Barninger v. National Maritime Union

• Decision Date: 05 March 1974
• Docket Number: No. 72 Civ. 1949.,72 Civ. 1949.
• Citation: 372 F. Supp. 908
• Parties: Samuel BARNINGER et al., Plaintiffs, v. NATIONAL MARITIME UNION et al., Defendants.
• Court: U.S. District Court — Southern District of New York

372 F. Supp. 908

Samuel BARNINGER et al., Plaintiffs, v. NATIONAL MARITIME UNION et al., Defendants.

No. 72 Civ. 1949.

United States District Court, S. D. New York.

March 5, 1974.

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Rabinowitz, Boudin & Standard, New York City, for plaintiffs; K. Randlett Walster and Dorian Bowman, New York City, of counsel.

Abraham E. Freedman, New York City, for defendant National Maritime Union; Charles Sovel, New York City, of counsel.

Proskauer, Rose, Goetz & Mendelsohn, New York City, for defendant Bd. of Trustees, National Maritime Union Pension Plan; Michael A. Cardozo and Myra J. Green, New York City, of counsel.

GURFEIN, District Judge:

Nine named plaintiffs have brought this purported class action against the defendants National Maritime Union ("NMU") and the Trustees of the NMU Pension Plan ("Pension Plan" or "Trustees"), and an employers association, American Merchant Marine Institute, Inc. ("Institute") which had had a collective bargaining agreement with NMU and is now defunct.

NMU is a labor organization representing, for purposes of collective bargaining, unlicensed seamen of various employers in the American Merchant Marine. Defendant Pension Plan (Trustees) is a pension plan established pursuant to the provisions of Section 302 of the Labor Management Relations Act, 29 U.S.C. § 186, to provide pensions to employees of contributing employers. Half of the trustees are appointed by the Union and the other half by the employers contributing to the Pension Plan, i. e., by those having a collective bargaining agreement with defendant Union. The Pension Plan is funded solely by employer contributions.

Plaintiffs are unlicensed seamen who are members of the National Maritime Union.

THE COMPLAINT

The action was commenced by the filing of a summons and complaint dated April 11, 1972. The amended complaint of the plaintiffs was filed on July 3, 1972 (hereinafter "complaint"). Defendants NMU and the Trustees have moved for summary judgment.

The complaint alleges, in substance, that the plaintiffs and the class they represent are entitled to pensions under the NMU Pension Plan and that they are entitled to enforcement of their rights accordingly. The plaintiff seamen are by now old men. To understand their grievances, one must delve into a bygone era in American history.

The NMU was founded in 1937, and a number of the plaintiffs were among its founders. For many years prior to 1950, the plaintiffs sailed the seas as unlicensed seamen and as members of the NMU. Between 1951 and 1955, the complaint alleges, the plaintiffs had been prevented from sailing because the United States Coast Guard refused to issue them security clearances. In 1955, the Court of Appeals for the Ninth Circuit held, in Parker v. Lester, 227 F.2d 708 (9 Cir. 1955), that the procedure followed by the Coast Guard violated the essentials of due process and was unconstitutional. Thereafter, at various times between January 1 and June 1, 1957, the Coast Guard restored valid Merchant Mariner's documents to the plaintiffs and other unlicensed seamen who had previously been denied security clearance.

It is alleged that there was no substantial opportunity to secure employment as an unlicensed seaman in the Port of New York except through referral by the NMU; and that the NMU deliberately provided in its scheme of priorities for referral that in order to be classified in Group 1, the most favored group, unlicensed seamen must have been employed during the period of June 1, 1953 and December 31, 1953, inclusive.¹ It is alleged that the NMU did this in violation of its duty as bargaining representative, and for the purpose of giving effect to the Coast Guard's decision to screen plaintiffs and their class off the ships for loyalty reasons. It is specifically charged that "the adoption of this period to determine eligibility in Group 1 by the NMU and the Institute constituted a continuation of the Coast Guard's unconstitutional screening action." (Compl. ¶ 19).

Moreover, it is alleged that in June, 1957, the NMU, in violation of its duty as collective bargaining agent, amended its collective bargaining agreements with the Institute to authorize the NMU to refuse to refer for employment the plaintiffs and others similarly situated.

This alleged discriminatory course of conduct has resulted in two actions. In 1958, an action entitled Berman et al. v. NMU et al. #130-187 was started in this court to enjoin the NMU from refusing to register and assign the plaintiffs for work in a Group 1 priority. Judge Bicks refused to dismiss the complaint, 166 F.Supp. 327 (S.D.N.Y.1958), and the action was subsequently settled, of which more herein.

The second action arising out of the NMU's alleged discriminatory activity is this action. It is alleged that but for the arbitrary refusal to refer them for work, the plaintiffs would have been able to sail after June 16, 1957, the date of the alleged discriminatory amendment to the collective bargaining agreement, and that they should not have been penalized for having been prevented, as well, from sailing in the crucial 1951-1953 period.

The complaint further alleges that the regulation of the Pension Plan, first adopted in 1953, and carried over in essentially the same form to today, whereby a break-in-service results if a man fails to work 200 days in every three year period, "was adopted . . . for the purpose of excluding screened seamen from pension benefits." (Compl. ¶ 31). The related regulation, that to obtain pension credit for the period prior to 1951 a seaman had to have worked at least 200 days between 1951 and 1953, was also adopted, plaintiffs allege, "for the purpose of excluding seamen screened by the Coast Guard." (Compl. ¶ 29). Adoption of the challenged regulations by the Trustees as "agent" for the NMU and the Institute, the complaint concludes, constituted a violation of the NMU's duty of fair representation. (Compl. ¶ 33).

The relief requested on behalf of the named plaintiffs and others alleged to be similarly situated includes: (a) a declaratory judgment that the time between 1951 and 1960 that the plaintiffs were prevented from sailing by the United States Coast Guard or the NMU be declared not to be a break-in-service under the Pension Plan,

(b) that the NMU be required to contribute an appropriate dollar amount to the pension trust,

(c) that a full year's pension credit be given for each year any plaintiff was prevented from sailing by the NMU or the United States Coast Guard,

(d) that the Trustees be enjoined from refusing to pay plaintiffs a pension,

(e) that the plaintiffs, as a class, be awarded damages, and

(f) attorneys' fees.

Federal subject matter jurisdiction is based on 28 U.S.C. § 1337, the commerce jurisdiction, with pendent jurisdiction alleged over state claims. The action arises under the Labor Management Relations Act, 29 U.S.C. § 141 et seq. The defendant assumes that it arises under 29 U.S.C. § 185 (Section 301 of the Act), but that section deals with suits "for violation of contracts." The plaintiffs are right when they say that their claim is based rather on 29 U.S.C. § 159 (Section 101 of the Act) which provides that representatives designated for collective bargaining shall be "the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." (Emphasis supplied). The NMU was the exclusive representative for bargaining the terms of the Pension Plan—a "condition of employment." As such representative, it owed the plaintiff members of the union a duty of fair and non-discriminatory representation. Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Steele v. Louisville & N. R. Co., 323 U.S. 192, 198-199, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Allegations such as these support jurisdiction under a claim of violation of Section 101.

Class Action

The first issue for resolution is whether the named plaintiffs have established their right to represent a class. I am constrained to find that they have not. A good deal of discovery has been allowed to go forward on this issue, but there has been inadequate proof of a class sufficiently numerous to warrant class action treatment.

There are, as we have seen, nine named plaintiffs. The other potential class members would have to be persons similarly discriminated against. Such persons would be unlicensed seamen who (1) had been employed as provided for in the Plan before the United States Coast Guard screening; (2) were denied security clearance by the Coast Guard; (3) did not sail 200 days during the period 1951-1953; (4) went back to work on the ships after the freeze was lifted and (5) are otherwise eligible by age and years of service to a pension, but whose pension eligibility is now restricted because they were precluded from employment by the NMU and the Coast Guard.

Neither the previous efforts of the plaintiffs to locate such persons by extensive correspondence nor by other means has been of any avail. The plaintiffs have suggested that, aside from three intervenors, there may be fifty other members of the class. They have actually tendered twenty-six names of persons who might become class members.

Of these, the process of discovery has elicited that nine either never returned to sea service in the 1960's,² or were not members of the NMU,³ or have already sued for a pension unsuccessfully.⁴ With respect to five others there has been insufficient proof that they belong in the class.⁵ In addition, there are six other possible class members who have failed to reply to requests for information.

The upshot is that there are only six additional persons who may be considered eligible for the class at this time, making a total of fifteen or eighteen in all. Since this is the conclusion at the end of years of search, I cannot find...