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Elsinore Shore Associates v. Local 54

filed: May 26, 1987.

ELSINORE SHORE ASSOCIATES F/K/A PLAYBOY ELSINORE ASSOCIATES, A NEW JERSEY PARTNERSHIP D/B/A THE ATLANTIS CASINO HOTEL
v.
LOCAL 54, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, AN UNINCORPORATED ASSOCIATION ON BEHALF OF ITSELF AND ALL OF ITS MEMBERS AS MEMBERS AND INDIVIDUALLY, AND ROY SILBERT, AND JON DOE AND JANE DOE, ET AL. HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL UNION LOCAL 54, APPELLANT



On Appeal From The United States Bankruptcy Court For The District of New Jersey (Camden), Bankruptcy Court No. 85-06058

Author: Stapleton

BEFORE: HIGGINBOTHAM and STAPLETON, Circuit Judges and CONABOY, District Judge*fn*

Opinion OF THE COURT

WALTER K. STAPLETON, Circuit Judge:

Local 54 of the Hotel Employees and Restaurant Employees International Union (the Union) appeals from the temporary restraining order and subsequent preliminary injunction entered by the U.S. Bankruptcy Court for the District of New Jersey that prohibit the Union from striking against or otherwise interfering with the operations of the Atlantis Casino Hotel in Atlantic City, New Jersey. Appellee Elsinore Shore Associates (Elsinore), a debtor-in-possession under the protection of Chapter 11 of the Bankruptcy Code, does business as the Atlantis Casino Hotel. The bankruptcy court granted this injunctive relief after concluding that Elsinore had satisfied the prerequisites for such relief prescribed by the Supreme Court in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970). The lower court based its decision on findings that: 1) the dispute triggering the strike was a disagreement about the respective rights of the parties under the "wage reopener" clause; 2) this issue was arbitrable; 3) Elsinore had offered to arbitrate this issue; 4) a strike would cause irreparable injury to Elsinore; and 5) the injury caused by a strike would exceed the injury to the Union caused by an injunction.

As a preliminary matter, we conclude that this court has appellate jurisdiction over the direct appeal of the preliminary injunction from the bankruptcy court. Despite the general practice of appealing bankruptcy court decisions to the district courts, 28 U.S.C. § 158 (Supp. II 1984), we hold that the Norris-LaGuardia Act, 29 U.S.C. § 110 (Supp. II 1984), authorizes the Union to appeal directly to this court from the bankruptcy court's issuance of a preliminary injunction in this case involving a labor dispute. We decline to review the validity of the temporary restraining order because it is no longer in effect and no contempt order has been issued for violation thereof.

With respect to the propriety of the preliminary injunction, we hold that the bankruptcy court committed clear error in finding that the underlying dispute was arbitrable. Finding that the prerequisites for a Boys Markets injunction were not satisfied, we vacate that portion of the preliminary injunction that prohibits work stoppages. We do not disturb that portion of the injunction which requires the parties to arbitrate their dispute concerning the legality of a strike under the contract.

I.

Local 54 and Elsinore are parties to a collective bargaining agreement which became effective on October 19, 1983 and remains in effect until September 14, 1988. Article XXI of the contract, entitled "Term of Contract," states in part:

2. This contract shall remain in full force and effect until September 14, 1988, provided, however, that for the exclusive purpose of negotiating wage rates and contribution levels for existing benefit funds as described in Article XV, this contract shall be reopened on September 15, 1986. Failing agreement if this Agreement is reopened (consistent with terms and limits of the reopener), the Union may strike as if the contract had been terminated in accordance with all of the provisions of ARTICLE XVII. Provided further that sixty (60) days prior written notice of an intention to terminate, modify or amend the contract is given by one (1) Party to the other. In the event no such notice is given, then this contract shall continue in full force and effect until such time as a sixty (60) day notice is so given.

App. at 46 (emphasis in original). Article XVII, entitled "No Strikes - No Lockouts," states in part:

1. . . . The Union agrees that it will not call, engage in or sanction any strike, sympathy strike, work stoppage, slow-down, picketing, sit-down, sit-in, boycott, refusal to handle merchandise or any other interference with the conduct of Employer's business for any reason whatsoever. . . .

2. The Union agrees that notwithstanding the provisions for the termination of this contract, during the time of negotiations after the expiration date, the Parties hereto shall continue to operate in accordance with the terms of this Agreement as though same had not expired, unless Employer shall give written notice to the Union that it does not intend to operate under the terms of this Agreement, and the Union agrees that unless said notice is given ...


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