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November 6, 1992

ABRAHAM & STRAUS, INC., Plaintiff,
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 30, AFL-CIO ("Local 30"); JOSEPH P. FERGUSON, individually and as President of Local 30; MICHAEL J. HACH, individually and as Business Manager of Local 30; LIAM TREACY, individually and as Treasurer of Local 30; JOHN T. AHERN, individually and as Business Representative of Local 30; and all others in active concert or participation with them, Defendants.


The opinion of the court was delivered by: THOMAS C. PLATT

Platt, Chief Judge

 Abraham & Strains ("A&S") has moved this Court for a preliminary injunction ordering the defendants and all those in active concert with them to refrain from picketing or engaging in any other job action over the issue of staffing of engineers and mechanics at A&S' new store in Roosevelt Field, New York, on the ground that the conduct violates the terms of the parties' collective bargaining agreement. A&S' claim arises under Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. ยง 185(a).


 Local 30 and A&S are parties to a three-year collective bargaining agreement that covers engineers and maintenance mechanics in A&S stores in Manhattan, Hempstead, Sunrise, Huntington, Manhasset, Smith Haven, Queens Center, Carle Place, and Valley Stream. In 1991, the parties amended the agreement to provide for the opening of new stores:

 If it is established that the Union represents all Maintenance employees in a new store opened by the Company:

 a) A minimum of one (1) Engineer will be assigned to the store if it contains under 200,000 square feet of selling space, and

 b) A minimum of two (2) Engineers will be assigned to the store if it contains 200,000 square feet, or greater, of selling space.

 (Letter of Understanding, Plaintiff's Application for a Temporary Restraining Order and Preliminary Injunction, Exhib. A). In addition, the collective bargaining agreement contains a broad no-strike clause that prohibits all strikes, work stoppages, and picketing during the term of the agreement *fn1" and an arbitration clause that mandates arbitration as the exclusive means of resolving any dispute arising between A&S and the union in connection with the agreement. *fn2"

 On September 23, 1992, Local 30 Business Representative John Ahern proposed that A&S employ engineers represented by Local 30 at a new A&S store in Roosevelt Field, scheduled to open for business on October 10, 1992. In a September 30, 1992, meeting, Ahern repeated the proposal, threatening A&S with a job action unless it agreed to transfer engineers from the soon-to-be closed Hempstead store to Roosevelt Field. It is defendants' uncontested contention that, during the course of this meeting, A&S agreed to recognize Local 30 at the Roosevelt Field store, but would only assign one engineer to the location. (Defendants' Opposition to Plaintiff's Application, Aff. of John T. Ahern at P 8). At its conclusion, Ahern presented A&S Operating Vice President of Human Resources Harold Salisbury with a letter dated September 29, 1992, stating the union's belief that the collective bargaining agreement governed the staffing issue and reiterating the union's willingness to take direct action: "Local 30 will take whatever actions necessary to protect our jurisdiction, including a picket line and strike." (Plaintiff's Application, Exhib. B).

 The following day, A&S advised the union by letter that any strike over staffing would be illegal and that if Local 30 believed that A&S had incorrectly interpreted the agreement, it should invoke arbitration. (Plaintiff's Application, Exhib. C). On October 2, 1992, the union presented A&S with a Notice of Intention to Arbitrate the staffing issue, noting that it believed that the refusal to staff engineers constituted a violation of the collective bargaining agreement. (Plaintiff's Application, Exhib. D).

 On October 12, 1992, Local 30 began picketing at the Roosevelt Field location. (Plaintiff's Application, Aff. of Harold Salisbury at PP 13-15). Picket lines were established at the employee and customer entrances and at a third entrance located inside the shopping mall. Unwilling to cross the picket lines, construction contractors who were working to ready the store for its grand opening engaged in a day-long work stoppage. *fn3" (Tr. at 45-46). The picketing continued for the next three days, whereupon A&S offered to proceed to expedited arbitration in exchange for a cessation of picketing. (Plaintiff's Application, Exhib. F). Local 30 never responded to the offer and continued picketing, at one point even disrupting a children's talent show staged by A&S in celebration of the store's grand opening. (Salisbury Aff. at P 18).

 On October 16, 1992, pursuant to an application by A&S, Judge John Bartels issued a temporary restraining order, enjoining the defendants from picketing or engaging in any other interference with the operations of A&S over any dispute that would be arbitrable under the collective bargaining agreement. On October 19, 1992, this Court held a hearing on the issue of a preliminary injunction.

 Preliminary Injunction

 Notwithstanding the Norris-LaGuardia Act's general policy of judicial nonintervention in labor disputes, the Supreme Court has held that Section 301 of the Labor Management Relations Act empowers a federal district court to enjoin a strike over a dispute subject to arbitration under the terms of a collective bargaining agreement. See Boys Markets, Inc. Retail Clerks Union, Local 770, 398 U.S. 235, 253, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970); see also Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 407, 49 L. Ed. 2d 1022, 96 S. Ct. 3141 (1976) (allowing unions to ...

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