in the bargaining agreement. The absence of such a clause in the instant bargaining agreement seems to this Court to weight heavily against plaintiffs' position.
The point then is reached as to what the law is with respect to the issues raised in the instant case, having in mind and emphasizing the facts found.
Both at the trial and in their brief, plaintiffs rely on United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, and argue that it cannot be distinguished in principle from this case.
In the Warrior & Gulf case the union sought to compel arbitration of a grievance based upon the employer's practice of contracting out work while employees who could have performed such work were being laid off. There was no provision of the contract relating to the contracting out of work. A grievance procedure culminating in arbitration was to be followed if differences as to the meaning and application of the provisions of the agreement, or any local trouble of any kind arose. However, the contract also contained 'no strike' and 'no lockout' provisions. In determining that a proper case for arbitration was presented, the Court, 363 U.S. p. 583, 80 S. Ct. p. 1353, held that when '* * * an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement, for either management is prohibited or limited in the action it takes, or if not, it is protected from interference by strikes.' But it should be noticed that the Court had said, 363 U.S. p. 581, 80 S. Ct. p. 1352,
'Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.'
The 'no strike' clause in the contract before the Court in Warrior & Gulf is the key to the decision. In the case before me the right to strike saved to the plaintiffs in the bargaining agreement requires a different result than that reached in Warrior & Gulf. It is to be noticed that United Steelworkers of America v. American Manufacturing Co., supra, was decided by the Supreme Court on the same day as the Warrior & Gulf case, and also contains a 'no strike' clause in the bargaining contract. A similar clause was likewise in International Telephone and Telegraph Corporation v. Local 400, etc., supra, where Judge Staley held that arbitration was required. In a case that went up from this Court, Association of Westinghouse Salaried Employees v. Westinghouse Electric Corporation, 188 F.Supp. 225, (W.D.Pa., 1959), between the same parties, Judge Sorg held that the grievance which the union sought to arbitrate was one within the terms of the arbitration agreement. His opinion was affirmed by the Court of Appeals, 283 F.2d 93 (C.C.A. 3, 1960). The Supreme Court decision in General Drivers, etc. v. Riss & Company, Inc., 372 U.S. 517, 83 S. Ct. 789, 9 L. Ed. 2d 918, decided March 18, 1963, has not been overlooked, but it raised no new element to be considered.
In claiming that a proper case for arbitration is not presented, the Company contends that an award in favor of the plaintiffs would violate Section 8(e) of the Labor Management Relations Act, 1947, as amended, 29 U.S.C.A. § 158. Defendant argues that an arbitration award preventing it from subcontracting or contracting out work would require it to cease doing business with another person, thus constituting an unfair labor practice. In Section 158(e) Congress has defined any agreement or contract whereby an employer ceases or refrains from doing business with any other person '* * * an unfair labor practice'. However, it is to be noticed and emphasized that the statute in Section 160 provides the method and process by which unfair labor practices are prevented. Complaints first go to the National Labor Relations Board and, on review, to the Court of Appeals. The District Courts have no jurisdiction to determine whether or not activity by an employer or a union is an unfair labor practice. See San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 779, 3 L. Ed. 2d 775, 1959, where the Court held:
'When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board * * *.'
Under the circumstances, the 8(e) defense raised by the defendant in this case is not a valid one.
And finally, this Court concludes that it has jurisdiction under Section 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 185(a). See Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972, 1957. Judgment will be directed for the defendant.
This Opinion is regarded as embracing the Findings of Fact and Conclusions of Law.
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