Volkswagenwerk Aktiengesellschaft v. Fed. Maritime Comm'n, 390 U.S. 261 (1968)

Section 15 provides, in relevant part, that every person subject to the Shipping Act “shall file immediately with the Commission” every agreement with another person subject to the Act: “fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement.” 46 U. S. C. § 814 (§ 15). The Commission is instructed in § 15 to “disapprove, cancel or modify any agreement” which it finds, after notice and hearing, to *296be “unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter ...” Any agreement which is not approved, or which is disapproved, by the Commission is declared by § 15 to be “unlawful.” And it is also provided that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement ...”

Those sections read, in relevant part: “It shall be unlawful for any . . . person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly ... to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” 46 U. S. C. §815 (§ 16). “Every . . . person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and *297order enforced a just and reasonable regulation or practice.” 46 U. S. C. §816 (§17).

For a comprehensive study of the history of labor relations in the maritime industry up to 1940, see Maritime Labor Board, Report to the President and to the Congress, H. R. Doc. No. 646, 76th Cong., 3d Sess. (1940). For a valuable history of maritime labor relations on the West Coast, see B. Schneider, Industrial Relations in the West Coast Maritime Industry, Institute of Industrial Relations, University of California (Berkeley, 1958).

Longshoremen and seamen depend, of course, on the amount of work to be done. If business is bad, the workers are without work and without pay. With respect to longshoremen on the Pacific Coast, hiring is done through hiring halls operated jointly by the union and management. Employers can obtain longshoremen only through these halls, and only for specific jobs. No longshoreman may be employed steadily by any one employer; rather, each is dispatched to an employer as part of a gang to perform a specific loading or unloading job. See Kossoris, Working Rules in West Coast Longshoring, 84 Monthly Labor Rev. 1 (1961), for an account of the hiring practice on the West Coast.

This Act was the direct result of the Alexander Report of 1914. House Committee on Merchant Marine and Fisheries, H. R. Doc. No. 805, 63d Cong., 2d Sess. (1914).

In that strike the International Longshoremen’s Association demanded wage increases, a six-hour day, a closed shop, and union control of hiring halls. The employers refused to accede to these demands, and the ensuing strike tied up shipping for almost three months at all Pacific ports. President Roosevelt appointed a National Longshoremen’s Board to intervene, after a mediation board had failed to settle the dispute. The union and management agreed to submit to arbitration by the Board, and to end the strike while arbitration was proceeding. Both sides agreed to abide by the Board’s decision. The arbitration proceedings took several months, and the award which was eventually rendered repre-seúted substantial gains for the union. Hiring halls were to be operated jointly, wage increases were granted, and a six-hour day established. In addition, port labor relations committees were established on which both employers and the union were represented equally; and all issues not decided by those committees were to be submitted to arbitration.

Killingsworth, The Modernization of West Coast Longshore Work Rules, 15 Ind. & Lab. Rel. Rev. 295, 296 (1962).

Kossoris, supra, n. 4, at 1.

It was noted in a 1941 House Committee Report on a bill providing for a two-year extension of the MLB that the MLB was the “only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry.” House Committee on Merchant Marine and Fisheries, Two-Year Extension of the Maritime Labor Board, H. R. Rep. No. 354, 77th Cong., 1st Sess., 2 (1941).

Under the 1938 Act, questions of representation were reserved to the NLRB. Section 1002 of the Merchant Marine Act, as amended, provided that: “The provisions of this title shall not in any manner affect or be construed to limit the provisions of the National Labor Relations Act, nor shall any of the unfair labor practices listed therein be considered a dispute for the purposes of this title. Questions concerning the representation of employees of a maritime employer *301shall be considered and determined by the National Labor Relations Board in accordance with the provisions of the National Labor Relations Act: Provided, however, That nothing in this title shall constitute a repeal or otherwise affect the enforcement of any of the navigation laws of the United States or any other laws relating to seamen.” 52 Stat. 965.

Hearings on H. R. 5734, before the House Committee on Merchant Marine and Fisheries, 84th Cong., 1st and 2d Sess. (1955-1956).

See, e. g., Hanna Mining Co. v. Marine Engineers, 382 U. S. 181 (pre-emption of state law by federal labor enactments); McCulloch v. Sociedad Nacional, 372 U. S. 10 (jurisdiction of NLRB over employees of foreign-flag ships); Marine Engineers v. Interlake S. S. Co., 370 U. S. 173 (pre-emption); Marine Cooks v. Panama S. S. Co., 362 U. S. 365 (application of Norris-LaGuardia Act); Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (application of Labor Management Relations Act to disputes between maritime employees and foreign ships); Longshoremen v. Juneau Spruce Corp., 342 U. S. 237 (right of action by employer against union under § 303 (a) (4) of L. M. R. A.); NLRB v. Pittsburgh S. S. Co., 337 U. S. 656 (unfair labor practice); Southern S. S. Co. v. NLRB, 316 U. S. 31 (representation; refusal to bargain); NLRB v. Waterman S. S. Corp., 309 U. S. 206 (unfair labor practice).

Kossoris, supra, n. 4, at 2.

As one commentator noted in 1961: “The longshore industry is technologically among the most backward. An industrial engineer from any one of the mass production industries would be horrified to find sacks of coffee on the San Francisco docks being handled just as they have been handled since sailing ship days. No one of the many separate corporate links in the transportation chain has sufficient interest in greater efficiency to force the changes in coffee handling methods, for example, which, to be effective, must start in Brazil and be carried right through to Hills Brothers or Folgers in San Francisco.” Fairley, The ILWU-PMA Mechanization and Modernization Agreement, 12 Lab. L. J. 664, 665 (1961). The first big change in technology along the docks, notes Mr. Fairley, was the use of lift trucks, propelled by wartime demands for greater efficiency during World War II. Since that time, new methods of bulk handling of cargo have been developed, and unit loads have been increasingly used (such as those made by gluing items together or strapping them together or containerizing them). Id., at 666. One of the most efficient operations of containerization has been used by the Matson Navigation Co. In August 1964 that company cut its rates by nearly 10%, citing cost reductions made possible by a ship improvement and “containerization” plan. The plan relates to container cargo, where the containers are boxes *303holding up to 40 tons of freight. They are loaded at a factory or distribution point and lifted aboard a ship and unloaded as single units. Matson Co. reported that it took about 850 man-hours to load and unload a specially designed container ship carrying 6,500 tons using mechanized equipment. The same cargo carried in conventional loose form would take 11,000 man-hours (about 13 times as much labor) to load and unload. An added attraction of this saving in time is the fact that ships get in and out of port faster, providing additional cost savings. For example, Matson’s container ships stay in port less than a day, compared with five days for a conventional ship. Shippers estimate that it cost in 1964 about $3,000 to $5,000 for such things as depreciation, seamen’s wages and pier charges for each day a ship stays in port. The Wall Street Journal, Nov. 20, 1964, at 8, col. 2. For a more thorough consideration of the changes in technology that promise great benefits for the shipping industry, see the comprehensive eight-volume study of the United States Department of Labor, Manpower Utilization, Job Security in the Longshore Industry (1964). See also Shils, Industrial Unrest in the Nation’s Maritime Industry, 15 Lab. L. J. 337, 356-358 (where the author notes improvements in construction of vessels, the use of highly mechanized cargo ships, changes in engine room operation, in the Deck Department and in the Steward Department, and a new line of semi-automated vessels); O. Hagel & L. Goldblatt, Men and Machines, Joint Publication of the I. L. W. U. and P. M. A. (San Francisco, 1963).

Multiple handling refers to the labor practice requiring the cargo to touch the “skin of the dock” after being unloaded before someone other than a longshoreman can handle it. For loading of cargo, only the longshoreman can place it on the ship after a teamster has unloaded it from his truck onto the dock. Kossoris, supra, n. 4, at 2.

Sling-load weight is the weight limit for a load of cargo. In 1961 the maximum weight was usually about 2,100 pounds per pallet (although much heavier loads apparently could have been carried safely). Larger pallets were “skimmed down” to 2,100 pounds by longshoremen. Ibid.

Each major port would have its own rules stipulating the number of men needed on gangs. Frequently, the number was more *304than was needed for the job. Por example, the “four-on four-off” gang required eight men in the hold of a ship, although only four actually worked while the other four rested. Id., at 3. See generally Killingsworth, supra, n. *7;* P. Hartman, Union Work Rules: A Brief Theoretical Analysis and Some Empirical Results, U. of Ill. Bull., Institute of Labor & Industrial Relations (1967).

Fairley, supra, n. 14, at 666.

Kossoris, supra, n. 4, at 1.

Although the method of raising this amount of money was not^ specified in the agreement, PMA accumulated the fund by assessing its members under a man-hour formula.

In August 1966 a new agreement was signed which continued the Mech Fund until 1971; but this time the employers agreed to pay even more into the fund each year — $6,900,000. Both the union and the employers were highly satisfied with the way the plan had worked. For a general description of the 1966 contract, see Business Week, July 30, 1966, at 108; Kossoris, 1966 West Coast Longshore Negotiations, 89 Monthly Labor Rev. 1067. Kos-soris points out the great effect which abolition of restrictive work practices and increased use of modern technology had had for the employers: “Tonnage increased by about 32 percent; but man-hours remained about the same. Despite an increase over the period of 56 cents in the basic wage and liberalization of fringe benefits, including the $5 million the employers paid into the fund, the cost per ton dropped from $6.26 to $6.16. . . . Making allowance for all important factors involved, the gain to employers from the M&M agreement may be placed conservatively as well in excess of $150 million. Subtracting from this the $27.5 million paid into the M&M fund over the 5% year period of the last contract makes the employer estimate of $120 million net gain appear realistic.” Id., at 1068-1069.

125 U. S. App. D. C. 282, 293, 371 F. 2d 747, 758 (1967).

We are told that this is not the first time that PMA members have entered into agreements among themselves to form and finance their collective bargaining agreements. They have agreed to the presentation of uniform bargaining terms, and have provided, through agreements among themselves, for the administration and implementation of their union contracts. All of these would affect transportation rates. In essence, such agreements, no less than the funding method employed by PMA, have established uniform costs for all employers of maritime labor — indeed the primary object of industry-wide bargaining has been to establish uniform wages, fringe benefits, and working conditions.

Mr. Paul St. Sure, President of PMA, testified: “It [the method of payment of the fund] was a definite part of the negotiations in that the union took a position with regard to the method of collection. PMA took a position with regard to the method of collection. There were discussions with the union during negotiation as to the problems that had been presented by the method of collection used with relation to the million dollars and a half. “We discussed with the union the differences of opinion among our own members as to the equitable method of providing for the collection of this money. “We ended up with an agreement by the union that, inasmuch as the employer members of the bargaining unit had committed themselves specifically to the payment of the sum, that whereas they were interested in the assurance that the sum would be collected, they would allow us to work out among ourselves the method of actual collection within the membership of PMA.” Such action, however, did not make the union a disinterested party; rather, the union certainly had a continuing interest in the method of financing the fund. Mr. St. Sure, who was deeply involved since 1948 in negotiations with the ILWU, testified: “There was a continuing interest and a continuing concern as to whether or not the collections under the fund were being met. Obviously they have, by joint trusteeship, joint custody of the fund, and I can assure you that they were alert as to whether or not the method of the custody, was working, because they believed this and, in fact, knew it was their money to spend in accordance with the agreement. “After all, this was a continuing relationship that we have, by the collective bargaining agreement, and my experience would suggest to me that we couldn’t have adopted the method which would defeat the very purpose for which we had reached a bargain without having further negotiations.” The Hearing Examiner stated in his opinion that “Mr. St. Sure testified that the ILWU’s interest in the method to be adopted, *309ceased after it was agreed that the method of collection was to be reserved to PMA.” In the printed record before the Court, however, I find no reference in .Mr. St. Sure’s testimony to a lack of interest on the part of the union concerning the method of collection of the fund. The Hearing Examiner does not indicate the testimony on which his interpretation of Mr. St. Sure’s presentation is based; and, at the least, that part of his testimony quoted would appear to raise a strong doubt whether it could be said that the interest of the union ceased. In any event, it is clear from Mr. St. Sure’s testimony that the method of collection was a prime topic of negotiations between the parties, and that the employers’ decision on the matter was intimately tied with the collective bargaining agreement.

Mr. St. Sure testified: “Well, this was still part of the bargaining process. We were still actually trying to conclude the bargain which we had developed and had signed a memorandum to cover. We still had the responsibility as a negotiating committee of reporting back to the board of directors, and then to the membership, and this was simply a convenient means of calling in some men that we felt were more expert in this field than the negotiators were who were operating people to make a recommendation as to a method of payment.”

See n. 24, supra.

See FMC Rule 5(1), 46 CFR §502.72 (petitions for intervention in FMC proceedings). See also FMC Rule 10 (c), 46 CFR § 502.143 (notice of hearings).

Indeed, the legislative history would appear to be to the contrary. See n. 9, supra.

The circumstance that the funding plan originated in collective bargaining and was a part of a collective bargaining agreement would not automatically create an exemption from the antitrust laws. See Mine Workers v. Pennington, 381 U. S. 657; Meat Cutters v. Jewel Tea, 381 U. S. 676; Allen Bradley Co. v. Union, 325 U. S. 797.

The Commission held under § 16 that that section is violated only if there is discrimination between competitors, which was not the situation here because the marine terminal companies have imposed no higher charges on Yolkswagens than on other automobiles. Although such an interpretation is supported by the construction placed on §3(1) of the Interstate Commerce Act, 49 U. S. C. §3 (1), United States v. Great Northern R. Co., 301 I. C. C. 21, 26-27, on which § 16 of the Shipping Act is modeled, United States Nav. Co. v. Cunard S. S. Co., 284 U. S. 474, 480-481, it has been suggested that the Commission has undermined its own rule by not requiring a competitive relationship in cases not involving freight rates: Investigation of Free Time Practices — Port of San Diego, 9 F. M. C. 525 (1966) (port free time); New York Foreign Freight Forwarders and Brokers Assn. v. FMC, 337 F. 2d 289 (C. A. 2d Cir. 1964), cert. denied, 380 U. S. 910 (billing methods of freight forwarders); Swift & Co. v. Gulf & South Atlantic Havana Conference, 6 F. M. B. 215 (1961) (route restrictions); Storage Practices at Longview, Washington, 6 F. M. B. 178 (1960) (storage charges). Moreover, it is argued that the competitive relationship test employed by the ICC under § 3 (1) of the Interstate Commerce Act is not “an indispensable element in a situation of undue prejudice and preference Joseph A. Goddard Realty Co. v. New York, C. & St. L. R. Co., 229 I. C. C. 497, 501. The Maritime Commission’s refusal to require a competitive relationship in certain cases, however, has diluted that principle only in those situations in which there are services that are not dependent upon the nature of the cargo and the various charges therefor. In the instant case, how*315ever, there are different charges levied depending upon the nature of the cargo involved. Petitioner conceded before the Hearing Examiner that “[w]e do not claim that the measurement formula 'regardless of how manifested’ subjects Volkswagen automobiles to ‘prejudice or disadvantage’ as compared to other automobiles, and we admit that there is no other cargo classification in competition with automobiles.” The competitive relationship rule has been applied consistently by the Commission in appropriate circumstances. The same rule has also been used by the ICC. Since I cannot say in the circumstances of this case that the requirement of a competitive relationship is unreasonable or inconsistent with the provisions of the Shipping Act, I would defer to the Commission’s expertise. Consolo v. FMC, 383 U. S. 607. With respect to § 17, the Commission expressly noted that (1) the measurement basis for assessing automobiles resulted in an assessment almost 10 times greater than a weight basis ($2.35 per vehicle as against approximately $0.25); (2) that although other cargo was assessed as manifested, vehicles were always assessed on a measurement basis; and (3) while automobile cargo would probably receive only general benefits from the mechanization plan (such as freedom from strikes and slowdowns), such cargo, unlike some other cargo, was unlikely to benefit from technological improvements in loading and unloading. Yet, the Commission held that the difference in treatment was not unreasonable because although automobile cargo may not have benefited as much as other cargo, it did receive “substantial benefits” from the mechanization agreement. As the Court holds, however, such a standard, which focuses on only the benefits received, represents too narrow a view of § 17. What petitioner is contesting essentially is PMA’s decision to adopt as the revenue ton for automobiles not a weight ton (2,000 pounds) but a measurement ton expressed in volumetric terms (40 cubic feet/ton). Since the average Volkswagen weighs only 1,800 pounds, but measures about 8.7 tons on a volume basis, it is being assessed $2.35 compared with the $0.25 it would otherwise have to pay on the basis of a weight-ton measurement. It is argued that this exaction is grossly disproportionate in light of the limited benefits which petitioner could expect to receive from the mechanization agreement as compared with those which other shippers could antici*316pate. To focus an inquiry solely on the benefits received may obscure the disparity between the charges ultimately falling upon petitioner and those exacted from other shippers. The Commission should compare the benefits received with the charges imposed on petitioner’s cargo and with those levied upon other cargo, which receives substantially similar benefits, before the question of reasonableness can be resolved. This determination is for the Commission to make in the first instance.

See S. Bross, Ocean Shipping 189-190 (1956); C. Cufley, Ocean Freights and Chartering 400-407 (1962).

The Interstate Commerce Commission has a competitive relationship rule with respect to § 3 (1) of the Interstate Commerce Act, 54 Stat. 902, 49 U. S. C. §3 (1), Rheem Mfg. Co. v. Chicago, R. I. & P. R. Co., 273 I. C. C. 185; United States v. Great Northern R. Co., 301 I. C. C. 21. However, that Commission has said: “This Commission has never held that competition is an indispensable element in a situation of undue prejudice and preference, although it has frequently said that 'ordinarily/ or 'generally/ a competitive relation must appear.” Joseph A. Goddard Realty Co. v. New York, C. & St. L. R. Co., 229 I. C. C. 497, 501.

In the Evans Cooperage ease the Commission upheld a uniform wharfage charge which was imposed on all those who used the wharf, even though the various users of the wharf did not all receive precisely equal benefits from it. But the Commission looked beyond “substantial benefits” to the relationship between the service and the charge: “The [Commission of the Port of New Orleans] has made a charge to help defray its costs of operating facilities as measured by cargo handled in the area and the only question is whether its facilities are being used and the commission is performing a service reasonably related to its charges. The Examiner considered the evidence and found that it was.” (Emphasis added.) 6 F. M. B., at 418-419.

See n. 8, supra.

Section 15 provides, in relevant part, that every person subject to the Shipping Act “shall file immediately with the Commission” every agreement with another person subject to the Act: “fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement.” 46 U. S. C. § 814 (§ 15). The Commission is instructed in § 15 to “disapprove, cancel or modify any agreement” which it finds, after notice and hearing, to *296be “unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter ...” Any agreement which is not approved, or which is disapproved, by the Commission is declared by § 15 to be “unlawful.” And it is also provided that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement ...”

Section 15 provides, in relevant part, that every person subject to the Shipping Act “shall file immediately with the Commission” every agreement with another person subject to the Act: “fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement.” 46 U. S. C. § 814 (§ 15). The Commission is instructed in § 15 to “disapprove, cancel or modify any agreement” which it finds, after notice and hearing, to *296be “unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter ...” Any agreement which is not approved, or which is disapproved, by the Commission is declared by § 15 to be “unlawful.” And it is also provided that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement ...”

Those sections read, in relevant part: “It shall be unlawful for any . . . person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly ... to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” 46 U. S. C. §815 (§ 16). “Every . . . person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and *297order enforced a just and reasonable regulation or practice.” 46 U. S. C. §816 (§17).

For a comprehensive study of the history of labor relations in the maritime industry up to 1940, see Maritime Labor Board, Report to the President and to the Congress, H. R. Doc. No. 646, 76th Cong., 3d Sess. (1940). For a valuable history of maritime labor relations on the West Coast, see B. Schneider, Industrial Relations in the West Coast Maritime Industry, Institute of Industrial Relations, University of California (Berkeley, 1958).

Longshoremen and seamen depend, of course, on the amount of work to be done. If business is bad, the workers are without work and without pay. With respect to longshoremen on the Pacific Coast, hiring is done through hiring halls operated jointly by the union and management. Employers can obtain longshoremen only through these halls, and only for specific jobs. No longshoreman may be employed steadily by any one employer; rather, each is dispatched to an employer as part of a gang to perform a specific loading or unloading job. See Kossoris, Working Rules in West Coast Longshoring, 84 Monthly Labor Rev. 1 (1961), for an account of the hiring practice on the West Coast.

This Act was the direct result of the Alexander Report of 1914. House Committee on Merchant Marine and Fisheries, H. R. Doc. No. 805, 63d Cong., 2d Sess. (1914).

In that strike the International Longshoremen’s Association demanded wage increases, a six-hour day, a closed shop, and union control of hiring halls. The employers refused to accede to these demands, and the ensuing strike tied up shipping for almost three months at all Pacific ports. President Roosevelt appointed a National Longshoremen’s Board to intervene, after a mediation board had failed to settle the dispute. The union and management agreed to submit to arbitration by the Board, and to end the strike while arbitration was proceeding. Both sides agreed to abide by the Board’s decision. The arbitration proceedings took several months, and the award which was eventually rendered repre-seúted substantial gains for the union. Hiring halls were to be operated jointly, wage increases were granted, and a six-hour day established. In addition, port labor relations committees were established on which both employers and the union were represented equally; and all issues not decided by those committees were to be submitted to arbitration.

Killingsworth, The Modernization of West Coast Longshore Work Rules, 15 Ind. & Lab. Rel. Rev. 295, 296 (1962).

Kossoris, supra, n. 4, at 1.

It was noted in a 1941 House Committee Report on a bill providing for a two-year extension of the MLB that the MLB was the “only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry.” House Committee on Merchant Marine and Fisheries, Two-Year Extension of the Maritime Labor Board, H. R. Rep. No. 354, 77th Cong., 1st Sess., 2 (1941).

Under the 1938 Act, questions of representation were reserved to the NLRB. Section 1002 of the Merchant Marine Act, as amended, provided that: “The provisions of this title shall not in any manner affect or be construed to limit the provisions of the National Labor Relations Act, nor shall any of the unfair labor practices listed therein be considered a dispute for the purposes of this title. Questions concerning the representation of employees of a maritime employer *301shall be considered and determined by the National Labor Relations Board in accordance with the provisions of the National Labor Relations Act: Provided, however, That nothing in this title shall constitute a repeal or otherwise affect the enforcement of any of the navigation laws of the United States or any other laws relating to seamen.” 52 Stat. 965.

Section 15 provides, in relevant part, that every person subject to the Shipping Act “shall file immediately with the Commission” every agreement with another person subject to the Act: “fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement.” 46 U. S. C. § 814 (§ 15). The Commission is instructed in § 15 to “disapprove, cancel or modify any agreement” which it finds, after notice and hearing, to *296be “unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter ...” Any agreement which is not approved, or which is disapproved, by the Commission is declared by § 15 to be “unlawful.” And it is also provided that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement ...”

Those sections read, in relevant part: “It shall be unlawful for any . . . person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly ... to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” 46 U. S. C. §815 (§ 16). “Every . . . person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and *297order enforced a just and reasonable regulation or practice.” 46 U. S. C. §816 (§17).

For a comprehensive study of the history of labor relations in the maritime industry up to 1940, see Maritime Labor Board, Report to the President and to the Congress, H. R. Doc. No. 646, 76th Cong., 3d Sess. (1940). For a valuable history of maritime labor relations on the West Coast, see B. Schneider, Industrial Relations in the West Coast Maritime Industry, Institute of Industrial Relations, University of California (Berkeley, 1958).

Longshoremen and seamen depend, of course, on the amount of work to be done. If business is bad, the workers are without work and without pay. With respect to longshoremen on the Pacific Coast, hiring is done through hiring halls operated jointly by the union and management. Employers can obtain longshoremen only through these halls, and only for specific jobs. No longshoreman may be employed steadily by any one employer; rather, each is dispatched to an employer as part of a gang to perform a specific loading or unloading job. See Kossoris, Working Rules in West Coast Longshoring, 84 Monthly Labor Rev. 1 (1961), for an account of the hiring practice on the West Coast.

This Act was the direct result of the Alexander Report of 1914. House Committee on Merchant Marine and Fisheries, H. R. Doc. No. 805, 63d Cong., 2d Sess. (1914).

In that strike the International Longshoremen’s Association demanded wage increases, a six-hour day, a closed shop, and union control of hiring halls. The employers refused to accede to these demands, and the ensuing strike tied up shipping for almost three months at all Pacific ports. President Roosevelt appointed a National Longshoremen’s Board to intervene, after a mediation board had failed to settle the dispute. The union and management agreed to submit to arbitration by the Board, and to end the strike while arbitration was proceeding. Both sides agreed to abide by the Board’s decision. The arbitration proceedings took several months, and the award which was eventually rendered repre-seúted substantial gains for the union. Hiring halls were to be operated jointly, wage increases were granted, and a six-hour day established. In addition, port labor relations committees were established on which both employers and the union were represented equally; and all issues not decided by those committees were to be submitted to arbitration.

Killingsworth, The Modernization of West Coast Longshore Work Rules, 15 Ind. & Lab. Rel. Rev. 295, 296 (1962).

Kossoris, supra, n. 4, at 1.

It was noted in a 1941 House Committee Report on a bill providing for a two-year extension of the MLB that the MLB was the “only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry.” House Committee on Merchant Marine and Fisheries, Two-Year Extension of the Maritime Labor Board, H. R. Rep. No. 354, 77th Cong., 1st Sess., 2 (1941).

Under the 1938 Act, questions of representation were reserved to the NLRB. Section 1002 of the Merchant Marine Act, as amended, provided that: “The provisions of this title shall not in any manner affect or be construed to limit the provisions of the National Labor Relations Act, nor shall any of the unfair labor practices listed therein be considered a dispute for the purposes of this title. Questions concerning the representation of employees of a maritime employer *301shall be considered and determined by the National Labor Relations Board in accordance with the provisions of the National Labor Relations Act: Provided, however, That nothing in this title shall constitute a repeal or otherwise affect the enforcement of any of the navigation laws of the United States or any other laws relating to seamen.” 52 Stat. 965.

Hearings on H. R. 5734, before the House Committee on Merchant Marine and Fisheries, 84th Cong., 1st and 2d Sess. (1955-1956).

See, e. g., Hanna Mining Co. v. Marine Engineers, 382 U. S. 181 (pre-emption of state law by federal labor enactments); McCulloch v. Sociedad Nacional, 372 U. S. 10 (jurisdiction of NLRB over employees of foreign-flag ships); Marine Engineers v. Interlake S. S. Co., 370 U. S. 173 (pre-emption); Marine Cooks v. Panama S. S. Co., 362 U. S. 365 (application of Norris-LaGuardia Act); Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (application of Labor Management Relations Act to disputes between maritime employees and foreign ships); Longshoremen v. Juneau Spruce Corp., 342 U. S. 237 (right of action by employer against union under § 303 (a) (4) of L. M. R. A.); NLRB v. Pittsburgh S. S. Co., 337 U. S. 656 (unfair labor practice); Southern S. S. Co. v. NLRB, 316 U. S. 31 (representation; refusal to bargain); NLRB v. Waterman S. S. Corp., 309 U. S. 206 (unfair labor practice).

Kossoris, supra, n. 4, at 2.

As one commentator noted in 1961: “The longshore industry is technologically among the most backward. An industrial engineer from any one of the mass production industries would be horrified to find sacks of coffee on the San Francisco docks being handled just as they have been handled since sailing ship days. No one of the many separate corporate links in the transportation chain has sufficient interest in greater efficiency to force the changes in coffee handling methods, for example, which, to be effective, must start in Brazil and be carried right through to Hills Brothers or Folgers in San Francisco.” Fairley, The ILWU-PMA Mechanization and Modernization Agreement, 12 Lab. L. J. 664, 665 (1961). The first big change in technology along the docks, notes Mr. Fairley, was the use of lift trucks, propelled by wartime demands for greater efficiency during World War II. Since that time, new methods of bulk handling of cargo have been developed, and unit loads have been increasingly used (such as those made by gluing items together or strapping them together or containerizing them). Id., at 666. One of the most efficient operations of containerization has been used by the Matson Navigation Co. In August 1964 that company cut its rates by nearly 10%, citing cost reductions made possible by a ship improvement and “containerization” plan. The plan relates to container cargo, where the containers are boxes *303holding up to 40 tons of freight. They are loaded at a factory or distribution point and lifted aboard a ship and unloaded as single units. Matson Co. reported that it took about 850 man-hours to load and unload a specially designed container ship carrying 6,500 tons using mechanized equipment. The same cargo carried in conventional loose form would take 11,000 man-hours (about 13 times as much labor) to load and unload. An added attraction of this saving in time is the fact that ships get in and out of port faster, providing additional cost savings. For example, Matson’s container ships stay in port less than a day, compared with five days for a conventional ship. Shippers estimate that it cost in 1964 about $3,000 to $5,000 for such things as depreciation, seamen’s wages and pier charges for each day a ship stays in port. The Wall Street Journal, Nov. 20, 1964, at 8, col. 2. For a more thorough consideration of the changes in technology that promise great benefits for the shipping industry, see the comprehensive eight-volume study of the United States Department of Labor, Manpower Utilization, Job Security in the Longshore Industry (1964). See also Shils, Industrial Unrest in the Nation’s Maritime Industry, 15 Lab. L. J. 337, 356-358 (where the author notes improvements in construction of vessels, the use of highly mechanized cargo ships, changes in engine room operation, in the Deck Department and in the Steward Department, and a new line of semi-automated vessels); O. Hagel & L. Goldblatt, Men and Machines, Joint Publication of the I. L. W. U. and P. M. A. (San Francisco, 1963).

Multiple handling refers to the labor practice requiring the cargo to touch the “skin of the dock” after being unloaded before someone other than a longshoreman can handle it. For loading of cargo, only the longshoreman can place it on the ship after a teamster has unloaded it from his truck onto the dock. Kossoris, supra, n. 4, at 2.

Sling-load weight is the weight limit for a load of cargo. In 1961 the maximum weight was usually about 2,100 pounds per pallet (although much heavier loads apparently could have been carried safely). Larger pallets were “skimmed down” to 2,100 pounds by longshoremen. Ibid.

Each major port would have its own rules stipulating the number of men needed on gangs. Frequently, the number was more *304than was needed for the job. Por example, the “four-on four-off” gang required eight men in the hold of a ship, although only four actually worked while the other four rested. Id., at 3. See generally Killingsworth, supra, n. *7;* P. Hartman, Union Work Rules: A Brief Theoretical Analysis and Some Empirical Results, U. of Ill. Bull., Institute of Labor & Industrial Relations (1967).

Fairley, supra, n. 14, at 666.

Kossoris, supra, n. 4, at 1.

Although the method of raising this amount of money was not^ specified in the agreement, PMA accumulated the fund by assessing its members under a man-hour formula.

In August 1966 a new agreement was signed which continued the Mech Fund until 1971; but this time the employers agreed to pay even more into the fund each year — $6,900,000. Both the union and the employers were highly satisfied with the way the plan had worked. For a general description of the 1966 contract, see Business Week, July 30, 1966, at 108; Kossoris, 1966 West Coast Longshore Negotiations, 89 Monthly Labor Rev. 1067. Kos-soris points out the great effect which abolition of restrictive work practices and increased use of modern technology had had for the employers: “Tonnage increased by about 32 percent; but man-hours remained about the same. Despite an increase over the period of 56 cents in the basic wage and liberalization of fringe benefits, including the $5 million the employers paid into the fund, the cost per ton dropped from $6.26 to $6.16. . . . Making allowance for all important factors involved, the gain to employers from the M&M agreement may be placed conservatively as well in excess of $150 million. Subtracting from this the $27.5 million paid into the M&M fund over the 5% year period of the last contract makes the employer estimate of $120 million net gain appear realistic.” Id., at 1068-1069.

125 U. S. App. D. C. 282, 293, 371 F. 2d 747, 758 (1967).

We are told that this is not the first time that PMA members have entered into agreements among themselves to form and finance their collective bargaining agreements. They have agreed to the presentation of uniform bargaining terms, and have provided, through agreements among themselves, for the administration and implementation of their union contracts. All of these would affect transportation rates. In essence, such agreements, no less than the funding method employed by PMA, have established uniform costs for all employers of maritime labor — indeed the primary object of industry-wide bargaining has been to establish uniform wages, fringe benefits, and working conditions.

Mr. Paul St. Sure, President of PMA, testified: “It [the method of payment of the fund] was a definite part of the negotiations in that the union took a position with regard to the method of collection. PMA took a position with regard to the method of collection. There were discussions with the union during negotiation as to the problems that had been presented by the method of collection used with relation to the million dollars and a half. “We discussed with the union the differences of opinion among our own members as to the equitable method of providing for the collection of this money. “We ended up with an agreement by the union that, inasmuch as the employer members of the bargaining unit had committed themselves specifically to the payment of the sum, that whereas they were interested in the assurance that the sum would be collected, they would allow us to work out among ourselves the method of actual collection within the membership of PMA.” Such action, however, did not make the union a disinterested party; rather, the union certainly had a continuing interest in the method of financing the fund. Mr. St. Sure, who was deeply involved since 1948 in negotiations with the ILWU, testified: “There was a continuing interest and a continuing concern as to whether or not the collections under the fund were being met. Obviously they have, by joint trusteeship, joint custody of the fund, and I can assure you that they were alert as to whether or not the method of the custody, was working, because they believed this and, in fact, knew it was their money to spend in accordance with the agreement. “After all, this was a continuing relationship that we have, by the collective bargaining agreement, and my experience would suggest to me that we couldn’t have adopted the method which would defeat the very purpose for which we had reached a bargain without having further negotiations.” The Hearing Examiner stated in his opinion that “Mr. St. Sure testified that the ILWU’s interest in the method to be adopted, *309ceased after it was agreed that the method of collection was to be reserved to PMA.” In the printed record before the Court, however, I find no reference in .Mr. St. Sure’s testimony to a lack of interest on the part of the union concerning the method of collection of the fund. The Hearing Examiner does not indicate the testimony on which his interpretation of Mr. St. Sure’s presentation is based; and, at the least, that part of his testimony quoted would appear to raise a strong doubt whether it could be said that the interest of the union ceased. In any event, it is clear from Mr. St. Sure’s testimony that the method of collection was a prime topic of negotiations between the parties, and that the employers’ decision on the matter was intimately tied with the collective bargaining agreement.

Mr. St. Sure testified: “Well, this was still part of the bargaining process. We were still actually trying to conclude the bargain which we had developed and had signed a memorandum to cover. We still had the responsibility as a negotiating committee of reporting back to the board of directors, and then to the membership, and this was simply a convenient means of calling in some men that we felt were more expert in this field than the negotiators were who were operating people to make a recommendation as to a method of payment.”

See n. 24, supra.

See FMC Rule 5(1), 46 CFR §502.72 (petitions for intervention in FMC proceedings). See also FMC Rule 10 (c), 46 CFR § 502.143 (notice of hearings).

Indeed, the legislative history would appear to be to the contrary. See n. 9, supra.

The circumstance that the funding plan originated in collective bargaining and was a part of a collective bargaining agreement would not automatically create an exemption from the antitrust laws. See Mine Workers v. Pennington, 381 U. S. 657; Meat Cutters v. Jewel Tea, 381 U. S. 676; Allen Bradley Co. v. Union, 325 U. S. 797.

The Commission held under § 16 that that section is violated only if there is discrimination between competitors, which was not the situation here because the marine terminal companies have imposed no higher charges on Yolkswagens than on other automobiles. Although such an interpretation is supported by the construction placed on §3(1) of the Interstate Commerce Act, 49 U. S. C. §3 (1), United States v. Great Northern R. Co., 301 I. C. C. 21, 26-27, on which § 16 of the Shipping Act is modeled, United States Nav. Co. v. Cunard S. S. Co., 284 U. S. 474, 480-481, it has been suggested that the Commission has undermined its own rule by not requiring a competitive relationship in cases not involving freight rates: Investigation of Free Time Practices — Port of San Diego, 9 F. M. C. 525 (1966) (port free time); New York Foreign Freight Forwarders and Brokers Assn. v. FMC, 337 F. 2d 289 (C. A. 2d Cir. 1964), cert. denied, 380 U. S. 910 (billing methods of freight forwarders); Swift & Co. v. Gulf & South Atlantic Havana Conference, 6 F. M. B. 215 (1961) (route restrictions); Storage Practices at Longview, Washington, 6 F. M. B. 178 (1960) (storage charges). Moreover, it is argued that the competitive relationship test employed by the ICC under § 3 (1) of the Interstate Commerce Act is not “an indispensable element in a situation of undue prejudice and preference Joseph A. Goddard Realty Co. v. New York, C. & St. L. R. Co., 229 I. C. C. 497, 501. The Maritime Commission’s refusal to require a competitive relationship in certain cases, however, has diluted that principle only in those situations in which there are services that are not dependent upon the nature of the cargo and the various charges therefor. In the instant case, how*315ever, there are different charges levied depending upon the nature of the cargo involved. Petitioner conceded before the Hearing Examiner that “[w]e do not claim that the measurement formula 'regardless of how manifested’ subjects Volkswagen automobiles to ‘prejudice or disadvantage’ as compared to other automobiles, and we admit that there is no other cargo classification in competition with automobiles.” The competitive relationship rule has been applied consistently by the Commission in appropriate circumstances. The same rule has also been used by the ICC. Since I cannot say in the circumstances of this case that the requirement of a competitive relationship is unreasonable or inconsistent with the provisions of the Shipping Act, I would defer to the Commission’s expertise. Consolo v. FMC, 383 U. S. 607. With respect to § 17, the Commission expressly noted that (1) the measurement basis for assessing automobiles resulted in an assessment almost 10 times greater than a weight basis ($2.35 per vehicle as against approximately $0.25); (2) that although other cargo was assessed as manifested, vehicles were always assessed on a measurement basis; and (3) while automobile cargo would probably receive only general benefits from the mechanization plan (such as freedom from strikes and slowdowns), such cargo, unlike some other cargo, was unlikely to benefit from technological improvements in loading and unloading. Yet, the Commission held that the difference in treatment was not unreasonable because although automobile cargo may not have benefited as much as other cargo, it did receive “substantial benefits” from the mechanization agreement. As the Court holds, however, such a standard, which focuses on only the benefits received, represents too narrow a view of § 17. What petitioner is contesting essentially is PMA’s decision to adopt as the revenue ton for automobiles not a weight ton (2,000 pounds) but a measurement ton expressed in volumetric terms (40 cubic feet/ton). Since the average Volkswagen weighs only 1,800 pounds, but measures about 8.7 tons on a volume basis, it is being assessed $2.35 compared with the $0.25 it would otherwise have to pay on the basis of a weight-ton measurement. It is argued that this exaction is grossly disproportionate in light of the limited benefits which petitioner could expect to receive from the mechanization agreement as compared with those which other shippers could antici*316pate. To focus an inquiry solely on the benefits received may obscure the disparity between the charges ultimately falling upon petitioner and those exacted from other shippers. The Commission should compare the benefits received with the charges imposed on petitioner’s cargo and with those levied upon other cargo, which receives substantially similar benefits, before the question of reasonableness can be resolved. This determination is for the Commission to make in the first instance.