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ALLENDALE NURSING HOME, INC. v. LOCAL 1115 JOINT B

June 13, 1974

Allendale Nursing Home, Inc., Plaintiff,
v.
Local 1115 Joint Board et al., Defendants


Tyler District Judge.


The opinion of the court was delivered by: TYLER

TYLER, District Judge.

On November 1, 1973, plaintiff, a corporation organized by New Jersey law and having its principal place of business in New Jersey, commenced this action in Supreme Court of the State of New York, New York County, seeking to set aside an arbitrator's award entered on October 17, 1973. On November 8, 1973, the defendant ("the union") removed the action to this court. At about the same time, the union filed an answer in which it asserted a counter-claim requesting this court to enter an order pursuant to 9 U.S.C. § 9 confirming the award of arbitrator Herbert A. LeGrange, dated October 17, 1973, and entering judgment thereon. That arbitration award, based on an opinion of arbitrator LeGrange, assessed damages in the amount of $100,000 in favor of the union against plaintiff.

 On November 30, 1973, this court heard plaintiff in support of its motion for a preliminary injunction staying the arbitration award and the union's counter motion for summary judgment confirming the award. Despite the reluctance of counsel to agree, this court on that day directed that an evidentiary hearing be held on all issues, primarily because then, as throughout these proceedings, there have been sharp issues of fact between the parties and their counsel about most important issues and a good many peripheral issues as well. Both sides continued to agree on adjournments, mainly on claims that their counsel were occupied in other litigated matters. Finally, counsel and the parties agreed to the suggestion of this court that the matter come on for a plenary trial on April 4, 1974. Although both sides rested at the conclusion of trial that day, the court then suggested that the hearing could be reopened upon a request of either side to submit additional witnesses. Counsel took advantage of the court's offer, and the trial was reopened for further testimony on April 29, 1974. Post-trial briefs have been submitted, and the matter is ripe for resolution.

 The union is an unincorporated labor organization with its principal place of business in the Borough of Manhattan, City and State of New York. The union represents employees in industries affecting commerce. At all times relevant, subject to a dispute to be discussed hereinafter, the union apparently represented employees of the plaintiff in New Jersey. As stated, plaintiff, a New Jersey corporation, apparently is in the business of operating nursing homes in New Jersey and elsewhere. Jurisdiction is said to obtain in this court pursuant to the provisions of 29 U.S.C. § 185 and 9 U.S.C. § 9.

 Concededly, on May 24, 1968, plaintiff and the union entered into a collective bargaining agreement. That document included a broad and detailed arbitration clause, many provisions of which are either at issue or pertinent in the present controversy. That arbitration clause, Article 9 of the agreement, states in significant part as follows:

 
"All complaints, disputes or grievances whatsoever of whatever kind or nature arising between the Union and the employer concerning any provision of the contract, or with respect to any other act, conduct or relation between the parties, directly or indirectly, shall be submitted for arbitration to. . . . The arbitration shall be brought on by a written notice sent by the party requesting the same addressed to the other party at the address set forth in this agreement. Said notice shall not be required to set forth the issues but should state that a grievance or dispute exists between the parties. It is expressly agreed between the parties hereto that should any dispute or grievance arise after the sending of the said notice, all such additional disputes or grievances shall likewise be arbitrated at the time of the arbitration hearing. . . If either party fails or refuses or neglects to appear, then the arbitrator shall hear the evidence of the party appearing and render his decision as if both parties had appeared. The decision of the arbitrator shall be binding upon the parties and the employees and shall have the effect of a judgment entered upon an award as provided by the Civil Practice Law and Rules of the State of New York . . . The arbitrator is empowered to include in his award mandatory and injunctive relief and to assess damages."

 On or about March 12, 1973, the union invoked the arbitration procedures under Article 9 of the contract, and the issues raised initially by the union were submitted to arbitrator Herbert A. LeGrange, who was named as a defendant in this action but, since filing a petition for removal to this court, has made no further appearance in these proceedings. The union's letter or notice to arbitrate of March 12, 1973 is not in the record before this court. As stated by plaintiff, however, the issues raised in that notice included:

 
"(a) Disability payments to the State of New Jersey (employee contributions).
 
(b) The furnishing by the plaintiff employer of a list of employees and their benefits.
 
(c) The alleged failure of the plaintiff employer to remit the dues and initiation fee of one employee to the defendant union.
 
(d) The alleged refusal of plaintiff employer to require employees to become union members after thirty (30) days employment.
 
(e) The alleged commingling by the plaintiff of union dues The initiation fees with other funds of the plaintiff employer.
 
(f) The alleged refusal of the plaintiff employer to allow union shop stewards to handle union problems during company time.
 
(g) A charge that part-time employees have not received minimum wages or increases as ...

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