Pacific Maritime Ass'n v. Federal Maritime Com'n
| Decision Date | 27 August 1976 |
| Docket Number | 75-1215,Nos. 75-1140,s. 75-1140 |
| Citation | 177 U.S.App.D.C. 248,543 F.2d 395 |
| Parties | 93 L.R.R.M. (BNA) 2187, 177 U.S.App.D.C. 248, 79 Lab.Cas. P 11,572 PACIFIC MARITIME ASSOCIATION, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, Council of North Atlantic Shipping Association, Ports of Anacortes, et al., Intervenors. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
R. Frederic Fisher, San Francisco, Cal., with whom Edward D. Ransom, San Francisco, Cal., was on the brief for petitioner Pacific Maritime Ass'n. Harold E. Mesirow, Washington, D. C., also entered an appearance.
Norman Leonard, San Francisco, Cal., for petitioner Intern. Longshoremen's & Warehousemen's Union.
Robert J. Wiggers, Atty., Dept. of Justice, Washington, D. C., with whom James L. Pimper, Gen. Counsel, Edward G. Gruis, Deputy Gen. Counsel, Gordon M. Shaw, Atty., Federal Maritime Com'n and Robert B. Nicholson, Atty., Dept. of Justice, Washington, D. C., were on the brief for respondents.
C. P. Lambos, New York City, was on the brief for intervenor Council of North Atlantic Shipping Ass'ns.
Alex L. Parks and Garry R. Bullard, Portland, Or., were on the brief for intervenor Ports.
Before WRIGHT, McGOWAN and TAMM, Circuit Judges.
Opinion for the Court filed by Circuit Judge TAMM.
This appeal constitutes the most recent controversy in a series of cases exploring the jurisdictional overlapping of shipping, labor and antitrust concerns in collective bargaining agreements within the shipping industry. At issue in the controversy is applicability of the pre-implementation filing and approval procedure of section 15 of the Shipping Act of 1916 to a collective bargaining agreement between the union and a multi-employer bargaining unit. The Federal Maritime Commission (FMC or Commission) held a portion of the agreement affecting employers who are not members of the Pacific Maritime Association (PMA) to be outside the labor/antitrust exemption and thus subject to filing with and approval or disapproval by the FMC. Recognizing that the reconciliation of the competing policies and statutory schemes is a difficult one, we nonetheless believe the prior-restraint procedures of section 15 impose such an extraordinary burden on collective bargaining that the dividing line must be drawn between labor-related agreements among employers, which are subject to section 15, and direct agreements negotiated between union and management, which we hold to be outside the scope of that section. For the reasons which follow, we remand to the Federal Maritime Commission.
PMA is an employers' collective bargaining association representing numerous Pacific Coast employers of dockworkers. The International Longshoremen's and Warehousemen's Union (ILWU), which represents dockworkers hired not only by PMA but also by nonmember employers, bargains separately with the multi-employer unit and with individual nonmember ports. At issue in this appeal are 1972 and 1973 agreements negotiated 1 by PMA and ILWU regarding nonmember use of dockworkers jointly registered and dispatched through ILWU-PMA hiring halls to both PMA and nonmember employers. Prior to this agreement, nonmember employers negotiated separate labor agreements with ILWU; they also obtained separate agreements with PMA which allowed them to use the hiring halls and the complex accounting and pay offices 2 maintained by PMA. Under these separate agreements, nonmembers paid fringe benefit fund contributions and a participation fee 3 to the PMA for whichever of the fringe benefit programs 4 settled upon in their ILWU contracts. In addition to the differences in fringe benefit plans between PMA and nonmember collective bargaining agreements, there were other substantial labor variances. For example, nonmembers often negotiated steady workgangs rather than the rotation of workers generally required for PMA employers. In addition, the practice of negotiating separate labor agreements had enabled the union in the past to whipsaw by striking PMA but continuing to work for nonmembers.
At the beginning of negotiations for the 1972 collective bargaining agreement, the union demanded PMA to accept all fringe benefit contributions from any employer. In contrast, PMA proposed elimination of all nonmember participation in the fringe benefit fund. J.A. at 170. When the parties failed to reach agreement on other direct economic issues, ILWU went on strike. Several months later the union and PMA executed a memorandum of understanding resolving some terms in dispute and listing some 11 others to be resolved by further negotiation, mediation or arbitration; the list included resolution of the nonmember participation dispute. Within three months PMA and the union issued Supplemental Memorandum of Understanding No. 4, the agreement primarily at issue in this appeal. 5 In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, 6 pay the same dues and assessments as PMA members, 7 use steady men "in the same way a member may do so," 8 and be treated as a member during work stoppages. 9
Several municipal corporations which own and operate Pacific Coast facilities and which are not members of PMA filed a petition with the Commission seeking investigation of Supplemental Memorandum of Understanding, No. 4 10 and rulings that the agreement was subject to filing and approval under section 15 of the Shipping Act and was violative of sections 15, 16 and 17 as unjust, discriminatory and contrary to the public interest. After PMA filed the Nonmember Participation Agreement with the Commission, the FMC severed, for expeditious resolution, the issue of jurisdiction under section 15 () over the master collective bargaining agreement, Supplemental Memorandum No. 4, and underlying agreements among PMA members.
Although the agreement appeared to be outside the labor/antitrust exemption, the Memorandum of Law of Hearing Counsel of the FMC found:
(T)he subject agreements involve antitrust and related labor policies and require a determination whether parties engaged in collective bargaining have exceeded the scope of legitimate bargaining. For these reasons, we submit, these matters ought to be left to the courts and the NLRB who are equipped to cope with them.
J.A. at 77-78. The Memorandum also suggested that should the courts find the agreements lawful under antitrust principles, actual practices implementing them might still violate sections 16 and 17. Id. The parties then responded with memoranda of law and affidavits in which they expressed counter allegations and denial of a conspiracy between PMA and ILWU "to eliminate outside competition either by withholding labor or by forcing outside employers into PMA membership." J.A. at 297. Hearing Counsel concluded again that the problem raised
issues primarily of a labor and antitrust nature and that if the Commission pursued the investigation it would become enmeshed in areas foreign to its expertise. Furthermore, such an investigation would serve to impede the parties seeking relief in the pending antitrust cases before the courts.
Id. at 301. 11
During the pendency of the proceedings before the Commission, PMA and ILWU began negotiations on a new agreement. The new Memorandum of Understanding (June 24, 1973) included as Article IX a revised ILWU-PMA Nonmember Participation Agreement containing provisions similar to those challenged in the 1972 Supplemental Memorandum. The Commission then amended the scope of its proceedings to include this 1973 agreement. 39 Fed.Reg. 4506 (1974).
One year later, in January of 1975, the Commission served its Report and Order in this case. The FMC rejected the Memorandum of Hearing Counsel and found instead that the revised agreement, i. e. Article IX of the 1973 collective bargaining agreement, is an "agreement" subject to FMC filing and approval. Applying the standards articulated in United Stevedore Corp. v. Boston Shipping Association, 16 F.M.C. 7 (1972), the Commission found the agreement to be outside the protection of a labor exemption to the Shipping Act and ordered an investigation to determine whether the agreement should be approved and whether the master collective bargaining agreement would violate sections 16 and 17. PMA and ILWU then appealed to this court.
Before resolving the issues in this case we turn briefly to the three lines of cases which converge in the jurisdictional dispute before us. The first line of cases reflects the tension created by the special shipping considerations in maritime antitrust litigation. The second examines and attempts to reconcile the disparate aims of national labor policy and antitrust laws. The final series of cases deals with implications of Shipping Act regulation on collective bargaining.
By the beginning of the twentieth century Congress had recognized the need for special legislation to prevent monopolies and unlawful restraints. The Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act of 1890 attempted to limit corporate evils such as price-fixing and restrictive agreements. These legislative efforts to prevent abusive practices continued in 1914 with the adoption of the Clayton Act and Federal Trade Commission Act.
It was during this same period of increased interest in freedom of competition that Congress undertook an extensive study into the antitrust...
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