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BERMAN v. NATIONAL MARITIME UNION

September 18, 1958

Leopold BERMAN, Samuel Bierman, Charles E. Colcord, John Southwick, Theodore Kelm, Aleksander Pasiecznik, Angel Torres, Donald W. Jackson, Roy Rydell, Roy Eyjian, Anselmo De Castro Francis, Elmer Reese, Torolf Bergstrom and Rudolph Kaunitz, suing on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
NATIONAL MARITIME UNION, American Merchant Marine Institute, Inc., American Export Lines, Inc., Grace Line, Inc., Lykes Brothers Steamship Company, Inc., Moore McCormack Lines, Inc., United Fruit Company and United States Lines Company, Defendants



The opinion of the court was delivered by: BICKS

The motion sub judice seeks dismissal of the complaint on the ground that this Court is without jurisdiction of the cause. Defendants argue that the National Labor Relations Board (hereinafter referred to as NLRB) has exclusive original jurisdiction but if the contrary be true this Court is still without the power to entertain the suit.

The complaint alleges: (i) plaintiffs are unlicensed seamen who, for many years prior to 1950 shipped out of the Port of New York on merchant vessels; (ii) in or about 1951 the United States Coast Guard adopted regulations establishing loyalty and security qualifications as prerequisites to employment in the United States Merchant Marine; (iii) plaintiffs were denied security clearance and, as a result, were prohibited from obtaining further employment as unlicensed seamen; (iv) on October 26, 1955 the Court of Appeals for the Ninth Circuit struck down the Coast Guard procedures under the aforementioned regulations as unconstitutional and void, Parker v. Lester, 9 Cir., 1955, 227 F.2d 708; (v) thereafter and between January 1, 1957 and June 1, 1957, the Coast Guard restored valid merchant mariner's documents to the plaintiffs.

 The complaint alleges further: the collective bargaining agreement in effect during the period January 1, 1957 to June 15, 1957 between the defendant National Maritime Union (hereinafter referred to as Union) and the corporate defendants provided in substance that the ship operators would hire all unlicensed personnel through the employment office of the Union and that the Union would refer unlicensed personnel to the ship operators for employment in accordance with a plan or order of priority as follows:

 '(a) Group 1, consisting of (1) those employed as unlicensed seamen on any deep sea dry cargo passenger, tanker and/or collier vessel by employers having a contract with the Union during the period of June 1, 1953 and December 31, 1952, inclusive; (2) those registered for employment on December 31, 1953, at any one of the Union-operated employment offices; (3) those incapable of working between June 1, 1953 and December 31, 1953 on contract vessels because of engagement in official Union business; (4) those who were hospitalized * * * during the period * * * (5) those on an authorized extended leave of absence from the industry immediately prior to June 1, 1953, or subsequent to December 31, 1953; (6) those employed as unlicensed seamen by employers not under contract with the Union, but who may become parties to a collective bargaining agreement with the Union.

 '(b) Group 2, consisting of those who have, prior to June 1, 1953, or since December 31, 1953, been employed as unlicensed seamen on contract vessels.

 '(c) Group 3, * * *

 '(d) Group 4, * * *'

 The complaint further alleges that:

 'At all times since the plaintiffs were denied security clearance by the Coast Guard, each of them has been ready, willing and able to engage in the occupation of unlicensed seaman and has been available for employment as such. Plaintiffs Southwick and Eyjian were on an authorized extended leave of absence from the industry immediately prior to June 1, 1953; plaintiffs Pasiecznik and Jackson were employed as unlicensed seamen by employers having a contract with the Union during the period between June 1, 1953 and December 31, 1953. But for the aforesaid unlawful action of the Coast Guard, each of the other plaintiffs would have been employed in the period from June 1, 1953 to December 31, 1953 as an unlicensed seaman on vessels covered by collective bargaining agreements with the Union or, on December 31, 1953, would have been registered for employment with the Union. Hence, had it not been for the aforesaid unlawful action of the Coast Guard, each of the plaintiffs would now be entitled to Group 1 priority under the collective bargaining agreements described in paragraph 10.

 'Prior to June 15, 1957, the Union did in fact register for employment the plaintiffs who applied for registration as aforesaid and assigned plaintiffs Southwick, Pasiecznik, Jackson and Eyjian to Group 1 priority, referring them for employment in accordance with such priority. Said four plaintiffs were employed by the ship operators to whom they were referred. However, in violation of its duty as aforesaid, the Union, prior to June 16, 1957, arbitrarily assigned the other plaintiffs who applied for registration as aforesaid to Group 2 priority and in consequence of such assignment the Union did not refer said plaintiffs for employment and said plaintiffs did not secure employment as unlicensed seamen, except that plaintiffs Francis and Reese were referred for and did secure such employment.'

 To this point the complaint sets out what is referred to, infra, as the first claim.

 The further claim upon which plaintiffs predicate a right to relief is articulated thusly: on June 16, 1957 the Union and the corporate defendants executed amendments to the collective bargaining agreement adverted to above, which

 'in substance provided that the Union shall not be required to register for employment any unlicensed seaman whom it does not consider to be suitable for employment and further provided that any unlicensed seaman may appeal from the action of the Union refusing to register him for employment or excluding him from Group 1 priority to a Permanent Appeals Board, * * * Such amendments were negotiated and executed by the Union, * * * and the corporate defendants, for the purpose and with the intent of authorizing the Union to refuse, and with the understanding that the Union would thereafter refuse, to register or refer for employment the plaintiffs * * * and that the Permanent Appeals Board would affirm such action by the Union.

 'Subsequent to June 16, 1957, the Union, in violation of its duty as exclusive bargaining representative as aforesaid, has discriminated against the plaintiffs and other persons similarly situated by arbitrarily refusing to register them for employment, * * *, all in the exercise of the authority purportedly given ...


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