Petition for A Writ of Certiorari — New Orleans Steamship Ass'n v. General Longshore Workers, Local Union No. 1418

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NB = 46 | ‘

NEW ORLEANS STEAMSHIP ASSOCIATION,

Petitioner

Vv.

GENERAL LONGSHORE WORKERS, LL.A.

LOCAL UNION #1418, an Unincorporated

Association, and GENERAL LONGSHORE

WORKERS, I.L.A. LOCAL UNION #1419,

an Unincorporated Association, AFL-CIO,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MONROE & LEMANN

Andrew P. Carter

1424 Whitney Building

New Orleans, Louisiana 70130

COUNSEL FOR PETITIONER

June 30, 1973

OPINION BELOW

JURISDICTION

‘ QUESTIONS PRESENTED

STATEMENT OF THE CASE

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT

1.

CONCLUSION

APPENDIX

THE DECISION BELOW CONFLICTS WITH

APPLICABLE DECISIONS OF THIS COURT

EXPLICATING FEDERAL POLICY ON THE

ROLE OF VOLUNTARY ARBITRATION IN

LABOR-MANAGEMENT RELATIONS AND

RAISES SIGNIFICANT QUESTIONS REGARD-

ING THE PROPER ROLE OF A REVIEWING

COURT IN THE ARBITRAL PROCESS

THE COURT BELOW HAS AFFIRMED A DIS-

MISSAL ON GROUNDS OF “MOOTNESS”

WHICH DISMISSAL SO FAR DEPARTS FROM

THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS AS TO REQUIRE

EXERCISE OF THIS COURT’S SUPERVISORY

POWERS

11

16

18

BPOREE WR LEPBL ALS Sa» ERD EE RANE aE NAB IERIE I BO ALL oF Ms

TABLE OF CITATIONS

COURT CASES: Page

Boys Market, Inc. v. Retail Clerks Union, Local 770,

398 U.S. 285 (1970) 8, 10

Gianfala, et al v. Texas Company, 350 U.S. 879 (1955)_ 16

Minnesota Joint Board Clothing Workers v. United

Garment Mfg. Co., 338 F.2d 195 (8th Cir. 1964)... 10

New Orleans Steamship Association v. General Long-

shore Workers, I.L.A., Local Union +1418, et al,

306 F.Supp. 134 (E.D. La. 1969), rev’d 423 F.2d 38

(5th Cir. 1970) 6, 7, 13, 14

New Orleans Steamship Association v. General Long-

shore Workers, et al, 389 F.2d 36 (5th Cir. 1968)

cert. denied 393 U.S. 828 (1968) 5, 9,11

Owens-Illinois Glass Co, 43 Lab. Arb. 715 (1964) (H.

W. Dworkin) Lee ae

Piano Workers v. W. W. Kimball Co., 221 F.Supp. 461

(N.D. Ill. 1963) rev’d 333 F.2d 761 (7th Cir. 1964)

rev'd per curiam 379 U.S. 357 (1964) _....._.. 10, 12

United Steelworkers of America v. American Manufac-

turing Co., 363 U.S. 564 (1960) 7

United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960) 8, 12

United Steelworkers of America v. Warrior and Gulf

Navigation Co., 363 U.S. 574 (1960) 8

II

TABLE OF CITATIONS (Continued)

COURT CASES: Page

US. v. W. T. Grant Co., 345 U.S. 629 (1952)__.____._ 15

John S. Wiley & Sons, Inc. v. Livingston, 376 U.S. 543

(1964) 10, 12

STATUTES:

28 U.S.C. §1254 (1) 2

28 U.S.C. §1337 5

29 U.S.C. §185

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No.

NEW ORLEANS STEAMSHIP ASSOCIATION,

Petitioner

v.

GENERAL LONGSHORE WORKERS, I.L.A.

LOCAL UNION #1418, an Unincorporated

Association, and GENERAL LONGSHORE

WORKERS, I.L.A. LOCAL UNION #1419,

an Unincorporated Association, AFL-CIO,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, New Orleans Steamship Association, re-

spectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit entered in this proceeding on

April 4, 1973.

OPINION BELOW

The per curiam opinion of the Court of Appeals, not

yet reported, appears in the Appendix hereto. The order

of dismissal, with reasons, of the United States District

Court, Eastern District of Louisiana, in the form of a

Minute Entry dated October 18, 1972, appears in the

Appendix.

The Judgment of the United States District Court,

Eastern District of Louisiana, in Civil Action No. 69-2653

to which reference is made in the October 13, 1972 order

of dismissa], supra, also appears in the Appendix.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on April 4, 1973. This Petition for

Certiorari was filed within ninety days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the federal policy favoring settlement of

labor disputes by arbitration is furthered by a summary

refusal of a District Court to render a decision in a case

praying for judicial enforcement of an arbitration award.

2. Whether a finding of “mootness” based upon the

filing of subsequent litigation between the same parties

but upon different factual circumstances is not such a

deplorable departure from accepted and usual judicial

proceedings as to warrant exercise of this Court’s super-

visory powers.

STATEMENT.OF THE CASE

The New Orleans Steamship Association (hereinafter

“NOSA”) representing various employers engaged in ship-

ping in the Port of New Orleans, and the two I.L.A. local

unions representing the General Longshore Workers in

the Port, Local Unions #1418 and #1419 (hereinafter the

“Unions”) have engaged in collective bargaining for over

thirty-five years. The shipping industry is the largest in-

dustry in the City of New Orleans.

One of the contracts resulting from this bargaining re-

lationship had an effective date of October 1, 1964 and

an expiration date of September 30, 1968. This contract

contained a “no strike—no lockout” clause as well as a

comprehensive arbitration commitment by NOSA and the

Unions:

ARTICLE XVIII NO STRIKES, NO LOCKOUTS—

DISPUTES AND ARBITRATION

(a) NO STRIKES—NO LOCKOUTS

There shall be no strikes, work stoppages, nor

shall there be any lockouts.

(b) DISPUTES PROCEDURE AND ARBITRATION

The parties accept the principle that any dispute

involving the interpretation or application of the

terms of this agreement shall be resolved in an

orderly and expeditious manner. They commit

themselves to the procedure outlined below.

* * *

(c) Step 1. When a problem arises it shall be dis-

cussed immediately ....

Step 2. ... If the matter is not disposed of in

this Step 2... either party may take the dispute

to final and binding arbitration.

Step. 3. ... The decision of the arbitrator shall

be final and binding on both parties.

* *

*

SNE a RENAE OIE RN SE De ‘

(d) Either party to a dispute may by-pass the pro-

cedure leading up to arbitration and obtain arbi-

tration forthwith whenever a violation of section

(a) and/or (b) of this Article shall be alleged . . .

the arbitrator shall make findings of fact con-

cerning the alleged violation and shall prescribe

appropriate relief, including an order to desist

therefrom. .

Since the expiration of the 1964-68 Agreement, the

parties have negotiated and executed two collective bargain-

ing agreements: (1) covering the period October 1, 1968

through September 30, 1971 and (2) one that went into

effect on October 1, 1971 and will expire on September 30,

1974. All collective bargaining agreements between NOSA

and the Unions, subsequent in time to the 1964-1968

version, have incorporated, without alteration, the “no

strike—no lockout” clause found therein, as well as the

same commitment to arbitration of disputes.’

In the latter half of 1965, a series of short work

stoppages by members of the Unions occurred. NOSA pro-

cessed a grievance over these work stoppages to arbitra-

tion under the terms of the 1964-68 contract. The issue

as defined in the decision of Arbitrator Leonard Oppenheim

was:

Did the Unions engage in work stoppages in

violation of the current contract between the

Parties?

Arbitrator Oppenheim on December 13, 1965 found the

work stoppages or “quickie strikes” to be a violation of

the contract and ordered the Unions “. . . to cease and

desist from work stoppages ... .”

1 The arbitration clause has changed only by a variance in the identity

of the members of the arbitration panel.

$2 ¢ BCS TANTS.

5

The Unions did not so cease and desist and on March

16, 1966 NOSA sought a judicial sanction by filing suit

in the United States District Court for the Eastern Dis-

trict of Louisiana, praying for enforcement of the De-

cember 13, 1965 arbitration award. Jurisdiction was al-

leged to exist u..ver 29 U.S.C. §185 and 28 U.S.C. §1337.

The District Court, with H. W. Christenberry presiding,

dismissed the petition for lack of jurisdiction on February

28, 1967. This dismissal was reversed by the Court of

Appeals for the Fifth Circuit on January 26, 1968 find-

ing that the District Court had jurisdiction to enforce

the award of the arbitrator and remanding the case

“. . . for further proceedings not inconsistent herewith.”

New Orleans Steamship Association v. General Longshore

workers, et al, 389 F.2d 36 (5th Cir. 1968), cert. denied

393 U.S. 828 (1968).

A trial was held by the District Court in December of

1970 following remand from the Fifth Circuit. Briefs

were filed and there the matter rested for twenty-two

months. On October 13, 1972, the District Court filed a

Minute Entry sua sponte dismissing NOSA’s suit as “moot”

because a later, different suit between the parties had

been filed that allegedly involved the same issues as

found in the earlier action. The District Court in its

Minute Entry noted that the extraordinary lapse of time

following trial had been caused by “inadvertance” charge-

able to the Court.

NOSA, following the dismissal by the District Court on

October 13, 1972, filed a timely appeal with the Court of

Appeals for the Fifth Circuit. That Court refused to grant

NOSA the relief requested in a per curiam opinion dated

April 4, 1973. This petition for an extraordinary writ

has followed.

CLR PB LIN ILE OPS E LIBEL II SII PION TE

The later suit between the parties, to which the Dis-

trict Court had reference in its dismissal of the instant

case, is New Orleans Steamship Association v. General

Longshore Workers, 1.L.A., Local Union +1418, et al,

306 F.Supp. 134 (E.D. La. 1969), rev’d 423 F.2d 38 (5th

Cir. 1970). That dispute is commonly known as the “LASH

case,” involving as it did a refusal by the Unions in

October of 1969 to work on a vessel that utilized an in-

novative technique of handling and transporting cargo,

i.e., Lighter Aboard Ship, or “LASH”. This boycott was

appealed to arbitration by NOSA in November 1969. The

Unions protested that work on LASH vessels was not

covered by the collective bargaining agreement (1968-1971)

then in effect. This matter was coincidentally also heard

by Arbitrator Leonard Oppenheim and an award was

entered on November 5, 1969 directing that the Unions

“. . . cease and desist from refusing to work aboard or

in connection with the Motor Vessel Acadia Forest ... .”

As they had in the “quickie strikes” case in 1965-1966,

the Unions again refused to abide by the arbitrator’s

decision and accordingly NOSA was forced to seek a

judicial order enforcing the LASH dispute award from

the U. S. District Court. That Court, the Honorable James

A. Comiskey presiding, refused to enforce the arbitration

award finding that LASH work was not covered by the

collective bargaining agreement. See 306 F.Supp. 134 (E.D.

La. 1969) at 139. This decision was timely appealed and

on February 24, 1970, the Court of Appeals for the Fifth

Circuit reversed Judge Comiskey stating in part:

The question before the trial court, and now before

us, is whether the issues between the parties were

arbitrable or not.

* * *

3

:

The dispute between the

above, is whether the term ‘cargo’, as used in the

contract, could reasonably be found by an arbi-

trator to include the barges that were lying along

could be construed by an arbitrator as including

men whose duty it was to lift these barges aboard

the vessel. These questions are for the arbitrator,

not the court, to decide.

The judgment is REVERSED and the case is RE-

MANDED .. . 423 F.2d 38, 39, 41 (1970)

Accordingly, on July 8, 1970 a Judgment of Permanent

Injunction was signed by Judge James A. Comiskey en-

joining the Unions from disobeying the November 5, 1969

arbitration award or boycotting LASH vessels being

worked by employers party to the collective bargaining

agreement (Appendix).

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH AP-

PLICABLE DECISIONS OF THIS COURT EXPLI-

CATING FEDERAL POLICY ON THE ROLE OF

VOLUNTARY ARBITRATION IN LABOR-MAN-

AGEMENT RELATIONS AND RAISES SIGNIFI-

CANT QUESTIONS REGARDING THE PROPER

ROLE OF A REVIEWING COURT IN THE AR-

BITRAL PROCESS.

This Court committed the Federal judiciary to a national

labor policy promoting industrial peace through arbitra-

tion of grievances in a trio of landmark decisions issued

on June 20, 1960: United Steelworkers of America v.

2 fies ngpartetnidienn nig sage te

American Manufacturing Co., 363 U.S. 564 (1960) ; United

Steelworkers of America v. Warrior and Gulf Navigation

Co., 368 U.S. 574 (1960); and United Steelworkers of

America v, Enterprise Wheel & Car Corp., 368 U.S. 693

(1960). A decade later this court indicated clearly that it

had not wavered in its decision to endorse voluntary arbi-

tration in the decision styled Boys Market, Inc. v. Retail

Clerks Union, Local 770, 898 U.S. 285 (1970). The major

question presented in this case is whether the Court will

permit this commitment to be undermined by an apparent

practice of judicial inaction or whether it will once more

exercise its supervisory powers over the federal courts to

insure continued fidelity to that commitment.

The “Steelworkers Triology” defined the respective roles

of the private industrial arbitrator and the judiciary,

and in Enterprise, supra, the judicial standard to be used

in enforcing arbitration awards already rendered was

enunciated :

The refusal of courts to review the merits of an

arbitration award is the proper approach to arbi-

tration under collective bargaining agreements.

p. 596

The obligation and the responsibility of a reviewing court

to duly enforce arbitration awards was brought home

in this very case by the Court of Appeals for the Fifth

Circuit when they reversed the District Court’s initial

order of dismissal:

The question presented now is the power of the

District Court to enforce the award of an arbitra-

tor in a setting where the arbitrator, in the ex-

ercise of undisputed contractual jurisdiction, has

ordered an end to work stoppages. The union has

refused to abide by his order and asserts that the

court is without jurisdiction to remedy the breach.

Practically, this is the ultimate or last step in the

arbitration process. p. 371

In this case the parties agreed to the remedy of

a desist order by the arbitrator. Such an order

was entered and breached. The court in enforc-

ing such order or award, although injunctive in —

nature, would be doing no more than enforcing the

agreement of the parties. .

Norris-LaGuardia is limited to labor disputes and

we consider the instant controversy to be out-

side the scope of a labor dispute as such... .

We think the logic of the arbitration policy com--

pels this result; otherwise one of the parties to

a collective bargaining agreement containing arbi-

tration and no strike or work stoppage clauses has

a hollow right indeed. (Emphasis added) New

Orleans Steamship Association v. General Long-

shore Workers, 1.L.A. Local Union +1418, et al.,

389 F.2d 369 (5th Cir. 1968), cert. denied 393

U.S. 828 (1968)

Following the foregoing 1968 remand, the District Court

duly conducted a full trial on NOSA’s petition for en-

forcement. It then “inadvertently” misplaced the record

for almost two years and on October 13, 1972 the District

Court, true to its reluctance of some seven years’ standing

to deal with the issue on its merits, entered an order

of dismissal sua sponte claiming the controversy had been

mooted by subsequent litigation.

While the initial thrust of this Court’s decisions in de-

fining the role of the judiciary in litigation arising from

16

private arbitration was to restrict the role of a reviewing

court, as illustrated by the “Steelworkers Trilogy” supra,

the proper balance cannot be struck without also defining

the extent of judicial authority and responsibility. Boys

Market, supra, was a contribution to the balance in the

latter regard and serves as legal precedent for both the

issuance of an injunction below and as a reminder of the

obligation of the reviewing court to act:

. . . the effectiveness of such agreements would

be greatly reduced if injunctive relief were with-

held. Indeed, the very purpose of arbitration pro-

cedures is to provide a mechanism for the ex-

peditious settlement of industrial disputes with-

out resort to strikes, lockouts, or other self-help

measures. This basic purpose is obviously largely

undercut if there is no immediate, effective rem-

edy for those very tactics that arbitration is de-

signed to obviate. p. 249

In the present case the relationship between labor and

management has been on-going, with an uninterrupted

sequence of collective bargaining agreements to prove it.

The two agreements that have been negotiated by the

parties since the arbitration award in question have all

reaffirmed the parties’ commitment to voluntary arbitra-

tion—a commitment that the District Court should not

be permitted to render meaningless. This Court and others

have recognized the continued viability of an arbitration

clause after the expiration of the source collective bargain-

ing agreement. Eg., Piano Workers v. W. W. Kimball Co.,

221 F.Supp. 461, (N.D. Ill. 1963), rev’d 333 F.2d 761

(7th Cir. 1964) rev’d per curiam, 379 U.S. 357 (1964) ;

John S. Wiley & Sons, Inc. v. Livingston, 376 U.S. 543

(1964); Minnesota Joint Board Clothing Workers v. United

Garment Mfg. Co., 338 F.2d 195 (8th Cir. 1964); see

»

ae wee DA OPTED

1

also Owens-Illinois Glass Co., 48 Lab. Arb. 715 (1964) (H.

W. Dworkin). A fortiori, where the arbitration commitment

continues to exist without lapse, as here, the need to insure

compliance with the obligation to arbitrate and, where ap-

propriate, to provide judicial sanctions to enforce arbitra-

tion awards duly rendered is of undeniable importance.

In denying the parties a decision on the merits and in

effect refusing the prayer for judicial enforcement of an

arbitration award, the District Court has both violated the

direction and spirit of this Court’s developing precedent

and created a new, significant problem regarding the judi-

cial role in the industrial arbitral process. Review of that

court’s action is warranted and necessary.

2. THE COURT BELOW HAS AFFIRMED A DIS-

MISSAL ON GROUNDS OF “MOOTNESS” WHICH

DISMISSAL SO FAR DEPARTS FROM THE AC-

CEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS AS TO REQUIRE EXERCISE OF

THIS COURT’S SUPERVISORY POWERS.

The trial court herein, as eventually affirmed by the

Court of Appeals, did three things to avoid having to

make a decision on NOSA’s petition for enforcement of

the “quickie strikes” arbitration award: (1) it first dis-

missed the petition claiming it lacked jurisdiction—but

this decision was reversed by the Fifth Circuit in 389 F.2d

369 (1968), cert. denied 393 U.S. 828 (1968), (2) it

“through inadvertance” overlooked the record of the case

following a full trial on the merits in December 1970

for twenty-two months, and (3) it finally dismissed the

4 eens egnonmne

12

case for “mootness” allegedly rising from the filing of

another action between the parties.’

It is difficult to imagine how the filing of a subse-

quent petition seeking enforcement of a later, different

arbitration award in the “LASH case” could render the

instant case “moot.” Citation of the “LASH case” for

purposes of res judicata or collateral estoppel would have

been more orthodox and understandable. Yet “mootness”

is the sole reason given by the District Court in its order

of dismissal dated October 13, 1972 (Appendix), and that

“mootness” is allegedly based upon the 1969-70 “LASH

case.” Except for the fact that both the “LASH case”

and the instant case involved violations of a “no strike”

clause, the facts and relief sought in the two controversies

are not the same.

The arbitration in the instant case was over a series

of work stoppages in 1965, NOSA complaining of a grow-

ing tendency on the part of the Unions to engage in

“quickie strikes” aimed at obtaining satisfaction of Union

grievances, circumventing thereby the contractual griev-

ance procedure. The Union in defense raised minor pro-

cedural points (ie. staleness) and also denied that the

work stoppages were anything but random occurrences,

for which they had no responsibility.

The positions of the parties in the 1969 “LASH case”

arbitration differed radically from those in the “quickie

2 The trial court did not adopt arguments made by the Unions below

to the effect that expiration of the 1964-68 collective bargaining agree-

ment vitated any arbitration award arising thereunder. Such arguments

are not supported by decisional law, see Piano Workers v. W. W. Kimball

Co., 221 F.Supp. 461 (N.D. 111.1963) rev'd 333 F.2d 761 (7th Cir. 1964),

rev'd, per curiam 379 U.S. 357 (1964); John S. Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543 (1964); and United Steel v. Enterprise Wheel

& Car Corp., 363 U.S. 593 (1960).

_ 1B

strike” arbitration four years earlier. Issue in 1969 was

joined only on the question of arbitrability. Without much

risk of oversimplification, the Unions claimed there that

the arbitrator had no jurisdiction or authority to interpret

certain terms found in the collective bargaining Unions

to work on “LASH” vessels.

In the 1965 arbitration over the “quickie strikes” the

Unions did not raise,a question of substantive arbitrability

—such as they did in the “LASH case”. In like fashion in

the 1969 “LASH case” arbitration, the Unions did not

disavow responsibility for the action that was the subject

of complaint—such as they had in the arbitration on

“quickie strikes,”

The difference in issues described above was continued

and supplemented in the first District Court hearings upon

each of the two arbitrations. In the hearing on enforce-

ment of the arbitration award on “quickie strikes,” the

Court found that it was without jurisdiction under the

Norris-LaGuardia Act and denied the petition for an in-

junction, thus adding a new issue to the general denial

of responsibility pleaded by the Unions. In the first hear-

ing of the United States District Court on the “LASH

case” the Court heeded the Union’s argument on substan-

tive arbitrability and found that the arbitration award

had been issued on a subject beyond the jurisdiction of

the arbitrator. See 306 F.Supp. 134 (E.D. La. 1969).

The Fifth Circuit reversed both of the foregoing District

Court decisions.

The question of substantive arbitrability and the scope

of judicial review of an arbitrator’s decision, as found

2 tae ip a eT ee ae ian

nite SA ws) LP Re ee yey rg ee

oie

14

in the litigation under the “LASH case” has never been

raised in the instant case. Those questions and the answers

provided by the litigation reported in 806 F.Supp. 134

(E.D. La. 1964), rev’d 423 F.2d 38 (5th Cir. 1970) do not,

it is submitted, answer the unresolved questions left below

by the District Court’s order of dismissal, i.e., whether or

not the December 13, 1965 arbitration decision is enforce-

able by the Court under the rubric of Supreme Court de-

cisions in this area. The questions that remain, including

the fidelity of the arbitrator’s award to the contract and

the evidence, as well as the precedental value of a judicial

decision on the issue of “quickie strikes” under the sub-

sisting collective bargaining relationship existing in the

Port, are not answered by the 1969-70 litigation in the

“LASH dispute.”

Note that the Unions by disobeying the arbitration

award and forcing NOSA to seek judicial enforcement

have by their actions proven that there exist unresolved

questions—a continuing controversy—that is not settled

by the 1965 decision of Leonard Oppenheim or the de-

cisions in the “LASH case.” This continuing controversy,

or at least manifestation by “quickie strikes”, may have

been temporarily and partially abated by the fact that the

case was before one judicial tribunal or another for the

past seven years, but if the District Court’s current order

of dismissal is upheld no one can say with certainty when

the basic disagreement on the legality of “quickie strikes”

will again plague the Port of New Orleans, or be resolved.

The possibility of a resumption of illegal conduct was a

key in the refusal of this Court to find ‘“mootness” in

U.S. v. W. T. Grant Co., 345 U.S. 629 (1952).

Both sides agree to the abstract proposition that

15

voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and

determine the case, i.e., does not make the case

moot. ... A defendani is free to return to his

old ways. p. 632

The Court there also noted that “mootness” was not to be

lightly implied for:

. . . to say that the case has become moot means

that the defendant is entitled to dismissal as a

matter of right. p. 632

In addition to the unresolved controversy between the

parties herein consideration must be given to the public

interest in having the legality of certain practices (i.e.

“quickie strikes”) settled before a finding of “mootness”

will lie, see W. T. Grant, supra at 632. The ultimate public

interest in the resolution of this dispute is based in the

main in avoiding the disruption to commerce and attendant

expense that arise from work stoppages in the largest single

industry of a large metropolitan city.

In this regard the public interest is coincident with one

of the more obvious interests of the parties herein. The

cost to NOSA of abandoning seven years of litigation with-

out ever obtaining a henefit by judicial sanction of an

award in its favor will be inequitably piled on top of the

costs of beginning a whole new arbitration procedure when

the controversy flares anew. Should the Unions contest

a new arbitration award, further dilatory tactics in Federal

court could again prevent NOSA from ever benefiting

from its award.

For a court in these circumstances to avoid the basic

judicial responsibility of rendering a decision on the merits

we 6 eee cas

PATER PhO at eas iPOD a

16

not only keeps alive the continuing controversy between

the parties, but ironically it renders impotent the private

arbitral process, while at the same time denying to the

parties any relief in the public judicial system.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit; or

more appropriately, the writ should be granted on the face

of the papers and the lower court judgments reversed forth-

with, Gianfala, et al v. Texas Company, 350 U.S. 879 (1955).

Respectfully submitted,

MONROE & LEMANN

Andrew P. Carter

Eugene G. Taggart

David E. Walker

By

1424 Whitney Building

New Orleans, Louisiana 70130

June 30, 1973

A EO CN

a

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of June, 1973 three

copies of the Petition for Writ of Certiorari were mailed,

postage prepaid to Alvin J. Liska, Esq., 7952 Chef Menteur

Highway, New Orleans, Louisiana 70126 and Victor H.

Hess, Esq., 1411 Decatur Street, New Orleans, Louisiana.

- we

PILOTS FRO TONS RT IR NEA oN

he is

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-3697

Summary Calendar*

NEW ORLEANS STEAMSHIP ASSOCIATION,

Plaintiff-Appellant,

versus

GENERAL LONGSHORE WORKERS, LL.A. LOCAL

UNION +1418 and GENERAL LONGSHORE

WORKERS, L.L.A., LOCAL UNION +1419,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

(April 4, 1973)

Before THORNBERRY, GOLDBERG and RONEY,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

*Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens ney Com-

pany of New York. et al., 5 Cir., 1970, 431 F.2d 409, Part I

iSee N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.,

1970, 430 F.2d 966.

TD Tae et eA SE TS PE ae

ae

MINUTE ENTRY

OCTOBER 13, 1972

CHRISTENBERRY, J.

SECTION “A”

No. 16398

CIVIL ACTION

NEW ORLEANS STEAMSHIP ASSOCIATION

VS

GENERAL LONGSHORE WORKERS, LL.A.

LOCAL UNION #1418, an Unincorporated

Association, and GENERAL LONGSHORE

WORKERS, I.L.A. LOCAL UNION #1419, an

Unincorporated Association, AFL-CIO

In this matter the court granted a motion of defendant

General Longshore Workers I.L.A. Local Union +1418

and +1419 to dismiss plaintiff New Orleans Steamship As-

sociation’s motion for a mandatory injunction to enforce

an arbitrator’s award ordering the Unions and their

members to cease and desist from work stoppages in vio-

lation of their contract with the Association, which was

effective October 1, 1964 and remained in effect until

twelve o’clock midnight, September 30, 1968.

Plaintiff appealed and the United States Court of

Appeals for the Fifth Circuit reversed on January 26,

1968, and remanded for further proceedings.

PPE PR IE ERR IAB Mae AE oe

Thereafter there was a change in counsel for the plain-

tiff.

Without discussing motions filed in the interim it is

sufficient to say that the matter was ultimately set for

trial on December 17, 1970. Trial was had on that date

after which counsel were given time to file briefs.

The last brief was filed on January 18, 1971 and the

matter should have been under submission at that time.

However, this did not occur. Through inadvertence the

record went to the Clerk’s files instead of the submitted

drawer and was overlooked. The delay in disposing of the

matter is not chargeable to counsel. It was the court’s

responsibility.

The contract out of which the issues in this case arose

expired on September 30, 1968, but the parties continued to

operate under it until a new agreement effective February

25, 1969 and remaining in effect until midnight September

30, 1971 was entered into by the parties.

On November 6, 1969 New Orleans Steamship Associa-

tion brought suit, No. 69-2653 of the docket of this court,

against the Unions, defendants in this case, alleging vio-

lation of the 1969-71 contract and seeking an injunction

to enforce an arbitration award. The issues involved in

that case are the same ones involved in the instant case.

With the filing of that suit this suit became moot and

should have been dismissed at that time. Accordingly,

IT IS ORDERED that this suit be and it is dismissed.

H.W.C.

ce:

All counsel of record

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

| NEW ORLEANS STEAMSHIP ASSOCIATION,

. a Corporation

vs.

GENERAL LONGSHORE WORKERS, I.L.A. LOCAL

UNION NO. 1418, an Unincorporated Association, and

GENERAL LONGSHORE WORKERS, I.L.A. LOCAL

UNION NO. 1419, an Unincorporated Association,

AFL-CIO

CIVIL ACTION

NO. 69-2653

SECTION “G”

JUDGMENT OF PERMANENT INJUNCTION

This cause came on to be heard on the verified complaint

of plaintiff and the affidavits submitted in support of and

in opposition thereto, and the court having heard oral evi-

dence in open court, and considering the opinion and

mandate of the United States Court of Appeal for the Fifth

Circuit, it appearing to the court that the defendants are

committing acts, and are about to commit acts as set forth

in plaintiff’s complaint, and will continue to do so unless

restrained by order of this court, and that immediate and

irreparable injury, loss or damage will result to plaintiff

and the parties that it represents; and that plaintiff, as :

a representative of the waterfront employers in the Port of

New Orleans, including Central Gulf Steamship Corpora-

tion, time charterer of the M/V ACADIA FOREST, a

vessel engaged in foreign shipping commerce, and T. Smith

& Son, Inc., its contract stevedore, entered into a valid and

existing Deep Sea Agreement with defendant Unions ef-

fective February 25, 1969, under the terms of which no

work stoppages were permitted and any arbitration of a

dispute arising under said contract permitted the arbitrator

to issue a cease and desist order final and binding on all

parties; and that the arbitrator, Leonard Oppenheim, hav-

ing found that a work stoppage existed, by the arbitrator’s

award issued November 5, 1969 ordered defendants to

cease and desist violating the “no work stoppage” provisions

of the contract and to perform stevedoring work on the

M/V ACADIA FOREST under the terms of the Deep Sea

Agreement; and it further appearing that defendants have

failed to obey the award of said arbitrator made pursuant

to said contract, and are violating the terms of said con-

tract, and that their refusal so to perform stevedoring work

on said vessel has prevented Central Gulf Steamship Corp-

oration from carrying on its shipping business under the

provisions of the Deep Sea Agreement to its considerable

immediate and continuing economic detriment, therefore

IT IS ORDERED, ADJUDGED AND DECREED that

General Longshore Workers, I.L.A. Local Union No. 1418,

AFL-CIO and General Longshore Workers, I.L.A. Local

Union No. 1419, AFL-CIO, their officers, agents, repre-

sentatives, employees, attorneys, and all persons in active

concert and participation with them, be and they hereby

are permanently enjoined and restrained from in any

manner refusing to obey the award of Arbitrator Leonard

Oppenheim issued pursuant to the Deep Sea Agreement

between plaintiff and defendants, by refusing to perform on

behalf of any employer-party to the Deep Sea Agreement

stevedoring work in the M/V ACADIA FOREST or like

vessel in accordance with said Deep Sea Agreement, and

said persons are hereby affirmatively directed to perform

upon request on behalf of any employer-party to the Deep

Sea Agreement such stevedoring work in accordance with

said award and are permanently enjoined and restrained

from in any manner interfering with or stopping the

loading, unloading or sailing of said vessel M/V ACADIA

FOREST or like vessel, where the said vessel was or is to

be loaded or unloaded by an employer-party to the Deep

Sea Agreement.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that the said defendants, General Longshore

Workers, I.L.A. Local Union No. 1418, AFL-CIO and

General Longshore Workers, I.L.A. Local Union No. 1419,

AFL-CIO pay the costs of these proceedings to be taxed by

the clerk of this court, and that execution issue for the

same.

Issued at New Orleans, Louisiana, July 8th, 1970.

UNITED STATES DISTRICT JUDGE