Berman Enterprises Inc. v. Local 333, United Marine Div., Intern. Longshoremen's Ass'n

• Citation: 644 F.2d 930
• Decision Date: 25 February 1981
• Docket Number: No. 112,D,112
• Parties: 106 L.R.R.M. (BNA) 2649, 90 Lab.Cas. P 12,611, 1980-81 Trade Cases 63,852, 8 Fed. R. Evid. Serv. 68 BERMAN ENTERPRISES INC., Standard Tank Cleaning Corp., and General Marine Transport Corp., Plaintiffs-Appellants, v. LOCAL 333, UNITED MARINE DIVISION, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Marine Towing and Transportation Employers' Association, McAllister Brothers, Inc., Diesel Vessel Operators, Inc., Spentonbush Transport Service, Inc., Morania Oil Tanker Corporation, Bouchard Transportation Company, Inc., Moran Towing & Transportation Company, Inc., Poling Transportation Corporation, Eklof Marine Corporation, Red Star Marine Services, Inc., Reinauer Transportation Companies, Inc., and Turecamo Coastal & Harbor Towing Corporation, Defendants-Appellees. ocket 80-7260.
• Court: U.S. Court of Appeals — Second Circuit

Page 930

644 F.2d 930

106 L.R.R.M. (BNA) 2649, 90 Lab.Cas. P 12,611,

1980-81 Trade Cases 63,852,

8 Fed. R. Evid. Serv. 68

BERMAN ENTERPRISES INC., Standard Tank Cleaning Corp., and General Marine Transport Corp., Plaintiffs-Appellants, v. LOCAL 333, UNITED MARINE DIVISION, INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION, Marine Towing and Transportation

Employers' Association, McAllister Brothers, Inc., Diesel

Vessel Operators, Inc., Spentonbush Transport Service, Inc.,

Morania Oil Tanker Corporation, Bouchard Transportation

Company, Inc., Moran Towing & Transportation Company, Inc.,

Poling Transportation Corporation, Eklof Marine Corporation,

Red Star Marine Services, Inc., Reinauer Transportation

Companies, Inc., and Turecamo Coastal & Harbor Towing

Corporation, Defendants-Appellees.

No. 112, Docket 80-7260.

United States Court of Appeals, Second Circuit.

Argued Dec. 3, 1980.

Decided Feb. 25, 1981.

Jared Stamell, New York City (Kevin J. McGill, Clifton, Budd, Burke & DeMaria, New York City, on brief), for plaintiffs-appellants.

Daniel A. Pollack, New York City (Martin I. Kaminsky, Pollack & Kaminsky, New York City, on brief), for defendant-appellee Marine Towing and Transp. Employers' Ass'n.

Seymour M. Waldman, Waldman & Waldman, New York City, for defendant-appellee Local 333, United Marine Division, Intern. Longshoremen's Ass'n.

Michael J. McAllister, Lunney & Crocco, New York City, of counsel, for defendant-appellee McAllister Brothers, Inc.

Martin J. McHugh, McHugh, Leonard & O'Conor, New York City, of counsel, for defendants-appellees Diesel Vessel Operators, Inc., Spentonbush Transport Service, Inc., and Red Star Marine Services, Inc.

Jacob I. Goodstein, Benjamin Wm. Mehlman, Goodstein, Mehlman & Krones, New York City, of counsel, for defendant-appellee Morania Oil Tanker Corp.

Celestino Tesoriero, Grainger & Tesoriero, New York City, of counsel, for defendant-appellee Bouchard Transp. Co., Inc.

Norman Yoerg, Jr., White & Case, New York City, of counsel, for defendant-appellee Moran Towing & Transp. Co., Inc. Herbert B. Halberg, Beck, Halberg & Williamson, New York City, of counsel, for defendant-appellee Eklof Marine Corp.

Kenneth J. McGuire, Stein, Bliablias & McGuire, Newark, N. J., of counsel, for defendant-appellee Reinauer Transp. Companies, Inc.

Renato C. Giallorenzi, Giallorenzi & Campbell, New York City, of counsel, for defendant-appellee Turecamo Coastal & Harbor Towing Corp.

Before OAKES and MESKILL, Circuit Judges, and WERKER, District Judge. ^*

OAKES, Circuit Judge:

This appeal concerns labor practices and collective bargaining provisions in the marine transportation service industry. Appellants are three affiliated companies, Berman Enterprises Inc. (Berman), General Marine Transport Corp. (General Marine), and Standard Tank Cleaning Corp. (Standard Tank). They allege antitrust violations by Marine Towing and Transportation Employers' Association (Association), a multiemployer bargaining organization, certain of the Association's members, and Local 333, United Marine Division, International Longshoremen's Association (Union), a union representing vessel employees. Appellants also allege labor law violations by the Union. The United States District Court for the Southern District of New York, Robert W. Sweet, Judge, at the conclusion of the evidence dismissed all elements of the antitrust claim except that portion alleging conspiracy to refuse to deal with Berman. Thereafter the jury returned verdicts against Berman and the companies affiliated with it on the remaining antitrust claim and on the labor claim. The court then denied the appellants' request for injunctive relief. On appeal the three affiliated companies argue that the antitrust claim should not have been dismissed, that the court should have directed a verdict for the appellants on the labor claim, and that evidence concerning salaries of Berman's officers should neither have been admitted nor have been the subject of an argument about Berman's damages. We cannot accept these contentions and, accordingly, affirm the judgment below.

I. FACTS

Berman, General Marine, and Standard Tank are all owned by Standard Marine Services, Inc., which in turn is owned by Evelyn Berman Frank and her brothers, Berman operates tugs, barges, and harbor tankers in New York harbor; General Marine operates two ships which dispose of sewage sludge produced by municipal customers; and Standard Tank operates a vessel-cleaning facility and one tank-cleaning vessel.

General Marine was a member of the Association at the time the dispute in question arose, but Berman and Standard Tank were not and the Union did not represent their employees. ¹ The Union and the Association have three labor contracts covering employees on tugs, barges, and self-propelled tankers, respectively. Berman, or its predecessor, and the appellee Association member corporations have for many years been customers as well as competitors of one another, hiring each other's tugs or barges from time to time, but also competing for business from third parties. Berman operates with one man on a barge and four-man barge crews, whereas members of the Association, pursuant to a collective bargaining agreement with the Union, operate with two men on a barge and a six- or seven-man barge crew.

Well before April 1, 1976, the date of the new collective bargaining agreement with which we are concerned here, the Union unsuccessfully sought to require Berman to cease towing unmanned vegetable oil barges ² of MOTC Acquisitions Corp. (MOTC). The Union had decided that all barges with less than a certain carrying capacity should be manned by a crew of two. A federal district court, however, enjoined the Union from so coercing Berman, and the National Labor Relations Board subsequently found that the Union had engaged in a secondary boycott unlawful under section 8(b)(4) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4), as well as having violated other provisions of the NLRA, United Marine Division Local 333, 226 N.L.R.B. 1214 (1976). Shortly thereafter the Union, claiming that it had previously terminated its labor contract, struck General Marine but again was unsuccessful; a federal district court enjoined the strike and this court upheld the injunction on appeal, General Marine Transport Corp. v. Local 333, United Marine Division, No. 75-7559 (2d Cir. Mar. 10, 1976). General Marine later obtained favorable holdings on this matter both before the Board, which found violations of sections 8(d), 8(b)(3), and 8(b)(1)(A) of the NLRA, United Marine Division Local 333, 228 N.L.R.B. 1107 (1977), and before an arbitrator.

In January 1976 the Union made certain demands upon the Association for contract provisions to be incorporated in the new collective bargaining agreement, which was to commence on April 1, 1976. This was followed by a Union demand made to General Marine that all the Berman companies' crew members, except those on the tank-cleaning vessel, join the Union and that all hiring be done through the Union hiring hall. Further negotiations, accompanied by the litigation noted above, resulted in an impasse, with General Marine refusing to resign from the Association despite the Association bargaining committee's statement that unless General Marine resigned, the Association would enter into a contract that satisfied the Union. Finally on March 26, 1976, the Union and the Association entered into a Memorandum of Agreement containing what we will call the "vegetable oil" and the "affiliates" clauses, the first in effect requiring two men on vegetable oil barges carrying less than 55,000 barrels ³ and the second requiring affiliates of Association members to operate under the contract. ⁴

After the Union ratified the new contract, the Union president wrote General Marine to demand compliance with the affiliates clause and to list fourteen Berman-General Marine vessels which he claimed were covered by the Union-Association contract. At about the same time, in early April 1976, the Union membership was informed about and advised to enforce the vegetable oil clause, on pain of discipline. Following General Marine's response that the contract exceeded the scope of the Association's bargaining power and constituted a group boycott, the Union again struck General Marine. The Union also advised Association members not to deal with Berman and specifically not to tow Berman barges with less than two men aboard. ⁵ Subsequently, in June 1976, Berman filed a petition with the Board for an election to determine whether its employees wanted to be represented by a labor union. The Union opposed such an election, but the Board's Regional Director ordered an election and the Berman employees chose Marine Engineers Beneficial Association (MEBA) as their union.

This suit by Berman, General Marine, and Standard Tank is in two counts the first charges all defendants with a combination in restraint of trade under section 1 of the Sherman Act, 15 U.S.C. § 1, and seeks damages under section 4 of the Clayton Act, 15 U.S.C. § 15, and an injunction under section 16 of the Clayton Act, 15 U.S.C. § 26. The second count charges the Union alone with participation in a secondary boycott in violation of section 303 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 187, and seeks damages from the Union.

The court below held that the vegetable oil and the affiliates clauses, as well as the actions taken under them, were not themselves antitrust violations in light of the so-called "labor exemption" to the antitrust laws, ⁶ and, alternatively, that these clauses did not have the anticompetitive purpose or effect necessary to violate section 1 of the Sherman Act, though they could be used as evidence of an agreement to refuse to deal, an agreement which the jury specially found did not exist. The jury also specially found against Berman and its affiliated companies on three questions submitted...