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EMERY AIR FREIGHT CORP. v. INTERNATIONAL BHD. OF T

October 8, 1998

EMERY AIR FREIGHT CORPORATION, d/b/a EMERY WORLDWIDE, A CNF COMPANY, Plaintiff, against INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 295; INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 478; and THE AMERICAN ARBITRATION ASSOCIATION, Defendants.


The opinion of the court was delivered by: BLOCK

MEMORANDUM AND ORDER

 BLOCK, District Judge:

 Plaintiff Emery Air Freight Corporation, d/b/a Emery Worldwide, a CNF Company ("Emery"), seeks to compel defendants International Brotherhood of Teamsters, Local 295 ("Local 295") and International Brotherhood of Teamsters, Local 478 ("Local 478") to participate in tripartite arbitration. Both unions have claimed that certain specified work should properly be assigned by Emery to their members. While Local 295 agrees to the tripartite arbitration, Local 478 does not, contending that, by virtue of a 1997 arbitration award, its members are entitled to the work. As will be set forth more fully below, the Court believes that it has the power in this muddled area of the law to order tripartite arbitration but chooses, in the exercise of its discretion, not to do so in this case.

 BACKGROUND

 The material facts of this controversy are not in dispute. Emery, a Delaware corporation, transports freight by air and truck, including the hauling of freight between John F. Kennedy International Airport ("Kennedy Airport") in Queens, New York and Newark International Airport ("Newark Airport") in Newark, New Jersey. Emery and Local 295 are parties to a collective bargaining agreement ("Local 295 CBA") that covers work performed by truck drivers and dock workers employed by Emery on Long Island and in the Boroughs of Brooklyn, Queens and the Bronx. The Local 295 CBA sets forth a grievance procedure that relates to, inter alia, "any dispute or grievance . . . between the employer and the union, as to the meaning, import and application of, or compliance with the provisions of [the Local 295 CBA]." Complaint, at Exh. "A," pg. 23. In the event that a grievance is not resolved internally within 45 working days, Local 295 may seek arbitration from the American Arbitration Association ("AAA"). The agreement does not provide for tripartite arbitration of work assignment disputes.

 Emery is also a party to a collective bargaining agreement with Local 478 ("Local 478 CBA"), which covers work performed by truck drivers and dock workers employed by Emery in Northern New Jersey. The Local 478 CBA contains a grievance procedure, similar to Local 295's CBA, regarding "any disputes . . . between [Emery] and the employees, or [Emery] and the Union concerning the application or interpretation of any provision of [the Local 478 CBA], or concerning any term or condition of employment set forth in this agreement." Complaint at Exh. "B," pg. 27. Like the Local 295 CBA, it also provides for arbitration in the event that a grievance is not internally resolved. If the parties are unable to agree upon an arbitrator, the dispute is to be submitted to the New Jersey Board of Mediation for appointment of an arbitrator. The Local 478 CBA also does not provide for tripartite arbitration of work assignment disputes.

 In 1996, Local 478 filed a grievance with Emery claiming that certain hauling work between Kennedy Airport and certain sites in New Jersey should have been assigned to Local 478. Local 478 argued, inter alia, that Emery had improperly assigned shuttle work between Newark and Kennedy Airports to non-union personnel. Local 478 and Emery reached a partial settlement of its dispute, agreeing that certain freight shipped by Sony Corporation from Kennedy Airport to its headquarters in Cranbury, New Jersey would be assigned to Local 478. In a decision and award dated September 19, 1997 ("arbitration award"), the arbitrator sustained the balance of Local 478's grievance, determining that Emery had violated the Local 478 CBA by contracting out bargaining unit work between Kennedy and Newark Airports to non-union workers and that the shuttle work should be assigned to Local 478.

 On April 29, 1998, Local 295 filed a demand for arbitration with the AAA. It claimed that certain work functions, including the Kennedy-Newark shuttle work and "certain JFK Airport pickups and drops," Complaint, at Exh. "D," should be assigned to Local 295 workers. On May 6, 1998, the AAA sent a list of prospective arbitrators to Emery for its review.

 On May 14, 1998, Emery commenced this action pursuant to § 301(a) of the Labor Management Relations Act ("LMRA"), as amended, 29 U.S.C. § 185(a) *fn1" , and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), *fn2" claiming that its obligations resulting from its prior arbitration with Local 478 were inconsistent with the relief now sought by Local 295 in its incipient arbitration. In its prayer for relief, Emery's complaint seeks: (1) a restraining order enjoining the requested bipartite arbitration between Local 295 and Emery from proceeding; and (2) an order directing Emery, Local 295 and Local 478 to engage in tripartite arbitration to resolve the following question:

 
Should the following work be assigned to employees of Emery who are represented by Local 295 or to employees of Emery who are represented by Local 478:
 
(i) Pick up and delivery of Sony freight directly between John F. Kennedy Airport and Sony's facility near Trenton, New Jersey;
 
(ii) Linehaul (that is "shuttle") work which originates at John F. Kennedy Airport and terminates at Newark International airport; and
 
(iii) Pickup and delivery of freight directly between John F. Kennedy Airport and points in and around the Newark ...

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