New Orleans Steamship Assn.

National Labor Relations Board - Board Decisions

Sep 20, 1985

276 N.L.R.B. 162 (N.L.R.B. 1985)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Orleans Steamship Association , Columbus
Lines, Inc., and Bank & Savill Lines ; New Or-
leans Clerks & Checkers, ILA Local No. 1497
and the International Longshoremen 's Associa-
tion , AFL-CIO, and James McCleland, Presi-
dent of Local 1497, and General Longshore
Workers, ILA Local No. 3000 and New Orle-
ans Cold Storage &'Warehouse Co., Ltd.
New Orleans Clerks & Checkers, ILA Local No.
1497, and the International Longshoremen's As-
sociation , AFL-CIO, and James McCleland,
President of Local 1497, and General Longshore
Workers, ILA Local No. 3000 and New Orle-
ans Cold Storage & Warehouse Co., Ltd. Cases
15-CE-18 and 15-CC-775
20 September 1985
DECISION AND ORDER
BY'CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 September 1983 Administrative Law Judge
Michael O . Miller issued the attached decision. All
of the Respondents , except New Orleans Steamship
Association , and Intervenor Carriers Container
Council filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge 's decision.
While_ this case was pending before the Board,
the United States Supreme Court issued NLRB v.
International Longshoremen 's Association, AFL-CIO,
105 S.Ct . 3045 (June 27 , 1985), reversing the
Board 's findings of violations in Longshoremen ILA
(New York Shipping), 266 NLRB 230 (1983), on
which the judge relied to find that the Respondents
in this case violated the Act. The Supreme Court
held that the Rules on Containers are a lawful
work -preservation agreement , even as applied to
"shortstopping " and to certain warehousing prac-
tices the Board had found were traditionally per-
formed by employees other than longshoremen, be-
cause the ILA's objective in negotiating the Rules
was to preserve , traditional longshore work and
thus any effect the Rules may have on "shortstop-
ping" and warehousing practices is irrelevant.
On 5 July 1985 the Respondents and the Interve-
nor requested the Board to dismiss the complaint in.
this case based on the Supreme Court 's decision
holding the Rules on Containers lawful in their en-
tirety . On 12 July 1985 the Charging Party filed a
statement in opposition to this request . On 22 July
1985 the General Counsel filed with the Board a
motion to dismiss complaint because the Supreme
Court decision finding the Rules on Containers
lawful is dispositive of the issues in this case. On 23
July - 1985 the Respondents and the Intervenor
joined in the General Counsel 's motion to dismiss.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered- the decision and the
record in light of the exceptions, briefs, motions,
and statements of position and has decided to
affirm the judge's rulings, findings, ,and conclusions
only to the extent consistent with this Decision and
Order.
We agree with the Respondents, the Intervenor,
and the General Counsel that the Supreme Court
decision holding that the Rules on Containers are a
lawful work-preservation agreement, even as ap-
plied to warehousing practices, disposes of all the
issues in this case. Therefore, we have decided to
reverse the judge's conclusion that the Respond-
ents violated Sections 8(b)(4)(ii)(B) and 8(e) of the
Act by maintaining and enforcing the Rules on
Containers as applied to the initial unloading of re-
frigerated containers of frozen meat destined for
the Charging Party's cold storage warehouse.
Contrary to the judge, we find that the long-
shoremen had traditionally performed the initial
unloading of frozen meat before containerization.
We see no basis for distinguishing between the
longshoremen's traditional work of unloading
frozen cooked meat from ships and the work of un-
loading frozen uncooked meat from containers,
particularly where the importation of frozen un-
cooked meat only became feasible as a result of
containerization and thus there was no separate tra-
dition of other workers unloading this meat. There-
fore, the ILA clearly had a legitimate work-preser-
vation objective in applying the Rules on Contain-.
ers to the work of unloading frozen uncooked
meat.
Accordingly, we find that the Respondents did
not violate the Act by maintaining and enforcing
the Rules on Containers as applied to the initial un-_
loading of refrigerated containers of frozen meat,
and we grant the motion to dismiss complaint.
ORDER
The complaint is dismissed.
Charlotte N. White, Esq., of New Orleans, Louisiana, on
behalf of the General Counsel.
Ernest Burguieres, Esq. and Lawrence J. Molony, Esq., of
Metairie, Louisiana, on behalf of New Orleans Cold
Storage & Warehouse Co., Ltd. -
Herzl S. Eisenstadt, Esq. (Law Offices of Thomas W Glea-
son), of New York, New York, on behalf of Interna-
tional Longshoremen's Association, AFL-CIO.
Donato Caruso, Esq.; of New York, New York, on behalf
of Columbus Lines, Inc., Bank & Savill , Ltd., and Car-
riers Container Council.
276 NLRB No. 45
a
NEW ORLEANS STEAMSHIP ASSN
I
Victor H Hess Jr Esq of New Orleans Louisiana on
behalf of Local 1497 and James McCleland President
and Local 3000
Alvin J Bordelon Jr Esq of New Orleans Louisiana
on behalf of New Orleans Steamship Association
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER Administrative Law Judge
These consolidated unfair labor practice cases were tried
before me in New Orleans Louisiana on June 20 1983
based on unfair labor practice charges filed by New Or
leans Cold Storage & Warehouse Co Ltd (NOCS) on
April 29 1983 as amended on May 4 1983 and an order
consolidating cases consolidated complaint and notice of
hearing issued on May 26 1983 by the Regional Direc
tor for Region 15 of the National Labor Relations Board
The consolidated complaint alleges violations of Section
8(e) of the Act by New Orleans Steamship Association
(NOSSA) Columbus Lines Inc Bank & Savill Lines
New Orleans Clerks & Checkers International Long
shoremen s Association Local No 1497 (Local 1497)
the International Longshoremen s Association AFL-
CIO (ILA) James McCleland president of Local 1497
and General Longshore Workers ILA Local No 3000
(Local 3000) It further alleges violations of Section
8(b)(4)(n)(B) by Local 1497 ILA and James McCleland
president of Local 1497 and Local 3000 All Respond
ents filed timely answers denying the substantive allega
tions of the consolidated complaint
All parties were afforded full opportunity to appear to
examine and to cross examine witnesses and to argue
orally Briefs which have been carefully considered
were filed by the General Counsel and all Respondents i
Based on the entire record including my observation
of the witnesses and their demeanor I make the follow
ing
FINDINGS OF FACT
I THE EMPLOYERS BUSINESSES AND THE UNIONS
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
NOSSA is an association of employers engaged in
interstate and international transportation of freight and
commodities NOSSA exists for the purpose inter alia
of representing its employer members in negotiating and
administering collective bargaining agreements with van
ous labor organizations including Local 1497 and Local
3000 The complaint alleges and NOSSA admits that the
employer members of NOSSA collectively in the course
1 Although the Boards Rules Sec 102 42 make no provision for the
filing of reply briefs neither do they prohibit them Consideration of such
briefs is a matter within the administrative law judge s discretion and
while that discretion should be exercised sparingly in the interest of expe
diting unfair labor practice proceedings I have in this instance consid
ered the reply brief filed on behalf of Bank & Savill Lines Columbus
Lines and the Carvers Container Council Intervenor The General
Counsel s motion to strike that reply brief is denied See Allis Chalmers
Corp 234 NLRB 350 351 fn 1 (1978) Cf Xidex Corp 238 NLRB 1208
(1978) As I have essentially rejected the arguments presented therein no
further agrument on behalf of the General Counsel is required
163
and conduct of their business operations derive annual
gross revenues in excess of $50 000 from the transporta
tion of freight and commodities to and from the State of
Louisiana directly to and from points located outside the
State of Louisiana and to and from the United States of
America directly to and from foreign countries I find
and conclude that NOSSA is an employer or an associa
tion of employers engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
NOCS is a Louisiana corporation with an office and
places of business located in New Orleans Louisiana
where it is engaged in the business of warehousing meat
seafood and other perishable food items NOCS is en
gaged in interstate commerce pursuant to arrangements
with food importers who ship perishables to NOCS from
outside the United States of America Ttie complaint al
leges the Respondents admit and I find and conclude
that NOCS is an employer engaged in commerce within
the meaning of Section 2(2) (6) and (7) of the Act
Columbus Lines Inc is a New York corporation with
an office and place of business in New Orleans Louisi
ana where it is engaged in the interstate and mternation
al transportation of freight and commodities from Louisi
ana to various foreign countries and from various foreign
countries to the State of Louisiana The complaint al
leges Columbus Lines admits and I find and conclude
that Columbus Lines is engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
Bank & Savill Lines is a London England company
doing business in the State of Louisiana where it is en
gaged in the interstate and international transportation of
freight and commodities from Louisiana to various for
eign countries and to the State of Louisiana from various
foreign countries The complaint alleges Bank & Savill
Lines admits and I find and conclude that Bank & Savill
Lines is an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
The complaint alleges all Respondents admit and I
find and conclude that the ILA Local 1497 and Local
3000 are and have been at all times material herein
labor organizations within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICE
A Background
This case has its genesis in the application of contain
enzation technology to the international shipping of
fresh frozen meat from Australia and New Zealand to
the Port of New Orleans and from the application of the
ILA Management Rules on Containers to that trade 2
2 The container as utilized in the shipping industry is a large reus
able metal receptacle which can be loaded with cargo away from the
pier transported intact to the dock and placed onto an ocean vessel tin
opened Conversely a container can also be removed from an ocean
vessel unopened and transported intact to a location away from the pier
for unloading International Longshoremen s Assn. (New York Shipping)
266 NLRB 230 232 (1983) herein referred to as the ILA case Although
containers come in various sizes those involved in this case are 20 by 8
by 7 foot insulated boxes equipped with refrigeration equipment or capa
ble of being refrigerated which hold approximately 36 000 pounds of
boxed fresh frozen meat
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both the technology of containerized shipping of
ocean cargo and the Rules on Containers negotiated by
the ILA developed between the 1950s and the 1970s
These background facts need not be described in detail
here They are set out in detail in NLRB v Longshore
men ILA 447 US 490 (1980) herein referred to as
NLRB v ILA out of which the ILA case arose and in
the administrative law judge s decision in the ILA case
sec III D 266 NLRB at 243-247 It is sufficient to note
as the Board did in its decision id at 232 that
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 ship
ping industry were also immense since the use of
containers substantially decreased the costs of han
dling cargo the unprofitable time a ship spends in
port and the number of ships needed to carry a cer
tarn amount of cargo
The ILA as representative of the longshoremen who
had formerly performed the loading and unloading work
on the docks sought to reduce the impact of containen
zation technology on bargaining unit work and there
were numerous disputes between employer associations
in east coast ports and the ILA Collective bargaining
between the ILA and the shipping association employers
principally the New York Shipping Association and the
Council of North Atlantic Shipping Associations gave
rise to the present Rules on Containers To the extent
relevant here these Rules to which the Respondents in
these cases are signatory provide as previously de
scribed by the Board (id at 233)
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 how
ever there are several stated exceptions to this gen
eral 50 mile rule Thus under the 50 mile rule the
ILA does not claim (1) the work of loading or un
loading 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 ware
housed for 30 days or more The Rules require
a shipping company to pay liquidated damages of
$1000 per container for any container handled in
violation of these provisions
Specifically involved here is the insistence of the Unions
that pursuant to the Rules refrigerated containers (reef
ers) destined 'or the NOCS warehouse which is located
within the 50 mile geographical area be unloaded
(stripped) by ILA labor at the pier when the contents of
those reefers (fresh frozen meat) will remain warehoused
for less than 30 days the threat that the Unions will seek
liquidated damages pursuant to the Rules for each con
tamer which is not so stripped and the alleged agree
ment of the Association and some of its members to rules
which prohibit the release of such containers to NOCS
without pier side stripping by ILA longshoremen decision ILA 266 NLRB at 231
B The Legal Setting
The Board s ILA case resulted from the Supreme
Court s remand of certain earlier ILA cases wherein the
Board had found 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 members had never performed Other
cases which were pending before various circuit courts
of appeals decided by the Board pending before the
Board on exceptions to administrative law judges deci
sions and one which was pending on a new complaint
were consolidated and remanded for hearing before an
administrative law judge 3 The consolidated cases were
heard by Administrative Law Judge Joel A Harmatz
who issued his decision on September 29 1981 generally
upholding the container rules except as applied to certain
specific situations The Board affirming his rulings find
ings and conclusions and adopting his recommended
order issued its decision on February 28 1983 Therein
the Board noted its agreement with Judge Harmatz con
clusion that the ILA had an overall work preservation
objective in negotiating the Rules on Containers and
agreed with his findings and conclusions regarding the
application of the general 50 mile rule (including the ex
ception for the unloading of FSL containers the cargo
of which is to be warehoused for at least 30 days) to
inter alia warehousing However taking no*e of the Su
preme Court s decision in NLRB v ILA the Board nar
rowed the focus of the analysis to the work of the bar
gaming unit i e the ILA represented longshoremen
rather than the work of other employees who may be
domg the same or similar work The Board found that
the proper emphasis is on the traditional work of the
longshoremen and what has happened to that work and
defined the work in dispute as 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 ILA
id at 236 With respect to the application of the 30 day
provision to certain traditional warehousing services the
Board found the Rules to have an unlawful work acquisi
tion objective
On April 18 1983 following the Board s ILA decision
the Management ILA Rules on Containers were reimple
mented by agreement of the parties thereto
C Events in the Port of New Orleans
Refrigerated containers first began to arrive in the
Port of New Orleans in late 1972 Prior to that time
frozen cooked meat was received through that port pri
manly from Brazil and Argentina in break bulk mode It
was unloaded from the ships by ILA labor in traditional
stevedoring fashion That is longshoremen would go
into the refrigerated holds of the ships and would place
the packages of frozen meat upon pallets which would
then be removed from the ships by the use of winches
operated by ILA labor The pallets would be placed on
the apron of the wharf where the slings would be re
8 A complete listing of those nine cases may be found m the Board s
NEW ORLEANS STEAMSHIP ASSN 165
moved. ILA labor would then move the filled pallets,'by
forklift, to a shed where the cargo would- be checked,
counted, and moved again, -all by -ILA longshoremen, to
the tailgates of trucks which would then be loaded and
driven to the NOCS refrigerated. warehouses or directly
to consignees. The trucks would then be unloaded and
the goods moved into the NOCS warehouse (or other re-
ceiving point) by employees, of NOCS (or other recipi
ent).
Because fresh frozen meat from New Zealand _ and
Australia was shipped in containers and not in break-bulk
mode, New Orleans had not been,a receiving point for
such shipments prior to 1972. When reefers of fresh
frozen meat began to arrive in the Tort of New Orleans,
NOCS aggressively sought this business, in competition
with other ports. Between 1973 and 1982, NOCS experi-
enced an increase in its receipt of such containers from
46 in 1973 to over 2700 in.1982. Between 1975 and 1982,,
the amount of containerized meat received by NOCS in-
creased from 18.5 million pounds to more than 104 mil-
lion pounds. During that same period, there was also an
increase in the amount of meat received by NOCS in
break-bulk mode, from just under 1 million pounds to
over 8 million pounds. Simultaneously ,with the advent of
containerization in the Port of New Orleans, there has
been a decrease, by about 50 percent, in the number of
hours of longshore work performed by ILA-represented
employees. As evidenced by the contributions to the
fringe benefit funds, which are based on the number of
hours worked, there were between 9 million and 10 mil-
lion hours worked-in each year. from 1960 through 1971.
In 1980-1981, there were. approximately 5 million hours
worked.
In 1980, NOCS built its Alvar Street warehouse specif-
ically to handle the shipments of containerized fresh
frozen meat. This large refrigerated warehouse located
off-pier, approximately one-third of a mile from the
wharf, includes dock facilities specifically designed for
the handling of containers and a facility, operated by a
subsidiary of NOCS, for the requisite USDA inspection
of frozen meat. That inspection facility is, apparently, the
only one in the Port of New Orleans.'
There is no question but that the shipment of fresh
frozen meat in reefers is more advantageous to the em-
ployers than shipment of such product in break-bulk
mode. Containerization permits continuous refrigeration
of the product, a factor of particular importance to fresh
frozen meat which is more susceptible to spoilage or de-
terioration from changes in temperature and other atmos-
pheric conditions than frozen cooked meat. It is , without
question, more efficient, with many steps eliminated in
the handling from ship to warehouse. Thus, the loaded
containers are removed from the ship by a crane, operat-
ed by ILA labor, and placed upon a truck body. _ They
are then hauled to a point to be held, under continuous
refrigeration, until the appropriate clearances are grant-
ed. The unopened containers are then delivered to the
4' NOCS also owns and operates two other off-pier refrigerated ware-
houses in the New Orleans port area, the Nashville Avenue facility
where frozen cooked meat from Argentina and Brazil is warehoused, and
the Airline Highway facility which handles domestic products and over-
flow shipments
cold storage 'warehouse where the seals are broken and
NOCS employees strip them. Those employees remove
the individual boxes of frozen meat, approximately 60
pounds each, from each container, stacking them on pal-
lets in such a way that the labels may be read without
further movement of the boxes, while simultaneously
separating the boxes chosen for inspection. The dock
where this unloading takes place is maintained at a cold
temperature and in a sanitary condition under USDA su-
pervision. The boxes selected for inspection move to the
inspection, facility and the remaining cargo goes into the
refrigerated warehouse. The unloading of a container at
the warehouse, from the opening of that container to the
placement cf the cargo in the warehouse, takes approxi-
mately 1 hour.
When a container which has been shipped on a house-
to-pier basis, as most of the containers involved herein
have been shipped, is delivered intact to the NOCS
warehouse, the cost- of stripping that container is borne
by the shipping company.
The shipping firms which transport these containers of
fresh frozen meat deal with a limited number of import-
ers. These importers purchase the meat from sellers in
New Zealand and -Australia and make arrangements to
have it shipped to the United States where it is` sold or
warehoused pending sale at some future date. It is im-
plicit from the testimony of David Ward, U.S. Gulf rep-
resentative for Bank & Savill Lines, that NOCS ware-
houses the frozen meat for varying lengths of time, not
always determined prior to the arrival of the containers
at the NOCS dock. Prior to April 1983, NOCS did not
charge the importers storage fees for cargo held in its
warehouse less than 5 days. The -General Counsel ac-
knowledged that at least 75 percent of the meat is ware-
housed less than 30 days; some moves in and out within
the 2 to 3 days required for completion of the USDA in-
spection. The record does not establish whether any of
the fresh frozen meat-is held for more than 30 days.
At no time from' 1972 until April 1983 did ILA-repre-
sented longshoremen strip the reefers on the, pier.
Throughout this period, implementation of the Manage-
ment-ILA Rules on Container was restrained by various
court decrees.
Following issuance of the Board's ILA decision on
February 28,. 1983,5 generally upholding the Container
Rules, the ILA and the employer associations who were
party to those Rules agreed that the reimplementation of
them' would commence on April 18. The International
Union, by letter of March 15, advised all of its locals, in-'
cluding Locals 1497 and 3000, that pursuant to such
agreement, "the Rules on Containers are to be enforced
in all ports to the fullest extent permitted by the Febru-
ary. 28, 1983 ruling of the National Labor Relations
Board." On April 11, guidelines on the Rules on Con-
tainers, prepared by the Management-ILA Container
Committee, were sent to each local. The guidelines sum-
marized the Board's decision, noting inter alia, that while
the Rules were held generally lawful, the Board had
held' their application "to certain traditional -warehouse
5 All dates hereinafter are 1983 unless otherwise specified
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices," .inter alia, unlawful. To the extent relevant
here, the guidelines provided as follows: .
FULL LOADS
All full shipper load (FSL) • containers originating
from or'destined to warehouses or trucking compa-
nies should be received and released intact.
. . FULL LOADS IN WAREHOUSES
'Import FSL Containers destined to warehouses
within the 50-mile zone are subject to the 30-day
warehousing rule.
Copies of the ILA letter, the guidelines, and the Rules
themselves were sent to all of the wharfs in. the Port of
New Orleans by James McCleland Jr., president of
Local 1497.8-
Beginning about April 25, a.number of meetings were
held between representatives of Locals 3000 and 1497
and the NOSSA management representatives. According
to Winfred Niemand, a member of NOSSA's labor rela-
tions staff, in the meeting of _April 27, 1983, the local
unions were told "that there seemed to be some question
as to whether the import full shipper loads of meat might
fall under the historial exception in the contract, and be-
cause-we didn't have the authority to interpret . . . the
Rules on Containers ourselves, we suggested - that the
facts be brought to the Joint I.L.A. Committee and have
them make a ruling on that matter." The Unions were
asked to waive the penalty provision of the rules pending
such resolution. McCleland rejected management's re-
quest and, as he had done in a meeting on April 25, as-
serted the unions' . rights; to file grievances and seek the
liquidated damages penalty for any violations of the
Rules. These. discussions and positions were repeated at
another meeting held on the following day,7
About April 26, a Columbus Lines ship discharged 26,
reefers of fresh frozen meat destined for NOCS. Al-
though all such containers had previously been removed
from the ships (by, ILA stevedoring gangs) and delivered
directly to NOCS where they were stripped by NOCS
employees, on this occasion Columbus Lines directed
that they be stripped on the pier by ILA labor. This
action, it was- testified, was taken because 'Columbus
Lines was unable to obtain a clear interpretation of the
Rules and feared that failure to permit ILA labor to strip
the containers on. the pier would result in a $1000 per
container penalty. The Columbus ' Lines' reefers were, in
fact, stripped on the pier by ILA labor.
6 Although the guidelines were clarified on May 3 by the joint com-
mittee, there was no change with regard to the above quoted language
on "Import FSL Containers."
7 A May 4 letter from NOSSA to its members purported to summarize
the positions as follows
The position of the management representative is that these contain-
ers should move directly to the cold storage plant without being
stripped on the pier. in view of the historic nature of the operation.
The union representatives on the [container] -committee dis-
agree 'The management representatives on the local Container
Committee have asked that.the current practice regarding import
reefers be continued without potential penalties pending the May 17
hearing [before the national management-ILA container committee]
The union representatives have declined ., •
A Bank & Savill Lines ship arrived on April 27 carry-
ing 60 reefers of fresh frozen meat . Approximately half
of those reefers were- delivered intact to NOCS; the
other half were stripped on the dock after Bank & Savill-
Lines 'received information indicating that' the local
Rules Committee had concluded that delivery to NOCS
without stripping on the dock by ILA labor would vio-
late the Rules and subject Bank & Savill Lines to the
possibility of the liquidated damages penalty. On at least
one other occasion, in late May, the delivery of reefers
from a Bank & Savill Lines ship to NOCS was held up
pending determination the applicability of the stripping
requirement to such containers.8
Stripping of the reefers at the pier and the transfer of
the meat contained therein to unrefrigerated -trucks, it
was testified, required the use of additional stevedoring
gangs , each consisting of 32 or 33 men It took approxi-
mately 90 minutes to strip each container and this strip-
ping caused some problems, particularly with regard to
the manner in which the boxes were stacked on the pal-
lets. The ILA stevedores did not, in all cases , stack those
boxes so that labels faced outward. The unloading of the
reefers took place in an -area which, unlike the NOCS'
dock, was unrefrigerated and not subject to the sanitary
conditions maintained there. After the goods were trans-
ported by independent draymen to NOCS, the trucks
had to be unloaded onto the NOCS dock, the goods res-
tacked, and' the samples pulled for inspection. The strip-
ping 'of these containers on the dock resulted in an addi-
tional cost to the shippers of approximately $350 to $400
per container. Other than some minor damage done to
the boxes in which the meat was packed, the record does
not evidence any harm to the product itself by the addi-
tional handling.
D. Analysis and Conclusions
In its ILA decision, which all parties agree must
govern my analysis, the Board, while upholding the va-
lidity of the Rules generally, determined that the applica-
tion of those Rules to certain warehousing practices had
unlawful secondary work acquisition objectives.9 Of the
situations considered in that decision, I must conclude, in
agreement with the General Counsel, that the import as-
pects of Terminal Corp. have direct application here.' o
9 The complaint, par 19 , alleges that , on,May 13, Respondent ILA
reasserted its threat to seek liquidated damages for containers moved in
violation of the rules while a May 13 memorandum from the Carvers
Container Council, which NOSSA sent to its members, makes reference
to such - an assertion by ILA President Gleason, there is no probative evi-
dence of this alleged threat I shall recommend that this allegation be dis-
missed
9 The Respondents do not , however , concede the merits of these as-
pects of the Board's decision and note that the ILA, the New York Ship-
ping Association , and the Council of North Atlantic Shipping 'Associa-
tions have petitioned for review • ,
10 Discussion of Terminal Corp. may be found in the Board 's decision,
266 NLRB at 236 fn. 37, and in Judge Harmatz' decision , id ' at 269-270.
Consideration of Terminal Corp. resulted from the Board 's determination
to reconsider its decision in Longshoremen ILA (Terminal Corp.), 250
NLRB 8 (1980) The situation presented in Hill Creek Farms, discussed in
Judge Harmatz' decision , 266 NLRB at 258, 268-269, although involving
the importation of frozen meat , is distinguishable from the instant case
There, unlike here, pier -side cold storage warehouses existed within the
Continued
NEW ORLEANS STEAMSHIP ASSN
I .
The Terminal Corporation operated a bona fide inland
public warehouse within the 50-mile radius of the Port of
Baltimore. As • Terminal Corporation's import operations
were described by Judge.Harmatz (266 NLRB 269):
Terminal's warehouse facilities in the Port of Balti-
more 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 ware-
house for less, and sometimes longer, than 30 days.
The warehouse, in addition to its utility in inventor-
ying 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.
Judge Harmatz and the Board drew a distinction be-
tween marine terminal warehouses which provided "a
resting place pending loading of the vessel and/or release
to surface carriers as an incident of marine import or
export" and public warehouses which "are-essential links
in a market distribution system which lies on the inland
side of the interface between marine and surface carri-
ers." While holding the provision in'the Rules which ex-
empted goods warehoused for at least 30 days from ap-
plication of the 50-mile rule to be generally free of an
unlawful work acquisition objective, Judge Harmatz con-
cluded (266 NLRB at 258):
On the other hand, consignees of imported goods
often utilize inland warehouses to inventory import-
ed 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 con-
tainer handling in conjunction therewith is akin to
the historic unloading of trailers at said site . Appli-
cation 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 cus-
tomarily or historically available at pier side.
Therefore, he held (id. at 269):
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 stor-
age; i .e., indefinite, deferred, partial distribution,
primary unit where deep sea ILA labor had traditionally stripped the
containers of frozen meat The Rules could therefore be legitimately ap-
plied to protect ILA labor from a new pattern of competition
167
pursuant to a' continuing relationship with a con-
signee or exporter, which is neither in competition
with those provided by marine - terminal ware-
houses, nor created by container technology, nor a
threat to the work of deep sea ILA labor. In short,
the applications of the rule to the FSL import con-
tainers in this case involved an attempt by ILA,
pursuant to the rules, to compensate for their own
job losses, by acquisition of the work historically
performed by others.
The Board adopted the administrative law judge's con-
clusions while modifying his rationale, as follows:
The Administrative Law Judge . . . found that
no new work was created by containerization for
trucking and warehousing employees [and that] no
work was diverted away from the pier to the truck-
ers and warehouses as a result of containerization,
at least as to those shortstopping and traditional
warehousing services involved where he found vio-
lations. Rather, after containerization, some of the
traditional loading and unloading work of the long-
shoremen, which had historically been duplicated
by trucking and warehousing employees, essentially
was eliminated. While we agree with the Adminis-
trative 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 ware-
housing service, 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,
because 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 cargo-
handling process. This can be analogized to the situ-
ations in Carrier Air Conditioning42 and Associated
General Contractors,43 where the creation of a new
product entirely eliminated the work which the bar-
gaining 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.
42 Carrier Air Conditioning Co v NL R B, 547 F 2d 1178 (2d
Cir 1976), cert. denied 431 U.S. 974 (1977).
43 Associated General Contractors of California, Inc v NL.R.B,
514 F 2d 433 (9th Cir 1975)
Respondents argue that the facts here preclude a find-
ing that NOCS was engaged in providing "traditional"
warehousing services such as would bring it within the
Board 's ruling in Terminal Corp. I cannot agree.The
record establishes that NOSC has provided cold storage
public warehousing in the Port of New Orleans since
before the introduction of the reefers. It has, since the in-
ception of reefer service there, received and stripped
containers of fresh frozen meat at its own docks without
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior stripping of those containers by ILA represented
longshoremen And although its practice in this regard
may have been facilitated by the court decrees enjoining
enforcement of the Container Rules I must note that it
was the advent of refrigerated container technology
which both made the importation of this product possi
ble and simultaneously eliminated what would have been
the duplicative work of the longshoremen Similarly I
cannot agree with the Respondents contention that
NOCS is merely a drop point where goods are unloaded
at a resting place pending release to surface camers
as an incident to marine import with no genuine ware
housing functions being performed The nature of the
product and the inspection requirements mandate that it
be held in a refrigerated warehouse for a minimum of 2
to 3 days except in rare circumstances Moreover at
least some portion of the incoming cargo is held for in
determinate periods of time pending sale by the import
er brokers
Based on the foregoing I must conclude that the
NOCS operations II with respect to the refrigerated FSL
containers of fresh frozen meat constitute traditional
warehousing services as that term is defined in the
Board s ILA decision that here as in Terminal Corp
the duplicative work of the longshoremen m handling
cargo which is then rehandled by warehouses no
longer exists as a step in the cargo handling process due
to the efficiency of container technology and that the
Rules on Containers as applied to [these] tradition
al warehousing practices have an illegal work acquisition
objective 12 266 NLRB at 237 Accordingly I shall rec
ommend that the Board find that the Respondents in
Case 15-CC-775 have engaged in conduct violative of
Section 8(b)(4)(u)(b) of the Act as alleged in the coin
plaint I shall further recommend that the Board find that
the Respondents in Case 15-CE-18 have engaged in con
duct violative of Section 8(e) of the Act as alleged in
the complaint 13
1 i Pursuant to what I deem to be the Boards direction in ILA to con
seder the application of the Rules on a case by-case basis I have limited
the facts considered here to application of the Container Rules in the
Port of New Orleans and to the operations of NOCS
12 Respondents arguments to the effect that there is no work acquisi
tion objective because application of the Rules would not eliminate the
unloading work of the NOCS warehousemen and that the Rules as ap-
plied to NOCS have a lawful primary antisubcontracting objective must
similarly be rejected The clearly stated objective of the rules is to deny
warehouses such as NOCS access to the containers and the logical ulti
mate effect of application of the rules would be to cause the shipping
concerns to cease doing business with NOCS Moreover the Board deci
sion by which I am bound has found the identical conduct to have an
unlawful secondary objective
13 Respondent NOSSA s contention that its involvement limited to en
tenng into the Container Rules cannot be found violative of Sec 8(e)
because the Board upheld those Rules is without merit NOSSA partici
pated in the reimplementation of the Rules those Rules were not valid
CONCLUSIONS OF LAW
1 Respondents New Orleans Clerks & Checkers ILA
Local No 1497 The International Longshoremen s As
sociation AFL-CIO and General Longshore Workers
ILA Local No 300014 have threatened coerced and/or
restrained NOSSA Columbus Lines Bank & Savill
Lines other employer members of NOSSA and other
persons engaged in commerce with an object of forcing
such persons to cease doing business with NOCS or to
cease using selling handling transporting or otherwise
dealing in the products of NOCS and have thereby vio
lated Section 8(b)(4)(ii)(B) of the Act
2 Respondents New Orleans Steamship Association
Columbus Lines Inc Bank & Savill Lines New Orleans
Clerks & Checkers ILA Local No 1497 The Interna
tional Longshoremen s Association AFL-CIO and Gen
eral Longshore Workers ILA Local No 3000 have vio
lated Section 8(e) of the Act by entering into maintain
ing and applying the provisions of the ILA Management
Rules on Containers so as to require the pier side strip
ping of refrigerated containers of fresh frozen meat des
tined for traditional warehousing at NOCS thereby en
termg into maintaining and applying an agreement
whereby NOSSA Columbus Lines and Bank & Savill
Lines have agreed to cease and refrain from doing buss
ness with NOCS or otherwise cease and refrain from
handling using selling transporting or dealing in the
products of NOCS
3 The unfair labor practices found herein have an
effect upon commerce within the meaning of Section
2(6) and (7) of the Act
4 The Respondents have not engaged in any unfair
labor practices not specifically found herein
THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices in violation of Sections 8(b)(4)(B)
and 8(e) of the Act I shall recommend that they be or
deed to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act
[Recommended Order omitted from publication ]
when applied to certain warehousing practices and NOSSA took an am
biguous position with respect to enforcement of those Rules in the ware
housing context when it met with the local unions on April 25 through
April 27 thereby causing its members to have the containers stripped on
the piers instead of at the NOCS warehouse
14 As the cease and-desist orders in CC and CE cases run against the
unions their officers agents and representatives no useful purpose
would be served herein by holding lames McCleland Local 1497 s press
dent individually responsible for the unfair labor practices I note that no
party argues herein for such individual liability Cf Union Nacional de
Trabajadores 219 NLRB 405 (1975)