ELEVATOR MFR.'S ASS'N OF NY v. INTERNATIONAL U. OF EL. CON. LOCAL NO. 1, 72 Civ. 1071.

• Decision Date: 25 April 1972
• Docket Number: No. 72 Civ. 1071.,72 Civ. 1071.
• Citation: 342 F. Supp. 372
• Parties: ELEVATOR MANUFACTURER'S ASSOCIATION OF NEW YORK, an unincorporated association, Plaintiff, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL NO. 1, OF NEW YORK AND VICINITY, an unincorporated association, Defendant.
• Court: U.S. District Court — Southern District of New York

342 F. Supp. 372

ELEVATOR MANUFACTURER'S ASSOCIATION OF NEW YORK, an unincorporated association, Plaintiff, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL NO. 1, OF NEW YORK AND VICINITY, an unincorporated association, Defendant.

No. 72 Civ. 1071.

United States District Court, S. D. New York.

April 25, 1972.

Putney, Twombley, Hall & Hirson, New York City, for plaintiff.

Walter J. Law, New York City, for defendant; Wilderman, Markowitz & Kirschner, Philadelphia, Pa., by Richard H. Markowitz, Richard Kirschner, Philadelphia, Pa., of counsel.

OPINION

BAUMAN, District Judge.

Plaintiff has moved for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure directing the defendant union and its members "not to engage or participate in any strike, concerted stoppage of work, or concerted slowdown" against the plaintiff.

Plaintiff Elevator Manufacturer's Association of New York ("Association") negotiates, executes and enforces collective bargaining contracts with labor unions on behalf of its members, the Otis Elevator Company, the Elevator Division of Westinghouse Electric Corporation and the Haughton Elevator Company. The Association and defendant International Union of Elevator Constructors Local No. 1, of New York and Vicinity ("Union") entered into such an agreement on October 19, 1969 which expires June 30, 1972.

It provides in pertinent parts that: "the regular work day on construction work shall not excede seven hours in any one day. Monday, Tuesday, Wednesday, Thursday, and Friday shall constitute the regular work week of thirty-five hours." Section III,C. "Overtime shall not be worked except when unavoidable." Section IV,D.

The agreement prescribes arbitration for "all differences and disputes regarding the application and construction of this agreement." Section IX,1. It also contains a "no-strike" clause. Section XI,1.

Members of the Association contract with owners of buildings to install elevators by specific dates. The Union represents employees who do the work. Since March 13, 1972, some twenty-nine months after the agreement was executed, union members have refused to perform any overtime work in New York City including the many projects for which members of the Association have installation contracts although they do work during regular working hours. The dispute over whether there is "unavoidable overtime" required on those projects has been submitted to the Federal Mediation and Conciliation Service pursuant to the arbitration clause in the collective bargaining agreement.

The Association complains here that its members relied on an expectation of a certain amount of "traditional" or "reasonable" overtime from union members when it fixed completion dates in its contracts with its customers and that it cannot meet them because of the refusal of the union members to work overtime as they had been doing without question or complaint. As a result, it claims irreparable damage.

The Union has made no demand of the Association as a condition for working the overtime requested by the Association. Its position is that until there is a determination of what is "unavoidable" overtime, its members are not required to work any overtime.

I.

The legal issue for determination is whether, in these circumstances, a preliminary injunction is prohibited by Section Four of the Norris-LaGuardia Act, 29 U.S.C. § 104,¹ or whether this case falls within the exception to the broad language of that section delineated by the Supreme Court in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In Boys Markets, the Court held that the anti-injunction provisions of the Norris-LaGuardia Act did not prohibit a federal district court from enjoining a strike which was in violation of a no-strike clause of a collective bargaining agreement when that agreement provided for binding arbitration of the grievance or dispute which was the cause of the strike.

Implicit in the policy underlying the decision in Boys Markets is the requirement that the District Court decide whether the collective bargaining agreement contains a "no-strike" clause and whether the union activities complained of constitute a strike. The agreement clearly contains a "no-strike" clause.

In the case at bar there are a number of circumstances which require the affirmative conclusion that the Union is on strike. As has been noticed, members of the union have performed overtime when requested for the last twenty-nine months without once raising the question of its unavoidability. This conduct seems to me clear and unmistakable evidence of the intent of the parties in construing their agreement as requiring some overtime as part of the normal work relationship. Some three and one-half months...