Appendix — National Labor Relations Board v. International Longshoremen's Ass'n
Supreme Court brief1980
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APPENDIX
VOLUME I—(pp. 1-234)
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1082
NATIONAL LABOR RELATIONS BOARD,
Petitioner
—vV.—
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
AFL-CIO AND CoUNCIL OF NoRTH ATLANTIC
SHIPPING ASSOCIATIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR CERTIORARI FILED JANUARY 10, 1980
CERTIORARI GRANTED JANUARY 21, 1980
he
“Siicnaneen
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1082
NATIONAL LABOR RELATIONS BOARD,
Petitioner
— a
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
AFL-CIO AND COUNCIL OF NoRTH ATLANTIC
SHIPPING ASSOCIATIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
INDEX
Page
Chronological List of Relevant Docket Entries in Case Nos.
a i emandntinnes ; 1
Chronological List of Relevant Docket Entries in Case Nos.
PISSED RIE AE ee eC COR 3
Excerpts from Transcript of Proceedings in Case Nos.
8 REESITSER EAS SIRE Sp Sided “a ae 6
Witnesses:
Jack W. Mace
GREETS ESOT NR SCLC OF SRE aE ACLS ON 8
RCSD RAISES Si Se RC AA 17
aR FET OR fe AIRE 27 ea ae 17
EE RE eT SES ay SEN ER nan aE 19
Cletus E. Houff
AE Se SUBIR ce lO TERS eR 22
Ee TSR wi SOS Ce ak ROT Se Ee IS 33
ii INDEX
Page
Excerpts from Transcript of Proceedings in Case Nos.
5-CC-791, et al—Continued
Witnesses :—Continued a
Myles E. Billups
ae eR Nee PP Rela rl 36
Sp aS NISHA SIT ARCS ore Neer DEE eR Pee 39
A Stal ie ee 41
Otis Landis
REA AS RIN Redeem D ON UR! Oa Me CANO 42
Arthur Baker
aa ntainccisltichisareienge eee t aka eo! abate 46
PI cielliiia Sheila Neiiectlapbe ee ek cue i" Ae MR SW) 48
oi LE ERED SEDI AOS Ye SAMA ETT 49
TRIER eC LAT RAEN Se SE RON VETS 50
John Everett
EES RB RESIS RS Ne rte a Nerd eRe 50
ae RRS EES a DME Ne Bathe Ue ae Cae 54
ei. SER A See ER OER MS eC 56
Edward G. Bochert
A AERETIEENL CM SR oe eR i A Te 56
SSCS SSSR RE a SN EE 65
ah CS SEI CORRS a a ne A 65
Robert W. McCleskey
BAS a ES an te cms ZN 67
es EE AED ERG PORES OO ME TENG Tee 72
M. L. Chadwick
ERS SS RT EY aptamer? LaPeer S 72
hs BIER A ARC IR CAR aA SRS ch seg CoO RaRy 74
FASE Saeed gee ne De tae WA ERE CS Ae AA 75
Allie S. McNeil
ATES REET ER TRON SS Meee Gab Law PY ee Ly ban ee 76
ns UT CST A on ae eras AE a ae ee 86
ES ee RE OOP IT TORE eS 87
George L. Maier
FUREY AEP ee Sk ET Ae AR 88
ete MDA NIE ROS. EAE IEEE CT; DN SLES 91
ARTETA TREN ee SOENSIORE et 28 eae ROEN TTA SORE 106
INDEX iii
Page
Excerpts from Transcript of Proceedings in Case Nos.
5-CC-791, et al—Continued
Witnesses :—Continued
Capt. John M. Haynes
aca NE ONT PAD AROR EEE 108
SII ithcheeeinotitnniesnpakdnieteeusenalozaas aera is neem aaa 125
tire sucess Me Ce 126
TY iiSihara séihasinutnuiwedacndaciaciai eae ae 132
I aictiiciacndscsletetventedonaeadaga eens nee ee 133
James J. Dickman
SPINY cxsssscasitiorninmigshidepinaiupiedigsiituase cee aa ee 134
RAID ncn siensssndiolindcschesdvoiendimasliciaseidienncia daa: eae ele 142
Thomas W. Gleason, Sr.
acca EDR II LI SARE RY, 149
NY. ostinssscnssisiehiaGcilicekwneakencdatekaion ce Caen 152
Richard Hughes
SPOR Shi phcoiniesmebacabndidincclicbieaale ks men eae _ 159
A sass ccnp dati enichinhllipnidaepnanasgantd ad at en 161
FONE SB iii ccc ee ee 164
Alvah J. Merritt
hae Ee EL NLR TAS SD OT 168
RAPID sac sscecionesestioaisacsonblstia scseekas tide sata aie 171
PT OUI sis csimcisaroipata bist ig ak ee ines 173
Excerpts from Transcript of Proceedings in Joint Exhibit 1
in Case Nos. 5-CC-791, et al.
Witnesses :
Jack W. Mace
a NT OTRO AR AEF eR 176
dag ERROR ENOL: Tine ee 179
vpitsiciig RMR GET, 181
Cletus E. Houff
cian ETE pe, 182
CE Te NOMA EEE e 188
Edward G. Bochert
sata NE LEI OO) oy 190
al ee NT MON RAS ate Se 199
iv INDEX
Page INDEX Vv
Excerpts from Transcript of Proceedings in Joint Exhibit 1 Page
in Case Nos. 5-CC-79, et al.—Continued ; General Counsel’s Exhibits—Continued
Witnesses :—Continued Ee a eaiecedndiss taedbetalaaitiebn ae hidtkan is sheinae bids Gace 0 Reino aaa eh 344
A. 8S. McNeil ID <cldestelsbepiictt stpdihaindsecargichnilcabiveage Nia Mabeidlcs taeedl epradb uncceiencenee 345
IIIT iid a-s<i.~shesieatacsaaslessslanictaecalitcaesaahaeadaidiien sedan 203 Oe secs tin aepomaphedlinibnenjoiiniichaeted tain a adaokcdntcaaitbdee. ae 347
IN Sisiecdaccpntenshcaiarilisancedscih sinning sanioeiin a 207 ROI RE ENT AT TE ND NTP OET os Or SFT 374
Myles E. Billups NE NEE OE OT LR Se NT ae ITU OS Bae 396
PIP UDE <sriudisdintcciuiietesadncinacnibnietnressnatinconnbbicantnAdiiaiibaadsecaaeraaen ie 209 ROM RMSE SEEN E S SR SPUI I H8. es tS 398
CLOSE ----enonnsseeeeeeccsnsseeeeeceecenneeeeceecennssteecceennnnnatonesenecnseee 223 A ikea ice isan tag Vis hl et re i a 2 400
Alvin Merritt GF inincaell nasil pinitcnidtinicratatbgdaelbase side Lei le oles 401
ER EER oe NENT Orgad USER Ree TEN, nT 231 Oe ra i ae 408
Cross ............ ~onantatnnennetcnotenenceineenaenraneconte 233 a nl ola ea er en eee 408
General Counsel’s Exhibits Rice ere saan a iGaets 407
2 (title page; pages 10; 62-68; and 71-72) ................. - Respondent’s Exhibits (Joint Appendix in Nos. 77-1735 and
3 (title page; pages 10-11; 64-68; and 69)... 243 77-1758) in Case Nos. 5-CC-791, et al.
4 (title page; pages 9-10; and 64-76) ene. 251 | 1 (pages 722a thru 4th paragraph at 731a) ; Short Form
Brats ee tae ie inal i hee 264 through Bill of Lading (755a-756a) 421
11 (litle page; pages 8-9) 270 py n= 1s Deen Ua antag soe eeReremmer een po
WB Cee were s; We BRR) casas secs cscs oeececlece 277 4 (Ltr. dated 9/25/74; Cases No. 14-74)... 453
ST SERNOP R eeee RAA A ORG INT CMH Pr ees 287 (Ltr. dated 2/8/73; Case No. 11-78) ...................... 454
REE NED WE Oe ENEMIES MM A MS ea Srl, 289 (Ltr. dated 6/26/73; Container No. 21-73) 455
AO A ASEM CER COME Rees ape cal Oe 298 (Ltr. dated 10/3/72; Case No. 12-72) 457
I a ae le ee eee 302 | (Ltr. dated 11/29/72; Case No. 20-72) 459
RO IRE A RE RR ae AM Lt Sm 303 (Ltr. dated 5/22/70; Case No. 4-70)... .. 460
a re a 305 (Undated Itr.; Case No. 8-69) ..........0.0.... 461
fa CNOA AM ly OE NE EE SMO Tal 307 (Ltr. dated 12/19/69; Container Case 8-69) 462
OR Aust ee ie eT eee ee ene 308 ie TO iar eo or 464
OE CEE etcetera eee 310 7 Errata to the Administrative Law Judges Decision ......... 465
23 (all pages w/attachment) 2...000..0....ccceccccecccecececseceseceeeee 327 | Order Correcting Decision and Order ........................ 467
BO Scdihawawicensnccase Menace embed cet cee nen Mee a 329 Excerpts from Transcript of Proceedings in Case Nos. 2-CC-
i 1364, et al.
SU sciesianshelscchidassissapahaicianielieditieh aa gidnbsina talents cece 0 gti aa 330 ;
re as ot ee ae ee 334 Witnesses:
ERS se OCS OR aD ee init leech 936 rn McHugh
a 998 BIO mn nenensocencneerenninnensusnnonstinndnuesusedsannsgeconensubahbinnbisionn 473
nine ose nh TET ih ae Rae De NE he 481
DU itekcckeisuinaihinstinssloniesackabadeseahugues hia ilk conan ae 340 4 “ee py a LORI IED LE CE] PEF PETE ENTE 488
WA sh ck ciclicesissrenctnecinaremianpiaihciida casemate Gadi cee eile a etn 343
5 tars
vi INDEX
Excerpts from Transcript of Proceedings in Case Nos. 2-CC-
1364, et al—Continued
Witnesses :—Continued
Richard W. Lee
General Counsel’s Exhibits
3 (A, B, C, D, E, F and G w/attachments) .................
Order of Administrative Law Judge Jalette Striking all
Affirmative Defenses ......... isbaspolemamlictenaniniiaieimyetncdincs..
Order of Administrative Law Judge Jalette Rejecting
Evidence and Closing Hearing ............
Stipulation of Parties dated December 5 and 7, 1977 ......
Administrative Law Judge’s Order Approving Stipula-
tion and Transferring Case to the Board dated De-
oe A. ERRATA Sea ie ee
Board’s Order Approving Stipulation dated January 4,
FRE ONS ES TESS, ATER SET SOE a
Rejected NYSA Exhibit 1 (in its entirety)...
Rejected NYSA Exhibit 2A-2F (in its entirety) ...............
Rejected Affidavit of John M. Haynes, sworn to October
REE tera eA AIS IE Cann Ir
Rejected Affidavit of Michael J. Nicholas, sworn to Oc-
pee at oh. eR URE SATES TSS SCT ae HSE
Rejected Affidavit of William O. Gohlke, sworn to Oc-
SR le
Order of the Supreme Court granting certiorari ......_.
(The decisions of the Board and the decision and judg-
ment of the Court of Appeals were printed in the Board’s
petition for a writ of certiorari and thus need not be
reprinted.)
Page
bs let Sts et Ac cate
1
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
In the Matter of: Int’l Longshoremen’s Assoc., AFL-CIO
& Council of North Atlantic Shipping
Assocs., et al.
Case Nos.: 5-CC-791, 5-CE-48, 5-CC-792, 5-CE-49,
5-CC-793, 5-CE-50, 5-CC-794, 5-CE-51
5.7.75 Charge filed in 5-CC-791
5.7.75 Charge filed in 5-CE-48
5.12.75 Amended charge filed in 5-CC-791
5.12.75 Amended charge filed in 5-CE-48
5.12.75 Charge filed in 5-CC-793
5.12.75 Charge filed in 5-CE-50
5.12.75 Charge filed in 5-CC-792
5.12.75 Charge filed in 5-CE-49
5.13.75 Charge filed in 5-CC-794
5.13.75 Charge filed in 5-CE-51
9.25.75 Order Consolidating Cases, Complaint and Notice of
Hearing in 5-CC-791, 5-CE-48, 5-CC-793, 5-CE-50, 5-CC-
794, and 5-CE-51, dated
10.1.75 Order Consolidating Cases Consolidated Complaint
and Notice of Hearing in Cases Nos. 5-CC-792 and 5-CE-
49, dated
10.7.75 Petitioners International Longshoremen’s Assoc.,
AFL-CIO, et al.’s Answer in 5-CC-791, 5-CE-48, 5-CC-
793, 5-CE-50, 5-CC-794, 5-CE-51, received
10.10.75 Acting Regional Director’s teletype denying request
for postponement of hearing in Cases Nos. 5-CC-791,
5-CE-48, 5-CC-793, 5-CE-50, 5-CC-794, and 5-CE-51,
dated
2
10.10.75 Acting Regional Director’s teletype in Case Nos.
5-CC-791, 5-CC-792, 5-CC-7938, 5-CC-794, 5-CE-48, 5-CE-
49, 5-CE-50, and 5-CE-51, dated
10.10.75 Acting Regional Director’s Order Consolidating
Cases Nos. 5-CC-791, 5-CE-48, 5-CC-792, 5-CE-49, 5-CC-
793, 5-CE-50, 5-CC-794, and 5-CE-51, dated
10.14.75 Petitioners International Longshoremen’s Assoc.,
AFL-CIO, et al.’s Answer in 5-CC-792 and 5-CE-49, re-
ceived
10.15.75 Hearing opened
12.9.75 Administrative Law Judge’s Order receiving Joint
Exhibit No. 1 in evidence, and closing hearing
8.19.76 Administrative Law Judge’s Decision issued
9.14.76 Administrative Law Judge’s Errata, dated
9.13.76 Petitioners International Longshoremen’s Associa-
tion, AFL-CIO, its affiliated District Council and Locals
Exceptions to the Decision and Recommended Order of
the Administrative Law Judge, received
9.13.76 Petitioners Council of North Atlantic Shipping As-
sociations and Hampton Roads Shipping Association’s
Exceptions to the Decision of the Administrative Law
Judge, received
9.23.76 Charging Party Houff Transfer, Inc.’s Statement of
Cross-Exceptions to the Decision of the Administrative
Law Judge, received
8.12.77 Decision and Order issued by the National Labor Re-
lations Board
3
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
In the Matter of: Int’l Longshoremen’s Assoc., AFL-CIO
& New York Shipping Assoc., Inc.
Case Nos.: 2-CU-1864, 2-CE-75 & 2-CC-1365
5.6.75 Charge in 2-CC-1364 filed
5.6.75 Charge in 2-CE-75 filed
5.7.75 Charge filed in 2-CC-1365
3.10.75 Order Consolidating Cases, Consolidated Complaint
and Notice of Hearing, dated
3.16.76 Puerto Rico Maritime Shipping Authority’s and
Puerto Rico Marine Management, Inc.’s request for an
extension of time to answer the complaint, dated
3.19.76 Regional Director's Order Extending Time to
Answer, dated
3.19.76 Petitioner Employer’s Answer, received
3.25.76 Petitioner Union’s Answer, received
4.1.76 Statement of Puerto Rico Maritime Shipping Author-
ity, Puerto Rico Marine Management, Inc., Maritime
Transportation Management, Inc. and Trans American
Trailer Transport, Inc., dated
6.8.76 Regional Director’s Order Rescheduling Hearing,
dated
9.28.76 Regional Director’s Order Rescheduling Hearing,
dated
11.29.76 Petitioners’ letter requesting postponement of hear-
ing, dated
11.30.76 Regional Director’s Order Rescheduling Hearing,
dated
2.11.77 Petitioner Union’s letter requesting hearing be re-
scheduled, dated
2.15.77 Regional Director’s Order Rescheduling Hearing,
dated
4
4.5.77 Petitioner Employer’s Amended Answer, received
4.7.77 Petitioner Union’s First Amendment Answer, dated
4.21.77 Regional Director's Order Rescheduling Hearing,
dated
6.21.77 Petitioners’ Application to Take Depositions, dated
6.22.77 Petitioners’ Application and Demand for Production
of Documents, dated
6.23.77 Regional Director’s Order Amending Complaint,
dated
6.23.77 General Counsel’s Motion to Strike Petitioners’
Affirmative Defenses, dated
6.27.77 Regional Director’s letter denying Petitioners’ re-
quest for production of documents and application to take
depositions, dated
6.30.77 Petitioners’ letter requesting review of Regional Di-
rector’s denial of Petitioners’ request for production of
documents and application to take depositions, dated
7.6.77 Petitioner Employer’s Reply to Motion to Strike De-
fenses and Cross-Motion to Dismiss Complaint, dated
7.11-77 Hearing opened
7.11.77 Petitioner Union’s Opposition to General Counsel’s
Motion to Strike Petitioners’ Affirmative Defenses, dated
8.5.77 Administrative Law Judge’s Order rescheduling hear-
ing, dated
8.22.77 General Counsel’s Opposition to Petitioner Em-
ployer’s Cross-Motion to Dismiss, dated
8.22.77 General Counsel’s Reply Statement in Support of
Motion to Strike Defenses, dated
9.12.77 Administrative Law Judge’s Order granting Gen-
eral Counsel’s motion to strike Petitioners’ affirmative
defenses and denying Petitioner Employer’s motion to
dismiss complaint, dated
ret -
5
9.15.77 Petitioners’ letter requesting special permission to
appeal the Administrative Law Judge’s order striking
all of Petitioners’ affirmative defenses, dated
9.16.77 General Counsel’s telegram opposing Petitioners’ re-
quest for special! permission to appeal Administrative
Law Judge’s Order, dated
9.16.77 Board’s telegraphic order denying Petitioners’ re-
quest for special permission to appeal Administrative
Law Judge’s Order, dated
10.6.77 Administrative Law Judge’s Order rescheduling
hearing, dated
11.2.77 Administrative Law Judge’s Order rejected Peti-
tioners’ affidavits and exhibits attached thereto and ad-
vising they shall be placed in the rejected exhibit file,
and cancelling the scheduled hearing and closing the
hearing, dated
11.2.77 General Counsel’s letter objecting to the receipt of
the affidavit into evidence or to oral testimony by the
witness Gohlke and request that this evidence be rejected
and the hearing closed, dated
12.7.77 Stipulation entered into by the parties
12.22.77 Administrative Law Judge’s Order approving the
stipulation of the parties and transferring proceeding to
the Board, dated
1.4.78 Board’s Order Approving Stivulation and Transfer-
ring Proceeding to the Board, dated
1.27.78 General Counsel’s Brief to the National Labor Rela-
tions Board, dated
1.31.78 Petitioner Union’s Brief to the Board, dated
2.1.78 Petitioner Employer’s Proposed Findings of Facts
and Conclusions of Law and Supporting Memorandum
of Law, dated
2.13.78 General Counsel’s Reply Brief to the National Labor
Relations Board, dated
5.30.78 Decision and Order issued by the National Labor
Relations Board
BEFORE:
The Hon. LEONARD M. WAGMAN, Administrative
Law Judge
APPEARANCES:
BRUCE D. ROSENSTEIN, Esq. |
NLRB, Fifth Region, 1019 Federal Building, Hop-
kins Plaza, Baltimore, Maryland 21201, counsel
for the General Counsel.
WILLIAM L. AUTEN, Esq. 7
(Blakeney, Alexander & Machen) 3450 NCNB Plaza,
Charlotte, N.C. 28280, on behalf of Houff Trans-
fer, Inc., Charging Party.
MARSHALL T. BOHANNON, Esq.
(Herbert & Bohannon) Suite 402, Plaza One, Nor-
folk, Va. 23510, on behalf of Tidewater Motor
Transport Assoc. and Associated Transport, Charg-
ing Parties.
SIDNEY H. KELSEY, Esq.
(Kelsey & Kelsey) 1408 Maritime Tower, Norfolk,
Va. 23510, on behalf of Hampton Roads District
Council of the ILA and Locals 1970, 862, 1248,
846, 970, 1458, 1624, 1784, 1819 and 1840, AFL-
CIO, Respondents.
THOMAS W. GLEASON, Esq.
17 Battery Place, New York, New York 10004, on
behalf of International Longshoremen’s Associa-
tion, the Atlantic Coast District Council of the
ILA and all other locals, Respondents.
C. P. LAMBOS, Esq.
(Lorenz, Finn, Giardino & Lambos) 25 Broadway,
New York, New York 10004;
——@4nd—
FRANCIS SCANLAN, Esq.
(Deasey, Scanlan & Bender, Ltd) Two Girard Plaza,
Philadelphia, Pa., on behalf of Council of North
Atlantic Shipping Assoc, Party to the Contract.
BRADEN VANDEVENTER, Esq.
(Vandeventer, Black, Meredith & Martin) 2050 Vir-
ginia National Bank Bldg, Norfolk, Va. on behalf
of Hampton Roads Shipping Association.
* * 7 *
[52] MR. ROSENSTEIN: Okay. Let’s start on page
two of the Consolidated Complaint, Notice of Hearing
with respect to the enumerated cases. As I understand
it, pursuant to Respondent ILA’s Answer, paragraph 1
in its entirety has been admitted. With respect to para-
graph 2 on page 3, it has been admitted in its entirety.
With respect to paragraph 3, it has [53] been admitted.
With respect to paragraph 4, it has been admitted. With
respect to paragraph 5, it has been admitted. With re-
spect to paragraph 6, it has been admitted except that
there are additional rules embodied in the contract and
which General Counsel will so introduce into evidence.
But the rules as paraphrased in the Complaint in para-
graph 6 were taken from the rules on containers. Para-
graph 8 is admitted. Paragraph 9 is admitted. Para-
graph 10 is denied. Paragraph 11 is admitted. And the
remaining paragraphs 12 through 22 were denied.
I believe Mr. Bohannon has called to my attention that
I did not mention paragraph 7. That was the rules on
containers which were excised from the contract: and
as I have indicated, that the Respondent has admitted
that they are the rules, but also there are additional rules
which are included in the contract itself.
8
Now, we could move to the other consolidated _com-
plaint 5-CC-792 and CE-49. Paragraph 1 is admitted ;
paragraph 2 is admitted in its entirety. Paragraph 3 is
admitted. Paragraph 4 is admitted. Paragraph 5 is
admitted. Paragraph 6 is admitted. Paragraph 7, the
same stipulation that those rules are excised but there
are additional rules contained in the contract which will
be introduced into evidence. Paragraph 8 is admitted.
Paragraph 9 is admitted. Paragraph 10 is denied. Para-
graph 11 is admitted. Paragraph 12 through 22 is denied.
[54] Do you need a repeat of any of those?
JUDGE WAGMAN: No thanks; that’s all right.
MR. ROSENSTEIN: Now, I have not had the An-
swers as filed by Respondent Hampton Roads Shipping
Association or Respondent CONASA. I would ask that
the same admissions as Respondent ILA made also be
made by CONASA, but I would have to defer to Mr.
Lambos as to his position.
JUDGE WAGMAN: Mr. Lambos?
MR. LAMBOS: I stated earlier, Mr. Rosenstein and
Your Honor, that CONASA would adopt the Answer of
the ILA in its entirety. Ph
MR. VANDEVENTER: The same is true for Hamp-
ton Roads Shipping, Your Honor.
JUDGE WAGMAN: Are you ready to put on a
witness?
[65] JACK W. MACE
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
DIRECT EXAMINATION
* * * *
[67] Q Now, will you describe for us what a container
is, please?
9
A A container, in terms used in this contract that
we have with the International Longshoremen’s Associa-
tion, is a box at least 20-feet long in which cargo is
stored for transportation on an ocean carrier.
Q Do they come in specific denominations of length?
A They do; 20’s, 30’s, 40’s, et cetera, various com-
binations.
Q Now, I want you to specifically refer to the Hamp-
ton Roads area and ask you the first date when con-
tainers appear.
A A very few containers starting appearing at Hamp-
ton Roads in approximately 1965.
Q Now, I want you also to define, if you would, what
a LCL load is, an LTL load and a consolidated container
load.
A Basically, a consolidated container load would be
that which a cargo in a container belongs to more than
one consignee. Less than trailer load would be practically
the same thing as [68] LCL, likewise.
Q Now, would you define for us what a full shippers
load container is?
A A full shippers load would be a container which
the contents belong to one single beneficial owner.
Q Now, I want you to refer to 1965 and ask you
with respect to a full shippers load whether these con-
tainers when they were destined to a point more than 50
miles from the port area, were they stripped at the pier
by deepsea ILA labor?
A That would be termed a house to house movement
or a pier to house movement, and they were not stripped -
at the pier unless ordered so by the—ordered to do so.
Q Let’s talk about your definition of a house to house
movement. What does that mean?
A As an example, General Electric in Portsmouth
would stuff a container of its own product for an ulti-
mate destination to somewhere in Germany to the con-
signee’s plant there and the box would not be stripped
until it reached its manifested destination in Germany.
* a *
10
[69] Q Now, directing your attention to September of
1974, are you familiar with containers which were
stripped by motor transport carriers within a 50-mile
radius of the port area?
A Yes. a
Q Is it not a fact that these were containers with
full shippers loads?
A Yes. me |
Q And this would be under your definition of a house
to house movement, is that correct?
A Yes. ‘ = -
MR. LAMBOS: Yes. I think the record should in-
dicate that Exhibit 2 is the Hampton Roads agreement
for the period of October 1, 1968 to September 30, 1971;
that Exhibit 3 is the Hampton Roads agreement between
November 14, 1971 and [70] September 30, 1974; and
Exhibit 4 is the Hampton Roads and Longshoremen’s
agreement for the period of October 1, 1974 to September
30, 1977.
MR. ROSENSTEIN: Let the record so reflect, as Mr.
Lambos has stated.
JUDGE WAGMAN: There’s no question about the
authenticity of the contracts? I have a proffer of a
sitpulation.
MR. LAMBOS: We would stipulate that these were
the Hampton Roads Associations with the various ILA
craft unions noted on the cover. With respect to the
two contracts which are Exhibits 3 and 4 dealing with
the collective bargaining portion relating to containers,
we will stipulate that this is the agreement between
CONASA and the ILA and is contained for convenience
purposes within the booklet set forth in Exhibits 3 and 4.
MR. ROSENSTEIN: I'll stipulate to that.
JUDGE WAGMAN: Mr. Vandeventer, do you join in
that stipulation?
MR. VANDEVENTER: Yes, we will join in that
stipulation.
MR. GLEASON: Yes, we join.
11
JUDGE WAGMAN: And also Mr. Kelsey. Does
everybody join in the stipulations? The Charging
Parties?
MR. AUTEN: Yes.
MR. BOHANNON: Yes, sir.
JUDGE WAGMAN: The stipulation is received and
General * * *
* * * *
[76] Q Well, can you give me any indication as to the
exact point of time that the Tidewater Motor Truck
Association was aware of the enforcement of the rules
with respect to full shippers loads?
A I would say that members of the Association had
knowledge certainly as far back as 1969.
Q Okay. And under what area are you contending
that they—or contract provisions are you contending
that they had knowledge?
A I would say the entire contract provisions on rules
of handling of containers, inasmuch as there were viola-
tions going back to 1969.
Q All right. Refer to the contract, General Counsel’s
Exhibit 2 and turn to page 65. Now, are these the first
times that the rules on containers were asserted in a
contract that existed in the Hampton Roads area with
the ILA?
A That’s correct.
[77] Q (By Mr. Rosenstein) Mr. Mace, did you tes-
tify in the Federal District Court proceeding before Judge
Merige on September 17, 1975?
[78] A Yes.
Q And is it not a fact that {I asked you whether or
not on page 65 there were any provisions which related
to the stripping of full shippers loads?
A I don’t remember the exact ‘wording of your ques-
tion. We did talk about full shippers loads, yes. You
asked me for definition of one, of such.
Q And is it not a fact that we reviewed the rules
on containers and you informed me that there was noth-
— “ the rules which specifically related to full shippers
oads
12
A I indicated full shippers loads were exempt from
stuffing and stripping requirements unless ordered to
do so—unless they were ordered to be stripped or stuffed.
> * * *
[81] Q The question reflects, on page 65, is there any
provision in number one, two and three which specifically
states that ILA has the right to strip full shippers loads
at the pier area. :
A It states that containers which are destined to a
beneficial owner, full shippers loads need not be stripped
at the pier area.
Q Allright. Now, you talked about full shippers loads
being exempt from being stripped at the pier area, is
that correct?
A Yes, sir.
[82] Q All right. Now, let’s first start out in 1965
when containers first came into the Hampton Roads area.
Is it not a fact that containers which were destined to a
point beyond a 50-mile radius of the port area were not
stripped at the pier by deepsea ILA labor?
A Well, first, the containers that moved through the
port in 1965 probably could be counted on your hands.
There were a few containers, and there were no set
rules in the port at that time. The numbers were just
insignificant. Most of them were so-called Conex boxes.
Q But you said that containers did come in in 1965,
is that correct?
A There were a few that passed through the port.
Q All right. If they were a full shippers load destined
to a beneficial owner more than 50 miles from the port
area, is it not a fact that they were not stripped at the
pier by deepsea ILA labor?
A Unless they were ordered to be stripped.
Q Okay. Now, let’s get into that. When you say,
unless they were ordered to be stripped, is it not a fact
that this would occur when the container was in transit
and the container was changed from a house to house
movement to a house to pier movement?
A This could be a true example, yes.
Q So if the container remained a full shippers load,
house [83] to house movement, is it not a fact in 1965
13
that it was not stripped at the pier by deepsea ILA
labor?
A That’s correct.
* * * *
[90] Q Now, let’s go back to review 1965, 1966 and
1967. If you had containers similar to the containers
within this case, is it not a fact they would not be
stripped at the pier by deepsea ILA labor?
A We did not have any rules on the handling of con-
tainers during those years.
Q To your knowledge, if you had those types of con-
tainers, is it not a fact that they would not be stripped
at the pier by deepsea ILA labor? If you know.
A It would be only an assumption. I don’t know.
Q_ In other words, you’re not sure because there wasn’t
rules on containers.
A That’s right.
Q And you don’t know from your own personal
knowledge?
A That’s correct.
Q Okay. Let’s go to ine 1968 contract, again, if you
would. Keeping in mind the definition that you have
given as [91] to the types of containers involved in this
case, tell me if the rules on containers in 1968 specifically
state that the ILA would strip those types of containers
which you have just defined to the Court.
A I think the contract is pretty clear stating which
containers are to be stuffed and stripped at the pier and
which would move on.
Q Is there anything that you see in the rules which
specifically gave the right of the ILA to strip full ship-
pers loads destined to a beneficial owner more than 50
miles—excuse me, going to the beneficial owner beyond
the 50-mile radius?
A No.
Q_ Now, turn to General Counsel’s Exhibit 3, the 1971
contract. Turn to page 66. Now, is it not a fact that
those rules in the 1971 contract are identical to the rules
on containers in the 1968 contract?
A That is correct.
14
Q Once again I ask you, keeping in mind the defini-
tion that you have told us with respect to the containers
involved in this case, is it not a fact there is nothing in
the rules on containers which state that the ILA can ship
full shippers loads going to a point more than 50 miles
from the port area?
A No, there’s nothing in the rules.
* * * *
[92] Q Now, is it not a fact that ILA used Rule 1(a)
(3) and 2(b) (2) as the rules which they alleged were
the violations against the employer members of the Hamp-
ton Roads Shipping Association?
A That is correct.
Q And that was negotiated for the first time in June
of 1974 to be inserted in the October 1, 1974, contract?
A Rule 1(a) (3) in the ’74 contract is new wording;
however, the concept did not change. It says, “for con-
tainers going [93] to a point outside of the 50-mile
radius not be stripped.”
Q Okay. So the concept you’re saying is that when
a full shippers load comes-into the pier that it is not
stripped by deepsea ILA labor when it is going to a
point more than 50 miles beyond the port area.
A That’s correct.
* * * *
[96] Q Now, within those rules, there is a 30-day
warehousing clause rule known as 2(b) (4), is that
correct?
A That’s correct.
Q And that’s in the October, 1974, contract?
A That’s correct.
Q Would you for the Court describe what that 30-
day warehousing clause was?
A Basically, it says on inbound cargo in the normal
course of movement of such cargo, it may be warehoused
for a period not less than 30 days on which normal ware-
housing charges are paid; and the container then would
be exempt from being stripped at the pier and may be
stripped at the warehouse.
15
MR. ROSENSTEIN: Rule 2(b) (4), Your Honor, in
the 1974 contract.
Q (By Mr. Rosenstein) Now, during the period of
time of the suspension on the rules on containers with
respect to the 30-day warehousing clause, is it not a fact
that the containers that would normally go into the ware-
house were being stripped at the pier by deepsea ILA
labor?
[97] A Well, they were not going to the warehouse.
Whether they, in fact, were being stripped at the pier, I
don’t know; but that operation was suspended.
* * & *
[98] Q All right. Next, you mentioned that, upon
order, full shipper loads might be stripped at the pier
prior to 1968. If you know, what circumstances would
call for that stripping?
A I guess if the cargo changed ownership during
ocean transfer oy any number of reasons.
Q Would there be any possible reason, other than the
fact that all of the cargo in that container was not going
to the same place?
A You could say anything is possible, I guess.
Q Well, can you identify another reason that that
container would have been stripped?
A I can’t think of any particular reason right off-
hand.
[99] MR. AUTEN: I have no other questions, Your
Honor.
JUDGE WAGMAN: Mr. Bohannon?
MR. BOHANNON: Yes, sir, I do have one or two.
Q (By Mr. Bohannon) Mr. Mace, up until the 1974
contract, couldn’t it be said that any full shipper load
containers coming into Hampton Roads went to their
destination without being stripped?
A Yes, sir.
Q All right. Regardless of their destination, if it
were a full shipper load, it was not stripped at the piers?
A That’s correct.
Q Up until ’74?
A Even—
16
Q Even now?
A Even now, yes. Right.
Q That’s my next question. Even now, the bill of
lading or the shipping documents showed it to be a full
shippers load, it is not stripped at the piers, is it?
A Right.
Q So along that line in the history of containers, have
full shipper loads ever been stripped at the piers unless
upon direct orders of the owner or someone else?
A Ido not know of any cases.
Q Now, you testified in answer to Mr. Rosenstein’s
questions about a meeting you had with Mr. McNeil that
[100] represented the Tidewater Motor Transport As-
sociation. Why was there a meeting?
A I did not personally attend the meeting. The
Steamship Trade Committee had a meeting, and they
discussed the problems that they had with the various
motor carriers over the years. A new contract had just
been negotiated; and, again, the steamship agents felt
like they ought to advise the motor carriers of the terms
and conditions of the new contract. So, therefore, an in-
formal meeting of subcommittee level was set up with
Mr. McNeil and several of his members. I did not at-
tend the meeting; but that was the purpose of the meet-
ing, to apprise them of this new contract.
Q And that was the first such meeting, was it not?
And the only such meeting?
A To my knowledge, yes, a meeting as such, per se.
Q And it could be fairly said that it was occasioned
by your new ’74 contract?
A Yes.
Q And that did have the container rules completely
rewritten? |
A _ I wouldn’t say completely rewritten. Similar.
Q Well, the language is different in every paragraph?
A Right.
* * * *
CROSS EXAMINATION
[102] Q This case is about containers that are short-
stopped at a trucking station where the cargo is removed
17
not by the consignee’s employees but by the truckers’
employees, is that correct?
A That’s why the violation was imposed, yes.
* * * *
[106] Q (By Mr. Lambos) Mr. Mace, would you
please tell the Court in your own words what the prac-
tice was before the Dublin rules with respect to a con-
tainer destined to go to a warehouse within the port of
Hampton Roads?
A If such container did not go to a consignee’s fa-
cility within a 50-mile radius—a beneficial owner’s fa-
cility within a 50-mile radius, then, it was termed a
stripper. It had to be stripped.
[107] But if the container was destined to go to the
beneficial owner’s facility within a 50-mile radius, then,
it was not a stripper. It did not have to be stripped.
But if the container were to go to a consolidator or a
broker or a forwarder’s facility or what-have-you, then,
the container had to be stripped at the pier by ILA
labor.
— * * *
[115] Q (By Mr. Lambos) Mr. Mace, the Hampton
Roads Shipping Association is one of the constituent
members of CONASA, is it not?
A That is correct.
* © * %
REDIRECT EXAMINATION
[122] Q (By Mr. Rosenstein) Mr. Mace, with re-
spect to a full shippers load, is it not a fact that by the
fact that ILA does not strip those containers at the pier,
that they receive a royalty for those containers?
A That is correct.
Q All right. Now, what was the reason for inserting
that royalty and why does ILA get that royalty?
A The royalty was because it was negotiated in the
contract because containerization was a form of automa-
tion and, thereby, reducing the amount of hours in which,
say, a ton of cargo would be handled via containeriza-
tion as opposed to break bulk handling.
18
Q Now, would ILA on a 20-foot full shippers load
going to a beneficial owner at its manifested destination
obtain a royalty?
A They would.
Q And would that be so much per ton?
A That is correct.
Q And would it be between 40 and 50 dollars pos-
sibly per container?
A It’s conceivable.
* & = *
[133] Q That’s my point. If they were stripped within
the 50-mile radius, they would have been charged under
Rule 1(a) (3) and 2(b) (2). If they were stripped out-
side the 50-mile radius, they would have been charged
under the evasion principles, is that correct?
A Yes. a . : :
[187] Q But now, I’m talking specifically about a
full shippers load which is going to a single consignee
and the union charges that there is false documentation.
Now, which document did they say was false?
A Well, if the argument was presented in defense of
the container being stripped, that it was stripped at a
proper geographic point; and that geographic point was
different than its manifested destination.
Q All right. But if it was stripped in Richmond,
that was not a proper geographic point, was it?
A If it wasn’t in agreement with the manifest and
delivery order.
Q In fact, the ILA’s contention wasn’t that it was
stripped at an improper geographic point but that it was
stripped by the wrong people?
A It thereby wouldn’t be a true house to house
movement, if it wasn’t stripped by the proper people,
yes. It was stripped at a place, as the contract states,
a freight [138] forwarder, or a consolidator or a ware-
house or broker. These particular points or these par-
ticular operations are not acceptable points where con-
tainers may be stuffed or stripped.
Q All right. In any case where a violation was al-
leged, would the shipping companies necessarily have
19
known that the motor carrier intended to pull the con-
tainer to his terminal in Baltimore or within the 50-
mile area and strip it?
A I'd say that in 99 percent of the cases the ocean
carrier would have no knowledge of this. Once that con-
tainer leaves the terminal, he really doesn’t have any
knowledge of any—
Q All right. In 99 percent of those cases, how can
it be that the shipping company falsified any document?
A It’s not always the case. I haven’t seen these docu-
ments, but I don’t think it’s always the case that the
shipping company or ocean carrier, that is, would be
falsifying any documents.
It’s a relationship .f where the container is stripped
and where the documents state that the container should
be stripped.
* * * *
[140] All I want to know is what was the practice with
respect to containerized freight and the stripping of
those containers where the cargo was supposed to go
beyond the 50-mile radius; and I want to know what
paragraph 2 on page 65 and its apparent successor in
this subsequent contract, you know, where did they all
start. It’s a question of palentology.
MR. LAMBOS: We intend to present some paleon-
tology.
JUDGE WAGMAN: I want to know where did it all
come from.
MR. GLEASON: Your Honor, may I ask the witness
a couple of questions?
JUDGE WAGMAN: Certainly. Mr. Mace is a patient
man.
RECROSS EXAMINATION
Q (By Mr. Gleason) Mr. Mace, I’m a little confused
on this shippers load and the 50-mile radius. Now, can
you tell me the difference between a shippers load inside
the 50-mile radius and inside the 50-mile radius?
A There is none, basically.
Q So the same rules apply to the shippers load, if it’s
in the 50-mile radius or its outside the 50-mile radius?
A That’s correct.
20
Q And if a container that’s destined across the street
from the pier and is a shippers load going to the shipper
and [141] it goes to a truckman who ships it, is that a
violation?
A If it goes to the trucker, yes.
Q Okay. The same thing. Has it been the practice
in this port that if a container went outside the 50-mile
radius—was destined to go outside the 50-mile radius and
went to the trucker, whether it was inside the 50-mile
radius or outside the 50-mile radius, was that a violation?
A If it went to the trucker, it was a violation.
Q Regardless of where it went?
A That’s correct.
* * * *
[148] MR. BOHANNON: I thought we were ap-
proaching this from a different viewpoint, Your Honor.
I’m trying to show that the documentation is what con-
trols who strips. Not what happens to it after it leaves
the pier.
JUDGE WAGMAN: What’s been the practice?
MR. BOHANNON: That’s been the practice.
Q (By Mr. Bohannon) Mr. Mace, let me ask you
again. If the documentation on a container shows that
it is to go to the beneficial owner directly or the bill of
lading says this goes to the J.C. Penney Company in
Greensboro, North Carolina, it’s a full container load.
Now, that’s a full shippers load. That’s what we are
talking about here today?
A Right.
Q Such a container has never been stripped by ILA
labor, has it?
A Going back to your question, you said, “If this.”
What are you talking about, the container in tact?- “If
this goes to.”
[149] Q No,I didn’t say that, sir.
A If the container in tact goes to—
Q No, let me ask the question again.
A Okay.
Q I’m talking about the documentation. We are not
talking about what happens to it after it leaves; we are
21
talking about as it comes to the pier what the document
shows. It shows it’s going to J.C. Penney in Charlotte
or Greensboro, wherever their warehouse is down there;
and that container goes to the truck line that picks it
up, invariably, does it not?
A Yes.
[152] Q (By Mr. Auten) Mr. Mace, let me ask you
one thing. I’m not talking about who is entitled to the
work according to the [153] rules. I’m not talking about
who should do it. I’m not talking about who may be
in violation of the rules. I want to know if anyone other
than these motor carriers stripped full container loads
destined to a single consignee.
A I’m sure that the ILA from time to time has
stripped a full container load.
Q Do you know that as a fact?
A If they were ordered to do so, yes.
Q Now, why would they have done so, sir?
A Well, for any number of reasons. The option of
the consignee. Maybe the goods were going to Georgia
and he found a local consumer for the goods and he
wanted the goods stripped at the pier for local distribu-
tion rather than distribution in Georgia.
* * * *
_Q (By Mr. Lambos) Mr. Mace, assuming the ques-
tion just asked of you, assuming that a carrier of the
Hampton Roads Shipping Association had a so-called full
shippers load destined for Cincinnati and the trucker
came up to the pier and told your carrier member that
he was going to take it down the street to a trucking
station and do it, would not your carrier member in-
<< waane to strip that container?
; SENSTEIN: Objection; that’s hypothetical.
[154] A That’s correct. dasiasens
JUDGE WAGMAN: Overruled.
* * * *
[155] (By Mr. Auten) This, again, Mr. Mace, is ad-
dressed to how you folks interpreted the contract which
22
you had back in 1968. You looked in the booklet—and
this is page 65 of the 1968 and 1971 collective bargaining
agreement. And you looked in the booklet in the first full
paragraph at the top of the page and it says that the
rules on containers apply only to containers meeting
criteria that are enumerated one, two three right below
that, is that correct?
A Yes. ;
Q All right. The first of those criteria says, “Con-
tainers owned or leased by employer signatory members
including containers on wheels which contain LTL loads
and consolidated full container loads.
A Uh-huh.
Q That paragraph does not apply to any full ship-
pers load, does it, sir?
A No,sir.
Q All right. Number two says, “such containers.”
What did you take such containers to mean, did you
take that to refer back to number one?
[156] A Any such containers.
Q Does it refer back to number one?
A It could.
[167] CLETUS E. HOUFF
was called as a witness and, having been first duly
sworn, was examined and testified as follows:
JUDGE WAGMAN: Please have a seat, sir, and state
your name and spell it, please.
THE WITNESS: C. E. Houff, H-o-u-f-f.
“DIRECT EXAMINATION
Q (By Mr. Rosenstein) Mr. Houff, will you state
your name and address for the record, please?
C. E. Houff, Weyers Cave, Virginia.
And where are you employed, sir?
At Houff Transfer, with headquarters in that city.
And what is.your capacity?
President.
PO Pd Pp
23
Q And what is the business of Houff Transfer?
A Motor common carrier.
Q Do you have facilities located throughout the
United States?
[168] A _ In five states.
Q Do you have a facility in Baltimore, Maryland?
A Wedo.
Q Do you have one in Norfolk, Virginia?
A Yes.
Q Now, are you the individual who is a Charging
Party in some of these cases?
A Yes.
Q Now, would you tell me the approximate number
of employees that you have at your Baltimore facility
and the Norfolk, Virginia, facility?
A At Baltimore, we have 14 employees. At Norfolk,
we have five.
Q@ Are any of the employees at either Baltimore or
Norfolk represented by a labor organization for collective
bargaining purposes?
A No.
Q_ Now, how close is your Baltimore faciilty and Nor-
folk facility to the respective port areas?
A At Baltimore, we are approximately three miles
from the Dundalk terminals. In Norfolk, we are three
blocks from the Lambert Point dock.
Q And Lambert Point dock is in the Norfolk area?
A That is correct.
Q Now, do you utilize containers in the transportation
of [169] goods in interstate commerce?
A Yes.
Q Would you describe how you utilize a container?
A We pick the containers up from the piers, take them
to our terminals, weigh them; and, if they are over-
weight, they are transferred to the trailers of Houff
Transfer. In some cases, they may not be overweight
and alsc be transferred to the trailers of Houff Transfer.
* * * *
Q What are the size of the containers that you would
pick up at the pier?
24
A 20-foot and 40-foot lengths. Some 35’s, but mostly
20- and 40-foot.
Q Now, how is Houff Transfer notified that they are
going [170] to pick up a container?
A The broker or agent phones you that it has one
container or several containers destined to some con-
signee; and he then provides you with papers, delivery
receipts or dock receipts which you must have in your
possession and carry it to the piers, which is authoriza-
tion for the piers to tender these containers to Houff
Transfer.
Q Well, would you describe specifically what a de-
livery order is, please? ;
A It’s a piece of paper showing where the shipment
originated from, who it’s destined to, what the shipment
consists of, the weight, the container number; and, in
some cases, the seal numbers that are attached to the
container.
* * * *
[173] Q And will you describe how motor transport
carriers like Houff would utilize the bill of lading?
A A bill of lading is issued by the shipper covering
whatever shipment he may be shipping at the time, and
it is a document by which the shipment is received; and,
from this bill of lading, a freight bill is made by Houff
Transfer providing essentially the same information that
is covered on the bill of lading.
* * * *
(By Mr. Rosenstein) Now, I direct your atten-
tion to the Baltimore port area, and I ask you when did
containerization begin.
A It began, to my knowledge, around 1965.
That’s in the Baltimore area?
A In the Baltimore area.
Q Now, you have already defined a full shippers load.
I want you to tell me in 1965 what Houff Transfer did
when they [174] picked up a full shippers load at the
pier area in Baltimore.
A We were requested by either an agent of Baltimore
or perhaps a consignee itself to go to pier so-and-so and
25
contact whatever steamship the company may have the
container and pick up the same and deliver it—deliver the
merchandise to the consignee.
Q Now, what is the distance in miles from the pier
area that most of your shipments are destined?
A It would range from a minimum of ‘150 miles to a
maximum of 450 miles.
Q When yov picked up a full shippers load at the
pier, was the seal in tact? ;
A In most cases.
Q Had the full shippers loads been stripped by deep-
sea ILA labor at the pier?
A No.
Q Directing your attention to the Norfolk area, when
did containerization commence?
A At about the same time, as I recollect.
Q Will you describe, in the Norfolk area, how you
picked up a full shippers load at the pier area?
A In the Norfolk area, the brokers would issue the
instructions. In some cases,—and I’m talking about 1965
—we would be directed by the consignee to contact what-
ever broker may be handling the shipment. And once the
contact [175] was made, you may have had a document
to carry to the pier or it may have been done by a
telephone conversation, to go to the pier and get con-
tainer so-and-so; and there the documents would be issued
to you at the pier.
Q Now, when you picked up a container of a full
shippers load at the pier in Norfolk, was the seal in
tact?
A In the majority of the cases.
Q All right. Would you describe for me when the
seal would not be in tact?
A Occasionally, the seal may be broken by customs;
and, on some occasions, it may have gotten broken in
transit. It is a policy to check the seal numbers before
the containers were picked up.
Q Were containers of full shippers loads in 1965
stripped at the pier by deepsea ILA labor?
A No.
26
‘ Baltimore
Now, let’s go to the year 1966 for both
and Norfolk. Was the procedure the same as you de-
scribed for 1965?
A Yes.
Were the containers stripped at the pier by deep-
sea ILA labor?
A No. e
Q And yovu’re talking about full shippers loads?
A Correct.
In 1967, in Baltimore and Norfolk, were the con-
tainers [176] stripped at the pier—full shipper load
containers by deepsea ILA labor?
A No.
Q In 1968, for both Baltimore and Norfolk, were the
containers stripped at the pier—full shippers loads—
by deepsea ILA labor?
No.
In 1969, the same question.
No.
In 1970?
No.
In 1971?
No.
Is there any method in which a consignee—and
that’s the beneficial owner—can require a container to go
through in tact to the final destination?
A Yes.
1177] Q How?
A By requesting exclusive use of the equipment.
Q What is exclusive use of equipment? ;
A It means equipment will move through with what-
ever merchandise that may be on it without anything
DPOPOrO pO pO PO pL Pp
_
7)
~]
bo
—~2
27
being added on to it and it must be expedited. In other
words, once you receive it, it must keep moving.
Q From 1965 to the present date, has Houff Transfer
ever had exclusive use of equipment requested?
A Certainly not over two or three times, if ever. I
recall one shipment that may have been a container.
I’m not real sure; but it’s very rare that that situation,
because there is a penalty assessed to the consignee and
higher transportation costs.
Q Directing your attention to February 19, 1974, I
ask you whether or not you picked up some containers
on that date.
A Yes.
Q Where did you pick them up and what containers.
did you pick up?
A I picked them up from the Dundalk Marine Termi-
nals from United States Lines destined to—
Q How many containers?
A Two.
Q Did you pick up other containers?
A I’m not sure, on that particular date.
[178] Q Did you pick up any containers from Lavino
Shipping?
A Yes.
Q Was that in that same general time frame?
A Yes.
Q What type of containers were these three con-
tainers which you picked up at the pier area?
A 20-foot containers.
Q And what kind of loads did they contain?
A Two containers from United States Lines con-
tained silicone with the total weight of 78,000 pounds on
the two containers. The container from Lavino was
drums of picoline with the weight of about 38,000 pounds,
80 drums.
Q Were these containers described as full shippers
loads?
A Yes.
Q All right. What did you do from the point that
the broker told you that you were going to pick up these
containers, that you had been designated as the carrier?
28
A Picked the containers up from the steamship com-
panies, took them to the Baltimore terminal, transferred
them to Houff trailers.
Q What specific reasons did you use to open the seal
and strip those containers?
A The number one reason was they were overweight ;
they couldn’t be legally pulled over the highways of Vir-
ginia and West Virginia.
* * * *
[179] Q Now, do you want to explain those weight
laws in relationship to the container that you picked up
at the Baltimore pier area and stripped at your terminal?
A The containers which we picked up in Baltimore
were all three 20-foot containers; and they show the
distance between the first and rear axle and the maxi-
mum weight allowed under those allocations. _
Q So what determination did you make with respect
to that chart on the three containers which you picked
up?
A That they were all overweight.
Q And, therefore, what did you do?
A We unloaded them and transferred them to Houff
trailers. oa es
Q And is this to comply with the State of Virginia’s
rules and regulations on motor transport?
A Yes.
* * * *
[182] Q (By Mr. Rosentein) Now, you said the first
reason was as a result of the distribution of load for
stripping a container. Would you continue and tell me
if there were any other reasons that you determined it
necessary to strip the three containers?
A The second reason was that, being a 20-foot trailer
or 20-foot container loaded to the roof, going through the
mountains of West Virginia, it’s a very unsafe operation,
particularly in the wintertime. U.S. Highway 60, which is
the highway that Alloy is located on, is one of the most
obsolete and mountainous roads in the Continental United
States.
29
The third reason is that when we unloaded the con-
tainer and we turned it back to the steamship lines, we
saved the rental cost on the container.
[183] Q Now, the rental cost, is that under your equip-
ment interchange agreement which was introduced as Gen-
eral Counsel’s Exhibit 15?
A It is.
Q And do you pay the steamship line for the use of
those containers?
A Yes.
Q Those containers are owned by whom?
A They pay the steamship lines for them. Some of
them own them and some of them lease them from the
container people.
Q Houff does not own the container that you pick up
at the pier?
A Under no conditions.
* * * *
[184] Q (By Mr. Rosenstein) Mr. Houff, without go-
ing through the documentation, would you relate what
actions took place as a result of your stripping full ship-
pers loads at your facility in Baltimore, Maryland?
[185] A The steamship companies presented us with
bills totaling $3,000.00, claiming fines of some sort that
they had encountered and asked that Houff Transfer re-
imburse them in these amounts; and, since Houff Trans-
fer chose not to reimburse them, then, the steamship lines
cancelled the interchange agreement.
Q Okay. Did the steamship companies tell you the
reasons that they were fined?
A It said because we had unloaded the containers.
Houff Transfer unloaded the containers at our terminals
and put it on Houff equipment.
Q Now, will you describe once again the consequences
of your equipment interchange agreement being cancelled
with Lavino Shipping and U. S. Lines?
A Once the equipment interchange was cancelled, then,
the steamship lines refused to give you any more con-
tainers, because they said they didn’t have an effective
interchange agreement.
30
Q Since the date of the cancellation of the U. S. Lines
equipment interchange agreement, had Houff been selected
as the motor transport carrier for full shippers load?
A Many times.
MR. LAMBOS: I didn’t hear the last question and
answer.
Judge Wagman: Do you want to read that back, Mr.
Reporter?
MR. ROSENSTEIN: The answer was: “Many
times.”
So MR. VANDEVENTER: What was the ques-
tion
MR. ROSENSTEIN: The question was: After the
cancellation of the equipment interchange agreement by
Houff and Lavino, had Houff been selected as the motor
transport carrier to pick up full shippers loads?
Q (By Mr. Rosenstein) Now, who would select you
for the picking up of these containers of full shippers
loads?
A The consignees and the brokers, in some instances.
Q Now, has this occurred in the year 1975?
A Yes.
Q And I show you General Counsel’s Exhibit 25, and I
ask you to examine that briefly.
A This is a letter by the consignee requesting the use
of Houff Transfer on two United States Lines containers
covering baler twine to move from Norfolk, Virginia, to
Staunton, Virginia. Also, attached is a letter from the
United States Lines to the consignee saying that Houff
Transfer had not signed an interchange agreement with
= ey and we could not release our equipment to
ouff.
Q And the date of that was January, 1975, is that
correct?
A That’s correct.
Q Now, let’s go back, Mr. Houff, to the point that
you pick up the full shippers load at the pier area. I
show you General Counsel’s Exhibit 16, the uniform
straight bill of lading. And I ask you whether there is
31
anything in that [187] document that precludes you from
stripping a container at your facility.
A None whatsoever.
Q I show you what has been marked as General Coun-
sel’s Exhibit 18, the delivery order. And I ask you
whether or not there is any provision which preclude you
from stripping the container at your facility.
A None whatsoever.
Q The delivery order covers what, specifically?
A It covers two United States Lines containers with
calcium silicium moving from the Dundalk Marine Term-
inals to Union Carbide at Alloy, West Virginia.
Q Is there anything on that delivery order by the con-
signee precluding you from stripping those containers?
A No.
Q Was there any indication by the broker on that de-
livery order precluding you from stripping the containers
at your facility?
A No. aa
Q Is there anything on that order by the shipping
lines which precludes you to strip that container at your
facility?
A No.
Q On the three containers that you picked up, two
from the U.S. Lines and one from Lavino, was there an
exclusive use of equipment requested?
[188] A No.
Q I show you what has been marked as General
Counsel’s Exhibit 15, the equipment interchange agree-
ment. I ask you if there is anything in the equipment
interchange agreement between Houff and U. S. Lines
that precludes you from stripping a full shippers load at
your facility?
A No.
Q Mr. Houff, are there any other documents which you
utilize to pick up a full shippers load at the pier area?
A No.
Q So the bill of lading and the equipment interchange
agreement and the delivery order are the documents
that you utilize?
A That’s correct.
32
Is there any other document that you have knowl-
edge of that specifically precludes you to strip full ship-
pers loads at your facility?
A Not to my knowledge.
MR. ROSENSTEIN: I have nothing further of this
witness.
MR. AUTEN: Your Honor, I have one question.
JUDGE WAGMAN: Go ahead.
FURTHER DIRECT EXAMINATION
Q (By Mr. Auten) Mr. Houff, in your testimony,
you went into reasons why you might strip containers con-
taining full shippers loads going to a single consignee. As
I recall, [189] three of them, the weight rules imposed by
the states was the first; the second was safety reasons in
addition to the weight rules; and the third was the
economy, specifically having to do with the rental charge,
which was charged by the shipping company.
Now, in addition to those reasons, are there any other
operational factors that might suggest to you that a con-
tainer be stripped?
A Yes. On some containers, the fifth wheel pin lo-
cated on the chassis will not prevent or will not permit
the use of a tandem axle tractor in the movement of that
container. In other words, the rear wheels will hit the
chassis and, therefore, you are not able to use a tandem
axle tractor. If you did move the 20-foot container, there’s
always the problem of trying the load the thing back,
because you only have half the amount of floor space in
that that you would have in regular—or less than half the
floor space that you would have in regular common carrier
equipment, or the equipment of Houff Transfer.
If you are not able to load it back and it has to sit
around for days or weeks, it’s costing money. Again, it
comes back to the cost of the—
Q Just for purposes of clarity, describe what you
mean by loading back.
A In other words, if it would be pulled to the con-
signee’s [190] destination—and we will use Alloy, West
Virginia as an example—and then get that equipmert
33
loaded back into the Baltimore area, it’s practically impos-
sible to get a pay load on it. In other words, even if you
did load it, it would move for about half of the revenue
that should have been on it; and if you only move it for
about half of the revenue, then, it’s a losing proposition.
MR. AUTEN: Thank you, sir.
JUDGE WAGMAN: Mr. Bohannon?
MR. BOHANNON: No.
JUDGE WAGMAN: Mr. Lambos?
CROSS EXAMINATION
Q (By Mr. Lambos) Mr. Houff, you have been in
business in Baltimore since 1946, haven’t you?
A Yes, sir.
Q And you have been in business in the Port of Hamp-
ton Roads since 1952?
A I would say that’s correct.
* * * *
[198] Q Now, who made the decision on February 19,
1975, that the containers were overweight?
Our central dispatch in Weyers Cave.
Where is central dispatch?
In_Weyers Cave, Virginia.
And-when was that decision made?
As soon as the trailers were waiting.
You mean the weight of the containers wasn’t
known until the containers were actually picked up and
weighed in your facility?
A That’s correct.
* * * *
[210] A _ For the last year, our business has been way
off. U.S. Lines cut off and they were the biggest ship-
pers of containers in the territory which we serve. La-
vino would not ship any more by way of Houff.
And I’d say we moved well over a hundred.
Q A hundred containers?
A Right.
OPOPOP
34
Q Since last year was somewhat abnormal, take the
year before that. How many would you have moved the
year before that?
A Several hundred.
Q Now, when you say several hundred, you are
talking about steamship company containers?
A Right.
JUDGE WAGMAN: The year is what, 1974? Or are
we talking about a year back from today and this next
year, or is it two years back from today?
THE WITNESS: I’m talking about a year beyond
the time when U.S. Lines and Lavino cut us off.
JUDGE WAGMAN: When was that, January?
MR. LAMBOS: That was February of 1974.
MR. AUTEN: For purposes of clarity on the record,
I think it was midsummer 1974 when those documents
show that the interchange agreements were cancelled.
* * * *
[212] Q (By Mr. Lambos) What other work do you
handle at the Norfolk and Hampton Roads terminals?
A Outside of the container business?
Q Outside of steamship company container business.
A Well, we handle for about a half a dozen. GSA, I
would assume, is our biggest shipper. We handle for
Texaco, Southern States, Chase Bank, several others.
Q Now, these are movements in the domestic traffic
as compared with the foreign commerce of the steamship
company containers, is that not correct?
A Yes.
Q Is most of your business, in fact, not domestic
business?
A No, we have more domestic business than we do
container business. .
Q Substantially more, in fact?
[218] A _ I wouldn’t say it was substantial; but we have
more domestic than we do container.
Q In Norfolk, you indicated that you have five em-
ployees.
A Right.
35
Q Could you tell us how many of those employees are
Supervisory and how many actually perform loading or
unloading of container work?
A One supervisor has to do the loading and unloading.
Q Do any of these remaining four employees perform
office work?
A _One may do a little on occasion; but his primary
function is to load and unload. In addition to that, we fill
in with over-the-road men, helping them to do loading and
unloading.
Q How many manhours does it take to load a con-
tainer? In other words, take the cargo out of the 20-foot
steamship box and put it into one of your own boxes.
A From a half to an hour.
Q From a half an hour to an hour?
A Right.
Q With how many individuals working?
A One.
Q One individual?
A Right.
Q Would that one individual be operating a machine of
some type?
[214] A A forklift.
Q He would be operating a forklift. This one individ-
ual would take a half an hour to an hour?
A Oh, it’s been done in that length of time.
Q And you would say that the two U. S. Line con-
tainers required about one hour of labor to move the
78,000 pounds from the two containers into your equip-
ment? .
A That’s correct.
* * * *
[218] Q (By Mr. Kelsey) Mr. Houff, would you tell
bon gp whether in 1965 Houff Transfer Company
Stripped any containers at any piers in Norf
ton Roads? Qn the piers. ts reaiaad
A No, we did not strip any on the piers.
Q In 1966, did Houff Transfer strip any containers on
the piers anywhere in Hampton Roads?
A : Houff Transfer did not strip any containers on
the piers.
36
Q At any time, from 1965 through the present daie,
is that correct?
A That’s correct.
* * * *
[222] Q (By Mr. Gleason) When did you first handle
containers for U. S. Lines? ;
A Oh, I would assume sometime prior to signing this
agreement.
Q When was the first time you signed the agreement
with U. S. Lines?
A March 18, 1970.
Q So that was the first time you started actually
handling containers for U. S. Lines?
A In most cases, we handle some containers before we
have an interchange agreement; and the interchange
agreement follows the handling of some of the containers.
Now, with reference to your terminal operation in
Norfolk and Baltimore, did the ILA ever approach you
about [223] organizing your employees?
A No.
Q Did the ILA, to you knowledge, speak to you about
your interchange agreement and pressuring U. S. Lines
to cancel it?
A No.
* * * *
MYLES EVERETT BILLUPS
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
[224] DIRECT EXAMINATION
* * * *
A Yes, I am.
Q And, at that time, were you president of the Hamp-
ton Roads District Council, which you still are today?
[225] A _ Istill am, yes.
Q And you succeeded on the death of Mr. Alston to
International Vice President?
A That’s correct.
37
Q Will you refer back to page 64, of the 1968
agreement?
A Okay.
Q Now, number one, under containerization, it speaks,
does it not, only with respect to containers containing
LTL loads or consolidated full container loads?
A It goes a bit further. It says, “which are destined
for or come from any person, including a consolidator,
who stuffed containers of outbound cargo, or a distributor,
who strips containers of inbound cargo, and including a
forwarder.”
Q And that includes containers containing LTL loads
or consolidated full container loads, is that correct?
A That what I just read does.
- Q Now, that contained in number one in parentheses
is the same identical language which is contained on page
65 in (a) (2), is that correct?
A A container which comes from—(a) (2)—
Q You don’t have to read it. Just compare what’s on
i 9 In parentheses with the (a) (2) on page 65.
es.
Q And, therefore, the rules on page 64 and on
65(a) (2) apply to LTL and peaadidaten full taneas
loads, is [226] that correct?
A In the context just outlined.
Q That is correct. Now, if you will turn to page 68—
Excuse me. Page 66 of the agreement. If you will look
under (c) (1), it refers to (a) (3), which is the 50-mile
radius clause, is that correct?
A That’s correct.
Q And it talks as to LTL movements only, is that
correct?
7) Segrr to LTL, container loads, yes.
ow, if you will refer to page 68, paragraph
it states that if the purpose of pica sins pagan:
the present work jurisdiction of longshoremen and all
their deepsea ILA crafts over any containers loaded with
LTL cargo or consolidated full container loads as de-
fined herein. So paragraph 8 talks about—
38
A It stops, but I don’t see a period behind herein.
It says, “herein is not accomplished by the provisions
of these rules on containers, then, either party shall have
the right to renegotiate these provisions or any part
thereof by giving notice to the other party.”
Q It speaks, however, does it not, with respect to
LTL cargo and consolidated full container loads, is that
correct?
A That’s correct.
Q In the 1968 agreement, there is nothing specifically
which deals with full shippers loads in the rules on
[227] containers, is there?
A Well, the references to the ones that you made
back in 2(a), 2(b), the full container load, they were
giving the exceptions here to the rules.
Q Mr. Billups, you—
’ A ~At that time, in 1968, full shippers loads going to
a beneficial owner’s own place within or without the 50-
mile radius was not stripped by ILA labor.
Q They were exempt, correct?
A At that time, yes.
Q Okay. So deepsea ILA labor in 1968 did not strip
a full shippers load at the pier area when it was going
to a point either within 50 or beyond the 50-mile radius
of the pier area?
A To a beneficial owner or qualified shipper, at his
own installation.
Q Now, by contrast, didn’t you arrange for a royalty
payment as a result of not stripping full shippers loads
at the pier area which you would receive on each
container?
A On each container that was permitted to move on
a house to house move, yes.
Q And that would be approximately forty to fifty
dollars per container that would go into a special fund
for Longshoremen?
A Not necessarily so. It depends on the tonnage. It
was [228] $1.00 per ton for a container at that time that
was off loaded off of a full container ship, it was a dollar
per ton; it was less on a partial container ship.
39
Q All right. Now, if you will refer to General Coun-
sel’s Exhibit 3 and turn to page 66.
A Okay.
Q Now, in comparing Rule 1 in the ’71 contract on
page 66, is it not the same as the 1968 contract which
you have just testified about?
A It appears to be.
Q And it talks about LTL and consolidated full con-
tainer loads, is that right? ;
Q Yes, it does.
Now, will you turn to the 1974 eement, page
68; and is it not a fact that the rules pl sore ec vase
changed as inserted in the 1974 contrac /
A Yes, there were alterations made.
Q_ And is it not a fact on the containers as you heard
Mr. Houff testify, that he would have been charged with
a stripping violation under Rule 1(a) (3) and 2(b) (2)
of your agreement?
A Say that again.
Q 1(a) (3) and 2(b) (2) would have been the sec-
tions in the ’74-’77 contract which you would have charged
Mr. Houff with violating—excuse me—you would have
charged the U.S. Lines [229] as a result of the stripping
violation?
A Yes.
* * * *
CROSS EXAMINATION
_Q (By Mr. Kelsey) Mr. Billups, I would like to go
into your background and how the phases of the clauses
of the contract which you have ben asked about evolved
into the contracts which are now exhibits in the Court.
First, when did you first go to work on the piers at
Hampton Roads, how many years ago was it?
7) oe years ago.
years ago. Have you done practically eve
of job as a Longshoreman worker in the siete of ‘Hayy
ton Roads in the loading and unloading of ships?
A Everything but operate a container crane.
Q All right. Now, when did you first start serving
on the negotiating team of the ILA which negotiated the
local contracts and local, as it now turns out, container
40
rules [230] with the employers, when did you first start
forming a negotiation team?
A In 1954. ft
And have you served in every negotiation since
1954 to the present time?
A Yes, I have. ste
Q Now, first, I would like to get to what’s just been
asked you; and I will go into the contraci here. You
were asked whether or not on full shippers loads the
ILA stripped full shippers loads on a house to house
status; and I think you stated that the ILA did not.
A Right.
Q Right. Now, when does the container cease to have
the house to house status—or a full shippers load cease
to have the house to house status under the contract—
or when would the ILA be entitled to strip this load?
A When a full shippers load does not go to the bene-
ficial owner or consignee of the cargo at his own installa-
tion and is off-loaded by his own employees, then, it loses
its identity as a full shippers load.
* * * *
[232] Q (By Mr. Kelsey) Mr. Billups, state to us
when the full shippers load loses its status—I think I
asked you this. When it is stripped within the 50-mile
limit, is that correct? Bo
A A full shippers load loses its identity, whether it is
in or out of the 50-mile radius, when it does not go to
the beneficial owner’s installation and is off-loaded by its
own employees. :
Q All right. Now, at this point, does the ILA have
the right under the contract and under your agreement
with the employers there, to do this stripping of this
container—that’s if you’ve got it?
A Any other containers, other than the one just out-
lined by me, must be stripped at the pier.
Q Allright. So—
A And, of course, in the ’74 contract under the Dub-
lin rules, if a consignee desires his cargo to be stored in
a public warehouse under the 30-day warehousing clause,
41
then, that container is permitted to move to the public
warehouse to be stripped. :
Q All right. Now, to your knowledge, do you know
of any instance in which the ILA has believed that the
employer has known in advance that the trucker would
strip a load which was supposed to go house to house to
the beneficial owner, do you know of any instances?
A We have no way to prove that he knows.
* * * *
REDIRECT EXAMINATION
[233] Q (By Mr. Rosenstein) Mr. Billups, if full
shippers load was destined to a point 450 miles from
Norfolk and if it is taken to a point 350 miles away
and stripped by the trucker, do you consider that a viola-
tion of your contract?
A It’s a violation of the clause in the contract that
exempts the stripping of the container at the pier, because
it no longer qualifies as a full shippers load, because it
was short-cut prior to its going to its bona fide beneficial
[234] owner’s installation and off-loaded by his own
employees.
Q Doesn’t your contract talk in terms of evasion,
going to a non-CONASA port beyond the 50-mile radius?
A Well, the contract stipulates that if, for the purpose
of evading the 50-mile rule, that it could be extended be-
yond that point.
Q And you take the position that you could extend
on far as 449 miles, if the manifested destination was
A We consider that the contract deals with a house
to house container going and consigned to a consignee or
beneficial owner, wherever it is, and we exempt it on
those terms. Any deviations from that principle, it be-
comes a stripper.
Q And your contract you’re speaking is between the
shipper, such as U.S. Lines, and ILA?
A Yes.
Q You have no contract with the broker, you have
no contract with the motor transport carrier?
A No.
42
[235] OTIS LANDIS
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* = * *
DIRECT EXAMINATION
Q (By Mr. Rosenstein) Mr. Landis, would you give
your name and address for the record, please?
5718 Bartee Street, Norfolk, Virginia.
Where are you employed?
Teamsters Local Union 822.
And so you hold a position in that organization?
Secretary-treasurer.
And how long have you held that position?
Approximately two years.
Prior to holding that position, what type of em-
ployment were you involved in?
A Truck driver. _
Q And for whom did you drive a truck?
A Hemingway Freight Linss, Hennis Freight Lines,
Preston Trucking Company; quite a few.
[236] Q Are these truck lines in and around the
Norfolk area?
A Yes.
Q And for how many years prior to 1973 did you
drive a truck?
A Since 1960 in the Norfolk area.
Q@ Now, does Local 822 represent employees of the
Tidewater Motor Truck Association for collective bargain-
ing purposes?
A Some of them.
Q Could you name some of them—some of the com-
panies that Local 822 represents?
A Hennis, Preston, Associated, Carolina, Hemingway,
Hall’s, Maisland Transport.
And have you represented these employees since
1965 to the present date?
A Since before that.
OPOPoO pop
43
Q Now, do you know what a full shippers load is?
A I think so.
Q Would you describe what such a load is, please?
A Well, it would be normally a full trailer load ship-
ped from one shipper consigned to one consignee.
Q The consignee is the owner of the goods, is that
correct?
A Yes.
Q Now, as a truck driver, have you ever had an oc-
cassion to pick up the full shippers load at the Hampton
Roads pier?
[237] A Yes.
Q Would you describe what procedures you use and
you follow before you pick up the container and then
when you pick it up?
A He would get a pickup order from the dispatcher.
That’s the trucking company’s dispatcher. You would
go to the pier and you would present your pickup order
to someone normally at a checkout station they have
there. They would instruct you where the container is
located and you would proceed there, hook up to it and
take it out, go through the container interchange line
where a interchange agreement is written for the specific
trailer-container. He would then proceed back to the
checkout station to get a pass or any other documents
that go along to get you out the gate.
Q Now, when you pick up these containers at the
pier, was the seal in tact?
A Yes.
Q Do you know whether or not that full shipper load
container had been stripped by deepsea ILA labor?
A I would have no way of knowing that.
Q What did you do after you picked up the container?
A Normally, you would take it back to your terminal
—your company’s terminal.
Q And are those terminals located within a 50-mile
radius from the pier area, most of them?
[238] A The ones we represent are, yes.
Q Now, have you ever observed containers being strip-
ped at motor transport carriers that contained full shi
pers loads? iid
ee BOT PO chen ee Rede Vata ee Ea ee
44
A Well, I have observed containers being stripped.
As far as whether it was a full load or not, I really
couldn’t tell you.
Q Do you know or have knowledge whether Teamster
employees of the aforementioned companies you have
described when the need arises have stripped full shipper
load containers?
A Yes.
Q Allright. And they would be stripped where?
A If the trucking strips, it is done at his terminal.
Q Now, will you tell me the reasons that a trucker,
when the need arises, would strip a full shippers load by
Teamster employees?
A Well, there would be numerous reasons. One of
them would be—It’s primarily 20-footers, which they are
a very cumbersome trailer for a freight company to try
to operate with. They are small. And I think there was
some testimony before about the bridge law as opposed
to weight limits. You can take two 20-footers. If both
of them would have, say, in excess of 45,000 pounds be-
tween the two of them, you can consolidate them into one
trailer, one 40-or 45-footer freight trailer and take it
where it’s going, deliver it. Then, [239] you’ve got a
trailer there and they can reload back.
Q Okay. Are there any other reasons that motor
transport carriers would strip a container?
A Well, from my experience as a driver and as a
business agent, now, in getting complaints from the
drivers about containers, they tell me that they are hard
to pull, they handle bad, the tires may not be maintained
at what they think are proper standards, they have a lot
of light problems with them.
And on the 20-footers, with the twin-screw tractor,
the three-axle tractor, you do have the problem of the
rear tires getting into the landing gear and the chassis
frames.
Q Would you explain that?
A Well, when the tractor turns, the trailer—the land-
ing gear, the stand that it stands on when it’s not being
pulled, these are right up against the back of the tractor:
and when you turn, they dig into the tires,
45
How long have Teamster employees been stripping
full shipper loads at the employer members of Tidewater?
AI have seen containers stripped and loaded in and
out of Norfolk since they have been running containers.
Q Do you recall the approximate year when that
first started?
A Oh, some of them were pulling them in the middle-
60s.
Q Now, is there any way, to your knowledge, that a
[240] consignee can require a 20-foot container to go in
tact to the manifested destination?
A Where the consignee would require it?
Q Consignee, broker—
A Shipper or whatever?
Q Right.
A The only thing I could come up with right off
would be on an exclusive use basis.
Q What’s exclusive use mean?
A That’s where the shipper or the receiver, one or
the other—Whoever is paying the freight.—pays a
premium for—he gets exclusive use of the trailer. Ex-
actly what it says. c i 2 é
[241] Q Do Teamsters consider the work of stripping
a full shipper load at their motor transport carrier fa-
cility as their work?
A At the motor carrier terminal?
Q Yes.
A I most certainly do.
[246] ARTHUR BAKER
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* _s . *
46
DIRECT EXAMINATION
* * & *
[254] Q (By Mr. Rosenstein) I show you General
Counsel’s Exhibit 34 and ask you to turn to page three,
with respect to exclusive possession and responsibility.
Could you explain what that [255] means, please?
A Well, this is one of the provisions mandated by the
Interstate Commerce Commission which indicates that the
exclusive possession and responsibility of the equipment
rests with the using carrier, that he has exclusive pos-
session control and use of equipment until he completes
his responsibility, which is to return the equipment.
Q When you speak of carrier, what do you mean?
A Well, this is a carrier under the definition of—or
under the control or jurisdiction of the Interstate Com-
merce Commission.
Q A motor transport carrier?
A This could be a motor transport carrier. It could
possibly be a railroad or any domestic water carrier, if
it’s under the jurisdiction of the ICC.
* * * *
[256] Q (By Mr. Rosenstein) I show you what has
been marked as General Counsel’s Exhibit 36 and ask
you if you can identify that document.
A Yes, I can. That’s the uniform intermodal inter-
change agreement.
Q All right. What is the uniform intermodal inter-
change agreement?
A The uniform intermodal interchange agreement is
a direct result of a task force composed of motor carrier
members, water, steamship carrier members and railroad
representatives who got together under the auspices of the
Department of Transportation and the Equipment In¢er-
change Association under [257] a business review letter
granted by the Department of Justice to allow them to
collectively sit down and hammer out a set of interchange
agreements that would be applicable between the inter-
modal carriers; that is, water carriers, railroads and
AT
motor carriers. This was accomplished in 1972, result-
ing in the UIIA agreement.
r I show you what has been marked as General Coun-
sel’s Exhibit 37 and ask you if you can identify that,
please.
A Yes, I can. That is a list of the signatories that
are parties to the uniform intermodal interchange
agreement.
Q Now, I refer you to page 22 of that document. And
I ask you whether or not United States Lines is a
signatory to this agreement.
A Yes, they are a signatory.
Q And what was the date that they became a signa-
tory to this agreement?
A They executed the agreement June 28, 1973.
"13?
A 1978, right. c
And I refer you to page 11 of General Counsel’s
Exhibit 37 and ask you whether Houff Transfer is a
party to that agreement.
A Houff Transfer is a party. They signed the agree-
ment March 25, 1974.
Q Now, in General Counsel’s Exhibit 36, I direct you
to [258] page 5 of that agreement and ask you to look
under the section, Use of Equipment. Now, with respect
to four point one (a), what is that?
* * e *
[261] Q (By Mr. Rosenstein) Now, what does Gen-
eral Counsel’s 36 specifically provide for?
A It provides for the carrier named below owning or
operating equipment for intermodal interchange service
agrees joint and severally with each and all other car-
rier subscribers executing a counterpart of the agree-
ment to be bound by the provisions of this agreement and
subsequent amendments or [262] revisions thereof gov-
erning the interchange and use of, repairs to and settle-
ment for the equipment used in intermodal interchange
service when interchanging equipment with other car-
rier subscribers.
48
Q Now, is U.S. Lines a subscriber to General Coun-
sel’s 36?
A They are; they are a party.
* * * *
VOIR DIRE EXAMINATION
[265] (By Mr. Rosenstein) From your own knowledge,
Mr. Baker, is General Counsel’s 36 a copy of the agree-
ment that has been signed by the subscribers contained
in General Counsel’s Exhibit 37?
A It is the exact agreement. We are the issuing agent
for the UIIA, Equipment Interchange Association. We
forward that agreement to all signatories.
Q I direct your attention to page five and ask you to
refer to four point one (a) and tell me what that means.
A Four point one (a) is a standard provision we
have used in the motor carrier interchange industry; and
this is also the provision that was agreed upon by the
water carrier task force members, railroads and the
motor carriers. And it reads as follows:
“User shall have the right to complete control and
supervision of equipment while in its possession and shall
be responsible for returning the equipment in the same
[266] condition as received. Ordinary wear and tear
accepted.”
Q Do you know what a full shippers load is?
A Yes.
Q When a motor carrier picks up a full shippers load
at the pier area, would that paragraph refer to the use
of equipment?
A In my opinion, it would.
Q Now, does a motor carrier have an agreement to
deliver the cargo in that container?
A Yes, he has a bill of lading.
Q I show you what has been marked in evidence as
General Counsel’s Exhibit 16 and ask you if you can
identify that.
A The uniform straight bill of lading.
Q Now, who is that contract between?
A It’s between the shipper and the consignee, or
receiver.
49
Q And that document prevails at what point?
A It prevails from when the shipment is picked up
until it is delivered.
Q So when the shipment is picked up at the pier area?
A Right.
Q Now, I show you what has been marked as Gen-
eral Counsel’s Exhibit 18 and ask you if you can identify
that.
A That’s a delivery order.
Q Do you know what a delivery order is?
A Yes.
[267] Q And who is that a contract between?
A That’s between the carrier and the consignee.
Q When you say carrier, define what you mean by
carrier.
A Well, either a motor carrier or a steamship line
or railroad.
Q Is there anything on that document which pre-
cludes a motor transport carrier from stripping a
container?
A No.
* * * *
CROSS EXAMINATION
[276] Q (By Mr. Gleason) We have the same op-
eration with U.S. Lines with a container that they
dropped, say, in California and one of your members
picks it up to deliver it across country to Norfolk, Vir-
ginia. Under this agreement, does that motor carrier
have the right to take that cargo out of that container
and put it in his own truck for delivery—
A Sure.
Q —to Norfolk.
A What’s to prevent him? The bill of lading is from
the West Coast to Norfolk, but—
JUDGE WAGMAN: The answer is yes, right?
THE WITNESS: Yes.
Q (By Mr. Gleason) Is there anything in the agree-
ment that specifically says that you have that right?
A There’s nothing that says you don’t, either.
Q So it’s neither way. It doesn’t say you can; it
doesn’t say you can’t.
A Right.
ELI A, eS TEE NTT EO OMIT NTL CN A ORT Ae Eee er ee RTE NET NI
50
Q Now, isn’t it a fact that these agreements really
are set up for the purpose of finding who is responsible
for damages does to the containers in movement and the
cost of per diem rates on the containers after the free
period, isn’t that the main purpose?
A They outline user responsibility and per diem
charges.
[277] Q But it-has nothing to do with the handling of
cargo—
A Basically not.
* * * *
RECROSS EXAMINATION
[289] Q (By Mr. Rosenstein) What is the position
of your organization with respect to the right of motor
transport carriers to strip full shippers loads once the
container leaves the pier area?
A Well, we consider it to be within the purview of the
motor carrier, to handle that shipment to his economic
satisfaction, or to his economic interest.
If it requires stripping, then, he can strip it.
And there are no documents which you are bound
by, that being the delivery order, the bill of lading or the
equipment interchange agreement, the UIIA, which pre-
cludes the motor transport carrier from stripping a full
shippers load at his facility?
‘' A None whatsoever.
* * fe *
[291] JOHN EVERETT
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
[292] DIRECT EXAMINATION
Q (By Mr. Rosenstein) Mr. Everett, could you state
your name and address for the record, please?
A 4244 Greenleaf Drive, Chesapeake, Virginia.
Q And where are you employed, sir?
A Everett Express, Incorporated.
51
Q And in what capacity do you serve with that com-
pany?
A President and general manager.
Q And is your corporation a member of the Tide-
water Motor Truck Association?
A Yes, sir.
Q Now, can you tell me when containers first appeared
in the Norfolk area?
A I believe it was around 1965. Maybe some before;
but I believe it was around ’65.
* * * *
[293] Q Tell me how you would be selected to pick up
a full container load.
A Well, we would be contacted by a customer who
would give us instructions that he would have a load or,
if it is containers we are speaking of or whatever, have
his broker to contact us and give us the necessary docu-
ments for us to pick it up with.
Q All right. Now, what type of documents are you
referring to?
A The delivery order.
Q All right. I show you—
A Bill of lading.
Q All right. I show you what has been introduced
into evidence as Genera! Counsel’s Exhibit 18, and I ask
you if you can identify .hat that is.
A This is a delivery order.
Q Is that the same type of delivery order that Everett
Express would use?
A Yes.
Q Now, what does that delivery order provide for
specifically?
A The primary purpose of the delivery order is to
give the carrier authority to go to the shipper and pick up
the [294] freight.
Q So when you say the carrier, are you referring to
Everett Express?
A Well, Everett Express, if he is the carrier, yes.
Q And you go down to the pier and what do you do
with the delivery order?
SO NR Omg rer NENTS NTE ee SS ANS eS eT esa TP EST eT
52
A The delivery order, you give it to whoever is in
charge of releasing the shipment to you.
Q Would a shipper be, for instance, U. S. Lines?
A It’s possible.
And you would then deliver that delivery order to
the shipper, is that correct?
A Yes, sir.
Q All right. And then, what would happen?
A Well, he would in turn turn the shipment over to
us.
Q When he turns the shipment over to you, is the
trailer in tact—or is the container in tact?
A If it is a container, yes, sir, it is in tact; and, of
course, we have to go through an inspection line and in-
spect it, check it over whether it’s road-worthy or what-
ever and anything that might be wrong with it, have it
corrected right then.
Q And this would be with respect to a full shippers
load, is that correct?
A Yes, sir.
[295] Q Now, you mentioned a bill of lading. I show
you Exhibit 16—General Counsel’s Exhibit 16 and ask you
if that’s the uniform bill of lading.
A Yes, sir, this is the bill of lading.
Q All right. Now, what contractual relationship is
involved in the bill of lading, what parties?
A Well, the bill of lading primarily covers the ship-
per—between the shipper and the carrier.
Q Okay. Now, when you say shipper and carrier, who
do you mean?
A When I say carrier, I’m speaking of a truck line or
a railroad or Everett Express if he’s the principle or the
consignee whoever the shipment is going to or consigned
to.
Q Assuming you pick up a full shippers load at the
pier area, what do you do with it, then?
A Well, of course, from there it is brought to our term-
inal and billed and from there it is sent out for delivery.
Q Now, have there been occasions when you have for
your own convenience opened up a container?
A Yes, sir.
53
Q All right. For what reasons would you open up a
container?
A Well, it could be several reasons. The carrier has
the right to inspect any load, so we might want to inspect
it.
Q And why would you do that? :
[296] A Well, if we have any doubt at all that there
might be something wrong with the shipment, or it might
not be properly—It might say that this is a load of coffee
and it could have rice in the trailer. Of course, this would
determine your rate; the rate is determined or classified
on different items. A lot of times and mainly, if we have
a trailer or a container, for example, and we have—Well,
let’s use Wilson, North Carolina, as an example. If this
load is going into the area of Wilson, North Carolina,
and we had a load down there to come back say on an-
other steamship company container and we had to take
this container and empty it and then load it, this is not
profitable for us. If we took the loaded one down there
and bring it back empty, that’s still not profitable. So
we would transfer the load maybe from one container to
another in order to do good business, in other words.
Q Now, what size normally are the full shipper load
containers that you pick up at the pier area?
A Well, the size of the container?
Q Yes.
A We have some 20’s and some 40’s.
Q What size container would you transfer the con-
tents into?
A Well, primarily the 20’s.
Q What size would you transfer it into of your own
equipment?
[297] A Well, it could go into a 40-foot trailer or 45
or whatever. »
Q Now, have you ever had an occasion to call a con-
signee who owns the goods?
A Yes, sir, I’ve done this quite often.
Q Now, why would you call the consignee who owns
the goods?
54
A Well, we believe it’s a good policy to ask the cus-
tomer, even though they are getting the container which
is supposed to be a house to house movement, because
sometimes a customer may not want it to come through
house to house. So we will call him and ask him if he
minds if we transfer his load; and we have never had one
refuse us, yet?
Q Now, you said that containers started in the Nor-
folk area in 1965, is that correct?
A I would say roughly about that time, yes.
Q Now, between 1965 and the present date, has
Everett Express operated with respect to full shippers
loads in any different manner?
A No, sir.
Q So when the need arises you strip that container at
your facility?
A Yes, sir.
* * * *
[299] Q (By Mr. Rosenstein) Do you understand the
cuestion?
A Yes. You asked, I believe, did this say anything
on here at all or shows anything on here at all that I can-
not strip a container.
Q That’s correct. -
A No, sir, it does not.
Q I refer you to the bill of lading, and I ask you
whether there is anything in the bill of lading which pro-
hibits you from stripping a full shipper load container
at your facility.
A No, sir, it does not.
* * * *
CROSS EXAMINATION
[300] Q (By Mr. Lambos) Mr. Everett, when was
the last time you handled a U. S. Lines container?
A This morning.
Q Could you tell us what the terms of that arrange-
ment were?
A What do you mean, you mean—
Well, don’t you have an agreement with U. S. Lines?
[301] A Oh, yes. I’d go pick up the trailer, check it
out and bring it to my terminal and I would take it to
my customer. ,
55
Q And the normal relationship is for you to pick
up a container from U. S. Lines and take it right to the
customer?
A Well, yes, if the customer is going to load it out,
that’s true or is going to off-load it.
Q And you have an agreement, other than that uni-
form intermodal agreement, which is General Counsel’s
Exhibit 36 with U. S. Lines, which provides for compen-
oo to U. S. Lines for the use of their container, don’t
you
‘ A Yes, sir, we have a contract proposal on the per
iem.
* * * *
[304] Q (By Mr. Lambos) Do you consider yourself
fully bound by this uniform intermodal interchange agree-
ment? See
A Yes, sir.
Q And do you carry out the terms of that agreement
with respect to all containers that you receive?
A I try to. I mean, as near as I know how, I mean,
what I’m supposed to do.
Q And if you were to go to the pier and see an over-
weight or overladen container at the U. S. Lines pier,
what would you do at that point?
A If it was caught, if my driver knew about it before
he left there, I would never leave the terminal with it.
Q You would expect that the ILA at the terminal
pis unload that container and render it safe, would you
not?
A No, sir, I wouldn’t expect—I wouldn’t care who did
it. I would go to U. S. Lines and say, “You will have
to take this weight off,” and it would be up to them to do
what they want to about it.
Q And if U. S. Lines employed ILA employees at
that facility, it would be the ILA employees who would
take care of it—the U. S. Lines’ employees?
A I would say it would be up to U. S. Lines; what-
ever they choose to do would be up to them.
* * * *
;
56
RECROSS EXAMINATION
[307] Q (By Mr. Gleason) Mr. Everett, you had
stated some cases where these containers came to your
terminal and that you had stripped these shippers loads
and put them on your trucks to move them.
A Yes, sir.
Q Did you ever notify the steamship company that you
were doing this?
A No, sir.
[311] EDWARD G. BOCHERT
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
DIRECT EXAMINATION
Q (By Mr. Rosenstein) Mr. Bochert, would you state
you address for the record, please?
A Yes, 5705 Chippewa Road, Virginia Beach, Vir-
ginia.
And where are you employed, sir?
Associated Transport, Virginia Beach, Virginia.
And in what capacity?
I’m the manager.
And how long have you served in that capacity?
A little over three years.
1972?
Yes.
Now, would you explain briefly the business of As-
sociated Transport, please?
A Yes, sir, we are Class A common motor carrier
of cargo, freight engaged in interstate commerce. And
intrastate commerce, also.
Q Now, how many employees do you have at your
Virginia [312] Beach facility?
A At this time, approximately 50.
Q Now, are those broken down into various classifica-
tions?
A Yes, they are.
OPOPO Po PO
57
Q Would you tell us the types of employees that you
have?
A Well, I have approximately 30 what we classify as
truck drivers, 11 platform workers and the rest being
clerical, supervision and sales.
Q Are you drivers represented for collective bargain-
ing purposes by a labor organization?
A Yes, they are,
Q And that is what, sir?
A The Teamsters.
Q You indicated that you ship in interstate commerce,
is that correct? :
A Yes.
Q What is the average distance of your moves from
the Virginia Beach facility?
A Our average length of haul from Virginia Beach is
about 450 miles.
Q Now, could you give us the distances of the As-
sociated terminal at Virginia Beach to the various port
areas where you would pick up containers or cargo?
A Yes, we are about seven or eight miles from the
maritime terminals in Norfolk, about that same distance
from [313] the Lambert’s Point docks in Norfolk, maybe
seven or eight miles from the Portsmouth Marine Term-
inals in Portsmouth, Virginia, and about 20 to 25 miles
from the piers in Newport News, Virginia.
Q Mr. Bochert, would you describe what a full ship-
pers load is?
A Yes, sir, it’s a truckload freight on a trailer con-
signed to one consignee and one shipper.
Q Now, has Associated ever had occasions to pick up
full shipper loads at the Hampton Roads pier area?
A Wecertainly have.
Q Will you describe the procedures Associated follows
in order to pick up a container?
A Yes, sir. We are issued a delivery order or bill of
lading from a broker either in the town of Norfolk or
from an outside source through the mail. Upon receiving
this, we note on the delivery order that we, of course, have
been specified by a shipper, consignee, as the carrier to
transport the goods from Norfolk to wherever. The de-
58
livery order also spells out where the container in this
case is at and at which pier, as I mentioned before.
We check with the pier offices down at the particular
pier, say, for instance at the Maritime Terminal, ask-
ing the responsible party down at the pier office, is con-
tainer such-and-such released for shipment. If we are
advised that [314] this has happened, we send the local
driver with a local tractor to the pier area with his de-
livery order. He then, in turn, reports to the particular
party involved, at whatever steamship line it may be,
shows the document proving that we are the carrier of
record. There he is instructed the proximity at the term-
inal where he can find this container. He then gev2s look-
ing for the container.
Upon finding the container by number, he is checking
the number or for the number, he takes it through the
steamship’s checkout line that they have, where the
trailer is checked for DOT and ICC compliance for lights,
tires and what-have-you.
Q Would you explain DOT? What does that mean?
A Department of Transportation which, of course,
governs Associated Transport and all the other carriers as
to rules and regulations of the highway and all phases
of transportation, dangerous cargoes and what-have-you.
Q And the ICC is what?
A The Interstate Commerce Commission.
Q Allright. Would you continue, please?
A Yes. Once this is accomplished and the container
is checked by eyesight by my driver as well as the person
at the pier responsible, U. S. Lines personnel or what-
ever, it is then placed off to the side. The driver goes in
and signs an equijment interchange, where Associated
Transport signs for [815] this container and has accepted
the responsibility of the container, and this interchange
agreement between, say in this case or my case, U. §
Lines with Associated.
He then obtains a pass to exit the premises, the pier or
whatever, the terminal area; and he brings the trailer
back to my terminal.
59
Q Now, you mentioned a delivery order. I show you
General Counsel’s Exhibit 18 and ask you if that is the
delivery order.
A Yes, air, it is.
Q Now, what does the delivery order specifically cover
for you to obtain?
A Well, the delivery order would cover the letter, as
I refer to it, specifying, like I said, us as the carrier. The
consignee’s name would appear on this. A lot of times in
a lot of cases, who is responsible for the charges that we
will be billing for the movement of this particular freight.
Q Could you speak up a little louder, please?
A Yes, sir.
Do you want me to repeat that?
Q No, that’s all right. On the delivery order, does
that enable you to pick up the cargo itself?
A Yes, it does. aS
Q Now, I refer you to General Counsel’s Exhibit 16
and ask you what that is.
A This is a uniform straight bill of lading.
[316] Q All right. Now, what parties would be sub-
ject to the uniform straight bill of lading?
A The shipper, the consignee and the motor carrier.
Q Now, when you are talking about the shipper, who
do you mean?
A The party that originates the shipment.
Q That would not be U.S. Lines?
A No, sir.
Q And the motor transport carrier is Associated?
A Right.
Q And the consignee is the beneficial owner of the
goods?
A That’s right.
Q Now, I show you what has been identified as
General Counsel’s Exhibit 44, and I ask you if you can
identify that document.
A Yes, sir, this is or was the existing contract between
United States Lines and Associated Transport.
Q All right. Now, what type of contract?
A An equipment interchange contract.
60
Q All right. Now, what was the date that that agree-
ment was negotiated?
A May 6, 1969.
Q All right. Now, what does the equipment inter-
change agreement provide?
A It’s a contract between the steamship line and the
motor [317] carrier to interchange equipment.
Q Did you have any other agreements with respect
to the interchange of equipment with U. S. Lines in
existence in March of 1969?
A Not to my knowledge, no.
Q You arrived in 1973, is that correct?
A 72.
Q Do you know of any other agreement that you
utilized to exchange equipment with U. S. Lines, other
than that document?
A No, sir.
MR. ROSENSTEIN: I move to introduce General
Counsel’s Exhibit 44.
JUDGE WAGMAN: Any voir dire or objection.
MR. LAMBOS: No, in the meantime, I have had an
oportunity to examine the document. I have no voir dire,
and I have no objections.
JUDGE WAGMAN: I take it nobody else objects?
Genera! Counsel’s Exhibit 44 is received in evidence.
Q (By Mr. Rosenstein) Now, I direct your attention
to September 24, 1974, and ask you whether you picked
up any containers on that date.
A Yes, sir, I did.
Q All right. Tell me whose containers you picked up
and what you did.
[318] A _ I picked up eight containers either owned or
leased to the United States Lines. I picked them all up at
the Maritime Terminals in Norfolk, Virginia, all at one
time. It was eight containers involved. We dispatched
two local drivers to handle the eight containers down to
the pier, and they followed the procedure that I outlined
before and brought all eight of them back to my terminal
at Virginia Beach.
ee Re ee ee ee ER eNO en aR
61
What type of containers were these?
A Well, they were a mixture of 20-foot and 40-foot
containers.
Q What type of loads did they contan?
A All shipper loads.
Now, what did you do with the combination of the
20- and 40-footers when you brought them back to your
facility?
A Well, we had the bill of lading; and I determined
that, in each instance, these were cartons of velvet,
roughly 12,00 pounds to a 20-foot container. And, at this
time, I had empty equipment of my own sitting in my
yard doing nothing. Well, I made up my mind to say, strip
two 20-foot containers and put them in one of my 45-
foot trailers. Two more was done the same way, but with
a combination of a 40-foot and a 20-foot we put in one of
my 45-foot trailers.
Q Where was the manifesed destination for these
containers?
A AsI recall, five were in North Carolina and three
were [319] in Tennessee.
And these were all destined to a point more than
50 miles from the port area?
A That’s correct.
Q Now, you said that you made a determination based
on the bill of lading to strip the containers. What entered
into your determination to strip the containers?
A Well, for one, the merchandise was that of such
that it would not be easily damaged, it wouldn’t be pil-
fered, and also they were large cartons, bulky cartons. but
very light cartons, though.
And, of course, the economics of the whole thing with
my own equipment sitting in my yard, why take on leased
equipment.
Q Well, is there a charge you would have to pay on the
leased equipment?
A Yes, sir, there is.
Q How does that work, and who do you pay the
charge to?
A It is per diem charges that we pay to United States
Lines for lease of their equipment while in our possession.
62
Q Doyou recall any other reasons that you determined
to strip the eight containers in question?
A AsJI recall, one of them was overloaded. We then,
of course, instead of going to the broker saying we have
a problem, we have an overloaded container, we would
have to take it to [820] the pier and whatever, I just
adjusted the load on my own equipment, the difference
being the containers are much heavier than our own
trailers.
Q Do you ever contact the consignee prior to stripping
the containers?
A No, sir.
Q Does the broker require you to contact the con-
signee?
A No, sir.
Q Is there any restriction in the bill of lading which
precludes you from stripping a full shippers load at your
facility?
A No, there is not.
Q Is there any restriction in the delivery order which
precludes you from stripping a shippers load at your fa-
cility?
A No, sir.
Q Referring to your equipment interchange agreement
that was in existence in September of ’74, was there any
restriction that precluded you from stripping full shippers
loads at your facility contained in that document?
A No, sir.
Q Now, is there any way in which a consignee could
require that the 20-foot container remain in tact and be
delivered as a 20-foot container?
A Yes, there is.
Q And what is that?
[321] A That’s by requesting exclusive use of the
vehicle.
Q Now, what does that mean?
A Well, that means that the said container will move
in tact as it arrived this country to the destination.
63
Q Was exclusive use of equipment requested on the
eight containers that were picked up from U.S. Lines on
September 24, 1974?
A No, sir, there was not.
ad * * *
All right. I have been tendered this container. I know
that I am only getting $400.00 revenue out of it; but,
physically and economically, if I decide to strip this con-
tainer, I’m spending the labor to do it, why make a
[322] shipper or a consignee do that? They are good
enough to give me the freight, so why should I say I want
the trailer stripped at the pier and cause friction or
whatever. There’s too many carriers around me. We
don’t need Associated, if they want to run down to the
pier and have their containers stripped all the time. So
I eat these additional costs. However, when I do strip
we make up for it in line haul, diesel fuel and many
other aspects.
[826] Q Did there come a time when you received cor-
respondence with respect to your equipment interchange
agreement?
A Yes, there was.
Q I show you General Counsel’s Exhibit 42 and 43
and ask you if that is that correspondence.
A Yes, sir.
Q What happened with respect to your equipment in-
terchange agreement?
A It was cancelled because of the Associated Trans-
port not reimbursing U.S. Lines $8,000.00.
Q So U.S. Lines had paid the $8,000.00 fine to the
joint fund, is that correct?
A Uh-huh.
* * * *
* * * *
[827] Q Now, after the cancellation of your inter-
change agreement on March 20, 1975, did U.S. Lines ever
interfere with your ability to pick up full shipper loads?
A Yes, they did. We received a call—at least Mr.
Bryant, the assistant terminal manager at Associated
Press did—from a gentleman named Mr. Quigley work-
64
ing with J.P. Stevens in New York. Mr. Quigley in-
formed Mr. Bryant of a booking number for us to pick
up two U.S. Lines empty containers to transport to some-
where in North Carolina to pick up loads for export to
come back over the Norfolk port.
Mr. Bryant hung up from Mr. Quigley and called up
U.S. Lines and said, “I’ve got this booking number. When
can I pick these two empty containers up?” And I be-
lieve the gentleman’s name was Edwards. I’m not sure.
But Mr. Edwards [328] told Mr. Bryant, he said, “I
will have to check with the New York office and call you
back.” And about 45 minutes elapsed and this phone
call did come in, and Mr. Bryant was informed we
couldn’t handle the containers if we didn’t have a con-
tract with U.S. Lines any more. This was Mr. Quigley.
* * * *
Q Now, from the cancellation of your interchange
agreement on March 20, 1975, have you been able to
pick up containers of full shippers loads at the pier in
the Norfolk area?
A Yowu’re speaking of other containers?
Q No, of U.S. Lines containers.
[329] A No, sir.
* * * *
Q (By Mr. Rosenstein) Mr. Bochert, you testified
that you commenced operations as manager in 1972.
Starting in 1972, did you follow the same procedures with
picking up full shippers loads as you have described in
your testimony?
A Yes, sir.
Q In 1973, did you do it the same way?
A Yes, sir.
Q And in 1974, did you do it the same way?
A Idid.
Q And in 1975 with other shipping lines besides U.S.
Lines, would you also follow that practice?
A Yes, sir.
* s a *
65
CROSS EXAMINATION
[343] Let me put it this way: When was the first
time that you learned that the ILA took the position that
if a shippers load destined for a consignee’s place of
business were short-stopped at a trucker’s terminal and
there the container was stripped into a motor carrier’s
equipment, that the ILA considered that this was a
violation of the steamship carrier’s obligations to the ILA
under their contract, when did you first learn of that
fact?
A That exact fact would be at the first—at the in-
junction hearing, I think. That exact fact.
Q That exact fact.
A Yes.
Q Now, let’s take the general knowledge on this
subject, when did you first have it?
A I have heard of the 50-mile radius, if that’s what
you are speaking of. I’ve known about that for ten or
eleven years, that they had a 50-mile clause or something
of this nature. I don’t know.
Q@ And ten or eleven years would take us back to the
middle or mid-’60s?
A Right.
Q And the 50-mile clause—or so-called—has been well-
known in the trucking industry since the mid-’60s, hasn’t
it?
A It has, I guess, yes; uh-huh.
* * * *
REDIRECT EXAMINATION
[368] Q (By Mr. Rosenstein) I show you Respond-
ents’ 3, Mr. Everett, and ask you to refer to 4, sub-
paragraph (e), and I ask you what does that mean.
A Couid I have a moment to read it?
Q Please.
A This means that the carrier or the principle, if you
want to use Everett Express for the moment, if we abide
by this, between United States Lines and Everett Ex-
press has full control over these containers when they
checked them out from their facilities; they also have
a control over any persons or anyone have to do with
em.
66
And if I may, I would like to read it. Maybe it would
be more understandable if I could read it.
* * * *
[871] Q Have you operated in your business insofar
and having particular reference to the stripping of
containers?
And I’m also talking about the period of time from
1965 to the present, substantially in a similar manner
with regard to the containers with each of these
companies?
A Yes, sir.
Q And does that involve, on your part, the stripping
of the containers whenever it appears to be in your com-
pany’s best economic advantage?
A That is the only reason for stripping one.
* * * *
[875] Q (By Mr. Auten) Mr. Everett, right up to
and including the date of this hearing, has anybody with
U.S. Lines or with any other shipping company ever said
to you that they thought their interchange agreement
with you compelled you not to strip any container?
A No, sir.
Q They have never said that any interchange agree-
ment forbade you from stripping a container?
A No, sir.
* a * *
[878] Q And isn’t the purpose of that interchange
agreement to find out whether damage is done to the
equipment and who is responsible for the damage to the
equipment?
A Well, that’s partly, yes.
Q But isn’t that the main thing? If there is no cargo
in the container—
A No, sir; no, sir. There’s some part of it is to give
you the possession of it.
Q Possession of the container?
A Certainly.
Q But not of the cargo?
A No, sir. No one has control of the cargo but the
carrier that has it in his possession.
67
Well, isn’t it a fact that the delivery order and
the bill of lading is actually what controls the cargo?
A Yes, sir. And the bill of lading, if I may add,
never comes from U.S. Lines. It comes from the customer.
Q Allright. Thank you.
* * * *
[379] ROBERT W. McCLESKEY
was called as a witness and, having been first duly
sworn, was examined and testified as follows:
* * * *
DIRECT EXAMINATION
* * * *
[880] A A full shippers load would be a load loaded
by one shipper going to one consignee that would fill a
trailer either cube-wise or weight-wise.
Q Has Carolina Freight ever had an occasion to pick
up a full shippers load at the Hampton Roads pier area?
A Yes, sir.
Q Would you describe how you go about picking up
a full shippers load?
A Well, we receive a bill of lading, delivery order
usually from a broker in most cases and give the delivery
order to a driver who takes it to the pier. You see the
proper people in the office down there. They tell you
where the container is and the driver goes and finds it
and hooks up to it. He will make a preliminary check,
pull it through the interchange line. If everything is
okay, leave the interchange line, receive a pass on it,
and pull it out the gate.
_Q When you pick up the full shippers load at the
pier, is that container in tact? :
7) Yes,
Has that container, to your knowledge, been stri
ped at the pier by deepsea ILA labor? = —
A Not to my knowledge.
68
[381] Q I show you what has been marked as General
Counsel’s Exhibit 18 and ask you if that is a delivery
order.
A Yes.
Q And is that what you spoke of that a broker gets
to you which enables you to proceed to the pier?
A Normally, the broker does give it to us, yes, Sir.
Q Now, what does the delivery order provide for
specifically, what does it cover?
A Well, it normally tells you, in the case of con-
tainers, what the container number is, where it’s going;
and it gives the people at the pier the knowledge that
you have the authority to haul this container down the
road.
Does it cover the cargo in the container that is
owned by the beneficial owner?
A Normally, it mentions the cargo, yes.
Now, when you get that delivery order, do you call
the beneficial owner-consignee?
A Not normally, no, sir.
Q So do you then pull it from the pier area some
place after you pick it up?
A We always take it to my terminal with a local
driver.
Q Now, I show you General Counsel’s Exhibit 16 and
ask you if that is a bill of lading.
A Yes, sir, that’s a blank bill of lading.
And who is that contract between?
[382] A Well, that contract is between myself, the
shipper and the consignee when I get to the consignee
with it.
Does that cover the cargo while it’s in transporta-
tion to the beneficial owner?
A Yes, sir.
Q Now, from the point that you pulled the full
shippers load away from the pier, where do you go?
A Tomy terminal in Virginia Beach.
Q All right. Is that within a 50-mile radius of the
port area?
A Yes, sir.
69
Q Why do you pull it to your terminal?
A Well, we pull it in there and it has to be—we have
to cut another bill and it has to be manifested, it has to
be hooked to a road truck and given to a road driver.
Q Now, have there been occasions when, for your
own convenience, you have opened that trailer and re-
distributed the cargo?
A Yes, sir.
Q Tell me the purposes that you would do this?
A Normally, there are several reasons. We do it—
The main reason is to cut off per diem and get rid of this
box that we have no use for in our system. Most of the
time, I have my own equipment on the yard empty that
I can utilize. We have occasions when road trucks will
not hook to these [383] units, the same problems that
were mentioned earlier about fifth wheel settings, king
pin settings.
Q Would you go through these and also describe what
you mean when you said the trailer would not hook onto
the equipment that you. pulled from the pier to your
facility.
A Well, we have a number of tractors—In fact, a
majority of our road tractors do not have a sliding fifth
wheel. There are many containers, 40’s and 20’s alike,
that have the king pin which hooks into the fifth wheel
set farther back underneath the trailer than most trailers.
Consequently, when you hook up to it, the frame of your
tractor or the tires of your tractor will hit the landing
gear or the frame of the trailer. Some of them you are
able to pull, but you ruin two tires. Some of them you
are simply not able to pull at all; they will not go. You
cannot make a turn with them in any way.
As far as the others, we would like to strip them on -
occasions to cut off the per diem rate. My trailers, we
have nothing shorter than a 45-foot trailer or road
trailer, nothing shorter than a 13-foot high trailer; and
my smallest trailer is bigger than the biggest container
around.
70
Q Now, you said that you pulled the original con-
tainer from the pier area. Who owns that original
container?
A Normally, the steamship line unless it’s a leased
box.
Now, I direct your attention to June of 1975 and
ask [384] whether anything unusual happened to Caro-
lina Freight.
A Well, probably a lot of things. One that I can think
of, we were—we picked up a container belonging to NYK
Lines.
What type of container was this?
It was a 40-foot container.
Was it a full shippers load container?
It was billed as such, yes.
And what did you do with it?
I stripped it.
You brought it back to your—
I brought it back to my terminal, opened the doors
and stripped it.
Q Why did you strip it?
A On that particular day, we had—if memory serves
me, that container had 26,000 pounds on it. I had two
trailers of my own at my warehouse which had loads for
Rocky Mount, North Carolina, which is a break bulk
terminal. By stripping this container, I loaded both of
my trailers which ended up with 42,000 pounds, approxi-
mately, on them and the container, of course, was empty.
What I accomplished was running two of my trailers
with capacity loads on them as opposed to running those
two with less than capacity loads and the container which
would have been a third vehicle. I saved a trip. And
this is the reason that we stripped it.
Subsequent or after your stripping, were you noti-
fied of [385] any action taken by the International Long-
shoremen’s Association against New York Lines?
A Yes.
Q What was that?
MR. LAMBOS: Excuse me, Mr. Rosenstein. You said
what kind of lines?
POPS pO pO
71
MR. ROSENSTEIN: I thought it was New York
Shipping Lines.
MR. LAMBOS: No, he said NYK.
MR. ROSENSTEIN: Oh, I’m sorry.
Q (By Mr. Rosenstein) NYK Lines.
A That’s correct. We were notified that the ILA had
made the allegation that we had stripped the container
and that NYK would be fined $1,000 if we could not tell
them that it had not been stripped.
Q What is the disposition of that at this time?
A At this time, we have made no comment to them
about whether it was or was not stripped. Consequently,
my interchange with them has been cancelled. I have not
pulled any of their containers and I have had some
available.
[386] Q Mr. McCleskey, at what point did you learn
that the steamship line and the International Longshore-
men’s Association felt that there was a violation of their
contract if a full shippers load was stripped at your
facility?
A Sometime in 1970, the latter part after October
when I came in. Shortly after I came in.
* * * *
[887] Q With respect to the description of the NYK
container that [388] was stripped, is this the procedure
that you have been following as to stripping full shippers
— at your facility when convenience or necessity pre-
vails?
A Well, I don’t strip under those circumstances all
the time, not those exact circumstances; but, when it is
eee better for my company, yes, sir, I strip
them.
Q And how long have you continued to adhere to this
policy?
A Well, I came in October of ’70 to Norfolk; and the
first occasion after that when we had the need and I
felt like it was the best thing to do, we did it; and we
have been doing it ever since.
72
And has anybody from any other shipping lines
since 1970 told you that you could not strip a full ship-
pers load at your facility?
A No, sir.
* * * *
CROSS EXAMINATION
[390] Q You stated that the first knowledge you had
with respect to the requirements of the ILA rules were
about six months to a year ago, and you received such
information from Mr. Merritt. Isn’t it a fact that Mr.
Merritt and you have had conversations about this subject
for a long time prior to this?
A Mr. Merritt and I have had conversations prior to
that point; and I told you or I told the other gentleman
that I knew about it shortly after I came to Norfolk in
1970. I knew about this agreement.
* * * *
[392] M. L. CHADWICK
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
DIRECT EXAMINATION
+ * * *
[393] Q All right. Now, what does the delivery order
control, what does it mean to you as a motor transport
carrier?
A It is instructions to the pier or steamship line to
release that cargo to me, the carrier.
Q Now, I show you what has been marked as General
Counsel’s Exhibit 16 and ask you if you can identify that.
[394] A Yes. It’s a bill of lading which is a contract
between the shipper and the carrier. This binds the
carrier for total responsibility of the cargo that he is
handling for this particular shipper until such time he
gets it and delivers it to the consignee.
73
Q All right. Now, do you have equipment inter-
change agreements with steamship carriers in the Hamp-
ton Roads area?
Yes.
Do you have one with U.S. Lines?
Yes.
Do you have one with NYK Lines?
I believe so, yes.
Have you ever had an occasion to personally observe
the equipment interchange agreement?
A Ihave not.
Q What does the equipment interchange agreement
provide for, to your knowledge?
A The exchange of equipment. My interpretation
would simply be that we would be responsible, and we
would check the equipment, the tires, lights and what-
have-you, just the container itself or trailer, and we
would be responsible.
* * * *
[395] Q Have you had an occasion, upon pulling the
container to your facility to strip that container?
A Yes.
Q For what reasons would you strip a full shippers
load at your facility?
A Our reasons would be mostly economical, or eco-
nomics, I’ll say.
Q Would you elaborate as to what you mean by
economics?
A Yes.
If we should go down to the pier and pull back a 20-foot
container that, let’s say, has 12,000 pounds on the con-
tainer, then, of course we certainly are charged per diem
for this. Now, we pull these containers. In other words,
the cargo is destined to such points as Chicago, Mil-
waukee or what-have-you which is seven, eight or nine
hundred miles away. The per diem rate is quite expen-
sive. I think it goes up to as high as seventeen fifty a
day after a certain element of time.
So, consequently, we will strip this cargo off of the
container and put it normally in a 45-foot trailer and
OPO Pp
—
74
[396] consolidate it with twenty or thirty thousand pounds
of freight and move it in that way.
Q Has a beneficial owner-consignee of cargo ever told
you that you should not or could not strip the container
and put the cargo on your own truck?
A No. x . * *
Q Do you recall when containerization came into the
Hampton Roads area?
A I believe ’65 or 66.
From ’65 or ’66 to the present date, have you fol-
lowed the procedure based on your own needs of Hennis
Freight to strip a full shippers load at your facility?
A Yes.
* * * a
[897] Q Maybe I misunderstood you, Mr. Chadwick.
You said you started with Hennis in 1972?
A Yes.
Q Were you working in the motor truck industry
prior to 1972?
Yes.
Was that in the Hampton Roads area?
Yes,
Were you working for another carrier?
Yes.
What carrier was that?
Associated Transport.
To—Were you talking about from ’65 to ’72, then,
what Associated Transport did with respect to full ship-
pers loads?
A So far as stripping them?
Q Yes.
A Yes.
OPO PO POP
* - * *
CROSS EXAMINATION
Q (By Mr. Lambos) Mr. Chadwick, were you with
Associated Transport in 1971 when Associated Transport
reimbursed United States Lines a thousand dollars because
they were caught [398] stripping one of their containers?
A Yes, sir.
75
Q And you mean to sit here and tell us that the first
time you knew about the—Excuse me. Do you mean to
tell us that you are sitting here and saying that no one in
the steamship industry had ever told you that your strip-
ping a container at a trucking station was in violation
of the agreement between the steamship carrier?
A I did not say that. I said since I had been with
Hennis, if you will recall.
Q But you knew this when you worked with As-
sociated Transport?
A That’s correct. I did.
Q In fact, you have been at meetings where the steam-
ship carriers—
You’re right.
—the ILA—
Yes, sir.
—as a representative of Associated?
That’s right.
And you knew that United States Lines had a fine
of a thousand dollars imposed against them?
A That is correct.
Q And Associated Transport reimbursed U.S. Lines
that thousand dollars?
[399] A That’s correct.
* * * *
RECROSS EXAMINATION
[400] Q (By Mr. Lambos) Mr. Chadwick, while you
have been with Hennis Trucking Company, you have
known of any instance where a steamship carrier was
fined because Hennis stripped a container at its trucking
station within the Port of Hampton Roads?
A Whether any carrier has been fined?
Q Yes.
A I believe so, yes, sir.
Q So while you have been with Hennis, you have also
known about the requirements of the rule, haven’t you,
Mr. Chadwick?
A Yes; that’s right.
* * a *
OPO POP
76
[402] ALLIE S. McNEIL
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
DIRECT EXAMINATION
* * * *
[406] A The shipper or the shipper’s agent and the
motor carrier. Of course, the sliipper could be the con-
signee in this particular cas®. But they are the parties to
this contract; and it is the sole contract covering the
movement of cargo from origin to destination.
Q Is a steamship carrier, such as U.S. Lines, a party
to that agreement?
A They are not.
* * * ae
[413] A Well, again, the full shipper load is just a
designation used by the shipping industry; and it does
not govern nor pertain to the motor carrier industry. A
full shippers load to a steamship line is not a full load
to a motor carrier. Motor carriers have many different
types of equipment than steamship lines.
And you can take a 20-foot container or a 40-foot
container and take it to a motor carrier’s terminal; and
the motor carriers have 45-foot high cube trailers which
have as much as eight or nine hundred additional cubic
feet or storage space. And those are not necessarily a
full load to a carrier. It might be 2 full load to a steam-
ship line.
Q I show you what has been introduced into evidence
as General Counsel’s Exhibit 5, a lette® dated June 7,
1974, signed by yourself to Mr. Jack Mace. Will you tell
me the circumstances surrounding your writing that
letter?
A This particular letter was a result of a meeting
which was called by a subcommittee of the Hampton
Roads Shipping Association.
17
Who was at that meeting?
A On behalf of the motor carriers, there were two or
three representatives. I was there on behalf of the As-
sociation. Mr. Ned Shallow was there on behalf of the
subcommittee, and Mr. Joe Murphy and Mr. Paul Fox,
T. Parker Host, Jr., was supposedly chairman, I believe,
of that [414] committee but he was not present.
Q Was Mr. Mace there?
A No.
Q Okay. What took place at that meeting?
A At that meeting which, incidentally, I think was
around March of ’74—March or April of 1974, the meet-
ing was called for the purpose to relate to the motor car-
riers and to the Association that the ILA was now con-
tending that they had a right and was going to fine or
strip any container at all if it did not go to the destina-
tion—all the way to the destination.
Q And this was when, Mr. McNeil?
A Around March of 1974.
Q Prior to that date, had anybody from the Hampton
Roads Shipping Association ever informed you as the
president of the Tidewater Motor Truck Association with
respect to the stripping of loads within the 50-mile
radius? Full shippers loads.
A. No, not if they were destined beyond the 50-mile
limit.
* * * *
[416] Q Will you tell me the type of operation that
D. D. Jones is in comparison to Associated, Pilot or
Thurston?
A Well, D. D. Jones is a combination. They are a
motor carrier. In fact, they are the largest motor carrier
in the local area, having some 65 tractors there. In addi-
tion to that, they are the largest warehousing and dis-
tribution company in the local area, having been in busi-
ness for some [417} 40 years.
Q How is the warehouse operation different than an
ng such as Associated, Houff, or Pilot and Thurs-
ton
A Well, the warehousing operation, as I say, is a
distribution company. We are set up mainly to handle
distribution of cargo; and, of course, about 60 percent
78
of that is related to the import cargo which comes across
the piers.
And the operation we perform for a shipper is differ-
ent because we will bring cargo that a shipper so desig-
nates to our facility and we will perform any services.
We actually unload the cargo, we store, we might break
it down and repack it, we prepare documents for shipping.
We are a distribution firm, in that sense of the word,
as far as the warehousing operation is concerned.
Of course, that operation was greatly hindered by the
contract itself, not on any control of our own but beyond
our control.
Q First of all, let’s talk about when did containeriza-
wine your knowledge, come into the Hampton Roads
area
A Well, containers have been in existence—It really
became prevalent about 1965; but there were containers
in the area prior to that.
Q But when did they first become prevalent?
A About 1965.
[418] Q Now, talking only as to the warehouse opera-
tions of D. D. Jones, tell me what D. D. Jones did when
a full shippers load came into the pier area, keeping in
mind that we are talking about bringing it back to the
warehouse. What did you do, what were the procedures
that you followed?
A Let me ask you what time frame.
Q 1965.
A In the 1965 period, we would pick a container up.
We would have instructions or a bill of lading issued to
cover that movement from the pier to the warehouse,
just like an over-the-road ‘movement or longer distance.
You would pick the container up, unload it—take it to
our warehouse, unload it and return the empty unit to the
steamship line.
Q_ In 1965 was that type of container going to your
warehouse stripped by ILA labor?
A No, it was not.
79
Q 1966, tell me the procedure that you followed with
respect to bringing full shippers loads to your warehouse.
A The full shippers load would move in tact to the
warehouse.
Q In1967?
A The same.
Q Were there any changes in 1968?
A Yes. In 1968, there was—we were advised that
there was a new contract that was going to be effective
between [419] the steamship industry and the Longshore-
men’s Association, and that these units no longer would
be able to move to the warehouse facilities within these
50-mile radiuses.
Q Now, how did that change and affect the operation
procedures of D. D. Jones’ picking up a full shippers load
at the pier?
A Well, in a container, we could not pick up a full
shippers load in a container because they would not re-
lease it to us. We had the right to do so and we had
the right to act as the distributor for the shippers, also;
but, because of this contract which knowledge of the
contract had been passed onto the brokers which in turn
had published this to the shippers, although they didn’t
agree to it, they would not allow—the steamship lines
would not turn the containers over to us to come to the
warehouse directly.
Q Tell me what D. D. Jones did when you went to the
warehouse—or to the pier area starting in 1968 to pick
up goods at that time?
A We would send our own trailers to the pier facili-
ties, and our trailers would be loaded and we would dray
it back in our own equipment to the warehouse.
Q What did ILA do as opposed to what they did in
1965 through 1967?
A Well, back in 1968 they were stripping the contain-
ers on the piers.
[420] Q So deepsea ILA labor would strip the con-
tainer at the pier; and then, your trucks would pick it
up and take it back to the warehouse?
A Yes.
80
Q Now, how long did that practice remain in tact?
A For about three years or until this CONASA nego-
tiation took place.
Q Are you referring to the Dublin rules?
A Yes.
Q All right. In 1973, the Dublin rules came into
effect. Now, how did that change the warehouse opera-
tion of D. D. Jones with respect to picking up loads at
the pier area?
A Well, at that time, of course, what they classified as
a full shippers load owned by one consignee, it was agreed
that it could move to a destination within a 50-mile
radius under the sole ownership policy.
Q Now, how did D. D. Jones get affected, did it go to
your warehouse?
A Yes. Okay. Under a full shippers load as desig-
nated, we could pick that container up, take it to our
warehouse and then strip it and then return the empty
unit to the steamship line; but there were many restric-
tions. That was only one classification of goods. That
was just probably a small pecentage really of the total
traffic.
Q Are you talking about import?
[421] A Yes.
Q Is there any other way that it affected the opera-
tion of D. D. Jones?
A Well, it restrained our operations. It affected our
growth, it affected naturally the business aspect of our
company which had been in existence for almost 40 years.
It caused us to lose a lot of accounts. Accounts would no
longer use the area. Instead of using us as a public
service company, they would take the goods to other
facilities of their own or other outlying areas which would
be greater distances from the port area.
Q Now, Mr. McNeil, have you ever seen the 1974 ILA
contract?
A [have seen it.
Q Have you ever read the section that relates to
warehousing?
A Yes.
81
Q I show you what has been introduced as General
Counsel’s Exhibit 4, the 1974 contract, and ask you to
refer to Rule 2(b) (4) on page 70.
A Okay.
Q Is that the procedure you have been describing that
came into effect in 1973 by the Dublin rules?
A Yes.
Q And, therefore, continued in the 1974 contract?
[422] A _ Yes, it did.
Q Now, D. D. Jones, however, are not a party to that
contract, are they?
A No.
Q And you have no contractual relationship with the
International Longshoremen’s Association?
A No.
Q Now, how long has Rule 2(b) (4) been in existence?
rer long have you followed the 30-day warehousing pro-
cedure?
A I believe it was February of 1973. Somewhere in
that time frame.
Q And up to what point? Is it still in effect?
A It’s still in effect except for one period of interrup-
tion.
Q All right. Now, I direct your attention to April 28,
1975, and ask you what happened with respect to the
warehousing rule.
A We were advised by Mr. Jack Mace, personally in
fact, that the ILA was contending that they were going to
try to enforce rules that would supposedly bring all ship-
pers up and down the coastal area in conformance with
their own wishes; and, as a result of that, that Mr. Glea-
son had advised that there was going to be a restriction
against any container moving beyond the port area, that
they were going to strip them all there. And they would
not, during that period of time, [423] allow us to pick
up a container and move it to the warehouse.
Q Was there a suspension on the rules on containers
effective April 28, 1975? .
A Yes.
82
I see. Was the result that occurred similar and
identical to the 1968 to 1973 practice where deepsea ILA
labor stripped containers at the pier area?
A Yes.
Q And then, the motor transport carrier had to go
and pick up those goods at the pier area?
A Yes.
Q Now, approximately how long did the suspension of
the rules remain in effect?
A About 30 days.
Q Would it refresh your recollection if May 30th,
1975, they were reinstated?
A Yes.
Q Now, will you tell me the effects of that suspension
with respect to the operation of D. D. Jones?
A Well, during that period, we had many shipments
which had been destined for our facility to be received
and distributed according to the wishes of the shipper;
and one large shipper, in fact, began diverting traffic and
so did others, saying they refused to use the port area
and also use the facilities of D. D. Jones during that
period of [424] time, causing our company to lose a
whole lot of revenue, on the goods which we would have
handled.
Q Do you recall any other effects as a result of the
cancellation of the rules on containers?
A Any different types of effects? That is the effect.
In other words, you just lose business and you don’t get
the opportunity to handle the goods.
Of course, the effects, you had two different problems.
You had to, again, utilize your own equipment to pick it
up, you had delays involved because you could talk about
a container moving basically within two to three days
from the time it was discharged; but now that the con-
tainer was going to have to be unloaded at the piers, it
was going to be delayed as much as five to eight days
before you could get the goods into the warehouse facility.
Many of these goods, of course, or the distributors we
worked for, they are awaiting the arrival of the goods.
83
They have orders pending the receipt of the materials into
the facility; and they don’t want them delayed at the
piers.
oa + * * °
[431] @Q And can you say whether or not the prac-
tices which have been enumerated hereby the representa-
tives of other motor truck carriers are similar to the
practices which are followed universally by the members
of your association?
A Yes, that’s true.
Q And, in that respect, then, since the advent of con-
tainers, the motor truck carriers have stripped full ship-
pers loads generally when it suited their economic con-
venience or any other reasons that may appear appro-
priate to them?
A Yes.
* * * *
[433] Q (By Mr. Bohannon) Now, Mr. MeNeill, have
you been active in this Association since you have been a
member of it? .
A Yes.
Q How long has that been?
A Well, the Association has been in existence for
probably 25 years. I myself have been a member of it
for 14 or 15 years.
_Q_ You personally have been D. D. Jones’ representa-
tive for that long?
A Yes, I have.
Q That period of time? And, as a member of that
Association, how long have you been an officer?
A _ Well, I’ve been an officer—It has been about eight
or nine years. From second vice president to first vice
president and president for a period of three years.
Q Now, in your business with D. D. Jones, do you
bias ce contact with other carriers?
es.
9 ng from your contact from the Association?
es.
Q And as your general work with D. D. J ones and
your contact through the Association and your interest
and activities in the Association, would that put you in
84
the position to know without question what the general
practice is of motor truck carriers with regard to full
shipper loads?
A. Yes. In addition to that, I’m also a member, really,
of the Hampton Roads Maritime Association ; and I deal
directly with the committees, with the pier committees,
the Association itself and so forth.
Q Now, is the general practice among all the motor
truck carriers, such as has been related by, for instance,
Mr. Everett, Mr. McCleskey, Mr. Chadwick and the others
regarding stripping of full shippers loads?
A Yes.
Q Now, you mentioned that you were governed by
the—your contract or the motor truck carriers is the uni-
form straight bill of lading.
A That is true; and that is the only document that
governs—
Q Now, is there anything in this uniform straight bill
of lading pertaining to handling of cargo?
[4385] A Yes.
All right. Would you read us that portion, please?
JUDGE WAGMAN: Is that document in evidence?
MR. BOHANNON: Yes; that is in evidence.
JUDGE WAGMAN: Just let us know what paragraph
it is.
THE WITNESS: 2(a).
MR. BOHANNON: It’s Paragraph 2(a). I’m trying
to avoid your having to read all of this.
JUDGE WAGMAN: Oh, I am going to read every-
thing.
A Paragraph 2(a) of the contract states: “No carrier
is bound to—”
JUDGE WAGMAN: We're not reading it.
A Okay. Paragraph 2(a) states that no carrier is
bound to transport any cargo by any particular vessel,
vehicle or any other means of conveyance. In other
words, he can do as he chooses; and that’s a part of the
contract itself. It’s signed and initiated at the time he
picks up the cargo.
Q (ByMr. Bohannon) Now, moving over just briefly,
to make sure we've got it straight, just how the ware-
85
house business has been handled since the advent of
containers, I understand that until the first ILA-HRSA
contract entered into in 1968 that D. D. Jones was able
to pick up containers at pier facilities whenever they were
designated to come to their warehouse and they were not
stripped prior to that time?
A Yes.
[4386] Q Is that correct?
A That’s correct.
Q And that after that contract was entered into, D. D.
Jones was able to pick up no containers whatsoever until
the Dublin agreement was entered into in 73, is that
correct?
_A That’s correct unless, of course, at one period of
time we were handling units beyond the 50-mile radius
as a motor carrier which we had sold that authority.
Q I’m talking about your warehouse operation.
A Not within the 50-mile limits, no.
Q So you received no containers whatsoever until the
Dublin rules went into effect?
A That’s true.
Q Now, when the Dublin rules went into effect and
ever since then, you have received containers under the
warehouse rule?
A Except for the 30-day inference.
Q — for the 30-day suspension?
es.
_Q Now, tell us again what the effect of this suspen-
sion was.
A Well, it ju ‘ about cut off our business durin
period time, having depended upon import traffic for owen
60 or 65 percent of our operation; and one large shipper
as I say, diverted traffic. He diverted I know four con-
tainers of [437] one shipment which resulted in a loss of
some $2500.00 worth of revenue; and, within the next
few days, he diverted another four containers, which was
another maybe $1800.00 to $2000.00 worth of revenue
Q Which shipper was this?
A J.C. Penney Company.
86
And in addition to that there were other shippers
which had their movements interfered with, Allis-
Chalmers was one. We were setting up actually an
assembly operation for the Allis-Chalmers Company. They
contended that this might knock out their operation en-
tirely. We have this in one of our warehouses over in
Chesapeake. They also have their facility in Milwaukee,
Wisconsin; and it was a movement, whereas we were
bringing in containerized parts for tractors and so forth
and putting them together, putting the tires on them and
so forth at our building, the lights and safety equipment
and things of this nature. And they contended that if
these units were going to be stripped at the pier, it would
cost them some addition $300.00 per container. First of
all, they couldn’t afford that; they don’t have that much
profit built into these tractors. The competition is too
stiff. And it would possibly cause them to have to cease
doing business with us if this continued.
Q So this continued for this 30-day period?
A For the 30-day period.
[438] Q At which time, the warehouse rules went back
into effect?
A Yes.
Q And you have been able to operate your business
pretty much in a normal manner since then? ~~
A With the restrictions of the 30-day warehouse rule,
which is an hindrance on an efficient operation, as a pub-
lic service company.
Q That’s the Dublin rule?
A That’s the Dublin rule, yes.
* * * *
CROSS EXAMINATION
Q (By Mr. Lambos) Mr. McNeil, how long have
you been a member of the Hampton Roads Shipping As-
sociation, if that’s different. The Maritime Association
has members of the motor carrier industry as well as
steamship industry and so forth. It more or less could
be termed as a civic organization.
87
Q If your testimony was the Hampton Roads Ship-
ping Association, it should be Maritime Association?
A Maritime Association is the proper terminology.
And I have been refused admittance into the shipping
part of this, any of their negotiation committees or any-
thing. I have even [439] asked personally to be admitted
into those negotiations, from the time they started. I
advised the Association that it looked like they were get-
ting into areas that were going to effect the motor car-
rier industry and they had to rights to control. The
steamship rights cease at the pier and the motor carrier
rights pick up at the pier and govern his movement until
he gets to destination.
* © * *
[440] Q And it’s also correct that, prior to the Dublin
rules in January of 1978, D. D. Jones would have to go
down to the pier and pick up any warehouse goods in
break bulk fashion, is that not correct?
A That’s true for one time period. Prior to this
time period, we were free to go and pick it up directly
in containers.
Q But from 1968 through 1973——_
A Yov’re correct.
Q —LD. D. Jones would go down and pick it up in
break fulk fashion?
A Yes.
[446] Q Allright. Let’s take,the shipments within the
50-mile limits of the Port of Hampton Roads.
A Destined within 50-miles, I am aware that the ILA
and CONASA organization agree that these rules apply.
Q And when did you learn that fact?
A Well, I’ve learned it, basically, since the rules came
into effect.
Q In 1968?
A Yes.
* * * *
REDIRECT EXAMINATION
[453] Q Now, Mr. Lambos asked you with respect to
what did you hear at your meetings with respect to al-
leged stripping violations prior to 1974, And you asked
88
to explain. Now, explain what you heard and what was
the position of the motor transport carriers with respect
to the alleged violations for stripping at the motor trans-
port facility.
A The Association has always discussed the container
and ILA Unions problems at most all of its meetings if
a carrier had a grievance that he wanted to bring up.
But the position of the motor carrier industry has always
been that they were not a party to the contract and that
they were gover~ed by the Bill of Lading contract, which
is signed by the shipper as well as the carrier at the time
he picks up the shipment.
And he knows that those are the only rules and [454]
regulations governing the movement of that cargo. He
operates under the Interstate Commerce Commission, un-
der their rules and regulations, and under the authorities
granted to him as a motor carrier or as a common car-
rier. And those are the governing agencies on his opera-
tion and that’s the only agency.
The steamship line is not even a shipper. The steam-
ship line, in essence, is the same as the motor carrier.
The steamship line is a carrier only performing one leg
of the service. And the steamship line’s authority and
control cease at this pier area. In fact, their bill of
ladings themselves designate the piers as being the final
destination for their service. From that point on is why
you have a bill of lading prepared, and that’s where the
motor carrier picks up and assumes responsibility for
the load.
[467] GEORGE L. MAIER
was called as a witness and, having been first duly sworn,
was examined and testified as follows:
* * * *
DIRECT EXAMINATION
* * * *
89
[468] Q Could you give us your position with United
States Lines in Baltimore?
A Iam the port manager in Baltimore.
Q And how long have you been the port manager in
Baltimore for U.S. Lines?
A About five years.
Q Do you hold any position with the Steamship Trade
Association of Baltimore?
A Yes, I do.
Q Could you tell us what that position is?
A Im president of that organizatioa.
Q Would you describe for us the identity of the
Steamship Trade Association of Baltimore?
A The Steamship Trade Association is an unincor-
porated association of maritime members in the Port of
Baltimore, mainly consisting of steamship carriers, agents
and other ancillary corporations allied with the steamship
industry.
And is United States Lines a member of the Steam-
ship Trade Association?
A Yes, we are.
Q Is the Steamship Trade Association a member of
any other unincorporated association dealing with the
ILA?
A Yes.
Q Tell us the name of that organization.
A CONASA.
[488] GEORGE L. MAIER
a witness previously sworn, resumed the stand and con-
tinued to testify as follows:
VOIR DIRE EXAMINATION
* * * *
[493] ow, could you tell us what action United
States Lines has taken in each of these cases?
A. In 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
90
was to deconsolidate this container and restuff it into
his own equipment at his platform, we refused delivery
of that cargo to the truckman.
Q@ Has U.S. Lines handled full shippers loads at its
terminal in the Port of Baltimore?
A If we’re talking about full shippers loads that we
may have stripped from a container, yes.
Q Could you tell us whether there are ocasions when
full shpipers loads are, in fact, stripped at the terminal?
A Oh, yes, sir. There were several occasions and
several reasons for doing it.
Q Could you give us the occasions and the reasons for
that?
A One of the reasons was the one that I just cited in
relation to our previous knowledge of a container being
deviated from its ultimate destination and being handled
prior [494] to its ultimate destination. Another case
might be where a container or a chassis or another piece
of equipment might be damaged beyond a road-worthy
ability to move this container and we would then strip
and possibly stuff another container for ultimate move-
ment to destination. A third case may be where the
shipper himself might request what we call a pier delivery
or an LCL or a break bulk delivery rather than moving it
in tact to his facility.
Q Mr. Maier, I show you the documents marked Gen-
eral Counsel’s Exhibit 11 and ask you whether this is the
collective bargaining agreement for the period from Oc-
tober 1, 1968, to September 30, 1971, between the Steam-
ship Trade Association and the ILA?
A Yes, it is.
Q Could you turn to the rules on containers?
A Yes. Page 3, right at the beginning.
Q In that regard, are these the rules that were
adopted by the Steamship Trade Association as a result
of collective bargaining in the Port of New York by the
New York Shipping Association?
A Yes.
Q And they are the same rules that were in effect in
“ue Roads for the same period?
Yes.
91
Q And the same rules that were in effect in the Port
of [495] New York for the same period?
A Yes.
[496] @Q And there is already evidence in the record
that in 1971 the negotiations were conducted by CONASA
on behalf of all the ports?
A That’s correct.
Q Now, were there revisions made in the rules in the
collective bargaining between CONASA and the ILA in
1974?
A Yes, there were some general revisions. If we are
talking about revisions on maybe putting some interpre-
tations into language, there were some changes, yes.
Q Now, could you tell us what the intent of those
negotiations was in June of 1974?
A In June of 1974, of course, the ultimate intent was
to come out with a mutually agreeable contract that both
sides could live with for the subsequent three years; and
the intent also was to maybe codify or put into writing
some of the interpretations that had come out of rulings
of local committees and substantiated maybe by CONASA
container meetings during the previous three years or
possibly even going back to the original agreement in
1968.
* * * *
CROSS EXAMINATION
[510] Q Now, when did containers, as we know con-
tainers, first arrive in the Baltimore area?
A Iwas not in Baltimore during the inception of con-
tainerization. I only came into Baltimore in 1970. But,
as we know containerization today, I would say that the
containerization probably started in the late 1960’s in
Baltimore.
Q When you say the late 60’s, do you mean ’65, ’66?
A In that area. As I say, I was not a resident of
Baltimore [511] at the time, so I cannot factuaily speak
to that.
Q When did you first arrive in Baltimore to be af-
filiated with United States Lines?
A August of 1970.
92
Q Do you know what a full shippers load is?
A Yes.
Q Would you define it for us?
A A full shippers load is an in tact container moving
from a shipper to a consignee directly without any inter-
mediate stops.
Q How many containers does United States Lines
handle a year, to the best of your knowledge?
A In Baltimore?
Q In Baltimore.
A About 25,000.
Q How many containers of the 25,000 a year would
be full shipper loads?
A I would say in the area of 80 to 85 percent.
Q So, we’re talking about seventeen and eighteen
thousand, is that correct?
A That’s correct.
& * * *
[517] Q Now, I show you two letters dated April 12,
1974, and June 14, 1974, from a Mr. Talbert of Cooper
Jarett. Do you know that gentleman?
A No, I don’t.
Q Now, if you will read that letter for me, please.
MR. LAMBOS: What date is that?
MR. ROSENSTEIN: June 14th and April 12th.
A Yes.
Q (By Mr. Rosenstein) Now, here was a load that
was stripped 287 miles from the Port of Baltimore, is
that correct? :;
A That’s what he states, yes.
Q And it was stripped because the load had shifted
over the left rear wheel and was unsafe to continue?
[518] A That’s what he states.
Q And the ILA contends that that is a violation of
their rules on containers?
A I can’t speak for the ILA.
Q I show you a letter dated May 15, 1974, and ask
a whether or not that is signed by Mr. Fortune.
Yes.
93
Q And doesn’t that summarize that the ILA con-
tends that those two letters reveal viofations of the con-
tainer rule?
A Right.
* * *
[523] Q Now, that paragraph says that you were
present at the joint container committee meeting where
Houff’s violations were discussed.
A That’s correct.
Q And was that on March 31, 1974?
A Approximately.
Q Now, you contended that the consolidation of house
to house containers did not constitute a violation of the
agreement, is that correct?
A Yes.
* * -_ *
[524] Q I show you a letter dated April 11, 1974,
from yourself [525] to Mr. Hughes. And I want you to
read that letter in its entirety, please.
A All right.
Q Now, the first paragraph you said that a contro-
versy has arisen recently concerning the justification o
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