International Brotherhood of Teamsters, Local Union No. 639 v. Airgas, Inc.

Filing 19

MEMORANDUM OPINION Signed by Judge Theodore D. Chuang on 3/3/2017. (cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

INTERNA TIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL UNION NO. 639,
Plaintiff,
v.

Civil Action No. TDC-17-0577

AIRGAS, INC.,
Defendant.

MEMORANDUM OPINION
On March 6, 2017, Defendant Airgas, Inc. I ("Airgas")

a company engaged in the

provision of gases for medical and industrial uses, will move two operational functions from its
Hyattsville, Maryland facility to facilities in Montgomeryville,
Heights, Maryland.

Pennsylvania

and Linthicum

As a result, 13 positions held by members of Plaintiff International

Brotherhood of Teamsters, Local Union No. 639 ("the Union") will be eliminated.

The Union,

contending that this transfer of functions violates the terms of its collective bargaining agreement
with Airgas, has filed this action pursuant to Section 301 of the Labor Management Relations
Act, 29 U.S.C.

S

185 (2012), seeking an injunction to bar Airgas from relocating those

operations pending arbitration of the dispute. On February 28, 2017, the Union filed a Motion
for a Temporary Restraining Order ("TRO") as well as a Motion for a Preliminary Injunction.
On March 1, 2017, Airgas submitted a consolidated Memorandum

in Opposition to those

Motions. The Court has considered the documentary evidence submitted by the parties and held

In its Memorandum in Opposition to the pending Motions, Defendant notes that its legal name
is Airgas USA, LLC, rather than Airgas, Inc., as used by Plaintiffs in the caption.
1

a hearing on March 2, 2017 at which it heard witness testimony and oral argument, thus
rendering moot the Motion for a TRO. See Granny Goose Foods, Inc. v. Bhd of Teamsters &
Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974) (stating that a
temporary restraining order in a federal case is to be limited to "preserving the status quo and
preventing irreparable harm just so long as is necessary to hold a hearing, and no longer").
Based on the findings of fact and conclusions of law set forth below, the Motion for a
Preliminary Injunction is GRANTED.
FINDINGS OF FACT
The Union is a labor organization within the meaning of the LMRA, 29 U.S.C.

S

185(b),

and represents approximately 65 employees working at Airgas's Hyattsville, Maryland facility.
Airgas is an employer engaged in an industry or activity affecting commerce within the meaning
of the LMRA, 29 U.S.C.

S

185(a), and the National Labor Relations Act, 29 U.S.c.

S

152(2).

The Union and Airgas are parties to a Collective Bargaining Agreement ("CBA") effective June
15,2014 to June 14,2018.

That agreement has three Articles relevant here.2 Article 9 reserves

to Airgas the exclusive right to manage its business as it sees fit in all matters not expressly
governed by the CBA, in particular to "[s]ell, lease, transfer, move, change location, discontinue,
relocate all or part of the business or operations provided timely notice is given the Union and
effects bargaining is offered." CBA Art. 9, CompI. Ex. 1 at 17-18, ECF NO.1-I.
Article

10, entitled "Subcontracting,"

provides that Airgas "shall not subcontract,

transfer, lease assignment or conveyance [sic] in whole or in part, directly or indirectly, any work
or service of the kind, nature or type covered by the [CBA], and presently performed or hereafter
assigned to the collective bargaining unit."

2

Id at 19. Article 10 further provides that Airgas

Page citations are to the page numbers assigned by the Court's CM/ECF filing system.
2

shall not "be part of, or permit, any other work arrangement whereby such work or services may
be performed by other than employees of the employer in the collective bargaining unit covered
by [the CBA]." Id.
Article 18 establishes a grievance and arbitration procedure that "shall be the sole and
exclusive means for the determination

of all disputes, complaints, controversies,

claims or

grievances whatsoever arising pursuant to the terms and conditions of the [CBA]." Id. at 30.
In a letter dated February 1,2017, Airgas informed the Union that it "tentatively" planned
to "completely shut down and move two discrete parts" of the Hyattsville facility, specifically
the High Pressure Resisting and Liquid Can Repair function (the "HPRLCR function") and the
Small Medical Oxygen filling function (the "SMO function").
ECF No. 1-3.
Montgomeryville,

Airgas stated that the HPRLCR
Pennsylvania

Feb. 1, 2017 Ltr., CompI. Ex. 3,

function would be moved to Airgas's

facility and that the SMO function would be relocated to

Airgas's Linthicum Heights, Maryland facility. Neither the Montgomeryville nor the Linthicum
Heights facility utilizes union employees. Airgas concluded the letter by assuring the Union that
any resulting reductions in the Hyattsville facility workforce would be imposed in compliance
with the CBA.
In a February 2, 2017 responsive letter, the Union asserted that Airgas's plan violated
Article 10 of the CBA because it amounted to a transfer of bargaining unit work and requested
additional information about the plan. In a letter dated February 9, 2017, Airgas disputed the
applicability of Article 10, which it deemed to be limited to subcontracting, and asserted that its
plan fell under Article 9's provision reserving for management the decision to relocate all or part
of the business. Airgas stated that the relocation of work was motivated not by costs savings, but
by the resulting ability to achieve "efficiencies" based on consolidating operations, move work to

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the geographic areas where there was higher demand, improve customer service, and comply
with federal requirements regarding the storage of gases and chemicals.

Feb. 9, 2017 Ur. at 4,

CompI. Ex. 5, ECF No. 1-5. Airgas's second letter also set a date for the transfer, tentatively
calendaring it for March 3, 2017, and provided a chart indicating that 11 Union employees could
be subject to lay-offs as a result of the transfer. Airgas also stated that it was currently seeking to
hire individuals to fill five new positions to conduct the transferred work at the Montgomeryville
facility.
On February 13, 2017, the parties met in an unsuccessful effort to resolve the issue,
prompting the Union to file a formal grievance on February 17, 2017.

In that grievance, the

Union asked Airgas to stay any transfer until the grievance was resolved and proposed that both
sides waive the preliminary grievance steps set forth in the CBA and proceed to expedited
arbitration.

On February 22, 2017, Airgas denied the Union's grievance, citing Article 9 of the

CBA, and refused to stay its transfer plan or to participate in expedited arbitration.
Airgas presently plans to execute on the transfer of the HPRLCR and SMO functions
beginning on March 6, 2017, when it will begin physically to move equipment out of the
Hyattsville facility. According to the testimony of Airgas Assistant Vice President of Operations
Joel Young, several pieces of equipment

will be moved to the Montgomeryville

site.

Specifically, one of two Hyattsville valve machines will relocated, a process that, because of the
size and self-contained nature of the machine, requires the machine to be loaded onto a flat-bed,
tractor-trailer.

Airgas will also move a paint booth, a 12' x 12' x 14' enclosed unit used for

repainting gas canisters.

Relocating the paint booth requires that it be dismantled into four

sections and reassembled after transport.

In addition to these two large pieces of equipment,

Airgas will be moving various "consumable" parts, such as disposable valves and paint, and a

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computer system that controls one of the machines.

Only consumables will be moved to the

Linthicum Heights facility; the two pieces of SMO equipment at the Hyattsville facility will
instead be placed into storage.

Young asserted that all of the equipment removed from

Hyattsville could be returned if required.
According to the testimony of John Gibson, the Secretary-Treasurer

of the Union, he

observed during a visit to the Hyattsville facility on March 1, 2017 that the process of preparing
the equipment for shipment or storage was already underway.

Sometime after his earlier visit to

the facility a week before, various parts of the paint booth had been dismantled, and one of the
machines was no longer operational.

Workers informed Gibson that they had been specifically

instructed to begin dismantling the paint booth and that some supplies had already been shipped
to Montgomeryville.
Airgas plans to convert some of the Hyattsville facility space opened up by the relocation
into storage facilities for nitrous oxide and various chemicals.
bring Airgas's
regulations

practices

with Food and Drug Administration

regarding the storage of nitrous oxide and Department

("DHS") requirements
Airgas's

into compliance

Such a storage area is required to

for the storage of "chemicals of concern."

of Homeland

("FDA")
Security

Feb. 9, 2017 Ltr. at 5.

previous storage practices had been found deficient during a recent DHS audit.

Specifically, Airgas plans to repurpose one room previously used for the relocated operations
into a unit dedicated to the "safe and secure" storage of nitrous oxide and plans to utilize "freedup yard space and cages" to bring its storage of other chemicals into compliance with federal
requirements.

Id.

As for personnel, Airgas now estimates that the transfer will result in the loss of 13 Union
positions at the Hyattsville facility.

Because of vacancies, pending transfers, conduct-based

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terminations, and employees presently on family or medical leave, only one or two layoffs will
occur immediately.

However, others would follow when employees on leave return to work.

Several drivers told Gibson during his March 1, 2017 visit to the Hyattsville facility they were
concerned that with the SMO facility gone, their delivery routes would shrink, and noted that
Airgas had already sent drivers from the Linthicum Heights facility to Hyattsville to learn their
3

routes.

Thus, to the extent not covered by the planned lay-offs, such reductions in delivery

activities could further reduce the work available to Union members.
Hyattsville employees who endure lay-offs will be eligible for recall under the terms of
the CBA.

Airgas offered, as part of effects bargaining, to give such employees preferential

consideration for openings at the Montgomeryville and Linthicum Heights facilities or severance
benefits, but the Union rejected the proposal. As it turns out, Airgas has already hired and begun
to train the five new employees that it stated in its February 9, 2017 letter it would hire for
HPRLCR work at the Montgomeryville facility.
DISCUSSION
The Union filed suit seeking a preliminary injunction from this Court to stay the transfer
of the HPRLCR and SMO functions pending arbitration. Airgas does not contest that the dispute
between the parties relates to the terms of the CBA and thus must be resolved through arbitration
by the terms of that agreement, but it opposes the Union's request for a stay of the transfer
pending arbitration.

The Court considers this hearsay evidence for purposes of the Motion because the nature of
preliminary injunction motions justifies relaxation of normal evidentiary standards. G. G. ex rei
Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 725-26 (4th Cir. 2016), cert. granted on other
grounds, 137 S. Ct. 369 (2016) (holding that a district court may consider hearsay evidence on a
preliminary injunction motion because such a motion is "customarily granted on the basis of
"procedures that are less formal and evidence that is less complete than in a trial on the merits"
(citation omitted)).
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I.

Legal Framework
The Norris-LaGuardia

Act, 29 U.S.C.

SS

101-115 (2012), provides that, in general, no

federal court "shall have jurisdiction to issue any restraining order or temporary or permanent
injunction in a case involving or growing out of a labor dispute." 29 U.S.C.

S

101. However, in

Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235 (1970), the United States
Supreme Court held that the Norris-LaGuardia

Act does not prohibit a federal court from

enjoining a strike where the union and employer are bound by a collective bargaining agreement
and that agreement provides for binding arbitration of the dispute giving rise to the planned
strike. ld. at 253; see also Buffalo Forge v. United Steelworkers of Am., AFL-ClO,

428 U.S.

397, 406-07 (197 6) (clarifying that the Boys Market exception extends only to cases where the
dispute is one that the parties are contractually bound to arbitrate).

The Court found this

exception because a refusal to arbitrate is not the type of abuse against which the NorrisLaGuardia Act was directed and because the inability to issue such an injunction would be "a
serious impediment

to the congressional

policy favoring the voluntary establishment

mechanism for the peaceful resolution of labor disputes."

of a

Boys Markets, 398 U.S. at 242, 253.

This emphasis on the strong policy preference for arbitration has prompted lower courts to
interpret Boys Markets to create a general exception allowing federal courts to issue injunctions
to maintain the status quo, even without a threatened strike, where the parties' dispute is subject
to a binding arbitration clause in the collective bargaining agreement. See, e.g., Lever Bros. Co.
v. lnt'l Chemical Workers Union, Local 217, 554 F.2d 115 (4th Cir. 1976); Aluminum Workers
lnt'l Union, AFL-ClO,

Local Union No. 215 v. Consolidated Aluminum Corp., 696 F.2d 437,

441 (6th Cir. 1982).

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Ordinarily, to obtain a preliminary injunction, moving parties must establish that (1) they
are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the
public interest. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7,20 (2008); Dewhurst v.
Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each of
the Winter requirements.

Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d 342,

347 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).

Because a preliminary

injunction is "an extraordinary remedy," it "may only be awarded upon a clear showing that the
plaintiff is entitled to such relief." Winter, 555 U.S. at 22.
Because of the jurisdictional
"special considerations"

limitations

deriving from the Norris-LaGuardia

Act,

apply when a court is considering a motion for preliminary injunction

pursuant to Boys Market to maintain the status quo pending mandatory arbitration.

Columbia

Local Am. Postal Workers Union v. Bolger, 621 Fold 615, 617 (4th Cir. 1980). In such cases,
"[cJourts must avoid reaching the merits of arbitrable disputes" and must instead determine
whether the dispute is arbitrable and whether it is necessary to "preserve the status quo" to
maintain the integrity of the arbitral process. Drivers, Chauffeurs, Warehousemen and Helpers
Teamsters Local Union No. 71 v. Akers Motor Lines, Inc., 582 F.2d 1336,1342 (4th Cir. 1978).
Thus, the Court focuses on the "injury which would occur to the arbitral process" if the
status quo is not preserved

Lever Bros., 554 F.2d at 122. The arbitration process is harmed

where injuries caused by the employer's action cannot be remedied by the arbitrator, thereby
making the arbitration "but an empty victory for the union."
Eng'rs v. Missouri-Kansas-Texas

Id. (citing Bhd. of Locomotive

R. Co., 363 U.S. 528, 534-35 (1960)).

An injunction may

only issue if it "is necessary to protect the arbitral process itself." Bolger, 621 F.2d at 617. The

8

test for issuance of such an injunction "is whether the conduct proposed must be enjoined
because the available arbitral process could not possibly restore the status quo ante in an
acceptable form were that conduct to be found violative of contract rights." Id. at 618. Thus, an
injunction is warranted if the inability "to return the parties substantially to the status quo ante"
would render the arbitral process "a hollow formality." Lever Bros., 554 F.2d at 123; see Bolger,
621 F.2d at 618.
II.

Irreparable Harm
Having conceded that the dispute is subject to arbitration, Airgas's primary argument

against the issuance of a Boys Market status quo injunction is its claim that the actions it will
take in moving the HPRLCR and SMO operations out of the Hyattsville facility can be fully
undone by an arbitrator. If the Court concludes that an arbitrator can "restore the status quo ante
in an acceptable form," no injunction may issue. Bolger, 621 F.2d at 618.

To the contrary, the

Union argues that the relocation of the operations to other plants and the loss of 13 Union
positions to those facilities cannot, as a practical matter, be fully unwound.
The United States Court of Appeals for the Fourth Circuit has upheld Boys Market
status quo injunctions in cases involving the relocation of company operations to other plants. In
Lever Brothers, for example, the Fourth Circuit held that the district court properly issued a
preliminary injunction halting a company's plan to permanently move its entire operation from a
plant in Baltimore, Maryland to one in Hammond, Indiana until arbitration could occur. Lever
Bros., 554 F.2d at 122.

The Court concluded that without an injunction, the relocation of the

operations would have been a fait accompli, and the employees at the Baltimore plant would
have permanently lost their positions.

Id. Thus, the injunction was warranted because even if

the arbitrator found in favor of the union, there would have been no means for the arbitrator to

9

ensure the resurrection of the Baltimore plant. Id.

Likewise, the Fourth Circuit upheld another

status quo injunction in Akers, where the union sought to enjoin the employer, a hauling
company, from shutting down its union-staffed "general commodities division" and selling off
its trucks and terminals before arbitration could take place. Akers, 582 F.2d at 1338. The trucks
were then leased back for use in the company's non-union "special commodities division," to
which most of the general commodities work had allegedly been transferred.
the same time period, the company laid off approximately
new non-union drivers.

Id. at 1338-39. In

1200 union workers and hired 166

Id. at 1339. The court upheld the district court's grant of injunctive

relief because, in part, "[i]f the remaining terminals and vehicles are sold, there will be no jobs"
for union members to be assigned to, making the arbitrator unable to return the parties to their
pre-grievance positions. Akers, 582 F.2d at 1341.
By contrast, in Bolger, the Fourth Circuit held that the district court erred in issuing a
status quo injunction where a union was challenging the United States Postal Service's decision,
following the gradual moving of mail processing work from a post office to a central facility, to
eliminate a mail processing work shift at the post office and transfer those shift workers to other
positions in the same office, with residual effects on those workers' seniority and leave time.
621 F.2d at 616-18. Noting that no employees would lose their jobs and that there had been "no
showing that [the] jobs were less secure," the Court determined that the reorganization could, if
found to be a violation of the parties' agreement, be sufficiently undone by an arbitrator so as to
return the parties to their original positions.
Amalgamated

Id. at 618. In so ruling, the Bolger court relied on

Transit Union, Division 1384 v. Greyhound Lines, Inc., 550 F.2d 1237 (9th Cir.

1977), in which the United States Court of Appeals for the Ninth Circuit reversed a district
court's issuance of a preliminary injunction pending arbitration, holding that in a dispute about

10

whether Greyhound could unilaterally alter driver's work schedules, the employer's actions did
not frustrate the arbitration process because if the union prevailed in arbitration, "the situation
can be restored substantially to the status quo ante." Id. at 1239; see also Bolger, 621 F.2d at
618; Lever Bros., 554 F.2d at 122 (distinguishing Greyhound).
Here, the facts place this case much closer to those in Lever Brothers and Akers than to
Bolger and Greyhound.

As in Lever Brothers, Airgas will be permanently relocating entire

operational functions out of one facility and moving them to others, including a facility in
another state.

Although Airgas attempts to distinguish Lever Brothers by noting that the

Hyattsville location will remain open and claims that the transfers of the HPRLCR and SMO
operations could be easily undone, the evidence suggests otherwise.

The hearing testimony

established that the transfer will require the dismantling and moving of several large pieces of
equipment out of the Hyattsville facility either to Montgomeryville or into storage. One piece of
equipment is so large that it will need to be transported on a flat-bed tractor-trailer.

Thus,

although the entire plant is not moving as in Lever Brothers, Airgas's proposed course of action
involves a qualitatively similar physical relocation, even if on a smaller scale.
The physical relocation of the operations is significant not only because it makes it more
difficult to return to the status quo ante, but also because it will lead to the execution of Airgas's
avowed future plans for the Hyattsville facility.

Airgas has repeatedly asserted, both in its

correspondence with the Union and in affidavits submitted to the Court, that it will convert the
vacated space in Hyattsville

into storage facilities for gases and chemicals,

including re-

purposing one of the vacated rooms into a dedicated storage area for nitrous oxide. Airgas states
that it is required to create such new storage facilities to comply with DHS and FDA
requirements.

Given that Airgas has refused to consider expedited arbitration, and the parties

11

agree that arbitration in the normal course will take six months to one year to complete, the
physical gap left by the move of the HPRLCR and SMO equipment will undoubtedly be filled
during that time frame by this activity.

Once the space is re-purposed, an arbitrator's order to

return to the status quo ante would impose upon Airgas the untenable requirement to reconfigure
its physical facility in a way that undoes an activity necessary to comply with federal regulations
and requirements.

With Airgas having claimed, through counsel, that, absent the transfer it must

otherwise construct or lease new space to carry out this storage function, it is not realistic to
conclude that Airgas could simply undo the physical transfer of the HPRLCR and. SMO
functions.

Thus, for all intents and purposes, once the HPRLCR and SMO facilities are moved,

the Hyattsville factory will no longer be able to accommodate those operations, amounting to a
shuttering of the factory doors for those units. See Lever Bros., 522 F.2d at 122.
In addition, as in Lever Brothers and Akers, certain employees at the Hyattsville facility
will be losing their jobs permanently.

Although on a smaller scale, the Airgas transfer of

functions will result in the loss of 13 positions, representing approximately 20 percent of the
Union's

positions at the Hyattsville facility.

A prolonged "discharge

of employees from

positions long held" might render it "impossible" to make the employees themselves "whole in
any realistic sense."

Bhd. of Locomotive Eng'rs v. Missouri-Kansas-Texas

R. Co., 363 U.S.

528, 534-35 (1960) (noting, in a case where the district court had preliminarily
railroad-workers

enjoined a

strike, that under such circumstances "the action of the district judge, rather

than defeating the [National Labor Relations] Board's jurisdiction, would operate to preserve
that jurisdiction by preventing injury so irreparable that a decision of the Board in the unions'
favor would be but an empty victory"). By itself, the lay-off of employees would not necessarily
warrant a status quo injunction.

See, e.g., Consolidated Aluminum, 696 F.2d at 433 (vacating a

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pre-arbitration injunction staying the company's plan to restructure its job classifications, even
though it would result in the termination of 16 employees, where there was no apparent barrier to
its ability to restore the eliminated positions).

Here, however, Airgas has gone further. Airgas

has already started to set up a competing operation-outside

the ambit of the CBA-with

five

newly hired, non-union employees at the Montgomeryville facility. See Akers, 582 F.2d at 1339
(noting that, while lay-offs were taking place, the company was hiring 166 new, non-union
employees in the division taking over the work of union employees who had been subject to layoffs). It did so after offering to the Union that Hyattsville workers subject to lay-offs would be
given preference for new positions in Montgomeryville.

Thus, with some positions already

replaced with new workers, and with arbitration of the grievance perhaps taking up to a year, the
Montgomeryville

HPRLCR operation will almost certainly become strongly rooted enough to

make ordering the return of those positions to Hyattsville infeasible.

The combination here of

the physical relocation of entire operational functions and the permanent loss of positions, some
of which have already been replaced, would not permit an arbitrator to return the parties to the
status quo ex ante. See Lever Bros., 554 F.2d at 122-23.
In light of this evidence, Bolger, the case on which Airgas primarily relies, is clearly
distinguishable.

As in Greyhound,

the proposed

action in Bolger consisted

employees' work assignments within the same facility.

of altering

621 F.2d at 617. No employees lost

their jobs, and there was no imminent closure and relocation of physical operations.

Id. at 618.

The Court therefore concludes that the Union has met its burden of establishing that the transfer
of the HPRLCR and SMO operations from the Hyattsville facility to the Montgomeryville and
Linthicum Heights facilities, respectively, would likely cause irreparable harm to the arbitral

13

process because that transfer would amount to a ''fait accompli" that would render arbitration "a
hollow formality." Lever Bros., 554 F.2d at 122-23.
III.

Additional Factors
Having concluded that the dispute is subject to arbitration and that a status quo injunction

is permissible under these facts, the Court turns to the traditional factors that must be considered
before issuing a preliminary injunction:

(l) likelihood of success on the merits; (2) likely

irreparable harm; (3) the balance of the equities; and (4) the public interest.

Winter, 555 U.S. at

20.
As discussed above, the Union has established likely irreparable harm because in the
absence of an injunction, the physical relocation and loss of positions will prevent the arbitrator
from ordering a return to the status quo. See supra part II.
The remaining factors are also satisfied.

As to likelihood of success on the merits, the

question is whether the Union is likely to succeed not on the merits of the underlying dispute, but
on its assertion that the dispute is subject to mandatory arbitration. See Akers, 582 F.2d at 1342
(holding

that the district court "misconstrued"

the likelihood

of success requirement

to

necessitate a showing that the union would prevail on the merits of its dispute); Lever Bros., 554
F.2d at 119 (finding that an injunction properly issued where the district court "equated" the
union's likelihood of success on the merits with "the likelihood that the Union would prevail in
its contention that the dispute in issue was one for the arbitrator").

Airgas concedes that the

underlying dispute between the parties stems from competing interpretations of the CBA and
thus is subject to arbitration by the terms of that agreement. The Union is thus likely to succeed
on the merits of its claim that this dispute is one that must be resolved through arbitration.

14

As for the balance of equities, in their communications

with the Union about the

proposed transfer, Airgas stated that while the transfers would enable certain "efficiencies," it
did not anticipate any labor cost savings to result.

As to any harm that would result from an

injunction, Airgas asserted that it now has to pay the five newly hired Montgomeryville
employees.

This potential harm, however, appears to be one of Airgas's own making, since it

chose to hire these employees after the Union had first raised concerns about the relocation in its
letter of February 1,2017.

See Feb. 9 Ur. at 4 (stating that as of that date, Airgas was "actively

recruiting" for those positions).

Airgas also asserts that it runs the risk of a non-compliant DHS

audit of the Hyattsville facility if it does not convert the vacated space to a storage area for
certain gases and chemicals of concern. At the hearing, however, Airgas counsel acknowledged
that DHS had not ordered Airgas to take any particular compliance steps by a date certain.
Weighed against these potential harms is the immediate harm to the Union of the imminent loss
of at least one position, assurances of additional layoffs in the near future, and the official loss of
20 percent of its positions at the Hyattsville facility.

It also faces the reality that even if the

Union were to prevail in arbitration, the return of any eliminated positions would not be feasible.
See supra part II.

Considering these factors, particularly the loss of employment for certain

Union workers, the Court concludes that the risks to the Union from the transfer proceeding
before arbitration is completed are greater both in degree and in kind than those faced by Airgas
if the transfer is stayed while arbitration unfolds. The Court therefore finds that the scale tips in
favor of the Union.
Finally, the public interest favors an injunction.
where the Supreme Court emphasized

The Court returns to Boys Markets,

the importance "of a mechanism

for the peaceful

resolution of labor disputes," and the need to make available "equitable relief in the arbitration

15

context" as part of that mechanism.

398

u.s. at 253.

The public has an interest in arbitration as

a means of resolving labor disputes, and it has a concomitant interest in ensuring that the
conditions of that arbitration result in meaningful, rather than hollow, resolution.

Because the

public interest aligns with the principle that no injury should be done to arbitration process, the
Court finds that the this factor favors the issuance of an injunction.

With all four Winter factors

established, the Court may grant the requested status quo injunction.
IV.

Expedited Arbitration
The Union has also asked that the Court require Airgas to engage in expedited arbitration.

However, any mandated timeline for arbitration must be found in the CBA's grievance procedure
over which the parties bargained and to which they agreed. See Akers, 582 F.2d at 1343.

For

this Court to impose any other timeline would be "to, in effect, re-write the terms of that
agreement," which would deprive the parties of their bargain.

Id.

In light of this Court's

determination as to the status quo injunction, the parties are, of course, free to negotiate any
timeline for arbitration that they wish.
V.

Bond
Under Federal Rule of Civil Procedure 65, a court may issue a preliminary injunction

"only if the movant gives security in an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been wrongfully enjoined or restrained."

Fed.

R. Civ. P. 65(c). The Court finds that both parties suggested bond amounts miss the mark. The
Union asserts that only a nominal amount is necessary because Airgas has acknowledged that the
relocation of functions does not generate any labor cost savings. Airgas, however, seeks $70,000
per month. Not only has Airgas failed to produce evidence to support this amount, but the vast
majority of this amount likely arises from the payment of wages to new employees who were

16

hired after this dispute began. Moreover, these employees are non-union personnel, and Airgas
has not claimed that they are subject to an employment contract that requires Airgas to retain
them or pay them prior to the actual relocation of work to Montgomeryville.

The Court therefore

does not accept Airgas's proposed figure. Nevertheless, in order to ensure that there are funds to
compensate Airgas should it successfully establish that the preliminary injunction should not
have issued, and that they wrongfully sustained damages as a result of this injunction, the Court
requires the Union to post a bond of $5,000.

That bond must be posted by March 8, 2017.

Failure to post the bond will result in dissolution of the injunction.
CONCLUSION
For the foregoing reasons, the Union's Motion for a Temporary Restraining Order is
DISMISSED AS MOOT.

The Union's Motion for a Preliminary Injunction is GRANTED.

Airgas it ordered to maintain the status quo in this matter until issuance of a final binding and
arbitration award.

Specifically, Airgas is enjoined from relocating the HPRLCR function and

SMO function units of its Hyattsville, Maryland facility to other facilities, including relocating
any HPRLCR and SMO function equipment or materials from the Hyattsville, Maryland facility
to other facilities; and from making any reductions in or alterations to staffing of the HPRLCR
function and the SMO function units of its Hyattsville, Maryland facility. A separate Order shall
Issue.

Date:

March 3, 2017
THEODORE D. CHU
United States District Ju

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