SCALERA, District Judge.
Steelworkers' Local 1537 represents the production and maintenance employees at plaintiff company's Latrobe plant. The members of Local 1537 refused to cross a picket line established at the plant by fellow employees who are members of another Steelworkers' local representing the plant's office and technical workers.
The company claims that the union's refusal to cross the picket line of a sister union constitutes a violation of both the express no-strike clause and the grievance-arbitration provisions of the collective bargaining agreement.
The union argues that its refusal to cross the picket line is not an arbitrable dispute under the agreement and, therefore, that the arbitration and express no-strike provisions do not apply to this work stoppage.
The court granted injunctive relief under section 301 of the Labor-Management Relations Act of 1947,
in accordance with the Boys Markets5 exception to the anti-injunction provisions of the Norris-LaGuardia Act.
Defendants filed a motion to vacate the entry of the preliminary injunction.
The company filed its complaint on Friday, September 5, 1975, seeking a temporary restraining order and, after a hearing, a preliminary injunction to compel the production and maintenance workers' return to work. The named defendants were the international union and its president, the district union and its director and staff representative, and the local union, its president and the chairman of the grievance committee, all individually and as trustees ad litem.
The court held a status conference in chambers on the morning of September 5. Counsel retained by the international and district unions was present. He indicated he did not represent the local. Counsel for the company indicated that he thought the international's counsel represented all defendants. The international's counsel stated that to his knowledge the local had not been notified of the proceedings, and asserted that he was not prepared to defend the local.
The court refused to grant a temporary restraining order because the company had not complied with Fed.R.Civ.P. 65(b), which requires counsel's written certification of the attempts to notify the adverse party.
The court scheduled a hearing for 2:00 p. m. on the afternoon of September 5. That afternoon counsel for the company filed the affidavit of the company's director of industrial relations, setting forth the successful efforts taken that day to notify the local of the proceedings.
The court resumed the conference in chambers. At that time, staff counsel from the international union was present and entered an appearance for the international and the local.
Following the status conference, the court proceeded to the scheduled hearing. At the outset of the hearing, counsel for the company indicated that he was modifying the terms of his proposed temporary order to delete the international and district unions as defendants. Thus, the hearing solely concerned the propriety of the local unions' refusal to cross the picket line.
At the hearing, the company produced evidence that the collective bargaining agreement in question contained an express no-strike clause and mandatory arbitration provisions, and that it was willing to arbitrate the dispute. The company introduced evidence to the effect that production had been shut down since the Thursday, September 4, midnight shift because the production and maintenance workers would not cross the picket line, that it already had suffered a loss of approximately "two-thirds of $10,000," and that it would lose approximately $10,000 per day, would lose customers, and would incur increased expenses because it would be unable to stockpile to the extent it had planned before an increase in natural gas prices. The court is satisfied from the evidence that a production schedule was in effect which required production and maintenance workers to report to work over the weekend.
The local produced evidence and presented in defense several propositions which may fairly be summarized as follows: (1) that the union officials in good faith were making every attempt to get the workers to return to work; (2) that no injunction should issue unless it appeared that the action sought to be enjoined was of a "continuing" nature; (3) that the strike had not been in effect even for twenty-four hours; (4) that the company lacked "clean hands" because it had sought injunctive relief immediately; (5) that "equitable considerations" required the denial of an injunction; and (6) that the amount of harm the company alleged it would suffer as a result of the strike was doubtful.
Counsel for the local agreed that the company is in interstate commerce, that a strike was in process, and that a binding no-strike contract was in effect between the union and the company.
Counsel for the local also agreed that the members were obligated under the collective agreement to return to work.
The only relevant defense asserted at the hearing with any possible persuasive effect concerned the uncertainty of the irreparable injury to the company. None of the defenses questioned the jurisdictional propriety of injunctive relief under the circumstances, nor was there any assertion that the union legally could refuse to cross the picket line.
The court concluded after the full hearing that the employee-members of Local 1537 were engaging in an illegal work stoppage, that the subject matter of the work stoppage was subject to the collective bargaining agreement's grievance and arbitration procedures, and that the subject matter of the work stoppage did not involve a genuine threat to the employees' health or safety. The court also determined that plaintiff would suffer irreparable harm were the strike allowed to continue, and that greater harm would result to plaintiff were injunctive relief to be denied than would result to defendant were it to be granted. The court therefore entered a preliminary injunction enjoining the local union, its officers, members and agents of all others acting in concert from engaging in a work stoppage.
The preliminary injunction further required the union, its officers, etc., and the company to utilize the grievance and arbitration procedures, and to take all action necessary to comply with the collective agreement. The injunction specifically required the employee-members to report for work and to cross any picket lines established at the plant. The court also approved plaintiff's bond in the amount of $1,000, an amount to which counsel for defendant had agreed.
On Thursday, September 11, the union filed a motion to vacate the entry of the preliminary injunction.
It asserted that the anti-injunction provisions of the Norris-LaGuardia Act
prohibit injunctive relief in this situation and cited Plain Dealer, supra, and Buffalo Forge, supra, in support. The motion contained no other defense and no factual averments. The defenses asserted at the September 5 hearing apparently were dropped at this point.
The parties indicated that they wished to submit memoranda. The court ordered that briefs be filed. The union filed a brief on September 16. The company responded on September 23. The union submitted an additional brief supporting the motion to vacate on September 24.
In Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970), the Supreme Court held that section 301(a) of the Labor-Management Relations Act, which extends the jurisdiction of district courts to suits between employers and unions concerning contract violations, authorizes injunctive relief despite the Norris-LaGuardia anti-injunction provision where a union violates a no-strike provision of the collective bargaining agreement.
Prominent in the court's rationale was the notion that:
[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 arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. Boys Markets v. Retail Clerks Union, 398 U.S. at 248, 90 S. Ct. at 1591.
In Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 381, 94 S. Ct. 629, 38 L. Ed. 2d 583 (1974), the Supreme Court reiterated that Boys Markets "concluded that § 301(a) empowers a federal court to enjoin violations of a contractual duty not to strike."
The Court of Appeals for the Third Circuit has considered the application of Boys Markets injunctive relief to work stoppages resulting from a union's refusal to dishonor the picket line of another union.
In NAPA Pittsburgh, Inc. v. Automotive Chauffeurs, 502 F.2d 321 (3d Cir. en banc), cert. denied, 419 U.S. 1049, 95 S. Ct. 625, 42 L. Ed. 2d 644 (1974), the members of one union honored a picket line established at their plant by members of a union which sought to represent the corporation's employees at another plant.
The collective bargaining agreement between the first union and the employer contained an express no-strike clause and provided that the union members could honor a "primary" picket line at the employer's place(s) of business. The parties also had agreed to arbitrate "'. . . any and all grievances, complaints or disputes arising between the employer and the union . . . .'"
The Third Circuit, after a rehearing en banc, held that the disagreement as to whether the picket line was "primary" and therefore allowed the union to honor the picketing without violating the agreement, was clearly a dispute between the union and the employer, and hence was arbitrable under the terms of the arbitration clause. The court understood Boys Markets to hold that
. . . where a matter has been made arbitrable by the terms of a contract between the union and the company, an injunction may be issued to enforce this method of settling controversies between the parties.