(dissenting):
I dissent.
The decision of the Board in this case that petitioners ILA and NYSA violated section 8(e) of the National Labor Relations Act and that ILA also violated section 8(b)(4)(ii)(B) rests upon a fundamental error. The Board recognized in its opinion that a labor contract that seeks to preserve work traditionally done in the bargaining unit does not violate section 8(e). National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Whether work preservation is actually the objective of a contract provision is frequently difficult to resolve, see, e. g., NLRB v. National Maritime Union of America, 486 F.2d 907 (2d Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), and whether union pressure has an improper object is usually a question of fact. Bedding, Curtain and Drapery Workers Union v. NLRB, 390 F.2d 495, 499 (2d Cir.), cert. denied, 392 U.S. 905, 88 S.Ct. 2056, 20 L.Ed.2d 1363 (1968). Ordinarily, therefore, the Board’s determination of such an issue is entitled to great weight. But in this case, the Board’s decision that work preservation was not the union objective rests upon a basic error of law, which is highlighted in the portion of the Board opinion quoted by my brothers.
“[I]t is essential,” according to the Board, “to define with some precision the work in controversy” since that is basic to the issue *713of work preservation. The Board then defines the “work in controversy” as
the LCL and LTL container work performed by Consolidated and Twin at their own off-pier premises.1
This definition is incorrect because it focuses on the work done in the past by the intervening complaining parties, Twin Express, Inc. and Consolidated Express, Inc., rather than on the work done in the past by the longshoremen represented by ILA. The Administrative Law Judge in this case, former Board General Counsel Arnold Ordman, did not fall into this error. In his thorough opinion dismissing the complaint against ILA and NYSA, he stated:
Work preservation agreements usually come into being because the work sought to be protected has been subjected to invasion or threat of invasion by others. Thus, in National Woodwork itself, the carpenters employed by the employer refused to install precut doors unless the doors were cut on the jobsite by the carpenters themselves. The carpenters had traditionally performed that work themselves. Yet, obviously the employees of the door manufacturers who comprised the National Work Manufacturers Association did that work also. Had the Supreme Court focused on the work being done by the employees of the door manufacturers at the latter’s plants, as General Counsel urge be done here with respect to the operations of Consolidated and Twin, then obviously the Supreme Court would have reached a different result in National Woodwork. Indeed, the legitimacy of a work preservation objective would be virtually precluded in any situation where it could be established that other employees at other sites were doing or had done the work for which protection was being sought.2
The question before the Board was: What work was it that ILA and NYSA were allegedly attempting to preserve? If the Board was free to define the work in question as the off-pier consolidation into containers of LCL/LTL cargo, the case is indeed an easy one and the Board’s decision is correct. But if the work is defined as the work the ILA members used to do on the pier before containerization moved most of it off the pier, the case takes on a different cast. As the Administrative Law Judge noted, just as it would have been improper in National Woodwork to define the work in controversy as work on the pre-cut doors, it is wrong here to define the work in controversy as off-pier container stuffing. The Administrative Law Judge found that
virtually all solid cargo moving over the docks in the Port of New York had for decades been handled on a piece-by-piece basis by longshoremen and employees in related crafts who worked on the docks and were represented by ILA. Typically, that work included the preparation of cargo for shipment by the making up and loading of cargo on drafts, pallets and boxes for export, and the breaking down of such cargo from incoming ships for delivery to the consignees.3
The technology of containerization, by making possible the consolidation of cargo off the piers into large containers which can be loaded onto specially-designed ships by fewer workers than were required by piece-by-piece loading, has “reduced substantially the need for longshore and other labor.”4
Understandably, ILA resisted the new technology. For at least two decades, there has been a struggle over technological improvement in which longshoremen have attempted to keep jobs on the pier that are threatened by modernization. National Woodwork teaches that conflicts between workers and employers over this problem are to be resolved by collective bargaining, and that the resulting pressure by unions and collective bargaining agreements do not violate sections 8(b)(4)(ii)(B) and 8(e).
*714Some would no doubt disagree with our present national labor policy, expressed in National Woodwork, that problems caused by automation of the workplace are best resolved through collective bargaining. But for the present that is our policy, and it permits work preservation agreements even if they cause economic hardship to third parties. The Board cannot be permitted to frustrate this policy in the guise of making factual findings. Yet that is the result of enforcing the Board’s order in this case. The carefully constructed collective bargaining agreements and rules which were the result of hard bargaining and contending economic pressures, see Intercontinental Container Transport Corp. v. New York Shipping Ass'n, 426 F.2d 884, 888 (2d Cir. 1970), are now set aside. Whether that will result in chaos and economic hardship in the Port of New York, as some of the parties predict,5 is not for us to resolve. But it is our province to decide whether the result is legally sound. I believe it is not, because the Board committed an error of law by focusing on the wrong “work” in deciding whether ILA and NYSA were protected by the National Woodwork work preservation doctrine. Therefore, I would not enforce the Board’s order.
. International Longshoremen’s Ass’n, 221 N.L. R.B. No. 144, at 11.
. Id., Decision of Administrative Law Judge, at 25.
. Id. at 11.
. Id.
. Brief of Petitioner NYSA, at 50; Brief of Petitioner ILA, at 43-47; Brief Amicus Curiae of Maritime Port Council of Greater New York and Vicinity, at 2^4. On the other hand, the consolidators argue that the contract provisions invalidated by the Board would put them out of business. Brief of Intervenor Consolidated Express, Inc., at 24-25; Brief of Respondent-Intervenor Twin Express, Inc., at 26-28.