342 F.

2d 400

Joaquin FIGUEROA, Ramon Pabon, and Jose Reyes,

Plaintiffs-Appellees,
v.
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO,
Defendant-Appellant.
No. 181.
Docket 29071.

United States Court of Appeals Second Circuit.

Argued November 20, 1964.
Decided March 11, 1965.

Robert M. Zweiman, New York City, for plaintiffs-appellees.

Charles Sovel, New York City (Abraham E. Freedman and Stanley B.
Gruber, New York City, on the brief), for defendant-appellant.
Before LUMBARD, Chief Judge, and MEDINA and MARSHALL,
Circuit Judges.
MEDINA, Circuit Judge:

Appellant, the National Maritime Union of America, operates a hiring hall for
seamen open alike to members and non-members. The normal procedure entails
registration by a seaman at the hiring hall and his referral to a shipowner who,
under the terms of collective bargaining agreements negotiated with the Union,
has the final say on whether to accept or reject a particular applicant. For many
years the shipowners with whom the Union bargains have refused to employ
any seaman known to have been convicted under the narcotics laws. On the
ground that each of the three seamen-appellees admittedly had narcotics
convictions, the Union summarily refused to register them or refer them for
employment.

Appellees, who are members of the Union, claim that the Union's conduct
deprived them of their procedural rights secured by Section 101(a) (5) of the

Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 411(a)

(5), which provides:
3

"Safeguards against improper disciplinary action. No member of any labor

organization may be fined, suspended, expelled, or otherwise disciplined except
for nonpayment of dues by such organization or by any officer thereof unless
such member has been (A) served with written specific charges; (B) given a
reasonable time to prepare his defense; (C) afforded a full and fair hearing."

The trial judge held that the Union had violated this statute and directed the
Union to comply with its mandate. Though we agree with the trial judge that
the National Labor Relations Board does not have exclusive primary
jurisdiction over this dispute and the refusal to refer for employment may
constitute "discipline" within Section 101(a)(5), we hold that in the
circumstances of this case the Union is not required to grant appellees a
hearing.

I.
Facts
5

Many years ago each of the appellees was convicted of unlawfully possessing
narcotics, but they had been employed for some time as seamen and were
members of the appellant Union until March 6, 1958. On that date Government
Customs Agents became aware of these old convictions and arrested the three
seamen on board the SS "Independence," charging that they had left the
country without registering as violators of the narcotics laws. These charges
were not pressed, but the result was that the Union thereafter refused to register
these men at the hiring hall or to refer them to shipowners for employment as
seamen.

As stated previously, the policy of the shipowners bargaining with the National
Maritime Union had for some time been not to employ on their vessels any
persons known to have participated in any crime involving narcotics. In 1957
the collective bargaining agreement negotiated by the Union with the
shipowners provided in terms that the Union shall not be required to register a
seaman "whom it does not consider to be suitable for employment," and it was
agreed that "in passing upon the suitability of applicants for registration" the
Union shall give consideration to such matters as habitual drunkenness, illegal
possession of lethal weapons, immoral or indecent conduct, and "illegal
possession or use of narcotics." Admittedly, union and nonunion applicants for
employment received the same treatment.

After discovery of the narcotics convictions events moved swiftly. The Union
not only refused to register and refer the three seamen, but it also applied
automatic suspension of membership under Article 22, Section 3 of the Union
constitution, 1 although the convictions of two of the seamen were long prior to
the period of their membership in the Union, and the conviction of the third
preceded the adoption by the Union of this section of the constitution.

Charges of unfair labor practices under Sections 8(b)(1)(A) and 8(b)(2) of the
National Labor Relations Act were filed by the seamen with the Labor Board.
These charges were promptly dismissed by the Regional Director for lack of
merit, and on appeal the General Counsel sustained this ruling because he
concluded "there is insufficient evidence of violations to warrant further
proceedings." This brings us to June 25, 1958.

A suit in the New York State Supreme Court by the seamen against the Union
for damages and an injunction resulted, after trial, in a judgment directing the
Union to reinstate the seamen as members of the Union. The Court found,
however, that the refusal to register and refer was entirely legal and proper as it
was the Union's duty to pass upon the qualifications of seamen and it was not
"unreasonable and arbitrary for union officials to refuse to refer a man who has
been convicted of a crime involving narcotics." Pabon v. Curran, N.Y.Co.Sup.
Ct., 1959, 37 CCH Lab.Cas. Par. 65,492.

10

On October 7, 1959, following their restoration to membership, the seamen

again attempted to register, registration and reference for employment were
refused without charges or a hearing and the Permanent Appeals Board denied
an appeal. The seamen were again turned down by the General Counsel and
this action was commenced on September 7, 1960.

11

Trial without a jury was conducted by Judge Wyatt on January 29, 1964.
Deeming the equities of the case to rest with the seamen, the judge, on
February 14, 1964, directed the Union to comply with the procedural
requirements of Section 101(a)(5), described as "the limit of the relief which
this Court can grant." The Court also observed:

12

"There must be something seriously amiss when a man like Figueroa a

Union member since 1940 and apparently an employed merchant seaman
without any blot on his record for eighteen years is deprived of his job
because of a single narcotics conviction twenty-eight years ago and five years
before he became a member of the Union and began employment as a seaman."

13

This appeal by the Union followed.

II.
Preemption
14

The Union contends that the District Court had no jurisdiction to adjudicate this
controversy because it is within the exclusive competence of the National
Labor Relations Board. Relying on San Diego Bldg. Trades Council, Millmen's
Union, Local 2020 v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d
775, and Local 100, United Ass'n of Journeymen & Apprentices v. Borden,
1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, the Union asks us to hold
that as this case concerns "employment" rights rather than "membership" rights,
only the Labor Board can decide it. We reject this argument and hold that the
District Court properly asserted jurisdiction over this action.

15

In Garmon, the Supreme Court enunciated the principle that when an activity is
"arguably" a concerted activity protected under Section 7 of the National Labor
Relations Act or an unfair labor practice prohibited by Section 8, "the States as
well as the federal courts must defer to the exclusive competence of the
National Labor Relations Board if the danger of state interference with national
policy is to be averted." 359 U.S. at 245, 79 S.Ct. at 780. This principle was
applied in Borden, where the complaint, like the one in Garmon, was predicated
on a state-created cause of action.

16

It follows from the fact this suit is based on an alleged violation of federal law
that Garmon and Borden are not necessarily controlling. See also Smith v.
Evening News Ass'n, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Carey
v. Westinghouse Elec. Corp., 1964, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d
320. We must, however, examine the ground upon which it is contended that
the Labor Board has exclusive jurisdiction over this case to determine whether
the general policy emanating from Garmon ought nonetheless be applied.

17

According to Garmon, preemption may be appropriate where the conduct in

question is "arguably" either a protected concerted activity or a prohibited
unfair labor practice. Is it "arguable" that the Union in applying its agreed upon
standard of suitability for employment as seamen to union and non-union
applicants alike and without discrimination or favor was guilty of an unfair
labor practice under Sections 8(b)(1)(A) and 8(b) (2)? We think not. In fact it is
perfectly obvious that the Union has committed no unfair labor practice and the
General Counsel rejected complaints on two occasions. As union and non-union

applicants were treated alike the conduct of the Union could not reasonably
have been construed as coercing or restraining members of the Union in the
exercise of their Section 7 rights [NLRA, Section 8 (b)(1)(A)] or as causing an
employer to discriminate [NLRA, Section 8(b) (2)]. See also NLRB v. Miranda
Fuel Co., 2 Cir., 1963, 326 F.2d 172. The fact that in this case it is not
"arguable" that the Union committed an unfair labor practice serves further to
distinguish Garmon and Borden, for in each of those cases the Supreme Court
did find it "arguable" that an unfair labor practice had been committed. See
Garmon, supra, 359 U.S. at 245, 79 S.Ct. 773; Borden, supra, 373 U.S. at 694695, 83 S.Ct. 1423.
18

Thus, as pointed out by Justice Harlan, in Borden it was "arguable" that the
Union had committed unfair labor practices because there was evidence from
which the Labor Board might well have concluded that Borden, by approaching
the prospective employer directly, had endeavored to circumvent a lawful
hiring-hall arrangement to the effect that the applicant must apply through the
Union, or the Labor Board might have concluded that the Union had
discriminated against Borden. The Board was to decide whether the Union was
to be absolved because its conduct was an activity protected by Section 7, or
whether the Union was to be found guilty of restraining or coercing Borden in
the exercise of his Section 7 right to engage in a protected activity.

19

On the other hand, a perfectly reasonable, perhaps compelling, argument can be

made in support of the proposition that the National Maritime Union was
engaging in an activity protected by Section 7. It may very well be that the
negotiation of a collective bargaining agreement by the terms of which
narcotics violators were to be kept off the ships protected the good name and
reputation of the Union and protected its members from association with those
who used or trafficked in narcotics.

20

We must, therefore, decide whether the Labor Board has exclusive primary
jurisdiction over causes of action based on denial of the procedural rights
guaranteed by Section 101(a)(5) because the ultimate substantive purpose of
the Union conduct might constitute a protected activity under Section 7 of the
NLRA. The Union argues that deference to the Board is peculiarly appropriate
in this case as it involves "employment" rights rather than "membership" rights.

21

That cases presenting "employment" problems may be adjudicated by the

federal courts for alleged violation of the requirements of LMRDA Section
101(a)(5) has already been held by this Court in Detroy v. American Guild of
Variety Artists, 2 Cir., 1961, 286 F.2d 75, cert. denied, 366 U.S. 929, 81 S.Ct.
1650, 6 L.Ed.2d 388. Detroy was the manager and trainer of a troupe of

chimpanzees. A resort hotel in Las Vegas, Nevada had a breach of contract

claim against him. AGVA, his union, requested arbitration, Detroy consented
but refused to abide by the arbitrators' adverse decision. AGVA thereupon
blacklisted Detroy, but without proffering charges and without a hearing. The
primary issue in the case was whether Detroy should be required first to
exhaust his union remedies before bringing suit in a federal court for violation
of the provisions of LMRDA Section 101(a) (5). Having disposed of this issue
in favor of Detroy, this Court then held that the violation of Detroy's procedural
rights, guaranteed by Section 101(a)(5), was clear and the District Court was
directed to issue a temporary injunction compelling the Union to remove
Detroy's name from the blacklist. See also Gross v. Kennedy, S.D.N.Y., 1960,
183 F.Supp. 750.
22

Here, as in Detroy, the suit is based not upon the right to employment free from
unlawful union interference, but upon the "membership" right to the procedural
safeguards laid down by Section 101(a)(5) as a condition to union discipline.
While the question of the Labor Board's jurisdiction was mentioned neither in
the briefs nor in the opinion for a unanimous court, the reasoning of Chief
Judge Lumbard, 286 F.2d at 81, seems applicable to this issue:

23

"If a union such as the AGVA undertakes to enforce the contracts made by its
members with employers, it does so because such enforcement is to the
ultimate benefit of all the members, in that it promotes stability within the
industry. A breach of contract or a refusal to abide by an arbitration award,
therefore, is not damaging merely to the employer but to the union as well, and
the union's listing of those of its members who do violate their contracts is an
act of self-protection. In thus furthering its own ends the union must abide by
the rules set down for it by Congress in 101(a) (5), and any member against
whom steps are taken by the union in the interest of promoting the welfare of
the group is entitled to these guarantees."

24

Thus the integration of two federal statutes regulating labor, the NLRA and the
LMRDA, is not difficult in this case. And it is to be observed that the Supreme
Court itself has stated: "Garmon, however, does not state a constitutional
principle; it merely rationalizes the problems of coexistence between federal
and state regulatory schemes in the field of labor relations * * *. The purpose of
Congress is the ultimate touchstone." Retail Clerks Int'l Ass'n Local 1625,
AFL-CIO v. Schermerhorn, 1963, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11
L.Ed.2d 179.

25

In our harmonizing process we cannot overlook the obvious. Congress must

have known when it enacted Section 101(a)(5) that union discipline might

frequently be imposed for purposes fully consistent with Section 7. Indeed, it is

to be hoped that every time union discipline is imposed it is only for a
legitimate union purpose. Still, Congress provided for jurisdiction in the federal
District Courts to guarantee that unions observe certain minimum procedural
safeguards. If we exclude from the operation of LMRDA Section 101(a)(5)
every case where it is "arguable" that a valid union purpose has been served by
the imposition of union discipline, we will undo what Congress has so
carefully, and properly, done. We therefore hold that it is no defense to an
action based upon a failure to observe the procedural requirements of LMRDA
Section 101(a)(5) for a Union to allege or prove that it has disciplined a
member for a legitimate union purpose and as part of a concerted activity
protected by NLRA Section 7.
26

But it may well be that a case will arise where there has been both an
"arguable" unfair labor practice, in violation of the NLRA, and also a failure to
comply with the procedural requirements of LMRDA Section 101(a)(5). There
is room for reasonable debate in such cases on the question of the preemptive
jurisdiction of the Labor Board. As the Labor Board might be held to be able to
afford a more complete remedy to a disciplined member than is possible in a
case involving only protected activities, it may very well be that the courts
should initially defer to the Labor Board. We leave this interesting problem for
another day.2

III.
Merits
27

We turn then to the merits of the case. Here again we eschew the attempt to
distinguish between "employment" rights and "membership" rights. We
reaffirm Detroy and hold that under certain circumstances union interference
with the employment opportunities of its members may constitute "discipline"
within Section 101(a)(5). See also Parks v. International Bhd. of Elec. Workers,
4 Cir., 1963, 314 F.2d 886, 922, cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10
L.Ed.2d 142.

28

But in this case, unlike Detroy where the union acted unilaterally in blacklisting
the plaintiff member, the refusal to register and refer was pursuant to the terms
of a collective bargaining agreement and in compliance with the declared policy
of the shipowners that they will hire no seaman known to have a narcotics
conviction. This was no more "discipline," once appellees admitted their
convictions and the applicability to them of the terms of the collective
bargaining agreement, than it would have been to turn down an applicant who

admitted that he lacked a physical requirement for the job or who admitted that
he fell outside the age limits specified by the employer.
29

Had appellees disputed the fact of their convictions, the determination by the
Union or its agent that they had been convicted would, of course, have
constituted "discipline" entitling the members to the procedural safeguards of
Section 101(a)(5). Having admitted their convictions and consequent
disqualification from employment under the collective bargaining agreement,
appellees' claim to a hearing must fail.

30

Whether or not the refusal by the Union to refer appellees constituted a breach
of the Union's duty of fair representation, see, e. g., Humphrey v. Moore, 1964,
375 U.S. 335, 84 S.Ct. 363, 11 L.Ed. 2d 370; Hiller v. Liquor Salesmen's Union
Local 2, 2 Cir., 1964, 338 F.2d 778 and cases there cited, a matter not presented
to us and which we do not decide, it is clear that, under the circumstances of
this case, the Union's conduct did not amount to "discipline." Nothing in
Section 101(a)(5) compels a union to grant a hearing concerning whether it
ought to negotiate with an employer regarding a change in hiring policies
expressed in a collective agreement. Such matters of collective bargaining
strategy are not to be confused with the union discipline at which Section
101(a)(5) is aimed. See Blumrosen, The Worker and Three Phases of
Unionism, 61 Mich.L.Rev. 1435, 1501-04 (1961); cf. Allen v. Armored Car
Chauffeurs Union, D.C.N. J., 1960, 185 F.Supp. 492, 494.

31

We therefore reverse the judgment below and direct that the complaint be
dismissed.

32

Reversed.

Notes:
1

Which provides in relevant part:

"Any member * * * found guilty by any court of law during such period of
membership of committing offenses involving the possession * * * of narcotics
* * * shall stand automatically suspended from the Union."

Even in cases where discipline imposed by the Union might have constituted an
unfair labor practice the Third and Fourth Circuits have assumed jurisdiction
over causes of action predicated on Section 101(a) (5). Rekant v. Shochtay-

Gasos Union, 3 Cir., 1963, 320 F.2d 271; Parks v. International Bhd. of Elec.
Workers, 4 Cir., 1963, 314 F.2d 886, 920-923, cert. denied, 372 U.S. 976, 83
S.Ct. 1111; see Burris v. International Bhd. of Teamsters, D.C.N.C., 1963, 224
F. Supp. 277; cf. Grand Lodge of Int'l Ass'n of Machinists v. King, 9 Cir., 1964,
335 F.2d 340, 346-347, cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d
334; Barunica v. United Hatters, 8 Cir., 1963, 321 F.2d 764