Before LUMBARD, Chief Judge, MEDINA and MARSHALL, Circuit Judges.
MEDINA, C.J.: Appellant, the National Maritime Union of America, operates a hiring hall for seamen open alike to members and non-members. The normal procedure entails registration by a seaman at the hiring hall and his referral to a shipowner who, under the terms of collective bargaining agreements negotiated with the Union, has the final say on whether to accept or reject a particular applicant. For many years the shipowners with whom the Union bargains have refused to employ any seaman known to have been convicted under the narcotics laws. On the ground that each of the three seamen-appellees admittedly had narcotics convictions, the Union summarily refused to register them or refer them for employment.
Appellees, who are members of the Union, claim that the Union's conduct deprived them of their procedural rights secured by Section 101(a)(5) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C., Section 411(a)(5), which provides:
"Safeguards against improper disciplinary action. - No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing."
The trial judge held that the Union had violated this statute and directed the Union to comply with its mandate. Though we agree with the trial judge that the National Labor Relations Board does not have exclusive primary jurisdiction over this dispute and the refusal to refer for employment may constitute "discipline" within Section 101(a)(5), we hold that in the circumstances of this case the Union is not required to grant appellees a hearing.
I. Many years ago each of the appellees was convicted of unlawfully possessing narcotics, but they had been employed for some time as seamen and were members of the appellant Union until March 6, 1958. On that date Government Customs Agents became aware of these old convictions and arrested the three seamen on board the SS "Independence," charging that they had left the country without registering as violators of the narcotics laws. These charges were not pressed, but the result was that the Union thereafter refused to register these men at the hiring hall or to refer them to shipowners for employment as seamen.
As stated previously, the policy of the shipowners bargaining with the National Maritime Union had for some time been not to employ on their vessels any persons known to have participated in any crime involving narcotics. In 1957 the collective bargaining agreement negotiated by the Union with the shipowners provided in terms that the Union shall not be required to register a seaman "whom it does not consider to be suitable for employment," and it was agreed that "in passing upon the suitability of applicants for registration" the Union shall give consideration to such matters as habitual drunkenness, illegal possession of lethal weapons, immoral or indecent conduct, and "illegal possession or use of narcotics." Admittedly, union and non-union applicants for employment received the same treatment.
After discovery of the narcotics convictions events moved swiftly. The Union not only refused to register and refer the three seamen, but it also applied automatic suspension of membership under Article 22, Section 3 of the Union constitution,*fn1 although the convictions of two of the seamen were long prior to the period of their membership in the Union, and the conviction of the third preceded the adoption by the Union of this section of the constitution.
Charges of unfair labor practices under Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act were filed by the seamen with the Labor Board. These charges were promptly dismissed by the Regional Director for lack of merit, and on appeal the General Counsel sustained this ruling because he concluded "there is insufficient evidence of violations to warrant further proceedings." This brings us to June 25, 1958.
A suit in the New York State Supreme Court by the seamen against the Union for damages and an injunction resulted, after trial, in a judgment directing the Union to reinstate the seamen as members of the Union. The Court found, however, that the refusal to register and refer was entirely legal and proper as it was the Union's duty to pass upon the qualifications of seamen and it was not "unreasonable and arbitrary for union officials to refuse to refer a man who has been convicted of a crime involving narcotics." Pabon v. Curran, N.Y. Co. Sup. Ct., 1959, 37 LC 65,492.
On October 7, 1959, following their restoration to membership, the seamen again attempted to register, registration and reference for employment were refused without charges or a hearing and the Permanent Appeals Board denied an appeal. The seamen were again turned down by the General Counsel and this action was commenced on September 7, 1960.
Trial without a jury was conducted by Judge Wyatt on January 29, 1964. Deeming the equities of the case to rest with the seamen, the judge, on February 14, 1964, directed the Union to comply with the procedural requirements of Section 101(a) (5), described as "the limit of the relief which this Court can grant." The Court also observed:
"There must be something seriously amiss when a man like Figueroa - a Union member since 1940 and apparently an employed merchant seaman without any blot on his record for eighteen years - is deprived of his job because of a single narcotics conviction twenty-eight years ago and five years ...