Petition — Jensen v. Farrell Lines, Inc.

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DEG 4 1980

IN THE MICHAEL RODAK, JR. CLERK

Supreme Court of the United States ——

October Term, 1980

No.

WILLIAM JENSEN, EDWIN KREMER, JOHN GARDELLA,

WILLIAM KUYL, DOMINICK BISBANO, LINDSAY HOYT,

FRANCIS S. HAGGERTY, RICHARD TRIPPE, ANTHONY

LORE and GARY D. LUECK,

Petitioners,

Vv.

FARRELL LINES, INC., and INTERNATIONAL ORGANIZA-

TION OF MASTERS, MATES AND PILOTS, AFL-CIO,

Respondents.

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Murray A. GORDON

Attorney for Petitioners

666 Third Avenue

New York, New York 10017

Tel. (212) 661-7900

Of Counsel:

RONALD H. SHECHTMAN

GorRDON & SHECHTMAN, P.C.

Parties in the Court of Appeals

The parties named in the caption herein were the parties

in the Court of Appeals for the Second Circuit. In addition

to the parties named in the caption herein, the Brotherhood

of Marine Officers, District 1, MEBA, AFL-CIO, and the

AFL-CIO were also parties in the District Court. Neither

appealed the order of the District Court at issue here and

neither appeared in the Court of Appeals.

Question Presented

Where petitioners’ employer is part of the American

flag merchant marine fleet, declared by federal law to be

part of the United States national defense, heavily sub-

sidized as to ship construction and operation by federal

funds, and subject to detailed federal regulation and over-

view of its operations, including the employer’s shipping

articles pertaining to individual contracts of employment

and collective bargaining agreements, is the discharge

by such employer of petitioners as deck officers, solely be-

cause of their refusal to join a union not certified, selected

or otherwise established as representative of a majority

of that employer’s deck officers, governmental action subject

to and in violation of the First Amendment to the United

States Constitution?

TABLE OF CONTENTS

PAGE

Guestions Prosemted . ii ..s 0s. idsandes eee i

Table of Authorities ........... vebeens'se eae ¥mmmey ili

Optnions BOW 6 oisiocs4ctshinns eee 1

Furia: v6. kiki ck a0 bb hdhiesseid eee 2

Constitutional and Statutory Provisions Involved .. 2

Statement of the Case

l. Preliminary Statement .... 26 60s.isus-daue 3

2. Petitioners’ Deemieees ic vccciee vce 5

3. Farrell’s Action as Governmental Action .... 10

Reasons for Granting the Writ

I. The Decision Below Finding That Farrell’s

Conduct of Which Petitioners Complain Was

Not Governmental Action Sufficient to Invoke

the Protection of the First Amendment, is

Inconsistent With Applicable Decisions of

This Court and of Other Courts of Appeals. 14

II. The Decision Below, Holding That a Govern-

mental Employer Could, Consistent With the

First Amendment, Compel Membership in a

Union Not Certified, Selected or Otherwise

Established as Representative of the Major-

ity of the Relevant Employees, as a Condi-

tion of Continued Employment, is Either

Contrary to the Decisions of This Court or

Presents an Important Federal Question That

Should Be Decided by This Court .......... 20

CONCLATEION ...0ccccccsscensvasead sl eeuk eee 29

pv. @ ee PrrerErrnrrrrriyry Tyr la

Avommmen ET ... ccc ccccciceveb ones naee angele 92a

Apruworx TTT .. .cccccccscsaveéedsauecneeeee 144a

iii

Table of Authorities

PAGE

CasEs:

Abood v. Detroit Board of Education, 431 U.S. 209

SUIPEE Cin sct vases vi welnds 6 ike Ceres baceuek 22, 23, 25

Babbitt v. United Farm Workers National Union,

ene SP CED a hc Wa pasa wle ne eke pues wm ss 25

Beasley v. Food Fair of North Carolina, Inc., 416

EET, Wash + bic p vd hae oR Lease x OAS os 28

Boire v. Int’l Brotherhood of Teamsters, 479 F.2d

59 CUM SOO en ane d rience vekeein céwewas 26

Braden v. University of Pittsburgh, 552 F.2d 948

ST MOREE 5 a5ce sy hee dA kak ad ol uaed Sheena 17,18

Branti v. Finkel, 445 U.S. 507 (1980) ............ 22, 23

Burton v. Wilmington Parking Authority, 365 U.S.

FE AEORD Sh kAGb4RK RAS tds CRA KR OAS 15, 16, 17, 19

Deluxe Metal Furniture Co., 121 NLRB No. 135, 42

pe go ee oy ere ee 27

Elrod v. Burns, 427 U.S. 347 (1976) ........... 22, 23, 26

Flagg Bros. Inc. v. Brooks, 436 U.S. 149 (1978) ... 17

General Warehousemen & Helpers Local 767 v.

Standard Brands, Inc., 579 F.2d 1282 (5th Cir.

SOR cess v4 bebe ge Wika es LOL aka wae 26

Glendale Mfg. Co. v. Local 520, 283 F.2d 936 (4th

Cir. 1960), cert. den. 366 U.S. 950 (1961) ....... 26

Hampton v. City of Jacksonville, 304 F.2d 320 (5th

Cir. 1962), cert. den. 371 U.S. 911 (1962) ....... 17, 19

Hanover Township Federation of Teachers Local

1954 v. Hanover Community School Corp., 457

pe a ER ee en ee 21

International Association cf Machinists v. Street,

SOE Cle Fee CEE 85 665 OURAN Sas Tews ba ckces 23, 24

International Brotherhood of Teamsters v. Inter-

national Umion of United Brewery Workers, 106

Pe OE Ce Cs BPE oi ders in ncc ve vcadeds 26

Cases (Continued) :

PAGE

Jackson v. Metropolitan Edison Co., 419 U.S. 345

SRR ils cp Lhe eas Chee anes Base we meee ee 15, 17

Jensen v. Farrell Lines, Inc., 477 F.Supp. 335 (S8.D.

i ih ne eee 1, 4, 5, 6, 7, 8, 9, 10, 16, 20, 27

Jensen v. Farrell Lines, Inc., 625 F.2d 379 (2d Cir.

| ER gar ere at 2, 4, 15, 16, 20, 21, 25, 26, 27, 28

Lathrop v. Donohue, 367 U.S. 820 (1961) ......... 25

Leonard Wholesale Meats, Inc., 136 NLRB No. 103,

40 LRM TOO) (1OGR) 0. ccc ccc cv ccweceeres 27

Local 453 v. Otis Elevator Co., 314 F.2d 25 (2d Cir.

1963), cert. den. 373 U.S. 949 (1963) ........... 26

Longview Terrace Co., 208 NLRB No. 78, 85 LERM

- oes: | Ee ari To) Sere to 27

Machinists & Aerospace Workers v. NLRB, 412

op eo. : eer err rrr re ee Tee eee 22

McQueen v. Druker, 438 F.2d 781 (1st Cir. 1971) .. 17,18

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

Pe as bis enn d as CH nese hee ek eka MRED 2 21, 22

NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175

PRONE u sGiicwe nui pat haben tee tee ventves case es 22

NLRB v. International Longshoremen’s Union,

Local 13, 549 F.2d 1346 (9th Cir. 1977), cert. den.

WE Bf | Pr errr errr errr 26

NLRB v. Iron Workers, 434 U.S. 335 (1978) ...... 26

NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) 22, 24

Pickering v. Board of Education, 391 U.S. 563

SOE yh Fx Ck Ade uA SORE Owen haeees Soneaaaes 21

Police Officers’ Guild v. Washington, 369 F.Supp.

BAD CU.D.0.- YOTE). oi ioc e cee venveascttessgess 22

Portland Associated Morticians, Inc., 163 NLRB

No. 76, 64 LRRM 1402 (1967) ..........-..05- 27

Cases (Continued) :

PAGE

Railway Employees Dept. v. Hanson, 351 U.S. 225

i cok cece des cee cases 23, 24, 25

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444

ek Sab ein eueséaese 11

Shelton v. Tucker, 364 U.S. 479 (1960) ........... 21

Smith v. Arkansas State Highway Employees,

Local 1315, 441 U.S. 463 (1979) ............... 25

Texas & N.O.R. Co. v. Railway Clerks, 281 U.S.

is wand naceee sss 24

The Coldwater, 283 Fed. 146 (S.D. Fla. 1922) .... 13

Thomas v. Collins, 323 U.S. 516 (1945) .......... 22

United Federation of Postal Clerks v. Blount, 325

F.Supp. 879 (D.D.C.), aff’d, 404 U.S. 802 (1971) 22

Virginian R. Co. v. Federation, 300 U.S. 515 (1937) 24

Wimbish v. Pinellas County, Florida, 342 F.2d 804

es ake ccenedssccbeecveescs 17, 19

Wooley v. Maynard, 430 U.S. 705 (1977) ........ 22

Sratrutes & Recunations:

re 2

re ae re haa keveveccessaes 4

NLRA § 8(f), 29 U.S.C. § 158(f) ................ 26

NLRA § 2(3), 29 U.S.C. § 152(3) ................ 2, 5, 28

Fe eer 3, 5

NLRA §$ 9(a), 29 U.S.C. §159(a) ............... 26

NLRA § 9(c), 29 U.S.C. § 159(c) ............008- 26

NLRA § 9(c) (3), 29 U.S.C. § 159(¢)(3) .......... 29

NLRA § 9(e) (1), 29 U.S.C. § 159(e)(1) .......... 26

NLRA § 14(a), 29 U.S.C. § 164(a) ............... 3, 28

Ee 14

Srarutes & Recuuations (Continued) :

PAGE

es AGEL hoy ables se eevee sens 14

Merchant Marine Act of 1936, 46 U.S.C. $1101

| eke Gabe UK co suo e.s bons tdeeiccece 2

EES 12

SE 11

e ee, ccs cvenseece 11

Geel Saad seb aneccececnccs 11

EEE ee 12

Ne Stacie ne sheerviverene 14

et wine pat c.cccesceses 13

ee ada be ener se ccvesce 13

ee cai ccp a sgpcedesccesecess 13

ee Ae ee G abd on ss see veccese 12

Merchant Marine Act of 1920, 41 Stat. 988 (1920) 16

Shipping Act of 1916, 39 Stat. 728 (1916) ........ 16

Exec. Order No. 9054, 7 Fed. Reg. 837 (1942) .... 16

LecisLaTiIvE History :

1970 U.S.C. Cong. and Admin. News at 4188 et. seq. 11,13

r MISCELLANEOUS:

ABA, The Developing Labor Law (1971), (1971-75

Da cece ctcverscccsccceses 26-27

Gilmore & Black, The Law of Admiralty (2d ed.

EES SE ee 16

Recommendations of the Department of Commerce

and the Maritime Administration, Senate Com-

mittee on Interstate and Foreign Commerce,

ee Gee, Dee weeee., L CIOL) 5.1... cccccee 13-14

IN THE

Supreme Court of the United States

October Term, 1980

No.

fa’

WiuiaM Jensen, Epwin Kremer, Jonn Garpetia, WILLIAM

Kuyt, Dominick Bispano, Linpsay Hoyt, Francis S.

Haccerty, Ricuarn Trrprr, ANTHoNny Lore and Gary D.

LvuEck,

Petitioners,

F'arreELL Lines, Inc., and INTERNATIONAL ORGANIZATION OF

Masters, Mates anp Pivots, AFL-CIO,

Respondents.

fay

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the final judgment of the United States Court of Appeals

for the Second Circuit entered herein on May 12, 1980.

Opinions Below

The opinion of the District Court is reported at 477

F.Supp. 335 (S8.D.N.Y. 1979), and is reproduced as Appendix

(‘‘App.’’) I, infra, at App. 1a-84a. The opinion of the

United States Court of Appeals for the Second Circuit is

reported at 625 F.2d 379 (2d Cir. 1980), and is reproduced

as Appendix II, infra, at App. 92a-141a.

Jurisdiction

The Court of Appeals for the Second Circuit rendered

and entered its judgment, reversing the judgment of the

District Court, on May 12, 1980. Petitioners’ application

for a rehearing with suggestion of rehearing en bance was

denied on July 7, 1980. Petitoners’ application for an

extention of time in which to file this petition was granted

on September 22, 1980, and their time to file a petition for

writ of certiorari in this Court extended to and including

December 4, 1980.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

1. First Amendment to the United States Constitution:

‘‘Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to as-

semble, and to petition the Government for a redress

of grievances.’’

2. The Merchant Marine Act of 1936, as amended, 46

U.S.C. § 1101 et seq., in relevant part:

See Appendix ITI, infra, at App. 160a-192a.

3. National Labor Relations Act, §2(3), as amended,

29 U.S.C. § 152(3):

See Appendix III, infra, at App. 144a-145a.

4. National Labor Relations Act, $9, as amended, 29

U.S.C. § 159:

See Appendix III, wmfra, at App. 145a-154a.

5. National Labor Relations Act, 4 14(a), as amended,

29 U.S.C. § 164(a):

See Appendix III, infra, at App. 154a.

Statement of the Case

1. Preliminary Statement’

Petitioners, members of the Brotherhood of Marine

Officers (‘‘BMQ’’), commenced this action to challenge

their discharge by respondent Farrell Lines, Inc. (‘‘Far-

rell’’), solely for their refusal to join a union, the Interna-

tional Organization of Masters, Mates and Pilots

(‘‘MMP’’), which did not represent a majority of the Far-

rell employees in their job titles.2 Petitioners are super-

visory employees without recourse to the National Labor

' The transcript and exhibits in the District Court are referenced

as “T. ” and “Exh. ,” respectively; the Joint Appendix in the

Court of Appeals, transmitted to this Court as the record in this case,

is referenced as “JA. .’ The appendix to this petition is refer-

enced as “App. 2

* At the trial plaintiffs made a showing, by way of a comprehensive

statistical analysis of the extensive payroll and other data in evidence,

that a majority of Farrell’s deck officers belong to BMO, not MMP.

JA. 501-04. MMP was afforded the opportunity to rebut that show-

ing, but did not do so. JA. 644-45. The District Court, in the order

reversed by the Court of Appeals, directed an election to determine

whether MMP or BMO represented the majority of Farrell’s deck

officers. Our argument here proceeds on the assumption that BMO,

not MMP, represented the majority of the Farrell deck officers. But

even if the matter is in doubt, as the District Court apparently con-

cluded, it still remains that MMP has not established majority status

and absent such status all of petitioners’ arguments concerning repre-

sentation by and compulsory membership in a minority union are the

same as they would be with respect to a union which has not been

certified or otherwise established as the majority union.

Relations Board (‘‘NLRB’’). Petitioners asserted three

claims in their complaint: (1) Farrell’s discharge of peti-

tioners violated rights conferred by contract and applicable

federal law; (2) petitioners’ union violated the duty of fair

representation owed to petitioners when it failed to assert

the constitutional and statutory rights of petitioners in an

arbitration proceeding or in court; (3) Farrell’s discharge

of petitioners violated rights conferred by the First Amend-

ment to the United States Constitution. This petition con-

cerns only the third claim. The District Court had jurisdic-

tion over this claim under 28 U.S.C. § 1331.

The District Court entered an interlocutory order, based

solely upon the third claim, declaring that compulsory mem-

bership in MMP as a condition of Farrell employment

violated petitioners’ rights under the First Amendment if

MMP did not represent a majority of the relevant deck of-

ficers employed by Farrell. The District Court premised

this order on its finding that Farrell’s conduct constituted

governmental action. The District Court directed further

proceedings to determine whether MMP represented such a

majority. App. 3la-55a, 79a-84a.

Farrell and MMP appealed from the interlocutory order

(JA. 52, 53, 55), which was reversed by the Court of Appeals

for the Second Circuit. (App. 92a-14la). The Court of

Appeals held that, though it was a ‘‘close’’ question whether

governmental action was involved, the question was to be re-

solved contrary to the finding of the District Court and, fur-

ther, that, even if Farrell’s action was governmental, the

dismissal of petitioners solely for refusal to join MMP did

not violate their First Amendment rights. Petitioners moved

the Court of Appeals for the Second Circuit for rehearing

en bane (JA. 1346-59), which was denied (JA. 1361). The

District Court then entered judgment dismissing all of

plaintiffs’ claims. JA. 1318-19. Petitioners have appealed

the District Court’s dismissal of the two claims not im-

plicated by the interlocutory order on this petition. JA.

1320. That appeal is now pending in the Court of Appeals

for the Second Circuit.

2. Petitioners’ Dismissal

BMO is a labor organization representing licensed deck

officers and engineers in the American merchant marine.

Each of the plaintiffs is a licensed deck officer and has been

a long-standing member of BMO—as long as thirty-two

years in the case of the petitioner Captain LoRe—during

which time BMO has been their exclusive collective bargain-

ing agent under a contract with American Export In-

dustries, Inc. (‘‘AEL’’).* App. 3a-4a, 278. MMP is a labor

organization representing inter alia licensed deck officers

in the American merchant marine.* MMP has represented

and continues to represent licensed deck officers employed

aboard Farrell ships. App. 4a. Neither BMO nor MMP has

ever been certified as the collective bargaining representa-

tive of deck officers, those employees being supervisors ex-

cluded from the coverage of NLRA §9, 29 U.S.C. § 159.

App. 14a.

Farrell operates a shipping fleet in the United States

merchant marine. From March 28, 1978 until their forcible

8 Two of the ten plaintiffs (Gardella and Bisbano) are licensed

engineers who were joined in the ERISA claims presented by the

original complaint. App. 56a-57a. The ERISA claims were elimi-

nated from the amended complaint. App. 7a. The licensed engineers

continue to be employed by Farrell pursuant to the BMO-Farrell col-

lective bargaining agreement. Accordingly, the petitioners, as referred

to collectively herein, include only the remaining eight licensed deck

officers named as plaintiffs in the amended complaint.

* It was stipulated at trial that BMO and MMP both represented

at least two employees as defined in National Labor Relations Act

(“NLRA”) § 2(3), 29 U.S.C. § 152(3), and that each was a labor

organization within the meaning of the NLRA. JA. 1566.

discharge, Farrell had employed all of the petitioners on

certain of its ships. App. 3a-4a.

In 1977 AEL filed a petition for an arrangement under

Chapter XI of the Bankruptcy Act. Farrell purchased the

stock of AEL in those proceedings and thereby acquired

the fleet of international cargo ships owned or operated by

AEL. App. 8a; JA. 678-79. The trial court found that on

March 28, 1978 Farrell merged the former AEL fleet of 25

ships into its own fleet of 14 ships and commenced its opera-

tion on the international trade routes previously served by

AEL. App. 8a-9a.

At the bankruptcy hearings on January 11, 1978 it was

stipulated that ‘‘contractual arrangements . . . present with

respect to the labor unions will continue along in the

merged company... .’’ JA. 672. Upon its acquisition of

AEL, Farrell executed an agreement, dated March 28, 1978,

with BMO wherein Farrell assumed AEL’s obligations

under a collective bargaining agreement effective through

October 15, 1981, and agreed to continue that AEL-BMO

collective bargaining agreement in full force and effect with

respect to the licensed deck officers employed on ships which

Farrell acquired from AEL. App. 9a-10a; JA. 815. Subse-

quently, Farrell also entered into a collective bargaining

agreement with MMP, effective June 16, 1978, with respect

to the licensed deck officers employed on its original fleet.

JA. 710, 713. Pursuant to a prior contractual provision (JA.

813), Farrell, as the employer of the BMO membership

manning the vessels purchased from AEL, on November

22, 1978 entered into a modification of its collective bargain-

ing agreement with BMO to provide improved wages and

benefits® (JA. 816).

5In the courts below MMP and Farrell sought to dismiss the

described Farrell-BMO contracts as the result of alleged BMO strike

threats and in contemplation of an AFL-CIO Article XX arbitration.

In April 1978 MMP, by its parent, the International

Long-Shoremen’s Association (‘‘ILA’’), initiated proceed-

ings before the AFL-CIO under Article XX of the AFL-CIO

Constitution, claiming entitlement to represent all licensed

deck officers employed on all vessels owned and operated by

Farrell. JA. 683-84. A month later, BMO’s AFL-CIO

affiliate, defendant MEBA, asserted a similar right on

BMO’s behalf. Proceedings then ensued before a hearing

officer appointed by the AFL-CIO, who rendered a decision

which was thereafter appealed to the Executive Council of

the AFL-CIO. Thai appeal was’ decided finally on or

about February 28, 1979, when defendant AFL-CIO ruled

that MMP was to represent all licensed deck officers em-

ployed by Farrell. App. 10a-lla. MMP then demanded of

Farrell, by letter dated March 6, 1979, that it recognize

MMP as the exclusive bargaining representative of all

licensed deck officers in its employ and implement its col-

lective bargaining agreement accordingly, effective March

D, 1979. JA. 874-75.

The evidence is to the contrary. BMO never struck or picketed

Farrell. BMO first wrote in January 1978 that it would take action,

in connection with the bankruptcy proceeding, to enforce the BMO-

AEL contract (JA. 650-51), and then, after that proceeding, wrote

that, in reliance upon the stipulation wherein the “contractual arrange-

ments” with BMO were to “continue along,” BMO hoped it was not

necessary to take other action (JA. 681). Neither BMO nor MMP

was willing to execute the written agreement, proposed by Farrell, to

be bound by an Article XX award. JA. 647-51. And the contracts

between Farrell and BMO made no provision for termination prior

to October 15, 1981 by reason of an Article XX award or otherwise.

JA. 367-68.

* The issue whether BMO or MMP represented a majority of the

Farrell deck officers, or the legal implications thereof, was not raised

or considered in the Article XX proceedings. It was, in fact, specifi-

cally urged by ILA that “no election may be obtained . . . through

Article XX.” JA. 1546. It was also specifically represented by ILA

in those proceedings that no BMO deck officers would be displaced

if ILA prevailed. JA. 1535-37, 1547.

Farrell was not a party to the Article XX proceeding

and had no interest in the outcome. Farrell did not care

which union represented its deck officers and was willing

to accept either BMO or MMP as a collective bargaining

representative. App. 70a; JA. 406. Nonetheless Farrell

acquiesced in the MMP demand.

On or about March 12, 1979, Farrell notified all BMO

members employed aboard its vessels that as a condition of

further employment they would be required to become mem-

bers of MMP and that the collective bargaining agreement

between BMO and Farrell was no longer effective. Farrell

indicated that it would apply only the terms of the MMP

agreement with respect to all licensed deck officers in its

employ, and that its contributions to the BMO employee

benefit and pension funds would cease immediately. JA.

692-93." Consequently, when BMO deck officers returned

from voyages after March 5, 1979, MMP required them to

obtain their vacation pay, comprising about 40% of their

total pay (J.A. 358-59), at the MMP offices and with MMP

dues of 5% deducted therefrom.* T. 502, 507-09, 514; PI.

Exh. 59.

The Staghound was the first former AEL ship to return

to the United States after the decision of Farrell to abro-

gate the BMO collective bargaining agreement in compli-

ance with MMP’s demand. On March 14, 1979, when the

7 The health, welfare, pension benefits and vacation pay of BMO

members at sea were paid to MMP from March 5, 1979, pursuant

to the terms of the Farrell-MMP collective bargaining agreement,

without the consent of the deck officers and without regard to

whether they joined MMP, despite the fact that these deck officers

had signed articles incorporating the terms of the BMO collec-

tive bargaining agreement prior to their departure from ports in the

United States. JA. 361-62.

8 MMP dues for six months of seagoing employment were $150

plus $450 to $1,000, depending on rank and salary. JA. 731-33,

756-57. BMO dues were $246, T. 514.

Shipping Commissioner, a United States Coast Guard offi-

cial, came aboard the Staghound to obtain the crew’s

signature on articles for its next foreign voyage, petitioners

sought to sign on. The Shipping Commissioner refused,

however, explaining that Farrell had instructed him not to

sign articles for those deck officers. JA. 262-65.

Farrell wanted the experienced BMO crew, which

brought the ship to port, to man her on the scheauled foreign

voyage. If the crew had agreed to join MMP, they would

have been permitted to sign foreign shipping articles and

would have continued their employment. JA. 310, 312, 369-

70. Farrell, however, succumbed to the demand of MMP

and refused to permit petitioners to sail with the Staghound

when they declined to join MMP. App. 11a; JA. 312-13. On

March 15, 1979, those deck officers who sought to sail but

would not join MMP were arrested by police and taken off

the Staghound shackled together in handcuffs, JA. 266-67,

279-82.

By letter dated March 19, 1979, the president of MMP,

Robert J. Lowen, advised each licensed deck officer on

ships acquired from AEL represented by BMO that he must

join MMP ‘‘to remain employed.’’ JA. 789. The ultimatum

was presented to each former AEL ship manned by the

BMO as it arrived in a United States port. Those deck

officers who refused to join MMP were removed from their

positions. BMO members who joined MMP were permitted

to continue their employment, but under the terms of the

MMP collective bargaining agreement.® App. 1lla-12a.

® In addition to joining MMP, the BMO deck officers were re-

quired to pay dues to MMP (JA. 880), and, after May 8, 1979, to

pay MMP’s $3,000 initiation fee (Pl. Exh. 75). Continued BMO

membership put one’s MMP membership and employment at high

risk since the MMP Constitution forbids dual union membership

except by written permission at the highest MMP level for a limited

time (App. 66a-67a), and it does not appear that such permission had

been provided for petitioners or other BMO officers after March 1979

(T. 541).

Under the MMP contract, second and third mates would

be hired only through the MMP hiring hall instead of

through the BMO seniority list (T. 473-74), a circumstance

which meant an average reduction of more than 20% in paid

working status during the year (PI. Exh, 63, 70) and that in

the MMP hiring hall the former BMO deck officers would

be at a severe competitive disadvantage.’°

3. Farrell’s Action as Governmental Action

arrell is part of the American flag merchant marine

fleet. Accordingly, the capital necessary to construct and

operate Farrell’s ships is overwhelmingly provided by the

federal government, JA, 467, 1302-03," As a condition of

eligibility for the Operating Differential Subsidy (‘‘ODS’’)

10 Former BMO deck officers would be initially placed at the

lowest, Claes C, level in consideration for non-Farrell berths at the

MMP hiring hall, no matter the length of prior licensed seagoing ex-

perience. JA, 876. Few Class C deck officers obtained jobs in the

MMP hiring hall. Pl. Exh, 66, Former BMO deck officers were

offered Class A status in competing for Farrell berths on former

AEL ships (JA. 876), but they would have to compete with all

other MMP Class A deck officers for such berths rather than havin

the assured berths provided by the BMO seniority list (T, 474) an

it was within the discretion of MMP whether even such limited Class

A status would continue for any former BMO deck officer who took

a non-Farrell job through the MMP hiring hall (T, 549-50),

11 The cost of construction of the Farrell fleet paid by the United

States equals close to $262.5 million, approximately one-half that

sum for ships owned by Farrell prior to the acquisition of AEL. App.

80a; JA. 1302-03. Each Farrell ship was built under a contract with

the United States Secretary of Commerce pursuant to which the

federal government paid approximately 50% of the purchase price.

App. 37a-38a, 80a; JA. 1302-03. The balance of the purchase price

was provided by government guaranteed mortgages and profits de-

posited in a fund and on which taxes were deferred. jp. 37a-38a,

80a; JA. 472. Farrell is reimbursed for approximately 60% of the col-

lective bargaining costs — from the employment of American

citizen crews—i.e., wages and fringe benefits as determined by col-

lective »argaining contracts between Farrell and the maritime unions.

App. 37a-38a, 79a-80a; JA. 467. In calendar year 1978, under

AEL’s and its own federal subsidy agreements, Farrell received in

excess of $56 million from the Federal Government. App. 80a.

program, governing the operational subsidization contracts

between Farrell and the United States, Farrell was re-

quired to demonstrate that absent these funds it could not

successfully compete with foreign flag ships.’* 46 U.S.C,

§ 1172. Farrell thereby acknowledged its dependency upon

federal financial support for the operation of its fleet.

Each of Farrell’s vessels, both those acquired from AEL

and those previously operated by Farrell, was built to

design specifications set by the Secretaries of Commerce

and the Navy incorporating features mandated for speedy

conversion from trade to national defense use, and each

ship’s design must be approved by both those departments.

46 U.S.C, § 1151.

Farrell’s entire fleet is operated under two elaborate

ODS agreements with the United States Department of

Commerce, one covering its own fleet and one covering

ships acquired from AKL, JA, 454, 461, 465, 882, 1003.

Pursuant to these contracts, the government determines

the route on which each vessel will operate, the frequency

of sailings, and the ports of call on each voyage. JA.

886-89, 903-05, 1006-26. Any change in the route or sailing

schedule requires government approval. JA. 889, 995-

1001, 1030, If Farrell wishes to use its ships in other than

foreign trade, it must repay to the United States the sums

expended for their construction. 46 U.S.C, § 1156; see also

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572

(1980),

The government sets minimum manning, wage scales,

and working conditions on Farrell ships (JA. 892, 909-12,

924-27, 1069-71, 1237), and must approve the actual salaries

paid as the basis for determining the operating subsidy

12 Each of the ODS contracts recites that such required findings

were made (JA. 885, 1005), and that the subsidy is necessary to

meet foreign competition (JA. 916, 1059-60, 1178-79). See 1970

U.S.C. Cong. & Admin. News (“CC&AN”) at 4188, 4190.

paid to Farrell (JA. 465; see also 46 1J.8.C, § 1173), And

pursuant to the ODS agreements, Farrell must, upon re-

quest of the United States, carry up to three government

representatives on board its ships to monitor operations.

JA. 934, 1079-80, 1198-99,

Farrell’s contract with the United States sets forth

Farrell’s obligation regularly to replace the vessels in its

fleet and departure from the replacement schedule requires

government approval, JA. 893-97, 913, 969, 980, 1038-46,

1220, Farrell is required to follow a conservative dividend

policy, to notify the United States of its intention to

declare dividends, and not to effect any merger or consoli-

dation, or effect any acquisition or disposition of its assets,

or embark on any new enterprise not directly connected with

shipping. JA. 932, 939-40, 1091-92, 1210-11. Farrell cannot

transfer the maintenance, management or operation of any

vessel or service covered by the contract without the con-

sent of the United States. JA. 929-30, 932, 1075, 1077-78,

1194, 1196-97, The sale of AE.L’s vessels to Farrell and the

assignment of AEL’s ODS to Farrell required and received

government approval. JA, 675, 989, 1262-65. If Farrell

defaults in any of its obligations to the United States,

the United States has the right to supervise the number

and compensation of its officers and employees. 46 U.S.C,

§ 1223(b); JA. 927, 1191. Government auditors regularly

audit Farrell’s performance under the ODS. JA. 377,

932-34, 1078-80, 1197-99,

The Merchant Marine Act, which is the statutory predi-

cate for Farrell’s ODS contracts, declares it necessary to

the national defense that the United States have a domestic

merchant marine capable of serving as a naval and military

auxiliary in time of war or national emergency. 46 U.S.C.

§ 1101,

‘‘From this declaration it is apparent that the

United States, in the maintenance and operation of

the merchant marine, is not engaged in a purely

commercial enterprise, but that, on the contrary,

Congress conceived that the establishment and oper-

ation of the merchant marine was the exercise of a

governmental function of the highest importance,

..’ (The Coldwater, 283 Fed, 146, 148 [S.D. Fla.

1922]).

A 1970 Senate Report explains that the primary impetus

for the original Merchant Marine Act was the inability of

the United States to meet its defense needs in World War I.

CC&AN at 4188-89, The system of subsidization and gov-

ernment control under which Farrell operates evolved to

meet these needs, Jbid, The 1970 Senate Report describes

the merchant marine as ‘‘our fourth arm of defense.’’ Jd,

at 4190. Whenever the Secretary of Commerce determines

that private enterprise under the construction and operat-

ing differential subsidy programs is inadequate to accom-

plish the program of establishing and operating a merchant

marine, the Secretary is directed to complete the program.

46 U.S.C. $1191. The Secretary may, on account of the

United States, have ships constructed and may charter them

to private operators for a fixed sum for operation on the

essential trade routes."* 46 U.S.C. §§ 1192, 1204.

The Department of Commerce has described the rela-

tionship between the United States and, the American flag

merchant marine fleet, which includes Farrell, as a part-

nership, stating that ‘‘ [t]he government is in fact a partner

in such operations, ...’’ Recommendations of the Depart-

ment of Commerce and the Maritime Administration, Sen-

ate Committee on Interstate and Foreign Commerce, 82nd

18 At the time of the Farrell acquisition of AEL, three ships (the

Defender, Diplomat and Democracy) were owned by the United

States and were operated under charter from the United States. JA.

337, 418. Two of these ships continued to be operated by Farrell

after the take-over and Farrell received operating differential sub-

sidies for the voyages they made. PI. Exh. 47, Sched. B1-3-6, sheet

3; Sched. B1-2-0, sheet 3.

Cong., Ist Sess., 1 (1951). Farrell is expressly obligated to

‘‘eooperate with the United States and with other American-

flag companies in the development of the American-flag

Merchant Marine as a whole....’’ JA. 918.

The United States was also involved in the specific

actions of Farrell of which petitioners complain. The ap-

proval of the Maritime Administration was required for

Farrell’s acquisition of the AEL fleet and its assumption

of rights under AEL’s ODS contract. JA. 675. The Sec-

retary of Commerce must review Farrell’s collective bar-

gaining agreements, including those with BMO and MMP,

and determine that they are fair and reasonable and the

product of bona fide, arm’s length collective bargaining.

46 U.S.C. §1173(b). Petitioners served on each voyage

pursuant to a government mandated contract of employ-

ment—foreign shipping articles. By statute, at the time

of the acts here complained of, these articles were required

to be signed in the presence of the Shipping Commissioner

and bear his certification and seal. 46 U.S.C. $4 564-65, 713.

Farrell was able to replace petitioners on board the Stag-

hound and other former AEL ships only with the active

participation of the Shipping Commissioner, a United States

Coast Guard official, who, pursuant to Farrell’s direction,

refused to permit petitioners to sign articles, permitting

only MMP members to sign on the crew. JA. 263-64.

REASONS FOR GRANTING THE WRIT

The Decision Below Finding That Farrell’s Conduct

of Which Petitioners Complain Was Not Governmental

Action Sufficient to Invoke the Protection of the First

Amendment, is Inconsistent With Applicable Decisions

of This Court and of Other Courts of Appeals.

In our view, the Court of Appeals has invited this

Court’s review of the governmental action issue posed here.

The underlying concept is described as ‘‘a blurred one that

the Supreme Court itself has had trouble clarifying.’’ App.

llla. At another point the ‘‘nexus’’ test language of

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)

(‘‘Metropolitan Edison’’), is said to be ‘‘less than clear.’’

App. 140a. And the Court of Appeals acknowledged that

its own decisions diverge on the issue whether the nexus

test of Metropolitan Edison and the ‘‘symbiotic relation-

ship’’ test of Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) (‘‘Burton’’), are separate or essen-

tially the same. App. 140a-14la. The propriety of resolv-

ing and clarifying the matter in this case is suggested

by reference by the Court of Appeals to ‘‘this close case’’

(App. 115a), and that court’s comment that the ‘‘question

is a close one’’ which ‘‘reasonable judges readily decide . . .

another way’’ (App. 125a); ‘‘[o]ne must ‘divide/A hair

’twixt south, and south-west side’ to determine’’ the issue

(App. 120a).

The decision below was contrary to this Court’s deci-

sions on the proper application of the tests to determine

what action constitutes governmental action. This Court

has never applied the ‘‘nexus’’ requirement of Metropol-

itan Edison when analyzing governmental action under

the ‘‘symbiotic relationship”’ test of Burton. But the Court

of Appeals did precisely that here. Two distinct, alterna-

tive requirements, each of which had previously been

separately held sufficient to find governmental action for

constitutional purposes, were imposed in the aggregate as

a condition to finding Farrell’s conduct to be governmental

action. App. 113a-125a, Thus the Court of Appeals required

express government approval of the precise actions of Far-

rell here challenged to find that Farrell’s conduct was gov-

ernmental action. App. 124a-125a.

In Burton, of course, this Court required no ‘‘nexus”’

between Eagle’s discriminatory conduct and any action of

the government. This Court expressly held that the com-

plete absence of any involvement of the government in the

precise discriminatory conduct of which the plaintiffs com-

plained was not relevant to the issue of state action. Id. at

725. The private actor’s relationship to the government,

without more, rendered it subject to constitutional con-

straints.

In addition, contrary to the express teaching of this

Court in Burton that the elements of government involve-

ment were to be considered in the aggregate (365 U.S. at

724), the Court below here considered each element in

isolation and failed to consider the combined effect of the

various elements which it individually dismissed as insuffi-

cient to find governmental action. The District Court had

considered the elements of governmental involvement with

Farrell in the aggregate. App. 36a. Nonetheless, the

Court of Appeals dismissed, seriatim, the ‘‘substantial

governmental funding’’ of Farrell, the ‘‘commonality of

economic interests’’ between Farrell and the United States,

and the government’s ‘‘extensive and detailed regulation

of the private conduct.’’ App. 121a-123a.

Viewed in its entirety, and not just piece-meal, the inter-

twining of Farrell and the United States meets every test

of government action established by this Court. The

joinder of both extensive subsidization** and detailed

regulation ’° of Farrell by the United States (see supra at

14 By 1900 the American merchant marine was virtually extinct.

Gilmore & Black, The Law of Admiralty 965 (2d ed. 1975). There-

after the American merchant marine has either been operated directly

by the United States (see, e.g., 39 Stat. 728 [1916], 41 Stat. 988

[1920], 7 Fed. Reg. 837 [1942]) or subsidized by it (see Gilmore &

Black, op. cit. supra, at 968-80).

15 There is probably no American industry which is and, his-

torically, has been more extensively regulated and controlled by gov-

ernment than the merchant marine. See Gilmore & Black, op. cit.

supra, at 958-59, 962-63, 986-96.

10-14), amounts to the symbiotic relationship contemplated

by Burton. The integral national defense role of the Amer-

ican flag merchant marine, of which Farrell is a part (see

supra at 12-13), meets the ‘‘ public function’’ test referred to

in Metropolitan Edison, supra, 419 U.S. at 352; see also

Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 163-64 (1978).

And the connection between federal regulation and per-

sonnel, and the challenged dismissal of petitioners (see

supra at 14), fulfills the Metropolitan Edison nexus test.

The decision below therefore is in conflict with this Court’s

decisions in the subject area.

The decision reached below was also contrary to the

decisions of the Courts of Appeals for the First, Third, and

Fifth Circuits on the issue presented. McQueen v. Druker,

438 F.2d 781 (1st Cir. 1971) (‘‘McQueen’’); Braden v. Uni-

versity of Pittsburgh, 552 F.2d 948 (3d Cir. 1977) (‘‘Bra-

den’’); Wimbish v. Pinellas County, Florida, 342 F.2d 804

(5th Cir. 1965) (‘‘Wimbish’’); Hampton v. City of Jack-

sonville, 304 F.2d 320 (5th Cir. 1962), cert. den. 371 U.S. 911

(1962) (‘‘Hampton’’).

In McQueen the First Circuit held that the refusal to

renew a tenant’s lease by a private landlord, who had con-

structed a housing facility on land purchased from a city

redevelopment authority, and who operated the facility pur-

suant to a land disposition agreement with the City, was

subject to the Due Process Clause of the Fourteenth Amend-

ment. Like the Merchant Marine Act and the ODS agree-

ments in the instant case, the land disposition agreement in

McQueen restricts the landlord’s operation of his business

in important respects, limits his financial exposure, requires

prior government approval for construction, and restricts

his selection of tenants and the terms of his rental agree-

ments. In McQueen, as here, ‘‘the government has chosen

to attract the participation of private persons in carrying

out a specific governmental purpose.’’ 438 F.2d at 784.

‘*[A]t least when a specific governmental function is

carried out by heavily subsidized private firms or

individuals whose freedom of decision-making has, by

contract and the reserved governmental power of

continuing oversight, been circumscribed substan-

tially more than that generally accorded an independ-

ent contractor, the coloration of state action fairly

attaches.’’ (Id. at 784-85)

In Braden the actions of a private university which

received substantial state funding, over which the state

exercised significant oversight functions, and where the

state appointed one-third of the members of the Board of

Trustees, were held by the Third Circuit to be state action.’

502 F.2d at 959-60. There the state was attempting to serve

a governmental function—increasing the opportunity for

higher education of Pennsylvania residents—by becoming a

‘*jJoint participant’’ with a private university. Jd. at 961-62.

‘‘In exchange for public funds, Pitt agreed to submit to

stringent regulations of its fiscal and other affairs.’’ Id.

at 960 (footnote omitted). In Braden and McQueen, as in the

instant case, the government has pursued a governmental

purpose through subsidization and substantial control over

the operations of a private entity. The First and Third

Circuits found such to be state action subject to constitu-

tional constraints despite the lack of any ‘‘nexus’’ between

the actions of government and the conduct of the private

actor of which the plaintiff complained.

In Wimbish, the Fifth Circuit held that the conduct of a

long-term lessee who undertook to improve the leased prop-

erty in order to operate it as a golf course was govern-

mental action, where the plans for improvement and the

prices charged for use of the course were subject to the

approval of the county. Zd. at 805-06. The Court found the

lessee’s discrimination on the basis of race to be state action

notwithstanding that the county had not discriminated in

any way, had not approved the discrimination, or had any

discriminatory purpose when it executed the lease. Jd. at

806. In Hampton, the Fifth Circuit similarly held that when

the City of Jacksonville sold a golf course to a purchaser

on favorable terms, and provided through a reversionery

clause that it must be maintained as a golf course, the pur-

chaser’s conduct was state action. 304 F.2d at 320-21.

The Court of Appeals decision in the instant case

was inconsistent with the decisions of the Courts of Appeals

in several other Circuits, as well as contrary to the gov-

ernmental action analysis of this Court in Burton. Such

a departure from traditional jurisprudence warrants re-

view by this Court. In any event, the importance of the

issue and the Second Circuit’s acknowledged lack of clarity

with respect thereto, makes this an appropriate occasion

for this Court’s review.

II.

The Decision Below, Holding That a Governmental

Employer Could, Consistent With the First Amendment,

Compel Membership in a Union Not Certified, Selected

or Otherwise Established as Representative of the Ma-

jority of the Relevant Employees, as a Condition of Con-

tinued Employment, is Either Contrary to the Decisions

of This Court or Presents an Important Federal Question

That Should Be Decided by This Court.

Petitioners were discharged by Farrell solely for their

refusal to join MMP. This was undisputed at trial and

found by both courts below. App. 13a, 98a. The District

Court held that when a governmental employer chooses to

recognize a bargaining representative for its supervisory

employees, regardless of whether it was required to do so,

the union recognized must be that selected by a majority of

those supervisory employees. App. 52a. The District Court

based this upon the First Amendment guarantee of freedom

of association. App. 41la-52a.

The Court of Appeals for the Second Circuit held, con-

trary to the District Court, that ‘‘the Constitution poses no

inherent barrier to [governmental] employers who wish to

recognize any union they choose. ...’’ App. 129a. Accord-

ing to the Court of Appeals, absent a specific statutory

proscription, there is no constitutional constraint upon a

governmental employer who, as a condition of employment,

compels membership in a union not chosen by a majority of

the employees it represents, or who discharges an employee

for refusal to join such a union. This decision, divesting

governmental employees of protection under the First

Amendment for their refusal to join a particular union,

presents an important issue of federal constitution law that

should be decided by this Court, if not already resolved by

prior decisions of this Court contrary to the determination

of the Second Circuit here.

The Court of Appeals relied upon Hanover Township

Federation of Teachers Local 1954 v. Hanover Com».unity

School Corp., 457 F.2d 456 (7th Cir. 1972) (‘‘i wover’’),

for the proposition that there is no constitutional constraint

upon a governmental employer’s recognition of any union

it chooses. App. 129a. But that case criticizes and does

not authorize dismissal of public employees for joining or

refraining from joining a union.’® As Judge (now Justice)

Stevens stated in that case when a member of the Court of

Appeals for the Seventh Circuit:

‘*the courts ... have accepted a general proposition

that public employees cannot be discharged for en-

gaging in union activities. Thus, if there is a dis-

charge because of union membership, the general

constitutional right of free association, as recognized

in NAACP v. Alabama ex rel. Patterson, 357 U.S.

449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, and Shelton

v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231,

and the free speech right recognized in Pickering v.

Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20

L.Ed.2d 811, are correctly applied to invalidate the

discharge, since there is no reason to distinguish a

union from any other association.’’ (457 F.2d at 460)

(footnotes omitted).

16 In Hanover the trial court, on constitutional grounds, ordered

the offer of contracts to nine teachers terminated because of their

union activities. See 457 F.2d at 459. Although no appeal was taken

from this order, Judge Stevens noted that the order was consistent

with prevailing authorities (id. at 460) and also indicated that like

relief was available in the event of future retaliation for union mem-

bership (id. at 462-63).

If the Constitution proscribes the discharge of a pub-

lic employee because of his membership in a union, it must

certainly protect an employee discharged for his refusal

to join a union.’* This follows from this Court’s recogni-

tion that ‘‘the law which normally is reflected in our free

institutions [is] the right of the individual to join or to

resign from associations, as he sees fit... .’’ Machinists &

Aerospace Workers v. NLRB, 412 U.S. 84, 88 (1973). The

particular application of this principle to the right to join

a union, as an aspect of the First Amendment freedom of

association, is long and well-settled. See, e.g., NLRB v.

Allis Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) ; NAACP

v. Alabama, 357 U.S. 449, 460-61 (1958) ; Thomas v. Collins,

323 U.S. 516 (1945) ; United Federation of Postal Clerks v.

Blount, 325 F.Supp. 879, 883 (D.D.C.), aff’d 404 U.S. 802

(1971); NURB v. Jones & Laughlin Steel, 301 U.S. 1, 32

(1937); Police Officers’ Guild v. Washington, 369 F.Supp.

543 (D.D.C, 1973). That freedom includes the right not to

be compelled by government to join a group against one’s

will. See Abood v. Detroit Board of Education, 431 U.S.

209, 222 (1977); cf. Wooley v. Maynard, 430 U.S. 705, 714

(1977).

If union membership is, as indicated, a First Amend-

ment associational right like other First Amendment asso-

ciational rights in nature and stature, it is governed by

the line of cases from Elrod v. Burns, 427 U.S. 347 (1976),

to Branti v. Finkel, 445 U.S. 507 (1980).'* Those cases

17 In the instant case both joining and refraining from joining a

union are involved since continued membership in BMO by petition-

ers, even if they were to join MMP, would be incompatible with MMP

membership and continuing eligibility for Farrell employment. See

supra at9 n. 9.

18 In Branti v. Finkel, supra, six members of this Court adopted

the position enunciated by the plurality opinion of Mr. Justice

Brennan in Elrod v. Burns, supra.

specify that where an employee’s dismissal is predicated

upon associational membership or non-membership, as here,

the interest served by the requirement of membership or

non-membership ‘‘must be paramount, one of vital impor-

tance, and the burden is on the government to show the

existence of such an interest.’’ Hlrod v. Burns, supra, 427

U.S. at 362; Branti v. Finkel, supra, 445 U.S. at 515-16.

‘‘']]t must further some vital governmental end

by a means that is least restrictive of freedom of

belief and association in achieving that end, and the

benefit gained must outweigh the loss of constitu-

tionally protected rights.’’ (Hlrod v. Burns, supra,

427 U.S. at 363).

The tests thus prescribed by this Court are clearly not met

here.

Wherever this Court has sustained the constitutionality

of legislation authorizing compulsory union membership,

it has done so only in the context of a mechanism to assure

majority selection and representation. Railway Employees

Dept. v. Hanson, 351 U.S, 225 (1956) (‘‘Hanson’’) ; Inter-

national Association of Machinists v. Street, 367 U.S. 740

(1961) (‘‘Street’’); Abood v. Detroit Board of Education,

supra (‘‘Abood’’). In each case, the statutory purpose to

promote effective collective bargaining by a union selected

by the majority of those in the bargaining unit was deemed

sufficient to override the associational interests of a minor-

ity of employees.

In Hanson, this Court stated:

‘*Congress has authority to adopt all appropriate

measures to ‘facilitate the amicable settlement of

disputes which threaten the service of the necessary

agencies of interstate transportation.’ Texas &

N.O.R, Co. v. Railway Clerks, 281 U.S. 548, 570.

These measures include provisions that will encour-

age the settlement of disputes ‘by inducing collective

bargaining with the true representative of the em-

ployees and by preventing such bargaining with any

who do not represent them (Virginian R. Co. v. Fed-

eration, 300 U.S. 515, 548), and that will protect the

employees against discrimination or coercion which

would interfere with the free exercise of their right

to self-organization and_ representation.’ Labor

Board v. Jones & Laughlin, 301 U.S. 1, 33.’’ (351 U.S.

at 233) (emphasis added).

In Abood, this Court again reviewed the issue of com-

pulsory union membership and concluded that the judgment

made in Hanson and Sireet is ‘‘that such interference as

exists is constitutionally justified by the legislative assess-

ment of the important contribution of the union shop to the

system of labor relations established by Congress.’’ 431

U.S. at 222, The Court carefully compared the scheme and

purpose of the applicable Michigan laws and concluded that

they were very like the federal labor laws in their provi-

sions regarding the certification of an exclusive bargaining

representative by a majority of those represented, and

therefore constitutional. Jd. at 223-24.

The compulsory membership requirement imposed by

Farrell serves no substantial governmental purpose. In the

first instance, the action of Farrell and MMP here chal-

lenged cannot be deemed, in form or purpose, the equivalent

of legislation which compels union membership in the serv-

ice of some substantial public interest. Indeed, unlike the

cases in which compulsory union membership was upheld,

Farrell is not even subject to a comprehensive legislative

scheme in which selection of an exclusive bargaining rep-

resentative is designed to facilitate the amicable settlement

of labor disputes. As this Court emphasized in Hanson (351

U.S. at 233), compulsory union membership will contribute

to the maintenance of industrial peace only when the union

is the ‘‘true representative’’ of the employees—one selected

by a majority of those in the bargaining unit. Compelling

membership in a union not selected by a majority of those

in the bargaining unit will not encourage industrial peace.

Babbitt v. United Farm Workers National Union, 442

U.S. 289 (1979) (‘‘Babbitt’’), Smith v. Arkansas State

Highway Employees, Local 1315, 441 U.S. 463 (1979)

(‘‘Smith’’), and Lathrop v. Donohue, 367 U.S. 820 (1961)

(‘‘Lathrop’’), relied upon by the Court below (App. 127a-

129a), are not to the contrary. None of these cases in-

volve the issue presented here—compulsory membership in

a non-majority union. In Babbitt and Smith, this Court

reaffirmed the constitutional right to join a union, which

subsumes the correlative right not to join, and then went

on to hold that there was no constitutional duty for govern-

ment to bargain collectively with a union or to assure that

collective bargaining was effective. Babbitt, supra, 442

U.S. at 313;'*° Smith, supra, 441 U.S. at 465. And this

Court held in Abood that Lathrop ‘‘does not provide a clear

holding to guide us in adjudicating the constitutional issues

here presented’’ of compulsory union membership as a con-

dition of public employment. 413 U.S. at 233 n.29,

The other considerations cited by the Court of Appeals

here do not meet the substantial interest or least restrictive

19 The Arizona statute challenged in Babbitt expressly provided

for majority selection of a bargaining representative. 442 U.S. at

294 n.4.

means tests set by this Court in Elrod v. Burns. The Article

XX award, by which the Court of Appeals, as it recognized,

was not bound (App. 135a), was not intended to and can-

not substitute for or supersede majority rule. Interna-

tional Brotherhood of Teamsters v. International Union of

United Brewery Workers, 106 F.2d 871 (9th Cir. 1939) ; see

also, Glendale Mfg. Co. v. Local 520, 283 F.2d 936 (4th Cir.

1960), cert. den. 366 U.S. 950 (1961); General Warehouse-

men & Helpers Local 767 v. Standard Brands, Inc., 579 F.2d

1282 (5th Cir. 1978); Boire v. Int’l Brotherhood of Team-

sters, 479 F.2d 778 (5th Cir. 1973); ef. Local 453 v. Otis

Elevator Co., 314 F.2d 25 (2d Cir. 1963), cert. den. 373 U.S.

949 (1963). The so-called maritime ‘‘aceretion doctrine’’

referenced by the court below (App. 134a), is applied in

the context of unions duly certified as majority represen-

tatives subject to decertification election if not so representa-

tive (29 U.S.C. §§ 159 [a], [c], and [e] [1]).”° The risk cited

by the Court of Appeals (though not by the parties) of new

elections at every change of deck officer personnel (App.

135a-136a) is obviated here, as elsewhere in labor matters,

by ordinary contract bar considerations (see American Bar

Association, Labor Relations Law Section, The Developing

*° Here second and third mates were relegated to the MMP hiring

hall where, pursuant to the pre-existing MMP-Farrell contract, MMP

membership was the condition for referral. See supra at 10n. 10.

But hiring halls, generally, may not condition referral for employ-

ment upon union membership. American Bar Association, Labor

Relations Law Section, The Developing Labor Law (1971) 712-

15; (1971-75 Supp.) 376-80; (1977 Supp.) 223-25. This rule

obtains as well for maritime hiring halls. NLRB v. International

Longshoremen’s Union, Local 13, 549 F.2d 1346 (9th Cir. 1977)

(see cases cited at 1353), cert. den. 434 U.S. 922 (1977). And the

sole instance of authorization of a pre-hire collective bargaining

agreement is in the construction industry where the NLRA expressly

permits a pre-hire union contract. NLRA § 8(f), 29 U.S.C. § 158(f).

But, even in the construction industry, this Court has held such a

contract unenforceable unless and until that union achieves majority

support. NLRB vy. Iron Workers, 434 U.S. 335 (1978).

Labor Law, ch. 8, § 11 E; cf. 29 U.S.C. § 159[¢][3] [one year

statutory bar]).**

And the Cireuit Court’s concern that if BMO won the

election ordered by the District Court, MMP members might

lose their benefits under the MMP-Farrell collective bar-

gaining agreement (App. 136a) overlooks the circumstance

that the District Court Judge did not specify what relief,

if any, he would order if BMO won the election, other

than declaring that petitioners could not be required to join

MMP as a condition of Farrell employment. The District

Court did not determine which contract would govern the

terms of employment (or whether the situation should be

returned to the status quo ante when BMO represented deck

officers on the former AEL ships and MMP represented deck

officers on all other Farrell ships) and the status of the

terms of the MMP-Farrell contract was not otherwise

directly implicated by the District Court.**

21 Under the NLRA the concern cited by the court below would

not have precluded the election process ordered by the District Court.

If petitioners were statutory employees, in the precise circumstances

of the Farrell take-over of the AEL ships, BMO could have required

an immediate election. Farrell’s contract with MMP expired on June

15, 1978. Pl. Exh. 57. Thus, when Farrell acquired the AEL fleet in

March, 1978, Farrell, MMP, BMO or petitioners would have had the

right thereupon to petition for an election to determine by majority

vote whether BMO or MMP represented a majority of Farrell’s deck

officers. See Leonard Wholesale Meats, Inc., 136 NLRB No. 103, 49

LRRM 1901 (1962). Under NLRB practice, the June 16, 1978 MMP-

Farrell contract, expiring June 15, 1981, would not give rise to a con-

tract bar to an election in view of the BMO-Farrell contract of March

28, 1978 and modification of November 22, 1978. Longview Terrace

Co., 208 NLRB No. 78, 85 LRRM 1267 (1974); Portland Associ-

ated Morticians, Inc., 163 NLRB No. 76, 64 LRRM 1402 (1967);

(1958) Metal Furniture Co., 121 NLRB No. 135, 42 LRRM 1470

58).

22 Farrell entered into separate contracts recognizing BMO and

MMP, and bargained with both unions. Farrell had expressly stated

that it did not care which union represented petitioners. App. 70a.

The District Court ordered an election solely with respect to the issue

of conditioning employment on union membership.

The most pervasive error of the Court of Appeals on the

First Amendment issue here raised was its perception that

that issue is governed by the supervisory status of peti-

tioners and their non-coverage under the NLRA. App. 126a-

128a, 131a, 135a-136a. But petitioners have not claimed that

the First Amendment compels Farrell to bargain with a

union of supervisors under the NLRA or otherwise. Instead

petitioners assert by reason of the First Amendment, only

their right not to be compelled by Farrell to joint a non-

majority union as a condition of Farrell employment, a right

which extends to supervisors as well as all others subject to

governmental action.”®

The holding of the Court below, that a governmental

employer can, consistent with the First Amendment, compel

membership in a non-majority union of the employer’s

*8 That petitioners are supervisors is not relevant to the constitu-

tional issue here presented. NLRA §§ 2(3) and 14(a), 29 U.S.C.

§§ 152(3) and 164(a), divest supervisors of the protections afforded

to statutory employees by the NLRA. But those sections of the

NLRA do not relieve Farrell of the constitutional restrictions to which

it would otherwise be subject. Even if Farrell’s conduct were not

subject to constitutional constraints, those sections would not author-

ize Farrell’s conduct of which petitioners complain. NLRA § 14(a)

permits a private employer to prohibit union membership by the

employer’s supervisors. But it in no way authorizes an employer

to require membership in a minority union selected by the employer

as a condition of employment. This Court recognized the funda-

mental distinction between an employer’s conditioning employment

upon membership or non-membership in a union in Beasley v. Food

Fair of North Carolina Inc., 416 U.S. 653 (1974) (“Beasley”). That

case involved supervisors discharged by a private employer for union

membership. This Court expressly distinguished and did not reach

the case that would be presented here even if Farrell’s conduct were

not subject to constitutional constraints—where a supervisor is dis-

charged for non-membership in a particular union. Id. at 622 n.7.

The thrust of the supervisory exclusion according to Beasley is

recognition of the right of the employer to the free and unfettered

choice of its supervisors (416 U.S. at 657-62), and that objective is

not furthered by Farrell’s requirement that only MMP members serve

as Farrell deck officers.

choice as a condition of continued employment, is of broad

potential impact. It divests governmental employees of

protection under the First Amendment for their refusal to

join a union, and does this arguably contrary to, and surely

without authority to support this abrupt departure from

established constitutional principles applicable to compelled

association or non-association. The decision below should

‘therefore be reviewed if it fails to adhere to prior decisions

of this Court and, in any event, because it presents an im-

portant federal question that should be decided by this

Court.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Murray A. Gorpon

Counsel of Record

666 Third Avenue

New York, New York 10017

Tel. (212) 661-7900

Of Counsel:*

Ronatp H. SHecHTMAN

Gorpon & SHEecutman, P.C.

* We acknowledge the assistance of Richard Betheil, a 1980 law

school graduate not yet admitted to practice.

APPENDIX I

Appendix I

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

79 Civ. 1372

July 13, 1979

WILLIAM JENSEN, EDWIN KREMER, JOHN

GARDELLA, WILLIAM KUYL, DOMONICK

BISBANO, LINDSAY HOYT, FRANCIS Ss.

HAGGERTY, RICHARD TRIPPE, ANTHONY

LORE, and GARY W. LUECK,

Plaintiffs,

-against-

FARRELL LINES, INC.; INTERNATIONAL

ORGANIZATION OF MASTERS, MATES AND

PILOTS, AFL-CIO; BROTHERHOOD OF

MARINE OFFICERS, DISTRICT l, MEBA,

AFL-CIO; and AMERICAN FEDERATION

OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATION,

Defendants.

SWEET, District Judge.

This action has presented an intri-

cate tapestry of issues concerning con-

tractual rights, legislative construction,

and constitutional interpretation, all in

the framework of labor law itself elabo-

rate and highly specialized. The defend-

ants urge that these issues are beyond

the reach of this court, principally be-

cause plaintiffs, who are supervisors,

are outside the protections of the rele-

vant statutory law and of the constitu-

tion. According to defendants, plaintiffs

have extinguished their only rights, those

grounded in contract, because those rights

have been abrogated by arbitration. One

strand in this tapestry, emphasized by

plaintiffs, is that there is a constitu-

tional right to associate which includes

a right to be represented by a majority-

selected union. While a district court

might prefer to avoid these difficult

issues, they have been squarely presented

by highly skilled counsel for the parties.

Because of this court's belief that

“ordered liberty", (remarks, Chief Justice

Burger, Law Day, May l, 1979), A.B.A.

Journal, June 1979, at p. 932, is an es-

sential ingredient of our complex society,

the court is vnwilling to declare that

plaintiffs are without recourse to re-

lief in their effort to assert organiza-

tional rights in a labor dispute. The

court will therefore grant declaratory

relief for the plaintiffs as set forth

more fully below.

The Parties

Plaintiffs are ten licensed deck

officers and engineers who are supervi-

sory employees in the maritime shipping

industry, members of defendant Brother-

, hood of Marine Officers, District l,

National Marine Engineers Beneficial

Association, AFL-CIO ("ao") They

have all been employed for a substantial

period of time aboard certain vessels

formerly owned and operated by American

export Lines, Inc. ("AEL") and since on

or about January, 1978, owned and oper-

ated by defendant Farrell Lines, Inc.

("Farrell"). "Farrell" is a New York

corporation which owns and/or operates

merchant cargo and bulk carriage vessels

as a U.S.-flag ocean carrier; the defend-

ant "BMO" is an affiliate of the National

Marine Engineers' Beneficial Association,

("MEBA"); the defendant International

Organization of Masters, Mates and Pilots,

AFL-CIO ("MMP"), is an affiliate of the

International Longshoreman's Association

("ILA"); and the defendant American Fed-

eration of Labor-Congress of Industrial

Organizations ("AFL-CIO"), is the nation-

al umbrella association of which MMP and

BMO are members, which was served with a

copy of the amended complaint but did not

appear at trial, no relief having been

sought against it.

The Claims and Prior Proceedings

Plaintiffs' claims, as broadiy

pleaded in their amended complaint re-

solved after the course of trial down to

three basic eee

First, the plaintiffs allege that

Farrell and MMP, by enforcing an arbi-

tration award handed down in a proceed-

ing between the ILA and MEBA, committed

unfair labor practices as defined in the

National Labor Relations Act, 29 U.S.C.

§158. In their second claim, plaintiffs

allege that BMO breached its statutory

duty of fair representation under 29 U.S.

C. §185 to the plaintiffs by the BMO's

conduct following Farrell's purchase of

the AEL ships including, inter alia, its

failure to raise a constitutional claim

at arbitration and to sue to prevent en-

forcement of the award. In their third

claim, the plaintiffs allege that

Farrell's enforcement of the award is a

violation of their First Amendment free-

dom of association in that it forces

them to join a union not of their own

choosing as a eondition of their con-

tinued employment.

This action was originally brought

on by a motion seeking a preliminary in-

junction pursuant to Rule 65, Fed.R.Civ.

P, Plaintiffs at that time alleged, pur-

Suant to Section 502 of the Employee Re-

tirement Income Security Act of 1974,

("ERISA"), 29 U.S.C. §1132, that certain

contract and pension rights were being

denied them as a result of defendants’

actions. This court, by Order dated

March 16, 1979, issued an opinion denying

that motion. After acquiring new counsel,

plaintiffs filed an amended complaint and

again moved pursuant to Rule 65, Fed.R.

Civ.P., for a preliminary injunction. In

making the new motion plaintiffs alleged

irreparable injury arising out of the

violation of their statutory and consti-

tutional rights. The original ERISA

claim was then withdrawn, and the exhibits

previously introduced at the first hear-

ing were deemed to be received in evi-

dence at the new hearing.

After evidentiary hearings on the

latter application for preliminary re-

lief, the court, exercising its discre-

tion pursuant to Rule 65(a) (2), Fed.R.

Civ.P., ordered that the trial of the

action on the merits be advanced and con-

solidated with the preliminary injunction

RS,

The Facts

The plaintiffs' claims challenge a

long standing industry practice dealing

with the resolution by arbitration of

inter-union jurisdictional disputes and

arise out of the following facts.

Until January, 1978, Jensen and the

other nine plaintiffs were employed as

licensed deck officers on vessels owned

Or operated by AEL, a subsidiary of

American Export Industries, Inc., ("AEI"),

a New York shipping corporation. Pur-

Suant to a reorganization plan resulting

from proceedings under Chapter XI of the

Bankruptcy Act, 11 U.S.C. §§701 et seq.,

AEL agreed to sell the 25 AEL owned or

Operated ships to Farrell. At all per-

tinent times prior to the sale, AEL and

BMO had a valid collective bargaining

agreement with a union shop provision

under which the approximately 180 AEL

supervisors working on AEL ships were

members of, and exclusively represented

by, the BMO. Farrell, the purchaser in

bankruptcy, owned or Operated fourteen

of its own ships immediately prior to the

Sale. At all times pertinent to this

suit, Farrell has been a party to a multi-

employer collective bargaining agreement

with the MMP. That agreement provides

that all licensed deck officers employed

by Farrell shall be members of the union.

Shortly after Farrell purchased the

AEL ships and integrated them into its

normal operations, Farrell signed an

agreement acknowledging the contract be-

tween the BMO and AEL. Afterwards,

Farrell and BMO representatives negotiated

a wage increase for the employees covered

under the old contract which, in its pre-

fatory language, acknowledged the validity

of the BMO contract and Farrell's assumed

10a

obligations respecting collective bar-

gaining. Based upon its own contract

with Farrell, however, the MMP, shortly

after the sale in bankruptcy, asserted

that it, not the BMO, was entitled to

represent the men working on the newly

acquired ships.

The MMP, by its parent, (ILA) sub-

mitted the dispute over representation

rights to arbitration under Article XxX

of the AFL-CIO hinitkeucian. In the

arbitration proceedings the parent organi-

zations of BMO and MMP (MEBA and ILA,

respectively) introduced extensive briefs,

all of which were introduced in evidence

at trial. Arbitrator Daniel Q. Mills

found that the Farrell purchase consti-

tuted an niece ona of the BMO/AEL fleet

to the MMP/Farrell fleet and that, pri-

marily because the MMP contract provided

lla

for accretions whereas the BMO contract

did not, the MMP oie was to be

given effect.

Following two internal AFL-CIO

appeals pursuant to Article <” the

arbitration award was finalized by the

AFL-CIO executive committee on February

28, 1979, approximately a year after the

initial arbitration ae. Farrell

discontinued its pension, health, and

vacation pay contributions under the BMO

contract and began to make its contribu-

tions to the MMP pee Farrell also

informed its BMO supervisors that they

would have to join MMP as a condition of

continued employment with Farrell.

Thus, if the plaintiffs and other

BMO members had accepted the terms of the

arbitration award they would, in effect,

have been bound to a union shop agreement

between MMP and Farrell and to the terms

12a

10/

of the MMP constitution. They would

thereby have been bound to accept the

MMP as their exclusive representative.

MMP offered the BMO members, including

11/

plaintiffs, membership in the union

On terms, inter alia, granting them the

highest available seniority status of

three grades accorded employees under

MMP contract for jobs on former AEL

ies Certain of the BMO members,

obviously excluding the plaintiffs,

accepted the MMP offer. However, because

communication with the 21 ships was by

cable, and because the ultimatum pursuant

to the arbitration award (concerning join-

ing the MMP) could be implemented only

as the former AEL ships reached port, it

was unclear at the time of trial exactly

how many members of the BMO intended to

13/

join the MMP,

On March 12, plaintiffs received

l3a

notice of the Farrell order when their

ship, the CV Staghound, docked in Balti-

more. On March 15, when their ship

reached the port of New York, plaintiffs

were informed of the effect of the arbi-

tration award and of the requirement that

they join the MMP as a prerequisite to

continued employment with Farrell. Upon

refusing to sign MMP membership cards,

plaintiffs were forcibly removed from the

Farrell ships by the New York City police.

This action was filed shortly thereafter.

The First Claim

[1] Plaintiffs have articulated two

versions of their first (unfair labor

practice) claim. In the first version,

plaintiffs assert that defendants com-

mitted an unfair labor practice under the

literal terms of 29 U.S.C. §158. The

obvious and fatal flaw of this first ver-

Sion is that plaintiffs are "Supervi-

l4a

14/

sors" under the definitional sections

of the National Labor Relations Act

(as amended) (NLRA) and, as supervisors,

they are not statutory "employees" who

are entitled to protection against

statutory unfair labor cdevktena

Plaintiffs have also ingeniously urged

this court to add to the body of federal

common law in the labor area by urging

that the identical conduct which would

Support a finding (by the NLRB) of an

unfair labor practice under 29 U.S.C. §

158 (if non-supervisory personnel were

involved) constitutes by implication a

breach of contract which plaintiffs

assert, should be found to be actionable

in a district court pursuant to 29 U.S.C.

§185. In effect, then, plaintiffs seek

to surmount the Congressionally mandated

bar to a 29 U.S.C. §158 unfair labor

practice claim face by non-employees such

15a

as supervisory personnel by reading into

it a contract claim based on 29 U.S.C.

§185. The federal common law in this

area commands no such result, and the

plaintiffs' status as supervisory per-

sonnel deprives them of the right to

assert an unfair labor practice claim in

this court.

Jurisdiction and Standing

[2] Subject matter jurisdiction

Over the plaintiffs' second claim is

properly in this court under 29 U.S.C. §

ies” even though supervisory personnel

were excluded from the statutory defini-

tion of employees in the 1947 Taft-Hartley

Act amendments to Section 2(3) of the

Wagner Act, 29 U.S.C. §152(3) This

conclusion derives primarily from the

court's reading of cases which have

analyzed the policies underlying the

Act's supervisory exclusion, and which

l6a

lead the court to conclude that a claim

based on 29 U.S.C. §185 is cognizable

when plaintiffs are supervisory personnel.

See generally District 2 Marine Engineers

Beneficial Association v. Amoco Oil Co.,

554 F.2d 774 (6th Cir. 1977); Globe Sea-

ways, Inc. v. National Marine Engineers'

Beneficial Association, 451 F.2d 1159,

1160 n.l (2d Cir. 1971); United States v.

National Marine Engineers' Beneficial

Association, 294 F.2d 385, 392 (2d Cir.

1961); Isbrandtsen Co. v. District 2,

Marine Engineers' Beneficial Association,

256 F.Supp. 68, 76-77 (E.D.N.Y.1966),

(Zavatt, C.J.); Accord Dente v. Interna-

tional Organization of Masters, Mates and

Pilots, Local 90, 492 F.2d 10, 12 (9th

Cir.) cert. denied, 417 U.S. 910, 94 S.

18/

Ct. 2607, 41 &.EBd.2d 214 (1974).

[3] Furthermore, where subject

matter jurisdiction is based on 29 U.S.C.

17a

§185, as is the case with plaintiffs’

second claim, the court's jurisdiction is

also invoked under 28 U.S.C. §1337. See

generally Avco Corp. v. Aero Lodge 735,

390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed2d

126, rehearing denied, 391 U.S. 929, 88

S.Ct. 1801, 20 L.Ed.2d 670 (1968): "Title

28 U.S.C. §1337 says that 'the district

courts shall have original jurisdiction

of any civil actionor proceeding arising

under any Act of Congress regulating

commerce . . ..' It is that original jur-

isdiction that a §301 action invokes."

Id., 390 U.S. at 561-62, 88 S.ct. at 1238

19/ |

(citation omitted).

[4] Subject matter jurisdiction

over the third claim exists under 28 U.S.

20/

GC. Shaees See Evans v. American Fed.

of Television and Radio Artists, 354 F.

Supp. 823, 837 (S.D.N.Y.1973), rev'd on

other grounds, Buckley v. American Fed.

18a

of Television and Radio Artists, 496 F.2d

305 (2d Cir. 1974), rehearing denied

420 U.S. 956, 95 S.Ct. 1342, 43 L.Ed.2d

21/

433 (1975). In Evans, as here, the

analysis of subject matter jurisdiction

under 28 U.S.C. §133i was based on the

reasoning that plaintiffs' rights ul-

timately depended upon an interpretation

of the Constitution. See Id. at 837 and

cases cited therein.

Because the constitutional claim

raises the question of whether enforce-

ment of the arbitration award would be an

impermissible infringement of plaintiffs'

First Amendment rights and therefore

void as against public policy, subject

matter jurisdiction over this claim is

proper and a cause of action is rE ad

([S] Plaintiffs have standing to

challenge the arbitration award under

their’ second claim. See generally Santos

19a

v. Dist. Council of New York City, 547

F.2d 197 (2d Cir. 1977) (suit brought by

union members seeking enforcement of an

Article XX arbitral award). In Santos

the court rejected the contention that

only unions, not individual union members,

have standing to seek enforcement of an

Article XX arbitration award. Id. at 200.

Here, as in Santos, plaintiffs have not

suffered "mere ‘emotional disappointment';

they have lost their a ee eh Id.

at 200. That they are not signatories to

the. relevant contracts does not deprive

them of standing to sue for contractual

enforcement under 29 U.S.C. §185. Id.

at 200, n.3. Plaintiffs have sufficiently

alleged that they have sustained injury

from enforcement of the arbitration award

and that they "'personally would benefit

in a tangible way from the courts'

intervention'." Santos at 199, quoting

20a

from Warth v. Seldin, 422 U.S. 490, 508,

95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

[6] Plaintiffs have also sufficient-

ly shown a definite injury and personal

stake in the outcome of this litigation

to maintain their constitutional claim,

principally because the action arises out

of events culminating in their loss of

employment and forced removal from place

of employment, allegedly for asserting

the right they now seek to have vindi-

wa In the instant case, the

forced removal of plaintiffs from the

ships on which they served and their loss

of employment was occasioned by their

assertion of a First Amendment right and

constitutes, therefore, the requisite ob-

24/

jective harm. § Cf. McQueen v. Druker,

438 F.2d 781 (lst Cir. 1971) (loss of

tenancy occasioned by assertion of First

Amendment right). Furthermore, according

2la

to the contract, the MMP, even if it does

not represent a majority, is in a posi-

tion to bind the plaintiffs to any agree-

ment it might make. This threat of

future harm is sufficiently "specific" in

the First Amendment context to rise above

the level of a mere "Specific chill".

See Carey, supra note 23.

The defendants have asserted that

plaintiffs do not have Standing, arguing

that the MMP benefits equal or exceed

those of the BMO, and that because plain-

tiffs had the opportunity to join MMP, no

injury resulted. Initially, of course,

this fails to meet plaintiffs' principal

contention, viz, their loss of the right

to be represented by a majority-selected

union. In addition, however, the proof

at trial established significant differ-

ences between the operation of the two

collective bargaining agreements as to

22a

vacation benefits, seniority, selection

of billets, and overtime payments, among

other benefits. The loss or modification

of these rights constitutes an independent

basis for standing.

The Second Claim

(7, 8] As stated above, plaintiffs

urge this court to vacate the Article XxX

arbitration award on two grounds over

which this Court has subject matter jur-

igeteutia In their second claim

plaintiffs allege that the BMO breached

its duty of fair representation, primarily

by not raising certain legal issues at

the Article XX proceeding and by recogniz-

ing the collective bargaining agreement

between MMP and Farrell Lines rather than

enforcing BMO's own contract with Farrell.

It is well settled that in reviewing an

arbitrator's award, "the court's function

in confirming or vacating an arbitration

23a

award is severely limited. If it were

otherwise, the ostensible purpose for

resort to arbitration, i. e., avoidance

of litigation, would be frustrated."

Amicizia Societa Navegazione v. Chilean

Nitrate & Iodine Sales Corp., 274 F.2d

805, 808 (2d Cir.), cert. denied, 363

U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2da 1727

(1960) (citation omitted). This is an

outgrowth of the Supreme Court's endorse-

ment, in the "Steelworker's Trilogy", of

the notion that arbitration is the pre-

ferred method of settling disputes which

arise from collective bargaining agree-

ments. See United Steelworkers v. Ameri-

can Mia. Co., 363 U.8. 964, 80 S.Ct. 1343,

4 L.Ed2d 1403 (1960); United Steelworkers

Vv. Warrior & Gulf Navigation Co., 363 U.S.

974, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ;

United Steelworkers v. Enterprise Wheel

& Car Corp., 363 U.S. 593, 80 S.ct. 1358,

24a

4 L.Ed.2d 1424 (1960). In light of these

decisions a court will vacate an arbitra-

tor's award only where it has been shown

that the award was tainted with impro-

priety. In no circumstances will a court

substitute its judgment for that of the

arbitrator merely because the court dis-

agrees with the arbitrator concerning

the merits of the action. Timken v. Local

1123, United Steelworkers, 482 F.2d 1012,

1014 (6 Cir. 1973). As stated in Enter-

prise Wheel & Car Corp., supra:

the question of interpretation of

the collective bargaining agreement

is a question for the arbitrator.

It is the arbitrator's construction

which was bargained for; and so far

as the arbitrator's decision con-

cerns construction of the contract,

the courts have no business over-

ruling him because their interpreta-

tion of the contract is different

from his.

363 U.S. at 599, 80 S.Ct. at 1362.

[9] It is equally well settled,

however, that an arbitration award may be

25a

vacated on the ground that there was

fraud, partially or other misconduct on

the part of the arbitrator, or that the

award was based upon a manifest disregard

of the law. See, e.g., Botany Industries,

Inc, v. Amalgamated Clothing Workers of

America, 375 F.Supp. 485, 490 n.6 (S.D.

N.Y¥.1974), and cases cited therein. In

addition, it is within the province of

the court to overturn an award if the

award is contrary to public policy, Local

453, Int'l Union of Electrical, Radio &

Machine Workers v. Otis Elevator Company,

314 F.2d 25, 29 (2d Cir. 1963), or ifa

union has failed to provide the aggrieved

employee(s) with fair representation in

the course of the grievance or arbitra-

tion process. Vaca v. Sipes, 386 U.S.

171, 184-86, 87 S.ct. 903, 17 L.Ed.2d

842; Suissa v. American Export Lines, Inc.,

907 F.2d 1343, 1347 (2a Cir. 1974). Only

26a

this last ground has been advanced here.

[10] The phrase "duty of fair re-

presentation" is a term of art which is

incapable of precise definition. Griffen

v. International U., U.A.W., 469 F.2d 181,

182 (4th Cir. 1972). Thus, in determin-

ing whether a union has breached its duty

of fair representation, a court must ex-

amine the relevant facts of each case.

Simberlund v. Long Island Railroad Com-

pany, 421 F.2d 1219, 1225 (2d Cir. 1970),

and cases cited thereat.

[11] The "duty of fair representa-

tion" doctrine was first articulated in

Steele v. Louisville & N. R. R., 323 U.S.

192, 65 S.Ct. 226, 89 L.Ed. 173 (1944),

a case involving the Railway Labor Act.

In Steele the Supreme Court indicated that

a union has a statutory duty to represent

fairly all members of the employee bar-

gaining unit. Soon thereafter, the Court

27a

extended this doctrine to cases arising

under Section 301 of the NLRA, as amended,

29 U.S.C. §185. Ford Motor Company v.

Huffman, 345 U.S. 330, 73 S.Ct. 681, 97

L.Ed. 1048 (1953). In representing its

employees, declared the court, a union is

permitted "[a] wide range of reasonable-

ness," but this latitude is "subject al-

ways to complete good faith and honesty

of purpose in the exercise of its discre-

tion." Id. at 338, 73 S.Ct. at 686. The

duty is premised on the theory that be-

cause the union is the exclusive bargain-

ing representative of the employees, it

has a statutory duty to represent fairly

all employees in its collective bargaining

with the employer and in its enforcement

and administration of the resulting con-

tract. Ford Motor Company, supra.

In Vaca v. Sipes, supra, the Court

said: "A breach of the statutory duty of

28a

fair representation occurs only when a

union's conduct toward a member of the

collective bargaining unit is arbitrary,

discriminatory, or in bad faith." 386

U.S. at 190, 87 S.Ct. at 916. The Court

went on to say that "[u]nder this doc-

trine, the exclusive agent's statutory

authority to represent all members of a

designated unit includes a statutory ob-

ligation to serve the interests of all

members without hostility or discrimina-

tion toward any, to exercise its discre-

tion with complete good faith and honesty,

and to avoid arbitrary conduct." Vaca,

366 U.S. at 177, 87 S.Ct. at 910, citing

Humphrey v. Moore, 375 U.S. 335, 342, 84

S.Ct. 363, ll L.Ed.2d 370 (1964).

[12] More recently, in Motor Coach

Employees v. Lockridge, 403 U.S. 274, 91

S.Ct. 1909, 29 L.Ed.2d 473, rehearing

denied, 404 U.S. 874, 92 S.Ct. 24, 30

29a

L.Ed.2d 120 (1971), the Court said: "[fJor

such a claim [breach of duty of fair

representation] to be made out, ...

[plaintiff] must have proved "arbitrary

or bad-faith conduct on the part of the

Union,' Vaca v. Sipes, supra, [386

U.S.] at 193 [87 S.Ct. 903]. There must

be substantial evidence of fraud, deceit-

ful action or dishonest conduct." Id. at

299, 91 S.Ct. at 1924, citing Humphrey v.

Moore, supra. See also Ryan v. New York

NewSpaper Printing, Inc., 590 F.2d 451,

455 (2d Cir. 1979). Based upon the

authorities just referred to, this court

has concluded that plaintiffs have not

shown that BMO acted arbitrarily or in

bad faith, and therefore, that, plaintiffs

have not shown a failure on the part of

BMO to represent them fairly at the

26/

arbitration proceeding. BMO's force-

ful and persistent representation of its

30a

constituents in the Article XxX proceed-

ing and its conduct in the appeals from

that proceeding can in no way be termed

arbitrary conduct. At most, the BMO's

failure to raise certain arguments might

be said to amount to negligence, but

proof that a union acted negligently or

exercised poor judgment is not enough to

make out a claim of unfair representation.

Franklin v. Southern Pacific Transp. Co.,

593 F.2d 899, 901 (9th Cir. 1979); Cannon

v. Consolidated Freightways Corp., 524

F.2d 290, 293 (7th Cir. 1975); Bazarte v.

United Transportation Union, 429 F.2d 868,

27/

872 (3d Cir. 1970). Furthermore, this

court finds that BMO's recognition and

acceptance of the contract between MMP

and Farrell did not amount to a breach of

the duty of fair representation. That

BMO adopted an agreement which particular

employees did not favor does not amount

3la

to hostile or discriminatory conduct and

therefore does not constitute a breach

of the duty of fair representation. The

complete satisfaction of all who are re-

presented by a union is hardly to be

expected. See Simburland v. Long Island

Railroad, supra, at 1227; Ford Motor

Company v. Huffman, 345 U.S. at 338, 73

S. Ct. 681. As stated in Humphrey v.

Moore, ". . . we are not ready to find a

breach of the collective bargaining

agent's duty of fair representation in

taking a good faith position contrary to

that of some individuals whom it repre-

sents nor in supporting the position of

One group of employees against that of

another." 375 U.S. at 349, 84 S.Ct. at

37k.

The Third Claim

(13] In their third claim plain-

tiffs seek injunctive relief against

32a

Farrell's enforcement of the Article xx

arbitration award on the ground that giv-

ing effect to the collective bargaining

agreement between Farrell and MMP, includ-

ing its exclusive representation provi-

sions, would do violence to their First

Amendment freedom of association. The

argument thus presented challenges the

maritime industry's practice of engaging

in pre-hire collective bargaining con-

tracts. Under this practice, a shipowner

and a union enter into an exclusive re-

presentation agreement covering super-

visory employees before any ships are

actually built or any men are hired.”

Before it can reach the merits of this

third claim, however, the court must first

determine that governmental action is in-

volved. See U.S. Const. Amend. I; Public

Utilities Commission v. Pollack, 343 U.S.

451, 461-62, 72 S.Ct. 813, 96 L.Ed. 1068

33a

(1952); Powe v. Miles, 407 F.2d 73 (2d

Cir. 1968).

State Action

{14} Whether the government has or

has not acted in a given circumstance is

not an easy peimiaseieg At least

two primary strands of the government

action doctrine can, however, be identi-

fied: the 'interdependence' or "symbiotic

relationship, view articulated in Burton

v. Wilmington Parking Authority, 365 U.S.

715, 722 and 725, 81 S.Ct. 856, 6 L.Ed.2d

45 (1961), under which a court carefully

"sift[s] facts and weigh[s] circumstances"

and, the ‘sufficiently close nexus with

the challenged action' view articulated

in Jackson v. Metropolitan Edison Co., 419

U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477

(1974). In Jackson, the Supreme Court

set forth a view of state action not

wholly consistent with the Court's earlier

34a

discussion in Burton. While apparently

restricting Burton's scope, the Jackson

Court did not, however, overrule Burton.

Indeed, the Jackson Court's language in-

dicates that at least something, of un-

certain dimension survives of the "symbi-

otic relationship [test] presented in

Burton ....”" Jackson, 419 U.S. at

357-58, 95 S.Ct. at 457. Thus, the

Burton analysis of state action, as re-

fined in Jackson, is still in force.

Under the Jackson analysis, a find-

ing that Farrell's actions constitute

governmental action would turn on whether

there is a "sufficiently close nexus be-

tween the [government] and the challenged

action of the [private] entity so that

the action of the latter may be fairly

treated as that of the [government] it-

self." Jackson, supra, at 351, 95 S.Ct.

at 453 (citation omitted). See also

35a

Graseck v. Mauceri, 582 F.2d 203, 209 (2d

Cir. 1978), cert. denied, 439 U.S. 1129,

99 S.Ct. 1048, 59 L.Ed.2d 91 (1979). In

Jackson the Court held that the authoriza-

tion and approval by the government of a

private utility company's procedures did

not transform the company's acts into

governmental action. The Court indicated

the government must "put its ... weight"

behind the challenged action to meet the

test. 419 U.S. at 357, 95 S.Ct. 449,

Prior to the Jackson decision, the Supreme

Court had held that when governmental and

private entities were so intertw’ ned and

their activities so interdependent that

it could fairly be said that they were

symbiotic, there was state action.

Burton, supra.

In Jackson v, Statler Foundation,

496 F.2d 623 (2d Cir. 1974, the Court of

Appeals for the Second Circuit enunciated

36a

five factors which are particularly im-

portant to a determination of whether

private conduct will be considered

governmental action:

(1) the degree to which the "private"

organization is dependent on govern-

mental aid; (2) the extent and in-

trusiveness of the governmental

regulatory scheme; (3) whether that

scheme connotes government approval

of the activity or whether the

assistance is merely provided to all

without such connotation; (4) the

extent to which the organization

serves a public function of acts as

a surrogate for the State; (5)

whether the organization has legi-

timate claims to recognition as a

"private" organization in associa-

tional or other constitutional

terms.

Each of these factors is material;

no one factor is conclusive.

Id. at 629.

[15, 16] These authorities, taken

together, compel the court to conclude

that the requisite state action exists,

whether viewed in terms of "“interdepen-

dence", "symbiosis", or "nexus". The

37a

competing rights at issue are those among

union members inter sese, and among union

members and their employers—all in an

industry where the government subsidy to

the employer is based upon, or perhaps

more accurately states results from the

differential between the wages paid the

union members and the wages paid to em-

ployees performing similar functions in

foreign fleets. Exhibits which were re-

ceived in evidence at trial indicate that

Farrell received a cumulative sum ex-

ceeding $56 million in subsidies for Oop-

erating costs, principally the cost of

collective bargaining seltvests Other

exhibits indicate that at the time of

trial Farrell was receiving approximately

$3.75 million to defray the expense of

Operating the Farrell fleet. The United

States government also provides construc-

tion differential subsidies for the con-

38a

31/

struction of ships operated by Farrell,

and guarantees the payment of bonds and

notes issued to provide financing for

construction of such shine.” The routes

for which subsidies are received must be

approved by the oetddcceaa ee the United

States also regulates extensively the

manning and wage scales of officers and

seamen serving aboard Farrell ships.”

Indeed, the Merchant Marine Act of 1970

requires the existence of bona fide col-

lective bargaining contracts before a

fleetowner is eligible for the so-called

Operating Differential Subsidy (ODS) and

provides for Maritime Administration

(MARAD) review of the fleetowners' col-

lective bargaining costs. 46 U.S.C. §§

1173(b), lies Furthermore, the legis-

lative history of the Merchant Marine Act

of 1970, the statute which permits the

subsidies received by tarrell, establishes

39a

that a primary purpose of the subsidies

is to ensure a national maritime industry

as an element in our national comin.

See 1970 U.S.Code Cong. & Admin.News, p.

4188.

In this court's view, the perceived

need for this subsidization stems largely

from our nation's high standard of living

and enlightened industrial democracy.

These factors in some measures account

for the greater cost of Operating U.S.-

flag vessels as compared with operating

foreign vessels. Indeed, the nexus be-

tween union rights and government subsidy

is direct and demonstrable. Consequently,

the court finds that there is governmental

action. The reasoning of McQueen v.

Druker, 438 F.2d 781 (lst Cir. 1971),

where action by a private landlord of a

heavily-subsidized federal housing pro-

ject was held to constitute state action,

40a

applies here. In that case, the court

reasoned that:

at least when a specific governmental

function is carried out by heavily

subsidized private firms or indivi-

duals whose freedom of decision-

making has, by contract and the re-

served governmental power of con-

tinuing oversight, been circumscribed

substantially more than that gener-

ally accorded an independent con-

tractor, the coloration of state

action fairly attaches.

37/

438 F.2d at 784-85 (citations omitted).

In the context of the instant case

Congress has recognized that the merchant

marine carries out a specifi» governmental

function of vital interest to the national

heteeee Farrell is a heavily sub-

sidized private firm which has had its

decision-making power greatly circumscribed

by an extensive governmental regulatory

saa It is subject to continuing

Oversight because in order to receive the

subsidies on which its survival depends,

Farrell must subject basic decision-making

4la

regarding, inter alia, routes, cargo and

40/

working conditions, to Marad approval.

The Constitutional Rights of Plaintiffs

[17] It is conceded that Congress

can deny supervisors the same right to

Organize that it grants to statutory em-

41/

ployees. Therefore, there is no

42/

absolute right for supervisors to bar-

gain collectively. Presented here, how-

ever, is the issue of whether once an

employer agrees to bargain collectively

with supervisors and sets the terms and

conditions of employment, the supervisors

have constitutional rights to exercise in

that process. There is at least at the

date of this writing, a First Amendment

right in the context of collective bar-

gaining to a determination that the union

representing the members is, in fact, a

majority-chosen union.

42a

[18] It is, of course, settled that

among the panoply of individual rights

protected by the First Amendment is the

43/

freedom of association. NAACP v.

Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2

L.Ed.2d 1488 (1958). See also, Abood v.

Detroit Board of Education, 431 U.S. 209,

233, 97 S.Ct. 1782, 52 L.Ed.2d 261, re-

hearing denied, 433 U.S. 915, 97 S.Ct.

2989, 53 L.Ed.2d 1102 (1977) (and cases

cited thereat). Although less commonly

conceived that freedom inovesan its con-

verse, the freedom not to associate, the

right not to be compelled to join a group

of association against one's will. The

right to associate and the right not to

associate are complementary aspects of

the broader freedom subsumed by the con-

cept of liberty. Cf. Wooley v. Maynard,

430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.

Ed.2d 752 (1977) (freedom of speech in-

43a

cludes freedom to refrain from speaking) ;

Railway Employees Dept. v. Hanson, 35l

U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112

(1956) (by implication)

[19] The First Amendment's protec-

tion extends beyond its exercise for

purely political purposes; it encompasses

association in the economic context. See

e. g. Thomas v. Collins, 323 U.S. 516, 65

S.Ct. 315, 89 L.Ed. 430 (1945); NAACP v.

Alabama, supra, 357 U.S. at 460-61, 78

S.Ct. 1163. It includes the protection

of an individual's right to join with his

fellows in a labor organization for the

purpose of asserting mutual and collective

economic interests. See N.L.R.B. v. Jones

and Laughlin Steel, 301 U.S. 1, 32, 57S.

Ct. 615, 81 L.Ed 893, et seq. (1937).

Where Congress had decided by statute that

an overriding governmental interest exists

in enhancing the security of unions, the

44a

courts have held that such legislation,

e. g. authorizing agency shops, is a per-

missible infringement of the associational

rights. See e.g. Railway Employees' Dept.

v. Hanson, supra; International Associa-

tion of Machinists v. Street, 367 U.S.

740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1960).

These holdings are based on the settled

principle that First Amendment rights are

not absolute. CSC v. Letter Carriers,

413 U.S. 548, 567, 93 S.Ct. 2880, 37

L.Ed.2d 796 (1973); Abood v. Detroit

Board of Education, 431 U.S. 209, 97 S.Ct.

1782, 52 L.Ed.2d 261, rehearing denied,

433 U.S. 915, 97 S.Ct. 2989, 53 L.Ed.2a

45/

1102 (1977). ~~ —=~=In Abood, supra, Justice

Powell said:

"Neither the right to associate nor

the right to participate in politi-

cal activities is absolute ....

CSC v. Letter Carriers, 413 U.S. 548,

567 [93 S.Ct. 2880, 37 L.Ed2d 796]

4 yo) Bae Nevertheless, “ea gee

a significant impairment of First

45a

Amendment rights must survive exact-

ing scrutiny." Elrod v. Burns,

Supra, [427 U.S.] at 362 [96 S.ct.

2673, 49 L.Ed.2d 547] (plurality

opinion); accord, id., at 381 [96

S.Ct. 2673] (POWELL, J. dissent-

ing). "The [governmental] interest

advanced must be paramount one of

vital importance, and the burden

is on the government to show the

existence of such an interest. ...

[C]are must be taken not to confuse

the interest of partisan organiza-

tions with governmental interests.

Only the latter will suffice. More-

over, . . . the Government must

‘emplo[y] means closely drawn to

avoid unnecessary abridgment ....'

Buckley v. Valeo, supra, [424 U.S.]

at 4235 (96 &.Ct. 612] .* Id., [427

U.S.] at 362-363 [96 S.Ct. 2673]

(plurality opinion).

431 U.S. at 259, 97 S.ct. at 1812

(Powell, J., concurring in the

Judgment) .

Thus, the required balancing is between

the seriousness of the restriction on

plaintiffs' rights and the governmental

interest in leaving the challenged

practice intact. On balance, the effect

of the defendants' actions here is to

impose a union shop agreement on the

plaintiffs as a condition of their con-

46a

tinued employment. Absent the safeguard

of majority representation, the practice

is overly and unnecessarily restrictive.

In other contexts courts have held that

Statutorily authorized union security

agreements, in conjunction with the

statutory a that a majority

of the affected employees designate their

chosen representative, are permissible

infringements of the First Amendment right

to associate. See generally, Railway

Employees' Dept. v. Hanson, ("Hanson"),

33L U.S. 225, 76 S.Ct. 714, 100 L.Ed 1112

(1956), Frankfurter, J. concurring. The

Supreme Court in Hanson, supra, upheld

the constitutionality of Section 2,

Eleventh of the Railway Labor Act, 45

U.S.C. §152, on the ground that the

choice of a union shop in furtherance of

the goal of labor peace was a permitted

exercise of Congressional power under the

47a

Commerce Clause, U.S.Const. Article Zs

Section 8. Hanson, 35l U.S. at 233-35,

76 S.Ct. 714. Remarked the Hanson court,

Congress has authority to adopt all

appropriate measures to "facilitate

the amicable settlement of disputes

which threaten the service of the

necessary agencies of interstate

transportation." Texas & N.Q.R. Co.

v. Railway Clerks, 281 U.S. 548, 570

[50 S.Ct. 427, 74 L.Ed. 1034]. These

measures include provisions that will

encourage the settlement of disputes

"by inducing collective bargaining

with the true representative of the

employees and by preventing such

bargaining with any who do not re-

present them" (Virginian R. Co. v.

Federation, 300 U.S. 515, 548 [57

S.Ct. 592, 81 L.Ed. 789]) and that

will protect the employees against

discrimination or coercion which

would interfere with the free exer-

cise of their right to self-organiza-

tion and representation. Labor Board

v. Jones & Laughlin, 301 U.S. 1, 33

[57 S.Ct. 615, 81 L.Ed. 893).

351 U.S. at 233, 76 S.Ct. at 718-719.

The various statutorily authorized

48/

union security provisions, have been

held constitutional by this reasoning.

See e. g., Abood v. Detroit Board of Edu-

48a

cation, 431 U.S. 209, 225, 97 8.Ct. 1782,

52 L.Ed.2d 261, rehearing denied, 433

U.S. 915, 97 S.Ct. 2989, 53 L.Ed.2d 1102

(1977). In Abood, which held, inter alia,

that an agency shop agreement is valid

when the members' dues are used for col-

lective bargaining expenses but that

individual union members may not be con-

pelled to make expenditures for political

purposes with which they do not agree,

the court said:

The designation of a union as ex-

Cclusive representative carries with

it great responsibilities ...

Moreover, in carrying out these

duties, the union is obliged "fairly

and equitably to represent all

employees . . ., union and non-union,"

within the relevant unit. A union-

shop arrangement has been thought to

distribute fairly the cost of these

activities among those who benefit,

and it counteracts the incentive

that employees might otherwise have

to hecome "free riders" — to refuse

to contribute to the union while ob-

taining benefits of union represen-

tation that necessarily accrue to

all employees.

49a

To compel employees financially to

Support their collective-bargaining

representative has an impact upon

their First Amendment interests. An

employee may very well have ideolo-

gical objections to a wide variety

of activities undertaken by the

union in its role as exclusive re-

presentative. His moral or religious

views about the desirability of

abortion may not square with the

union's policy in negotiating a

medical benefits plan. One indivi-

dual might disagree with a union

policy of negotiating limits on the

right to strike, believing that to

be the road to serfdom for the work-

ing class, while another might have

economic or political objections to

unionism itself. An employee might

object to the union's wage policy

because it violates guidelines de-

Signed to limit inflation, or might

object to the union's seeking a

Clause in the collective bargaining

agreement proscribing racial dis-

crimination. The examples could be

multiplied. To be required to help

finance the union as a collective-

bargaining agent might well be

thought, therefore, to interfere in

some way with an employee's freedom

to associate for the advancement of

ideas, or to refrain from doing so,

as he sees fit. But the judgment

clearly made in Hanson and Street is

that such interference as exists is

constitutionally justified by the

legislative assessment of the im-

portant contribution of the union

shop to the system of labor relations

50a

established by Congress.

Id. at 221-22, 97 S.Ct. at 1792-1793

(citations and footnotes omitted o>

[20] It does not follow that be-

cause an employer is under no complulsion

to accord his supervisors the "anomalous

status of sca teihins and thus may

fire them if they join a union, that

supervisory employees have no rights to

select their representative by majority

vote when and if the employer elects to

and does recognize a union of supervisors.

Here, the defendants argue that Hanna

Mining Co. v. District 2, Marine Engineers

Beneficial Ass'n., AFL-CIO, 382 U.S. 181,

86 S.Ct. 327, 15 L.Ed.2d 254 (1965) and

Beasley v. Food Fair of North Carolina,

Inc., 416 U.S. 653, 94 S.Ct. 2023, 40

L.ED.2d 443 (1973), mandate a holding

that BMO licensed deck officers, no

5la

matter by how much they outnumber their

MMP counterparts, must either accept

MMP or lose their jobs being devoid of

any protection under the Act. The Hanna

Court dealt with a union's efforts to

unionize supervisors, and held, inter

alia, that "activity designed to secure

organization or recognition of Supervisors

cannot be protected by §7 of the Act"

382 U.S. at 188, 86 S.Ct. at 331. In

Beasley the Court held that supervisors,

who are not protected by the Act, cannot

be awarded damages for discharge by their

employer. Neither case is based upon

either an alleged constitutional right or

the concept of majority representation.

Moreover, unlike the instant case, the

employers involved in Hanna and Beasley

had not recognized the relevant union nor

bargained with it. Therefore, these cases

do not bar a holding that under the First

52a

Amendment plaintiffs are at least entitled

to have their representative chosen by a

majority vote, irrespective of whether

they may be required to join a union as a

condition of employment. The majority

representation principle as it is re-

51/ 52/

flected in statutes and case law ,

constitutes a fundamental right in the

labor relations context.

Relief

As indicated above, plaintiffs have

been determined to be entitled to a decla-

ration that representation by a union, not

majority selected, constitutes a viola-

tion of their First Amendment rights.

However, the protection of those rights

should not result in the immediate dis-

ruption of the relationship between

Farrell and MMP.

The relief here granted to enforce

plaintiffs' constitutional rights will be

53a

analogized to the relevant practice which

is followed with respect to Statutory em-

ployes who are "covered" by the NLRA.

Plaintiffs represented in open court

that an election might not be the only way

to determine which union has majority

Status. If the parties are able to agree

On a process, such as union card authori-

zation, which would establish the majority

status of the unions involved, such pro-

cess would be Satisfactory to this court,

for as the Supreme Court has indicated in

NLRB _ v. Gissel Packing Co., 395 U.S. yp

997, 89 S.Ct. 1918, 23 L.Ed.2da 547 (1969),

quoting from United Mine Workers v.

Arkansas Flooring Co.,35l U.S. 62, 76 S.

Ct. 559, 100 L.Ed. 941 (1956) when the

NLRA applies,

"Board election is not the only

method lsy which an employer may

Satisfy itself as to the union's

majority status," 351 U.S., at

72, n.8, [76 S.Ct. 559], since

54a

§9(a), "which deals expressly with

employee representation, says no-

thing as to how the employees' re-

presentative shall be chosen," 351

U.5., at 71, (76 &.Ct. 559.)

53/

393 U.S. at 597, 89 &.Ct. at 1931.

In the event that the parties fail

to agree on such a process, the statutory

rules and National Labor Relations Board

regulations relating to decertification

proceedings will constitute a vade mecum

54/

for the court. $This declaration should

therefore not serve to dislodge the pre-

sent status quo or to alter the existing

contractual terms and conditions of em-

ployment. If it is subsequently deter-

mined that MMP is not supported by the

majority of the personnel in the relevant

fleetwide unit, then, and only then, will

it be determined that plaintiffs' con-

stitutional rights, here declared, have

been violated.

The plaintiffs are directed to sub-

55a

mit a judgment consistent with this

opinion, on notice, to the clerk of this

court within 14 days hereof.

IT IS SO ORDERED.

Footnotes ¥

1/The individual plaintiffs are as

follows:

Plaintiff WILLIAM JENSEN is a citizen of

the United States and a resident of the

State of New Jersey and has been employed

aboard vessels owned and operated by AEL

and Farrell since 1951. He was Captain

of the "Export Courier" prior to the

events culminating in this action.

Plaintiff EDWIN KREMER is a citizen of

the United States and a resident of the

State of Pennsylvania and has been em-

ployed aboard vessels operated by AEL

and Farrell since 1960. He held a Mas-

ter's license and was Chief Officer on

the containership "Export Freedom" prior

to the events culminating in this action.

Plaintiff JOHN GARDELLA is a citizen of

the United States and a resident of the

State of Pennsylvania and has been em-

ployed aboard vessels operated by AEL

and Farrell since 1946. Prior to the

events culminating in this action he was

the Chief Engineer on the containership

"Admiral Callaghan."

Plaintiff WILLIAM KUYL is a citizen of

the United States and a resident of the

State of New Jersey and has been employed

aboard vessels operated by AEL and Far-

rell since 1963. He holds a Master's

license and prior to the events culmin-

ating in this action was employed as

Second Mate on the containership "Stag-

hound."

Plaint*:s ANTHONY LORE is a citizen of

the United States and a resident of the

State of New York and has been employed

57a

on vessels operated by AEL and Farrell

Since 1947. He was registered and

scheduled for employment as a licensed

Deck Officer on the containership "Stag-

hound" as of March 15, 1979, but was

subsequently denied such employment al-

legedly for reasons which gave rise to

this action.

Plaintiff GARY W. LUECK is a citizen of

the United States and a resident of the

State of New York and has been employed

On vessels operated by AEL and Farrell

Since 1973. He was registered and

- scheduled for employment as a licensed

Deck Officer on the containership "Stag-

hound" as of March 15, 1979 but was sub-

sequently denied such employment alleged

ly for the reasons which gave rise to

this action.

Plaintiff DOMINICK BISBANO is a citizen

of the United States and a resident of

the State of Rhode Island and has been

employed on vessels operated by AEL and

Farrell since 1965. He holds a Chief

Engineer's license and prior to the

events culminating in this action was

First Engineer on the containership

"Export Patriot."

Plaintiff LINDSAY HOYT is a citizen of

the United States and a resident of the

State of New York and has been employed

on vessels operated by AEL and Farrell

Since 1969. He was registered and

scheduled for employment as a licensed

Deck Officer on the containership "Stag-

hound” as of March 15, 1979, but was de-

nied such employment allegedly for rea-

sons which gave rise to this action.

Plaintiff FRANCIS S. HAGGERTY is a citi-

zen of the United States and a resident

58a

of the State of Maryland and has been

employed on vessels operated by AEL and

Farrell since 1963. He was registered

and scheduled for employment as a licensed

Deck Officer on the containership "Stag-

hound" as of March 15, 1979, but was de-

nied such employment allegedly for rea-

sons which gave rise to this action.

Plaintiff RICHARD TRIPPE is a citizen of

the United States and a resident of the

State of Connecticut and has been em-

ployed on vessels operated by AEL and

Farrell since 1965. He was registered

and scheduled for employment as a li-

censed Deck Officer on the containership

"Staghound" as of March 15, 1979, but

was denied such employment allegedly for

reasons which gave rise to this action.

2/Plaintiffs also pleaded several

other claims which were not significant-

ly developed or contested at trial and

which upon consideration by the court,

have been determined to be of no conse-

quence to the resolution of this dispute,

primarily because they are subsumed un-

der the claims which were vigorously

contested by the parties. Those subsid-

iary claims include: a claim arising

out of the plaintiffs' forced removal

from Farrell's ships alleging that Far-

rell and MMP conspired in violation of

the Civil Rights Act of 1866, 42 U.S.C.

§ 1985, to violate plaintiffs' freedom

of association, other civil rights, and

rights secured to them under the privi-

leges and immunities clause of the Con-

stitution, U.S.Const. Article IV, sec.

2; and a claim against each individual

defendant on the same statutory ground

59a

arising out of the enforcement of the

arbitration award alleging that the

forced removal of the BMO men from Far-

rell's ships constituted a violation of

their right to employment free from dis-

crimination. See generally Local No. 1

(ACA), Broadcast Employees of the Inter-

national Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America v. International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and

Helpers of America, 419 F.Supp. 263,

274-77 (E.D.Pa. 1976) (discussion of

civil rights statutes in the labor rela-

tions context).

Plaintiffs also filed a claim under the

Fifth Amendment alleging deprivation of

a property right without due process of

law, U.S.Const. Amend. V; and a claim

under the Jones Act, 46 U.S.C. §§ 591

et seq. for wages and wrongful discharge.

3/Defendant MMP objected to the Fed.

R.Civ.P. 65 consolidation. Mindful that

notice to the parties of consolidation

is a prerequisite under Rule 65(a) (2),

Fed.R.Civ.P., see generally Acha v.

Beame, 531 F.2d 648, 651 (2d Cir. 1976),

the Court's reference to consolidation

was made at the outset of the hearings

and all the parties conducted the liti-

gation as a full-blown trial on the mer-

its. There was ample opportunity for

each to present all his evidence. See

generally Galella v. Onassis, 487 F.2d

986, 997 (2d Cir. 1973);7 J Moore, Fed-

eral Practice 465.04[4]. Although MMP

asserted that discovery would have pro-

vided an opportunity to develop more ev-

idence relating to its contentions, no

60a

offered proof regarding specific areas of

evidence which would have been relevant

to the issues here discussed was made.

This is especially so in light of the ex-

tensiveness of the evidence presented and

the lack of surprise. See Eli Lilly &

Co. v. Generix Drug Sales, Inc., 460 F.

2d 1096, 1105 (5th Cir. 1972) (cited with

approval in Galella v. Onassis, supra,

487 F.2d at 998). See also City of Rye

v. Shuler, 355 F.Supp. 17, 19-20 (S.D.N.

Ze S975) «

4/Quoted below are the most relevant

sections of Article XX of the AFL-CIO

constitution:

Sec. 2. Each affiliate shall re-

spect the established collective

bargaining relationship of every

Other affiliate. No affiliate shall

organize or attempt to represent em-

ployees as to whom an established

collective bargaining relationship

exists with any other affiliate. For

purposes of this Article, the tern,

"established collective bargaining

relationship" means any situation in

which an affiliate, or any local or

other subordinate body thereof, has

either (a) been recognized by the em

ployer (including any governmental

agency) as the collective bargaining

representative for the employees in-

volved for a period of one year or

more, or (b) been certified by the

National Labor Relations Board or

other federal or state agency as the

collective bargaining representative

for the employees.

Sec. 10. The Impartial Umpire shall

6la

make a determination, after hearing,

based upon the principles set forth

in this Article. He shall make such

determination within a time speci-

fied by the President unless an ex-

tension of time is agreed to by the

parties. The President shall trans-

mit copies of the determination to

all affiliates involved. He shall,

at the same time, request any affil-

iate which the Impartial Umpire has

found to be in violation of this

Article to inform him as to what

steps it intends to take to comply

with such determination. Any re-

sponse received, or the fact that

no response has been received within

a time fixed by the President, shall

be communicated to the other parties

to the dispute.

Sec. 13. The subcommittee of the

Executive Council may disallow the

appeal, in which event the deter-

mination of the Umpire shall be

final, and subject to no further

appeal and shall go into full force

and effect; or the subcommittee may

refer the appeal to the Executive

Council, in which event the deter-

mination of the Umpire shall be

automatically stayed pending dis-

position of the appeal by the Exec-

utive Council. The determination

of the Umpire shall be sustained

unless it is set aside or altered

by a vote of a majority of all of

the members of the Executive Coun-

cil. The decision of the Executive

Council where an appeal is granted

shall be final, and shall be effec-

62a

tive as of the date therein speci-

fied.

Sec. 20. The provisions of this

Article with respect to the settle-

ment and determination of disputes

of the nature described in this

Article shall constitute the sole

and exclusive method for settlement

and determination of such dispute

and the provisions of this Article

with respect to the enforcement of

such settlements and determinations

shall constitute the sole and exclu-

sive method for such enforcement.

No affiliate shall resort to court

or other legal proceedings to settle

or determine any disputes of the na-

ture described in this Article or

to enforce any settlement or deter-

mination reached hereunder.

5/In reaching that decision, arbitra-

tor Mills rejected the following conten-

tion asserted by BMO's parent, MEBA: Far-

rell's purchase should be considered a

merger of the two fleets because a great-

er number of ships, and consequently a

larger number of licensed deck officer

positions, was being added to the smaller,

existing Farrell fleet.

6/The pertinent coverage provisions

in the MMP collective bargaining agreement

provide the following:

The Company recognizes the Organiza-

tion as the sole representative for

collective bargaining of its Licensed

Deck Officers (except where specifi-

cally otherwise provided, the term,

"Licensed Deck Officers" whenever

63a

and wherever used in this Agreement,

includes the Master) on U.S.-Flag

oceangoing vessels.

The parties agree that it shall be

the essence of the Agreement that

its administration shall be confined

exclusively to the parties.

The Company will not engage in ac-

tivities or assist or encourage Li-

censed Deck Officers, or others who

are not members of the Organization,

in activities calculated to under-

mine the status of the Organization

as the sole collective bargaining

representative. The Company will

not attempt to influence or per-

Suade any member of the Organization

to withdraw therefrom nor will the

Company, in any way, attempt to in-

terfere with the internal affairs

of the Organization.

All Employees who are presently mer

bers in good standing of the Organ-

ization, or any future members,

shall be required to remain members

in good standing during the life of

this Agreement in order to continue

their present employment or to be

eligible for future employment sub-

ject to all other provisions of this

Agreement, provided that the Company

shall not be required to take action

until first notifed by the Organi-

zation, that such Employee has lost

his good standing. The term "good

standing" for purposes of Section

II means the Employee or prospective

Employee shall be paid up in all

dues, service fees and assessments.

[Section II, 1]

64a

This Agreement covers the Licensed

Deck Officers employed on oceangoing

U.S.-flag vessels, owned, operated

or bareboat chartered (both at pres-

ent or at any time during the life

of this Agreement) by the Company

or any of its subsidiaries or af-

filiates (whether so at present or

at any time during the life of this

Agreement) as an Owner, agent, op-

erator or bareboat charterer. [Sec-

tion V, l(a)] In the event a tank-

er Company acquires a vessel other

than a tanker vessel, or a dry-

cargo Company acquires a tank ves-

sel, such vessel will be covered

under an Agreement similar to that

between the Organization and Com-

panies with similar type vessels.

[Section V, l(e)]

7/See footnote 4, .supra.

8/The determination of the Impartial

Umpire is dated July 31, 1978, and was

received in evidence here.

9/Under the MMP group contract,

fleet owner employers are required to

make vacation salary payments to a union-

run plan. Upon coming ashore, individu-

al employees receive their accrued vaca-

tion pay from the plan, provided they

are members in good standing and all

their dues are paid. The vacation pay

application form authorizes MMP plan

trustees to deduct dues payments that

are in arrears before sending out vaca-

tion pay. Under the BMO contract, li-

censed deck officers are entitled to re-

65a

ceive their accrued vacation pay directly

from the employers. Although the MMP

System is not a technically-exact dues

"checkoff", see Section 302 of the Taft-

Hartley Act, 29 U.S.C. § 186, it effect-

ively operates as one.

10/Sections 2(a) and 2(b) of the

MMP Constitution provide:

Every member by virtue of his mem-

bership in the Organization is ob-

ligated to adhere to and follow the

terms of the International Consti-

tution and any applicable By-Laws,

Work Rules or any directives pro-

mulgated thereunder and shall enjoy

the rights, duties, privileges and

immunities conferred by them and by

statute. Each member shall faith-

fully carry out such duties and ob-

ligations and shall not interfere

with the rights of fellow members.

Every member by virtue of his mem-

bership in the Organization author-

izes it to act as his exclusive

bargaining representative with full

and exclusive power to execute

Agreements with his employer gov-

erning terms and conditions of em-

ployment and to act for him and have

final authority in presenting, pro-

cessing and adjusting any grievance,

difficulty or dispute arising under

any Collective Bargaining Agreement

Or out of his employment with such

employer, in such manner as the Or-

ganization or its Officers deem to

be in the best interest of the Or-

ganization and the membership as a

whole.

66a

Section 5(f) of the Constitution of the

MMP provides:

No member of the Organization may

be a member of another maritime

trade union or work under a Collect-

ive Bargaining Agreement of another

maritime trade union without the ex-

press written permission of the In-

ternational Subcommittee. If writ-

ten permission is granted under this

subsection, it shall only be valid

for a period of six (6) months at

which time the member must reapply.

If a member violates this provision,

he shall be immediately suspended

and shall not be entitled to any of

the benefits and privileges of the

Organization or its Collective Bar-

gaining Agreements.

Section II, { 1 of the MMP contract pro-

vides:

"The Company recognizes the Organi-

zation as the sole representative

for collective bargaining of its Li-

censed Deck Officers (except where

specifically otherwise provided, the

term, "Licensed Deck Officers" wher

ever and wherever used in this

Agreement, includes the Master on

U.S.-Flag oceangoing vessels.

The parties agree that it shall be

the essence of the Agreement that

its administration shall be con-

fined exclusively to the parties.

The Company will not engage in ac-

tivities or assist or encourage

Licensed Deck Officers, or others

who are not members of the Organi-

zation, in activities calculated to

undermine the status of the Organ-

67a

ization as the sole collective bar-

gaining representative. The Com-

pany will not attempt to influence

Or persuade any member of the Organ-

ization to withdraw therefrom nor

will the Company, in any way, at-

tempt to interfere with the inter-

nal affairs of the Organization.

All Employees who are presently mem-

bers in good standing of the Organi-

zation, or any future members shall

be required to remain members in

good standing during the life of

this Agreement in order to continue

their present employment or to be

eligible for future employment sub-

ject to all other provisions of this

Agreement, provided that the Company

Shall not be required to take action

until first notified by the Organi-

zation, that such Employee has lost

his good standing. The term "cood

Standing" for purposes of Section

II means the Employee or prospect-

ive Employee shall be paid up in

all dues, service fees and assess-

ments."

Section V, 4% 1(a) (b) (e) provide:

This Agreement covers the Licensed

Deck Officers employed on oceango-

ing U.S. flag vessels, owned, op-

erated or bareboat chartered (both

at present or at any time during

the life of this Agreement) by the

Company or any of its subsidiaries

Or affiliates (whether so at pres-

ent or at any time during the life

of this Agreement) as an owner,

agent, operator or bareboat chart-

erer.

68a

The term “subsidiary" or “affiliate"

shall be deemed to include any busi-

ness entity whether corporate, part-

nership, trust, individual or other-

wise, which is effectively controlled

by or effectively controls the Com-

pany either directly or indirectly.

_In the event a tanker Company ac-

quires a vessel other than a tanker

vessel, or a dry-cargo Company ac-

quires a tank vessel, such vessel

will be covered under an Agreement

Similar to that between the Organi-

zation and Companies with similar

type vessels.

11/By the MMP offer, which was ad-

dressed to licensed deck officers on

former AEL ships, and dated March 19,

1979,

the BMO members were told:

In addition to those officers al-

ready holding Class "A" Group

status by virtue of their MMP mem-

bership who are also BMO members,

all former American Export Line

Deck Officers accepted into member-

ship will be afforded equal Class

"A" Group status by virtue of their

MMP membership who are also BMO mem-

bers, all former American Export

Line Deck Officers accepted into

membership will be afforded equal

Class "A" job rights on board the

former AEL vessels. Such Officers

being accepted into MM&P membership

will also receive a free MM&P book

giving them Class "C" shipping rights

on all other MM&P contract vessels.

With the addition of the former AEL

ships, the MM&P Offshore contract

69a

fleet numbers almost 400 ocean-going

vessels. You will have the right

to ship out on these ships from any

One of the 20 Port offices located

throughout the continental United

States, Puerto Rico, and Hawaii, in

accordance with our contract and

Shipping Rules.

You have been working under the

MM&P Offshore contract since March

Sth and Farrell Lines has been mak-

ing contributions on your behalf to

the MM&P's non-contributory Pension

Plan, the MM&P Health and Benefit

Plan, the MM&P Vacation Plan, the

MM&P M.A.T.E.S. Program and the

various other plans and committees

required by the contract since that

date. On signing foreign articles

for a voyage of 30 days or over,

you and your dependents will be

fully covered by our Health and Ben-

efit Plan which is widely acknowl-

edged to have one of the most exten-

Sive hospital, surgical and medical

Programs available anywhere in the

world. Under the contract, the

plaintiffs could keep their member-

ship in BMO renewable for six months

(see footnote 10, supra) if they re-

ceived written permission. Other-

wise they would have to resign or

lose their jobs.

12/Extensive evidence was introduced

at trial on the issue of differences be-

tween the two contracts with respect to

wages, benefits and working conditions,

including which provides greater secur-

ity to chief officers, second mates and

70a

and third mates. But contract damages

are not of consequence to the injunctive

relief issue here.

13/Farrell pediocin tad in open court

that it did not care which union it bar-

gained with, so long as there was only

one representative to be dealt with.

14/No party has consented the con-

clusion that licensed deck officers are

supervisory personnel under the relevant

sections of the Act. See, e.g. plain-

tiff's undated memorandum of law at 10,

footnote, citing Globe Seaways, Inc. v.

National Marine Eng. Ben. Ass'n, 451 F.2d

1159, 1160 n.1l (2d Cir. 1973). Fora

fuller discussion of the relevant sec-

tions of the Act in this regard, see the

text of this opinion, infra, and see

footnote 15 hereof.

15/The Labor Management Relations

(Taft-Hartley) Act § 101, 29 U.S.C.

§152(3) (1970), amended the Wagner Act's

definition of protected employees to

exclude "any individual employed as a

Supervisor." Section 101 of the Act, 29

U.S.C. § 152(11) (1970), further defined

a "supervisor" as “any individual having

authority, in the interest of the employ-

er, to hire, transfer, suspend, lay off,

recall, promote, discharge, assign, re-

ward, or discipline other employees, or

responsibly to direct them, or to adjust

their grievances, or effectively to re-

commend such action, if in connection

with the foregoing the exercise of such

authority is not of a merely routine or

clerical nature, but requires the use of

7la

independent judgment."

The full text of the definition of "em-

ployee" in 29 U.S.C. § 152(3) is as fol-

lows:

The term ‘employee' shall include

any employee, and shall not be lim-

ited to the employees of a particu-

lar employer, unless this subchap-

ter explicitly states otherwise,

and shall include any individual

whose work has ceased as a conse-

quence of, or in connection with,

any current labor dispute or be-

cause of any unfair labor practice,

and who has not obtained any other

regular and substantially equiva-

lent employment, but shall not in-

Clude any individual employec as an

agricultural laborer, or in the do-

mestic service of any family or

person at his home, or any indiv-

idual employed by his parent or

spouse, or any individual having

the status of an independent con-

tractor, or any individual employed

as a supervisor, or any individual

employec by an employer subject to

the Railway Labor Act, as amended

from time to time, or by any other

person who is not an employer as

herein defined.

(emphasis supplied). As indicated in

footnote 14 of this opinion, the plain-

tiffs in this action are supervisory

personnel. For background discussion

of the exclusion of supervisory person-

nel from the definition of "employees"

under the NLRA, see N.L.R.B. v. Bell

—

Aerospace Co., 416 U.S. 267, 275, 94

72a

S.Ct. 1757, 40 L.Ed.2d 134, et seq. (1973);

N.L.R.B. v. Yeshiva University, 582 F.2d

686, 695 (2d Cir. 1978), cert. granted,

440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d:

453 (1979); International Ladies Garment

Workers Union v. N.L.R.B., 339 F.2d 116,

121, et seg. (2d Cir. 1964). See also

Note, 13 Ga.L.Rev. 313 (Fall 1978), R.

Gorman, Basic Text on Labor Law, Union-

ization and Collective Bargaining (1976)

at 33, et seq. See also footnote 18 of

this opinion.

If the plaintiffs were not supervisory

employees, the action by Farrell could

have been found to amount to an unfair

labor practice. See Garment Workers v.

Labor Board, 366 U.S. 731, 81 S.Ct. 1603,

6 L.Ed.2d 762 (1961), wherein the Court

remarked:

In their selection of a bargaining

representative, § 9(a) of the Wag-

ner Act guarantees employees free-

dom of choice and majority rule.

J. I. Case Co. v. Labor Board, 321

U.S. 332, 339 [64 S.Ct. 576, 88

L.Ed. 762.] In short, as we said

in Brooks v. Labor Board, 348 U.S.

96, 103 [75 S.Ct. 176, 99 L.Ed.

125,] the Act placed "a nonconsent-

ing minority under the bargaining

responsibility of an agency select-

ed by a majority of the workers."

Here, however, the reverse has been

shown to be the case. Bernhard-

Altmann granted exclusive bargain-

ing status to an agency selected by

a minority of its employees, there-

by impressing that agent upon the

nonconsenting majority. There could

73a

be no clearer abridgement of § 7 of

the Act, assuring employees the

right "to bargain collectively

through represehtatives of their

own choosing" or "to refrain from"

such activity. It follows, without

need of further demonstration, that

the employer activity found present

here violated § 8(a) (1) of the Act

which prohibits employer interfer-

ence with, and restraint of, em-

ployee exercise of § 7 rights.

Id. at 737, 81 S.Ct. at 1607 (footnote

omitted). Under statutory provisions of

the labor laws authorizing exclusive bar

gaining status, the plaintiffs, if cover

ed, would have an opportunity to peti-

tion for decertification.

16/Section 185 of Title 29 of the

United States Code, providing for suits

for violations of contracts between an

employer and a labor organization repre-

senting employees in an industry affect-

ing commerce, is both jurisdictional and

substantive in its effect. See Textile

Workers v. Lincoln Mills, 353 U.S. 448,

449-50, 77 S.Ct. 923, I L.Ed.2d 972 (1957);

Leonardis v. Local 282, Pension Trust

Fund, 391 F.Supp. 554, 556 (S.D.N.Y.

1975).

17/See footnotes 14 and 15.

18/This court has jurisdiction over

the second claim even though supervisory

unions may not be entitled to sue as

labor organizations in other contexts.

See generally Hanna Mining Co. v. Dist.

74a

2 Marine Engineers Beneficial Associa-

tion, 382 U.S. 181, 189-90, 86 S.Ct.

327, 15 L.Ed.2d 254 (1965). The debate

over subject matter jurisdiction under

29 U.S.C. § 185 has focused on the mean-

ing of the term “employee” for the pur-

poses of its application with respect

to labor organizations "representing em-

ployees." The Court of Appeals for the

Second Circuit, in the cases cited in

the text accompanying this footnote has

adopted the position that the Taft-

Hartley amendment to the National] Labor

Relations Act adopting the exclusion was

meant only to apply to statutory ‘ 2m-

ployees" under those sections of the Act

dealing with unfair labor practices and

other matters within the primary juris-

diction of the National Labor Relations

Board. Following that view, this court

finds that the plaintiffs, regardless of

their supervisory status, are entitled

to assert their second claim under 29

U.S.C. § 185 as members of labor organ-

izations.

19/For an overview of the different

theories upon which courts have based

their conclusions that they have juris-

diction to enforce the duty of fair rep-

resentation, see R. Gorman, Basic Text

on Labor Law Unionization and Collective

Bargaining (1976) at Chapter 30, § 3.

20/The requirements for finding

jurisdiction under the cited statute are

set forth in PAAC v. Rizzo, 502 F.2d

306, 312 (3d Cir. 1974), cert. denied,

419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d

75a

804 (1975). See also Duke Power Co. v.

Carolina Environ. Study, 438 U.S. 59, 98

S.Ct. 2620, 57 L.Ed.2d 595 (1978); T. T. Be

Harms Co. v. Eliscu, 339 F.2d 823, 827°

(2d Cir. 1964), cert. denied, 381 U.S.

915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965);

Rosenthal & Rosenthal, Inc. v. Aetna

Casualty & Surety Co., 259 F.Supp. 624,

627 (S.D.N.Y. 1966). With respect to

jurisdictional amount question, see Com-

mittee for GI Rights v. Callaway, 171

U.S.App.D.C. 73, 80 n.19, 518 F.2d 466,

473 n.19 (D.C.Cir. 1975); Hartigh v.

Latin, 158 U.S.App.D.C. 289, 293, 485

F.2d 1068, 1072 (D.C.Cir. 1973), cert.

denied sub nom. Dist. of Columbia v.

Marsh, 415 U.S. 948, 94 S.Ct. 1470, 39

L.Ed.2d 564 (1974); S.Rep.No. 1830, 85th

Cong., 2d Sess. 3 (1958).

21/In Buckley, supra, the Court of

Appeals for the Second Circuit "conclude [d],

without having to decide the issue of

whether AFTRA's dues requirement is 'gov-

ernment action', that the district court

had jurisdiction to adjudicate the appel-

lees' claims that AFTRA's dues require-

ment impinges upon appellees' first amend

ment rights." 496 F.2d at 310.

22/In Holodnak v. Avco Corp., 381 F.

Supp. 191 (D.Conn. 1974), modifies. 514

F.2d 285 (2d Cir.), cert. denied, 423

U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123

(1975), the Honorable J. Edward Lumbard,

Sitting by designation, asserted that he

did not decide whether the rationale of

Bivens v. Six Unknown Named Agents, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

76a

(1971), extends to actions charging vio-

lations of the First Amendment, 381 F.

Supp. at 204, n.12. On appeal, the

Court of Appeals for the Second Circuit

indicated its belief that, notwithstand-

ing his disclaimers, Judge Lumbard did

decide in the affirmative that Bivens

applies to actions under the First Amend-

ment, 514 F.2d 285, 292 (2d Cir. 1975).

The Second Circuit itself, however,

found it unnecessary to decide the ques-

tion, and has still not expressed a view

on the issue. Other Circuit Courts have,

however, held that there is a private

cause of action for damages directly un-

der the Constitution for violation of

First Amendment Rights. See e.g.,

Dellums v. Powell, 184 U.S.App.D.C. 275,

302, 566 F.2d 167, 194 (D.C.Cir. 1977),

cert. denied, 438 U.S. 916, 98 S.Ct. 3146,

57 L.Ed.2d 1161 (1978); Yiamouyiannis v.

Chemical Abstracts Service, 521 F.2d

1392, 1393 (6th Cir. 1975), cert. denied

439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d

654 (1979); Paton v. La Prade, 524 F.2d

862, 869-70 (3d Cir. 1975); Writers

Guild of America, West, Inc. v. F.C.C.,

423 F.Supp. 1064, 1088-89 (C.D.Calif.

1976). Because of the declaratory nature

of the relief awarded here, this court

need not decide whether a private party

may recover monetary damages for a vio-

lation of his First Amendment Rights.

23/In_ Duke Power Co. v. Carolina

Environ Study, supra, the Supreme Court

summed up the requirements for a finding

of constitutional standing. See also

St. Martins Press, Inc. v. Carey, 605 F.

77a

2d 41 (2d Cir. 1979). As indicated in

the text accompanying this footnote the

court has found that these requirements

have been met in the instant case.

24/Plaintiffs are in the position to

challenge the constitutionality of mari-

time industry practice in tais case be-

cause Farrell assumed the employer's ob-

ligations under the AEL-BMO contract

following Farrell's purchase of the 21

AEL ships. Normally, under pre-hire con-

tracts there would be a majority union

representative because no deck officer

would be hired until he at least became

an applicant for membership in the union.

The circumstances of this case are pecu-

liar because Farrell entered into a con-

tract with the BMO even though it could

have released the BMO deck officers on

the ground that bankruptcy terminated the

AEL~-BMO contract. Had Farrell done so,

it would have been within its rights

under International Organization of Masters,

Mates and Pilots, AFL-CIO v. National

Labor Relations Board, ("Cove Tankers

Corporation"), 188 U.S.App.D.c. BS ¢> Bae

975 F.2d 896, 902 (D.C.Cir.1978) and In-

ternationl Organization of Masters, Mates

and Pilots, AFL-ClO v. National Labor Re-

lations Board, ("Westchester Marine Ship-

Ping Co."), 539 F.2d 554 (5th Cir. 1976),

cert. denied 434 U.S. 828, 98 S.ct. 106,

54 L.Ed.2d 86 (1977) which impliedly upheld

the practice and effect of replacing mem-

bers of one union with members of another

union upon the transfer of ownership of

the ships. See generally National Labor

Relations Board v. National Maritime Union

of America, AFL-CIO, 486 F.2d 907, 913-914

(2d Cir. 1973) cert. denied, 416 U.S. 970

78a

94 S.Ct. 1993, 40 L.Ed.2d 559 (1974);

Moore McCormack Lines, Inc., 139 NLRB

796, 798-99 (1962). However, by recogniz-

ing BMO, ostensibly for the purpose of

preserving labor peace, Farrell precipi-

tated the Article XX proceeding which re-

sulted in the arbitration award challenged

in this action.

25/The conclusion that this court

has subject matter jurisdiction over

plaintiffs' second and third claims is un-

affected by the procedural posture of the

action as a challenge to an Article xx

arbitration award. See Kallen v. District

1199, National Union of Hospital and

Health Care Employees, RWDSU, AFL-CIO,

574 F.2d 723, Ess (2d Cir. 1978).

26/It is unclear whether fraud,

deceitful action, or dishonest conduct on

a part of defendant union is necessary

to make out a claim of breach of the duty

of fair representation. “See Ryan v. New

York Newspaper Printing, Inc., 590 F.2d 451,

455 and 456 (2d Cir. 1979), in conjunc-

tion with Jones v. Trans World Airlines,

Inc., 495 F.2d 790, 798 (2d Cir. 1974).

This court need not resolve that issue

here because even absent fraud, deceitful

conduct action or dishonest conduct, BMO

did not act arbitrarily or otherwise in

bad faith.

27/The court expresses no opinion con-

cerning whether the conduct of BMO may

have amounted to negligence because, as

indicated in the text accompanying this

note, negligent conduct alone would not

suffice to support a claim of breach of

the duty of fair representation.

79a

28/Parallel Congressional authori-

zation for union security agreements,

such as pre-hire agreements, covering

rank and file "employees" as defined by

the National Labor Relations Act is found

in 29 U.S.C. § 158(a) (3). Also, 29 U.S.

C. § 159(a), the exclusive representation

section of the NLRA, provides for union

security in collective bargaining. In

pertinent part, 29 U.S.C. § 159(a) pro-

vides:

"Representatives designated or

selected for the purposes of

collective bargaining by the majority

of the employees in a unit appro-

priate for such purposes, shall

be the exclusive representatives

of all the employees in such unit

for the purposes of collective bar-

gaining in respect to rates of pay,

wages, hours of employment, or

other conditions of employment."

(emphasis supplied)

The provision authorizing pre-hire con-

tracts in the construction industry is

29 U.S.C. § 158(£).

29/ See generally McCoy, Current State Action

Theories, the Jackson Nexus Requirement,

and Employee Discharges by Semi-Public and

State-Aided Institutions, 31 Vand.L.Rev.

785, 788 n.19 (May 1978).

30/The Farrell Operating Differential

Subsidy ("ODS") Voucher for payment of

subsidy in 1978 reveals that under

Farrell's ODS contract with the United

States, Farrell received $24,-421,122.09,

the vast majority representing government

payments for wages and crew fringe bene-

fits. The American Export Line ODS

80a

Voucher for 1978, shows that, pursuant

to the AEL operating differential sub-

sidy contract with the United States,

close to $32.5 millions were received

in calendar year 1978. The cumulative

total is thus in excess of $56 million.

31/Every ship operated by Farrell

Lines at the time of trial was built with

the United States paying approximately 50%

of the purchase price. With respect to

the original Farrell Lines ships alone,

the sum of United States assistance equals

$133,148,960.

32/Under Title XI of the Merchant

Marine Act of 1936, as amended (46 U.S.C.

§§ 1271-1281), the United States

guarantees the payment of bonds or notes

issued to defray that portion of the ships'

purchase price not paid pursuant to a con-

struction differential subsidy. Further-

more, the United States pledges its full

faith and credit for the payment of both

principal and interest under its guarantee

obligations. 46 U.S.C. § 1273.

33/Such routes must be "determined

by the Secretary of Commerce to be essen-

tial for the promotion, development, ex-

pansion and maintenance of the foreign

commerce of the United States ...." 46

U.S.C. § 112l(a). See also 46 U.S.C. §

1171. Farrell cannot operate any of its

ships on routes other than those listed

in its contract without the approval of

the Secretary of Commerce. Any alteration

in routes on which Farrell ships sail re-

quires the approval of the United States.

Changes in shipping schedules likewise re-

8la

quire government approval. The United

States also determines when the Operator

will replace vessels.

34/Pursuant to 46 U.S.C. §1131, the

Secretary of Commerce has established

minimum manning and wage scales, and work-

ing conditions for seamen employed on sub-

sidized vessels. 46 C.F.R. Part 255.

Manning requirements are included in the

Farrell operating differential subsidy

contract. In addition to the crew re-

quirements provided for under the Merchant

Marine Act of 1936, as amended, the

United States extensively regulates the

licensing, employment, wages and working

conditions of crews employed aboard Farrell

ships. The Coard Guard establishes the

officer complement required as a minimum

on each vessel, and licenses them for the

ranks of officers, 46 U.S.c. SS 221, 222,

223, 224, 226, 228. Before any ship may

sail for a foreign port it must file

Shipping articles, containing, inter

alia, the agreement of each member of the

crew to serve on the vessel and stating

the length of the voyage, the amount of

wages, and the regulations for conduct

On board. 46 U.S.C. § 564. The Coast

Guard supervises the execution of these

articles. 46 U.S.C. §565. In addition,

the Coast Guard must inspect the crew

quarters once each month, or whenever such

vessel enters an American port, to deter-

mine if they are clean and Sanitary and

properly equipped. 46 U.S.C. § 660a.

The working conditions are extensively

regulated. See, e. g., 46 U.S.C. §§

653, 654 and §§ 666-670, and 673.

82a

35/Although Marad may sometimes

disregard provisions in a collective

bargaining contract for the purposes of

computing a subsidy, it is not empowered

to overturn provisions of a contract

between a fleetowner and statutory em-

ployees which are fair, reasonable and

bargained for at arm's length. See

American Export Isbrandtsen Lines, Inc.

v. United States, 499 F.2d 552, 576-86,

204 Ct.Cl. 424 (1974) (delineating stan-

dard of review Marad must follow where

contracts are bargained for under 29

U.S.C. § 159(a)).

36/ For a background summary of the legisla-

tive purpose underlying passage of the

Merchant Marine Act of 1970, see Sen.Rep.

No. 91-1080, wherein the Senate Commerce

Committee said, inter alia , "The mer-

chant marine has been appropriately termed

our fourth arm of defense." See also

"Marad '77" Annual Report of the Maritime

Administration for Fiscal Year 1977, U.S.

Department of Commerce, 1978.

37/See Wahba v. New York University,

492 F.2d 96, 102 and 103 (2d Cir. 1974),

38/See footnote 36.

39/See footnotes 30 through 34.

40/See footnotes 33 and 44.

41/See footnotes 15 and text accom-

panying footnote 15.

42/See footnote 43.

83a

43/See Runyon v. McCrary, 427 U.S.

160, 175, 56 S.Ct. 2586, 49 L.Ed.2da 415

(1975); NAACP v. Alabama, 357 U.S. 449,

460, 78 S.Ct. 1163, 2 L.Ed.2da 1488 (1958);

Buckley v. Valeo, 424 U.S. 1, 15, 96,

S.Ct. 612, 46 L.Ed.2d 659 (1976); NAACP

v. Button, 371 U.S. 415, 83 S.ct. 328, 9

L.Ed.2d 405 (1963).

44/See Buckley v. Valeo, supra at

note 43 hereof, for the proposition that

the First Amendment freedoms of speech and

association are "closely allied." 424 U.S.

at 25, 96 S.Ct. 612.

45/See also footnote 43.

46/In Abood, supra, the Supreme Court

considered the permissible reach of a

Michigan labor statute which contained a

majority representation provision. 431

U.S. at 223-24, 97 S.ct. 1782.

47/See e.g. note 28, supra.

48/For a general discussion of the

various types of union security agree-

ments, see R. Gorman, Basic Text on Labor

Law Unionization and Collective Bargaining

(1976), Ch. 28.

49/The case law discussion of the

rights of individuals with respect to

political expression in the text accom-

panying this footnote presupposes that

the union is the proper representative to

assert a collective economic position and

then elaborates the dissenters’ rights.

See generally Comment, The Regulation of

Union Political Activity: Majority and

84a

Minority Rights and Remedies, 126 U.Pa.

L.Rev. 386 (1977).

50/S.Rep.No.105, 80th Cong., lst

Sess. (1947) at 5, quoted in Beasley v.

Food Fair of North Carolina, 416 U.S.

. wa Beeee 20eee L.Ed.2d 443

(1974).

51/See, e.g., 29 U.S.C. § 159(a),

as quoted in Footnote 28 hereof.

52/See N.L.R.B. v. Allis Chalmers

Mfg. Co., 388 U.S. 175, 180, 87 S.Ct.

2001, 18 L.Ed.2d 1123, rehearing denied,

389 U.S. 692, 86 B.Ct. 13, 19 LbeBa. 26 202

(1967); Labor Board v. Jones & Laughlin,

Sus UsBs By See 2! BeChe. GL5, OL Les be.

893 (1937).

53/In Gissel, supra, the Supreme

Court held inter alia, that a union could

establish a bargaining obligation by

means other than a National Labor Rela-

tions Board election. 395 U.S. at 596-97,

89 S.Ct. 1918.

54/As stated by the Supreme Court in

Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773,

90 L.Ed. 939 (1946): "where federally pro-

tected rights have been invaded, it has

been the rule from the beginning that

courts will be alert to adjust their

remedies so as to grant the necessary re-

lief. And it is also well settled that

where legal rights have been invaded, and

a federal statute provides for a general

right to sue for such invasion, federal

courts may use any available remedy to

make good the wrong done."

Id. at 684, 66 S.Ct. at 77 (footnotes

omitted).

85a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WILLIAM JENSEN, EDWIN KREMER, JOHN

GARDELLA, WILLIAM KUYL, DOMINICK

BISBANO, LINDSAY HOYT, FRANCIS S. 79 Civ. 137:

HAGGERTY, RICHARD TRIPPE, ANTHONY (RWS)

LORE, and GARY W. LUECK,

Plaintiffs,

vs.

FARRELL LINES, INC.; INTERNA-

TIONAL ORGANIZATION OF MASTERS,

MATES AND PILOTS, AFL-CIO; BROTHER-

HOOD OF MARINE OFFICERS, DISTRICT

1, MEBA, AFL-CIO; and AMERICAN

FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS,

Defendants,

JUDGMENT AND ORDER

This action came on for hearing

before the Court, Honorable Robert W.

Sweet, District Judge, presiding, ona

motion by plaintiffs for a preliminary

injunction, and the issues having been

duly tried, and the Court after said hear-

ing having ordered that the trial of the

86a

action on the merits be advanced and con-

solidated with the preliminary injunction

hearing pursuant to Rule 65(a) (2), Fed.R.

Civ.P., and the Court having rendered an

Opinion, dated July 13, 1979 containing

its findings of fact and conclusions of

law, it is hereby

ADJUDGED AND DECLARED that after the

election provided for herein ("the Elec-

tion") it shall be unlawful, as in viola-

tion of the First Amendment to the United

States Constitution, for the defendant

Farrell Lines, Inc. ("Farrell"), to recog-

nize any defendant herein or any other

labor organization as an exclusive bar-

gaining agent for deck officers regularly

employed by Farrell unless such organiza-

tion has been so elected or otherwise

chosen as the collective bargaining agent

by a majority of such deck officers

eligible to vote in the Election; and it

87a

is further

ADJUDGED AND DECLARED that after the

Election, it shall be unlawful, as in

violation of the First Amendment to the

United States Constitution, for the de-

fendant Farrell, the defendant Interna-

tional Organization of Master, Mates and

Pilots, AFL-CIO ("MMP"), and/or the

defendant Brotherhood of Marine Officers,

District 1, MEBA, AFL-CIO ("BMO"), to

condition employment with Farrell as a

deck officer, on membership in a labor

organization unless such organization has

been so elected or otherwise selected as

the collective bargaining agent by a

majority of such deck officers eligible

to vote in the Election; and it is further

ORDERED that the Election shall be

held by secret ballot, as hereinafter

provided, to determine whether any col-

lective bargaining agent represents the

88a

majority of the deck officers eligible to

vote at the time of the election upon sub-

mission to the Special Master, appointed

below, of membership cards, pledge cards,

or other "showing of interest" of the

type customarily recognized by the Na-

tional Labor Relations Board, from 30% of

the deck officers eligible to vote in the

Election; and it is further

ORDERED that the deck officers who

shall be eligible to vote in the Election

shall be the following:

(i) deck officers on the seniority

and/or select list of Farrell or

American Export Lines, Inc. ("AEL")

On February 28, 1979;

(ii) deck officers actually em-

ployed on a Farrell ship in Feb-

ruary 1979;

(iii) deck officers on paid vaca-

tion or paid sick leave from a

Farrell ship in February 1979 and

returned or scheduled by the afore-

said seniority and/or select lists

to return to Farrell employment at

the end of such vacation or sick

leave;

89a

(iv) port relief officers employed

by Farrell in the one-year period

commencing March 1, 1978, who were

SO employed for at ‘east 300 hours

in that period; and

(v) any other deck ufficers em-

ployed by Farrell whose employment

would have entitled them to vested

rights under either the MMP or BMO

pension benefit plan for the period

March, 1978 to February 28, 1979;

and it is further

ORDERED that MMP, BMO and any other

collective bargaining agent shall each

be afforded a full, fair and equal

Opportunity to participate in the Elec-

tion; and it is further

ORDERED that Eric Schmertz, Esq., is

hereby appointed as a Special Master here-

in, pursuant to Rule 393, Fed.R.Civ.P., to

report to the Court as expeditiously as

may be practicable, after such hearings,

proofs, submissions and/or arguments, if

any, as he shall deem necessary and pro-

per, as follows:

(i) the names of the deck officers

employed by Farrell eligible to

90a

vote as set forth above;

(ii) the receipt of a sufficient

"showing of interest" to warrant

the Election and the party or

parties submitting such showing;

(iii) the form of the ballot to

be used in the Election;

(iv) the time, manner and place

such ballots shall be (a) made

available to and cast by deck

officers eligible to vote in the

Election, (b) collected for tally-

ing purposes, and (c) tallied;

(v) the time and manner in which

any collective bargaining agent

was selected by a majority of the

valid ballots cast; and it is

further

ORDERED, that any party shall be

entitled to apply to this Court for other

and further relief in accordance with

the decision of the Court dated July 13,

1979; and it is further

ORDERED, that this Court shall re-

serve jurisdiction herein for all pur-

poses until the entry of a final judgment

herein.

9la

ROBERT W. SWEET

U.S.D.J.

Dated: New York, New York

September 14, 1979

JUDGMENT ENTERED:

September 18, 1979

RAYMOND F. BURGHARDT

Clerk

APPENDIX IT

Appendix II

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket Nos. 79-7716, 79-7717

May 12, 1980

WILLIAM JENSEN, EDWIN KREMER, JOHN

GARDELLA, WILLIAM KUYL, DOMINICK BIS-

BANO, LINDSAY HOYT, FRANCIS S.

HAGGERTY, RICHARD TRIPPE, ANTHONY

LORE and GARY W. LUECK,

Plaintiffs-Appellees,

-against-

FARRELL LINES, INC. and INTERNA-

TIONAL ORGANIZATION OF MASTERS,

MATES AND PILOTS, AFL-CIO,

Defendants-Appellants,

-and-

BROTHERHOOD OF MARINE OFFICERS, DIS-

TRICT 1, MEBA, AFL-CIO, and AMER-

ICAN FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS,

Defendants.

Before OAKES, VAN GRAAFEILAND and

NEWMAN,

Circuit Judges.

OAKES, Circuit Judge:

93a

This appeal, by an employer and a

union, is from a decision of the United

States District Court for the Southern

District of New York, Robert W. Sweet,

Judge, holding that, once an employer

agrees to bargain collectively with

Supervisors who have no statutory right

to organize, they have a freedom of

association First Amendment right toa

determination that the union representing

them is favored by a majority of its mem-

bers. Jensen v. Farrell Lines, Inc.,

477 F.Supp. 335 (S.D.N.Y. 1979). We are

not persuaded that there was state action

here, nor are we persuaded that, even if

there were, the Plaintiff-appellee super-

visors had any such First Amendment richt.

We therefore reverse.

FACTS

Plaintiff-appellee are ten licensed

deck officers and engineers who are

supervisory enployees in the maritime

Shipping indistry. They were all em-

ployed for a substantial period of time

aboard certain vessels formerly owned and

Operated by American Export Lines, Inc.

(AEL). They were also members of the

Brothe

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