hearings, testimony was received as to the results obtained from time studies conducted by time study engineers acting on behalf of plaintiff and defendant. The Arbitrator also visited plaintiff's plant and observed employees operating the machines in question. On November 11, 1968, the Arbitrator issued an award establishing a piece rate of.021 cents per shirt, based on an average production of 125 shirts per hour, on the Mr. Executive Shirt Pressing Machine, and a piece rate of.027 cents per pair of pants, based on an average production of 90 pair of pants per hour, on the Dry Clean Legger machines.
Since approximately April of 1969, the hourly production rate on the Mr. Executive Shirt Pressing Machine has shown a progressive increase, until it reached a present high of 200 shirts per hour for employees Walker and Whitehead. The present hourly production rate represents a sixty percent increase over the rate upon which the Arbitrator based his November 11, 1968 decision.
Since approximately February of 1969, the hourly production rate of employees Kea and Arrington on the Dry Clean Legger machines has shown a progressive increase, until it reached a high of 157 pairs of pants per hour in March of 1970. The present hourly production rate on these machines represents a seventy-five percent increase over the rate upon which the Arbitrator based his November 11, 1968 decision.
It appears undisputed that, since the Arbitrator's award on November 11, 1968, there have been no changes in the Dry Clean Legger machines, the method of operating said machines or the job duties of the employees operating said machines. It also appears undisputed that there has been no change in the Mr. Executive Shirt Pressing Machine or in the method of its operation. Some dispute exists as to whether there has been a change in the job duties of the employees operating said machine.
Plaintiff's basic contention is that plaintiff's employees, while operating the aforementioned machines during the period prior to the Arbitrator's decision of November 11, 1968, "pegged" or deliberately reduced their hourly production in order that the time-study engineers and the Arbitrator would arrive at an artificially low rate of hourly production upon which to base the piece work rates for these machines. Asserting essentially that the Arbitrator's decision was wrongfully influenced by fraudulent actions on the part of plaintiff's employees, plaintiff seeks vacation of the Arbitrator's award under Section 10(a) of the United States Arbitration Act, 9 U.S.C.A. § 10(a).
There is substantial authority to the effect that a federal district court may apply the summary remedies of the United States Arbitration Act in an action under Section 301 of the Labor Management Relations Act Local 1078, International Union U.A.A. & A.I.W. of America v. Anaconda, 256 F. Supp. 686, 687 (D. Conn. 1966), Metal Products Workers U., Local 1645, UAW-AFL-CIO v. Torrington Co., 242 F. Supp. 813, 818 (1965). See also Internat'l Ass'n of Mach. & A. Wkrs. v. General Elec. Co., 282 F. Supp. 413, 422 (N.D.N.Y. 1968) and cases cited therein. However, plaintiff has failed to demonstrate that it is entitled to such relief here.
First, it appears inappropriate to grant as preliminary relief the twofold request to vacate the arbitrator's award and to compel resubmission of the piece work rates to arbitration. A preliminary mandatory injunction is only granted in exceptional circumstances, such as where necessary to restore the status quo. The Arbitrator's award has been in effect for nearly two years. There is consequently no recently disturbed status quo to be restored pending a final hearing. Furthermore, the relief sought is final in its very nature. A court should not by mandatory injunction grant temporary relief which will dispose of the case on the merits. Dunn v. Retail Clerks International Ass'n, AFL-CIO, Local 1529, 299 F.2d 873 (6th Cir. 1962).
Secondly, even if it were appropriate to grant the type of preliminary relief sought, plaintiff has failed to establish that it is entitled to such relief. Plaintiff has not demonstrated a reasonable likelihood that it would prevail on the merits in a final hearing. I.T.S. Industria Tessuti Speciali v. Aerfab Corp., 280 F. Supp. 581, 585 (S.D.N.Y. 1967). The sole evidence offered in support of the contention of fraud is the substantial progressive increase in hourly production which began to occur several months subsequent to the Arbitrator's award. While plaintiff urges the Court to conclude from this evidence that hourly production was intentionally reduced to below normal during the period when the piece work rate was being established, it may be just as easily concluded that, subsequent to the award, plaintiff's employees have responded to the incentive of the piece work rate by increasing productivity to its maximum. Absent the testimony of a time study expert or other qualified person to the effect that the present percentage of increase in hourly productivity could not have been achieved absent the "pegging" of production prior to the establishment of the piece work rate, the Court will not infer the existence of fraud upon the evidence before it.
This opinion shall constitute the Court's findings of fact and conclusions of law as provided in Rule 52 of the Federal Rules of Civil Procedure.
An appropriate order is entered.
NOW, this 22nd day of September 1970, after hearing, It Is Hereby Ordered that plaintiff's request for a preliminary injunction be and the same is hereby denied.