Appendix — National Labor Relations Board v. International Longshoremen's Ass'n
Supreme Court brief1980
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Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1082
NATIONAL LABOR RELATIONS BOARD,
Petitioner
—Y,——
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
Iu the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1082
NATIONAL LABOR RELATIONS BOARD,
Petitioner
—
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.
ce ne ERENT Ril oa Wee Se a Ie 1
Chronological List of Relevant Docket Entries in Case Nos.
BESET ARCeLI an aa mD 3
Excerpts from Transcript of Proceedings in Case Nos.
NE SFRREPT Ee ES a ST RS 6
Witnesses :
Jack W. Mace
EERE RR ae RRS RO CI a 8
ESERIES ESS Ee, EE ee ee 17
NEES CSS SC Lee a ea 2 ena 17
ETRY CSS ee CONE ON ey ae 19
Cletus E. Houff
iia as snhcasihaiz teach Lcgians Seis ls ca ak 22
OASIS Toe Se 33
ii INDEX
Page
Excerpts from Transcript of Proceedings in Case Nos.
5-CC-791, et al_—Continued
Witnesses :—Continued
Myles E. Billups
AEE RRS UF REE ep el Poa A EOE DBO MON 36
EES ARTS OPE rae rs eee eRe 39
EE SRST SS AR Sy Da ae Ci 41
Otis Landis
ER RY Ee ee EC ee SAD TT OR 42
Arthur Baker
SER a ROPE TARO aT 46
PETIT AGE RL SOA LE AOORD TO EET A 48
a a 49
a eR ERS ALL RR ROTA OI fae pe NSN tye I 50
John Everett
IE ae ALIS RRC Bt EO CMA ee PDR Soo 50
RN a ah as eekly na oad ip Dass plenitude cendulibaummmantichc 54
SNE SEIS ANCESTOR aT REET OS EI 56
Edward G. Bochert
ee cuniidaneaite, 56
RESERPINE NEES RN SN 65
NE hia ch ssa acendacenlecin 65
Robert W. McCleskey
i a a aa ee 67
a a 72
M. L. Chadwick
SE ER ea tN oa Se ne oT er 72
ES PEER TREES SSMSL eS ae REET ERS See, 74
NER ALN TERS ARN RC OTL S COE 75
Allie S. McNeil
RN AER SEY CM eRe ACen Es Lr 76
ANS ORNS ESPs Oe OER Se ae Nee ne 86
SESS ERIE AER ISA aL RS eR TR aR 87
George L. Maier
NER EEE RISE A OMOF ERAS SLE MODIS MM ce 88
EE OE SSSA Re nO Oa IRE CMT ENE SOE 91
SARS OE ORE Rod ea va RIMES Ri aie 106
RESINS NRPS a ai vas SRD PR OA VA ere TREE 106
-
as
“ ‘
INDEX iii
Page
Excerpts from Transcript of Proceedings in Case Nos.
5-CC-791, et al—Continued
Witnesses :—Continued
Capt. John M. Haynes
| __ ORA RRS SE ILO OREN TIEN Be CAR ae A) 108
I ie ectnstaht ices andl Rp scceneasssncnlniapeidesioteisamighlettaiaedl 125
fg SRE REELED TRIEKERO Fe Aree ere lnc ser 126
CPR ee ee OO EDA RIO ee NPT OL SNe a 132
SII secicdidsdsosesntgciguibtiieninssnicbincidbidcetaien ates areca ee 133
James J. Dickman
i OR ROT LOTS STEER TL OMY Li ROI 134
I siete cbaaplbleaicctacionkcncaicns aieccoadaatiecba ebee 142
Thomas W. Gleason, Sr.
IEE wiiedeinss Neshdssicisslesitonsinscb Maeetekbanabiincli taeda Aetna 149
OER Se, OR OM Gs ONES OUP Vl ALES BOB, ON 152
Richard Hughes
Geers Nae ORMONN Diese OM nM ma sinas Oo 8 VAC a 159
NE aR OR ER Nn fe RO OT EM NE Ne 161
gt PN ee Ee 164
Alvah J. Merritt
ION A tirsctes sinaeathccietanelindasacnasensigaeiibta ieee eat here 168
RI snacsala-ciniitus nasaintelesSiiiciuaencn aekihcs -oeae bala Ri saa 171
Be I iste ihde nck snneitteasunles reso zaickc bcdaatn ema 173
Excerpts from Transcript of Proceedings in Joint Exhibit 1
in Case Nos. 5-CC-791, et al.
Witnesses :
Jack W. Mace
MINI Naps dia Siiedhnsdichdnhesubebbidedcanaietanciandaiieusiaeded cee 176
INA Ascsickd inchoceadaninersanccanctebi ee eer Tee 179
r,t MASI ACHAT NAIR LUE OLDE A BO 181
Cletus E. Houff
ee gE oN CRIA CREA GEN INS AN 182
SNE is iach alain cacdicnaigac pads ciatbinaainnsue mee 188
Edward G. Bochert
I ei haictincka a ebsoniccis ook keane ean 190
CI ges pccctgcoakn oul Sacshtsenaain Seed ee ee 199
\
iv INDEX INDEX v
Page Page
Excerpts from Transcript of Proceedings in Joint Exhibit 1 General Counsel’s Exhibits—Continued
in Case Nos. 5-CC-79, et al—Continued Bet gs cite anos Maun tk oy Sipe is 1 344
Witnesses :—Continued SERRE ARCA RSI WC Ae TIRAIIRL 4 WL eRe b NT bce oe 345
A. S. McNeil Gea ULES AA GIR GRRE RMON MER nee CAME Ny 347
RO isiich aia etieninncainisinsnbl ice barttiandeis Sistine ts 203 OP ire ei ka A ft 374
a EAN LE TOI ETRE SPR TT. 207 > © SERS ACER D Pe octet ed etal te SOT OURS Ci etek 396
Myles E. Billups __ SO SRERE SANE Ol RGU rae ROME I Se wis eT, 398
ng ES ERE MEE IDD, PAE SEARS 209 | EES. ACTA ADSI eS 400
acne onauenmemCmnCnr ets 5 sr ea Sra METRES os RNs TES EL mE ES 401
— Merritt BEN MET ERAN gee OR DDE Se eee 408
oe | 1B 404
General Counsel’s Exhibits “ ; EN: Sr PENT BEE er et 407
2 (title page; pages 10; 62-68; and 71-72)... 235 he "EER & Ge eee ae Sr tee ae
3 (title page; pages 10-11; 64-68; and 69) 0... 243 1 (pages 722a thru 4th paragraph at 731a) : Short Form
4 (title page; pages 9-10; and 64-76) 00 251 through Bill of Lading (755a-756a) ......... 421
Te ruc naman niiaaeielins shen diuticedshinabanasvelinkdaselicadeuie 264 ec eorn Se Man Foote Mins REET AONE PETA NSD Ae a CARER 443
11 (title page; pages 2-7) nnn cecacecesseesnceseecesseesteseees 270 4 (Ltr. dated 9/25/74; Cases No. 14-74)... 4538
13 (title page; pages 5-14) occ eececceccceeneenecneenesseeeeeee 277 (Ltr. dated 2/8/78; Case No. 11-72)... 454
TI oar nienor int satnedtshenponines tiipetesitie sites don olsaswsidengsiglaipnsd eile aia 287 ae (Ltr. dated 6/26/73; Container Mo. 21-73)... 455
I ~sinenvacinienesrcstsioesabisen srvisisalicsiabsninasden cig atau veanviaalaaaileceds 289 | (Ltr. dated 10/3/72; Case No. 12-72) 457
BE saciid ssccesciaasinsintiealesgpataalticeonlatcesniuenee nae ne 298 . (Ltr. dated 11/29/72; Case No. 20-72)... 459
sin sintcatnbesiccghs oposite ana a aden 302 | (Ltr. dated 5/22/70; Case No. 4-70)... 460
NTE WANN ART TS IRE LD SU BOMOTAROAY Mc 303 | (Undated Itr.; Case No. 8-69) 461
BD cine cennnnreensinesaneipintniotniniaonsrsniantnaanteerwisiidenhaseiplepiaataaseed 305 (Ltr. dated 12/19/69; Container Case 8-69)... 462:
IO anesnssichapnstcinnncnananilens coding <noditpinbaspiaicaunioatjuabesugne ame: 307 rr I a 464
IE saesnsspiniipstcirvcatn sintalatnlinbihashotessimtiesiesinianonapsiiied ee 308 Errata to the Administrative Law J udges Decision ...... 465
I cc i I TT AN LT OT ct 310 em Order Correcting Decision and Order... 467
23 (all pages w/attachment) 22220220 cecteceeceeceecoeeeene 327 Excerpts from Transcript of Proceedings in Case Nos. 2-CC-
PN ANT TEN ta NO OY ELH INE). ge AE Se TM EN 329 ), 1364, et al.
pe Ora EA OA ON Pe Pet ORR mE Meu er 330 Witnesses :
WO siscassiinsscesiesinlnokdsitunssScnpieiaieaae tee ae ee 334 Russell McHugh
ae ORM DaITEN RIMS SOE a ge 336 wa seeteeeeeae evvoeernnmneeenetenencneeannettanneetnenetnitenatsenee : si
BB 338 ee a
Stalin ep Sa unica ta a ea ee 340
cs vicentininnce ition tila sua ecalsig ce naire a era 343 oR
vi INDEX
Page
Excerpts from Transcript of Proceedings in Case Nos. 2-CC-
1364, et al—Continued -
Witnesses :—Continued
Richard W. Lee
Direct 489
Cross 493
Victor Santos
Direct 526
Cross 537
Juan Santos
Direct : ie .. 644
General Counsel’s Exhibits
3 (A, B, C, D, E, F and G w/attachments) .................... 546
Order of Administrative Law Judge Jalette Striking all
Affirmative Defenses 20.0.2... eccecccecceeeeeeeeeeecocce 576
Order of Administrative Law Judge Jalette Rejecting
Evidence and Closing Hearing ................... 581
Stipulation of Parties dated December 5 and _s » gam 569
Administrative Law Judge’s Order Approving Stipula-
tion and Transferring Case to the Board dated De-
Ce Se OE ic es: 573
Board’s Order Approving Stipulation dated January 4,
1978 SABER PESO Laer oO ETL Re 574
Rejected NYSA Exhibit 1 (in its entirety) q..o sn 583
Rejected NYSA Exhibit 2A-2F (in its entirety) ............... 589
Rejected Affidavit of John M. Haynes, sworn to October
12, 1977) .............. A SOE SPEER PEROT OMe 595
Rejected Affidavit of Michael J. N icholas, sworn to Oc-
PN a i 626
Rejected Affidavit of William O. Gohlke, sworn to Oc-
Lge Bio oe oN IE ES I eS 631
Order of the Supreme Court granting certiorari ._....... 635
(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.)
-———--» ———-~
469
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
2nd Region
4. Case Nos. 2-CC-1364
# 2-CE-75
2-CC-1365
IN THE MATTER OF:
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION AND
NEW YORK SHIPPING ASSOCIATION, INC.
and
DOLPHIN FORWARDING, INC.
and
SAN JUAN FREIGHT FORWARDERS, INC.
26 Federal Plaza
New York, New York
July 11, 1977
Hearing in the above-entitled matter convened at 3:30
p.m. pursuant to notice.
BEFORE:
HENRY L. JALETTE, Administrative Law J udge
Appearances:
IRWIN M. PorTNOY, Esa.
RANDALL N. HARAKAL, Esq.
Counsel for the General Counsel
National Labor Relations Board
26 Federal Plaza, New York, New York
470
DONALD CARUSO, ESQ.
Of counsel, Lorenz, Finn, Giardino & Lambos,
Esqs., Attorneys for Respondent N.Y. Shipping,
25 Broadway, New York, New York
JAMES F. MAHER, Esq.
Of counsel, Zelby, Burstein, Bernstein & Hart-
man, Esqs., Attorneys for Puerto Rico Mari-
time Shipping Authority and Puerto Rico Mari-
time Management, Inc., One World Trade Cen-
ter, New York, New York
THOMAS D. Conway, Esq.
Of counsel, Brady, Tarpey & Hoey, P.C., Attor-
neys for Charging Parties, 84 William Street,
New York, New York
HERZL §. EISENSTADT, Esq.
Gleason, Laitman, Mathews, Magidson & Rosen,
Esqs., Attorneys for Respondent International
Longshoremen’s Association, 17 Battery Place,
New York, New York.
* * * *
[49] MR. CARUSO: I indicated before that I was in
basic agreement with this stipulation and I would be will-
ing to stipulate to all of Paragraphs 2, 3, 4 and 5 with
the exception of Paragraph 4A and with respect to
Paragraph 4A, I think the only limitation that has to
be imposed on the statements contained in Paragraph 4A
is that Trans-American Trailer Transport for which I
will refer to hereinafter as TTT or Triple T ceased
operations in the New York Puerto Rican trade on Au-
gust 1, 1974 when its vessels were purchased by PRMSA.
JUDGE JALETTE: Will you accept that stipulation
respecting Paragraphs 2 through 4C, I believe with 4A
as modified by Mr. Caruso—I’m sorry, through 5C?
MR. PORTNOY: I will accept it with the exception,
with one thing that we will—Mr. Caruso has admitted
that the allegations in the later paragraph that TTT and
MTM were fined by the contract board and I don’t want,
down the road, someone saying that I admitted that TTT
we3 not fined by the contract board.
471
JUDGE JALETTE: I don’t see how you could ever
relate to the two items Mr. Portnoy.
MR. PORTNOY: Okay, fine.
JUDGE JALETTE: So, as I understand it, as be-
tween [50] counsel for the general counsel and Mr.
Caruso, we have stipulated to Paragraphs 2 through 5C
with a modification of Paragraph 4A indicating that TTT
ceased the operation of vessels between New York and
Puerto Rico on or about August 1, 1974 having sold its
vessels to PRMSA?
MR. CARUSO: Yes, but it also goes to Paragraph
5D which beins on Page 3. I would be willing to stipulate
through 5D.
JUDGE JALETTE: The stipulation is noted as re-
gards general counsel and the New York Shipping As-
sociation.
What about you, Mr. Eisenstadt, is there any of that
that you stipulate to?
MR. EISENSTDAT: Just one moment, your Honor,
I think we can get some of that.
(Pause)
MR. EISENSTDAT: With the same qualification of
Mr. Caruso, we have no particular disagreement with
those stipulations.
JUDGE JALETTE: May I take it for the purposes
of this proceeding you will stipulate to the same matters
we have just described?
MR. EISENSTADT: I take it for granted that coun-
sel for the general counsel has checked into the matters
as far as place of business and so on and so on?
As far as the amount of revenue involved I think it’s
a question of common knowledge that these various [51]
entities have earned quite a bit in excess of that over the
period of time concerned.
JUDGE JALETTE: I will accept your remarks as a
stipulation of Paragraphs 2 through 5D with the modi-
fication described by Mr. Caruso.
* * * *
[56] JUDGE JALETTE: With that understanding
from respondent NYSA I will accept the stipulation to
Paragraph 10.
472
What about Mr. Eisenstadt?
MR. EISENSTADT: These various documents ex-
cept with respect to Exhibit—they are all various minutes
or letters from the NYSA ILA contract board.
We do not find that they have—that they are inac-
curate as far as their authenticity is concerned.
As far as their relevancy, et cetera, we take the same
position, of course as Mr. Caruso.
JUDGE JALETTE: I gather that you would agree
to stipulate them into evidence with the same reserva-
tions that Mr. Caruso expressed?
MR. EISENSTADT: Yes.
JUDGE JALETTE: With that understanding the
stipulation is noted.
[57] Exhibits A through E are received into evidence
as part of General Counsel Exhibit No. 3 for identi-
fication.
[58] MR. CARUSO: I am willing to stipulate to
Paragraph 11, 12, 13, 14, 15 with the same reservations
that I noted with respect to Paragraph 10.
JUDGE JALETTE: As to all of them?
MR. CARUSO: As to Paragraph 11, 12, 13, 14 and
15 I will stipulate with the same reservations that I
indicated when I agreed to Paragraph 10.
JUDGE JALETTE: As to the relevancy of the ex-
hibit and your right to put in any rebuttal evidence or
rebuttal testimony?
MR. CARUSO: Yes.
JUDGE JALETTE: With that modification, that is
received.
MR. EISENSTADT: I find no difficulty with Exhibit
F, G, Exhibit H, Exhibit I and with Exhibit J.
JUDGE JALETTE: That’s the same as Mr. Caruso?
MR. EISENSTADT: Easily these documents are un-
controversial.
JUDGE JALETTE: I will accept that as the stipula-
tion of the I.L.A.
* + * *
473
[123] RUSSELL MC HUGH
called as a witness, having been first duly sworn by the
judge, was examined and testified as follows:
JUDGE JALETTE: Please give your name and ad-
dress to the reporter.
THE WITNESS: My name is Russell McHugh. I
am currently residing at Burnet Avenue, Syracuse, New
York.
DIRECT EXAMINATION
* * * *
[124] Q Were you ever employed by Dolphin Forward-
ing, Inc.?
A Yes.
Q During what period were you employed by Dolphin
Forwarding Inc.? \
A From March 1973 until July 1977.
Q What was the title of your job?
A Operations manager.
Q In your capacity as operations manager, you have
the knowledge of the company’s operations?
A Yes.
Q What business is Dolphin engaged in?
A Dolphin is engaged in the transportation services
on a nonvessel operating common carrier in the Puerto
Rican trade.
Q Does Dolphin possess any authority to operate
granted by an agency of the United States Government?
A Yes.
Q What agency, what authority does it operate
under?
A Dolphin operates under a tariff on file with the
Federal Maritime Commission.
* * * *
[125] The offices were located until July 1973, the gen-
eral offices in Randolph, Massachusetts.
At that time we moved to Hanover, Massachusetts and
we have remained there until I terminated my em-
ployment.
474
Q (By Mr. Portnoy) During 1973 and prior to Sep-
tember 1, 1974 how many employees were employed at
the company’s principal offices in Randolph, Massachusetts
and then in Hanover, Massachusetts?
Five.
Would you in a general way describe the function?
General, administrative and clerical functions.
Any employees engaged in sales functions?
Yes.
Would you tell us who engaged in the sales func-
OPOP?roOp
tions?
A Primarily the president, Richard Lee.
Q Does any carrier—do you know how work or your
sales are generated?
Is that alone or with the assistance of any firm or
carrier?
A No, the sales effort is conducted by Dolphin on
its own behalf.
Q Does any carrier help you to generate business?
[126] A No.
Q Now, could you describe what happens in the move-
ment of a container by Dolphin from the time that a
sale is effected of the transportation services that are
involved in that container?
Let’s suppose that we have a manufacturer of shoes
in Maine who wishes to ship them to the Puerto Rican
trade, what does he do and what do you do?
A Well, upon becoming aware of Dolphin’s loading
facilities the manufacturer will choose his form of trans-
portation to get the product to Dolphin for passage to
Puerto Rico.
Dolphin will receive this freight at its facilities, load
it into an ocean container and tender that fully loaded
ocean container to the steampship lines for passage to
Puerto Rico.
Q In 1973 and 1974 what facilities did Dolphin have
for receiving containers and stuffing them?
A Dolphin maintained a termina] initially at Has-
brouck Heights and subsequently Carlstadt, New Jersey.
CNS
475
Q Would you tell us—did you operate—did Dolphin
own those and operate those facilities in Hasbrouck
Heights and Carlstadt itself?
A No.
Q Who if anyone was employed or would Dolphin
have an [127] arrangement with to operate those fa-
cilities?
A Dolphin employed a warehouseman, Passaic termi-
nal warehouse as agent to receive and load freight for
Puerto Rico.
Q What did that warehouseman do specifically?
A He would receive in the name of Dolphin ship-
ments for Puerto Rico, manifest them, load them into
containers and dispatch them into the piers.
Q You were speaking of Passaic terminal warehouse?
A Yes.
Q Iam going to refer to it as PTW. Did PTW have
any employees who performed this work pursuant to the
arrangement that we are talking about?
A Yes.
Q What kind of—what kind of labor did it employ?
What did they do?
MR. CARUSO: I am going to object because I don’t
believe Mr. Portnoy has laid a foundation that this wit-
ness has personal knowledge of the operations of Passaic
terminal.
JUDGE JALETTE: Objection sustained.
Q (By Mr. Portnoy) Did you ever visit any of those
facilities yourself?
A Yes, sir.
Did you have an opportunity to observe the manner
in [128] which containers were loaded pursuant to the
arangement between PTW and Dolphin?
A Yes.
Q Now, would you be good enough to describe what
PTW did and how it functioned in the loading of that
container?
A Well, they would receive the freight from the motor
carriers delivering it to that address.
Q Who did that? Who was involved in the receipt
of that?
476
A The various employees that happened to be on the
dock there at that time.
Q So that is it correct to say that they employed
dock personnel?
A Yes.
Q What did those dock personnel do with the shoes
after they took it in at the dock? What did they do
with it?
A Generally it was set aside in a—I guess you would
say a convenient location so that this freight could ag-
gregate into a full container load with other shipments
either on hand or to come in.
Once it reached into the proportion of a full container
load, then these employees would then suff that container.
[129] Q What happened to the container after it was
stuffed?
A It would then be sealed. A dock receipt would be
prepared along with a manifest, if necessary and it
would be dispatched to the piers where it would be
accepted and put aboard a ship.
To your knowledge were PTW employees employed
by deep sea ILA labor?
A No.
JUDGE JALETTE: What was your question? Were
they employed by deep sea ILA labor?
Q (By Mr. Portnoy) Did PTW employ personnel
represented by ILA labor?
JUDGE JALETTE: That’s not what you asked.
THE WITNESS: Still no.
Q (By Mr. Portnoy) We talked about containers.
How would these containers arrive at PTW? What was
the arrangement for obtaining these containers?
A We would secure a booking number from the steam-
ship lines upon which a container could be released to a
motor carrier or anyone else with an interchange agree-
ment with that steamship line.
It would then be brought to our facility for loading.
Q Will you tell us how a booking number is secured
and [130] what that means?
A A booking number is simply a reservation aboard
ship for one or however many containers you are desig-
ATT
nated and it is secured simply by contacting the steam-
ship line directly or one of their agents.
6 Now, prior to September 1, 1974 what ocean car-
riers were utilized by Dolphin in the movement of these
containers?
A Seatrain Lines Inc. and Trans-American Trailer
Transport.
Q Do you know where Seatrain Lines got these con-
tainers?
A Yes, they were owned by Seatrain.
How about Trans-American Trailer Transport who
I will refer to from time to time as Triple T?
A They owned a few of the trailers that they fur-
nished. A vast majority seem to come from the railroad
trailer pools. ;
MR. ‘CARUSO: I am wondering if we can get some
idea of the number of containers moved.
The word majority to me is meaningless.
JUDGE JALETTE: Why don’t you take that up on
cross-examination? These are containers you are talking
about, you say?
THE WITNESS: Yes. ;
JUDGE JALETTE: Seatrain owned its own TTT
containers, [131] a majority were obtained from other
sources you say?
THE WITNESS: Yes.
Q (By Mr. Portnoy) Now, to your knowledge were
any of Dolphin’s containers both prior to September 1,
1974 and after September 1, 1974 ever stuffed by labor
represented by the Deep Sea ILA locals?
A One. :
Q Would you—now, how many containers did you
move on an average per week prior to September 1,
1974?
A Five to six on an average.
Q Five to six per week?
A Yes.
Q So, if I totaled five times 50 weeks, we are talking
about 250 containers during the year, is that correct?
A That’s right.
478
Q Now, you said that the ILA labor, Deep Sea Labor
did stuff one container.
To your knowledge could you describe how that came
to happen?
A To the best of my knowledge they preceded my
involvement with Dolphin.
MR. CARUSO: I object on the grounds he doesn’t
have any personal knowledge of this incident.
JUDGE JALETTE: Sustained.
Q (By Mr. Portnoy) Now, after September 1, 1974
[1382] did you have occasion or did Dolphin have occasion
to utilize carriers other than Seatrain and Triple T in
the Puerto Rican trade?
A Yes.
Q Would you tell us who those ocean carriers were?
A The carrier—it was on—I don’t really know the
full name. It was MTM.
MR. PORTNOY: Can we stipulate that MTM stands
for Marine Transportation Management, Puerto Rican
Inc.?
MR. CARUSO: So stipulated.
JUDGE JALETTE: Noted.
Q (By Mr. Portnoy) Anyone else?
A Puerto Rico Marine Management Inc. or PRMMI.
MR. PORTNOY: Can we enter into a similar stipu-
lation?
MR. CARUSO: I will stipulate except to this extent
it should be noted that the carrier involved is actually
known as Puerto Rican Maritime Shipping Authority,
that is the carrier that operates with a tariff on file
with the Federal Maritime Commission.
The other two commissions referred to, MTM and
PRMMI are operating companies that handle the opera-
tion of the vessels owned by PRMSA in the Puerto Rican
trade.
JUDGE JALETTE: Does that conform to your un-
derstanding?
[1388] MR. PORTNOY: Yes, I am perfectly willing to
stipulate to that.
JUDGE JALETTE: All right.
Go ahead.
e * * *
479
Q Now, do you know Mr. Paul Semack?
A I have spoken with the man, yes.
Q Did you ever have occasion to speak to Mr. Semack
concerning containers which were being stuffed by PTW
or [134] Public or Park?
A Yes.
Q What was the date of that conversation?
A December 10, 1974.
Q Would you—how was that conversation carried out, ’
was it in person or by telephone?
A By telephone.
Q Did he call you or did you call him?
A He called looking for Richard Lee who happened to
be in Puerto Rico.
Q Now, tell us what he said to you and what you said
to him.
A He said he had a list of containers that were re-
corded as being domiciled in Carlstadt.
Q Hold it for a moment.
What does domiciled mean?
A It means being physically located for loading.
Q Now, after he told you that he had a list of con-
tainers which were domiciled in Carlstadt, what did you
say or what did he say to you?
A I told him I didn’t think I was the person he wanted
to speak to but I would be glad to take down the list of
numbers and relay the information.
He gave me a list of approximately nine, maybe ten
trailer numbers. Then he subsequently deleted one saying
[135] it was a flat bed, it did not apply to Dolphin. He
said that these containers were loaded by Dolphin within
a 50 mile radius of the piers and that we were going to
be fined under PRMSA’s tariff provisions, $1,000 for each
container and that additionally he would attempt to go ~
back prior to October 1, 1974 and attempt to levy fines
against Dolphin for loading within a 50 mile—within a
50 mile radius within the Port of New York.
Q Did he say anything else to your recollection?
A Yes. He said that our trailers were much too
expensive for him to handle when he got fined $1,000 for
each load.
480
He also said that he was refusing to issue us any
trailers, he would not accept any more from us nor would
he issue trailers to anyone else for our loading.
Q Anything else that you remember about that conver-
sation?
A Yes. He said that we were attempting to deceive—
I think he did say TTT or MTM in showing Hanover,
Massachusetts as the origin of the shipment.
* * * *
[136] Q Did you ever call MTM or TTT again after
that, after this conversation with Mr. Semack?
A Yes.
Q When was that?
A It was that afternoon. We had a trailer coninci-
dentally, a Dolphin booking that was under load and was
being brought in to MTM that very day. I attempted to
get back to Semack and find out if that trailer would be
accepted, if it would be refused, if it would be stripped and
restuffed. What should we do with it?
[187] The driver was on the road some place. He
wasn’t there initially, but he did return the call and I
—he really didn’t want to address himself to the question.
Q Tell us what was said.
A Well, I finally put it to him.
I said, what are you going to do with that trailer and
he said that, well, he would probably strip it and restuff
it.
Q What in fact happened, if you know?
A Nothing. Nothing happened. It was accepted at
the piers and sent to Puerto Rico routinely.
Q Now, after the second conversation with Mr. Semack
did you ever attempt to—did you ever speak to anyone
at MTM again or TTT in order to obtain trailers or
containers?
A Yes on two or three occasions.
We received our booking numbers from an agent in the
Boston area and I attempted to see if indeed we had been
shut out and he said he had received a Telex instruction
that no more booking members were to be issued to Dolphin
nor would we receive any trailers that Dolphin had—any
of TTT’s trailers that Dolphin still had in his possession.
eer
481
MR. EISENSTDAT: Whois “he” referring to?
[187a] THE WITNESS: This he, his name is Bud
Oschman. He was employed by Northeast Agency.
Q (By Mr. Portnoy) Who is Northeast Agency?
[1388] A To the best of my knowledge they are the
regional sales agent for TTT, MTM.
Q Go ahead.
A Additionally I contacted Jerry O’Brien.
Q Who is he?
A The traffic manager for MTM and I asked him if
indeed we could obtain bookings for loads that were not—
that were or were not—could we get bookings at all from
them and he said, no, the only bookings that Dolphin
would be getting would be issued by Paul Semack.
Q What did you do after that, did you contact Mr.
Semack?
A Well, no. ey
Semack had made it pretty plain it will be fruitless
to obtain bookings.
* * * *
CROSS EXAMINATION
[140] Q You further mentioned the response to an-
other question that Dolphin generated sales.
What do you mean by generating sales?
A A representative of Dolphin would visit the manu-
facturer or shipper’s facilities, make known to that per-
son or firm that Dolphin was available for transporting
their goods to Puerto Rico and where our facilities for
same were located.
Q How do you know this, were you physically present
when these solicitations were made?
A On a few of them, yes.
* * ee +
[144] Q And how was the approach made?
What was the approach of Dolphin to the potential
customer?
What was it’s pitch?
4 That we were in the business of moving freight to
Puerto Rico.
We felt we could provide a satisfactory service from the
standing point of pricing and transit time.
482
Q Did you ever offer to show or did you show or did
Mr. Lee in your presence show the potential customer how
it would differ from what he was doing before then?
MR. PORTNOY: Objection.
[145] JUDGE JALETTE: Overruled.
THE WITNESS: On the few occasions that I was
present I would have to say no.
Q (By Mr. Eisenstadt) Did you or Mr. Lee indicate
to the potential customer or tell the potential customer
that it could improve on the service he was already re-
ceiving elsewhere?
Yes.
How? —
From the standpoint of pricing, and transit time.
What was the example?
Our rates were lower.
Lower than what?
Puerto Rican Forwarding.
What is that?
And NVO.
On any of those occasions when you were present
were any of those comparisons made with respect to let
us say the service of an ocean carrier?
MR. PORTNOY: Objection.
JUDGE JALETTE: Overruled.
THE WITNESS: I don’t think so.
Q (By Mr. Eisenstadt) Does that mean you are not
certain or you just don’t recall?
A I don’t recall, but, I also don’t think so.
* * we *
[146] Q (By Mr. Eisenstadt) Mr. McHugh, aside
from solicitations by personal interview and by documents,
were [147] there any other manners that you were aware
of whereby Dolphin generated business?
A Well, I would think by telephone.
* * * *
[149] Q Now, when those goods arrived at for instance
Passaic or Public’s or Park’s facilities, they would co-
OPO PO PO PO Pp
483
mingle that, the goods with other goods before—and put
it into a container, is that correct?
A Yes.
[155] JUDGE JALETTE: You are saying there are
some containers which are not on wheels and some trailers
which are not on wheels?
You said some were detachable and some were not?
THE WITNESS: It depends on the mode of operation.
There is one type of operation where a crane lifts up
a box which is the trailer less the wheels and stacks those
one on top of another.
There is another mode where the whole unit wheels and
all is physicaly rolled onto the ship.
[156] JUDGE JALETTE: Could you give different
names?
THE WITNESS: Yes, one is lift-on lift-off which in-
posi! the denominal container bodies, the other is all on
roll-off.
JUDGE JALETTE: They are both containers?
THE WITNESS: Yes.
JUDGE JALETTE: You want the deminsions?
Q (By Mr. Eisenstadt) These were metal boxes,
right?
A Yes.
Q They are about anywhere from 20 to 40 foot in
length?
A Yes.
Q Did they have any markings on them?
A Yes.
Q What were the markings?
A The markings could have shown as either Seatrain
Lines, Transamerican Trailer Transport or any one of a
number of railroad companies or trailer leasing companies.
Q The ones that were shipped by Seatrain and by TTT,
what did they show?
A Seatrain in almost all cases were marked as STLU
Seatrain Lines.
The TTT units were just any one of a number of
things.
484
Q Did any of them bear Dolphin’s name on them?
A No. 3 ,
Q What about Passaic markings?
[157] A No.
Q What about Park markings?
A No.
Q What about Public markings?
A No. «
[160] Q Now, on the movement from the warehouse-
men from the agent, Passaic, Park or Public to the piers,
how did they get there?
A By truck.
Q Who would arrange for the truck movement?
A Kither Dolphin or it’s agent.
Q By it’s agent meaning who?
A Passaic, Public Warehouse Service Sales or Park
Service.
Q What trucking firm, to you knowledge, delivered
containers from Passaic down to the docks?
A Interocean Service Corporation I.).S.
Q Is that an affiliate with Dolphin?
A No.
Q Is that an affiliate to your knowledge with Passaic?
A I think so.
[161] Q What did they do?
A We would establish who we would wish to have our
[162] containers moved to the pier by.
Q You made that determination, by you I mean
Dolphin?
A Yes.
Q How did they communicate that determination?
A By telephone.
Q Did they call up let’s say Interocean Service and
say we have a container at Passaic, take it down to the
piers? |
A Yes.
Q Who paid for that move?
A Dolphin.
485
Directly?
Yes.
Who paid Passaic for it’s services?
Dolphin—for loading?
For loading, receiving, storing, stuffing, sealing.
Dolphin.
PO PO PO
* * * *
[166] Q (By Mr. Eisenstadt) You testified as to a
conversation that you had with Mr. Semack in December,
1974.
What was Mr. Semack’s tone of voice?
JUDGE JALETTE: Does that make any difference?
MR. EISENSTADT: I will withdraw that, your
honor.
Q (By Mr. Eisenstadt) Mr. Semack is claiming he
has stated his list of containers and they appear to be
domiciled in Carlstadt, is that correct?
A Yes.
Q Did he explain how he obtained that impression?
A I don’t think so.
Q Did he state to you why containers would not be
leased to Dolphin thereafter?
[167] A Yes.
Q What was the reason given?
A That he was receiving funds of a thousand dol-
lars per trailer on units loaded within the 50 mile radius.
This made it much too expensive for him to do business
with us.
[171] Q With respect to the Seatrain movements, did
Dolphin prepare the ocean documentaton?
When I say ocean documentation, I mean, the ocean
bill of lading.
A Yes.
[175] MR. CARUSO: Your Honor, in view of that I
would like to make an offer of proof at this time with
respect to this.
I would first ask that this particular exhibit, that is,
Respondent NYSA 1 be introduced and accepted into
evidence.
———e——errrrrrreeeae—— nn eS. errr
436
JUDGE JALETTE: For what purpose?
MR. CARUSO: For the purpose of establishing that
this witness as the operations manager for Dolphin, if I
had continued to question him and as disclosed on this
particular exhibit would have shown that the documenta-
tion prepared by Dolphin Forwarding Ine: to Seatrain
lines for 1, specifically indicated that the cargo or the con-
tainer that was being delivered to the carrier for ship-
ment to Puerto Rico always disclosed Hanover, Massachu-
setts as the port of origin or Boston, Massachusetts re-
gardless of whether that particular container was loaded
at some other location, for example, at their agent’s ter-
minal in New Jersey; that this was done because of the
restriction that they were well aware of—that Dolphin
was well aware of on the rules of containers; that any
container [176] that moved from a point outside of the
50 mile radius from the Port of New York would be per-
mitted to move onboard the vessel without any handling
by “ILA laborers”’.
This was the exception of the routes to containers and
Dolphin knowing this exception specifically indicated on
the documentation facts which they knew were incorrect
in order to avoid the imposition of the rules on con-
tainers.
JUDGE JALETTE: Your offer of proof is rejected.
The document will be put in the rejected exhibit file.
(Respondent Exhibit No. 1 rejected. )
Q (By Mr. Caruso) With respect to your conversa-
tions with Mr. Semack in December, 1974, you did indi-
cate that you had occasion thereafter to discuss it, discuss
those conversations with Mr. Bud Oschman.
When you spoke to Mr. Oschman did you make a state-
ment to him that Dolphin had been found?
A I think it was something like that.
Q I assume that you had some understanding of what
the word found meant and that I would also take it that
Mr. Oschman understood what the word found meant?
A Yes, I think go.
Q_ What did you mean by the word found?
MR. PORTNOY: Objection.
He is asking for the witness’ conclusion.
487
[177] JUDGE JALETTE: Overruled.
THE WITNESS: What is your question?
Q (By Mr. Caruso) What did you mean when you
said we were found?
A That we were located loading cherries (phonetic)
in the Carlstadt location.
Q Does not the would found presuppose that some
action was taken by Dolphin prior so that Dolphin would
not be found?
MR. PORTNOY: Objection.
JUDGE JALETTE: Sustained.
* * * *
[181] Q At the time that you had the conversation with
Mr. Semack I take it that it was clear in your mind that
you would not be obtaining ocean containers from MTM?
A Yes. =
Q Was Dolphin in a position to continue to move it’s
cargo through the Port of New York at that time?
A I don’t think so.
* * * *
[182] Q So that in effect the so-called railroad trailers
that you are referring to were actually trailers either
owned by, leased or under the control prior to August 1,
1974 by TTT and after August 1, 1974 PRMSA or MTM
as the operating company for PRMSA?
A Yes. ' bts
Q So that you didn’t, on your direct, you didn’t want
to leave any impression that you were able to utilize
trailers other than trailers that were under the ownership
control of the steamship carriers?
A I think not—-will you repeat the question?
Q So that on your direct testimony you were not
leaving [183] the impression that Dolphin was able to
operate trailers other than those that were under the con-
trol or ownership of the steamship carriers?
A Yes.
Q@ To put it another way, but with the fact that the
steamship carriers were providing Dolphin with the use
of rail containers, Dolphin could not operate?
A Not through the Port of New York .
e * * *
488
REDIRECT EXAMINATION
[186] Q (By Mr. Portnoy) You testified that before
on cross-examination as to the significance of obtaining
a booking number and I think you testified that it sig-
nified two things, is that correct?
A Yes, I think it did.
Q Will you tell us again what it signified?
A One that you could draw a container to load and
two, that that would be put aboard ship.
_ Q So that when you call for a booking number—dur-
ing the course of calling for a booking number, did you
at any point disclose who you were and by you, I mean
Dolphin?
A Yes.
[190] Q You indicated you had one instance where you
didn’t obtain the container from the steamship line, you
obtained it from a transport company, it was a railroad
container.
Was it a railroad container that was either leased or
under the control of TTT or MTM?
A After we advised MTM that we have the piece of
equipment and wished to load it aboard, they then as-
sumed per diem lease.
Q With the railroad?
A With the railroad.
: nea never assumed that obligation?
0.
; Q _So hag —— ap ng using the container, Dolphin
S using the container, the steamship com i i
for the use of that container? . eae
A Within certain guidelines, yes.
* * # *
[191] Was it possible for Dolphin to operate if it did not
— _ containers from the steamship companies?
0.
* * & *
[206] MR. CARUSO: May I then make an offer of
proof that if I did have the opportunity to iesins i
that, I would have elicited the following evidence?
JUDGE JALETTE: Well, h j
‘iseats? ave you got it prepared
ee ental me ca.
489
MR. CARUSO: I have it prepared in handwritten
form.
And I can read it to you.
It’s not that long.
JUDGE JALETTE: You may, yes.
MR. CARUSO: If I were permitted to examine offi-
cers of San Juan and of Dolphin I would have elicited
the following evidence:
One, that both San Juan and Dolphin hold themselves
out to the general public as common carriers in inter-
state commerce.
Two, that these companies arrange for the assembly
[207] LTL cargo into ocean containers.
That they also either arrange for themselves remove
or distribute this LTL cargo out of the ocean container
and distribute such cargo to the consignees thereof.
Three, that for these services these companies receive
compensation for the entire package of services offered
by them, including the assembly and distribution of LTL
cargo.
at * P *
[209] RICHARD W. LEE,
having been first duly sworn, was examined and testi-
fied as follows:
JUDGE JALETTE: Be seated, please.
Give your name and address to the reporter.
THE WITNESS: Richard W. Lee, 11 Harley Street,
Hangham, Massachusetts.
DIRECT EXAMINATION
Q (By Mr. Portnoy): You are the president of Dol-
phin Forwarding, Inc., sir?
Yes, sir.
When was Dolphin formed as a corporation?
1964, July.
What state?
Commonwealth of Massachusetts.
What does Dolphin engage in?
* * * 5
OPO POS
490
[210] Q What is the function of a non-vessel operating
common carrier?
A Receive shipment usually less than full load ship-
ments, less than truckload shipments, move them in con-
tainer and on its own bill of lading with its own re-
sponsibility from point of receipt through to destination
terminal, breaks out the shipments, makes deliveries to
the individual consignee.
* * e *
[211] Q Any of these individuals or any individuals
at Hanover, Massachusetts perform sales functions?
A Yes, sir.
Q On behalf of Dolphin?
A Yes.
Q Who does?
A Ido.
Q_ All right.
Would you tell us how you go about that?
A Well, we have advertising material which we [212]
present to people who we know are shipping to Puerto
Rico, offer our services, point out location of our facilities,
explain our pricing and our customer services to them.
Q Okay.
Does any ocean carrier refer customers to you?
A No.
[213] A We have shipments—we have received ship-
ments originating in 1964 via shipments moving through
the services of innercity transportation.
MR. EISENSTADT: Can I have the witness to raise
his voice up?
I’m having a little difficulty hearing.
JUDGE JALETTE: Speak up.
A Yes.
Initially in 1964 shipments reached us in New York
through intercity transportation.
In 1965 that was changed to New England Transporta-
tion Company.
Now, these two carriers were utilized by shippers as
their ICC carrier for bringing shipments to the New York
harbor where the shipments generally are containerized.
491
At this point they are sent to shipside, placed aboard
ship, sent to Puerto Rico, discharged, taken by one of
our companies in Puerto Rico, unloaded, delivered to all
points and places in Puerto Rico and to the Virgin
Islands.
[214] In 1969 the program was altered where we com-
menced using the two carriers who were principally or
wholly container carriers, that is, their certificate was
restricted to cargo moving prior to or after the—by
water.
The shipments that moved in their services were their
shipments on their billing.
We used that program through to 1974.
BY JUDGE JALETTE:
Q Who are these carriers you are talking about?
A These were interocean service corporation and two
transport.
These were two carriers that were exclusively in the
hauling of containers to and from shipside.
Q Is this in the United States?
A Yes.
” * * #
Q (By Mr. Portnoy): What ocean carriers were
utilized in the movement of your goods since 1964?
A Seatrain Lines, TTT—that is Transamerican
Trailer.
[215] Occasionally Sealand.
And after August of ’74 it was MTM and PRMMI,
which were operators of PRMSA.
* * * *
Q In the course of your operations you have obtained
containers, is that correct, since 1964?
A Yes.
Q Okay.
Who furnished you or who—were those containers fur:
-nished you in Hanover, Massachusetts?
A No, sir.
492
Q Where were those containers delivered to?
A To the ICC carriers.
Q Did you engage in stuffing those containers with
[216] gia utilizing your own employees?
0.
Q Since 1964—will you tell us who stuffed those
containers?
Who did you—since 1964.
A In 1964 they were loaded by Intercity Transporta-
tion in Long Island City.
In 1965 through 1969 they were loaded by New Eng-
land Transportation in the Bronx.
In 1973 they were loaded by a warehouseman by the
name of—yes, by Booth Freight Lines in Paterson, New
Jersey.
In 1973 they were loaded by Passaic Terminal Ware-
house in Hasbrouck Heights, in Carlstadt, New Jersey.
In 1974 and 5, they were loaded by Public Service
Warehouse and by Park Service Corporation, both of
which were in Newark, New Jersey.
Q Okay.
Were any of these employees represented by Deep Sea
ILA locales?
By these employees, I mean the employees of Inter-
City, New England, Booth, Freight Lines, Passaic Termi-
wae ow and Park.
0.
[228] Q Could you explain what you mean by LTL
cargo?
A Okay.
The ocean carrier, namely Seatrain, developed an LTL
program where they receive shipments as to—at a desig-
nated place.
And I think in this case it was Secaucus, New Jersey.
They—that organization, whatever it was, whether it
was their own or not, I don’t know.
I don’t know.
All I know is that the cargo was contained by shippers
to them as a carrier.
493
It was received, I’m quite sure, in Secaucus, loaded
by those people in containers and the individual ship-
ments remained identified as LTL shipments moving by
Seatrain Lines and Seatrain’s tariff, consigned to Dolphin
International of Puerto Rico for distribution.
* * * *
[229] Q And you were not the exclusive deconsolida-
tion agent for Seatrain in Puerto Rico?
A That’s correct.
Q Were you at any time the exclusive agent for
Seatrain Lines in Puerto Rico?
A I would—
Q When I say you, I am referring to Dolphin Inter-
national.
A Iknow that.
I would have to say there were times we were close
to it.
* * * *
CROSS EXAMINATION
[285] @Q I would like to refer you to the testimony
given by you before the Federal Maritime Commission
on April 30, 1975 in Washington, D.C.
MR. PORTNOY: What page?
MR. CARUSO: Page 523, entitled Sealand Service,
Inc. and Gulf of Puerto Rico Lines, Inc.—proposed rules
on containers, docket No. 73-17 and 74-40.
Q A question was posed to you as follows:
Question: Mr. Lee, getting back to the time of your
initial discussions with Seatrain in connection with the
seed that led to the organization of Dolphin Forward-
ing, is it a fact that Seatrain offered to provide you
with the means, with a ready means of soliciting cus-
tomers?
Answer: It helped, yes.
It helped you solicit customers to that to that extent
there was some assistance or inducement given by Sea-
train for you to go into the LTL type of business?
Answer: No.
That just happened. It came.
Are you now changing the testimony you gave then?
A No, sir.
494
MR. PORTNOY: Objection.
The total testimony was not read into the record.
JUDGE JALETTE: You can read more if you want.
[236] He’s asked his question and Mr. Lee has answered
no.
Q You indicated on direct that no ocean carrier re-
fers customers to you?
A I did not say that and that was not the question.
Q What did you say?
A I was asked as to whether the ocean carriers—
it was in the present, not the past.
Q But at sometime the ocean carriers did refer cus-
tomers to you?
A There was some help, but the carriers as such did
not do it.
Q Did Seatrain help you solicit customers?
A Asacompany, no.
JUDGE JALETTE: How, if at all, if not as a com-
pany?
THE WITNESS: There were some salesmen that
may have made some referrals.
Q Would one of those salesmen been Mr. Oshman?
A Yes.
Q What did Mr. Oshman and other employees of Sea-
train do in the way of soliciting customers for Dolphin
Forwarding?
A They did not solicit customers for Dolphin.
Q What did they do?
[237] A If they happened to have a customer or were
going to have a customer—I can’t speak for them, but
this is my understanding of it.
And in the normal sales procedure that they would
be going through, one thing that they did not have was
an LTL program.
Q Referring to Seatrain?
A Yes.
Q Before you get into it, is it fair to state that at
that time Sealand was in the Puerto Rican trade and
Sealand did have an LTL program?
A Yes.
495
Q Continue with your narrative concerning what Mr.
Oshman and other sales employees of Seatrain did.
A I just fall back on what I said, it helped.
Q How did it help?
A They could refer shippers to Dolphin as being a
carrier that is performing service, LTL service to Puerto
Rico.
Q Would these shippers have in the past been using
LTL service provided by Sealand?
A Not necessarily.
Q But some did?
A I don’t know that.
* * * *
[242] Q During that period of time—let’s take 1964
to 1968—when—what carrier did Dolphin use in the
Puerto Rican trade?
A Seatrain.
Q Was this done because of Seatrain’s promise to
help you, Dolphin Forwarding, solicit customers?
No.
Q Why did you feel it was necessary for you to use
Seatrain exclusively when Sealand also provides a service
in Puerto Rican trade?
A Seatrain never solicited our cargo.
Q But you testified that it helped to solicit customers.
A I’msorry, what did I just say?
Q You said Seatrain never—
A No, Sealand never solicited our cargo.
They never asked us for any of our cargo.
Q Isn’t it a fact as an NVO—and you do at the
irra” time—use more than one carrier to Puerto Rico?
es.
Q Why do you do that?
A Well, the answer is not to put all our eggs in one
[243] basket.
Q Doesn’t it also give you more flexibility in terms
of moving containers on any given day during the
week?
A Yes.
Q Do these carriers have sailings on different days
of the week?
A Yes.
496
Q So if you had a container you wanted to move on
Tuesday you would move it on the carrier that had a
sailing on Tuesday rather than wait for another carrier
that would have a sailing on Friday?
That would be an ideal—
You try to reach that ideal?
No. :
You do not?
No.
Why do you use more than one carrier at the
present time?
A We want to be able to have the equipment we need
to provide the service we need.
Q And yet from 1964 to 1968 you did not feel it
necessary to use other than—to use any other carrier
other than Seatrain in the Puerto Rican trade?
A We did not feel it necessary.
Did you continue to use Seatrain exclusively after
[244] 1968?
A Yes.
I don’t know how exclusively now.
Excuse me on that one.
For the most part we continued to use Seatrain after
1968.
Q At what point did you begin to use carriers other
than Seatrain?
A 1974 I think we commenced using TTT if I have
my dates right.
Q 1974?
A Yes.
Q Was there a reason you did that in ’74?
A Yes.
Q What was the reason?
A Seatrain no longer measured up to the standard
we needed.
What does that mean?
A Exactly what it says.
They no longer had the service that they had prior
to that time.
OPO Ppl p
497
Q They were still moving ships.
MR still had vessels moving from New York to Puerto
ico
A Yes.
Q What changed at Seatrain which necessitated your
[245] moving over and utilizing the services of TTT?
A Schedules were different.
Attention was different.
Q_ Did TTT solicit your business?
A Yes.
Q But you did indicate that there were occasions
when you did ship containers on board Sealand vessels?
A That’s right.
Q needy they solicit your business at that point?
0.
Q Then you went to them and directly asked for the
use of their service?
A Yes. F
Q You did not feel it necessary to do that in the years
when you used Seatrain exclusively?
A No.
Q Why?
A Because service by Seatrain was suitable.
Q It wasn’t because you had an arrangement with
Seatrain whereby you would use them exclusively if they
helped you to solicit customers?
A No.
Q You indicated on direct that Dolphin never em-
Bh aeons to physically load ocean containers?
es.
ae) on And you also used what you term agents?
Q And these agents always had facilities within the
New York-New Jersey area?
Q Always?
Well, I think you gave a list of th i
ant tiadk ga € various agents
When you indicated the address of their facilities,
you said they were either in New York or N
a uae or New Jersey.
498
@ Would all of them have been in the New York
metropolitan area?
A Yes.
Q Would they all have been located within 50 miles
of the Port of New York?
A Yes. * * | aa *
[248] Q (By Mr. Caruso) I show you GC-7.
I ask you why this cost comparison was prepared in
1974.
A. We were assessing our options to find out what we
could do, what it would cost if we did this or did [249]
that.
The only purpose was to put it down on paper so we
could look at it, we, the company.
Q Was there any incident that caused you to consider
these options?
A Yes.
Q What was that?
A No longer able to load containers and move them
through the Port of New York without having the cargo
handled at a service charge.
Q Rehandled where, at the PRMMI facility?
A Right.
Q Was this as a result of conversations had with
Mr. Semack of MTM who indicated that in the PRMSA
service all LTL shipments would be handled by PRMMA
and not by MTM?
A I don’t think he said that to us, did he?
I don’t think we testified he said that to us.
Q How did you know it was necessary for you to
have your cargo handled by PRMMI as opposed to MTM?
A The only show in town.
He wouldn’t accept any more of ours.
Q Isn’t it a fact that the only show in town was
actually one carrier, PRMSA, having one tariff before
the Federal Maritime Commission and MTM and PRMMI
were merely components of PRMSA?
[250] They were managing companies for PRMSA but
the vessels were PRMSA’s vessels?
A That’s my understanding but I wouldn’t say
merely, no.
499
Q What was your understanding for your conclusion
that you had to bring your cargo to PRMMI as opposed
to MTM?
A He wouldn’t accept any more of our cargo.
It said it was too expensive.
* * * *
[251] Q And your comparison, GC-7, was prepared
to determine whether, from a cost standpoint, it made
more sense, and was more economic to move the Jackson-
ville over an ocean carrier that did not have ILA rep-
resented [252] employees or whether you should go and
bring your cargo break bulk to the PRMMI facility where
it would be loaded into ocean containers by ILA rep-
resented longshoremen?
A Correct.
Q So that your decision to go to Jacksonville was
strictly based on dollars and cents?
A Yes.
Q And if it had been cheaper to use PRMMI and
to have the longshoremen load the containers, you would
have no objection?
A I wouldn’t say.
Q If it was cheaper you wouldn’t have brought it
to the piers, to the PRMMI facility?
A If we decided to stay in business at all, yes.
Q I take it when you arranged to have containers
loaded by various off-pier agents, including Pacific Termi-
nal, that you also took into account the cost involved in
having it done off pier as opposed to done by the ILA
longshoremen at the pier?
A We did not consider that at all.
Q Is it fair to say if it was cheaper to have it done
at the pier that would not have made any arrangements
with these off-pier warehouses and trucking stations?
A Id have to give that consideration from—we never
considered it.
* * * +
[257] You asked me, sir, as to the handling of your
cargo why we had not considered someone like Sealand
at the pier.
500
And I had forgotten that tariff did provide that.
This is back before this whole business.
Always did provide for the receiving of shipments for
customers.
And they gave a time frame, receive it within certain
time and we will charge so much for receiving and
preparation of the manifest.
Q Would that charge be greater than the cost in-
curred at an off-pier facility?
A Much greater.
[262] JUDGE JALETTE: As I understand your de-
ception defense and I may be mistaken, the consolidators
being knowledgeable in the ways of this world and in the
way of having to ship containers, I gather you would
show that they tried to hide the fact that they were the
shippers.
Otherwise their containers would come under the pro-
visions of the rules on containers.
He would have to be—they would have to be stripped
and restuffed.
That’s what you want to show?
Is that it?
MR. CARUSO: No.
What did they, from what I gather, from what I have
seen, in the case of Dolphin and San Juan, indicated on
the shipping documents—
JUDGE JALETTE: That they were to be—they were
somebody else’s?
MR. CARUSO: No.
They were Dolphin but they were loading the con-
tainers not within the geographic area in which the ILA
was exercising its jurisdiction.
JUDGE JALETTE: Let’s—all right.
They were hiding the fact that it was within the 50-
mile area?
MR. CARUSO: That’s correct.
[263] JUDGE JALETTE: That was so that they could
get their container through the port.
MR. CARUSO: Correct.
501
JUDGE JALETTE: What respects would that be
relevant here?
MR. CARUSO: Well, we must remember that before
the containerization—
JUDGE JALETTE: If they were going—if they were
doing work for their own customers and not on behalf of
the members of the shipping association, what difference
does it make?
What difference does that make?
MR. CARUSO: Well, may I raise this but for argu-
ment?
But for containerization the cargo that these customers
had been shipping would have been shipped through the
Port of New York.
It would have been handled at the pier by ILA long-
shoremen.
But for containerization.
JUDGE JALETTE: Yes.
MR. CARUSO: Now, containerization comes on the
scene and the ILA says NYSA will compromise with you
here.
It will compromise.
[264/274] We will let you use containers.
But any cargo that originates within this small geo-
graphical area we have a superior claim to.
We have a superior claim because we have always done
it traditionally before containerization came into the
picture. :
But we will allow you to have your containers stuffed
off pier provided they are stuffed outside of the 50-mile
radius of the Port of New York.
JUDGE JALETTE: Outside a 50-mile radius of the
Port of New York.
MR. CARUSO: Yes.
Provided they are stuffed outside of the 50-mile radius
of the Port of New York.
But with respect to the 50-mile radius, that cargo has
to come down to the piers and it must be loaded by us at
the piers.
502
JUDGE JALETTE: Excuse me.
Off the record one moment.
(Discussion off the record.)
JUDGE JALETTE: On the record.
Continue, Mr. Caruso.
MR. CARUSO: NYSA agreed.
That was the collective bargaining agreement between
NYSA and on behalf of its members and the ILA, the
collective bargaining agreement.
[275] Now, some point the NVO comes on the scene.
A knowledgeable person having—in Mr. Lee’s case
eighteen years of experience in the, what we call the do-
mestic trade.
And that is coast-wise and inter-coastal, ports along the
continental United States.
And with this experience and knowledge he goes to see
Seatrain Service, Inc. and they discuss the possibility of
Dolphin being used for the purpose of soliciting LTL cargo
so that that cargo would not go to Seatrain’s competi-
tor, Sealand and be handled at the pier but rather would
be handled off pier by Dolphin or for the account of
Dolphin. ,
And it would move on Seatrain vessels.
Now, Seatrain did this with full knowledge that there
was a collective bargaining provision to which they were
a party which said that any cargo originating within the
50-mile radius of the port of New York was claimed by
the ILA Seatrain was aware of it.
Dolphin was aware of it.
And Dolphin took steps to avoid that claim.
And but for those deceptive practices the ILA would
have exercised the claim and the ILA would have handled
the cargo at the piers.
That’s our defense.
[276] And I again implore you to give us an opportun-
ity to examine on that defense.
JUDGE JALETTE: I think it’s a repitition of the de-
fense which was made essentially in Conex.
MR. EISENSTADT: Yes, but let me point out some-
thing.
503
With respect to Judge Ordman’s statements as to de-
ceptive practices, I would like to note that Member Fan-
ning in his dissenting opinion in the Associated Transport,
looked to that very fact in the ports of Hampton Roads
and Baltimore as a distinction whereby he, a member of
the original panel, could come to the conclusion that work
preservation could be and was there in those ports a valid
objection of the ILA right at this point—and I’d like to
note that for the record because I think right now it be-
longs here, your Honor.
We have before the second circuit a petition for recall
of a mandate and reconsideration by the board, the very
board whose precedent is being cited here, to consider
whether or not similar deceptions which can be uncovered
subsequent to the decision in Conext should be considered
by the board to possibly reverse its decision in the Conex
case itself.
I think the deceptions here and the fictions that sur-
round the establishments of that decision is very much
at the heart of the whole proceeding, not only [277] here,
but in Conex as well.
I think as to—in view of everything that. is happening
here, in view of the fact that the board relied on Judge
Ordman’s finding that proof of deceptions and extraneious
circumstances may have—
JUDGE JALLETTE: The board did not rely.
MR. EISENTADT: The board accepted the findings
basicaly of Judge Ordman on the facts. :
They differed with him on the conclusion.
JUDGE JALETTE: And said not one word in their
decision about the issue of any deceptive practices.
They found the consolidated and Twin had been per-
forming this work for years.
MR. EISENSTADT: Yes.
I have no disagreement with it.
But the fact that the board agreed essentially with the
factual development of the analysis in J udge Ordman’s
opinion does not mean they had to refer—
JUDGE JALETTE: I am totally unpersuaded.
Whatever Judge Ordman had to say about deceptive
practices died in his Cecision and did not obtain any life
504
at all by reason of the fact the board did not avert to the
one way or the other.
I will not—I cannot—that cannot be construed as the
board stating this would be a [278] relevant issue in de-
termining whether or not a consolidator is entitled to
work.
MR. EISENSTADT: Only the board could really
know that because the board is the one that issued Conex.
JUDGE JALETTE: At this point I am in a position
of having to make rulings on a case which I think follows
Conex.
And all I can tell you is my construction of the Conex
decision does not open the door to a litigation of deceptive
practices.
MR. EISENSTADT: Is it your Honor’s position that
if deception were shown in Conex that the board neces-
sarily would have arrived at the same conclusion?
JUDGE JALETTE: Yes.
MR. EISENSTADT: Could I get some elaboration of
that?
I can’t understand.
JUDGE JALETTE: I think the board has said that
traditionally it is not the work of the ILA to stuff and
unstuff containers.
Its job is to load and unload vessels.
MR. EISENSTADT: The board did say that incident
to the loading and unloading of vessels was the stuffing
and stripping of containers, isn’t that correct?
JUDGE JALETTE: That’s right.
[279] MR. EISENSTADT: In the case which was
dealt wity by the board in Conex, the facts of that case,
they found that there was an off-pier tradition which was
constant with the similar position down at the pier, namely
the incidental handling in the stuffing and stripping of
containers. |
Now, what if the board should subsequently find, and I
don’t say this is all hypothetical because right now it’s in
the works, but let’s say the board should subsequently find
there was deception, that this off-pier tradition was cre-
ated and developed by the off-pier consolidators, by the
use of certain manipulations.
Let’s say bribery.
505
Let’s say falsification of documents, and so on.
It does not stand to reason that that tradition
wouldn’t fall apart.
JUDGE JALETTE: Mr. Eisenstadt, I’ll give you the
answer, which is, I will not permit that to be litigated
here.
You have the consolidation, you are telling me that you
are trying to obtain litigation in the Conex case, it is
through motion for reconsideration before the board of
appeals in an attempt to get it remanded back to the
board.
That will be the forum that it will be heard in the
[280] board—if the board—if the court and the board
undertake to do so. |
I will not undertake to hear it unless the board directs
me to do so.
MR. EISENSTADT: Of course, I take exception to
your Honor’s position.
However, I still believe that it would, for the sake of
economy and efficiency it would still behoove your Honor
in this proceeding to at least let it appear on the record.
Because if it should turn out that in Conex there should
be a change of mind on the part of the board, then why
have to relitigate this proceeding.
JUDGE JALETTE: We wouldn’t have to.
The general counsel would probably undertake to move
to dismiss his complaint if that ere the case.
MR. EISENSTADT: I would like to share your
Honor’s optimism.
JUDGE JALETTE: As I have indicated, you can pro-
tect your record by making an offer of proof so that the
board will have before it the proper basis for making a
ruling.
BY MR. CARUSO:
Q Mr. Lee, were you present at the pre-hearing[281]
conference which counsel for the respondents and counsel
for general counsel were present in July of 1977?
A Yes.
Q And at that time did I not request you to provide
me with a—with copies of bills of lading, select group of
506
bills of lading prepared by Dolphin, which would reflect
—strike that—which related to movements made—move-
ments of containers made by Dolphin which showed Dol-
phin as the shipper of that container?
Yes, sir.
Q And have you collated the specific documents that
I requested?
A I did.
The company has them.
Q Do you have them in your possession?
A Yes.
Q Would you produce them for me?
MR. PORTNOY: I object.
I see no relevant purpose for the production of these
documents at this time.
JUDGE JALETTE: Mr. Caruso?
MR. CARUSO: You Honor, frankly I intend to use
these documents for the purpose of again examining in
the area of deceptive practices.
[282] JUDGE JALETTE: All right.
MR. PORTNOY: I have an objection to that.
JUDGE JALETTE: All right.
I will not direct the production of the documents on the
grounds that it is for the purpose of examining in an area
which I find is not relevant to the issues in the case.
MR. CARUSO: May I make an offer of proof?
JUDGE JALETTE: Yes.
MR. CARUSO: Had the documents been produced and
had I had the opportunity of examining the documents, of-
fering them into evidence and examining Mr. Lee on these
documents, I would have established here that Dolphin de-
liberately indicated on documents presented to the steam-
ship carriers that the origin of the container was outside
the 50-mile radius of the Port of New York, and that this
was done in order to deceive ILA employees at the steam-
ship company pier facilities into thinking that Dolphin
containers would not—was not subject to the rules on
containers.
In that fashion Mr.—strike that—Dolphin Forwarding
was able on that to obtain unrestricted movement of con-
507
tainers from the time it was formed in 1974 until the first
time this deception was discovered in December 1974.
That is my offer of proof, your Honor.
[283] JUDGE JALETTE: Offer of proof rejected.
MR. CARUSO: I take exception.
Q I just want to ask you several other questions just
to make it clear in my mind the reason why you decided
to go to Jacksonville, Florida.
From what I gathered from your testimony, and you
correct me if I’m wrong, you engaged in the cost compari-
son, the operation in New York as opposed to the cost of
operating via Jacksonville, Florida.
You did that on general counsel exhibit 7, and on the
basis of the fact that it was cheaper to use the Port of
Jacksonville as opposed to the Port of New York, you pro-
ceeded to discontinue your operations in December 1974,
in the Port of New York, and to move all of your ship-
ments to the Port of Jacksonville, is that correct?
A The action is correct.
The terminology would be that we diverted the cargo
to Jacksonville.
Q Is it fair to state that your objection to using the
Port of New York was not because you were prohibited
from continuing to use the steamship carriers, but rather
because it was more costly to use the steamship carriers
in the Port of New York.
A May I have your question again, sir?
[284] MR. CARUSO: Would you read it back?
(Record read.)
MR. PORTNOY: Objection.
That’s a non-sequetor based on the present testimony
that’s been developed.
JUDGE JALETTE: Overruled.
MR. CARUSO: I’m sorry?
JUDGE JALETTE: Overruled.
A I can answer?
JUDGE JALETTE: Yes.
Q Yes.
A The answer is yes.
MR. PORTNOY: To what?
508
MR. EISENSTADT: The question.
MR. PORTNOY: Sorry about that.
Q It’s also fair to state that the steamship carrier
in New York, and there was only one at the time in 1974,
that is PRMSA, did not indicate to you that it was ceas-
. ing business with you?
MR. PORTNOY: Objection.
It’s argumentative.
MR. CARUSO: It’s not argumentative, your Honor.
It’s a fact.
JUDGE JALETTE: Overruled.
A Ican answer?
JUDGE JALETTE: Yes.
[285] A _ IfI recall correctly, Mr. Caruso, I was obliged
to change testimony because it wasn’t first-hand.
It came to me.
Would you respect, sir, that the information that came
to my company did not come directly to me?
Q_ I’m afraid I’m lost as to what you’re alluding to,
Mr. Lee.
A You or Mr. Schecter, I forget—
Q I think it is going to be very confusing if you refer
to incidents that occurred at the FMC proceeding because
no one here other than myself and yourself are aware of
those proceedings.
A That’s why I’m having trouble answering your ques-
tion, because what happened, and what I heard myself
first-hand is two different things, right.
JUDGE JALETTE: Can you answer the pending
question?
MR. CARUSO: Would the reporter read back the
pending question?
JUDGE JALETTE: If you can’t answer it just say
you can’t.
Would you read it back, please?
(Record read.)
A That question is no good.
I can’t answer that.
Q Was Dolphin ever advised by PRMSA that PRMSA
would not accept shipments of Dolphin to Puerto Rico?
[286] A No.
509
Q PRMSA is the carrier in the Puerto Rican trade in
late 1974, is that right?
A Yes.
Q And PRMSA was the only carrier to Puerto Rico
operating out of Port of New York in December 1974, is
that right?
A Yes.
Q@ And PRMSA never refused to do business with you
in December 1974, is that right?
A That’s correct.
Q And your decision to move to Jacksonville was a
voluntary decision on the part of Dolphin to do so because
it was cheaper to move out of Jacksonville than out of
Port of New York?
A Yes, sir.
Q Did any representative of the International Long-
shoreman’s Association ever contact Dolphin Forwarding,
Inc?
A Yes.
Q When?
A To the best of my knowledge it would have been
around October or November of ’74.
Q And who was this representative?
A I don’t know.
* * * *
[290] Q In the period 1964 to 1968 what were the
sources for Dolphin’s customers?
How did you obtain customers?
A I solicited their business.
Q And what resources did you rely on for soliciting
their business?
A My own.
[291] Q Did you use any lists?
Did you use any information becoming available to you
to know who to go to?
A No, sir.
Q How did you go about doing it?
A Ihad been in business for some 18 years.
I knew the market.
I knew who the shippers were.
510
8 percent of the cargo moving to—for export moves to
Puerto Rico, 8 percent of New England originating cargo
goes to the State of Texas.
I was familiar with the people and generally those who
ship to Texas also shipped to Puerto Rico.
So it wasn’t too difficult for me to knock on doors to
find out for sure which ones were and which ones were
not.
Q And do you know where or did you learn how these
people had been shipping their goods to Puerto Rico prior
to your solicitation?
A Yes.
Q What did your knowledge reveal, your inquiry?
A Most of them were using another NVO.
Q Now, you are talking about the people in New
England?
A Yes, sir.
[297] Q What services do you provide to your cus-
tomers as an NVO or doing business as you have been
doing business since 1964?
A You said customer service.
You did not—
JUDGE JALETTE: All right.
What services do you provide to the customer? _
THE WITNESS: That’s what threw me off, I’m sorry.
Q Now that you understand my intent, could you
answer that?
A Okay.
We go back to what an NVO is then, right?
JUDGE JALETTE: No.
Just what do you do for a customer.
That is a very simple question.
If I’ve got goods, I want to send to Puerto Rico, what
are you going to do for me?
A I love the opportunity to sell.
I’m sure with some time I could persuade you it would
[298] be very nice to use my service.
They are very good, the price is right, our attention
is right.
We’ve got good reputation.
v
511
We are serving a lot of good customers.
JUDGE JALETTE: So far you haven’t gotten a shoe
out of my plant.
How are you going to get my shoes from Brockton,
Mass., to San Juan, Puerto Rico?
THE WITNESS: I don’t do that.
JUDGE JALETTE: Then what do you do?
THE WITNESS: I will receive your shipment of
shoes at our designated facility, but not from your source.
You have to use your ICC carrier for bringing it to us.
We have no ICC authority.
JUDGE JALETTE: Do you provide any service to
the manufacturer in connection with arranging for the
shipment of his product from his plant to let’s say Pas-
saic, New Jersey?
A No, sir.
JUDGE JALETTE: I see.
So when do you start providing services to the manu-
facturer?
[299/300] A When it reaches me at the facility that
we have designated.
JUDGE JALETTE: What is the service that you pro-
vide him?
THE WITNESS: At that point in time we issue a bill
of lading, charge you for the service.
We load the shipment.
We move it to Puerto Rico and we deliver it.
JUDGE JALETTE: Yow deliver it to the point of
destination given you by the manufacturers?
THE WITNESS: Yes, sir.
Q So as I gather it, Mr. Lee, you never—you or your
employees never touch any of these goods, is that right?
A I or my employees.
Dolphin Forwarding, correct.
Q_ And all you do—not all, but what you do is you
handle the paper work and the telephone communications,
is that right?
A We perform common carrier service.
Q But you don’t transport any of the goods, is that
right?
A Yes, we do.
512
We are a carrier.
We are a non-vessel operating common carrier.
[301] Q But you don’t actually have any vehicles, ves-
sels or other facilities for moving that cargo, is that
right?
A Dolphin Forwarding does not.
That is correct.
Q The interconnects with people by phone and by mail
and so on to arrange for the movement of goods from one
place to another.
A From one terminal to another.
Q Well, from the plant, let’s say in Brockton—
A No, sir.
Ports only.
Atlantic ports only to all points and placed in Puerto
Q Have you operated through the Port of Boston?
Since 1964?
A Yes.
We operate through the Port of Boston.
Q And whose facilities did you use?
Will you give me an example of how you operate
through the Port of Boston?
A We would have an agent in the Boston—Port of
Boston area doing the same thing that an agent is doing
[302] in New Jersey and in Jacksonville, Florida.
a * * *
[305] Q From your viewpoint was Seatrain in com-
petition with you?
A Oh, yes.
[306] Q Mr. Lee, are you familiar with a gentleman
by the name of Paul Semack?
A Yes.
Q Will you identify him, please?
A He was the vice president of Transamerican Trailer
Transport.
513
[309] Q Going now to the cost factor for a moment,
in 1974 were you using what warehousemen’s facilities
for stuffing of containers?
A ’74 would have been Passaic Terminal Warehouse.
Q What did it run you labor-wise to have a container
stuffed?
[310] A Well, I don’t know if that is for public knowl-
edge.
But 50 cents a hundred.
Q At that time do you know what it would cost down
at the piers?
A Yes.
If we could qualify for the item that was in the tariff
it would have been 70 cents a hundred plus a charge for
the preparation of the manifest and I’ve forgotten the
price for that.
* * * *
[315] Q You referred to various entities that per-
formed work for Dolphin, Passaic, Park, Public.
Are you familiar with the general nature of their
business?
A Yes.
Q What is it?
A Warehousemen, distributors.
[316] Q They just—their work is not limited to stuf-
fing and stripping containers?
No, sir.
Q What other type of work do they do?
A Local warehousing and local distribution.
Q Having nothing to do with ocean going cargo, is
that right?
A Some of it did.
If the cargo that was assigned to their warehouse it
could have come from overseas and had come in by ocean
carrier.
Q When cargo was delivered prior to being stuffed it
was stored in the warehouse, is that right, awaiting a
container or a full container load, is that right?
A Yes.
514
Q Are you—were you charged anything for that, that
storage?
A Yes.
Q What was—was it on a daily basis?
A No.
Q Or weight basis?
A No.
It was all in the price.
It was all negotiated the price that I had already men-
tioned, covering everything.
[317] Our freight doesn’t stay still too long or we would
never keep his shoes.
What was your arrangement with those carriers?
First they had to receive the merchandise, is that right?
A Yes.
Q Then they stored it if it was waiting for a con-
tainer? .
A Floored it versus storage.
Q Okay.
And then they stuffed the container, is that right?
A They loaded the container.
Q What other services, if any, have I not covered?
A Service local phone calls from customers, picking
inquiries, scheduling—
Q Customers within direct contact with Passaic, let’s
say?
A Sure.
Our customers knew where our receiving facilities were
and they may have wanted to find out the latest on
schedules as to what time they had to get it there.
They may have called them for pick-up service.
They may have been called by a steamship company
to find out how many loads are coming.
They may have called for some bookings.
They may have called for—they would have called
[318] They may have called for—they would have called
for the necessary arrangements to get the equipment that
they would need in the event that the equipment was not
available to them.
They would give us a loading manifest and they would
prepare in the mailing the necessary material that we
would need at destination to check the outturn, to make
sure it was correct.
515
Q All those services were performed by the ware-
housemen, is that right?
A Right.
It would be the services that we would perform our-
selves if they were our facilities and our people.
It is a totally—all-service. It is an agency service.
* * * *
[327] Q Can you give us an example of freight all
kinds?
A Yes.
Any item—items of three or more, none of which
exceed 70 percent of the total and no component part
which would exceed 25,000 pounds in a 40-foot container.
Q Now, what—as compared to the A.Q. rate, how
would that compare?
That would be lower.
Considerably lower?
Depends upon the mix.
What would be the next higher cost type shipment?
The truckload application on the specific items.
What would that consist of?
The next highest—well, we are talking about now
a non-qualifying freight all kinds load.
Say a shipment—a component load exceeded 5,000
pounds or certain descriptions exceeded 70 percent of the
lading or we only had two items, didn’t have three, then
we would have to abide by the tariff and pay that.
It could be more than the freight all. kinds.
We don’t do that.
Q Why not?
A It’s too expensive.
[328] Q You limit yourself to the A.Q. and the FAK,
is that right? .
A Yes.
Now—
JUDGE JALETTE: Do you have much more?
MR. EISENSTADT: Not much more.
Q At the time that Dolphin went into business in ’64
were the A.Q. and the FAK in effect?
A Yes.
PO PO rp
516
Q From your prior experiences do you know when the
FAK first came into existence?
A It came in when they first published their tariff to
Puertc Rico, the initial tariff.
Q That was about when?
A Sir?
Q That was about the—about when, date-wise?
A ’63, somewhere in there, 1963.
Q That’s when the FAK as far as you know—
A As far as Seatrain was concerned.
I was familiar with that tariff.
Q Were you familiar with any other tariffs?
A Yes.
But not to Puerto Rico.
Q Let me get clarification on that.
Were you familiar with other tariffs but no other
Puerto Rican tariffs?
[329] A That’s correct.
MR. EISENSTADT: Just one second.
(Pause. )
Q You just testified that you are familiar with the
Seatrain tariff to Puerto Rico.
Do you know whether any other carriers were offering
FAK in the Puerto Rican—in Puerto Rico and run at
that time?
A At that time I do not recall.
Do you recall when other carriers were offering
FAK rates to Puerto Rico?
A It is such a common practice, I didn’t know that
one did and one didn’t. _
I would have presumed that they all did.
Q Now, as a result of the FAK rate, were you receiv-
ing any lesser services as a consideration for getting that
more favorable rate?
Yes.
In what sense?
We had to do the loading and the unloading.
But other than that?
No.
PO PO p>
517
Q There was no other compensating factor?
A No, sir.
It’s an item in the tariff.
[330] Either it qualifies or it does not.
Q So you as a consolidator were able to obtain FAK
by doing the loading and unloading?
A Yes.
Q Now, you expressed familiarity with the FAK rate
in the Seatrain tariff.
Are you personally familiar with how that FAK rate
was derived?
MR. PORTNOY: Objection.
What difference does it make?
JUDGE JALETTE: Objection sustained.
MR. EISENSTADT: Your Honor, consolidators were
using a certain rate.
There must have been some basis for it.
I think we have a right to find out what it was.
JUDGE JALETTE: What difference does it make
how it was derived?
MR. EISENSTADT: The FAK rate takes into con-
sideration certain things.
The witness just testified that he has to load and un-
load it.
That was a consideration for obtaining the FAK. It
should be obvious then that the ability of the consolidators
to find was directly related to the ability to get an FAK
rate or an A.W. rate or some rate that enabled them
[331] to be competitive to establish a tradition.
MR. PORTNOY: has no bearing on the issue of
whether or not their customers are subcontractors.
MR. EISENSTADT: I am not even talking—
MR. PORTNOY: I don’t think it is in dispute that
the FAK rate is opened to anybody who qualifies under
the ocean tariff.
I don’t think there is any dispute—
JUDGE JALETTE: You are getting away—he’s indi-
cated that he gets the FAK rate and he gets it because
he can unload the container.
How they arrive at the FAK rate, which was your last
question, seems to me to be irrelevant.
518
MR. CARUSO: The FAK rate presumably was a
creature of the steamship carrier.
The steamship carrier developed the rate.
If the steamship carrier developed the rate and the
rate was lower than other rates because the physical
handling of the container—of the contents of the con-
tainer was going to be done off pier, then it would seem
to me that this in effect was a conscious decision by the
steamship carrier to offer this rate, thereby giving an in-
ducement to have the contents of the container stuffed
off pier, saving the steamship carrier the cost of him
doing it on the pier.
[332][ In effect the steamship carrier is subcontracting
the loading and unloading of that container off pier.
You don’t have—
JUDGE JALETTE: I am not persuaded.
I understand your position.
I don’t agree with it.
MR. EISENSTADT: Your Honor, ai this point, since
we are concluded from examining the witness at this
point, I would like to make an offer of proof.
That if counsel were permitted to examine the witness,
if counsel were permitted to develop the evidence in this
area, it would show that the FAK rate was developed at
a point in time which was consonant with the development
of containerization.
That the handling of less than container loads which
the ocean carriers found either burdensome or uneconom-
ical, propelled them to develop a rate called an FAK rate,
which induced and solicited the interest of off-pier—of
persons to develop off-pier facilities and off-pier arrange-
ments such as in this case Dolphin, San Juan and other
off-pier consolidators, and which develop the so-called
tradition of the off-pier consolidator as a direct or in-
direct conscious action of the ocean carriers who are
members of NYSA.
[3385] Q (By Mr. Kisenstadt) Mr. Lee, when you ar-
ranged for the pick-up of cargo destined to be trans-
ported by ocean-going vessel from a manufacturer or
519
other so-called customer, ! believe you indicated that the
customer would use his own—make his own arrangements
to get it to your facility, your agent’s facility, is that
correct?
A To the end of the question.
You said that we arrange, we do not arrange for them,
no.
Q But it would call then, nevertheless, for the cus-
tomer to take care of that aspect of the movement, is that
correct?
A The customer would call his carrier, yes.
Q All right.
ee - 5d
[341] Now, in order to get this matter straightened out,
let’s take this whole process step by step from the point
where you learn from customers that shipments are going
to, let us, Passaic warehouses.
At that point you need a container, is that right?
A Yes, we need a container.
Q Okay.
How do you go about obtaining that container?
A All right.
Passaic terminal warehouse could have the equipment
in possession at its warehouse.
Q When you say equipment, could you be more spe-
cific?
A Trailers. Trailer containers.
Q How would it have gotten there?
A Shipment has been imported—
J upGe JALETTE: Let’s assume it doesn’t have any.
t’s start fresh.
[342] A _ All right.
It then runs to the facility of the shipping company as
to whether they locate a pool of their location, trailers,
containers, drawing that equipment on the permit of the
booking number.
Q Now, stop there and go back a bit.
Who arranges for obtaining the container?
A The agent.
Q What agent?
A Passaic Terminal Warehouse.
520
Q You tell Passaic that a container is needed, is that
how you do it?
A No.
They know they need one.
Automatically?
Yes.
Do they obtain the container?
Yes.
Over your name?
Yes.
All right.
As our agent.
How do they do this?
They dispatch their tractor—
JUDGE JALETTE: That’s the physical way.
[343] We don’t care about the physical way they do it.
Q We know they have to bring it there.
What procedures do they go by?
What papers have to be drawn, what telephone calls,
if any, have to be made?
How do they go about it step by step, within your
knowledge?
A They have been given the booking number.
Q By whom?
_A_ They could get it themselves, by calling up the ship-
ping company.
Q What does that booking number consist of? What
does it represent?
A It’s a series of numbers which has meaning to the
steamship company that it covers one or more containers,
trailers, which go aboard a certain vessel.
Q Mr. McHugh testified yesterday, if I recall cor-
rectly, that the booking number meant two things to him,
one thing it meant getting a container.
The other thing it meant that there was going to be a
place aboard a vessel.
Does that mean the same thing to you?
A Yes.
Q Could you conceive of a booking number meaning
only obtaining the container but not having a place to
board a [344] vessel?
A No, sir.
PO PO PO PO PO
~ 521
Q Well, in your experience have you ever had that
happen to you, that a booking number is given but you
didn’t have a place to board a vessel?
A Yes.
We have missed some sailings.
Q You missed the sailings.
Had you been on time you would have been aboard the
vessel?
A Yes, sir.
Q_ All right.
We have the booking number.
You don’t obtain the booking number, your employee
does necessarily obtain that booking number, is that
right?
A Not necessarily.
Q So, Passaic gets a booking number.
Then what does it do?
A It knows it needs equipment because it is receiving
cargo consigned to move via Dolphin to Puerto Rico.
It could be a Monday.
It could be a Tuesday.
He knows from momentum how much equipment, trail-
ers he is going to need.
He has a booking number.
[845] There has been an estimate that’s made as to how
many trailers will be needed to service the flow of cargo
in a given week.
Q He will have to get that from you, won’t he?
A Unless he has called and got it himself.
Q From your customers?
A No.
From the steamship company.
Q@ How does he know how much cargo is coming in?
That’s what I meant.
A That’s what transportation is all about.
We do know based upon performance in the past.
Q He knows so many shoes are going to be coming in
because every week a certain number of shoes come in, is
that what you mean?
A That’s an example.
522
Q Now he has got a booking—he knows the cargo is
coming in.
And a booking number is obtained.
What happens then?
A A driver is dispatched.
He is given that booking number.
He goes to the—
Q Just before that point.
Under what authority does he obtain that container?
[346] I mean, does the container just willy-nilly go to
anybody that requested a booking number?
A Not without the booking number.
Q What entitles him to a booking number?
A A need, you request it and it is given to you.
Q If I called down to Seatrain or Sealand they are
going to give a booking number? They don’t know?
A If they—
Q They would give me their container, they will give
me maybe even a chassis with it just because I call for it?
A Yes, sir.
Q Without security, without anything?
A That’s right.
They won’t give it to you without security, but they
will give it to a carrier—
Why?
A (Continuing)—who has an agreement on inter-
change of equipment.
An equipment interchange agreement that the motor
carrier has.
Q What is this interchange agreement consist of, as
far as you know?
A Yes.
This depends upon what has been negotiated between
the steamship company and the specific motor carrier.
[347] It does vary.
But in general it is for a small activity on a one for
one basis, which we refer to, they will say, as the carrier
has already furnished services to show that it qualifies
to protect the equipment containers in the event it is
damaged while it is in their care and custody.
523
And the interchange agreement form is endorsed by
both the driver and the dispatcher on the pier, and there
is outlines as to what equipment looks like, what marks,
a hole here, a dent there, a slash in his tire.
Q Is there a master interchange agreement that covers
the ongoing relationship between the carrier and the—
I am talking about the ocean carrier and the motor car-
rier?
A_ I wouldn’t know that, sir.
Q So, each time he goes down he gets a—they sign
these slips and the equipment is transferred to the carrier,
is that right?
A Yes, sir.
Q. All right.
Now, as I understand it, you don’t have any trailers,
is that right?
A Yes, sir, we do not.
Q You do—
A Yes, sir, we do not.
Q Okay.
[848] Are you party to any interchange agreements?
A No, sir.
Q With any carrier, any ocean carrier?
A With no carrier, period.
Q_ All right.
Now, Passaic has obtained a container.
What does it do?
What does it do with the container?
A It places it at the facility and commences to load ~
our cargo.
Q Now, under that interchange agreement it entitles
or gives the motor carrier, whether it is an independent
or whether it’s a subsidiary of Passaic or son, gives them
the right to take that container and move it away from
the pier, right?
A Yes, sir.
Q Does your name figure in this at all?
A Yes, sir.
It is our booking number.
Q Your booking number?
A Yes, sir.
524
@ You mean that when Passaic calls in to Seatrain or
_ Sealand or triple L, whoever it might be, that booking
number is not given in Passaic’s name?
A That’s right, it’s not. It’s Dolphin’s name.
[349] Q He says I want a container, booking number
for Dolphin, is that how he does it?
A Right.
Q But Dolphin never gets that container?
A That’s correct.
Q Because Dolphin has no equipment, has no inter-
change agreement?
A That’s correct.
Q Now, when he gets back to the warehouse it is
handled by, in this case, Passaic, right?
A Yes, sir.
Q Passaic’s employees get the cargo in position and
they stuff the container, right?
A Yes, sir. ors |
Q Now, they put a seal on that container, is that
right?
A Yes.
Q Whose seal is put on that container?
A Could be their own.
Q Well, a seal is a very special device, isn’t it?
A Yes, it is.
Q What does it signify?
What does it—
A It gives—
Q (Continuing)—mean?
[350] A First of all, it gives a series of numbers and
they are a series.
It could be 1077, 1078, 1079.
And if they have purchased the seals with the imprint-
ing of their own name, they could have PTW, 1770,
PTW—
Q Would it say ever DOL 1770?
A No, we have none.
Q You have no seals?
A No, sir.
525
Q Somebody looking at that container would see the
Seatrain logo, they would look at the seal, the PTW seal?
A A seal, anyway.
Q Or a seal.
But what—that seal number is given by whom?
Where do they get the seals?
A Most carriers have these on a ring so that the next
one in sequence comes off.
It is their ring.
If it is their series of seals, and they apply this to the
doors on the trailer containers. |
JUDGE JALETTE: These are the common carriers?
THE WITNESS: Yes, sir.
MR. EISENSTADT: I didn’t hear that.
JUDGE JALETTE: Common carriers.
[351] Q The common carriers have the seals? .
A Yes.
Anybody can buy seals.
You could buy some with your name on.
There are companies that are in business—
Q There are also seals without any designation on it
except numbers?
A Just numbers, that’s right. True.
Q Just numbers.
Now, the container is then transported down to the
pier by whom?
A By the trucking company.
In this case, not necessarily, but it could be PTW that
did the trucking.
They have a trucking division, public warehouse—
Q It’s a subsidiary?
A It’s a subsidiary, yes.
Q And they take it down to the pier, the bill of lading
with the manifest?
A Not necessarily.
Q Not necessarily a manifest?
A They might just go in with a dock receipt for the
purpose of lodging the equipment and—lodging the con-
tainer and getting a receipt for it.
526
Q_ All right.
[352] That receipt is given to him?
A To the receivers on the pier.
Q_ All right.
But do the receivers on the pier sign anything?
A Yes.
Q Do they acknowledge receipt?
A Yes.
One copy is retained by the driver.
Q And that dock receipt signifies what, that they have
obtained a container from Dolphin?
A Yes.
Q Not from PTW, but from Dolphin?
A That’s right.
* * * *
[403] VICTOR SANTOS,
having been first duly sworn by Judge Jalette, was ex-
amined and testified as follows:
JUDGE JALETTE: Be seated, please.
Give your name and address to the reporter.
THE WITNESS: My name is Victor Santos.
I live in 247 Montclaire Avenue, Newark, New Jersey.
DIRECT EXAMINATION
BY MR. PORTNOY:
Q Mr. Santos, what is your occupation?
A My occupation is the regional managing of San
Juan Freight Forwarders, Transportation Company.
Q And when were you first employed by San Juan?
A ‘The year 1978, sir.
Q And where was your first place of employment?
A In Puerto Rico, sir. r ee
Q And after you were first employed did you sub-
sequently move to New York?
A That’s correct, sir.
Q And about when did you move to New York?
A Early part of 1974.
527
Q And would you tell us what business San Juan is
engaged in?
A San Juan Freight Forwarders is engaged in the
NVO [404] sea business which is a non vessel operated
carrier.
Q And where is the principal office of San Juan
located?
A The headquarters office of San Juan Freight For-
warders are located in Carolina, Puerto Rico.
Q And does San Juan also have an office in New
York?
A » Yes, sir.
Q And that is located at 601 West 28th Street?
A That’s correct, sir.
Q When you first came to the New York office, could
you tell us what groups of individuals San Juan em-
ployed in New York?
A In New York at that time we employed personnel,
three, which is clerical administration.
Q And any sales personnel there?
A When I moved to New York I became one of the—
involved in sales also.
Now, could you describe how San Juan, prior to
September 1, 1974, move containers, what functions it
performed?
A Well—
JUDGE JALETTE: Before what date?
MR. PORTNOY: September 1, 1974.
A They were using the facilities of different carriers
like TransAmerican Trailer Transport, TTT, [405] Sea-
land and in very few occasions Seatrain.
Q Okay.
Those are the ocean carriers.
And you utilized containers in your business, is that
correct?
A Containers or trailers.
Q Okay.
Who stuffed those containers?
A We use the company stevedoring called Penn In-
dustries.
528
Q Do you know whether Penn Industries had a union
contract with any labor organization?
A Yes, sir.
Q With what labor organization?
MR. EISENSTADT: Objection.
JUDGE JALETTE: Overruled.
A The union labor organization that represents Penn
Industries is ILA, offshore.
Q After the container was obtained by the carrier and
it was stuffed by the employees of Penn Industries,—
withdraw that.
What was the arrangement between San Juan and
Penn Industries with respect to the stuffing of containers?
A Penn Industries will receive, sign for and load into
containers or trailers all the merchandise shipped by ship-
pers at different locations in the United States to [406]
the terminal of San Juan Freight Forwarders.
* * * *
Q When the containers were stuffed at 601 West 28th
Street, what happened to the containers afterwards?
A They were documented by San Juan Forwarders
and moved by a common motor carrier to the facilities of
the ocean carrier.
Q And what happened to them there? ,
A At the facilities of the ocean carrier they were put
on the vessel to be transported to Puerto Rico.
[407] Q Now, before they were lifted aboard the ves-
sel, were the trailers or the containers ever unstuffed by
ILA labor and restuffed into another container.
A Yes, sir, they were.
Q What percentage of your trailers or containers
were ever—were subjected to that unstuffing and re-
stuffing?
A hs the best of my knowledge, at least 80%.
ow—
MR. EISENSTADT: Pardon me, can we have a time
frame for this?
Q During what period of time was this going on?
A This started from ’73 to ’74.,
529
JUDGE JALETTE: Through ’74?
THE WITNESS: Yes.
[410] Q Now, you say that you have—now, did there
come a time when you could not obtain any containers
from MTM or TTT?
* oe * *
[412] THE WITNESS: Yes, sir.
At the latest part of 1974 we began having problems
acquiring the availability for containers for San Juan
Freight Forwarders from MTM.
* * * *
Did you ever have a conversation with Mr. O’Brien
concerning the availability of containers?
A Yes, sir, I did, many occasions.
Q In the latter part of December, 1974, January,
1975, did you have a conversation with Mr. O’Brien con-
cerning the availability of containers?
A Yes, sir, I did.
Q Can you fix the date?
Can you tell us the date of that conversation or the
first conversation in that regard?
A The early part of January, 1975, I was informed
by Mr. O’Brien that we will no longer have the availabil-
ity of bookings or trailers for San Juan Freight For-
warders.
Q Will you tell us whether or not you called Mr.
O’Brien or he called you?
[413] A The beginning—I made the call, because we
used to call for booking numbers.
Q Okay.
You made the call.
Okay.
Who did you call?
A Icalled Mr. O’Brien.
Q And what did you say to him and what did he say
to you?
A I requested booking for five spaces on the next
available vessel.
530
And he informed me that—at that time that we could
have the bookings but not the trailers.
Q What did you say to him?
A I asked him to explain the reason why we were
not made the containers available to us.
Q And what did he say?
A He said I will have to see Mr. Paul Semack.
Q Anything else said in this conversation?
A Yes, sir.
MR. EISENSTADT: Excuse me, “I will,” meaning
who will have to see him, Mr. O’Brien or the witness
would have to see Semack?
THE WITNESS: I will have to, that Mr. Santos will
have to see Mr. Semack.
[414] BY MR. PORTNOY:
Q Anything else said during the conversation?
A He also informed me that the LTL facilities of
MTM were being transferred to the Port of Elizabeth,
and that Mr. Semack will explain to me further.
Q And did you talk to Mr. Semack?
A Yes, sir.
I called—
Q Hold it.
Did he—was this in person or by telephone?
A By telephone.
Q_ And did he call you or did you call him?
A I called him.
Q And do you remember the approximate date of this
phone call?
A It was around the 10th or the 12th of January.
Q All right.
And what did you say to Mr. Semack and what did he
say to you?
A Well, I asked Mr. Semack why San Juan Freight
Forwarders cannot get any more bookings.
And he told me that he was being fined by the ILA,
and also that the LTL facilities or MTM were being
transferred to Port Elizabeth, and that we should contact
the management of PRMMI in order to get any equip-
ment.
531
[415] Q Did—
MR. EISENSTADT: Excuse me.
Equipment—
THE WITNESS: What I mean by equipment is con-
tainers.
Q And was anything else said during this conversa-
tion, do you remember?
A Not that I remember, sir.
Q Okay.
A That I remember.
Q And did you attempt to contact PRMMI at Port
Elizabeth and Mr. Semack had suggested?
A Yes, sir, I did.
Before I did contact PRMNI, I informed my boss, Mr.
Juan Santos, of the events.
Then I did contact PRMMI facilities of Mr. Joel Mc-
Gurr.
Q Do you know what his title is, if you can tell us?
A No. I don’t know.
Except—I don’t know exactly his title.
But I do know he was within the operation facilities.
Q Okay.
What did you say to Mr. McGurr and what did he say
to you?
JUDGE JALETTE: How do you spell McGurr, do you
know?
THE WITNESS: McGurr is spelled M-c-G-u-r-r.
[416] Q Will you tell us what you said—
A I asked Mr. McGurr if we could get any containers
from PRMMI.
At this time he informed me that the only way that
he could move our cargo will be in an LTL basis.
By this he meant, he said, that we will have to bring
our containers to their LTL facilities in Port Elizabeth
where they will be off-loaded by members of the ILA and
loaded by members of the ILA into the PRMMI con-
tainers.
Q What does off-loaded mean?
A It means the cargo that was in our container will
have to be taken off one container and put into another
container.
Se ee ee en eae Bed ae EP ee EN es
532
MR. CARUSO: Your Honor, may I have a point of
clarification.
When this witness uses the term “our contaiher’’, is he
referring to the ocean container or the trailer of a truck?
JUDGE JALETTE: Let me make sure I understand.
Did Mr. McGurr tell you that PRMMI would furnish
a container to you provided after you loaded it you
brought it to Port Elizabeth?
THE WITNESS: No, sir.
Mr. McGurr informed me that he will transport our
cargo if we brought it in to Port Elizabeth in our con-
tainers, [417] there they will be off-loaded from our con-
tainers and put into their containers.
JUDGE JALETTE: But you didn’t have any con-
tainers.
THE WITNESS: No, sir.
JUDGE JALETTE: Mr. McGurr—did he know you
had none?
THE WITNESS: Yes, sir.
MR. EISENSTADT: Your Honor, I think we are
back where we started.
He says from our containers into PRMMI containers.
Our containers, can we get a clarification of what our
—what work—
JUDGE JALETTE: He didn’t have any.
MR. EISENSTADT: What does “our containers”—
JUDGE JALETTE: He is just repeating what was
said.
BY MR. PORTNOY:
Q Now, would you tell us, did Mr. McGurr explain’ to
you how you were supposed to get containers?
A Yes, sir.
Soe said we are supposed to lease them from the out-
side.
Q From the outside. .
And did you in fact lease containers from the outside?
A Yes, we did.
Q From whom?
A From I.W. Leasing Company in New Jersey.
[418] JUDGE JALETTE: What was the name of the
company?
533
THE WITNESS: I.W. Leasing.
Q And could you tell us when you began leasing con-
tainers from I.W. Leasing Company?
A We started leasing containers from I.W. Leasing
around the 27th of January, 1975.
Q And what did you do with those containers that
were leased from I.W. Leasing?
A We brought—we load them with freight at our
terminal and deliver them to LTL terminal in Port Eliza-
beth belonging to PRMMI.
Q What happened to them there?
A They were off-loaded by ILA members and loaded
into PRMMI containers.
Q Were the containers that you obtained from I.W.
Leasing ocean containers or some other containers?
A They were actually seaworthy containers.
MR. CARUSO: Sorry.
Could that be repeated, the answer?
JUDGE JALETTE: They were seaworthy containers.
MR. CARUSO: Seaworthy.
Thank you.
BY MR. PORTNOY:
Q And I may be repeating myself, I beg your Honor’s
indulgence.
[419] But, how long did you lease these containers from
I.W. Leasing?
A We leased them from the latest part of January to
the latest part of May, 1975.
Q Now, in the latter part of May, 1975, what hap-
pened then?
A Then we decided to start shipping out of Jackson-
ville, Florida.
[420] A I inquired from Mr. Schulein the reason why
we were not being furnished containers.
Q And what did he say?
A He said that the reason why was because they were
being fined by the ILA for every container that was
loaded at a pier terminal by the consolidators.
* * * *
534
1422] Q You testified before that you were involved
in sales in New York?
A That’s correct.
Q And will you tell us, who did you solicit?
A We solicited on prospective shippers to Puerto Rico.
Q How did you go about it?
A The way in which San Juan Freight Forwarders
does it, we usually start it in Puerto Rico visiting the
buyer, and he will request a routing via San Juan Freight
Forwarders.
Q Did any ocean carrier help you to generate business
from your customers?
A No, sir.
Q Okay.
[428] Did you learn at that time or thereafter where
the LTL cargo came from or it eminated from?
A Yes.
Q Could you tell us from what locations that cargo
came?
A Well, it was explained to me that we will have to
generate the cargo and we will have to go out and sell
our services in order to obtain it.
[429] Q Yes, but until the point—let’s go back.
I realize the question might have been a little broad.
Let’s take the time of the orientation.
At that time did Mr. Juan Santos explain to you
where the cargo had been coming from?
MR. PORTNOY: Objection.
A The same—
JUDGE JALETTE: Overruled.
MR. EISENSTADT: Go ahead.
A It will be the same answer, sir.
Q Go ahead.
A Because, you know, he explained to me that it
wes up. to the—to us—to the sales people to generate
the cargo from different shippers.
* * * *
Q Was that—according to the information that was
conveyed to you was that—excuse me—was the cargo
535
being solicited in the U.S. as well as in Puerto Rico
generated as you put it?
[430] A Solicited as you put it, sir, would be done in
both places but mostly in Puerto Rico.
Q I see.
Where was it coming from in the U.S.? »
A All over the states.
Q Could you give us some locations?
A Well, we had—we still have freight coming from
Massachusetts, Chicago, Wisconsin, Ohio, New York, New
Jersey, Connecticut, Maryland, South Carolina, North
Carolina, Florida, Georgia, from all those points.
Q Now, cargo—let’s restrict ourselves at this point
to cargo coming—the cargo that eventually goes over the
docks in the Port of New York.
A Yes, sir.
Q Where does that cargo—from which of those loca-
tions that you just mentioned or others that you might
not have mentioned has cargo come that reached New
York?
A It actually again comes from all over the places—
it depends on the shipper, which way he chooses for his
land move.
It could be—he can route it to New York or route
it—now, at the present time the Baltimore Terminal re-
ceiving station or Jacksonville or Miami receiving sta-
tion.
Q Let me go back over my question because I don’t
[431] think it was fully understood.
Cargo coming into New York could come from where?
JUDGE JALETTE: He’s answered from all the
states he mentioned before it may come to New York.
Could it come from Massachusetts?
Yes, sir.
From Ohio?
Yes, sir.
From Chicago?
Yes, sir.
POPS PP
536
Q Now, how would that cargo come to you?
What form, would it come by motor carrier, in a con-
tainer or what form would it come?
A By any motor carrier with the exception of
Chicago, sir.
Q Would you explain what the exception is?
A The exception is the fact that we do have a re-
ceiving station in Chicago.
+ * * *
[436] Q Now, you said a short while ago that some
of the containers coming in were not full.
Where do these containers go?
A They were in our terminal to be finished—filling it
up and then they were sent to the pier as if it came
from the terminal in New York.
* * * *
[487] JUDGE JALETTE: So it is the Penn Indus-
tries that is doing your stuffing, as you described earlier?
THE WITNESS: Yes, sir.
* * * *
[439] Q How did the LTL cargo that was loaded into
containers at the premises which you described, how did
it get to the—to the Erie Lackawanna building?
A By motor carrier.
* * * *
[443] Q Mr. Santos, you mentioned that you were able
to get booking numbers from the ocean carriers, I be-
lieve Mr. Obrien, and from others.
When you pay those booking numbers, that entitled
you to obtain a container, is that right?
A That’s correct.
Q Did San Juan send somebody down to get those con-
tainers?
A My answer to this will have to be—actually San
Juan would have to call a motor carrier because the fact
is a motor carrier doesn’t know San Juan needs a truck.
537
But the motor carrier was—in fact, designated by
the ocean carriers because they were the ones that had
[444] the interchange contract with them, not us.
* * * *
CROSS EXAMINATION
[446] Q In the course of your direct testimony, Mr.
Santos, you stated that in the 1973-74 period there had
been a rehandling of containers at piers—taking out
of one, putting into another.
Do you still stand by that testimony?
A Yes.
Q When did this begin, as far as you can recall?
A I have no knowledge exactly when it began.
Q Within your own experience?
A Okay.
Within my own experience—the fact that I was work-
ing for San Juan Freight Forwarders, and I was in-
formed of most of the happenings and events of the
company, I was obviously aware of the fact that they
were stripped in New York even though I was in Puerto
Rico.
Q When it arrived—when a container arrived in —
Puerto Rico was there any manifestation of this?
[447] A Yes, sir, on the bill of lading that was
given to us by the steamship company in Puerto Rico
stated whether the container had been transferred or not.
Q When did you first see such a notation or marking
on a bill of lading?
A This would be in the* year 1973 when I was in
Puerto Rico.
Q Can you give us an approximate month?
A October, November, December.
Q Of 1973?
A Yes, sir.
Q Did this continue when you came to New York,
New Jersey area?
A Yes, sir.
Q_ All right.
And it persisted, is that right?
A That’s correct.
* & * as
538
[449] @Q My question is if you know it was going to
be restuffed, why did it go down to the pier in con-
tainers?
A We—we are paying the company to do the work
of loading our containers.
These people are paid for all the weight that moves
in our platform—in our platform.
We had the facilities, so we fill up the container and
send it to the pier.
The reason why we didn’t take it down as an LTL
is because the functions of San Juan Freight Forwarders
is to consolidate.
* * * -
[454] Q (By Mr. Eisenstadt) Mr. Santos, what are
the functions of a consolidator as far as San Juan is
concerned within your knowledge?
A The—our function would be to receive freight
from different shippers from different points and to con-
solidate it or merge it into one container and ship as one
shipment.
Q Now, you testified that you hired Penn Industries
to perform that function, correct?
A San Juan Freight Forwarders did.
Q San Juan Freight Forwarders, I didn’t mean you,
personally.
* * * a
[457] Q In addition to the stuffing of the containers
what functions do you perform for your customers for
handling the documentation with respect to the move-
ment of the LTL merchandise?
A San Juan Freight Forwarders as an NVO gives
the customers in the first place which we are very proud
of, sir, as the personalized service, we attend to their
needs in person.
Second, we give them a choice of handling the way of
payment, to be either paid by the consignee or the con-
signor.
Third, we deal with banks in Puerto Rico.
We accept the sight drafts and letters of credit.
And also we perform—we can give them exactly where
the freight is at within 30 minutes.
539
Q Okay.
As far as the handling of documentatior. involving
that goods, what do you do?
A I beg your pardon, sir?
Q The paper work involved, what paper work do you
perform?
A We issue the shipper a bill of lading.
[458] Q Do you make arrangements for the delivery
of the LTL to your premises or Penn’s premises here in
New York?
A No, sir.
Q Who handles that?
A That’s either done by the shipper or by—I guess—
I suppose the salesman from the motor carrier that
goes over there and solicits that freight.
[472] Q During what period of time was San Juan
dealing with MTM?
A MTM?
Q Yes.
A San Juan dealt with MTM from the fall of 1974.
Q Until?
A In other words, we acquired trailers from MTM I
would say September, October, November, December of
1974.
Q And how long did that continue?
A It continued—it lasted until the first part of
January.
Q Of 1975?
A That’s correct, sir.
[473] Q And after that point you were sent to
PRMMI, is that right?
A That’s correct.
Q At that point in time you were told—is that cor-
rect—that all LTL would be handled by PRMMI, is that
right?
A That’s correct.
* oa * *
[476] Q You mentioned there was a salesman in the—
in your offices on 28th, correct?
A Yes, sir.
540
You do some selling yourself, is that right?
Yes, sir.
PO PO
By all means, sir, phone, writing, personal contact.
* * * *
[478] Q The sales that are resolicited by purchasers
of your services that are solicited from your headquar-
ters, are they directed at persons within the metropolitan
New York-New Jersey area?
A Not necessarily, sir.
Q Where else would they be directed or are they
directed?
A Can you give me the original question first?
Q Where do you look for customers?
Where do you solicit customers?
A Well, all over the United States and Puerto Rico,
sir.
Q But including within the 50 miles of the Port of
New York?
A That’s including the port, sir.
Q Are these basically manufacturers?
A Not necessarily, sir.
Anybody that moves or ships or sails in the Puerto
Rico market.
JUDGE JALETTE: Manufacturers, jobbers, whole-
salers?
THE WITNESS: That’s correct, sir, anybody.
* * * *
[485] MR. CARUSO: I ask that these documents be
marked as Respondent’s NYSA Exhibit 2.
JUDGE JALETTE: What do they purport to be?
MR. CARUSO: These purport to be six bills of lading
on Sealand bills of lading forms indicating shipments by
San Juan Freight Forwarders, Inc. on board Sealand
vessels from the Port of New York to the Port of San
Juan, Puerto Rico.
These shipments took place at various times in calendar
years 1973 and 1974.
JUDGE JALETTE: Well, let’s mark them Respon-
dent NYSA 2A through F.
* * * *
te
How do you do the selling, by phone or in writing? .
541
[486] Q (By Mr. Caruso) I show you Respondent
NYSA Exhibit 2A through F.
I ask you whether you recognize them.
A Can you show me the dates on here, sir?
(Mr. Caruso indicates)
A Right.
Q I am just asking you whether you recognize the
documents.
A Just as a Sealand bill of lading showing the origi-
nal carriers—
Do you recognize them?
Yes, I do.
You do?
Yes.
Would you briefly identify them?
A Identify them as being from San Juan Freight
Forwarders.
JUDGE JALETTE: What are they?
Q What are they?
A Ocean bill of ladings.
Q Are these documents prepared by San Juan Freight
Forwarders?
MR. PORTNOY: Objection.
[487] What is the relevance of this?
MR. CARUSO: It goes to our deception defense, your
Honor.
JUDGE JALETTE: Make your offer of proof.
Mr. CARUSO: I offer these exhibits into evidence,
your Honor.
The witness if asked to identify then would identify
them as bills of lading for shipments by San Juan
Freight Forwarders aboard Sealand vessels during 1973
and 1974.
The witness would also testify that these documents
represent all of the containers moved by San Juan
Freight Forwarders on board Sealand vessels during
calendar years 1973 and 1974.
The witness would also testify that these bills of
lading were prepared by San Juan Freight Forwarders,
Inc.
And the witness would further testify that on each
bill of lading as reflected on each of the bills of lading,
© PO pO
yy”
542
the address or the origin of the container would be in-
dicated at—as Chicago, Illinois.
The witness would further testify that the containers
to which these bills of lading relate were either fully
loaded at San Juan Freight Forwarders Facility in New
York or partially loaded at that facility in New York
before [488] being trucked to the Sealand pier for load-
ing on board ship.
From this we would then show that San Juan Freight
Forwarders was engaging in deceptive devices indicating
that the origin of these shipments was outside the 50-
mile radius of Port of New York in order to avoid cer-
tain contractual provisions that were in effect in the
Port of New York in the collective bargaining agree-
ments between New York Shipping Association and In-
ternational Longshoremen’s Association.
JUDGE JALETTE: Your objection to your examina-
tion is sustained and respondent Exhibits 2A through F
are rejected.
They may go into the rejected exhibit file.
* * * *
[490] Q Yet you also testified that this first occurred
in October 1973, almost—more than six months after
this orientation period.
Can you explain how Mr. Santos knew of the stuffing
and stripping if it had not been done already?
A I believe my answer was during the year 1973.
Q When were you first made aware of the stuffing
and stripping that was occurring at the piers in the port
of New York?
A The fact is, you know, when you are employed in
a company you go through a training program any com-
pany will do that.
My position in Puerto Rico was as a salesman.
Later in 1973 I started being trained to be—to be-
come—to come to New York.
Late 1973 when I was informed of the problems that
I would have to cope with in New York—
Q When were you informed?
A First part of 1974.
543
But by that time I was aware of the fact that in 1973,
latter part of 1973, we were being rehandled at the
[491] pier.
And in—prior to September 1, 1974 I take it that
all of the San Juan shipments were being—that were
destined for Puerto Rico were being moved through the
Port of New York, is that correct?
A That’s correct.
Q And this would be true whether the cargo within
these shipments originated in Chicago or Baltimore or
Ohio or where-have you?
A At that time they were all moving out of the Port
of New York, yes, sir.
Q If a container that was fully or partially loaded
at your facility within the area of the Port of New York,
namely on the west side of Manhattan, West 28th Street,
if that container was trucked to the pier, would the
documentation that accompanied that trailer indicate
San Juan’s address was 601 West 28th Street?
MR. PORTNOY: Objection.
JUDGE JALETTE: Sustained.
MR. CARUSO: May I make an offer?
JUDGE JALETTE: Yes.
MR. CARUSO: I would offer that if I were per-
mitted to answer that question and a series of questions
thereafter, that this witness would testify that it was
the practice of San Juan Freight Forwarders to indicate
that all [492] shipments moved by San Juan Freight
Forwarders regardless of the ocean carrier that was
being used whether it was Sealand, Seatrain or TTT
that all of these shipments would have been shown to
have originated outside the 50-mile radius of the Port of
New York, namely at San Juan’s facility in Chicago,
Illinois.
JUDGE JALETTE: Your offer of proof is rejected.
Q Beginning in October 1973 you testified that the
shipments of San Juan were being stuffed and stripped
at the piers, is that right?
MR. PORTNOY: Objection.
He’s misquoted the witness’ testimony.
JUDGE JALETTE: Restate the question.
, RO PO Oa an ae Et EE ee eT OTS TO NR NLT ON ETOCS PRE EIT NTE eo er) ee
544
Q You testified beginning October of 1973 the ship-
ments of San Juan Freight Forwarders were being
stuffed and stripped at pier facilities by ILA longshore-
men, is that right?
A Yes, sir.
Q What pier facilities are we referring to?
A To the pier facilities of the ones I had knowledge
of was the Staten Island facilities of the Port of New
York.
[496] Q Were you told by Mr. Santos of any conver-
sations he had with TTT officials in—relating to the
period May 1, 1974 to September 1, 1974?
MR. PORTNOY: Objection.
JUDGE JALETTE: Sustained.
Q On September 1, 1974 is it a fact that the Puerto
Rican Maritime Shipping Authority purchased all of the
vessels and equipment of the then carriers in the Puerto
Rican trade, namely Seatrain, Sealand and TTT?
A Itis a known fact, sir.
Q And from that date until at least March 1975 the
only carrier—the only ocean carrier in the New York
to Puerto Rican trade was PRMSA, is that correct?
A Yes, sir.
Q Were you aware that PRMSA filed a tariff be-
ginning with the initiation of its service in the New York
Puerto Rican trade which contained some of the pro-
visions of the collective bargaining agreement between
New York Shipping Association and International Long-
shoremen’s Association?
MR. PORTNOY: Objection.
JUDGE JALETTE: Sustained.
* * * *
[515] JUAN SANTOS
having been first duly sworn, was examined and testi-
fied [516] as follows:
* * * *
DIRECT EXAMINATION
Q What—Mr. Santos, are you an officer in San Juan
Freight Forwarding, Inc.?
A Yes.
545
What office do you hold?
President of San Juan Freight Forwarders. .
When was San Juan Freight Forwarders formed?
San Juan Freight Forwarders was formed in 1972,
May 1972.
PO PO
* * * *
[522] Q In the 1972-1973 period which Mr. Victor
Santos picks up, did San Juan Freight Forwarding ob-
tain its containers independently or from ocean car-
riers—its containers meaning containers which it had
stuffed?
A From ocean carriers.
Q Could you identify those ocean carriers?
A Yes.
Transamerican Trailer Transport, called TTT, giving
us the empty containers.
Q All of them?
A Yes, sir.
Q When PRMSA—are you aware that there came a
point when PRMSA was formed to handle the Puerto
Rican trade, ocean-going trade?
A Correct.
Q Did PRMSA ever furnish containers to your firm?
A No.
Q Who did, what entity did?
A MTM or PRMMI.
Q You are aware of the relationship between PRMSA
and MTM and PRMMI?
A Yes, sir, they were the management group of
PRMSA.
Q Dol gather then that MTM and PRMMI furnished
containers to San Juan?
A That’s correct.
546
GENERAL COUNSEL’S EXHIBIT No. 3
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR
RELATIONS BOARD
REGION 2
Cases Nos. 2-CC-1364, 2-CE-75, 2-CC-1365
INTERNATIONAL LONGSHOREMEN’S ASSOCIATON
and NEW YORK SHIPPING ASSOCIATION, INC.
and
DOLPHIN FORWARDING, INC.
and
SAN JUAN FREIGHT FORWARDERS, INC.
STIPULATION
IT IS HEREBY STIPULATED AND AGREED by
the undersigned that:
1. Respondents ILA and NYSA admit the allegations
contained in paragraphs 1(a) through (c), 2(a) through
(e), 5, 14, 17, 18, 23(b) through (e), 24, and 25(c)
of the Order Consolidating Cases, Consolidated Com-
plaint and Notice of Hearing dated March 10, 1976
(hereinafter Complaint) and the Order Amending Com-
plaint dated June 23, 1977.
2.(a) Puerto Rico Maritime Shipping Authority,
hereinafter called PRMSA, is, and has been at all times
material herein, an instrumentality duly organized un-
der, and existing by virtue of the laws of the Common-
wealth of Puerto Rico.
(b) At all times material herein, PRMSA has main-
tained an office and place of business at 1 World Trade
Center, in the City and State of New York and in the
Commonwealth of Puerto Rico, where it has at all times
material herein owned certain facilities and vessels which
547
carried cargo in commerce between states of the United
States and the Commonwealth of Puerto Rico.
(c) During the year 1974, which period is representa-
tive of its annual operations generally, PRMSA, in the
course and conduct of its operation, derived gross reve-
nues therefrom in excess of $500,000, of which in excess
of $50,000 was derived from its operations referred to
above in subparagraph 2(b).
(d) At all times material herein PRMSA has been
a member of NYSA.
(e) At all times material herein PRMSA has been a
person engaged in commerce and in an industry af-
fecting commerce within the meaning of Sections 2(1),
(6) and (7) and 8(b) (4) (B) and 8(e) of the Act.
3.(a) Maritime Transportation Management, Inc., of
Puerto Rico, hereinafter called MTM is, and has been
at all times material herein, a corporation with its prin-
cipal office and place of busines at 358 St. Marks Place,
Staten Island, in the City and State of New York, and at
Pier C, New Port Development area, Puerto Rico, where
it is, and has at all times material herein continuously
managed and operated vessels owned by PRMSA in the
Puerto Rican maritime trade pursuant to a contract be-
tween them.
(b) During the year 1974, which period is repre-
sentative of its annual operations generally, MTM, in
the course and conduct of its operations, derived gross
revenues therefrom in excess of $500,000, of which in
excess of $50,000 was derived from. its operations in
interestate commerce directly from the State of New
York to the Commonwealth of Puerto Rico.
(c) At all times material herein, MTM has been a
member of NYSA.
4.(a) Transamerican Trailer Transport, Inc., herein-
after called TTT, is, and has been at all times material
herein, a corporation with its principal office and place
of business at 358 St. Marks Place, Staten Island, in
the City and State of New York, and at Pier C, New
Port Development area, Puerto Rico Nueyo, in the Com-
monwealth of Puerto Rico where it is and has been
at all times material herein, continuously engaged in
business as a cargo carrier in commerce between States
of the United States and foreign countries.
PE ISR ET TOO RN, So RE een ene ee
548
(b) During the year 1974, which period is representa-
tive of its annual operations generally, TTT, in the course
and conduct of its operations, derived gross revenues
therefrom in excess of $50,000, for the transportation
of cargo directly in interstate and foreign commerce.
(c) At all times material herein, TTT has been a
member of NYSA.
5.(a) Puerto Rico Marine Management, Inc., herein-
after called PRMMI, is, and has been at all times ma-
terial herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Delaware.
(b) At all times material herein, PRMMI has main-
tained its principal office and place of business at Fleet &
Corbin Streets, P.O. Box 1910, in the City of Elizabeth,
and State of New Jersey, where it is, and has at all
times material herein, continuously managed and oper-
ated vessels owned by PRMSA in the Puerto Rican
maritime trade pursuant to a contract between them.
(c) During the year 1974, which period is representa-
tive of its annual operations generally, PRMMI, in the
course and conduct of its operations, derived gross reve-
nues therefrom in excess of $500,000, of which in excess
of $50,000 was derived from its operations in interstate
commerce directly from the State of New York to the
Commonwealth of Puerto Rico.
5.(d) At all times material herein, PRMMI has been
a member of NYSA.
6.(a) Dolphin is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of Massachusetts.
(b) At all times material herein, Dolphin has main-
tained its principal office and place of business at One
Mayflower Drive, in the City of Hanover, and State of
Massachusetts, where it is, and has been at all times
material herein, continuously engaged in providing serv-
ices for its customers as a non-vessel operating common
carrier, hereinafter NVO, utilizing containers for effect-
ing shipments thereof by ocean going vessels, and clas-
sified as such by the Federal Maritime Commission,
hereinafter FMC.
549
(c) During the year 1974, which period is representa-
tive of its annual operations generally, Dolphin, in the
course and conduct of its operations, derived gross
revenues therefrom in excess of $500,000, of which in
excess of $50,000 was derived from shipments in inter-
state commerce directly from various states of the United
States to the Commonwealth of Fuerto Rico.
7.(a) San Juan is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the Commonwealth of Puerto
Rico.
(b) At all times material herein, San Juan has main-
tained its principal office and place of business at 601
West 28th Street, in the City and State of New York,
where it is, and has been at all times material herein,
continuously engaged in providing services for its cus-
tomers as an NVO utilizing containers from effecting
shipments thereof by ocean going vessels and classified
as such by the FMC.
(c) During the year 1974, which period is repre-
sentative of its annual operations generally, San Juan,
in the course and conduct of its operations, derived gross
revenues therefrom in excess of $500,000, of which in
excess of $50,000 was derived from shipments in inter-
state commerce directly from various states of the United
States to the Commonwealth of Puerto Rico.
8.(a) Penn Industries, Incorporated, hereinafter called
Penn, is and has been at all times material herein, a
corporation duly organized under, and existing by virtue
of the laws of the State of New York.
(b) At all times material herein, Penn has maintained
its principal office and place of business at 186 East 57th
Street, in the City and State of New York, where it is,
and has been at all times material herein, continuously
engaged in the business of leading and discharging (un-
loading) containers for nonvessel common carriers.
(c) During the year 1974, which period is representa-
tive of its annual operations generally, Penn, in the
course and conduct of its operations within the State of
New York, derived gross revenues therefrom in excess
of $100,000 for services which were performed pursuant
to contract and arrangements with, and as agent for
various interstate common carriers including, inter alia,
550
San Juan, which operated between and among various
states of the United States and the Commonwealth of
Puerto Rico.
9. MTM, PRMMI, TTT, San Juan, Dolphin and Penn
are, and have been at all times material herein, persons
and employers engaged in commerce and in an industry
affecting commerce within the meaning of Sections 2(1),
(2), (6) and (7) and Section 8(e) and Section 8 (b) (4)
of the Act.
10. Annexed hereto and made a part of this Stipula-
tion are letters from the Fund to TTT described in
paragraph 24(a) of the Complaint, which letters have
been marked Exhibits A through E. They shall be ad-
mitted in evidence.
11. Annexed hereto and made a part of this Stipula-
tion are minutes of a meeting of the Contract Board
dated July 10, 1975 relating to the fines and assessments
described in paragraphs 24(a) and (b) of the Complaint,
which minutes have been marked Exhibit F. It shall be
admitted in evidence.
12. Annexed hereto and made a part of this Stipula-
tion is a letter from MTM to Dolphin dated February 21,
1975 described in paragraph 25(d) of the Complaint,
which has been marked Exhibit G. It shall be admitted
in evidence.
13. Annexed hereto and made a part of this Stipula-
tion is an invoice from Dolphin dated August 29, 1975
described in paragraph 25(e) of the Complaint, which
invoice has been marked Exhibit H. It shall be admitted
in evidence.
14. Annexed hereto and made a part of this Stipula-
tion is an agreement betwen ILA and CONASA dated
June 21, 1974, (hereinafter referred to as the yellow
agreement) which agreement has been marked Exhibit I.
It shall be admitted in evidence.
15. Annexed hereto and made a part of this Stipula-
tion is an agreement between ILA and CONASA dated
May 30, 1975 (hereinafter referred to as the blue agree-
ment) described in paragraph 20 of the Complaint, which
agreement has been marked Exhibit J. It shall be ad-
mitted in evidence.
16. Annexed hereto and made a part of this Stipula-
tion are the Findings of Fact and Conclusions of Law
551
dated September 18, 195 and an Order dated Septem-
ber 18, 1975 in 75 Civ. 4027, by Judge MacMahon of
the United States District Court for the Southern Dis-
trict of New York, which are marked Exhibits K and L
respectively. They shall be admitted in evidence.
17. Annexed hereto and made a part of this Stipula-
tion is a decision issued by Charles E. Morgan, Adrain-
istrative Law Judge of the Federal Maritime Commis-
sion dated October 9, 1975, which is marked Exhibit M.
It shall be admitted in evidence.
18. Annexed hereto and made a part of this Stipula-
tion is an agreement betwen Penn Industries, Inc. and
Local 976, ILA dated January 1, 1973, which is marked
Exhibit N. It shall be admitted in evidence.
This Stipulation shall be part of the record in the hear-
ing in this case and findings may be made on the basis
of this Stipulation and the facts herein set forth. How-
ever, this Stipulation is entered into without prejudice
to the right of any party to object at the hearing to the
admission in evidence of any document or record referred
to in this Stipulation on any ground other than authen-
ticity and of any fact on the grounds of irrelevancy or
immateriality and without prejudice to the right of any
party hereto to introduce additional evidence material
to the issues in this case whether or not such issues are
dealt with or otherwise touched upon by the Stipulation.
New York, New York
ee et OR OS ee ee ee ee ee eh eee eae ee ee eee ee ee
Date Counsel for the General Counsel
National Labor Relations Board
Se ee ee Pe RS ee ae se ee ae ee eee See COE Eee 6 6 BS So
Date Counsel for New York Shipping
Association, Inc.
Meee International Longshoremen’s
Association
ae le Counsel for Dolphin Forwarding, Inc.
and
San Juan Freight Forwarders, Inc.
552
EXHIBIT A
NYSA-ILA CONTAINER ROYALTY FUND
80 Broad Street
New York, N.Y. 10004
(212) 943-2740
August 27, 1974
Transamerican Trailer Transport, Inc.
358 St. Marks Place
Staten Island, New York 10301
Attention: Mr. Peter A. Holzer
President
Gentlemen:
Please be advised that the following numbered containers
were witnessed at a consolidation or a distribution sta-
tion by a Fund Investigator:
Container Number Place Date
RTTZ 790204 Port Motor Lines August 5, 1974
125 Enterprise Ave. So.
Secaucus, N.J. :
RTTZ 790534 West Transfer Co. August 12, 1974
‘Pier 79, N. R.
New York, N.Y.
RTTZ 790273 Colella Bros. Tkg. August 12, 1974
645 E. 13th St., New York, N.Y.
RTTZ 790173 Passaic Terminal Warehouse August 12, 1974
600 Washington Avenue
Carlstadt, New Jersey
RTTZ 709763 San Juan Forwarding August 14, 1974
601 W. 28th St., New York, N.Y.
RTTZ 790670 Colella Bros. August 19, 1974
645 E. 13th St., New York, N.Y.
In accordance with the CONASA-ILA Container Rules,
and the “Enforcement of Rules on Containers”, it has
been determined that each of these containers constitutes
a violation. Therefore, the NYSA-ILA Container Royalty
553
Fund has assessed liquidated damages against each con-
tainer in the amount of $1,000.00.
Please remit your check in the amount of $6,000.00 to
the order of the NYSA-ILA Container Royalty Fund.
Very truly yours
/s/ Mary Townsend
MARY TOWNSEND
Executive Secretary
CR ee ee ee nn eee ey ee
554 555
EXHIBIT B Fund has assessed liquidated damages against each con-
tainer in the amount of $1,000.00.
NYSA-ILA CONTAINER ROYALTY FUND Please remit your check in the amount of $6,000.00 to
80 Broad Street the order of the NYSA-ILA Container Royalty Fund.
New York, N.Y. 10004
(212) 943-2740 Very truly yours
September 10, 1974 /s/ Mary Townsend
, MARY TOWNSEND
Transamerican Trailer Transport, Inc. Executive Secretary
358 St. Marks Place.
Staten Island, New York 10301
Attention: Mr. Peter A. Holzer
President
Gentlemen:
Please be advised that the following numbered containers
were witnessed at a consolidation or a distrbiution sta-
tion by a Fund Investigator:
Container Number Location Date
RTTZ 301096 Passaic Terminal Warehouse August 23, 1974
600 Washington Ave.
Carlstadt, N.J.
RTTZ 705091 International Container Express August 23, 1974
86 Oak St.
E. Rutherford, N.J.
RTTZ 790155 Passaic Terminal Warehouse August 26, 1974
600 Washington St.
Carlstadt, N.J.
TTTZ 281168 Burgmeyer Trucking August 28, 1974
10 Water St., Jersey City, N.J.
TTTZ 281044 7 “2 5 C August 28, 1974
TTTZ 281047 Passaic Terminal Whse. August 28, 1974
600 Washington Ave.
Carlstadt, N.J.
In accordance with the CONASA-ILA Container Rules,
and the “Enforcement of Rules on Containers’, it has
been determined that each of these containers constitutes
a violation. Therefore, the NYSA-ILA Container Royalty
556
EXHIBIT C
NYSA-ILA CONTAINER ROYALTY FUND
80 Broad Street
New York, N.Y. 10004 ©
(212) 943-2740
September 23, 1974
Transamerican Trailer Transport, Inc.
358 St. Marks Place
Staten Island, New York 10301
Attention: Mr. Peter A. Holzer
President
Gentlemen:
Please be advised that the following numbered containers
were witnessed at a consolidation or a distribution sta-
tion by a Fund Investigator:
Container No. Location Date
TTTZ 281557 World Warehouse September 6, 1974
Bldg. #3, Bklyn. Navy Yard
Brooklyn, New York
TTTZ 281290 Farrara Bros. September 9, 1974
525 West 24th St.
New York, New York
TTTZ 281252 World Warehouse September 10, 1974
Bldg. #3, Bklyn, Navy Yard
Brooklyn, New York
RTTZ 790126 a * September 10, 1974
TTTZ 281465 Coella Bros. September 12, 1974
645 East 13th Street
New York, New York
RTTZ 281116 Passaic Terminal Whse. September 13, 1974
600 Washington Avenue
Carlstadt, New Jersey
RTTZ 790376 _ a September 13, 1974
TTTZ 790136 Ferrara Bros. Tkg. September 16, 1974
525 W. 24th St., New York, N.Y.
RTTZ 790063 San Juan Forwarding September 18, 1974
601 W. 28th St., New York, N.Y.
RTTZ 790397 World Warehouse September 19, 1974
Bldg. 3, Bklyn Navy Yard
Brooklyn, N.Y.
557
In accordance with the CONASA-ILA Container Rules,
and the “Enforcement of Rules on Containers”, it has
been determined that each of these containers constitutes
a violation. Therefore, the NYSA-ILA Container Royalty
Fund has assessed liquidated damages against each con-
tainer in the amount of $1,000.00.
Please remit your check in the amount of $10,000.00 to
the order of the NYSA-ILA Container Royalty Fund.
Very truly yours
/s/ Mary Townsend
MARY TOWNSEND
Executive Secretary
558
EXHIBIT D
NYSA-ILA CONTAINER ROYALTY FUND
80 Broad Street
New York, N.Y. 10004
(212) 943-2740
October 2, 1974
Transamerican Trailer Transport, Inc.
358 St. Marks Place
Staten Island, New York 10301
Attention: Mr. Peter A. Holzer
President
Gentlemen:
Please be advised that the following numbered containers
were witnessed at a consolidation or a distribution sta-
tion by a Fund Investigator:
Container No. Location Date
RTTZ 790533 Passaic Terminal Warehouse September 25, 1974
600 Washington Ave.
Carlstadt, N.J.
RTTZ 790401 sy * September 25, 1974
TTTZ 790198 Ferrara Bros. September 30, 1974
525 West 24th Street
New York, N.Y.
RTTZ 790348 Passaic Terminal Warehouse September 30, 1974
600 Washington Ave.
Carlstadt, N.J.
RTTZ 790008 ss * September 30, 1974
In accordance with the CONASA-ILA Container Rules,
and the “Enforcement of Rules on Containers”, it has
been determined that each of these containers constitutes
a violation. Therefore, the NYSA-ILA Container Royalty
Fund has assessed liquidated damages against each con-
tainer in the amount of $1,000.00.
559
Please remit your check in the amount of $5,000.00 to the
order of the NYSA-ILA Container Royalty Fund.
Very truly yours,
/8/ Mary Townsend
MARY TOWNSEND
Executive Secretary
560
EXHIBIT E
NYSA-ILA CONTAINER ROYALTY FUND
80 Broad Street
New York, N.Y. 10004
(212) 943-2740
October 17, 1974
Transamerican Trailer Transport, Inc.
358 St. Marks Place
Staten Island, N.Y. 10301
Attention: Mr. Peter A. Holtzer
President
Gentlemen:
Please be advised that the following numbered con-
tainers were witnessed at a consolidation or a distribu-
tion station by a Fund Investigator:
Container No. Location Date
RTTZ 790284 Dyna Trans—Shed 192 Oct. 2, 1974
Port Newark, New Jersey
RTTZ 281486 Passaic Term. Whse. Oct. 2, 1974
600 Washington Ave.
Carlstadt, N.J.
RTTZ 790376 + . = Oct. 2, 1974
RTTZ 790052 “3 m Oct. 2, 1974
RTTZ 790218 Facility Warehouse Oct. 4, 1974
70-72 Laight Street
New York, New York
RTTZ 790167 Ferrara Bros. Tkg. Oct. 10, 1974
525 W. 24th Street
New York, New York
In accordance with the CONASA-ILA Container Rules,
it has been determined that each of these containers
constitutes a violation. Therefore, the NYSA-ILA Con-
tainer Royalty Fund has assessed liquidated damages
against each container in the amount of $1,000.00.
561
Please remit your check in the amount of $6,000.00 to
the order of the NYSA-ILA Container Royalty Fund.
Very truly yours,
/8/ Mary Townsend
MARY TOWNSEND
Executive Secretary
ec: Mr. Paul Semack
562
EXHIBIT F
MEMORANDUM TO ALL MEMBERS OF
THE NYSA-ILA CONTRACT BOARD:
RE: Transamerican Trailer
Transport, Inc. Hearing
July 10, 1975
On Thursday, July 10, 1975, the undersigned met
with Mr. Paul Semack, Senior Vice President, Trans-
american Trailer Transport, Inc., to consider alleged
violations of the Rules on Containers.
At the start of the meeting, Mr. Semack handed over
two checks—one issued by Transamerican Trailer Trans-
port, Inc. in the amount of $10,000., and another issued
by Maritime Transportation Management, Inc. of Puerto
Rico in the amount of $4,000. covering certain contain-
ers deemed to be in VIOLATION at the previous meeting
held January 28, 1975.
The containers covered are as follows:
(Transamerican Trailer Transport Inc. Check #9555- in amount
of $10,000)
RTTZ 790173 RTTZ 281116
RTTZ 709763 RTTZ 790376
RTTZ 705091 RTTZ 790533
RTTZ 790155 RTTZ 790401
TTTZ 281047 RTTZ 790348
(Maritime Transportation Management, Inc. of Puerto Rico—
in amount of $4,000)
RTTZ 790008 RTTZ 790376
RTTZ 281486 RTTZ 790052
At the January 23, 1975 meeting several containers
were placed in the HOLD category pending receipt of
warehouse receipts. Mr. Nicholas informed Mr. Semacx
that since the 30 day extension has long expired, these
containers would have to be considered violations.
At this point Mr. Semack stated that he knew nothing
about a “30 day extension’’.
Mr. Nicholas then proceeded to advise Mr. Semack that
with respect to any items deemed to be in violation of
the Rules, a company is given days in which to appeal
ee ee ee ee
563
such rulings. However, Mr. Semack was further in-
formed that if TTT were unable to submit any required
or additional information in the 30 days, the finding of
a Violation would stand since the Board had decided that
no more than one 30 days extension would be given in
which to submit missing documentation.
Mr. Nicholas then reviewed the following items held
from the January 23, 1975 and August 28, 1974 meetings
(see Attachment “A’’:
TTTZ 281557—HOLD
TTTZ 281252—HOLD
RTTZ 790126—HOLD
RTTZ 790397—HOLD
RTTZ 790284—VIOLATION
RTTZ 796244—HOLD
RTTZ 207911—HOLD
*RTTZ 790057—HOLD
RTTZ 790057—HOLD
RTTZ 790057—HOLD
RTTZ 790349—HOLD
RTTZ 790007—HOLD
RTTZ 790273—NO VIOLATION
RTTZ 790670—NO VIOLATION
TTTZ 281465—NO VIOLATION
TTTZ 790136—NO VIOLATION
TTTZ 790198—VIOLATION
RTTZ 790167—VIOLATION
With regard to the three violations noted against
Containers Nos. RTTZ 790284, TTTZ 790198 and RTTZ
790167, there is no further appeal available to the
carrier.
With regard to the 41 containers scheduled for review
today (see Attachment “B”) Mr. Semack advised that
he was unable, at this time, to submit any documenta-
tion thereon.
Mr. Nicholas advised Mr. Semack that he would be
granted 30 days in which to supply the necessary docu-
mentation. If, no documentation is supplied by Au-
gust 11, 1975, these containers are to be considered in
Violation of the Rules and the Container Royalty Fund
will expect payment on all open items.
Must submit warehouse
receipts within 30
days
—_—“N ’ WS
If TTT can submit documentation
proving these were Northbound
shipments—No Violation;
if Southbound—Violation
Nee ee Se
* Three (3) separate movements.
564
NYSA-ILA ATTACHMENT “A”
CONTRACT BOARD
80 Broad Street
New York, N. Y. 10004
TRANSAMERICAN TRAILER TRANSPORT
At the January 23, 1975 meeting with Mr. Semack,
the following items were placed in the “Hold” eategory
pending warehouse receipts:
TTTZ 281557 World Whse. observed 9/6/74—our letter 9/23/74
Matsushita Electric—Northbound
TTTZ 281252 World Whse. observed 9/10/74—our letter 9/23/74
RTTZ 790126 World Whse. observed 9/10/74—our letter 9/23/74
RTTZ 790397 World Whse. observed 9/19/74—our letter 9/23/74
RTTZ 790284 Dyna Trans—observed 10/2/74—our letter 10/17/74
Shed #192 (Question of Manufacturer’s Label which
was referred to the full Board)
Items held open from the August 28, 1974 meeting,
reviewed at the January 23, 1975 meeting, referred to
the full Board Re Manufacturer’s Label. However, Mr.
Nicholas was requested to Furnish his recommendation.
RTTZ 790244 Dyna Trans observed 12/10/73—our letter 2/5/74
(Domel)
RTTZ 207911 Dyna Trans Co. observed 1/22/74—our letter 3/8/74
RTTZ 790057 Dyna Trans Co. observed 3/20/74—our letter 4/22/74
RTTZ 790057 Dyna Trans Co. observed 4/9/74—our letter 4/22/74
RTTZ 790057 Dyna Trans Co. observed 5/14/74—our letter 6/14/74
RTTZ 790349 Dyna Trans Co. observed 5/31/74—our letter 6/14/74
RTTZ 790007 Dyna Trans Co. observed 6/20/74—our letter 6/28/74
The following items were determined to be VIOLA-
TIONS REMIT. At the January 238, 1975 meeting, the
Committee concurred that they would discuss the matter
further and advise Mr. Semack of their decision at an
early date. However, no liquidated damages would be
assessed as to past violations.
RTTZ 790273-Colella Bros.-observed 8/12/74-our letter 8/27/74
RTTZ 790670-Colella Bros.-observed 8/19/74-our letter 8/27/74
RTTZ 281465-Colella Bros.-observed 9/12/74-our letter 9/23-74
TTTZ 790136-Colella Bros.-observed 9/16/74-our letter 9/23/74
TTTZ 790198-Ferrara Bros.-observed 9/39/74-our letter 10/2/74
RTTZ 790167-Ferrara Bros.-observed 10/10/74-our letter 10/17/74
ne eee ee ee ee a eee
565
EXHIBIT G
MARITIME TRANSPORTATION MANAGEMENT,
INC. OF PUERTO RICO
358 St. Marks Place, Staten Island, New York 10301
Telephone: (212) 447-2600 @ Cable: TOTEM
February 21, 1975
Mr. Richard Lee
Dolphin Freight Forwarding
P. O. Box 76
Hanover, Massachusetts
RE: Trailer RTTZ 790052 EKH Voy. 78-7 B/L 3175
” —_ RTTZ 790348 PDL Voy. 79-9 B/L 3212
» TT TZ 281486 EKH Voy. 79-1 B/L 3175
” — RTTZ 790376 EKH Voy. 78-7 B/L 3176
RE: Tariff FMC F No. 1 of Puerto Rico Maritime
Shipping Authority
Original Page 123—Tariff Rule E of Rule 440
Dear Mr. Lee:
On January 23, 1975, meeting was held in the offices of
the New York Shipping Association, Inc. with the Con-
tract Administration Officer and other members of the
NYSA/ILA Royalty Fund as concerns violations of the
NYSA/ILA Rules on Containers as articulated in the
current ILA Labor Contact in effect in the Port of New
York.
Through its Fund Investigators, subject trailers were
discovered to be in violation of the Rules on Containers.
As such, MTM was assessed liquidated damages of $1000
per trailer.
Accordingly, I have enclosed our invoice MTM 141-75
billing Dolphin Forwarding the amount of these liqui-
566
dated damages in accordance with our tariff in effect at
the time.
Very truly yours,
/s/ Paul Semack
PAUL SEMACK
PS :ph
Encl.
ec: Mr. E. Sheppard—Morgan, Lewis, Bockius
Mr. R. Guevada—Director of Operations—PRMSA
Mr. R. Lugo—President MTM
Mr. M. Massaro—Revenue Auditor
567
MARITIME TRANSPORTATION MANAGEMENT,
INC. OF PUERTO RICO
358 St. Marks Place, Staten Island, New York 10301
Telephone: (212) 447-2600
—INVOICE—
No. MTM-141-75
Date: 2/21/75
Dolphin Forwarding
P.O. Box 76
Hanover, Mass.
Amount Total
Violation of Conasa-ILA rules on containers,
as per attached Puerto Rican Maritime Ship-
ping Authority Tariff FMC F No. 1
Four trailer @ $1,000.00 per trailer
TRL # RTTZ 790052 @ $1,000.00 $1,000.00
RTTZ 790348 @ $1,000.00 1,000.00
RTTZ 281486 @ $1,000.00 1,000.00
RTTZ 790376 @ $1,000.00 1,000.00
TOTAL $4,000.00
PAY THIS AMOUNT $4,000.00
TRANSAMERICAN TRAILER TRANSPORT, INC.
JANUARY 23, 1975
List Container Our
Nos. Numbers Location Letter Comments
26 RTTZ 790348 Passaic Term. Whse. 10/2/74 VIOLATION
29 RTTZ. 281486 Passaic Term. Whse. 10/17/74 VIOLATION
—(Dolphin)
30 RTTZ 790376 “ ™ 58 10/17/74 VIOLATION
—(Dolphin)
31 RTTZ 790052 “ 2 10/17/74 VIOLATION
—(Dolphin)
568
MARITIME TRANSPORTATION MANAGEMENT,
INC. OF PUERTO RICO
358 St. Marks Place, Staten Island, New York 10301
Telephone: (212) 447-2600)
INVOICE
No. MTM 595
Date: 8/29/75
Dolphin Forwarding
P. O. Box 76
Hanover, Mass.
To charge you for container violations per rule
8(c) of PRMSA Tariff No. 1 FMC-F No. 1 Page
124 at the rate of $1,000.00 per container as
follows:
Was observed at the On
Container No. loading platform of: (Date)
RTTZ 790179 Passaic Term. Whse. 10/16/74
RTTZ 790364 600 Washington Ave. 10/21/74
RTTZ 790662 Carlstadt, N.J. 10/21/74
RTTZ 200463 my 11/13/74
RTTZ 790446 ” 11/18/74
RTTZ 790444 “ 12/10/74
TTTZ 281088 a 11/20/74
7 containers @ $1,000.00 per container = $7,000.00 $7,000.00
Please
Remit
ee
569
[FILE Exec. Sec. 0]
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD—REGION 2
Cases Nos. 2-CC-1364, 2-CC-1365, 2-CE-75
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION & NEW YORK SHIPPING
ASSOCIATION, INC.
and
DOLPHIN FORWARDING, INC.
and
SAN JUAN FREIGHT FORWARDERS, INC.
STIPULATION
WHEREAS, International Longshoremen’s Associa-
tion, (herein called ILA), New York Shipping Associa-
tion, Inc., (herein called NYSA), Dolphin Forwarding,
Inc. and San Juan Freight Forwarders, Inc. (herein
called the Charging Parties), and the General Counsel
of the National Labor Relations Board, (herein called
the General Counsel), being all of the parties to this
proceeding, desire to petition the National Labor Rela-
tions Board, in order to effectuate the purposes of the
National Labor Relations Act, 29 U.S.C. Section 151,
et seq., (herein called the Act), and to avoid all unneces-
sary costs and delay, to exercise its powers under Section
102.50 of the Rules and Regulations of the Board, Series
8, as amended, (herein called the Rules), to transfer this
proceeding to the Board; and
WHEREAS, pursuant to a Consolidated Complaint
and Notice of Hearing and an Order Amending Com-
plaint, a hearing was held, the testimony of certain wit-
570
nesses was taken, and exhibits were introduced into
evidence, and other testimony, offers of proof and ex-
hibits were proffered by the ILA and NYSA and other
exhibits by the General Counsel, which were rejected by
the Administrative Law Judge and placed in the rejected
exhibits file.
NOW, THEREFORE, IT HEREBY IS STIPULATED
by and between the parties herein as follows:
1. The parties hereby acknowledge receipt and due
service of the Charges, the Consolidated Complaint, the
Order Amending Complaint, the Notice of Hearing, the
Order Extending Time to Answer, ILA’s and NYSA’s
Answers and Amended Answers, and Orders Resched-
uling Hearing.
2. The parties agree that the following documents
constitute the entire record in these cases:
(a) The Charges;
(b) The Consolidated Complaint;
(c) The Amended Complaint;
(d) The Answers;
(e) The Amended Answers
(f) The Transcript of Testimony
(g) The General Counsel’s Exhibits, ILA’s Ex-
hibits, NYSA’s Exhibits and the Rejected Ex-
hibits;
(h) General Counsel’s Motion to Strike Defenses,
ILA’s Opposition thereto, NYSA’s Reply to
General Counsel’s Motion, and General Coun-
sel’s Reply to the Opposition ;
(i) NYSA’s Cross-Motion to Dismiss the Com-
plaint;
(j) General Counsel’s Opposition and Reply Pa-
pers concerning said Motion;
(k) The Administrative Law Judge’s Order grant-
ing the Motion to Strike Defenses and Denying
the Cross-Motion to Dismiss the Complaint;
571
(1) ILA’s and NYSA’s Motion for Special Permis-
sion to Appeal the Judge’s Order Striking De-
fenses and General Counsel’s Reply thereto and
the Board’s Order denying Special Permission ;
(m) ILA’s and NYSA’s Motion to Offer Written
Testimony and General Counsel’s papers Op-
posing said Motion;
(n) The Judge’s Order Denying said Motion;
(o) ILA’s and NYSA’s Application to take Dep-
ositions and Demand for Production of Docu-
ments;
(p) The Denial of said Application;
(q) ILA’s and NYSA’s «equest to the General
Counsel Appealing the Denial of the afore-
mentioned Applications and
(r) The Judge’s Orders for continuation in the
hearing.
3. The parties agree that they waive the making of
findings of fact and conclusions of law by an Admin-
istrative Law Judge and the issuance of an Administra-
tive Law Judge’s Decision and Recommended Order.
They desire to submit this case directly to the Board
for findings of fact, rulings on Exceptions to Rulings on
motions, objections and offers of proof, conclusions of
law and the issuance of a Decision and Order. They
further request the Board to set dates for the filing of
briefs and reply briefs herein by all parties pursuant
to § 102.46 of the Board’s Rules.
4. Approval of this Stipulation by the Administrative
Law Judge shall constitute an Order transferring the
within proceeding to the Board.
By: /s/ Irwin M. Portnoy
IRWIN M. PORTNOY
Counsel for the General Counsel
National Labor Relations Board
Region 2
December 7, 1977
(Date)
572
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION
By: /s/ Illegible
ILLEGIBLE
Dec. 5, 1977
(Date)
NEW YORK SHIPPING
ASSOCIATION, INC.
By: /s/ Illegible
ILLEGIBLE
Dec. 5, 1977
(Date)
DOLPHIN FORWARDING, INC.
By: /s/ Thos. Dleonway
THOS. DLEONWAY
Wed. 7 December, 1977
(Date)
oe JUAN FREIGHT FORWARDERS,
NC.
By: /s/ Thos. Dleonway
THOS. DLEONWAY
Wed. 7 December, 1977
(Date)
APPROVED:
/8/ Henry L. Jalette,
HENRY L. JALETTE,
Administrative Law Judge
National Labor Relations Board
December 22, 1977
(Date)
eT ee
573
[FILE Judges Div. ]
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
DIVISION OF JUDGES
WASHINGTON, D.C.
Case Nos. 2-CC-1364, 2-CC-1365, 2-CE-75
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION & NEW YORK SHIPPING
ASSOCIATION, INC.
and
DOLPHIN FORWARDING, INC.
and
SAN JUAN FREIGHT FORWARDERS, INC.
ORDER
The stipulation of the parties transferring this pro-
ceeding to the Board and waiving findings of fact and
conclusions of law and the issuance of a decision and
recommended order by the undersigned is hereby ap-
proved, and
IT IS HEREBY ORDERED that the proceeding be
transferred to the Board.
/s/ Henry L. Jalette
HENRY L. JALETTE
Administrative Law Judge
Dated: December 22, 1977
574
New York, N.Y.
[FILE See. D]
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS
BOARD
Cases 2-CC-1364, 2-CC-1365, 2-CE-75
[FILE IN FORMAL FILE. .D.]
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION & NEW YorRK SHIPPING
ASSOCIATION, INC.
and
DOLPHIN FORWARDING, INC.
and
SAN JUAN FREIGHT FORWARDERS, INC.
ORDER APPROVING STIPULATION
and
TRANSFERRING PROCEEDING TO THE BOARD
A hearing was held on July 11 and Sept. 19, 20 and
21, 1977, in the above-entitled proceeding before Admin-
istrative Law Judge Henry L. Jalette of the National
Labor Relations Board, at which time certain exhibits
were received into evidence. Thereafter, on December A
1977, International Longshoremen’s Association; New
York Shipping Association, Inc.; Dolphin Forwarding,
Inc.; San Juan Freight Forwarders, Inc.; and the Gen-
eral Counsel of the National Labor Relations Board
entered into a Stipula
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