Empresa Hondurena de Vapores, SA v. McLeod

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 200 F. Supp. 484
• Decision Date: 16 December 1961
• Parties: EMPRESA HONDURENA DE VAPORES, S.A., Plaintiff, v. Ivan C. McLEOD, Regional Director for the Second Region of the National Labor Relations Board, Defendant.

200 F. Supp. 484

EMPRESA HONDURENA DE VAPORES, S.A., Plaintiff,
v.
Ivan C. McLEOD, Regional Director for the Second Region of the National Labor Relations Board, Defendant.

United States District Court S. D. New York.

December 16, 1961.

200 F. Supp. 485

White & Case, New York City, for plaintiff, Orison S. Marden and Chester Bordeau, New York City, of counsel.

Allan I. Mendelsohn, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, 2nd Region, Washington, D. C., Samuel M. Kaynard, Regional Atty., New York City, for defendant.

Cooper, Ostrin & DeVarco, New York City, for Nat. Maritime Union, intervenors, H. Howard Ostrin, New York City, of counsel.

PALMIERI, District Judge.

This is a motion¹ for a preliminary injunction restraining defendant² from carrying out an order of the National Labor Relations Board (Board) directing a representation election among the unlicensed seamen employees of Empresa Hondurena de Vapores, S.A. (Empresa). A complaint seeking permanent injunctive relief was filed simultaneously with the motion papers.

The election has been ordered to commence on December 17, 1961, on vessels owned or operated by plaintiff upon their arrival in United States ports and by mailing ballots to employees not aboard vessels scheduled to arrive in the United States between December 17, 1961 and January 31, 1962. Plaintiff is a Honduran corporation, operating vessels registered under the laws of Honduras and carrying the Honduran flag. The unlicensed seamen employed by plaintiff are, with the exception of one who is a citizen of Jamaica, all citizens of Honduras and, with the exception of four, all residents of Honduras. All are also members of a Honduran labor union, Sociedad Nacional de Marineros de Honduras,³ which is certified by the Ministry of Labor of Honduras. Empresa is, however, a wholly owned subsidiary of United Fruit Company (United Fruit), a New Jersey corporation with its principal place of business at Boston, Massachusetts. Since its formation Empresa has, with few possible exceptions, chartered all its vessels to United Fruit which uses them, for the most part, to carry produce of United Fruit's Latin American operations. It is the plaintiff's position that the Board, in making the order here in question, exceeded its powers under the Labor Management Relations Act of 1947, 29 U.S.C. Chapter 7, inasmuch as this Act has been held by the Supreme

200 F. Supp. 486

Court of the United States⁴ to be inapplicable to labor relations between nationals of foreign countries operating vessels under foreign laws and their foreign workers. The plaintiff urges, in addition, that the Board's direction that the representation election be held, presents a substantial Constitutional question: that such action is in contravention of treaty obligations with the Republic of Honduras and therefore violative of Article VI of the Constitution.⁵

The Jurisdiction of this Court to Grant the Relief Requested by the Plaintiff

At the very outset, it is necessary to consider the Board's objection that this Court lacks jurisdiction over the subject matter of this action. The objection is based upon the proposition that an employer is not entitled to invoke the jurisdiction of a federal district court to review the Board's direction of a representation election because an adequate and exclusive statutory method of obtaining judicial review by the appropriate Court of Appeals has been provided.⁶ The plaintiff, on the other hand, relies on the frequently cited and much discussed decisions in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); and Fay v. Douds, 172 F.2d 720 (2d Cir., 1949).

On the one hand there can be no doubt that the Labor Management Relations Act of 1947 manifested a clear Congressional recognition that to achieve the statute's basic policy of promoting collective bargaining dilatory litigation had to be avoided; that a restriction of the scope and method of review of labor determinations tended to achieve this result; and that such restriction tended to promote the efficient functioning of the Board as well.⁷ Thus, it has come to

200 F. Supp. 487

be generally recognized that Board determinations in representation proceedings are not reviewable by district courts under their general equity jurisdiction.⁸ But this generally settled rule is subject to two exceptions — those established by the two decisions upon which the plaintiff relies. The nature of these exceptions and their impact upon the general rule were succinctly explained by Judge Friendly in a recent opinion, Local 1545, United Brotherhood of Carpenters v. Vincent, 286 F.2d 127, 129-130 (2d Cir., 1960)

"Subsequently, two exceptions to this general rule excluding District Court jurisdiction to enjoin Board directions in representation matters have been recognized. The first was this Court's decision in Fay v. Douds, 2 Cir., 1949, 172 F.2d 720, 723, relating to cases where the plaintiff advances a claim of denial of constitutional rights, in that case lack of procedural due process, which is `not transparently frivolous.' Thereafter a second exception was announced, first by the Court of Appeals of the District of Columbia

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