7-18-2013 DECISION AND ORDER by Judge Berman (MWA Strike Injunction; Case: 13-Civ-4473 ) Doc. #34

7/28/2019 7-18-2013 DECISION AND ORDER by Judge Berman (MWA Strike Injunction; Case: 13-Civ-4473 ) Doc. #34

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Case 1:13-cv-04473-RMB Document 34 Filed 07/18/13 Page 1 of 10

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK------------------------------------------------------------)(MANUFACTURING WOODWORKERSASSOCIATION OF GREATER NEW YORK,INC.,

Plaintiff,-against-

NEW YORK DISTRICT COUNCIL OF :CARPENTERS a!k/a THE DISTRICT COUNCIL:OF NEW YORK CITY AND VICINITYUNITED BROTHERHOOD OF CARPENTERSAND JOINERS OF AMERICA,

Defendant.------------------------------------------------------------)(

USDCSDNYDOCUMENTELECTRONICALLY FILEDDOC#:______________DATE FILED: Jll \ t\ \'";

13 Civ. 4473 (RMB)DECISION AND ORDER

Having reviewed the record herein, including: (i) the Complaint, dated June 27, 2013,filed by the Manufacturing Woodworkers Association ofGreater New York, Inc. ("MW A" or"Plaintiff') against the District Council ofNew York City and Vicinity of the UnitedBrotherhood ofCarpenters and Joiners ofAmerica ("District Council" or "Union" or"Defendant"), applying "for a temporary restraining order and preliminary and permanentinjunctive relief in aid of arbitration requiring the Defendant, its attorneys, agents andrepresentatives to cease and desist from engaging in any job action or any other activity thatinterferes in the business activities of the Plaintiff' (see Compl., dated June 27, 2013 ("Compl."),

1.); (ii) Plaintiffs Memorandum ofLaw in Support of the Plaintiffs Motion for a PreliminaryInjunction, dated June 27, 2013 ("Pl. Mem."); (iii) Defendant's Memorandum of Law OpposingMotion for an Injunction, dated July 5, 2013 ("Def. Opp'n"), contending, among other things,that "[t]he federal courts do not have jurisdiction to intervene in economic strikes over a union'sefforts to procure a successor collective bargaining agreement" (Def. Opp'n at 1 ; (iv) Plainti ffs


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Reply Memorandum of Law in Further Support of the Plaintiffs Motion for a PreliminaryInjunction, dated July 8, 2013 ("Reply Mem."); (v) the hearing held by the Court on July 8,2013, during which, among other things, Plaintiff and Defendant had an opportunity to presentwitnesses and be heard on the issue of whether a preliminary injunction should issue; 1 andapplicable legal authorities, the Court hereby denies PJaintifrs application as follows:l) Plaintiff and Defendant were parties to a five-year collective bargaining agreement (the"CBA") effective from July 1, 2007 to June 30, 2012 and subsequently extended for anadditional year by the parties to June 30, 2013. (Hr'g Tr., dated July 8, 2013, at 4:5-8.) "Sincein or about February 2013 the MWA and the Union have been actively involved in negotiationsfor a successor CBA." (Compl. 12.) Negotiations between the parties broke down in June of2013 "over the terms of a successor bargaining agreement." (Def. Opp'n at 4.) On June 25,2013, Defendant (verbally) advised Plaintiff"that the Union members had authorized a strikepost June 30, 2013," i.e., following termination of the CBA. (Compl. 16.)2) On June 26, 2013, Plaintiff submitted to arbitration before the American ArbitrationAssociation the issue "[w]hether Article XXVII of the CBA prevents the Union while parties areengaged in negotiations for a successor agreement from engaging in any job action, or anyactions, which change the status quo." (Compl., Ex. C, Notice oflntention to Arbitrate; see Pl.Mem. at2.)

On July 1, 2013, Plaintiff also filed an unfair labor practice charge with the NationalLabor Relations Board ("NLRB") in Manhattan "requesting that the NLRB seek an injunction1 At the July 8, 2013 hearing, Plaintiff called three witnesses, Anthony Rizzo, President ofRimi Woodcraft Corp., George Greco, Principal of Midhattan Woodworking Corp., and PeterArena, CEO ofTatco Installations. (See Hr'g Tr., dated July 8, 2013.) The parties stipulated tothe testimony of a fourth witness, Helge Halvorsen. (Id. at 33:22-34:3.) The defense called nowitnesses and also waived their right to cross examine Plaintiffs witnesses. (I d.)2


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from this very Court stopping the strike." (Def. Opp'n at 1; see also Decl. of James M. Murphy,dated July 5, 2013, at Ex. C.) The docket does not reflect any submission from the NLRB.3) On June 27,2013, United States District Court Judge Sidney H. Stein, sitting as the Part 1Judge, held a hearing to "determin[e] whether the TRO should be granted." (See Hr'g Tr., datedJune 27,2013, at 4:19-20.) On June 28,2013, Judge Stein denied Plaintiffs request for atemporary restraining order. (See Order to Show Cause, dated June 28, 2013.) Judge Stein alsoscheduled a hearing for July 8, 2013, and directed the parties to show cause at said hearing "whyan order should not be issued pursuant to Rule 65 ofthe Federal Rules ofCivil Procedure('FRCP'), restraining the Defendant, its attorneys, agents, servants, employees, representativesand all persons acting in concert or participating with them or those provided with notice of thisOrder from engaging in a work stoppage, strike slowdown, picketing, or other job action or anyactivity that interferes with Plaintiffs employer member's business pending an arbitrationhearing and determination of the issues herein." (Id. at 1l

In fact, "the District Council commenced a strike on July 1, 2013 after expiration of theparties' collective bargaining agreement." (Def. Opp'n at 1.)

2 This case was originally assigned to United States District Court Judge Alison J. Nathan.Defense counsel, by letter dated June 28, 2013, requested that the case be reassigned to thisCourt as related to United States v. District Council, et al., No. 90 Civ. 5722 (RMB). (SeePlaint iff s Letter to the Court, dated June 28, 2013.) Judge Nathan agreed to the transfer in "theinterests of ustice and efficiency," Local Rule for the Division of Business Among DistrictJudges 13(a), and the case was reassigned to this Court on July 3, 2013. (See Notice ofCaseReassignment, dated July 3, 2013).

It should be noted that Plaintiff, by letter dated July 3, 2013, objected to the casereassignment, asserting "further delay which will result if the case is reassigned." (SeeDefendant's Letter to the Court, dated July 3, 2013, at 2.) The hearing originally scheduled byJudge Stein for July 8, 2013, at 2:00p.m., was not delayed or o s t ~ o n e d d u ~ the c ~ e . .reassignment, (see Hr'g Tr., dated July 8, 2013), and the Court beheves Plamt1ffs objection 1smoot. 3


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4) The Court concludes that it is without jurisdiction to issue the injunction sought byPlaintiff. For reasons of sound public policy, Section 4 of the Norris-LaGuardia Act, 4 7 Stat. 70,29 U.S. C. 104, provides in relevant part that: "No court ofthe United States shall havejurisdiction to issue any restraining order or temporary or permanent injunction in any caseinvolving or growing out of any labor dispute to prohibit any person or persons participating orinterested in such dispute . . . from doing, whether singly or in concert, any of the following acts:(a) Ceasing or refusing to perform any work or to remain in any relation of employment." Id. 104; see also Niagara Hooker Emps. Union v. Occidental Chern. Corp., 935 F.2d 1370, 1375 (2dCir. 1991) ("The [Norris-LaGuardia Act] was enacted to correct the abuses that had resultedfrom the interjection of the federal judiciary into union-management disputes on behalf ofmanagement.").5) The Supreme Court set forth a narrow exception in Boys Markets, Inc. v. Retail ClerksUnion, Local 770, 398 U.S. 235 (1970), holding that the Norris-LaGuardia Act does not bar thegranting of injunctive relief against a strike where "a collective-bargaining contract contains amandatory grievance adjustment or arbitration procedure," 398 U.S. at 253, i.e., where the strike"is over a grievance which both parties are contractually bound to arbitrate," Id. at 254. TheDistrict Court may not issue an injunctive order unless and until it first holds that the contractdoes have that effect. In Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428U.S. 397 (1976), the Supreme Court clarified Boys Markets, holding that an injunction may issueonly where a strike is "precipitated by a dispute between union and management that was subjectto binding arbitration under the provisions of the contract[]." Buffalo Forge, 428 U.S. at 406.The initiation of arbitration, as here, over the issue of whether a strike or work stoppage violatesan express or implied no-strike clause "does not entitle the employer to 'Boys Markets'

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injunctive relief; there must be an underlying arbitrable grievance." Elevator Mfrs'. Ass'n ofNew York. Inc. v. Local l , Int'l Union ofElevator Constructors, 689 F.2d 382, 385 (2d Cir.1982). And, any waiver of the right to strike must be "clear and unmistakable." Metro.Edison Co. v. N.L.R.B., 460 U.S. 693, 708 (1983) (emphasis added).

The Boys Markets exception does not apply here because, as also discussed below, thestrike which followed the expiration of the CBA is not subject to mandatory arbitration. Theunderlying event which triggered the Union's strike was the failure of negotiations over a newcollective-bargaining agreement which is a non-arbitrable dispute. The CBA does not include amandatory "interest arbitration" provision allowing for arbitration of new contract terms whennegotiations fail, a provision sometimes found in other collective bargaining agreements. See,

~ . J a m a i c a Water Supply Co. v. UtiL Workers, Local 374, No. 86 Civ. 2056 (RJD), 1986 WL15703, at *1 (E.D.N.Y. July 23, 1986); see also Jacksonville Bulk Terminals, Inc. v. Int'lLongshoremen's Ass'n, 457 U.S. 702, 724 (1982) ("[W]hen the underlying dispute is notarbitrable, the employer may not obtain injunctive relief pending the arbitrator's ruling on thelegality of the strike under the collective-bargaining agreement.").6) For an injunction to issue under the narrow Boys Markets exception, Plaintiff must show:"1) the collective bargaining agreement contains a mandatory grievance procedure; 2) theagreement contains a no-strike clause; 3) the underlying dispute(s) involved is/are subject to themandatory grievance procedure; and 4) the traditional requirements of equity . . . are satisfied."Otis Elevator Co. v. Local I, Int'l Union ofElevator Constructors, 684 F. Supp. 80, 82 (S.D.N.Y.1988). These elements are not met here.3

3 The CBA's grievance procedure is found in Article XIV I, which provides as follows:"Grievance. Any grievance or dispute arising under the terms and conditions of the Agreement5


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The principal disagreement before the Court is whether the underlying dispute is subjectto the CBA s grievance and arbitration provision contained in Article XIV. Plaintiff argues thatthe "instant grievance by the MWA is clearly covered by the broad arbitration language found inthe [CBA]," and also asserts that Article XIV 2 bars "any strike while an arbitration ispending," and "that Article XXVII of the CBA prohibits the Union from altering the status quo,including taking a job action or strike, while the parties are engaged in collective bargainingnegotiat ions." (Pl. Mem. at 8; Reply Mem. at 1.) Defendant counters that "the Union's strike isover the terms of a new collective bargaining agreement-the new wages and [fringe] benefits to

be paid and any new conditions of employment," which are issues not subject to the CBA'sarbitration clause. (Def. Opp'n at 8.)

As noted, the Court concludes that the underlying dispute that precipitated the strikeinvolved the failure of negotiations over a new CBA. (See Def. Opp'n at 8.) The principaldispute involves overarching economic issues, including, among other things, "the MWA'srequest to cap all fringe benefit contributions to forty hours (40) for all shop hours and theMWA's request have [sic] the ratio of Tier I to Tier II employees lapse after the second year of

except claims related to fringe benefits contributions, must be brought to the attention of theEmployer in writing within thirty (30) calendar days of its occurrence or when the dispute arose,otherwise such grievance or dispute shall be barred. If at any time, however, there arise anydifferences or disputes under this Agreement respecting the interpretation or construction of anyclauses herein, or with respect to the breach of performance hereof, then the same may, ondemand of either of the parties hereto, shall be submitted for decision and award to an arbitratordesignated by the American Arbitration Association, pursuant to its rules and regulations, andthe expense of such arbitration shall be borne equally by the parties." (Compl., Ex. A, art. XIV 1.)

Article XIV of the CBA also contains a "no-strike" clause at 2, stating: "Lock-Outs andStrikes During the term of this Agreement, and pending the adjustment of any disputes by thecontract arbitrator, there shall be no sit-downs, work stoppages, or lockouts by either the Unionor the Employer, except in the case of failure by either of the parties to abide by such arbitrationaward as aforementioned, or as provided in this Agreement." (Id., art. XIV 2.)6


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the [new] contract." (Compl., at Ex. B, Plaintiffs Letter Re: Status ofNegotiations Between theMWA and the NYCDCC, dated June 21, 2013.) At the July 8, 2013 hearing, Plaintiffacknowledged that the underlying dispute involves basic economic terms of a new collectivebargaining agreement:

THE COURT: . . . But even assuming again arguendo there's an injunction, youstill have the issue of resolving the underlying economic relationship with theunion.MR. TRIVELLA: That is absolutely correct, your Honor.

(Hr'g Tr., dated July 8, 2013, at 10:6-9.)

7) As noted, the CBA does not appear to include a so-called interest arbitration provision.(ld., art. XIV.); see also Montgomery Mailers' Union No. 127 v. Advertiser Co., 827 F.2d 709,716 n.7 (11th Cir. 1987) ("[T]wo categories of labor arbitration have been distinguished. Thefirst is grievance arbitration which concerns disputes over the terms of existing contracts. Theother is 'interest' or 'new contract' arbitration which allows for arbitration of the terms of a newcontract."). In the instant case, as in Elsinore Shore Associates, "The precipitating cause of thestrike was the failure of the parties to reach agreement on new wage schedules under the wagereopener, a non-arbitrable extra-contract dispute." Elsinore Shore Assocs. v. Local 54, HotelEmps. & Rest. Emps. lnt' l Union, 820 F.2d 62, 69 (3d Cir. 1987). The parties' differences ofopinion regarding the proper interpretation ofArticle XIV and Article XXVII, which the Courtunderstands are currently being arbitrated, "simply did not trigger the work stoppage."

Jacksonville Bulk Terminals, 457 U.S. at 722. As in Jacksonville, "To the contrary, the

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applicability of these clauses to the dispute, if any, was triggered by the work stoppage itself."Id. 48) Because the Court lacks jurisdiction to enjoin the Union's strike under the Norris La-Guardia Act, "it need not decide whether the injunction would be warranted under ordinaryprinciples of equity." NYP Holdings, Inc. v. Newspaper & Mail Deliveries' Union ofNew York& Vicinity, 485 F. Supp. 2d 416,422 (S.D.N.Y. 2007); see also Niagara Hooker, 935 F.2d at1380 ("We leave the merits of [the] dispute to the arbitrator."). But assuming, arguendo, that thisCourt had jurisdiction to enjoin the strike, it might find that a preliminary injunction is,nevertheless, not appropriate.5 Among other reasons, the "no-strike clause" in Article XIV of theCBA does not appear to apply once the contract has expired, as it has in this case. (See Compl.,Ex. A, art. XIV 2 (stating "During the term of this Agreement, . . .").) As Defendant notes,"[s]ound grammatical construction yields the conclusion that the entire sentence applies only toevents during the Agreement's term." (Def. Opp'n at 12.) And, at the July 8, 2013 hearing,

4 The limited nature of Boys Markets injunctions does not leave employers without legalrecourse. If the arbitrator or the NLRB were to determine that the strike is illegal, the decisionmay be specifically enforced. Elsinore Shore, 820 F.2d at 69. As noted above, on July 1, 2013,Plaintiff filed an unfair labor practice charge before the NLRB, "and unfair labor practices can beenjoined under section lOG) of the NLRA without regard for the Norris-LaGuardia limitations."ld.; see supra, at 2-3.5 "To obtain a preliminary injunction, a party must show: (a) irreparable harm and (b)either (1) likelihood of success on the merits or (2) sufficiently serious questions going to themerits to make them a fair ground for litigation and a balance of hardships tipping decidedlytoward the party requesting the preliminary relief." Am. Postal Workers Union, AFL-CIO v.U.S. Postal Serv., 766 F.2d 715,721 (2d Cir. 1985) (internal quotation omitted). Plaintiff mustalso show that the injunction is "necessary to preserve the jurisdiction of the arbitrator or as anaid to arbitration." Teachers Ass'n of Japanese Educ. lnst. ofNew York, Inc. v. Japanese Educ.Inst. ofNew York, 724 F. Supp. 188, 191 (S.D.N.Y. 1989) (citing Am. Postal Workers Union,766 F 2d at 722). 8


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Plaintiffs own witness testified that the no-strike clause is applicable (only) prior to expirationofthe CBA:

THE COURT: So you're saying that Article 14 in your opinion clearly says nolockouts or strikes while the existing agreement is operative.THE WITNESS (Mr. Greco): Correct.THE COURT: But not once it' s expired.THE WITNESS: Correct.

(Hr'g Tr., dated July 8, 2013, at 32:3-8.)Similarly, Plaintiffs argument that Article XXVII prevents the District Council from

striking after the expiration of the CBA may appear unpersuasive. For one thing, unlike ArticleXIV 2, Article XXVII does not mention "strikes" or "lockouts":

THE COURT: . . . [I]s there a provision in [Article 27 of] that agreement that'scalled no strike/no lockout?THE WITNESS (Mr. Rizzo): I would have to look through this. Not in thisArticle 27.

(Hr' g Tr., dated July 8, 2013, at 21 :24-22:2.)For another, Article XXVII uses the phrase "before this Agreement's expiration" and it is,at least, arguable that, "Article XXVII could not bar a strike in perpetuity because it is acontract term which, just as any other contract term, expires at the end of the collectivebargaining agreement." (Def. Opp'n at 12.); see also Derrico v. Sheehan EmergencyHosp., 844 F.2d 22, 26-27 (2d Cir. 1988) ("Rights and duties under a collectivebargaining agreement do not otherwise survive the contract's termination at an agreedexpiration date.").

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CONCLUSION &ORDERFor the foregoing reasons, Plaintiffs application for injunctive relief is respectfully

denied.Dated: July 18, 2013.

New York, New YorkRICHARD M. BERMAN, U.S.D.J.

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7-18-2013 DECISION AND ORDER by Judge Berman (MWA Strike Injunction; Case: 13-Civ-4473 ) Doc. #34

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