Appeal from an order of the Southern District of New York, Kevin T. Duffy, Judge, denying preliminary injunctive relief against a union-mandated concerted refusal of employees to perform overtime work in violation of a no-strike clause, which arose out of a grievance subject to compulsory arbitration.
Lumbard, Mansfield and Van Graafeiland, Circuit Judges.
MANSFIELD, Circuit Judge:
The Elevator Manufacturers Association of New York (EMANY) and Otis Elevator Company (Otis) appeal from an order of the Southern District of New York, 534 F. Supp. 265, Kevin T. Duffy, Judge, denying their motion for a preliminary injunction restraining Local 1, International Union of Elevator Constructors (Local 1) and two of its officers (Karl Stork, President, and Thomas Connelly, Business Agent) from engaging in a strike or work stoppage with respect to overtime work in violation of a collective bargaining agreement between them, pending arbitration of an underlying dispute which gave rise to the strike. We reverse and remand for further proceedings.
EMANY, of which Otis is a member, is an association of employers engaged in the business of constructing, repairing and servicing elevators in the New York City metropolitan area. Local 1, a labor organization, is the collective bargaining representative of mechanics and helpers employed by employer-members of EMANY. A collective bargaining agreement between the parties, in effect from July 1, 1981, through June 30, 1984, prohibits strikes or work stoppages by employees and provides for binding arbitration of disputes and grievances with respect to the application and construction of the agreement.*fn1
It is undisputed that the prompt servicing of elevators and escalators in emergency situations, particularly after normal working hours, is important to public safety, health and welfare. Such situations can occur, for instance, when buildings are threatened by fire or smoke, when persons in need of medical assistance are trapped in elevators that will not open, when adequate patient care or surgery is interrupted by an elevator failure, or when an elevator breakdown stops production in a plant. For these reasons members of EMANY contract with their customers to provide emergency service on a 24-hour-a-day basis, 7 days a week. For many years past Otis fulfilled this obligation satisfactorily by making available overtime work to employees who would sign up for emergency overtime. The names of the volunteers were placed on a "night call list" and in response to calls at night or on weekends from customers the employer would allocate emergency service work to them. This system functioned pursuant to Section VII(E), Pars. 1 and 2 of the collective bargaining agreement, which provided:
"1. When an employee is assigned to an emergency callback at any hour of any day other than the single time hours specified under paragraph (C) 1 above, he is to be paid at a rate of one and one-half (1 1/2) times the single time rate for all hours worked and traveled. The Employer shall pay all mileage and out-of-pocket expenses incurred.
"2. It is agreed that, in the mutual interest of the Employer, Employee and the public, the employee has a special obligation to accept assignment to an emergency callback during any hour of any day. It is understood that the obligation on the part of the service men to make overtime callbacks is not intended to impose a mandatory obligation but simply a mutual recognition of responsibility."
In October, 1981, Thomas Connelly, Local 1 Business Agent, complained to Otis that employees on the night call list were not getting enough overtime. Otis informed Connelly that it followed a practice of "screening" after-hours calls from customers, i.e., determining from the customer whether the emergency was of such a nature that it could be serviced during normal working hours of the next regular work day or whether immediate service was desired. In the latter case an employee on the "night call list" would be called, but in the former the service would be deferred until the next business day. Connelly informed Otis that this system was unacceptable to the Union.
A dispute over Otis' rights arose when Otis refused Connelly's request that it change its system. During the course of discussions over the next month Otis contended that it was entitled under the agreement to screen emergency calls. Connelly disagreed, threatening to direct Otis mechanics not to handle any emergency work unless Otis agreed not to screen. Finally, on December 24, 1981, David Dunbar, Local 1 shop steward at Otis' East Orange, New Jersey, office, directed Otis' mechanics not to perform any further emergency work. Connelly allegedly threatened Otis mechanics that if they did perform such work they would be brought up on charges before Local 1. According to Otis, this could result in a fine of $2,000 a day upon any mechanic who disobeyed the order. As a result no Otis employees, despite their having signed up for and performed emergency overtime regularly prior to December 24, 1981, have done such work since that date. On January 5, 1981, Otis requested Local 1 to refer the dispute to the contractual grievance and arbitration procedure under the parties' collective bargaining agreement and to end the work stoppage, which Local 1 refused to do. Thereupon the present action was commenced.
On February 10, 1982, Judge Duffy denied plaintiffs' motion for a preliminary injunction. He recognized that the issue of Otis' right to screen emergency calls was "clearly arbitrable," and that under the Court's decision in Boys Markets Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970), the Norris-LaGuardia Act's prohibition against enjoining strikes did not prohibit a court from enforcing a no-strike clause by injunction where the grievance giving rise to the strike must be arbitrated under the collective bargaining agreement. However, after questioning whether refusal of overtime violated the no-strike clause, he concluded that this case was governed by the Court's decision in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 49 L. Ed. 2d 1022, 96 S. Ct. 3141 (1976), which held that a sympathy strike not involving an underlying arbitrable grievance could not be enjoined despite the existence of a no-strike clause in the collective bargaining agreement between the parties.
A district court's denial of injunctive relief will be reversed only for abuse of discretion or an error of law. Kaynard v. Mego Corp., 633 F.2d 1026, 1030 (2d Cir. 1980); Jack Kahn Music v. Baldwin Piano & Organ, 604 F.2d 755, 758 (2d Cir. 1979). In the present case the controlling facts, except possibly for the existence of irreparable injury, are not in dispute. Moreover, the decision below rested solely on affidavits, and hence does not involve credibility issues, so that we are in as good a position as the district court to rule on the issue. Jack Kahn Music, supra, 604 F.2d at 758; Dopp v. Franklin Nat'l Bank, 461 F.2d 873, 879 (2d Cir. 1972). The principal issue is one of law, i.e., whether this case is governed by the Supreme Court's decision in Boys Markets, supra, or its decision in Buffalo Forge, supra. We believe that it is governed by Boys ...