Minkoff v. Scranton Frocks, Inc. , 181 F. Supp. 550 ( 1960 )

METZNER, District Judge.

This is a motion by respondents for an order pursuant to Section 302(e) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186(e), staying the petitioner from demanding, accepting or receiving any monies awarded in an arbitration between the parties. Petitioner originally moved for confirmation of this award and that motion has been decided in a separate opinion.

The claim by the respondents that any payments pursuant to such an award would violate Sections 302(a) and 302(b) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186(a) and (b), has been disposed of in that opinion.

Some question has been raised regarding the procedure followed by the respondents in raising their objection that they should be relieved from compliance with the award. As indicated above, respondents’ objection was raised in opposition to the motion for confirmation. This was proper procedure. However, they also used this objection as the basis for this motion which is brought under the caption of and in the proceeding for confirmation.

Any application for affirmative relief pursuant to 29 U.S.C.A. § 186(e) should be by plenary suit coupled with a motion for a preliminary injunction and not by notice of motion and affidavit in a proceeding to confirm an award. In re Worcester Silk Mills Corporation, D.C. S.D.1927, 50 F.2d 966; Anzio Frocks, Inc. v. Joint Board Dress and Waistmakers’ Union, D.C.S.D.N.Y.1959, 176 F. Supp. 176. See also Donnelly Garment Co. v. International Ladies’ Garment Workers’ Union, D.C.W.D.Mo.1942, 47 F.Supp. 67, and Bigelow v. RKO Radio Pictures, D.C.N.D.Ill.1954, 16 F.R.D. 15.

Motion denied.