The opinion of the court was delivered by: LORD
Plaintiff instituted this action on March 4, 1960 against the defendants for breach of the terms of a collective bargaining agreement. Section 301, Labor Management Relations Act of 1947, 29 U.S.C.A. § 185. Plaintiff specifically contends that Local 1717 instigated a work stoppage in violation of the 'no-strike' provision contained in Article XXVIII of the collective bargaining agreement. Defendants filed an answer wherein they denied these allegations.
On January 4, 1961, defendants filed this Motion to Stay the entire action until plaintiff has first processed its claim through the grievance and arbitration procedure established in the agreement itself. The real question is: Does the agreement contemplate submission to arbitration of all disputes including an alleged breach of the 'no-strike' clause?
Article XXVIII contains the strike and lockout provisions of the agreement. See Appendix A. It provides, in part:
'28.0 The Union will not call or sanction any strike, concerted stoppage or concerted slowdown during the term of this Agreement. * * *
'28.1 Should a strike * * * other than * * * permitted by Section 28.0 hereof occur * * * the Union will * * * immediately issue instructions to employees to return to work pending disposition of any grievance or dispute which is filed in connection therewith.' (Emphasis supplied.)
Article XXIV of the Agreement sets forth in detail the steps to be followed in the grievance procedure. See Appendix B. Section 24.0 of this Article specifically states:
'* * * either party may invoke the grievance procedure in the consideration of any difference between the Company and an employee or group of employees involving the interpretation or application of the provisions of this Agreement. * * *' (Emphasis supplied.)
Section 24.7 of the same Article provides:
'The grievance procedure and arbitration provided for herein shall constitute the sole and exclusive method of determination, decision, adjustment or settlement between the parties of any and all grievances and the grievance procedure and arbitration provided herein shall constitute the sole and exclusive remedy to be utilized by the parties hereto for such determination, decision, adjustment or settlement of any and all grievances.' (Emphasis supplied.)
Drake Bakeries, Inc. v. Local 50, American B. & C. Wkrs., 2 Cir., 1961, 287 F.2d 155, 158, not only reflects the current view of the Second Circuit but is also precisely in point with the instant case. Judge Swan, after an exhaustive review of the authorities, stated:
'* * * Where the no-strike clause is as specific as in the case at bar, it seems clear that the parties intended the grievance-arbitration procedure to supplant strikes as a means of resolving industrial disputes, but did not intend to subject alleged breaches of the no-strike clause to arbitration when a strike was resorted to before making any attempt to utilize the grievance-arbitration procedure.'
The provisions of the collective bargaining agreement relating to grievance and no-strike clauses in Drake were similar in import to the language used in the agreement in the instant case. Compare Drake Bakeries, supra, footnote 2 with Appendices A and B. The Court in distinguishing Signal-Stat Corp. v. Local 475, United Electrical, R. & M. Wkrs., 2 Cir., 1956, 235 F.2d 298, relied upon by defendants, reaffirmed the view expressed in Markel Electrical Products, Inc. v. United Electrical, R. & M. Wkrs., 2 Cir., 1953, 202 F.2d 435.
The most recent case on the precise point is Vulcan-Cincinnati, Inc. v. United Steelworkers of America, 6 Cir., 1961, 289 F.2d 103. The grievance procedure established by the collective bargaining agreement in that case was preceded by an introductory scope-clause which provided: 'Should differences arise * * * or should any local trouble of any kind arise in the plant, there shall be no * * * strikes * * * but the matter shall be settled * * * in the following manner * * *.' The court, after citing with approval the Drake and Markel cases, supra, held that a violation of the no-strike provision was not an arbitrable issue since it was not a dispute governed by the grievance procedure. The court, in Vulcan, relied in part on International Union United Auto. Aircraft v. Benton Harbor Malleable Industries, 6 Cir., 1957, 242 F.2d 536. In Benton Harbor, the language of the collective bargaining agreement concerning arbitrability was identical to the contract provision in Vulcan. The court, in denying arbitration of the alleged violation of the no-strike clause, stated (242 F.2d at page 540):
'Article III, paragraph 1, contains an unequivocal, unconditional obligation not to strike or engage in a work stoppage during the term of the contract. It recognizes that a 'difference' might arise between the Company and the union which, if not settled, would lead to a strike. It looks to a settlement of that difference by use of the grievance procedure, but there is nothing in that paragraph which relieves the unions of their unconditional obligation not to have a strike. The 'difference' or 'grievance' is to be arbitrated to a final conclusion, but while it is being arbitrated and regardless of how it is eventually decided and terminated, there is to be no strike. The thing to be arbitrated is the 'difference' or 'grievance,' not the right to strike or any claimed justification for the strike. There was no right to strike. The arbitration called for by this paragraph of the contract was to be used instead of a strike, not to determine whether the strike was justified after it had occurred * * *.'
See Hoover Motor Express Co. v. Teamsters etc., Local 327, 6 Cir., 1954, 217 F.2d 49.
United Electrical, Radio and Machine Workers of America v. Miller Metal Products, Inc., 4 Cir., 1954, 215 F.2d 221 represents the view of the Fourth Circuit. The Fourth Circuit is in accord with the Second and Sixth Circuits. In United Electrical the collective bargaining agreement was formulated so that the no-strike provision of the contract was placed under a section separate from the grievance and arbitration provisions. The court, applying the statutory maxim of noscitur a sociis, decided that the parties could have provided for the arbitration of any disputes -- but that this was not done since the grievance and arbitration provisions of the agreement were enumerated separately from the provisions concerning the no-strike clause. An examination of the agreement in the instant case reveals that the provisions relating to grievances ...