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OPERATIVE PLASTERERS & CEMENT MASONS INT'L ASS'N V

February 7, 1997

OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION, AFL-CIO AND LOCAL 530 OF OPERATIVE PLASTERERS & CEMENT MASON INTERNATIONAL ASSOCIATION, Plaintiffs, against INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, LOCAL UNION 1486 OF LONG ISLAND, INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED TRADES, AFL-CIO, and DISTRICT COUNCIL 9, Defendants.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 This is the latest chapter in an ongoing jurisdictional dispute between unions representing plasterers, plaintiffs Operative Plasterers & Cement Masons International Association and its affiliates ("Plasterers" or "Local 530"), and unions representing painters, defendants International Brotherhood of Painters and Allied Trades and its affiliates ("Painters" or "Local 1486"), as to which union has the right to perform certain drywall finishing work referred to by the parties as "skimcoating." In the current dispute, the Plasterers challenge the right of Local 1486 to continue skimcoating work at the Nordstrom's Department Store construction project ("Nordstrom's Project") currently in progress at Roosevelt Field, Long Island. The Plasterers request that the Court either issue an order compelling the Painters to submit to arbitration in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ("National Plan"), or, in the alternative, assume jurisdiction under Section 301 of the National Labor Relations Act and decide the underlying dispute without the aid of arbitration. Under either approach, plaintiffs further seek a preliminary injunction to preserve the status quo while the jurisdictional dispute is resolved.

 BACKGROUND

 Both the Plasterers and the Painters are members of the AFL-CIO and the AFL-CIO's Building Construction Trades Department ("Department"). The AFL-CIO Constitution directs each union to respect the "jurisdiction," i.e., entitlement to perform specific work tasks, of other member unions. This dictate contemplates that all construction work can be categorized and distributed among the respective unions. The Department's Constitution provides that all disputes between member unions are to be resolved pursuant to the National Plan. The National Plan establishes procedures and guidelines for the resolution of jurisdictional disputes through arbitration. Further, Article VIII of the National Plan recognizes local labor dispute resolution organizations, and provides that where a local plan is recognized by the Department, the local board should hear all jurisdictional disputes in the first instance. If a local plan declines to hear a case, it may be reviewed under the National Plan. Importantly, whether or not a dispute is decided at the local or national level, all relevant unions and contractors must have agreed to be bound by the particular arbitration plan.

 The Plasterers initiated this case upon learning that the contractor assigned to do the skimcoating work at the Nordstrom's Project, Island Taping, Inc. ("Island Taping"), had hired the Painters' Local 1486 rather than the Plasterers' Local 530. The Plasterers initially sought relief from the Building & Construction Trades Council of Greater New York ("New York Board"), a local board recognized by the Department, which administers the New York Plan for the Settlement of Jurisdictional Disputes ("New York Plan"). In a letter dated December 31, 1996, the President of the New York Board informed the Plasterers that "it would be to no avail to hold another hearing on this dispute that has been ongoing for nearly twelve years." (Letter from Edward J. Malloy to John Dougherty, dated December 31, 1996). The New York Board further told the Plasterers that it "acquiesces to the [National Plan] to arbitrate the dispute. . . ." Id.

 The Plasterers accordingly brought this dispute to a National Plan arbitrator, seeking a decision on the merits of the jurisdictional dispute. Instead, the arbitrator, in a decision dated January 9, 1997, held that the dispute was not arbitrable under the National Plan. The arbitrator offered two reasons to support this conclusion. First, the dispute was not arbitrable because Island Taping had not "stipulated" to, i.e., had not agreed to be bound by, the National Plan. *fn1" Second, the arbitrator found that defendant Local 1486 was not "affiliated" with the New York Board, and therefore had not agreed to be bound by the New York Plan. Thus, even though Island Taping had agreed to be bound by the New York Plan, Local 1486's lack of affiliation with the New York Board rendered the case inarbitrable for want of a plan where all relevant parties had agreed to submit to arbitration. *fn2" Plaintiffs requested reconsideration of this decision on January 8, 1997; this request was denied on January 16, 1997.

 Plaintiffs contest the validity of the second arbitrability decision, arguing that the arbitrator erroneously determined that Local 1486 is not affiliated with the New York Plan, and further, that the arbitrator lacked authority to decide the arbitrability of this dispute. Accordingly, plaintiffs contend, his decision is not binding on the Court. Defendants, in response, argue that the arbitrator was authorized under the National Plan to decide arbitrability and that the Court must defer to his decision. The threshold issue presented to the Court, therefore, is whether the arbitrator or this Court is to determine the arbitrability issue. The Court looks to the National Plan, to which both parties are bound, to determine whether the arbitrator was authorized to decide questions of arbitrability.

 DISCUSSION

 In First Options of Chicago, Inc. v. Kaplan, the Supreme Court specifically addressed the question of who has the primary power to determine whether parties to an arbitration agreed to arbitrate the merits of a dispute. 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). First Options compels this Court to determine: "Did the parties agree to submit the arbitrability question itself to arbitration." Id. at 1923. If the parties did agree to submit the arbitrability question to arbitration, then courts must, with limited exceptions, defer to the arbitrator's arbitrability determination. See id. at 1924. If they did not agree to arbitrate arbitrability, "then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely independently." Id.

 When deciding whether the parties agreed to arbitrate the issue of arbitrability, courts "should not assume that the parties agreed to arbitrate arbitrability unless there is 'clear and unmistakable' evidence that they did so." First Options of Chicago, 115 S. Ct. 1920 at 1924 (quoting AT & T Technologies, 475 U.S. 643, 649, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986)); see Painewebber Inc. v. Bybyk, 81 F.3d 1193, 1198-99 (2d Cir. 1996) ("Arbitrability of a given issue is a question for the court unless there is 'clear and unmistakable' evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator."). Accordingly, unlike situations revolving around questions of whether merits-related disputes are within the scope of a valid arbitration agreement, silence or ambiguity as to the question of arbitrability renders the court the primary decisionmaker. Id. at 1924; see McLaughlin Gormley King Co. v. Terminix Int'l Co., 105 F.3d 1192, 1997 U.S. App. LEXIS 1427, 1997 WL 31181, *2 (8th Cir. Jan. 29, 1997). "Any other rule would 'too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.'" Id. (quoting First Options, 115 S. Ct. at 1925).

 Painters assert that several provisions of the National Plan evidence an agreement to empower the arbitrator to determine whether the unions have agreed to submit the issue of arbitrability to an arbitrator. Specifically, they point to Article IV, section five, of the National Plan, which provides in pertinent part:

 
The Administrator shall only process cases in which all parties to the dispute are stipulated to the Plan in accordance with Article II or, upon the filing of a dispute, become stipulated to the Plan in accordance with Article II. In the Administrator's sole discretion, the issue of stipulation may be submitted to an Arbitrator. . . .

 The Painters argue that this provision vests the arbitrator "with the authority to decide all issues of stipulation referred by the Plan Administrator, i.e., which parties are consensually bound and therefore, which disputes are covered by the terms of the Plan." (Def. Mem. of L. at 3-4.) The Court disagrees. The above-quoted language of Article IV evidences an agreement to allow an arbitrator to decide whether parties have stipulated to the National Plan in accordance with Article II of the plan. But Article II relates solely to the stipulations of ...


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