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April 20, 1984

In the Matter of the Application to Confirm an Arbitration Award under Article 75, CPLR by: LOCAL 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Petitioner

The opinion of the court was delivered by: SAND



 Petitioner, Local 32B-32J, Service Employees International Union, AFL-CIO ("Union"), seeks to confirm an arbitration award, pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9. Respondent, Bradley Cleaning Contractors, Inc. ("Bradley") seeks to vacate or remand the award or to stay enforcement of the award pending the resolution of matters currently before the NLRB. For the following reasons, we confirm the Arbitrator's award, but stay its enforcement ten (10) days to provide Bradley an apportunity to post sufficient collateral to secure payment of the award. If the Court is satisfied with the collateral arrangement, enforcement of the award will be stayed pending the NLRB's determination.

 Recognizing the broad mandate of the NLRB with respect to the composition of bargaining units, the Court and litigants have sought the Board's input in these proceedings. The Board currently has sub judice a unit clarification petition brought on by Bradley in December, 1982. Hearings on these issues consumed 19 days and concluded in May, 1983. Post-hearing briefs were filed on June 27, 1983. Bradley strenuously argues that the Union's application to this Court should be stayed because

 "(1) the Board's decision on the appropriate bargaining unit necessarily will be determinative of the contract's scope as decided by Arbitrator Glinsman, and (2) the Board's decision will clearly take precedence over the arbitrator's ruling."

 See generally King Coal Company Inc. v. United Mine Workers, 530 F. Supp. 517 (N.D. Ala. 1982). Counsel for the Union represented at oral argument that Bradley had petitioned the Board ex parte to intervene in these proceedings. This request was declined. See letter of Aileen Armstrong, Assistant General Counsel, NLRB (March 20, 1984) (confirming that "the Board would not be taking any position with respect to this matter"). The Court, after oral argument, also invited "an expression by the Board, if it wishes to do so, with respect to the following matters:

 "1. Whether in the particular circumstances of this case, the Board has any view concerning the necessity or appropriateness of a stay pending the Board's determination in the unit clarification matter;

 "2. Whether the Board has any view concerning the Union's position that the Board's determination of the unit clarification issue would have prospective impact but would not be determinative of the issues decided by arbitrator Glinsman;

 "3. Any available information as to when the Board's determination might be forthcoming."

 We further stated,

 "Unless we are advised to the contrary on or before April 15th, we will proceed on the assumption that the Board does not wish to take any position with respect to this matter."

 See Letter to Regional Director (March 16, 1984).

 Under these circumstances, we no longer believe it appropriate to exercise our discretion to stay decision pending resolution of the unit clarification matter. We note that in instances where district courts have stayed decision, the NLRB has often appeared as intervenor. See International Brotherhood of Boilermakers v. Combustion Engineering, Inc., 337 F. Supp. 1349 (D.Conn. 1971); see also Central Motor Express, Inc., v. General Drivers, 407 F. Supp. 1217, 1222 (W.D.Ky. 1975). This is patently not the case here. While we agree with Bradley that "deference to the Board's primary jurisdiction should be exercised by the Court," Reply Memorandum of Law, p.4, we do not believe we should be deferrential to the point of jeopardizing the Union's ability to ever collect on a judgment. We appreciate Bradley's precarious financial situation and its claim that the Arbitrator's award may force it into bankruptcy but we are no less aware of the hardships the Union might suffer were we to continue to reserve decision. We thus believe the time is ripe to address the merits of the challenge to the Arbitrator's award.

 An Arbitrator's "award is legitimate only so long as it draws its essence from the collective bargaining agreement." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). The arbitration proceedings must have been fair, and the results "not repugnant" to the National Labor Relations Act. See Carey ...

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