(concurring) :
I concur in the judgment reversing and vacating the preliminary injunction,, because Intercontinental Container Transport Corp. has not made the required showing of probable success in proving that the appellants’ actions were motivated by anticompetitive employer interests rather than the union’s goal of job preservation. National Woodwork Manufacturers Assoc, v. NLRB, 386 U.S. 612, 87 S.Ct. 1250 (1967); Amalgamated Meat Cutters v. Jewel Tea Co., Inc., 381 U.S. 676 (1965); Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533 (1945).
The New York Shipping Association, Inc., contains both a group of steamship carriers, which are its only full members, and a second group of “associate members.” The latter category includes not just employers engaged in the loading or unloading of ships, but others involved in “activities related to pier or ship operations and employing waterfront employees * * *” NYSA By-Laws, § 1(b). Some of the associate members are stevedores, with whom operators of container stations, such as the plaintiff, seek to compete. The plaintiff’s antitrust theory is essentially that influential stevedores among the associate members have combined with the International Longshoremen’s Association and used NYSA machinery to penalize steamship *890carriers — themselves the full members of the NYSA — who deal with ICTC or other container station operators.
As the result of a contract reached after a lengthy strike, the ILA has now agreed that its members will handle containers, on the terms and conditions spelled out in the General Cargo Agreement between itself and the NYSA. ICTC contends that it is willing to conform to the substance of all these conditions, so that union members’ jobs and working conditions will not be jeopardized; but it complains that the union nevertheless has helped the NYSA employers to prevent it from doing so solely in order to protect the stevedores from container station competition.
ICTC alleges that it is willing to hire ILA “deep-sea” labor, at the rates and under the conditions specified in the General Cargo Agreement, to stuff and strip containers in a warehouse facility actually located on a dock in the Port of New York.1 The ILA has refused to negotiate an appropriate contract with ICTC, partly because that firm allegedly cannot provide full compliance with General Cargo Agreement provisions governing a guaranteed annual wage and seniority until it gains membership in NYSA.2 The employers’ association, in turn, has rejected ICTC’s application for membership because it has never before included container station operators, who have not traditionally been a feature of the waterfront scene, in its rather loosely-defined associate member category.
The district court accepted the appellants’ argument that the General Cargo Agreement’s containerization rules, requiring that ILA deep-sea labor service the containers for a specified wage, are valid union-promoted work preservation measures. But it held, both initially and in a second opinion after reargument, that their enforcement to exclude ICTC from joining the employers’ association and complying with the rules might constitute an element of a “scheme to restrain competition.” In effect, it concluded that there could be no proper job preservation motive for what appeared to be the union's refusal to handle the containers of all employers on equal terms, nor any justification based on mere precedent for a monopolization of waterfront container servicing by the members of a closed employers’ organization.
The district court erred, however, in viewing the complaint as setting out a clear dichotomy between work preservation rules which are valid as written and *891their improper use to exclude an employer willing to comply with their substance. In at least one significant aspect, ICTC failed to offer ILA members employment on terms which would comply with the General Cargo Agreement even if membership in NYSA were available. The containeri2;ation rules as written specify that stuffing and stripping of containers must be done by ILA deep-sea labor at waterfront piers and docks.3 A key element in the appellants’ argument is the contention that ICTC’s container station, even if physically located near or on a former dock, is still largely an isolated warehouse which does not provide the range of peripheral job opportunities for longshoremen which are available when the same work is done at full-scale piers or docks where ships are loaded and discharged. If a substantial amount of stripping and stuffing is diverted to separate container stations where activity is not continuous, the ILA could well anticipate that parts of existing piers or docks would be closed down, with a net loss of longshoremen’s jobs. If this is the case, union work preservation motives may have inspired both the ILA’s refusal to negotiate a deep-sea labor contract with ,ICTC and the NY SA’s subsequent refusal to open its doors to an employer whose operations do not take place at traditional piers or docks.
Since ICTC has suggested no way in which its evidence will overcome this argument,4 the probability of success required for the granting of a preliminary injunction is lacking.
. When this action was commenced, ICTC was leasing a 52,000 square foot facility, described as “Shed 195 E and F,” located at Export St., Port Newark, N. J. The district court found that this building was “within two blocks of the waterfront on a marine terminal complex,” which placed it “on” a “waterfront terminal” as that phrase is defined in the Waterfront Commission Act, 32 N.J.S.A. 23-6; ch. 202, Part I, § 1, art. II [1953] N.J.Acts 1513. Subsequently ICTC relocated at 839 River Rd., Edgewater, N. J., where it leased a 30,000 square foot facility which the district court characterized as “directly on the waterfront.” At argument, the present container station was described as “on” a dock; but it has never been alleged to be a site at which ships currently are loaded or discharged.
. It is not clear whether NYSA membership alone would be sufficient to enable ICTC to satisfy the ILA on these matters. The union’s arguments vary from assertions that it will not negotiate with ICTC because that firm is not in the NYSA to contentions that the appellee would not be able to offer the requisite wage and seniority terms even if admitted. ICTC represents that it has previously employed ILA deep-sea longshoremen “at the rates provided by the NYSA-ILA settlement terms,” and there is no record of its unwillingness to negotiate a contract offering the General Cargo Agreement guaranteed wage or some satisfactory equivalent. The ILA also argues that longshoremen employed under an otherwise appropriate contract with ICTC would retain their industry-wide seniority but lose non-transferable seniority status at specific piers where they had formerly worked; yet no reason has been offered why a given container station might not be considered by the union as itself the equivalent of a new pier, or an adjunct of one near which it is located, for such subsidiary seniority purposes.
. This fact is obscured somewhat by the agreement’s failure to adopt a uniform phrase to describe longshoremen’s existing work locations. Rule 2 requires that all stuffing and stripping take place “on a waterfront facility, pier or dock,’’ while Rule 3(d) modifies this to “waterfront facility (pier or dock),” and Rule 3(e) refers only to a “waterfront facility.” The preamble to the Rules on Containers, on the other hand, mentions the preservation of longshoremen’s work jurisdiction “at deepsea piers or terminals.” In any case, these repeated references to the preservation of jobs at specific locations suggest the need for a more complete factual inquiry concerning the nature and site of ICTC’s container station facility. Rule 3(d), which distinguishes the keeping of records for all containers supplied to consolidators such as ICTC from record-keeping at a “waterfront facility (pier or dock),” seems at least to imply that the parties did not contemplate that the activities of a consolidator would be carried on at a traditional longshoremen’s work location.
. ICTC relies upon the "district court’s finding that no reason appears for any distinction between work sites on a “waterfront terminal” as defined in the Waterfront Commission Act, see note 1, supra, and those designated by the containerization rules’ references to a “waterfront facility.” But a location inside a terminal area, which need only be within 1,000 yards of a “pier * * * used for waterborne freight,” might be vastly different from the actual pier or dock facility itself, at which the ILA has sought to preserve jobs.