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March 23, 1970

Intercontinental Container Transport Corp., Plaintiff
New York Shipping Association, Inc. and International Longshoremen's Association, Defendants

Mansfield, D. J.

The opinion of the court was delivered by: MANSFIELD


In this action for a declaratory judgment, an injunction and treble damages against defendants for alleged Sherman Act violations destructive of plaintiff's business, plaintiff's motion for a preliminary injunction is countered by cross-motions to dismiss the complaint and for summary judgment by the two defendants.

 Defendant New York Shipping Association (hereinafter "NYSA") is a New York membership corporation composed of approximately 140 steamship companies, stevedores and other waterfront employers in the Port of New York. It is the certified collective bargaining representative for its employer-members, and helps to administer and enforce the provisions of the Master Contract between its members and the International Longshoremen's Association (hereinafter "ILA"). Defendant ILA is the certified collective bargaining representative for the longshoremen's locals whose members handle the loading and unloading of freight on the piers of the Port of New York. The ILA constitutes a single bargaining unit for the entire port, and bargains with the NYSA and its members only.

 Plaintiff Intercontinental Container Transport Corporation (hereinafter "ICTC") is a newcomer among the stevedoring and warehousing companies on the Port of New York scene. It engages in the specialized business of warehousing and consolidating "containerized" ocean freight at a waterfront facility in Port Newark, New Jersey. It does not itself load and unload ships. However, it "stuffs" cargo containers (i.e., packs them) at its premises located about two blocks from the docks and delivers the stuffed containers to the dock for loading on ships. It also picks up packed containers that have been unloaded from ships onto the dock and takes them to its premises where it "strips" them (i.e., removes cargo from the container) for forwarding of the contents to consignees.

 Cargo containers of the type handled by ICTC have, ever since their introduction in the late 1950's, been the focus of disputes between longshoremen and shippers over the development of automated cargo handling. A decade of intermittent labor warfare in the Port of New York over the issue was finally ended in 1968 by the negotiation of a General Cargo Agreement, pursuant to the Master Contract negotiated in that year between the NYSA and the ILA, which includes three special Rules on Containers. These Rules provide, in essence, that all containers meeting certain criteria (which, it appears, describe a large part of the containers passing through the Port of New York) must be stuffed and stripped on a waterfront facility, pier or dock by ILA longshore labor, paid and employed at longshore rates under the terms and conditions of the General Cargo Agreement. Any member of the NYSA taking delivery of containers which have passed over the docks without being so stuffed or stripped at the waterfront facility, pier or dock is liable under Rule 3(e) to a fine of $250 for each such container.

 Plaintiff ICTC received a temporary license from the Waterfront Commission of New York Harbor on July 24, 1969, authorizing it to engage in the performance of services in the warehousing and consolidating of ocean freight. Its attempts to operate a container station facility under that license have, however, run afoul of the containerization Rules of the General Cargo Agreement. Pursuant to Rule 3(e) one of its important customers has been fined $5,000 for ICTC's alleged violations of the Rules, and at least one shipping line has refused to handle containers stuffed or stripped by ICTC, presumably to avoid the imposition of similar fines. Plaintiff indicates that if such fines and boycotting continue it will be driven out of business. It has attempted, without success, to join the NYSA and to negotiate a collective agreement with the ILA.

 In imposing the fines referred to above, the NYSA-ILA Container Committee, which is charged with the enforcement of the Rules on Containers, did not specify precisely which provisions of the Rules plaintiff had violated. It appears, however, that ICTC was found either to have stuffed or stripped the offending containers with non-ILA labor, or to have done so elsewhere than at a "waterfront facility, pier or dock," or both.

 ICTC insists that in fact its stuffing and stripping is done with ILA labor, and that its premises do meet the requirement of the Rules on Containers that stuffing and stripping be done on a "waterfront facility, pier or dock." The main thrust of ICTC's complaint, however, is that the NYSA, by refusing to admit it to membership, and the ILA, by refusing to negotiate a collective agreement with it, are engaged in a conspiracy to prevent it from competing with the stevedore members of the NYSA, and that the adoption and enforcement of the Rules on Containers was intended and is designed to perpetuate the NYSA's monopoly over the servicing of containers in the Port of New York.

 Prior to the commencement of the operations under the temporary stevedoring license from the Waterfront Commission, ICTC applied for membership in the NYSA. No definite action was taken on its application until September 9, 1969, two weeks after the granting of the license. On that date Alexander Chopin, the chairman of the NYSA, informed ICTC that its application had been disapproved by the Association's Board of Directors because its business was confined to warehousing and the stuffing and stripping of containers, and did not extend to the normal stevedoring functions, performed by the general stevedores who qualify for membership in the Association, of loading and unloading ships at deep-sea piers and terminals. Six months previously, on March 13, the Association had advised ICTC that it could not qualify for membership as an "associate" member of the NYSA both because its services were not performed at the port's deep-sea piers and terminals and because it did not employ waterfront employees covered by collective bargaining agreements negotiated with the ILA by the NYSA.

 In an effort to remedy the latter ground for denial of membership, i.e., ICTC's lack of a collective bargaining agreement, plaintiff has made repeated efforts to negotiate a contract with certain ILA locals whose members it already hires on an informal basis. While the ILA has indicated its willingness to enter into a "warehouse collective bargaining agreement" with ICTC, it refuses to negotiate a "deep-sea agreement" with plaintiff. The union takes the position that so long as ICTC is not a member of the NYSA, longshoremen working for plaintiff would not receive the seniority rights, pension benefits and guaranteed annual wage provided for in the Master Contract between the NYSA and the ILA locals. Counsel for the ILA urged upon oral argument the additional ground that since plaintiff's business premises were not located immediately on the piers and docks of Port Newark, the union, which is strongly oriented to dockside operations, would be unable to police plaintiff's use of ILA labor and to assure itself that no outside workers were being employed. For ICTC's present purposes a "warehouse collective bargaining agreement" is useless, since once it agrees to have its premises treated as a warehouse rather than as a "waterfront facility " any containers coming from its premises would have to be restuffed and stripped by ILA longshore labor in accordance with the Rules on Containers in order to avoid fines under Rule 3(e).

 Apparently in an effort to meet the ILA's objection that longshoremen working for plaintiff do not qualify for benefits under the Master Contract as long as ICTC is not a member of NYSA, ICTC applied on September 15, 1969, for permission to participate as an affiliate of the NYSA-ILA Pension Trust Fund by contributing to the various benefits provided under the NYSA-ILA Master Contract, submitting contributions for that purpose by certified check. On September 26 the secretary of the Fund advised plaintiff that while certain non-members of the NYSA were allowed to become participating employers under the Pension Plan, this provision applied only to employers who had previously negotiated underlying collective bargaining agreements with the ILA (presumably these are the same employers who qualify only for "associate" membership in the NYSA: the marine carpenters, clerks, etc. performing services at the piers and terminals and covered by ILA contracts). Furthermore, plaintiff was advised by the Fund that the federal courts have held that employee benefit funds may not accept contributions from any employer absent an underlying written collective agreement.

 At this point plaintiff ICTC was understandably frustrated. The NYSA was refusing it regular membership because it did not perform the normal stevedoring operations of loading and unloading ships at piers, and refusing it associate membership because it did not have a contract with the ILA. The ILA, on the other hand, was refusing it a contract because (1) it was not a member of NYSA, and (2) it did not perform its operations on the piers or docks. Both the NYSA and the ILA in turn prevent it from continuing its operations by imposing fines on shippers using its services. Furthermore ICTC is thus prevented from conducting stuffing and stripping operations despite the fact that (1) it is licensed by the Waterfront Commission of New York Harbor and performs its operations within the Newark-Port Authority Marine Terminal complex, its premises being located therein only two blocks from the waterfront; (2) it hires ILA longshoremen to do its stuffing and stripping, and pays them at full General Cargo Agreement rates; (3) it is ready and willing to contribute to the NYSA-ILA Pension Trust Fund; and (4) many stevedore-members of the NYSA are engaged, like itself, in stuffing and stripping containers, in addition to their other stevedoring operations.

 On August 13, 1969, ICTC filed refusal-to-bargain charges against the ILA with the Regional Director of the NLRB, who refused to issue a complaint in the matter on the grounds that in the absence of any demand for recognition by a union, and subsequent recognition of the union by an employer, there is no obligation on the union to bargain or enter into any kind of agreement with the employer. On September 12, ICTC filed further charges against the ILA, alleging that in entering into and enforcing the provisions of the Rules on Containers, the ILA was encouraging customers of ICTC to refuse to do business with it and was agreeing with the NYSA that the latter's members should refuse to deal with ICTC, in violation of §§ 8(b)(4)(B) and 8(e) of the National Labor Relations Act. Again the Regional Director refused to issue a complaint, finding that the containerization provisions of the Master Contract were valid work preservation provisions, designed to protect the traditional work jurisdiction of the longshoremen. Plaintiff's appeals from these determinations are currently pending before the General Counsel of the NLRB.

 Concurrently with its attempts to procure administrative redress, ICTC commenced an action in the Supreme Court of New York against the NYSA and United States Lines, one of its members, which was removed to this court on September 8, 1969. The basis of the complaint was that the NYSA, by refusing to handle containers stuffed and stripped by ICTC, was seeking to prevent newcomers such as ICTC from establishing or continuing to operate a stuffing and stripping operation that competed with the business of NYSA members, thereby illegally restraining commerce and improperly interfering with plaintiff's right to do business. The injunctive relief sought would have prevented defendants from refusing to handle containers stuffed and stripped by ICTC; barred the imposition of fines upon ...

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