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YULIO v. MOORE-MCCORMACK LINES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


January 20, 1975

Alexander Yulio et al., Plaintiffs
v.
Moore-McCormack Lines, Inc. et al., Defendants

Pollack, D.J.

The opinion of the court was delivered by: POLLACK

Decision and Opinion

POLLACK, D.J.

 This is a case of Admiralty and Maritime jurisdiction which has been tried to the Court without a jury. Plaintiffs, duly licensed marine engineers, claim that they are entitled to receive severance pay based upon the transfer of the S.S. BRASIL and the S.S. ARGENTINA to foreign registry by defendant Moore-McCormack Lines, Inc. The transfer was made to Holland-American Lines, Inc., named as a co-defendant. The plaintiffs are members of Marine Engineers Beneficial Association, and MEBA, District No. 1 (hereinafter referred to as MEBA, collectively) which are also named as defendants.

 The collective bargaining agreement between MEBA and defendant Moore-McCormack Lines, Inc. in effect at the time of the transfer of the two vessels to foreign registry provided that severance pay in the amount agreed therefor would be paid to the Special Fund of the MEBA Pension Plan, rather than to the individual engineers who lost their jobs as a result of the transfers. The amounts of severance calculated and due under the agreed formula were paid by defendant Moore-McCormack Lines, Inc. to the MEBA Pension Trust to be placed in the Special Fund of the Pension Plan on the respective dates of transfer of the two vessels in August 1972.

 Shortly thereafter, counsel for plaintiffs raised a claim with the Union that the individual plaintiffs rather than the Special Fund were entitled to the severance pay. The Union submitted the claim of these individuals to the grievance process established by the collective bargaining agreement, and after a hearing thereon, in which counsel for plaintiffs participated, an Opinion and Award of the Impartial Arbitrator found that the provisions of the applicable 1972 collective bargaining agreement provided that severance pay was to be paid to the Special Fund of the Pension Plan upon the transfer of a vessel to foreign registry; that the individual marine engineers, including plaintiffs herein, were not entitled to receive severance pay; and that these provisions were controlling and effective as of the date of the transfer of the vessels in question to foreign registry. He thus held that defendant Moore-McCormack Lines, Inc. had properly paid the severance pay to the Special Fund of the MEBA Pension Plan.

 Some sixteen months after the determination of the Impartial Arbitrator, the plaintiffs instituted this action, allegedly on their own behalf and on behalf of the marine engineers duly assigned to the steamships BRASIL and ARGENTINA at the time of the ships' last voyages.

 At the close of plaintiffs' case, their counsel consented to the dismissal of the complaint against Holland-American Lines, Inc., with prejudice, and the complaint against it was thereupon dismissed, without costs. Decision as to the other defendants was reserved at the close of the entire case, and the parties were given leave to submit such post-trial briefs as they might deem necessary in the light of the submissions made theretofore. The case has now been finally submitted.

 For the reasons shown hereafter, the complaint must be dismissed on the merits and judgment entered in favor of defendants.

 The parties herein stipulated to a Statement of Facts, which was marked Plaintiffs' Exhibit 1, in evidence, with the exception by plaintiffs of general objections thereto on grounds of materiality and relevancy and specific objection to the matter contained in paragraphs 23 and 24, the content of which the Court now finds as fact, and with the further exception by plaintiffs that paragraph 9 should be amended to recite additionally that the collective bargaining agreement of 1969 referred to therein was arrived at after July 29, 1969 and made retroactive to June 16, 1969. The suggested inclusion of that information in paragraph 9 is not material to the determination of the issue before the Court and paragraph 9 is therefore made a finding of the Court in the form in which it has been stated in Plaintiffs' Exhibit 1. The objections on the ground of relevancy and materiality to matter contained in Plaintiffs' Exhibit 1 are overruled.

 Accordingly, Plaintiffs' Exhibit 1 is hereby incorporated by reference as part of the Court's findings of fact thereby avoiding its needless repetition herein.

 The plaintiffs challenge the validity of the arbitration mentioned above which was held in respect to their claims. The collective bargaining agreement provides that all disputes relating to the interpretation or performance thereof should be determined in accordance with the provisions in Section 2 entitled "Grievance Procedure and Arbitration". The evidence conclusively establishes that the arbitration procedure was duly observed.

 A Union representative who appeared as a witness on the trial herein testified, and the Court finds, that in accordance with the provisions of the collective bargaining agreement dated June 16, 1972 and applicable herein, a "Licensed Personnel Board" had been duly appointed and met on September 13, 1972; that it consisted of two persons representing and appointed by the Union, two persons representing and appointed by the shipowner and the Impartial Arbitrator, David Cole, Esq., who had been duly selected theretofore and who acted as chairman at the meeting. Notice of an arbitration hearing on the controversy set forth by the plaintiffs through their counsel had been duly furnished to the interested parties, including plaintiffs' then attorney. On that occasion the Union and Company representatives agreed to leave determination of the dispute to the chairman of the meeting, the Impartial Arbitrator, and the latter thereupon took the appropriate evidence, received briefs from the plaintiffs' attorney, and ultimately rendered the decision which is found in paragraph 33 of Plaintiffs' Exhibit 1.

 As shown in Plaintiffs' Exhibit 1, paragraph 26, the collective bargaining agreement provides:

 

The Arbitrator designated will serve as the chairman of any meeting of the Licensed Personnel Board. If said Board resolves any grievance either by majority vote or by mutual agreement, said grievance shall be deemed settled.

 

In the absence of such final disposition by the Licensed Personnel Board, the Arbitrator will then have jurisdiction of the case to render a decision as Arbitrator.

 The procedure adopted on September 13, 1972 fully conformed to the collective bargaining agreement.

 It is clear that the exact claim which plaintiffs now make in this action was presented to and determined by the Impartial Arbitrator in accordance with the collective bargaining agreement between the defendant Company and the defendant Union. Plaintiffs were members of the defendant Union and were employed under the terms and provisions of its collective bargaining agreement with the defendant Moore-McCormack Lines, Inc. They are bound by its terms and by the resolution of disputes under its terms.

 There are no facts from which the Court can reasonably infer that the Union acted arbitrarily, capriciously, maliciously, or in a discriminatory manner and no cause of complaint predicated on alleged breach of the duty of fair representation against MEBA has been made out. The determination of the dispute by Arbitrator Cole is in all respects valid and binding on the plaintiffs. Republic Steel Corp. v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965); Suissa v. American Export Lines, Inc., 367 F. Supp. 1113 (S.D.N.Y. 1973) (Ward, J.), aff'd, 507 F.2d 1343 (2d Cir. 1974). Cf. Hana Heating & A.C. Co., Inc. v. Sheet Metal Workers International Association, Local Union No. 38, 378 F. Supp. 1001 (S.D.N.Y. 1974) (Brieant, J.).

 It makes no difference herein whether plaintiffs could have originally presented their claims to a federal judicial forum. Cf. U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 27 L. Ed. 2d 456, 91 S. Ct. 409 (1971).

 Plaintiffs plainly evinced interest in and became part of the grievance procedure. After announcing to the Company and the Union through counsel their viewpoint that all monies due up until June 15, 1972 under Section 43 were vested wages, they urged that the money allegedly so due not be transferred to a common fund as provided in the collective bargaining agreement of June 15, 1972. The plaintiffs were then informed that the Union had determined to submit the question that they had raised to arbitration under said collective bargaining agreement at a hearing scheduled to be held on September 13, 1972 at a time and place stated. The Union suggested that plaintiffs and their attorneys be present, and they accepted the invitation. Their counsel appeared at and participated in the proceedings before the Impartial Arbitrator, making an oral presentation of their points and filing a written memorandum on the facts and law consisting of 23 pages. They also filed a supplementary post hearing memorandum which was received just after the Impartial Arbitrator had rendered his decision. The Impartial Arbitrator considered the memorandum as being in the nature of a reargument, and plaintiffs' counsel was advised by letter that the Arbitrator nonetheless adhered to his original interpretation.

 Counsel testified at the trial that he had questioned the Impartial Arbitrator's jurisdiction at the time of the hearing, but this objection lacks merit in the light of the explicit provisions of Section 2 of the collective bargaining agreement (Exh. 2 of Trial Exh. 1A). Plaintiffs may not now relitigate the matter. Suissa v. American Export Lines, Inc., 367 F. Supp. 1113 (S.D.N.Y. 1973), aff'd, 507 F.2d 1343 (2d Cir. 1974).

 Apart from the unsupported contention that the arbitration panel was invalidly convened and not in accordance with the collective bargaining agreement the plaintiffs contended that the severance arrangements which had existed from the time of the 1961 collective bargaining agreement whereby severance payments were to be made to the individual seamen, could only be modified as to the future and not as to the past. Pursuing this line of argument the plaintiffs contended that the seamen had shipped under Shipping Articles prior to June 16, 1972 and that the severance arrangements which were extant in the 1969 and earlier collective bargaining agreements calling for payment to the individual seaman and not to the Pension Fund, could not be varied by an amendment of the collective bargaining agreement on June 16, 1972. This contention falls to the ground by reason of the terms of the June 1972 collective bargaining agreement applicable to the August 1972 transfer of the vessels to foreign registry which provided for the payment of severance obligations to the Pension Fund as indicated heretofore. There was a sound and fair basis for this change as has been fully set out by the Impartial Arbitrator in his Award. Accordingly, that issue is foreclosed by the determination made by the Arbitrator. The collective bargaining agreement in Section 53 (p. 117 thereof) provides that the effective date of the agreement is June 16, 1972 and furthermore that

 

(b) The parties agree that the provisions of this Agreement shall be, and be deemed to be incorporated in and part of the Shipping Articles covering voyages of the vessels covered and further agree that appropriate notation thereof be made on the Shipping Articles.

 The foregoing agreement disposes of any notion that pre-existing Shipping Articles remain unamended by the new collective bargaining agreement. As has already been mentioned, plaintiffs through counsel conceded on the trial that the collective bargaining agreement of June 16, 1972 was known to plaintiffs and was validly made and was applicable from and after June 16, 1972. It thus applies to the August 1972 transfers of the vessels.

 Thus, it is entirely clear that even if the plaintiffs' claims had not been barred by the Cole Arbitration Award, their claims for severance payments must nonetheless be denied under the terms of the applicable collective bargaining agreement, that of June 16, 1972. See R. G. Wilson v. American President Lines, Ltd., No. 72-1263 (9th Cir. Jan. 17, 1974), aff'g Admiralty No. 29303 (N.D. Cal. Nov. 8, 1971).

 There remains one additional matter to which attention was called by the defendants. The complaint herein was attempted to be cast in the form of a class suit. In that respect, the complaint does not carry the designation required by Rule 11A of the Civil Rules of this Court. Moreover, at no time was an application presented to the Court by any party for a determination under Fed. R. Civ. P. 23(c)(1) as to whether the action is to be maintained as a class action. Absent such an application the class action allegations must be disregarded. The plaintiffs reliance on Section 604 of Title 46 which permits joinder as co-claimants of all seamen having cause of complaint of the like kind against the same vessel does not avail as a substitute for class action status. Permissive joinder is not to be equated with class action status. See Totolos v. Compania de Navegacion Cristobal, 94 F. Supp. 699 (S.D.N.Y. 1950); Ampatis v. Compania Maritima Samsoc Ltda., S.A., 103 F. Supp. 733 (S.D.N.Y. 1951).

 Accordingly, the complaint is dismissed as against all defendants, on the merits.

 The foregoing together with the findings set forth in Plaintiffs' Exhibit 1,* incorporated herein by reference, shall constitute the findings and conclusions required by Rule 52(a) Fed. R. Civ. P.

 So ordered.

19750120

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