Balicer v. INTERNATIONAL LONGSHOREMEN'S ASS'N, AFL-CIO

• Decision Date: 18 September 1973
• Docket Number: Civ. A. No. 1155-73.
• Parties: Bernard L. BALICER, Acting Regional Director of the Twenty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, and New York Shipping Association, Inc., Respondents.
• Court: U.S. District Court — District of New Jersey

364 F. Supp. 205

Bernard L. BALICER, Acting Regional Director of the Twenty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, and New York Shipping Association, Inc., Respondents.

Civ. A. No. 1155-73.

United States District Court, D. New Jersey.

September 18, 1973.

Robert M. Schwarzbart, NLRB, Newark, N. J., for petitioner.

Laurence H. Silberman, Stephen Robbins, Washington, D. C., for charging party, CEI.

Irwin Herschlag, Lyndhurst, N. J., Gleason & Miller, by Thomas W. Gleason, Jr., Julius Miller, New York City, for respondent ILA.

Carpenter, Bennett & Morrissey, by Robert E. Turtz, Newark, N. J., Lorenz, Finn, Giardino & Lambos, by Constantine P. Lambos, Jacob Silverman, Donato Caruso, New York City, for respondent NYSA.

OPINION

LACEY, District Judge:

This proceeding is before the Court on a petition filed by the Acting Regional Director of the Twenty-second Region of the National Labor Relations Board (Board), pursuant to § 10(l) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(l) (hereinafter referred to as the Act), for a preliminary injunction pending the final disposition of the matters involved herein and now pending before the Board on charges filed by Consolidated Express, Inc. (CEI).¹ It is alleged that respondent International Longshoremen's Association, AFL-CIO (hereinafter referred to as ILA or Union), has engaged in, and is engaging in, an unfair labor practice within the meaning of § 8(b)(4)(ii)(B) of the Act (see text infra), which proscribes so-called secondary boycotts and other secondary pressure to require another employer to cease doing business with other employers; and that the Union and respondent New York Shipping Association, Inc. (NYSA), have engaged in, and are engaging in, an unfair labor practice within the meaning of § 8(e) of the Act, which proscribes entering into and maintaining so-called "hot cargo" contracts.

This petition follows from the petitioner having concluded that there is reasonable cause to believe respondents have engaged in the aforesaid unfair labor practices charged, and that a complaint of the Board based on the charges should issue.

The following constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

CEI at its Maspeth, New York facility consolidates, containerizes and forwards cargoes for sea shipment and removes incoming cargoes from containers; and in the operation of its business annually provides and performs such services valued in excess of $50,000 within states and territories of the United States other than the State of New York.

NYSA, with offices in New York City, is an incorporated association of employers engaged in various operations involved in the shipment of cargo, freight and transportation of passengers in and out of the Port of New York. NYSA conducts collective bargaining negotiations and enters into collective bargaining agreements on behalf of its employer-members, including Sea-Land Service, Inc. (Sea-Land), Elizabeth, New Jersey; Seatrain Lines, Inc. (Seatrain), Weehawken, New Jersey; and Transamerican Trailer Transport, Inc. (TTT), Richmond, New York. Employer-members of NYSA carry general cargo in interstate and foreign commerce valued in excess of $1,000,000 out of the various piers of the Port of New York destined directly to foreign countries and to states of the United States other than the States of New York and New Jersey.

Council of North American Shipping Associations (CONASA) with offices in New York City, is an association of shipping associations whose members, which include NYSA, engage in the business of conducting collective bargaining negotiations on behalf of their employer-members and enter into collective bargaining agreements covering the employees of their employer-members.

The Union is a labor organization within the meaning of the Act §§ 2(5), 8(b)(4)(ii)(B), 8(e) and 10(l) and at all times material herein has been engaged within this District in transacting business and promoting and protecting the interests of its employee-members. The labor practices complained of occurred within this District. Thus venue is proper and this Court has jurisdiction over this matter. See § 10(l) of the Act.

For many years, the Union has been the certified bargaining representative of the longshoremen employed by the employer-members of NYSA, and has negotiated and entered into a series of collective bargaining agreements with NYSA covering the terms and conditions of employment of these employees.

From 1965, when CEI began business operations under its present identity,² it has been engaged as a non-vessel operating common carrier (NVOCC) in the trade between the Port of New York and Puerto Rico, at its premises, first in New York, New York, and subsequently, in Maspeth, New York, and in Carolina, Puerto Rico. CEI is also known in the shipping industry as a consolidator. As such, it receives less than container-size cargoes (LCL or LTL) from those desiring to ship same, unitizes or consolidates these crates within containers, and forwards them to the steamship companies to be loaded on board Puerto Rico-bound ships. Conversely, incoming cargoes are delivered in containers to CEI's premises, located away from the waterfront, where the containers are opened and the crates separated for delivery to the ultimate consignees.

Prior to the beginning of August 1973 CEI did not have any trucking employees, but had contracted with U.S. Trucking Co., whose employees were represented by Local 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to do all their loading and delivery work at, and to and from CEI's Maspeth facility, and the various shipping lines in the Port of New York, including Port Newark, New Jersey. Local 807 members employed directly by U.S. Trucking Co. also performed the work of filling (stuffing) the containers with respect to outgoing cargoes and the unloading (stripping) of incoming containers on CEI's Maspeth premises. At present CEI has terminated its relationship with U.S. Trucking Co., but does the identical work using its own direct employees, represented by the same Local 807, Teamsters. Neither CEI nor U.S. Trucking Co. is or has been a member of NYSA or a party to any collective bargaining agreement between the Union and NYSA, or between the Union and CONASA.

The containers used by CEI, presently approximately 40 feet long, were, prior to late March 1973, furnished it by the steamship-stevedoring companies engaged in the New York-Puerto Rican trade, Sea-Land, Seatrain and TTT, all NYSA members. These companies, owners of the containers, employ members of the Union. These members had previously loaded CEI-stuffed containers on board ship and unloaded the incoming containers, for delivery to CEI's premises. The Board contends that this loading and unloading had been performed by these Union members until March 1973 almost invariably without stripping or stuffing the containers on the piers before starting them on their way.³ From in or about the last week in March 1973, the Board alleges, the Union has been successful in getting NYSA, including its employer-members, Sea-Land, Seatrain, and TTT, to cease furnishing containers to CEI and to stop handling freight for CEI. As a result, CEI claims to have suffered severe financial loss and to be close to being driven out of business.

It is charged that the Union has brought about this halt to the dealings between Sea-Land, Seatrain, TTT, and CEI, by enforcing, and threatening further to enforce, the liquidated damages provision in the Union's Memorandum of Understanding with CONASA,⁴ executed in mid-February 1972, and effective from November 14, 1971, to September 30, 1974. This Memorandum sets forth Rules on Containers (hereinafter sometimes referred to as Rules) and provides therein for liquidated damages of $1,000 per container payable for each act of evasion.

The Rules are intended to establish a system under which, with certain exceptions, inbound and outbound containers handled through the Port of New York are stripped and stuffed at the waterfront by members of the Union employed by employer-members of NYSA at the longshore pay rate, whether or not the containers require such further treatment.

The Rules, which have been in the Union's collective bargaining agreements with the NYSA since 1968,⁵ currently provide in pertient part as follows:

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. . . .

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 relates 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 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.

(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

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