decided: May 12, 1975.
THE CELOTEX CORPORATION, PITTSTON PLANT, ROUTE 92, HARDING, PENNSYLVANIA, APPELLANT
OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, MARTIN BUILDING, SUITE 2B, 1155 WEST CHESTNUT STREET, UNION, NEW JERSEY AND OIL, CHEMICAL AND ATOMIC WORKERS UNION, AFL-CIO LOCAL 8-672, C/O MICHAEL MACKACHINIS VICE-PRESIDENT, 35 GRANT STREET, EXETER, PENNSYLVANIA AND MICHAEL MACKACHINIS, 35 GRANT STREET, EXETER, PENNSYLVANIA 18643 AND WILLIAM WILLIAMS, 48 WHITE STREET, SWOYERVILLE, PENNSYLVANIA 18704 AND RICHARD KOLMAN, 242 HARLAND STREET, EXETER, PENNSYLVANIA 18643 AND JOHN MERCINCAVAGE, 331 DAMON STREET, WEST PITTSTON, PENNSYLVANIA 18643 AND ROBERT YOUNG, 7 UNION STREET, PITTSTON, PENNSYLVANIA 18640 AND JOHN WRUBLE, 737 SPRING STREET, AVOCA, PENNSYLVANIA 18641 AND FRANK GROBLEWSKI, 801 FOOTE AVENUE, DURYEA, PENNSYLVANIA 18642 AND JOSEPH ESKRA, 76 E. SYCAMORE DRIVE, SWOYERVILLE, PENNSYLVANIA 18704 AND DAVID EVANS, 19 JOHNSON STREET, PITTSTON, PENNSYLVANIA 18640 AND JAMES HEFFERS, 410 SOUTH MAIN STREET, PITTSTON, PENNSYLVANIA 18640 AND WILLIAM MILES, R.D. # 1, PITTSTON, PENNSYLVANIA 18640 AND ORIN OLMSTEAD, 84 RIVER STREET, PITTSTON, PENNSYLVANIA 18640 AND JOHN SCRIPKUNAS, 322 SUSQUEHANNA AVENUE, EXETER, PENNSYLVANIA 18643 AND JOSEPH SEELEY, 11 ST. MARY'S STREET, AVOCA, PENNSYLVANIA 18641
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 74-155).
Aldisert, Gibbons and Garth, Circuit Judges.
This is an appeal from an order of the district court awarding attorney's fees, expenses and costs in favor of the defendant labor unions pursuant to § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107.*fn1 This dispute had its origin in a complaint filed on February 19, 1974 by appellant Celotex Corporation pursuant to § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) against the Oil, Chemical and Atomic Workers Union, AFL-CIO, Local 8-672, the International with which the local is affiliated, and certain individual members and officers of the union. Celotex sought a temporary restraining order against a work stoppage which it alleged was in violation of a no-strike pledge contained in a collective bargaining agreement then in effect between the company and the union, and also asked for a hearing on an injunction. On that same day, the court issued the TRO enjoining the work stoppage.
On March 12, 1974 the court held a consolidated hearing on plaintiff's motion for the injunction. The court denied Celotex's request for injunctive relief and instead granted the unions' motion to vacate the TRO.*fn2 It did so on the ground that injunctive relief was no longer necessary because the work stoppage had ceased and that there was little likelihood that the strike would resume.
Thereafter the unions moved for assessment of damages against the company pursuant to § 7 of the Norris-La Guardia Act, 29 U.S.C. § 107. The unions contended that the TRO had been improvidently granted, in that the court failed to follow certain procedural requirements imposed by § 7. The district court, upon its reading of our opinion in United Steel Corp. v. United Mine Workers, 456 F.2d 483 (3d Cir.), cert. denied, 408 U.S. 923, 33 L. Ed. 2d 334, 92 S. Ct. 2492 (1972), concluded that the procedural requirements of the Norris-LaGuardia Act are to be strictly complied with in a Boys Market injunction situation, and that for the company's failure to do so, damages pursuant to § 7 were appropriate. Following a hearing held on July 15, 1974 to determine the unions' reasonable costs, including attorney's fees, the district court ordered Celotex to pay the unions a total of $2,997.42.*fn3
We reverse because the district court, in these circumstances, misapplied § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107.
Celotex owns and operates a plant manufacturing mineral ceiling tile located in Harding, Pennsylvania. The plant's production and maintenance employees are members of Local 8-672, with which Celotex had a collective bargaining agreement. This agreement contains grievance and arbitration provisions, and an express covenant by the union that during its term "there shall be no strikes, slow-downs, sit-downs, walkouts, or other interference with work." (App. at 21a). On February 15, 1974 an unauthorized wildcat strike took place at the plant halting all production. The unions concede that the strike violated the contract.
I. CELOTEX'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER
On February 19, 1974 Celotex filed a verified complaint, a motion for a temporary restraining order, an affidavit of Richard H. Enslen, its Plant Manager and a certification of notice to the defendants. The motion, relying on both the verified complaint and the affidavit, asserted that immediate and irreparable injury would occur to Celotex if the conduct complained of was not enjoined prior to notice and hearing. The certification of notice to the defendants indicates that at 9:30 a.m. on February 19th the attorney for Celotex personally notified William Clemens, International Representative of the parent union that Celotex would file the complaint and move for a temporary restraining order in Scranton that morning; that between 9:30 and 10:00 a.m. on February 19th Enslen, the Plant Manager, so notified two officers of Local 8-672, and at 9:40 a.m. Harned, the Plant Superintendent, notified a third union officer.
The verified complaint and affidavit established these facts:
1. The illegal work stoppage -- On February 15, 1974 Celotex discharged an employee, George Killian, the newly elected president of Local 8-672, for alleged tardiness and absenteeism after numerous warnings. Local 8-672 submitted a grievance over the discharge and Celotex agreed to arbitrate. The employees represented by the local, however, refused to report to work and set up a picket line. As a result of the work stoppage and picket line all production in the plant, all deliveries of supplies, and all shipments ceased. Celotex directed the employees to return, and sought assistance from the officials of both the local and parent unions. At a meeting on February 18th the company was advised by several such officials that the employees would not return to work unless Killian was reinstated. The company advised that it would promptly arbitrate Killian's case but would not reinstate him pending arbitration. Clemens, a union official advised the Celotex Plant Manager that the men would return to work if the company would agree not to discipline anyone who participated in the strike. The Plant Manager could not so agree since the strike was in breach of the contract. After a committee of union officials met with the employees Clemens advised that he did not think the employees would return to work.
2. Physical risk to the plant -- Celotex depended for its heat and the operation of the plant on almost daily deliveries of fuel oil which the pickets blocked from entering the plant by standing stationary in front of the trucks. It was necessary to keep the plant heated both to permit supervisory personnel to work and to prevent the plant's water lines from freezing and bursting. The plant contains an extensive sprinkler system which is its primary fire protection. If it ran out of fuel and the pipes froze the ...
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