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April 3, 1985

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, and T. W. GLEASON in his capacity as President of International Longshoremen's Association, Defendants (No. 82 Civ. 8589-CSH); ASSOCIATED IMPORTS, INC., Plaintiff, v. LOCAL 1814, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Defendants (No. 83 Civ. 3529-CSH)

The opinion of the court was delivered by: HAIGHT

HAIGHT, District Judge:

In January, 1980, defendant International Longshoremen's Association (the "Union") decided to act on its members' outrage over the Soviet Union's invasion of Afghanistan. It did so by ordering its members not to unload vessels bringing Russian goods into American ports. Plaintiff Associated Imports, Inc. ("Associated") has for many years imported Russian-made sheet glass for sale in the United States. The sheet glass is shipped through American ports, and several shipments were allegedly on their way when the Union declared its boycott. Plaintiff claims that the Union's refusal to unload not only these but subsequent shipments put it out of business. Claiming that the refusal constituted an illegal boycott under federal labor law, Associated has sued the Union and its president for damages. Associated now moves for summary judgment on the issue of liability. Defendants cross-move for the same relief.

The issue of the legality of the Union's action has been litigated before in other courts. In International Longshoremen's Association v. Allied International, Inc., 456 U.S. 212, 72 L. Ed. 2d 21, 102 S. Ct. 1656 (1982), the Supreme Court held that the Union's refusal to unload ships from the Soviet Union constituted an illegal secondary boycott under § 8(b)(4). A secondary boycott consists of the attempt by a union to induce its members to refuse to handle goods with the object of forcing entities with which it has no dispute to cease doing business with an entity with which it has a dispute. See Allied, supra, 456 U.S. at 222. As a result, it was held that the boycott subjected the Union to suits for damages by those harmed by the boycott under § 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187.

 Claiming an identity of issues and parties, Associated seeks summary judgment on the issue of liability by asserting offensive collateral estoppel. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). Perhaps acknowledging the force of this argument, defendants did not dispute the applicability of Parklane collateral estoppel in their brief and raised only one objection at oral argument. The latter objection was that Associated could have, but did not, join the original Allied action. See Parklane, supra, 439 U.S. at 331-332. In their defense defendants instead rely primarily on two independent theories. First, they argue that because the goods in question were manufactured by forced labor, importation of which is illegal, the Union was justified in refusing to unload them. Second, they assert the bar of the statute of limitations.


 The issue of whether Associated could have joined in the prior litigation, the Union's only defense to the application of Parklane, is irrelevant to plaintiff's right to summary judgment on the merits. Assuming without deciding that collateral estoppel is available only to parties participating in the prior litigation, the stare decisis effect of Allied would require me to grant summary judgment in these circumstances. Associated has presented uncontradicted evidence that the boycott which affected it was the same boycott which affected the plaintiff in Allied. The Union has not suggested that the boycott did not exist or that it did not affect Associated. Nor has it suggested any facts which might differentiate this case from Allied. Allied is controlling on the law. Thus it is unnecessary to apply collateral estoppel or to address issues raised in Parklane.


 Of course, the clear applicability of Allied is of no help to plaintiff if either of defendant's asserted grounds for summary judgment on their own behalf are meritorious, and it is to these which I now turn.

 The Tariff Act of 1930, specifically 19 U.S.C. § 1307, bars the entry into American ports of goods manufactured by "forced" labor, which is defined by the statute as that labor which is not performed voluntarily and is exacted under threat of punishment. Defendants have submitted an affidavit by a Russian emigrant who testifies not only that true prison labor is exacted by the government of the Soviet Union in its notorious Gulags but that Russian laws regarding work put all workers in the position of forced laborers. The latter claim relies on the existence of "anti-parasite" laws, which make criminal an individual's failure to work at a permanent job for a period exceeding four months. These laws, it is claimed, force workers to accept jobs which they would otherwise prefer not to hold. It is also argued that the lack of independent trade unions makes all Russians slaves of the state to some degree. Because the affidavit raises no issues concerning manufacture of glass by prison of Gulag labor, it is only the latter claims which I must consider.

 Defendants' argument is, in essence, that because Soviet laborers do not have complete freedom of job selection and of negotiation of terms of employment their labor is "forced." I am skeptical that this is the type of forced labor which Congress had in mind when enacting § 1307. But I do not decide the question because it is not an appropriate one for judicial resolution.

 Whether or not all Soviet labor should be characterized as "forced' is not a legal question. It is a political question, and highly charged at that, going to the heart of the social contract between the Soviet state and its citizens. Further, because the question affects the commercial access to American markets of one of the world's largest nations, *fn1" its resolution is inextricably linked to the conduct of American foreign policy. Congress could not have meant a ban under 19 U.S.C. § 1307 of the type proposed by defendants to have been self-executing. Although the statute does not explicitly so state, Congress must have intended to vest the decision of whether a whole nation's goods should be banned in the hands of the executive branch, rather than those of private citizens, or the judiciary at behest of a private citizen's suit. The disruptive implications for American trade and foreign policy are--as defendants have prove--otherwise too great.

 Although, as noted, the statute does not explicitly vest this power in the executive, it does empower the Treasury Department to develop implementing regulations. The regulations thus promulgated prescribe a means for private citizens to cause specific foreign goods to be declared the product of forced labor and banned. 19 C.F.R. §§ 12.42-12.44 (1984). Because of the disruptive potential of any other course, particularly in these circumstances, I conclude that this is the exclusive means by which the Union could have gained § 1307 sanction for its use of what was otherwise an illegal boycott by seeking the prior approval of the Commissioner of Customs pursuant to 19 C.F.R. § 12.42(b). Indeed, if the Union's true intent was to implement § 1307--rather than to find a post hoc justification for an action taken for entirely different reasons--its obvious course would have been to apply to the Commissioner under $12.42(b). The Union's proposed self-help makes the implementing regulations set out at 19 C.F.R. §§ 12.42-12.44, that in fact the goods are the produce of forced labor. Because the glass in question has never been so declared, Union members would not have assisted an illegal act by unloading it. The defense is unavailable. *fn2"


 Defendants' statute of limitation argument relies on DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), in which the Supreme Court assigned a six-month federal statute of limitations to suits brought under § 301 of the LMRA, 29 U.S.C. § 185, charging breach of a duty of fair representation by a union. It is claimed that the reasoning which led the Court to apply this statute of limitations to this type of § 301 action applies equally to actions under § 303. The few decisions bearing on the issue are split. Monarch Long Beach Corp. v. Soft Drink Workers, 593 F. Supp. 384 (E.D.N.Y. 1984), appeal argued, (2d Cir. February 28, 1985) (applying six-month ...

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