UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK
August 24, 1978
MARRIOTT IN-FLITE SERVICES, A DIVISION OF MARRIOTT CORPORATION
LOCAL 504, AIR TRANSPORT DIVISION, TRANSPORT WORKERS OF AMERICA, AFL-CIO.
The opinion of the court was delivered by: SIFTON
SIFTON, District Judge: - Defendant's motion for summary judgment, based on the "allied or struck work" exception to Section 8(b)(4)(i)B and (ii)B of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 158(b)(4)(i)B and (ii)B, is denied. Although the allied or struck work defense has been present in this case too long for plaintiff to claim surprise as a result of the assertion of this defense in defendant's motion, factual issues nevertheless exist which preclude the grant of summary relief. Whether Marriott was an "ally" of KLM, "neutral," or "in cahoots" with the primary employer, to use some of the variety of terms used to describe the situation in which the doctrine applies, are factual issues to be determined on the basis of all of the circumstances and not solely on the basis of the single fact pointed to by the union that "plaintiff admits it was performing work on behalf of KLM, the employer for whom the striking members of Local 504 had performed the same work."
Accordingly, defendant's motion for summary judgment is in all respects denied. Defendant's motion for leave to amend to assert the struck work defense is granted in view of the lack of prejudice or other reason warranting denial of that relief.
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