dissenting:
The keystone of the majority opinion is the assertion that the Board erred by failing to consider “all the surrounding circumstances”, and in particular by ignoring the “traditional work patterns” of longshoremen. Proper consideration of the “relevant work patterns”, says the majority, “would have led to a different categorization for the work in controversy.” I do not agree. In my judgment the Board gave proper consideration to the surrounding circumstances, including the traditional work patterns of longshoremen; and I think the Board reached the right result.
In the Baltimore — Hampton Roads case, 231 N.L.R.B. 351 (1972) the Board affirmed the finding of the Administrative Law Judge that
[T]he history of the longshoremen’s work tradition in Baltimore and Hampton Roads shows that their role in handling break-bulk import cargo ended at the head of the pier, where an ILA freight handler picked up the cargo and loaded it onto a truck. Thereafter, the fate of that cargo was the responsibility of the motor carrier, as set forth in the bill of lading.
The advent of containerization in the ports of Baltimore and Hampton Roads did not change the traditional role of the ILA longshoremen. The motor carriers have treated import shippers’ loads destined for consignees located more than 50 miles from the center of the port of entry much as they did break-bulk cargo. For, with very rare exceptions, motor carriers have freely picked up the steamship company’s containers mounted on wheeled trailers and hauled them to the consignee in accordance with the bills of lading. The motor carriers have also traditionally hauled such containers to their own truck terminals and have stripped the shippers’ loads from them and are loaded into their own trailers, using truck terminal employees, whenever considerations of state regulation, safety, or economy persuaded a motor carrier to take that precaution.
Id. at 365.
In the New York case the Board held that “traditionally the off-pier stuffing and stripping of containers was performed by consolidating companies and not longshoremen. Since the work was not traditional longshore work and had never been performed by longshoremen, the Rules which require the shipping companies to stop doing business with consolidators did not have a lawful work-preservation object.” (J.A. 66a) The Board referred to International Longshoremen’s Ass’n, (Conex) 221 N.L.R.B. 956 (1975), enf’d 537 F.2d 706 (2d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753, rehear, denied, 430 U.S. 911, 97 S.Ct. 1187, 51 L.Ed.2d 589 (1977). In the Conex case, which the Board in our case held was controlling, the Board found:
The traditional work of the longshoremen represented by ILA has been to load and unload ships. When necessary to perform their loading and unloading work, longshoremen have been required to stuff and strip containers on the piers.
Similarly, for many years, maritime cargo has been sorted and consolidated off the docks by companies employing teamsters and unrepresented employees. With the advent of vessels designed ex*189clusively to carry the large containers presently in use, these consolidating companies, such as Consolidated and Twin, have continued to consolidate shipments into containers prior to their placement aboard the vessels. The consolidators generate such work themselves, performing it not on behalf of the employer-members of NYSA but for their own customers who have goods to ship. Furthermore, they perform this consolidation work at their own off-pier premises, with their own employees who are outside the unit represented by ILA, and who fall within the coverage of separate collective-bargaining agreements, under which they are represented by other labor organizations. It is clear, therefore, that Consolidated and Twin have traditionally been engaged in the work of stuffing and stripping containers such as are here in controversy.
From the foregoing and the record as a whole, it is clear that the on-pier stripping and stuffing work performed by longshoremen as an incident of loading and unloading ships does not embrace the work traditionally performed by Consolidated and Twin at their own off-pier premises. It does not fall within ILA’s traditional role to engage in make-work measures by insisting upon stripping and stuffing cargo merely because that cargo was originally containerized by nonunit personnel. Yet, ILA’s demands here could only be met if the work traditionally performed Off the pier by employees outside the longshoremen unit were taken over and performed at the pier by longshoremen represented by ILA.
Id. at 959-60. [Footnote omitted]
There is substantial evidence in the records of both the Baltimore — Hampton Roads case and the New York case to support the Board’s finding that the traditional work of longshoremen does not include the work traditionally performed by motor carriers in stripping and stuffing containers. As the Board said the traditional work of longshoremen has been to load and unload ships, and there is substantial evidence that traditionally longshoremen have not stuffed and stripped containers on the pier or elsewhere. Any stuffing or stripping by longshoremen has been only incidental.
I am not impressed by the fiction that a container is part of the hold of a ship; if it is, then so is any large box in the hold of a ship. Nor am I persuaded by the “similarities” which the majority perceive between the work of loading and unloading ships and the work of filling and emptying containers. The question is not whether there may be similarities in the work entailed in the two operations. Rather, the question is, who traditionally has done that work.
In my opinion the longshoremen are attempting to acquire work they have never had, therefore the defense of work preservation must be rejected. My conclusion is fortified by the decisions of three circuit courts of appeals. International Longshoremen’s Ass’n v. NLRB, 537 F.2d 706 (2d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753, rehear, denied, 430 U.S. 911, 97 S.Ct. 1187, 51 L.Ed.2d 589 (1977); International Longshoremen’s Ass’n Local 1575 v. NLRB, 560 F.2d 439 (1st Cir. 1977); Humphrey v. International Longshoremen’s Ass’n, 548 F.2d 494, 499-500 (4th Cir. 1977); see International Longshoremen’s & Warehousemen’s Union Local 13, 208 N.L.R.B. 994 (1974), which this court enforced per curiam without an opinion, 169 U.S.App.D.C. 300, 515 F.2d 1017 (1975), cert. denied sub nom., Pacific Maritime Ass’n v. N.L.R.B. 424 U.S. 942, 96 S.Ct. 1409, 47 L.Ed.2d 347 (1976).
I would deny the petitions for review and enforce the Board’s orders.