483 F.2d 603: Mobil Oil Corporation et al., Plaintiffs-appellees, v. Oil, Chemical and Atomic Workers International Union,afl-cio, et al., Defendants-appellants

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United States Court of Appeals, Fifth Circuit. - 483 F.2d 603

Aug. 10, 1973.Rehearing En Banc Granted Dec. 3, 1973

Chris Dixie, Houston, Tex., for defendants-appellants.

James W. Hambright, John G. Tucker, Beaumont, Tex., Warren H. Greene, Jr., New York City, for plaintiffs-appellees.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

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This suit was brought by Mobil Oil Corporation Marine Transportation Department, Gulf-East Coast Operations [Employer] against the Oil, Chemical and Atomic Workers International Union AFL-CIO and Maritime Local No. 8-801 of that Union [Union] for a declaratory judgment under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. Sec. 185(a), (c) and 28 U. S.C. Sec. 2201. It concerns the validity of an agency shop clause contained in a collective bargaining agreement between Employer and Union, which clause is in apparent conflict with Texas right-to-work laws.1 The district court held that the Texas laws should take precedence, and rendered a declaratory judgment in favor of Employer, holding the agency shop clause void and unenforceable.

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Union appeals, presenting a number of issues which we summarize as follows:

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1) that this is an exceptional case where the N.L.R.B. should have primary jurisdiction and preempt judicial proceedings because the employees are seamen who work exclusively aboard deep sea tankers engaged in coastwise commerce and some foreign commerce. Alternatively, that in the exercise of sound discretion the court should have declined to render a declaratory judgment;

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2) that the district court erred in applying Texas right-to-work statutes to all its covered employees; and

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3) that there is no case or controversy and the dispute was not ripe for declaratory judgment.

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We hold that a controversy existed, that jurisdiction properly vested in the district court, and that there was no abuse by that court in declining to defer to N.L.R.B. jurisdiction. We further hold that the agency shop clause is valid and enforceable with respect to all employees covered by the collective bargaining agreement.

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Sections 7 and 8(a)(3) [29 U.S.C. Secs. 157, 158(a)(3)] of the Labor Management Relations Act specifically authorize a union shop, wherein employment is contingent on membership in a union.2 These sections have been interpreted to authorize an agency shop, which is a union security agreement conditioning employment, in lieu of actual union membership, on the payment of regular union dues and initiation fees. N.L.R.B. v. General Motors Corporation, 373 U.S. 734, 738-739, 83 S.Ct. 1453, 1457, 10 L. Ed.2d 670 (1963); Retail Clerks Inter. Ass'n v. Schermerhorn, 373 U.S. 746, 751-752, 83 S.Ct. 1461, 1464-1465, 10 L. Ed.2d 678 (1963).

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Vernon's Ann.Civ.St. Art. 5154g, Section 1:

"It is hereby declared to be the public policy of the State of Texas that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization and that in the exercise of such rights all persons shall be free from threats, force, intimidation or coercion."

Vernon's Ann.Civ.St. Art. 5207a, Section 2:

"No person shall be denied employment on account of membership or nonmembership in a labor union."

Vernon's Ann.Civ.St. Art. 5154a, Section 8a:

"It shall be unlawful for any labor union, any labor organizer, any officer, any agent or representative or any member of any labor union to collect, receive or demand, directly or indirectly, any fee, assessment, or sum of money whatsoever, as a work permit or as a condition for the privilege to work from any person not a member of the union; provided, however, this shall not prevent the collection of initiation fees as above stated."

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29 U.S.C. Sec. 157:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title."

29 U.S.C. Sec. 158:

"(a) It shall be an unfair labor practice for an employer-

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . . . ."

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29 U.S.C. Sec. 164:

"(b) Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial Law."

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The Texas Attorney General has so ruled in his Opinion No. WW-1018

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There are 60 employees residing in New York, 21 in New Jersey, 16 in Florida, 13 in Louisiana, 10 in Maine, 10 in Rhode Island, and 36 other employees in 16 other states or territories

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29 U.S.C. Sec. 185:

"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

"(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members."

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Employer contends that if Board action is to be accorded any weight, a recent decision by a Board Trial Examiner supports its contention that a state's right-to-work laws should apply to seafaring employees shipping through a port in that state, citing Seafarers Int. Union of No. America, Case No. 23-CB-1222 (N.L.R.B. March 30, 1972), an unfair labor practice case. Subsequent to the decision of the Trial Examiner (now Administrative Law Judge), the National Labor Relations Board, in reviewing that decision, expressly refused to pass on the Administrative Law Judge's findings and conclusions with respect to the application of the Texas right-to-work law. The Board said: "The Administrative Law Judge based his finding that Respondent violated Section 8(b)(1)(A) and (2) of the Act on the effect of Texas' right-to-work law on Charging Party James Moyles' obligation to pay dues. While we agree that Respondent violated . . . the Act, we do so only for the reasons enumerated herein." Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, et al., 202 N.L.R.B. No. 91

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Union points out in its brief, extracting information from vessel logs, that the vessels making typical trips touching the port of Beaumont, for example, the MOBIL ARROW, the MOBIL ECLIPSE, the MOBIL FUEL, and the MOBIL GAS, for a period of time in May and June 1972 were in the port of Beaumont only 5.5 per cent of the total time involved. Adding to this example the time of the MOBIL LUBE in May, June and part of July 1972, during which time the vessel did not touch Beaumont at all, our own rough calculation shows that time in the port of Beaumont was a mere 4 per cent of the total time involved

Many of the trips do not even touch a Texas port. For example, eight times a year a vessel makes a trip from the East Coast to Puerto Rico and return. The MOBIL LUBE, referred to above, was at the time of trial en route to Guam on a 6-month charter, and had not been in a Texas port for 50 days, yet the members of that crew were also covered by the labor agreement.

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See also Dailey v. Transitron Electronic Corp., 5 Cir., 1973, 475 F.2d 12; Teas v. Kimball, 5 Cir., 1958, 257 F.2d 817, 823