The opinion of the court was delivered by: LASKER
This action arises from a dispute between two unions as to which union's members are entitled to perform the fabrication of plastic inspection boxes, used to ensure against leaks in piping. The employer, Shaker, Travis & Quinn, Inc. ("Shaker") has stated its intention to assign the work to members of Local 38 Sheet Metal Workers International Association ("Local 38"). Local 201, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry ("Local 201") alleges that its contract with Shaker provides that the fabrication of the boxes is to be assigned to Local 201 members, and that the dispute concerning the work assignment should be submitted to arbitration.
Shaker and Local 38 have filed unfair labor practice charges against Local 201 with the National Labor Relations Board ("the Board"), Albany Sub-Regional Office, Third Region. A Notice of Hearing has been issued on the charges, pursuant to Section 10(k), 29 U.S.C. § 160(k), and a hearing date has been set for January 25, 1983 "to determine the dispute out of which the unfair labor practice shall have arisen." 29 U.S.C. § 160(k).
Local 201 moves for a preliminary injunction to enjoin Shaker from assigning the disputed work to members of Local 38 pending arbitration. Local 201 also seeks an injunction ordering Shaker and Local 38 to join Local 201 in tripartite arbitration in order to resolve the assignment dispute. Shaker moves to stay arbitration pending the Board's determination on the 10(k) proceeding. Finally, Local 38 moves to dismiss the action as against it for lack of subject matter jurisdiction.
1. Shaker's Motion to Stay Arbitration
Shaker argues that the issue to be submitted to the arbitrators is precisely the same as the issue to be presented to the Board and that to allow the arbitration to proceed will result in a waste of resources because even if the arbitrators were to reach a different result than the Board, they would be bound by the Board's ruling. Local 201 answers that submission of the dispute to arbitration is in accord with the well-recognized national policy favoring arbitration of labor disputes. Although the Board has authority to reverse an arbitrator's decision, it may choose to defer to his judgment, and, should that occur, the efforts spent in arbitration would not be wasted. Moreover, Local 201 argues that the nature of the proceedings before the respective tribunals will be different in that the Board is not bound by the contracts among the parties, whereas an arbitrator is.
The right to proceed with arbitration despite the pendency of a Board hearing was established in Local 771, I.A.T.S.E. v. RKO General, Inc., 546 F.2d 1107 (2d Cir. 1971). In Local 771, a union failed to demand arbitration while a Board determination was pending. After the Board's ruling, which omitted decision on an issue of significance to the union, the union filed a demand for arbitration. The Court of Appeals upheld the arbitrator's determination that the union's demand was untimely; stating that, "The NLRB's assumption of jurisdiction over the dispute . . . did not provide a legal excuse for Local 771's failure to demand arbitration." 546 F.2d at 1114. The court stated that the union should have allowed the arbitrator to decide "whether the dispute must be resolved under the terms of the contract or deferred until termination of the other pending proceedings." Id. It is illogical to suggest, as Shaker does, that a union can be held time-barred for failure to demand arbitration, as in Local 771, and that nevertheless the court should stay the arbitration. See also A. Seltzer & Co. v. Livingston, 253 F. Supp. 509, 515 (S.D.N.Y.), aff'd, 361 F.2d 218 (2d Cir. 1966). This ruling does not, of course, prevent Shaker from applying to the arbitrator for a stay.
Shaker's reliance on Moshlak v. American Broadcasting Co., 423 F. Supp. 774 (S.D.N.Y. 1976), is misplaced. In Moshlak, the question presented was whether this court should proceed to resolve a dispute which was also pending before the Board, and we held that it should not. However, there is no preference in law for judicial resolution of labor disputes. By contrast, in the instant action, the question is whether to preclude an arbitrator from deciding a matter. The national policy favoring resolution of labor disputes by arbitration places the instant action on an entirely different footing than Moshlak. Accordingly, Shaker's motion to stay arbitration is denied.
2. Local 201's Motion to Enjoin Shaker from Assigning the Work Pending Arbitration.
Local 201 contends that it will suffer irreparable injury in the following respects unless Shaker is enjoined from assigning the work to Local 38 during the pendency of the arbitration. First, it will suffer a loss of prestige in the labor community if it appears to the membership of the union that Local 201 cannot enforce its contract. Second, the employer's expressed preference is given great weight by the Board in its ultimate decision on a work assignment dispute, and if Shaker is allowed to express its preference for Local 38 by assigning the work to it prior to the Board's determination, Local 201 will virtually be precluded from prevailing before the Board. Third, Local 201 argues that money damages would be an inadequate remedy because it will be impossible to determine which union members would have gotten the work had the work been assigned to Local 201.
Shaker replies that money damages are available for a union's loss of prestige and that money damages for the work assignment claim, if awarded, would be easily calculable. Furthermore, Shaker argues that Local 201's second contention improperly asks the Court to assume that the Board will give undue weight to the employer's preference. Finally, Shaker argues that regardless of the possible injury to Local 201, the balance of hardships tips decidedly towards Shaker because Local 201 members are not qualified to fabricate the boxes, and, if Shaker is compelled to assign the work to them, it will risk alienating its largest employer, International Business Machines ("IBM"), for whom the work is to be performed. (Affidavit of Robert M. Saltzstein, filed January 12, 1983).
Preliminary injunctive relief requires a 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. Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979).
The Second Circuit has recently considered the issue of irreparable injury in the context of a work assignment dispute. In Local 553, Transport Workers Union v. Eastern Air Lines, Inc., 695 F.2d 668 (2d Cir. 1982), the court found that irreparable injury was present because of the special difficulty in that case in determining the identity of the union members to whom money damages would be due if the union was ultimately to prevail on the merits. However, the court noted
"in the more typical labor disputes in which a company has eliminated a number of positions, there is no similar irreparable harm to justify a preliminary injunction because the financial injury will fall directly on an easily ...