Petition — DOLPHIN FORWARDING, INC. v. INTERNATIONAL LONGSHOREMEN'S ASSN., et al. (Nos. 79-1110, 79-1035, 79-1036, 79-1082, 79-1099, 79-1109)

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IN THE ——

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1] 110

DOLPHIN FORWARDING, INC.,

Petitioner,

Vv,

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

NEW YORK SHIPPING ASSOCIATION, INC.,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

_ PETITION FOR A WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CARL W. SCHWARZ

STEPHEN P. MURPHY

Metzger, Shadyac &

Schwarz

One Farragut Square South

Washington, D.C. 20006

(202) 347-1631

Attorneys for Petitioner

Dolphin Forwarding, Inc.

TABLE OF CONTENTS

Opinions Below

Jurisdiction......

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Reasons for Granting the Writ............................

Conclusion........

TABLE OF AUTHORITIES

CASES:

Consolidated Express, Inc. v. New York Ship-

ping Association, Inc., 452 F. Supp. 1024

(D.N.J. 1977), aff'd in part and rev'd in part,

602 F.2d 494 (3d Cir. 1979), petition for cert.

filed, 49 U.S.L.W. 3001 (June 22, 1979) (Nos.

(i Se ee

Danielson v. International Longshoremen’s As-

sociation, No. 75-Civ.-4027 (S.D.N.Y. filed

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Dolphin Forwarding, Inc. v. New York Shipping

Association, Inc., No. 79-276 (D.N.J. filed

SI I a N otcigstvavaviik

Garner v. Teamsters, Chauffeurs & Helpers Lo-

cal Union No. 776, 346 U.S. 485 (1958) ..00000......

Humphrey v. International Longshoremen’s As-

sociation, 548 F.2d 494 (4th Cir. 1977).............

International Longshoremen’s Association Lo-

zd ne v. N.L.R.B., 560 F.2d 489 (1st Cir.

iy, GRO ERAN REN ER re 08 AL 7e Wil ir ee

International Longshoremen’s Association v.

N.L.R.B., 587 F.2d 706 (2d Cir. 1976), cert.

denied, 429 U.S. 1041, rehearing denied, 430

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International Longshoremen’s & Warehouse-

men’s Union, Local 13 v. N.L.R.B., 169 U.S.

App. D.C. 300, 515 F.2d 1017 (1975), cert.

dented, 424 U.S. 942 (1976) ..........cccecceesscesesceees

Page

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National Woodwork Manufacturers Association

v. N.L.R.B., 386 U.S. 612 (1967) ......... ee.

N.L.R.B. v. Enterprise Association of Steam, etc.

Pipefitters, 429 U.S. 507 (1977)............0cc cee,

Northeast Marine Terminal Co., Inc. v. Caputo,

482 U.S. BAD CITT D ........000..0... rete St sh

ADMINISTRATIVE CASES:

Agreement No. 10294, Dec. Fed. Mar. Comm’n

No. 77-23 (December 13, 1979) .0.....00000.

International Longshoremen’s Association

(Beck Arabia), 245 N.L.R.B. No. 172

(September 29, 1979), appeal docketed, No.

79-1672 (4th Cir. Oct. 16, 1979) ooo.

International Longshoremen’s Association

(Consolidated Express, Inc.), 221 N.L.R.B.

956 (1975), enf'd, 587 F.2d 706 (2d Cir. 1976),

cert. denied, 429 U.S. 1041 (1977)...

International Longshoremen’s Association, Lo-

cal 1408 (Puerto Rico Marine Management,

Inc.), 245 N.L.R.B. No. 171 (September 28,

1979), appeal docketed, No. 79-3444 (5th Cir.

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Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

DOLPHIN FORWARDING, INC.,

Petitioner,

Vv.

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,

NEW YORK SHIPPING ASSOCIATION, INC.,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner Dolphin Forwarding, Inc. (‘‘Dolphin’’)

respectfully petitions for a writ of certiorari to re-

view the judgment of the United States Court of

Appeals for the District of Columbia Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals is noi yet

officially revorted and appears as Appendix A at

pages la-74a of the Joint Appendix.: The decision

and order of the National Labor Relations Board

(‘NLRB’) is reported at 236 N.L.R.B. No. 42 (1978).

A copy is reproduced as Appendix C (App. 99a-116a)

in the Joint Appendix.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on September 25, 1979. Dolphin’s petition for

rehearing was denied on December 13, 1979 and a

copy is reproduced in the Joint Appendix as Appen-

dix H (App. H at p. 178a). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the National Labor Relations Board

properly defined the work in controversy as the off-

pier loading and unloading of containers and, if so,

whether the ILA’s attempt to acquire such work

constituted a violation of Sections 8(b)(4)(B) and

8(e) of the Labor Management Relations Act.

1 This and the following referenced opinion is reprinted in a

separately bound Joint Appendix to the Petitions of Inter-

national Longshoremen’s Association (“ILA”) and New York

Shipping Association, Inc. (“NYSA”), Docket No. 79-1035, 79-

1036, filed with the Court on December 31, 1979. It is referenced

herein as “ a.”

STATUTES INVOLVED

The relevant provisions of Sections 8(b)(4)(B)

and 8(e) of the Labor Management Relations Act, 29

U.S.C. §§ 158(b) (4) and 158(e) (1976), are as follows:

Section 8(b). It shall be an unfair labor

practice for a labor organization or its agents—

4(ii) to threaten, coerce, or restrain any

person engaged in commerce or in any industry

affecting commerce, where an object is:

* * *

(B) forcing or requiring any person to cease

using, selling, handling, transporting, or other-

wise dealing in the products of any other produc-

er, processor, or manufacturer, or to cease doing

business with any other person...: Provided,

that nothing contained in this clause (B) shall be

construed to make unlawful...any primary

strike or primary picketing;...

Section 8(e). It shall be an unfair labor

practice for any labor organization and any em-

ployer to enter into any contract or agreement,

express or implied, whereby such employer ceases

or refrains or agrees to cease or refrain from

handling, using, selling, transporting or other-

wise dealing in any of the products of any other

employer, or to cease doing business with any

other person, and any contract or agreement

entered inte heretofore or hereafter containing

such an agreement shall be to such extent

unenforcible and void....

STATEMENT OF THE CASE

Since 1964, Dolphin has been engaged in the

business of consolidating small shipments of freight,

known as less-than-container loads (“LCL”), for

shipment between the Port of New York and Puerto

Rico. Utilizing off-pier facilities within a fifty mile

radius of the Port of New York, Dolphin has subcon-

tracted for non-ILA represented workers to load

(“stuff”) containers with goods which are trucked to

Dolphin’s facility by various shippers (App. C at p.

102a). These same workers unload (“strip”) in-

coming containers which are trucked to Dolphin’s

consolidating terminal from the docks.

A shipper would employ the services of a consoli-

dator such as Dolphin in order to reap the benefit of

the special shipping rates, known as freight-all-

kinds (“FAK”), available to consolidators. In addi-

tion, consolidated freight in containers has histori-

cally experienced faster transport time and greatly

reduced dockside pilferage than has loose or break

bulk cargo delivered directly to the piers. Use of

containers haS increased cargo handling productivity

from 1.4 tons per man-hour up to 30 tons per man-

hour (App. A at p. 5a).

Containers used by Dolphin were obtained from

ocean carrier members of NYSA who freely provided

space on their vessels for ocean shipment of the

containers to and from Puerto Rico. These containers

can accomodate nearly 17 tons of cargo and can be

transported to and from the vessel as a single unit

(App. A at p. 4a).

The use of containers and specially built contain-

er ships began in the mid 1950’s and quickly proved

to be a boon to ocean carriers as a result of the

substantially increased dockside productivity and

generally reduced labor costs (App. A at p. 5a, 12a).

Longshoremen have never performed off-pier

consolidation of containers (App. C at p. 103a). Their

traditional work has been confined to on-pier loading

and unloading of cargo which ranges in size from

loose cartons to rather large boxes of goods which are

picked up and delivered by trucking companies at

pierside. The ILA has responded to the advent of off-

pier consolidation of containers in the Port of New

York by negotiating a collective bargaining agree-

ment with the NYSA in 1959 which provided for free

and unrestricted use of containers. The ILA relin-

quished any claim to the on-pier stripping and stuf-

fing of containers by longshoremen and summarily

closed its rolls to new membership. (App. B at p.

90a). In exchange, the ILA obtained from the NYSA

and its members a “contribution” to the “royalty”

fund for every container consolidated by non-ILA

labor at off-pier facilities.

The issue of containerization lay dormant until

19672 when the ILA resolved that all containers

passing through the Port of New York should be

stripped or stuffed by ILA labor. After a lengthy

strike, a collective bargaining agreement was

reached in February of 1969 by which the ILA abdi-

cated its claims to all but less than 20% of the

2In 1966, the ILA had been able to coerce the NYSA into

guaranteeing payment to each longshoreman for at least 1,600

hours of work per year. This was increased in 1968 to 2,080 hours

per longshoreman. These payments were in addition to any

royalty fund “contributions” made by the ocean carriers.

container business. Moreover, the ILA allowed off-

pier consolidating to continue if the steamship lines

were willing to pay liquidated damages of $250 per

container to the ILA Container Royalty Fund (App.

A at p. 9a). This agreement, known as the Rules on

Containers, applied solely to containers which had

been stripped or stuffed at off-pier facilities within a

fifty- mile radius of the port (App. A at p. 15a). Since

a significant amount of LCL work was done within

such a radius, the Rules on Containers presented a

real and present danger to the continued existence of

consolidators such as Dolphin.

For a period of time, however, the Rules were not

strictly enforced. It was not until January of 1973

that an addendum to the Rules, known as the “Dublin

Supplement,” was extracted by the ILA from the

NYSA which required strict enforcement of the

Rules. Thereafter, the fine for failure to comply with

the Rules was increased to $1000 per container which

was payable to the ILA Container Royalty Fund

(App. A at p. 67a). The Dublin Supplement required

that ocean carrier members of the NYSA cease provi-

ding containers to consolidators in violation of the

Rules. In addition, the Rules were amended to

include a “runaway shop” clause which provided for

extensions of the fifty-mile radius if a consolidator

sought to evade the Rules by utilizing facilities

beyond the fifty-mile radius (App. A at p. 66a).

From August 24, 1974 until at least January 23,

1975, the ocean carriers who carried the bulk of the

New York to Puerto Rico trade were fined $47,000 for

providing containers to Dolphin and to another con-

solidator doing business in the Port of New York

(App. A at pp. 2la-22a). As a result, Dolphin was

subsequently precluded from continued use of their

containers and was denied access to vessel space

(App. A at p. 22a; App. C at p. 103a). This circum-

stance forced Dolphin and the other consolidator

affected to ship their freight through the non-ILA

Port of Jacksonville at a substantially increased cost

(App. C at p. 103a).

In the face of economic extinction, Dolphin filed

unfair labor practice charges with the NLRB in May

of 1975. These charges were virtually identical to

those filed by two of Dolphin’s chief competitors in

the Port of New York, Consolidated Express, Inc.

(“Conex”) and Twin Express, Inc. (“Twin”), which

had resulted in the issuance of cease and desist orders

by the NLRB enjoining enforcement of the Rules

against the charging parties. International Long-

shoremen’s Association (Consolidated Express, Inc.),

221 N.L.R.B. 956 (1975), enfd, 537 F.2d 706 (2d Cir.

1976), cert. dented, 429 U.S. 1041 (1977) (“Conex’’)s.

Th.s order was enforced by the United States Court

of Appeals for the Second Circuit in Jnternationai

Longshoremen’s Association v. N.L.R.B., 537 F.2d 706

3The National Labor Relations Board filed a motion for

preliminary injunction, pursuant to § 10(1) of the Labor Man-

agement Relations Act, 29 U.S.C. § 160(1), enjoining enforce-

ment of the Rules as against Dolphin. Danielson v. Inter-

national Longshoremen'’s Association, No. 175-Civ.-4027

(S.D.N.Y. filed Sept. 18, 1975). The proceeding was stayed

ange 5 final determination by the Board of the Coner proceed-

ing. Id.

(2d Cir. 1976), cert. denied, 429 U.S. 1041, rehearing

denied, 430 U.S. 911 (1977).4

On May 30, 1978, the NLRB issued a cease and

desist order in Dolphin’s favor (App. C at pp. 99a-

116a). The Board premised its decision on the Conex

case which it found controlling as a result of identity

of the parties and of the work in question. This order

was appealed by the ILA and NYSA to the United

Circuit. As Conex and Twin had done before it,5

Dolphin filed a private antitrust action charging a

group boycott in violation of Section 1 of the Sher-

man Act, 15 U.S.C. § 1, in conjunction with a claim

for damages pursuant to § 303 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 187. Dolphin

Forwarding, Inc. v. New York Shipping Association,

Inc., No. 79-276 (D.N.J. filed Jan. 22, 1979).

On September 25, 1979, the Court of Appeals

vacated the NLRB order and denied the NLRB cross-

application for enforcement of the cease and desist

order (App. A at pp. la-74a). The Court did not

dispute the NLRB’s findings of fact; reversal was

4 One significant impact of the invalidation of the Rules is

that the ILA was forced in 1978 to reopen its membership roles,

closed since 1959, to admit 750 new longshoremen. See Agree-

ment No. 10294, Dec. Fed. Mar. Comm’n No. 77-23 at 46-47

(December 13, 1979). In his decision, Administrative Law

Judge Kline described a number of alternatives for increasing

usage of ILA longshoremen short of group boycotts of consoli-

dators. Id. at 90.

5 Consolidated Express, Inc. v. New York Shipping Associ-

ation, Inc., 452 F. Supp. 1024 (D.N.J. 1977), affd in part and

rev'd in part, 602 F.2d 494 (3d Cir. 1979), petition for cert. filed,

49 U.S.L.W. 3001 (June 22, 1979} (Nos. 78-1902 and 78-1905).

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based upon a misapplication of the doctrine of work

preservation as enunciated in National Woodwork

Manufacturers Association v. N.L.R.B., 386 U.S. 612

(1967) and N.L.R.B. v. Enterprise Association of

Steam, etc. Pipefitters, 429 U.S. 507 (1977). Judge

Robb, in dissent, found that there was substantial

evidence in the administrative record to support the

decision of the Board and rejected any “similarities”

between loading ships and loading containers (App.

A at pp. 73a-74a).

REASONS FOR GRANTING THE WRIT

As both the majority and dissenting opinions of

the Court of Appeals specifically recognized, the deci-

sion below that the Rules on Containers operate to

“preserve” rather than “acquire” work for tue

longshoremen is in direct conflict with the rulings of

three other Circuit Courts of Appeal. International

Longshoremen’s Association Local 1575 v. N.L.R.B.,

560 F.2d 439 (1st Cir. 1977); Humphrey v. Inter-

national Longshoremen’s Association, 548 F.2d 494

(4th Cir. 1977); International Longshoremen’s Associ-

ation v. N.L.R.B., 5387 F.2d 706 (2d Cir. 1976), cert.

denied, 429 U.S. 1041, rehearing denied, 430 U.S. 911

(1977). The decision is, of course, in conflict with the

long-held position of the National Labor Relations

Board which continues to enforce the Labor Act in a

manner consistent with that established position

despite the Court of Appeals’ ruling. See Inter-

national Longshoremen’s Association Local 1408

(Puerto Rico Marine Management, Inc.), 245 N.L.R.B.

No. 171 (September 28, 1979), appeal docketed, No.

79-3444 (5th Cir. Oct. 16, 1979); International

Longshoremen’s Association (Beck Arabia, Ltd.), 245

N.L.R.B. No. 172 (September 28, 1979), appeal doc-

keted, No. 79-1672 (4th Cir. Oct. 16, 1979).6 Indeed,

the decision of the Court of Appeals is inconsistent

with a prior per curiam ruling by another panel of

the Court below. See International Longshoremen’s &

Warehousemen’s Union, Local 13 v. N.L.R.B., 169 U.S.

App. D.C. 300, 515 F.2d 1017 (1975), cert. denied, 424

U.S. 942 (1976) (“California Cartage’’).

The impact of such inconsistent rulings in the

marketplace borders on the catastrophic. The ILA is

now free to enforce the Rules on Containers against

some competitors in the business of off-pier consoli-

dating of goods for shipment but not against others,

such as Conex and Twin, the two firms who were the

complaining parties in the Second Circuit case of

International Longshoremen’s Association v. N.L.R.B.,

537 F.2d 706 2d Cir. 1976), cert. denied, 429 US.

1041, rehearing denied, 480 U.S. 911 (1977). The

decision in the instant case creates such a competitive

imbalance in the Port of New York area, where

Conex, Twin and Dolphin are direct competitors, that

a “duopoly” is the likely result, by operation of law, if

the Court of Appeals’ decision stands. Even the

possibility of the creation of this situation will have a

serious and detrimental impact upon the business of

Dolphin and, indeed, all but Conex and Twin.

6In that case, the National Labor Relations Board dis-

tinguished the unloading of a container (as “part” of a ship) at

the pier with unloading a container (as “part” of a truck) off the

pier which the Board found to be historically performed by the

Teamsters Union. The Board found nothing in Northeast

Marine Terminal Co., Inc. v. Caputo, 482 U.S. 249 (1977) which

related to off-pier activities, contrary to the majority view in

the case below. (Slip op. at 42-43).

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These considerations as well as the oft-cited need

for uniform application of the labor laws, see, e.g.,

Garner v. Teamsters, Chauffeurs & Helpers Local

Union No. 776, 346 U.S. 485 (1953), are forcefu!

evidence in support of a prompt and final resolution

of the issues raised in the opinion below.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,