The opinion of the court was delivered by: MANSFIELD
Plaintiff, Playboy Clubs International, Inc. ("PCI"), having brought this action against defendant Hotel & Restaurant Employees and Bartenders Union, AFL-CIO ("the Union") under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, and the Declaratory Judgment Act, 28 U.S.C. § 2201, now moves under Rule 65, F.R.Civ.P., for a preliminary injunction staying arbitration proceedings arising from the discharges of certain PCI employees ("Bunnies"). PCI contends that the discharges are not arbitrable under a labor agreement entered into between PCI and the Union on June 15, 1969, and to expire on June 15, 1974 ("the Agreement"). Upon a reading of the Agreement and an examination of the facts of the case, we agree with PCI, and the motion for a preliminary injunction is therefore granted.
PCI is a Delaware corporation which operates in various cities such as New York, Chicago, and Los Angeles, establishments for drinking, eating, and entertainment called Playboy Clubs. The Union is a labor organization which represents PCI's employees, including young women called "Bunnies," a term frequently applied to rabbits.* The maintenance in Bunny personnel of an elusive quality known as "the Bunny image," is acknowledged in the Agreement, Art. VII(q)(2) as a matter of common concern to PCI, to the Union and to the Bunnies themselves. The "Bunny image" apparently depends upon the physique, attractiveness and beauty of the girl-employee who wears on the job a rabbit-like costume of scanty dimensions, quite unlike the fulsome attire (white gloves and formal dress) worn by the White Rabbit in Lewis Carroll's Alice in Wonderland. A particular employee's "Bunny image" has been rated by PCI on a numerical scale as follows: (1) "a flawless beauty;" (2) "exceptionally pretty, perhaps some minor flaw;" (3) "marginal or having some correctible deficiency, which might be weight, or a cosmetic problem; something that is not of a more lasting, enduring, permanent nature;" (4) "loss of or the absence of the image requirements to be employed as a bunny" (Pf's Memorandum in Opposition p. 2).
Because of the importance to all concerned of maintaining each such employee's Bunny image, the Agreement provides in Article VII(q)(3) for a special three-step procedure to be employed when a Bunny is discharged for any reason other than union activity and she or the Union wishes to contest the discharge. Under this procedure, the dispute is first considered by the General Manager of the Club, or his nominee, the Bunny steward and a representative of the Union. If that is unsuccessful, it may be taken up with a panel consisting of management and Bunny representatives. Finally a decision may be required to be made by the Executive Vice President of PCI or his nominee. When a Bunny is discharged for union activities, the discharge is exempt from the Article VII procedure and is subject to arbitration under Article IX.
The discharges in question all involved Bunnies employed at the New York Playboy Club. On May 6, 1970, by discharges not at issue in this case, PCI discharged three Bunnies for "lack of Bunny image." On May 11, the Union filed grievances alleging that union activity was the real reason for the discharges and invoking arbitration under Article IX. The three cases then proceeded to arbitration under Article IX: two were settled without an arbitration award and one was decided by the arbitrator in the Union's favor on September 30, 1970.
On July 13, 1970, PCI discharged seven more New York Bunnies, and on July 25, 1970, an additional six. The reason given for all 13 discharges, as with the earlier three, was "lack of Bunny image." The Union commenced processing of these discharges through the three-step procedure of Article VII, but none were carried beyond the first stage (i.e., consideration by the General Manager and the Bunny steward).
On August 20, 1970, the Union demanded arbitration of the 13 discharges. The issues proposed for arbitration did not involve, as did the three earlier discharges, the question of whether the discharges had been based on union activity. Instead, the issues were posed as follows:
"Whether Nancy Phillips, Jodi Harness, Patricia Chapman, Penny Lauer, Teresa Slesak, Barbara Severn, Donnalee Weber, Sandra Heaton, Benle Pederson, Sandra Jones, Cathy Donnelly, Linda Raychuk, Greta St. Cross, Maren Thomas, Patricia McCune, Rosemary Tramintino were fired for 'Bunny Image' or some other reason and if so what other reason and what shall the remedy be?"
"Whether the employer has failed to supply the union with a list of the ratings assigned to Bunnies in the quarterly rating of July, 1970, and if so what shall the remedy be?
"Whether the employer has wrongfully rated any of the Bunnies in said rating period and if so what shall the remedy be?"
The parties have delayed arbitration by consent pending our determination of this motion for a preliminary injunction.
Having been invoked to exercise our power to determine arbitrability, see Metal Products Workers Union Local 1645 v. Torrington Co., 358 F.2d 103, 105 (2d Cir. 1966), we find that the above issues are not arbitrable under the Agreement. The Agreement provides only a single exception to the Article VII procedure for contesting discharge, an exception which expressly grants the arbitrator the power to decide whether or not a particular discharge has been motivated by the employee's union activities:
"Grievances regarding discharges or suspensions shall be handled exclusively in the following manner (except for discharges or suspensions for union activity). . . ." (Art. VII(q)(3);
The natural inference from this exception to the Article VII procedure -- that all other disputes arising from discharges or suspensions are governed by Article VII -- is ...