U. S. Bulk Carriers, Inc. v. Arguelles
Opinion of the Court
delivered the opinion of the Court.
This is a suit for seaman’s wages accruing from services rendéred 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.
. The Labor Management Relations Act, 1947, 61 Stat. 136, provides a federal remedy to enforce grievance and arbitration provisions of collective-barg;: ining agreements in an industry “affecting commerce,” § 31 (a), 29 U. S. C. § 185 (a); and it is clear that “com ierce” includes foreign comlnerce. 29 U. S. C. § 152 "). It is also clear that this employee’s basic wage an 1 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, 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.
“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 hás 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 dr 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 ber fore 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 démand 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:*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
Seamen from the start were wards of admiralty. See Robertson v. Baldwin, 165 U. S. 275, 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.
We reviewed the legislative history of § 301 in Textile Workers v. Lincoln Mills, 353 U. S., at 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 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 456. Since the emphasis was on suits by unions and against unions, little attention was given to the assertion
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 tbe 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 grievánce 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
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 sea-, man’s personal wage claims.
Maritime unions, of course; like other unions, gain “prestige” by processing grievance claims. Republic Steel Corp. v. Maddox, supra, at 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
Affirmed.
“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, 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). •
And see Cong. Globe, 42d Cong., 2d Sess., 1838, 1863, 2172, 2206, 3437, 3572, 3911.
Concurring Opinion
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 196 n. 1. Later, in Republic Steel Corp. v. Maddox, supra, at 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
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
And in Bernhardt v. Polygraphic 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*361 a cause of action. The change from a court of daw 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 203.
Normally, the impact on the substantive right resulting from the decision to remit the individual to the arbi-tral 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 50, 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 657, the fact that his substantive rights\ derive solely from the contract, and that he owes those rights to the actions of his union representative in the collée-tive-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 653. In Maddox, we laid out in full the strong policy concerns which support exclusivity in the arbitral forum, supra, at 653-656, and then expressly noted the absence of countervailing positive reasons where the suit was simply on the contract. Supra, at 657. It is this state of
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 require ing the employee to vindicate both his contractual and statutory rights in the arbitral forum. Supra, at 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 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
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 271-272; Smith v. Evening News Assn., 371 U. S., at 197-198.
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.
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,
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.
Section 14 of the Securities Act of 1933, 15 U. S. C. § 77n, 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.”
Arguelles attempted to- amend his complaint prior to the.' summary judgment shearing 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.
In Collie v. Fergusson, 281 U. S. 52, 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.”
Dissenting Opinion
dissenting.
Respondent Arguelles is á 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
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.
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
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 entitléd 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
“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
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
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 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 584, I. B. T., 243 F. Supp. 246 (EDNY 1965);
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 th^t under such circumstances the employer, “to limit the modes of redress that could be used against him,” woüld simply insist in future bargaining that suits for overtime pay
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 farreaching measure designed to secure the enforcement of arbitration agreements in the federal coúrts in the belief that “industrial peace can be best obtained only m that way.” Textile Workers v. Lincoln Mills, supra, at 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
Moreover, prior tó 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.
Brief of Respondent in Opposition to Certiorari 1-2.
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 pratique prevented shore leave, but alleges that “the captain failed to conform to the procedures required to show the crew that pratique (clearance) was refused by the S. Vietnam Government [Art. Ill, § 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.
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.
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.
See n. 2, supra.
“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 á 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
“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 maimer:
“First — Presentation of the complaint to his immediate superior. “Second — Appeal to the head of the department in which the em-ployée 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 áre 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
“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.”
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 attémpted 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 grievánces. 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 653.
Though Maddox involved a claim for severance rather than overtime pay, “ [grievances depending on severance claims are not critically unlike other types of grievances.” 379 U. S., at 656.
In Carey v. Westinghouse Corp., supra, at 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.
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