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March 21, 1977

Republic Steel Corp., Plaintiff
United Mine Workers of America et al., Defendants

Weber, C.J.

The opinion of the court was delivered by: WEBER

This action arises under Sec. 301 of the Labor Management Relations Act. On January 30, 1976, a preliminary injunction was issued. This was prior to the decision of the Supreme Court in Buffalo Forge. The injunction prohibited defendants from engaging in any strike "arising from the presence of pickets at the mine portals who are members of the United Mine Workers not employed by plaintiff. The parties were also directed to arbitrate the underlying dispute. The question of damages remains before the court.

 Defendants now move for summary judgment based on the decisions of Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S. Ct. 3141, 49 L. Ed. 2d 1022, 44 L.W. 5346 (1976), and United States Steel v. United Mine Workers, (U.S. Steel II) 548 F.2d 67 (3d Cir. 1976). Specifically, defendants contend that the work stoppages complained of by plaintiff were not subject to the grievance arbitration provisions of the 1974 Agreement and thus did not constitute a breach of the collective bargaining agreement.

 Republic makes several arguments why summary judgment should not be granted. First, Republic contends that a factual question exists as to whether defendants breached their contractual duty to take action reasonably calculated to stop the spread of unlawful and unauthorized strikes, contrary to their obligation under Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951 (3d Cir. 1975). In this connection Republic quotes United States Steel v. UMW, (U.S. Steel II), supra :

"We decline to consider whether the rationale of Eazor Express would permit an employer to recover damages for the failure of a Union to take all reasonable steps to prevent the spread of an unauthorized and allegedly illegal strike against another employer. This case was not tried on that theory."

 Republic asserts liability not only for the Union's failure to stop Republic's employees from striking but also for failing to stop other UMW members, not employees of Republic, from spreading an unauthorized and allegedly illegal strike against another employer to Republic's mines.

 Republic further contends that neither Buffalo Forge nor United States Steel is dispositive of the damage issue in this case. Republic would distinguish Buffalo Forge on the grounds that it involved a sympathy strike in support of a strike that was "bona fide, primary and legal." Republic suggests that the underlying strike in this case was "mala fides, secondary, and illegal."

 In paragraph 13 of the complaint, plaintiff alleges that defendants John Doe and Richard Roe, one or more persons whose identity is unknown, were employed in the coal mining industry, that they are active members in good standing of defendant UMWA, and that they reside and work in West Virginia or Southwestern Pennsylvania. Defendant admits these allegations in its answer. Defendant also admits that these pickets appeared at plaintiff's Clyde and Banning Mines at 12:01 a.m., January 19, 1976, and that plaintiff's employees refused to cross a picket line established at each mine. The preliminary injunction implicitly finds a refusal of local union members to cross stranger pickets. Drawing all inferences in favor of plaintiff's position, as we must on a motion for Summary Judgment, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); Suchomajcz v. Hummel Chemical Co., 524 F.2d 19 (3d Cir. 1975), we will assume that plaintiff can establish that defendants or their members engaged in a sympathy strike in support of stranger pickets who were also UMWA members.

 Buffalo Forge held that a court cannot, in the face of ยง 301 of the LMRA, enjoin a sympathy strike pending the arbitrator's decision as to whether the strike is forbidden by the express no-strike clause contained in the collective bargaining agreement. The Court distinguished Boys Markets v. Retail Clerks Union, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970):

" Boys Markets plainly does not control this case. The District Court found, and it is not now disputed, that the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract. The strike at issue was a sympathy strike in support of sister unions negotiating with the employer; neither its causes nor the issues underlying it were subject to the settlement procedures provided by the contract between the employer and respondents. The strike had neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving the employer of his bargain. Thus had the contract not contained a no-strike clause or had the clause expressly excluded sympathy strikes, there would have been no possible basis for implying from the existence of an arbitration clause a promise not to strike that could have been violated by the sympathy strike in this case." 44 U.S.L.W. at 5349-50 (emphasis in original).

 This conclusion was made in the face of an express no-strike clause containing a duty to arbitrate. The no-strike clause made no reference, however, to sympathy strikes.

 Buffalo Forge's narrow holding is understood by the Supreme Court's itemization of what was not in dispute. See 44 U.S.L.W. at 5349. First of all, Buffalo Forge involved a sympathy strike. The strike did not arise by reason of any dispute between the Local and the employer, but was in support of a sister local union belonging to the same international. Further, the employer was entitled to invoke the arbitral process to determine the legality of the strike and to obtain a court order, if necessary, to require the Union to arbitrate. If the employer prevailed in the arbitration, an injunction to enforce the arbitrator's award would be permissible. Buffalo Forge prohibited courts only from enjoining sympathy strikes pending the arbitrator's determination whether the strike violated the parties' agreement.

 More recently, in United States Steel Corp. v. UMW, (U.S. Steel II) 548 F.2d 67 (3d Cir. 1976), the Circuit held that under the National Bituminous Coal Wage Agreement of 1968, which contained a grievance-arbitration provision but not an express no-strike clause, the union could not be held liable for damages for participation of union members in a sympathy strike. This is because the ...

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