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October 4, 1984


The opinion of the court was delivered by: SAND


The International Longshoremen's Association (hereinfter the "ILA") has petitioned this Court to confirm and enforce an arbitration award made by the ILA-Management Emergency Hearing Panel (hereinafter the "Emergency Hearing Panel," the "EHP," or "the Panel") at its June 12, 1984 meeting in New York City. *fn1" Respondent West Gulf Maritime Association (hereinafter "WGMA") seeks, in turn, to have the award vacated. The Council of North Atlantic Shipping Associations (hereinafter "CONASA") has intervened on behalf of Respondent. The action is based on § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the United States Arbitration Act, 9 U.S.C. §§ 9 and 10. For the reason discussed below, we remand the matter to the Emergency Hearing Panel for further proceedings not inconsistent with this Opinion.


 Petitioner ILA, Respondent WGMA, and Intervenor CONASA are signatories to a series of collective bargaining agreements between the ILA and a coalition of seven multi-employer shipping associations. These agreements, which pertain to longshore operations in 36 ports ranging from New England to Texas, are known collectively as the Master Contract. Among the provisions of the Master Contract is one that establishes the Emergency Hearing Panel -- a panel comprising representatives of the ILA and the signatory shipping associations whose function it is to resolve disputes relating to the containerization provisions of the Master Contract.

 At a meeting held on June 12, 1984, in New York City, the panel heard a grievance brought by Local 20 of the ILA against WGMA. According to the minutes of the meeting, the following events transpired. *fn2" The grievance alleged that WGMA's practice of requiring members of the ILA's 20-man containerization gang to function as Port-O-Packer operators, rather than hiring additional men top operate the machines, violated the Master Contract's requirement that the minimum size of a container gang by 18 men plus two drivers. After some discussion, a motion was made by an ILA representative "that the gang size shall be 18 plus two with drivers added to the twenty." A vote was then taken. See Minutes of the June 12, 1984 meeting, Exhibit B to the Affidavit of William J. Detweiler, at Item 6.

 Nine ILA representatives were present at the meeting, and all nine voted in favor of the motion. Nine management representatives, including an alternate, were present and eight of those representatives (including the alternate) voted against the motion. The vote of the ninth representative, James Costello, is recorded in the minutes as an asterisk with the explanation that: "When polled, Mr. Costello stated that he would abstain from voting. However, he subsequently stated that he would stand by the Master Contract. This was considered to be a vote in favor of the Motion." In addition, the minutes indicate that although the alternate voted 'no," "it was subsequently determined that alternates were not entitled to cast a vote." Id.

 The minutes then reflect that amid a discussion following the vote, Co-Chairman Dickman stated that a "motion has been made and carried." The minutes end by recording the following resolution together with a request by Co-Chairman Gleason that it be circulated to all carriers, Port Associations, and ILA locals:

 "RESOLVED: That in accordance with the provisions of the Master Collective Bargaining Agreement, negotiated by and agreed to by the parties, the minimum size of a container gang shall be 18 men plus two drivers and that should additional drivers be required, such drivers are to be drawn from outside the gang and shall not be part of the regular 20-man gang." Id.

 Two days later, notice of the resolution was issued in a memorandum signed by Co-Chairmen Dickman and Gleason. See Exhibit 3 to Petitioner's Notice of Petition. In the weeks that followed, letters of protest were sent to Co-Chairman Dickman by representatives of various shipping associations. See Exhibit D to the Affidavit of William J. Detweiler.

 On July 16, 1984, the ILA applied to this Court for an order confirming and enforcing the June 12th award. WGMA filed a cross-motion to dismiss the petition for lack of in personam jurisdiction or, alternatively, to have the action transferred to the United States District Court for the District of Texas. Oral argument was heard on the motions on August 9, 1984, and Respondent's cross-petition to dismiss or transfer the action was denied. The parties were instructed to brief the merits of the petition, and to return for additional oral argument on August 23, 1984. On August 14, 1984, the parties consented to the intervention of CONASA, one of the other signatories to the Master Contract, on behalf of Respondent WGMA.

 On August 16, 1984, the Emergency Hearing Panel met again in New York City. At that meeting, James Costello reported that the minutes of the June 12th meeting did not accurately reflect his vote, and he asked that the minutes be corrected to reflect that he had abstained. See Minutes of August 16, 1984 meeting of the EHP, Exhibit 12 to the Second Affidavit of Walter A. Niemand at p.3.

 Mr. Costello's description of the June 12th vote is recorded in the August 16th minutes as follows:

 " When the vote was first called, and after Mr. Remsen Whitehouse clearly stated no, I clearly stated that I stand by the language of the master contract, which is 18 men plus 2 drivers. After much conversation, Mr. Bowers was asked to reiterate his motion, at which time, I subsequently abstained."

 Id. The minutes of the August 16th meeting then reflect that a motion was made and carried to correct the June 12th minutes to reflect an abstention on the part of Mr. Costello. No indication was given as to what effect, if any, ...

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