INTERCONTINENTAL CONTAIN. TR. CORP. v. New York Ship. Ass'n, 803-804

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 426 F.2d 884
• Docket Number: Dockets 34758-34779.,No. 803-804,803-804
• Parties: INTERCONTINENTAL CONTAINER TRANSPORT CORPORATION, Plaintiff-Appellee, v. NEW YORK SHIPPING ASSOCIATION, Inc. and International Longshoremen's Association, Defendants-Appellants.
• Decision Date: 05 June 1970

426 F.2d 884 (1970)

INTERCONTINENTAL CONTAINER TRANSPORT CORPORATION, Plaintiff-Appellee,
v.
NEW YORK SHIPPING ASSOCIATION, Inc. and International Longshoremen's Association, Defendants-Appellants.

Nos. 803-804, Dockets 34758-34779.

United States Court of Appeals, Second Circuit.

Argued April 29, 1970.

Decided June 5, 1970.

426 F.2d 885

Constantine P. Lambos, New York City (Lorenz, Finn & Giardino, New York City, on the brief), for appellant New York Shipping Assn., Inc.

Thomas W. Gleason, New York City (Gleason & Miller, New York City, on the brief), for appellant International Longshoremen's Assn.

Samuel Gewirtz, New York City (Zwerling & Zwerling, New York City, on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York granting a preliminary injunction in an action for a declaratory judgment, an injunction and treble damages for violation of the Sherman Act. We hold that the district court's grant of the preliminary injunction was not justified and therefore reverse its order.

The plaintiff Intercontinental Container Transport Corporation (ICTC) is engaged in the business of assembling ships' cargo and packing it into containers and in receiving containers, unpacking them and forwarding the contents to the various consignees. As incidental to its container operation ICTC warehouses the goods it handles.

There are two defendants, the New York Shipping Association (NYSA) and the International Longshoremen's Association (ILA). NYSA is an association of steamship carriers engaged in transporting passengers and freight between the Port of New York and other ports. It admits to associate membership, stevedores and certain other employers of longshore labor who carry on the work of loading and unloading ships at piers in the Port of New York. ILA is a labor union certified to represent

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among others, the employees of steamship companies and stevedores who load and unload ships' cargoes

NYSA as the agent for its members negotiates with ILA for collective agreements which cover the wages, hours and other working conditions of the longshore employees. The present agreement is the General Cargo Agreement effective from October 1, 1968 to September 30, 1971.

The controversy that we are called upon to resolve involves certain provisions of the agreement between NYSA and ILA pertaining to the use of containers. Historically the work of longshoremen included the preparation of cargo for shipment by making up, for example, drafts and pallets and, in connection with unloading cargo, the breaking up of drafts and pallets, sorting the cargo according to its consignees and delivering it to the trucks or other carriers. In recent years the practice of packing cargo into very large receptacles called containers has rapidly increased and a number of businesses, of which ICTC is one, have been set up which have as their function the assembling of cargo and packing it into containers, and receiving and unpacking containers and forwarding the contents to the consignees. The result of this "containerization" has been a marked reduction in the demand for longshore labor.

The General Cargo Agreement provides in substance that longshoremen employed on the docks and piers by members of NYSA are to perform the work of "stuffing and stripping," i. e., of packing and unpacking containers, where the contents of the containers are composed of the goods of more than one shipper and where the containers come from or go to points within 50 miles of the Port of New York. The steamship carrier must pay to the union welfare fund "liquidated damages" in the amount of $250 for each container covered by the Agreement which has been loaded or unloaded without being stuffed or stripped on the dock by ILA members.

ICTC's complaint in the present action alleges that NYSA and ILA have entered into a combination and conspiracy to exclude all persons except members of NYSA from engaging in the business of stuffing and stripping containers in the Port of New York and that in furtherance of this combination and conspiracy fines have been levied on members of NYSA who have handled containers stuffed or stripped by plaintiff, and other members of NYSA have been warned that they would be similarly fined if they dealt with plaintiff. Alleging that these activities of NYSA and ILA are violative of the Sherman Act, ICTC seeks a declaratory judgment, an injunction and treble damages of $1,500,000.

The district court granted plaintiff a preliminary injunction restraining defendants from taking any action to induce anyone to refrain from using plaintiff's services in stuffing or stripping containers or from handling containers stuffed or stripped by plaintiff.

Appellants contend that the injunction was improperly granted because (1) the plaintiff has little possibility of success at the trial; (2) the action is barred by res judicata; (3) the exclusive jurisdiction of the subject matter lies with the National Labor Relations Board; (4) the case is governed by the Norris LaGuardia Act;¹ and (5) the injury to defendants from the granting of the injunction would be substantially greater than the injury plaintiff would suffer if the injunction were denied.

Although we agree that the preliminary injunction should not have been granted, we do so only on the first of the grounds advanced by appellants, that is, that there is little possibility of plaintiff's succeeding at trial. In view of this determination it is unnecessary for us to reach the fifth contention, that concerning comparison of the injury resulting to the parties from granting or

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denying the injunction, since this contention relates only to the preliminary injunction. However, because the other grounds of appeal go to the basis for the district court's acting on the matter at all, we record briefly our view that the contentions are not supportable

The claim of res judicata relates to a previous action brought by plaintiff against NYSA alone. In that action, in which the complaint was dismissed on the ground of preemption under the National Labor Relations Act, no claim was made of any combination or conspiracy between NYSA and ILA which was not a party. The ruling of the court that issues raised in the first action were within the exclusive jurisdiction of the National Labor Relations Board is clearly not determinative of whether in an action based on different allegations and seeking an entirely different remedy, the court must defer to the Board.

The independent claim of preemption for this Sherman Act case is equally erroneous. Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965).

The Norris LaGuardia Act does not insulate the conduct alleged by the plaintiff from liability under the Sherman Act. Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945); Los Angeles Meat & Provision Drivers Union v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed. 2d 150 (1962).

A preliminary injunction "will not be granted except upon a clear showing of probable success * * *" Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969); Clairol Inc. v. Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968); Societé Comptoir De L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dept. Stores, 299 F.2d 33, 35 (2d Cir. 1962). We hold that in the present case plaintiff failed to make the required showing.

The test of whether labor union action is or is not within the prohibitions of the Sherman Act is (1) whether the action is in the union's self-interest in an area which is a proper subject of union concern and (2) whether the union is acting in combination with a group of employers. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Allen Bradley Co. v. Local 3, supra.

That the ILA in taking the position it did with respect to containerization was acting in its self-interest, i. e., in the interest of its members,² is readily apparent. The provisions of the collective agreement have as their object the preservation of work traditionally performed by longshoremen covered by the agreement.

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