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CHARMERS INDUS. v. LIQUOR SALESMEN'S UNION LOCAL N

June 22, 1976

CHARMERS INDUSTRIES, INC., et al., Plaintiffs,
v.
LIQUOR SALESMEN'S UNION LOCAL NO. 2 OF the STATE OF NEW YORK, AFL-CIO, Defendant. KNICKERBOCKER LIQUORS CORPORATION, Plaintiff, v. LIQUOR SALESMEN'S UNION LOCAL NO. 2 OF the STATE OF NEW YORK, AFL-CIO, Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM AND ORDER

 HAIGHT, District Judge.

 Memorandum

 The plaintiffs move this Court for an order staying an arbitration demand made by the defendant as contained in Defendant's Notice of Intention to Arbitrate, dated February 3, 1976 and served on February 6, 1976. Defendant opposes plaintiffs' motions and has cross-moved for an order compelling arbitration and for a preliminary injunction.

 The above entitled actions were instituted by the plaintiffs, pursuant to 28 U.S.C. § 2201, for a declaratory judgment arising under § 301 of the Labor Management Relations Act of 1947, as amended (29 U.S.C. § 185). Plaintiffs' complaints were filed after defendant served its Notice of Intention to Arbitrate. The complaints seek declarations that, in the circumstances of the case, plaintiffs are under no obligation to arbitrate with defendant.

 Plaintiffs then moved, purportedly pursuant to the United States Arbitration Act, for an order staying arbitration. Defendant cross-moved for an order to compel arbitration, also relying upon the Federal Arbitration Act, particularly 9 U.S.C. § 4.

 The parties' references to the Federal Arbitration Act are inapposite. The case is properly before the Court under the Labor Management Relations Act. Under Section 301(a) of that statute, 29 U.S.C. § 185(a), the district courts have jurisdiction "to compel arbitration in accordance with the terms of a collective bargaining agreement." Engineers Assn. v. Sperry Gyroscope Co., Etc., 251 F.2d 133 (2d Cir. 1957).

 The plaintiffs are all New York companies and/or corporations engaged in the sale of alcoholic beverages at wholesale to retail liquor stores, hotels, clubs, retail liquor stores, hotels, clubs, restaurants, bars and taverns in the New York metropolitan area.

 The defendant, Liquor Salesmen's Union Local No. 2 of the State of New York, AFL-CIO, is an unincorporated labor organization which represents some 1350 to 1600 licensed liquor salesmen employed in the New York metropolitan area, and has maintained collective bargaining relations with wholesale distributors and suppliers, including the plaintiffs herein.

 A collective bargaining agreement, effective November 1, 1968, amended effective September 1, 1969 and further amended by Memorandum of Agreements entered into as of November 1, 1973, was executed by each of the plaintiffs and Local 2 and was similar in all respects except for the employer named therein. On midnight, October 31, 1975, the contract between Local 2 and the plaintiffs expired. During the period September 11, 1975 until November 7, 1975, negotiations took place between the parties for a new collective bargaining agreement to take effect at 12:01 a.m. on November 1, 1975. During this same period, the plaintiffs had re-negotiated aspects of a collective bargaining agreement with Local 816, which represented the truck drivers employed by the plaintiffs. As a result of those negotiations, it was agreed between the plaintiffs and Local 816 that truck drivers would no longer pick up "C.O.D." payments from the customers of the plaintiffs. These new "C.O.D." procedures were implemented by plaintiffs on November 3, 1975.

 As a practical matter, a new collective bargaining agreement between the plaintiffs and Local No. 2 was reached on November 2, 1975 when the parties prepared a handwritten memorandum of conditional settlement. The agreement was formally ratified by the membership of Local No. 2 on November 7, 1975.

 During the week of November 3, 1975, a dispute arose as to the effects upon Local No. 2 salesmen of the new "C.O.D." procedures which were the result of the agreement between plaintiffs and the Local 816 truckers. There appeared to be some concern by the liquor salesmen that they were now responsible for picking up "C.O.D." payments. The plaintiffs deny that any liquor salesman was required to make any "C.O.D." pickups. In any event, defendant contends that the new "C.O.D." procedures are violative of the collective bargaining agreement between the plaintiffs and Local No. 2.

 The defendant subsequently filed charges with the National Labor Relations Board regarding C.O.D. procedures. These charges were eventually withdrawn and a Notice of Intention to Arbitrate was served on the plaintiffs by the defendant pursuant to the terms of the collective bargaining agreement. It is this demand for arbitration which is the crux of the instant motion and cross-motion.

 The plaintiffs oppose arbitration based on four different grounds:

 1. There is no existing dispute between the parties ...


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