The opinion of the court was delivered by: WEXLER
This is an action for a stay of arbitration. Both parties have moved for summary judgment.
Petitioner is a corporation engaged in the distribution of housewares. Respondent is a labor organization.
Prior to 1981 petitioner was located at Hicksville, New York. Petitioner's trucking was done by P & Z Transportation Co., Inc., whose drivers were represented by respondent.
Petitioner and P & Z, as joint employers, entered into a collective bargaining agreement with respondent covering the period from December 23, 1980 to December 23, 1983. The agreement had provisions for arbitration.
In 1981 petitioner closed its Hicksville facility and moved to Farmingdale, where petitioner's parent company is located. P & Z went out of business. Some or all of the former P & Z drivers came to work at Farmingdale. Petitioner's trucking at the Farmingdale facility was done by Bay Trucking Co., which had a pre-existing agreement with respondent to which petitioner was not a party.
On February 2, 1983 petitioner terminated its relationship with Bay. Bay then terminated its drivers.
On February 10, 1983 petitioner filed a charge with the N.L.R.B., alaleging that respondent was illegally picketing petitioner with the object of forcing petitioner to cease doing business with any trucking company whose employees were not represented by respondent, in violation of 29 U.S.C. § 158(b)(4)(i)(B). On June 29, 1983 respondent filed a charge with the N.L.R.B., alleging that petitioner and Bay had illegally discharged the drivers because of their membership in respondent, and that Bay and petitioner refused to negotiate with respondent concerning the discharges.
On December 2, 1983 respondent sought arbitration of respondent's dispute with petitioner over the discharge of the drivers, contending that petitioner discharged the drivers in violation of its agreement with respondent. On December 21, 1983 petitioner commenced this action for a stay of arbitration in New York Supreme Court. On December 22, 1983 the New York Supreme Court granted petitioner a temporary restraining order staying arbitration. On January 4, 1984 respondent removed this action to this Court.
On March 30, 1984, following a hearing, Administrative Law Judge Morris of the N.L.R.B. issued a decision on petitioner's charge, in which he found that petitioner and Bay were not joint employers, that the drivers who moved from Hicksville to Farmingdale "worked off the Bay contract" with respondent and were no longer covered by the agreement between petitioner, respondent, and P & Z, and that respondent's picketing of petitioner was therefore illegal. On May 1, 1984 the N.L.R.B. adopted this decision. Also on May 1, 1984 N.L.R.B. Regional Director Kaynard summarily dismissed respondent's charge and refused to file a complaint on respondent's behalf with the N.L.R.B. Kaynard found that there was no evidence that petitioner and Bay were joint employers; that the agreement between petitioner, respondent, and P & Z was abrogated in 1981 with the acquiescence of respondent; that the drivers who moved from Hicksville to Farmingdale were covered by the contract between respondent and Bay, and that respondent therefore had no claim against petitioner for discriminatory discharge. Respondent did not appeal this decision to the N.L.R.B. General Counsel.
This Court has jurisdiction over the subject matter of this action, involving the application of 29 U.S.C. § 185, pursuant to 28 U.S.C. § 1331. See Rochdale Village, Inc. v. Public ...