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May 30, 1978

STEPHEN BARABAS, et al., Plaintiffs,

Cannella, D.J.

The opinion of the court was delivered by: CANNELLA


Motion for a preliminary injunction is denied.

 This Court has jurisdiction pursuant to 29 U.S.C. § 185 and 28 U.S.C. §§ 1331, 1337.


 The present controversy, even in its preliminary stage, involves the interplay of various and competing governmental policies. Plaintiffs, citing Section 301 of the Labor-Management Relations Act of 1947 ["LMRA"], 29 U.S.C. § 185, urge the interest in settling labor disputes through arbitration and enforcing labor agreements negotiated through collective bargaining. Defendants' artillery consists of the prohibition against unfair labor practices, codified in Section 8(e) of the National Labor Relations Act ["NLRA"], 29 U.S.C. § 158(e); the strong national concern over restraints of trade, as found in Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and Section 15 of the Shipping Act of 1916, 46 U.S.C. § 814; and the National Maritime Administration's interest in the continuing viability of a United States merchant fleet.

 Factually, this case arises out of contracts, valued in excess of $100,000,000, for the sale of thirteen vessels between shipowners that are parties to collective bargaining agreements with competing unions. The nineteen individual plaintiffs are radio officers and/or radio electronics officers *fn1" presently employed by Prudential Lines, Inc. ["Prudential"]. These plaintiffs are in the bargaining unit of Prudential employees represented by plaintiff American Radio Association, AFL-CIO ["ARA"]. The plaintiff union, ARA, has been for a number of years the exclusive bargaining representative of the radio officers on United States flag ocean-going vessels owned and operated by Prudential. Since 1969, section 62 of the collective bargaining agreement between Prudential and ARA has provided as follows:

In order to preserve the jobs and job rights of Radio Officers and Radio Electronics Officers in the employment pool covered by our collective bargaining Agreement and to protect and maintain the wages, pension rights and other economic benefits and the working conditions provided such Officers under said Agreement:
The Company agrees with respect to any vessel which is presently under or may hereafter during the life of the collective bargaining Agreement be covered thereby, that if during the term of said Agreement, it is sold or transferred (including charters of any kind) in any manner to any other business entity for operation under U.S. flag (but not including a vessel which the Company may be operating under a bareboat charter and the charter is terminated) the vessel shall be sold or transferred (including charters of any kind) with the complement of the employees who either were or shall be provided by the Union in accordance with the terms of the Agreement, or such number as may be agreed upon between the Union and the Transferee.
The Company obligates itself to obtain for the benefit of the Union a written undertaking with the Union executed by the business entity to which the vessel has been sold or transferred (including charters of any kind) that for the full term of the Agreement all of its terms and provisions shall apply to said vessel except as hereinbefore provided and that said business entity will fully comply with all of the terms and provisions of the Agreement, including the provision contained herein. The Union agrees as well to be bound by the Agreement as amended.
This provision shall be deemed of the essence of the collective bargaining Agreement and in the event of any violation thereof the no-strike provision of the Agreement shall not be applicable.

 The Radio Officers Union, United Telegraph Workers, AFL-CIO ["ROU"], which intervened in the present action on consent of all parties, is the exclusive bargaining agent for all radio officers on vessels owned by Delta Steamship Lines, Inc. ["Delta"]. The collective bargaining agreement between Delta and ROU establishes a hiring hall and requires that Delta obtain radio officers exclusively through the ROU hall.

 On December 30, 1977, after months of negotiations, Prudential and Delta executed contracts for the sale of thirteen vessels from Prudential to Delta. Believing itself bound by its agreement with ROU, Delta insisted that the following provision be included in each of the sales contracts:

Nothing contained in this Agreement shall require the Buyer or the Seller to employ in any part of its business any individual currently or formerly employed by the other. . . . The Buyer and the Seller do not by this Agreement or otherwise assume any obligations resulting from any collective bargaining agreement or other understanding heretofore.

 The closing date was set for sometime prior to June 1, 1978, subject to approval by the United States Maritime Administration. Such approval having been received on or about May 16, 1978, the closing date is scheduled for May 31, 1978.

 Upon execution of these contracts, ARA sought to enforce its rights under section 62 of its collective bargaining agreement with Prudential, culminating on April 18, 1978, with ARA's invocation of the provision respecting "final and binding" arbitration of disputes over "the interpretation or performance" of the collective bargaining agreement. On April 29, 1978, Prudential filed unfair labor practice charges with the National Labor Relations Board ["NLRB"], alleging that ARA had violated, inter alia, Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e).

 Fearful that the Prudential-Delta deal might close before the arbitrator rendered its decision, plaintiffs brought suit in this Court on May 2, 1978, requesting preliminary injunctive relief. Subsequently, on May 9, 1978, the arbitrator issued a decision in favor of the union. The award reads in pertinent part:

. . . Prudential Lines, Inc., is hereby directed that, before transferring any of such vessels to Delta Lines, Inc., (1) it take all steps necessary to assure that such sale or transfer . . . be made with the complement of radio officers permanently assigned to such vessels and (2) obtain from Delta Steamship Lines, Inc., a written undertaking that the existing economic terms and conditions of employment of such radio officers be maintained for the term of the collective bargaining agreement between ARA and Prudential Lines.

 In re American Radio Assoc. and Prudential Lines, Inc. (Opinion and Award, May 9, 1978) (David E. Feller, Arbitrator). Consequently, on May 11, 1978, plaintiffs filed an amended complaint, see Fed. R. Civ. P. 15(a), seeking both immediate and final enforcement of the arbitration award. Plaintiffs also urged that this Court advance and consolidate the trial on the merits with the preliminary injunction hearing, pursuant to Fed. R. Civ. P. 65(a)(2), contending that the enforcement claim raised solely legal questions.

 The parties hotly debated this issue both on papers and in oral argument, recognizing that consolidation would eliminate plaintiffs' burden of establishing irreparable injury. In contrast to plaintiffs' characterization of the issues as essentially legal, defendants cataloged a host of factual questions necessitating a scope of discovery too broad to fit within the rigid timetable set by the May 31st closing date. The Court declined to rule immediately, preferring instead to await further clarification of these allegedly relevant issues of fact.

 On May 22, 1978, the Regional Director of the NLRB approved a Settlement Agreement, executed by the ARA, in response to the charges filed by Prudential. Although section 62 of the Prudential-ARA collective bargaining agreement was found, on its face, violative of § 8(e) of the NLRA, the Agreement states:

Nothing in this agreement prohibits the American Radio Association, AFL-CIO, from seeking to enforce, or enforcing, the Award of Arbitrator David E. Feller, said Award being dated May 9, 1978, because to do so would not constitute unlawful conduct within the meaning of Section 8(e) of the Act.

 The next day, following a morning of further testimony and argument, the Court determined, in its discretion, not to proceed under Fed. R. Civ. P. 65(a)(2), but to label the hearing one for a preliminary injunction only. Although the opinions of the arbitrator and the NLRB Regional Director operated to eliminate or simplify certain issues, the Court was loathe to curtail to a matter of days a trial that might ...

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