NATIONAL LABOR RELATIONS BOARD, PETITIONER V. INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, AFL-CIO, ET AL.

   No. 84-861

   In the Supreme Court of the United States

   October Term, 1984

   The Solicitor General, on behalf of the National Labor Relations
Board, petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Fourth Circuit in this
case.

   Petition For a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

                       PARTIES TO THE PROCEEDING

   The decision of the court of appeals was issued in four
consolidated cases seeking review or enforcement of decisions of the
National Labor Relations Board.  The International Longshoremen's
Association, AFL-CIO (ILA) appeared as petitioner in one of those
cases, intervenor in another, and respondent in the other two;  also
appearing as petitioner, intervenor, and respondent was the Council of
North Atlantic Shipping Associations.  Additional respondents were the
ILA Hampton Roads District Council;  the ILA Atlantic Coast District
Council;  the ILA District Council, Baltimore, Maryland;  ILA Locals
333, 846, 862, 921, 953, 970, 1248, 1355, 1416, 1416-A, 1429, 1458,
1526, 1526-A, 1624, 1680, 1736, 1783, 1784, 1819, 1840, 1922, and
1970, AFL-CIO;  the Hampton Roads Shipping Association;  Southeast
Florida Employers Port Association;  Coordinated Caribbean Transport,
Inc.; Chester, Blackburn & Roder, Inc.; Eagle, Inc.; Eller & Company,
Inc.; Harrington & Company, Inc.; Strachen Shipping Company;  and
Marine Terminals, Inc. American Trucking Association, Inc., Tidewater
Motor Truck Association, and the New York Shipping Association
appeared as petitioners and intervenors below.  The International
Association of NVOCCs, Florida Custom Brokers and Forwarders
Association, Inc., Twin Express, Inc., and International Container
Express, Inc., were petitioners below.  Houff Transfer, Inc.; the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America;  the American Warehousemen's Association;  and San
Juan Freight Forwarders, Inc., were intervenors below.  Under Rule
19.6 of the Rules of this Court, all of these parties are respondents
in this Court.

            TABLE OF CONTENTS
   Question Presented
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
      A. The factual background:
         1. Containerization and the shrinkage of longshore
            work
         2. Cargo handling by motor carriers, employees at
            inland warehouses, and freight consolidators
            before and after containerization
         3. The Rules on Containers
         4. Applications of the Rules to the handling of
            containerized cargo in the cases consolidated
            before the Board in this proceeding
            a. Penalties for shortstopping
            b. Pressure to eliminate stripping of FSL
               containers by warehouse employees integral to
               distribution and storage of imported merchandise
            c. Pressure to eliminate stuffing of FSL
               containers by warehouse employees integral to special
               services respecting goods for export by a single
               shipper
            d. Other instances of enforcement of the Rules
      B. ILA I
      C. The Board's decision and order on remand
      D. The decision of the court of appeals
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-30a) /1/ is
reported at 734 F.2d 966.  The decision and order of the National
Labor Relations Board (Pet. App. 35a-64a) and the decision of the
administrative law judge (Pet. App. 65a-258a) are reported at 266
N.L.R.B. 230.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 9, 1984.  A
petition for rehearing was denied on July 31, 1984 (Pet. App.
31a-34a).  On October 19, 1984, the Chief Justice extended the time in
which to file a petition for a writ of certiorari to November 28,
1984.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 8(b) of the National Labor Relations Act, 29 U.S.C. 158(b),
provides in pertinent part:

         It shall be an unfair labor practice for a labor organization
      or its agents --

                      *     *     *     *     *

         (4)(i) to engage in, or to induce or encourage any individual
      employed by any person engaged in commerce or in an industry
      affecting commerce to engage in, a strike or a refusal in the
      course of his employment to use, manufacture, process,
      transport, or otherwise handle or work on any goods, articles,
      materials, or commodities or to perform any service;  or (ii) to
      threaten, coerce, or restrain any person engaged in commerce or
      in an industry affecting commerce, where in either case an
      object thereof is --

                      *     *     *     *     *

         (B) forcing or requiring any person to cease using, selling,
      handling, transporting, or otherwise dealing in the products of
      any other producer, processor, or manufacturer, or to cease
      doing business with any other person, or forcing or requiring
      any other employer to recognize or bargain with a labor
      organization as the representative of his employees unless such
      labor organization has been certified as the representative of
      such employees under the provisions of section 159 of this
      title:  Provided, That nothing contained in this clause (B)
      shall be construed to make unlawful, where not otherwise
      unlawful, any primary strike or primary picketing * * *.

   Section 8(e) of the National Labor Relations Act, 29 U.S.C. 158(e),
provides in pertinent part:

         It shall be an unfair labor practice for any labor
      organization and any employer to enter into any contract or
      agreement, express or implied, whereby such employer ceases or
      refrains or agrees to cease or refrain from handling, using,
      selling, transporting or otherwise dealing in any of the
      products of any other employer, or to cease doing business with
      any other person, and any contract or agreement entered into
      heretofore or hereafter containing such an agreement shall be to
      such extent unenforcible and void * * *.

                          QUESTION PRESENTED

   Whether the National Labor Relations Board correctly concluded that
the collectively bargained rules governing the use of containers in
the shipping industry, in their application to certain widespread
practices of motor carriers and warehouses, lack a valid work
preservation objective and therefore constitute unlawful secondary
activity under Sections 8(b)(4)(B) and 8(e) of the National Labor
Relations Act, 29 U.S.C. 158(b)(4)(B) and 158(e).

                               STATEMENT

   This case concerns the Rules on Containers, which are part of
collective bargaining agreements between the International
Longshoremen's Association (ILA) and shipping industry employers.  The
Rules on Containers were adopted in response to a technological
innovation in the shipping industry and are designed to deal with the
impact of containerization on longshoremen's work.  In NLRB v. ILA
(ILA I), 447 U.S. 490 (1980), this Court vacated two decisions of the
National Labor Relations Board that had concluded that the Rules on
Containers and their enforcement constitute secondary activity
prohibited by Sections 8(b)(4) and 8(e) of the National Labor
Relations Act (NLRA), 29 U.S.C 158(b)(4) and (e).  On remand, the
Board consolidated those two proceedings with seven other proceedings
concerning the Rules on Containers.  The Board concluded that the
Rules violate the NLRA in their applications to a widespread practice
known as shortstopping and to traditional warehousing practices.  The
Board also concluded that the Rules are otherwise lawful.  The court
of appeals, disagr-eing with the Board in part, held that the Rules
are lawful in all respects.

                       A. The Factual Background

        1. Containerization and the Shrinkage of Longshore Work

   Containerization is a technological innovation that permits
individual pieces of cargo to be packed into a large, reusable metal
container that can be moved on and off an ocean vessel unopened.
Containers range in length from 20 to 40 feet and are capable of
holding upwards of 30,000 pounds of freight.  They can be fixed to a
truck chassis and transported unopened to and from the ocean pier, and
they fit into the holds of specially designed vessels known as
containerships.  Pet. App. 45a;  ILA I, 447 U.S. at 494.  The loading
of containers, by whomever performed, is known in the industry as
"stuffing";  the unloading of containers is known as "stripping." ILA
I, 447 U.S. at 497.  Containers that contain export cargo belonging to
more than one shipper or import cargo destined for more than one
consignee are known as LCL (less-than-container load) or LTL
(less-than-trailer load) cargo.  Containers that contain export cargo
from only one shipper or import cargo destined for only one consignee
are known as FSL (full shipper's load) containers.  Id. at 496-497.

   Before containerization, longshoremen employed by steamship
companies performed the work of loading and unloading cargo on the
piers.  In the Atlantic and Gulf ports concerned in this case,
longshoremen are represented by the International Longshoremen's
Association (ILA).  The longshoremen handled export cargo by moving it
from the tailgate of the delivery truck at the pier into the hold of
the vessel, using forklifts and slings or hooks;  they performed this
work in reverse in the unloading of import cargo.  The process
included intermediate steps such as storage, sorting, checking,
placing cargo on pallets, cargo repair, and carpentry.  Pet. App.
4a-5a, 46a;  C.A. App. 562-564, 630-631, 1168-1172, 1306-1307,
1336-1337, 1402-1404, 1442-1445, 1686-1688;  ILA I, 447 U.S. at 495.

   The growth of containerization /2/ greatly reduced the traditional
loading and unloading work performed by longshoremen.  Containers
eliminated the need for piece-by-piece (or "break-bulk") cargo
handling at the pier.  ILA I, 447 U.S. at 495-596;  Pet. App. 46a.
Export containers were stuffed before they reached the pier;  inport
containers were stripped after they left the pier.  With respect to
containerized cargo, it remained only for longshoremen to take the
containers on and off the vessel.  Longshoremen continued to load and
unload conventional cargo vessels in the traditional manner, to stuff
containers for cargo that arrived at the pier piecemeal, and to strip
containers for cargo scheduled to be picked up at the pier directly.
Pet. App. 46a-47a;  C.A. App. 566-567, 602, 635-636, 640-642, 677.

 2. Cargo Handling by Motor Carriers, Employees at Inland Warehouses,
and Freight Consolidators, Before and After Containerization

   Shipping companies own or lease virtually all containers carried on
ocean vessels.  They furnish these containers principally to the
shippers (or consignees) themselves and to three kinds of firms that
serve as agents for the shippers and consignees:  motor carriers,
warehouses, and freight consolidators.

   a. Motor carriers operate between inland points and the motor
carrier's terminal in the pier area and also between the terminal and
the pier (Pet. App. 46a, 54a, 132a-133a;  C.A. App. 256, 318-321,
427).  Before containerization, the motor carrier picked up import
cargo break-bulk from the pier.  Most commonly, the driver returned to
the truck terminal in the pier area where the motor carrier's
employees unload the trailer and then loaded the cargo into different
trucks for delivery to the consignees (C.A. App. 320-321, 427).  Cargo
picked up at the pier from a single shipper for a single nonlocal
consignee that filled one truck was brought to the terminal, where it
might be reloaded for several reasons -- to achieve weight
distribution for a long haul run, to meet road safety standards, to
allow sequential unloading, or to permit delivery of the cargo to
diverse inland locations in accordance with the consignee's directions
(Pet. App. 54a;  C.A. App. 320-321, 427).

   Motor carriers now haul empty and filled containers between the
pier and their off-pier terminals, as well as to various other inland
locations included warehouses and facilities of shippers and
consignees.  A carrier that handles import FSL containers -- as many
do exclusively or predominantly (C.A. App. 253, 460, 500) -- picks up
a sealed FSL import container from the pier, hitches the container to
the truck, and hauls it to the motor carrier's off-pier terminal (C.A.
App. 322, 459-460, 1089-1091, 1116-1118, 1125-1127, 1135-1136, 1144).
At the off-pier terminal, the carrier may treat the container in the
same way that it previously treated a truckload of break-bulk cargo
picked up from the pier and destined for a single consignee -- it may
either leave the container intact for delivery to the consignee or
strip the container and reload the cargo into an over-the-road truck
trailer.  The practice of stripping FSL loads prior to delivery to a
single consignee is known as "shortstopping." Pet. App. 27a, 54a-55a,
133a-134a;  C.A. App. 253, 320-321, 459-463, 488-491, 506-507,
1094-1095, 1143.

   Trucking companies shortstop containers for a variety of reasons
arising from the requirements of surface transportation and at no
extra charge to the consignee.  Like trailer loads of break-bulk cargo
picked up from the pier in the pre-container era, fully loaded
containers may exceed state highway weight limitations or be
overloaded, unbalanced or otherwise unsuitable for hauling long
distrances (Pet. App. 55a, 134a;  C.A. App. 258-259, 494, 509, 1088,
1094-1095, 1096, 1098-1100, 1111-1112, 1130, 1146-1147).  Containers
also may be incompatible with conventional truck tractor equipment
used for long-distance hauling.  It is often more efficient to
consolidate the contents of two 20-foot containers into one 45-foot
truck trailer.  And by using their own trailers instead of containers,
trucking companies also avoid maintenance costs and per diem charges
on containers.  Pet. App. 55a, 134a;  C.A. App. 253-254, 258-259, 323,
433-434, 470-471, 493-494, 508-511, 1096, 1098-1099, 1112, 1118-1120,
1130, 1137-1139, 1146-1147.

   b. Inland warehouses store cargo for indefinite periods and
distribute the cargo according to the owner's instructions;  this
enables the owner to meet the shifting or unexpected demands of its
customers or the branches of its operation without having the cargo
shipped to its central plant unnecessarily.  Importers arrange with
the warehouse to pick up cargo at the pier.  Upon delivery of import
cargo to the warehouse, warehouse employees, before containerization,
unloaded the truck, sorted, segregated, and palletized the cargo, and
placed it in designated storage areas.  There it was stored until the
consignee instructed the warehouse to distribute or deliver all or a
portion of the cargo either to the consignee or to a designated
customer or branch outlet of the consignee (Pet. App. 55a-56a;  C.A.
App. 467-469).  In some cases, stored crates or cases of cargo were
broken down and individual pieces of merchandise were delivered as
directed by the consignee (C.A. App. 466-467).

   Since containerization, warehouse employees, instead of stripping
truck trailers filled with import cargo, have stripped containers that
have been picked up from the pier and delivered unopened to the
warehouse.  The warehouse employees then frequently perform the same
tasks as before containerization -- they sort, label, and place the
cargo on pallets in order to store it in a designated location to
await the owner's instructions on distribution (C.A. App. 431-432,
467, 535-536).

   Some warehouses also provide warehousing services for export cargo
sent by a single shipper.  For example, before containerization, one
warehouse stored small lots of cargo for later consolidation and
shipment with additional cargo sent by the same shipper (Pet. App.
144a n.58;  C.A. App. 469-470).  Another warehouse picked up
merchandise from a customer's manufacturer and assembled truckloads of
cargo for each of the customer's overseas branch outlets (Pet. App.
144a n.58;  C.A. App. 385-386).  Since containerization, warehouses
have continued to perform such services, although now they combine
designated stored cargo for shipment in FSL containers (Pet. App. 144a
n.58;  C.A. App. 376, 389-390).  In connection with stuffing FSL
export containers, warehouses also may perform specialized services
for handling and packing cargo (Pet. App. 126a n.46;  C.A. App. 500).

   c. Freight consolidators combine goods of various shippers in a
single shipment at an off-pier terminal and deliver the container
enclosing that shipment to the pier (Pet. App. 52a-53a, 124a n.43;
ILA I, 447 U.S. at 496 n.8).  The extensive scale of off-pier
stripping and stuffing -- particularly the operations of freight
consolidators known as non-vessel operating common carriers (NVOCCs)
-- has been encouraged by a rate structure under which shipping
companies charge less for transporting a shipper's cargo when it has
been combined with other shippers' cargo in a single container than
they charge for transporting that same cargo delievered to the pier in
break-bulk fashion to be stuffed into a container at the pier (Pet.
App. 127a-129a;  C.A. App. 267, 326, 352, 443, 446, 498, 529, 544,
603-604, 865-871, 1316, 1333-1334, 2491-2496).  In addition, shippers
frequently seek to avoid having cargo handled in break-bulk fashion at
the pier because, among other things, there is a greater danger of
pilferage and damage (see ILA I, 447 U.S. at 494).

                      3. The Rules on Containers

   The ILA, representing longshoremen in Atlantic and Gulf ports, and
the Council of North Atlantic Shipping Associations (CONASA), an
organization of shipping associations whose members are steamship
companies and stevedoring companies operating out of North Atlantic
ports, have negotiated a series of collective bargaining agreements
incorporating provisions known as the Rules on Containers.  Those
agreements have been treated as master agreements and have been
adopted by the ILA and multi-employer associations in every major
Atlantic and Gulf port (Pet. App. 47a, 96a-97a & n.23;  C.A. App.
1084, 1157, 1189).  /3/

   The Rules require that, with one exception, all containers (whether
LCL or FSL) that would otherwise be stuffed or stripped within 50
miles of the port by employees other than those of the beneficial
owner of the cargo must be stuffed or stripped by ILA-represented
longshoremen on the pier.  The exception is for FSL import container
cargo where the cargo is to be warehoused at a bona fide warehouse for
a minimun of 30 days.  The Rules also state that trucking stations
within the 50-mile geographic area used for unloading of containers do
not constitute bona fide public warehouses (Pet. App. 103a,
232a-233a).  /4/

   The Rules forbid the signatory steamship companies from supplying
containers to any facility operating in violation of the Rules.  The
Rules also require steamship companies that fail to comply with the
Rules and that release or handle a container that should have been
stuffed or stripped on the pier by ILA longshoremen to pay liquidated
damages of $1,000 per container into the Container Royalty Fund.  Pet.
App. 11a, 47a, 103a, 228a-229a.

 4. Applications of the Rules to the Handling of Containerized Cargo
in the Cases Consolidated Before the Board in this Proceeding

   In the cases before the Board in this proceeding, the Rules were
enforced, beginning in February 1973, with respect to containers
released to NVOCCs operating within 50 miles of the Ports of New York,
Baltimore, and Hampton Roads;  with respect to carriers shortstopping
FSL containers at terminals within 50 miles of the ports of Baltimore
and Hampton Roads;  and with respect to warehouses stuffing and
stripping containers within 50 miles of the ports of Philadelphia and
Baltimore.  /5/

                    a. Penalties for shortstopping

   As recounted in ILA, I, Houff Transport, Inc. (Houff) and
Associated Transport, Inc. (Associated) were common carriers that
operated motor freight terminals within 50 miles of the Ports of
Baltimore and Hampton Roads.  ILA I, 447 U.S. at 501;  ILA (Associated
Transport, Inc.), 231 N.L.R.B. 351, 358 (1977), enforcement denied,
613 F.2d 890 (D.C. Cir. 1979), remanded, 447 U.S. 490 (1980).  In
1974, employees of Houff and Associated stripped containers they had
picked up at piers in the nearby ports and loaded the cargo into
trailers for over-the-road transport to the consignees;  in the case
of Houff, its truckdriver had specifically noted that the containers
were dangerously overloaded.  ILA I, 447 U.S. at 501;  Associated
Transport, 231 N.L.R.B. at 362;  Pet. App. 176a.  The shipping
companies that leased the containers in question were subsequently
assessed liquidated damages under the Rules for each container, and
when Houff and Associated refused to indemnify the companies for the
fines, each carrier was threatened with cancellation of the agreement
under which it leased containers.  Ibid.

 b. Pressure to eliminate stripping of FSL containers by warehouse
employees integral to distribution and storage of imported merchandise

   The Terminal Corporation is a bona fide warehouse within the
meaning of the Rules operating within 50 miles of the port of
Baltimore.  In 1978 and 1979, it received FSL containers of firebrick
from a German manufacturer;  according to the usual practice, German
employees stuffed the containers, ILA labor in Baltimore unloaded them
from the ship, and Terminal drivers attached the containers to
tractors and drove them back to the warehouse, where other Terminal
employees stripped the containers, separating out the firebrick
already sold for distribution and storing the rest for future
distribution pursuant to the instructions of the manufacturer.  Stored
fivebrick was sometimes distributed in less than 30 days and sometimes
held for more than 30 days, depending on the orders.  Pet. App. 179a;
ILA (Terminal Corp.), 250 N.L.R.B. 8, 10-11 (1980).

   In March 1979, agents of ILA, its Atlantic Coast District, and two
ILA locals induced members employed by a stevedoring contractor to
engage in a temporary refusal to release containers to Terminal
because the shipping papers did not contain the 30-day warehousing
language required by the Rules.  Pet. App. 179a-180a;  Terminal Corp.,
250 N.L.R.B. at 11.

 c. Pressure to eliminate stuffing of FSL containers by warehouse
employees integral to special services respecting goods for export by
a single shipper

   Beck Arabia, Ltd., is engaged in various construction projects in
Saudi Arabia;  from its offices in Texas it orders a variety of items
from a number of American suppliers for use in the Saudi projects.
Under an arrangement between Beck and Shipside Packing Company, a firm
that maintains a general warehouse and packing operation near the Port
of Baltimore, Beck's suppliers ship the items to Shipside, which
stores them temporarily until receiving orders from Beck to
consolidate particular groups of items for shipment on specified
vessels.  Shipside employees then stuff FSL containers for delivery to
the pier by contract motor carriers.  In August 1978, an agent of an
ILA local induced ILA members employed by a stevedoring company to
refuse to load the containers onto a ship because the ILA regarded
their stuffing by non-ILA labor to be a violation of the Rules.  Pet.
App. 181a-182a;  ILA Local 953 (Beck Arabia, Ltd.), 245 N.L.R.B. 1325
(1979).

            d. Other instances of enforcement of the Rules

   On a number of occasions, enforcement of the Rules has been sought
with respect to stripping or stuffing of LCL containers by NVOCCs or
other freight consolidators.  Pet. App. 175a-176a;  ILA (Consolidated
Express, Inc.), 221 N.L.R.B. 956 (1975), enforced, 537 F.2d 706 (2d
Cir. 1976), cert. denied, 429 U.S. 1041 (1977);  ILA Local 1408
(Puerto Rico Marine Management, Inc.), 245 N.L.R.B. 1320 (1979);  ILA
(Dolphin Forwarding, Inc.), 236 N.L.R.B. 525 (1978), enforcement
denied, 613 F.2d 890 (D.C. Cir. 1979), remanded, 447 U.S. 490 (1980).
ILA affiliates have exerted coercive pressures with respect to the
stripping of cold storage containers by warehouse employees who
performed services similar to those performed by ILA labor in
stripping containers in pier-side cold storage facilities (Pet. App.
176a-179a);  ILA Local 1242 (Hill Creek Farms, Inc.), Board Case No.s
4-CC-1133, 4-CE-55 (June 27, 1979)).  ILA coercive pressures have also
been directed at the stuffing of export containers by warehouse
employees who performed no related specialized warehousing services
(Pet. App. 179a-181a;  Terminal Corp., 250 N.L.R.B. at 11-12).

                               B. ILA I

   The Board initially concluded that the Rules violated Sections
8(b)(4)(ii)(B) and 8(e) in all their applications because their
objective was not to preserve the work of bargaining unite employees
but to acquire work that had been performed by employees outside the
bargaining unit.  See NLRB v. Enterprise Ass'n of Pipefitters, 429
U.S. 507, 517 (1977);  National Woodwork Manufacturers Ass'n v. NLRB,
386 U.S. 612, 644-645 (1967).  In ILA I, this Court ruled that the
Board's definition of the work at issue -- "'the off-pier stuffing and
stripping of containers'" (447 U.S. at 506;  citation omitted) -- was
"incorrect as a matter of law" (id. at 507) because the Board "focused
on the work done by the employees of the charging parties, the
truckers and consolidators, after the introduction of containerized
shipping (ibid.).  The Court held that "the Board must focus on the
work of the bargaining unit employees, not on the work of other
employees who may be doing the same or similar work" (ibid.).

   The Court declined to address the question whether the Rules have a
valid work preservation objective, however, because the Board had "not
had an opportunity to consider th(is) question() in relation to a
proper understanding of the work at issue." 447 U.S. at 511.  The
Court explained the issue as follows (id. at 510-511;  footnotes
omitted):

         (The ILA and the shipping companies) assert that the stuffing
      and stripping reserved for the ILA by the Rules is functionally
      equivalent to their former work of handling break-bulk cargo at
      the pier.  (The freight consolidators, truckers, and
      warehouses), on the other hand, argue that containerization has
      worked such fundamental changes in the industry that the work
      formerly done at the pier by both longshoremen and employees of
      motor carriers has been completely eliminated.

         These questions are not appropriate for initial consideration
      by reviewing courts.  They are properly raised before the Board,
      whose determinations are, of course, entitled to deference.  * *
      * We emphasize that neither our decision nor that of the Court
      of Appeals implies that the result of the Board's consideration
      of this case is foreordained.  Viewing the work allegedly to be
      preserved by the Rules from the proper perspective, the Board
      will be free to determine whether the Rules represent a lawful
      attempt to preserve traditional longshore work, or whether,
      instead, they are "tactically calculated to satisfy union
      objectives elsewhere," National Woodwork, 386 U.S., at 644.

The Court emphasized the limited nature of its ruling (447 U.S. at 511
n.26):  "Our holding, we repeat, is that the Board's definition of the
work in controversy was erroneous as a matter of law.  The question
whether the Rules may be sustained under a proper understanding of the
work preservation doctrine must be answered first by the Board on
remand."

              C. The Board's Decision and Order on Remand

   On remand, the Administrative Law Judge concluded that the Rules
were invalid insofar as they applied to shortstopping and container
stripping and stuffing integral to traditional warehousing practices.
The ALJ concluded that the Rules were valid in other respects.  The
ALJ explained his ruling with respect to shortstopping as follows
(Pet. App. 133a-135a;  emphasis in original):

      By virtue of this practice, FSL containers are stripped at truck
      stations and terminals within the geographic area covered by the
      Rules for a variety of reasons associated with the economics of
      surface transportation. * * * Over-the-road tractor-trailers are
      up to 45 feet in length, and therefore have a capacity exceeding
      that of the modern containers.  Interstate carriers will upon
      occasion strip the smaller containers, consolidate the cargo
      they contain with other goods destined for the same area and
      load the consolidated cargo into a 45 foot tractor-trailer.  In
      addition, many interstate carrier systems interchange trailers
      at inland points for use within a multistate system.  Containers
      have no utility within that system and if transported over the
      road, would have to be hauled empty back to the port area on a
      "dead head" run.  Short-stopping may also occur because
      containers may not have (been) loaded in a safe manner or in
      compliance with State laws regulating safety of operation on the
      highways.  Other grounds for short-stopping include the fact
      that (a) motor carrier is required to pay per diem charges on
      containers, a practice which is wasteful while empty trailers
      sit idle and are subject to utilization without additional
      operating cost.

         Based on the foregoing, it appears that the practice of
      short-stopping is rooted in traditional motor carrier transport
      cargo handling procedure, which is performed by motor carriers
      for their own benefit and convenience.  To the extent that
      containers are handled for such purposes, and not under
      direction or for the benefit of shippers, cosignees or their
      agents, short-stopping has no relevance to the marine leg of the
      intermodal network.  Although skills utilized therein are
      indistinct from those of deepsea longshoremen in the performance
      of their traditional duties, it is work assumed for a different
      purpose, and in a different segment of the transportation
      industry.  Short-stopping is simply a carrier oriented, as
      distinguished from consumer oriented service, and as such
      neither competes with marine cargo handling nor amounts to a
      subterfuge to oust longshoremen of their traditional work.

   The ALJ similarly determined that the Rules were unlawful as
applied to traditional warehousing practices (Pet. App. 138a):

      (T)he public inland warehouse has always provided an
      intermediate freight distribution service whereby cargo could be
      stored for a term dictated by the owner's market demand.

         To this extent, warehousing practices did not change after
      containerization.  Instead of stripping truck-trailers upon
      arrival at the warehouse docks, the container was stripped.

   The ALJ upheld the Rules, however, insofar as they applied to
freight consolidators, including both NVOCCs and warehouses that
function not in their traditional role but as freight consolidators
(Pet. App. 123a-132a, 139a-145a).  The ALJ remarked that "there is
some logic to the notion that if consolidation in containers is to be
performed within the port area, it just as conveniently could be
performed on the pier by longshoremen" (id. at 131a) and concluded
that insofar as the Rules claim the offshore stripping and stuffing
performed by NVOCCs within 50 miles of the port, they "constitute() a
rational effort to return to the piers, work diverted by inducements
and * * * technology" (id. at 129a-130a).  /6/

   The Board "agree(d) with the Administrative Law Judge's findings
and conclusions" (Pet. App. 57a).  The Board explicitly 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 ILA."
Ibid. The Board noted that "no new work was created for consolidators
after containerized shipping began." Id. at 59a.  Instead, a "large
part of the longshoremen's traditional work was diverted away from the
pier to the consolidators." Ibid. The Board accordingly concluded that
"the ILA had a lawful work preservation objective in claiming this
work under the Rules." Ibid.

   The Board modified the ALJ's rationale for concluding that the
Rules were unlawful as applied to shortstripping and traditional
warehousing functions, but it agreed with his conclusion (ibid.):

         The Administrative Law Judge also found that no new work was
      created by containerization for trucking and warehousing
      employees.  Further, in contrast to consolidation, no work was
      diverted away from the pier to the truckers and warehouses as a
      result of containerization, at least as to those shortstopping
      and traditional warehousing services involved where he found
      violations.  Rather, after containerization, some of the
      traditional loading and unloading work of the longshoremen,
      which had historically been duplicated by trucking and
      warehousing employees, essentially was eliminated.  While we
      agree with the Administrative Law Judge's conclusion that the
      ILA had an unlawful work acquisition objective in claiming this
      loading and unloading work * * *, 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 longshorement,
      in handling cargo which is then rehandled by truckers and
      warehouses, no longer exists as a step in the cargo-handling
      process. * * *

                D. The Decision of the Court of Appeals

   The court of appeals held that "the Rules are valid in all
respects" (Pet. App. 4a).  It accordingly sustained the Board's order
insofar as it upheld the lawfulness of the Rules, but denied
enforcement of the order insofar as it held unlawful the Rules'
application to shortstopping and certain warehousing practices.

   The court held (Pet. App. 27a) that the Board erred as matter of
law when it concluded that, because the Rules as applied to
shortstopping and traditional warehousing practices "sought to
preserve for the longshoremen work that had been rendered superfluous
by the change in technology and not work that had been diverted to
others," the Rules violated the Act in those applications.  The court
of appeals acknowledged that containerization had essentially not
altered the truckers' work and had made the longshoremen's work
unnecessary (ibid.):

         Prior to containerization, both the longshoremen and the
      truckers handled the break-bulk cargo as it moved from the ship
      to the consignee. * * * With containerization, the off-pier work
      of the shortstopping truckers remains essentially unchanged
      except that they unload cargo from containers instead of motor
      trucks.  And with containerization, of course, the work formerly
      performed by the longshoremen has been rendered unnecessary
      because the container can be fastened to the chassis of a truck
      and transported intact to the trucking terminal or freight
      station.

   Nonetheless, the court of appeals ruled that the Board's conclusion
that the application of the Rules to shortstopping does not have a
valid work preservation objective was erroneous for the following
reason (Pet. App. 27a-28a):

      (T)he Board conspicuously failed to ground this conclusion * * *
      in the only finding of fact that might support it:  that the
      Rules, in preserving for ILA members the right to do this
      initial loading and unloading, somehow deprive the truckers and
      warehousemen of their off-pier work by transferring all or some
      of it to longshoremen at the pier.  Put another way, the Board
      hung the "work acquisition" tag on the Rules in these two
      instances without a finding that the longshoremen acquired
      anything. * * * (O)ne cannot possibly maintain that the
      stripping of import containers at the pier would in any way
      prevent the identical off-pier work.  To repeat, truckers and
      warehousemen do precisely what they did before the change in
      technology;  the longshoremen have acquired none of that work.
      Although the longshoremen's work in this process may well
      duplicate the off-pier work of truckers and warehousemen,
      calling this set of circumstances "work acquisition" strikes us
      as particularly inappropriate.  /7/

   Three judges of the court of appeals voted to rehear the case en
banc (Pet. App. 33a).

                   REASONS FOR GRANTING THE PETITION

   The Rules on Containers are incorporated in the collective
bargaining agreements in effect at every major Atlantic and Gulf port.
 In ILA I, this Court noted the importance and practical significance
of the question whether the Rules are lawful.  447 U.S. at 493;  see
id. at 494-496.  The Rules determine the extent to which shippers can
take advantage of the potentially enormous savings made possible by
the growth of containerization (ibid.);  in addition, controversies
over the treatment of containers -- controversies which are made more
problematic by the uncertain legal status of the Rules -- have been a
frequent cause of industrial strife in the shipping industry (see Pet.
App. 97a, 98a, 99a, 101a, 103a-104a).

   The Court should grant this petition and the other petitions
seeking review of the court of appeals' decision /8/ in order to
resolve this important issue.  While there is no conflict among the
circuits, as there was at the time of ILA I, there is a substantial
likelihood that no other court of appeals will have an opportunity to
address the validity of the Rules, and that therefore no other case
will come to this Court in which that issue is presented.  In
addition, the holding of the court below that the Rules are lawful as
applied to shortstopping and traditional warehousing work cannot be
reconciled with this Court's opinion in ILA I;  and because of the
prevalence of those practices, that aspect of the decision alone
affects many persons and is of considerable economic importance.
Further review is therefore warranted.

   1.a. The court of appeals' decision, insofar as it overturns the
Board's determination, rests on a fundamental misunderstanding of both
the "work preservation" doctrine and this Court's decision in ILA I.
Section 8(e) of the National Labor Relations Act, 29 U.S.C. 158(e), by
its terms, prohibits employers and unions from agreeing that the
employer will cease doing business with another person.  The Rules on
Containers, at first blush, appear to fall within this proscription;
they require shipping companies not to supply containers to other
persons, unless those persons permit the containers to be stuffed and
stripped by employees represented by the ILA under the circumstances
specified in the Rules.  But this Court has held that Section 8(e)
applies only to secondary activity, not to activity serving a
legitimate primary purpose.  See ILA I, 447 U.S. at 504;  Pipefitters,
429 U.S. at 517;  National Woodwork, 386 U.S. at 620, 635.  Similarly,
if a union applies pressure in an effort to enforce a provision of a
collective bargaining agreement that violates Section 8(e), its
activity violates Section 8(b)(4)(B), 29 U.S.C. 158(b)(4)(B), which
also proscribes only secondary activity.

   "Among the primary purposes protected by the Act is 'the purpose of
preserving for the contracting employees themselves work traditionally
done by them.'" ILA I, 447 U.S. at 504, quoting Pipefitters, 429 U.S.
at 517;  see National Woodwork, 386 U.S. at 629.  The Board concluded
that the Rules have a valid work preservation objective as applied to
the freight consolidators because their work "is functionally
equivalent to (the longshoremen's) former work of handling break-bulk
cargo at the pier." ILA I, 447 U.S. at 510 (footnote omitted).
Formerly, break-bulk cargo is delivered to the freight consolidator,
which places it in a container that will be transferred to the hold.
The Board concluded that containerization (and other factors) caused
this work to be moved off the pier but did not eliminate it;  the
longshoremen were accordingly entitled to claim it back.  See Pet.
App. 58a-59a.

   The Board also concluded, however, that shortstopping and stuffing
and stripping integral to traditional warehousing practices are not
"work traditionally done by" longshoremen.  Instead, these practices
constitute work traditionally done by other employees -- the employees
of motor carriers and warehouses -- for purposes quite distinct from
the traditional purposes of longshoremen's work.  Specifically, this
work is done for purposes integrally connected to warehousing or to
movement by motor carrier, such as the need to satisfy weight or
balance requirements or to obtain the most efficient use of trucks and
trailers.  Longshoremen have never performed loading or unloading work
for these purposes, and the Board concluded that the longshoremen
could not claim this work just because their work may physically
resemble it and require the same skills.  See Pet. App. 134a-137a.
Thus, these applications of the Rules are unlawful because this is "a
case of a union seeking to restrict by contract * * * an employer with
respect to the (third parties with whom it deals), for the purpose of
acquiring for its members work that had not previously been their."
National Woodwork, 386 U.S. at 648 (Harlan, J., concurring).  See also
Pipefitters, 429 U.S. at 530 n.16.

   b. The court of appeals rejected the Board's analysis for one
reason alone:  the Rules were lawful, the court held, because they did
not "deprive the truckers and warehousemen of their off-pier work"
(Pet. App. 27a;  emphasis in original).  The court of appeals reasoned
that the longshoremen cannot be said to have unlawfully "acquired"
work unless they acquired it from the other employees, thereby leaving
the others with less work.  There are at least three errors in the
court of appeals' reasoning.

   First, there is no basis for the court of appeals' gloss on the
"work preservation" doctrine;  that doctrine does not refer to the
extent to which others are deprived of work.  As this Court remarked
in a different context in ILA I, "(t)he effect of work preservation
agreements on the employment opportunities of employees not
represented by the union * * * is * * * irrelevant to the validity of
the agreement" (447 U.S. at 507 n.22).  This Court has never suggested
that a union is entitled to engage in secondary activity in order to
acquire new work that did not traditionally belong to its employees so
long as it does not deprive other employees of their work.  On the
contrary, as the name of the work preservation doctrine suggests, and
as the Court emphasized in ILA I itself, the question is whether the
work claimed by the bargaining unit employees is sufficiently related
to the work they have traditionally performed.  "(T)o determine
whether an agreement seeks no more than to preserve the work of
bargaining unit members, the Board must focus on the work of the
bargaining unit employees, not on the work of other employees who may
be doing the same or similar work" (ILA I, 447 U.S. at 507 (footnote
omitted)).  See id. at 510 & n.24 (The legality of the agreement "will
depend on how closely the parties have tailored their agreement to the
objective of preserving the essence of the traditional work
patters.");  National Woodwork, 386 U.S. at 646 (upholding Board
determination that "the conduct of the Union * * * related solely to
preservation of the traditional tasks of" bargaining unit employees).

   Second, the court of appeals overlooked the fact that this Court in
ILA I specifically contemplated that the Board might find the Rules
unlawful because "containerization has worked such fundamental changes
in the industry that the work formerly done at the pier by * * *
longshoremen * * * has been completely eliminated." 447 U.S. at
510-511.  The Board explicitly found, with respect to shortstopping
and traditional warehousing practices, that the longshoremen's work
has been eliminated.  See Pet. App. 59a-60a.  For example, as the
court of appeals itself recognized (id. at 27a), because an import FSL
container can be attached to a truck chassis and taken on the road to
the owner, the work of the longshoremen -- unloading the break bulk
cargo from the ship and placing it at the head of the peir for
collection by a truck -- has been eliminated.  The fact that the motor
carrier might, for its own purposes, rearrange its truck loads,
stripping the container in the process -- that is, shortstopping --
does not alter the fact that the longshoremen's work has been
eliminated.

   The court of appeals did not explain how its conclusion can be
squared with this Court's statement about the elimination of work in
ILA I and the Board's finding that certain work of the longshoremen
had been eliminated.  This Court, in suggesting that the Board might
find that the Rules do not serve a valid work preservation objective
because the longshoremen's work had been eliminated, did not intimate
that the Board must also find that the Rules deprive other employees
of work;  an agreement that attempts to regain for a bargaining unit
work that has been eliminated by technological innovation will not
necessarily deprive other employees of work.

   Finally, the court of appeals simply assumed that, in fact, the
Rules have no effect on the employees of motor carriers engaged in
shortstopping or of warehouses engaged in traditional warehousing
practices.  In making this assumption, however, the court of appeals
failed to give the proper deference to the Board's determination that
the longshoremen's work had been eliminated and to the finding of the
ALJ, upheld by the Board, that the work the longshoremen were seeking
to acquire was traditionally that of other employees.  Pet. App.
57a-59a.  Moreover, the court of appeals' assumption ignores the
economic realities underlying the Board's determination that the
longshoremen's work had been eliminated.  The court assumed that
enforcement of the Rules would simply reestablish an initial,
duplicative break-bulk handling by longshoremen and leave the inland
work patterns of truckers and warehouses unaffected.  But break-bulk
handling is labor intensive and costly, and a second break-bulk
handling creates an additional risk of lost or damaged goods.  Any
process requiring a second such handling therefore suffers a
significant economic disadvantage;  this is precisely why
containerization grew in the first place.  See 447 U.S. at 494-495.

   The more reasonable assumption, therefore, is not that the
longshoremen will do duplicative work but that the industry will
develop practices that avoid an unnecessary break-bulk handling.  For
example, facilities at the pier might be modified so that longshoremen
can perform the integrated tasks previously performed by truckers and
warehouse employees -- in which event the longshoremen would have
directly deprived the other employees of their work, contrary to the
court of appeals' assumption.  Alternatively, if it is possible --
which it will not always be (see C.A. App. 494, 509, 1094, 1112) --
cargo might be diverted to truck terminals and warehouses beyond the
50-mile limit covered by the Rules (see C.A. App. 474, 538), a step
that would also deprive certain motor carrier and warehouse employees
of work.

   2. As we have noted, and as the Court recognized in ILA I, the
question whether the Rules are valid is of great economic importance
to the shipping industry and to those who rely on it.  Moreover, a
definitive resolution of the validity of the Rules will promote
stability in the collective bargaining process in the shipping
industry.  /9/ While this petition concerns only certain applications
of the Rules, other petitions for a writ of certiorari have been filed
seeking review of the judgment of the court of appeals insofar as it
upheld the Board's determination that other applications of the Rules
were lawful.  See page 22 note 8, supra.

   In addition, the question presented by this petition is itself of
considerable practical importance because shortstopping and the
warehouse practices at issue here are widespread activities.  For
example, in one of the ports involved in this litigation -- Hampton
Roads -- one of the five long-haul carriers whose practices are
reflected in the record shortstopped all of its loads, and a second
shortstopped 90 percent, before the Urles were enforced against them.
C.A. App. 493-494, 507.

   The absence of a conflict among the circuits is, in our view, not a
sufficient reason for the Court to deny certiorari, in light of the
economic importance of the question presented and the conflict of the
decision below with this Court's rationale in ILA I.  See this Court's
Rule 17.1(c).  Moreover, there is a reasonable likelihood that this
case will present the only opportunity for the Court to consider the
validity of the Rules.  The ILA is a party to each of the collective
bargaining agreements that contains the Rules.  The ILA can be
expected to assert in other circuits that the Board is collaterally
estopped from challenging the decision of the court below that the
Rules are valid as applied to shortstopping and warehousing practices.
 /10/ See United States v. Stauffer Chemical Co., No. 82-1448 (Jan.
10, 1984).  While the Board does not agree with this contention, it is
not insubstantial and may be sustained by other courts of appeals or
by this Court.  See Walsh v. ILA, 630 F.2d 864, 871-873 (1st Cir.
1980).  In that event the Board would have no other opportunity to
raise this question on the merits before this Court.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ROSEMARY M. COLLYER

      General Counsel

   JOHN E. HIGGINS, JR.

      Deputy General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   ELINOR HADLEY STILLMAN

   PATRICK J. SZYMANSKI

      Attorneys National Labor Relations Board

   NOVEMBER 1984

   /1/ "Pet. App." refers to the appendix filed jointly by the
petitioners in Nos. 84-677, 84-684, 84-691, and 84-696.  "C.A. App."
refers to the joint appendix filed in the court of appeals.

   /2/ The first containership appeared in 1957, and the use of such
ships, growing gradually at first, dramatically increased in the late
1960s and early 1970s (Pet. App. 5a-9a, 96a, 98a-100a & n.26;  C.A.
App. 634-635, 1457, 1486-1487;  ILA I, 447 U.S. at 497 n.11).

   /3/ For the purposes of this case, the Rules in their essentially
final form appeared in the 1974-1977 agreement negotiated by ILA and
CONASA, as clarified by a restatement pertaining to warehousing of
goods issued in 1975 (Pet. App. 87a, 103a-104a, 106a n.29, 222a-234a).
 The text of the Rules reprinted in the appendix to the Court's
opinion in ILA I (447 U.S. at 513-522) is the 1974-1977 version as
amended by the 1975 clarifying statement, and it it resembles in all
significant respects the Rules as incorporated in the parties'
agreement negotiated in 1980 (Pet. App. 103a-104a, 237a-238a).

   For a discussion of the history of negotiations over the use of
containers and of the versions of the Rules included in collective
bargaining agreements prior to 1974, see ILA I, 447 U.S. at 497-499.

   /4/ The Rules do not apply to containers loaded or discharged
outside the 50-mile geographic area, loaded or discharged at a
qualified consignee's facility by its own employees, export containers
loaded with cargo of a single manufacturer, containers of personal
household goods, mail, and military personnel's personal effects, or
containers carrying cargo in the intercoastal trade (Pet. App.
225a-226a).

   /5/ Between 1973 and 1979, the Board's General Counsel issued
unfair labor practice complaints alleging that the Rules violated
provisions of the National Labor Relations Act and obtained
injunctions against their enforcement in several ports.  Balicer v.
ILA, 364 F. Supp. 205 (D.N.J.), aff'd without opinion, 491 F.2d 748
(3d Cir. 1973) (New York);  Balicer v. ILA, 86 L.R.R.M. (BNA) 2559
(D.N.J. 1974) (New York);  Humphrey v. ILA, 548 F.2d 494, 499 (4th
Cir. 1977) (Hampton Roads);  Humphrey v. ILA, No. 4-75-1395 (D. Md.
Mar. 25, 1976) (unreported) (Baltimore);  Hirsch v. ILA, No. 79-2022
(E.D. Pa. June 12, 1979) (enjoining enforcement of 30-day warehousing
rule;  Philadelphia).  After ILA I, all of those injunctions were
vacated except for one issued in Philadelphia.  The ILA and the
shipping companies agreed that the Rules would be enforced in all
ports except Philadelphia beginning January 1, 1981 (Pet. App. 239a).

   /6/ The ALJ also concluded (Pet. App. 150a-172a) that the shipping
companies, through their control of the containers, had sufficient
control over the assignment of the work sought by the ILA to satisfy
the "'right-of-control' test of Pipefitters" (ILA I, 447 U.S. at 504).
 Neither the Board nor the court of appeals overturned this
determination.  See Pet. App. 26a.

   /7/ The court of appeals did not discuss in detail the application
of the Rules to traditional warehousing practices but asserted that
"the Board made the identical error of law with regard to both
shortstopping and warehousing" (Pet. App. 27a n.8).

   /8/ See American Warehousemen's Ass'n v. ILA, No. 84-677
(incorrectly title American Trucking Ass'ns, Inc. v. ILA);
International Brotherhood of Teamsters v. ILA, No. 84-684;
International Ass'n of NVOCCs v. NLRB, No. 84-691;  and American
Trucking Ass'ns, Inc. v. ILA, No. 84-696.  We intend to file responses
to these petitions in which we will not oppose the granting of
certiorari.

   /9/ Further litigation on the legality of the Rules on Containers
has a particularly great potential for disruption in the shipping
industry because the collective agreement between the ILA and industry
employers provides for reopening of the entire contract anytime the
Rules on Containers are declared invalid as applied.  Pet. App. 237a
(Rule 8).

   /10/ Indeed, the ILA and a leading multi-employer group of shipping
companies, the New York Shipping Association (NYSA), contending that
such action would be in derogation of the court's mandate, have
petitioned the court below for writs of mandamus and prohibition to
prevent the Board and its General Counsel from taking any action on
any new unfair labor practice charges involving application of the
Rules which have been, or may be filed.  In re ILA & New York Shipping
Ass'n, No. 84-1973 (4th Cir. filed Sept. 14, 1984).