The opinion of the court was delivered by: WEBER
Bethlehem Mines Corporation is ready to arbitrate the question of the right of its employees to refuse to work because of the presence of pickets at its gate.
As a result of such work stoppages and related shutdowns the plaintiff has lost great quantities of coal production which are required for the continued operation of the steel mills of Bethlehem Steel Company. The production of these mines is a low volatile coal required for coking operations and the plaintiff company has no other source of supply either from other mines owned by it or on the open market. The lost production cannot be made up by future production. It would not be possible for the defendants jointly or severally to compensate plaintiff in damages for the loss of production occasioned.
There is no evidence that Defendant International Union, Defendant District 2 or any Defendant Local has applied any sanctions to prohibit such work stoppages.
The stoppages at each of the mines is continuing and will work further irreparable harm.
We find that greater harm will be done to the employer from a refusal of the injunction than to the unions from its issuance.
The merits of the reasons for the work stoppage, the reasons for the picketing, the justification for the members of Defendant Union in obeying the requests of the pickets, and the rights of the employer to require continued work are not matters which can be considered by the court at this time. The sole question is whether these must be considered under the mandatory grievance procedure in the contract. We find that under the terms of the contract which provide that "all disputes and claims which are not settled by agreement shall be settled by the machinery provided" requires that this be done.
The parties to this suit are employer and employee and they are parties to a collective bargaining agreement. The plaintiff is faced with a massive concerted work stoppage by members of the various defendant Local Unions which has caused a shutdown of all mines in its Cambria Division.
The plaintiff seeks and the defendants resist an injunction to halt the work stoppage. The reason for the work stoppage is the appearance at the entrances of plaintiff's mines of individuals who are not employees of plaintiff urging the members of defendant local unions to cease work.
All of the other conditions for injunctive relief are present, irreparable injury, the continuance of such conduct and its likelihood of continuance in the future, and the fact that the employer will suffer more from denial of the injunction than the union will from its issuance.
The essential element lacking according to the defendant unions is the existence of an issue which the parties can be compelled to arbitrate under their contract, under the doctrine of Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 .
It is incumbent upon this court, under Boys Markets, to make a determination that the contract here does have this effect.
It is always argued that the National Bituminous Coal Wage Agreement of 1971 has no prohibition against strikes. This matter has been determined in Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 42 L.W. 4095, 94 S. Ct. 629, 38 L. Ed. 2d 583 (1974):
The rationale of granting equitable relief for the enforcement of arbitration agreements was drawn from the Court's opinion in Boys Markets.
" ' [A] no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. . . . Any incentive for employers to enter into such an agreement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation ...