The enactment of § 301 of the Labor Management Relations Act,
which provides for the enforcement of grievance and arbitration
provisions of collective bargaining agreements in industries
affecting commerce, did not abrogate, but merely added an optional
remedy to, the remedy of 46 U.S.C. § 596, which permits seamen to
sue for wages in federal court. Pp.
400 U. S.
352-358.
408 F.2d 1065 affirmed.
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, HARLAN, and BLACKMUN, JJ., joined. BLACK,
J., filed a concurring statement,
post, p.
400 U. S. 358.
HARLAN, J., filed a concurring opinion,
post, p.
400 U. S. 358.
WHITE, J., filed a dissenting opinion, in which BRENNAN, STEWART,
and MARSHALL, JJ., joined,
post, p.
400 U. S.
366.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a suit for seaman's wages accruing from services
rendered in foreign commerce. Federal jurisdiction was claimed
under 28 U.S.C. § 1333 which grants exclusive jurisdiction to the
district courts in any "admiralty or maritime" case. A collective
bargaining agreement contained provisions concerning wages payable
when seamen were dismissed or when their employment was terminated;
and it provided a grievance procedure and for arbitration of
disputed claims. Those procedures were not pursued by the seaman.
He sued in the federal court instead.
Page 400 U. S. 352
The District Court granted the employer's motion for summary
judgment, ruling that the principles we announced in a series of
decisions starting with
Textile Workers v. Lincoln Mills,
353 U. S. 448, and
extending to
Republic Steel Corp. v. Maddox, 379 U.
S. 650, governed this maritime case and that the federal
court had no jurisdiction to adjudicate the maritime claim but only
to enforce the grievance procedure or an arbitration award that
might be given. The Court of Appeals reversed by a divided vote,
408 F.2d 1065, and we granted certiorari, 398 U.S. 957.
The Labor Management Relations Act, 1947, 61 Stat. 136, provides
a federal remedy to enforce grievance and arbitration provisions of
collective bargaining agreements in an industry "affecting
commerce," § 301(a), 29 U.S.C. § 185(a); and it is clear that
"commerce" includes foreign commerce. 29 U.S.C. § 152(6). It is
also clear that this employee's basic wage and the overtime rate of
pay were fixed or determinable by the collective bargaining
agreement. And it is generally true, as stated in
Vaca v.
Sipes, 386 U. S. 171,
386 U. S. 184,
that, when the employee's claim
"is based upon breach of the collective bargaining agreement, he
is bound by terms of that agreement which govern the manner in
which contractual rights may be enforced."
The question here is not the continuing validity of
Lincoln
Mills and its progeny. The question is a distinctly different
one, and that is whether the earlier, express, and alternative
method of collecting seamen's wages contained in 46 U.S.C. § 596
has been displaced by § 301 of the Labor Management Relations Act
or whether so far as seamen and their wages are concerned § 301 is
only an optional method of resolving the controversy.
Page 400 U. S. 353
Title 46 U.S.C. § 596, which derives from the Act of July 20,
1790, § 6, 1 Stat. 133, provides in relevant part:
"The master or owner of any vessel making coasting voyages shall
pay to every seaman his wages within two days after the termination
of the agreement under which he was shipped, or at the time such
seaman is discharged, whichever first happens; and in case of
vessel making foreign voyages, or from a port on the Atlantic to a
port on the Pacific, or vice versa, within twenty-four hours after
the cargo has been discharged, or within four days after the seaman
has been discharged, whichever first happens; and in all cases the
seaman shall be entitled to be paid at the time of his discharge on
account of wages a sum equal to one-third part of the balance due
him. Every master or owner who refuses or neglects to make payment
in the manner hereinbefore mentioned without sufficient cause shall
pay to the seaman a sum equal to two days' pay for each and every
day during which payment is delayed beyond the respective periods,
which sum shall be recoverable as wages in an claim made before
the court. . . ."
(Italics added.)
Moreover, 46 U.S.C. § 597, which also derives from the 1790 Act,
provides:
"Every seaman on a vessel of the United States shall be entitled
to receive on demand from the master of the vessel to which he
belongs one-half part of the balance of his wages earned and
remaining unpaid at the time when such demand is made at every port
where such vessel, after the voyage has been commenced, shall load
or deliver cargo before the voyage is ended, and all stipulations
in the contract to the contrary shall be void:
Page 400 U. S. 354
Provided, Such a demand shall not be made before the
expiration of, nor oftener than once in five days nor more than
once in the same harbor on the same entry. . . ."
The statutory remedy speaks in terms of the amount of wages due
and owing and the penalties for nonpayment, and it specifies the
timetable within which the payments must be made. Section 596
speaks of a penalty for nonpayment recoverable "as wages in any
claim made before the court." This implies a right to make the
claim to the court and not a duty to make it before a grievance
committee or before an arbiter. Hence, § 596 does not wholly jibe
with § 301. We often must legislate interstitially [
Footnote 1] to iron out inconsistencies
within a statute or to fill gaps resulting from legislative
oversight or to resolve ambiguities resulting from a legislative
compromise. It is earnestly urged that the grievance procedure
established in the collective bargaining agreement can give effect
to these payments and penalty provisions and that the agreement is
therefore not in
Page 400 U. S. 355
derogation of the ancient statutory remedy which Congress has
provided.
Seamen from the start were wards of admiralty.
See Robertson
v. Baldwin, 165 U. S. 275,
165 U. S. 287.
In 1872, it was provided that the federal courts might appoint
shipping commissioners "to superintend the shipping and discharge
of seamen" in our merchant fleet. Cong.Globe, 42d Cong., 2d Sess.,
1836. [
Footnote 2]
Commissioners indeed served, 46 U.S.C. § 541 (1940 ed.), as an
administrative adjunct of the federal courts until July 16, 1946,
when § 104 of Reorganization Plan No. 3 of 1946 abolished them. 60
Stat. 1098. No other administrative agency was substituted. The
federal courts remained as the guardians of seamen, the agencies
chosen by Congress, to enforce their rights -- a guardian concept
which, so far as wage claims are concerned, is not much different
from what it was in the 18th century.
We reviewed the legislative history of § 301 in
Textile
Workers v. Lincoln Mills, 353 U.S. at
353 U. S.
451-456. The matter of foremost concern in Congress was
the enforceability of collective bargaining agreements. The essence
of § 301 was a new federal policy governed by federal law --
"that federal courts should enforce these agreements on behalf
of or against labor organizations and that industrial peace can be
best obtained only in that way."
Id. at
353 U. S. 455.
Enforcement by or against labor unions was the main burden of §
301, though standing by individual employees to secure declarations
of their legal rights under the collective agreement was
recognized.
Id. at
353 U. S. 456.
Since the emphasis was on suits by unions and against unions,
little attention was given to the assertion
Page 400 U. S. 356
of claims by individual employees and none whatsoever concerning
the impact of § 301 on the special protective procedures governing
the collection of wages of maritime workers. We can find no
suggestion in the legislative history of the Labor Management
Relations Act of 1947 that grievance procedures and arbitration
were to take the place of the old shipping commissioners or to
assume part or all of the roles served by the federal courts
protective of the rights of seamen since 1790.
It is earnestly urged that the literalness of the old statute
should give way to the progressive philosophy of the new
procedures.
It is said that arbitration would be most appropriate because "a
familiarity with the customs and practices of shipping would be
distinctly helpful in assessing the validity of the claims," and
the "underlying wage claims [are] based on factual disputes."
Resolving factual disputes is hardly uncommon in federal district
courts. And while an arbitrator in the area may have expertise, for
180 years federal courts have been protecting the rights of seamen
and are not without knowledge in the area.
It is also said that the informal, readily available grievance
and arbitration procedures might defeat any overreaching and delay
by the employer which § 596 was designed to reach. We do not hold
that § 596 is the exclusive remedy of the seaman. He may, if he
chooses, use the processes of grievance and arbitration. Yet,
unlike Congress, we are not in a position to say that his interests
usually will be best served through § 301, rather than through §
596.
The literal conflict between this ancient seaman's statute and
the relatively new grievance procedure is one which we think
Congress, rather than this Court, should resolve. We do not sit as
a legislative committee of revision. We know that this employee has
a justiciable
Page 400 U. S. 357
claim. We know it is the kind of claim that is grist for the
judicial mill. We know that, in § 596, Congress allowed it to be
recoverable when made to a court. We know that this District Court
has the case properly before it under the head of maritime
jurisdiction. We hesitate to route this claimant through the
relatively new administrative remedy of the collective agreement
and shut the courthouse door on him when Congress, since 1790, has
said that it is open to members of his class.
What we decide today has nothing whatsoever to do with grievance
claims of the maritime unions against employers or the claims of
employers against them, for neither is touched by § 596. We deal
only with the seaman's personal wage claims.
Maritime unions, of course, like other unions, gain "prestige"
by processing grievance claims.
Republic Steel Corp. v. Maddox,
supra, at
379 U. S. 653.
And employer interests are served "by limiting the choice of
remedies available to aggrieved employees."
Ibid. In
Maddox, there was no express exception governing
individual claims of employees from § 301 grievance procedures, and
we declined to carve one out under the circumstances there present.
The circumstances here are quite different because of the express
judicial remedy created by § 596. The reluctance in
Maddox
to redesign the statutory regime of § 301 makes us equally
reluctant to redesign the statutory regime of § 596.
The chronology of the two statutes -- § 596 and § 301 -- makes
clear that the judicial remedy was made explicit in § 596, and was
not clearly taken away by § 301. What Congress has plainly granted
we hesitate to deny. Since the history of § 301 is silent on the
abrogation of existing statutory remedies of seamen in the maritime
field, we construe it to provide only an optional remedy to them.
We would require much more to hold that
Page 400 U. S. 358
§ 301 reflects a philosophy of legal compulsion that overrides
the explicit judicial remedy provided by 46 U.S.C.§ 596.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and opinion of the
Court while still adhering to his dissent in
Republic Steel
Corp. v. Maddox, 379 U. S. 650.
[
Footnote 1]
"I recognize without hesitation that judges do and must
legislate, but they can do so only interstitially; they are
confined from molar to molecular motions."
Southern Pacific Co. v. Jensen, 244 U.
S. 205,
244 U. S. 221
(Holmes, J., dissenting).
Mr. Justice Cardozo, in speaking of the construction of laws to
achieve justice and harmony, said:
"All departments of the law have been touched and elevated by
this spirit. In some, however, the method of sociology works in
harmony with the method of philosophy or of evolution or of
tradition. Those, therefore, are the fields where logic and
coherence and consistency must still be sought as ends. In others,
it seems to displace the methods that compete with it. Those are
the fields where the virtues of consistency must yield within those
interstitial limits where judicial power moves."
Selected Writings 136 (Hall ed.1947).
[
Footnote 2]
And see Cong.Globe, 42d Cong., 2d Sess., 1838, 1863,
2172, 2206, 3437, 3572, 3911.
MR. JUSTICE HARLAN, concurring.
I join in the opinion and judgment of the Court, but deem it
advisable to add some thoughts of my own.
I
I do not think that the mere provision by federal statute of a
judicial forum for enforcement of the wage claims of a subclass of
workers forecloses application of the arbitration principles of
Textile Workers v. Lincoln Mills, 353 U.
S. 448 (1957), and
Republic Steel Corp. v.
Maddox, 379 U. S. 650
(1965); nor do I understand the Court's opinion today to so hold.
In
Smith v. Evening News Assn., 371 U.
S. 195 (1962), we held that a suit in the state courts
by an individual employee charging employer discrimination in
violation of the collective bargaining agreement was not foreclosed
by the availability of an unfair labor practice proceeding before
the National Labor Relations Board based on the same conduct. There
we explicitly noted the absence of a grievance arbitration
provision in the contract which had to be exhausted before recourse
could be had to the courts.
Id. at
371 U. S. 196
n. 1. Later, in
Republic Steel Corp. v. Maddox, supra, at
379 U. S. 652,
we cited this portion of
Smith as support for the broadly
stated proposition that,
"[a]s a general rule in cases to which federal law applies,
federal labor policy requires that individual employees wishing to
assert contract grievances must
Page 400 U. S. 359
attempt use of the contract grievance procedure agreed upon by
employer and union as the mode of redress."
(Emphasis omitted.)
Maddox held that an employee was
compelled to exhaust contractual grievance machinery as a prelude
to commencing a § 301 suit on the contract in the state court.
Finally, in
Carey v. Westinghouse Corp., 375 U.
S. 261 (1964), we held that a union could compel an
employer to arbitrate a contractual grievance arising out of events
which also might support proceedings before the NLRB for either an
unfair labor practice under § 8(a)(5) of the National Labor
Relations Act, as amended, or a petition clarifying the union's
representation certificate under § 9(c)(1).
See also Old Dutch
Farms v. Local 58, I.B.T., 243 F. Supp. 246 (EDNY 1965);
United States Steel Corp. v. Seafarers, 237 F.
Supp. 529 (ED Pa.1965).
See generally Vaca v. Sipes,
386 U. S. 171,
386 U. S.
183-184 (1967).
Smith, Carey, and
Maddox together evince the
fundamental role arbitration plays in implementing national labor
relations policy. They also evince the crucial role of the federal
judiciary in forging the proper relationships among available
arbitral, administrative, and judicial forums for vindicating
contractual and statutory rights of employers, unions, and
employees. In light of these cases, I cannot infer, from the mere
provision by Congress of a federal judicial forum for enforcement
of the wage claims of a subclass of workers' wages, that this Court
is foreclosed from requiring arbitration under the collective
bargaining contract.
But in forging this relationship among potentially competing
forums for the effectuation of contractual and statutory rights of
individuals and organizations, we have always proceeded with close
attention to the policies underpinning both the duty to arbitrate
and the provision by Congress of rights and remedies in alternative
forums. This Court has always recognized that the
Page 400 U. S. 360
choice of forums inevitably affects the scope of the substantive
right to be vindicated before the chosen forum. In particular,
where arbitration is concerned, the Court has been acutely
sensitive to these differences. Thus, in
Wilko v. Swan,
346 U. S. 427
(1953), the Court faced a conflict between congressional policy
favoring arbitration, as manifested in § 3 of the United States
Arbitration Act, 9 U.S.C. § 3, and congressional policy favoring
protection of securities purchasers from fraud, as manifested in §
12(2) of the Securities Act of 1933, 48 Stat. 84, 15 U.S.C. §
771(2). The Court carefully analyzed the impact which remission to
arbitration would have on the scope of the substantive federal
right involved in that case, and concluded that conflicting
congressional goals would best be served by construing the
nonwaiver provisions of the Securities Act [
Footnote 2/1] as applying to the choice of a judicial
forum, as well as the substance of the Act's protection.
See
Wilko v. Swan, supra, at
346 U. S.
431-439. Central to the process of reconciliation in
that case was the recognition that the effectiveness of any
pro-arbitration policy is dependent, in the first instance, on a
limited scope of judicial review of the arbitrator's
determination.
And in
Bernhardt v. Polyraphic Co., 350 U.
S. 198 (1956), in holding that state law controlled on
the question of reference to arbitration in a diversity suit
brought in a federal court, the Court offered the following
considerations on the impact which reference to arbitration has on
the scope of the substantive right:
"The nature of the tribunal where suits are tried is an
important part of the parcel of rights behind
Page 400 U. S. 361
a cause of action. The change from a court of law to an
arbitration panel may make a radical difference in ultimate result.
. . . Arbitrators do not have the benefit of judicial instruction
on the law; they need not give their reasons for their results; the
record of their proceedings is not as complete as it is in a court
trial; and judicial review of an award is more limited than
judicial review of a trial -- all as discussed in
Wilko v.
Swan. . . ."
350 U.S. at
350 U. S.
203.
Normally, the impact on the substantive right resulting from the
decision to remit the individual to the arbitral forum is
acceptable because the parties themselves have consented to that
forum.
Compare Atkinson v. Sinclair Refining Co.,
370 U. S. 238
(1962),
with Drake Bakeries v. Local 60, American Bakery
Workers, 370 U. S. 254
(1962). And, with respect to the individual employee seeking to
bypass the arbitral forum in a suit brought "simply on the
contract,"
see Maddox, supra, at
379 U. S. 657,
the fact that his substantive rights derive solely from the
contract, and that he owes those rights to the action& of his
union representative in the collective bargaining process, warrants
the extension of the boundaries of collective consent to his
individual remedial preferences. A suit simply on the contract to
enforce contractual grievances is the normal labor arbitration
situation, and
it cannot be said, in the normal situation, that contract
grievance procedures are inadequate to protect the interests of an
aggrieved employee until the employee has attempted to implement
the procedures and found them so.
Maddox, supra, at
379 U. S. 653.
In
Maddox, we laid out in full the strong policy concerns
which support exclusivity in the arbitral forum,
supra, at
379 U. S.
653-656, and then expressly noted the absence of
countervailing positive reasons where the suit was simply on the
contract.
Supra at
379 U. S. 657.
It is this state of
Page 400 U. S. 362
affairs that supports the presumption of comprehensiveness
underpinning this Court's § 301 labor arbitration doctrines.
Maddox, supra, at
379 U. S. 657.
II
Arguelles' suit, unlike Maddox's suit, is not "simply on the
contract"; he invokes the court's jurisdiction seeking, in addition
to the overtime wages allegedly due him under the collective
bargaining agreement, a statutory claim for refusal or neglect to
pay his wages according to the timetable prescribed in 46 U.S.C. §
596 "without sufficient cause." In this circumstance, the
presumption of comprehensiveness of the arbitral remedy is, in my
view, rebutted.
But, of course, the policies underpinning
Maddox are
still relevant to the process of forging relationships among
potentially competing forums in this case. Here, as in
Maddox, the union's status as exclusive bargaining
representative will most certainly be bolstered by requiring the
employee to vindicate both his contractual and statutory rights in
the arbitral forum.
Supra at
379 U. S. 653.
And, even more importantly, here as in
Maddox, the
availability of an alternative forum for vindicating both statutory
and contractual rights allegedly abridged in the same transaction
cuts significantly into the desirability of the arbitral forum from
the employer's negotiating viewpoint.
Maddox, supra, at
379 U. S.
656-657. But, in the present context, it is crucial to
recognize that these policy considerations underpinning arbitration
argue not merely for reference to the arbitrator as a matter of
prior exhaustion of internal organizational remedies, but also for
extremely limited judicial review of the arbitrator's decision.
Indeed, this Court's decisions in the
Steelworkers Trilogy
make very clear that the scope of judicial review of the
arbitrator's judgment where matters of contract
Page 400 U. S. 363
rights are concerned is limited to a threshold determination of
the arbitrability of the dispute.
United Steelworkers v.
American Mfg. Co., 363 U. S. 564
(1960);
United Steelworkers v. Warrior & Gulf Navigation
Co., 363 U. S. 574
(1960);
United Steelworkers v. Enterprise Wheel & Car
Corp., 363 U. S. 593
(1960). The extreme limitation of judicial review, and the
expansive reading of consent, are both important to the task of
effectuating national labor policy; both are legitimized, in my
view, by the derivation of the individual's substantive legal right
from the collective bargaining agreement.
Where, however, the § 301 dispute implicates federal statutory
rights, it is incumbent upon this Court to fashion the
relationships among forums according to an analysis of the policies
underpinning both § 301 and the federal statute the employee
invokes, rather than simply transposing
ipso facto the
Court's labor arbitration jurisprudence. Thus, in the analogous
situation where the disputed transaction implicates both
contractual rights and rights enforceable in NLRB proceedings, we
do not simply assume that, because the dispute involves a contract
grievance, and the contract contains a typically broad arbitration
provision, remission to arbitration on the presumption of consent
-- combined with virtually no judicial review -- follows
automatically. Rather, the Court takes account of the views of the
NLRB, as the agency charged with enforcement of the substantive
statutory right in question, on the difficult issue whether the
interests of national labor policy, as manifested both in § 301 and
the unfair labor practice provision, will best be served by
remission to arbitration.
See, e.g., Carey v. Westinghouse
Corp., 375 U.S. at
375 U. S.
271-272;
Smith v. Evening News Assn., 371 U.S.
at
371 U. S.
197-198.
Page 400 U. S. 364
III
Here Seaman Arguelles seeks to vindicate a federal statutory
right to prompt payment of wages due him. His original complaint
stated a cause of action under 46 U.S.C. § 596, which provides as
follows:
"The master or owner of any vessel making coasting voyages shall
pay to every seaman his wages within two days after the termination
of the agreement under which he was shipped, or at the time such
seaman is discharged, whichever first happens; and in case of
vessels making foreign voyages, or from a port on the Atlantic to a
port on the Pacific, or vice versa, within twenty-four hours after
the cargo has been discharged, or within four days after the seaman
has been discharged, whichever first happens; and in all cases the
seaman shall be entitled to be paid at the time of his discharge on
account of wages a sum equal to one-third part of the balance due
him. Every master or owner who refuses or neglects to make payment
in the manner hereinbefore mentioned without sufficient cause shall
pay to the seaman a sum equal to two days' pay for each and every
day during which payment is delayed beyond the respective periods,
which sum shall be recoverable as wages in any claim made before
the court. . . ."
These provisions of Title 46 derive from § 6 of the Act of July
20, 1790;
see 1 Stat. 133. Also derived from § 6 of the
original Act is 46 U.S.C. § 597, providing for part payment of
wages earned during interim stops in port for the discharge of
cargo. [
Footnote 2/2] Sections 596
and 597 go
Page 400 U. S. 365
beyond the mere provision of a federal judicial forum for
vindication of a worker's wage claims; they represent a
congressional policy to secure to the individual seaman the prompt
payment of his wages [
Footnote 2/3]
as part of a broader protective and remedial scheme intended for
the benefit of seamen.
See Isbrandtsen Co. v. Johnson,
343 U. S. 779,
343 U. S.
784-786 (1952). This legislation, though antedating the
emergence of modern collective bargaining institutions, must be
taken to represent a continuing congressional policy to protect
seamen as individual laborers.
In the instant case, remission to arbitration under the usual
assumption concerning the scope of judicial review would mean that
a denial of the grievance without any explanation on the
arbitrator's part would have to stand. Given the assumption
concerning scope of judicial review, the seaman's statutory right
to double wages in the event of failure, "without sufficient cause"
to pay promptly within the meaning of § 596 is, as a practical
matter, subject to the unreviewable discretion of the
arbitrator.
But the usual assumption concerning judicial review need not
necessarily obtain in situations of this sort, any more than the
usual assumptions concerning the boundaries of the individual's
consent to the actions of his bargaining representative in agreeing
to the broad arbitration provision need necessarily obtain. Two
possibilities suggest themselves: the arbitrator's award might be
reviewable to some unspecified extent, to ascertain whether the
rights under §§ 596 and 597 have been adequately protected, or the
claim may, in some fashion,
Page 400 U. S. 366
be split, either by declining jurisdiction at the outset over
the contract portion of the litigation, or by utilizing the various
devices of abstention.
Cf., e.g., United States Steel Corp. v.
Seafarers, 273 F. Supp. 529 (ED Pa.1965). As an abstract
proposition, both options have the undesirable consequence of
cutting substantially into the very exclusivity of the contractual
forum which we said in
Maddox is important to effectuation
of the national labor policy favoring arbitration.
See Maddox,
supra, at
379 U. S. 653.
And the difficulties of analyzing the respective boundaries of the
contractual right and the statutory right forbode ill for the
efficient resolution of disputes implicating both the contract
right and the federal statutory right. But the matter is not one to
be decided abstractly; it may well be that certain types of federal
statutory benefits will lend themselves to arbitration or splitting
without an unacceptable sacrifice in competing policy
interests.
However, this is not such a statute, because the very essence of
the legislative policy at stake here is ensuring promptness in the
payment of wages. I think it obvious that the least desirable of
all solutions would be to create a necessity for suits in both
forums. In this circumstance, I think conflicting congressional
policies are best reconciled by construing 46 U.S.C. § 596 and §
301 of the Labor Management Relations Act as securing to the seaman
an option to choose between arbitral and judicial forums where he
states a claim under both the contract and 46 U.S.C. § 596.
[
Footnote 2/1]
Section 14 of the Securities Act of 1933, 15 U.S.C. § 7n,
provides:
"Any condition, stipulation, or provision binding any person
acquiring any security to waive compliance with any provision of
this subchapter or of the rules and regulations of the Commission
shall be void."
[
Footnote 2/2]
Arguelles attempted to amend his complaint prior to the summary
judgment hearing to state a complaint under 46 U.S.C. § 597, as
well as § 596. The court refused the proffered amendment pending
its ruling on the summary judgment motion. Brief for Respondent 7
n. 4.
[
Footnote 2/3]
In
Collie v. Fergusson, 281 U. S.
52,
281 U. S. 55
(1930), in discussing what constitutes sufficient cause for delay
in payment under § 596, the Court noted that
"the evident purpose of the section [is] to secure prompt
payment of seamen's wages . . . and thus to protect them from the
harsh consequences of arbitrary and unscrupulous action of their
employers, to which, as a class, they are peculiarly exposed."
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 SS
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
Page 400 U. S. 367
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
harbor. Respondent concedes that congestion in the harbor was the
cause of the extended wait offshore. [
Footnote 3/1] During this time, Saigon port officials
refused to grant practique, or quarantine clearance, to crew
members. Nonetheless, respondent demanded discharge or shore leave,
both of which were refused. [
Footnote
3/2] 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.
[
Footnote 3/3] 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.
Page 400 U. S. 368
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. [
Footnote 3/4] 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; [
Footnote 3/5] (c) a statutory penalty of $254.95
under 46 U.S.C. § 596, [
Footnote
3/6] based on two days' pay for each day between
Page 400 U. S. 369
February 3 and February 22, when respondent was paid at
Galveston. Petitioner answered by alleging the failure of
respondent to exhaust the grievance and arbitration procedures of
the collective bargaining agreement. [
Footnote 3/7] Petitioner contends that (a) the master
did not
Page 400 U. S. 370
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
Page 400 U. S. 371
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 articles
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 claim 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
Page 400 U. S. 372
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 v. Warrior
& Gulf Navigation Co., 363 U. S. 574,
363 U. S. 582
(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 v. Lincoln Mills, 353 U.
S. 448 (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 (1965), that absent extraordinary circumstances
not
Page 400 U. S. 373
alleged here, contractual grievance procedures must be exhausted
before suit can be brought. [
Footnote
3/8]
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 hipping articles are closed or at a continental American port
where the Company maintains an operating office and the Union
maintains an
Page 400 U. S. 374
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 v. Warrior & Gulf Navigation Co.,
supra, at
363 U. S. 584-585."
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
(1953), the Court expressed "hope for [arbitration's] usefulness .
. . in controversies based on statutes. . . ."
Id. at
346 U. S. 432.
And courts of appeals both before and after passage of § 301 have
required that Fair Labor Standards Act employees' 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 v. Local
684, I.B.T., 243 F. Supp. 246 (EDNY 1965);
Page 400 U. S. 375
United States Steel Corp. v. Seafarers, 237 F.
Supp. 529 (ED Pa.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 underlying 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 [
Footnote 3/9] be
eliminated from
Page 400 U. S. 376
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
379 U. S.
656.
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 has existed unchanged since 1915.
Section 301, on the other hand, was enacted in 1947 as a
far-reaching 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, at
353 U. S. 455.
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
Page 400 U. S. 377
or jurisdictional dispute it is nevertheless not removed from
the arbitral process.
Smith v. Evening News Assn.,
371 U. S. 195
(1962);
Carey v. Westinghouse Corp., 375 U.
S. 261 (1964). [
Footnote
3/10] 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.L.R.B.
923, 925-926 (1962);
Carey v. Westinghouse Corp., supra,
at
375 U. S.
272.
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.
Page 400 U. S. 378
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.
[
Footnote 3/1]
Brief of Respondent in Opposition to Certiorari 1-2.
[
Footnote 3/2]
Id. at 2. Article III, § 2, of the bargaining agreement
provides overtime pay for restriction to ship except when shore
leave is prevented by order of foreign governments. In such cases,
the bargaining agreement requires the company to "produce a copy of
the government restriction order when the crew is paid off."
Respondent now seems to concede that the government's failure to
grant practique prevented shore leave, but alleges that
"the captain failed to conform to the procedures required to
show the crew that practique (clearance) was refused by the S.
Vietnam Government [Art. III, § 2 of Agreement . . .]."
Respondent seems to imply, though this is far from clear, that
the alleged failure of the captain to exhibit the order restores
respondent's right to overtime wages.
[
Footnote 3/3]
Petitioner asserts that "local currency restrictions" prevented
payment in American currency in South Vietnam, and that use of
vouchers was a "customary and accepted" means of payment in foreign
ports.
[
Footnote 3/4]
In addition to the three claims listed below, respondent also
sought recovery in the Federal District Court for the difference
between coach air fare and first-class air fare to which he was
entitled under the contract, $6.50 as his share of a limousine from
Houston airport to Galveston, and $8.50 excess baggage charge. The
air fare claim was settled directly with the airline, and
respondent apparently abandoned the other two claims during the
course of the proceedings.
[
Footnote 3/5]
See 400
U.S. 351fn3/2|>n. 2,
supra.
[
Footnote 3/6]
"The master or owner of any vessel making coasting voyages shall
pay to every seaman his wages within two days after the termination
of the agreement under which he was shipped, or at the time such
seaman is discharged, whichever first happens; and in case of
vessels making foreign voyages, or from a port on the Atlantic to a
port on the Pacific, or vice versa, within twenty-four hours after
the cargo has been discharged, or within four days after the seaman
has been discharged, whichever first happens; and in all cases the
seaman shall be entitled to be paid at the time of his discharge on
account of wages a sum equal to one-third part of the balance due
him. Every master or owner who refuses or neglects to make payment
in the manner hereinbefore mentioned without sufficient cause shall
pay to the seaman a sum equal to two days' pay for each and every
day during which payment is delayed beyond the respective periods,
which sum shall be recoverable as wages in any claim made before
the court; but this section shall not apply to masters or owners of
any vessel the seamen of which are entitled to share in the profits
of the cruise or voyage. This section shall not apply to fishing or
whaling vessels or yachts."
[
Footnote 3/7]
"
ARTICLE II"
"
GRIEVANCES"
"Section 1. Department Spokesmen. The Unlicensed Personnel of
each department employed on board vessels operated by the Company
shall have the right to designate a spokesman by and from that
department. Any employee who feels that he has been unjustly
treated or been subjected to an unfair consideration shall endeavor
to have said grievance adjusted by his respective designated
spokesman, in the following manner: "
"
First -- Presentation of the complaint to his
immediate superior."
"
Second -- Appeal to the head of the department in
which the employee involved shall be employed."
"
Third -- Appeal directly to the Master."
"Section 2. Grievance Machinery. If the complaint cannot be
settled to the mutual satisfaction of the employee and department
head or the Master, the decision of the Master shall be supreme at
sea and in foreign ports, and until the vessel arrives at the port
where shipping articles are closed. Such complaint shall be settled
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."
"
* * * *"
"
ARTICLE XII"
"
ARBITRATION"
"Section 1. Settlement of Disputes Prior to Arbitration. In case
a dispute arises over the interpretation of any of the provisions
of this agreement, whether the said dispute originates on board
ship or ashore, the Union agrees to take the matter up with the
Company and make every effort to adjust the said dispute. In the
event that no amicable and satisfactory adjustment can be made
between the Union and the Company and the question in dispute is
deemed to be sufficiently important to either party, the Union or
the Company may present the question disputed to the Disputes Board
for arbitration as provided herein."
"
* * * *"
"Section 3. Notwithstanding any of the foregoing, should a
dispute or grievance arise under this agreement which, in the
opinion of the President of the American Merchant Marine Institute
or his designee or the President of the National Maritime Union or
his designee, requires expeditious determination, such party may
waive the grievance and arbitration provisions referred to above
and request that the dispute or grievance be referred to
arbitration as follows: "
"(a) The dispute or grievance shall be asserted by notice in
writing to the other party and to Theodore W. Kheel, the arbitrator
under this agreement. Such notice shall contain a summary of the
dispute or grievance and the reasons for requesting a waiver of the
contract grievance procedure. Following the receipt of such request
the arbitrator or his designee shall, upon the basis of the
information submitted and any further information he may have
requested from either party, determine whether the matter should be
submitted to arbitration or referred back for processing under the
regular grievance machinery. In the latter case, the arbitrator
shall notify both parties of his decision and the grievance shall
be processed as provided in Sections 1 and 2 of this Article. If
the arbitrator or his designee should decide that the request to
waive the regular grievance machinery should be granted, he shall
so notify both parties and schedule the matter for prompt
arbitration."
"
* * * *"
[
Footnote 3/8]
The language of the Court in that decision is pertinent
here:
"Congress has expressly approved contract grievance procedures
as a preferred method for settling disputes and stabilizing the
'common law' of the plant. . . . Union interest in prosecuting
employee grievances is clear. Such activity complements the union's
status as exclusive bargaining representative by permitting it to
participate actively in the continuing administration of the
contract. In addition, conscientious handling of grievance claims
will enhance the union's prestige with employees. Employer
interests, for their part, are served by limiting the choice of
remedies available to aggrieved employees. And it cannot be said,
in the normal situation, that contract grievance procedures are
inadequate to protect the interests of an aggrieved employee until
the employee has attempted to implement the procedures and found
them so."
"A contrary rule which would permit an individual employee to
completely sidestep available grievance procedures in favor of a
lawsuit has little to commend it. In addition to cutting across the
interests already mentioned, it would deprive employer and union of
the ability to establish a uniform and exclusive method for orderly
settlement of employee grievances. If a grievance procedure cannot
be made exclusive, it loses much of its desirability as a method of
settlement. A rule creating such a situation 'would inevitably
exert a disruptive influence upon both the negotiation and
administration of collective agreements.'"
(Citations omitted.) 379 U.S. at
379 U. S.
653.
[
Footnote 3/9]
Though
Maddox involved a claim for severance, rather
than overtime pay, "[g]rievances depending on severance claims are
not critically unlike other type of grievances." 379 U.S. at
379 U. S.
656.
[
Footnote 3/10]
In
Carey v. Westinghouse Corp., supra, at
375 U. S. 272,
Smith v. Evening News, supra, was interpreted as approving
"resort to a tribunal other than the Board" even though the
tribunal in
Smith was a state court. There was no internal
grievance machinery established in the collective agreement in
Smith.