Adams and Rosen, Circuit Judges, and Stapleton, District Judge.
The defendant unions ("the unions") appeal from a final judgment below which enjoined work stoppages by them at the premises of the plaintiff employer, Parade Publications, Inc. ("Parade"). Parade initially filed a verified complaint and affidavit in a state court; a temporary restraining order was entered. The unions removed to the United States District Court for the Eastern District of Pennsylvania, and a hearing was held on Parade's application for a preliminary injunction. A preliminary injunction was entered. On November 30, 1970 defendants stipulated to the entry of a final decree. The final paragraph of the stipulation provided:
"3. The entry of such final order shall be without prejudice to the right of the defendants to appeal therefrom and this Stipulation shall not be construed as an agreement by the defendants with regard to the validity of said final decree (or prior temporary restraining order or preliminary injunction)."
Parade's complaint did not allege that there was a dispute between the parties which they were bound to arbitrate under the terms of an existing collective bargaining agreement. It alleged that "no labor dispute exists between plaintiff and defendants nor is there a labor dispute between plaintiff and its employees." The complaint asserted, however, that the strike was in violation of "no strike" clauses in existing collective bargaining agreements between the parties and should be enjoined. The unions, at the hearing on the application for a preliminary injunction, represented to the court that there was a dispute which gave rise to the strike and characterized it as follows:
"It actually arises out of the fact that Parade Publications, which is the plaintiff in this case, has entered into some sort of arrangement via a dummy corporation known as Diversified Printing out in Chester in which it has kept the unions which are involved here totally, absolutely in the dark, refused to allow their members to apply for work out in the Diversified operation and which Parade ultimately views as being the overall printing effort of the Parade-Diversified structure, the net result being that employment at Parade will disappear and employment at other similar enterprises throughout the country will disappear into a plant that will be represented by an organization other than these two organizations and which will be manned by people other than members of these two organizations."
During the hearing on the application for a preliminary injunction, the following exchange occurred between the court and counsel:
"THE COURT: There is nothing in your complaint that says you are willing to arbitrate.
MR. KOHN: We don't know what they want to arbitrate. Whatever they want to arbitrate, I can state to you, and it is one of the things we will prove here, that we are prepared to go to arbitration, and, in the state court, of course, that allegation was not necessary.
I don't know what they want to arbitrate. We are ready to arbitrate whatever it is that they want to arbitrate.
Actually the grievance will be shown, if we ever get to the necessity of taking evidence, and that is what Mr. Lauffer is going to testify to, they wanted to go through the other plant Friday afternoon. They had already been through it earlier the preceding week. There was an important meeting going on, and they had been told Thursday they could go through it Monday, Tuesday, or Wednesday of the following week. They then said, we will pull the men out of the Philadelphia plant. That is what this is about. . . .
MR. KATZ: If Your Honor please, I may be able to resolve this. In view of what Mr. Kohn has said, we may find ourselves on the brink of an agreement between the parties as to how to dispose of this.
It is our contention under all of the circumstances our pressmen and mailers members and employees at Parade are entitled to preferential employment at Diversified. It is our contention that we are entitled to recognition at Diversified and to certain other attributes at Diversified.
If Mr. Kohn is willing to submit that to arbitration, it comes as a surprise to me. We will certainly accept that order and proceed to ...