Williams v. Bernhardt Bros. Tugboat Service, Inc.

• Decision Date: 25 March 1966
• Docket Number: No. 15303.,15303.
• Parties: Lindsey J. WILLIAMS, Robert Matthews, Al Kerr, Robert Jones, Al Tanner, Max Harrison, James Hayes, John M. Goode, James A. Luciar and C. J. Bracco, Trustees of Seafarers' Welfare Plan, Plaintiffs-Appellants, v. BERNHARDT BROS. TUGBOAT SERVICE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

357 F.2d 883 (1966)

Lindsey J. WILLIAMS, Robert Matthews, Al Kerr, Robert Jones, Al Tanner, Max Harrison, James Hayes, John M. Goode, James A. Luciar and C. J. Bracco, Trustees of Seafarers' Welfare Plan, Plaintiffs-Appellants, v. BERNHARDT BROS. TUGBOAT SERVICE, INC., Defendant-Appellee.

No. 15303.

United States Court of Appeals Seventh Circuit.

March 25, 1966.

John M. Schobel, St. Louis, Mo., Thomas Q. Keefe, E. St. Louis, Ill., Barry J. Levine, St. Louis, Mo., for appellants, Gruenberg, Schobel & Souders, St. Louis, Mo., of counsel.

James K. Almeter, Alton, Ill., V. Lee McMahon, St. Louis, Mo., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and KILEY, Circuit Judges.

HASTINGS, Chief Judge.

Appellants, Trustees of Seafarers Welfare Plan, a trust established to provide health, welfare and pension benefits to employees of contributing employers, filed a complaint in the district court to recover payments alleged due them as beneficiaries under a contract between Bernhardt Bros. Tugboat Service, Inc., appellee, and Inland Boatman's Union of Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO.

The complaint set out the following relevant allegations. Bernhardt executed a collective bargaining agreement with the Boatman's Union which in part provided that Bernhardt would make contributions to Welfare Plan in the amount of $1.75 per day worked for each of Bernhardt's employees covered by the agreement. Bernhardt failed to make full payments to Welfare Plan, but acknowledged its indebtedness by letter and indicated its willingness to make up its deficit when it was able to do so. As of March 22, 1964, Bernhardt was indebted to Welfare Plan in the amount of $31,496.25, which sum Bernhardt refused to pay.

In its answer to the complaint, Bernhardt affirmatively pleaded as a defense, inter alia, that the collective bargaining agreement under which Welfare Plan was suing had been the subject of prior litigation and had been declared "unlawful, illegal, and unenforceable ab initio because when executed the Union did not represent an uncoerced majority of defendant's employees in an appropriate unit within the meaning of the Labor-Management Relations Act" as found by the NLRB and this court.¹

Bernhardt also counterclaimed, alleging as a cause of action, oppressive and vexatious litigation on the part of Welfare Plan.²

Bernhardt filed a motion for summary judgment on grounds relating to the voidness of the collective bargaining agreement. The district court granted the motion and dismissed the complaint, but not the counterclaim nor the action. Welfare Plan appealed.

Bernhardt, relying on Rule 54(b), Federal Rules of Civil Procedure, 28 U.S. C.A., filed in this court a motion to dismiss the appeal on the ground that Welfare Plan had not appealed from a final, appealable judgment so as to vest jurisdiction in this court to consider the merits of the appeal.

On the day following the filing of Bernhardt's motion in our court to dismiss the appeal, Welfare Plan obtained a certificate nunc pro tunc from the district court, wherein that court stated it had entered a final order of judgment and that there was no just reason for delay of the appeal.

Bernhardt's motion to dismiss the appeal was denied, without prejudice to Bernhardt to renew the motion at the time of oral argument of the case on the merits.

Rule 54(b), Federal Rules of Civil Procedure, provides:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

28 U.S.C.A. § 1291 provides:

"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts * * *."

The question raised in this court by Bernhardt's motion to dismiss this appeal is jurisdictional. It goes to the effect of a nunc pro tunc certification, under Rule 54(b), by the district court that the order entered dismissing the complaint on defendant's motion for summary judgment is final and there exists no just reason for delay, after the appeal has been taken.

The landmark case in this circuit is Winsor v. Daumit, 179 F.2d 475 (1950). There we held that the absence of the requisite certificate by the district court requires a dismissal of the appeal. We observed that the right of appeal is not negated, but must await the...