UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MANUFACTURING WOODWORKERS
ASSOCIA TION OF GREATER NEW YORK,
INC.,
Plaintiff,
-against-
NEW YORK DISTRICT COUNCIL OF :
CARPENTERS a!k/a THE DISTRICT COUNCIL:
OF NEW YORK CITY AND VICINITY
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA,
Defendant.
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USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ____________ __
DATE FILED: n1 \ \ \>
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 of Greater New York, Inc. ("MW A" or
"Plaintiff') against the District Council of New York City and Vicinity of the United
Brotherhood of Carpenters and Joiners of America ("District Council" or "Union" or
"Defendant"), applying "for a temporary restraining order and preliminary and permanent
injunctive relief in aid of arbitration requiring the Defendant, its attorneys, agents and
representatives to cease and desist from engaging in any job action or any other activity that
interferes in the business activities of the Plaintiff' (see Comp!., dated June 27,2013 ("Compl."),
~ 1.); (ii) Plaintiffs Memorandum of Law in Support of the Plaintiffs Motion for a Preliminary
Injunction, dated June 27, 2013 ("PI. Mem."); (iii) Defendant's Memorandum of Law Opposing
Motion 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's
efforts to procure a successor collective bargaining agreement" (Def. Opp'n at 1); (iv) Plaintiffs
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Reply Memorandum of Law in Further Support of the Plaintiff s Motion for a Preliminary
Injunction, 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 present
witnesses and be heard on the issue of whether a preliminary injunction should issue; I and
applicable legal authorities, the Court hereby denies PJaintifrs application as follows:
I) 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 an
additional year by the parties to June 30, 2013. (Hr'g Tr., dated July 8, 2013, at 4:5-8.) "Since
in or about February 2013 the MWA and the Union have been actively involved in negotiations
for a successor CBA." (Compl. ~ 12.) Negotiations between the parties broke down in June of
2013 "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 strike
post June 30,2013," Le., following termination of the CBA. (Compl. ~ 16.)
2) On June 26, 2013, Plaintiff submitted to arbitration before the American Arbitration
Association the issue "[w]hether Article XXVII of the CBA prevents the Union while parties are
engaged in negotiations for a successor agreement from engaging in any job action, or any
actions, which change the status quo." (CompL, Ex. C, Notice ofIntention to Arbitrate; see PI.
Mem. at 2.)
On July 1,2013, Plaintiff also filed an unfair labor practice charge with the National
Labor Relations Board ("NLRB") in Manhattan "requesting that the NLRB seek an injunction
I At the July 8, 2013 hearing, Plaintiff called three witnesses, Anthony Rizzo, President of
Rimi Woodcraft Corp., George Greco, Principal of Midhattan Woodworking Corp., and Peter
Arena, CEO of Tatco Installations. (See Hr'g Tr., dated July 8, 2013.) The parties stipulated to
the testimony of a fourth witness, Helge Halvorsen. (Id. at 33:22-34:3.) The defense called no
witnesses and also waived their right to cross examine Plaintiff s witnesses. (Id.)
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 1
Judge, held a hearing to "determin[e] whether the TRO should be granted." (See Hr'g Tr., dated
June 27,2013, at 4:19-20.) On June 28,2013, Judge Stein denied Plaintiffs request for a
temporary restraining order. (See Order to Show Cause, dated June 28, 2013.) Judge Stein also
scheduled a hearing for July 8, 2013, and directed the parties to show cause at said hearing "why
an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure
(,FRCP'), restraining the Defendant, its attorneys, agents, servants, employees, representatives
and all persons acting in concert or participating with them or those provided with notice of this
Order from engaging in a work stoppage, strike slowdown, picketing, or other job action or any
activity that interferes with Plaintiffs employer member's business pending an arbitration
hearing and determination of the issues herein." (ld. at II
In fact, "the District Council commenced a strike on July 1, 2013 after expiration of the
parties' 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 this
Court as related to United States v. District Council, et aI., No. 90 Civ. 5722 (RMB). (See
Plaintiffs Letter to the Court, dated June 28, 2013.) Judge Nathan agreed to the transfer in "the
interests of justice and efficiency," Local Rule for the Division of Business Among District
Judges 13Ca), and the case was reassigned to this Court on July 3, 2013. (See Notice of Case
Reassignment, dated July 3, 2013).
It should be noted that Plaintiff, by letter dated July 3, 2013, objected to the case
reassignment, asserting "further delay which will result if the case is reassigned." (See
Defendant's Letter to the Court, dated July 3,2013, at 2.) The hearing originally scheduled by
Judge Stein for July 8, 2013, at 2:00 p.m., was not delayed or the .
reassignment, (see Hr'g Tr., dated July 8, 2013), and the Court beheves Plamtlffs objectIon IS
moot.
3
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4) The Court concludes that it is without jurisdiction to issue the injunction sought by
Plaintiff. For reasons of sound public policy, Section 4 of the Norris-LaGuardia Act, 47 Stat. 70,
29 U.S.C. 104, provides in relevant part that: "No court ofthe United States shall have
jurisdiction to issue any restraining order or temporary or permanent injunction in any case
involving or growing out of any labor dispute to prohibit any person or persons participating or
interested 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 (2d
Cir. 1991) ("The [Norris-LaGuardia Act] was enacted to correct the abuses that had resulted
from the interjection of the federal judiciary into union-management disputes on behalf of
management.").
5) The Supreme Court set forth a narrow exception in Boys Markets, Inc. v. Retail Clerks
Union, Local 770, 398 U.S. 235 (1970), holding that the Norris-LaGuardia Act does not bar the
granting of injunctive relief against a strike where "a collective-bargaining contract contains a
mandatory 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. The
District Court may not issue an injunctive order unless and until it first holds that the contract
does have that effect. In Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428
U.S. 397 (1976), the Supreme Court clarified Boys Markets, holding that an injunction may issue
only where a strike is "precipitated by a dispute between union and management that was subject
to 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 violates
an express or implied no-strike clause "does not entitle the employer to 'Boys Markets'
4
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injunctive relief; there must be an underlying arbitrable grievance." Elevator Mfrs'. Ass'n of
New York, Inc. v. Local 1, Int'l Union of Elevator 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, the
strike which followed the expiration of the CBA is not subject to mandatory arbitration. The
underlying event which triggered the Union's strike was the failure of negotiations over a new
collective-bargaining agreement which is a non-arbitrable dispute. The CBA does not include a
mandatory "interest arbitration" provision allowing for arbitration of new contract terms when
negotiations fail, a provision sometimes found in other collective bargaining agreements. See,
~ , Jamaica Water Supply Co. v. UtiI. Workers. Local 374, No. 86 Civ. 2056 (RJD), 1986 WL
15703, at * 1 (E.D.N. Y. July 23, 1986); see also Jacksonville Bulk Terminals, Inc. v. Int'l
Longshoremen's Ass'n, 457 U.S. 702, 724 (1982) ("[W]hen the underlying dispute is not
arbitrable, the employer may not obtain injunctive relief pending the arbitrator's ruling on the
legality 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) the
agreement contains a no-strike clause; 3) the underlying dispute(s) involved is/are subject to the
mandatory grievance procedure; and 4) the traditional requirements of equity ... are satisfied."
Otis Elevator Co. v. Local 1, In1'l Union of Elevator 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 1, which provides as follows:
"Grievance. Any grievance or dispute arising under the terms and conditions of the Agreement
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The principal disagreement before the Court is whether the underlying dispute is subject
to the CBA' s grievance and arbitration provision contained in Article XIV. Plaintiff argues that
the "instant grievance by the MW A is clearly covered by the broad arbitration language found in
the [CBA]," and also asserts that Article XIV 2 bars "any strike while an arbitration is
pending," 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 bargaining
negotiations." (PI. Mem. at 8; Reply Mem. at 1.) Defendant counters that "the Union's strike is
over 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's
arbitration clause. (Def. Opp'n at 8.)
As noted, the Court concludes that the underlying dispute that precipitated the strike
involved the failure of negotiations over a new CBA. (See Def. Opp'n at 8.) The principal
dispute involves overarching economic issues, including, among other things, "the MWA's
request to cap all fringe benefit contributions to forty hours (40) for all shop hours and the
MWA'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 the
Employer 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 any
differences or disputes under this Agreement respecting the interpretation or construction of any
clauses herein, or with respect to the breach of performance hereof, then the same may, on
demand of either of the parties hereto, shall be submitted for decision and award to an arbitrator
designated by the American Arbitration Association, pursuant to its rules and regulations, and
the expense of such arbitration shall be borne equally by the parties." (CompJ., Ex. A, art. XIV
1.)
Article XIV of the CBA also contains a "no-strike" clause at 2, stating: "Lock-Outs and
Strikes During the term of this Agreement, and pending the adjustment of any disputes by the
contract arbitrator, there shall be no sit-downs, work stoppages, or lockouts by either the Union
or the Employer, except in the case of failure by either of the parties to abide by such arbitration
award as aforementioned, or as provided in this Agreement." (Id., art. XIV 2.)
6
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the [new] contract." (CompI., at Ex. B, Plaintiffs Letter Re: Status of Negotiations Between the
MWA and the NYCDCC, dated June 21, 2013.) At the July 8, 2013 hearing, Plaintiff
acknowledged that the underlying dispute involves basic economic tenus of a new collective
bargaining agreement:
THE COURT: ... But even assuming again arguendo there's an injunction, you
still have the issue of resolving the underlying economic relationship with the
union.
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 (11 th Cir. 1987) ("[T]wo categories of labor arbitration have been distinguished. The
first is grievance arbitration which concerns disputes over the tenus of existing contracts. The
other is 'interest' or 'new contract' arbitration which allows for arbitration of the tenus of a new
contract."). In the instant case, as in Elsinore Shore Associates, "The precipitating cause of the
strike was the failure of the parties to reach agreement on new wage schedules under the wage
reopener, a non-arbitrable extra-contract dispute." Elsinore Shore Assocs. v. Local 54, Hotel
Emps. & Rest. Emps. InCI Union, 820 F.2d 62, 69 (3d Cir. 1987). The parties' differences of
opinion regarding the proper interpretation of Article XIV and Article XXVII, which the Court
understands are currently being arbitrated, "simply did not trigger the work stoppage."
Jacksonville Bulk Tenuinals, 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.
4
8) 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 ordinary
principles of equity." NYP Holdings, Inc. v. Newspaper & Mail Deliveries' Union of New York
& Vicinity, 485 F. Supp. 2d 416, 422 (S.D.N.Y. 2007); see also Niagara Hooker, 935 F.2d at
1380 ("We leave the merits of [the] dispute to the arbitrator."). But assuming, arguendo, that this
Court had jurisdiction to enjoin the strike, it might find that a preliminary injunction is,
nevertheless, not appropriate.
s
Among other reasons, the "no-strike clause" in Article XIV of the
CBA 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 to
events 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 legal
recourse. If the arbitrator or the NLRB were to determine that the strike is illegal, the decision
may 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 be
enjoined under section lOG) of the NLRA without regard for the Norris-LaGuardia limitations."
Id.; 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 the
merits to make them a fair ground for litigation and a balance of hardships tipping decidedly
toward 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 must
also show that the injunction is "necessary to preserve the jurisdiction of the arbitrator or as an
aid to arbitration." Teachers Ass'n of Japanese Educ. Inst. of New York, Inc. v. Japanese Educ.
Inst. of New 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 expiration
of the CBA:
THE COURT: So you're saying that Article 14 in your opinion clearly says no
lockouts 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 Article
XIV 2, Article XXVII does not mention "strikes" or "lockouts":
THE COURT: ... [I]s there a provision in [Article 27 of] that agreement that's
called no strike/no lockout?
THE WITNESS (Mr. Rizzo): I would have to look through this. Not in this
Article 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 a
contract term which, just as any other contract term, expires at the end of the collective
bargaining agreement." (Def. Opp'n at 12.); see also Derrico v. Sheehan Emergency
Hosp., 844 F.2d 22, 26-27 (2d Cir. 1988) ("Rights and duties under a collective
bargaining agreement do not otherwise survive the contract's termination at an agreed
expiration date.").
9
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CONCLUSION & ORDER
For the foregoing reasons, Plaintiff s application for injunctive relief is respectfully
denied.
Dated: July 18, 2013.
New York, New York
RICHARD M. BERMAN, U.S.D.J.
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