noting, in a § 10(i) proceeding, that the Board’s position should be afforded “considerable deference”
How later courts described this case
- noting, in a § 10(i) proceeding, that the Board’s position should be afforded “considerable deference”
- “[U]nion action and collective bargaining agreements which are intended to preserve work traditionally done by members of the bargaining unit do not contravene Sections 8(b)(4)(ii)(B) and 8(e) of the Act ...:”
- “[L]abor contracts which are designed to acquire for members of the union wprk which they have not previously performed are unlawful if they expressly or impliedly require the employer to cease doing business with another person.”
Written by the judges who cited it.
The opinion
CRAVEN, Circuit Judge,
dissenting:
Without so much as a wasted word, my brother Russell has accurately and fairly recited the evidentiary facts, correctly framed the question, and exposited the law to be applied to the facts to determine whether the district judge abused his discretion in denying a temporary injunction sought by the Regional Director. I agree especially with Judge Russell that the primary question is “whether the challenged rules are ‘work preservation’ provisions or ‘work acquisition’ measures.”
In order to answer that question, it is essential to define precisely the work in controversy. My brothers fall into the same error that occasioned an erroneous decision, it seems to me, in International Longshoremen’s Assoc, v. NLRB, 537 F.2d 706 (2d Cir. 1976). In that case the Board, and later a majority of the court, treated the “work in controversy” as “the LCL and LTL container work performed by [trucking companies] at their own off-pier premises.” In the course of dissenting, Judge Feinberg pointed out that the definition was incorrect because it focused on work done in the relatively recent past by trucking companies rather than on the work done traditionally and over a longer period of years by the longshoremen.
Containerization is relatively new. The loading and unloading of ships outruns history. The work to be preserved is the *501 loading and unloading of ships. To focus entirely upon stripping and stuffing containers is to utterly ignore the traditional work of seamen and longshoremen, for there can be nothing traditional nor even long-established about containerization practice. Judge Merhige recognized the distinction clearly when he quoted from the parties’ agreement of October 1, 1974:
The provisions are intended to protect and preserve the work jurisdiction of the longshoremen and all other ILA crafts which was performed at deep-sea waterfront facilities. The rules do not have any effect on work which historically was not performed at a waterfront facility by deep-sea ILA labor.
As Judge Feinberg said, “if the work is defined as the work the ILA members used to do on the pier before containerization moved most of it off the pier, the case takes on a different cast.”
I am respectfully of the opinion that my brothers commit an error of law by focusing on the wrong “work” in deciding whether the longshoremen are protected by National Woodwork and its doctrine permitting work preservation. Looking at the work the longshoremen seek to preserve, their traditional work of loading and unloading ships, I think it becomes apparent that the Regional Director lacked reasonable cause to believe that rules with respect to the stripping and stuffing of containers within the 50-mile zone are unlawful “work acquisition” measures. Twenty years ago the longshoremen had it all. Now they seek only to retain a part of it. This is not to me “work acquisition.” I think Judge Merhige wisely considered all of the factors and did not abuse his discretion in denying the prayer for preliminary injunction. I would affirm.