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In re Arbitration Between International Longshoremen's Association

decided: November 4, 1987.

IN THE MATTER OF THE ARBITRATION BETWEEN INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, PETITIONER-APPELLEE,
v.
DELTA STEAMSHIP LINES, INC., RESPONDENT-APPELLANT



Appeal from an order of the United States District Court for the Southern District of New York (Kram, J.) summarily affirming an award of an Emergency Hearing Panel. Reversed and remanded on the ground that unsettled factual issues precluded the granting of summary judgment.

Van Graafeiland, Meskill and Cardamone, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

The issue on this appeal from an order of the United States District Court for the Southern District of New York (Kram, J.) is whether the posture of the case before the district court was such that it warranted disposition by summary judgment. After reviewing an unsatisfactory twelve hundred page appendix spattered with mutually contradictory and conclusory affidavits, we conclude that it did not. Unlike the district court, we are not prepared to accept the affidavits submitted by the petitioner-appellee as statements of unassailed and unassailable fact, particularly when they deal with such matters as intentions, understandings, contemplations, ideas, thoughts and motivations, 636 F. Supp. 722, 732-33. See Friedman v. Meyers, 482 F.2d 435, 438-39 (2d Cir. 1973). Without purporting to decide the case on the merits, we hold that inconsistent and contradictory factual allegations in the record, some of which we will discuss, create genuine issues which preclude summary disposition.

The three principals in the events leading to this litigation, which ultimately will entail awards of over $13 million, 636 F. Supp. at 728 n.6, are New York Shipping Association, Inc. (NYSA), Delta Steamship Lines, Inc. (Delta) and International Longshoremen's Association (ILA).

The NYSA was organized in 1955 under the New York Membership Corporation Law "[t]o function as an association of contracting stevedores, owners and/or operators of ocean-going vessels in the transportation of passengers and freight for hire for the purpose of promoting the labor relations of the shipping industry in the Port of New York and to promote the mutual welfare of [its] members . . . in connection with labor relations matters with their waterfront employees . . . ." Its voting members consist of independent contracting stevedores, known as "direct employer member[s]", and owners or charterers of ships calling at the Port of Greater New York and Vicinity, who are known as "carrier member[s]".

The Association's president is authorized to negotiate collective bargaining agreements on behalf of its members in accordance with policies and objectives set by the Board of Directors, but all agreements so negotiated are subject to approval by the Board. The Association's bylaws provide moreover:

If any such agreement so negotiated and approved by the Board is accepted by a majority of the voting members attending, in person or by proxy, at a meeting called for the purpose, all voting members and associate members shall be bound thereby and become parties thereto, except in the case of any voting member or associate member who or which shall within fourteen (14) days after such ratification indicate, in writing, addressed to the Secretary, its refusal to subscribe to said agreement, in which case such voting member or associate member shall be considered to have withdrawn from the Association pursuant and subject to the requirements of Article I, Section 6 hereof.

Delta, a onetime carrier member of NYSA, was a relatively small shipping company which ceased operations in 1985. The record does not disclose what role, if any, the $13 million in awards played in Delta's demise, except that the total awards apparently represented more than a quarter of Delta's 1984 net worth. Delta avers that it always hired independent contractors to supply it with marine terminal services, including the loading and unloading of its ships. The independent contractors hired the labor to render the services and supervised the laborers. The stevedores based their charges to Delta on their labor and supervision costs, equipment usage, terminal rental, overhead and profit. There was no common ownership or control between Delta and any of its independent contractors.

The ILA is the dominant East Coast union for longshoremen and other waterfront employees, with locals in thirty-six East Coast and Gulf Coast ports. Its president during the period of this controversy was Thomas Gleason. Since 1956, the ILA has been attempting to organize a single bargaining unit for this entire coastal area. It has not succeeded. The most it has been able to achieve is a consensual agreement among seven regional management associations, including the NYSA, to bargain on certain items, which form a "Master Agreement" that is submitted to local port associations for ratification. As six of the seven contracting parties described their relationship, "[t]here is a master contract but no master management organization."

In April 1983, negotiations were completed for a three-year Master Agreement to become effective on October 1, 1983. James Dickman, the president of the NYSA, signed the resultant Agreement. On September 26, 1983, a revised Master Agreement was executed. This was described as an interim agreement necessitated by then pending litigation over the legality of the Rules on Containers. The April agreement was revoked, and local union ratification balloting scheduled for September 28 was cancelled. In a letter to NYSA members dated September 27, 1983, Mr. Dickman described the September agreement as a "revised Master Agreement which is subject to ratification after agreement is reached on local conditions." The September agreement was "extended" to January 15, 1984, and then to February 8, 1984, in order to permit local port negotiations to be completed.

However, on January 25, 1984, a third agreement was prepared at a meeting held in Miami, Florida. A Delta representative, who attended portions of that meeting as an observer, states that he was informed by NYSA counsel that Delta would not be bound by the proposed contract unless Delta signed it. On February 6, 1984, Delta notified the NYSA and the ILA that it would not sign the January 25 agreement and that the NYSA could not sign on its behalf. This automatically terminated Delta's NYSA membership.

So far as we have been able to determine from the unsatisfactory record, the September agreement, as such, was never ratified by all locals. The ILA alleged in its pleadings below that the January 1984 agreement was the "Master Agreement" which was "in full force and effect." Although the ILA thereafter reversed its position and argued that the January 1984 agreement was simply "collateral" and "redundant", and that the September 1983 agreement was the one in force, this creates at most a question of fact. As late as December 1983, Mr. Gleason was quoted as saying he did not consider that the ILA had an enforceable Master Agreement.

Because Delta was unable to hire stevedores affiliated with the ILA after it refused to become a party to the January 1984 agreement, it secured the services of stevedores affiliated with other unions in Houston, Jacksonville and Philadelphia. The ILA then filed grievances with an Emergency Hearing Panel provided for in a 1981 agreement and "incorporated by reference into the [January 1984] Master Agreement." The ILA sued in the district court to compel Delta to arbitrate before that panel as allegedly required by the January 1984 "Master Agreement." The motion to compel arbitration never was decided. Despite Delta's refusal to participate in the hearings before ...


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