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MENORAH HOME & HOSP. FOR THE AGED & INFIRM

October 3, 1983

MENORAH HOME AND HOSPITAL FOR THE AGED AND INFIRM, INC., and MENORAH NURSING HOME, INC., Petitioners, against LOCAL 144, HOTEL, HOSPITAL, NURSING HOME & ALLIED HEALTH SERVICES UNION, AFL-CIO, Respondent.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 Petitioners, Menorah Home and Hospital for the Aged and Infirm, Inc. (the "Home") and Menorah Nursing Home, Inc. ("M.N.H."), bring this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. They seek to permanently stay an arbitration proceeding. Respondent, Local 144, Hotel, Hospital, Nursing Home & Allied Health Services Union, AFL-CIO ("Local 144" or the "Union"), has filed a cross-motion to compel arbitration under 9 U.S.C. § 4. While petitioners' motion for a stay comes as a request for a preliminary injunction, the parties have agreed to consolidate the hearing on the preliminary injunction with a hearing on the merits. See Fed. R. Civ. P. 65(a)(2). In addition, the parties have stipulated to a resolution of this matter without sworn testimony.

 FACTS

 The Home and M.N.H., two separate not-for-profit corporations, are nursing homes located in Brooklyn, New York. They provide health and residential care for the aged and infirm. The Home was in existence many years before M.N.H., which opened on June 28, 1982, and reached full operation by December, 1982. The employees of M.N.H. are a combination of persons newly hired and transferees from the Home.

 On June 30, 1982, the collective bargaining agreement between Local 144 and the Home expired. While that agreement was being negotiated, discussions were also going on for the initial collective bargaining agreement between Local 144 and M.N.H.

 The negotiations proceeded on two levels. First, since Menorah is a member, along with several other hospitals, of the multi-employer League of Voluntary Hospitals (the "League"), "general" issues that were common to all the hospitals comprised part of the multi-employer negotiations between the League (acting on behalf of Menorah) and Local 144. Second, Menorah and Local 144 negotiated other "local" issues that were peculiar to Local 144 and the two facilities operated by Menorah.

 On December 10, 1982, the League and Local 144 reached an agreement on the "general" issues, and they embodied it in a stipulation. Petition to Stay Arbitration, Exhibit D. The stipulation provides, inter alia, that "[t]he collective bargaining agreements between Local 144 and the League members covered by this agreement are extended are renewed for the period up through November 30, 1984 with the modification hereinafter set forth." This language, then, revived the general collective bargaining agreement that had expired on June 30, 1982. The stipulation contains the following language:

 Local and specialty issues taken up by the Union and the respective members of the League during the course of the negotiations leading up to this Agreement but not resolved, shall continue to be taken up by the respective Union comittees and League members for a period of 45 days from the date hereof. If not resolved within such period, these issues shall not be subject to grievance and arbitration procedures, but the Union shall have the right to strike any League member with which a dispute remains within a reasonable period of time (not to exceed 45 days), on such notice as is required by law.

 Petition to Stay Arbitration, Exhibit D, para. 8.

 On December 29, 1982, Local 144 and the petitioners reached a tentative agreement on various "local" issues. In addition to providing that the new collective bargaining agreement (as extended and modified by the December 10, 1982 stipulation) would cover both the Home and M.N.H., the draft of the December 29, 1982 agreement on "local" issues provided as follows:

 Separate seniority lists shall be maintained for each department at each location. In the event that the employee is transferred from the 871 Bushwick Avenue facility to the Oriental Blvd. facility or vice versa, said employee shall carry with him his seniority to the new location. Regardless of the above, if an employee is transferred from one location to the other at the request of the employer, said employee shall have the right to transfer back and bump employees in the original situs of his employment where he is subject to a lay-off at his new facility.

 Petition to Stay Arbitration, Exhibit E.

 On January 10, 1983, Menorah's attorney, Richard A. Wilsker, sent to Frank Russo, Vice-President of Local 144, an unexecuted draft of the December 29, 1982 tentative agreement on "local" issues. Russo, however, refused to execute the agreement and, as a result, Menorah appealed to the National Labor Relations Board ("NLRB"), charging that the Union had violated Section 8 of the National Labor Relations Act.Case No. 29-CB-5329. Specifically, Menorah charged that the Union unlawfully refused to execute the stipulation of settlement of "Local Issues" under the Master Agreement between the Union and the League. Finding that Menorah had failed to inform the Union of impending layoffs until after the parties had reached the oral agreement regarding separate seniority lists, the Regional Director of the NLRB ruled that the Union's conduct in refusing to execute the agreement on local issues was not unlawful. Letter of Samuel M. Kaynard, Regional Director, NLRB, at p. 2 (August 4, 1983).

 The "layoffs" referred to by the Regional Director were occasioned by a 50% reduction in patient occupancy at the Home. As previously mentioned, when Russo learned of this substantial layoff, herefused to execute the Agreement on Local Issues which would have established separate seniority lists for Menorah's two facilities. Instead, Russo sought to continue negotiations on the issue of local seniority arrangements. The Regional Director of the NLRB, however, concluded that Menorah would not negotiate further and he indicated that the Union should therefore seek arbitration of this matter.

 The Union sought arbitration on the separate issues (1) whether the layoffs at the Home were improper, and (2) whether petitioners were obligated to lay off part-time ...


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