National Labor Relations Board v. International Longshoremen's Association, AFL-CIO

PETITIONER: National Labor Relations Board
RESPONDENT: International Longshoremen's Association, AFL-CIO
LOCATION: E.L. Aaron & Co., Inc.

DOCKET NO.: 79-1082
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 447 US 490 (1980)
ARGUED: Apr 22, 1980
DECIDED: Jun 20, 1980

ADVOCATES:
Constantine P. Lambos - on behalf of Respondents
J. Alan Lips - on behalf of Petitioner
Lawrence G. Wallace - on behalf of the Petitioner
Thomas W. Gleason, Jr. - on behalf of Respondents

Facts of the case

Question

Media for National Labor Relations Board v. International Longshoremen's Association, AFL-CIO

Audio Transcription for Oral Argument - April 22, 1980 in National Labor Relations Board v. International Longshoremen's Association, AFL-CIO

Warren E. Burger:

We will hear arguments first this morning in National Labor Relations Board against International Longshoremen's Association.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court.

Warren E. Burger:

Mr. Wallace.

Lawrence G. Wallace:

In this case, the Court of Appeals for the District of Columbia Circuit set aside the Decisions and Orders of the National Labor Relations Board in two separate cases which are the most recent in a series of Board Decisions dealing with the validity under the Anti-boycotting Provisions of the National Labor Relations Act of various provisions and applications of the Rules on Containers which are in the East Coast labor contract between the Respondent Union and the shipping companies governs major ports on the East Coast.

The Board Decisions, in our view, represent a consistent pattern of factual findings, inferences, and conclusions; and prior to the Decision in this Case, the Board Decisions had been upheld by three Courts of Appeals in various applications; and indeed, this Court had denied certiorari in one of those cases, the Conex case, a leading case, that the Second Circuit Court of Appeals had decided.

The Court below, in our view, drew different factual inferences from the Board; and on the basis of those inferences, rejected its conclusions thereby resulting in a conflict in the Circuits which requires resolution by late spring or early summer if the negotiations for the new labor contract are to proceed since we now have conflicting views expressed by the Courts of Appeals with respect to the Rules on Containers in cases that indeed involved the same Rules as applied to the Port of New York.

The particular incidents that led to the refusals to deal at issue here involved the consolidation of less than container load cargo into containers by freight forwarders in the Port of New York and so-called shortstopping, which was the stripping of containers as the unloading is called, that were full shipper's load incoming cargo, that were stripped by truckers in Baltimore and Hampton Roads port areas.

In both instances these incidents were performed within 50 miles of the port, and the essence of the Rules on Containers in the collective agreement, as here pertinent, is an attempt to reserve to the members of the responding union all stuffing and stripping of containers within 50 miles of the port; either by requiring duplication of the work or by imposing prohibitive fines found by the Board in this case to have the effect of requiring a boycott or by the explicit requirement of the refusal to deal with the offending companies.

And the essence of the Board's holding is that in this respect the Rules overreach; go beyond work preservation to an attempt to acquire work that had traditionally been performed by others.

The distinction between primary and secondary activity that has been drawn by this Court in the National Woodwork and Pipefitters cases.

As the Board viewed what had occurred here, the Respondent union was attempting to compensate for the increase in productivity caused by containerization and for the reduction in manhours therefore required on the docks by attempting to take away work traditionally done by others.

In essence, the Board's findings are that there have traditionally been two markets performing related but separate functions, depending on which market the shipper chose to utilize.

In some instances, the shipper would send goods directly to the pier loosely to be handled by the longshoremen and loaded or unloaded that way and picked up at the pier.

In many other instances, they worked both prior to and since containerization through what had been known as freight forwarders or freight agents whose function was to sort and consolidate cargo to provide for its expedition, to provide for its sequential handling at the pier, which would result in faster loading, less time that it would be subject to damage or assessed on the pier; and sequential unloading at the port of its destination.

And there had indeed been an evolution of the use of containers which we've recounted in some detail in our Reply Brief prior to the use of containerized ships which has been the big advance in technology and which has to a large extent, made the old cargo method of loading and unloading ships obsolete.

And all during this evolutionary process and indeed in the early years of the use of container ships, the same breakdown in work functions has existed and been carried forward until the response in these Rules on Containers.

Something of this background and traditions of functional differentiation in the industry will be elaborated by Mr. Lips who will be arguing next.

Now, as the Board viewed the case, and as we view it now, of course, it would be permissible for the Respondent union to seek to preserve the aspect of the work they have traditionally performed the on-pier stuffing and stripping of containers on behalf of shippers who choose to deliver their cargo without the services of these middlemen, the consolidators or freight forwarders.

They would have a right to take action against their employers if the employers were to subcontract the work that they had traditionally done on the pier, they might also seek to induce their employers to take measures to attract more business in this way by perhaps having the steamship companies make available, if they saw fit to, trucks to carry the goods to the pier and schedule the on-pier loading of containers in a way that would attract more of the business to the area where the Respondent union has traditionally done their work.

But the Rules on Containers go considerably beyond this kind of measured and proper response under the Labor Act and include, at least as an object which is enough under Section 8(b)(4) and under the Court's Decision in Pipefitters, the acquisition of the areas of work that have traditionally been performed by others.

They are, at least within the 50-mile zone, an effort to say that only the on-pier work can use the new technology; and those that have traditionally engaged in the off-pier practices must be denied the benefits of the new technology.

William H. Rehnquist:

As I read the Majority Opinion of the Court of Appeals, and I believe it was Judge Robb's Dissenting Opinion here, where he said that if a container is part of a whole -- a very large crate would have to be part of a whole, too -- I had the feeling that one would have to know the business pretty well to make a judgment on that.

And I had thought that that was a matter that was pretty much left to the Board subject to review by the Courts of Appeals for abusive discretion.

Lawrence G. Wallace:

Well, I couldn't agree more with that suggestion, Mr. Justice Rehnquist.

The Board has heard extensive evidence about this industry in case after case and necessarily has more cumulative information about the background of this industry and the practices than any reviewing Court of Appeals has been favored with and has drawn its inferences accordingly in what we believe to be a consistent pattern of decisions.

And with proper deference to the factual inferences drawn by the Board, there would have been a consistent pattern of Court of Appeals Decisions and really no need for this Court to be drawn into the area.

But there're only the two places where uniformity of result can be expected the Board or this Court, in the circumstances here.

Potter Stewart:

Only because there's only one of each.

Lawrence G. Wallace:

That is correct, Mr. Justice.

There are times when the Board's pattern of decisions may not be as consistent as it has been in this particular area, but here there has been a consistent pattern.