Philadelphia Mar. Tr. Ass'n v. INTERNATIONAL LONG. ASS'N, L. 1291, 15613.

Decision Date11 August 1966
Docket NumberNo. 15613.,15613.
PartiesPHILADELPHIA MARINE TRADE ASSOCIATION v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1291, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Abraham E. Freedman, Philadelphia, Pa. (Martin J. Vigderman and Freedman, Borowsky & Lorry, Philadelphia, Pa., on the brief), for appellant.

Francis A. Scanlan, Philadelphia, Pa. (Kelly, Deasey & Scanlan, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, HASTIE and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

McLAUGHLIN, Circuit Judge.

In this action to enforce an arbitration award under a labor management contract, the trial Court ordered enforcement and the defendant union appeals.

The plaintiff association is a non profit organization comprised of steamship owners, operators, stevedores and the like in the port of Philadelphia. The union is the bargaining agent of the Philadelphia deep sea longshoremen. The bargaining agreement, dated February 11, 1965, applied retroactively from October 1, 1964 and expires September 30, 1968. On April 26, 1965, there was a dispute between the association and the union over the meaning of Section 10, sub. par. 6 of the agreement. The general caption of Section 10 is "Hiring System". Subparagraph (6) reads:

"(6) Gangs ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM at which time a four hour guarantee shall apply. A one hour guarantee shall apply for the morning period unless employed during the morning period."

The matter was correctly referred to an arbitrator, Milton M. Weiss, Esq. There were three hearings, April 30, 1965, May 3, 1965 and May 5, 1965. At the start of the first hearing the Arbitrator stated:

"This hearing that we are conducting today, relating to interpretations of a clause of your new contract, from what I understand, between the parties, it has been agreed that it would be carried on in accordance with the usual procedures of The American Arbitration Association. Being a member of that panel, and having conducted hearings along these lines, I will proceed in the same fashion as we do in those cases."

He then said:

"I think maybe there are a couple of things I would like to say. I think all of us would like, perhaps, to resolve right in the beginning that it is understood between the parties that the determination made by the Arbitrator in this case will be final and binding."

To this Mr. Freedman, counsel for the Union, answered, "That is our understanding. As a matter of fact, that is the understanding of the agreement." Mr. Scanlan, counsel for the association, answered: "Yes. In accordance with the contract."

A thorough, well reasoned decision was filed by the Arbitrator June 11, 1965. In that opinion the Arbitrator properly stated the "Issue Involved" as follows:

"Whether the provisions in the Memorandum of Settlement referred to above, i. e. Section 10, subparagraphs 5 and 6, are to be considered together so that the Employer\'s right to set back a gang from 8:00 A.M. to 1:00 P.M. is conditioned solely upon the nonarrival of a vessel in port, or is the Employer\'s right under Section 10, subparagraph 6 to set back a gang without qualification?"

The Arbitrator ruled:

"It is the Arbitrator\'s opinion that this Section 10(6) of the Memorandum of Settlement dated February 11, 1965 is clear and unequivocal and should not be given meaning other than expressed. If the Arbitrator were to read into Section 10(6) the limitation urged on him by the Union, i. e. applicable only in case of non-arrival of a vessel in port, he would in effect be writing into the Memorandum of Settlement something which is not there. The Arbitrator has carefully reviewed the testimony as well as exhibits relating to the negotiations between the parties which resulted in their final agreement. It is quite obvious that the document finally agreed upon was the subject of much discussion and negotiation, and both parties had ample opportunity to modify and change these provisions before the final instrument was drawn. A review of the negotiations set forth above relating to Section 10(5) and 10(6) indicates clearly that there was much discussion and negotiation before the final draft which was contained in the Memorandum of Settlement dated February 11, 1965."

In making his Award, the Arbitrator held:

"The contention of the Employer, the Philadelphia Marine Trade Association, is hereby sustained and it is the Arbitrator\'s determination that Section 10(6) of the Memorandum of Settlement dated February 11, 1965, providing gangs `ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM, at which time a 4 hour guarantee shall apply. A 1 hour guarantee shall apply for the morning period unless employed during the morning period,\' may be invoked by the Employer without qualification.
"The contention of the Union, the International Longshoremen\'s Association, Local No. 1291, that Section 10 (6) of the Memorandum of Settlement dated February 11, 1965, referred to above, can only be invoked by the Employer because of non-arrival of a vessel in port, is denied."

On July 30, 1965 the Union refused to acquiesce in Nacirema Operating Company, one of the Association employers, setting back an 8:00 A.M. start of work to 1:00 P.M.

According to the testimony which was not denied, the President of the Union, Mr. Askew, advised the executive director of the Trade Association, Mr. Corry, that "the arbitrator's award only applied to non-arrival of a ship." Told by Mr. Corry that "The arbitrator's award applies without qualification," Mr. Corry testified that Mr. Askew replied, "`It does not' and they were not going to live by it." Mr. Corry stated that Mr. Askew told him he would have to talk to the business agents. Mr. Corry said he did so, to Messrs. Johnson and Devine, that Mr. Johnson did most of the talking "— and Paul Johnson said that they were not going to abide by the arbitrator's decision on the setback, and Mr. Devine as much as said, `Yes, that's right,' and that was the extent of my conversation with them."

On August 2, 1965, the Association filed a complaint against the Union in the District Court. This set out the labor agreement between the parties, the Arbitration Award, "that the Union does not agree with the Arbitrator's Award and does not intend to comply with the terms of such award." The complaint went on to allege serious damage to the Employer, the owners and operators of the particular vessel and to the Port of Philadelphia. It stated that "The defendant's refusal to comply with the Arbitrator's Award constitutes a breach of the applicable provisions of the current Collective Bargaining Agreement between P.M.T.A. and the Union." It prayed for an immediate hearing and "an order enforcing the Arbitrator's Award" with "* * * such other and further relief as may be justified." The District Court issued an order to show cause to defendant, "why it has not complied with the Arbitrator's Award of June 11, 1965" and a hearing was set for August 3, 1965, 11 A.M. A motion was filed on behalf of defendant to dismiss the complaint upon the grounds it did not state a cause of action and that the Court was without jurisdiction to grant the relief sought which the motion called "injunctive".

At the hearing counsel for the plaintiff informed the Court that the action was under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185) for enforcement of the Arbitration Award, above quoted, under the bargaining agreement between the parties which the union had refused to abide by in connection with the employer's attempted set back of work on July 30th and that the union's position was that it "would not abide by the arbitrator's award."

Counsel for the union told the Court "We, that is, the union, make no bones about the fact that they are unhappy with the arbitrator's award, but we realize that we are stuck with it." He insisted several times more that the union would live up to the arbitrator's award. After argument on the question of jurisdiction, the Court held it possessed jurisdiction. Contention was made for the union that the employees had to be notified by 7:30 A.M. of a set back. Actually, all the award mentioned about 7:30 A.M. was, as seen above, to repeat the language of 10(6) of the employment agreement providing that the gangs "ordered for an 8:00 A.M. start Monday through Friday can be set back at 7:30 A.M. on the day of the work * * *." There is nothing regarding notification to employees by 7:30 A.M. In passing, that would be a physical impossibility where the set back itself did not take place until 7:30 A.M. This particular argument was not urged at the later hearing nor is it alluded to on this appeal.

At the August 3rd hearing the Court was advised by counsel for the plaintiff that because of the economic problem of keeping the ship idle, the objected to additional wages demanded had been paid and that the men had returned to work. The Court made the following statement:

"I will keep the matter in hand. I will keep the matter in hand as a judge. If anything arises, I will take jurisdiction, and whatever the situation is, we will handle it at that time.
"So if you don\'t want to present any more testimony today, on either part, we will just continue the hearing; that\'s all. It will be continued."

The question of the construction of the Arbitrator's Award again came before the Court on September 13, 1965. At that time the Court said to counsel on both sides:

"It was my recollection that at the testimony of the last time, I said that I would keep the case in my hands and continue it and hold the matter in my jurisdiction, and with that I think we closed the case.
"Now, I understand from Mr. Scanlan some other facts have arisen which were not in existence at the last time
...

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