US Bulk Carriers, Inc. v. Arguelles/Dissent White

Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.

Respondent Arguelles is a seaman who signed onto the §§ 'U.S Pecos,' a merchant ship owned by petitioner, on August 3, 1965, for six months' employment at a stated monthly wage. The employment relationship was governed by the collective-bargaining agreement between petitioner and the National Maritime Union, AFL-CIO, of which respondent is a member.

On February 3, 1966, the day after respondent's shipping papers expired by their terms, the Pecos anchored off Cape St. Jacques, South Vietnam, awaiting authorization to proceed to Saigon habor. Respondent concedes that congestion in the harbor was the cause of the extended wait offshore. During this time, Saigon port officials refused to grant pratique, or quarantine clearance, to crew members. Nonetheless, respondent demanded discharge or shore leave, both of which were refused. On February 13, the Pecos was authorized to, and did, proceed to the harbor and tie up at a designated location. Unloading of cargo began February 16, and the following day respondent and other crew members were discharged and given a voucher for their wages at the American Consulate in Saigon. The voucher called for payment in American currency at petitioner's headquarters in Galveston, Texas. On February 18, respondent departed Saigon by air for Galveston, where he was paid in cash on February 22.

While in Galveston, respondent notified the union's local office that he was dissatisfied with the company's refusal to honor certain wage, penalty and miscellaneous claims. The respondent was advised to contact his union representative with details but instead of doing so, he brought this suit in the District Court under its admiralty and maritime jurisdiction. 28 U.S.C. § 1333. Respondent sought recovery on three claims which survive here: (a) overtime for work allegedly performed prior to February 3,1966; (b) overtime for wrongful restriction to the ship for 11 days between arrival at Cape St. Jacques on February 3 and tying up in the port of Saigon on February 13 despite requests for shore leave; (c) a statutory penalty of $254.95 under 46 U.S.C. § 596, based on two days' pay for each day between February 3 and February 22 when respondent was paid at Galveston. Petitioner answered by alleging the failure of respondent to exhaust the failure and arbitration procedures of the collective-bargaining agreement. Petitioner contends that (a) the master did not authorize any overtime work before February 3; (b) the restriction to ship between February 3 and February 13 was due to the failure of Saigon port officials to lift quarantine restrictions, and (c) because respondent was paid promptly by voucher at the American Consulate on the day of discharge, no penalty obtains.

The collective-bargaining agreement provides in relevant part that (a) no overtime work shall be performed without the authorization of the master (Art. IV, § 2); (b) with exceptions not relevant here, no overtime will be paid for restriction to ship when such restriction is due to the regulation of government authorities (Art. III, § 2), and (c) a ship shall not be deemed to have arrived in port while it is awaiting quarantine clearance (Art. III, § 1(c)).

The merits of respondent's nonstatutory claims depend entirely on interpretation and application of the bargaining agreement. Specifically, the threshold questions involved are (a) whether the respondent performed overtime work with the authorization of the master; (b) whether the crew was confined to ship because of the actions of government officials and if so whether respondent can base his claim on the alleged failure of the master to show the required documents to the crew, and (c) whether the ship had arrived 'in port' on February 3, so that respondent was entitled to discharge and payment, or, in the alternative, whether the fact that respondent's shipping articles expired by their terms on February 2 entitled him to discharge against petitioner's claim that where the cargo is still aboard in such cases the argicles are automatically extended. An additional question is whether respondent was 'paid' on February 17 or February 22, since the penalty accrues only until the date of payment.

Most importantly, for purposes of this case, it is clear that the question of whether respondent was entitled to the statutory penalty depends entirely on a resolution of these questions. If it develops that petitioner has paid respondent all wages due him in a timely manner, the statutory penalty claims also disappears.

These questions are particularly within the competence of the contractually established grievance procedure of the collective-bargaining agreement. They are all questions of fact or interpretation of various provisions of the agreement. There is not the slightest indication or contention that the grievance machinery would be unable to determine these questions, or that it would be inferior to a federal court in so doing. It is clear from the face of the claims that a familiarity with the customs and practices of shipping would be distinctly helpful in assessing the validity of the claims. This familiarity is, of course, one of the prime attributes of an arbitrator. As the Court said in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960):

'The labor arbitrator is usually chosen because of the     parties' confidence in his knowledge of the common law of the      shop and their trust in his personal judgment to bring to      bear considerations which are not expressed in the contract      as criteria for judgment. The parties expect that his     judgment of a particular grievance will reflect not only what      the contract says but, insofar as the collective bargaining      agreement permits, such factors as the effect upon      productivity of a particular result, its consequence to the      morale of the shop, his judgment whether tensions will be      heightened or diminished. For the parties' objective in using     the arbitration process is primarily to further their common      goal of uninterrupted production under the agreement, to make      the agreement serve their specialized needs. The ablest judge     cannot be expected to bring the same experience and      competence to bear upon the determination of a grievance,      because he cannot be similarly informed.'

In Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), it was held that federal courts have jurisdiction to specifically enforce the arbitration provisions of the collective-bargaining agreement. And it has been clear at least since Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that absent extraordinary circumstances not alleged here, contractual grievance procedures must be exhausted before suit can be brought.

The collective agreement reveals that the parties intended all disputes and grievances, not merely those based on the contract, to be resolved if possible through the contractual procedure. Article II provides a three-step on-board grievance procedure for '(a)ny employee who feels that he has been unjustly treated or been subjected to an unfair consideration.' If no satisfactory solution is reached on board, the parties are directed to proceed 'through the grievance machinery of this agreement at the port where shipping articles are closed or at a continental American port where the Company maintains an operating office and the Union maintains an agent.' Provisions are made for any party to a 'dispute or grievance' to seek expeditious determination from the arbitrator. Art. XII, § 3. The parties made no provision whatever for excepting statutory penalty claims from the grievance machinery. Prior decisions unmistakably limit the role of the courts to determining whether a dispute is arguably covered under the arbitration clause. 'In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.' United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 584-585, 80 S.Ct. at 1354.

Nor until now has there been any principle that requires contract rights to be resolved internally but directs statutorily created remedies to be presented to the court, at least where, as here, the availability of the statutory remedy rests on disputed issues that are cognizable under the arbitration clause. In fact, this Court and lower federal courts have endorsed the suitability of arbitration to resolve federally created rights. In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Court expressed 'hope for (arbitration's) usefulness * *  * in controversies based on statutes *  *  * .' Id., at 432, 74 S.Ct., at 185. And courts of appeals both before and after passage of § 301 have required that Fair Labor Standards Act employee's claims for liquidated damages under 29 U.S.C. § 216(b) for failure to pay overtime wages be referred to contractual grievance procedures before being presented to the court. Donahue v. Susquehanna Collieries Co., 138 F.2d 3 (CA3 1943); Evans v. Hudson Coal Co., 165 F.2d 970 (CA3 1948); Beckley v. Teyssier, 332 F.2d 495 (CA9 1964). Cf. Fallick v. Kehr, 369 F.2d 899 (CA2 1966); Old Dutch Farms, Inc. v. Milk Drivers and Dairy Emp. Local Union No. 584, Intern. Broth. of Teamsters, etc., 243 F.Supp. 246 (EDNY 1965); United States Steel Corp. v. Seafarers' Intern. Union of North America, etc., 237 F.Supp. 529 (EDPa.1965). That the question of penalties or liquidated damages should be referred in the first instance to applicable grievance procedures is especially proper where, as here, there are also underlyiing wage claims based on factual disputes, and whose resolution will determine whether, and to what extent, the penalty is due. Neither do I see any reason why the issue of the penalty would be unsuitable for arbitration even if the owner paid off all disputed underlying wage claims leaving only the question of the statutory penalty. On the contrary, if respondent's claims are not reached by his promise to arbitrate, or if the promise to arbitrate is unenforceable, a master or owner could pay off wages in full, but grossly late, secure in the knowledge that the obligation to pay the penalty would not be susceptible of the quick and informal arbitration process, but must await the attention of a federal district court which may be thousands of miles away. Overreaching and delay were precisely the evils that § 596 was designed to reach. Mavromatis v. United Greek Shipowners Corp., 179 F.2d 310 (CA1 1950).

The Court tries to avoid this problem by holding that grievance procedures are available to the seaman to pursue if he chooses. The effect of this is to hold contractual remedies enforceable by the employee but not by the employer. This is not only a curious application of § 301 and contract principles but an unwise departure from past cases. In Republic Steel Corp. v. Maddox, supra, the Court foresaw that under such circumstances the employer, 'to limit the modes of redress that could be used against him,' would simply insist in future bargaining that suits for overtime pay be eliminated from the grievance procedure. The Court was entirely correct in surmising that '(t)he union would hardly favor the elimination, for it is in the union's interest to afford comprehensive protection to those it represents, to participate in interpretations of the contract, and to have an arbitrator rather than a court decide such questions * *  * .' 379 U.S., at 656, 85 S.Ct., at 618, 13 L.Ed.2d 580.

Nothing in the words of the statute warrants dispensing with contractual procedures. Section 596 provides that the penalty 'shall be recoverable as wages in any claim made before the court.' (Emphasis added.) The statute on its face makes the penalty a wage claim; it would in no way be in derogation of the statute to require this claim to be presented like any other wage claim. Under the principles of Republic Steel Corp. v. Maddox, supra, this means that the internal remedies must first be exhausted.

Even assuming without conceding that § 596 provides a direct route to federal courts on penalty claims, § 301 should at least require that the contractual bases for the penalty claim be settled by contractual methods before penalty claims may be adjudicated by the courts. The penalty statute is a direct descendant of 1 Stat. 133, passed in 1790. Section 596 as existed unchanged since 1915. Section 301, on the other hand, wsa enacted in 1947 as a farreaching measure designed to secure the enforcement of arbitration agreements in the federal courts in the belief that 'industrial peace can be best obtained only in that way.' Textile Workers v. Lincoln Mills, supra, 353 U.S., at 455, 77 S.Ct., at 917. Section 301 did away with common-law rules against enforcing executory promises to arbitrate, and there should be no reluctance to accommodate § 596 and the policy of § 301 by withholding judicial relief until contractual remedies are exhausted.

It should also be recalled that even though a dispute also involves an unfair labor practice or a representation or jurisdictional dispute it is nevertheless not removed from the arbitral process. Smith v. Evening News Ass'n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). Both the National Labor Relations Board and this Court have shown a high regard for the informed opinion of the arbitrator in such cases. International Harvester Co., 138 N.R.L.B. 923, 925-926 (1962); Carey v. Westinghouse Electric Corp., supra, at 272, 84 S.Ct., at 409.

Moreover, prior to the passage of § 301, nonmaritime employees, like seamen, could go to court to resolve disputes over the meaning of the collective-bargaining agreement. Given the basis for federal jurisdiction, they could go to federal court. In this respect they were no different from seamen. When § 301 provided for the enforcement of arbitration agreements and, as interpreted in Maddox, for exhaustion of internal remedies, there is not the slightest indication that Congress intended that seamen should be treated any differently from their nonmaritime counterparts.

Finally, it is pertinent to recall the words of the District Court in the instant case in granting summary judgment to the petitioner:

'The policy established by the cases referred to, that     matters of this sort should be left to procedures set up      between the union and the employer, is, in the opinion of the      Court, a most important policy lest this Court be inundated      with small claims of the type which has been presented to the      Court today.' App. 55a.

In short, the Court today makes an unnecessary and ill-advised detour around the body of arbitration law developed by Congress and this Court. Its reasons for doing so, in my opinion, comport with neither the language of the statute nor considerations of sound labor and maritime policy.