# Petition — National Labor Relations Board v. International Longshoremen's Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1534%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1042 ## Text K, JR., CLERR_ Iu the Supreme Court of the Huited States OCTOBER TERM, 1979 NATIONAL LABOR RELATIONS BOARD, PETITIONER Vv. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO AND CouNCIL OF NorTH ATLANTIC SHIPPING ASSOCIATIONS, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT WADE H. MCCREE, JR. Solicitor General Department of Justice Washington, D.C. 20530, WILLIAM A. LUBBERS General Counsel JOHN E. HiGcIns, JR. Deputy General Counsel ROBERT E. ALLEN Acting Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel National Labor Relations Board Washington, D.C. 20570 A NERA Sa A pete lp ni ak fon . Ao RRR eh eee DU INO Be Rie eR at repeumenemans Page EE eee 1 Se EE Yaa 2 ueeeen prevented 2 TE SSE ae 2 I 3 A. The Board’s findings of fact _........ 3 1. The Port of New York (the “Dol- 3 2. The Ports of Baltimore and Hampton Roads (the “Associated =eeees. CON) 8 B. The Board’s decisions and orders. 12 C. The decision of the court of appeals.. 14 Reasons for granting the writ 15 oe ETS ac NTT ee 23 EESTI Se la EASES OC 84a I eee ht 87a STN 90a a SEE SS 110a CITATIONS Cases: Humphrey v. International Longshore- men’s Association, 548 F.2d 494 .._ 15, 16 Cases—Continued Page International Longshoremen’s Association (Consolidated Express, Inc.), 221 N.L.R.B. 956, enf’d 587 F.2d 706, cert. denied, 429 U.S. 1041 -........ 4, 5, 6, 7, 12-14, 15 International Longshoremen’s Association Local 1575 v. NLRB, 560 F.2d 4389...... 15 Meat and Highway Drivers, Local 710 v. yo 'phin Forwarding, Inc., and San Juan Freight For- warders, Inc., are void and unenforceable. NEW YORK SHIPPING ASSOCIATION, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be al- tered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board’s Office, Federal Building, 26 Federal Plaza, Room 3644, New York, New York 10007, Telephone 212—-264-0360. 110a APPENDIX E Intern ‘ional Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International iwshoremen’s Association, AFL-CIO; Interna- tional Longshoremen’s Association, Local 1970, AFL-CIO; International Longshoremen’s Associa- tion, Local 862, AFL-CIO; International Long- shoremen’s Association, Local 1248, AFL-CIO; In- ternational Longshoremen’s Association Local 846, AFL-CIO; International Longshoremen’s Associa- tion, Local 970, AFL-CIO; International Long- shoremen’s Association, Local 1458, AFL-CIO; In- ternational Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Associa- tion, Local 1784, AFL-CIO; International Long- shoremen’s Association, Local 1819, AFL-CIO; In- ternational Longshoremen’s Association, Local 1840, AFL-CIO and Associated Transport, Inc. International Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International Longshoremen’s Association, AFL-CIO; Interna- tional Longshoremen’s Association, Local 1970, AFL-CIO; International Longshoremen’s Associa- tion, Local 862, AFL-CIO; International Long- shoremen’s Association, Local 1248, AFL-CIO; In- ternational Longshoremen’s Association, Local 846, AFL-CIO; International Longshoremen’s Associa- tion, Local 970, AFL-CIO; International Long- shcremen’s Association, Local 1458, AFL-CIO; In- ternational Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Associa- tion, Local 1784, AFL-CIO; International Long- shoremen’s Association, Local 1819, AFL-CIO; In- ternational Longshoremen’s Association, Local 1840, llla AFL-CIO; and Hampton Roads Shipping Associa- tion and Associated Transport, Inc. and Council of North Atlantic Shipping Associations, Party to the Contract International Longshoremen’s Association, AFL-CIO; Atlantic Coast District Council International Long- shoremen’s Association, AFL-CIO; International Longshoremen’s Association, Local 333, AFL-CIO; International Longshoremen’s Association, Local 921, AFL-CIO; International Longshoremen’s As- sociation, Local 953, AFL-CIO; International Long-. shoremen’s Association, Local 1855, AFL-CIO; In- ternational Longshoremen’s Association, Local 1429, AFL-CIO; and Houff Transfer, Inc. International Longshoremen’s Association, AFL-CIO; Atlantic Coast District Council International Long- shoremen’s Association, AFL-CIO; International Longshoremen’s Association, Local 333, AFL-CIO; International Longshoremen’s Association, Local 921, AFL-CIO; International Longshoremen’s As- sociation, Local 953, AFL-CIO; International Long- shoremen’s Association, Local 1855, AFL-CIO; In- ternational Longshoremen’s Association, Local 1429, AFL-CIO and Houff Transfer, Inc. and Council of North Atlantic Shipping Associations, Party to the Contract International Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International Long- shoremen’s Association, AFL-CIO; International Longshoremen’s Association, Local 1970, AFL-CIO; International Longshoremen’s Association, Local 862, AFL-CIO; International Longshoremen’s As- sociation, Local 1248, AFL-CIO; International Longshoremen’s Association, Local 846, AFL-CIO; 112a International Longshoremen’s Association, Local 970, AFL-CIO; International Longshoremen’s As- sociation, Local 1458, AFL-CIO; International Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Association, Local 1784, AFL-CIO; International Longshoremen’s As- sociation, Local 1819, AFL-CIO; International Longshoremen’s Association, Local 1840, AFL-CIO; International Longshoremen’s Association, Local 1736, AFL-CIO and Houff Transfer, Inc. International Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International Longshoremen’s Association, AFL-CIO; Interna- tional Longshoremen’s Association, Local 1970, AFL-CIO; International Longshoremen’s Associa- tion, Local 862, AFL-CIO; International Long- shoremen’s Association, Local 1248, AFL-CIO; In- ternational Longshoremen’s Association, Local 846, AFL-CIO; International Longshoremen’s Associa- tion, Local 970, AFL-CIO; International Long- shoremen’s Association, Local 1458, AFL-CIO; In- ternational Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Associa- tion, Local 1784, AFL-CIO; International Long- shoremen’s Association, Local 1819, AFL-CIO; In- ternational Longshoremen’s Association, Local 1840, AFL-CIO; International Longshoremen’s Associa- tion, Local 1736, AFL-CIO and Houff Transfer, Ine. and Council of North Atlantic Shipping Asso- ciations, Party to the Contract International Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International Longshoremen’s Association, AFL-CIO; Interna- tional Longshoremen’s Association, Local 1970, 113a AFL-CIO; International Longshoremen’s Associa- tion, Local 862, AFL-CIO; International Long- shoremen’s Association, Local 1248, AFL-CIO; In- ternational Longshoremen’s Association, Local 846, AFL-CIO; International Longshoremen’s Associa- tion, Local 970, AFL-CIO; International Long- shoremen’s Association, Local 1458, AFL-CIO; In- ternational Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Associa- tion, Local 1784, AFL-CIO; International Long- shoremen’s Association, Local 1819, AFL-CIO; In- ternational Longshoremen’s Association, Local 1840, AFL-CIO; International Longshoremen’s Associa- tion, Local 1736, AFL-CIO; International Long- shoremen’s Association, Local 1783, AFL-CIO and Tidewater Motor Truck Association International Longshoremen’s Association, AFL-CIO; Hampton Roads District Council International Longshoremen’s Association, AFL-CIO; Interna- tional Longshoremen’s Association, Local 197 0, AFL-CIO; International Longshoremen’s Associa- tion, Local 862, AFL-CIO; International Long- shoremen’s Association, Local 1248, AFL-CIO; In- ternational Longshoremen’s Association, Local 846, AFL-CIO; International Longshoremen’s Associa- tion, Local 970, AFL-CIO; International Long- shoremen’s Association, Local 1458, AFL-CIO; In- ternational Longshoremen’s Association, Local 1624, AFL-CIO; International Longshoremen’s Associa- tion, Local 1784, AFL-CIO; International Long- shoremen’s Association, Local 1819, AFL-CIO; In- ternational Longshoremen’s Association, Local 1840, AFL-CIO; International Longshoremen’s Associa- tion, Local 1736, AFL-CIO; International Long- 1l4a shoremen’s Association, Local 1783, AFL-CIO; Council of North Atlantic Shipping Associations; and Hampton Roads Shipping Association and Tidewater Motor Truck Association. Cases 5-CC- 791, 5-CE-48, 5-CC-792, 5-CE-49, 5-CC-7938, 5-CE- 50, 5-CC-794, and 5-CE-51 August 12, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On August 19, 1976, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondents Council of North Atlantic Shipping Associations, Hampton Roads Shipping Association, and International Longshoremen’s Association, AFL-CIO, and its af- filiated District Councils and Locals filed exceptions and supporting briefs. The General Counsel filed an answering brief in support of the Administrative Law Judge’s Decision. Charging Party Houff Trans- fer, Inc., filed cross-exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in the proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 115a Upon careful consideration and detailed analysis of the record evidence, the Administrative Law Judge concluded that Respondents violated the Act as al- leged. We agree. Notwithstanding our dissenting colleague’s incorrect intimation that the Administra- tive Law Judge decided this case solely on the au- thority of our decision in International Longshore- men’s Association, AFL-CIO (Consolidated Express, Inc.), 221 NLRB 956 (1975), without giving due consideration to the so-called critical dis*' nilarities between that earlier case and the instant case, it is clear that the Administrative Law Judge fully de- veloped the facts here to support the violations which he found. Moreover, despite his own lengthy analysis, our dissenting colleague has ultimately failed to over- come the criteria (noted principally at sec. B, par. 6, of the Administrative Law Judge’s Decision) that the Administrative Law Judge correctly relied on in finding the violations in this proceeding. We further disagree with our dissenting colleague’s characterization of trucking industry representatives’ testimony as “conceding” that they knew the work they were performing was in violation of the con- tainer rules. These officials testified only that Re- spondents and certain shipping personnel deemed these actions to be violations, not that they actually were violations, or that the trucking industry ac- knowledged them to be such. We also reject our colleague’s reliance on the Dublin agreement as support for his conclusion that Respondents’ object here was a work-preservation 116a object. The 1978 Dublin agreement, in relevant part, contained provisions dealing with Respondents’ juris- diction over the unloading of full shippers’ loads destined for warehouse storage within 50 miles of port. Respondents’ members had been doing that work since 1969, but it is not the work at issue here. Rather, as our dissenting colleague himself notes, “the actions of the [Respondents] and shipping com- panies which we must adjudge [in this proceeding ] involve only shippers’ loads destined for a beneficial owner more than 50 miles from port, but which were picked up by motor transport carriers and stripped at trucking stations within 50 miles of port.” To that end, the Dublin agreement does not aid our col- league’s position in any way. Our dissenting colleague also finds some signifi- cance in the fact that in the Consolidated Express case, noted above, the charging parties were com- panies historically engaged in the primary function of loading and unloading, whereas the Charging Par- ties here are primarily engaged in the transportation of cargo and not its loading or unloading. We view this fact as a distinction without a difference because it is not important what type of enterprise was doing the work; rather, what is important is that Respond- ents’ members here, as in Consolidated Express, had not historically done the work. Finally, our colleague makes passing reference to the Supreme Court’s recent decision in Northeast Marine Terminal Company, Ince. v. Caputo, Docket 76-444 (June 17, 1977). We agree with his state- ii i iN i ti 117a ment that the context of that case is ‘“concededly dif- ferent” from that present here. And to the extent our colleague extracts certain language from that decision which he indicates supports his position, we note that the Supreme Court there expressly adopted certain language from the Second Circuit’s decision in Consolidated Express, 587 F.2d 706 (1976). It was also the Second Cireuit which enforced our de- cision in Consolidated Express with the words “it is clear that the on-pier stripping and stuffing work performed by longshoremen as an incident of loading and unloading ships does not embrace the work [of stuffing and stripping containers] traditionally per- formed by Consolidated and Twin at their own off- pier premises.” (537 F.2d at 712.) Thus, reference to the Northeast Marine case when read in conjunc- tion with the Consolidated Express decision proves only one thing, that it is the facts of each case in the area which are paramount. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents International Longshore- men’s Association, AFL-CIO; Hampton Roads Dis- trict Council International Longshoremen’s Associa- tion, AFL-CIO; ILA Locals 846, 862, 970, 1248, 1458, 1624, 1736, 1738, 1784, 1819, 1840, and 1970, AFL-CIO; Atlantic Coast District Council Interna- tional Longshoremen’s Association, AFL-CIO; and 118a ILA Locals 333, 921, 953, 1855, and 1429, AFL-CIO, their respective officers, agents, and representatives, and Respondents Council of North Atlantic Ship- ping Associations (CONASA), and Hampton Roads Shipping Association (HRSA), their respective of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN FANNING, dissenting: In concluding that Respondents violated Section 8(e) and Section 8(b)(4)(ii)(B) of the Act, the Administrative Law Judge placed considerable reli- ance on the Board’s determination in International Longshoremen’s Association, AFL-CIO (Consolidated Express, Inc.) ,* involving the knotty problem of some facets of containerization in the New York port area. Here, the problem involves another facet of contain- erization as it developed some 10 years later in the ports of Baltimore and Hampton Roads. While the Administrative Law Judge cites additional factors which I address below, it is his failure to perceive distinctions between the work practices and bargain- ing agreements negotiated by the ILA and the ship- ping companies in New York and those involving the ports of Baltimore and Hampton Roads which results in his erroneous legal conclusion. My col- leagues, I fear, by affirming the Administrative Law Judge, fail to heed the Supreme Court’s warning that 1221 NLRB 956 (1975), enfd. 587 F.2d 706 (C.A. 2, 1976), cert. denied 97 S.Ct. 740 (1977) (hereinafter Consolidated Express). 119a assessing whether a contractual provision has a valid work-preservation objective “will not always be a simple test to apply.” * In my view, a more searching inquiry reveals critical dissimilarities between this case and Consolidated Express. At issue here is the limited question of whether rules 1(a)(3) and 2B(2) of the 1974-77 Rules on Containers (hereinafter 1974 Rules),* which entitle International Longshoremen’s Association (ILA) la- 2 National Woodwork Manufacturers Association Vv. N.L.R.B., 386 U.S. 612, 645 (1967). 3 The rules’ pertinent provisions are as follows: Rule 1—Containers to be Loaded or Discharged by Deepsea ILA Labor. (a) Cargo in containers referred to below shall be loaded into or discharged out of containers only at a waterfront facility by deepsea ILA labor. (1) Containers owned, leased or used by carriers .. . which contain consolidated container loads, which come from or go to any point within a geographic area of any CONASA port described by a 50-mile circle with its radius extending out from the center of each port, (here- inafter geographic area) or * * * * * (3) Containers designated for a single consignee from which the cargo is discharged (deconsolidated) by other than its own employee within the “geographic area” and which is not warehoused in accordance with Rule 2(B). Rule 2—Containers Not to be Loaded or Discharged by I.L.A. Labor. B. Import Cargo: * * + * * (2) Containers discharged at a qualified consignee’s fa- cility by its own employees. 120a bor to strip and stuff shippers’ loads* whenever the work is to be done within 50 miles of port by other than the consignee’s employees, are valid work- preservation provisions. In making this determina- tion, careful scrutiny must be given to that history of containerization which is unique to the ports of Bal- timore, Maryland, and Hampton Roads, Virginia. The record discloses that container traffic first ap- peared in Baltimore harbor and in the Hampton Roads port area in 1965. For decades prior to this time, ILA employees unloaded bulk cargo from steam- ships on a piece-by-piece basis, sorted it out, and transported the cargo to the end of the pier for loading by them onto the back of a truck. Their work therefore covered all movement of ocean cargo from a delivery truck’s tailgate to the ship’s hold for export cargo, and the converse for import cargo. Between 1965 and 1968, ILA’s collective-bargaining agree- ments covering longshoremen in the ports of Balti- more and Hampton Roads did not contain any rules regarding the extent to which longshoremen were to be used in the handling of containers or their con- tents. It appears that, during this period, ILA- represented employees stripped (unloaded) import containers which held less-than-trailer-load cargo (LTL) and also consolidated full container loads.° 4The term “shipper’s load” refers to a full-container of goods from one shipper to a single beneficial owner-consignee. 5 An LTL load refers to a container which is not full and which contains the cargo of two or more shippers. Consoli- dated loads contain the goods of two or more shippers and are usually destined for more than one consignee or beneficial owner. 12la Full shippers’ loads, however, were placed by ILA labor on the pier, unless unloading was requested by the consignee’s agent or the stevedore. A motor trans- port carrier generally would then drive to the pier and pick up the shipper’s load container intact. With the advent of containerization, the work op- portunities associated with bulk cargo on the piers diminished substantially. The adaptation to bur- geoning containerization led to a 56-day strike by the ILA in 1963. Following the strike settlement, the ILA entered into a 1968-71 collective-bargaining agreement with Hampton Roads Maritime Associa- tion’ and Steamship Trade Association of Baltimore (STA), setting forth “Rules and Conditions Covering Handling of Containers.” It is apparent therefore that these initial rules on containers were adopted in Baltimore and Hampton Roads when containeriza- tion in those ports was still in its infancy.*® Since the introduction of container traffic to the ports of Baltimore and Hampton Roads, the shipping *An ILA official testified that, before containerization, 5 gangs of 22 men loaded or unloaded an average of 30 tons per hour. With the new method of loading and unloading ships, a 20-man gang and 1 crane could load 600 tons per hour. 7 The Hampton Roads Maritime Association was the prede- cessor to the Hampton Roads Shipping Association (HRSA), a Respondent in this case. 8 From its inception in 1965, the amount of container traffic increased every year. Although only numbering a handful in 1965, by 1969 1 shipping company was handling 4,000 con- tainers per year in Baltimore and by 1973 the number had grown to 25,000. 122a companies and ILA have contractually agreed that ILA-represented employees must load and unload LTL and consolidated full container loads if destined for a point within a 50-mile radius from the center of port. Two subsequent agreements negotiated by the ILA and representatives of the steamship carriers for 1971-74 and 1974-77 have also included provisions authorizing ILA members to perform this work.’ These contractual provisions and the work practices relative to LTL and consolidated loads, however, are not at issue here. Our sole concern is with the provisions in the 1974 Rules, which entitle ILA labor to strip shippers’ loads whenever such work is to be done less than 50 miles from port. Specifically, the actions of the ILA and shipping companies which we must adjudge involve only shippers’ loads destined for a beneficial owner more than 50 miles from port, but which were picked up by motor transport carriers and stripped at truck- ing stations within 50 miles of port. This practice is referred to as shortstopping. In support of their contention that stripping of shippers’ loads was never work traditionally per- formed by ILA labor, the General Counsel and the motor carriers maintain that the ILA abandoned any claim it might have had to such work in the 1968 and 1971 rules on containers applicable to the area bhe- ® The 1971 and 1974 contracts were negotiated by the Coun- cil of North Atlantic Shipping Associations (CONASA), an association of employer shipping associations, including STA and HRSA, which has been authorized to enter into collective- bargaining agreements on behalf of its members since 1971. 123a cause they omitted any specific provision regarding the handling of shippers’ loads. This assertion that shippers’ loads were thereby unrestricted by the ILA is belied by the work history involving shippers’ loads going to warehouses after the 1968 contract. As recognized by the Administrative Law J udge and conceded by the General Counsel, following ex- ecution of the 1968 agreement, ILA longshoremen stripped shippers’ loads destined for a warehouse for storage within 50 miles of port. Until the January 1973 Dublin agreement ** in which the ILA recog- nized an exception for bona fide storage and agreed not to claim the right to handle import cargo to be “warehoused in the normal course of business for at least 30 days,” the ILA retained jurisdiction to un- load shippers’ loads destined for warehouses.” 10 The Dublin agreement was not unique to Baltimore and Hampton Roads but applied also to New York. 11The Dublin agreement therefore took effect during the 1971 contract and thus prior to the 1974 Rules which made the first explicit reference to shippers’ loads. If there was no consensus entitling ILA labor to strip shippers’ loads destined for warehouses prior to 1974, then the Dublin agreement would have been a superfluous exemption under the 1971 Rules. My colleagues, while not disputing this, do overlook its significance. Though not encompassing the precise work at issue, the Dublin agreement demonstrates that, notwith- standing the absence of specific contractual provisions re- garding the handling of shippers’ loads prior to 1974, it was understood that not all shippers’ loads could pass through port unrestricted by ILA labor. This evidence strengthens the ILA’s claims concerning skippers’ loads and undermines the Administrative Law Judge’s reliance on the plain language of the 1968 and 1971 Rules in casing doubt on respondents’ claim that the shortstopping of shippers’ loads violated the and 1971 Rules. 124a Since the inception of containerization in both Hampton Roads and Baltimore, the ILA has insisted, with the acquiescence of the shipping companies, that shippers’ loads go directly to their destination intact. The only exemption from this practice was that a shipper, manufacturer, or consignee could choose to strip or stuff shippers’ loads or manufacturers’ loads using their own employees.’* This agreement to allow shippers’ loads to pass through port unrestricted by ILA labor, however, was never intended or inter- preted to allow motor carriers or warehousemen to load or unload shippers’ loads at their off-pier fa- cilities. The traditional exemption for shippers’ loads was premised on the understanding that such loads are “through” containers, much larger in size but properly analogous to a single item of bulk cargo. When taken to a trucker’s warehouse to be stripped and repacked, they lose that identity. The overwhelm- ing testimony indicates that this shortstopping of shippers’ loads was never approved by the ILA or the shipping companies as a permissible encroach- ment upon the ILA’s traditional work jurisdiction.” 12 The term “manufacturer’s load” is essentially synony- mous with that of shipper’s load. A “manufacturer’s label’ is a single shipment transported directly, without stopping en route, from one consignee or manufacturer to another. 18 For example, George Maier, port manager for U.S. Lines in Baltimore and president of STA, testified that it “had al- ways been a rule that prevailed in Baltimore” that truckers were not to strip any container that was a full shipper’s load going to a single consignee. Maier further explained: “In ¢ 125a This situation with respect to the handling of ship- pers’ loads in the ports of Baltimore and Hampton Roads is in marked contrast to the agreements and practices relative to LTL and consolidated container loads in the port of New York, which were at issue in Consolidated Express. Containerization first ap- peared in New York in the late 1950’s, much earlier than its advent in Baltimore and Hampton Roads. In 1959, the ILA and the New York Shipping As- sociation (NYSA) reached an agreement in which the ILA agreed that “any employer shall have the right to use any and all type containers without restriction or stripping by the Union.” “* For years thereafter, work on any type container was done by other than ILA labor in accordance with the contractual agree- ment. The Board concluded therefore that the ILA cases where it came to our attention, prior to the delivery of such a shipment to a truckman and it came to our knowledge that the intent of the truckman was to deconsolidate this con- tainer and restuff it into his own equipment at his platform, we refused delivery of that cargo to the truckman.” The situation was similar in Hampton Roads. Jack Mace, executive secretary of HRSA, testified that, if a member of HRSA was informed that the pier by a motor carrier that it was going to strip a shipper’s load at a trucking station, the shipping company would instruct the ILA to perform the work. Mace also testified that motor carriers in his area were aware of the enforcement of the practice relative to shippers’ loads “certainly as far back as 1969.” 14 This provisions was contained in sec. 8(a) of the 1959 memorandum of settlement entitled “Containers—Dravo Size or Larger.” 15 The Board indicated that, “with few exceptions,” the ILA allowed all containers to cross the New York docks without rehandling. 126a had bargained away its claim to the stuffing and stripping of LCL and LTL loads in question here. There is no such restrictive contract clause in the bargaining history of the instant case.’* Rather, as already indicated, the shipping companies have im- plicitly agreed with the ILA’s demand, since the in- ception of containerization in Baltimore and Hamp- ton Roads, that shippers’ loads go directly to their destination intact. And, from execution of the 1968 Rules until the Dublin agreement of 1973, ILA labor, in fact, stripped shippers’ loads that were instead warehoused for storage within 50 miles of port. Thus, unlike Consolidated Express, where the union sought to extend its jurisdiction to cover work it had bargained away, here the specificity of the 1974 Rules merely codified what had been the practice and agreement of the ILA and the shipping com- panies relative to shippers’ loads. In Consolidated Express, moreover, maritime cargo in New York was sorted and consolidated for many years by companies whose primary function was consolidation; that is, the loading and unloading of LCL and LTL loads. The Board there recognized that these consolidators “generate such work them- selves, performing it not on behalf of the employer- members of NYSA but for their own customers who 16The court of appeals did not agree with the Board’s abandonment theory in Consolidated. Nevertheless, the ab- sence of a similar clause in the instant matter, considering the experience gained by the ILA as a result of a decade of bargaining on this issue relative to New York, acquires par- ticular significance in my view. 127a have goods to ship.” It was further determined by the Board that the consolidator-charging parties in that case were traditionally engaged in the work of stuffing and stripping containers. In context, the ILA’s claim “to strip and stuff cargo merely because that cargo was originally containerized by nonunit personnel” was construed as a claim “to engage in make-work measures.” That situation is not present here. The Charging Parties are primarily engaged in the transportation of cargo and not its loading and unloading.” Con- trary to my colleagues’ superficial assessment, this is hardly a distinction without a difference. In Consoli- dated Express, the Board stressed the record’s clarity that the charging parties had “engaged in the work of stuffing and stripping containers” for many years. Especially when viewed in the context that the ILA had contractually bargained away its claim to the stuffing and stripping of the container in question there, the persuasiveness of the ILA’s claim to a lawful work-preservation objective was considerably diminished. Here, however, the ILA has never re- linquished its claim to stuff and strip shippers’ loads 17 For example, Houff Transfer, Inc., first handled the con- tainers of U.S. Lines in March 1970. In the course of its business, Houff moves a few hundred containers per year. Its president, Cletus Houff, testified, however, that Houff has more domestic business (other than container business) than steam- ship company container business. With respect to the opera- tions of Associated Transport, Inc., the record discloses that approximately 10 percent of its business is in the drayage of containers in foreign commerce. 128a which do not go to their destination intact. Nor does the record support the conclusion that the motor car- riers have “traditionally” been engaged in the stuf- fing and stripping of such containers. With respect to the record evidence that motor carriers have short- stopped some shippers’ loads at their off-pier facilities and used their own employees to strip the loads from the containers and stuff them into the motor carriers’ containers for transportation to the consignee, it ap- pears that the work was done without the knowledge of either the ILA or the shipping companies.” Whether predicated upon considerations of safety, state highway or bridge regulations, or economy,” it is apparent that the work involved could just as satisfactorily have been done at the piers by ILA labor.” Viewed in this context, the Administrative 18 Unlike Consolidated Express, in which the shipping docu- ments involved showed when the LTL or LCL containers originated from or were destined to a consolidator, here, when a container is released to a motor carrier, the delivery order specifies that the cargo is to be transported to the consignee. Intent to shortstop is thereby difficult to ascertain, though the early return of the shipping company’s container may demon- strate that shortstopping has, in fact, occurred. Effective en- forcement of the rules is thus difficult. 19 Inasmuch as the trucking companies pay a per diem for each day they have a shipper’s container, by immediately opening the containers and reloading them in motor transport equipment, the trucking companies can save money. 20 ILA President Thomas Gleason explained the ILA’s posi- tion as follows: We are not telling Associated, or Pilot, or U.S. Lines not to do business with each other. All we are saying to them is, “look we have a contract which spells out what the 129a Law Judge’s conclusion that the ILA did not have a lawful work preservation objective incorrectly foc- uses on motor carrier work “traditions.” The incidents alleged here as unlawful secondary activity all involve shippers’ loads destined for a beneficial owner more than 50 miles from port, but shortstopped by a motor carrier and stripped within 50 miles of port. Upon learning of these actions, the ILA complained to the appropriate joint ILA-Ship- ping Company Container Committee * that the motor carriers had violated the 1974 container rules. In every case, fines were exacted against the shipping companies which had released the containers to the motor carriers. The shipping companies, in turn, requested indemnification from the trucking compa- nies.” When the motor carriers refused, the shipping rules are.” U.S. Lines has no right to make an agree- ment to bypass our contract. If Associated wants to handle these containers and they want to take it and deliver it in their truck, then come down to the pier with your truck, let the longshoremen, as they have done it for 50 or 75 years, take that cargo and put it on the truck and take it wherever you want. We have no objection to that. Otherwise, take the container and bring it to the man’s place of business. 21 Pursuant to the ILA’s 1968 contract, joint container com- mittees, representative equally of the ILA and the respective shipping associations in the ports of Baltimore and Hampton Roads, were established to resolve ILA complaints alleging violations of the container rules. *2'The record demonstrates that, for several years prior to adoption of the 1974 contract, the trucking industry was aware that shortstopping was a violation of the container rules. Allie McNeil, vice president of D. D. Jones Transfer 130a companies canceled their respective equipment inter- change agreements, thereby precluding the affected motor carriers from handling future container cargo.” and Warehouse Company, Inc., a member of the Tidewater Motor Truck Association, admitted that, since 1969, he knew of the rules and of their application to containers destined for discharge within the 50-mile radius of port. Robert McGleskey, district manager of Carolina Freight Carriers Corp., testified that, shortly after he began operations in Norfolk, Virginia, in 1970, he became aware that it was a violation of the rules for a trucker to strip a shipper’s load at its facility. McGleskey further admitted his awareness that the steamship carrier would be assessed damages for this violation. L. Chadwick, assistant manager of Hennis Freight, a member of the Tidewater Motor Truck Association, and a former employee of Associated Transport, admitted similar knowledge since 1971. *8 A shipping company will not turn over its container to a motor carrier unless there is an equipment interchange agree- ment between the two carriers. In effect, this agreement is a case which delineates the rights and obligations of the lessee- motor carrier while it has custody of the lessor-shipping com- pany’s containers. The equipment interchange agreement used by the shipper U.S. Lines contains language giving the motor carriers “com- plete control” of the cargo once they transport it from the pier. This “complete control” language is one basis on which the Administrative Law Judge refutes the testimony of Re- spondents’ witnesses that all parties understood that short- stopping of shippers’ loads violated the container rules since the 1968 contract. I find the Administrative Law Judge’s reasoning unpersuasive. The interchange agreement has nothing to do with the handling of cargo but is primarily concerned with user re- sponsibility and per diem charges. There is no language in — 13la If work preservation is actually the objective of the 1974 container rules relative to shippers’ loads, the economic impact on the neutral motor carriers does not thereby transform the rules and their enforce- ment into activity with a secondary objective.” Whether rules 1(a) (3) and 2B(2) have an improper “cease doing business’ objective, as found by the Administrative Law Judge, is a question of fact which must be resolved here on the basis of the work history regarding shippers’ loads in the ports of Baltimore and Hampton Roads. In this vein, the critical determinant is the record’s disclosure that, beginning in 1968, ILA labor stripped shippers’ loads destined for a warehouse within 50 miles of port. the agreement relative to the right of the trucker to take cargo out of the container after its transfer from the shipper. Perhaps a more significant provision in the interchange agreement is that which obligates the lessee-motor carrier to “comply with any and all appropriate formalities and re- quirements regarding the use, operation or transportation of the containers or chassis.” This arguably binds the trucker to adhere to the shipper’s obligation to the ILA as set forth in the container rules. 24 See, e.g., Local 742, United Brotherhood of Carpenters and Joiners of America [J. L. Simmons Company, Inc.] V. N.L.R.B., 444 F.2d 895, 901 (C.A.D.C., 1971), cert. denied 404 U.S. 986 (1971) ; American Boiler Manufacturers Associa- tion V. N.L.R.B., 404 F.2d 547, 552 (C.A. 8, 1968), cert. de- nied. 398 U.S. 960° (1970), affg. 167 NLRB 602 (1967); N.L.R.B. v. Local. Union No. 23 of Sheet Metal Workers In- ternational Association of Greater New York [Johnson Serv- ice Company], 380 F.2d 827, 880 (C.A. 2, 1967). See also the Supreme Court’s discussion of its interpretation of the his- torical counterpart to Sec. 8(b) (4) (ii) (B), in National Wood- work Manufacturers Association v. N.L.R.B., 386 U.S. 612, 627 (1967). 132a This practice continued until the Dublin agreement of January 1973 which exempted any cargo ware- housed “in the normal course of the business of the beneficial owner” for at least 30 days. The incidents of shortstopping of shippers’ loads by the motor ecar- riers for which the ILA here exacted fines, however, do not constitute permissible warehousing as defined in the Dublin agreement. These incidents therefore violated rules 1(a)(3) and 2B(2) of the 1974 con- tainer rules. In my view, these rules reflect the work practices and agreements between the ILA and the shipping companies relative to the handling of ship- pers’ loads almost since the inception of containeri- zation in the ports of Baltimore and Hampton Roads. Until the Dublin agreement, the ILA and shipping companies agreed that, if shippers’ loads did not go to their destination intact tc be stripped and stuffed by the employees of the shipper, manufacturer, or consignee, then the unloading and reloading of such containerized loads should be done on the pier by ILA longshoremen just as they had handled break bulk cargo for decades.* The intervening contracts *5 In Northeast Marine Terminal Company, Inc. v. Caputo, Docket 76-444 (June 17, 1977), the Supreme Court decided that an individual stripping a container is engaged in a “longshoring operation” within the meaning of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (Act). Although the context is concededly different from that here, the Supreme Court’s discussion of containerization, in terms of moving longshoremen’s work shoreward, is instructive. The Court stated: In effect, the operation of loading and unloading has been moved shoreward, the container is a modern substitute eat ee ee Se) ee 133a specifically confirm this. The ILA never bargained away its claim to the work in dispute. Nor in en- forcing it does it seek either to expand the longshore bargaining unit by the involuntary addition of other emp_oyees or to achieve any labor relations objective outside of this unit. Against this background, I view rules 1(a) (8) and 2B(2) of the 1974 container rules as valid work-preservation provisions, the maintenance and enforcement of which violate neither Section 8(e) nor Section 8(b) (4) (ii) (B) of the Act. To conclude otherwise would be to restructure the work practices and agreements which the ILA and the shippers have negotiated in response to the mo- mentous impact which containerization brought to the ports of Baltimore and Hampton Roads. This we do not have authority to do. I would further find, contrary to the Administra- tive Law Judge, that the ILA’s 30-day suspension of the 1974 Rules on April 28, 1975, did not have an objective proscribed by Section 8(b) (4) (ii) (B). In compliance with the rules’ “380 days written notice” provisions, ILA notified CONASA, in late March 1975, of its intent to suspend the rules because of phony warehouse practices. It had come to the ILA’s attention that truckers were attempting to circumvent the “permissible warehousing” provisions of the for the hold of the vessel. As Judge Friendly observed below, “stripping a container . . . is the functional equiva- lent of sorting cargo discharged from a ship; stuffing a container is part of the loading of the ship even though it is performed on the shore and not in the ship’s cargo holds.” 134a Dublin agreement by simply using their warehouses as deconsolidation stations. As ILA President Tho- mas Gleason explained, motor carriers were bringing the cargo “in the front door and out the back” and construing this as justifiable warehousing. After ne- gotiations, the ILA and CONASA executed a supple- mental agreement which “clarified and reinstated” the 1974 container rules.** Based on my views as expressed above, I would similarly find that the ne- gotiations concerning the 30-day suspension of the rules had a valid work-preservation objective. Accordingly, I would dismiss the complaint in its entirety. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: These consolidated cases were heard before me in accordance with Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. § 158, et seq.), referred to herein as the Act, on October 15, 16, 17, 22, 23, and 24, 1975. The Respondents participated in the hearing pursuant to due notice and two con- solidated complaints issued respectively by the Re- gional Director for Region 5 on September 25 and October 1, 1975, which were in turn consolidated by order of the Acting Regional Director on October 10, 26 The clarification explaineg#that trucking stations where containers are unloaded wit 50 miles of port do not con- stitute bona fide public warehouses within the meaning of the Dublin 30-day warehouse exception. 135a 1975. The consolidated complaint of October 10, 1975, alleged that all the Respondents had violated Sec- tion 8(e) of the Act and that Respondents Interna- tional Longshoremen’s Association and its Hampton Roads and Atlantic Coast District Councils, and ILA locals (referred to herein collectively as ILA), named in the above caption had violated Section 8(b) (4) (ii) (B) of the Act. In summary, Cases 5-CE-48, 5-CE-50, and 5-CE- 1,’ allege that Respondents ILA, Hampton Roads District Council and their affiliated locals in the Hampton Roads Shipping Association (referred to herein as HRSA) and CONASA violated Section 8(e) of the Act by entering into, maintaining, and giving effect to provisions of their current collective- bargaining agreement whereby employer-members of HRSA have agreed to cease doing business with As- sociated Transport, Inc. (referred to herein as Asso- ciated), Houff Transfer, Inc. (referred to herein as Houff), and other employer-members of Tidewater Motor Truck Association (referred to herein as TMTA). Cases 5-CC-791, 5-CC-793, and 5-CC-794 alleged that ILA, its Hampton Roads District Coun- 1 At the hearing, I granted the motion of the Council of North America Shipping Associations (referred to herein as CONASA), one of the Respondents named in Case 5-CE-51, to intervene as a party to the contract in Cases 5-CE-48, 5-CE- 49, 5-CE-50, and 5-CE-51. However, in making that ruling, I overlooked CONASA’s status as a named Respondent in Case 5-CE-51. Accordingly, I now amend my ruling to cor- rect that inadvertence. The captions of Cases 5-CE-48, 5-CE- 49, and 5-CE-50 appear as amended at the hearing. I have restored the caption in Case 5-CE-51 to its correct form. 136a cil and their affiliated locals in the Hampton Roads, Virginia, port area violated Section 8(b) (4) (ii) (B) of the Act by imposing fines upon employer-members of HRSA, including United States Lines, Inc. (re- ferred to herein as U.S. Lines), by suspending a por- tion of the 1974-77 collective-bargaining agreement with HRSA, and by entering into, maintaining, and seeking to enforce portions of the same agreement regarding cargo containers, all with an object of compelling such employer-members of HRSA to cease doing business with Associated, Houff, and other members of TMTA. In Case 5-CE-49, the complaint alleges that Re- spondents ILA, its Atlantic Coast District Council, and their affiliated locals in the Baltimore, Maryland, port areas violated Section 8(e) of the Act by enter- ing into, maintaining, and giving effect to provisions of their 1974-77 collective-bargaining agreement with Steamship Trade Association of Baltimore, Inc. (re- ferred to herein as STA), including U.S. Lines and Lavino Shipping Company (referred to herein as Lavino), whereby STA and its employer-members have agreed to cease doing business with Houff. Fi- nally, Case 5-CC-792 alleges that Respondents ILA, its Atlantic Coast District Council and their affiliated locals in the Baltimore port area violated Section 8(b) (4) (ii) (B) of the Act by engaging in conduct similar to that alleged in Cases 5-CC-791, 5-CC-793, and 5-CC-794 for the purposes of compelling U.S. Lines and Lavino to cease doing business with Houff. Upon the entire record in this case, including the 187a transcript of the hearing before me, the transcript of testimony in a proceeding ancillary to the instant case, 1.e., William C. Humphrey, etc. v. International Longshoremen’s Association, AFL-CI O, et al. and Hampton Roads Shipping Association, Civil Action 10-441-N in the U.S. District Court for the Eastern District of Virginia, Norfolk Division, a proceeding in which the Regional Director of Region 5 sought an injunction under Section 10(1) of the Act,? and the parties’ briefs, as corrected and supplemented, I make the following: oe FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATIONS INVOLVED Houff, a Virginia corporation, operates freight ter- minals at Baltimore, Maryland, and Norfolk, Vir- ginia. Associated, a New York corporation, operates a freight terminal at Virginia Beach, Virginia. Both Houff and Associated are engaged in the interstate transportation of freight by motor truck under li- censes issued by the Interstate Commerce Commis- & ? Following the adjournment of the hearing i i g in the instant case on October 24, the parties had opportunity to determine if the hearing should resume for purposes of cross-examination of witnesses who had testified in the injunction oceedi Thereafter, on December 9, 1975, as danioicisas of “a parties, I issued an order in which I received the transcript in the injunction proceeding as part of the record herein _— Jt. Exh. 1, and closed the hearing as of that same 138a sion. During the preceding 12 months, Houff and Associated, respectively, received revenues exceeding $50,000 from their interstate freight operations. STA is an organization composed of various steam- ship lines and steamship agencies doing business in the Baltimore, Maryland, port area including U.S. Lines and Lavino. It exists for the purpose, among others, of bargaining collectively on behalf of its em- ployer-members with labor organizations, including ILA, concerning wages, hours, and conditions of em- ployment of the employese of the Associations em- ployer-members. U.S. Lines, a New Jersey corpora- tion, and Lavino, a Pennsylvania corporation, are engaged in the transportation of cargo by oceangoing vessels in interstate and foreign commerce. During the past 12 months, STA’s employer-members re- ceived in excess of $1 million from the transportation of cargo in interstate and foreign commerce. CONASA is, and at all times since 1971 has been, an association of employer shipping associations, in- cluding STA and HRSA, the members of which are engaged in the business of conducting collective-bar- gaining negotiations on behalf of their respective employer-members and entering into collective- bargaining agreements covering the employees of their employer-members of HRSA, including U.S. Lines, received in excess of $1 million from the transporta- tion of cargo in interstate and foreign commerce. TMTA is an employer association composed of 28 employer-members including Associated, which are engaged in interstate transportation and delivery of 139a general freight and commodities in and around the Hampton Roads, Virginia, area. During the past 12 months, the employer-members of Tidewater received in excess of $50,000 from the interstate transporta- tion and delivery of freight and commodities. At all times material herein, U.S. Lines, Lavino, Associated, Houff, the employer-members of TMTA, STA, HRSA, and CONASA, are, and each has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, respectively. I further find that ILA, Hampton Roads District Council, Atlantic Coast District Council, and ILA Locals 333, 846, 862, 921, 953, 970, 1248, 1355, 1429, 1458, 1624, 1736, 1783, 1784, 1819, 1840, and 1970 are labor organizations within the meaning of Sec- tion 2(5) of the Act. I conclude and find that it is proper to assert jurisdiction in these proceedings. Il. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The evolution of the ILA-CONASA Container Rules Prior to the mid-1960’s, when the first container- ships appeared in Baltimore harbor and in the Hamp- ton Roads port area, the ILA longshoremen unloaded bulk cargo from steamships, sorted it out on a piece 140a basis, and transported the cargo to the end of the pier for loading onto the back of a truck. There, I find from the testimony of ILA President Thomas W. Gleason, Sr., that the longshoremen’s work ended with respect to import cargo. At that point, in Bal- timore and in Hampton Roads, where truck transpor- tation was involved, a freight handler would load the cargo onto the back of a truck sent by the con- signee. Although the ILA has represented the freight handlers, I find from Mr. Gleason, Sr.’s, testimony that they were not longshoremen. However, after the mid-1960’s with the increasing use of large con- tainers, the work opportunities associated with bulk cargo on the piers diminished. Notwithstanding this development, ILA’s collective- bargaining agreements covering longshoremen in the ports of Baltimore and Hampton Roads for the years prior to 1968 did not contain any rules regarding the extent to which longshoremen were to be utilized in the handling of containers or their contents. Dur- ing those years, ILA longshoremen stripped (un- loaded) import containers which held _less-than- trailer-load cargo (LTL).* However, they did not strip full shipper’s loads (import containers loaded with goods belonging to a single consignee, who was also beneficial owner of the cargo) unless requested to do so by the consignee’s agent or the stevedore. Thus, as a rule, ILA labor simply removed the ship- 3 LTL cargo refers to individual shipments destined to two or more consignees which have been shipped in a single container. l4la per’s load container from the ship to the pier, where it was picked up by a motor transport carrier. In their 1968-71 collective-bargaining agreement, ILA and HRSA’s precedessor, Hampton Roads Mari- time Association, for the first time, dealt with con- tainerization in the bargaining unit. In this context, the provisions pertinent to this case were as follows: II. RULES ON CONTAINERS The following provisions are intended to pro- tect and preserve the work jurisdiction of long- shoremen and all other ILA crafts at deepsea piers or terminals. To assure compliance with the collective-bargaining provisions the following rules and regulations shall be applied. A. Definitions and Rule as to Containers Cov- ered. Stuffing—means the act of placing cargo into a container. Stripping—means the act of removing cargo from a container. Loading—means the act of placing containers aboard a vessel. Discharging—means the act of removing con- tainers from a vessel. These provisions relate solely to containers meet- ing each and all of the following criteria: 1. Containers owned or leased by employer- signatory members (including containers on wheels) which contain LTL loads or consolidated full container loads. 2. Such containers which come from or go to any person (including a consolidator who stuffs containers of outbound cargo or a distributor 142a who strips containers of inbound cargo and in- cluding a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not the beneficial owner of the cargo. 3. Such containers which come from or go to any point within a geographical area of any port in the North Atlantic District described by a 50-mile circle within its radius extending out from the center of each port. It is understood that the center of Hampton Roads will be de- fined as Middle Ground Light. B. Rule of Stripping and Stuffing Applied to Such Containers A container which comes within each and all ~ = the criteria set forth in “A” above shall be stuffed and stripped by ILA longshore labor. Such {LA labor shall be paid and employed at longshore rates under the terms and conditions of the General Cargo Agreement. Such stuffing and stripping shall be performed on a water- front facility, pier or dock. No contaner of cargo shall be stuffed or stripped by ILA longshore labor more than once. N otwithstanding the above provisions, LTL loads or consolidated container loads of mail, of household goods with no other type of cargo in the container, and of personal effects of military personnel shall be exempt from the rule of stripping and stuffing. C. Rules on No Avoidance or Evasion * * * * * 5. Failure to stuff or strip a container as re- quired under these rules will be considered a 148a violation of the contract betwen the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of “B” shall also be con- sidered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been stuffed or stripped under the rules then the steamship car- rier found guilty of intent to cause improper, fictitious, or incorrect documentation to evade the provisions of “B” above shall pay to the joint Welfare Fund $150.00 per container which should have been stuffed or stripped. Under the foregoing rules, ILA longshoremen work- ing on the piers were to strip and stuff LTL or con- solidate full container loads arriving on piers in con- tainers owned or leased by Hampton Roads Maritime Association members, which were destined for or came from any person, not the beneficial owner of the cargo, and which came from or was destined to any point within a 50-mile radius from the center of the port. The contract also provided that ILA was to receive a royalty for each loaded container which passed over the piers free of stripping or stuffing by “ILA longshore labor.” The 1968-71 ILA-STA collective-bargaining agree- ment covering the port of Baltimore contained pre- cisely the same container rules as were agreed to at Hampton Roads, except that the liquidated damage provision called for payment of $250 per violation instead of the $150 required under the Hampton Roads contracts. 144a Since 1970, HRSA and STA have authorized CONANA to bargain collectively with ILA on their behalf regarding container rules. Thus, the container rules for both ports have been uniform in their re- spective subsequent contracts with ILA. The ILA’s 1971-74 collective-bargaining agree- ments with HRSA and STA contained the same CONASA-ILA container rules and royalty provision as found in the agreements for 1968-71. As in the 1968-71 contracts, there were no provisions in the 1971-74 contracts regarding the stripping or stuffing of full shippers’ loads by ILA longshore labor. On September 11, 12, and 13, 1972, 3 months after the 1971-74 contracts were executed, CONASA and ILA representatives constituting the CONASA-ILA Con- tainer Committee met at Miami Beach, Florida, re- garding containerization. The committee discussed this same topic from January 25 to 29, 1973, at Dublin, Ireland. The determinations reached at these meetings included the following which was promul- gated in the committee’s Interpretive Bulletin No. 1: INTERPRETATION 1.1 Containers Covered The rules on containers relate solely to con- tainers meeting either of the following criteria: (a) Containers owned or leased by carriers (in- concluding containers on wheels) which con- tain LTL loads or consolidated full container loads, which come from or go to any point within a geographical area of any port in 145a the North Atlantic District described by a 50-mile circle with its radius extending out from the center of each port. (b) Containers which come from or go to any person (including a consolidator who stuffs containers of outbound cargo or a distribu- tor who strips containers of inbound cargo and including a forwarder, who is either a consolidator of outbound cargo or a distrib- utor of inbound cargo) who is not a benefi- cial owner of the cargo and such containers come from or go to any point within a geo- graphical area of any port in the North Atlantic District described by a 50-mile circle with its radius extending out from the center of each port. Prior to the 1968 ILA collective-bargaining agree- ments with HRSA and STA, a warehouse driver as a matter of practice took full shipper’s load from a pier, unstripped by ILA longshore labor, and deliv- ered it to a warehouse where warehouse employees would strip the container of its contents and store them. Beginning in 1969, following the execution of the 1968 agreement, ILA longshoremen stripped full shippers’ loads which were to be delivered to a ware- house for storage within a 50-mile radius of the cen- ter of the port. ILA freight handlers loaded the freight onto trucks for delivery to the warehouse. At Dublin, in January 1973, the CONASA-ILA Con- tainer Committe agered to the following modification of their rules: . DEFINITIONS 146a 147a The ILA-HRSA and ILA-STA contracts, effective Oc- tober 1, 1974, until September 30, 1977, included the Dublin 30-day warehouse provision as rule 2(B) (4). These contracts also departed from the 1971-74 contracts with respect to the language of their con- tainer rules. The 1974-77 CONASA-ILA rules on containers include the following: x Warehousing A beneficial owner does not violate the Rules on Containers when he warehouses his goods in bona fide public warehouses under the following conditions: . The container cargo is warehoused at a bona fide public warehouse; . The beneficial owner pays the normal labor charges in and out, and the normal warehouse storage fees for a minimum period of thirty or more days; and . The cargo is being warehoused (a) in the normal course of the business of the beneficial owner, (b) title to such goods has not been transferred from the beneficial owner to an- other, and (c) it is contemplated- that such transfer of title will not take place for at least 30 days after the warehousing of the cargo. This exception shall not apply where cargo is warehoused for the purpose of avoid- ance or evasion of Rule 1. . The beneficial owner furnishes all documenta- tion and other information which permits the Container Committee in the port to deter- mine whether conditions 1, 2 and 3 have been met. . This definition is limited to containers ware- housed as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a distri- bution station and treated accordingly. (g) Qualified Consignee—means the pur- chaser or one who otherwise has a proprietary financial interest (other than in the transporta- tion or physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order. (h) Consolidated Container Load—means a container load of cargo where such cargo belongs to more than one shipper on export cargo or one consignee on import cargo. Rule 1—Containers To Be Loaded or Discharged By Deepsea ILA Labor (a) Cargo in containers referred .o below sshall be loaded into or discharged out of contain- ers only at a waterfront facility by ILA deepsea labor: (1) Containers owned, leased or used by carriers (including containers on wheels and trailers), hereinafter containers, which contain consolidated container loads, which come from or go to any point within a geo- graphic area of any CONASA port described by a 50-mile circle with its radius extending out from the center of each port, (herein- after “geographical area”) or 148a (2) Containers which come from a single shipper which is not the manufacturer (“manufacturer’s label”) into which the cargo has been loaded (consolidated) by other than its own employees and such con- tainers come from any point within the “geographic area,” or | (3) Containers designated for a single consignee from which the cargo is discharged (deconsolidated) by other than its own em- ployees within the “geographic area” and which is not warehoused in accordance with Rule 2(B). * * * * « Rule 2—Containers Not be Loaded or Discharged by ILA Labor Cargo containers referred to below shall not be loaded or discharged by ILA labor: A. Export Cargo * * 4 * * B. Import Cargo * * * * * (2) Containers discharged at a qualified con- signee’s facility by its own employees. Under the 1974-77 container rules, ILA labor is entitled to strip full shippers’ loads, whenever such work is to be done within a 50-mile radius of the center of the port by other than the consignee’s em- ployees. Under rule 7(c) of the 1974-77 CONASA- ILA contract, the amount of damages for each viola- tion of this rule or the warehouse rule is $1,000. 149a : 2. The employment of motor carriers to trans- port full shipers’ loads from piers to con- signees Since the inception of containerization at the port of Baltimore, and in the port area of Hampton Roads, respectively, a motor carrier, typically, has been se- lected by a shipping agent or broker to transport a shipper’s load to the consignee. The broker or agent provides the carrier with a delivery order and a bill of lading which authorizes release of the shipper’s load. The delivery order requests that the water carrier deliver the cargo listed on the order for trans- portation to the consignee. The bill of iading is a contract between the shipper or shipper’s agent and the motor carrier which governs the movement of the shipper’s load to the consignee. Neither the de- livery order nor the bill of lading prohibits the motor carrier from stripping the shipper’s load from the container. The motor truck carriers have not been and are not parties to the ILA’s collective-bargaining agreements covering longshore operations in Balti- more or Hampton Roads. Nor have they agreed to be bound by the rules on containers set forth in those agreements. Typically, the containers listed on the delivery order and bill of lading are the property of the shipping company responsible for the cargo’s ocean transportation. Under established practice, the water carrier will not turn over its container to a motor carrier unless there is an equipment inter- change agreement between the two carriers. Such an agreement sets out the rights and obligations of the 150a lessee-motor carrier when it has custody of the lessor- water carrier’s containers. The equipment inter- change agreement used by U.S. Lines in its dealings with Houff is typical of such agreements, and con- tains the following language which I find significant in determining industry practices: United States Lines, Inc. EQUIPMENT INTERCHANGE AGREEMENT * ok * * FOURTH: The lessee shall: (a) complete promptly and expditiously the use for which the containers or chassis has been furnished to it and return the container or chas- sis to the terminal of the lessor from which it was received or to “uch other point as may be shown on the Equipment Interchange Receipt and In- spection Report or otherwise mutually agreed in writing; * * * * a (c) comply with any and appropriate formali- ties and requirements regarding the use, opera- tion or transportation of the containers or chassis; * * * * * (e) have complete control and supervision of such containers or chassis while in its custody and possession; and shall control the detail of the work of any employee or agent operating or using said containers or chassis during such time any person operating, transporting, in possession of, or using any such container or chassis after the signing of said Equipment Interchange Re- 15la ceipt and Inspection Report and until such form is again signed upon return of the container or chassis to the lessor is not the agent or employee of the lessor for any purpose whatsoever; .. .* As a matter of practice, when the motor carriers truck arrives at the pier, the driver presents the delivery order and bill of lading, locates and takes custody of the container and drives it through safety inspection. After satisfying the inspection, the truck- driver signs an interchange release receipt and hauls the containers away pursuant to instructions from his employer. Normally, the truckdriver hauls the con- tainer to the motor carrier’s port area terminal. Frequently, after hauling a full shipper’s load from a pier to its port area terminal, a motor carrier will utilize its own employees to strip the full shipper’s load from the container and stuff it into the motor carrier’s container for transportation to the con- signee. The motor carrier’s decision to strip the full *On June 28, 1978, U.S. Lines subscribed to the Uniform Intermodal Interchange Agreement ( UIIA) which now gov- erns the terms of all U.S. Lines interchange agreements with other signatories of that agreement. Associated subscribed to UIIA on September 3, 1974. Houff became a signatory on March 25, 1974. Par. 4 of that agreement provides in rele- vant part: 4. Use of Equipment 4.1 Responsibility of User in Possession of Equipment. a. User shall have the right of complete control and supervision of equipment while in its possession and shall be responsible for returning the equipment in the same condition as received, ordinary wear and tear expected. EN ESS agente oat CN eee ce ee 152a shipper’s load may rest upon consideration of econ- omy, safety, or state highway and bridge regulations. In 1969, U.S. Lines handled 4,000 to 5,000 import containers through its Baltimore terminal. This num- ber grew to 25,000 in 1974; 80 to 85 percent of these containers were full shippers’ loads. In 1974, Balti- more ILA labor stripped 200-300 of these containers at the pier. Approximately 100 trucking concerns are engaged in hauling these containers away from U.S. Lines’ pier. I have studied the available records of the ILA- STA Joint Container Committee which was estab- lished under the 1968 contract, and has been retained to the present under subsequent contracts, to resolve ILA complaints alleging violations of the container rules.” It was, at the time, difficult to determine from these records whether the ILA’s complaint in a particular case involved a shipper’s load. However, where there was any doubt as to the type of load in- volved, I have assumed that such cases involved ship- pers’ loads. From these records I have determined that, from September 1969 until November 1974, the ILA filed with the STA-ILA Joint Container Com- mittee 26 complaints involving the stripping of 45 to 50 shippers’ loads by trucking firms from con- tainers. These complaints alleged that by permitting 5 The 1968 contract provided, in pertinent part, as follows: A committee represented equally by management and Union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these rules... . 153a such stripping the named STA member had violated the STA-ILA container rules. Five of the ILA com- plaints involved a total of eight containers occurred prior to the CONASA-ILA container committee meet- ing on September 11-13, 1972, at Miami Beach. The remaining ILA complaitns involving the stripping of shippers’ loads by truckers bear dates later than September 13, 1972. The record does not reflect the annual volume of import containers received in the Hampton Roads port area. However, the Respondents submitted HRSA-ILA Container Grievance Committee records covering the period from October 1969 through and including October 1974. Again, these records do not clearly establish which cases involved ful] shippers’ loads which were stripped by truck operators. How- ever, I have resolved all doubts in favor of the ship- per’s load designation. In all, I found seven ILA complaints regarding shippers’ loads allegedly stripped by truckers in violation of the HRSA-ILA contract. These complaints involved 30 containers. Of these seven cases, one, involving one import con- tainer bearing a full shipper’s load, arose prior to the September 1972 CONASA-ILA Container Com- mittee meeting in Miami, Florida. 3. The incidents involving Houff, Associated, and other truck carriers On February’19, 1974, Houff sent one of its trac- tors to the U.S. Lines’ Dundalk Marine Terminal, in the port of Baltimore, to pick up two U.S. Lines 154a 20-fcot containers, each a full shipper’s load, with a total cargo weight of 78,810 pounds. ILA long- shoremen had off-loaded the containers from a ship onto the pier. The delivery order and bill of lading issued to Houff for the U.S. Lines containers showed the cargo was destined to Union Carbide Corpora- tion, Alloy, West Virginia. The Houff driver also picked up a third 20-foot container, a shipper’s load from Lavino consigned to Merck & Co., Elkton, Vir- ginia. ILA longshoremen had previously off-loaded this container from a ship into the pier. Upon de- termining that the three containers were overloaded, that they were unsafe, and that their rental was a needless expense, Houff stripped them and reloaded the cargo into Houff trailers. On February 19, 1974, the ILA learned that Houff had stripped the three containers. On the following day, ILA complained to the STA-ILA Container Com- mittee that Houff had violated “the container agree- ment,” and that therefore liquidated damages of $1,000 and $2,000 were due the ILA from Lavino and U.S. Lines, respectively. On March 21, the STA- ILA Container Committee determined that U.S. Lines had violated the contract as alleged by ILA and assessed a fine of $2,000 against U.S. Lines. Sim- ilarly, on May 10, the committee found that Lavino was guilty of violating the container agreement, and assessed a fine of $1,000 against that firm. There- after, U.S. Lines and Lavino paid the fines to the STA-ILA Container royalty fund, and requested in- demnitication from Houff. U.S. Lines threatened to 155a terminate Houff’s interchange agreement if Houft did not comply; Lavino threatened to have Houff entirely banned from the port. Houff did not respond to either requests. Effective July 22, 1974, U.S. Lines terminated its equipment interchange agreement with Houff. Lavino also terminated its equipment inter- change agreement with Houff, 6 months later. Following cancellation of their equipment inter- change agreement with Houff, U.S. Lines and Lavino have refused to release containers to Houff. Thus, for example, in January 1975, U.S. Lines denied a consignee’s request that two U.S. Lines containers containing shippers’ loads of twine be released to Houff for movement from Norfolk to Staunton, Vir- ginia. U.S. Lines advised the consignee that it would not release containers because Houff was not party to a U.S. Lines interchange agreement. On September 24, 1974, after being selected by a broker and receiving delivery orders and bills of lad- ing, Associated sent two tractors to the Marine Ter- minal, Norfolk, Virginia. There, in accordance with their documents, the Associated drivers picked up eight shippers’ loads in containers either owned or leased to U.S. Lines, which had been off-loaded from a U.S. Lines ship by ILA longshoremen. When the eight containers arrived at Associated’s Virginia Beach terminal, 7 or 8 miles from the Merine Ter- minal, the manager decided to strip all eight con- tainers and reload the shippers’ loads into Associated containers for shipment to consignees in Tennessee and North Carolina. 156a On October 5, 1974, a U.S. Lines representative and an ILA representative discovered that the eight U.S. Lines containers had been stripped at Asso- ciated’s Virginia Beach terminal. Thereafter, the ILA complained to the HRSA-ILA Container Com- mitte which met on October 31 and fined U.S. Lines $8,000. In its leter notifying U.S. Lines of the fine, HRSA explained: The prime reason for imposing a violation of these containers was due to the fact that Asso- ciated Transport, Inc., representatives at the meeting would not clarify as to whether the con- tainers were stripped within the 50 miles radius or delivered to their respective destinations, but only stated that they supported the contents of the letter from the Tidewater Motor Carriers Association dated June 7, 1974.° By letter of January 3, 1975, U.S. Lines demanded payment of $8,000 from Associated to cover the fines imposed by the HRSA-ILA Container Committee. As- sociated did not comply. On February 15, U.S. Lines * The letter referred to by HRSA was addressed to Jack W. Mace, HRSA’s executive secretary, and set forth the Tide- water Motor Truck Association’s position as to HRSA’s con- tainer rule, as follows: 1. Carriers would not allow the ILA to inspect the rec- ords or facilities verifying movements of containers. 2. That carriers reject payment of any penalty passed on to them by steamship lines. 8. That carriers not be required to move containers to destination under a house-to-house basis unless ex- clusive use of vehicle was authorized. 157a discontinued interchanging equipment with Associ- ated. On March 20, 1975, U.S. Lines formally ter- minated its interchange agreement with Associated. In circumstances similar to those found in the As- sociated and the Houff incidents, involving shippers’ loads, the HRSA-ILA Container Committee levied two additional $1,000 fines on U.S. Lines. One of these ILA complaints involved one stripped container at Pilot Freight Carriers’ Portsmouth, Virginia, ter- minal. A second complaint described a stripped con- tainer at Thurston Motor Lines’ Chesapeake, Vir- ginia, terminal. Both truck terminals are within 50 miles of the center of Hampton Roads. Pilot did not respond to U.S. Lines’ February 5 demand for reim- bursement. By letter of February 14, 1975, U.S. Lines referred to its demand and warned Pilot that “after today the interchange of equipment with you” would be discontinued “until the situation involved is settled.” The record does not reflect whether U.S. Lines sent a similar letter to Thurston. However, by letter dated February 5, 1975, U.S. Lines warned that Thurston would be held liable for stripping a full shipper’s load destined for a consignee located more than 50 miles from Hampton Roads. The record does not disclose whether Thurston suffered a loss of its US. Lines interchange agreement. 158a 4, Thesuspension of the 1974 CONASA-ILA Container Rules In late March 1975, ILA notified CONASA of its intent to exercise its right’ to suspend the rules on containers in their collective-bargaining agreements covering Baltimore, Hampton Roads, and all other CONASA ports, because of “phony warehouse prac- tices.” On April 28, the rules on containers were suspended. Thereafter, deepsea ILA labor at the affected piers stripped all import containers of cargo consigned to warehouses within 50 miles of the center of the port.* Freight handlers stripped the cargo into 7 Rule 8 of the CONASA-ILA rules on containers provides: These Rules shall be in effect for the term of the CONASA-ILA Agreement, provided, however, that either party shall have the right to cancel the Rules on Contain- ers at any time on or after December 1, 1974, on thirty (30) days written notice of a desire to renegotiate the provisions of these Rules. § Rule 2B (4) of the 1974 CONASA-ILA rules on containers provides as follows with regard to warehousing: Cargo in containers referred to below shall not be... discharged by ILA labor: a & * om a B. Import Cargo: x x * oe * (4) Containers of a qualified consignee discharged at a bona fide public warehouse within the “geographic area” which comply with all of the following conditions: 1. The container cargo is warehoused at a bona fide public warehouse. [Footnote continued on page 159a] 159a motor transport carriers’ containers for delivery to the warehouse. The ILA’s action caused daleys of 5 to 8 days in the movement of container cargo from the piers to warehouses. The suspension also resulted in the diversion of import container shipments from the Hampton Roads port area. On May 30, 1975, following negotiations, CONASA and ILA executed a supplemental agreement which, they announced, “clarified and reinstated” the 1974 CONASA-ILA container rules. Rule 2B(4) in the supplement provided: Cargo in containers referred to below shall not be... discharged by ILA labor: * * * * * B. Import Cargo * * * * * § [Continued] 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days, and; 3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consignee to another. The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2, and 3 have been met. This exception shall not apply where cargo is warehoused for the pur- pose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above condi- tions and any warehouse which does not conform to such conditions shall be deemed a consolidator or de- consolidated. 160a (4) Containers of a qualified consignee dis- charged at a bona fide public warehouse within the ‘geographic area’ which comply with all of the following conditions: 1. The container cargo is warehoused at a bona fide public warehouse 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days; and stores the cargo for a minimum period of 3C days; and 3. The cargo being warehoused (a) in the normal course of the business of the quali- fied consignee; (b) title to such goods has not been transferred from the qualified con- signee to another. The carrier on request will furnish all docu- mentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2, and 3 have have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or de-consolidator. [Clarification: In keeping with prior CONASA- ILA decisions trucking stations where containers are unloaded within the geographic area do not constitute bona fide public warehouses even where cargo is des- tined for delivery outside the geographic area. ] l6la Since May 30, 1975, these warehouse rules and the “Clarification” have been in effect in Baltimore, Hampton Roads, and all other CONASA ports. B. Analysis and Conclusions The General Counsel and the Charging Parties con- tend that Respondents violated Section 8(e) of the Act by maintaining, giving effect to, and enforcing rule 1(a)(3) and rule 2B(2) of the CONASA-ILA rules on containers in their 1974-77 contracts. The General Counsel also contends that, by imposing fines upon U.S. Lines and Lavino, ILA violated Section 8(b) (4) (ii) (B) og the Act. According to the Gen- eral Counsel! and Charging Parties, these portions of the CONASA-ILA container rules and the attempts to enforce them by fines constituted an attempt by ILA to acquire work traditionally done by employees of motor carriers. The Respondents’ defense is that rule 1 (a) (8) and rule 2(B) and their enforcement represented an ef- fort to preserve work traditionally performed by ILA — labor and that therefore such efforts were authorized by principles set forth in National Woodwork Manu- facturers Association et al. v. N.L.R.B., 386 U.S. 612 (1967), and American Boiler Manufacturers Asso- ciation v. N.L.R.B., 404 F.2d 547 (C.A. 8, 1968), cert. denied 398 U.S. 960 (1970). Under those prin- ciples, if ILA’s conduct and contractual agreements with CONASA, HRSA, and STA, of which the Gen- eral Counsel complains, were designed to preserve work to which ILA represented-employees of HRSA’s 162a and STA’s employer-members were entitled, then both the conduct and the agreements would be primary in purpose and would not run afoul of the Act. How- ever, if ILA’s real object was to reach out for work traditionally done by employees not represented by ILA, or work to which ILA had waived all claims, the challenged container rules and the pressures on HRSA and STA would have had a secondary object violative of Section 8(e) and Section 8(b) (4) (ii) (B) of the Act, respectively. Here, “[t]he touchstone is whether the agreement or its maintenance is addresesd to the labor relations of the contracting employer vis- a-vis his own employees.” National Woodwork Manu- facturers Association, supra, 386 U.S. at 645. Apply- ing the National Woodwork test as did the Board in International Longshoremen’s Association, AFL-CIO (Consolidated Express, Inc., and Twin Express, I ne.), 221 NLRB 956 (1975), enfd. 587 F.2d 706 (1976),” I find merit in the General Counsel’s and the Charg- ing Parties’ contentions. In International Longshoremen’s Association, AF L- CIO (Consolidated Express, Inc. and Twin Express, Inc.), supra, the Board found that the ILA was at- tempting to obtain the work of stuffing and stripping less-than-container load cargo or less-than-trailer load cargo, which consolidators traditionally performed at °On July 9, 1976, International Longshoremen’s Associa- tion, AFL-CIO, and New York Shipping Association, Inc., filed a petition for rehearing in Docket No. 75-4266 which the U.S. Court of Appeals for the Second Circuit denied on August 6, 1976. 163a their own off-pier facilities with their own employees, who were not in the unit represented by the ILA. The Board observed that “[t]he traditional work of the longshoremen represented by ILA has been to load and unload ships. When necessary to perform their loading and unloading work, longshoremen have been required to stuff and strip containers on the piers.” (221 NLRB at 959.) The Board then found (Id. at 960) that: the on-pier stripping and stuffing work performed by longshoremen as an incident of loading and unJvading ships does not embrace the work tra- ditionally performed by Consolidated and Twin at their off-pier premises .. .. Yet, ILA’s de- mands here could only be met if the work tradi- tionally performed off the pier by employees out- side the longshoremen unit were taken over and performed at the pier by longshoremen repre- sented by ILA. On these facts, the Board held that the 1971 con- tainer rules negotiated between ILA and the New York Shipping Association (these same rules appeared in the 1971 ILA contracts covering the Baltimore and Hampton Roads port areas, respectively) cover- ing LTL or consolidated full container loads did not have “a lawful primary object” (Consolidated Ex- press, supra, 221 NLRB at 961), and therefore vio- lated Section 8(e) of the Act. The Board also held that fines imposed by ILA upon shipping companies who were members of the New York Shipping As- sociation also violated Section 8(b) (4) (ii) (B) of the Act. 164a Here, as in Consolidated Express, the facts show that ILA’s demands can only be satisfied “if the work traditionally performed off the pier by employees out- side the longshoremen unit were taken over and per- formed at the pier by longshoremen represented by ILA.” Thus, the history of the longshoremen’s work tradition in Baltimore and Hampton Roads shows that their role in handling break-bulk import cargo ended at the head of the pier, where an ILA freight handler picked up the cargo and loaded it onto a truck. Thereafter, the fate of that cargo was the responsibility of the motor carrier, as set forth in the bill of lading. The advent of containerization in the ports of Bal- timore and Hampton Roads did not change the tra- ditional role of the ILA longshoremen. The motor carriers have treated import shippers’ loads destined for consignees located more than 50 miles from the center of the port of entry much as they did break- bulk cargo. For, with very rare exceptions, motor carriers have freely picked up the steamship com- pany’s containers mounted on wheeled trailers and hauled them to the consignee in accordance with the bills of lading. The motor carriers have also tradi- tionally hauled such containers to their own truck terminals and have stripped the shippers’ loads from them and are loaded into their own trailers, using truck terminal employees, whenever considerations of safe regulation, safety, or economy persuaded a motor carrier to take that precaution. 165a To counter the General Counsel’s showing, Respond- ents presented evidence to show that ILA, CONASA, HRSA, STA, and various steamship and motor truck employers in the Baltimore and Hampton Roads port areas understood that such shortstopping of shippers’ loads violated the container rules in the 1968 and 1971 contracts. However, the plain language of the 1968 and 1971 rules limited to “LTL loads or con- solidated full container loads” the “complete control” language of the full equipment interchange agree- ments used by U.S. Lines in dealing with motor car- riers, and the paucity of grievances involving ship- pers’ loads in the ports of Baltimore and Hampton Roads prior to the September 1972 CONASA-ILA meeting at which ILA first sought adoption of rule” 1(a)(3) and 2B(2) cast doubt on the Respondents’ claim. The fatal weakness in Respondents’ defense is its failure to rebut the General Counsel’s showing that, in the performance of contracts to haul cargo from a pier to the consignee, motor carriers have traditionally utilized their own employees whenever economy, safety, or government regulations required the stripping of a shipper’s load destined to a con- signee outside the 50-mile zone. From the foregoing and the record as a whole, I find that the traditional on-pier work of longshore- men has not included the work performed by the employees of motor carriers, as Associated and Houff, at their off-pier facilities. Thus if ILA’s demand is to be satisfied here, motor carriers seeking to do busi- ness with employer-members ~f HRSA and STA 166a would be obliged to assign this work to ILA labor at the pier. Indeed, in order to avoid the sanctions revealed in this case, motor carriers who might other- wise exercise their discretion to transfer cargo after leaving a CONASA-ILA pier would permit ILA labor to routinely strip all shippers’ destined outside the 50-mile zone, and thus transform containers into cargo nets. Here, I find as the Board found in Consolidated Express, supra, 221 NLRB at 960, “the National Woodwork, supra, and American Boiler Manufactur- ing Association v. N.L.R.B. cases are distinguishable from the instant case since, in those cases, the very work claimed had once been performed, exclusively, by employees in the units represented by the respond- ent organizations therein.” Thus, here, as in Con- solidated Express, supra, rules 1(a)(3) and 2B(2) of the 1974-77 CONASA-ILA rules on containers have no valid work-preservation purpose. Their purpose is to cause U.S. Lines, Lavino, and other employer- members of HRSA‘and STA to cease doing business with motor carriers who refuse to surrender to ILA’s attempt to acquire work now done by the motor car- riers’ employees. I find therefore that by maintain- ing, giving effect to, and enforcing the contracts and agreements known as the rules on containers, as set forth in the 1974-77 collective-bargaining agreements and as reaffirmed in their supplemental agreement of May 30, 1975, Respondents CONASA, HRSA, and ILA violated Section 8(e) of the Act. I also find that by threatening to assess and by assessing liquidated 167a damages as provided in those agreements, thereby threatening, restraining, and coercing CONASA, HRSA, STA, U.S. Lines, and Lavino, with an object being to force those persons engaged in commerce to cease doing business with Associated, Houff, Pilot, and Thursten, Respondent ILA violated Section 8(b) (4) (ii) (B) of the Act. I also find that an objective of the suspension of the rules on containers on April 28, 1975, was to pressure CONASA, HRSA, STA, and their employer- members to cease doing business with motor carriers who refused to adhere to rules 1(a)(3) and 2B(2). In making this finding, I have looked in large part at the timing of ILA’s notice of suspension in late March. For it was in March and February 1975 that U.S. Lines suspended its equipment interchange agree- ments with Associated, Thurston, and Pilot because they stripped shippers’ loads destined beyond the 50- : mile zone and demonstrated the apparent refusal of / the motor carriers to surrender to ILA pressure. Further evidence of ILA’s unlawful intent is con- tained in the declaration in the CONASA-ILA sup- plemental agreement of May 30, 1975, that “truck- ing stations where containers are unloaded within the geographic area [50 miles of the center of each port] do not constitute bona fide public warehouses even where cargo is destined for delivery outside the geographic area.” Having found that ILA’s sus- pension of the 1974-77 CONASA-ILA rules on con- tainers was motivated at least in part by the same cease-doing-business object which provoked the fines 168a against U.S. Lines and Lavino, I further find that, by that conduct, ILA again violated Section 8(b) (4) (ii) (B) of the Act. THE REMEDY Having found Respondent ILA and Respondents HRSA and CONASA engaged in unfair labor prac- tices in violation of Section 8(e) of the Act, and Re- spondent ILA engaged in unfair labor practices in violation of Section 8(b) (4) (ii)(B) of the Act, I shall recommend that they cease and desist there- from and take certain affirmative action which I find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings and co::- clusions and the entire record in this case, and pur- suant to Section 10(c) of the Act, I issue the follow- ing recommended: ORDER ” A. Respondents International Longshoremen’s As- sociation, AFL-CIO, Hampton Roads District Council, International Longshoremen’s Association, AFL-CIO, ILA Locals 846, 862, 970, 1248, 1458, 1624, 1736, 1783, 1784, 1819, 1840, and 1970, AFL-CIO, their officers, agents, and successors shall: 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 169a 1. Cease and desist from: (a) Maintaining, giving effect to, and enforcing the contracts and agreements known as the CONASA- ILA rules on containers to the extent and in the manner said contracts and agreements have been found to be unlawful herein, or any other contract or agreement, express or implied, whereby CONASA and HRSA, on behalf of its employer-members, agree to cease or refrain from doing business with any other person in violation of Section 8(e). of the Act. (b) Continuing to seek or impose fines against employer-members of HRSA, including U.S. Lines, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Associated Transport, Inc., Houff Transfer Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer-members of Tidewater Motor Truck Association. (c) In any other manner, including the suspension of the CONASA-ILA rules on containers, coercing or restraining CONASA, HRSA, or any of HRSA’s em- ployer-members, or any other person engaged in com- merce in an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer- members of Tidewater Motor Truck Association. 170a 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Notify all of their members who are employed by employer-members of HRSA that any and all of the provisions known as the CONASA-ILA rules on containers which have been negotiated between ILA and CONASA on behalf of HRSA which restrain, restrict, limit, fine, or prohibit handling in the cus- tomary manner, containers bearing shippers’ loads, have been found to be void and unenforceable with respect to Associated Transport, Inc., Houff Trans- fer, Inc., Pilot Freight Carriers, Inc., Thurston Mo- tor Lines, Inc., or any other employer-member of Tidewater Motor Truck Association. (b) Post at all of their respective business offices, meeting halls, and dispatch halls copies of the at- tached notice marked “Appendix A.” "* Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by a representa- tive of each Respondent labor organization named in this section of the Order, shall be posted by each of the said labor organizations immediately upon receipt thereof, and be maintained by each of them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are 11Tn the event that the Board’s Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nationa! Labor Relations Board.” 17la customarily posted. Reasonable steps shall be taken by said labor organizations to insure that these no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps each of the said labor organizations has taken to comply herewith. B. Respondents International Longshoremen’s As- sociation, AFL-CIO; Atlantic Coast District Council, International Longshoremen’s Association, AFL-CIO, ILA Locals 333, 921, 953, 1355, and 1429, AFL-CIO, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining, giving effect to, invoke, or en- forcing the contracts and agreements known as the CONASA-ILA rules on containers to the extent and in the manner said contracts and agreements have been found to be unlawful herein, or any other con- tract or agreement, expressed or implied, whereby CONASA and STA, on behalf of its employer-mem- bers, agree to cease and refrain from doing business with any other person in violation of Section 8(e) of the Act. | (b) Continuing to seek or impose fines against employer-members of STA, including U.S. Lines and Lavino, or any other person engaged in commerce or in an industry affecting commerce, where an ob- ject thereof is to force or require such persons to cease doing business with Houff Transfer, Inc. (c) In any other manner, including the suspen- 172a sion of the CONASA-ILA rules on containers, coerc- ing or restraining CONASA, STA, or any STA’s employer-members, or any other person engaged in commerce in an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Houff Transfer, Inc. (2) Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Notify ali of their members who are employed by employer-members of STA that any and all of the provisions known as the CONASA-ILA rules on con- tainers which have been negotiated between ILA and CONASA, on behalf of STA, which restrain, restrict, limit, fine, or prohibit handling in the customary manner, containers bearing shippers’ loads, have been found to be void with respect to Houff Transfer, Ine. (b) Post at all of their respective business offices, meeting halls, and dispatch halls copies of the at- tached notice marked “Appendix B.”' Copies of said notice, on forms provided by the Regional Direc- tor for Region 5, after being duly signed by a rep- resentative of each Respondent labor organization named in this section of the Order, shall be posted by each of the said labor organizations immediately upon receipt thereof, and be maintained by each of them for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by said labor organizations to insure that 12 See fn. 11, supra. 173a these notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps each of the said labor organizations has taken to comply herewith. C. Respondents Council of North Atlantic Ship- ping Associations, (CONASA), and Hampton Roads Shipping Association ( HRSA), their respective offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from maintaining giving >ect to, and enforcing the contracts and agreements kiown as the CONASA-ILA rules on containers to the ex- tent and in the manner said contracts and agree- ments have been found to be unlawful herein, or any other contract or agreement, expressed or implied, whereby Respondent CONASA, on behalf of its mem- ber, HRSA, and on behalf of its employer-members, including U.S. Lines, agree to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) HRSA shall notify U.S. Lines and all other employer-members of HRSA that any and all provi- sions of the contracts and agreements known as the CONASA-ILA rules and containers, which have been negotiated between ILA and CONASA on behalf of HRSA, and which restrain, restrict, limit, fine, or prohibit handling in the customary manner, contain- 174a ers bearing shippers’ loads, have been found to be void and unenforceable with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurs- ton Motor Lines, Inc., or any other employer-member of Tidewater Motor Truck Association. (b) CONASA shall notify U.S. Lines and all other members of HRSA that any and all of the provisions known as the CONASA-ILA rules on containers which have been negotiated between ILA and CONASA on behalf of HRSA which restrain, restrict, limit, fine, or prohibit handling in the customary manner, con- tainers bearing shipper’s loads, have been found to be void and unenforceable with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurs- ton Motor Lines, Inc., or other employer-member of Tidewater Motor Truck Association. (c) HRSA shall mail to U.S. Lines and each of HRSA’s other employer-members, and post at its Norfolk, Virginia, office copies of the attached notice marked “Appendix C.”** Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent HRSA’s representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employer-members are customarily posted. Reasonable steps shall be taken by R&pondent to insure that said notices are not altered, defaced, or covered by any other material. 18 See fn. 11, supra. ~ 175a (d) CONASA shall mail to HRSA, U.S. Lines, and each of the other employer-members of HRSA, and post. at CONASA’s main office in New York, New York, copies of the attached notice marked “Appen- dix D.”* Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent CONASA’s representative, shall be posted by it immediately upon receipt there- of, and be maintained by it for 50 consecutive days thereafter, in conspicuous places, including all places where notices to member associations are customar- ily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, with 20 days from the date of this Order, what steps Respondents CONASA and HRSA have taken to comply herewith. 14 See fn. 11, supra. 176a APPENDIX A NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the oppor-, tunity to present their evidence, it has been found that we violated the law. Accordingly, we post this notice and we will keep the promises we make in this notice. WE WILL NOT enter into, maintain in effect, give effect to, invoke, or in any other manner or by any means enforce the contract and agree- ments known as the CONASA-ILA rules on con- tainers, rules 1(a) (3) and 2B(2) as set forth in the HRSA-ILA collective-bargaining agreement effective from October 30, 1974, to September 30, 1977, and as restated by the ILA-CONASA Memo- randum of Agreement effective May 30, 1975, or any other contract or agreement express or im- plied whereby the Council of North Atlantic Shipping Associations, and the Hampton Roads Shipping Association, on behalf of its employer- members, agree to cease or refraiii from doing business with any other person in violation of Section 8(e) of the Act. WE WILL NOT seek or impose fines against em- ployer-members of the Hampton Roads Shipping Association, including United States Lines, Inc., or any other person engaged in commerce or in 177a an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other member of Tidewater Motor Truck Association. WE WILL NOT in any other manner, including the suspension of the CONASA-ILA rules on con- tainers, coerce, or restrain the Council of North Atlantic Shipping Associations, Hampton Roads Shipping Association, or any of Hampton Roads Shipping Association’s employer-members, or any other person engaged in commerce in an industry affecting commerce, where an object thereof is to force or require such person to cease doing busi- ness with Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., and any other employer-member of Tide- water Motor Truck Association. WE WILL and do hereby notify our members, and other individuals employed by Hampton Roads Shipping Association, or any of its em- | ployer-members, that any and all of the provi- sions of the contracts and agreements known as the CONASA-ILA rules on containers which have been negotiated between ILA and CONASA on be- hal fof Hampton Roads Shipping Association, which restrain, restrict, limit, fine, or prohibit handling, in the customary manner, containers bearing shippers’ loads have been found void and 178a unenforceable with respect to Associated Trans- port, Inc. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO, LOCALS 846, 862, 970, 1248, 1458, 1624, 1736, 1783, 1784, 1819, 1840, & 1970 HAMPTON ROADS DISTRICT COUNCIL, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO 179a APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the oppor- tunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we will keep the promises we make in this notice. WE WILL NOT enter into, maintain in effect, give effect to, invoke, or in any other manner or by any means enforce the contract and agree- ments known as the CONASA-ILA rules on con- tainers, rules 1(a)(3) and 2B(2) as set forth in the Steamship Trade Association of Baltimore, Inc. ILA collective-bargaining agreement effective from October 30, 1974, to September 30, 1977, and as restated by the ILA-CONASA memorandum of agreement effective May 30, 1975, or any other contract or agreement express or implied whereby the Council of North Atlantic Shipping Associations, and the Steamship Trade Associa- tion of Baltimore, Inc., on behalf of its employer- members, agree to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. WE WILL NOT seek or impose fines against employer-members of the Steamship Trade As- sociation of Baltimore, Inc., including United States Lines, Inc., and Lavino Shipping Com- pany, or any other person engaged in commerce or in an industry affecting commerce, where an -180a object thereof is to force or require such per- sons to cease doing business with Houff Transfer, Inc. WE WILL NOT in any other manner, including the suspension of the CONASA-ILA rules on con- tainers, coerce or restrain the Council of North Atlantic Shipping Associations, Steamship Trade Association of Baltimore, Inc., or any of Steam- ship Trade Association’s employer-members, or any other person engaged in commerce in an in- dustry affecting commerce, where an object thereof is to force or require such person to cease doing business with Houff Transfer, Inc. WE WILL and do hereby notify our members, and other individuals employed by Steamship Trade Association of Baltimore, Inc., or any of its employer-members, that any and all of the provisions of the contracts and agreements known as the CONASA-ILA rules on containers which have been negotiated between ILA and CONASA on be- half of Steamship Trade Association of Balti- more, Inc., which restrain, restrict, limit, fine, or prohibit handling in the customary manner, containers bearing shippers’ loads have been found void and unenforceable with respect to Houff Transfer, Inc. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO, LOCALS 333, 921, 953, 1355, & 1429 ATLANTIC COAST DISTRICT COUNCIL INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO 18la APPENDIX C NOTICE To ALL EMPLOYEES AND ALL EMPLOYER-MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the oppor- tunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we Shall keep the promises we make in this notice. _WE WILL NOT enter into, maintain in effect, give effect to, invoke or in any manner or by any means enforce the contracts and agreements known as the CONASA-ILA rules on containers, rules 1(a)(3) and 2B(2), as set forth in the HRSA-ILA collective-bargaining agreement effec- tive from October 1, 1974, to September 30, 1977, and as restated by the CONASA-ILA Memorandum of Agreement effective May 30, 1975, or any other contract or agreement, express or implied, whereby CONASA, on behalf of HRSA, Or HRSA on behalf of employer-members, agrees to cease or refrain from doing business with any other per- son in violation of Section 8(e) of the Act. WE WILL and do hereby notify United States Lines, Inc., and all other employer-members of HRSA that any and all of the provisions of the contracts and agreements known as the CONASA- ILA rules on containers which have been nego- tiated between ILA and CONASA on behalf of 182a Hampton Roads Shipping Association, which re- strain, restrict, limit, fine, or prohibit handling, in the customary. manner, containers bearing shippers’ loads have been found void and unen- forceable with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Mo- tor Lines, Inc., and any other employer-members of Tidewater Motor Truck Association. HAMPTON ROADS SHIPPING ASSOCIATION 183a APPENDIX D NOTICE To ALL EMPLOYEES AND ASSOCIATION- MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the oppor- tunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we shall keep the promises we make in this notice. WE WILL NOT enter into, maintain in effect, give effect to, invoke, or in any manner or by any means enforce the contracts and agreements known as the CONASA-ILA rules on containers, rules 1(a)(3) and 2B(2), as set forth in the HRSA-ILA collective-bargaining agreement effec- tive from October 30, 1974, to September 30, 1977, and as restated by the CONASA-ILA Memo- randum of Agreement effective May 30, 1975, or any other contract or agreement, express or im- plied, whereby CONASA, on behalf of HRSA, or HRSA on behalf of its employer-members, agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. WE WILL and do hereby notify United States Lines, Inc., and all other employer-members of HRSA that any and all of the provisions of the contracts and agreements known as the CONASA- ILA rules on containers which have been negoti- 184a ated between ILA and CONASA on behalf of Hamp- ton Roads Shipping Association, which restrain, restrict, limit, fine, prohibit handling, in the cus- tomary manner, containers bearing shipper’s loads have been found void and unenforceable with respect to Associated Transport, Inc. COUNCIL OF NORTH ATLANTIC SHIPPING ASSOCIATIONS W ov. &. GOVERNMENT PRINTING OFFics; 1980 308108 183 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1534%3A01. Public record. Not legal advice.