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PHILADELPHIA NEWSPAPERS, INC. v. NEWSPAPER & MAGAZ

May 7, 1986

PHILADELPHIA NEWSPAPERS, INC.
v.
NEWSPAPER & MAGAZINE EMPLOYEES UNION, EDWARD T. SAVRYK, JAMES HART, JR., MICHAEL BERNSTEIN, WILLIAM BRANDT, THOMAS MURPHY, GERALD MURPHY, JOHN DOE, RICHARD ROE and all others conspiring, acting in concert, or otherwise participating with then [sic] or acting in their aid or behalf



The opinion of the court was delivered by: SHAPIRO

NORMA L. SHAPIRO, J.

 FINDINGS OF FACT and CONCLUSIONS OF LAW

 On April 23, 1986, plaintiff filed a complaint for a preliminary and permanent injunction restraining defendants from engaging in a work slow down in violation of the Collective Bargaining Agreement between the parties. A stand-still agreement pending a hearing on a preliminary injunction scheduled for April 30, 1986 made it unnecessary to consider plaintiff's motion for a temporary restraining order filed concurrently with the complaint. A hearing was held on April 30, and May 1, 1986; after consideration of the contentions of the parties, the exhibits admitted in evidence, the testimony of the witnesses with due regard to their demeanor and the credibility of their statements in the light of the entire record, and the legal authorities submitted by counsel for both parties, the court will issue a preliminary injunction based on the following findings of fact and conclusions of law.

 Findings of Fact

 Plaintiff is Philadelphia Newspapers, Inc. ("PNI"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its plant and principal place of business at 400 North Broad Street, Philadelphia, Pennsylvania.

 Defendant Newspaper & Magazines Employees Union (the "Union") is an unincorporated association with an address at 1420 Walnut Street, Philadelphia, Pennsylvania. Defendant Edward T. Savryk is an individual and President of defendant Union. Defendant Michael Bernstein is an individual and Vice President of defendant Union. Defendant James Hart, Jr. is an individual and Secretary-Treasurer of defendant Union. Defendants William Brandt, Gerald Murphy and Thomas Murphy are individuals and Chapel Chairmen of defendant Union. The remaining defendants are all others who allegedly are conspiring, acting in concert, or otherwise participating with the named defendants or acting in their aid or behalf, including other officers and members of defendant Union.

 Plaintiff PNI and defendant Union are parties to a Collective Bargaining Agreement (the "Agreement") covering the terms and conditions of employment of mailers employed by PNI (Joint Exhibit 1).

 Section 5 of the Agreement provides that all disputes arising as to the "construction, interpretation, application, or execution of this Agreement, or side letters of agreement entered into pursuant thereto," shall be subject to a grievance procedure which includes arbitration. *fn1"

 Section 19 of the Agreement provides, in pertinent part, that the "Newspaper & Magazine Employees Union shall not permit any member or members to engage in a strike, boycott, work stoppage or slow down or to aid or encourage directly or indirectly such action against any newspaper party to this contract."

 On the night shift on April 22, 1986, shortly after midnight and again on the morning shift the next day at about 7:30 a.m., defendant Union and its members engaged in a wilful and deliberate slow down by concerted exercise of the right to change job assignments under Section 12 of the Agreement.

 The work slow down concerned a management change in operational practice in mailroom preparation of the advance portion of the Sunday Inquirer, i.e., a split comic section, in connection with changes in automated equipment; the change allegedly was made without proper notice to the Union. Notice of manning changes involving new machinery is covered by Section 6 of the Agreement.

 The Union and PNI are contractually bound to arbitrate the underlying disputes under Section 5 and Section 6 of the Agreement. Therefore, there is a substantial likelihood that PNI will succeed on the merits of the dispute, i.e., the arbitrability of the underlying disputes.

 The Union breached its affirmative obligation under the effective Agreement to halt the slow down.

 PNI did not ratify and/or sanction the slow down.

 Additional slow downs are likely to occur unless restrained by the court pending arbitration.

 Unless defendants are enjoined, PNI will suffer immediate, substantial and irreparable harm.

 Greater injury would be inflicted upon plaintiff by denial of injunctive relief than will be inflicted upon defendants by granting such relief.

 An injunction is in the public interest.

 Discussion

 Section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, limits this court's jurisdiction to enjoin a strike *fn2" arising out of a labor dispute. But Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), provides that federal courts have jurisdiction to enforce collective bargaining agreements incorporating no-strike provisions whether express or implied. In Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970), the Supreme Court reconciled an apparent conflict between these two statutes by allowing a narrow exception to the anti-injunction provisions of the Norris-LaGuardia Act in order to further the national labor policy favoring peaceful settlement of disputes through arbitration embodied in the Labor Management Relations Act. The Norris-LaGuardia Act does not prohibit enjoining a strike arising out of a labor dispute if: (1) the strike is in breach of a no-strike obligation under the effective collective bargaining agreement; (2) the parties are contractually bound to arbitrate the grievance; and (3) the injunction is otherwise warranted under principles of equity jurisprudence. Boys Market, supra at 253.

 However, the Boys Market exception to Section 4 of the Norris-LaGuardia Act applies only if the strike is over an arbitrable issue; Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 49 L. Ed. 2d 1022, 96 S. Ct. 3141, (1976). The mere arbitrability of the issue of whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to Boys Market injunctive relief; there must be an underlying arbitrable grievance. See Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n., 457 U.S. 702, 722, 73 L. Ed. 2d 327, 102 S. Ct. 2672 (1982).

 There is a strong presumption in favor of arbitrability especially where, as here, there is a broad arbitration clause. *fn3" The Supreme Court stated in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-585, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960) that "in the absence of any express provision excluding the particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where . . . the arbitration clause [is] quite broad."

 Defendants contend that before a Boys Market injunction may issue, the employer must also allege and prove its willingness to arbitrate. But neither the Supreme Court nor the Court of Appeals for the Third Circuit has directed that the employer prove this as a prerequisite to a Boys Market injunction. Absent such direction, this court declines to import such a requirement. See Jacksonville Maritime Ass'n. v. Int'l. Longshoremen's Ass'n., 571 F.2d 319, 324 (1978).

  In Carbon Fuel v. United Mine Workers of America, 444 U.S. 212, 62 L. Ed. 2d 394, 100 S. Ct. 410 (1974), the Supreme Court held that the international union could not be held liable for the acts of its local union where it did not investigate, support, ratify or encourage an unauthorized strike. The Agreement in Carbon Fuel did not expressly impose an affirmative obligation on the union to prevent and/or halt a strike or work stoppage. The Court refused to imply such a requirement; the union had negotiated the deletion of a provision contained in the prior Agreement which required the union to "maintain the integrity of this contract and to exercise their best efforts through available disciplinary measures to prevent stoppages of work by strike . . . ." 444 U.S. at 219-220.

 Here, unlike Carbon Fuel, the Agreement expressly imposes an affirmative obligation on the union to prevent unlawful work stoppages by its members. ...


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