Longshoremens' Association

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association and New York Shipping Association, Inc. and Dolphin Forwarding, Inc. and San Juan Freight Forwarders, Inc. International Longshoremen's Association, et al. and Council of North Atlantic Shipping Associations and Hampton Roads Shipping Association and Tidewater Motor Truck Association and Associated Transport, Inc. and Houff Transfer, Inc. International Longshoremen's Association, Local 1408 and Puerto Rico Marine Management, Inc. and International Container Express, Inc. International Longshoremen's Association and New York Shipping Association, Inc. and Consolidated Express, Inc. and Twin Express, Inc. International Longshoremen's Association, et al. and The Terminal Corporation International Longshoremen's Association, Local 1242 and Hill Creek Farms, Inc. International Longshoremen's Association, Local 1416, et al. and Custom Brokers and Forwarders Association of Miami, Inc. International Longshoremen's Association, Local 1359, et al. and Beck Arabia, Ltd. New York Shipping Association, Inc. and Council of North Atlantic Shipping Associations and American Trucking Associations, Inc. and Twin Express, Inc. and International Association of Non-Vessel Operating Common Carriers and International Longshoremen's Association, AFL- CIO (and its affiliated Local Unions) and Atlantic Coast District, International Longshoremen's Association, AFL-CIO and West Gulf Maritime Association and Southeast Florida Employers Port Association and Mobile Steamship Association, Inc. and South Atlantic and Gulf District, International Longshoremen's Association, AFL-CIO International Longshoremen's Association, AFL- CIO (and its affiliated Local Unions) and Atlantic Coast District, International Longshoremen's Association, AFL-CIO (New York Shipping Association, Inc. and Council of North Atlantic Shipping Associations) and American Trucking Associations, Inc. and Twin Express, Inc. and International Association of Non-Vessel Operating Common Carriers International Longshoremen's Association, AFL- CIO (and its affiliated Locals) and Atlantic Coast District Council, International Longshoremen's Association, AFL-CIO and Council of North Atlantic Shipping Associations and Steamship Trade Association of Baltimore, Inc. (and its affiliated Members) and American Trucking Associations, Inc. International Longshoremen's Association, AFL- CIO (and its affiliated Locals) and Atlantic Coast District Council, International Longshoremen's Association, AFL-CIO and Council of North Atlantic Shipping Associations and Hampton Roads Shipping Associations (and its affiliated Members) and American Trucking Associations, Inc. International Longshoremen's Association, AFL- CIO (and its affiliated Locals) and Atlantic Coast District Council, International Longshoremen's Association, AFL-CIO (Steamship Trade Association of Baltimore, Inc.) and American Trucking Associations, Inc. International Longshoremen's Association, AFL- CIO (and its affiliated Locals) and Atlantic Coast District Council, International Longshoremen's Association, AFL-CIO and Hampton Roads District Council, International Longshoremen's Association, AFL-CIO (Hampton Roads Shipping Association) and American Trucking Associations, Inc. Cases 2-CC-1364, 2-CC-1365, 2-CE-75, 5-CC-791, 5-CC-792, 5-CC-793, 5-CC-794, 5-CE-48, 5-CE-49, 5- CE-50, 5-CE-51,¹ 12-CC-1002, 12-CC-1004, 22-CC-541, 22-CC-554, 22-CE-19, 22-CE- 20, 5-CC-925, 5-CC-929, 4-CC-1133, 4-CE- 55, 12-CE-30, 5-CC-889, 22-CE-44, 22-CE- 45, 22-CE-46, 22-CC-806, 22-CC-807, 22- CC-808, 22-CE-47 (formerly 5-CE-67), 22- CE-48 (formerly 5-CE-68), 22-CC-809 (formerly 5-CC-984), and 22-CC-810 (formerly 5-CC-985) February 28, 1983 DECISION AND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS ZIMMERMAN AND HUNTER On September 29, 1981, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the following parties filed exceptions and supporting briefs: the General Counsel; Respondents International Longshoremen's Association, AFL-CIO, New York Shipping Association, Inc., and Council of North Atlantic Shipping Associations; Charging Parties San Juan Freight Forwarders, Inc., Tidewater Motor Truck Association, International Container Express, Inc., Consolidated Express, Inc., Twin Express, Inc., Hill Creek Farms, Inc., Custom Brokers and Forwarders Association of Miami, Inc., American Trucking Associations, Inc., and International Association of Non-Vessel Operating Common Carriers; and Intervenor American Warehousemen's Association. Respondent Southeast 1 We have corrected the caption in this case to add the CE case numbers, which the Administrative Law Judge inadvertently omitted from the caption of his Decision. 266 NLRB No. 54 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Florida Employers Port Association and Charging Party Houff Transfer, Inc., filed cross-exceptions and supporting briefs. Respondents International Longshoremen's Association, AFL-CIO, New York Shipping Association, Inc., and Council of North Atlantic Shipping Associations filed an answering brief to the exceptions of the General Counsel and to the exceptions and cross-exceptions of the various Charging Parties. The following Charging Parties filed answering briefs to the Respondents' exceptions: Houff Transfer, Inc., Twin Express, Inc., Custom Brokers and Forwarders Association of Miami, Inc., American Trucking Associations, Inc., and International Association of Non-Vessel Operating Common Carriers. Charging Party Custom Brokers and Forwarders Association of Miami, Inc., also filed an answering brief to the exceptions of Respondent Southeast Florida Employers Port Association. In addition, Intervenor International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Issue The question presented in this case is whether the Rules on Containers negotiated by the International Longshoremen's Association (ILA) with the various employer associations representing east coast shipping lines in response to the technological innovation of containerized shipping are merely an attempt to preserve work historically performed by longshoremen represented by the ILA or instead are an effort to acquire for longshoremen represented by the ILA work which is not functionally related to their traditional work. If we resolve this issue by finding that the Rules, as written and as applied, have a valid work preservation objective, then they would not be unlawful "hot cargo" agreements under Section 8(e) nor would their enforcement be prohibited secondary activity under Section 8(b)(4)(B); however, insofar as particular Rules evidence the secondary objective of claiming work not traditionally performed by longshoremen, such Rules would be illegal under Section 8(e) and any attempt to enforce them would be illegal under Section 8(b)(4)(B). History of the Case This case, in which nine different underlying Board proceedings have been consolidated, arises out of the Supreme Court decision in N.L.R.B. V. International Longshoremen's Association, AFL-CIO, et al., 447 U.S. 490 (1980), which remanded Dolphin Forwarding² and Associated Transport³ to the Board for reconsideration of its earlier decisions finding that the Rules on Containers and their enforcement were illegal under Section 8(e) and Section 8(b)(4)(B) of the Act, as an attempt to acquire work which the union's members had never performed. The Supreme Court held that the Board's definition of the work in controversy, as originally set forth in its Conex decision,4 was incorrect as a matter of law because it concentrated on the work performed off the piers after containerization by the employees of consolidators and truckers. The Supreme Court stated: By focusing on the work as performed after the innovation took place, by the employees who allegedly have displaced the longshoremen's work, the Board foreclosed-by definition-any possibility that the longshoremen could negotiate an agreement to permit them to continue to play any part in the loading or unloading of containerized cargo.⁵ Rather, the Supreme Court directed the Board to "focus on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work, and examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it."⁶ The Supreme Court noted that this analysis should "be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace."7 and stated further: Thus, in judging the legality of a thoroughly bargained and apparently reasonable accommodation to technological change, the question is not whether the Rules represent the 2 International Longshoremen's Association, et al. (Dolphin Forwarding, Inc.), 236 NLRB 525 (1978), enforcement denied 613 F.2d 890 (D.C. Cir. 1979). 3 International Longshoremen's Association, AFL-CIO, et al. (Associated Transport, Inc.), 231 NLRB 351 (1977), enforcement denied 613 F.2d 890 (D.C. Cir. 1979). 4 International Longshoremen's Association, AFL-CIO, et al. (Consolidated Express, Inc.), 221 NLRB 956 at 959 (1975), enfd. 537 F.2d 706 (2d Cir. 1976), cert. denied 429 U.S. 104 (1977). 5 447 U.S. at 508. 6 447 U.S. at 507. 7 447 U.S. at 551. DECISIONS OF NATIONAL LABOR RELATIONS BOARD most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs.⁸ As a result of the Supreme Court's remand in Dolphin Forwarding and Associated Transport, the Court of Appeals for the Second Circuit recalled its mandate in Conex and remanded that decision to the Board for reconsideration. In addition, the Courts of Appeals for the Fourth and Fifth Circuits, respectively, remanded the decisions in Beck Arabia⁹ and Puerto Rico Marine Management, 10 which were pending before those courts, to the Board for reconsideration. Finally, the Board decided, sua sponte, to reconsider its decision in Terminal Corporation. 11 At the time of the Supreme Court remand, the Board had not yet rendered a decision in Hill Creek Farms¹² or Custom Brokers, 13 which were pending before it on exceptions to Administrative Law Judges' Decisions. On January 19 and February 18, 1981, the Board issued orders consolidating the above eight cases and remanding them to an administrative law judge for a hearing and a decision on the issues raised by the Supreme Court remand. On February 10, 1981, a new complaint issued in American Trucking Associations, 14 and on February 20, 1981, the Board issued an order further consolidating the proceedings to include this complaint. The Rules on Containers The facts underlying the development of containerized shipping for ocean cargo from the 1950's to the 1970's and the evolution of the Rules on Containers negotiated by the ILA between 1959 and 1980 in response to the development of this new technology are summarized in the Supreme Court opinion¹ and set forth in great detail in the Administrative Law Judge's Decision in this case. 16 Briefly, a container is a large, reusable metal receptacle, which can be loaded with cargo away from the pier, transported intact to the dock, and placed onto an ocean vessel unopened. Conversely, a container can also be removed from an 8 Id. 9 International Longshoremen's Association, AFL-CIO, et al. (Beck Arabia, Ltd.), 245 NLRB 1325 (1979). 10 International Longshoremen's Association, AFL-CIO, Local Union No. 1408 (Puerto Rico Marine Management, Inc.), 245 NLRB 1320 (1979). 11 International Longshoremen's Association, AFL-CIO, et al. (The Terminal Corporation), 250 NLRB 8 (1980). 12 International Longshoremen's Association, Local 1242 (Hill Creek Farms, Inc.), Cases 4-CC-1133 and 4-CE-55. 13 International Longshoremen's Association, Local 1416, et al. (Custom Brokers and Forwarders Association of Miami, Inc.), Case 12-CE-30. 14 International Longshoremen's Association, AFL-CIO, et al. (American Trucking Associations, Inc.), Cases 22-CC-806, 807, 808, 809, and 810 and 22-CE-44, 45, 46, 47, and 48. 15 447 U.S. at 494. 16 See sec. III,D, of the Administrative Law Judge's Decision. ocean vessel unopened and transported intact to a location away from the pier for unloading. The shipping lines financed the creation of this new technology, including the development of the actual containers and the specialized ships built to accommodate these particular containers. The shipping lines generally own the containers which are carried on board their vessels and will sometimes use their own employees represented by the ILA to load or unload cargo into or out of these containers at the pier; however, the shipping lines release many of their containers to other companies for loading and unloading away from the pier. Containers are most often released to the following types of companies away from the pier: owners of cargo, which perform their own loading and unloading of containers in connection with ocean transport; consolidators, which load the cargo of several shippers into a single container for ocean transport; truckers, which perform local and overthe-road transportation of cargo before or after ocean transport as well as the loading and unloading of both trucks and containers incidental to this transportation, but which may also function as consolidators or warehouses; and warehouses, which receive cargo for storage before or after ocean transport and perform loading and unloading of both trucks and containers in connection with the storage of cargo, but which may also function as consolidators or truckers. Before containerized shipping developed, truckers delivered loose cargo to the pier, where longshoremen consolidated some cargo onto pallets and loaded the pallets and individual pieces of cargo on board the ship. Longshoremen also unloaded pallets and loose cargo from the ship to be picked up by truckers. Longshoremen often assisted the truckers in unloading and loading cargo out of and into trucks at the pier. The introduction of containerized shipping greatly reduced the work of longshoremen at the pier, as cargo was no longer handled piece by piece. The ramifications of the new technology for the shipping industry were also immense since the use of containers substantially decreased the costs of handling cargo, the unprofitable time a ship spends in port, and the number of ships needed to carry a certain amount of cargo. As a result of the conflict between the interest of the shipping lines in fully utilizing this economically advantageous new technology and the interest of the ILA in reducing the tremendous impact of this new technology on bargaining unit work, containerization was the subject of numerous disputes between the various employer associations in east coast ports and the ILA. Between 1959 and 1971, collective bargaining on this subject occurred INTERNATIONAL LONGSHOREMEN'S ASSOCIATION mainly between the ILA and New York Shipping Association, Inc. (NYSA), since most of the existing containerized ships operated out of the Port of New York. The first version of the Rules on Containers was negotiated by the ILA with NYSA in 1968. In 1971, the ILA negotiated a second version of the Rules on Containers with the newly formed Council of North Atlantic Shipping Associations (CONASA). The present Rules on Containers were negotiated by the ILA and CONASA in 1974. 17 These rules require generally that when any containers owned or leased by a shipping company are to be loaded or unloaded within 50 miles of the port, these containers must be loaded or unloaded by ILA labor at the pier; however, there are several stated exceptions to this general 50-mile rule. Thus, under the 50-mile rule, the ILA does not claim: (1) the work of loading or unloading FSL containers (full shippers' loads) which are to be loaded or unloaded by the employees of the beneficial owner of the cargo, or (2) the work of unloading FSL containers which are to be warehoused for 30 days or more. The 50-mile rule specifically claims for ILA employees the work of loading and unloading any consolidated container loads, otherwise known as LCL or less-than-container-load cargo. The Rules require a shipping company to pay liquidated damages of $1,000 per container for any container handled in violation of these provisions. The Rules also prohibit a shipping company from releasing any of its containers to a consolidator located within 50 miles of the port. The Administrative Law Judge's Decision After his initial discussion of the development of containerized shipping and the evolution of the Rules on Containers, the Administrative Law Judge analyzed the traditional work of longshoremen on the pier. 18 He described the many different tasks performed by longshoremen in connection with loading and unloading cargo onto and off of a ship, such as the sorting of loose cargo; the repairing of broken boxes and bags containing cargo; the carpentry work involved in consolidating loose cargo on pallets and in securing cargo of all types in the hold of a ship; and the maintenance of equipment used to move and load cargo. He also noted that, even before modern containers were developed, longshoremen had loaded and unloaded loose cargo into and out of reusable containers owned by the shipping lines, called Conex and Dravo boxes. He found the record clearly indicated that the job opportunities for ILA-represented longshoremen had been greatly diminished because of containerization and also that the Rules on Containers were negotiated in response to these inroads on the longshoremen's work. 19 The Administrative Law Judge then proceeded to consider whether the specific Rules on Containers negotiated by the ILA sought merely to preserve work traditionally performed by the longshoremen or instead attempted to acquire new work which longshoremen had not previously performed. He stated that his resolution of this question would be based on the guidelines set forth in National Woodwork,20 where the Supreme Court stated:2¹ The determination whether [the agreement] and its enforcement violated Section 8(e) and Section 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances, 38 the Union's objective was preservation of work for [bargaining unit] employees, or whether the agreement and boycott were tactically calculated to satisfy union objectives elsewhere. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees. 38 As a general proposition, such circumstances might include the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry. Analyzing the three factors mentioned by the Supreme Court as part of "the surrounding circumstances" to be considered, the Administrative Law Judge concluded that the first two factors were not of particular help in deciding this case since there was little dispute on those points. Thus, he found that the detrimental impact of containerization on the jobs available for ILA longshoremen was clear and therefore the threat of displacement was not remote. He also found that the evidence failed to disclose any significant ILA interest in the labor relations of the employers boycotted by the Rules. 22 However, he concluded that the third factor, the "economic personality of the industry," warranted further discussion. The Administrative Law Judge found that, when new technology creates a general loss of work in an industry, the right of a union to negotiate an 17 Essentially identical language has been adopted in the collectivebargaining agreements covering the Ports of Miami and Jacksonville, where the employer associations are not members of CONASA. 18 See sec. III,E, of his Decision. 19 See sec. III,F,1, of his Decision. 20 National Woodwork Manufacturers Association V. N.L.R.B., 386 U.S. 612 (1967). 21 386 U.S. at 644-645. 22 See sec. III,F,1, of his Decision. DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement restricting the use of that technology depends upon the role played by the contracting employer in developing the new technology. Thus, where the immediate employer of the employees who have lost work actually developed the new technology (e.g., through capital expenditure) or otherwise controls the use of this technology, then that immediate employer is the primary employer with which the union has a dispute, because it has actually undercut the job opportunities of its own employees. But, where the immediate employer did not develop the new technology and simply does business with other employers who actually developed and implemented the new technology, the immediate employer is merely a neutral or secondary employer, while the union's real dispute lies with the other employers who introduced the new technology. 23 The Administrative Law Judge concluded that the shipping lines in this case, which are the immediate employers of the longshoremen represented by the ILA, fell within the first example since the shipping lines themselves actually developed, introduced, and controlled the new technology which made containerized shipping possible. Therefore, he concluded that the ILA had a primary work preservation objective in negotiating an agreement with the shipping lines which restricted their use of this new container technology. The Administrative Law Judge rejected the contention that containerization had created a new integrated, intermodal transportation system, which had entirely eliminated the traditional work of the longshoremen on the pier. 24 He noted the evidence did not indicate that the work of loading and unloading cargo into and out of containers was now inseparably integrated with the other work performed in connection with the transportation of this cargo; rather, to the contrary, the evidence established that this work was presently being performed at a number of different locations by a number of different employers, including beneficial owners of cargo, consolidators, truckers, and warehouses. The Administrative Law Judge also rejected a contention that the ILA had abandoned any claim to this work when it negotiated an agreement with NYSA in 1959, which allowed containers not loaded or unloaded by ILA labor on the pier to pass over the pier intact but provided for a royalty payment to the ILA for each such container not loaded or unloaded by ILA labor on the pier. 25 He noted that the Board had sustained this contention in Conex, 26 but that the Court of Appeals for the Second Circuit had expressly disavowed the Board's abandonment theory in enforcing the Board's decision in Conex. 27 He also noted that the Court of Appeals for the District of Columbia Circuit had rejected a similar abandonment argument in its Associated Transport decision, 28 which was affirmed by the Supreme Court. 23 The Administrative Law Judge cited Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d 1178 (2d Cir. 1976), cert. denied 431 U.S. 974 (1976), and Associated General Contractors of California, Inc. V. N.L.R.B., 514 F.2d 433 (9th Cir. 1975), in support of this analysis. 24 See sec. III,F,3,a, of his Decision. 25 See sec. III,F,3,c, of his Decision. Finally, the Administrative Law Judge addressed the question of whether the Rules on Containers, which he found had an overall work preservation objective, nevertheless embodied a secondary objective because the immediate employers of the longshoremen had no right to control the loading and unloading of containers away from the pier. 29 He concluded that the shipping lines did have the right to control the assignment of this work, since they owned or leased the containers and could prescribe the conditions for the release of these containers to shippers, consolidators, truckers, and warehouses. He rejected the contention that various decisions of the Federal Maritime Commission as to the legality of the Rules on Containers under the national shipping laws were determinative as to the legality of the Rules on Containers under the National Labor Relations Act. Rather, he concluded that each administrative agency should confine itself to deciding those issues arising within its own statutory area of expertise, leaving any conflicts between national labor and transportation policies to be resolved by the courts. 30 Although the Administrative Law Judge concluded that the ILA had an overall work preservation objective in negotiating the Rules, he found that it was still necessary to examine the actual application of the Rules on Containers to various types of work in order to determine whether the Rules were tailored to preserving the particular work traditionally performed by longshoremen or rather encompassed additional work, such as work traditionally performed by other employees which was functionally distinct from the traditional work of longshoremen or which had not been created by the new technology. 31 The Administrative Law Judge then proceeded to analyze the general 50- mile rule as it applied to (1) consolidation of LCL cargo, (2) "shortstopping," which is the loading or 26 221 NLRB at 960. 27 537 F.2d at 706. 28 613 F.2d at 910-911. 29 See sec. III,G, of his Decision. 30 In adopting these conclusions of the Administrative Law Judge, we find it unnecessary to rely on his discussion of the decisions of the Federal Maritime Commission, since we agree with his ultimate conclusion that the FMC rulings are not determinative of the issues in this case. 31 See secs. III,F,1, and III,F,3,b, of his Decision. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION unloading of FSL cargo by truckers in connection with surface transportation, and (3) the loading and unloading of FSL cargo by warehouses. Consolidation³² In the Rules on Containers, the ILA has claimed the work of loading and unloading all consolidated (LCL) containers coming from or going to points within 50 miles of the port. The Administrative Law Judge found that ILA-represented longshoremen had traditionally performed work which was functionally related to this work, i.e., the work of consolidating loose cargo onto pallets, loading cargo into Conex and Dravo boxes, and performing the various other tasks done to prepare loose cargo for loading into the hold of a ship. He found that while some of the claimed work was performed by longshoremen on the pier after containerization, the vast majority of this work was being performed by consolidators away from the pier. He noted that this work was actually diverted away from the pier by the shipping lines themselves, who discouraged small shippers from dealing with them directly by referring shippers of LCL cargo to offpier consolidators and by issuing tariffs charging lower rates for shipping LCL cargo consolidated off the pier than for LCL cargo sent directly to the shipping lines for ocean transport. He found that the 50-mile limit on the ILA's claim was based on a compromise worked out by the ILA and NYSA in 1968, which was intended to preserve for longshoremen that portion of the total container work in the Port of New York which they were actually performing at that time (about 20 percent). He concluded that the 50-mile rule, as applied to consolidated containers, was a rational attempt to claim only that work actually performed in the general area surrounding the port, which had previously been performed on the pier by longshoremen. Therefore, he found that the Rules on Containers did not violate Section 8(e) and Section 8(b)(4)(B) as applied to those companies functioning as consolidators within 50 miles of the port, which might include truckers and warehouses as well as consolidators. 33 Shortstopping³⁴ In the Rules on Containers, the ILA has also claimed the work of loading and unloading all FSL containers coming from or going to points within 50 miles of the port, with certain exceptions not relevant to truckers. It is clear that the Administrative Law Judge considered the work claimed by this Rule to be functionally related to the traditional work of longshoremen in loading and unloading cargo on and off a ship for ocean transport. In addition, the Administrative Law Judge's analysis set forth above in the section on consolidation, finding the 50-mile limit on the ILA's claim to be a rational attempt to preserve existing unit work, also applies to this Rule. However, unlike his findings with respect to the consolidation work, the Administrative Law Judge found that no work claimed under this Rule had been diverted away from the piers as a result of containerization. Rather, he found that the work claimed under this Rule, at least as it applied to truckers, had traditionally been performed both by longshoremen on the pier and by truckers away from the pier. Thus, before containerization, longshoremen first unloaded cargo from a ship at the pier, then longshoremen and truckers loaded this cargo into a truck at the pier for transport to a local trucking terminal, where truckers unloaded the cargo from the truck and reloaded it into another truck for over-theroad transport. The reverse procedure also OC- curred. The Administrative Law Judge noted that, historically, the unloading and reloading work done by the truckers at local terminals was not done on behalf of shippers, but rather was done for reasons related to surface transportation, such as to combine several smaller truckloads into one larger truckload for delivery to the same geographic destination. The Administrative Law Judge found that, after containerization, truckers performed no new work at the local terminals. Instead the truckers merely continued to perform the same unloading and reloading they had always done, still for reasons related to surface transportation, such as to combine several container loads into one larger truckload, to reposition the cargo in compliance with state safety regulations, or to use trailers compatible with over-the-road tractors, which some containers are not. After containerization, however, the longshoremen no longer duplicated this work on the pier. The Administrative Law Judge concluded that the 50-mile rule, as applied to FSL containers handled by truckers, sought to claim work traditionally performed by other employees which was not created by containerization and therefore violated Section 8(e) and Section 8(b)(4)(B).³⁵ 32 See sec. 1II,F,3,b,(1), of his Decision. 33 The Administrative Law Judge dismissed the entire complaint in the following cases involving only consolidators: Dolphin Forwarding, Conex, and Puerto Rico Marine Management. 34 See sec. III,F,3,b,(2), of his Decision. 35 The Administrative Law Judge found such a violation in Associated Transport, the only case involving shortstopping. See sec. III,H,3, of his Decision. However, he noted that the 50-mile rule, as applied to LCL or consolidated containers, would be lawful even where applied to truckers since any other result would subvert the valid work preservation objectives of that rule. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehousing³⁶ Analysis In claiming the work of loading and unloading all FSL containers coming from or going to points within 50 miles of the port, the ILA makes an exception for those FSL containers to be unloaded and stored at a warehouse for more than 30 days; however, all other loading and unloading of FSL containers at local warehouses would be prohibited by this rule. The Administrative Law Judge found that ILA-represented employees had traditionally performed loading, unloading, sorting, checking, and handling work for cargo stored on a shortterm basis at marine terminal warehouses located on the pier, in addition to the traditional work performed by longshoremen in loading and unloading cargo on and off a ship. He found that some of this short-term warehousing work was diverted away from the pier after containerization and that the 30- day storage exception was a rational attempt to distinguish between short-term storage at a marine terminal warehouse and long-term storage at an inland public warehouse, since inland public warehouses traditionally imposed a minimum monthly charge. However, he also found that some of the short-term and long-term warehousing work claimed under this rule had never been performed by ILA-represented employees at their pier, but rather had traditionally been performed only by employees at inland public warehouses, such as the ongoing storage of a manufacturer's goods for distribution on short notice to customers based on future orders and the ongoing storage of a company's purchased inventory for distribution on short notice to its foreign facilities as demand required. He concluded that the 50-mile rule, as applied to the loading and unloading of FSL containers performed in connection with warehousing services traditionally offered only at inland public warehouses, sought to acquire work traditionally performed by other employees which was not created by containerization and therefore violated Section 8(e) and Section 8(b)(4)(B). However, he concluded that an analysis as to how the rule had been applied to acquire such traditional off-pier warehousing work would have to be made on a case-by-case basis, since the evidence indicated that the ILA was entitled to claim some of the short-term warehousing work. 37 36 See sec. III,F,3,b,(3), of his Decision. 37 Thus, in Hill Creek Farms, the Administrative Law Judge dismissed the entire complaint because it involved the unloading of FSL containers of refrigerated meat and warehousing for less than 30 days, since the short-term warehousing of frozen meat was traditionally performed by ILA-represented employees at a cold storage warehouse on the pier. In Terminal Corporation, he dismissed that part of the complaint dealing with the loading of FSL containers since the warehouse employees did not do the loading in connection with any traditional warehousing services, but he found a violation as to that part of the complaint dealing While we agree with the Administrative Law Judge's findings and conclusions, 38 we clarify his Decision in two respects. First, it is important to set forth an explicit definition of the work in dispute. Second, we find it necessary to modify the rationale used by the Administrative Law Judge in finding that the Rules on Containers were illegal as applied to shortstopping and to certain warehousing operations. The Supreme Court has clearly indicated that "the first and most basic question" we must answer in this remanded proceeding is "What is the 'work' that the agreement allegedly seeks to preserve?" Although the work in dispute is apparent from a reading of the Administrative Law Judge's lengthy discussion of the work preservation issue, he never actually defined the work in controversy in his Decision. Clearly, he considered the work at issue to be the work claimed by the Rules on Containers. However, to clarify the record on this point, we find that the work in dispute is the initial loading and unloading of cargo within 50 miles of a port into and out of containers owned or leased by shipping lines having a collective-bargaining relationship with the ILA. We agree with the Administrative Law Judge's conclusion that the ILA had an overall work preservation objective in negotiating the Rules on Containers. We also agree with his findings and conclusions regarding the application of the general 50- mile rule to consolidation, shortstopping, and warehousing. However, in adopting his conclusion that the Rules on Containers violated the Act as applied to shortstopping and to certain warehousing practices, we find it unnecessary to rely on his findings that an illegal work acquisition objective is revealed in the Rules because they "seek to compensate longshoremen for losses at the expense of inland employees whose jobs did not derive from containerization. "40 By focusing on the economic character of the trucking and warehousing industry and on the work historically performed by trucking and warehousing employees, the Adminiswith the unloading of FSL containers of a manufacturer's goods which were then warehoused both shortand long-term for distribution against future orders. In Beck Arabia, he found a violation based on the loading of FSL containers with a construction company's purchased inventory which had been warehoused both shortand long-term before being loaded for shipment to its foreign construction sites. See secs. III,H,4; III,H,5; and III,H,6, respectively, of his Decision. 38 In the third paragraph of sec. III,H,7, of his Decision, the Administrative Law Judge stated, "Evidence does show that either had ever authorized SFEPA to bargain in their behalf." Apparently, the Administrative Law Judge intended to state, "Evidence does not show that We therefore correct this inadvertent error. 39 477 U.S. at 505. 40 Fifth paragraph of sec. III,F,3,b, of his Decision. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION trative Law Judge's analysis appears to conflict with the Supreme Court's directions to us in its remand of this case. While the Supreme Court stated that our inquiry in this complex case would "require a broader view, taking into account the transformation of several interrelated industries or types of work the Court continued to emphasize that "the inquiry must be carefully focused on the work of the bargaining unit employees, not on the work of other employees who may be doing the same or similar work. "41 The Administrative Law Judge's findings give undue emphasis to the work historically performed by trucking and warehousing employees and to the fact that this work was not created by containerization. We find that the proper emphasis is on the traditional work of the longshoremen and what has happened to that work. We agree with the Administrative Law Judge's finding that the work of loading and unloading containers claimed by the Rules is functionally related to the traditional loading and unloading work of the longshoremen. It is clear from the Administrative Law Judge's findings on consolidation that no new work was created for consolidators after containerized shipping began. Rather, a large part of the longshoremen's traditional work was diverted away from the pier to the consolidators. Therefore, the ILA had a lawful work preservation objective in claiming this work under the Rules. The Administrative Law Judge also found that no new work was created by containerization for trucking and warehousing employees. Further, in contrast to consolidation, no work was diverted away from the pier to the truckers and warehouses as a result of containerization, at least as to those shortstopping and traditional warehousing services involved where he found violations. Rather, after containerization, some of the traditional loading and unloading work of the longshoremen, which had historically been duplicated by trucking and warehousing employees, essentially was eliminated. While we agree with the Administrative Law Judge's conclusion that the ILA had an unlawful work acquisition objective in claiming this loading and unloading work which is now done solely by trucking and warehousing employees in connection with shortstopping and traditional warehousing services, we do not agree with his reliance on the fact that the work now done by the truckers and warehouses is work which was not created by containerization. Instead, we point to the fact that, be- 41 477 U.S. at 507. 42 Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d 1178 (2d Cir. 1976), cert. denied 431 U.S. 974 (1977). 43 Associated General Contractors of California, Inc. V. N.L.R.B., 514 F.2d 433 (9th Cir. 1975). cause of the efficiency of the new technology, the duplicative work of the longshoremen, in handling cargo which is then rehandled by truckers and warehouses, no longer exists as a step in the cargohandling process. This can be analogized to the situations in Carrier Air Conditioning⁴² and Associated General Contractors,⁴ where the creation of a new product entirely eliminated the work which the bargaining unit employees were seeking to preserve in the agreements found to be unlawful. Therefore, we conclude that the Rules on Containers as applied to shortstopping and traditional warehousing practices have an illegal work acquisition objective. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent labor organizations in Associated Transport,4 Beck Arabia, Terminal Corporation,⁴⁶ and Custom Brokers,⁴ their officers, agents, and representatives, and the Respondent employers in Associated Transport48 and Custom Brokers,⁴ their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached Appendix H is substituted for that of the Administrative Law Judge. 44 International Longshoremen's Association, AFL-CIO, Hampton Roads District Council; International Longshoremen's Association, AFL- CIO, Atlantic Coast District Council; International Longshoremen's Association, AFL-CIO; and ILA Locals 333, 846, 862, 921, 953, 970, 1248, 1355, 1429, 1458, 1624, 1736, 1783, 1784, 1819, 1840, and 1970, AFL- CIO. 45 International Longshoremen's Association, AFL-CIO; International Longshoremen's District Council, Baltimore, Mayrland; International Longshoremen's Association, Local 953; and International Longshoremen's Association, Local 333. 46 International Longshoremen's Association, AFL-CIO; International Longshoremen's Association, Atlantic Coast District, AFL-CIO; International Longshoremen's Association, Local 333, AFL-CIO; and International Longshoremen's Association, Local 953, AFL-CIO. 47 International Longshoremen's Association, Locals 1416, 1416-A, 1680, 1526, 1526-A, and 1922, AFL-CIO. 48 Council of North Atlantic Shipping Associations, and Hampton Roads Shipping Association. 49 Southeast Florida Employers Port Association; Coordinated Caribbean Transport, Inc.; Chester, Blackburn & Roder, Inc.; Eagle, Inc.; Eller & Company, Inc.; Harrington & Company, Inc.; Strachen Shipping Company; and Marine Terminals, Inc. DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX H NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To ALL EMPLOYEES AND EMPLOYER-MEMBERS OF SOUTHEAST FLORIDA EMPLOYERS PORT ASSOCI- ATION WE WILL NOT participate in or give effect to any agreement, arrangement, or plan, express or implied, whereby employer-members of Southeast Florida Employers Port Association are to cease handling, transporting, or otherwise dealing in the products of any other processor, or to cease doing business with members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person, to the extent that such an agreement, arrangement, or plan is invoked as an aid to organizing employees and encouraging their membership in the International Longshoremen's Association, or its affiliates. WE WILL notify all our members and employees that we will not seek, participate in, or enforce any arrangement, agreement, or plan, express or implied, whereby access to maritime containers is afforded or denied to members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person engaged in work off the piers, on the basis of whether they do, or do not, employ members of the International Longshoremen's Association, or its affiliates. SOUTHEAST FLORIDA EMPLOYERS PORT ASSOCIATION CHESTER, BLACKBURN & RODER, INC. COORDINATED CARIBBEAN TRANS- PORT, INC. EAGLE, INC. ELLER & COMPANY, INC. HARRINGTON & COMPANY, INC. STRACHEN SHIPPING COMPANY MARINE TERMINALS, INC. DECISION AND SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This consolidated proceeding derives essentially from remand by the Supreme Court of the United States on June 20, 1980, in N.L.R.B. V. International Longshoremen's Assoc ation, AFL-CIO, et al., 447 U.S. 490, whereby remedi: orders of the National Labor Relations Board in Dolphi Forwarding, Inc., 236 NLRB 525 (1978), and Associate Transport, Inc., 231 NLRB 351 (1977), were vacated Pursuant thereto, said cases were remanded for furthe consideration of the Board's conclusion in each that th "Rules on Containers" negotiated between the ILA an various steamship associations embodied a secondary ob jective and hence were banned as "hot cargo" agree ments under Section 8(e) and, further, that enforcemen thereof resulted in secondary boycotts as set forth ii Section 8(b)(4)(B) of the Act.¹ Pursuant thereto, by Orders dated January 19 anc February 18 and 20, 1981, said cases were consolidated with others pending at various administrative or judicia levels which also presented issues concerning the validity of the Rules on Containers. Thus, the instant proceeding was broadened to include the following: 1. Consolidated Express, Inc., 221 NLRB 956 (1975), enfd. 537 F.2d 706 (2d Cir. 1976), cert. denied 429 U.S. 104 (1977).2 2. Puerto Rico Marine Management, Inc., 245 NLRB 1320 (1979), and Beck Arabia, Ltd., 245 NLRB 1325 (1979), both of which were pending before the Courts of Appeals for the Fifth and Fourth Circuits, respectively, at the time of the Supreme Court's decision. 3. The Terminal Corporation, 250 NLRB 8 (1980), which the Board elected to reconsider, sua sponte. 4. Hill Creek Farms, Inc., Cases 4-CC-1133 and 4 CE-55, and Custom Brokers and Forwarders Association of Miami, Inc., Case 12-CE-30, which were pending before the Board at the time of the Supreme Court's decision on exceptions to decisions of administrative law judges. 5. Also consolidated with the above cases was a new complaint issued in American Trucking Associations, Inc., et al., on February 10, 1981, which formed the predicate for a 10(1) injunction against enforcement of the Rules on Containers during the period following issuance of the Supreme Court's decision.³ Pursuant to an Order of the Board, on February 24, 1981, on due notice, a prehearing conference was conducted before me. Thereafter, offers of proof were submitted on behalf of the parties requesting further hearing. On March 13, 1981, I issued an Order To Show Cause why certain portions of the submitted offers of proof should not be accepted as fact.4 Further, on March 19, 1981, I issued "Rulings on Offers of Proof and Definition Certiorari was granted by the Supreme Court from the Circuit Court of Appeals for the District of Columbia, which at 613 F.2d 890 (D.C. Cir. 1979) denied enforcement and remanded. 2 The Second Circuit Court of Appeals which had enforced the violations found by the Board in Consolidated Express, Inc., the lead case treating the "Rules," recalled its mandate and remanded that case to the Board pursuant to the Supreme Court's decision referred to above. 3 A 10(1) injunction was issued on February 24, 1981, restraining enforcement of the Rules in all Gulf and Atlantic ports, by District Judge Herbert J. Stern in Pascarell V. New York Shipping Association, Inc., el aL, No. 81-13 (D.C.N.J.). Judge Stern's ruling was subsequently affirmed by the Court of Appeals for the Third Circuit. 650 F.2d 19 (1981). 4 See ALJ Exh. 4(a). INTERNATIONAL LONGSHOREMEN'S ASSOCIATION of Issues To Be Litigated at Hearing"5 and on March 30, 1981, I issued a "Ruling on Order To Show Cause and Further Definition of Issues To Be Litigated at Hearing."6 On April 7, 1981, the hearing was opened before me in New York City, New York. On that date, the parties stipulated that the entire proceeding be decided upon: (1) the existing records in these consolidated cases,⁷ (2) certain material on pages 25, 26, and 27 of Administrative Law Judge's Exhibit 4(a), (3) the record certified to the Third Circuit Court of Appeals in Pascarell V. N.Y.S.A., supra, the recent 10(1) proceeding,8 and (4) post-hearing submissions of "various public documents that would include the tariffs and bills of lading on file with the Federal Maritime Commission."9 On June 4 ATA-TMTA, and on June 15, 1981, Respondents, respectively, withdrew their requests for special permission to appeal the rulings theretofore made by me which were then pending before the Board. Accordingly, they, too, joined the above stipulation constituting the record herein. Thereafter, briefs were filed on behalf of the General Counsel; Charging Party ATA-TMTA; Charging Parties International Association of Non-Vessel Operating Common Carriers, Twin Express, Custom House Brokers and Forwarders Association of Miami, Inc.; Charging Party Houff Transfer, Inc.; Charging 5 See ALJ Exh. 4(b). Interlocutory appeals were taken from said rulings by Charging Parties American Trucking Associations and Tidewater Motor Truck Association (ATA-TMTA) and Respondents. 6 See ALJ Exh. 4(c). 7 Charging Party ATA-TMTA, at said hearing, declined to join said stipulation, reserving solely in the interest of perfecting a further offer of proof. Pursuant to rejection of said offer by me, ATA's appeal. Accordingly, ATA Exh. 9, consisting of collective-bargaining agreements negotiated between ILA and various employer groups in the Port of Hampton Roads, Virginia, during the year 1964, is hereby received. 6 Jt. Exh. 1. 9 Consistent with the aforesaid stipulation, after close of the hearing, the parties jointly stipulated to the submission of certain tariffs involved in the controversy over the Rules. Accordingly, the record is hereby reopened, and Jt. Exhs. 2(A), (B), and (C); 3; 5(A) and (B); 6(A), (B), and (C); 7; 8; 9; 10(A) and (B); 11(A) and (B); and 12(A) are hereby received. In addition, on a post-hearing basis, ATA-TMTA offered its proposed Exhs. 1 through 8 inclusive, consisting of tariffs filed with various Federal agencies. Those documents are public in nature and consist of matters of which official notice is taken. Further, they are within the guidelines set forth by me at the April 7 hearing, assented to by all parties, for the submission of post-hearing evidence. Accordingly, ATA's Exhs. 1 through 8 inclusive are received. The sole controversy regarding the post-hearing offers relates to two separate submissions proffered by Respondents NYSA, CONASA, and ILA. The first, Resps. Exh. 1, was filed on June 15, 1981. It consisted of a certified copy of the North Atlantic Continental Freight Conference Agreement No. 9214 on file with the Federal Maritime Commission. On June 30, 1981, ATA-TMTA filed objections to the receipt of the foregoing as beyond the scope of the stipulation, irrelevant, and immaterial. Contrary to ATA-TMTA, Resps. Exh. 1, together with other submissions of the parties, contributes to the relevant background, is within the contemplated agreement of the parties as to the documents to be offered on a post-hearing basis, and represents a document as to which official notice might be taken. Resps. Exh. 1 is received. A second submission was made by Respondents on July 6, 1981, consisting of an affidavit together with attachments, which are neither selfauthenticating nor public documents of which official notice might be taken. On July 9, 1981, counsel for ATA filed a formal opposition to the receipt of this proffer. Accordingly, as Respondents seek to expand the record as delimited at the hearing to include matter of a testimonial nature, under conditions transcending the agreement of the parties, Resps. Exh. 2 is hereby rejected. Party San Juan Freight Forwarding, Inc.; Respondents NYSA, CONASA, and ILA; Southeast Florida Employer's Port Association; Intervenor American Warehousemen's Association; and Intervenor International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Based upon the stipulated record, together with further rulings heretofore made herein, and upon consideration of the post-hearing briefs, it is hereby found as follows: FINDINGS OF FACT I. JURISDICTION¹ Respondent NYSA and Respondent CONASA are organizations composed of employers engaged in the interstate and international transportation of freight and commodities which exist for the purpose, inter alia, of representing their employer-members in negotiating and administering collective-bargining agreements with various labor organizations, including the ILA and the ILA Atlantic Coast District. Respondent West Gulf Maritime Association (WGMA) is an organization composed of employers engaged in the interstate and international transportation of freight and commodities which exists for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the ILA and the ILA South Atlantic and Gulf Coast Districts. Southeast Florida Employer's Association (SFEA) is an organization composed of employers engaged in the interstate and international transportation of freight and commodities which exists for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the ILA and the ILA South Atlantic and Gulf Coast Districts. Respondent Mobile Steamship Association, Inc. (MSA), is an organization composed of employers engaged in the interstate and international transportation of freight and commodities which exists for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the ILA and the ILA South Atlantic and Gulf Coast Districts. Respondent Steamship Association of Baltimore, Inc. (STAB), is an organization composed of employers engaged in the interstate and international transportation of freight and commodities which exists for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agree- 10 Jurisdictional findings made herein relate solely to Cases 22-CE-44 and 22-CC-806, et al., which arise upon a complaint issued on February 10, 1981, on unfair labor practice charges filed by ATA and by Twin Express, Inc., on December 19, 1980. Like findings with respect to the remaining cases have been previously made on full records, and do not bear repeating. DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments with various labor organizations, including the ILA and the ILA Atlantic Coast District. Respondent Hampton Roads Shipping Association (HRSA) is an organization composed of employers engaged in the interstate and international transportation of freight and commodities which exists for the purpose, inter alia, of representing its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the ILA and the ILA Atlantic Coast District and Hampton Roads District Council. The ATA is a trade association composed of 51 state motor carrier trade associations, including TMTA, which in turn are composed of individual motor carriers engaged in the interstate and international transportation of freight and commodities. Twin Express, Inc., a New Jersey corporation with an office and place of business in North Bergen, New Jersey, has been a Non-Vessel Operating Common Carrier engaged in overseas transportation of freight and commodities. The International Association of Non-Vessel Operating Common Carriers (IANVOCC) is a trade organization composed of employers, including Charging Party Twin Express, Inc., engaged in the interstate and international transportation of freight and commodities by sea. During the 12-month period ending on or about December 1, 1980, the employer-members of NYSA and CONASA, respectively, in the course and conduct of their above-described business operations, derived gross revenue in excess of $50,000 for the transportation of freight and commodities from the State of New Jersey and from the United States of America directly to various foreign countries. During the 12-month period ending on or about December 1, 1980, the employer-members of the WGMA, in the course and conduct of their above-described business operations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of Texas directly to points outside the State of Texas and from the United States of America directly to various foreign countries. During the 12-month period ending on or about December 1, 1980, the employer-members of the SFEA collectively, in the course and conduct of their above-described business operations, derived gross revenues of $50,000 for the transportation of freight and commodities from the State of Florida directly to points outside the State of Florida and from the United States of America directly to various foreign countries. During the 12-month period ending on or about December 1, 1980, the employer-members of the MSA collectively, in the course and conduct of their above-described business operations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of Alabama directly to points outside the State of Alabama and from the United States of America directly to various foreign countries. During the 12-month period ending on or about December 1, 1980, the employer-members of the STAB collectively, in the course and conduct of their above-described business operations, derived gross revenues in excess of $50,000 for the transportation of freight & commodities from the State of Maryland directly points outside the State of Maryland and from 1 United States of America directly to various forei countries. During the 12-month period ending on or about I cember 1, 1980, the employer-members of HRSA colle tively, in the course and conduct of their above-c scribed business operations, derived gross revenues excess of $50,000 for the transportation of freight ai commodities from the Commonwealth of Virginia direc ly to points outside the Commonwealth of Virginia ai from the United States of America directly to vario foreign countries. During the 12-month period ending on or about D cember 1, 1980, the employer-members of the IAN VOCC collectively, in the course and conduct of the above-described business operations, derived gross re enues in excess of $50,000 for the transportation ( freight and commodities from the State of New York d rectly to points outside the State of New York and from the United States of America directly to various foreig countries. During the 12-month period ending on or about De cember 1, 1980, Twin Express, Inc., in the course and conduct of its above-described business operations, de rived gross revenues in excess of $50,000 for the trans portation of freight and commodities from the State o New Jersey directly to points outside the State of New Jersey and from the United States of America directly tc various foreign countries. During the 12-month period ending on or about December 1, 1980, employer-members of ATA, including TMTA, in the course and conduct of their business, derived gross revenues exceeding $50,000 for the transportation of freight and commodities between the various States of the United States of America. The complaint, as amended, alleges, the answer admits, and I find that Respondents NYSA, CONASA, WGMA, MSFA, STAB, and HRSA are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. The complaint, as amended, alleges, the answer admits, and I find that the employer-members of the IANVOCC and subordinate bodies of ATA, including TMTA, are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and persons engaged in commerce within the meaning of Section 8(b)(4) of the Act. The complaint, as amended, alleges, the answer admits, and I find that Twin Express, Inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a person engaged in commerce within the meaning of Section 8(b)(4) of the Act. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION II. THE LABOR ORGANIZATIONS INVOLVED The complaint, as amended, alleges, the answer admits, and I find that International Longshoremen's Association, ILA Atlantic Coast District, ILA Hampton Roads District Council, and ILA South Atlantic and Gulf Coast Districts are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Definitions Unitization-The consolidation of a number of individual items into a larger shipping unit for easier handling. It is also the securing or loading of one or more items of cargo onto a single structure, such as a pallet. Stripping-The act of unloading cargo from a container. Stuffing-The act of loading cargo into a container. LCL or Consolidated Container Load-A container which consists of cargo of more than one shipper or consignee. FSL-A container which consists of cargo of a single shipper or consignee. Shortstopping-A practice of motor carriers whereby loaded containers are stripped and reloaded into surface trailors. LTL-A surface trailer which includes less than a load to capacity or cargo of more than one shipper or consignee. Bill of Lading-The contract of cartage between a carrier and shipper, consignee, or their agent pertaining to cargo transport. Interchange Agreement-Agreement between steamship company and shippers, consignees, their agents, and trucking companies pertaining to their use of the former's containers. Tariff-Rates, services, and conditions published by a carrier informing shippers, consignees, and their agents as to rates and terms governing cargo transport. NVOCC-A Non-Vessel Operating Common Carrier by sea, which is licensed by the Federal Maritime Commission (FMC) to provide ocean transport services. Though they neither own nor operate ships, they are treated by the FMC as a carrier. FAK Rate (Freight, All Kinds)-The discount afforded under tariffs of steamship companies to shippers who consolidate containerized cargo away from the piers. Also referred to as the "consolidators allowance." House to House-Import maritime trade designation that container be delivered from initial surface shipping point to surface destination without intermediate stripping. Pier to House-Import maritime trade designation that container stuffed at port of export be delivered to surface destination without intermediate stripping. House to Pier-Import maritime trade designation that container be delivered from initial surface shipping point to import pier for stripping. Pier to Pier-Import maritime trade designation that container stuffed at pier on export be stripped on arrival at pier on import. B. Preliminary Statement This omnibus proceeding opens a further round of litigation concerning labor restraints upon the utilization of seaborne containers. Hopefully, reconciliation of the issues involved will extend a measure of predictability to labor and industry as to the circumstances under which collective bargaining may dictate lawfully, directly or indirectly, the conditions under which shippers, importers, and their agents must adapt their methods of operation to that technological advance. Broadly stated the critical issues center upon collision between the provisions of the Act which, on the one hand, protect employee utilization of collective bargaining to preserve their job security, and, on the other hand, those which protect neutral employers from secondary boycotts by interdicting negotiated contracts designed to broaden a job-security dispute beyond the immediate employer. The various complaints which form the heart of this proceeding are addressed to the so-called Dolphin Agreement and its progeny. By virtue thereof, CONASA and the ILA agreed to job guarantees for deep sea ILA labor which imposed limitations upon container handling by others at offshore locations within 50 miles of the port. This so-called 50-mile rule has impacted adversely upon container handling practices within various segments of the seaborne transport industry, including freight consolidators, motor carriers, and warehousemen. The latter are within the class who, in this proceeding, seek relief from the 50-mile rule, and join the General Counsel in urging that the Rules on Containers possess secondary objectives within the ban of Sections 8(e) and 8(b)(4)(A) and (B) of the Act. Insofar as material, these sections of the Act provide as follows: 8(e) It shall be unfair labor practice for any labor organization and any employer to enter into any agreement whereby such employer agrees to cease or refrain from handling, using, selling, transporting or otherwise 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 into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void 8(b)(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (A) forcing or requiring any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e); (B) forcing or requiring any person to cease using, selling, handling, transporting, or other- DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise dealing in the products of any other producer, 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, where not otherwise unlawful, any primary strike or primary picketing. [Emphasis supplied.] C. The Issues Basically, the Rules on Containers in the form negotiated in 1973 allowed containers, both export and import, to pass over the piers intact if stuffed more than 50 miles beyond the port area in the case of export cargo, or destined intact to a point more than 50 miles beyond the port area in the case of import cargo. Also exempted were those stuffed or stripped within the port by employees of the beneficial owner of the cargo or, in the case of import cargo, those stripped by a bona fide warehouse contemplating storage and charges for the cargo for at least 30 days. All containers involved in domestic intercoastal maritime trade were also exempt. With respect to all others, the Rules awarded deep sea ILA labor the right to stuff or strip containers if that work was to be performed within the 50-mile geographic area of the port. This work allocation formula was to be enforced by the payment of liquidated damages by steamship companies in the amount of $1,000 per container for each infraction of the Rules, and, more importantly, by a prohibition upon steamship companies from releasing their containers to those engaged in practices in contravention of the Rules. The challenge to the legitimacy of these Rules under the National Labor Relations Act opened with the filing of unfair labor practice charges on June 1, 1973, in Consolidated Express, Inc., 221 NLRB 956, herein referred to as Conex, on behalf of two offshore consolidators engaged, inter alia, in the consolidation of export cargo within the 50-mile port area. In that case the National Labor Relations Board, with approval of the Second Circuit Court of Appeals, concluded that the Rules violated Section 8(e), and that their enforcement against the freight forwarders violated Section 8(b)(4)(B) of the Act. The issue turned upon whether the objective underlying the Rules was work preservation or work acquisition. Broadly stated, a labor organization may legitimately preserve or recapture work traditionally performed within the collective-bargaining unit which is threatened or diminished by shifts in the contracting employer's operational methods. On the other hand, negotiated agreements or pressures to force a contracting employer to cease doing business with others runs afoul of the statutory restraints on secondary boycotts where undertaken to acquire new work not formerly performed by represented employees. In the latter context, the contracting employer is a neutral, with the union's real grievance being with nonunit employers whose employees are engaged in the performance of such work. Accordingly, the Board in Conex examined the work sought by the Rules and, after contrasting that traditionally performed by waterfront labor with that of the offshore consolidators, rejected the defense urged by the ILA and the N York Shipping Association (NYSA) that the Ru merely had the primary objective of preserving W( lost by longshoremen. It was reasoned that traditio longshore work had been to load and unload ships, a duties incidental thereto, all of which was performed the pier. On the other hand, the work in controver and claimed by the Rules, was viewed as that tradition ly performed by consolidators at offshore locatio: Thus, the Rules were viewed as an effort by the ILA acquire new work, rather than to preserve that whi was historically performed at the pier. Prior to the Supreme Court's consideration of t Board's position, complaints were issued challenging t legitimacy of the Rules as they applied to NVOCCs, warehousemen who stripped or stuffed containers with the port area,¹³ and motor carriers that shortstopp containers for stripping at trucking stations within tl port area. 14 All of these cases have been consolidated this proceeding. Among them, Associated Transport and Dolphin we: reviewed by the Court of Appeals for the District of C lumbia Circuit, 15 whereupon enforcement of the Board Orders therein were denied and both were remande Certiorari was granted by the Supreme Court. ] N.L.R.B. V. International Longshoremen's Association, 44 U.S. 490, a majority of the Supreme Court, speakin through Mr. Justice Marshall, agreed with the District ( Columbia Circuit that the Board had misapplied th work preservation doctrine as enunciated in Nationa Woodwork Manufacturers Association V. N.L.R.B., 38 U.S. 612 (1967), by defining the work in dispute as "th off pier stuffing and stripping of containers," a determi nation which was viewed as resting too heavily upon th element of "location" at the expense of other factor bearing upon whether, under all the surrounding circum stances, the Union's objective was preservation of worl for bargaining employees, or whether the agreemen "[was] tactically calculated to satisfy union objective elsewhere."16 12 Dolphin Forwarding, Inc., 236 NLRB 525, herein referred to as Dol phin; Puerto Rico Marine Management, Inc., 245 NLRB 1320; and Custon Brokers and Forwarders Association of Miami, Inc., Case 12-CE-30, JD- 147-80, herein called Custom Brokers. In this latter case, the Administra tive Law Judge dismissed a complaint alleging that the Rules violated Sec. 8(e) as applied in the Port of Miami. This holding, based upon the Administrative Law Judge's analysis of traditional work practices in that Port, represents the only exception to otherwise uniform determinations by the Board that the Rules were secondary on their face, and as enforced. The Board had not completed its review of that determination prior to remand of that case and its consolidation herewith. 13 See The Terminal Corporation, 250 NLRB 8, herein called Terminal, and Hill Creek Farms, Inc., Cases 4-CC-1133 and 4-CE-55, JD-188-81, herein called Hill Creek. As was true of Custom Brokers, the latter was pending on exceptions to the Board at the time of the Supreme Court's decision. One additional case, Beck Arabia, Ltd., 245 NLRB 1325, involved an off-pier operator who was also engaged in warehousing cargo, but who traditionally, prior to containerization, had been engaged in packing cargo for export in large boxes, either owned by it or supplied by its customers. (See Shipside Packing Company, Inc., 227 NLRB 654 (1976) and 227 NLRB 659 (1976).) 14 Associated Transport, Inc., 231 NLRB 351, herein called Associated Transport. 15 613 F.2d 890. 16 447 U.S. at 511. 11 537 F.2d 706. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Pursuant to the remand, and the consolidation orders of the Board, the following issues have been certified in this proceeding: 1. Whether, under more comprehensive examination of controlling principle, the Rules on Containers embody a proscribed secondary objective as seeking to acquire work neither traditionally performed, nor fairly claimable, by longshoremen in the primary work unit. 2. If not, whether the Rules on Containers nonetheless are to be deemed secondary as imposing an obligation upon signatory employers to guarantee work which they are powerless to assign to their employees. Said questions strike at the facial validity of the Rules. However, further questions of lesser impact are also presented. First, even assuming that the Rules are upheld as primary, and legitimately enforceable through labor caused disruption of business relationships, questions remain as to whether their application, in certain circumstances, reflect an expansive interpretation in furtherance of disputes not germane to matters of legitimate interest to the primary work unit.¹⁷ Finally, this consolidated proceeding includes a new complaint issued by the General Counsel on February 10, 1981, which for the first time is subject to litigation herein. That complaint relates to the action on December 6, 1980, of the ILA and various steamship associations operating within ports on the Atlantic and Gulf Coasts in agreeing to reimplement the Rules effective January 1, 1981. It raises issues under Section 8(e) and questions as to whether 8(b)(4)(i) and (ii) pressures were invoked for an object proscribed by Section 8(b)(4)(A), as well as Section 8(b)(4)(B). Before passing to more substantive areas it is necessary to observe certain unusual qualities concerning this proceeding, which itself encompasses nine separate cases. This vehicle provides an opportunity to resolve the validity of the Rules in all 36 major ports on the Atlantic and Gulf Coasts where longshoremen are represented by the ILA. This undertaking, to the extent influenced by practices before and after the advent of modern containers, necessarily turns upon factual development and an existing record confined to the Ports of New York, Philadelphia, Baltimore, Hampton Roads, Jacksonville, and Miami. This sample includes certain ports where imports constitute the greater percentage of cargo handled, and others were exports exceed imports substantially. Nonetheless, the record as now constituted is viewed as ample to permit universal findings with respect to the matters in controversy. Differences in the historic development of containerization and work practices in the areas fully examined on the extant records appear to be 17 For example, the General Counsel urges that, even if the Rules are validated under the work preservation and right-of-control tests, violations nonetheless exist in Beck Arabia because the steamship companies involved in that proceeding were not signatory to the Rules. A question also is raised by the General Counsel as to the propriety of a critical conclusion by the Administrative Law Judge in Custom Brokers that two offshore consolidators employing ILA labor, to whom work was directed as a result of ILA pressures, were actually part of the primary work unit. See, e.g., International Longshoremen's Association, Local 1575, AFL-CIO [San Juan Freight Forwarders], 560 F.2d 439 (1st Cir. 1977); International Longshoremen's Association, Local 1248, AFL-CIO (U.S. Naval Supply Center), 195 NLRB 273 (1972). insubstantial and fail to suggest any infirmity in this proceeding as an appropriate vehicle for resolution of the controversy on an all-port basis. 18 D. The Development of Containerization, the Impact of Containerization Upon Longshore Labor, and the Evolution of the Rules on Containers Mr. Justice Marshall succinctly defined the seaborne container technology as follows: Containers are large, reusable metal receptables, ranging in length from 20 to 40 feet and capable of carrying upwards of 30,000 pounds of freight, which can be moved on and off an ocean vessel unopened. Container ships are specially designed and constructed to carry the containers, which are affixed to the hold. A container can also be attached to a truck chassis and transported intact to and from the pier like a conventional trailer. Before the introduction of container ships, and as is still the case with conventional vessels, trucks delivered loose, or break-bulk, cargo to the head of the pier. The cargo was then transferred piece by piece from the truck's tailgate to the ship by longshoremen employed by steamship or stevedoring companies. The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship's hold. The process was reversed for cargo taken off incoming ships. With the advent of containers, the amount of onpier work involved in cargo handling has been drastically reduced, since the cargo need not be loaded and unloaded piece by piece. The amount of work available for longshoremen has been further reduced by the shipping companies' practice of making their containers available to shippers and 18 The basic struggle between dockside labor and employees of motor carriers, consolidators, and warehousemen is the same at each port. Many of those engaged at the surface end of the transport system operate on a multiport basis and others are free to relocate or otherwise pass their containers through ports of their choice. This is exemplified by the Philadelphia experience with respect to the importation of meat products. Thus, "reefers" or refrigerated containers containing frozen meat did not appear in the Port of Philadelphia until 1972 or 1973. Initially, all stripping of such containers occurred at portside by ILA labor. As time went by, the ILA allowed reefers to pass intact if designated "House to House" or "Pier to House." However, after the Union took action against certain Philadelphia warehousemen who allegedly violated the 30-day rule, unfair labor practice charges were filed and a 10(1) injunction obtained in June 1979 against enforcement of the Rules in the Port of Philadelphia. This injunction had a substantial impact on the work available to longshoremen flowing from the importation of meat from Australia and Venezuela. Thus, prior to the injunction, the Port of New York, which had few offshore cold storage facilities, received over 80 percent of the reefers containing imported meat. Of these, some 90 percent were stripped at the pier by deep sea ILA longshoremen. After the injunction issued, the principal port of entry for this product shifted from New York to Philadelphia. Shipments going to the Port of Philadelphia soon exceeded shipments received at the Port of New York. In Philadelphia, however, approximately 90 percent of the reefers were stripped off pier. DECISIONS OF NATIONAL LABOR RELATIONS BOARD consolidators for loading and unloading away from the pier. Containerization, then, was a technological advance of great importance to the shipping industry which at the same time threatened the jobs of longshoremen by dramatically increasing their productivity. As one might expect, the subject has been a hotly disputed topic of collective bargaining between the union and the employers. 19 Containerization is nothing more than a capital intense and sophisticated means of unitizing cargo. The concept of unitizing goods for transport in all probability dates back to the sack devised from animal skin, a means of conveyance which might well predate the wheel. In this sense, containerization is an outgrowth of the most primitive form of human resourcefulness. Although the sack continues as a usable form of unitization, in a more recent era the drive of man to save his energy, time, and costs led to the consolidation of cargo in cartons, crates, or bound to pallets. Where seaborne cartage was involved, whether longshoremen unified the loose cargo at the docks or simply handled it as unitized by the shipper or its agent depended on a number of factors, including services and facilities offered by the steamship company and the election of the shipper. A clear demarcation between who performed what, when, and where in connection with unitized marine cargo is probably one that never was and never will be subject to clear isolation between marine carriers and those who use and complement their services. Nonetheless, cargo prepackaged offshore through various methods utilizing nonmarine equipment, such as railroad cars, prior to and since the development of modern containerization²⁰ was almost always allowed to pass over the piers intact even though deep sea longshoremen possessed the ability and always did in fact perform similar work. Consistent with this practice, the Rules on Containers do not apply to cargo unitized through a shipper's device but only to containers owned or leased by signatory steamship companies. Insofar as the record in this proceeding indicates, adverse reaction on the part of the ILA historically to boxes outside the scope of this latter limitation was at best isolated, and never an institutional objective. In any event, the historic practices of the ILA to leave undisturbed cargo unitized through devices owned by nonmarine interests is viewed as lending little, if any, aid to resolution of the basic issues in this case. The advent of the modern container presented the unitization issue in a new light. Materials packed, bound, crated, or loaded offshore in a conveyance owned and exclusively held by shippers posed little threat to the traditional ILA work in the hold of the vessel. However, the oversea container was not only developed and financed by steamship companies, but its functional utility suggested to longshoremen that this innovation did no more than afford the hold of a vessel with inland transferability, thereby threatening not only their work, but 19 447 U.S. at 494-496. removal as well of the physical area that theretofore had been their exclusive work domain. The ILA's indifference to the former may not reasonably be equated with its reaction to the latter. 20 It is observed that in the late 1920's trade between New Orleans and Cuba was serviced by seagoing vessels specifically designed to carry freight cars without handling of their content on the docks. In tracing this reaction it is noted that the immediate forerunners of the modern container appeared on the waterfront in the late 1940's. The first to appear were the "Conex" and "Dravo" boxes. Both were owned by steamship companies, were reusable, and were customarily 8 feet in length. Initially, both were stripped and stuffed exclusively by deep sea ILA labor, but later, apparently at the request of certain shippers, were made available for offshore stuffing by non-ILA labor. 21 During the mid-1950's, larger containers ranging from 12 to 20 feet in length appeared in the Port of New York. However, until 1957, all were carried on the decks of conventional break-bulk vessels. In 1957, the first specialized container ship appeared in the Ports of New York and Jacksonville, Florida. 22 The reception afforded by the deep sea dockworkers to containerization was one of resistence. The first protest in the form of a grievance emerged in 1958 and arbitration thereof resulted in a ruling against the ILA. Collective-bargaining negotiations in 1959 opened with the ILA demanding that all containers be stripped and stuffed on the pier by dockside workers. 23 This was countered by NYSA with a demand that the employers be recognized as possessed of the unqualified right to inauguarate and regulate automated operations. The differences were ultimately resolved by an agreement recognizing the Employer's right "to use any and all types of containers without restrictions or stripping by the Union." But the settlement also included a provision that: "Any work performed in connection with the loading and discharging of containers for Employer-members of NYSA which is performed in the Port whether on piers or terminals controlled by them, or whether through direct contracting out, shall be performed by ILA labor at the longshore rate." The parties also agreed that a royalty would be paid to union welfare funds with respect to each container passed over the piers intact. 21 It does not appear that the ILA refused to handle these boxes intact, or in any way resisted. The practice of the steamship companies to release empty Dravo or Conex boxes to shippers for offshore stuffing appears to have been limited to Puerto Rican trade routes, and, although not specifically delimited by the evidence, it is hardly presumable that this extended to a significant percentage of tonnage when compared with the total volume of break-bulk. 22 Mechanized equipment for the handling of containers came much later in other ports. Thus, in Philadelphia, Baltimore, and Hampton Roads modern containers did not appear until the mid-1960's, with the first container crane appearing in Philadelphia in 1971, and in Baltimore in 1968. 23 During the period which coincided with the development of containerization, the ILA sought a change in the basic bargaining format in the industry. Thus, prior to 1956, the ILA and NYSA negotiated agreements in the Port of New York and, after agreements had been reached in those negotiations, the ILA would bargain with various associations in the other ports. In that year, ILA sought to extend the framework of bargaining to a coastwide basis. Following a strike, it was agreed that NYSA would execute a master contract on behalf of itself and the other Atlantic ports with respect to certain basic issues. After negotiation of the master agreement, local agreements would be negotiated in the individual ports. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION As a practical matter the 1959 agreement did little to allay unrest. Its term was marked by wildcat strikes in protest of containerization. Employee disenchantment was fanned by ILA's interpretation of the 1959 agreement as only permitting the free movement of those containers which originated beyond the port area and as not affording the steamship companies any rights with respect to LCL containers. This ongoing dispute led to the issuance of a formal statement to the ILA by NYSA on February 28, 1962, which led to the first accord imposing a restraint on offshore consolidation of containers. In material part, the NYSA conceded as follows: Where an employer-member of NYSA supplies a container which is the property of such member, to a consolidator for loading or discharging of cargo in the Port of Greater New York, it will be stipulated that such container must be loaded or unloaded by ILA at longshore rates. The 1962 contract renewal negotiations again involved issues concerning job security raised on behalf of the ILA, with NYSA seeking full relief from the earlier imposed restrictions. A strike ensued. The Taft-Hartley emergency disputes package was invoked, and a Presidential mediation panel headed by Senator Wayne Morris recommended that a comprehensive study on manpower utilization and security be prepared by the United States Department of Labor within the ensuing term of the new agreement. The parties accepted this recommendation and in consequence no changes were made at that time to the containerization provisions. However, the employers agreed to establish a guaranteed income plan (GAI) which was the first of its kind in the industry. Here again the settlement failed to stabilize unrest on the waterfront. Again during its term longshoremen refused to handle prestuffed containers and in 1966 the ILA sought to reopen the agreement with respect to the container issue. NYSA declined this latter request, but met on a number of occasions with the ILA in an unsuccessful effort to resolve the continuing problem. In the meantime, as of 1967, though containerization had been largely confined to the Puerto Rican trade route, the tonnage of containerized cargo had reached 20 percent of all cargo handled in the Port of New York. That same year, the large North Atlantic trade route, which had previously been served exclusively by conventional bulk cargo vessels, was augmented by the introduction of the first fully containerized vessel by Sea Land Service, Inc., the steamship company that has been dubbed the pioneer of containerization technology. Competitive conditions led many steamship companies to embark on new programs for the building and utilization of specialized container vessels and equipment. New contract negotiations scheduled for 1968 were preceded by an ILA convention in Miami Beach in 1967 at which a resolution was adopted requiring all containers to be stuffed and stripped by ILA labor at deep sea rates at waterfront facilities, piers, or terminals. ILA opened the 1968 negotiations with a demand tailored to that resolution, and once more containerization had become the major issue dividing the parties. A strike of 57 days ensued in the Port of New York, which continued for more than 100 days in certain other ports on the Atlantic and Gulf Coasts. The emergency disputes provisions of the Taft-Hartley Act were invoked with the board of inquiry defining the issues as follows: The two critical issues relate to union-wide collective bargaining and the impact or consequence of containerization and mechanization. The resulting agreement included a provision making it clear that LCL containers consolidated in the port area were to be stuffed and stripped by ILA labor at the piers or docks. The specific terms of this restriction are set forth below: Containers owned or leased by employer-members (including containers on wheels) container LTL loads or consolidated full-container loads, which are destined for or came from, any person (including a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo including a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not the beneficial owner of the cargo, and which either comes from or is destined to any point within a 50 mile radius from the center of any North Atlantic District port shall be stuffed and stripped by ILA labor at longshore rates on a waterfront facility under the terms and conditions of the General Cargo Agreement. At the same time, agreement was reached to increase the GAI contributions. 24 The compromise negotiated in 1969 was not substantially dissimilar and may be said to have codified the position taken by NYSA in its letter to ILA of February 28, 1962. It was recognized that this accord contractually reserved to the ILA deep sea labor only 20 percent of the total containerized cargo handled in New York, with the remaining 80 percent excluded from any ILA stuffing and stripping restrictions. 25 24 Testimony discloses that the "50 mile rule" finds its origin in grievance processing dating back to 1957 in the Port of New York. Thus, the term "50 miles from Columbus Circle" had been repeatedly relied upon in resolving grievances and labor disputes during that period. The covered area included the Long Island, New York City, and New Jersey docks which had been historically recognized as encompassing the Port of New York. See the affidavit of Edward J. Heine, Jr., Jt. Exh. 1, pp. 1035 and 1038. 25 Intercontinental Container Transport Corporation sought to enjoin enforcement of this version of the Rules based on their alleged illegality under the antitrust laws. The United States Court of Appeals for the Second Circuit, in International Container Transport Corporation V. New York Shipping Association, Inc. and International Longshoremen's Association, 426 F.2d 884 (2d Cir. 1970), concluded that the 1969 Rules were lawful as within the antitrust exemption for labor agreements. At the same time, the moving party in that proceeding filed unfair labor practice charges with the National Labor Relations Board in Cases 22-CE-12 and 22-CC-389. Those charges were dismissed by the Regional Director for Region 22. Said dismissal was affirmed by the General Counsel of the National Labor Relations Board on October 16, 1970. DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 1970's brought about a dramatic increase in containerization. 26 Utilization of containers in new international trade routes continued to broaden. Prior to the 1971 negotiations, certain steamship associations, including the NYSA, STAB, HRSA, PMTA, The Boston Shipping Association, Inc., and the Rhode Island Shipping Association, Inc., formed CONASA as a multiemployer bargaining association representing them in negotiations with the ILA on a multiport basis. Thus, instead of NYSA negotiating the pattern agreement, the ILA negotiated such an agreement with CONASA. Said negotiations were confined to wages, hours, welfare contributions, pension contributions, agreement term, containerization, and LASH. Other terms and conditions were to be reserved for negotiation locally in each of the separate ports. CONASA was apparently an outgrowth of compromise in response to the Union's demands dating back to 1968 for coastwide collective bargaining. The 1971 negotiations resulted in a coastwide strike which was enjoined by a Taft-Hartley injunction. Containerization was again the key issue, with the ILA not so much concerned with further restrictions on the utilization of containers, but upon methods of assuring that the existing rules were honored uniformly and without their violation being condoned by the steamship companies. The settlement ultimately renewed the contract for a term of 3 years, incorporating the existing rules in the new agreements with minor modifications, including an increase in the royalty payments. Continuing concern on the part of the ILA as to nonenforcement of the Rules dated from their inception in 1968. Finally this problem came to a head in mid-1972 when the ILA, through its president, Thomas W. Gleason, informed NYSA that rule infractions "have now grown to where there is a complete abrogation and disregard of the contract with respect to the loading and stripping provisions." At that time, notice was served upon participating employers that, unless all violations were stopped immediately, the ILA would invoke its contractual right to suspend the Rules, an eventuality which was generally understood as the equivalent of a threat to refuse to handle any containers stripped or stuffed inland. In response, the NYSA informed all steamship carriers and stevedore companies by letter on May 12, 1972, that the Rules must be strictly observed, stating, "The ILA is particularly disturbed by the in- 26 It is noted that in an affidavit an expert witness related that "by the end of 1968 more than 50 percent of U.S. imports, and at least around the same percentage of general commodities exports were containerized at off pier facilities." See Jt. Exh. 1, p. 833. These figures are considered suspect in the light of other evidence, including the fact that containizeration until 1967 or 1968 was not a major factor at such ports as Philadelphia, Baltimore, and Hampton Roads. 27 The specialized container ship was not the only innovative vessel contributing to mechanization on the waterfront. LASH vessels with a "lighter-aboard-ship" can handle approximately 70 barges, carrying about 350 to 500 tons of cargo each. including hundreds of containers. LASH loading productivity averages approximately 1.5 tons per man-hour compared with the .5 tons per man-hour on a break-bulk vessel and the 2.54 tons per man-hour on a fully automated container ship. A further development was the RO-RO, or roll-on/roll-off ship, the rear section of which includes a ramp which may be lowered to the dock enabling trailers, containers, or other forms of break-bulk cargo to be driven directly off the ship. The productivity of a RO-RO operation is 3. tons per manhour. creased use of consolidators and truckers to perform work which is clearly within the jurisdiction of the ILA under the contract." Despite stepped-up investigation and enforcement efforts by joint labor-management committes, the ILA remained dissatisfied with "the spread of consolidation stations operated by steamship carriers as well as those outside the industry" and again threatened a suspension of the Rules. On November 20, 1972, as the number of violations detected by container investigators continued to climb, a meeting was held at the Whitehall Club with management representatives at which the ILA strongly asserted that the supply of containers to consolidators was a violation of the contract and that all containers would be stopped unless the stevedore contractors and carriers began to live up to the agreement. By virtue of the Whitehall meeting, a document entitled "Enforcement of Rules on Containers" was drafted and proposed for execution by all marine carriers. In Janaury 1973, a meeting of the CONASA-ILA container committee was held in Dublin, Ireland, where this document in its final form was adopted as "Interpretative Bulletin No. 1." The new accord is that which is more widely referred to as the "Dublin Agreement." Though its stated purpose was merely the promulgation of rules for the uniform and effective enforcement of the Rules on Containers, the Dublin supplement, for the first time, explicitly referred to FSL containers stuffed and stripped within 50 miles of the port by other than the beneficial owner's employees. Excluded, however, from the newly defined restriction was the stripping of FSL cargo by warehouse employees at a "bona fide" warehouse where the beneficial owner pays normal warehouse storage fees for a minimum period of 30 days with the beneficial owner retaining title to the cargo for a period of at least 30 days without transfer. The Dublin rules also gave birth to a new means of enforcement; namely, a ban on delivery of containers to those who violate the Rules and with liquidated damages being assessed against participating steamship companies that provided access to containers by consolidators, warehousemen, and motor carriers who stripped or stuffed them in violation of the Rules. The 1974 negotiations opened with a retreat by the ILA to its original position, demanding that all stuffing and stripping be performed at the pier facility with deep sea ILA labor. In the course thereof, the ILA observed that between 1967 and 1973 deep sea longshore employment in the Port of New York had been reduced by approximately 50 percent in terms of both jobs and manhours lost. CONASA also retreated by taking the position that all containers should be permitted to move across the pier without restriction by the ILA. The final agreement merely reincorporated the "Dublin Agreement." However, this settlement did not quell the ILA's continuing complaint as to violations of the Rules by the steamship carriers. In April 1975, the Rules were suspended by the ILA and all containers in North Atlantic ports were stripped at the piers with the exception of FSL cargo. After a month, the dispute was settled through a further restatement eliminating the warehouse exception with respect to export cargo. With respect to INTERNATIONAL LONGSHOREMEN'S ASSOCIATION import cargo, that exception required actual storage in a bona fide warehouse for a minimum period of 30 days. The restatement also clarified the principle in prior CONASA-ILA decisions that trucking stations where containers are unloaded within the geographic area of the port do not constitute bona fide warehouses with respect to cargo destined for delivery outside the 50-mile area. The 1977 collective-bargaining agreement adopted the Rules without significant modification, with the parties agreeing to a further increase in container royalty payments. Following the Supreme Court's decision in 1980, on December 6, 1980, the ILA, CONASA, and other steamship associations on the Atlantic and Gulf Coasts agreed to implement the Rules as of January 1, 1980, in all ports except Philadelphia, where an injunction against the rules was still in effect. Looking back at the 13-year period since 1969, it is clear that it marked a steady decline in longshore work. The 1968 agreement was based on accommodation whereby 80 percent of the containerized cargo would be beyond the Rules and permitted to move freely intact without stripping and stuffing at the piers, while the remaining 20 percent of containerized cargo would be stuffed or stripped at the pier. In 1968, the Port of New York handled approximately 7 million tons of containerized freight and 12 million tons of break-bulk. In 1974, however, containerized cargo had grown to 19 million tons, while break-bulk had declined to 8 million tons. According to Thomas W. Gleason, the ILA president, the average daily ILA work force as of 1975 in the Port of New York had declined from the 1968 level of 27,000 men to 8,500. According to John Heinz, executive vice president of NYSA, as of 1980, that figure had been reduced to 7,500. E. The Traditional Work of Deep Sea ILA Labor The historic jurisdiction of pierside longshoremen includes all work in connection with the loading and unloading of cargo on ships, including removal of ocean cargo from the tailgate of the delivery truck28 to the hold of the steamship vessel for outbound export cargo, including such related intermediate steps as receipt, storage, sorting, checking, palletizing, cargo repair, carpentry, maintenance, and delivery. With respect to inbound cargo, the dockworkers have traditionally performed identical work, but in reverse. As part of its traditional work, deep sea ILA labor has unitized break-bulk cargo for shipment on pallets and in boxes and has broken down unitized import cargo into break-bulk in preparation for its delivery to surface carriers. 28 The loading and unloading of trucks at the piers is subject to varying practices. Since 1953, in the Port of New York, Longshoremen assisted truckdrivers in loading trucks, but truckdrivers usually unloaded the trucks alone. At Philadelphia, truckdrivers had the option of loading and unloading trucks or of requesting that longshoremen perform these functions. At Hampton Roads, longshoremen actually loaded and unloaded cargo into and out of the trucks. At the very least, however, the jurisdiction of longshoremen began and ended at the tailgate of the truck. These variances are viewed as immaterial. For the loading and unloading of trucks at the piers is viewed as a neutral factor which throws no light upon assessment of the legitimacy of the Rules. The work complement at the piers typically includes terminal labor, ship labor, and specialized crafts. Terminal work consists of the receipt, handling, and delivery of cargo to and from the truck, railroad car, or other inland conveyance, and its removal on pallets to points within the pier or terminal. Those termed ship labor work in gangs and are responsible for moving cargo from the dock into the hold of the vessel or on import from vessel to dock. The craftsmen include checkers, who are responsible for tallying cargo and insuring that the receipt and delivery is properly recorded; carpenters, who construct pallets and install dunnage for the proper storage of cargo on the vessel; coopers, who repair broken bags and boxes; clerks, who are responsible for the dock plan and delivery books assuring at all times that all cargo received, delivered, and on hand is accounted for; and maintenance personnel and electricians, whose responsibility consisted of maintaining equipment and machinery at the terminal facility.29 With respect to unitized cargo, the official position of the ILA has laid no claim to handling the contents of shipper-owned receptacles at the piers. 30 Thus, cargo stuffed off pier in railroad cars for shipment intact through specialized vessels has been allowed to pass over the piers without handling by ILA deep sea labor. 31 On the other hand, since development of the Conex and Dravo boxes to the present, ILA labor at the piers has stripped and stuffed containers. Although the spread of containerization produced offshore operations which reduced the man-hours available to deep sea ILA labor, the basic skills and duties of the latter have remained unchanged and remain extant within the dockside bargaining units. Physically, certain waterfront installations did change as containerization increased, with steamship companies and terminal operators having constructed many large container sheds at which deep sea ILA labor 29 Historically, the unit covered by the Rules in the various ports included various dockworkers, clericals, and craftsmen engaged in the functions described in the above text. Charging Party ATA-TMTA contends that this was not the case in the Port of Hampton Roads. The evidence on which ATA-TMTA relies in this regard is inconclusive. ATA Exh. 9 consists of integrated agreements in the Port of Hampton Roads for a term of October 1, 1964, to September 30, 1968. Those agreements do not on their face, as the ATA contends, clearly establish that the portwide bargaining unit in Hampton Roads was fragmented to establish separate appropriate units. The fact that separate local agreements negotiated along functional lines were signed by individual employers, who may well have been members of Hampton Roads Maritime Association and authorized to bargain by the latter with respect to local conditions affecting their immediate enterprises, does not necessarily compromise the integrity of a more comprehensive multiemployer unit. In any event, the version of the Rules under challenge in this proceeding are those adopted in 1973 and 1980. The contracts in evidence in the Associated Transport case (G.C. Exhs. 3 and 4) plainly reflect that the parties in the basic "preamble" to those agreements have confirmed that they "have heretofore entered into a master contract with respect to wages, hours, the amount of contributions for welfare and pension benefits and duration of the term for the collective bargainiing agreements." Accordingly, the record does not persuade that the local negotiations prior to 1973 altered the preestablished portwide bargaining unit. 30 See Continental Express, affidavit of Gleason dated April 19, 1974. 31 As of 1980, the ILA work force in the Port of New York consisted of 12,264. Of this group, some 7,500 are hired on a daily basis and rarely reaches the 8,000 mark. See JT. Exh. 1, affidavit of John Heinz, executive vice president of NYSA. DECISIONS OF NATIONAL LABOR RELATIONS BOARD at pierside process cargo into and out of modern containers. F. Work Preservation 1. The controlling authority The work preservation doctrine is the pivotal reference in reconciling the conflict between the secondary boycott provision of the Act and the statutory policy whereby "the labor relations questions raised by changes in the means of production are answered by the parties themselves rather than through state intervention." International Longshoremen's Association, AFL-CIO, et al. [Houff Transfer, Inc.] V. N.L.R.B., 613 F.2d 890, 903 (D.C. Cir. 1979). Literally, the proscriptive scope of the boycott provisions of the Act are broad enough to include every disruption of business relationships inspired by a labor organization. The guarantee of work under the Rules to the ILA, like other collectively bargained restraints on labor-saving innovations, has impacted adversely upon business dealings between steamship companies and others, often to the prejudice of the latter. Under wellestablished authority, however, this inevitable consequence will not necessarily support intervention of the Board's remedial process. Sections 8(e) and 8(b)(4)(B) serve "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. V. Denver Building & Construction Trades Council, et al. [Gould & Preisner], 341 U.S. 675, 692 (1951). The identity of the primary or offending employer is the key to analysis as to which interest prevails. The impact of an agreement upon other employers whose business might be severely affected is incidental and irrelevant to that inquiry. Similarly, a free system of collective bargaining demands that the right of employees to negotiate job preservation agreements not be impeded by the social or economic benefits to be gained within the community by the unrestrained proliferation of a job-eroding technology. See National Woodwork, 386 U.S. at 644. Instead, it is the nature of the contracting union's grievance and the means of its resolution which afford the central focal point. The touchstone of lawful primary activity is whether, under all the surrounding circumstances, "the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees" or "tactically calculated to satisfy union objectives elsewhere." See National Woodwork, 386 U.S. at 644-645. These fundamental considerations are interwoven into the guidelines set forth by Mr. Justice Marshall in defining the scope of the instant remand as follows: Viewing the work allegedly to be preserved by the Rules from the proper perspective, the Board will be free to determine whether the Rules represent a lawful attempt to preserve traditional longshore work, or whether, instead, they are "tactically calculated to satisfy union objectives elsewhere." This determination will, of course, be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace Thus, in judging the legality of a thoroughly bargained and apparently reasonable accommodation to technological change, the question is not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs. [447 U.S. at 511.] On the instant record, there can be little question that containerization reduced job opportunities for ILA deep sea labor, and that the Rules represented a negotiated response to accommodate the resulting inroads on ILA work jurisdiction. With this in mind, it is noted that the General Counsel herein appropriately conceeds that "it is well settled that unions and employers lawfully may enter into agreements which entirely prohibit subcontracting of work normally performed, or fairly claimable, by employees in the bargaining unit covered by the contract." At the same time, however, labor organizations may not utilize their strength at the bargaining table to acquire new work not previously performed by them, 32 or work similar to that previously performed in the primary work unit which, though not created by the technology, has been performed traditionally in other sectors by other employees. 33 Thus, a labor organization, though permitted to use the boycott as a "shield to preserve the jobs" of its own employees in the unit, may not engage in such action as a sword wielded "to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product." See, e.g., National Woodwork, 386 U.S. at 630-631. Furthermore, as cautioned in N.L.R.B. V. Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine & General Pipefitters of New York and Vicinity, Local Union No. 638 [The Austin Co., Inc.], 429 U.S. 507 at 529, fn. 16 (1977): The distinction between primary and secondary activity does not always turn on which group of employees the union seeks to benefit. There are circumstances under which the union's conduct is secondary when one of its purposes is to influence directly the conduct of an employer other than the struck employer. In these situations, a union's efforts to influence the conduct of the nonstruck employer are not renedered primary simply because it seeks to benefit the employees of the struck employer. National Woodwork itself embraced the view that the union's conduct would be secondary if its tactical object was to influence another employer. 32 See, e.g., Sheet Metal Workers International Association, Local Union No. 223 [Continental Air Filters Co.] V. N.L.R.B., 498 F.2d 687, 696 (D.C. Cir. 1974). 33 Local Union No. 282, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (D. Fortunato, Inc.), 197 NLRB 673 (1972). INTERNATIONAL LONGSHOREMEN'S ASSOCIATION As the foregoing attests identification of the work in dispute is simply "the first and most basic question. It is not dispositive. The inquiry must extend to "all the surrounding circumstances, including (1) the remoteness of the threat of displacement by the banned product or services, (2) the history of labor relations between the union and the employers who would be boycotted, and (3) the economic personality of the industry. Of the above factors, the "economic personality of the industry" is the standard of greatest value to the proponents of the instant complaints. For while the detrimental impact of containerization upon ILA employees is clear, the evidence fails to disclose any significant ILA interest in the labor relations of the class of employers boycotted by the Rules. The economic personality of the industry as it relates to containerization and the Rules has not been explored exhaustively in prior cases. Whatever the dimension of this factor, the vital reference point remains whether the objectives are relevant to the primary work unit, or seek to reconcile differences with other employers. And the economic advantages to be reaped by the technology remain irrelevant under this standard. The utility of this standard lies in the relevance of industry practices and work patterns to the status of the contracting employer as an offender of the job interests of its own employees. Where technology, automation, or new business methods create a general loss of work within an industry, determinations under the Act as to which labor organization may legitimately invoke collective bargaining against their employers, within what limits, and under what circumstances depend initially upon the role of their employers in the evolution and development of such changes. For where the immediate employer is a stranger to the development of such processes and simply does business with others that have introduced the job-saving technique, the former is a neutral whose sole offense to his employees is the maintenance of a business relationship with those who are the true offenders. 36 In such circumstances, the contracting employer has not itself undercut job opportunities and the union's real dispute is addressed to others who did. On the other hand, where the technology is devised, developed by capital expenditure, or otherwise controlled or expanded upon by the contracting employer different conclusions may obtain. For, generally, a labor organization has the right through collective bargaining to restrict the action taken by the contracting employer which reduces benefits within the represented unit. In such circumstances, the immediate employer is the offender. Thus, employees generally are entitled, through the bargaining process, to regulate or resist such forms of managerial judgment by insisting upon their elimination or restriction. However, that right is not unqualified. Restrictions imposed through bargaining upon the unitspawned technology, even though ostensibly to preserve traditional unit work, may violate the secondary boycott 34 I.L.A. V. N.L.R.B., 447 U.S. at 505. provisions of the Act. Often such provisions create work assignment disputes between separate groups of employees within separate employing entities who have historically performed work not substantially distinct from that which the agreement claims. Just as the ILA could not compensate for job losses due to containerization by acquiring the work of others functionally distinct from that historically performed by them on the piers, the ILA may not compensate for such job losses by reaching out and claiming work of such a character which is and has been indigenous to an entirely different industry which was not created or influenced significantly by the new technology. Whether that is the case here requires consideration of the traditional work practices of the ILA against that of the industries adversely affected by the Rules, but only insofar as the economic character of each discloses that the ILA is claiming more than the container technology removed from the piers. 35 National Woodwork, 386 U.S. at 644. 2. The contentions that the Rules lack a work preservation objective 36 See, e.g., Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d 1178 (2d Cir. 1976), cert. denied 431 U.S. 974 (1977); Associated General Contractors of California, Inc. V. N.L.R.B., 514 F.2d 433 (9th Cir. 1975). In support of the complaints, it is contended that through the development of containerization traditional work of longshoremen has been removed beyond fair claim by the Rules. This view is maintained on what appears to be alternative grounds. First it is argued that through containerization a new intermodal transportation system emerged, which is the equivalent of a new product, dispensing with ILA work traditionally performed at seaport terminals. In support of this view, precedent is cited both to the effect that (1) the capacity of ILA-represented employees to stuff and strip containers is not dispositive of a work preservation objective, and (2) the work merged or interwoven into a new overall product, outside the primary work unit, is neither traditional unit work nor fairly claimable. 38 Based on these authorities, it is argued that, as the handling of containers when performed by consolidators, motor carriers, and warehousemen has been intermingled with and is incidental to other services which cannot be performed on the pier, the work of the longshoremen has simply disappeared. It is further urged, in the alternative, that prior to 1973, when the Dublin Agreement was reached, the ILA abandoned its claim to both FSL and LCL containers. Thus, it is argued on behalf of International Association of NVOCCs, Twin Express, Inc., and CHBFA, together with the Intervening Teamsters Union, that the 1959 ILA-NYSA agreement, while requiring the payment of a premium to ILA benefit plans, authorized free utilization 37 See, e.g., Local Union No. 282, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (D. Fortunato, Inc.), 197 NLRB 673. 38 See, e.g., Retail Clerks Union Local 324, Retail Clerks International Association, AFL-CIO (Federated Department Stores, Inc., d/b/a Ralphs Grocery Company), 235 NLRB 711 (1978); Plumbers and Steamfitters Local Union 342, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Conduit Fabricators, Inc.), 225 NLRB 1364 (1976), remanded 598 F.2d 216 (D.C. Cir. 1979), on remand 251 NLRB 794 (1980). See also Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d 1178, cert. denied 431 U.S. 974; and Associated General Contractors of California, Inc. V. N.L.R.B., 514 F.2d 433. DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all containers without stripping, restuffing, or other ILA interference, and hence embodied a waiver of any right with respect to LCL or FSL cargo. Charging Parties Houff Transfer and ATA-TMTA contend that the absence of any negotiated restrictions until 1973 upon FSL cargo evidenced an abandonment by the ILA of any claim to such work and acknowledgment by the latter that FSL cargo was not historically within its jurisdiction. On behalf of Twin Express, the NVOCCs, and CBFA of Miami it is further argued that the 50-mile rule is secondary on its face because (1) the ILA had utilized it as an organizational device in one or more ports, and (2) the evidence does not disclose that the work performed by longshoremen at the piers was displaced by that performed by NVOCCs and consolidators. 3. Conclusions a. Has the intermodal containerization system produced a new product eliminating the work claimed by the Rules? On this record, it must be conceded that longshoremen historically, as an incident to the loading and unloading of vessels at dockside, have not only handled, sorted, checked, and stored break-bulk cargo, but to date have continuously stripped and stuffed modern containers at the pier. At the same time, other segments of the transportation industry, servicing shippers and importers, have performed this identical work offshore. Those antagonistic to the Rules on Containers contend that through containerization "sweeping" technological changes transformed the maritime industry into one which is intermodal in nature and drastically altered traditional work practices both on and off the piers. It is argued that more than a shift in location at which the work is performed is involved. It is further observed that the convenience with which containers may be interchanged intact between the steamship company, trucking company, warehouses, and beneficial owner of the goods has created specialized services which are available offshore, an essential element of which is the stuffing and stripping of containers. The industry, it is argued, has undergone a transformation and the stuffing and stripping of containers performed by longshore employees as an ancillary part of a steamship company's ocean transport system has been eliminated by this new and different service available solely through offshore carriers, which, as the argument goes, no longer relates to the work traditionally and historically performed by longshore employees. In other words, as stated in the ATA-TMTA offer of proof submitted to me under date of March 5, 1981: The work sought under the Rules is not the same as the old ILA work or functionally related to it because the development of the intermodal transportation system, of which containerization is merely a facet, has so changed the nature and kind of freight transportation process that the terminal points of shipment and receipt of cargo now naturally fall, when the customer so dictates, away from old seaport terminals. The above contention, at least superficially, appears to be another attempt to characterize the work in dispute as that performed offshore and hence to collide with the Supreme Court's criticism of the Board's rationale in Conex and related cases. However, to the extent that this argument rests upon viable precedent reconcilable with the rationale of National Woodwork, supra, and the instant remand, it warrants consideration. However, the analysis may not lose sight of the basic reference; i.e., whether the Rules on Containers are addressed to the preservation of work in the primary work unit, or whether they are in furtherance of union objectives elsewhere. In this sense at least one aspect of this argument was not addressed by the Supreme Court, but finds support in Board and court decisions. Thus, in Associated General Contractors of California, Inc. V. N.L.R.B., 514 F.2d 433, a plumbing subcontractor and union had agreed to a provision requiring fabrication of pipe for specialty units to be performed by the subcontractor's employees. A dispute emerged under this agreement when the employer acquired a subcontract for the installation of stainless steel surgical scrub stations which included certain prefabricated piping. The court, in finding that the agreement violated Section 8(e) and that the pressure to enforce that agreement violated Section 8(b)(4)(ii)(B), concluded that as the sinks which were manufactured offsite included sophisticated mechanicisms, requiring precision tooling on alignment, they constituted a new product entailing work which was beyond that traditionally and historically performed by onsite plumbers. Thus, the objective of the agreement was "to acquire work performed by employees of [the offsite manufactuerer]." The real dispute was between the plumbers and the offsite manufacturer, and hence the plumbing subcontractor was a neutral. A like result was reached in 1976, by the Second Circuit Court of Appeals, on somewhat similar facts in Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d 1178. In that case, an employer association entered into an agreement with a local of the sheet metal workers union not to contract out work relating to "plenums," metal boxes attached to air-conditioning units which aid in the abatement of noise while regulating the flow of air into a room. Later, Carrier, a manufacturer of air-conditioning products, developed and produced what was called the "Moduline Air Conditioning Unit." With respect to this product, the plenum was factory installed and integrated into the manufactured product under conditions requiring special equipment and special skills held by Carrier's manufacturing employees. The union, from the time that the moduline was introduced, opposed its installation within its jurisdiction. In finding that the union's agreement was unlawful the court viewed the moduline as a new product, which integrated plenums into an overall air-conditioning system which entailed precision abrasion work distinct from that traditionally and historically performed by sheet metal workers. Accordingly, insofar as the subcontracting clause apllied to the moduline plenum, the union was "trying to acquire work per- INTERNATIONAL LONGSHOREMEN'S ASSOCIATION formed by employees of Carrier in Tyler, Texas." The court applied justice Harlan's observation in National Woodwork Manufacturers Association V. N.L.R.B., 386 U.S. at 648, stating that this is "a case of a union seeking to restrict by contract an employer with respect to the products he uses, for the purpose of acquiring for its members work that had not previously been theirs." While the Associated General Contractors and Carrier cases involve reversals or modifications of prior Board decisions, the Board adopted a like rationale to support 8(e) and 8(b)(4)(ii)(B) violations in Plumbers and Steamfitters Local Union 342, etc. (Conduit Fabricators, Inc.), 251 NLRB 794.3 That case involved a so-called union standards clause limiting the subcontracting of certain pipe fabrication work to offsite subcontractors. A general contractor who was signatory to this agreement purchased prefabricated cement-lined pipe, coated with lead paint, from an employer whose employees were represented by a different union, and who worked at standards less than those required by the above labor contract. The offsite fabrication of the pipe involved seven steps in the overall processing of the product, only one of which consisted of work traditionally performed at the jobsite by employers signatory to the contract. As the Steamfitters did not restrict their claim to that work, the Board concluded that the Steamfitters claim for the entire fabrication was "an attempt to acquire work which had not previously been performed by unit employees at the jobsite or in the contractors' shops," and therefore "is work that was not fairly claimable." 251 NLRB at 795. The Board noted in this connection that "the cutting and welding work is an integral part of the entire fabrication which has not been traditionally or customarily performed by the unit employees at the jobsite or in the contractors' shops."⁴ In my opinion the Associated General Contractors line of cases does not brand the Rules on Containers with secondary flavor. All are distinguishable on material grounds. Each involved a boycotted product (1) which included as an integral phase work not previously performed within the unit, and (2) which was related to a technology or operational method developed by employers having no relationship with the contracting unit. A claim for work against such outsiders seeks to regulate the use by outsiders of their own technology and reduces the status of the contracting employer to a stance of neutrality. Unlike the air-conditioning modules, scrub stations, and prefabricated pipes, containerization was a technological development originating within and expanded upon by the employers of those within the primary work unit represented by ILA, and it was these same primary employers who thereby sanctioned a loss of work historically performed by ILA deep sea labor. 41 The Rules on Containers, insofar as an attempt to regulate a job-eroding technology effected by their own employers, are far more germane to the primary work unit than the disputes in the above-cited cases. 39 This was a supplemental decision wherein the Board reaffirmed violations initially found at 225 NLRB 1364. However, the Circuit Court of Appeals for the District of Columbia remanded on grounds that it was unable to determine from the Board's decision precisely what work was the subject of the Union's claim on behalf of its members. Equally without merit is the claim that the stripping and stuffing of containers has been integrated into an intermodal system of freight transport so as to defeat any legitimate claim for this work by the ILA. In this connection, it is noted that the 50-mile rule is narrowly tailored to the stripping and stuffing of containers. No other work is sought. As was true in National Woodwork, supra, the work in controversy herein was performed historically at the piers by deep sea ILA longshoremen, and elsewhere by either truckers, warehousemen, or consolidators at inland points. Just how this work loses its identity whithin the intermodal system is not articulated. There is no inseparable integration of these tasks with other labor functions or technology. To the contrary, consolidators and NVOCCs have subscontracted the very work to be performed on the piers under the Rules on Containers, and it is difficult to imagine clearer evidence that the boycotted service possesses a separate limited identity which, unlike the labor input into the products boycotted in the Associated General Contractors line of cases, is subject to independent performance at a number of locations, under conditions which would fail to defeat intermodal maritime transportation. Furthermore, it is difficult to perceive clearly the existence of a so-called integrated transport system. The Rules have been enforced against NVOCCs, consolidators, warehousemen, and motor carriers. While there are exceptions, most of the latter perform separate functions within the surface-to-sea transport system. They, together with freight forwarders (surface and marine), steamship carriers, and customhouse brokers, provide important services to shippers and importers engaged in foreign trade. However, the economic personality of the industry is not ossified into a single mold. Thus, though freight forwarders (or custom brokers in the case of imports), consolidators, trucking companies, NVOCCs, and warehousemen may all be involved in a single shipment in seaborne trade, it is also possible that none might be involved. For private shippers with the capacity to prepare their own documentation and to provide transfer to the piers by private surface conveyance may deal exclusively with the steamship company or its port agent. Others may utilize public trucking concerns, warehouses, freight forwarders, NVOCCs, or consolidators, or any combination of these individual operators. With the exception of the steamship company, all employing entities within the intermodal system are dispensable. Hence, the quality of inseparability which existed in the new products considered in the Associated General Contractors line of cases is lacking in this proceeding, and, accordingly, the challenge to the Rules based thereon is deemed nonmeritorious. 40 See also Retail Clerks Union Local 324, etc. (Federated Department Stores. Inc., d/b/a Ralphs Grocery Company), 235 NLRB 711. 41 Cf. Retail Clerks Union Local 770, chartered by Retail Clerks International Association, AFL-CIO (Hughes Markets, Inc., et al.), 218 NLRB 680, 683 (1975). b. Do the Rules seek extra-unit work not created by containerization? In National Woodwork, supra, the Supreme Court expressly reserved on "the questions which might arise DECISIONS OF NATIONAL LABOR RELATIONS BOARD where workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product." 386 U.S. at 630-631. Nonetheless, grievances seeking work historically performed by others which in no fashion was created by the immediate employer's action plainly raise issues beyond the primary work unit and are subject to resolution solely through secondary pressure. In other words, the claim for jobs which bear no causal nexus to the loss of work in the contracting unit entails an underlying dispute alien to the contracting employers, but addressed others who employ nonunit personnel to perform identical job tasks. In such instances, primary employees are not subject to "the threat of displacement by the banned product or services." 386 U.S. at 644. Extension of the boycott prohibitions in such cases not only is in harmony with governing principles, but is salutory in protecting the public against industrial warfare of an irreconcilable nature. For example, the records herein attest to the fact that longshoremen were not the only casualties of the container revolution. A loss of work was also sustained among truckers and offshore dockworkers. Yet the work of loading and unloading cargo is functionally indistinct whether the cargo unit be a container, tandem trailer, or vessel's hold, and labor organizations representing the offshore employees also have a statutory right to protect their traditional work through collective bargaining. Thus, competing claims may arise through separately negotiated agreements. Dilemmas are avoided through the above interpretation of the work preservation doctrine since controlling effect is afforded to the traditional practices within segments of the affected industries, and historic work patterns not established by the new technology are frozen and protected against raid by other labor organizations. In Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. [Sand Door & Plywood Co.] V. N.L.R.B., 357 U.S. 93, 100 (1958), the congressional purpose underlying the prohibition on secondary boycotts was described as "aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and dangerous practice of unions to widen that conflict." That end is achieved by deeming secondary attempts by employees to reach out in compensation for their own job losses by displacement of other employees who have performed substantially identical work historically and without benefit of the causes of displacement in the primary work unit. The Board has in effect adopted just such a view. Thus, in Local Union No. 282, affiliated with the International Brotherhood of Teamsters, etc. (D. Fortunato, Inc.), 197 NLRB 673 at 678, a Teamsters local had negotiated a provision requiring the driving of trucks to, from, or on construction sites to be performed by employees covered by the agreement. The effect thereof was to impede access to jobsites by trucks driven by employees of signatory suppliers and subcontractors who were beyond the primary work unit. In finding that the agreement embodied an unlawful secondary objective, the Board reasoned as follows: Finally, we also reject Respondent's argument that the work covered by the clause is, in any event, "fairly claimable" by the unit employees since it is similar to, and requires like skills as, the work which unit employees now and traditionally perform. As already indicated, the driving work which the unit employees here perform is considerably more limited than that which they seek to preserve. The fact that the driving of one truck may well be similar to, and require like skills as, the driving of any other truck does not persuade us that all driving work is therefore "fairly claimable" by a unit of drivers. Thus, the inquiry herein does not end simply because the ILA lost work due to their own employer's technology and the Rules merely restore to the unit work traditionally performed by the ILA. One more element is required before the Rules might be condoned as a legitimate work preservation agreement; namely, that the work claimed is limited to that created, at least substantially, by containerization. Thus, if the Rules simply seek to restore work distributed to offshore employees by containerization, the ILA had a legitimate right to restrict the technology developed by the steamship companies to reclaim or preserve that work. On the other hand, to the extent that the Rules seek to compsensate longshoremen for losses at the expense of inland employees whose jobs did not derive from containerization, a proscribed "work acquisition" objective would attach. This determination requires assessment of the economic personality of the various segments of the transport industry affected by the Rules; namely, consolidators, including NVOCCs and their subcontractors; warehousemen; and motor carriers, engaged in container processing within the 50-mile port area. The examination of these operations will place emphasis on the work they performed before and after containerization, and whether such work is independent of, and noncompetitive with, that provided historically by the contracting employers. (1) The non-vessel operating common carriers by sea The NVOCCs may well be the principal beneficiaries of the container revolution. They operate subject to the jurisdiction of the Federal Maritime Commission, and in essence are brokers engaged in the transportation of seaborne cargo on behalf of shippers pursuant to their own tariffs filed with the FMC.⁴² They neither operate at piers, nor employ ILA labor. They solicit their own business and provide no direct services directly to the steamship companies. However, as they do not operate or own ships, they are completely dependent on steamship companies for this aspect of their service. Although the services provided by the NVOCC to shippers are, in the main, similar to those extended by ocean freight forwarders and customhouse brokers, the 42 The NVOCC is required to file tariffs with the Federal Maritime Commission and to submit for review by that agency all agreements fixing rates or otherwise providing for restrictions of competition among persons subject to FMC regulations. DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates, was acknowledged by various representatives of NVOCCs. Thus, as averred by Victor Santos, general manager of San Juan Freight Forwarders, Inc., an NVOCC: The rate structure of the steamship companies is such that it discourages the handling of small shipments and the consolidation thereof. Practically, the steamship company rates and charges constitute an embargo for this type of traffic. In effect, the charge by the NVOCC for a single shipment is less than the charge which would be incurred by a shipper, if the shipment was handled by the steamship company without the intervention of the NVOCC.⁴⁸ An intent on the part of certain steamship companies to divert work from the docks to inland points by virtue of its tariffs is also evident in a statement of Rodolfo A. Catinchi, manager of the Puerto Rican office of Transconex, Inc., an NVOCC, to the following effect: In the earlier stages of containerization, NYSA also recognized the longstanding tradition of consolidating cargo off the docks. This is clearly reflected in the Federal Maritime Board tariffs filed by the NYSA member shipping companies handling containers in the New York-Puerto Rican trade prior to 1959. These official documents show that off pier consolidation work was not only allowed, but actually was mandatory in order to qualify for the tariff rate under which consolidated containers have been and are shipped-namely, Freight-All-Kinds. Though, perhaps, spurned by the steamship company, the NVOCC is a competitor of the latter in connection with the containerization of break-bulk cargo. For the NVOCC, like the customhouse broker and the freight forwarder, is merely a middleman who provides assistance to shippers for compensation as an indirect carrier with no operating equipment. However, the NVOCC bears the nomenclature of a sea carrier and is regulated by the agency having jurisdiction over elements of the shipping industry. They hold themselves out to the public as a source of seaborne transport and charge rates, derived from tariffs issued by steamship companies, themselves. Hence, they vie with the steamship companies for cargo services that the latter also advertise through published tariffs. Though the steamship companies may well believe that NVOCCs can provide LCL services to shippers with greater efficiency and profitability, it remains that the former have through collective bargaining contractually bound themselves to preserve certain break-bulk work at the piers for longshoremen. In recognition of said obligation, many steamship companies have developed LCL container stations at dockside, where breakbulk cargo is received, sorted, and stuffed or stripped into containers by deep sea ILA labor. Indeed, certain such facilities are maintained by steamship companies whose fleets are exclusively composed of containerized vessels. Thus, there can be no question that the steamship companies possess the capacity to handle LCL cargo at pierside and to abide by their obligations to the ILA under the Rules. To this extent, the NVOCCs and steamship companies are competitors, and the NVOCCs stuffing and stripping of containers owned or leased by the former is pursuant to a reallocation of work from the piers to offshore facilities created virtually in its entirety by the development of containerization. Evidence that the consolidators unitized cargo prior to or during the era preceding the Rules does not alter these economic truths. Such evidence does not disclose that such offshore consolidation occurred, in more than trifling amounts, with equipment furnished by steamship companies. For the unitization of cargo beyond the piers on pallets or trailers, railroad cars, or boxes owned by shippers or their agents is not within the work sought by the Rules on Containers, nor claimed by the ILA as part of their historic work jurisdiction, and hence is not suggestive of a relevant, competing offshore work tradition. Insofar as the Rules claim the offshore stripping and stuffing performed by NVOCCs within 50 miles of the port, it constitutes a rational effort to return to the piers work diverted by inducements and a technology promulgated by signatory steamship companies and marine terminal operators. As such, the work performed by the NVOCCs, or their agents, to the extent covered by the Rules, was fairly claimable and failed to denude the Rules of a primary objective for purposes of Sections 8(e) and 8(B)(4)(A) and (B) of the Act.49 In reaching this conclusion, I have considered the claim made on behalf of the NVOCCs that the threat of displacement by the boycott of off-pier consolidation is too remote to support a primary objective. In this regard, it is argued that the NVOCCs have actually increased traffic to the piers by attracting LCL shippers who would not send loose cargo to the piers. While undoubtedly there are some LCL shippers that would spurn export trade, it remains a fact that others have not, and that deep sea ILA longshoremen at pierside LCL stations continue to service this very market to date. Beyond that, the arguments made in this respect are highly speculative and certainly the instant records furnish no basis for an inference that ILA deep sea labor has not lost tonnage in substantial quantities to the NVOCCs. Also without merit is the claim that the 50-mile rule, to the extent that it focuses on NVOCCs within the 50- mile zone, is lacking in rational foundation. As should be evident from the discussion previously set forth, this rule evolved from compromise in the face of crippling strikes. 49 The above conclusion applies with equal force to any offshore consolidators, which are not NVOCCs, but still engage in the stripping or stuffing of LCL containers. Many, if not all, of these consolidators have become NVOCCs. They, as well as the NVOCCs today, may continue to consolidate cargo without ILA interference so long as the equipment utilized is neither owned nor leased by the direct employers of deep sea ILA labor. However, they as a matter of practical reality are situated identically to the NVOCCs insofar as the above issues are concerned, and the conclusions reached are equally applicable in their case. 48 Jt. Exh. 1, PP. 717 and 720. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION It was designed to preserve for the ILA 20 percent of the containerized freight based on tonnage ratios existing at the time in the Port of New York. It might also be observed that there is some logic to the notion that, if consolidation in containers is to be performed within the port area, it just as conveniently could be performed on the pier by longshoremen. In rejecting this contention, the admonition of Mr. Justice Marshall with respect to the scope of the remand is called to mind: Thus, in judging the legality of a throughly bargained and apparently reasonable accommodation to technological change, the question is not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs. 50 With respect to the claim that the 50-mile rule is illogical to the extent that it exempts the same work by NVOs performed outside the 50-mile area, it is noted that compromise may at times be arbitrary. In this instance, it is not entirely clear as to whether all NVOs could effectively maintain their competitive posture by functioning beyond the port area. Thus, the 50-mile rule in this sense may be considered as a deterrent to the threat that NVOCCs present to the traditional work of longshoremen. While as against NVOCCs and consolidators handling LCL containers within the 50-mile area the Rules on Containers may not be faulted on work preservation grounds, I would note that not all of the latter are engaged exclusively in that capacity. Thus, trucking operations and/or warehousing operations have established NVOCC divisions, or otherwise engage in LCL container consolidation in conjunction with their performance of other freight distribution services. Irrespective of the findings to be made below with respect to these surface industries, the conclusion heretofore reached is to the effect that a motor carrier or warehousemen is subject to legitimate application and enforcement of the Rules to the extent that the Rules survive the right-of-control test, and to the extent that such carriers or warehousemen also perform LCL consolidation work allocated under the Rules to deep sea ILA labor. (2) The motor carriers The findings made above with respect to the NVOCCs relate to their status as indirect ocean carriers providing service essentially within the seaborne sector as distinguished from the surface leg of cargo transshipment. Technically, under the ocean bill of lading the container's seaborne journey does not end, at least, until stripped by the NVOCC or its subcontractor. On the other hand, a container released to a motor carrier for delivery to a bona fide warehouse or shipper generally assumes the character of surface freight and no longer is within the realm of marine cargo. Generally, it is within this framework that the work claimed under the Rules affecting motor carriers and warehousemen must be assessed. However, containerization has allowed certain segments of the surface sector to make incursions upon traditional dockside work in a manner unsupported by offshore work traditions. It shall be recognized that in such instances the ILA has the right to protect their historic work jurisdiction by regulating access by others to the technology developed by their employers. Motor carriers, historically, have maintained terminals or freight stations in the port area. They may offer longhaul interstate carriage service or intrastate and local cartage service. Generally, with respect to marine cargo, it has been the business practice of motor carriers within their operating areas to pick up export freight at a shipper's facility for delivery to a seaport terminal, and, on the import side, to pick up cargo at the seaport terminals for inland delivery. On the import side, prior to containerization, breakbulk cargo picked up at a seaport terminal by a motor carrier would only be delivered directly to the importer if the entire load was consigned locally. If destined beyond the port area or to multiple inland locations, the cargo was delivered to the terminal or freight station where it was unloaded. The break-bulk cargo was then reloaded into over-the-road equipment for delivery to a single consignee beyond the geographic area, or, if destined to a number of such consignees, the cargo would be sorted and consolidated according to geographic location with other cargo and then reloaded for delivery. The practice whereby cargo was returned to freight stations for offloading, sorting, segregating, and reloading by destination was a practice which possessed no exclusive relationship to marine trade. Thus, cargo shipped purely on an interstate or continental basis by motor truck, or combination of railroad and motor truck, is subject to the same handling at terminals and truck stations. The testimony and arguments on behalf of the motor carriers that containerization did not change these practices seems logically founded and is persuasive. The basic cargo unit in the motor carrier system is the truck or trailer load. With the introduction of containers, the offshore drivers and their helpers in most ports lost work themselves in connection with truckloading operations at pierside. In addition, dockworkers employed at trucking stations by motor carriers, after containerization, lost work in connection with FSL containers delivered directly over the road to warehouses, consignees, or interlining trucking stations located beyond the geographic port area. Furthermore, it does not appear that job categories at trucking stations increased in consequence of containerization. Specifically, the Rules on Containers, as thus far applied, have interdicted the practice by the motor carriers of "shortstopping" freight within the 50-mile area. By virtue of this practice, FSL containers are stripped at truck stations and terminals within the geographic area covered by the Rules for a variety of reasons associated with the economics of surface transportation. Thus, containerized vessels handle containers of various size, including those 20 feet, 35 feet, and 40 feet in length. Over-the-road tractor-trailers are up to 45 feet in length, and therefore have a capacity exceeding that of the modern containers. Interstate carriers will upon occasion 50 447 U.S. at 511. DECISIONS OF NATIONAL LABOR RELATIONS BOARD strip the smaller containers, consolidate the cargo they contain with other goods destined for the same area, and load the consolidated cargo into a 45-foot tractor-trailer. In addition, many interstate carrier systems interchange trailers at inland points for use within a multistate system. Containers have no utility within that system and if transported over the road would have to be hauled empty back to the port area on a "dead head" run. Short-stopping may also occur because containers may not have been loaded in a safe manner or in compliance with state laws regulating safety of operation on the highways. Other grounds for shortstopping include the fact that the motor carrier is required to pay per diem charges on containers, a practice which is wasteful while empty trailers sit idle and are subject to utilization without additional operating cost. Based on the foregoing, it appears that the practice of shortstopping is rooted in traditional motor carrier transport cargo handling procedure, which is performed by motor carriers for their own benefit and convenience. To the extent that containers are handled for such purposes, and not under the direction or for the benefit of shippers, consignees, or their agents, shortstopping has no relevance to the marine leg of the intermodal network. Although skills utilized therein are indistinct from those of deep sea longshoremen in the performance of their traditional duties, it is work assumed for a different purpose, and in a different segment of the transportation industry. Short-stopping is simply a carrier-oriented, as distinguished from consumer-oriented, service, and as such neither competes with marine cargo handling nor amounts to a subterfuge to oust longshoremen of their traditional work. To this extent, upon delivery of a container to a motor carrier, the seaborne leg ends, the container becomes the substitute for the trailer or van,51 and work beyond this interface was neither created by containerization nor does it make inroads on that traditionally made available to deep sea ILA labor by marine operators. On such facts, it is found that, by application of the Rules to "shortstopping" of import cargo to carriers purely engaged in surface motor carrier operations, the Rules seek to allay a controversy not with the immediate employers of ILA labor, but with motor carriers in a distinct segment of the transportation system that have chosen to assign comparable work to their own employees who have traditionally performed it, even though said offshore work preexisted and was not created by containerization. Such work was not fairly claimable by 51 Merit exists in the observation by counsel for ATA-TMTA that containerization produced an equipment change which is "chameleonlike" as it passes through various segments of the transport industry. Further, if practices within each industry are to be given full effect in the assessment of whether a particular negotiated agreement is germane to issues within the primary work unit, one must look at the container in terms of the cargo unit it displaced in each sector of the transport system. Thus, while the container may properly be viewed as the equivalent of the hold of the ship, when serviced by those traditionally engaged in the maritime industry, this analogue may not be used to eclipse traditional practices in other industries not influenced by the same technology. Thus, when one considers traditional business practices in the surface transport industry, it seems only logical that the container, as it passes from the marine stage of the journey into the hands of traditional surface conveyance, be treated as the equivalent of the trailer or truck load. the units represented by the ILA, and hence to this extent the Rules carry a proscribed secondary objective within the ambit of Section 8(e) and Section 8(b)(4)(B) of the Act. Beyond that, motor carriers also have stuffed FSL containers for export within the port area. For example, since containerization, certain interstate truckers have stuffed FSL containers at their port area truck stations. Thus, in order to avoid inconvenience attendant in the delivery of empty containers to shippers so as to enable stuffing by the customers' employees and immediate transport to the pier, such cargo will be hauled in trailer loads to the truck station, where it will be stuffed into FSL loads and delivered to the pier. 52 Evidence also exists that at least one carrier stuffed all export FSL containers at its port area truck station because its tractors were incompatible with and were damaged by containers. 53 Although the existing cases do not reflect application of the Rules on Containers to this practice, it is one which would be precluded by their literal terms. While the question presented here is close, on balance, the stuffing of outbound FSL containers by entities acting purely in the capacity of motor carriers, not as a direct service to customers but to facilitate their own transport needs, would seem incidental to the movement of surface freight. As such, the FSL container handling would fall within the framework of traditional motor carrier practice, relative to the preparation of freight for delivery from port trucking station to the piers, as well as the conversion of cargo from over-the-road to local type equipment. If this work is not offered to the public as an available service, or performed under an ocean bill of lading, or on behalf of an NVOCC, ocean freight forwarder, or anyone else engaged in services offered by employers of ILA labor, it bears an insufficient relationship to work performed within the marine leg of the transport system to represent work fairly claimable by deep sea ILA labor. As is true of "shortstopping," application of the Rules in this context is viewed as an attempt to offset job losses on the piers by disrupting inland work patterns not involving work lost by longshoremen in consequence of containerization. The Rules are unlawful under Section 8(e) to this extent. 54 52 See Jt. Exh. 1, pp. 318 and 329. 53 See Jt. Exh. 1, p. 702. 54 Reconciliation of findings heretofore made is necessary with respect to certain consolidators of LCL freight that might possess privately held trucking capability. While it is possible that all of these concerns have become NVOCCs and subject to lawful application of the Rules, those that may still exist and the possibility that similar operations might reappear present a serious threat that traditional maritime work will be diverted to such operations under the guise that consolidation of LCL containers by such firms is within the surface segment of the transport industry. Such a view is enhanced by evidence that, prior to containerization, small trucking firms picked up small loads of break-bulk locally, which were then sorted and consolidated by destination for reloading and delivery to the piers. Nonetheless, the Rules in this instance are considered legitimate. A genuine potential for subversion of an otherwise legitimate work preservation arrangement calls for application of a rule of reason if the balance between collective bargaining and restraints on secondary activity is to be maintained. If the holdings herein with respect to NVOCCs are affirmed, not only is it probable, but likely, that consolidating trucking firms will fall heir to longshore work lost to marine interests by virtue of containerization. On balance, full interplay of the Act warrants Continued INTERNATIONAL LONGSHOREMEN'S ASSOCIATION (3) The warehousemen S e of L The offshore public warehouse has traditionally performed separate functions in the surface distribution phase of domestic and foreign commerce. Freight is not always subject to immediate dispatch from shippers and to importers without necessity for intermediate storage. The public warehouse has filled these needs historically while providing related services as part of a surface system of distribution. e S. e e e er o Through the 1973 Dublin Agreement, the Rules first adopted provisions specifically restricting the handling of FSL containers by offshore warehouses. In 1975, those Rules were revised to, in effect, preclude warehouses from stuffing export containers within the 50-mile area, and from stripping import containers within the geographic area, unless: (1) the cargo is warehoused at a "bona fide public warehouse"; (2) the consignee pays the normal warehouse charges for a minimum period of 30 or more days; (3) the cargo is stored for a minimum of 30 days; and (4) the warehousing occurs in the normal course of business for the qualified consignee with title to such goods not being transferred during the term of storage. O 1- rs 1- ale e, es Prior to containerization, import cargo would be picked up at the piers by common carrier and delivered to a warehouse, where a trailer or truck would be unloaded, with the cargo sorted, segregated, palletized, and placed in a designated storage area. Depending upon the consignee's needs, the cargo would be removed from the warehouse, distributed, or delivered. Thus, the public inland warehouse has always provided an intermediate freight distribution service whereby cargo could be stored for a term dictated by the owner's market demand. a /n nt ig or or ell To this extent, warehousing practices did not change after containerization. Instead of stripping truck trailers upon arrival at the warehouse docks, the container was stripped. In this sense, the container afforded no change in the warehousemen's method of handling inbound freight, but simply reflected a change in equipment through which the truck trailer was supplanted by the container. al The container-handling services afforded by warehousemen as outlined above are and have been integrated into a surface system of transportation which was not created by containerization, and poses no threat to the historic work jurisdiction of the ILA. As was true of motor carriers, the Rules on Containers as applied to such historic aspects of off-pier work constitute a work acquisition arrangement contemplating seizure of jobs on behalf of the ILA to obtain traditional work of others to compensate for their own unrelated job losses. ic ill Nonetheless, the Rules do not seek in specific terms to dispossess warehousemen of the container work performed in conjunction with these historic warehouse functions. And indeed some form of contractual restriction upon warehousemen is not totally alien to legitimate ILA work preservation objectives. For warehouses have »Γ- by nthe conclusion that the ILA be permitted to enjoy the protection of the Rules as against combined NVO-trucking operators and truckers who offer container stuffing or stripping to the public as an available service. he by li- The ILA's legitimate concern with respect to offshore warehousing practices is also supported by the fact that time delays in shipment receipt and dispersal is not exclusively an offshore problem. Marine cargo received at the docks is not always immediately transferrable to surface carriers, and outbound cargo delivered to the piers often must wait for the arrival of a ship. In consequence, marine terminal operators maintain terminal warehouses, where cargo is stored on a short-term basis pending delivery to carriers or loading aboard ship. With respect to these marine terminals, ILA labor has historically sorted, checked, and handled such freight. Thus, there is an overlap between the capacity of maritime employers and surface warehousemen to provide a similar service at least with respect to short-term storage. been utilized by shippers and their agents solely to perform stripping or stuffing under conditions enabling avoidance of the high cost of performance by the ILA at dockside. Provision of such services by warehousemen is tantamount to the establishment of offshore container stations in competition with those at dockside and constitutes an incursion on ILA labor not justified by precontainer warehousing practices. The Rules on Containers may legitimately extend to such practices. 55 at- Basically, the distinction between the marine terminal warehouse and the inland public warehouse lies in the fact that the former represents a resting place pending loading of the vessel and/or release to surface carriers as an incident to marine import or export. On the other hand, inland public warehouses are essential links in a market distribution system which lies on the inland side of the interface between marine and surface carriers. Preservation of this distinction, insofar as it allocates container handling between the separate industries, constitutes a legitimate subject for regulation by the ILA through collective bargaining. By virtue of the Rules, such an attempt is apparently reflected in the 30-day clauses forming the exemption applicable to bona fide warehouses. These restrictions were included in the Rules to prevent warehouses from being used as "drop points" for stripping and reloading immediately onto trucks. 56 However, a serious question exists as to whethng 18 les 55 As heretofore mentioned, practical problems emerge because of the lack of absolute separation of functions among operations within the surface transport system. It has been indicated that some motor carriers combine freight consolidation functions. It is also a fact that motor carriers may also provide warehousing services. Under findings heretofore made, some stripping and stuffing of containers by motor carriers is pursuant to a historic offshore practice confined to that industry and beyond legitimate application of the Rules. However, an opposite result may follow where the identical service is performed by warehousemen. The varied conclusions in this regard necessarily will encourage a diversion of work to combined trucking/warehouse operations, or for that matter to truck stations, to evade the legitimate reach of the Rules and to undermine traditional ILA work jurisdiction. Such readjustments, however, to the extent detectable, will not be effective to frustrate the protective scope of the Rules. For the traditional inland motor carrier practice which is insulated by Sec. 8(e) from lawful intervention of the Rules is strictly limited, and extends only to those operators engaged purely in motor carrier functions, who strip and stuff containers at their own expense, for their own convenience as motor carriers, rather than for the convenience of shippers, consignees, and their agents. ect eld ave ose :apdiondusion, iich :livred nate in if ac- CCs ackby ants ued 56 See Hill Creek, tr., p. 232, testimony of John Rusta. DECISIONS OF NATIONAL LABOR RELATIONS BOARD er they cut too deeply into traditional warehousing practices. Thus, the 30-day charge feature is not unduly restrictive in this sense because warehouses as a matter of practice impose a minimum monthly charge. Accordingly, this enforcement mechanism affords ILA labor no advantage over work performed offshore traditionally by employees of bona fide warehousemen. On the other hand, consignees of imported goods often utilize inland warehouses to inventory imported goods, as against flexible and unforeseeable market demand. Such practices permit immediate delivery and avoid the delays encountered through a shipment from point of origin on sale, or customer order, method of doing business. It is an integral part of the surface distribution system not generally duplicated at portside marine operations, and container handling in conjunction therewith is akin to the historic unloading of trailers at said site. Application of the ILA's 30-day storage limitation so as to preclude a consignee's access to warehoused goods in container-size lots is often incompatible with the consignee's need to meet consumer demand, and enforcement of that restriction in such a context serves as an impediment to inland work practices which bear no relationship to services customarily or historically available at pierside. As indicated, however, offshore warehouses do compete with those operated at marine terminals. Container handling by the former, in the capacity of stripping station or in direct competition with the marine warehouse for short-term storage, is legitimately with the category of work subject to preservation by the ILA. Since the distinction between container handling which is and which is not rightfully claimable by the ILA, insofar as warehousing is concerned, to a great extent is a function of time, the 30-day storage rule is not wholly inapposite to the ILA's legitimate claim insofar as it extends to cargo lots no part of which is received by a warehouse for indefinite holding. In this posture, the 30-day storage rule seems a logical basis for distinguishing the historic warehouse function from that which is merely an inland container station established to erode ILA historic work jurisdiction. One possible example of threat to the ILA from the appearance of such cargo handling stations is evident from the New York-Philadelphia experience in connection with the importation of frozen meats. As a general proposition, marine terminal warehouses do not exist in sufficient quantity to provide all importers with marketoriented distribution services. Prior to the mid-1970's, however, this was not true in the case of the importation of frozen meat. Historically, the Port of New York was the predominant port of entry for such products, with refrigerated containers or "reefers" being stripped at pierside at cold storage warehouses by deep sea ILA labor. As containerization matured inroads on this practice began with the appearance of inland cold storage warehouses in the Port of Philadelphia. However, this pattern exploded in June 1979 when a 10(1) injunction issued against the Rules in that Port. As heretofore indicated, the latter replaced New York as the principal port of entry for frozen meat, and ILA handling of "reefers" at pierside was reduced by 80-90 percent in both ports. This dramatic incursion on ILA man-hours was a direct byproduct of containerization and the spread offshore of cold storage warehouses in Philadelphia during the mid to late 1970's, a development which was not supported by a separate inland work tradition. Five operators of such offshore warehouses testified in Hill Creek. From their testimony it appears that the first container shipment was handled in a Philadelphia warehouse in 1974, three others received their first shipments in 1975, one in 1976, and the fifth, Hill Creek, in 1978. Here, the conclusion is warranted that the offshore cold storage warehouses in Philadelphia had a dramatic eroding effect on the work opportunities in the primary unit while unaided by a precontainerization offshore tradition. Accordingly, the 30-day rule insofar as invoked against that practice was a legitimate attempt to preserve the historically separate pier front warehousing tradition enjoyed by longshoremen as against a new source of inland competition nurtured by containerization. The work preservation objective would also exist with respect to restrictions upon certain practices of warehousemen in conjunction with export containers. The Rules insofar as they affect the export of FSL cargo provide no exceptions, requiring that all to be stuffed within the geographic area be stuffed at pierside by deep sea ILA labor. There is evidence that after the advent of containerization public warehouses, on behalf of shippers, have received trailer loads of cargo from a single shipper and on behalf of the shipper stuffed that cargo into containers without performing any other specialized warehousing service. See, e.g., The Terminal Corporation, 250 NLRB 8. There is little in the way of evidence suggesting that such a practice existed prior to containerization. The basic surface cargo unit during the precontainer era was the trailer load. The shipper would simply load the carrier's trailer for direct delivery to the piers. Unless specialized warehouse services were required, involvement of a warehouse in routing would simply add needless expense and time loss. With certain exceptions, the stuffing of FSL containers by warehousemen was made practicable solely by virtue of containerization. 58 Thus, warehousemen with access 58 Such an exception is evident in the historic operations of Mahon Express, Inc. Mahon for many years has provided warehousing services for certain retail chain stores, including Woolworth, K-Mart, and Kresge, which have retail outlets in the Carribean. These retail chains obtain their inventories from a variety of manufacturers. Instead of maintaining a private warehouse for receipt of such deliveries, insofar as destined for the Carribean, these chains directed their suppliers to deliver to Mahon. The goods were segregated by Mahon and ultimately loaded into trailers prior to containerization for delivery to the pier. Subsequent to containerization, Mahon's employees stuffed the cargo into containers for delivery to the pier. A further exception appears in the testimony of Poul Rosander pertaining to the stuffing of books and magazines, requiring special processing at the warehouse operated by Wilson Container Co., Inc. See fn. 46, supra. Application of the Rules on Containers to such services would transcend any legitimate claim of work preservation. The service provided by Mahon and Wilson, though involved with exports, is an incident of traditional shoreside services conventionally available through 57 See Hill Creek, tr., p. 314, testimony of Vincent D'Arella, Jr.; p. 324, testimony of Lawrence J. Doherty; p. 328, testimony of George Bacon. See also Terminal, tr., p. 506, testimony of John Menzies. Continued INTERNATIONAL LONGSHOREMEN'S ASSOCIATION to containers may act as middlemen, whereby shippers need not obtain empty containers and have them stand idle while paying per diem rates pending shipment, but may utilize stuffing facilities of such warehouses in the port area. Where no special services peculiar to the surface warehousing industry are provided or performed in connection with such activity, the work of stuffing the container could as easily be performed at pierside with ILA deep sea labor. The ban of the Rules on such a practice effectively restores for deep sea longshoremen the work they performed with respect to the cargo prior to containerization when shippers of large quantities of goods delivered full trailer loads directly to the piers. Here, again, warehousemen, like the NVOCCs who stuff such containers in the port area, are engaged in direct competition with employers of deep sea ILA labor who themselves created the technology which fostered the offshore performance of this limited service. The Rules as applied thereto entail a legitimate work preservation objective. As should be apparent from the foregoing, the scope of the Rules as they apply to warehousemen is not susceptible to singular analysis, nor may they be branded with overarching legality or illegality on a facial basis. Intermediate cargo handling by warehouses is founded upon practices, traditions, and methods of operation which vary and do not come to bear in unified fashion upon the rights of the ILA to preserve its historic work. Like the problem, the solution is less than ideal. Nonetheless, the fact that the Rules do not always focus upon complex business practices with legitimacy is no more reason to foreclose the ILA from protecting its historic work than to conclude that the ILA should be licensed to monopolize jobs because other work may rightfully be sought as within the realm of "fairly claimable." Instead, the letitimacy of the Rules as they apply to warehousemen handling FSL containers must be resolved on a case-by-case basis, with particular emphasis being placed upon whether the application is in quest of work within the framework of a separate tradition peculiar to offshore warehousing, which has not been created by containerization and which is unrelated to traditional services available to the piers. c. Has the ILA abandoned any claims to the disputed work? The challenge to the lawfulness of the Rules on grounds that the ILA abandoned its claim to strip and stuff containers is derived essentially from an alternate theory endorsed by the Board in support of the violations found in Conex, 221 NLRB 956. In this regard, prior to the opening of the hearing herein, I issued "Rulings on Offers of Proof," in which the abandonment issue was rejected as a viable line of inquiry in this proinland warehouses, which is not an essential preliminary maritime service. The ILA's claim for this work by virtue of the Rules on Containers is no more in support of fairly claimable work than in the case of importation of FSL cargo for holding and distribution by a full service public warehouse located within the port area. 59 To the extent that public warehouses consolidate LCL freight in their own behalf or on behalf of an NVOCC or other consolidator, the Rules for reasons heretofore stated, if enforced against them, are consistent with legitimate work preservation objectives. ceeding. 60 Nonetheless, the various Charging Parties persist in their contention that the ILA abandoned any claim to the stripping and stuffing of containers when, in 1959, it settled for premium payments in exchange for the steamship companies' right to allow all containers to pass over the piers without stripping or stuffing by the ILA. A variation of the contention is to the effect that, since the ILA sought no relief from the offshore stripping and stuffing of FSL cargo prior to the 1973 Dublin Agreement, it must be taken to have waived any right to negotiate such restrictions. The Board in sustaining such a contention in Conex, 221 NLRB at 960, stated: Furthermore, assuming that ILA had a superior claim prior to 1959 to the stuffing and stripping work here in controversy, we believe, contrary to the Administrative Law Judge, that it abandoned that claim by its 1959 contract with NYSA. Thus, section 8(a) of that agreement provides that "Any employer shall have the right to use any and all type of containers without restriction or stripping by the union." Plainly, this language is designed to ensure that there would be no restriction on the handling of any type of container, including LTL or LCL containers. The only qualifications specified, which are contained in section 8(b) and (c), provide the quid pro quo for this concession. Section 8(b) provides for the payment of royalties on "containers" which are loaded or unloaded by non-ILA labor away from the pier. Section 8(c) requires that ILA labor be used to perform container work actually performed for NYSA members themselves, whether at their terminals or by their subcontractors. On review of that decision, the United States court of Appeals for the Second Circuit, by divided panel, enforced the Board's Order. However, the majority limited their approval as follows: We are not similarly impressed with the NLRB's other reasons for its order, such as the alleged abandonment by ILA of its claims. 61 Later the Circuit Court of Appeals for the District of Columbia in I.L.A. [Houff Transfer, Inc.] V. N.L.R.B., 613 F.2d 890, 910-911, fn. 178, had occasion to consider the question and addressed it as follows: The Board apparently does not rely on this abandonment point in the instant cases In our view the abandonment point is without merit. We break no new ground when we characterize collective bargaining as "a constant and unending dialogue of powers." As in any dialogue, the most appropriate response cannot always be framed instantaneously. Rather, ideas generally develop over time; the best ideas may indeed require the longest gestation periods. Be that as it may, the crucial 60 See ALJ Exh. 4(b), pp. I2-14. 61 537 F.2d 706 at 712. DECISIONS OF NATIONAL LABOR RELATIONS BOARD point here is that the dialogue over how best to assimilate containerization-and, more particularly, the work of stuffing and stripping containers in the port area-into traditional longshore work patterns has never ceased. [T]he issue of containerization has been a key ingredient in ILA-shipper relations from the moment of its inception to the present. Further, the abandonment point ignores the possibility of recapturing work that, due to technological innovation or managerial initiative, has temporarily escaped from the bargaining unit. A variation on the abandonment theme is offered by intervenor Houff Transfer, Inc. in the Baltimore and Hampton Roads case. Houff argues that the negotiation of the royalty payment provision in the Rules represents a conscious choice on the part of the ILA to accept that payment instead of the work of stuffing and stripping FSL containers. The argument is plausible only to the extent that abandonment took place with respect to FSL containers that go directly to their beneficial owners or to a point outside a 50-mile radius of the ports for stripping. The ILA has consistently proven antagonistic to the idea that any containers can be stripped or stuffed in the port area by other than ILA labor. This hardly amounts to abandonment, the royalty payment notwithstanding.62 While it is the duty of an administrative law judge to adhere strictly to precedent of the Board, such constraints would not seem to apply here. In the wake of the adverse reaction by the courts, there is no evidence that abandonment retains any vitality under Board law. The Board's pronouncements since 1975 with respect to the Rules on Containers fail to afford weight to such a concept. 63 Furthermore, although the question was not specifically addressed by the Supreme Court in I.L.A. V. N.L.R.B., supra, the abandonment theory is difficult to 62 On behalf of Charging Party Houff Transfer, Inc., it is argued that the above expression by the Court of Appeals for the District of Columbia rested upon "a totally erroneous factual assumption." It is argued that the court, in rejecting the abandonment claim, acted on the misapprehension that, prior to 1973, the Rules contemplated that longshoremen would strip FSL cargo in the Ports of Baltimore and Hampton Roads. Contrary to Houff, it does not clearly appear that such factual considerations in any way influenced the court, and, in any event, the rationale of the court transcends minor factual issues in giving realistic effect to collective bargaining as a continuing process. 63 The abandonment concept, as a matter of substance, seems inconsistent with the rigid standard firmly embedded in Board policy which is deferred to in interpreting the degree to which a labor organization has relinquished benefits for the term of a collective-bargaining agreement. Thus, with respect to this area the Board has for many years applied the following evidentiary test: A waiver "is not to be readily inferred and it should be established by proof that the subject matter was consciously explored and that a party has "clearly and unmistakably waived its interest in the matter' and has "consciously yielded' its rights." [See. e.g., Century Electric Motor Company, 180 NLRB 1051, 1055 (1970).] It seems inconceivable that a more relaxed evidentiary rule would obtain in assessing what issues are a proper subject of bargaining in contract renewal talks. Yet, on the facts presented here, to find an abandonment based on the accommodations made by the ILA in 1959 and 1968 is to accept substantiation on evidence far less compelling than that which would reasonably reflect a "conscious yielding" in that respect. reconcile with Mr. Justice Marshall's seeming endorsement of the view that assertion of a work preservation defense ought not be prejudiced by the fact that negotiated agreements might treat a problem in hesitant fashion. Thus, at 447 U.S. 505-506, it was stated as follows: One way to preserve the work of the employees represented by the union in the face of such a change is simply to insist that the innovation not be adopted and that the work continue to be done in the traditional way. But the protection Congress afforded to work preservation agreements cannot be limited solely to employees who respond to change with intransigence. The work preservation doctrine, then, must also apply to situations where unions attempt to accommodate change while preserving as much of their traditional work patterns as possible. The various contentions made by the Charging Parties with respect to abandonment all fail to envision collective bargaining as an ongoing process, through which industrial strife is frequently averted by temporal compromise. They rely on a concept which dictates that labor organizations resist any and all change, even though the foundation for employee fear has yet to materialize. 64 The processes of mediation, conciliation, and factfinding so vital to protection of the public in the case of national emergency or other major labor disputes would lose utility under so narrow a view of collective bargaining. In sum, the above-quoted expressions of the courts recognize the proper role of collective bargaining with respect to a technology whose impact, in terms of prejudice and gain of affected employees, might only be measured over a period of time. 65 In the final analysis, the abandonment concept prefers strife to sensible accommodation and has no place in the statutory scheme. The contentions based thereon are rejected. G. The Right of Control In N.L.R.B. V. Enterprise Association of Pipefitters, 429 U.S. 507, the Supreme Court confirmed the principle that a labor organization's otherwise legitimate work demands nonetheless entail a secondary objective if the immediate employer is powerless to control assignment of the work sought. This policy is founded on the view that, in such circumstances, the immediate employer is a neutral, pressured by the union solely to force other employers, the true offenders, to relinquish work they assigned to their own employees. 66 64 Note that the first containerized vessel did not appear until 1957, and it was not until 1968 that containerization spread beyond the Puerto Rican trade route. See generally section III,D, of this Decision supra. 65 Section III,D, of this Decision. supra. Between 1968 and 1975 the average daily work force in the Port of New York declined from 27,000 to 8,500. During that period, the containerized cargo handled in that Port increased from 37 percent to 70 percent. See generally section III,D, of this Decision, supra. 66 The right-of-control test is an invaluable tool in resolving otherwise irreconcilable claims on behalf of competing labor organizations in the face of technological change. As here, such advances may entail a redistribution of work to separately represented groups in different sectors of a particular industry. Each group might possess and on a traditional basis Continued INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Pursuant to findings heretofore made, the ILA has, in effect, been held to have acted within the ambit of primary work preservation insofar as the Rules on Containers apply within the 50-mile area to (1) LCL container work performed by consolidators and NVOCCs, (2) stripping and stuffing of FSL containers by warehousemen where not performed as an incident to specialized storage-distribution services traditionally performed in that industry, and (3) FSL containers processed by motor carriers pursuant to instruction of or for the immediate convenience of shippers, consignees, or their agents. However, consistent with the directive of the Supreme Court in I.L.A. V. N.L.R.B., supra, further findings are necessary, as indicated below: If the Board finds, on remand, that the Rules have a lawful work preservation objective, it will then, of course, be obliged to consider the Charging Parties' contention that CONASA members did not have the right to control the stuffing and stripping of containers. 67 Those antagonistic to the Rules argue that the steamship companies and others who are bound thereby lack capacity to assign the work preserved to deep sea ILA longshoremen. Hence, implementing the Rules is nothing more than the imposition of pressure on signatory employees to reach the true offenders who perform the disputed work with their own employees away from the waterfront. More specifically, it is contended that the shipper, importer, or their agents, not the steamship companies, hold control because it is they who specify the manner in which the containerized cargo is transported both on its seaward and surface journeys, as well as who strips and stuffs containers. This argument rests on a premise which ignores two critical truths. The first relates to timing and the fact that the choice exercised by shippers, importers, and their agents matures only after the technology is made available to them. The second relates to the origin of the technology and the fact that options made available to shippers, consignees, and their agents are not of their own design, but have been made possible by the innovation action of the various employers bound to the Rules. Thus, the oversea container is the main spring of a technology finding its origin within the primary work units. Steamship companies and marine terminal operators have invested their capital and developed the technology which made containers available to the public and which increased their utility through specialized container vessels, container cranes, and other facilities contributing to a dramatically increased productivity on the docks. The wisdom and resources of contracting employers, exclusively, have made this technolexercise skills indistinct from those required to implement the new technology. It is conceivable that each class of workers could utilize the bargaining process to perfect a claim for all such work simply because they have in the past and continue to perform functionally identical work. As control will rest with only one employer or class of employers, the rightof-control test enables disposition of such competing claims by branding with legitimacy only those negotiated agreements or boycotts which are "addressed to the labor relations of [the contracting employer] vis-a-vis his own employees." 429 U.S. at 528. 67 447 U.S. at 511-512. ogy available, and shippers, importers, and their agents are simply the beneficiaries, having played no part in the proliferation of this innovative trend. At the same time, the extension of this technology by contracting employers in the form of services offered to shippers, importers, and their agents has prejudiced job opportunities of longshoremen. The ILA has responded by negotiating restrictions on release of work required by this technology from pierside to inland labor. Unlike Enterprise Association, supra, this was a response to restrain otherwise discretionary action of the immediate contracting employers, who, through their development of and control over the job-eroding technology, are the primary offenders of the job interests of their own employees. The ILA's effort to preserve their work through negotiated restrictions with respect to whom and under what conditions the container technology is to be released to outsiders relates directly to a labor relations problem within the primary work unit. Furthermore, as the job guarantees embodied in said Rules take effect as a precondition to release of containers, said obligations are imposed upon signatory employers at a time when the latter possess power to comply. In other words, the contractual assignment to the ILA operates as a prior restraint upon shippers, importers, or their agents who would choose to utilize containers owned or leased by steamship companies in violation of the latter's obligation to deep sea ILA labor. In sum, the element of "shipper's choice" does not preclude a finding herein that "the union was seeking only to regulate the relations between the contractor [signatory employers] and his own employees and to protect a legitimate economic interest of the employees by preserving their unit work. Notwithstanding the physical control retained by signatory employers, the proponents of the complaints contend that the national transportation policy administered by the Federal Maritime Commission (FMC) neutralizes that factor by precluding legitimate exercise of such control by the ocean carriers. 69 Thus, the Shipping Act of 1916, through sections 16 and 17 thereof, renders it unlawful for any "common carrier by water" to "unfairly treat or unjustly discriminate against any shipper in the manner of cargo space accommodation or other facilities," or to "make or give any undue or unreasonable preference or advantage to any particular person or to subject any particular person to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. 71 Finally, the Shipping Act provides that "[e]very such carrier and every other person subject to this Act shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. 68 429 U.S. at 519. 69 This issue requires consideration of research materials to which many labor practitioners might not have ready access. Therefore, such material has been reproduced in this Decision to a greater extent than otherwise would be necessary. 70 46 U.S.C.S. § 812. 71 46 U.S.C.S. § 815. 72 46 U.S.C.S. § 816. DECISIONS OF NATIONAL LABOR RELATIONS BOARD These provisions have been construed as precluding ocean carriers from denying services available under their published tariffs to any shipper willing to pay the prescribed charge.⁷³ Consistent therewith, the FMC has held that enforcement of the Rules on Containers by steamship carriers against shippers or consignees is violative of the Shipping Act of 1916. Thus, in Sea-land Service, Inc., and Gulf Puerto Rico Lines, Inc.,⁷⁴ a steamship company (PRMSA) incorporated the Rules on Containers in a tariff filed with the FMC. Administrative Law Judge Charles E. Morgan of the FMC treated the issue as follows:⁷ The 1916 Act provides in part that no common carrier by water shall make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of cargo space accommodations or other facilities. PRMSA will not supply PRMSA containers to certain consolidators and deconsolidators, whereas PRMSA will supply its containers to other shippers and consignees in the same geographic area. PRMSA's rules on containers unfairly treat and unjustly discriminate against certain consolidators and deconsolidators inasmuch as PRMSA does not provide them the same facilities as PRMSA provides other shippers and consignees. PRMSA's rules on containers are in violation insofar as these rules permit certain containerloads to move freely over facilities of PRMSA, that is, over the piers, while PRMSA's rules also require other similar containerloads to be stripped and restuffed at the piers by ILA deepsea labor. The unlawful discrimination results from the unequal availability of the piers for movement of containerloads to and from ships. Clearly, PRMSA's tariff rules on containers unfairly treat and unjustly discriminate against certain shippers and consignees in the matter of cargo space accommodations and other facilities, including the use of the piers and the use of containers for consolidated shipments. The 1916 Act provides in part that it is unlawful for any common carrier by water to make or give any undue or unreasonable preference or advantage to any person, or to subject any particular person to any undue or unreasonable prejudice or disadvantage in any respect. PRMSA's rules on containers are in violation in that they unduly prefer certain shippers and consignees, such as for example, those who have certain facilities and whose employees stuff and strip containers, while these rules subject other shippers 73 See Grace Line, Inc. V. Federal Maritime Board. 280 F.2d 790, 792- 793 (2d Cir. 1960), cert. denied 364 U.S. 933 (1961): Swayne & Hoyt. Ltd. V. U.S., 300 U.S. 297, 303 (1937). and consignees to undue and unreasonable prejudice and disadvantage, such as for example, those shippers and consignees who do not have their own facilities or do not have their own employees to stuff and strip containers. PRMSA's rules require certain shippers to suffer transfer or rehandling charges at the piers for their containers to their undue prejudice, while other shippers escape such transfer charges to their undue preference. 74 FMC No. 73-17, 18 SRR 533 (June 14, 1978). The Act provide[s] that the common carriers by water in the Puerto Rican trade must provide just and reasonable rates, regulations and practices relating to various matters, including the receiving, handling, transporting, storing or delivering of property; and that if the FMC finds these rates, regulations and practices to be unreasonable, it may prescribe just and reasonable rates, regulations and practices. PRMSA's rules permit shippers to be held liable for fines or penalties of $1,000 per container, which penalties have no relationship to the cost of transportation or of handling of the container from an ocean transportation viewpoint. These PRMSA tariff rules in part are ambiguous and uncertain in that they are not clear on their face, and are subject to various interpretations. PRMSA's rules are unreasonable insofar as certain shippers must undergo the added transfer charges, for example, of $172 per 40-foot container, in order to avail themselves of PRMSA's FAK rate on containerloads, when there is no transportation necessity to transfer the contents of a container from one container to another container. PRMSA's rules are unreasonable in a number of other ways, including that they deny containers to some shippers while providing containers to other shippers, and that the rules require certain consignees to warehouse their imports under certain restrictions while not so requiring other consignees to so warehouse their imports. For the reasons stated in this paragraph PRMSA's tariff rules on containers are unjust and unreasonable in violation of the Act. In Volkswagenwerk V. FMC, 390 U.S. 261 [8 SRR 20, 109] (1968), the Supreme Court found that a certain agreement among members of the Pacific Maritime Association to impose certain assessments upon member ocean common carriers, stevedores, and terminal operators and their customers was subject to the jurisdiction of the FMC under Section 15 of the 1916 Act. Therein it was stated, at page 278, that we are not concerned here with the agreement creating the Association or with the collective bargaining agreement between the Association and the ILWU [International Longshoremen's and Warehousemen's Union]. 75 16 SRR 315, 338-339. CONASA in its opening brief states that in this Volkswagenwerk case the Supreme Court reaffirmed that there is a labor exemption from antitrust statutes for labor agreements which would otherwise be subject to such antitrust regulation. What INTERNATIONAL LONGSHOREMEN'S ASSOCIATION the Supreme Court actually said was that those agreements, reflecting the national labor policy of free collective bargaining by representatives of the parties' own unfettered choice, fall in an area of concern to the National Labor Relations Board, but the Supreme Court went on to say that the assessment arrangement in issue affected only relationships among Association members and their customers. Thus, there was no labor agreement in issue in the Volkswagenwerk case. More importantly, nowhere in Volkswagenwerk V. FMC, supra, is there any issue of the lawfulness of a tariff rule. Whatever significance that case has to the present investigation possibly may be found in the concurring statement of Justice Harlan. He was concerned about the exact extent of the labor exemption from statutes regulating competition. He pointed out that no collective bargaining agreement was before the Court and that it would be inappropriate to suggest the affirmative extent of the labor exemption or immunity. He went on to say, at page 287, that: "the assessment agreement before us is not immune or exempt, for it raises 'shipping' problems logically distinct from the industry's labor problems; at the same time the Commission's review itself must be circumscribed by the existence of labor problems that it is not equipped to resolve." In the present proceeding, PRMSA's tariff rules on containers raise shipping problems logically distinct from the labor problems which may be raised by the ILA's Rules on Containers. Anytime two shippers seeking the same ocean transportation service are treated differently by an ocean carrier, to the extent that one shipper is unduly and unreasonably preferred and the other shipper is unduly and unreasonably prejudiced, there is a shipping problem. The FMC must exercise its jurisdiction over shipping problems. The decision of the Administrative Law Judge issued on October 9, 1975, but was not adopted by the FMC until June 14, 1978.76 In affirming the reasoning of the Administrative Law Judge, the FMC stated as follows:7 We are of the opinion that the rules published in PRMSA's tariff were properly found by the Presiding Officer to create an anomalous condition where shippers who are similarly situated in all other transportation respects, are treated decidely differently. Further, we agree with the Presiding Officer that the existence or not of a collective bargaining agreement which affects but is not a part of the transportation aspects of a shipper's relationship with his carrier, need not be given overwhelming priority or weight as a transportation factor by which to justify dissimilarity of treatment. We may agree that such an agreement is a factor to be considered. However, there are other such factors. The mere existence of the collective bargaining agreement does not preempt those other factors or foreclose our consideration of them. For us to adopt the contentions of respondents would be tantamount to an acknowledgment by us that a common carrier by water or other person subject to our jurisdiction could escape our jurisdiction by the simple device of voluntarily (albeit with pressure from a union) entering into an agreement which obligates the common carrier to take actions which may be or are in clear violation of the Shipping Act. We do not view the impact of the National Labor Relations Act as permitting a common carrier to disregard entirely its statutory obligations when conducting and resolving labor-management negotiations. We find that upon consideration of the transportation factors in the situation created by these rules, including the underlying ILA-CONASA agreement, the disparity of treatment under the rules is not adequately justified. This is not an adoption of a "per se violation" concept. It is rather, a simple acknowledgment by us that the record in this proceeding shows adoption and implementation of tariff rules which are unjust and unreasonable, and which are unduly and unreasonably prejudicial and disadvantageous because their effects are unjustified by transportation factors. An appeal to the above determination was filed in the Circuit Court of Appeals for the District of Columbia on August 9, 1978, which to date is still pending.⁷⁸ If the findings heretofore made are tenable, the above ruling by the FMC presents a fundamental conflict between the national labor and transportation policies. Respondents contend, however, that the FMC ruling should not be given effect, since it is rendered obsolete by Congress' supervening enactment of the Maritime Labor Agreement Act (MLAA) on August 8, 1980. It is observed that by virtue thereof the Sea-land ruling has been superseded by a new proceeding before the FMC which will address the questions previously litigated before that Agency as well as the newly enacted statutory exemption. 79 First, with respect to the new proceeding before the FMC, it appears that the focus of this investigation relates exclusively to the reimplementation of the Rules on January 1, 1981, by steamship companies, and by practices engaged in pursuant thereto which might be violative of the Shipping Act. It does not clearly appear that said proceeding is intended as a vehicle for FMC reconsideration of Sea-land Service, Inc., and Gulf Puerto Rico Lines, Inc., supra. On the contrary, the FMC's 1981 Order of Investigation might be interpreted as predicated 78 20 FMC 788, 20 SRR 553 (1978), appeal pending sub nom. CONASA and NYSA V. FMC and USA, D.C. Cir. No. 78-1776. 79 The "50-mile Container Rules," Implementation by Common Carriers by Water Serving the Atlantic and Gulf Coast Ports of the United States- Possible Violations of the Shipping Act, 1916, and the Inter-coastal Shipping Act, 1933; Order of Investigation February 3, 1981, Docket No. 81-11. 76 18 SRR 553, FMC Nos. 73-17 and 74-40. 77 18 SRR 557. DECISIONS OF NATIONAL LABOR RELATIONS BOARD on that very authority. Thus, as stated at page 3 of said Order: The activities described herein appear to be essentially service restrictions and/or the imposition of additional charges which must be reflected in the carrier's tariffs. Moreover, the Commission has in the past found similar practices to be a proper subject matter for ocean carriers' tariffs. Sea-land Service, Inc. and Gulf Puerto Rico Lines, Inc.-Proposed Rules on Containers and Puerto Rico Maritime Shipping Authority-Proposed ILA Rules on Containers, 20 FMC 788, 20 SRR 553 (1978), appeal pending sub nom. CONASA and NYSA V. FMC and USA, D.C. Cir. No. 78-1776. Thus, if the carriers named as Respondents have engaged in any of the practices described herein, then the failure of the carriers to effect those paragraphs in their tariffs would appear to violate the following requirements of Section 18(b) of the Shipping Act, 1916, and/or Section of the Intercoastal Shipping Act, 1933. An investigation is therefore necessary to determine whether the carriers have in fact engaged in these practices. Furthermore, it also does not clearly appear, as Respondents suggest, that the MLAA "exempts labor accords like the Rules on Containers, from unsettling regulation under federal shipping laws." On the contrary, the provisions and legislative history of the MLAA strongly suggest that the FMC retained jurisdiction over claims arising under the antidiscrimination provisions of the Shipping Act, even though the practices complained of might derive from or be dictated by a collective-bargaining agreement. Thus, said amendment to the Shipping Act arose against a background in which the FMC had historically spurned jurisdiction over review of labor agreements. Consistent with this stance, the FMC considered further legislation necessary in light of judicial decisions which indirectly, under section 15 of the Shipping Act,80 required prior approval by the FMC of maritime collective-bargaining agreements.⁸¹ The problem was outlined 80 Sec. 15 of the Shipping Act provides, in material part, that persons subject thereto file with the FMC "every agreement": fixing or regulating transportation rates or fares: giving or receiving special rates, accommodations. or other special privileges or advantages; controlling, regulating. preventing, or destroying competition: limiting or regulating in any way the volume or character of freight to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. Any agreement and any modification or cancellation of any agreement not approved. or disapproved. by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission [46 U.S.C.S. § 814.] 81 Previously, in 1968, the Supreme Court in Volkswagenwerk V. F.M.C., 390 U.S. 261, modified 393 U.S. 901, held, contrary to the FMC. that sec. 15 applied to an agreement between members of a multiemployer association as to the financing of an employee benefit program established in a collective-bargaining agreement. In F.M.C. V. Pacific Maritime Association. 435 U.S. 40 (1978). the Supreme Court extended this view. deeming sec. 15 applicable to specific terms of a collective-bargaining agreement. by one commentator during the Senate committee hearing, as follows: As a consequence of Supreme Court decisions, collective bargaining agreements and related agreements among multi-employer bargaining associations which implement collective bargaining agreements are now considered agreements which must be filed with the FMC for approval. The FMC may also impose penalties and award reparations against individual members of these multi-employer associations for practices arising out of or based upon collective bargaining agreements if the FMC finds the practice in question to be in violation of any provisions of the 1916 act. Presently, the FMC does not require section 15 filings for collective bargaining agreements and relies upon its general exemption authority in the Shipping Act as the basis for doing so. The agency has said, however, that specific statutory authority to exempt collective bargaining agreements is preferable.⁸² Initially, the House version of the MLAA afforded relief not only from filing and prior approval requirements, but extended total exemption to discriminatory practices derived from collective-bargaining agreements through specific exemption to sections 16 and 17 of the Shipping Act. The expressed purpose of the bill adopted by the House was "to prohibit regulation of collective bargaining agreements by the Federal Maritime Commission." H.R. Rep. No. 876, 9th Cong., 2d Sess. 1 (1980). The text thereof, drafted as an amendment to section 15 of the Shipping Act, plainly accomplished this sweeping objective: [C]ollective bargaining agreements and all provisions thereof, between a common carrier by water, other persons subject to this chapter of a multiemployer bargaining group and a labor organization representing employees in the maritime or stevedoring industry, and any agreements preparatory thereto among members of the multiemployer bargaining group, and any provisions for the implementation of the collective bargaining agreement, including the means and method of raising the money for wages, fringe and other employee benefits provided in the collective bargaining agreements, shall not be deemed either an agreement or a cooperative working arrangement subject to the filing provision herein: And provided further, that said collective bargaining agreements and agreements preparatory to, and for the implementation thereof, shall not be subject to Commission jurisdiction for any purpose under any other provision of this chapter including, but not limited to, Sections 16, 17 and 22 thereof.⁸: [Emphasis supplied.] 82 Hearing on H.R. 6613 Before the Subcom. on Merchant Marine and Tourism of the Senate Comm. on Commerce, Science and Transportation, 96th Cong.. 2d Sess. 1 (June 4, 1980) (opening statement by Sen. Inouye). 83 H.R. Rep. No. 876, supra at p. 11. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Respondents' position as to the MLAA would have been persuasive had this version cleared the legislative process. However, it did not. After passage in the House by a vote of 358 to 2, the Senate Commerce Committee, upon extensive testimony from persons representing many facets of the shipping industry, adopted a substitute. Insofar as material herein, the Senate version amended section 15 to except labor agreements from prior approval by the FMC. But, most importantly, no amendments were included affording collective-bargaining agreements relief from sections 16 and 17 of the Shipping Act. The basis for this difference was made apparent by the Senate report on the substitute: On June 4, 1980, the Merchant Subcommittee of the Senate Committee on Commerce, Science and Transportation held hearings on H.R. 6613, at which 11 witnesses, including the FMC, testified. Several of the witnesses representing shippers and significant sectors of the maritime industry, indicated they had not been aware that the House was considering H.R. 6613, and consequently had not been able to express their opposition to the legislation at that time. The witnesses who appeared at the Committee's June 4 hearing were nearly unanimous in support of exempting collective bargaining agreements from the filing and prior FMC approval requirements of Section 15 of the Shipping Act. The majority of those opposing H.R. 6613 as it passed the House, however, felt the bill went beyond what was necessary to assure free and unfettered collective bargaining, and that it stripped the FMC of jurisdiction to assure equal treatment of shippers, cargo, and localities, and to prevent abuses made possible by concerted activity of carriers and others. The Federal Maritime Commission was among the witnesses who testified that the bill went beyond what was necessary. The agency also said it was technically deficient. [S. Rep. No. 854, 96th Cong., 2d Sess. 10 (1980).] As was noted, a number of witnesses who testified before the Senate committee had had no opportunity to testify before House passage of the bill. 84 However, these witnesses voiced strong opposition to the bill on the grounds that the proposed legislation removed too much from FMC jurisdiction. The following statement of the FMC is in consonance with the views presented by those theretofore unheard: The Commission had some misgivings about the wisdom of exemptions which extend beyond section 15. The provisions of the Act that would no longer apply were designed to ensure equal treatment of shippers, cargo and localities and to prevent abuse made possible by concerted activity of carriers and others. The question that must be answered before these protections are removed is whether there are other laws which adequately protect these shipping interests absent the Shipping Act. To the extent that other laws protect the interests of shippers, ports and others from unfair treatment, Shipping Act protections could be removed without harm but Congress must ensure such protections exist before pursuing that course. Whether the antitrust laws would afford sufficient protection to affected parties is a difficult question to answer. Certainly, some protection would be afforded under section 1 of the Sherman Act where the rate, charge or practice was the product of a combination or conspiracy in restraint of trade. However, if an individual carrier chose to implement a provision of a collective bargaining agreement in a discriminatory or unreasonable fashion, it is not at all certain that the antitrust or labor laws would provide a remedy. There is some possibility that a common law remedy would exist for failure of a common carrier or public terminal operator to live up to its obligations to serve the public equally. However, in order for any common law rights to be resurrected it would take a very strong and clear statement from Congress to overcome the inference that would be generated by partial repeal of the statutory scheme that was enacted to replace those common law rights in the first place. Moreover, resurrection of such common law rights would simply shift the forum from the agency charged with expertise in shipping matters to a variety of judicial forums. 85 The Senate bill, which was adopted subsequently by both Houses of Congress, specifically affirmed the FMC's jurisdiction under section 15 with respect to assessment agreements "whether part of a collective bargaining agreement or negotiated separately," but simply replaced the requirement of prior approval with a subsequent condemnation procedure. Insofar as material, the addition to section 15 provides as follows: Assessment agreements, whether part of a collective bargaining agreement or negotiated separately, to the extent they provide for the funding of collectively bargained fringe benefit obligations on other than a uniform man-hour basis, regardless of the cargo handled or type of vessel or equipment utilized, shall be deemed approved upon filing with the Commission. The Commission shall thereafter disapprove, cancel, or modify any such agreement, or charge or assessment pursuant thereto, that it finds, after notice and hearing, to be unjustly discriminatory or unfair as between carriers, shippers, or ports, or to operate to the detriment of the commerce of the United States. To the extent that 84 In fact, only one party opposing the bill had an opportunity to testify before the House. See: Testimony of Gerald Ullman, general counsel, National Customs Brokers Forwarders Association of America, Inc., Hearings, supra at p. 89. 85 Hearing Before the Merchant Marine and Tourism Subcom. of the Senate Comm. on Commerce, Science and Transportation, supra at pp. 17- 18. DECISIONS OF NATIONAL LABOR RELATIONS BOARD any assessment or charge is found, in such proceeding, to be unjustly discriminatory or unfair as between carriers, shippers, or ports, the Commission shall remedy the unjust discrimination or unfairness. With respect to tariffs, the Senate bill failed expressly to exempt labor agreements from sections 16 and 17 of the Shipping Act. But consistent with the testimony offered to the Senate Commerce Committee and the intention manifested in the Senate report, the preservation of FMC jurisdiction with respect to unjust discrimination in that area seems evident in the proviso included in a new section 45 added by the Senate, which recited as follows: The provisions of this Act and of the Intercoastal Shipping Act, 1933, shall not apply to maritime labor agreements and all provisions of such agreements except to the extent that such provisions provide for the funding of collective bargained fringe benefit obligations on other than a uniform manhour basis, regardless of the cargo handled or type of vessel or equipment utilized. Notwithstanding the preceding sentence, nothing in this section shall be construed as providing an exemption from the provisions of this Act or of the Intercoastal Shipping Act, 1933, for any rates, charges, regulations, or practices of a common carrier by water or other person subject to this Act which are required to be set forth in a tariff, whether or not such rates, charges, regulations, or practices arise out of, or are otherwise related to, a maritime labor agreement. [Emphasis supplied.] Contrary to Respondents, the immediate conflict between the labor and transportation policies was in no sense lessened by the MLAA. Nonetheless, I agree with Respondents that to honor the FMC rulings would be mischievous in the present posture of the case. To view the matter otherwise is to invoke an NLRB remedy with respect to conduct legitimate under the policy of that Agency, and to justify that result solely by reference to the interpretations of another administrative agency charged with implementing a distinct congressional concern. It is true that the National Labor Relations Board has been deemed obligated to give effect to express congressional mandate. Thus, in Southern Steamship Co. V. N.L.R.B., 316 U.S. 31 (1942), the Supreme Court held that the Board erred in ordering reinstatement of seamen discharged for their participation in a mutinous strike which on its face violated section 292 and 293 of the Federal Criminal Code. The Court in deleting the Board's remedy stated that it "ignores the plain Congressional mandate that a rebellion by seamen against their officers on board a vessel anywhere within the admiralty and maritime jurisdiction of the United States is to be punished as mutiny. "86 The Court also stated, however: [N]othing that we have said would prevent the Union from striking, picketing or resorting to any other means of self-help, so long as the time and place it chooses do not come within the express prohibition of Congress. 87 [Emphasis supplied.] Adherence, however, to express statutory constraints on employee conduct is not the equivalent of giving finality to interpretative efforts of other administrative agencies in effectuating different congressional policy pursuant to different legislative standards. This was made clear in Local 1976, Carpenters [Sand Door] V. N.L.R.B., 357 U.S. 93, wherein the Supreme Court, inter alia, rejected the Board's view that otherwise lawful hot cargo provisions are to be deemed invalid where executed by common carriers subject to the Interstate Commerce Act. In this respect, the Court reasoned as follows: In the recent Genuine Parts case, already referred to, Truck Drivers Union, 119 NLRB 399, two members of the Board in fact took this position, stating that when common carriers are involved hot cargo clauses are "invalid at their inception and can be given no operative cognizance so far as the administration of this [the Labor Management Relations] Act is concerned." This is true, it is said, because by entering a contract not to handle the goods the carrier violates its obligations under the Interstate Commerce Act to provide nondiscriminatory service and to observe just and reasonable practices. [T]he Interstate Commerce Commission has in fact rules that carriers were not relieved from their obligations under the Interstate Commerce Act by a hot cargo clause. It is significant to note the limitations that the Commission was careful to draw about its decision It was not concerned to determine, as an abstract matter, the legality of hot cargo clauses, but only to enforce whatever duty was imposed on the carriers by the Interstate Commerce Act and their certificates. The Commission recognized that it had no general authority to police such contracts, and its sole concern was to determine whether a hot cargo provision could be a defense to a charge that the carriers had violated some specific statutory duty. It is the Commission that in the first instance must determine whether, because of certain compelling considerations, a carrier is relieved of its usual statutory duty, and necessarily it makes this determination in the context of the particular situation presented by the case before it. Other agencies of government, in interpreting and administering the provisions of statutes specifically entrusted to them for enforcement, must be cautious not to complicate the Commission's administration of its own act by assuming as a fixed and universal rule what the Commission itself may prefer to develop in a more cautious and pragmatic manner through case-bycase adjudication. 86 316 U.S. at 43. 87 316 U.S. at 49. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION The case is not like that in Southern S.S. Co. V. N.L.R.B., 316 U.S. 31, where the Board was admonished not to apply the policies of its statute so single-mindedly as to ignore other equally important congressional objectives. A specific remedy ordered by the Board-reinstatement of employees who had engaged in a strike-worked directly to weaken the effectiveness of a statutory prohibition against mutiny by members of the crew of a vessel. Presumed illegality under the mutiny statute was not used to establish a violation of the labor statutes. It was relied on to establish an abuse of discretion in giving a remedy. Much less was there any suggestion that the Board should abandon an independent inquiry into the requirements of its own statute and mechanically accept standards elaborated by another agency under a different statute for wholly different purposes. [357 U.S. at 108-111.] Sand Door, though by no means indistinguishable, is more closely analogous to the immediate issue than Southern Steamship. But, in any event, other practical considerations warrant a disregard of the FMC rulings herein. Firstly, neither orders of the Board nor those of the FMC are self-enforcing and hence differences as to which policy will prevail will ultimately require judicial endorsement. It would seem, therefore, that the administrative-judicial process is most effectively served by each agency acting on its own in the area of its special expertise.⁸⁸ Furthermore, clear guidelines have not been called to the attention of this writer suggesting when and under what circumstances one agency should defer to the determinations of the other. Hence an extension of comity to the FMC in this instance would rest on little more than that Agency's having acted first. Such a fortuity seems a dubious predicate "for careful accommodation of one statutory scheme to another"89 and for Board abdication of "its immediate task" and other important rights conferred by the legislature. Thus, the exemption afforded by Congress to primary activity under the boycott provisions of the Act is no less than an amplification of the rights guaranteed employees through Section 7 "to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Unquestionably, the FMC, as perhaps was its duty, nullified those rights without airing in holding that the Rules on Containers are discriminatory and unenforceable simply because they impose conditions, not founded on transportation factors, which result in a difference in treatment between complying and noncomplying shippers and importers. It may well be that in the final analysis the adverse impact on shipping interests brought about by the Rules on Containers will be afforded primacy and deemed a controlling element of analysis of 8(e) and 8(b)(4)(A) and (B) issues. However, there being no cognizable authority as to which policy serves the public interest in more compelling fashion, reconciliation of the conflict would seem beyond the province of the administrative agencies. Hence, at this point foundation is lacking for preferring the policy aimed at protecting competition in the maritime sector over that designed to mitigate labor-management strife in that and other industries. Accordingly, the FMC ruling is regarded as having no cogent influence upon the assessment of the Union's objective under the secondary boycott provisions of the National Labor Relations Act. For the above reasons, the contentions of the General Counsel and the Charging Parties in this respect are rejected, and it is concluded that to the extent supported by a legitimate work preservation objective, as heretofore found, the Rules are not faulted on the basis of the "Right of Control Doctrine." Instead, it is concluded that the employers signatory to the Rules, by virtue of their control over access to the container technology and the dispersal of jobs inherent therein, possessed the capacity themselves to resolve the underlying dispute. H. The Individual Cases 1. American Trucking Associations, Inc., 22-CE-44, et al.: On December 6, 1980, an agreement was entered between the ILA and its affiliates and NYSA, CONASA, STA, The West Gulf Maritime Association, The Southeast Florida Employers Association, and the Mobile Steamship Association, Inc., whereby the Rules on Containers were again to be subject to enforcement, effective January 1, 1981.90 In consequence, unfair labor practice charges were filed on December 19, 1980, and on February 18, 1981, the General Counsel issued a first amended consolidated complaint thereon, alleging that said reentry of the Rules violated Section 8(e), and that in connection therewith the ILA, on or about December 6, 1980, threatened to induce and encourage individuals employed by NYSA, CONASA, STA, and HRSA to strike, and at that time coerced and restrained certain of said associations to force their entry in said agreement, thereby violating Section 8(b)(4)(i) and (ii)(A) of the Act. Said complaint further alleged that the ILA, in furtherance of a primary labor dispute with American Trucking Associations, Inc. (ATA), Twin Express, Inc. (Twin), and the International Association of Non-Vessel Operating Common Carriers (IANVOCC), on or about December 6, 1980, threatened to induce and encourage individuals employed by certain of said steamship associations to engage in a strike and coerced and restrained certain of said steamship associations to force them to cease doing business with ATA, Twin, and the IANVOCC in violation of 8(b)(4)(i) and (ii)(B) of the Act. The specific terms of the complaint relate solely to the circumstances surrounding the agreement entered on or about December 6, 1980. There are no allegations placing in issue any aspect of the enforcement of the Rules as contemplated by Respondents during the period following January 1, 1981. As the complaint fails to advert to 88 The FMC's ruling on the container issue has yet to receive court approval. Should said ruling be rejected after the Board were to give it binding effect, the instant proceeding would have to be reopened for consideration in that light. 89 Southern S.S. Co. V. N.L.R.B., 316 U.S. at 47. 90 See App. A(vii) attached hereto. DECISIONS OF NATIONAL LABOR RELATIONS BOARD improper application or pressures invoked by the ILA after December 6, 1980, litigation of that question is beyond the purview thereof and not cognizable in this proceeding. 91 On the issues framed by the pleadings, there is no evidence that the ILA threatened the steamship associations in support of its demand for reimplementation of the Rules nor is there any suggestion that employees were induced to engage in any stoppage in connection with either those negotiations or demands for reapplication of the Rules. Notwithstanding this failure of proof, it is argued that violations of Section 8(b)(4)(ii)(A) and (B) are nonetheless maintainable by virtue of the inclusion of penalties in the Rules in the form of liquidated damages. Unquestionably, liquidated damages are the equivalent of a fine and represent a continuing coercive restraint upon signatory employers to reenter the Rules through enforcement as against noncomplying third parties. The Board has held that the incorporation of similar forms of economic pressure as a contractual mechanism for enforcement of an unlawful hot cargo agreement will support 8(b)(4)(ii)(A) and (B) violations. 92 Obviously, however, there is no vice in such self-help arrangements where designed to enforce negotiated arrangements lawfully preserving work within the primary work unit, for in such a context the objectives proscribed variously in Section 8(b)(4)(A) and (B) are lacking and no violation inures. No more can be found on the instant record. The Rules on Containers are not unlawful on their face, but are "a facially valid agreement [which] may be invalid for Section 8(e) purposes in particular factual contexts. In its other applications, the same agreement retain[s] its validity. The conclusions herein that the Rules violate Section 8(e) are predicated upon their specific application to motor carriers and warehousemen, but only insofar as containers are processed by the latter in conjunction with their own traditional work patterns neither created by containerization nor in competition with that performed by deep sea ILA labor in connection with services historically provided by the latter's maritime employers. In all other respects, the Rules have been deemed lawful. Accordingly, as the complaint in American Trucking Association neither alleges nor otherwise places in issue any form of proscribed application, no foundation is laid for concluding that the 1980 reentry violated Section 8(e), or that any pressures applied to signatory employers in quest thereof were for objects condemned by Section 8(b)(4)(A) or (B). Accordingly, it shall be recommended that said complaint be dismissed in its entirety. 2. Consolidated Express, Inc., 221 NLRB 956 (1975), enfd. 537 F.2d 706 (2d Cir. 1976), cert denied 429 U.S. 104 (1977); Puerto Rico Marine Management, Inc., 245 91 Thus. affidavits included in Jt. Exh. 1 to the extent that they relate to enforcement of the Rules after January 1, 1981, are of no aid to the inquiry. Though left uncontradicted by Respondents, conduct within this time frame, as indicated in those affidavits, was beyond the allegations in the complaint, Respondents were not placed on notice that said conduct was a matter in issue, and consistent with due process those matters could not be said to have been the subject of full litigation herein. 92 See. e.g., Ets-Hokin Corporation. 154 NLRB 839, 841-843 (1965). 93 Carrier Air Conditioning Co. V. N.L.R.B., 547 F.2d at 1185. NLRB 1320 (1979); Dolphin Forwarding, Inc., 236 NLRB 525 (1978), enforcement denied 613 F.2d 890 (D.C. Cir. 1979): Dismissal of the above cases shall be recommended. All involved NVOCCs or consolidators against whom the Rules were enforced by either the withholding of containers or by the refusal to load containers aboard ship because stuffed offshore within the port area in contravention thereof. Having found herein that the Rules apply legitimately to such practices, they were subject to lawful enforcement to preserve the traditional work of deep sea ILA labor, and, accordingly, it shall be recommended that the complaints alleging 8(e) and 8(b)(4)(ii)(B) violations in each of the cited cases be dismissed in their entirety. 3. Associated Transport, Inc., 231 NLRB 351 (1977), enforcement denied 613 F.2d 890 (D.C. Cir. 1979), remanded 447 U.S. 490 (1980): The 8(e) and 8(b)(4)(ii)(B) allegation in this case related to enforcement of the Rules against the practice of "shortstopping" FSL containers within the 50-mile port area by motor carriers. Each application of the Rules pertained to container stripping pursuant to immediate reloading of cargo into over-theroad trailers, consistent with historic motor carrier practice, which was not created by marine technology, nor in competition with maritime employers. Thus, the offshore work in no way related to work historically performed by deep sea ILA labor at the piers. As heretofore indicated, the application of the 50-mile rule in such a context is not supported by a legitimate work preservation objective and is secondary and violates Section 8(e). The fines imposed on the steamship company to enforce the Rules in this respect violated Section 8(b)(4)(ii)(B). Accordingly, it shall be recommended that the Order heretofore issued by the Board in this case be reaffirmed, with the modifications recommended herein. 4. Hill Creek Farms, Inc., Cases 4-CC-1133 and 4- CE-55: As indicated, this case was pending on exceptions to the Administrative Law Judge's Decision at the time of its consolidation herewith. In this case, the Administrative Law Judge found that locals of the ILA had violated Section 8(b)(4)(i) and (ii)(B), and that the 30-day warehouse rule violated Section 8(e). The case involved application of the 30-day warehouse clause to a cold storage warehouse, Hill Creek, within the Port of Philadelphia. Briefly stated the facts in the case showed that ILA affiliates received information that Hill Creek was not complying with the 30-day storage requirement, but stripped refrigerated containers of imported meat for immediate loading on trucks. Based thereon, an ILA affiliate interceded to preclude release of such containers to Hill Creek. In finding that the 30- day warehousing clause was violative of Section 8(e) and that the union's conduct violated Section 8(b)(4)(i) and (ii)(B), the Administrative Law Judge relied principally upon the Conex rationale and the Board's position therein that the Rules seek to acquire offshore work, rather than to preserve work traditionally performed by the ILA at the pier. As heretofore indicated in section III,F,3,b,(3), supra, the 30-day warehouse clause, depending on the circumstances, may or may not be supported by a lawful work INTERNATIONAL LONGSHOREMEN'S ASSOCIATION preservation objective. Thus, it would be lawful as applied to traditional distribution services not created by containerization which did not result in displacement of ILA labor since not in competition with services available through steamship companies or marine terminal operators. On the other hand, as discussed supra, the Hill Creek case presents a fact pattern to which the 30-day rule would legitimately apply as a means of protecting ILA labor against a new pattern of competition made possible through containerization, which threatened their traditional work practices by placing pierside cold storage warehouses, which are within the primary unit, at a competitive disadvantage, and thereby eroding work opportunities of deep sea ILA labor. Accordingly, the 8(e) allegations challenging this application of the 30-day warehousing requirements is viewed as unsubstantiated.94 Furthermore, as the withholding of the containers by the ILA represented a refusal to handle cargo pursuant to a business relationship previously entered by signatory steamship companies in violation of their duly negotiated obligation under the 30-day rule, the pressures were of a primary nature and not for an objective proscribed by Section 8(b)(4)(i) and (ii)(B). 5. The Terminal Corporation, 250 NLRB 8 (1980): This case involved 8(b)(4)(i) and (ii)(B) violations arising from container handling operations of the Terminal Corporation, a bona fide warehouse, operating within the port limits of Baltimore, and is illustrative of the diverse conclusions to be reached in assessing applications of the 30- 94 The Administrative Law Judge, in finding that the rule embodied a secondary objective, relied on certain extrinsic evidence, including statements imputed to an ILA representative that the action taken against Hill Creek was in the interest of securing work for Portside Refrigeration, a cold storage warehouse within the dock area which employed ILA Labor. In this connection, the Administrative Law Judge concluded that Portside Refrigeration was neither signatory to the Rules nor an employer within the primary work unit. Respondent, in its post-hearing brief, excepted to this latter finding. In an answering brief, dated November 14, 1979, filed with the Board, the General Counsel represented as follows: "Counsel for the General Counsel will stipulate with respect to Respondents' exception I and 2, although these facts are not in the record, that Portside Refrigeration is a member of P.M.T.A. and all of Portside's [warehouse] employees are represented by ILA." 95 The Administrative Law Judge, in finding the violation of Sec. 8(b)(4)(B), reasoned further that, at the time the Hill Creek containers were held on the docks, control had passed to Hill Creek and its motor carrier. From the evidence, however, it does not appear that these containers ever left the dock. In any event, by virtue of the 30-day rule, steamship companies are foreclosed at the outset from releasing containers to warehousemen that fail to abide by the Rules. On evidence that Hill Creek was not complying therewith, ILA members had the right to withhold their labor to enforce the signatory employer's obligation which matured at the time the latter possessed the requisite control. The fact that the ocean bill of lading designated the containers as "House-to- House" is viewed as of no consequence. Prior to acceptance of such an arrangement, the steamship companies are in a position to honor their commitment to the ILA by conditioning access to its vessels and containers upon guarantees that the consignee will not remove cargo from the inland warehouse prior to expiration of the 30-day period. Steamship companies having failed to honor their commitments to the ILA in this respect are fair game for primary strike actions, just as would be the case with respect to an employer struck in protest of a loss of unit work which occurs after said employer has contracted out such work in violation of a contractual ban on subcontracting. In either case, self-help to enforce otherwise legitimate obligations of the immediate employer do not lose their character as primary activity solely because said employer has removed the work from the primary unit in violation of said obligations. day rule. Thus, Terminal's warehouse facilities in the Port of Baltimore were utilized by a German manufacturer of firebrick. The firebrick was stuffed in Germany in FSL containers and consigned to Terminal. On import, Terminal would strip the containers and, pursuant to instructions from the exporter, would hold a portion as inventory against future orders, while distributing quantities of brick already sold. Sometimes the brick would remain in the warehouse for less, and sometimes longer, than 30 days. The warehouse, in addition to its utility in inventoring against future orders, also made available bricks of various sizes allowing customers to make last-minute determinations as to the size needed to meet their requirements. The Administrative Law Judge found that with respect to such containers the ILA violated Section 8(b)(4)(i) and (ii)(B) by ILA-induced temporary refusal of its members to release such containers to Terminal because accompanying shipping papers lacked the 30-day warehousing language as required. For the reasons stated supra, the 30-day rule as applied in the above context is unlawful since an intrusion upon traditional inland warehousing practices within the area of cargo storage; i.e., indefinite, deferred, partial distribution, pursuant to a continuing relationship with a consignee or exporter, which is neither in competition with those provided by marine terminal warehouses, nor created by container technology, nor a threat to the work of deep sea ILA labor. In short, the application of the rule to the FSL import containers in this case involved an attempt by ILA, pursuant to the rules, to compensate for thier own job losses by acquisition of the work historically performed by others. Additional 8(b)(4)(i) and (ii)(B) violations were found by the Administrative Law Judge in connection with Terminal's handling of export containers. In this connection it is noted that prior to containerization Terminal performed no services in connection with export cargo in the Port of Baltimore. However, in 1979, Terminal entered into an agreement with a shipper of scrap paper which previously had utilized its own employees to stuff FSL export containers. Under the arrangement, the shipper would deliver scrap paper to Terminal, and the latter would simply stuff the containers for export. It does not appear that Terminal, in connection therewith, performed any specialized warehousing services. Accordingly, it appears that with respect to these export containers Terminal acted solely in the capacity of a container-handling station within the port area, and, in making this service available, engaged in work made economically feasible only through containerization, which tended to undermine conditions under which identical work is performed at the piers by deep sea ILA labor. The fact that these containers previously were stuffed by the shipper's own employees, rather than by deep sea ILA labor, is of no consequence. For it is one thing for a shipper to avail itself of the exemption created when it stuffs containers on its own behalf utilizing its own employees, but quite another when it utilizes a port area container-handling station to perform that work under conditions which erode the wages, job conditions, and work opportunities DECISIONS OF NATIONAL LABOR RELATIONS BOARD of deep sea ILA labor. For the reasons set forth above, I find that the evidence fails to establish that the ILA violated Section 8(b)(i) and (ii)(B) in this regard. Accordingly, it is recommended that the Board reaffirm the violations found in The Terminal Corporation with respect to the stripping of import containers, but dismiss the allegations insofar as they relate to the stuffing of export containers. 6. Beck Arabia, Ltd., 245 NLRB 1325 (1980): This case involved the stuffing of FSL containers for export by Shipside Packing Company, a general warehouse and packing operation located in the Port of Baltimore. The shipper involved was Beck Arabia, Ltd. a national of Saudi Arabia which is engaged in the construction of hotels, apartment buildings, shopping centers, and housing projects in Saudi Arabia. The latter maintains offices in Dallas, Texas, from which it is engaged in the procurement of goods and materials utilized in connection with such foreign construction endeavors. Pursuant thereto, Beck Arabia purchases such items directly from a variety of American manufacturers and suppliers, who, in turn, ship said materials directly to Shipside. Shipside operates as a holding area for purchases by Beck Arabia. As it receives the purchased goods from various vendors, they are checked and stored, pending instruction from Beck Arabia as to which material is to be shipped on which particular vessel. At that point, Shipside will pick from storage and then consolidate the goods designated for export preparation. Thereafter, the loaded containers are delivered to the piers by independent motor carriers under contract with Shipside. 96 For the reasons set forth at footnote 58, supra, it shall be recommended that the 8(b)(4)(i) and (ii)(B) violation in this case be reaffirmed. The instruction by an ILA affiliate, and refusal by ILA members pursuant thereto, to handle the export containers of Beck Arabia involved an intrusion on traditional services available through inland warehouses, not available at pierside, not created by containerization, and not historically a part of the ILA's work tradition. The stuffing of the containers in question was but an incident of general storage, picking, and consolidation pursuant to an ongoing relationship between warehouse and single shipper, which together represent an integrated inland service distinct from the temporary storage provided at marine terminal warehouses. Accordingly, the Rules on Containers and work preservation attributes thereof fail to justify the action of the ILA representatives in this case. 97 96 Prior to containerization, at least since 1976, Shipside was primarily engaged in the business of building and constructing specialized wooden boxes for export shipment which it loaded for transport to the piers. At that time, Shipside did not engage in the stuffing or stripping of overseas containers. 97 The General Counsel further contends in this case that, as the containers in question were furnished by a steamship company which was not bound by the Rules, the violations originally found are sustainable on this basis as well. Those containers were owned and provided to Shipside by Gulf Lines, Inc., herein called Gulf. CONASA Exh. I is a letter dated November 7, 1980, over the signature of C. P. Lambos as special counsel to Central Gulf Lines, Inc., which recites, in material part, as follows: In the port of Baltimore, Central Gulf uses contract stevedores and is subject to and is bound by the collective-bargaining agreements entered into by and between the Steamship Trade Association of 7. Custom Brokers and Forwarders Association of Miami, Inc., Case 12-CE-30: This case was pending on exceptions before the Board at the time of consolidation herewith. Involved in that case was an 8(e) allegation based upon the maintenance and enforcement of the Rules in the Port of Miami. The Administrative Law Judge dismissed the complaint, finding that in the Port of Miami (1) there was no significant containerization work history prior to 1968, (2) in 1968 the Rules on Containers became effective in that Port, and (3) the Rules have been interpreted and applied since 1968 so that virtually all container work performed since has been performed by ILA labor as required by the Rules. Contrary to Conex, he concluded that, in light of the foregoing, the work in dispute could not be defined as "off pier consolidation" but, instead, consisted of the very work defined in the Rules. Accordingly, he viewed the Rules as possessed of a legitimate work preservation objective seeking work which contracting employers held power to assign. In this particular case, it is observed by the General Counsel and by counsel for the Charging Party that a secondary objective is disclosed herein through the condonation under the Rules of a practice whereby two offshore consolidators, Twin Terminal and Econocaribe, were afforded free access to containers, and allowed to strip and stuff same without ILA interference. It appears that Twin Terminal and Econocaribe maintain facilities off pier from which they consolidate freight. The collective-bargaining agreement covered by the Rules in the Port of Miami is negotiated between ILA affiliates and the Southeast Florida Employers' Port Association (SFEPA). Neither Twin Terminal nor Econocaribe was a member of SFEPA. Evidence does show that either had ever authorized SFEPA to bargain in their behalf. Nonetheless, customarily, upon completion of SFEPA negotiations, both were approached by representatives of ILA affiliates, and during such encounters, and upon request of the latter, they signed such agreements. Between 1968 and 1979, while offshore consolidators were denied access to containers under strict enforcement of the Rules, contrary thereto work was diverted, with assent of Respondents, for offshore consolidation by Twin Terminal and Econocaribe as an alternative to the performance of this work at the pier by deep sea ILA labor. The Administrative Law Judge concluded that these offshore consolidators were within the primary work Baltimore, Inc., and the International Longshoremen's Association, AFL-CIO. This conclusory statement by counsel of record is self-serving hearsay not otherwise substantiated. Other evidence furnished by the Steamship Association of Baltimore indicates that Gulf is not a direct member of STA. See G.C. Exh. 2(c). One might speculate that Gulf might well be bound to the Rules through the steamship agency which represents Gulf in the Port of Baltimore. However, though evidence of any such arrangement would be available to CONASA, it was not made a part of the record herein. Accordingly, as the record stands, enforcement of any such claim by the Longshoremen in this case was not shown to have been invoked with respect to an immediate employer having power to control assignment of the disputed work, and on that ground as well the 8(b)(4)(i) and (ii)(B) violations herein are substantiated. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION unit, and that the Rules as applied in the Port of Miami could not be faulted on this ground. In so holding, the Administrative Law Judge noted that neither was a member "of SFEPA and there is no evidence that SFEPA was ever expressly authorized to bargain with ILA on their behalf." Nonetheless, he concluded that because each separately signed the agreements negotiated by SFEPA, and participated in the joint trust fund and on the joint grievance committee, both "by implication indicated their intention to be bound in collective bargaining by SFEPA rather than bargain on thier own behalf." The Administrative Law Judge further concluded that Twin Terminal and Econocaribe were part of the multiemployer bargaining unit represented by SFEPA and failed to constitute separate units. Such a conclusion is not warranted on this record. Frank Arevalo, the president of Twin Terminal, and Jerald Lesnick, the president of Econocaribe, were called by the General Counsel to testify concerning the relationship of said firms to SFEPA. Neither signified that they had designated SFEPA as their representative for purposes of bargaining with the ILA locals in the area, nor did they articulate any other facts indicating commitment that their employees were a part of the portwide ILA unit. Indeed, the inclusion of these inland operators as within such a broader unit would be inconsistent with traditional Board determinations in the longshore industry, and contrary to the prevailing practice of the ILA and the various steamship associations in other ports, both in terms of the nature of the employers belonging to or represented by such steamship associations as well as the composition of the employee unit on whose behalf such portwide bargaining generally takes place. In the total circumstances, the fact that these offshore operators signed and honored the ILA contracts does not neutralize the clear inference that Twin Terminal and Econocaribe were not a part of the unit covered by the Rules. Instead, it is concluded that both offshore firms simply signed separate agreements founded upon that negotiated by SFEPA and those separately executed documents simply covered separate appropriate units limited to their respective employees. "[T]he Board has found that an employer does not become a part of a multiemployer bargaining group where it merely adopts a collective-bargaining agreement in the negotiation of which it did not actually participate and which it did not authorize another to negotiate on its behalf. As neither Twin Terminal nor Econocaribe consented to be a part of the multiemployer unit, the disparate treatment of these two consolidators in relation to those that did not employ ILA labor was beyond sanction of the Rules and in furtherance of an unlawful organizational objective designed to force offshore consolidators to employ ILA members. 99 Thus, this conduct was in consonance with the principle that where an object is "to aid union members generally, rather than members of a unit," the object is secondary and unlawful. 100 In this instance, restricted access to container technology was not pertinent to any dispute between ILA affiliates and members of SFEPA, but was invoked in quest of organization of other employers whose employees were not represented by the ILA. Said arrangement is found to have violated Section 8(e) of the Act. CONCLUSIONS OF LAW American Trucking Associations, Inc., Case 22-CE- 19, et al. 1. The various employers and persons, including the Charging Parties and Respondent Steamship Associations, named in section I of this Decision are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and "persons" engaged in an industry affecting commerce within the meaning of Section 8(b)(4)(i) and (ii) of the Act. 2. Respondent ILA and its affiliates named in section II of this Decision are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Unions and Steamship Associations did not violate Section 8(e) of the Act by, on December 6, 1980, agreeing to reimplement the Rules on Containers effective January 1, 1981, and Respondent Unions did not violate Section 8(b)(4)(i) and (ii)(A) or (B) in connection with its efforts to secure said agreement. Consolidated Express, Inc., 221 NLRB 956 1. New York Shipping Association, Inc., Consolidated Express, Inc., and Twin Express, Inc., are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Longshoremen's Association, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union did not engage in violations of Section 8(b)(4)(ii)(B) as alleged herein. 4. Respondent Union and New York Shipping Association, Inc., did not engage in violations of Section 8(e) of the Act as alleged in the consolidated complaints herein. Dolphin Forwarding, Inc., 236 NLRB 525 1. 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), (6), and (7) of the Act. 2. International Longshoremen's Association, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents ILA and NYSA did not violate Section 8(e) of the Act by maintaining, giving effect to, or enforcing the Rules on Containers. 4. Respondent ILA did not violate Section 8(b)(4)(ii)(B) by efforts to enforce the Rules on Containers as alleged herein. 98 Ruan Transport Corporation, 234 NLRB 241, 242 (1978). 99 National Maritime Union of American, AFL-CIO; Commerce Tankers Corporation (Vantage Steamship Corporation), 196 NLRB 1100 (1972). 100 See Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees, Local Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Wilson & Co.] V. N.L.R.B., 335 F.2d 709, 716 (D.C. Cir. 1964). DECISIONS OF NATIONAL LABOR RELATIONS BOARD Puerto Rico Marine Management, Inc., 245 NLRB 1320 1. Puerto Rico Marine Management, Inc., Jacksonville Maritime Association, Inc., Caldwell Shipping Company, and International Container Express are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Longshoremen's Association, AFL- CIO, Loca! Union No. 1408, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent ILA Local 1408 did not enforce the Rules on Containers through means proscribed by Section 8(b)(4)(ii) or for an object proscribed by Section 8(b)(4)(ii)(B) of the Act. Associated Transport, Inc., 231 NLRB 351 1. Houff Transfer, Inc., Associated Transport, Inc., Steamship Trade Association of Baltimore, CONASA, Hampton Roads Shipping Association, Tidewater Motor Truck Association, U.S. Lines, and Lavino are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. ILA Hampton Roads District Council, Atlantic Coast District Council, and Locals 333, 846, 862, 921, 957, 970, 1248, 1355, 1429, 1458, 1624, 1736, 1783, 1784, 1819, 1840, and 1970 are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent labor organizations and Respondents CONASA and HRSA violated Section 8(e) by enforcing the CONASA-ILA Rules on Containers under conditions precluding Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., and Thurston Motor Lines, Inc., from performing work they traditionally performed as motor carriers which was not created by containerization, was not in competition with services provided by members of CONASA and HRSA, and was not traditional work performed by deep sea ILA labor at the piers. 4. Respondent labor organizations violated Section 8(b)(4)(ii)(B) of the Act by seeking to impose or imposing fines against employer-members of HRSA, including U.S. Lines, and other persons for an object, to the extent found unlawful herein, of forcing said persons to cease doing business with Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc.. and members of the Tidewater Motor Truck Association. 5. The unfair labor practices found herein have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. Hill Creek Farms, Inc., Case 4-CC-1133, et al. 1. Hill Creek Farms, B. Barks and Sons, Inc., C. F. Anderson Company, World Wide Trading Company, Delaware Operating Company, and employer-members of the Philadelphia Maritime Association are employers and/or persons engaged in commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 2. ILA Local 1242 is a labor organization within the meaning of Section 2(5) of the Act. 3. ILA Local 1242 and PMTA have not violated Section 8(e) by entering into an agreement whereby employer-members of PMTA ceased doing business with Barks, Hill Creek, or any other person. 4. ILA Local 1242 has not violated Section 8(b)(4)(i) and (ii)(B) in connection with its conduct forcing or requiring employer-members of PMTA to cease doing business with Hill Creek, Barks, and other persons. Beck Arabia, Ltd., 245 NLRB 1325 1. Beck Arabia, Ltd., Chesapeake Operating Company, Central Gulf Lines, Inc., and Shipside Packing Company, Inc., are employers engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondents and Local 311 are labor organizations within the meaning of Section 2(5) of the Act. 3. By instructing ILA members employed by Chesapeake not to handle goods packed by Shipside, and by coercing and restraining Chesapeake, Gulf, Beck Arabia, and other persons engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring such persons to cease doing business with Shipside in connection with Shipside's performance of work not claimable by the ILA, Respondents engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The unfair labor practices found herein have an effect upon Commerce within the meaning of Section 2(6) and (7) of the Act. The Terminal Corporation, 250 NLRB 8 1. The Terminal Corporation, Chesapeake Operating Company, and Ceres Terminals, Inc., are employers engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Longshoremen's Association, AFL- CIO, International Longshoremen's Association, Atlantic Coast District, AFL-CIO, International Longshoremen's Association, Local 333, AFL-CIO, and International Longhsoremen's Association, Local 953, AFL-CIO, collectively referred to here as Respondents, are labor organizations within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Chesapeake and Ceres, members of Respondents, not to handle goods consigned to Terminal for performance of work not subject to legitimate claim under the Rules on Containers, and by coercing and restraining Chesapeake and Ceres with an object of forcing or requiring Chesapeake and Ceres, with respect to such work, to cease doing business with Terminal, Respondents engaged in unfair labor practices affecting commerce in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. Respondents did not violate Section 8(b)(i) and (ii)(B) by inducing and encouraging employees of Chesapeake and Ceres not to handle goods stuffed by Terminal, which is work lawfully assigned to deep sea ILA labor under the Rules on Containers. even though an object of such pressures was to force Chesapeake and Ceres to cease doing business with Terminal. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 5. The unfair labor practices found herein have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. Custom Brokers and Forwarders Association of Miami, Inc., Case 12-CE-30 1. Custom Brokers and Forwarders Association of Miami, Inc., and Southeast Florida Employers Port Association are employers within the meaning of Section 2(6) and (7) of the Act. 2. ILA Locals 1406, 1406-A, 1680, 1526, 1526-A, and 1922, AFL-CIO, are labor organizations within the meaning of Section 2(6) and (7) of the Act. 3. Respondent Unions and Respondent SFEPA violated Section 8(e) of the Act insofar as they have enforced an agreement or arrangement as an organization device whereby Respondent SFEPA has refused to do business with employers not employing ILA labor but has continued to do business with employers not within the primary work unit but who employ ILA labor. 4. The unfair labor practices found herein have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that violations were not substantiated in American Trucking Association, supra; Consolidated Express, Inc., supra; Dolphin Forwarding, Inc., supra; Puerto Rico Marine Management, Inc., supra; and Hill Creek Farms, Inc., supra, it shall be recommended that the complaints therein be dismissed in their entirety. In the remaining cases violations have been reaffirmed in Associated Transport, Inc., supra; Beck Arabia, Ltd., supra; and The Terminal Corp., supra. However, the original remedies issued in those cases were founded upon the Board's theory that the Rules on Containers were unlawful on their face as universally embodying a proscribed work acquisition objective. Having found herein that the Rules are not per se unlawful, but that, in particular circumstances, they have been unlawfully applied, it shall be recommended that these pending Orders be modified so as to preserve the legitimate aspects of the Rules. As indicated, the final case, Custom Brokers and Forwarders Association of Miami, Inc., supra, was dismissed by the Administrative Law Judge. However, having found herein that Respondents in that case gave effect to an arrangement in violation of Section 8(e) whereby a preference was accorded to off-pier operators employing ILA members over those that did not, it shall be recommended that Respondents therein cease and desist from entering, maintaining, or enforcing any such arrangement as an aid to Respondent Unions' organizaitonal objectives. However, for remedial purposes, it is noted that this unlawful practice with respect to container distribution is one not countenanced either by the literal terms of the Rules on Containers or the negotiating history which led to their adoption in the Port of Miami. Hence, the remedy recommended herein is addressed to the illicit practice only, without disturbing the job-security interests otherwise rightfully conferred, by virtue of the Rules, upon deep sea ILA labor in that Port. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this consolidated proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: REVISED SUPPLEMENTAL ORDER 101 Associated Transport, Inc., Cases 5-CC-791 and 5- CE-48, et al. A. Respondents International Longshoremen's Association, AFL-CIO, Hampton Roads District Council, International Longshoremen's Association, AFL-CIO, Atlantic Coast District Council, and International Longshoremen's Association, AFL-CIO, ILA Locals 333, 846, 862, 921, 953, 970, 1248, 1355, 1429, 1458, 1624, 1736, 1783, 1784, 1819, 1840, and 1970, AFL-CIO, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Giving effect to and enforcing the contracts and agreements known as the CONASA-ILA Rules on Containers to the extent and in the manner said applications have been found to be unlawful herein. (b) Continuing to seek or impose fines against employer-members of HRSA, including U.S. Lines, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Associated Transport, Inc., Houff Transfer Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer-members of Tidewater Motor Truck Association, provided that the terms hereof shall only apply with respect to the practice of said motor carriers whereby import containers are stripped for their exclusive benefit as an incident of traditional motor carrier practice neither created by containerization nor rivaled by services provided by marine operators or work performed at the pier by deep sea ILA labor. (c) Coercing or restraining CONASA, HRSA, or any of HRSA's employer-members, or any other person engaged in commerce in an industry affecting commerce, where an object thereof is to force or require such persons to cease doing business with Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employermembers of Tidewater Motor Truck Association, provided that the terms hereof shall only apply with respect to the practice of said motor carriers whereby import containers are stripped for their exclusive benefit as an incident of traditional motor carrier practice neither created by containerization nor rivaled by services traditionally rendered by marine operators and performed at the pier by deep sea ILA labor. 101 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Notify all of their members who are employed by employer-members of HRSA that the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of HRSA may not be enforced to restrain, restrict, limit, fine, or prohibit handling containers with respect to Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employermember of Tidewater Motor Truck Association to the extent that those containers are stripped as an incident of traditional motor carrier practice for the exclusive benefit of motor carriers pursuant to their traditional practice not rivaled by services traditionally rendered by motor operators and performed at the piers by deep sea ILA labor. (b) Post at all of their respective business offices, meeting halls, and dispatch halls copies of the attached notice marked "Appendix B."¹⁰² Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by a representative of each Respondent labor organization named in this section of the Order, shall be posted by each of the said labor organizations immediately upon receipt thereof, and be maintained by each of them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said labor organizaitons to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps each of said labor organizations has taken to comply herewith. B. Respondents Council of North Atlantic Shipping Associations (CONASA) and Hampton Roads Shipping Association (HRSA), their respective officers, agents, successors, and assigns, shall: 1. Cease and desist from giving effect to, and enforcing, the contracts and agreements known as the CONASA-ILA Rules on Containers to the extent and in the manner said application has been found to be unlawful herein. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) HRSA shall notify U.S. Lines and all other employer-members of HRSA that the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of HRSA may not be enforced to restrain, restrict, limit, or prohibit handling containers with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer-member of Tidewater Motor Truck Association to the extent that said containers are stripped for the exclusive benefit of motor carriers pursuant to their traditonal practice not rivaled by services traditionally rendered by marine operators and performed by deep sea ILA labor. (b) CONASA shall notify U.S. Lines and all other members of HRSA that the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of HRSA may not be enforced to restrain, restrict, limit, or prohibit handling in the customary manner containers with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or other employer-members of Tidewater Motor Truck Association to the extent that said containers are stripped for the exclusive benefit of motor carriers pursuant to their traditional practice not rivaled by services traditionally rendered by marine operators and performed by deep sea ILA labor. (c) HRSA shall mail to U.S. Lines and each of HRSA's other employer-members, and post at its Norfolk, Virginia, office, copies of the attached noticed marked "Appendix C."¹⁰³ Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent HRSA's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employer-members are customarily posted. Reasonable steps shall be taken by Respondent HRSA to ensure that said notices are not altered, defaced, or covered by any other material. (d) CONASA shall mail to HRSA, U.S. Lines, and each of the other employer-members of HRSA, and post at CONASA's main office in New York, New York, copies of the attached notice marked "Appendix D."¹⁰⁴ Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent CONASA's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to member associations are customarily posted. Reasonable steps shall be taken by Respondent CONASA to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writ. ing, within 20 days from the date of this Order, what steps Respondents CONASA and HRSA have taken to comply herewith. Beck Arabia, Ltd. Respondents International Longshoremen's Associ ation, AFL-CIO, International Longshoremen's Distric Council, Baltimore, Maryland, International Longshore men's Association, Local 953, and International Long shoremen's Association, Local 333, their officers, agents and representatives, shall: 1. Cease and desist from inducing or encouraging ind viduals employed by Chesapeake Operating Company, o by other persons engaged in commerce or in an industr affecting commerce, to engage in a strike or refusal i 102 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 103 See fn. 102, supra. 104 See fn. 102, supra. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threatening, coercing, or restraining Chesapeake Operating Company, Central Gulf, Beck Arabia, or any other persons engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to require the above-named persons, or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with Shipside Packing Company, Inc., or any other person, but only to the extent that said persons are not engaged in work lawfully claimable by Respondents as set forth in the attached Decision of the Administrative Law Judge. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify members of International Longshoremen's Association, Locals 333 and 953, that Respondents have no objection to loading of containers that have been stuffed by Shipside Packing Company, Inc., to the extent that said container handling is performed in conjunction with traditional general warehousing practices of marshaling, storing, picking, and packing on a continuing basis for a single shipper of inland accumulations of cargo for export. (b) Notify members of International Longshoremen's Association, Locals 333 and 953, that any previous instructions, requests, or appeals which Respondents have made against loading or unloading cargo for or from Shipside Packing Company, Inc., have been withdrawn to the extent that they apply to the handling of containers for such purposes. (c) Post in conspicuous places in Respondents' business offices and meeting halls copies of the attached notice marked "Appendix Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondents' representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 5 sufficient signed copies of the aforementioned notice for posting by Chesapeake and Shipside, those companies willing, in all places where notices to their respective employees are customarily posted. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. The Terminal Corporation Respondents International Longshoremen's Association, AFL-CIO, International Longshoremen's Association, Atlantic Coast District, AFL-CIO, International Longshoremen's Association, Local 333, AFL-CIO, and International Longshoremen's Association, Local 953, AFL-CIO, individually and collectively, their officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging individuals employed by Chesapeake Operating Company, Ceres Terminals, Inc., or any other persons engaged in commerce or in an industry affecting commerce to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threatening, coercing, or restraining Chesapeake Operating Company, Ceres Terminals, Inc., or any other persons engaged in commerce or in an industry affecting commerce, where an object thereof is to require the abovenamed persons, or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with the Terminal Corporation, or any other person, to the extent found unlawful herein. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify members of International Longshoremen's Association, AFL-CIO, International Longshoremen's Association, Atlantic Coast District, AFL-CIO, International Longshoremen's Association, Local 333, AFL- CIO, and International Longshoremen's Association, Local 953, AFL-CIO, that Respondents have no objection to the stripping of cargo from containers by The Terminal Corporation, insofar as such container handling is in conjunction with traditional general warehousing functions of indefinite storage and deferred, partial distribution performed pursuant to a continuing relationship with an exporter or consignee. (b) Notify members of International Longshoremen's Association, AFL-CIO, International Longshoremen's Association, Atlantic Coast District, AFL-CIO, International Longshoremen's Association, Local 333, AFL- CIO, and International Longshoremen's Association, Local 953, AFL-CIO, that any previous instructions, orders, requests, or appeals which Respondents have made against unloading or releasing containers for or to The Terminal Corporation have been withdrawn to the extent that such containers are to be stripped in conjunction with traditional general warehousing functions of indefinite storage and deferred, partial distribution pursuant to a continuing relationship with an exporter or consignee. (c) Post at conspicuous places in Respondents' business offices and meeting halls copies of the attached notice marked "Appendix F."¹⁰⁶ Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondents' representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to ensure 105 See fn. 102, supra. 106 See fn. 102, supra. DECISIONS OF NATIONAL LABOR RELATIONS BOARD that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 5 sufficient signed copies of the aforementioned notice for posting by Chesapeake, Ceres, and Terminal, those companies willing, at all places where notices to their respective employees are customarily posted. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. Custom Brokers and Forwarders Association of Miami, Inc. A. Respondents International Longshoremen's Association, Locals 1416, 1416-A, 1680, 1526, 1526-A, and 1922, AFL-CIO, Miami, Florida, individually and collectively, their officers, agents, and representatives, shall: 1. Cease and desist from giving effect to any agreement, arrangement, or plan, express or implied, whereby members of Southeast Florida Port Association are to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person, to the extent that such an agreement, arrangement, or plan is invoked as an aid to organizing employees and encouraging their membership in the International Longshoremen's Association or its affiliates. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Notify all members who are employed by employer-members of Southeast Florida Employers Port Association that they will not seek to participate in, or in any manner enforce, any arrangement whereby access to maritime containers will be afforded to or denied to members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person engaged in work off the piers, on the basis of whether they do or do not employ members of the International Longshoremen's Association or its affiliates. (b) Post at their offices and meeting halls copies of the attached notice marked "Appendix Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by authorized representatives of Respondent Unions, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notices to the Regional Director for Region 12 for posting by Custom Brokers and Forwarders Association of Miami, Inc., if it be willing, at all places where notices to its members or employees are customarily posted. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. B. Respondents Southeast Florida Employers Port Association, Coordinated Caribean Transport, Inc., Chester, Blackburn & Roder, Inc., Eagle, Inc., Eller & Company, Inc., Harrington & Company, Inc., Strachen Shipping Company, and Marine Terminals, Inc., Miami, Florida, their officers, agents, successors, and assigns, shall: 1. Cease and desist from giving effect to any agreement, arrangement, or plan, express or implied, whereby employer-members of Southeast Florida Employers Port Association are to cease handling, transporting, or otherwise dealing in the products of any other processor, or to cease doing business with members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person, to the extent that such an agreement, arrangement, or plan is invoked as an aid to organizing employees and encouraging their membership in the International Longshoremen's Association or its affiliates. 2. Take the following affirmative action which is deemed necessary to effectuate the purposes and policies of the Act: (a) Notify all their members and employees that they will not participate in or enforce any arrangement, agreement, or plan, express or implied, whereby access to maritime containers is afforded or denied to members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person engaged in work off the piers, on the basis of whether they do or do not employ members of the International Longshoremen's Association or its affiliates. (b) Post in their offices in the Port of Miami, Florida, copies of the attached notice marked "Appendix H."¹⁰⁸ Immediately upon receipt of said notices, on forms to be provided by the Regional Director for Region 12, Respondents shall cause the copies to be signed by their authorized representatives and posted, the posted copies to be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaints consolidated herewith in Dolphin Forwarding, Inc., Cases 2-CC-1364, 2-CC-1365, and 2-CE-75; Hill Creek Farms, Inc., Cases 4-CC-1133 and 4-CE-55; Puerto Rico Marine Management, Inc., Cases 12-CC-1002 and 12- CC-1004; Consolidated Express, Inc., Cases 22-CC-541, 22-CC-554, 22-CE-19, and 22-CE-20; and American Trucking Associations, Inc., Cases 22-CC-806, 22-CC- 807, 22-CC-808, 22-CC-809, 22-CC-810, 22-CE-44, 22-CE-45, 22-CE-46, 22-CE-47, and 22-CE-48 be, and they hereby are, dismissed in their entirety. 107 See fn. 102, supra. 108 See fn. 102, supra. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION APPENDIX A(i) NYSA-ILA SETTLEMENT TERMS-1959 8. Containers:-Dravo size or Larger (a) Any employer shall have the right to use any and all type of containers without restriction or stripping by the union. (b) The parties shall negotiate for two weeks after the ratification of this agreement, and if no agreement is reached, shall submit to arbitration in the manner described in paragraph 13 below, the question of what should be paid on containers which are loaded or unloaded away from the pier by non-ILA labor, such submission to be within 30 days thereafter. (c) Any work performed in connection with the loading and discharging of containers for employer-members of the NYSA which is performed in the Port of Greater New York whether on piers or terminals controlled by them, or whether through direct contracting out, shall be performed by ILA labor at longshore rates. APPENDIX A(ii) NYSA-ILA SETTLEMENT TERMS-1969 Containerization-a new Clause which in the case of the Port of New York shall be the addition of a new subparagraph to Clause XII, Paragraph 2. (c) Containers owned or leased by employer-members (including containers on wheels) containing LTL loads or consolidated full-container loads, which are destined for or come from, any person (including a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo including a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not the beneficial owner of the cargo, and which either comes from or is destined to any point within a 50 mile radius from the center of any North Atlantic District port shall be stuffed and stripped by ILA labor at longshore rates on a waterfront facility under the terms and conditions of the General Cargo Agreement. (Rules on Containers are attached.) RULES ON CONTAINERS The following provisions are intended to protect and preserve the work jurisdiction of longshoremen and all other ILA crafts at deepsea piers or terminals. To assure compliance with the collective bargaining provisions the following rules and regulations shall be applied: Rule 1. Definitions and Rule as to Containers Covered Stuffing-means the act of placing cargo into a container. Stripping-means the act of removing cargo from a container. Loading-means the act of placing containers aboard a vessel. Discharging-means the act of removing containers from a vessel. These provisions relate solely to containers meeting each and all of the following criteria: (a) Containers owned or leased by employer-members (including containers on wheels) which contain LTL loads or consolidated full container loads. (b) Such containers which come from or go to any person (including a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo and including a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not the beneficial owner of the cargo. (c) Such containers which come from or go to any point within a geographical area of any port in the North Atlantic District described by a 50-mile circle with its radius extending out from the center of each port. Rule 2. Rule of Stripping and Stuffing Applied to Such Containers A container which comes within each and all of the criteria set forth in Rule 1 above shall be stuffed and stripped by ILA longshore labor. Such ILA labor shall be paid and employed at longshore rates under the terms and conditions of the General Cargo Agreement. Such stuffing and stripping shall be performed on a waterfront facility, pier or dock. No container of cargo shall be stuffed or stripped by ILA longshore labor more than once. Notwithstanding the above provisions, LTL loads or consolidated container loads of mail, or household goods with no other type of cargo in the container, and of personal effects of military personnel shall be exempt from the rule of stripping and stuffing. Rule 3. Rules on No Avoidance or Evasion The above rules are intended to be fairly and reasonably applied by the parties. To obtain nondiscriminatory and fair implementation of the above, the following principles shall apply: (a) Agreement in the Port as to the geographic area as provided in Rule 1-(c) is based on present LTL movement patterns in the port. Should any person, firm or corporation, for the purpose of evading the provisions of Rule 2 hereof, seek to change such pattern by shifting its operations to, or commencing new operations at, a point outside said agreed-upon geographic area, then either party may raise the question whether said point should be included within the said geographic area, and upon agreement that the purpose of the shift in its operations was to evade the provisions on Rule 2, then said point shall be deemed to be within the said geographic area for the purpose of these rules. (b) Containers owned or leased by companies which are affiliated either directly or through a holding DECISIONS OF NATIONAL LABOR RELATIONS BOARD company with an employee-member shall be deemed to be containers owned or leased by employer-members. Affiliation shall include subsidiaries and/or affiliates which are effectively controlled by the employer-member, its parent, or stockholders of either of them. (c) It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container which is to be stuffed and stripped at the waterfront facility (pier or dock). (d) Each employer-member shall keep records of each container supplied to a consolidator or other non-owner of cargo, located within the agreed geographic area, and such record shall be available to the Committee provided in (g) below. With respect to all containers received at or delivered from the waterfront facility, (pier or dock) a record of the same shall be made by ILA Checkers or Clerks. (e) Failure to stuff or strip a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, ficitious or incorrect documentation to evade the provisions of Rule 2 shall also be considered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been stuffed or stripped under the rules then the steamship carrier shall pay to the joint Welfare Fund liquidated damages of $250 per container which should have been stuffed or stripped. (f) If any shippers or their agents who have at any time used, are now using, or in the future use containers owned or leased by employer-members, hereafter use containers not owned or leased by employer-members, for the purpose of evading the provisions of Rule 2 hereof, then the containers so used shall be considered to be within Rule 1 and Rule 2. (g) A committee represented equally by management and union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these rules. Any inability to agree shall be processed as a grievance under the applicable contract except as limited by 3(h) hereof. (h) If the purpose of protecting and preserving the present work jurisdiction of longshoremen and all other deepsea ILA crafts over any containers loaded with LTL cargo, or consolidated full container loads as defined herein is not accomplished by the provisions of these rules on containers, then either party shall have the right to renegotiate these provisions or any part thereof by giving notice to the other party. This provision shall not be subject to arbitration. Pending renegotiation and settlement of the given dispute, the employees may decline to work any containers involved in the dispute and such refusal to work shall not be subject to arbitration. The renegotiation referred to above will not be subject to arbitration. Interpretation of this provision shall not be determined by an arbitrator but by a court of competent jurisdiction. Container Royalty The rate of contributions now in effect shall continue. APPENDIX A(iii) CONASA-ILA MEMORANDUM OF AGREEMENT-1972 The following is agreed to by CONASA and ILA in final and complete settlement of the seven (7) Master Contract issues, subject to such regulatory approvals as may be necessary: 6. CONTAINERIZATION Container Royalty-An additional container royalty equal to the present container royalty of 35¢, 70c and $1.00 per gross ton payable as provided in the November 16, 1960 Stein Award to be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. RULES ON CONTAINERS Rule 1. Definitions and Rule as to Containers Covered. (b) Such containers which come from or go to any person (including [but not limited to] a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo and including a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not the beneficial owner of the cargo. Rule 3. Rules on No Avoidance or Evasion (c) It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container which is to be stuffed and stripped at the waterfront facility (pier or dock). [If a container is not clearly marked it shall be deemed a Rule 1 container, and it shall be stuffed or stripped.] (e) Failure to stuff or strip a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of Rule 2 shall also be considered a violation of the con- INTERNATIONAL LONGSHOREMEN'S ASSOCIATION tract. If for any reason a container is no longer at the waterfront facility at which it should have been stuffed or stripped under the rules, then the steamship carrier shall pay, to the joint [Container Royalty Fund,] liquidated damages of [$1,000 per container which should have been stuffed or stripped.] Such damages shall be used for the same purposes as the first Container Royalty is used in each port. If any carrier not pay liquidated damages within 30 days after exhausting its right to appeal the imposition of liquidated damages to the Committee provided in (g) below, the ILA shall have the right to stop working such carrier's containers until such damages are paid. APPENDIX A(iv) CONASA-ILA CONTAINER COMMITTEE INTERPRETATIVE BULLETIN NO. 1 In accordance with the resolution made at the January 29, 1973, meeting of the CONASA-ILA Container Committee, directing that all interpretations be issued by the CONASA-ILA Container Committee office and promulgated to all local Port Container Committees as well as all other interested parties, Interpretive Bulletins will be issued periodically by the CONASA-ILA Container Committee for the information of all interested parties. This document is the first such Interpretive Bulletin and sets forth the determinations reached by the CONASA-ILA Container Committee at its meetings of September 11-13, 1972, and at its meetings of January 25-29, 1973. No person or representative is authorized to issue any interpretations other than the Port Container Committees in each CONASA port subject to review by the full CONASA-ILA Container Committee in cases of conflict. The CONASA-ILA Container Committee will issue further clarifications and interpretations only at the request of members of one of the CONASA Port Associations or an official of an ILA Local Union. Interpretations and clarifications will not be issued to any party not covered by the various Collective Bargaining Agreements. Requests, in writing, for clarifications and interpretations should be addressed to the CONASA-ILA Container Committee at the above address. The CONASA-ILA Container Committee has issued the following interpretations and definitions as of the date of this Bulletin: INTERPRETATION 1.1 Containers Covered The rules on containers relate solely to containers meeting either of the following criteria: (a) Containers owned or leased by carriers (including containers on wheels) which contain LTL loads or consolidated full container loads, which come from or go to any point within a geographical area of any port in the North Atlantic District described by a 50-mile circle with its radius extending out from the center of each port. (b) Containers which come from or go to any person (including a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo and including a forwarder, who is either a consolidator of outbound cargo or a distributor of inbound cargo) who is not a beneficial owner of the cargo and such containers come from or go to any point within a geographical area of any port in the North Atlantic District described by a 50-mile circle with its radius extending out from the center of each port. INTERPRETATION 1.2 Batching When an employer member or carrier uses a trucker to remove or deliver containers in batches, or in substantial number, from or to a terminal to another place of rest (outside of its terminal) where containers are stored pending their delivery to consignee (or after being received from a shipper and while awaiting the arrival of a ship), for the purpose of reducing the work jurisdiction of the ILA or any of its crafts (and when adequate physical space exists on the facility for storage of such containers), such use is deemed to be batching and is a violation of the CONASA-ILA contract. INTERPRETATION 1.3 Warehousing A beneficial owner does not violate the Rules on Containers when he warehouses his goods in a bona fide public warehouse under the following Conditions: 1. The container cargo is warehoused at a bona fide public warehouse. 2. The beneficial owner pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days; and 3. The cargo is being warehoused (a) in the normal course of the business of the beneficial owner; (b) title to such goods has not been transferred from the beneficial owner to another; and (c) it is contemplated that such transfer of title will not take place for at least 30 days after the warehousing of the cargo. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. 4. The beneficial owner furnishes all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. 5. This definition is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a distribution station and treated accordingly. DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERPRETATION 1.4 Beneficial Owner The beneficial owner is the ultimate owner entitled to the beneficial use, enjoyment and title of the property. The term ultimate onwer refers to one using the cargo in the normal course of his business but it does not include a broker, distributor, consolidator, trucker, forwarder, warehouseman or the ultimate consumer. INTERPRETATION 1.5 Headload Where a single beneficial owner sends a container (either export or import) which contains all of his own cargo to a carrier's pier and such container is not full, the carrier may chock this container with additional cargo and at arrival at another port the carrier may strip the additional cargo and send the remaining cargo to the beneficial owner. The chocking or stripping at ILA ports shall be performed at a pier by deepsea ILA labor. INTERPRETATION 1.6 Enforcement of Rules on Containers The following standards are hereby promulgated to assure fair and non-discriminatory enforcement of the CONASA-ILA Rules on Containers. 1. (a) All outbound (export) consolidated or LTL container loads (Rule 1 containers) shall be stripped from the container at the pier by deepsea ILA labor and cargo shall be stuffed into a different container for loading aboard ship. (b) All inbound (import) consolidated or LTL cargo (Rule 1 containers) for distribution shall be stripped from the container and the cargo placed on the pier where it will be delivered and picked up by each consignee. 2. No carrier or direct employer shall supply its containers to any facilities operated in violation of the Rules on Containers including but not limited to a consolidator who stuffs containers of outbound cargo or a distributor who strips containers of inbound cargo and including a forwarder who is either a consolidator or a distributor. No carrier or direct employer shall operate a facility in violation of the Rule on Containers which specifically require that all containers be stuffed or stripped at a waterfront facility (pier or dock) where vessels normally dock. A list shall be maintained of consolidation and distribution stations which are operated in violation of the Rules for the information of all carriers and direct employers. Any container consolidated at or distributed from such facilities shall be deemed a violation and subject to the rules on stuffing and stripping. 3. A committee of carriers, together with CONASA-ILA Container Committee will develop uniform documentation which shall be required to be prepared and maintained by all carriers in order to readily identify all Rule 1 contain- 4. All carriers will distribute to all other carriers any and all information and devices which are being used by any persons to circumvent the Rules on Containers. Any carrier whose attention is brought to a violation of the Rules shall immediately cease such violation and report the matter to the appropriate CONASA-ILA Container Committee in its port. 5. The Container Committee in each CONASA port shall promulgate to all carriers and direct employers, and to the Container Committees in each CONASA port, any and all interpretations of the Rules on Containers as and when they are made. This will include uniform interpretations as and when they are issued by the CONASA-ILA Container Committee. 6. Any facility operated in violation of the Container Rules will not have service supplied to it by any direct employer and the ILA will not supply labor to such facility. ers which are subject to stuffing and stripping by deepsea ILA labor. INTERPRETATION 1.7 Overland Movement of Containers from CONASA Port to Non-CONASA Port If a steamship line moves containers from a CONASA port to a non-CONASA port for the purpose of evading the rules on containers, the line is in violation of the CONASA-ILA Agreement. If the cargo is being moved to the non-ILA port to meet the requirements of local market conditions, and not for the purpose of evasion, then such movement is not within the rules. INTERPRETATION 1.8 Importers Advertising Evasion of Rules The ILA brought to the attention of CONASA that certain importers were circulating, in writing, methods developed by them to evade the rules on containers by issuing single bills of lading on what are in fact consolidated container loads of many beneficial owners. CONASA and ILA agreed that such evasion would be stopped wherever it was found. (c) Every import container destined to a point within 50-miles of a CONASA Port shall be delivered only on a delivery order. Every export container coming from a point within 50-miles of a CONASA Port shall be received only on a dock/cargo receipt. Such delivery orders and dock/cargo receipts shall certify the place of delivery and origin of the container, the name or names of the person to whom the cargo is being delivered and from which it is shipped, the identity of the owner of the cargo, weight of the cargo, identity of the cargo and the origin and final destination of the container. Copies of such delivery orders and dock/cargo receipts shall be available INTERNATIONAL LONGSHOREMEN'S ASSOCIATION to the local port Container Committee and the policing agency provided for in (e) below. (d) The Container Committee in each CONASA Port shall promulgate to all carriers and direct employers, and to the Container Committees in each CONASA Port, any and all interpretations of the Rules on Containers as and when they are made. This will include uniform interpretations as and when they are issued. The CONASA-ILA Container Committee shall also promulgate uniform interpretations to local port Container Committees, as and when they are issued. (e) Policing Agency-Each CONASA Port shall establish a method of policing and enforcing these Rules on a uniform and nondiscriminatory basis. No such method shall be implemented until presented to and approved by the joint CONASA- ILA Container Committee. Rule 10-Container Royalty Payments The two Container Royalty payments required by the CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that ILA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port ("foreign sea-to-foreign-sea containers") are exempt from the payment of container royalties. APPENDIX A(v) CONASA-ILA RULES ON CONTAINERS- 1974 PREAMBLE This Agreement made and entered into by and between the carrier and direct employer members of the CONASA Port Associations (hereinafter referred to collectively as "CONASA") and the International Longshoremen's Association, AFL-CIO ("ILA"), its Atlantic Coast District ("ACD") and its affiliated local unions in each CONASA port ("locals") covers all container work at a waterfront facility which includes but is not limited to the receiving and delivery of cargo, the loading and discharging of said cargo into and out of containers, the maintenance of containers, and the loading and discharging of containers on and off ships. CONASA agrees that it will not directly perform work done on a container waterfront facility (as hereinafter defined) or contract out such work which historically and regularly has been and currently is performed by employees covered by CONASA-ILA Agreements, including CONASA-ILA craft agreements, unless such work on such container waterfront facility is performed by employees covered by CONASA-ILA Agreements. RULES The following provisions are intended to protect and preserve the work jurisdiction of longshoremen and all other ILA crafts which was performed at deepsea waterfront facilities. These rules do not have any effect on work which historically was not performed at a waterfront facility be deepsea ILA labor. To assure compliance with the collective bargaining provisions, the following rules and regulations shall be applied uniformly in all CONASA Ports to all import or export cargo in containers: Definitions (a) Loading a Container-means the act of placing cargo into a container. (b) Discharging a Container-means the act of removing cargo from a container. (c) Loading Containers on a vessel-means the act of placing containers aboard a vessel. (d) Discharging Containers from a vessel-means the act of removing containers from a vessel. (e) Waterfront facility-means a pier or dock where vessels are normally worked including a container compound operated by a carrier or direct employer. (f) Qualified Shipper-means the manufacturer or seller having a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the export cargo being transported and who is named in the dock/cargo receipt. (g) Qualified Consignee-means the purchaser or one who otherwise has a proprietary financial interest (other than in the transportation or physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order. (h) Consolidated Container Load-means the container load of cargo where such cargo belongs to more than one shipper on export cargo or one consignee on import cargo. Rule 1-Containers To Be Loaded or Discharged by Deepsea ILA Labor (a) Cargo in containers referred to below shall be loaded into or discharged out of containers only at a waterfront facility by deepsea ILA labor: (1) Containers owned, leased or used by carriers (including containers on wheels and trailers), hereinafter "containers," which contain consolidated container loads, which come from or go to any point within a geographic area of any CONASA port described by a 50-mile circle with its radius extending out from the center of each port (hereinafter "geographic area") or (2) Containers which come from a single shipper which is not the manufacturer ("manufacturer's label") into which the cargo has been loaded (consolidated) by other than its own employees and such containers come from any point within the "geographic area," or DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Containers designated for a single consignee from which the cargo is discharged (deconsolidated) by other than its own employees within the "geographic" area and which is not warehoused in accordance with Rule 2(B). (b) Such ILA labor shall be paid and employed at deep-sea longshore rates under the terms and conditions of the deep-sea ILA labor agreement in each CONASA port, including the provisions for all fringe benefits and any and all other benefits receivable by deep-sea ILA craft workers in each such Port. No cargo shall be loaded into or discharged out of any container by ILA deep-sea labor more than once. (c) All export consolidated cargo, described in 1(a)(1) and (2) above, shall be received at the waterfront facility by deep-sea ILA labor and such cargo shall be loaded into a container at the waterfront facility for loading aboard ship. (d) All import consolidated cargo, described in 1(a)(1) and (3) above, shall be discharged from the container and the cargo placed on the waterfront facility where it will be delivered and picked up by each consignee. (e) No carrier or direct employer shall supply its containers to any consolidator or de-consolidator. No carrier or direct employer shall operate a facility in violation of the Rules on Containers which specifically require that all Rule 1 containers be loaded or discharged at a waterfront facility. Rule 2-Containers Not To Be Loaded or Discharged by ILA labor Cargo in containers referred to below shall not be loaded or discharged by ILA labor: A. Export Cargo: (1) All cargo loaded in containers outside the "geographic area." (2) Containers loaded with cargo at a qualified shipper's facility with its own employees. (3) Containers loaded with the cargo of a single manufacturer (manufacturer's label). (4) Consolidated container loads of mail, household effects of a person who is relocating his place of residence, with no other type of cargo in the container, or personal effects of military personnel. B. Import Cargo: (1) All cargo discharged from containers outside the "geographic area." (2) Containers discharged at a qualified consignee's facility by its own employees. (3) Consolidated container loads of mail, household effects of a person who is relocating his place of business, with no other type of cargo in the container, or personal effects of military personnel. (4) Containers of a qualified consignee discharged at a bona fide public warehouse within the "geographic area" which comply with all of the following conditions: 1. The container cargo is warehoused at a bona fide public warehouse. 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days; and 3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consignee to another. The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or de-consolidator. Rule 3-Batching When an employer-member or carrier uses a trucker to remove or deliver containers in batches, or in substantial number, from or to a terminal to another place of rest (outside of its terminal) where containers are stored pending their delivery to a consignee (or after being received from a shipper and while waiting the arrival of a ship), for the purpose of reducing the work jurisdiction of the ILA or any of its crafts, such use is deemed to be batching and an evasion of the Rules in violation of the CONASA-ILA contract. Rule 4-Headload Where a single qualified shipper sends an export container which contains all of his own cargo to a waterfront facility and such container is not full, the carrier or direct employer may load this container with additional cargo at the waterfront facility. On import cargo, the carrier or direct employer may discharge any such additional cargo and send the remaining cargo in the container to the qualified consignee. The loading or discharging of cargo at ILA ports shall be performed at a waterfront facility by deep-sea ILA labor. Rule 5-Overland Movement of Containers from CONASA Port to Non-CONASA Port If a carrier moves containers from a CONASA Port to a non-CONASA Port for the purpose of evading the Rules on Containers, the carrier is in violation of the CONASA-ILA Agreement. If the cargo is being moved to a non-CONASA-ILA Port in the normal course of business, and not for the purpose of evasion, then such movement is not in violation. Rule 6-Importers Advertising Evasion of Rules The circulation, in writing, by importers, of methods developed by them to evade the Rules on Containers by issuing single bills of lading on what are in fact consolidated container loads shall be deemed a violation and all INTERNATIONAL LONGSHOREMEN'S ASSOCIATION CONASA-ILA Container Committees shall be advised to stop such evasion at the waterfront facilities. Rule 7-No Avoidance or Evasion The above rules are intended to be fairly and reasonably applied by the parties. To obtain non-discriminatory and fair implementation of the above, the following principles shall apply: (a) Geographic Area-Agreement in the Port to the geographic area as provided in Rule 1 is based on present consolidated movement patterns in the port. Should any person, firm or corporation for the purpose of evading the provisions of the Rules on Containers, seek to change such pattern by shifting its operations to, or commencing new operations at, a point outside said agreed upon geographic area, then either party may raise the question whether said point should be included within the said geographic area, and upon agreement that the purpose of the shift in its operations was to evade the provisions of the Rules on Containers, then said point shall be deemed to be within the said geographic area for the purpose of these rules. (b) Containers Owned, Leased or Used-Containers owned, leased or used by companies which are affiliated either directly or through a holding company with a carrier or a direct employer shall be deemed to be containers owned, leased or used by a carrier or direct employer. Affiliation shall include subsidiaries and/or affiliates which are effectively controlled by the carrier or direct employer, its parent, or stockholders of either of them. (c) Liquidated Damages-Failure to load or discharge a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of Rule 1 and Rule 2 shall also be considered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been loaded or discharged under the rules, then the carrier or its agent or direct employer shall pay, to the joint Container Royalty Fund, liquidated damages of $1,000 per container which should have been loaded or discharged. If any carrier does not pay liquidated damages within 30 days after exhausting its right to appeal the imposition of liquidated damages to the Committee provided in Rule 9(a) below, the ILA shall have the right to stop working such carrier's containers until such damages are paid. (d) Any facility operated in violation of the Container Rules will not have service supplied to it by any direct employer and the ILA will not supply labor to such facility. Rule 8-Renegotiation and Cancellation-No Arbitration These Rules shall be in effect for the term of the CONASA-ILA Agreement, provided, however, that either party shall have the right to cancel the Rules on Containers at any time on or after December 1, 1974, on thirty (30) days written notice of a desire to renegotiate the provisions of these Rules. Negotiations shall be held during such thirty (30) day period and if the parties are unable to agree by the end of such period, these Rules shall be deemed cancelled. Thereafter, the ILA shall have the right to refuse to handle containers and CONASA shall have the right to refuse to hire employees under the said Rules. The negotiations referred to above shall, under no condition, be subject to the grievance or arbitration provisions of any CONASA-ILA Agreement. Rule 9-Enforcement of the Rules on Containers To assure effective, fair and non-discriminatory enforcement of the above Rules, the following regulations shall apply: (a) A Committee in each CONASA port represented equally by management and union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these Rules. Any inability to agree shall be processed as a grievance under the applicable contract except as limited by Rule 8 hereof. A joint committee, known as the CONASA-ILA Container Committee, represented equally by management and labor and made up of representatives (to be mutually agreed upon) from each CONASA Port, namely, Boston, Rhode Island, New York, Philadelphia, Baltimore and Hampton Roads shall meet at least quarterly each year for the purpose of insuring uniformity in the interpretation of these Rules. (b) A Committee of carriers, together with CONASA-ILA Container Committee will develop uniform documentation which shall be required to be prepared and maintained by all carriers in order to readily identify all Rule 1 containers which are subject to loading or discharging by deep-sea ILA labor. It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container, which shall be loaded or discharged. If a container's documentation is not clearly marked, it shall be deemed a Rule 1 container and it shall be loaded or discharged by deep-sea ILA labor at the waterfront facility. With respect to all containers received at or delivered from the waterfront facility, a record of the same shall be made by ILA Checkers and Clerks. All carriers will distribute to all other carriers any and all information and devices which are being used by any person to circumvent the Rules on Containers. Any carrier whose attention is brought to a violation of the Rules shall immediately cease such violation and report the matter to the appropriate CONASA-ILA Container Committee and to the policing agency provided in (e) below in its port. DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A(vi) CONASA-ILA RULES ON CONTAINERS- 1975 Rule 2-Containers Not To Be Loaded or Discharged by ILA Labor Cargo in containers referred to below shall not be loaded or discharged by ILA labor: A. Export Cargo: (3) Containers loaded with the cargo of a single manufacturer (manufacturer's label) [at its facilities with its own employees]. [(5) There shall be no general warehouse exception applicable to export cargo.] B. Import Cargo: (4) Containers of a qualified consignee discharged at a bona fide public warehouse within the "geographic area" which comply with all of the following conditions: 1. The container cargo is warehoused at a bona fide public warehouse. 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days; [and stores the cargo for a minimum period of 30 days;] and 3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consigneee to another. The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or de-consolidator. [(Clarification: In keeping with prior CONASA-ILA decisions trucking stations where containers are unloaded within the geographic area do not constitute bona fide public warehouses even where cargo is destined for delivery outside the geographic area.)] Rule 9-Enforcement of the Rules on Containers [(f) Council of Container Carriers-There shall be organized promptly a Council of Container Carriers composed of representatives of every major container carrier who, subject to the direction of CONASA, shall meet with the ILA at all regular and special meetings of the CONASA-ILA Container meetings, and who shall participate in the discussion and resolution of problems and interpretations of the Container Rules discussed at the said meetings.] [(g) Powers of CONASA-ILA Container Committee-In order to permit the fair and non-discriminatory application of the Rules and to encourage the movement of cargo in all CONASA-ILA ports, the CONASA-ILA Container Committee is hereby empowered to make such amendments or modifications to these Rules as may be necessary to the equitable application of the principles of these Rules to particular cases.] Rule 10-Container Royalty Payments The two Container Royalty payments required by the CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that iLA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port ("foreign sea-to-foreign-sea containers") are exempt from the payment of container royalties. [Container royalty payments shall be assessed against all containers moving across the continental United States by rail or truck under the foreign-to-foreign "LAND-BRIDGE" system. The said royalty payments shall become due for all such containers moving through CONASA-ILA ports on and after July 1, 1975.] [Rule 1-Execution of Agreement All carriers utilizing ILA labor in handling containers in any of the CONASA ports shall be bound by the CONASA-ILA Rules on Containers, and shall be required to execute the agreement between CONASA and ILA containing the said Rules on Containers. No contracting stevedore shall perform services for any carrier, private or governmental, unless such carrier has subscribed to this agreement as aforesaid.] INTERNATIONAL LONGSHOREMEN'S ASSOCIATION APPENDIX A(vii) CONASA-ILA AGREEMENT-1977 RULES ON CONTAINERS Rule 8-RENEGOTIATION AND CANCELLA- TION-NO ARBITRATION [If any article, section, paragraph, clause or phrase of this Agreement shall, by any state, Federal or other law, or by any decision of any Court or Administrative Agency, be delcared or held illegal, void or unenforceable, the entire Agreement shall terminate upon sixty (60) days written notice to the other party hereto and the parties agree to enter into negotiations in an attempt to renegotiate that provision of the Agreement which was nullified. If no agreement is reached within the sixty (60) day notice period, the ILA shall have the right to strike and CONASA shall have the right to refuse to hire employees under this Agreement. The negotiations referred to above shall, under no conditions, be subject to the grievance or arbitration provisions of this agreement, or of any Local Agreement.] Rule 10-CONTAINER ROYALTY PAYMENTS The two Container Royalty payments, I & II required by the NYSA and CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that ILA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 NYSA and CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port ("foreign sea-to-foreign-sea containers") are exempt from the payment of container royalties. Container royalty payments shall be assessed against all containers moving across the continental United States by rail or truck under the foreign-to-foreign "LAND-BRIDGE" system. The said royalty payments shall become due for all such containers moving through NYSA and CONASA-ILA ports on and after July 1, 1975. [An additional container royalty equal to the present container royalty of 35 cents, 70 cents and $1.00 per gross ton payable as provided in the November 16, 1960 Stein Award to be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. As provided in the May 12, 1977 Addendum between CONASA and ILA, effective May 1, 1977 the First Container Royalty Payment (provided for in Paragraph "6" of the 1971-77 CONASA-ILA Memorandum of Agreement) shall be doubled. Such additional container royalty payment shall be used exclusively for supplemental cash payments to employees covered by the CONASA-ILA Agreements, and for no other purpose. The second Container Royalty shall be used as determined by the employers. CONASA and the Carriers agree that the payment of container royalties as provided in their agreements is of the essence to this agreement and, if for any reason during the term of this agreement such payments cannot be made in their present form, then CONASA and the Carriers shall provide, by some other form of assessment, for the payment of equivalent amounts to be used for the same purposes as said container royalties are presently used.] APPENDIX A(viii) MANAGEMENT-ILA RULES ON CONTAINERS-1980 Rule 6-IMPORTERS ADVERTISING EVASION OF RULES The circulation, in writing, by importers, of methods developed by them to evade the Rules on Containers by issuing single bills of lading on what are in fact consolidated container loads shall be deemed a violation and all Management-ILA Container Committees, [including the Port Committees,] shall be advised to stop such evasion at the waterfront facilities. Rule 8-RENEGOTIATION AND CANCELLA- TION-NO ARBITRATION If any article, section, paragraph, clause or phrase of this Agreement shall, by any state, Federal or other law, or by any decision of any Court or Administrative Agency, be declared or held illegal, void or unenforceable, the entire Agreement shall terminate upon sixty (60) days written notice to the other party hereto and the parties agree to enter into negotiations in an attempt to renegotiate that provision of the Agreement which was nullified. [The said notice shall not be given prior to December 1, 1980.] If no agreement is reached within the sixty (60) day notice period, the ILA shall have the right to strike and Management shall have the right to refuse to hire employees under this Agreement. The negotiations referred to above shall, under no condition, be subject to grievance or arbitration under this agreement or under any local Agreement. Rule 10-CONTAINER ROYALTY PAYMENTS The two Container Royalty payments [effective in 1960 and 1977 respectively, shall be continued and shall be used exclusively for supplemental cash payments to employees covered by the Management agreements, and for no other purpose. The remaining royalty payment effective in 1971, also shall be continued and shall be used DECISIONS OF NATIONAL LABOR RELATIONS BOARD for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port-by-port basis.] The Container Royalty payments shall be payable only once in the continental United States. They shall be paid in that ILA port where the container is first handled by ILA longshore labor, at longshore rates. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port ("foreign-sea-toforeign-sea containers") are exempt from the payment of container royalties. Container Royalty payments shall be assessed against all containers moving across the continental United States by rail or truck in the foreign-to-foreign "LAND-BRIDGE" system. Management and the Carriers agree that the payment of Container Royalties as provided in their agreements is of the essence to this agreement and, if for any reason during the term of this agreement such payments cannot be made in their present form, then Management and the Carriers shall provide by some other form of assessment for the payment of equivalent amounts to be used for the same purposes as said Container Royalties are presently used. APPENDIX A(ix) AGREEMENT BETWEEN MANAGEMENT AND ILA 1. Parties agree that the Rules on Containers will be placed in effect on January 1, 1981 in all ports from Maine to Texas, except in Philadelphia where an application for reconsideration will be made promptly. 2. In the event an injunction is issued in any port where the Rules have been placed in effect, or the Petition for Reconsideration in Philadelphia is denied, the ILA shall have the right to give the 60 day notice provided in paragraph 8 of the Containerization Agreement. 3. Any carrier who diverts cargo from one port to another to avoid the Rules shall, in addition to any other penalties, pay liquidated damages of $500 per container to the Pension Fund and $500 per container to the Welfare Fund. 4. The parties agree that counsel shall prepare an assessment agreement whose purpose shall be to encourage the stuffing and stripping of containers at on-pier facilities by reducing pier costs and improving productivity with the cost of such program to be borne by containerized automated cargo which would have been stuffed or stripped on pier if the Rules were in effect. Such program is to be an amendment to JSP, is to be submitted within 30 days of this date and is to be in operation only in the event the Rules are unenforceable. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, it has been found that we violated the law. Accordingly, we post this notice and we will keep the promises we make in this notice. WE WILL NOT give effect to, invoke, or in any other manner or by any other means enforce the contract and agreements known as the CONASA- ILA Rules on Containers, Rules 1(a)(3) and 2B(2), as set forth in the HRSA-ILA collective-bargaining agreement, or any other arrangement, express or implied, whereby the Council of North Atlantic Shipping Associations and the Hampton Roads Shipping Association, on behalf of their employermembers, agree to cease or refrain from doing business with surface motor carriers to the extent that they engage in "shortstopping" or the stripping of "shippers load" containers for their exclusive benefit and pursuant to the traditional offshore practice of motor carriers which is not rivaled by service rendered at the pier by marine operators and not performed traditionally by deep sea ILA labor. WE WILL NOT seek or impose fines against employer-members of the Hampton Roads Shipping Association, including United States Lines, Inc., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or requrie such person to cease doing business with Associated Transport, Inc., Houff Transfer, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other member of the Tidewater Motor Truck Association, provided that the terms hereof shall only apply with respect to the practice of said motor carriers whereby import containers are stripped for their exclusive benefit as an incident of traditional motor carrier practice neither created by containerization nor rivaled by services rendered by marine operators or work performed at the piers by deep sea ILA labor. WE WILL NOT coerce or restrain the Council of North Atlantic Shipping Associations, Hampton Roads Shipping Association, or any of Hampton Roads Shipping Association's employer-members, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require such person to cease doing business with Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer-member of Tidewater Motor Truck Association to the extent that they are engaged in the above-defined practice. WE WILL and do hereby notify our members, and other individuals employed by Hampton Roads Shipping Association or any of its employer-members, that the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of Hampton Roads Shipping Association shall not be applied to restrain, restrict, limit, fine, or prohibit handling containers bearing INTERNATIONAL LONGSHOREMEN'S ASSOCIATION shippers' loads to the extent handled within the limits of the above practice. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO, LOCALS 333, 846, 862, 921, 953, 970, 1248, 1355, 1429, 1458, 1624, 1736, 1783, 1784, 1819, 1840, AND 1970 HAMPTON ROADS DISTRICT COUNCIL, INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO ATLANTIC COAST DISTRICT COUNCIL, INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO APPENDIX C NOTICE To ALL EMPLOYEES AND EMPLOYER-MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we shall keep the promises we make in this notice. WE WILL NOT give effect to, invoke, or in any manner or by any means enforce the contracts and agreements known as the CONASA-ILA Rules on Containers, Rules 1(a)(3) and 2B(2), as set forth in the HRSA-ILA collective-bargaining agreement, or any other contract or agreement, express or implied, whereby CONASA, on behalf of HRSA, or HRSA, on behalf of its employer-members, agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act to the extent found unlawful in the Decision of the Administrative Law Judge. WE WILL and do hereby notify United States Lines, Inc., and all other employer-members of HRSA that the provisions of the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of Hampton Roads Shipping Association shall not be enforced to restrain, restrict, limit, fine, or prohibit handling of containers with respect to Associated Transport, Inc., Pilot Freight Carriers, Inc., Thurston Motor Lines, Inc., or any other employer-member of Tidewater Motor Truck Association to the extent that said containers are stripped solely for the exclusive benefit of motor carriers pursuant to their traditional practice which is not rivaled by services traditionally rendered by marine operators and work performed by deep sea ILA labor. HAMPTON ROADS SHIPPING ASSOCIATION APPENDIX D NOTICE To ALL EMPLOYEES AND ASSOCIATION-MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, it has been found that we violated the law by committing unfair labor practices. Accordingly, we post this notice and we shall keep the promises we make in this notice. WE WILL NOT give effect to, invoke, or in any manner or by any means enforce the contracts and agreements known as the CONASA-ILA Rules on Containers, Rules 1(a)(3) and 2B(2), as set forth in the HRSA-ILA collective-bargaining agreement, or any other contract or agreement, express or implied, whereby CONASA, on behalf of HRSA, or HRSA, on behalf of its employer-members, agrees to cease or refrain from doing business with any other person in violation of Section 8(e) of the Act as found unlawful in the Decision of the Administrative Law Judge. WE WILL and do hereby notify United States Lines, Inc., and all other employer-members of HRSA that the provisions of the contracts and agreements known as the CONASA-ILA Rules on Containers which have been negotiated between ILA and CONASA on behalf of Hampton Roads Shipping Association shall not be enforced to restrain, restrict, limit, fine, or prohibit handling of containers with respect to Associated Transport, Inc., to the extent that said containers are stripped solely for the exclusive benefit of motor carriers pursuant to traditional motor carrier practice which is not rivaled by services traditionally rendered by marine operators and work performed by deep sea ILA labor. COUNCIL OF NORTH ATLANTIC SHIPPING ASSOCIATIONS APPENDIX E NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage employees of Chesapeake Operating Company, or any other person subject to the National Labor Relations Act, to engage in a strike or refusal in the course of their employment to do work or perform services, or threaten, coerce, or restrain Chesapeake Operating Company, or any other person subject to the National Labor Relations Act, where in either case an object thereof is to force or require any company or person to stop doing business with Shipside Packing DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, or to stop handling, loading, unloading, or dealing with goods packed by Shipside, to the extent found unlawful in the Decision of the Administrative Law Judge. WE HEREBY cancel and withdraw any orders or instructions given our members or any other individuals not to load, unload, or handle containers packed by Shipside Packing Company to the extent that said containers are handled in conjunction with traditional general warehousing practices on behalf of a single shipper on a continuous basis whereby large quantities of cargo are reqularly accumulated, stored, picked, and packed for FSL export shipment. WE HEREBY notify our members, and any other employees or individuals, that we have no objection to our members or any other employees loading or unloading or handling cargo stuffed by Shipside Packing Company under the aforedescribed conditions. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO; INTERNATIONAL LONGSHOREMEN'S DISTRICT COUNCIL, BALTIMORE, MARYLAND; INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 953; AND INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, LOCAL 333 APPENDIX F NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT (1) induce or encourage employees of Chesapeake Operating Company, Ceres Terminals, Inc., or any other person to engage in a strike or refusal to work, or to perform employment services, or (2) threaten, coerce, or restrain Chesapeake Operating Company, Ceres Terminals, Inc., or any other person, in order to force or require any company or person to stop doing business with the Terminal Corporation, or to stop handling, loading, unloading, or dealing with containers to be stripped by The Terminal Corporation, in conjunction with traditional general warehousing functions of indefinite storage and deferred, partial distribution pursuant to a continuing relationship with an exporter or consignee. WE HEREBY cancel and withdraw any orders or instructions given to our members or any other individuals not to unload or handle containers to be stripped by the Terminal Corporation under the above-stated conditions. WE HEREBY notify our members, and any other employees or individuals, that we have no objection to our members or any other employees unloading or handling containers to be stripped by The Terminal Corporation under the above-stated conditions. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, ATLANTIC COAST DISTRICT, AFL-CIO INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 333, AFL-CIO INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 953, AFL-CIO APPENDIX G NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT participate in or give effect to any agreement, arrangement, or plan, express or implied, whereby members of Southeast Florida Port Association are to cease using, handling, transporting, or otherwise dealing in the products of any other processor, or to cease doing business with members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person, to the extent that such an agreement, arrangement, or plan is invoked as an aid to organizing employees and encouraging their membership in the International Longshoremen's Association or its affiliates. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION WE WILL notify our members who are employed by employer-members of Southeast Florida Employers Port Association that WE WILL NOT participate in, or in any manner enforce, an arrangement whereby access to maritime containers will be afforded or denied to members of Custom Brokers and Forwarders Association of Miami, Inc., or any other person engaged in work off the piers, on the basis of whether they do, or do not, employ members of the International Longshoremen's Association or its affiliates. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, AFL-CIO, LOCAL 1416 INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1416-A INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1680 INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1526 INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1526-A INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1922