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September 16, 1975

In the Matter of the Application of Joseph HELLMAN, as President of Graphic Arts International Union Local 119B, New York, Petitioner,
PROGRAM PRINTING, INC., Respondent, for an order confirming the award of Israel Ben Scheiber, Arbitrator

The opinion of the court was delivered by: PIERCE


 PIERCE, District Judge.

 This is a petition to confirm and enforce an arbitration award, brought originally in New York State Supreme Court and removed to the Southern District pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185 on May 22, 1975. Respondent now moves to dismiss on the ground that the present dispute is not within the scope of the award, and that this Court must defer to the arbitration process. The motion to dismiss the petition is denied; the petition to confirm the award is granted; and the request for enforcement is denied.


 Respondent Program Printing is engaged in the business of printing race track programs and forms. The company is owned by Sullivan Brothers Printers of Lowell, Massachusetts. Program Printing first operated its print shop at Aqueduct Race Track during the 1974 racing season. Under a contract with the New York Racing Association, it printed daily racing programs for both Aqueduct and Belmont race tracks. The covers for these programs were folded and condition and stake books were printed at Sullivan Brothers.

 Program Printing has entered into a number of collective bargaining agreements, one of which is with the petitioner union. The present dispute began when the union charged that the company was violating its agreement of January 21, 1974, by "having work in the operations or classifications covered by the agreement performed outside [the Aqueduct] factory." (Arbitrator's Opinion ("AO") at 1.). The union's position was that, because a previous employer had printed condition and stake books at Aqueduct and had folded program covers there, the company was obligated to do the same. On April 23, 1974, the union submitted the dispute to arbitration.

 Subsequently, the company installed new machinery which, it alleged, reduced its labor requirements. On May 4, 1974, Vincent M. Migliaccio, a member of the union, was laid off. Before the arbitrator the union claimed that the layoff was due to the transfer of work to Sullivan Brothers.

 On November 13, 1974, Arbitrator Israel Ben Scheiber of the New York Mediation Board rendered his decision (No. A74-1574). In a well-reasoned opinion, the Arbitrator concluded that the company had indeed transferred work in contravention of the collective bargaining agreement, and that Mr. Migliaccio's layoff was as a result of that transfer. The opinion also specifically found that there was sufficient work for Mr. Migliaccio if the transfer was stopped, despite the installation of the new equipment. (AO at 7-8). The Arbitrator then entered the award, which directed the company to

"1. Cease having the work in operations or classifications covered by the collective bargaining agreement performed outside of its Aqueduct plant, which work it is equipped to perform.
"2. Reinstate Vincent Migliaccio on the same 6-day week basis on which he was employed prior to May 4, 1974, and that he be made whole at the rate of pay for a 6-day week as stipulated by the parties . . . ." (Award at 1).

 The company thereafter reinstated Mr. Migliaccio, and asserts that it now performs in its Aqueduct plant the work which would otherwise have been done at Sullivan Brothers. However, when the Aqueduct plant reopened for the season in February, 1975, Mr. Migliaccio was not rehired. The company took the position that there was no longer enough work for Migliaccio, in that the company had lost the contract to publish condition and stake books. The union responded by bringing the present action, the collective bargaining agreement providing for enforcement of arbitration awards in the courts.

 In its petition, the union asks this Court to confirm the award, and to direct the company to cease performing work outside the plant, and to reinstate Mr. Migliaccio and pay him back pay damages from February 24, 1975, the date of the refusal to rehire, and for other relief. In their moving papers in support of the motion to dismiss, counsel for the company assert that the question raised is a new one, one beyond the scope of the award. Respondent presents the issue thusly: "[Even] if no work is being transferred from the Aqueduct plant, must Mr. Migliaccio be reinstated if there is no work for him to do?" (Respondent's memorandum at 7). Respondent then proceeds to urge that this Court defer to arbitration, asserting that it does not even have subject matter jurisdiction of the present dispute. The gravamen of respondent's position is that a court may not confirm or enforce an award when the petition is being employed as a vehicle to resolve a new dispute.

 In response, the union contends that the company is now attempting to convince this Court with arguments which failed before the Arbitrator. Counsel for petitioner state that this Court has subject matter jurisdiction of the controversy, and that under the United States Arbitration Act, 9 U.S.C. § 1 et seq., this Court has a duty to confirm and enforce. Petitioner claims that the award below is final and ...

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