that we are confronted with an issue
of statutory construction rather than
policy. Instead, the Board advances a
number of reasons why the NLRA should
apply to United States citizens working
temporarily abroad. Although we are
sympathetic to the argument that the
NLRA should apply abroad under the
circumstances here, we must determine if
the NLRA does apply abroad. As noted
above, that is an inquiry governed by
statutory construction as guided by
Supreme Court precedent; it is not an
inquiry governed by the kind of policy
considerations the NLRB urges upon us.
The NLRB contends that its
assertion of jurisdiction was appropriate
for three reasons. First, the unfair labor
practices charge “involves an employment
relationship that has been shown to be
primarily within the territorial boundaries
of the United States.”9 Board’s Br. at 22.
8 We realize, of course, that the
world’s economies are exponentially
more tightly interwoven today than when
the NLRA was first enacted. However,
this does not negate our view of the
significance of the omission of any
mechanism for resolving conflicts with
foreign laws or enforcing the protections
of the NLRA abroad.
9To support this assertion, the Board
cites to its findings in the administrative
proceedings that
Brinson and Crabtree are
A m e r i c a n s w h o w e r e
employed by an American
employer in the United
States and who performed
their regular work in the
United States. Their
assignment in Canada was
both brief and temporary.
While in Canada they were
supervised by an American
supervisor. Moreover, the
results of [Asplundh’s]
conduct were principally felt
in the United States. Thus,
[Asplundh] did not simply
r e p l a ce B r i n s o n a n d

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Second, its “remedial order has no
extraterritorial reach, as it will only
require a U.S. employer to take action –
namely, reinstatement, backpay and a
notice posting – in the United States.”10
Id. at 23. Third, “failure to assert
jurisdiction would not only deny Brinson
and Crabtree relief to which they would
otherwise unquestionably be entitled;” it
would also frustrate the remedial and
deterrent purposes of the NLRA. Id.
Accordingly, the Board argues that it was
reasonable for it to assume jurisdiction
over the unfair labor practices charge
because the “fact that Brinson and
Crabtree were briefly in Canada. . . when
they staged their short-lived protest was
little more than a fortuity for U.S. workers
employed by a U.S. enterprise.” Id.
We do not disagree that the
Board’s exercise of jurisdiction can be
seen as “reasonable,” however, that is not
tantamount to determining if it was
authorized. As noted above, given the
Court’s holding in ARAMCO, the language
of the NLRA simply can not be read as an
expression of the congressional intent
required to empower the Board to exercise
jurisdiction over Asplundh’s conduct here.
Moreover, although the Board’s
argument to the contrary has significant
appeal at first blush, we believe the
Board’s “policy” argument is nothing more
than a “balancing of contacts” test that the
Supreme Court has already rejected in a
case it decided before ARAMCO.
In McCulloch v. Sociedad Nacional
de Marineros de Honduras, 372 U.S. 10
(1963), an American corporation, United
Fruit, was the beneficial owner of a
number of cargo vessels which made
regular sailings between the United States,
Latin America and other ports transporting
the American corporation’s products. Id.
at 12. Each vessel was legally owned by a
foreign subsidiary of the American
corporation, flew the flag of a foreign
nation, carried a foreign crew and had
other contacts with the nation of its flag.
Id. A portion of United Fruit’s fleet of
beneficially owned vessels consisted of
vessels legally owned by Empresa
Hondurena de Vapores, a Honduran
corporation. Id. at 13. However, all of the
stock of that Honduran corporation was
owned by United Fruit. Id. The crews on
the vessels were recruited by Empresa
Hondurena in Honduras and all of the
Crabtree on their
C a n a d i a n
a s s i g nm e n t , b u t
i n s t e a d . . .
effectively fired
them from their jobs
in the United States.
App. at 2.
10In its decision the Board noted that
because its remedial order only affects a
United States employer “there is no
danger that an assertion of jurisdiction
will lead to a conflict between the labor
laws of the United States and Canada or
o th er w ise interfere w ith fore ign
relations.” App. at 2.

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crewmen were Honduran citizens who
claimed Honduras as their residence and
home port with the exception of one
Jamaican. Id. The crew’s wages, terms
and conditions of employment, etc., were
controlled by a bargaining agreement
between Empresa Hondurena and a
Honduran union, Sociedad Nacional de
Marineros de Honduras. The agreement
was governed by Honduran labor law. Id.
at 14.
However, United Fruit, the parent
corporation of Empresa Hondurena,
determined the ports of call of the vessels,
their cargoes and sailings, and integrated
the Honduran vessels into its broader fleet
organization. The Honduran vessels
made regular and periodic stops at various
ports between Central and South America
as well as ports in the United States. Id.
An American maritime union, the
National Maritime Union of America,
AFL-CIO, filed a petition seeking
certification as the representative of the
crewmen employed on certain of the
Honduran vessels. Id. at 13. The NLRB
granted the un ion’s p etition for
certification, asserting jurisdiction based
on its finding that the vessels’ “maritime
operations involved substantial United
States conta cts, outw eighin g th e
numerous foreign contacts present.” Id.
at 14-15. Sociedad, the Honduran union,
responded by seeking an injunction to
prevent the regional director of the NLRB
from holding an election,11 id. at 15-16,
and the district court granted the Honduran
union’s request for relief. Id.
There, as here, the inquiry turned on
“the coverage of the National Labor
Relations Act.” 372 U.S. at 12. The
question before the Court was “whether
the Act extends to the crews engaged in
such a maritime operation.” Id. Both sides
agreed that Congress had the power to
extend the coverage of the NLRA to
“crews working foreign-flag ships, at least
while they were in American waters[].”
Id., at 17. The question was “whether
Congress had exercised that power.” Id.
For the purposes of our inquiry, it is
important to note the test the NLRB had
used to determine its jurisdiction over the
petition for certification. That was a
“balancing of contacts” test that the Board
had developed in determining jurisdiction
in other cases involving the NLRA’s
application to foreign-flag ships and their
crews. Id. at 15, 19. Simply put, under
that balancing test, if the Board found that
11The Sociedad filed suit in the District
of Columbia district court. However,
Empresa also filed two suits in a New
York district court, which denied relief to
Empresa. The Court of Appeals for the
Second Circuit reversed the district court.
All three actions were consolidated in the
Supreme Court and, for appellate
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.

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13
the American contacts in the dispute were
substantial, it asserted jurisdiction under
the NLRA; however, if it found that the
foreign contacts outw eighe d th e
American contacts, the Board concluded
the NLRA did not apply and would not
assert jurisdiction. Id. at 17-18.
The Court began its review of the
injunction noting the “question of
application of laws of the United States to
foreign-flag ships and their crews has
arisen often and in various contexts.” Id.
at 17. It next noted that using the Board’s
“balancing of contacts” test to determine
jurisdiction
might require that the
Board inquire into the
internal discipline and
order of all foreign vessels
calling at American ports.
Such activity would raise
considerable disturbance
not only in the field of
maritime law but in our
international relations as
w e l l . I n a d d i t io n ,
enforcement of Board
orders would project the
courts into application of
the sanctions of the Act to
foreign-flag ships on a
purely ad hoc weighing of
contacts basis. This would
i n e v i t a b l y l e a d t o
embarrassment in foreign
affairs and be entirely
i n f e a s ib l e i n a c t u a l
practice.
Id. at 19. Consequently, the Supreme
Court rejected the Board’s “balancing of
contacts” test and concluded that the
question before it was “more basic;
namely, whether the Act as written was
intended to have any application to foreign
registered vessels employing alien
seamen.” Id. (emphasis added). In other
words, the inquiry turned on statutory
construction rather than an analysis of the
comparative impact the Board’s exercise
of jurisdiction would have on the
jurisdictions potentially affected by the
underlying dispute or the Board’s action.12
12 In ARAMCO, the Court specifically
referred to McCulloch, writing:
[I]n McCulloch v. Sociedad
Nacional de Marineros de
Honduras, 372 U.S. 10
(1963), w e a d dressed
whether Congress intended
t h e N a t i o n a l L a b o r
Relations Act (NLRA), 29
U.S.C. §§ 151-168, to apply
overseas. Even though the
NLRA contained broad
language that referred by its
terms to foreign commerce,
§ 152(6), this Court refused
to find a congressional
intent to apply the statute
abroad because there was
not “any specific language”
in the A ct reflectin g
congressional intent to do
so.

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14
After examining the language in the
NLRA, the Court concluded “that the
jurisdictional provisions of the Act do not
extend to maritime operations of foreign-
flag ships employing alien seamen.” Id.
at 13.
Thus, after McCulloch, the Board’s
“balancing of contacts” cannot be used to
manufacture jurisdiction in the absence of
clearly expressed congressional intent to
extend the NLRA to United States
citizens temporarily working abroad for a
United States employer. Perhaps
realizing this, the Board attempts to craft
a new jurisdictional test to justify its
assertion of jurisdiction here. It argues
that the employee’s “work station”
determines whether the NLRA applies.
According to the Board, Brinson’s and
Crabtree’s “work station” was the United
States. The Board argues:
Brinson, who lives in
southern Ohio, had been
employed by [Asplundh] in
the Cincinnati area for 8
y e a r s p r i o r t o h i s
termination. He had never
worked for [Asplundh]
o u t s i d e o f g r e a t e r
Cincinnati. Like Brinson,
Crabtree was also a
southern Ohio resident. In
o v e r 12 years w ith
[Asplundh], Crabtree had
worked outside of southern
Ohio only once prior to his
termination, and that was on
a b r i e f e m e r g e n c y
assignment within th e
United States. The Ottawa
assignment during which the
pair were discharged was
scheduled to last for only
about 2 weeks, at the end of
which the employees were
to return to their permanent
employment base in the
Cincinnati area. Thus . . . ,
Brinson and C rabtree
maintained work stations in
the United States, as their
employment was based in
the United States, and not in
Canada.
Board’s Br. at 27-28. The Board claims
that the major advantage of its new “work
station” theory is that the assertion of
jurisdiction under the test has no
extraterritorial effect because the
permanent “work station” remained the
United States.
However, the Board’s “work
station” rule also spawns a policy driven
analysis at the expense of one driven by
statutory interpretation. Adopting the
Board’s “work station” inquiry also
requires an examination of the specific
impact of the extraterritorial application to
the acts in question. Nothing in
McCulloch suggests that such a case by
ARAMCO, 499 U.S. at 251-52 (citing
McCulloch, 372 U.S. at 19).

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15
case inquiry can overc om e the
presumption against extraterritoriality in
the absence of express jurisdictional
language. Spector v Norwegian Cruise
Line, Ltd., 356 F.3d 641, 648 n.8
(“McCulloch did not examine individual
applications of the NLRA to reach its
result. Instead, the Court pointed to the
prospective conflict that would result. . .
. This impending conflict exemplified the
strong basis for its canon of construction
mandating a clear congressional intent.”).
Moreover, the Board has cited no
authority to support its claim that a “work
station” rule even exists under the NLRA.
Rather, the cases the Board relies upon in
urging that we adopt a “work station”
a n a l y s i s a r i se u n d e r t h e A ge
Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 623(f)(1),
(g)(1). See Board’s Br. at 26-27 (citing
Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d
554 (7th Cir. 1985); Cleary v. United
States Lines, 728 F.2d 607 (3d Cir. 1984);
Wolf v. J. I. Case Co., 617 F.Supp. 858
(E.D. Wis. 1995); Lopez v. Pan Am World
Servs., Inc., 813 F.2d 1118 (11th Cir.
1987)). Furthermore, the Board has
failed to fully analyze the foundations of
the ADEA’s “work station” rule. We
noted in Cleary v. United States Lines,
728 F.2d 607, 713 (3d Cir. 1984), that
ADEA § 626(b), prior to its amendment
in 1984, incorporated the extraterritorial
exemption of the Fair Labor Standards
Act’s § 13(f), 29 U.S.C. § 213(f), which
specifically barred jurisdiction of the
ADEA “with respect to any employee
whose services during the work week are
performed in a workplace within a foreign
country.” (emphasis added).13
Ironically, although the Board seeks
to import the ADEA’s workplace
exemption into the NLRA, that exemption
was applied to deny extraterritorial
application of the ADEA in each ADEA
case the Board relies upon here.
Finally, we are mindful of the fact
that Congress knows how to provide for
extraterritorial applic ation of its
enactments when it intends them to operate
outside of the United States. For example
in 1984, after a number of courts of
appeals held that the ADEA did not
operate extraterritorially,1 4 Congress
expressly amended the ADEA to provide
for limited extraterritorial application.
Denty v. SmithKline Beecham Corp., 109
13Parenthetically, we mention, without
deciding, that a convincing argument can
be made that Brinson’s and Crabtree’s
“work station” was in Canada, not the
United States. As noted earlier, Asplundh
does not require its employees to travel
outside of their locality for emergency
cleanup work. Instead, it seeks volunteers.
Therefore, Brinson and Crabtree were not
sent to Ottawa in the regular course of
their employment. In addition, as noted in
n.2, supra, the volunteers were not covered
by the collective bargaining agreeement
between IBEW Local 171 and Asplundh
while on assignment in Ottawa.
14We held that the ADEA did not
operate outside the confines in the United
States in Cleary v. United States Lines,
Inc., 728 F.2d 607 (3d Cir. 1984).

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16
F.3d 147, 150 & n.2 (3d Cir. 1997) (citing
cases). In 1991, following the Supreme
Court’s decision in ARAMCO, Congress
amended both Title VII and the
Americans with Disabilities Act to
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
extraterritorial application. See Torrico v.
International Business Machines Corp.,
213 F.Supp.2d 390, 399 (S.D. N.Y.
2002). However, Congress has never
amended the NLRA to provide for
extraterritorial application under any
circumstances despite the Court’s
decision in McCulloch over 40 years ago
expressly limiting the territorial reach of
the NLRA.
IV. CONCLUSION
Despite the broad “boilerplate”
definitions in the NLRA, we can discover
no cleary expressed congressional
intention that that Act was intended to
apply to employees working temporarily
outside of the United States for United
States employers. Therefore, we hold the
Board did not have jurisdiction over the
unfair labor practices charge here.
Accordingly, we will vacate the Board’s
decision and dismiss the petition for
review and cross-application for
enforcement.15, 16
15Because of our holding, we need not
determine whether Asplundh violated §
8(a)(1) of the NLRA.
16 As we have noted throughout our
discussion, the Board’s position that the
employees here should be afforded the
protection of the NLRA given the
temporary and limited nature of their
assignment is not without force.
Extraterritorial application of the NLRA
here certainly does not appear to create the
potential for international discord that was
so evident from the circumstances in
McCulloch. There, recognition of the
union by the NLRB would have created a
direct conflict with the Honduran Labor
Code that recognized Sociedad as the sole
Honduran bargaining agent. McCulloch,
372 U.S. at 20. The facts thus presented
“[t]he presence of highly charged
international circumstances,” which raised
the potential of construing the laws of the
United States in a manner that might
“violate the law of nations[]” absent a
contrary interpretation. Id. at 21.
Moreover, McCulloch was based in
large part upon the Court’s prior decision
in Benz v. Compania Naviera Hidalgo,
S.A., 353 U.S. 138 (1957). That case
involved the Labor Management Relations
Act of 1947 (“LM RA”) and raised the
specter of applying the labor law of the
United States to a “controversy involving
damages resulting from the picketing of a
foreign ship operated entirely by foreign
seamen under foreign articles while the
vessel [was] temporarily in an American
port.” Id., at 139. Those two cases have, in
turn, furnished the foundation for many of
the extraterritorial disputes that followed.
See Spector v. Norwegian Cruise Line,
Ltd. supra generally for a discussion of the
cases arising from Benz, McCulloch, and
ARAMCO.

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17
T h e p r e s u m p t i o n 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 c a t i o n o f
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.

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