of this language only attaches to decisions regarding subject matter properly before the arbitrator for determination. Id. at 1924. This section alone does not determine which disputes are properly decided by the arbitrator in the first instance, and thus is not "clear and unmistakable" evidence that an arbitrator is empowered to determine questions of arbitrability. Id.
The Court concludes that the language of section two of Article IX is equally unavailing. It merely states that arbitration is the exclusive mechanism for resolving disputes within the subject matter of the National Plan. While the dispute at issue does ultimately concern a jurisdictional matter, i.e., which union is entitled to perform skimcoating work, this language falls short of a "clear and unmistakable" statement necessary to extend the authority of an arbitrator to make a decision pertaining to the affiliation of a union. In making this determination, the Court notes the recent decision by the Court of Appeals for the Eighth Circuit in McLaughlin Gormley, which interpreted broad language similar to that of section two of Article IX and found that it fell short of a "clear and unmistakable" statement that the arbitrator should determine arbitrability. McLaughlin Gormley, 105 F.3d 1192, 1194, 1997 U.S. App. LEXIS 1427, 1997 WL 31181, *1-2. The language before the court in that case provided for arbitration of "any controversy arising out of, or relating to this Agreement or any modification or extension hereof." Id. The court rejected the contention that this language authorized the arbitrator to determine arbitrability because "the arbitration clause made no mention of a 'controversy' over arbitrability." Id. at 105 F.3d 1192, 1194, 1997 WL 31181, *2. Similarly, in the present case, there is no mention of a "case," "dispute," or "controversy" over arbitrability in section two of Article IX.
Nor can the Painters draw comfort from the decision of the Court of Appeals for the Second Circuit in Painewebber. In that case, the court dealt with the arbitrability of whether a specific statute of limitations applied to the defendant's claims. The court found that the broad language of the arbitration agreement authorized arbitration on the statute of limitations issue. Painewebber, 81 F.3d at 1198-99. That case is distinguishable because arbitrability of the statute of limitations defense was essentially related to the merits of the subject matter that the parties agreed to arbitrate and as such differs from this case, where the issue is whether the arbitrator had the authority to determine whether the parties agreed to arbitrate the merits of the dispute itself. See National Union Fire Ins. Co. v. Belco Petroleum Corp., 88 F.3d 129, 135-36 (2d Cir. 1996) (stating that affirmative defenses such as a time limit in the arbitration agreement or laches are decisions concerning the merits of a dispute and are properly decided by arbitrators under broad arbitration clauses); Aircraft Braking Systems Corp. v. Local 856, 97 F.3d 155, 160 (6th Cir. 1996) ("The 'arbitrability' dispute at issue here is not a dispute concerning the scope of an arbitration clause in an otherwise valid agreement, but rather is a dispute as to whether a valid agreement to arbitrate exists at all. This question traditionally has been answered by the courts."). It is the latter situation which First Options addressed in holding that the court must conduct an independent review absent "clear and unmistakable" evidence to the contrary. First Options, 115 S. Ct. at 1924. As such, the broad language held to authorize arbitration as to an aspect of the merits in Painewebber is insufficient here.
To sum up, the Court is faced with the following situation: (1) the employer, Island Taping, is not stipulated to the National Plan; (2) both unions in this dispute are affiliated with the National Plan; (3) both the Plasterers and Island Taping have agreed to be bound by the New York Plan; and (4) if Local 1486 is affiliated with the New York Plan, then all parties to this dispute are bound by the New York Plan, and consequently, all parties are bound to arbitrate under the National Plan on appeal from the New York Board's refusal to arbitrate. Accordingly, the Court must hold a hearing to determine de novo whether Local 1486 is affiliated with the New York Plan; if they are, then the present dispute is arbitrable under the National Plan.
On the issue of injunctive relief, the Court declines to order at this time the preliminary injunction requested by plaintiffs pending the hearing on the arbitrability issue. The Court notes that if this dispute is arbitrable, it has the power, if circumstances warrant, to issue injunctive relief to aid arbitration. See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). An interesting question is whether the Court has the power to issue equitable relief pending the determination of arbitrability itself by the Court. Cf. Video Tutorial Servs. v. MCI Telecommunications, 79 F.3d 3, 5 (2d Cir. 1996) ("We would be hard pressed to say that a district court cannot stay arbitration for a short time while familiarizing itself with the issues underlying a proposed motion to stay a suit pending arbitration, or a proposed motion to stay an arbitration."). In any event, a preliminary injunction is not warranted at this time. It is well settled that "preliminary injunctive relief is appropriate when the movant shows (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996). The Court determines that plaintiffs have failed to show that they will suffer irreparable harm if the Court declines to enter injunctive relief because it is unclear at the present time whether the skimcoating work in dispute has commenced at the Nordstrom's Project. Counsel for both sides were equivocal during the hearing before this Court on February 4, 1997 as to whether this work has begun; plaintiffs' counsel stated that "they obviously could start the work tomorrow, or not," and defendants' counsel stated that she "didn't know" whether the skimcoating work in dispute had begun. The Court therefore declines to issue equitable relief at this time.
Because the Court declines to grant injunctive relief at this time, it need not determine whether Island Taping must be brought in as an essential party to this litigation. At the hearing, the parties should address whether such joinder would be necessary should the Court later find it appropriate to order equitable relief.
The Court determines that the issue of whether this dispute is arbitrable was not clearly and unmistakably delegated to the arbitrator under the National Plan, and therefore concludes that it must make an independent determination on the arbitrability issue. This will entail a factual determination as to whether Local 1486 is affiliated with the New York Plan, and therefore bound to arbitrate under the National Plan. Counsel for the parties are hereby ordered to appear for a hearing on this issue on February 10, 1997 at 10:00 a.m. in Courtroom # 15 on the 1st floor of the Federal Courthouse, 225 Cadman Plaza East, Brooklyn, New York.
United States District Judge
DATED: Brooklyn, New York
February 7, 1997