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IN RE OLD COUNTRY IRON WORKS

December 2, 1993

In the Matter of the Application of OLD COUNTRY IRON WORKS, INC., Petitioner, FOR AN ORDER PURSUANT TO ARTICLE 75 CPLR STAYING ARBITRATION
v.
IRON WORKERS LOCALS 40, 361 & 417 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS UNION SECURITY FUNDS AND IRON WORKERS LOCAL UNION 361, Respondents.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This labor-management dispute originated as a controversy over employer payments allegedly due to a collectively bargained employee benefit fund. The respondent Local 361 invoked arbitration before a single umpire selected by name in the collective bargaining agreement signed by employer petitioner Old Country Iron Works, Inc. ("Old Country"). Petitioner sued in state court to stay arbitration on the ground that it had no agreement with Local 361, but rather only with respondent Local 40. *fn1" Respondents thereafter removed the case to this court under 28 USC 1441.

 Old Country has moved to remand the case to state court. Respondents have cross-moved for summary judgment dismissing Old Country's petition on the merits and compelling arbitration. Old Country's motion to remand is denied; respondents motions are denied without prejudice to renewal if appropriate, upon a fuller record.

 II

 Old Country signed a collective bargaining agreement with "Local Unions No. 40 and 361" which provides in part as follows:

 
Section 40. SETTLEMENT OF DISPUTES
 
(1) There shall be no strikes or lockouts upon the work of the Employer, nor shall the members of the Union collectively or in concert leave the work of the Employer, nor shall any sympathetic strike against the Employer be entered into by the Union.
 
Any grievance, complaint, or dispute between the Union and the Employer arising out of this Agreement or as to the meaning, interpretation, application or alleged violation of any provision . . . except as provided in subsection (2) . . . shall be handled in the first instance by an officer of the Union . . . and . . the Employer . . . .
 
b. If the Representatives of the Union and the Employer fail to reach agreement . . . the grievance, complaint, or dispute shall be submitted for final and binding determination to Hon. Walter L. Eisenberg, as Impartial Arbitrator . . . .
 
* * *
 
(2) The foregoing provisions for arbitration are not intended and shall not be construed as in any way qualifying or making subject to change any provisions of this Agreement including, but not limited to . . . jurisdictional disputes.

 Old Country also signed a subordinate agreement, circling a reference to Local 40 but not deleting that to Local 361. Old Country contends that its work is ...


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