The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Petitioner, Local One, Amalgamated Lithographers of America, ("Local One"), affiliated with International Typographical Union, AFL-CIO, brings this action against respondent, Stearns & Beale, Inc. ("S&B"), seeking to confirm an arbitration award. Petitioner now moves pursuant to Fed. R. Civ. P. 56 for summary judgment. For the reasons set forth below, petitioner's motion is granted.
Local One is a labor organization which is the certified collective bargaining representative for all of the lithographic production employees of S&B, an employer within the meaning of the National Labor Relations Act and a member of the Metropolitan Lithographers Association (the "MLA"). S&B is bound by two collective bargaining agreements (collectively referred to as the "Agreement") between Local One and the MLA which cover lithographic production employees of members of the MLA for the period from July 1, 1982 through June 30, 1987. Section 40 of the Agreement provides that any disputes arising under the Agreement "shall be submitted to a Joint Committee of [Local One] and the [MLA] ... [and] [i]f a decision by a majority of the Joint Committee is reached this shall be final and binding on the parties involved."
On June 3, 1983, Local One filed a grievance pursuant to section 40 of the Agreement alleging that S&B violated section 3(a) of the Agreement which provides that "[t]he Employers recognize [Local One] as the exclusive collective bargaining agent for all of the lithographic ... production employees in the plants or departments of the employees within [Local One's] territorial jurisdiction." Local One essentially claimed that the four lithographic production employees of AAA International Printing Co., Inc. ("AAA") were working for S&B and, because these employees were not being covered by the Agreement, section 3(a) of the Agreement was being violated by S&B.
On June 23, 1983, the Joint Committee met and, after hearing evidence, ruled that AAA and S&B were actually the same employers and that S&B must cover the AAA lithographic production employees under the terms of the Agreement. Subsequently, however, following a unit clarification hearing which was requested by S&B, the Regional Director of the National Labor Relations Board ("NLRB") ruled that the AAA lithographic production employees should not be considered an accretion to S&B's unit.
As a result of the Regional Director's decision, Local One requested the Joint Committee to reconsider its prior determination. After holding another hearing, the Joint Committee issued a revised decision. The Joint Committee ruled that, even given the Regional Director's decision that the AAA lithographic production employees were not part of S&B's collective bargaining unit, section 3(a) of the Agreement was still violated. However, instead of requiring S&B to cover the AAA lithographic production employees under the Agreement, the Joint Committee amended its prior decision and ruled that S&B "must immediately cease assigning lithographic production work to employees who are not covered by the collective bargaining agreement." Frank Casino Affidavit, Exh. E, 6-7 (Amended Decision of Joint Committee of Local One, Amalgamated Lithographers of America and Metropolitan Lithographers Association ("Amended Decision")).
S&B then filed an unfair labor practice charge against the MLA and Local One claiming the National Labor Relations Act was violated by the Joint Committee's Amended Decision. This charge was dismissed by the Regional Director of the NLRB, which dismissal was affirmed by the General Counsel of the NLRB.
Local One brought this action to confirm the arbitration award of the Joint Committee
and now moves pursuant to Fed. R. Civ. P. 56 for summary judgment.
A summary judgment motion will be granted if there exists no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In the instant case, no material questions of fact exist and petitioner is entitled to summary judgment as a matter of law.
Respondent first argues that paragraph 40(a)(3) of the Agreement requires petitioner to submit any issue of non-compliance with the Joint Committee's award to arbitration before seeking redress from the court. Paragraph 40(a)(3) of the Agreement provides in pertinent part:
If a decision by a majority of the Joint Committee is reached this shall be final and binding on the parties involved; if the decision is not complied with immediately the matter of compliance only may be submitted for arbitration to an arbitrator selected unanimously by the Joint Committee, and if no unanimous agreement, to the American Arbitration Association for arbitration under their rules, and if the arbitrator finds non-compliance he shall be required to render an award enforcing the decision of the Joint Committee.
Respondent seeks to have the word "may" interpreted to mean "must" in the phrase "if the decision [of the Joint Committee] is not complied with immediately the matter of compliance only may be submitted for arbitration." In support of this interpretation, respondent cites Local 771, I.A.T.S.E., AFL-CIO v. RKO General, Inc., 546 F.2d 1107 (2d Cir. 1977). However, RKO General is distinguishable from the present case.
In RKO General a dispute arose between a union and an employer and the union failed to demand arbitration within 90 days as was required by the collective bargaining agreement. When the union eventually did file its demand for arbitration, the arbitrator ruled that the demand was time-barred and that the dispute was therefore non-arbitrable. The Second Circuit refused to upset the arbitrator's finding. The issue next arose whether arbitration was the exclusive remedy available to the union. Even though the collective bargaining agreement provided, inter alia, that "[t]he parties may submit to arbitration," the court ruled that "[n]either the word 'may' nor any other language used in the Agreement implies that the parties had the option of invoking some remedy other than arbitration The sole option an aggrieved party retained through use of the word 'may' was to abandon its claim." RKO General, ...