The opinion of the court was delivered by: SWEET
Both the plaintiff Vito J. Pitta, as President of New York Hotel and Motel Trades Council, AFL-CIO ("the Council) and defendant Hotel Association of New York City, Inc. ("the Association) have moved summary judgment with respect to the June 25, 1986 arbitration award ("the Award") issued by defendant Millard Cass ("Cass), the Impartial Chairman at the Hotel Industry of New York City. The Council seeks to set the Award aside and to compel the Association to enter into the selection process for a new chairman. The Association seeks to confirm and enforce the Award. On the facts and conclusions set forth below, the Award will be vacated and the Association directed to participate in the process of selecting a new chairman.
The Council is a labor organization comprising nine affiliate unions, each of whom have members employed by the Association's member hotels. The Council's offices are located at 707 Eighth Avenue, New York, New York. The Association is a multi-employer association comprising approximately one hundred hotels located in New York City. The Association's offices are located at 40 West 38th. Street, New York, New York. Cassis the Impartial Chairman for the Hotel Industry of New York City. The offices of the Impartial Chairman are located at 250 West 57th Street, New York, New York.
The Council initiated this action on June 9, 1986, seeking relief under Section 301 of the Labor Management Relations Act ("LMRA") and the Federal Arbitration Act, Sections 4 and 5. Simultaneously with the filing of this action, the Council brought an order to show cause seeking a temporary restraining order and preliminary injunction to bar Cass from serving as the Impartial Chairman. Expedited discovery was held, and a hearing on the motion was set for June 20, 1986.
On that day, affidavits were submitted, testimony was taken of Vito J. Pitta, President of the Council, and Albert Formicola, President of the Association, and exhibits were introduced. At the conclusion of the hearing, the motion for preliminary injunctive relief was denied on the grounds that the Council failed to establish irreparable harm, one element of the two-pronged test for injunctive relief in this Circuit. See Standard & Poor's Corp. v. Commodity Exchange, 683 F.2d 704 (2d Cir. 1982); Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). An oral opinion was rendered concluding that the Council had the right to terminate Cass' term based upon the agreements between the parties but that such right came into being sixty days after notice was given, that notice date having been found to be June 2, 1986.
On June 25, 1986 after a hearing before him Cass issued an Award, concluding, contrary to the conclusions of the court reached on June 20, 1986 that his term would not expire on August 2, 1986. Both the Council and the Association have moved with respect to this Award seeking summary judgment, on the one hand to vacate the Award, and on the other, to enforce it.
The instant motion was heard on July 11, 1986, and affidavits, exhibits, memoranda, and Local Rule 3(g) statements were submitted. No further testimony was offered. Subsequently, by conference on August 6, 1986, the parties confirmed the continuation of the dispute, sought an early resolution of their motions and reached an informal agreement as to the conduct of the grievance procedure until such resolution without prejudice to their perceived rights.
It is upon all these prior proceedings that the following findings and conclusions are reached.
The Council represents over 25,000 employees of the approximately 100 hotels which comprise the Association. The hotel industry is a significant economic presence, and makes an important and vital contribution to the functioning of New York City and the metropolitan region. A mutually satisfactory relationship between these parties is an integral part of the functioning of the industry.
At least by August, 1967 the parties had agreed to employ a Impartial Chairman with a fixed term to arbitrate disputes arising from the relationship between these entities. These agreements continued in varying up to 1981. As of March 17, 1981 the parties successfully negotiated a collective bargaining agreement of some forty-two pages (the "Agreement"). In addition, the Agreement extended the terms of their 1978 collective bargaining agreement, and the term of the Agreement was stated to extend to May 31, 1985. On June 26, 1985 the parties agreed in a renewal agreement (the "Renewal Agreement") to extend the terms of the Agreement to June 26, 1980.
Paragraph 15 of the Agreement established the office of the Impartial Chairman and its procedures, and provided for the compensation of the Impartial Chairman to be shared equally. The Agreement and provided as follows:
Should the Impartial Chairman resign, refuse to act, or be incapable of acting, or should the office become vacant for any reason, the ASSOCIATION and the UNION shall immediately and within five (5) days after the occurrence of such vacancy, designate another person to act as such Impartial Chairman. If they fail to agree, the Chief Judge of the Court of Appeals of the State of New York shall, ...