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STONE & WEBSTER ENGG. CORP. v. LOCAL UNION NO. 38

October 19, 1978

STONE & WEBSTER ENGINEERING CORPORATION, Plaintiff,
v.
LOCAL UNION NO. 38 OF OSWEGO, NEW YORK AND VICINITY, INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES (AFL-CIO), Defendant



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

This Opinion is addressed to two separate actions presently before the Court one as an action to enforce a Collective Bargaining Agreement under Section 301 of the Labor Management Relations Act, 29 U.S.C § 185, the other to vacate an arbitrator's award pursuant to the United States Arbitration Act, Title 9 U.S.C. §§ 1-14. Both actions involve the same parties, and revolve around the same set of essential facts.

Motion For Preliminary Injunction

 Stone & Webster Engineering Corporation, the plaintiff herein, has commenced an action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C § 185, seeking to enjoin a strike by the defendant, Local 38 of the International Brotherhood of Painters and Allied Trades (hereinafter "Local 38"), upon the basis that such action violates the "no-strike" clause contained within the Collective Bargaining Agreement in force between the two parties. Plaintiff has petitioned the Court for a preliminary injunction against any further work stoppage by the defendant and its members pending the outcome of the present litigation.

 A hearing was conducted, upon the motion for a preliminary injunction, before this Court on October 19 and 20, 1977, at which time a total of two witnesses were called, one by each party. In addition, a written Stipulation of Facts entered into between the parties was submitted as a part of the record (hearing Exhibit 2). The defendant Local 38 has agreed not to strike pending resolution of the motion at bar, thereby obviating the necessity of ruling upon plaintiff's initial request for a Temporary Restraining Order.

 Findings of Fact

 1. Stone & Webster Engineering Corporation, a Massachusetts corporation with its principal place of business in Boston, Massachusetts, the plaintiff herein, has been retained by the Niagara Mohawk Power Corporation to oversee the construction of a nuclear power plant to be located at Nine Mile Point, in Lycoming, New York.

 2. Plaintiff, in turn, utilizes various contractors to perform the actual construction work, with between twelve and fifteen contractors working at any given time.

 3. Plaintiff makes work assignments to the several independent contractors. In addition, plaintiff provides equipment, supplies, temporary services such as water, compressed air and the like, temporary housing for the various operations, and receives and distributes materials used on the job.

 4. Among those workers employed at the Nine Mile Point jobsite are some members of Local # 38 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, defendant herein. Also employed at the site are members of Local # 545 of the International Union of Operating Engineers.

 5. Plaintiff is a party to Collective Bargaining Agreements with both the defendant (Exhibit 1, appended to plaintiff's hearing Exhibit 1), and Local # 545 of the International Union of Operating Engineers (Exhibit 2, appended to plaintiff's hearing Exhibit 1).

 6. A dispute arose over which of the two unions involved, viz. painters or operating engineers, had jurisdiction over painting work performed on some equipment used in the project. In response to that dispute, jobsite meetings were held on September 23, 1976, and October 6, 1976, attended by representatives of plaintiff and the two unions.

 7. On October 18, 1976, plaintiff issued a job assignment, ordering the operating engineers to paint equipment operated by men of their craft, but not equipment operated by workers of other crafts (Exhibit A, appended to plaintiff's hearing Exhibit 2).

 8. The assignment of October 18, 1976, was modified on October 20, 1976, but only to the extent that equipment operated by crafts other than the operating engineers was ordered painted by the painters (Exhibit B, appended to plaintiff's hearing Exhibit 2).

 9. By written notice dated October 20, 1976, the defendant apprised the International Brotherhood of Painters and Allied Trades of the October 18, 1976 job assignment, which the defendant protested on jurisdictional grounds (defendant's hearing Exhibit 17).

 10. By telegram, dated October 29, 1976, the plaintiff submitted the dispute to the Impartial Jurisdictional Disputes Board for its consideration (Exhibit 4, appended to plaintiff's hearing Exhibit 1).

 11. In a letter of November 1, 1976, to the two international unions involved, the Impartial jurisdictional Disputes Board indicated that it would consider the matter on November 11, 1976, giving the two unions until November 10, 1976, to state their respective positions (Exhibit 5, appended to plaintiff's hearing Exhibit 1).

 12. Also by letter of November 1, 1976, the Board notified the plaintiff of its intention to consider the matter, and directed the plaintiff to proceed in accordance with the original work assignment pending resolution of the matter (Exhibit 6, appended to plaintiff's hearing Exhibit 1).

 13. Following a protest by the painters of the job assignment, a jobsite meeting was held in the latter part of October, 1976, between representatives of the two unions. No resolution of the problem resulted from that meeting.

 14. On November 8, 1976, representatives of the two international unions entered into a written resolution of the dispute, agreeing that the painters should perform all jobsite painting except for touch-up work (Exhibit 7, appended to plaintiff's hearing Exhibit 1).

 15. The plaintiff was directed by the Impartial Jurisdictional Disputes Board in a letter dated November 8, 1976, to proceed under the new agreement whereby all painting except touch-up was to be performed by the painters (Exhibit 8, appended to plaintiff's hearing Exhibit 1).

 16. By letter dated November 15, 1976, the plaintiff notified a representative of the defendant that it was rescinding the assignment of October 18, 1976, with its October 20, 1976 clarification, and was proceeding according to the terms of the November 8, 1976 agreement (Exhibit 9, appended to plaintiff's hearing Exhibit 1).

 17. Sometime during April of 1977, a further dispute arose with regard to the agreement of November 8, 1976, and in particular over the interpretation of the phrase "touch-up work," as that phrase was used in the agreement.

 18. A meeting was held on April 20, 1977, with representatives of the plaintiff, defendant, and operating engineers present to discuss the dispute.

 19. At the April 20, 1977 meeting, a proposal based upon the Webster's New Collegiate Dictionary definition of "touch-up" was put forth, and was assented to by the painters, but not by the ...


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