INTERN. LONGSHOREMEN'S ASS'N v. WEST GULF MARITIME

• Decision Date: 04 October 1984
• Docket Number: No. 84 CIV 4594 (LBS).,84 CIV 4594 (LBS).
• Citation: 594 F. Supp. 670
• Parties: INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Petitioner, v. WEST GULF MARITIME ASSOCIATION, Respondent, Council of North Atlantic Shipping Associations, Intervenor.
• Court: U.S. District Court — Southern District of New York

594 F. Supp. 670

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Petitioner, v. WEST GULF MARITIME ASSOCIATION, Respondent, Council of North Atlantic Shipping Associations, Intervenor.

No. 84 CIV 4594 (LBS).

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

October 4, 1984.

Thomas W. Gleason, New York City, for petitioner; Ernest L. Mathews, Jr., New York City, of counsel.

Healy & Baillie, New York City, for respondent; Howard M. McCormack, George M. Leing, New York City, of counsel.

Clifton, Budd, Burke & DeMaria, New York City, for intervenor; Kevin J. McGill, Carlyle M. Dunaway, Jr., New York City, of counsel.

OPINION

SAND, District Judge.^*

The International Longshoremen's Association (hereinafter the "ILA") has petitioned this Court to confirm and enforce an arbitration award made by the ILA-Management Emergency Hearing Panel (hereinafter the "Emergency Hearing Panel," the "EHP," or "the Panel") at its June 12, 1984 meeting in New York City.¹ Respondent West Gulf Maritime Association (hereinafter "WGMA") seeks, in turn, to have the award vacated. The Council of North Atlantic Shipping Associations (hereinafter "CONASA") has intervened on behalf of Respondent. The action is based on § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the United States Arbitration Act, 9 U.S.C. §§ 9 and 10. For the reasons discussed below, we remand the matter to the Emergency Hearing Panel for further proceedings not inconsistent with this Opinion.

Background

Petitioner ILA, Respondent WGMA, and Intervenor CONASA are signatories to a series of collective bargaining agreements between the ILA and a coalition of seven multi-employer shipping associations. These agreements, which pertain to longshore operations in 36 ports ranging from New England to Texas, are known collectively as the Master Contract. Among the provisions of the Master Contract is one that establishes the Emergency Hearing Panel — a panel comprising representatives of the ILA and the signatory shipping associations whose function it is to resolve disputes relating to the containerization provisions of the Master Contract.

At a meeting held on June 12, 1984, in New York City, the Panel heard a grievance brought by Local 20 of the ILA against WGMA. According to the minutes of the meeting, the following events transpired.² The grievance alleged that WGMA's practice of requiring members of the ILA's 20-man containerization gang to function as Port-O-Packer operators, rather than hiring additional men to operate the machines, violated the Master Contract's requirement that the minimum size of a container gang be 18 men plus two drivers. After some discussion, a motion was made by an ILA representative "that the gang size shall be 18 plus two with drivers added to the twenty." A vote was then taken. See Minutes of the June 12, 1984 meeting, Exhibit B to the Affidavit of William J. Detweiler, at Item 6.

Nine ILA representatives were present at the meeting, and all nine voted in favor of the motion. Nine management representatives, including an alternate, were present and eight of those representatives (including the alternate) voted against the motion. The vote of the ninth representative, James Costello, is recorded in the minutes as an asterisk with the explanation that: "When polled, Mr. Costello stated that he would abstain from voting. However, he subsequently stated that he would stand by the Master Contract. This was considered to be a vote in favor of the Motion." In addition, the minutes indicate that although the alternate voted `no,' "it was subsequently determined that alternates were not entitled to cast a vote." Id.

The minutes then reflect that amid a discussion following the vote, Co-Chairman Dickman stated that a "motion has been made and carried." The minutes end by recording the following resolution together with a request by Co-Chairman Gleason that it be circulated to all carriers, Port Associations, and ILA locals:

"RESOLVED: That in accordance with the provisions of the Master Collective Bargaining Agreement, negotiated by and agreed to by the parties, the minimum size of a container gang shall be 18 men plus two drivers and that should additional drivers be required, such drivers are to be drawn from outside the gang and shall not be part of the regular 20-man gang." Id.

Two days later, notice of the resolution was issued in a memorandum signed by Co-Chairman Dickman and Gleason. See Exhibit 3 to Petitioner's Notice of Petition. In the weeks that followed, letters of protest were sent to Co-Chairman Dickman by representatives of various shipping associations. See Exhibit D to the Affidavit of William J. Detweiler.

On July 16, 1984, the ILA applied to this Court for an order confirming and enforcing the June 12th award. WGMA filed a cross-motion to dismiss the petition for lack of in personam jurisdiction or, alternatively, to have the action transferred to the United States District Court for the District of Texas. Oral argument was heard on the motions on August 9, 1984, and Respondent's cross-petition to dismiss or transfer the action was denied. The parties were instructed to brief the merits of the petition, and to return for additional oral argument on August 23, 1984. On August 14, 1984, the parties consented to the intervention of CONASA, one of the other signatories to the Master Contract, on behalf of Respondent WGMA.

On August 16, 1984, the Emergency Hearing Panel met again in New York City. At that meeting, James Costello reported that the minutes of the June 12th meeting did not accurately reflect his vote, and he asked that the minutes be corrected to reflect that he had abstained. See Minutes of the August 16, 1984 meeting of the EHP, Exhibit 12 to the Second Affidavit of Walter A. Niemand at p. 3.

Mr. Costello's description of the June 12th vote is recorded in the August 16th minutes as follows:

"When the vote was first called, and after Mr. Remsen Whitehouse clearly stated no, I clearly stated that I stand by the language of the master contract, which is 18 men plus 2 drivers. After much conversation, Mr. Bowers was asked to reiterate his motion, at which time, I subsequently abstained."

Id. The minutes of the August 16th meeting then reflect that a motion was made and carried to correct the June 12th minutes to reflect an abstention on the part of Mr. Costello. No indication was given as to what effect, if any, this correction had on the result of the June 12th vote.

The August 16th meeting of the Emergency Hearing Panel was not attended by any representatives of the ILA. According to the minutes of that meeting, a written statement had been received from the ILA with a request that it be read into the record. The statement was recorded as follows:

"Since the authority of Panel has been raised by the West Gulf that there is no Panel, we should table all matters pending a decision of the Federal Court in New York. We would oppose any reconsideration or any amendment of the minutes."

Id. The August 16th meeting was adjourned without further action or discussion with respect to the June 12th meeting.

Discussion

Respondent has raised a number of objections to confirmation of the award issued by the Panel at its June 12th meeting. At present, we need reach only two. The first objection is that the authority of the EHP to resolve disputes between the ILA and the signatory shipping associations ended on May 9, 1984. The second is that, even if the Panel retained the authority to make awards, the June 12th vote constituted a deadlock under EHP rules and thus no award in fact was made.³ As to the issue of the existence and authority of the EHP, we resolve the question in favor of the EHP's continued validity. As to the question whether the EHP has in fact rendered a final award under the unusual voting procedures that the parties apparently have adopted, we remand that question to the EHP for its interpretation and determination in the first instance of its own rules.

1. The Authority of the Emergency Hearing Panel to Resolve Disputes after May 9, 1984

Respondent first argues that the EHP was created as a response to an injunction entered against the Rules on Containers, and that when the rules were upheld by the Fourth Circuit on May 9, 1984, "the raison d'etre of the EHP ceased to exist," Respondent's brief at 11, and with it, the authority of the EHP to function as a dispute-resolving mechanism.

This argument is not persuasive. It is true that the Tampa Agreement, which created the Emergency Hearing Panel, suggests that the Panel was intended to be a temporary measure that would see the ports through the uncertainty created by the injunction issued against the Rules on Containers. However, paragraph 3 of the Amendatory Containerization Agreement of July 29, 1983 provides that:

The Management-ILA Emergency Hearing Panel shall also act as the Management-ILA Container Committee and all provisions of the June 19, 1981 Agreement dealing with the implementation and enforcement of the Containerization Agreement shall apply to implementation and enforcement of the Rules on Containers.

See Petitioner's Exhibit A-10. Thus, it would appear that whatever their original intent may have been in creating the EHP, the parties subsequently decided that the Panel would continue to resolve disputes even after the injunction against the Rules on Containers had been lifted.

In any event, WGMA and the other shipping associations voluntarily participated in the operation of the Panel after May 9, 1984 and specifically in the vote taken by the Panel on June 12. One who voluntarily participates in arbitration will not thereafter be heard to complain that the arbitrator was without authority to act. See, e.g., Teamsters Local Union No. 533 v. Herbert Fuel Oil & Trucking Co., 543 F.Supp. 831 (E.D.N.Y.1982). The actions of the parties leave no room for doubt that the Emergency Hearing Panel was, as of June 12,...