International Longshoremen's Ass'n, AFL-CIO v. N.L.R.B., AFL-CIO and C

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WRIGHT, Chief Judge, and ROBINSON and ROBB; J. SKELLY WRIGHT; ROBB
Citation613 F.2d 890,198 U.S.App.D.C. 157
Parties102 L.R.R.M. (BNA) 2361, 198 U.S.App.D.C. 157, 87 Lab.Cas. P 11,584 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,ouncil of North Atlantic Shipping Associations, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,ouncil of North AtlanticShipping Associations, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Houff Transfer, Inc., Intervenor. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,ew York ShippingAssociation, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket NumberNos. 77-1735,AFL-CIO and C,77-1758 and 78-1510,AFL-CIO and N
Decision Date21 January 1980

Page 890

613 F.2d 890
102 L.R.R.M. (BNA) 2361, 198 U.S.App.D.C. 157,
87 Lab.Cas. P 11,584
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO and
Council of North Atlantic Shipping Associations, Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO and
Council of North AtlanticShipping Associations, Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Houff Transfer, Inc., Intervenor.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO and New
York ShippingAssociation, Inc., Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 77-1735, 77-1758 and 78-1510.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 18, 1979.
Decided Sept. 25, 1979.
Rehearing Denied Dec. 13, 1979.
Certiorari Granted Jan. 21, 1980. See 100 S.Ct. 727.

Thomas W. Gleason, New York City, for petitioner International Longshoremen's Ass'n.

Constantine P. Lambos, New York City, with whom Donato Caruso, New York City, was on the brief, for petitioner New York Shipping Ass'n, Inc.

Howard E. Perlstein, Atty., N.L.R.B., and Kathy L. Krieger, Atty., N.L.R.B., Washington, D.C., of the bar of the Supreme Court of the State of New York, Pro hac vice, by special leave of court, with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on the brief, for respondent.

William L. Auten, Charlotte, N.C., with whom J. W. Alexander, Jr., Charlotte, N.C., was on the brief, for intervenor Houff Transfer, Inc.

Before WRIGHT, Chief Judge, and ROBINSON and ROBB, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge ROBB.

J. SKELLY WRIGHT, Chief Judge:

The National Labor Relations Board (NLRB) decided in these cases one arising in the Port of New York, 1 the other in the Ports of Baltimore and Hampton Roads 2 that petitioners Council of North Atlantic Shipping Associations (CONASA), New York Shipping Association (NYSA), and International Longshoremen's Association (ILA) violated the congressional proscription of secondary boycotts. 3 Petitioners

Page 892

challenge the Board's rulings as inconsistent with the Supreme Court's work preservation doctrine, and the Board cross-applies for enforcement of its orders. 4

The work preservation doctrine provides generally that efforts to preserve work for employees displaced by technological innovation are not unlawful secondary activities and that union-management contracts with the same purpose are not proscribed "hot cargo" agreements. Activities and agreements, however, that seek not to preserve the traditional work of displaced workers but to acquire work of other employees are unlawful under the congressional proscription. The question before us is whether certain rules agreed to by shipping companies and the ILA are an effort by the ILA to acquire work or merely an attempt to preserve its members' traditional responsibilities in the era of containerized shipping.

The NLRB held that petitioners were engaged in work acquisition rather than work preservation. Because we believe this judgment rests on erroneous interpretations of the Supreme Court's decisions in National Woodwork Manufacturers Ass'n v. NLRB 5 and NLRB v. Enterprise Ass'n of Steam, etc. Pipefitters, 6 we grant the petitions for review and set aside the Board's orders. We also deny the Board's cross-applications for enforcement.

I. BACKGROUND

The factual antecedents of the instant disputes revolve around a specific technological innovation containerization that has had a momentous impact on the loading and unloading of ocean-borne cargo. 7 Containers are large metal receptacles that can accommodate upwards of 30,000 pounds of cargo and that can be moved to and from a ship as a single unit. 8 Historically, longshoremen transported such cargo piece by piece from the hold of a ship to the pier for inbound cargo and vice versa for outbound cargo. 9 Subsequent to the advent of containerization, however, the role of longshoremen in handling cargo has been greatly reduced. It is now the case that containers can be transported to and from ships without longshoremen handling any of the boxes, crates, and packages enclosed in each container.

Containerization obviously engendered huge increases in dockside productivity. According to one estimate, the traditional method of handling cargo translated into a productivity factor of 1.4 tons per man-hour; containerization has made it possible for this figure to rise to 30 tons per man-hour. 10 This greater efficiency was only achieved, however, by transforming what was once a labor intensive chore into a largely mechanical one. Hence workers' expectations of job security have come into

Page 893

conflict with management's desire to increase productivity.

Congress has not enacted a statutory scheme whose specific purpose is either to prevent or to resolve disputes between management and labor over how best to accommodate technological innovations in the workplace. As with most other aspects of American industrial relations, the problem of technological innovation has been left to the system of private ordering we know as collective bargaining. 11 A complete understanding of the controversies before us, therefore, requires not only a knowledge of the specific incidents that precipitated the disputes, but also an appreciation for the adjustments to containerized shipping that have been made through the collective bargaining process in the three port cities involved in these cases.

A. Containerization in the Ports of Baltimore and Hampton Roads

CONASA represents constituent shipping associations, including the Hampton Roads Shipping Association (HRSA) and the Steamship Trade Association of Baltimore (STAB), in ports from Massachusetts to Virginia. 12 Since its formation in 1970 CONASA has bargained on behalf of its members with the ILA over certain key issues, including containerization, on a master-contract basis. 13 Prior to the formation of CONASA, North Atlantic ports generally adopted the master terms of the labor agreement for the Port of New York. 14

Due in large measure to the controversy surrounding containerization, the negotiation in New York of the 1968 collective bargaining agreement was a bitter affair that occasioned a strike of nearly two months' duration by members of the ILA. 15 The implications of this dispute for the national economy were sufficiently far-reaching to involve mediators appointed by the President of the United States in the dispute's resolution. 16 Part of the agreement that finally emerged in 1968 was a set of rules, known as the Rules on Containers, which represented the compromise reached between management and labor on the containerization issue. The 1968 New York agreement, whose master terms were adopted that year by other ports on the North Atlantic coast, marks the first time that the Rules on Containers were included in the labor contracts in Hampton Roads and Baltimore. 17

Page 894

Containerized shipping was first introduced in Baltimore and Hampton Roads in 1965 and 1966, 18 but did not have a substantial impact on work patterns in these ports until the late 1960s and early 1970s, by which time the Rules were adopted. For example, the first crane used to move containers to and from ships was erected in Hampton Roads in 1968 or 1969. 19 And, as a further example, one major shipper, United States Lines, moved only "a handful" 20 of containers through the Port of Baltimore in 1965, about 4,000 containers in 1969, and 25,000 just a few years later in 1973. 21 Thus, although the 1968 Rules on Containers were the parties' collectively bargained response to containerization and, as such, postdated rather than antedated the advent of containerization there was in fact no significant time lag between the technological development and the parties' collectively bargained response to it.

To understand the scope of the Rules on Containers, we must first appreciate the different ways in which container loads of cargo are classified. A "consolidated full container load" (CFCL) consists of shipments consolidated into a single container whose cargo belongs to more than one consignee. A "less than trailer load" (LTL) or a "less than container load" (LCL) also refers to a container whose cargo belongs to more than one consignee. A "full shippers' load" (FSL) or "shippers' load," in contrast, is a container of cargo from one shipper to a single beneficial owner consignee. 22 The controversy in Baltimore and Hampton Roads centered on the stripping and stuffing packing and unpacking of FSL containers.

It appears that in the Ports of Hampton Roads and Baltimore, in the few years between introduction of containerized shipping and adoption of the Rules on Containers, ILA labor stripped consolidated container loads at the pier. 23 Unless ILA stripping was requested by the consignee's agent or by the stevedore, however, shippers' loads were placed by ILA labor on the pier, where truckmen would then pick up the FSL container intact either to deliver it to the beneficial owner or to store the cargo. 24 The 1968 Rules were to an extent a formalization of these work practices. The Rules provided that ILA labor at the pier was to strip and stuff consolidated container loads that came from or were destined for any person who was not the beneficial owner of the cargo and who was located within 50 miles of the port. 25 The Rules further provided that a shipping company had to pay liquidated damages for each of its containers not handled in accordance with the Rules. 26 And for each container, including FSL containers, that passed over the docks without stripping or stuffing by longshoremen, the shipper was required to pay a royalty into an ILA fund. 27

The 1968 Rules on...

To continue reading

Request your trial
15 practice notes
  • National Labor Relations Board v. International Longshoremen Association, AFL-CIO
    • United States
    • United States Supreme Court
    • June 27, 1985
    ...(1978) (consolidators), and International Longshoremen's Assn. (Associated Transport), 231 N.L.R.B. 351 (1977) (truckers), enf. denied, 613 F.2d 890 (CADC 1979), vacated and remanded, 447 U.S. 490, 100 S.Ct. 727, 62 L.Ed.2d 728 (1980). Three cases were remanded by Courts of Appeals in light......
  • New York Shipping Ass'n, Inc. v. Federal Maritime Com'n, AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 9, 1988
    ...signatory carriers to cease and desist from enforcing the Rules. This court, however, in International Longshoremen's Ass'n v. NLRB, 613 F.2d 890 (D.C.Cir.1979), declined to enforce an NLRB cease and desist order against the The Supreme Court affirmed our decision, holding that the NLRB had......
  • Council of North Atlantic Shipping Associations v. Federal Maritime Com'n, No. 78-1776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 1982
    ...principal reasons for our delay was the stay the parties requested because of a pending case, NLRB v. International Longshoremen's Ass'n, 613 F.2d 890 (D.C.Cir.1979), aff'd, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980). 6 That decision has now been released, and its failure to consid......
  • J.F. Hoff Elec. Co. v. N.L.R.B., No. 79-1450
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 20, 1981
    ...Supreme Court decision. See NLRB v. International Longshoremen's Ass'n, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289, (1980) (affirming 613 F.2d 890 (D.C.Cir. 42 See 29 U.S.C. § 158(b)(4) (1976). ...
  • Request a trial to view additional results
15 cases
  • National Labor Relations Board v. International Longshoremen Association, AFL-CIO
    • United States
    • United States Supreme Court
    • June 27, 1985
    ...(1978) (consolidators), and International Longshoremen's Assn. (Associated Transport), 231 N.L.R.B. 351 (1977) (truckers), enf. denied, 613 F.2d 890 (CADC 1979), vacated and remanded, 447 U.S. 490, 100 S.Ct. 727, 62 L.Ed.2d 728 (1980). Three cases were remanded by Courts of Appeals in light......
  • New York Shipping Ass'n, Inc. v. Federal Maritime Com'n, AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 9, 1988
    ...signatory carriers to cease and desist from enforcing the Rules. This court, however, in International Longshoremen's Ass'n v. NLRB, 613 F.2d 890 (D.C.Cir.1979), declined to enforce an NLRB cease and desist order against the The Supreme Court affirmed our decision, holding that the NLRB had......
  • Council of North Atlantic Shipping Associations v. Federal Maritime Com'n, No. 78-1776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 1982
    ...principal reasons for our delay was the stay the parties requested because of a pending case, NLRB v. International Longshoremen's Ass'n, 613 F.2d 890 (D.C.Cir.1979), aff'd, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980). 6 That decision has now been released, and its failure to consid......
  • J.F. Hoff Elec. Co. v. N.L.R.B., No. 79-1450
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 20, 1981
    ...Supreme Court decision. See NLRB v. International Longshoremen's Ass'n, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289, (1980) (affirming 613 F.2d 890 (D.C.Cir. 42 See 29 U.S.C. § 158(b)(4) (1976). ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT