Madden v. Atkins
| Decision Date | 30 November 1959 |
| Docket Number | No. 88,88 |
| Citation | 24 Misc.2d 4,199 N.Y.S.2d 1009 |
| Parties | Bernard C. MADDEN, Robert A. Liddy, Richard J. Polachek, Arthur Sohnen, David Friedman and Pietro DiPietrantonio v. Charles T. ATKINS, individually and as President, and Albert E. Oliver, individually and as Secretary-Business Manager of New York Associationof Masters, and Mates of National Organization Masters, Mates & Pilots of America, Inc., and Charles T. Atkins, individually and as President of National Organization of Masters, Mates & Pilots of America, Inc. Referee's Part |
| Court | New York Supreme Court |
Harold, Luca, Persky & Mozer, New York City, for plaintiffs.
Marvin Schwartz, New York City, for defendants New York Association No. 88 of Masters, and Mates of National Organization Masters, Mates & Pilots of America, Inc., and National Organization of Masters, Mates & Pilots of America, Inc.
Herbert Semmel, New York City, for defendant Atkins individually.
COLDEN, Official Referee.
By reason of a decision of the Court of Appeals (Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633), Special Term of this Court by the Honorable James J. Conroy, by order dated November 21, 1958, referred to the undersigned the responsibility to hear and determine the question of damages in accordance with the views expressed in said decision of the Court of Appeals. The plaintiffs, Bernard C. Madden, Robert A. Liddy, Richard J. Polachek, Arthur Sohnen and David Friedman having been expelled from New York Association No. 88 of Masters and Mates of the National Organization of Masters, Mates and Pilots of America, Inc., and plaintiff Pietro DiPietrantonio having been denied work opportunities through Local 88, the decision of the Court of Appeals, in pertinent part, stated:
'The judgment of the Appellate Division should be modified insofar as it failed to grant damages to the plaintiffs, in accordance with the views expressed in this opinion, and the matter remitted to Special Term for the assessment of such damages and, as so modified, affirmed, with costs to the plaintiffs.'
Plaintiffs Madden and Liddy were expelled from Local 88 on March 11, 1953; plaintiff Polachek was expelled on April 25, 1953; plaintiff Friedman on May 27, 1953; and plaintiff Sohnen on June 1, 1953. Plaintiff DiPietrantonio had work opportunities denied to him by action of the defendant Atkins on March 2, 1953.
In the proceedings before me, all parties have agreed that damages should be measured to May 6, 1957.
The plaintiffs were and are deck officers in the Merchant Marine, and the defendant unions have organized and have under contract the bulk of the shipping in the New York area. In order to work as deck officers in the Merchant Marine, the plaintiffs must be members in good standing in the Local and International Unions and be afforded job opportunities through the local union hiring hall.
The question posed, therefore, is the amount of damages suffered by these plaintiffs by reason of their expulsion from Local 88, except plaintiff DiPietrantonio, and the denial of work opportunities through the Local 88 hiring hall as to all plaintiffs including DiPietrantonio. As heretofore stated in the opinion of the Court of Appeals, whatever damages are found should be assessed against Local 88 only as to all plaintiffs except DiPietrantonio, and damages assessed against Atkins individually only as to DiPietrantonio. No damages are to be assessed against the International Union. The testimony indicates that when licensed deck officers are at work in this industry, they receive wages, food and lodging while aboard ship and vacation benefits. The employer also pays into a jointly operated welfare and pension program an agreed amount for each day of work from which joint fund benefits are purchased for members of the union.
It is my responsibility now to determine the amount of wages, vacation benefits, food and lodging, and welfare and pension payments which the plaintiffs would have earned in the industry had they not been denied job opportunities for the period of approximately four years.
From this finding must be deducted any wages or other benefits received by the plaintiffs during this period of time, as indicated in the record before me.
First as to wages: Wages earned by licensed deck officers in the Merchant Marine in this industry vary widely. Wages earned may be determined by whether or not the particular employee is licensed to sail as a Third Mate, Second Mate, Chief Mate or Captain. It may also vary greatly dependent upon the regularity and length of employment in any particular year. The contracts in the industry further permit an employee to become a 'regular' company employee and in this instance his earnings are more regular than otherwise and much greater than persons who are not 'regular' company employees. A witness for the defendant, Local 88, Charles Crooks, testified that one master of a ship (Captain) earned about $35,000 in one year, and that a chief mate has earned $18,000 a year. (Pp. 573, 577) The same witness indicated that the average overtime runs 30% of the wages. Other witnesses support the conclusion that necessary overtime would run higher than 30% It is equally true, of course, that many licensed deck officers make on a yearly basis much less than the figures mentioned above.
As of the date of the denial of work opportunities, plaintiff Sohnen was a third mate, plaintiffs Madden and Polachek were second mates, and plaintiffs Liddy, Friedmand and DiPietrantonio were chief mates. A chief mate can serve in the rank of a chief mate, second mate or third mate, and the second mate can serve in the rank of second mate and third mate. The third mate can serve only as a third mate. It is also true that the license requirements require a certain minimum amount of sea time before one can 'sit' to advance his license.
Thus, in emasuring damages over a period of approximately four years, it is impossible to know or say with certainty whether or not, for instance, Sohnen, Madden and Polachek might have advanced their license, whether each or all of them might have always sailed in the highest rating available to them or in a combination of the several ratings available to them, whether some or all of them would have become regular company employees under the provisions of the collective bargaining agreement. It is equally uncertain as to whether or not they might have, over all these years, received regular, consistent, day in and day out employment, or whether by reason of the shipping eligibility requirements their priority and repetitive priority at the end of each voyage might have entitled them to less than consistent regular employment.
Counsel for the defendants have argued at length that the nature of employment prior to expulsion should be the norm for measuring their employment herein. Counsel for the plaintiffs have argued that their employment prior to expulsion is affected by the great variances in the industry as above mentioned, and also, in part, affected by the fact that the plaintiffs prior to expulsion purposely stayed ashore to be politically active within their union in order to fight against what they believed to be corruption in their union. Incidentally the president of the International and Local Union, Charles T. Atkins, and the 'shipper' were convicted of back door shipping. It is also a fact in the record, as indicated in the Court of Appeals decision, that these plaintiffs were originally expelled from their union and denied job opportunities because they became politically active within their union in an effort to improve their union.
Thus, primarily, by reason of the nature of employment in this industry and for the reasons otherwise indicated, I do not believe that prior work experience prior to expulsion, can be a fair measure of damages in this case.
I cannot conclude, however, as plaintiffs urge, that each of the plaintiffs would have advanced their rating and rank above that which they held at the time of their employment, and I cannot assume that they would be regularly employed always under the highest rating of their license. Nor can I conclude as a certainty that they would have become regular employees of a particular company, and earn wages in the upper brackets of earnings in the industry in the area of $13,000 or $14,000 per year. Thus, I am required, under all of the circumstances, to determine a fair and reasonable measure of damages. I must resort to some practical means that will be just to all parties.
As was stated in the case of Alexnader's Department Stores v. Ohrbach's, Inc., 269 App.Div. 321, 56 N.Y.S.2d 173, 179:
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...and pension rights. Calculating these may be complicated, but creates no serious stumbling block.' (See also Madden v. Atkins, 24 Misc.2d 4, 199 N.Y.S.2d 1009, 1015, 1016, modified 10 A.D.2d 989, 203 N.Y.S.2d 33.) Damages for loss of compensation in situations like those at bar by their ver......
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