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CLEVELAND WRECKING CO. v. IRON WORKERS LOCAL UNION

December 6, 1996

CLEVELAND WRECKING COMPANY, Plaintiff, against IRON WORKERS LOCAL UNION 40, JOHN KELLY, in his representative capacity as President of Iron Workers Local Union 40, and IRON WORKERS LOCALS 40, 361 & 417 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS UNION SECURITY FUNDS, Defendants.


The opinion of the court was delivered by: SPRIZZO

MEMORANDUM OPINION AND ORDER

 SPRIZZO, D.J.:

 Pursuant to 28 U.S.C. § 2201 and section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, plaintiff Cleveland Wrecking Company ("Cleveland") brings the instant action seeking a stay of arbitration and declaratory judgment on the merits. Defendants Iron Workers Local Union 40, John Kelly in his representative capacity as President of Iron Workers Local Union 40, and Iron Workers Locals 40, 361, and 417 of the International Association of Bridge, Structural and Ornamental Iron Workers Union Security Funds (collectively the "Union") counter-claim to compel arbitration. For the reasons set forth below, the Court compels arbitration.

 BACKGROUND

 In or about 1981, plaintiff Cleveland entered into a collective bargaining agreement with the Union for the period July 1, 1981 through June 30, 1984 (the "CBA"). Affidavit of Andrew A. Gorlick Sworn to November 30, 1994 ("Gorlick Aff.") P 3; Affidavit of Shelly M. Lipsett Sworn to November 30, 1994 ("Lipsett Aff.") P 4; Affidavit of Edward Walsh Sworn to October 17, 1994 ("Walsh Aff.") P 3. Pursuant to the CBA, Cleveland was required, inter alia, to employ members of the Union when performing work within the Union's trade and geographical jurisdiction. Lipsett Aff. P 4. The geographical jurisdiction for Local 40 included Manhattan. CBA, attached to Walsh Aff. at Exh. C, at 6; Gorlick Aff. P 24. The Union's trade jurisdiction included

 
all work pertaining to the erection, alteration and demolition of structural steel, structural metals . . . [and] all work on buildings, bridges and all other structures [involving the demolition of structural steel].

 CBA, §§ 2.1-2.2.

 Section 42 of the CBA, referred to as the "evergreen clause" provides that the agreement would remain in effect until June 30, 1984 and automatically renew from year to year. CBA, § 42. However, after June 30, 1984, either party could terminate the agreement by giving the other party written notice at least four months prior to the expiration of the contract year. *fn1" Id.

 Pursuant to section 36(1) of the CBA, the parties also agreed that:

 
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 of this Agreement, except as provided in [§ 36(2)]. . . shall be submitted [to arbitration].

 Id., § 36(1)a-36(1)b.

 
Section 36(2) of the CBA provides that:
 
The foregoing provisions for arbitration are not intended and shall not be construed as in anywise qualifying or making subject to change any provisions of this Agreement, including, but not limited to the handling of negotiations for a ...

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