National Labor Relations Board v. International Longshoremen's Ass'n

Mr. Chief Justice Burger,

with whom Mr. Justice Stewart, Mr. Justice Rehnquist, and Mr. Justice Stevens join, dissenting.

This case turns on the definition of the work in controversy. If viewed exclusively from the perspective of the ILA, without regard to other aspects of the transportation industry or to the evolutionary changes in methods of doing business, the work can be characterized broadly as the loading and unloading of vessels; that gives the contract Rules on Containers a plausible work preservation objective sufficient to escape what *523 would otherwise be a violation of § 8 (e) of the National Labor Relations Act. If viewed from the perspective of the consolidators and motor carriers — many of whose employees are also union members — the objective is not preservation of traditional longshoremen’s work but a claim to work historically and traditionally performed by teamsters, truckers, and similar inland laborers. Which of these perspectives is chosen, in turn, depends on the view taken of the nature and function of a “container.”

This is where the Court’s analysis runs astray. To the Court, the work-in-controversy problem in the instant case is simply analogous to that involved in National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612 (1967), or NLRB v. Pipefitters, 429 U. S. 507 (1977), although the Court disclaims this. Compare ante, at 508-509, with ante, at 509-510. But viewing the work in controversy, as we should, “under all the surrounding circumstances,” National Woodwork, supra, at 644 , the Court’s analysis simply will not “wash.” A door may be a door in the carpenter’s world, and a pipe may be a pipe to the plumber, but a “container” can be seen as sometimes like the hold of a ship, sometimes like the trailer of a truck — and sometimes an independent component.

Because of the many functions of a container, it affects both sea and land transportation systems. The Court apparently recognizes the complexities involved, see ante, at 509-510, n. 23, but does not seem to respond to the logical inferences as did the Board, which has a vast reservoir of experience with day-to-day industrial operations. We cannot blink the reality of this technological innovation, nor can we, as the Court does, focus merely on one aspect of the work it has affected. The Board understood the complexities involved here; consequently, it invalidated only that part of the Rules on Containers whose primary effect was to influence the loading and unloading of containers functioning away from the pier as truck trailers. See 231 N. L. R. B. 351 (1977) and 236 N. L. R. B. 525 (1978). The Court’s failure to appreciate *524 this distinction and unwillingness to concede its significance underscores the reason why reviewing courts must give weight to the Board’s long and intimate experience with the workings of the industries implicated. See,e. g., Pipefitters, supra, at 531-532 . Calling the issue one of law does not make it so.

The ILA argues that a container should be viewed as the functional equivalent of the hold of a ship. See, e. g., Brief for Respondent ILA 4. Superficially it can be made to appear that this Court has acquiesced in such an approach, but only in the context of discussing questions arising under the Longshoremen’s and Harbor. Workers’ Compensation Act (LHWCA). See Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 270-271 (1977); P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 (1979). Even in that narrow context, a careful reading of the Court’s statements shows that what the Court characterized as “maritime employment” within the meaning of the LHWCA was the work of one who “moves cargo between ship and land transportation.” Pfeiffer, supra, at 84 . This characterization points toward the key to the proper view in this case — that the function of a container changes as it moves through the transportation system.

Prior to containerization, both consolidators and truckers functioned as part of the transportation industry. Teamsters and others loaded the vehicles used by the truckers and consolidators. When these vehicles reached the pier, longshoremen took over the task of moving the cargo onto the pier or into the ship’s hold. Longshoremen also handled inbound cargo from the hold of the ship to the pier and until placed on a land-based truck. After that, any handling of the contents of the truck away from the pier was the work of others than longshoremen. See International Longshoremen’s Assn. (Consolidated Express, Inc.), 221 N. L. R. B. 956, 959 (1975), enf’d, 537 F. 2d 706 (CA2 1976), cert. denied 429 U. S. 1041 (1977); 231 N. L. R. B., at 359, 365.

After the advent of containerization, truckers and consolidators still perform their traditional functions. 221 *525 N. L. R. B., at 959; 231 N. L. R. B., at 365. Their employees still load and unload the vehicles they use, 221 N. L. R. B., at 960, but with containerization the cargo-carrying part of those vehicles is the removable container. When such a vehicle with outbound cargo reaches the pier, there is no need whatever for anyone to “unpack” it; the container may itself be lifted and placed in the hold of the waiting ship, which is designed so that the container fits it as it did the prefitted bed of the truck chassis. Similarly, a container carrying inbound freight is hoisted from the hold of the ship and placed on a truck chassis hooked up to a tractor; the tractor-trailer is driven away from the pier, and the container is then part of land transportation.

To me, the work in controversy has two aspects — loading and unloading ships and loading and unloading trucks. Under this view, the Rules on Containers at issue would be valid insofar as they regulate what happens to containers— as distinguished from their contents — while they are on the pier; but those Rules are invalid insofar as they attempt, through fines placed on the shipowner/employers, to regulate what happens to containers once they have left the pier for overland transportation.

The Court finds it sufficient to say that the main object of the Rules on Containers is to preserve the traditional long-shore work of moving cargo between ship and land transportation. That is too simplistic a view; it closes the eyes to the other aspects of the transportation industry and to the evolution of methods of handling freight. For our purposes, the relevant work in controversy is that involved in the part of the Rules affected by the Board’s orders and now here for review. It seems clear to me — as the Board saw — that the work which these Rules seek to control is the work of loading and unloading land-based transportation — the containers functioning as truck trailers — away from the pier; the record supports the Board’s conclusion that such work has never been performed by longshoremen. See, e. g., 231 N. L. R. B., *526 at 365. Through this aspect of the Rules, the ILA turns reality on its head and seeks to take work from those who have traditionally performed it. 1 This is prohibited by § 8 (e).

The ILA complains that the loading and unloading of land transportation which takes place away from the pier could be done by them on the pier with equal efficiency. See Tr. of Oral Arg. 49, 51. But everyone except the ILA has found, from experience, that this is not true, and in any event this assertion shows that the ILA is trying to acquire the work of others. Because the modern, efficient mechanism of containerization has affected their work at the pier, the ILA is using the Rules to reach out and bring to the pier work which employees of land-based transporters have always performed. Under the work preservation doctrine, the longshoremen may seek to mitigate the effect on them of this new technology, but they may not lawfully do so by reaching out for work which they have not traditionally performed. It is a gross perversion of the work preservation doctrine to permit such conduct; that doctrine, as applied here, ceases to be a shield to protect work and becomes a sword to cut work away from those who have traditionally performed it.

When a prepacked container which “violates” the Rules is taken off its trailer at the pier, the ILA demands that its members be paid for the utterly useless task of removing the contents and then repacking them, or alternatively that a fine be imposed on the shipping, company which owns or leased the container. 2 This is nothing less than an invidious *527 form of “featherbedding” to block full implementation of modern technological progress. Allowing compromises in the interest of those whose jobs are affected is one thing; but what the Court sanctions today is quite another — taking work from non-ILA members to provide economically useless work for ILA members.

The Court of Appeals was obviously ill at ease with its decision and sought comfort by trying to restrict its scope through the intimation that its holding was limited to the presently claimed 50-mile limit. 3 That court deceived itself, and the Court today puts on the same blinders in asserting that it is “groundless” to claim that the logic of its decision would allow the union “to follow containers around the country and assert the right to stuff and strip them far inland. . . .” Ante, at 510, n. 24. Should this occur, the Court states, “[t]hat work would bear an entirely different relation to traditional longshore work, and would require a wholly different analysis.” Ibid.

It does not “reduce to absurdity,” see n. 3, supra, to ask why 51 or 100 miles “would require a wholly different analysis.” Following the Court’s own strained reasoning, the work in controversy would still be the same — the longshoremen’s *528 work on the pier. Since they have never worked off the pier, the contested work could be nothing else. And, under the Court’s analysis, “[t]he effect of work preservation agreements on the employment opportunities of employees not represented by the union, no matter how severe, is of course irrelevant to the validity of the agreement so long as the union had no forbidden secondary purpose to affect the employment relations of the neutral employer.” Ante, at 507, n. 22.

By implying that the relevant work in controversy would suddenly shift from the pier to land if it occurred beyond the arbitrary 50-mile limit, the Court’s opinion exposes its own error, much as the Court of Appeals comforted itself that the 50-mile point was the limit. 4 Since longshoremen’s work is and has always been confined to work “on the pier,” the actual work in controversy here bears the same relation to traditional longshore work as it would if it were performed 500 miles away. It simply is not traditional longshore work. By looking only at one aspect of the problem and refusing to look at the whole, as the Board did, the Court’s holding recalls the blind person who, holding an elephant’s tail, concludes it is a snake. The Court fails, as did the Court of Appeals, to explain why a 50-mile limit is acceptable while 50-plus would not be so, and hence sanctions a widening of the work preservation exception that completely swallows the rules of §§ 8 (e) and 8 (b)(4)(B).

It is argued that the current Buies represent a collectively bargained compromise as to the ILA’s asserted right to strip and stuff all containers (or at least all owned or leased by the shipping companies) at the pier, but the fact that an agree *529 ment was collectively bargained cannot save it if its object is to violate the law. As the Board decreed, that part of the Rules which attempts to regulate, through the economic pressure of fines on the shipping companies, the loading and unloading of land transportation away from the pier is invalid under §§ 8 (e) and 8 (b)(4)(B) of the NLRA.

The Board's findings are supported by substantial evidence on the record considered as a whole, cf. Pipefitters, 429 U. S., at 531 , and accordingly I would reverse the judgment of the Court of Appeals and remand with directions to enforce the Board’s orders.

This is thus far from a classic ease of “labor” versus “management.” Here, one segment of labor seeks to take work away from another segment, and to impose a “featherbedding” fine on employers as an enforcement device.

It is natural, of course, for individuals — and unions — to want to “preserve” work which by long practice has been “theirs.” But there must be a balancing of this urge with the need for innovation and change in methods that spell progress and reduce consumer cost. In the complaints of the ILA, one hears the echoes of the complaints of stablekeepers and *527 harness manufacturers when the automobile first gained wide acceptance. With practices such as those held permissible in this case, innovation and change in the utilization of modem machinery, methods, and labor will be retarded. Obsolete machinery and obsolete methods will tend to be used because industry will not be anxious to risk investment capital on laborsaving, cost-reducing methods and mechanisms if, by doing so, it must pay in tribute for the privilege a penalty that offsets the savings.

That court’s opinion recites: “It is not difficult to imagine a party unhappy with this court’s decision today subjecting that decision to the following exercise in reductio ad absurdum: Under the court’s ruling, cannot longshoremen literally chase containers around the country, demanding the right to stuff and strip them? There is a short answer: No. Our decision does not radiate beyond the Rules on Containers, which are restricted in terms to a 50-mile area around each port.” 198 U. S. App. D. C. 157, 177, n. 177, 613 E. 2d 890, 910, n. 177 (1979).

Even under the current Rules, the 50-mile point is not strictly the limit. If a consolidator or trucker operating within the 50-mile limit relocates or opens new operations outside the limit, the parties to the Rules may decide nonetheless that the sanctions of the Rules are to apply. See Rule 7 (a) of the 1974 Rules on Containers, reprinted in the Court’s appendix, ante, at 518.