The opinion of the court was delivered by: MINER
MEMORANDUM-DECISION and ORDER
This action involves a dispute concerning the enforceability of a collective bargaining agreement with respect to the hours to be worked per day and the compensation to be received for performing overtime work. Jurisdiction is alleged to exist under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185,
Section 102 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 412,
and the doctrine of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Libutti v. Dibrizzi, 343 F.2d 460 (2d Cir.1965). Before this Court is plaintiffs' application for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a).
The United Brotherhood of Carpenters and Joiners of America is an international labor union organized in the form of an unincorporated association. It has as its apex the international body, or general office, with its headquarters in Washington, D.C. The general office has the power to establish and charter subordinate bodies. State and provincial councils, district councils and local and auxiliary unions thus are created by, and derive their powers from, the international body. Each subordinate level of the United Brotherhood is governed by its individual by-laws and trade rules, which must conform with the constitution and laws of the international body. The Brotherhood is represented in the Albany Capital District by the Albany, Schenectady, Troy and Vicinity District Council. The membership of the District Council is comprised of representatives of Albany Local Union # 117 and three other local unions.
On or about July 1, 1980, the negotiating committee of the District Council entered into a collective bargaining agreement with the Eastern Contractors Association, a not-for-profit New York corporation formed for the purpose of representing area contractors in labor matters. This agreement provided, inter alia, that the members of Local Union # 117 and the members of the other three local unions affected by the contract would work seven hours per day or a period of thirty-five hours per week, and that work performed beyond these hours would be compensated at double the straight-time rate. Plaintiffs allege that this agreement was presented to Local Union # 117 on July 14, 1980, and further allege that, pursuant to Section 42(m) of the Brotherhood's Constitution, the By-laws of the District Council and the past practices of the District Council, Local Union # 117 approved the agreement by vote of the members of the Local affected by the Agreement.
Prior to the June 30, 1982 expiration date of the July 1, 1980 agreement, the negotiating committee of the District Council commenced negotiations with the Contractors Association for the purpose of establishing a new collective bargaining agreement. The negotiating committee consisted of defendant James Hicks, Sr., President of the District Council and then business agent for Local Union # 117, defendant Edward J. Gardner, Secretary-Treasurer of the District Council, and others. During the negotiations, Local Union # 117 held regular elections and Hicks lost his position as the local's business agent.
Plaintiffs allege that the bargaining agreement, as negotiated by the District Council, never was submitted to union members for ratification and that they learned that an accord had been reached only through a local newspaper story. Under the terms of the new bargaining agreement, members are required to work forty hours per week, or eight hours per day, at a higher per hour wage than the old agreement, with their overtime compensation being reduced from double the straight time rate to one and one-half times the straight time rate.
This action was commenced by plaintiffs on July 23, 1982, in Albany County Supreme Court, seeking a declaratory judgment that the Union's constitution and by-laws required ratification before the proposed collective bargaining agreement could take effect, as well as an injunction restraining enforcement of the terms of that agreement pending ratification by the union members. On July 26, 1982, Justice Edward S. Conway ordered the defendants to show cause why a preliminary injunction should not be granted.
On that same date, the defendants removed this action to this Court, pursuant to 28 U.S.C. § 1446, claiming that because plaintiffs sought to nullify a collective bargaining agreement, this Court has jurisdiction under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. On August 9, 1982, plaintiffs filed an amended complaint containing claims under section 301 of the LMRA and section 101(a)(1) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(1).
Plaintiffs, on September 3, 1982, moved for a preliminary injunction. Defendants opposed that application on the ground that injunctive relief here is proscribed by the Norris-LaGuardia Act and cross-moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
This Court denied defendants' motion to dismiss on that day and held an evidentiary hearing on plaintiffs' application for a preliminary injunction on September 8, 1982.
In this Court a party seeking a preliminary injunction must make a clear showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir.1982); Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981). A preliminary injunction is an "extraordinary and drastic remedy which should not be routinely granted" except upon a clear showing that the movant has carried its heavy burden. Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir.1981); Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir.1973). This Court believes that plaintiffs' application for a preliminary injunction should be denied, since, ...