July 20, 1970, at which time testimony was presented to the court comparable to that presented on July 13, 1970, with the exception that picketing had resumed and there were no representations offered that the picketing would be discontinued, or that the picketing would not continue in the future.
As it appears from the testimony elicited at the two hearings, Stroehmann Brothers is a Pennsylvania Corporation engaged in the manufacturing and production of baked goods, with twelve separate plants throughout the United States. The principal office of Stroehmann Brothers (hereinafter Stroehmann) is located in Williamsport, Pennsylvania, which is also the situs of two of their plants, a roll plant and a cake plant. In addition, Stroehmann operates a plant at Cumberland, Maryland.
The employees at the Cumberland, Maryland, Plant are represented by Local #246 of the Confectionery Workers International Union of America, the same International Union of defendants herein. Presently, Local #246 is engaged in an economic strike over wages.
On July 7, 1970, at 1:30 a.m., pickets representing Local #246 appeared at the Stroehmann Roll Plant in Williamsport and patroled across the main employee entrance with placards stating:
"STROEHMANN BROTHERS COMPANY ON STRIKE
LOCAL 246 AFL-CIO
The patroling continued from approximately 1:30 a.m. until 10:00 a.m., at which time the pickets left after the serving of a temporary injunction as issued by the Court of Common Pleas of Lycoming County.
Approximately 25 Roll Plant employees refused to cross, or honored Local 246's picket and thereby failed to report for their scheduled work; whereas, approximately 60 employees were scheduled.
The picketing was resumed by Local 246 at the Williamsport Roll Plant subsequent to the hearing held on July 13, 1970, and the court's assumption of jurisdiction on or about July 18, 1970. Again, approximately 25 employees honored and continued to honor the picket. Production of sweet rolls and soft rolls have been cut back approximately 50% and 30%, respectively. Testimony has been offered that the Williamsport Roll Plant produces all of Stroehmann's sweet roll products for all the plants, and approximately 80% of its soft roll production.
Additional testimony was offered that Malkiewicz, the International Representative, and Lesko, the Business Agent of #427, commingled with the employees who refused to cross the picket line on July 15, 1970.
Stroehmann contends that the strike, or refusal to report for work, is in material breach of the no-strike clause (Article XIII). Furthermore, Stroehmann contends that the breach of the no-strike clause is an arbitrable grievance which the parties are contractually bound to arbitrate and which Stroehmann is willing to arbitrate as a condition for issuance of the preliminary injunction; and that an injunction is warranted under ordinary principles of equity.
Local 427 argues that plaintiff has failed to show that defendant Local 427 breached the contract; that the Norris-LaGuardia Act prohibits issuance of the preliminary injunction sought here; and that the dispute here is not over an arbitrable grievance.
The issue of whether or not a preliminary injunction may be granted in an action under § 301(a) is now controlled by The Boys' Markets, Inc., v. Retail Clerk's Union, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199, 1970 (hereinafter Boys' Market) which adopted the principles set forth in the dissenting opinion of Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S. Ct. 1328, 8 L. Ed. 2d 440 (1962) (hereinafter Sinclair).
As set forth in the dissent in Sinclair and reiterated in Boys' Market, a "District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the conduct does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity -- whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance." (370 U.S. at 228, 82 S. Ct. at 1346) (Emphasis the Supreme Court's)
The Sinclair dissent based its rationale and emphasized that the question is not whether "the basic policy embodied in Norris-LaGuardia against the injunction of activities of labor unions has been abandoned in actions under § 301; the question is simply whether injunctions are barred against strikes over grievances which have been routed to arbitration by a contract specifically enforceable against both the union and the employer. * * *" (at 224-225, 82 S. Ct. at 1344) (Emphasis added)
It is undisputed that a "no strike clause" is arbitrable if the employer is bound to arbitration by the collective bargaining agreement. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 82 S. Ct. 1346, 8 L. Ed. 2d 474 (1962); H.K. Porter Co. Inc., Connors Steel Div. W. Va. Works v. Local 37 United Steel, 400 F.2d 691 (4th C.A. 1968); United Eng. & Fdry. Employees Ass'n Ind. Union v. United Eng. & Fdry. Co., 389 F.2d 479 (3d C.A. 1967). And that all doubts should be resolved in favor of arbitration. United Steelworkers of America v. Warrior, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960).
Although a preliminary injunction would be warranted herein under principles of equitable considerations, it is a matter for the court to determine whether or not both parties are bound to arbitrate. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962) and, in fact, the court must hold that both parties are contractually bound to arbitrate before issuing a preliminary injunction. Boys' Market, supra.
The arbitration and grievance procedure as set forth in the existing collective bargaining agreement provides:
"ARTICLE XII GRIEVANCE AND ARBITRATION PROCEDURE:
"12.01 A grievance shall be understood to be any difference in opinion or dispute between the Company and the employee regarding the interpretation or application of any provision of this agreement. Grievances not presented within fifteen (15) calendar days from the date of occurrence, the fifteen days to include the day of occurrence, will not be recognized. The procedure for handling grievances shall be as follows: