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February 8, 1995


Peter K. Leisure, U.S.D.J.

The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 Petitioner Active Glass Corp. ("Active") seeks a preliminary injunction to prevent a labor arbitration demanded by respondents Iron Union and the Iron Funds. *fn1" Active also seeks an order compelling Iron Union and the Iron Funds to participate in a multiparty arbitration along with the other named respondents: Glaziers Union, the Glaziers Funds, Carpenters Union, and the Carpenters Funds.

 Iron Union and the Iron Funds cross-move for summary judgment to dismiss Active's petition and to compel Active to arbitrate their underlying grievance. In two separate motions, Carpenters Union and the Carpenters Funds move for summary judgment, as do Glaziers Union and the Glaziers Funds. Both seek dismissal of Active's petition, in its entirety, and also seek a denial of Iron Union's motion to compel arbitration with Active.

 For the reasons stated below, Active's motion is denied; Iron's motion is granted; and Glaziers' motion and Carpenters' motion are granted in part and denied in part.


 Active is a contractor in the building and construction industry in and around New York City. Petitioner's Memorandum of Law in Support of its Motion for a Preliminary Injunction and in Opposition to Iron Workers Union's and Iron Workers Funds' Motion for Summary Judgment to Compel their Noticed Arbitration ("Active mem1") *fn2" at 1. Active and Iron Union were parties to a collective bargaining agreement (the "CBA") as well as a short term trust agreement which obligates the employer to make contributions to employee benefit funds at the rates prescribed in the CBA. *fn3" Memorandum of Law in Opposition to Petitioner's Motion for a Preliminary Injunction and in Support of Respondents', Local 580 and Local 580 Funds, Cross-Motion for Summary Judgment to Compel Arbitration ("Iron mem1") at 5. On or about January 19, 1993, an audit of Active was completed by the trustee's auditor, and Iron alleges that the auditor found, inter alia, that the Iron Funds were underpaid based on actual hours worked for Active by Iron Union. Id. Iron also asserts that the auditor found that Active owed additional contributions to the Iron Funds based on its failure to hire Iron Union members, in violation of the CBA. Id.

 On or about July 13, 1993, after Active refused to make payment to the Iron Funds based on the findings of the audit, Iron served on Active a notice of intention to arbitrate the dispute. Id. On or about August 4, 1993, Active filed with this Court the instant petition, which seeks both an order requiring multiparty arbitration and a preliminary injunction preventing the labor arbitration demanded by Iron. *fn4" Id. In response, on or about August 20, 1993, Iron cross-moved for summary judgment dismissing Active's petition and seeking to compel Active to arbitrate.

 Active alleges that the money sought by Iron has already been paid to the Carpenters Funds and the Glaziers Funds for work done by employees of Active. Active mem1 at 4. These employees were represented by Carpenters Union and Glaziers Union. Id. Active contends that the money was paid to those funds on the basis of representations made by Carpenters Union and Glaziers Union that the work involved was properly assigned to the employees represented by them. Id. at 5.

 Finally, to complete the picture, Carpenters and Glaziers independently move this Court for summary judgment dismissing Active's petition to compel multiparty arbitration and also denying Iron's motion for summary judgment compelling bilateral arbitration.

 In essence, there are currently four motions pending before the Court. Active moves to compel multiparty arbitration and to stay bilateral arbitration with Iron; Iron moves to compel bilateral arbitration; and Carpenters and Glaziers move to dismiss all arbitration.


 I. Arbitration Agreement Between Iron and Active

 A. The Standard

 The threshold question before this Court is whether an arbitration agreement was entered into between Iron and Active that encompasses the instant dispute. Absent such an agreement, neither multiparty nor bilateral arbitration is proper. "The Federal Arbitration Act, 9 U.S.C. ยงยง 1 et seq. (1988), requires the federal courts to enforce arbitration agreements, reflecting Congress' recognition that arbitration is to be encouraged as a means of reducing the costs and delays associated with litigation." *fn5" Deloitte Noraudit A/S v. Deloitte Haskins & Sells, 9 F.3d 1060, 1063 (2d Cir. 1993). "In determining the arbitrability of a particular dispute, a court must decide 'whether the parties agreed to arbitrate, and, if so, whether the scope of that agreement encompasses the asserted claims.'" Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional de Venezuela, 991 F.2d 42, 45 (2d Cir. 1993) (quoting David Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir. 1993)). Further, "'"the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed."'" McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 830 (2d Cir. 1988) (emphasis in original) (quoting Genesco, Inc. v. T. Kakiuchi & Co. 815 F.2d 840, 844 (2d Cir. 1987) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218, 84 L. Ed. 2d 158, 105 S. Ct. 1238 (1985))).

 Courts will not force parties into arbitration when it was clearly not their intention to place a given matter under the province of an arbitration agreement. See Chevron U.S.A., Inc. v. Consolidated Edison Co. 872 F.2d 534, 537 (2d Cir. 1989). This Court has stated that "it is fundamental that arbitration agreements are creatures of contract law." Scher v. Bear Stearns and Co., 723 F. Supp. 211, 214 (S.D.N.Y. 1989). Thus, "the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute. . . . As with any other contract, the parties' intentions control, but those intentions are generously construed as to issues of arbitrability." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 87 L. Ed. 2d 444, 105 S. Ct. 3346 (1985).

 Once a court has determined that an arbitration clause exists, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983). In fact, "the existence of an arbitration clause in [an agreement] raises a presumption of arbitrability that can be overcome only if 'it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Associated Brick Mason Contractors, Inc. v. Harrington, 820 F.2d 31, 35 (2d Cir. 1987) ...

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