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February 28, 1979

Victor SOTO and John R. Seybert, Plaintiffs,

The opinion of the court was delivered by: BRIEANT


By their complaint filed November 6, 1978, plaintiffs, members of the International Organization of Masters, Mates and Pilots (hereinafter "MM&P" or sometimes the "union"), seek to enjoin their organization, which is the defendant in this action, from implementing the results of a referendum among the Offshore Membership Group, described below and alleged to have been carried out in violation of their rights and those of rank and file members, protected by the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411.

 Subject matter jurisdiction is founded upon 29 U.S.C. § 412. Venue is proper in the Southern District of New York.

 By motion docketed November 27, 1978, plaintiffs sought preliminary injunctive relief. The motion for the preliminary injunction was consolidated with the trial of the merits, pursuant to Rule 65(a)(2), F.R.Civ.P. and the case tried before the Court without a jury on December 19, 21, 22 and 27, 1978. The briefs of the parties have been received and considered. Familiarity with the stipulated facts docketed December 26, 1978 is assumed.

 The MM&P is a labor organization and collective bargaining representative for licensed deck officers aboard ocean-going vessels, licensed pilots in major ports, and licensed personnel aboard smaller commercial vessels operating in harbors and inland waterways.

 The challenged referendum was conducted by mail among the 4,910 members in good standing who are engaged as licensed deck officers in the American Merchant Marine, who are referred to collectively herein as the "Offshore Group."

 Collective bargaining negotiations with various shipping companies during the spring and early summer of 1978 resulted in a proposed contract for the years 1978-1981. This contract was unanimously approved for ratification by the Offshore Membership Group Negotiating Committee at its meeting in Baltimore on June 24, and 25, 1978. This committee had been nominated or recommended by the Offshore Advisory Council and selected by the General Executive Board of the MM&P pursuant to its Constitution. Negotiations with other shipping companies continued after the contract model had been developed. The last of the major employers to accept did not do so until September 29, 1978.

 The two propositions which plaintiffs seek to have enjoined were numbered I and IV respectively on the referendum ballot. Objections to Proposition II have been withdrawn. Proposition III was defeated.

 Proposition I provided for approval and ratification of the 1978-1981 collective bargaining agreement. Proposition IV provided for a substantial increase in the pay of offshore division union officers and elected representatives, effected by adoption of a formula making their wages equivalent to thirty times the daily vacation wage of seagoing officers in accordance with the work classifications set forth in a table which appeared within the body of Proposition IV, as submitted on the ballot. This latter proposition was added to the referendum ballot after its adoption by the General Executive Board of the MM&P at a meeting on August 24 and 25, 1978.

 Since a significant percentage of the membership is at sea at any given time, voting within the Offshore Group is conducted by mail referendum. At the time of this referendum, 1,875 members of the Offshore Group were at sea aboard 375 different ships.

 Referendum ballots were mailed by the American Arbitration Association on October 6, 1978. This organization was under contract with MM&P to administer the voting in an impartial manner.

 As was its customary practice, the Association mailed the ballots from New York to the last known address (or permanent home address) designated on the union records by each MM&P member. Members were provided with a ballot, a copy of the proposed collective bargaining agreement, and a return mailing envelope. A period of sixty (60) days was allowed within which the members could execute and return the ballots to the American Arbitration Association.

 Each of the two challenged propositions received a favorable vote from the membership. Proposition I was passed by a margin of 1,933 to 1,025, with a total vote of 2,958, or 60.2% Of the eligible membership. Proposition IV passed by a margin of 103 votes, the count being 1,526 for and 1,423 against.

 The individual plaintiffs Seybert and Soto are and have been active in the political affairs of the MM&P. They had ample opportunity to cast their own votes, and to oppose the provisions of the new agreement. By the new agreement, sweeping but lawful changes are effected in the seniority system of the union. In this action, plaintiffs do not assert that they personally were aggrieved, disenfranchised by what took place, or misled by the form of the ballot. Rather, they challenge the results of the October 6, 1978 referendum in the claimed right of members of the rank and file of the union said to have been disenfranchised by what plaintiffs assert is an unreasonably short period of time in which members serving at sea could vote in the referendum. Plaintiffs also claim that members opposed to passage of the referendum were denied fair access to express their opposition in the union newspaper, because of its irregular publication, and were silenced at union meetings. They also assert that Proposition IV was misleading in that it did not disclose that shorebound union officials would receive non-watch standing pay ...

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