MARSHALL ELEVATOR COMPANY, INC. v. INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, No. 2:2010cv01715 - Document 22 (W.D. Pa. 2011)
Court Description: MEMORANDUM and ORDER denying 8 Motion for TRO. Signed by chief Judge Gary L. Lancaster on 1/21/11. (map)
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MARSHALL ELEVATOR COMPANY, INC. v. INTERNATIONAL UNION OF ELEVATOR CONTRACTORS Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MARSHALL ELEVATOR COMPANY, INC. , Plaintiff, v. Civil Action No. 10-1715 INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, Defendant. MEMORANDUM Gary L. Lancaster, Chief Judge. This relief. an action Plaintiff, ("Marshall"), Elevator alleges Contractors proceeding grievance is for declaratory Marshall that Elevator defendant, ( \\ IUEC" ) , to arbitration because is not arbitrable. , 2011 be issue injunctive Company, International should the and Inc. Union from enjoined underlying of IUEC's The arbitration proceedings are scheduled for January 25, 2011. Before the court is Marshall's motion for a temporary restraining order. [Doc. No . 8]. In moving for the temporary restraining order, Marshall contends that if IUEC is allowed to proceed to arbitration, Marshall will suffer productivity while its employees, who are IUEC members, for, and testify at, the arbitration proceedings. loss of prepare Marshall Dockets.Justia.com further argues t t it will be forced to incur related costs and s despite the existence of an outstanding dispute as to the arbi trabili ty of this court the underl stay the a ng Marshall issue. itration proceedings requests until that it has resolved whether or not the issue underlying IUEC's grievance is arbitrable. A temporary restraining may be granted only where it r under Fed.R.Civ.P. 0 early appears from spe shown by affidavit, or by the verifi and irreparable injury, loss, or compla damage 65(b} fic s , that immediate will result to the applicant. At motion for indicat this a juncture, temporary that t arbitrability s IUEC restraining responded order motion can be dec of the issue ripe for considerat the Marshall's rties d on the pleadings. The IUEC's underlying For and to now grievance is reasons that follow, Marshall's request for a temporary restraining order will be denied. I. BACKGROUND Marshall, Contractors of America, agreement ("CBAn) elevator and represented Jamison, through by th escalator IUEC. is a its party to a collective Marshall IUEC. business, Marshall's acquired and formed MSA, 2 LLC Elevator representat is and owners, in its the rgaining comme employees Robert and March of 2006. al are Lynda MSA is in the residential elevator, stair lift business. dumbwaiter, wheelchair MSA's employees are not li and repre by a labor union. IUEe discove that MSA was created and al that Marshall was engaging in unfair labor practices. Specifically, IUEe company alleged that MSA was a nonunion elevator performed identical work to that which was previously by Marshall's union residential work jurisdiction under r rmed IUEe further alleged that MSA's loyees. elevator falls within the recogni work eBA. IUEe ultimately filed a grievance on December 6, claiming that the trans the eBA. that r of work from Marshall to MSA IUEe claims 2009, olat Marshall and MSA are operating as a single employer or are alter egos. After several months of investigating the grievance, IUEe and Marshall were unable to settle the matter. On August 6, impartial 2010, IUEe's arbitration to counsel American t accordance with the proc Marshall selected submitted s arbitrator a request Arbitration for Association IUEe and set forth in the eBA. Donald McPherson in to hear the grievance and selected January 25, 2011 as the hearing date. On December 21, declaratory and requests that injunct this court 2010, Marshall relief. enjoin 3 filed a In the IUEe by complaint complaint, way of for Marshall preliminary injunction from proceeding with arbitration because the issue as to whether Marshall and MSA are alter egos is not arbitrable. Marshall argues further that this court should determine on the merits that Marshall and MSA are separate employers and that MSA is not subject to the CBA between Marshall and IUEC. 14, 2011, Marshall filed a motion for a On January temporary restraining order seeking to stay the scheduled January 25, 2011 arbitration hearing arbi trabili ty pending this court's decision on the of IUEC's grievance. II. LEGAL STANDARD temporary A restraining order or preliminary a injunction should be granted where the party seeking such relief satisfies the traditional four-factor test: (1) (2) Granting relief will not result harm to the nonmoving party; and (4) v. He or she will suffer injunction is denied; (3) Miller A likelihood of success on the merits; The public interest favors such relief. Mitchell, 598 F.3d 139, Child Evangelism Fellowship of N. J. Dist., 386 F.3d 514, 524 irreparable 147 Inc. (3d Cir. 2004)). 4 (3d v. in Cir. harm if even greater 2010) the (citing Stafford Twp. Sch. III. DISCUSSION We merits. that MSA r egos. but and Marshall's likelihood of issue not underlying the Marshall merits are a IUEC's of the single ult i authority arbit to determine or are are well settled. r." v. disputes resolving Local 827, Verizon New (quoting 701 F.2d 253, "[AJrbitration r rred the 2006) er a matter is e under the CBA. spute CIO a itrator has a whether not stion: inciples of relevant labor law whi pre is te employer on ll's grievance However, we must first address whether t the success we are to consider the merits of Ma the le, whet consider Here, contention arb now Jers (3d Cir. is between clearly t 458 F.3d Independent 1983)). 305, Union However, 309 v. the union Intern. Broth. of Elec. Wor Butler Armco 255 rn this and rs, AFL(3d Armco, ('" \..,.lr. Inc., arbi tra t ion "is a matter of contract and a party cannot be required to submit to arbi tration any dispute which he has not agreed so to submit." Id. (quoting United Steelworkers v. Warrior & Gulf Navi tion Co., 363 U.S. 574, 582 (1960)). Unless issue of by t the parties clearly indicate ot se, r a matter is arbitrable is one to the termined courts on the basis of the contract entered into by the parties, not by the arbitrator. 5 Atkinson v. Sinclair Refining Co., v. 370 U.S. Communications 238, Workers 241 of (1962); AT&T Technologies, America, U.S. 475 643, Inc. 648-649 (1986) . In the CBA, jurisdiction to there is no indication that arbitrator has decide matter is arbitrable. determine whether the foundational Therefore, IUEC's issue of whether a it is proper for this court to grievance constitutes an arbitrable issue. Second, issue is heading we must determine whether the single employer arbitrable under "Arbitration", the there CBA. is a In broad the CBA, under arbitration the provision, which reads as follows: Any difference or dispute regarding the application and construction of the Agreement shall be referred to as a "grievance" and shall be resolved under the following procedure. Both parties commit to make an earnest effort to resolve differences in accordance with the procedure outlined below. [Doc. No. discuss 12-1, Article XV, the procedure the proceed to arbitration. Par. 1]. parties The paragraphs that follow are required to There is no language that follow to limits what issues are arbitrable. It is well settled that there is a strong presumption in favor of arbitration. Nolde Brothers, Inc. Bakery & Confectionary Workers Union, AFL-CIO, (1977) . a Moreover, any ambiguity 6 in v. Local 430 U.S. contract with 243, 358, 254 regard to the parties' in favor Lime, Cir. duty to arbitrate their grievances must be resolved of arbitration. Gypsum, Additionally, arbitration, it should excluded, the claim." be expressly the most is Cement, 849 F.2d 820, forceful 822 (3d Eichleay Corp. v. nothing in CBA's not of a suffice to of F.2d 1047, u.s. 475 the will Int' 1 Ass' n 944 if or evidence claim from arbitration' (quoting AT&T Technologies, There v. excluded, Structural and Ornamental Iron Workers, Cir. 1991) Cement "if an issue is to be excluded from 'only purpose to exclude the exclude Portland and Allied Workers Division, 1988). expressly Lehigh Bridge, 1058 (3d at 650). broad arbitration provision that creates ambiguity as to whether IUEC's grievance is subj ect to arbitration. Furthermore, there is no language expressly excluding single employer or alter ego grievances from arbitration, exclusion. nor is However, Jamison's are not there forceful Marshall signatories evidence argues that to CBA, the supporting because the issue is outside the scope of the arbitrator's such MSA and the single employer jurisdiction and is properly decided by this court. An arbitrator may make alter ego determinations in cases where a union alleges that an "employer, who is a party to a collective subsidiary under the in bargaining an effort collective agreement, to avoid bargaining 7 the funnels work employer's agreement." to its obligations International Association of Heat Local Union 42 v. Supp. 392, 1059) . 404 Frost Insu ors and ces, Absolute Environmental Se (D. Del. ting 1993) Asbestos Workers Inc., Eichle 944 814 F. F. 2d at Marshall is the employer and also the party to the CBA with IUEC. IUEC is alleging that Mars to MSA in an ef Thus, and rt 11 is transferring work to avoid their obl tions under the CBA. IUEC's allegations against Marshall place their grievance squarely within t jurisdiction of the a Therefore, we not IUEC's grievance not likely to consider the find involves il li on lihood of h that, an the arbit trator. respect e merits. As Marshall's to issue, such, success on whether or Marshall is we need the not ultimate question regarding whether Marshall and MSA are alter egos. With re rd addressing a motion that Marshall for s producti vi ty costs order during injuries is especially true g share the costs of the other relevant factors temporary restraining order, set forth a ual not entered. arbitration with or potential the arbitration incapably of incursion does remedy by ot n that the CBA requires tration equally and t 8 we basis rable injury will result if a is associated irreparable a not demonstrates that ir restraining to not r of to find which temporary loss fees of and constitute means. This the parties Marshall would incur costs arguing the alter ego issue if it were to be decided in this court. [Doc. No. 12 1, Article XV, Par. 10J. Addi tionally, there is nothing that tips the balance of equities in favor of one party as a result of proceeding to arbitration. favors Finally, employer and is on clear that disputes to the be public reso interest through arbitration. Accord y, pla iff's request restraining order will be DENIED. An appropriate order follows. 9 for a temporary IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MARSHALL ELEVATOR COMPANY, INC. , PIa iff, v. C 1 Action No. 10-1715 INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, Defendant. ORDER AND NOW, ORDERED that this Marshall temporary restra 2..[ Elevator of January, Company, 2011, Inc.'s IT IS HEREBY motion for ng order [Doc. 8] is DENIED. BY THE COURT: ------------------ cc: All Counsel of Record , C. J. a
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