International Longshoremen's Association

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION International Longshoremen's Association and New York Shipping Association, Inc. and Dolphin For- warding, Inc. and San Juan Freight Forwarders, Inc. Cases 2-CC-1364, 2-CE-75, and 2-CC-1365 May 30, 1978 DECISION AND ORDER BY CHAIRMAN FANNIN(G AND MEMBERS JENKINS AND MURPHY Upon charges duly filed by Dolphin Forwarding, Inc. (Dolphin), and San Juan Freight Forwarders, Inc. (San Juan), against the International Longshore- men's Association (ILA) and the New York Shipping Association, Inc. (NYSA), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, on March 10, 1976, issued and served on the parties an order consolidating cases, consolidated complaint, and notice of hearing. The complaint alleges that the ILA has threatened, coerced, and restrained NYSA and its employer- members to cease doing business with Dolphin and San Juan, in violation of Section 8(b)(4)(ii)(B) and Section 8(e) of the Act by maintaining, giving effect to, and enforcing certain contracts and agreements between them with respect to the business operations of the Charging Parties. Respondents in their answers set forth various af- firmative defenses. The General Counsel moved to strike. Administrative Law Judge Henry J. Jalette granted the General Counsel's motion. A hearing was begun and the Administrative Law Judge re- fused to hear evidence concerning these defenses. Thereafter the parties entered into a stipulation and moved to transfer this proceeding 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. The parties waived the making of findings of fact and conclusions of law and issuance of a deci- sion by the Administrative Law Judge. The parties also agreed that the charges, consolidated and amended complaints, notice of hearing, answers and amended answers, transcript, motions and rulings thereon, and exhibits and rejected exhibits constitute the entire record in this proceeding. By order dated January 4. 1978, the Board ap- proved the stipulation and transferred the proceed- ings to itself. All parties filed briefs and the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the stipulation, the briefs, and the entire record and hereby makes the following: FINDINGS OF FACT I JURISDICTION Dolphin maintains its principal office and place of business in Hanover, Massachusetts. San Juan's of- fice and principal place of business, on the mainland of the United States, is located in New York City. Both have used inland facilities located within a 50- mile radius of the Port of New York. In the operation of their businesses, Dolphin and San Juan, re- spectively, annually derive gross revenues in excess of $500,000. of which more than $50,000 is derived from shipments in interstate commerce directly from various States of the United States to the Common- wealth of Puerto Rico. Respondent NYSA has its principal office in New York City and is an incorporated association of em- ployer-members who are engaged in various opera- tions involved in the shipment of general cargo be- tween the Port of New York and foreign countries or other States and territories of the United States. Em- ployer-members of NYSA annually carry cargo in interstate and foreign commerce valued in excess of $1 million. Dolphin, San Juan, and NYSA are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. We find it will effectuate the purposes of the Act to assert jurisdiction herein. II THE IUNFAIR LABOR PRACTICES A. Background i Dolphin and San Juan both consolidate goods from various customers for seaborne shipment by container. Steamship companies provide them with containers. They in turn solicit customers who wish to ship less-than-container-load cargo between the Port of New York and Puerto Rico. The customer transports the goods to the consolidator's facility, where they are consolidated with those of other cus- tomers and stuffed into containers. The consolidator transports the containers to the steamship compa- nies' vessels for shipment to Puerto Rico. Both I For a comprehensive discussion of containerization. consolidation. NY SA and ILA bargaining history, and the resultant Rules on Containers see Internatmri,nl longishoremen'i Ass,ilarion. A FL CIO (C'onvolidaed Ex- prei,. In, i 221 NLRB 956 ( 1971). enfd 537 F 2d 706 (C.A. 2. 1976). cert denied 429 U.S. 1041 (1977). rehearing denied 430 U.S. 911 (19771 Iherein Conex). 236 NLRB No. 42 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charging Parties lease the necessary space and sub- contract the labor in order to perform the consolida- tion. Since 1959, NYSA and ILA have negotiated vari- ous collective-bargaining agreements and supple- ments regarding the use and handling of containers, known as the Rules on Containers. Briefly, these Rules require that any containers owned or leased by employer-members which contain less than trailer load, or consolidated full container loads, that origi- nate or terminate within a 50-mile radius of the Port of New York must be "stripped" and "stuffed" by ILA labor. Employer-members agree not to supply containers to consolidators who fail to comply, and each violation is punishable by a fine of $1,000 per container. The Charging Parties have always used facilities located within 50 miles of the port to strip and stuff containers. Neither has used ILA labor.2 Beginning on August 27, 1974, and continuing through January 23, 1975, Respondents, through their agents, fined the steamship companies used by the Charging Par- ties approximately $47,000. The fines were levied be- cause of the Charging Parties' failure to comply with the Rules. Consequently, the steamship companies involved informed the Charging Parties that they would no longer furnish them containers or space aboard their vessels. Dolphin and San Juan moved their operations to Jacksonville, Florida, a port not subject to the Rules, and filed the charges in this proceeding. B. Analvsis and Findings We find, based on the record as a whole, that Re- spondent ILA violated Section 8(b)(4)(ii)(B) and Re- spondents ILA and NYSA violated Section 8(e) of the Act. It is clear that our decision in Conex is con- trolling. The Conex case involved the identical Re- spondents and dealt with the same Rules on Contain- ers. The charging parties in Conex were also consolidating companies engaged in off-pier strip- ping and stuffing of containers. In that case we held that the Rules were not valid work-preservation clauses in that traditionally the off-pier stuffing and stripping of containers was performed by consolidat- ing companies and not longshoremen. Since the work was not traditional longshore work and had never been performed by longshoremen, the Rules which required the shipping companies to stop doing busi- ness with consolidators did not have a lawful work- preservation object. Therefore the Rules and the en- ti)uring 1973 and 1974 San Juan did have 80 percent of its containers emptied and reloaded upon arrival at the pier by 11.A labor. forcement thereof violated Sections 8(a)(4)(ii)(B) and 8(e). No legal distinction can be drawn between Co- nex and this case and the few factual differences are without legal significance.3 Accordingly we reject the affirmative defenses raised by Respondents, which in effect are nothing more than motions for reconsideration of our deci- sion in Conex. However, Respondents have raised certain defenses with which we did not deal in Co- nex: these we now address: I. Dolphin and San Juan wvere subcontractors of the steamship companies. Respondents contend that there is some form of subcontractual relationship, albeit a nebulous one, between the Charging Parties and the steamship companies. The object of this relationship was to circumvent the Rules on Containers. There is no evidence in the record to lend the slightest credence to this contention. The testimony of the Charging Parties' officers is that they are ex- actly what they hold themselves out to be-indepen- dent consolidators. Both solicit customers and main- tain offices. The only relationship they have with the steamship companies is limited to use of their con- tainers and purchase of space aboard their vessels. We therefore find this defense without merit. 2. The 8(e) charge is time barred: Respondents con- tend that Dolphin voluntarily ceased shipments through the Port of New York in December 1974. Dolphin filed the charge alleging an 8(e) violation on May 6, 1975. Therefore, Respondents submit that there could be no attempted enforcement of the Rules against Dolphin once they left New York, hence the charge filed in May is time barred by the 6-month statute of limitations contained in Section 10(b) of the Act. Respondents have not denied that the last enforce- ment or reaffirmation of the Rules occurred on Janu- ary 23, 1975, well within the 10(b) period.4 It is the date of reaffirmation of the 8(e) contract that is rele- vant; consequently, when Dolphin moved its opera- tions to Florida is of no moment.5 3. I.C.C. permits. Respondents argue that the Charging Parties are conducting business without being properly licensed by the Interstate Commerce Commission, and, therefore, are not entitled to avail themselves of the Board's processes. That contention 3 Here. unlike the charging parties in (one.r Dolphin and San Juan have never used their own employees to strip and stuff containers, Also, while the charging parties in Cones did, at various times. have their containers strip- ped and restuffed at the pier. it does not appear this was done as extensively as it has been by San Juan. 4 International Organzarion of Masters. Mates and Pilots, AFl (10 (Sea- train Lines. In.). 220 NLRB 164 (1975) ILA additionally argues that. because the Rules. In one form or another. have been in effect since 1959, the Charging Parties are estopped from raising their validits The fact remains that, at least regarding the Charging Parties. thes were only recently enforced. 526 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION is irrelevant. It is our duty to administer the National Labor Relations Act. In that regard we have made the requisite jurisdictional findings. There is no indi- cation that the Rules were intended to, or do, protect the parties from the effect of any violations of other statutes or that enforcement of the National Labor Relations Act, in this context, conflicts with enforce- ment of any regulations or laws administered by other agencies. In any event, Respondents' recourse properly would be through such other agency, not actions unlawful under the'National Labor Relations Act. C. Conclusions We find that the purpose of the Rules on Contain- ers was to force or require employer-members of NYSA to cease or refrain from handling, transport- ing, or selling cargo space to consolidators who re- fused to use ILA labor to perform consolidation. Therefore, we find that by maintaining, giving effect to, and enforcing the contracts and agreements known as the Rules on Containers, as set forth in the memorandum of understanding, executed on or about June 21, 1974, Respondent NYSA and Re- spondent ILA violated Section 8(e) of the Act. We also find that Respondent ILA by fining the steamship companies, in accordance with the Rules on Containers, threatened, restrained, and coerced Respondent NYSA and its employer-members to force those persons engaged in commerce to cease doing business with Dolphin and San Juan, and thereby violated Section 8(a)(4)(ii)(B) of the Act. 111 THE REMEDY Having found that Respondent ILA and Respon- dent NYSA have engaged in unfair practices in vio- lation of Section 8(e), and that Respondent ILA has engaged in unfair labor practices in violation of Sec- tion 8(b)(4)(ii)(B) of the Act, we shall order that each Respondent cease and desist from the proscribed conduct and take certain affirmative action which we find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the poli- cies of the Act. CONCL.USIONS O: LAW i. New York Shipping Association, Inc., Dolphin Forwarding, Inc., and San Juan Freight Forwarders, Inc., are employers engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. International Longshoremen's Association, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By maintaining, giving effect to, and enforcing the contracts and agreements known as the Rules on Containers between ILA and NYSA to the extent and in the manner said contracts and agreements have been found to be unlawful herein, Respondents ILA and NYSA have engaged in unfair labor prac- tices within the meaning of Section 8(e) of the Act. 4. By threatening to assess and by assessing liqui- dated damages as provided in the above-described agreements, thereby threatening, restraining, and coercing Respondent NYSA, or any of its employer- members, with an object being to force those persons engaged in commerce to cease doing business with Dolphin Forwarding, Inc., or San Juan Freight For- warders, Inc., Respondent ILA has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Union, International Longshore- men's Association, AFL-CIO, New York, New York, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Maintaining, giving effect to, and enforcing the contracts and agreements known as the Rules on Containers between ILA and NYSA to the extent and in the manner said contracts and agreements have been found to be unlawful herein, or any other contract or agreement, express or implied, whereby NYSA, on behalf of its employer-members, agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. (b) Threatening, coercing, or restraining NYSA, or any of its employer-members, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or re- quire such persons to cease doing business with Dol- phin Forwarding. Inc., or San Juan Freight Forward- ers, Inc. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Notify its members who are employed by em- ployer-members of NYSA that Respondent Union has no objections to loading or unloading containers that have been stuffed or are to be unstuffed by em- ployees or agents of Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc. 527 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify all its members who are employed by employer-members of NYSA that any previous in- structions, requests, or appeals made by Respondent Union to strip and restuff containers stuffed or to be unstuffed by Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc., have been withdrawn and are to have no force or effect. (c) Notify all its members that any and all of the paragraphs contained in the contracts and agree- ments known as the Rules on Containers negotiated by and between ILA and the Council of North American Shipping Associations on behalf of NYSA which limit, restrain, restrict, tax, or prohibit han- dling, in the customary manner, containers that have been stuffed or are to be unstuffed by Dolphin For- warding, Inc., or San Juan Freight Forwarders, Inc., have been found to be void and unenforceable with respect to Dolphin Forwarding, Inc., and San Juan Freight Forwarders, Inc. (d) Post at its business offices, meeting halls, and all dispatch halls copies of the attached notice marked "Appendix A." 6 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by a representative of Re- spondent Union, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including the dispatch halls and all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Re- spondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. B. Respondent New York Shipping Association. Inc., New York, New York, its officers, agents, suc- cessors, and assigns, shall: I. Cease and desist from maintaining, giving effect to, and enforcing the contracts and agreements known as the Rules on Containers between 11 A and NYSA to the extent and in the manner said contracts and agreements have been found to be unlawful herein, or any other contract or agreement, express or implied, whereby NYSA, on behalf of its eim- ployer-members. agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Notify all its employer-members that any pre- vious instructions, requests, or appeals which Re- spondent NYSA may have made against loading containers that have been stuffed or are to be un- stuffed by Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc., are to be withdrawn and to have no force or effect. (b) Notify all its employees and employer-mem- bers that it has no objection to their loading, unload- ing, or otherwise handling containers that have been stuffed or are to be unstuffed by Dolphin Forward- ing, Inc., or San Juan Freight Forwarders, Inc. (c) Notify all its employer-members that any and all provisions of the contracts and agreements known as the Rules on Containers which have been negoti- ated between ILA and the Council of North Ameri- can Shipping Associations on behalf of NYSA which restrain, restrict, limit, tax, or prohibit handling, in the customary manner, containers that have been stuffed, or are to be unstuffed, by Dolphin Forward- ing, Inc., or San Juan Freight Forwarders, Inc., have been found to be void and unenforceable with re- spect to Dolphin Forwarding, Inc., and San Juan Freight Forwarders, Inc. (d) Mail to each of its employer-members and post at its main office in New York, New York, and at each area office copies of the attached notice marked "Appendix B" 7 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent NYSA's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employer-mem- bers are customarily posted. Reasonable steps shall be taken by Respondent NYSA to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent NYSA has taken to comply herewith i hi the eent that this Order is enforced bh a Judgment of a United Stales Court of1 Appeals. the words in tile notice reading "Posted by Order of the National I.abot Relations Board" shall read "Posted Pursuant to a Judgment of the lnited Statees Court of Appeals Enrforcing an Order tof the National Labor Relations Board." See fn. 6, upran APPENDIX A Noiicr To MEMBERS Pos ii) nBY ORDI)R OF IT Hl NAIJONAL LABOR REL.ATIONs BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the law by committing unfair labor prac- tices. Accordingly, we will post this notice and keep the promise made herein. 528 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION WE WILL NOT enter into, maintain in effect. give effect to, invoke, or in any manner or by any means enforce the contracts and agreements known as the Rules on Containers, rules 1, 2, 7, and 9 as set forth in the memorandum of under- standing executed on or about June 21, 1974. or any other contract or agreement, express or im- plied, whereby New York Shipping Association. Inc., on behalf of its employer-members, or the Council of North America Shipping Associa- tions, on behalf of the New York Shipping Asso- ciation, Inc., agrees to cease or refrain from doing business with any other person in viola- tion of Section 8(e) of the Act. WE WILL NOT threaten, coerce, or restrain New York Shipping Association, Inc., or its em- ployer-members, or any other person engaged in commerce or in an industry affecting commerce. by threatening or refusing to handle or by taxing or requiring the payment of money. or by any other means, where an object thereof is to force or require any of the member companies of the New York Shipping Association, Inc.. or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the product of any producer, processor, or manufacturer, or to cease doing business with Dolphin Forward- ing, Inc, or San Juan Freight Forwarders, Inc. WE WILL and do hereby notify our members. and other individuals employed by the New York Shipping Association. Inc., or any of its employer-members, that we have no objection to their loading, unloading, or otherwise han- dling containers received from, or to be forward- ed to, Dolphin Forwarding, Inc.. or San Juan Freight Forwarders. Inc. WE WIL.L and do hereby, cancel and withdraw any orders and instructions given to our mem- bers and any other individuals to strip and res- tuff containers stuffed or to be unstuffed by the employees of Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc. WE Wi L and do hereby notify all our mem- bers that any and all of the paragraphs con- tained in the contracts and agreements known as the Rules on Containers negotiated by and between ILA and the Council of North America Shipping Associations on behalf of NYSA which limit, restrain, restrict, tax, or prohibit handling, in the customary manner. containers that have been stuffed or are to be unstuffed by Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc., are void and unenforceable. INTERNATIONAL LONGSHOREMEN'S ASSO IA- TION, AFL CIO APPENDIX B NoI ICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To EMrPLOYEES AND ALL EMPILOYER-MEMBERS OF THE Niw YORK SHIPPING ASSOCIATION. INC.: The National Labor Relations Board has found that we violated the law by committing unfair labor practices. Accordingly, we will post this notice and keep the promises made herein. Wie wll Nl. o enter into, maintain in effect, give effect to, invoke, or in any manner or by any, means enforce the contracts and agree- ments, known as the Rules on Containers, rules 1,2, 7, and 9 as set forth in the memorandum of understanding executed on or about June 21, 1974. or any other contract or agreement, ex- press or implied, whereby New York Shipping Association. Inc., on behalf of employer-mem- bers, of the Council of North America Shipping Associations, on behalf of New York Shipping Association, Inc., agrees to cease or refrain from doing business with any other person in viola- tion of Section 8(e) of the Act. WE WILL and do hereby cancel and withdraw any orders and instructions given to our em- ployer-members, employees, or any other indi- vidual to strip and restuff containers stuffed or to be unstuffed by the employees of Dolphin Forwarding, Inc., or San Juan Freight Forward- ers, Inc. WE WiiL. and do hereby notify all our employ- ees and employer-members that we have no ob- jection to their loading, unloading, or otherwise handling containers that have been stuffed or are to be unstuffed by Dolphin Forwarding, Inc., or San Juan Freight Forwarders, Inc. WE WILL and hereby do notify all our em- ployer-members that any and all provisions of the contracts and agreements known as the Rules on Containers which have been negotiat- ed between ILA and the Council of North America Shipping Associations on our behalf which restrain, restrict, limit, tax, or prohibit handling, in the customary manner, containers that have been stuffed, or are to be unstuffed, by Dolphin Forwarding, Inc., and San Juan Freight Forwarders. Inc., are void and unenforceable. NEW YORK SHIPPING ASSO.IATION. INC 529