Emery Air Freight Corp. v. Local Union 295

786 F.2d 93, 121 L.R.R.M. (BNA) 3240
CourtCourt of Appeals for the Second Circuit
DecidedMarch 19, 1986
DocketNo. 803, Docket 85-7923
StatusPublished
Cited by42 cases

This text of 786 F.2d 93 (Emery Air Freight Corp. v. Local Union 295) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emery Air Freight Corp. v. Local Union 295, 786 F.2d 93, 121 L.R.R.M. (BNA) 3240 (2d Cir. 1986).

Opinion

FEINBERG, Chief Judge:

Defendants Local Unions 295 and 851, both affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Frank Calise and Mark Davidoff (collectively referred to hereafter as the Unions) appeal from an order of the United States District Court for the Southern District of New York, Kevin T. Duffy, J., granting the application of plaintiff-appellee Emery Air Freight Corporation (Emery) to enjoin an arbitration sought by the Unions and denying the Unions’ application for an order compelling Emery to arbitrate certain disputes with them. The principal issue raised by the appeal is whether the expiration of the collective bargaining agreements between the parties justified the order of the district court. For reasons set forth below, we reverse that order and remand with instructions.

I.

In late October 1985, Emery brought this action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, seeking injunctive relief against arbitrations demanded by the Unions earlier that month. The background of the dispute leading up to those demands is as follows. Emery is engaged in the business of express delivery. For more than 10 years, Locals 295 and 851 have been the exclusive bargaining representatives of Emery’s drivers, dockmen, messengers and clericals in the New York metropolitan area. Calise and Davidoff are officers of Local 295 and Local 851, respectively. The Locals are parties to separate three-year collective bargaining agreements (the Agreements) with Emery, which commenced on September 1, 1982.

The provisions of the Agreements relevant to this appeal are identical. Each contains a broad Arbitration Clause, which provides in pertinent part:

Should any dispute or grievance arise between the Employer and the Union, as to the meaning, import and application of, or compliance with the provisions of this Agreement, or should any grievance or dispute arise as between the Employer and the Union, such dispute or grievance shall be settled

through a multi-step grievance and arbitration procedure culminating in “final and binding” arbitration by the Impartial Chairman named in the Agreements, Stanley Aiges, who is a nominal defendant in this action.

The Agreements also contain a Maintenance of Standards provision, which states:

The employer agrees that all conditions of employment in his individual operation relating to wages, hours of work, overtime differentials and general work conditions shall be maintained at no less than the highest standards in effect. The Employer further agrees that it will in no way seek to enforce or impose any subsequent agreement or Master Agreement affecting the air freight industry which will reduce any of the standards established by this Agreement.

There are also various provisions in the Agreements that protect the job security of union members in various ways; e.g., by recognition of the Unions as the exclusive bargaining representatives, by barring subcontracting, by requiring union membership after 30 days of employment and by describing which Emery operations are governed by the Agreements.

[95]*95In anticipation of the expiration of the Agreements on August 31, 1985, negotiations for their renewal began in mid-July ■1985. Claiming that competitive conditions justified its position, Emery sought a number of substantial contractual changes including layoff of approximately 75 bargaining unit employees, introduction of part-time employees and a two-tier wage structure and reduction of various economic benefits, including holidays and sick leave. The Unions characterized these concessions as “give-backs.” A number of bargaining sessions were held before August 31, 1985, but the parties were unable to reach agreement. The bargaining was acrimonious, with the Unions threatening to strike if Emery insisted on all the give-backs. Emery indicated that it intended to operate during a strike, and, as the district court found, “during the month of August 1985” began “training employees of an outside contractor to handle Emery’s business should a strike later occur.”

After August 31, 1985, the parties continued to bargain but remained far apart on certain key issues. Emery continued to operate and there was as yet no strike. The Unions claim that at a negotiating session on September 22, they raised a grievance regarding the use of “secret workers” but that Emery refused requests to reveal the names of the workers involved or where they worked. In this court, Emery disputes the Unions’ characterization of these events, which Emery describes as an agreement with a stand-by independent contractor, Leaseway, to provide temporary drivers in the event of a strike, which the Unions were continually threatening.

On October 2, 1985, after an unproductive bargaining session, the Unions sent Emery identical written grievances, which stated as follows:

The Union hereby grieves Emery’s violation of the last sentence of the “Maintenance of Standards” provision contained in the 1982-1985 Collective Bargaining Agreement. Emery’s Bargaining proposals which insist upon the reduction of standards and Emery’s attempt to enforce or impose a subsequent Collective Bargaining Agreement which reduces standards plainly violates the maintenance of standards provision. Remedy this violation immediately or the Union will pursue it through the grievance-arbitration procedure.

On October 3, 1985, Emery delivered to the Unions its final offer in writing, which confirmed that the Agreements were terminated and indicated that Emery would consider the parties deadlocked if no favorable response was received by a stated deadline. On October 7, Emery delivered to the Unions notices reflecting the terms of the final offer and stated that they would be posted at work sites on October 10 and would govern all terms and conditions of employment beginning on that date. The notices made clear that, among other things, 75 jobs would be eliminated, 25 full-time employees would be converted to part-time status, and a number of fringe benefits would be reduced or eliminated. On October 7, Emery also replied to the Unions’ October 2 written grievances, contending, among other things, that the facts underlying the grievances arose after the expiration of the Agreements and therefore Emery had no obligation to respond, and that in any event the grievances did not even raise a colorable question of interpretation under the expired contracts. On that same day, both Emery and the Unions filed charges with the NLRB. Each side alleged the other’s position constituted an unfair labor practice.

On October 8, the parties met again but remained far apart in the negotiations. At that time, the Unions served written demands for arbitration on Emery as follows:

The disputes arise under the 1982-1985 collective bargaining agreement which is in effect between Emery and the Union. The disputes are:
(a) Hiring non-union employees to perform bargaining unit work, concealing the identity of these employees from the Union and simultaneously insisting ■ upon the layoff of the bargaining unit [96]*96employees, in violation of the contractual sections pertaining to union security, recognition, subcontracting, maintenance of standards, covered operations and hiring hall.

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786 F.2d 93, 121 L.R.R.M. (BNA) 3240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emery-air-freight-corp-v-local-union-295-ca2-1986.