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O'HARE v. GENERAL MARINE TRANSP. CORP.

December 4, 1981

Joseph O'HARE, Albert M. Cornette, Peter Gale, Bruce A. McAllister, Robert W. Sanders and Thomas E. Moran, as Trustees of the New York Marine Towing and Transportation Industry Pension Fund and Insurance Fund, Plaintiffs,
v.
GENERAL MARINE TRANSPORT CORPORATION, Defendant. BERMAN ENTERPRISES, INC., Standard Tank Cleaning Corp., and General Marine Transport Corp., Plaintiffs, v. LOCAL 333, UNITED MARINE DIVISION, ILA, et al., Defendants



The opinion of the court was delivered by: SWEET

Plaintiff trustees of the New York Marine Towing and Transportation Industry Pension Fund and Insurance Fund ("the Trustees" or "the Funds") are seeking a partial summary judgment against defendant General Marine Transport Corporation ("General Marine") on the issue of liability for contributions allegedly due the Funds pursuant to a collective bargaining agreement between Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO ("Local 333"), and the Marine Towing and Transportation Employers' Association ("the Association"), an association representing companies in the multi-employer bargaining unit of which General Marine is alleged to be a member. General Marine has also moved for summary judgment and seeks dismissal of the complaint. For the reasons stated below, which constitute the findings of fact and conclusions of law, the motion of the Trustees will be granted, and the motion of General Marine will be denied.

Certain issues involving these, or related parties, have been the subject of extensive litigation before the Second Circuit, the NLRB, and this court. Familiarity with General Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980), Berman Enterprises, Inc. v. Local 333, United Marine Division, International Longshoreman's Assoc., 644 F.2d 930 (2d Cir. 1981) and their underlying facts is assumed. The undisputed facts set forth by both the Trustees and General Marine with respect to the instant motion are briefly set forth below.

General Marine is a wholly owned subsidiary of a holding company owned by various members of the Berman family. It operates sludge vessels used for dumping sewage sludge out at sea. From 1973 through 1976 General Marine, as a member of the Association, was a party to a collective bargaining agreement with Local 333. Shortly before the agreement expired, General Marine completed an authorization form authorizing the Association to negotiate on its behalf. During the negotiations the question of resignation by General Marine from the Association arose, as well as a proposed contract provision binding General Marine and its "affiliates." General Marine was given the opportunity to resign from the Association, but refused to do so. On March 26, 1976, the Association and Local 333 executed a new three-year collective bargaining agreement ("the contract"). Although substantially renewing the basic provisions of the prior agreement, it purported to cover all employers as well as a "subsidiary company, an affiliated company or a company division in the Port of New York and vicinity."

 On April 13, 1976 Peter Frank, Vice President of General Marine ("Frank") wrote to Local 333 stating the refusal of General Marine to be bound by the contract, claiming that its scope exceeded the Association's authority. Between April and August, 1976, Local 333 filed several unfair labor practice charges with the Board against General Marine and Berman. The first complaint was denied by the Board. In the second complaint, Berman and the Board agreed in a settlement that Berman would not recognize the Marine Engineers' Beneficial Association ("MEBA") until representation proceedings were completed. The third charge was withdrawn by Local 333 in light of the representation proceedings. On December 10, 1976 in the representation proceedings the Regional Director determined that General Marine was bound by the contract and therefore barred from having election proceedings and that Berman and its other affiliates should have elections to determine the proper bargaining agent. Local 333 alone requested review of this decision which was denied by the Board. After an election MEBA was certified as the bargaining agent for ships owned by Berman and its affiliates other than the two ships operated by General Marine, the Susan Frank and the Rebecca K.

 Between January and March, 1977, with the representation question settled, Local 333 demanded that General Marine honor the terms of the contract. On February 28, 1977, Local 333 filed an unfair labor practice charge with the Board. The Administration Law Judge ("ALJ"), relying on the report from the representation proceedings pursuant to § 102.67(f) of the Board's Rules and Regulations, found that General Marine was bound by the contract and had committed an unfair labor practice. The Board affirmed the decision on October 24, 1978. The Second Circuit set aside the Board's decision holding that the unfair labor practice was time-barred by the six-month filing provision of § 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b). General Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980).

 After the April 13, 1976 notice of termination by General Marine, referred to above, the members of Local 333 struck the two General Marine barges for two days on April 28, 1976. General Marine contends that the strike was a response to implementation of the wage rates under the new contract. The Trustees asserted that the strike was due to unauthorized manning changes on the vessels. Frank, by letter dated April 30, 1981, claimed that, because of the strike, General Marine would no longer be bound by the contract pursuant to Article I, Section 8 of the contract which provides in part that "(u)pon the violation of this (no strike) Section by the Union or any of the Employees, this Agreement may be terminated with respect to and by all and any of the Employers." The strike ended that day after discussions between Frank and union representatives. The Trustees contend that the termination was rescinded, and General Marine contends that the termination remained in effect with Local 333 agreeing to work under the emergency health situation then existing. There is a factual issue therefore as to the basis of the strike and its resolution.

 This action by the Trustees seeking recovery of pension fund contributions under the contract initially was brought as a counterclaim in the anti-trust case brought by Berman against Local 333 and the Association, referred to earlier. After the Trustees were dropped as defendants in that action, the counterclaim was severed from the anti-trust suit and asserted through an independent complaint. It is the only contract violation presently being asserted against General Marine that is before the court.

 Jurisdiction for this action is properly predicated on § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, and the Employee Retirement and Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq; see Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S. Ct. 489, 4 L. Ed. 2d 442 (1960); American Ben. Plan Admin., Inc. v. D & E Corp., 90 CCH Labor Cases P 12,428 (C.D.Cal.1980); Hann v. Harlow, 271 F. Supp. 674 (D.Or.1967).

 Although the facts that give rise to a § 301 claim may well have been actionable as an unfair labor practice within the proper jurisdiction of the National Labor Relations Board ("NLRB"), § 8 of the National Labor Relations Act ("NLRA") 28 U.S.C. § 158, the board's jurisdiction is not exclusive:

 
The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and it does not destroy the jurisdiction of the court under § 301.

 Smith v. Evening News Ass'n, 371 U.S. 195, 197, 83 S. Ct. 267, 268, 9 L. Ed. 2d 246 (1962); see also Amalgamated Ass'n of Street, Electric Railway, & Motor Coach Employees v. Lockridge, 403 U.S. 274, 277-301, 91 S. Ct. 1909, 1913-1925, 29 L. Ed. 2d 473 (1971); Orange Belt District Council of Painters No. 48 v. Maloney Specialties, Inc., 639 F.2d 487, 490 (9th Cir. 1980). Therefore this court properly has jurisdiction over this action. *fn1"

 In General Marine Transport Corp. v. NLRB, 619 F.2d 180, the Second Circuit determined that Local 333's unfair labor practice charge brought by the board against General Marine was time-barred by the six-month filing provision of § 10(b) of the NLRA, 29 U.S.C. § 160(b). Thus the court granted General Marine's petition to set aside an NLRB order in favor of Local 333. This decision does not present a res judicata bar to this case nor collaterally estop the determination of the issues relevant to this case since the causes of action differ and the issues relevant to the instant action were not necessarily previously determined.

 The judicially developed doctrine of res judicata evolved primarily to avoid repetitious litigation of the same causes of action. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1933). Through its operation parties to an action or their privies are barred from relitigating a cause of action where a judgment on the merits has already been rendered, Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 319, 47 S. Ct. 600, 601, 71 L. Ed. 1069 (1927), and there is an identity of parties and issues between the two actions. Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232-33 (2d Cir., cert. denied, 434 U.S. 903, 98 S. Ct. 300, 54 L. Ed. 2d 190 (1977). The doctrine of collateral estoppel renders a prior judgment conclusive as to matters necessarily determined and litigated in the prior action. Commissioner of Internal Revenue v. Sunnen, 333 U.S. at 597-98, 68 S. Ct. at 719; Expert Electric, Inc. v. Levine, 554 F.2d at 1233.

 A "cause of action" for res judicata purposes "is not a matter of precision nor subject to the application of any mechanical formula." Id. at 1234. The facts surrounding the transaction or occurrence, rather than the legal theory upon which a litigant relies, is generally stated to constitute the cause of action and entails considering whether the rights determined in the prior action would be impaired ...


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