and manning; work disruptions will continue unless and until the underlying dispute is referred to arbitration in accordance with the Agreement and the underlying dispute resolved.
The company is not required to stand by as the Union engages in one ruse or another to avoid the no-strike, no work stoppage, no work slow down provisions of the contract. The Agreement negotiated by the parties provides for good faith endeavors by both parties to settle all questions under the Agreement or side letters of agreement by amicable discussion and arbitration not guerilla warfare. No party is prejudiced by an order compelling compliance with the grievance procedure expressly bargained for by the employer and the Union. While either party could file a grievance under the facts found herein, the court upon consideration of the record as a whole believes it is the Union that should be required to initiate the grievance. Articulating the Union's real concerns with specificity will aid in resolving the dispute in the manner contemplated by the Agreement.
Therefore, an injunction must issue compelling speedy utilization of the grievance procedures provided for by the Agreement or waiver of objections to the mailroom equipment installation, including the new Track 6 IDAB Bundle Handling System, the reduction in the manpower levels required to process PNI publications and changes in the method of making up and dispatching the PNI Sunday package, and all other matters covered by the PNI letter to the Union, dated November 2, 1984.
The Preliminary Injunction entered herein differs from the permanent restraining order entered on March 24, 1986 in four other respects:
1. The United States Marshal is not ordered to enforce the Order as there seems no need for such a provision in the absence of reason to believe the defendants will violate an injunction if issued;
2. The parties are ordered to arbitration within thirty (30) days with a formal report to the court within sixty (60) days. The defendant Union is ordered to initiate the grievance procedure to enable a clear articulated statement of the issues regarding institution of changes in mailroom operation, manpower levels required to process and insert PNI publications and changes in the method of making up and dispatching the Sunday package. A joint report within sixty (60) days is required to assure the court that the underlying issues will be dealt with as contemplated by the collective bargaining process and not by continued resort to this court.
3. The parties as named in the complaint differ slightly; in each instance, the Union President and Vice-President are named but two individuals previously named are not defendants herein and three defendants in this action have not previously been named defendants. James Hart, Jr. is named in the complaint but not in the Order because Mr. Hart, hospitalized for a heart ailment, did not participate in the events in suit.
4. This preliminary injunction is more narrowly drawn to make explicit the understanding of the parties that they are permanently enjoined and restrained not from any and all strikes, stoppages, slow downs, etc., but only those caused by the dispute under Sections 6 about changes in manpower levels required to process and insert PNI publications and changes in the make-up and dispatch of the Sunday package. It was clear in context that the prior order was limited to disputes under Section 6 of the Agreement and certain side letter agreements with regard to reduction in manpower levels required to process the Daily News. In the discussion of the wording of the preliminary injunction that followed the court's bench opinion of March 24, 1986, the arguments of counsel were directed to whether or not the injunction would cover all publications or only the Daily News. Defense counsel failed to object to the absence of limiting language with regard to the restrained activity. If not waived, the limiting language should have been included. However, because that order is presently on appeal, the court may lack jurisdiction to modify it; but see Venen v. Sweet, 758 F.2d 117, 120 n.2 (3d Cir. 1985) (a district court during the pendency of an appeal is not divested of jurisdiction to modify an injunction). Either party may move in the Court of Appeals for a remand to this court to permit narrowing and clarification of the restraining order. This court will also consider a request of either party for such modification after giving both parties an opportunity to be heard.
All facts referred to in this discussion shall be deemed incorporated in the court's specific Findings of Fact.
Conclusions of Law
This court has jurisdiction over the parties and the subject matter.
On April 22 and 23, 1986, defendants utilized a concerted exercise of bumping rights under Section 12 of the Agreement as a pretext for an intentional work slow down regarding a dispute as to Section 6.
This 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, allegedly without proper prior notice; this change effected work patterns for members of defendant Union.
This work slow down was related to a work stoppage last month regarding the preparation of the Daily News over similar manning issues in connection with changes in the automated equipment in the mail room, also allegedly without proper notice; Civil Action No. 86-1637.
This work slow down was in violation of Section 19 of the Agreement.
This work slow down was over a grievance arbitrable under Section 5 and Section 6 of the Agreement.
Both parties are contractually bound to arbitrate the underlying grievance causing the work slow down and the employer is ready and willing to do so.
There is a substantial likelihood that the employer will prevail on the merits of the disputes relevant to the issues before this court.
Unless defendants are enjoined from concerted action to effect a work stoppage pending arbitration of the underlying grievance, plaintiffs will suffer immediate, substantial and irreparable harm.
Plaintiffs will suffer greater injury from denial of relief than defendants will suffer by being enjoined from violating the Agreement they negotiated with PNI and being compelled to comply with its grievance procedure.
An injunction under the facts found herein is in the public interest.