740 F.2d 160 (2nd Cir. 1984), 1353, O'Hare v. General Marine Transport Corp.

Docket Nº:1353, Docket 83-7848.
Citation:740 F.2d 160
Party Name:5 Employee Benefits Ca 2298 Joseph O'HARE, Albert M. Cornette, Peter Gale, Bruce A. McAllister, Robert W. Sanders, Thomas E. Moran, as Trustees of the New York Marine Towing & Transportation Industry Pension Fund and Insurance Fund, Appellees, v. GENERAL MARINE TRANSPORT CORP., Appellant.
Case Date:July 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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740 F.2d 160 (2nd Cir. 1984)

5 Employee Benefits Ca 2298

Joseph O'HARE, Albert M. Cornette, Peter Gale, Bruce A.

McAllister, Robert W. Sanders, Thomas E. Moran, as Trustees

of the New York Marine Towing & Transportation Industry

Pension Fund and Insurance Fund, Appellees,



No. 1353, Docket 83-7848.

United States Court of Appeals, Second Circuit

July 20, 1984

Argued June 4, 1984.

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Jared Stamell, New York City, for appellant.

Seymour M. Waldman, New York City (Roman Beck, Beck, Halberg & Williamson, Vladeck, Waldman, Elias & Engelhard, P.C., New York City, of counsel), for appellees.

Before OAKES and NEWMAN, Circuit Judges, and MISHLER, District Judge. [*]

OAKES, Circuit Judge:

This is an appeal from a number of orders of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, granting summary judgment for trustees of employee benefit pension and insurance funds and assessing damages against an employer for delinquent contributions. In essence, the court held that the trustees were owed the money, along with a double interest penalty and attorney's fees. We affirm.

The four decisions appealed from represent the most recent phase of what appears to be an endless dispute between General Marine Transport Corp. (General Marine), the owner of sludge vessels used to dispose of sewage sludge which work in the Port of New York, and the union which represents, or purports to represent, its employees, Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO (Local 333). The rights and duties of the various parties to this dispute have been extensively litigated--before the National Labor Relations Board (the Board or the NLRB), a number of times before Judge Sweet, and twice recently in this court. See Berman Enterprises Inc. v. Local 333, 644 F.2d 930 (2d Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981); General Marine

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Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir.1980). We assume familiarity with our previous decisions.

At issue in this case are pension and insurance trust fund payments (Fund payments) allegedly due from the employer pursuant to a collective bargaining agreement covering the period 1976-79 (the Agreement). The Agreement was between Local 333 and the Marine Towing & Transportation Industry Employees Association (the Association), an association representing shipping companies in the towing and transportation industry in the Port of New York in a multi-employer bargaining unit. Since the 1950s the collective agreements have provided for both a Pension Fund and an Insurance Fund, and since 1962 General Marine has been a member of the Association and a Fund participant.

The focus of this litigation is General Marine's contention that it withdrew from the Association after the 1976 Agreement was reached and that it therefore is not obliged to make Fund payments to the trustees pursuant to the Agreement. This issue of the validity of General Marine's attempted withdrawal from the Association in 1976 was litigated but not reached in General Marine Transport, 619 F.2d 180 (holding unfair labor practice charge against employer barred by statute of limitations). The district court held, as the Board had held before it, that General Marine was a party to the Agreement and that its purported withdrawal from the Association was invalid; it therefore held that the employer owed the trustees the Fund payments in question. In so holding, the court also ruled on a number of preliminary contentions raised by General Marine: that the district court had subject matter jurisdiction over this action, that the action was not barred by res judicata, that the suit was not barred by the statute of limitations, and that the suit was not barred because the trustees failed to exhaust their administrative remedies. In a separate opinion the court calculated damages in a manner challenged by General Marine, and also, on cross motions for summary judgment, dismissed General Marine's counterclaim having to do with certain related Fund payments made by General Marine to the Fund. We affirm the district court's opinion in all respects.


The relevant history of the bargaining between the parties is set out in Berman Enterprises, 644 F.2d at 932-34. Briefly put, in 1976 General Marine's president, Evelyn Berman Frank, signed a written form authorizing the Association to bargain with Local 333 on General Marine's behalf, as it had since 1962. In the course of the negotiations, Local 333 proposed, and the Association accepted, two contract provisions authorizing practices which General Marine had in the past found objectionable, so-called "vegetable oil" and "subsidiaries and affiliates" clauses. 1 Although given a chance by Local 333 and the Association to withdraw from the Association because of these clauses, General Marine chose to remain in the Association. The Agreement was signed on March 26, 1976, and became effective on April 1. 2

On April 13, 1976, General Marine notified the Association and Local 333 that it did not consider itself bound by the Agreement because the contract exceeded the

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authority of the Association to negotiate on its behalf. In particular, General Marine objected to the "vegetable oil" and the "subsidiaries and affiliates" clauses. As of April 1, General Marine stopped making contributions to either the Insurance or the Pension Fund for its employees.

The dispute about the "subsidiaries and affiliates" clause, which is relevant to the counterclaim and to one of General Marine's substantive defenses, involves a long-standing argument between General Marine and Local 333 concerning the employees covered by the 1973-76 agreement. General Marine is one of three subsidiary companies, along with Berman and Standard Tank, which operate barges in New York harbor and which are all owned by the Berman family. Only General Marine employees were explicitly covered by the Association-Local 333 agreements. The situation was complicated, however, by the Berman family's practice of having employees on the payroll of one affiliate work from time to time aboard vessels owned by another affiliate. When General Marine employees worked aboard Berman vessels, their employer treated them as were subject to the salary and other provisions of a contract covering Berman, rather than General Marine employees, but General Marine made payments to the Funds on their behalf as dictated by the agreement with Local 333.

Local 333 sought to have all Berman family employees, or, failing that, at least all employees on General Marine's payroll, determined to be members of Local 333 and bound by the Agreement. The issue was litigated before the Board, and General Marine obtained favorable results. In particular, it was determined that Berman employees were not covered by the Agreement, and that there was no "contract bar" preventing the Berman employees and the General Marine employees working on Berman vessels from holding an election to choose a bargaining representative. An election was held, and the employees in question chose to be represented by a non-Local 333 union, the Marine Engineers Beneficial Association (MEBA). These employees were then expelled from Local 333. Questions involving the representational status of all Berman family employees were, or at least should have been, resolved.

After the representational questions had been resolved, Local 333 filed unfair labor practices charges with the Board concerning General Marine's repudiation of the Agreement as regards General Marine employees working on General Marine vessels--the only employees whom the Board found were members of Local 333. The Board held that General Marine was bound by the Agreement as regarded these employees and had therefore committed an unfair labor practice by attempting to repudiate it. This court then denied enforcement of the Board order, on the procedural ground that the union had not filed the charge within the six-month statute of limitations of section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b) (1982). General Marine Transport Corp., 619 F.2d 180. The trustees were not parties to that action.

Subsequently, General Marine and its affiliates sued the Association, many of its members, Local 333, and the trustees, in federal district court, asserting that the Agreement, and in particular the "vegetable oil" and "subsidiaries and affiliates" clauses were illegal and constituted a group boycott in violation of the antitrust laws. The trustees counterclaimed to recover the Fund payments at issue here, but before trial the claims against the trustees were voluntarily dismissed, and the counterclaim was dismissed and subsequently reasserted in the separate complaint which was litigated below. A jury resolved the antitrust suit in favor of the defendants, a verdict which was upheld on appeal. Berman Enterprises, 644 F.2d 930.

The present suit, evolving from the counterclaim in the antitrust suit, sought recovery of the unpaid Fund contributions due for the General Marine employees working on General Marine vessels, including interest and attorney's fees pursuant to section

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502 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1132. General Marine counterclaimed seeking repayment to it or to a receiver for certain funds paid to the trustees in the 1973-76 period for the General Marine employees who worked on Berman vessels who, after the 1976 representation election was held, chose to join the MEBA.

The suit was litigated in five stages and...

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