arbitrator could reinstate the affected employee and award him back pay).
The Union also relies on AlliedSignal, Inc. et al. v. B.F. Goodrich
Co., et al., 183 F.3d 568 (7th Cir. 1999) for the proposition that a
"limitation of available remedies represents an irreparable harm
sufficient to support an injunction." (Pl.'s Mem. Opp'n Def.'s Mot.
Dismiss at 7.) This case is unhelpful. First, the case was not governed
by the strict standards of the Norris-LaGuardia Act. In addition, the
irreparable harm at issue did not concern a pending arbitration.
Finally, the alleged injuries concerned the sharing of confidential
information and unfair competition — quite different from the loss
of benefits, jobs, and seniority rights, as well as the undermining of
the Union, as alleged in this case. The question before the court in this
case is whether an arbitrator would be powerless to remedy any injury
caused by the severance agreements. The court concludes that an
arbitrator would be able to grant such a remedy, making a preliminary
injunction unnecessary for this issue.
3. Loss of Bumping Rights
The Union also argues that Exelon's "refusal to permit 270 employees
selected for layoff to properly exercise their seniority rights, combined
with the Company's pressure on improperly selected employees to resign,
creates a unique form of irreparable harm." (Suggestions Supp. Pl.'s
Compl. at 8.) Exelon counters that in the event of a favorable decision
for the Union, an arbitrator would be able to "reconstruct the layoff
process and provide sufficient remedies to all affected employees."
(Def.'s Reply Mem. Supp. Mot. Dismiss at 11.)
The court agrees with Exelon that any violation of the employees'
bumping rights could indeed be remedied by an arbitrator by reinstating
any affected employees to their former positions with back pay. Although
such a remedy would be complex and difficult, there is nothing to
indicate that the arbitrator would not have the authority or the ability
to see it through. See Int'l Bhd. of Elec. Workers Sys. Council U-4 v.
Florida Power and Light Co., 784 F. Supp. 854 (S.D. Fla. 1991) (rejecting
a union's argument that the layoff of 350 employees would result in such
displacement that the harm would be irreparable and concluding that the
arbitrator could reinstate the employees to their former jobs with back
pay). Thus, any violation of bumping rights does not constitute an
irreparable injury that would mandate an injunction.
4. Undermining the Union
Finally, the Union argues that Exelon's "aggressive repudiation of the
layoff and seniority provisions of the labor agreement will produce an
intangible injury" to the Union itself (Suggestions Supp. Pl.'s Compl. at
9.) The Union asserts that "[t]he underlying message of this layoff plan
to those improperly selected for layoff is that the Union is powerless to
stop the Company's repudiation of the agreement and therefore, acceptance
of the severance agreement is safer than relying on relief in
arbitration." (Id.) Exelon argues that it had no intention of undermining
the Union and that any possible injury caused by such undermining can be
remedied through arbitration.
The Union cites one case to support its argument. See UAW v. Dana
Corp., 679 F.2d 634, 642-43 (6th Cir. 1982). In that case, the employer
had sent a letter and delivered a speech to all employees that included
anti-union communications as well as threats of action that the company
would take against them if the union was recognized. This was allegedly
in violation of a contract that provided that the company would remain
neutral when the union
sought to organize workers. The district court
issued an injunction to prevent the company from making further
anti-union comments before the union's election to determine a collective
bargaining agent for the employees. The Sixth Circuit held that the union
had demonstrated irreparable damage because "[a]n arbitration award
cannot restore a lost election." Id. at 643. Even if the election were
set aside, the court concluded that such a remedy "would hardily
constitute the vote of confidence, show of unity, and mandate for
confrontation necessary to enter into negotiations." Id. The court cannot
rely on that case to conclude that Exelon has undermined the Union here
to such a degree that a favorable decision in arbitration would be an
empty victory for the Union. There has been no anti-Union communications
uttered by Exelon to its employees. Exelon has voluntarily entered into a
collective bargaining agreement with the Union and has agreed to enter
the arbitration process to resolve this labor dispute. In addition, there
is no future election or other event making Exelon's "message" to
employees so harmful as to constitute irreparable injury. The Union has
otherwise failed to show that this "message" created by Exelon's layoff
procedure has created an irreparable injury such that an injunction is
necessary. The court holds that all four categories of injuries alleged
by the Union fail to constitute an irreparable injury, either separately
or as a "compound injury."*fn3
Based on the foregoing reasons, defendant Exelon's motion to dismiss
the Union's complaint for preliminary injunction is granted. The Union's
motion for preliminary injunction is denied as moot.