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PHILADELPHIA NEWSPAPERS, INC. v. NEWSPAPER & MAGAZ

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


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. Section 19 of the Agreement provides:

 

A Publisher shall not lock out the Union or its members and Newspaper & Magazine Employees Union shall not permit any member of members to engage in any strike, boycott, work stoppage or slowdown or to aid or encourage directly or indirectly such action against any newspaper party to this contract. It is further agreed that the validity and execution of this contract and scale will not be dependent upon or affected by the obligation of either party to any other person or organization not a party to this Agreement. (Emphasis supplied).

 But even in the absence of an affirmative obligation on the Union to prevent and/or halt work stoppages, the absence of direct evidence of union ratification, sponsorship or encouragement would not preclude a finding of union culpability. As Justice Powell stated in his concurrence in Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 418, 68 L. Ed. 2d 248, 101 S. Ct. 1836 n.1 (1981), "strike encouragement sometimes is explicit but more often is cryptic. A union may employ subtle signals to convey the message to strike. One court noted that unions sometimes employ 'a nod or a wink or a code in place of the word strike.'" (Citation omitted). This applies even more to union conduct of a work stoppage or slow down than it does to a strike.

 In Seattle Times v. Seattle Mailer's Union No. 32, 664 F.2d 1366, (9th Cir. 1982), the newspaper initiated an action for damages allegedly caused by a work slow down by the union in breach of their collective bargaining agreement. After the newspaper installed new machinery to help assemble the Sunday Edition's "color book," (there including the comics, TV Guide, Ad supplements and magazines), the newspaper management eliminated an evening shift and production dropped dramatically. The Court of Appeals held that the trial court's finding the employees engaged in a work slow down not clearly erroneous and that the slow down, if encouraged by the union, was a violation of a contractual obligation implied by an agreement not to strike. The record there did not establish that the union initiated the slow down but it was held sufficient to conclude that the union ratified or authorized the slow down which in itself supported a finding of union responsibility. The evidence that the union supported, ratified or encouraged the work slow down included a statement by the union's Chapel Chairman (Shop Steward) that there was going to be trouble from the change, a union official's request that a supervisor stop harassing the members, trouble with machine operation when union officials were in the vicinity, the union's denial there was a slow down and the resumption of normal production following a TRO.

 A no-strike and/or no-work stoppage clause can be violated by a mass exercise of individual privileges. In Elevator Manufacturers Assoc. of N.Y., Inc. v. Local 1, 689 F.2d 382 (2d Cir. 1982), the employer contended that the concerted refusal of its employees to sign up for overtime pursuant to union direction constituted a strike; the court held that the strike arose out of the underlying arbitrable issue of how the company assigned overtime work so that an injunction could issue if otherwise warranted. It was argued that since no employee was required to sign up for overtime, concerted refusal to do so was not a "strike." The court held that even if an employee had no individual obligation to volunteer for overtime, where the contract leaves the matter to the individual employee uninhibited by union demands or concern, a concerted refusal to perform "voluntary" overtime amounts to a "strike" as defined by the National Labor Relations Act, 29 U.S.C. § 142(2). The court cited AVCO Corp. v. Local No. 787, 459 F.2d 968 (3d Cir. 1972), which held that a union resolution successfully discouraging overtime work constituted a violation of the collective bargaining agreement's provision mandating, "that there shall be no strikes, walkouts, sit-downs, production retardings, or similar interruptions of, or interferences with, work . . . ." 459 F.2d at 974. "The resolution discouraging such overtime work is clearly an attempt by the union to retard production, or to interfere with work." Id.

 The issue presented to this court is whether the mass exercise of the right to change job assignments in accordance with contractual seniority and priority rights under Section 12 of the Agreement was an individual exercise of a right unlimited as to the number of union members who might exercise it or was a concerted union effort to achieve a work stoppage over an arbitrable issue.

 PNI contends that on April 23, 1986 shortly after midnight and the same day at about 7:30 a.m., there was a slow down achieved by concerted exercise of a right to change job assignment under Section 12 of the Agreement *fn4" and that the slow down was in violation of Section 19 of the Agreement. *fn5"

 Section 12 of the Agreement provides that regular mailers are given preference over extra mailers in work assignments which they are competent to perform. If a regular mailer is given a job assignment and prefers a position held by an extra mailer, the regular has the "right to bump" the extra and perform that assignment instead. The preferential right is not a job seniority provision among regular mailers and is limited to positions held by outside extra mailers. The only other stated limitation is that, "it is not intended that a succession of changes be made . . . ."

 On April 22, 1986, job assignments were made between 10:00 and 10:30 p.m. as usual. At about midnight, every (or virtually every) regular mailer (approximately 75) exercised his right to bump regardless of assigned position. (Testimony of T. Murphy; Testimony of Sanders). *fn6" At about 7:30 a.m. that same day, every (or virtually every) regular mailer exercised the right to bump regardless of assigned position. (Testimony of Fitzgibbons).

 As a result of the concerted exercise of bumping rights, there was a slow down in production on the night shift (Testimony of Sanders) and on the day shift (Testimony of Fitzgibbons). The slow down was attributable to:

 1. The time expended to make the requested changes in assignments. On the night shift it took approximately 45 minutes to make these changes. (Testimony of Sanders).

 2. Regular mailers hand stuffing inserts did so at a rate slower than the task is usually performed. (Testimony of Rilea; Testimony of Seidman).

 3. Inexperienced extra mailers performed the more sophisticated jobs ordinarily performed by regular mailers. (Testimony of Sanders; Testimony of Seidman). For example, the luggers, who operate the power jacks, operated them at about half-speed. (Testimony of Sanders).

 Defendants contend that even if there were a mass exercise of the bumping rights, it was not a violation of the Agreement. The Union relies on the fact that whatever the other limitations on bumping rights, Section 12 imposes absolutely no limit on the number of regular mailers who may exercise bumping rights on any shift. The employer concedes there is no numerical limitation on individuals who may exercise bumping rights but contends that this lack of limitation cannot justify concerted action to effect a work stoppage or slow down for reasons other than personal preference. The extensive bumping on April 23, 1986 was not the result of a coincidence of individual mailers expressing personal preferences but was a preconceived plan to exercise this right in concert to effect a work slow down or stoppage in violation of Section 19 of the Agreement.

 1. The extensiveness of the bumping was admittedly unprecedented. (Testimony of T. Murphy). Bumping is very rare; on average, only one or two mailers on a given shift choose to bump. (Testimony of Sanders).

 2. Some regular mailers are assigned to priority positions reflecting their seniority. The five priority positions are: blotter, computer, office, platform and mail leader. Even those regular mailers who were assigned priority positions on April 23, 1986 chose to bump and perform the less-desirable job of insert stuffing.

 3. Mailers bumping from priority positions had admittedly never done so before. (Testimony of T. Murphy).

 4. The list presented to management was pre-considered. Thomas Murphy's explanation of how he prepared the list of names of mailers who wished to bump on the midnight shift was incredible.

 5. Job assignments on the night shift are ordinarily handed out at approximately 10:00 p.m. Those mailers who wish to bump usually inform the foreman or a union representative at that time. On April 22, 1986, no one requested a different assignment when the assignments were distributed. Only at approximately 12:15 a.m. after the presses were started, was a handwritten list of those who wished to bump presented to the Night Foreman. (Testimony of Sanders).

 The work slow down arose out of a dispute concerning a management change in operational practice in mailroom preparation of the advance section portion of the Sunday Inquirer, i.e., a split comic section, in connection with changes in automated equipment; the change was allegedly made without proper prior notice.

 1. On Saturday, April 19, 1986, having been advised that the President of the Union, Edward Savryk, wished to speak with him, Glen Nardi, Production Director at PNI, called Savryk. Savryk was agitated over the company's intention to split the preparation of the advance section of the Sunday Inquirer the following week. He said he had not understood that to be the company's intention when split sections were discussed at prior meetings. Nardi suggested a meeting on Monday, April 21, 1986 to discuss the problem. (Testimony of Glen Nardi).

 2. August Ober, mailroom manager, received a call from Savryk on Saturday, April 19, 1986; Savryk told Ober that he had not agreed to split production of the comic section of the Sunday Inquirer so soon. (Testimony of August Ober).

 3. Stanley Seidman, a mailroom foreman, also received a call from Savryk on April 19, 1986; Savryk wanted to know whether the company intended to split the production of the comic section of the Sunday Inquirer the following week. Seidman told Savryk that was the company's intention and that Nardi had informed the union of this at the meeting held on Wednesday, April 16, 1986. Savryk said he had not agreed to it. (Testimony of Seidman).

 4. A meeting between management and the Union was held on Monday, April 21, 1986 to discuss the production of the advance section. Savryk's position was that the decision to split production of the comics at this time was an arbitrary decision that the company could not make unilaterally. The attorney for the Union said it was the company's responsibility to sit down and discuss the matter with the Union before making the change. The company's position was that there was proper notice: the February meeting and the meeting on April 16, 1986. (Testimony of Nardi).

 5. At or about 3:30 a.m. on April 23, 1986, the day of the slow down, Rilea, Vice-President of Labor Relations, met with Gough, a mailer and assistant Chapel Chairman of the Union. Gough told Rilea that if the company would sit down with the Union and discuss the split comic section, the situation would be resolved quickly. (Testimony of Rilea).

 It is undisputed that no high ranking Union official made any personal effort to stop the slow down; Savryk testified that he believed the mailers had the right to engage in mass bumping regardless of the work slow down. Therefore, the Union breached its contractual obligation to halt the slow down. Moreover, there is sufficient evidence of record for the court to draw an inference of Union sponsorship and/or ratification.

 1. At or about 3:30 a.m. on April 23, 1986, the day of the slow down, Gough, a PNI mailer and assistant Chapel Chairman of the Union, told Rilea, Vice-President of Labor Relations, that if the company would sit down and discuss the split comic section of the Sunday Inquirer, the situation would be quickly resolved. (Testimony of Rilea). *fn7"

 2. A meeting was held on April 23, 1986 at approximately 1:30 p.m. The Union's position at the meeting was that it did not understand what was going on with the Sunday comics; the company could not make such a change unilaterally. A second meeting was scheduled for Thursday, April 24, 1986. The Union wanted an agreement as to the agenda for that meeting. It was agreed that among that which would be discussed was when the split production of the comic section would begin. Savryk said that he would inform the members of the Union of the agenda and that the company would see a marked improvement. (Testimony of Rilea).

 3. There was no mass bumping after the Thursday meeting was scheduled. (Testimony of Rilea).

  4. Savryk testified at the hearing the Union was upset about the company's intention to split the production of the comics the following week; the Union believed the change in production was not to occur until Memorial Day; the Union had not received adequate notice of the imminent change; and the change might affect the distribution and availability of mailroom jobs.

 Section 5 of the Agreement provides that the mandatory grievance-arbitration procedure applies to all disputes "which may arise as to the construction, interpretation, application or execution of this agreement . . . ." Whether or not Section 12 permits mass bumping for other than personal preference is an arbitrable dispute. But the underlying dispute giving rise to the work slow down involves the "construction, interpretation, application or execution" of Section 6 of the Agreement; that dispute is arbitrable under Section 5 and under Section 6 itself. *fn8"

 A related case was filed on March 21, 1986. The plaintiff, PNI, sought an injunction against some of these defendants -- The Newspaper & Magazine Employees Union, Union officials, and members of the union -- as a consequence of a work stoppage on March 17, 1986 at the same plant in connection with the production of the Daily News. The work stoppage was approximately 30 minutes in duration. Defendants did not deny a work stoppage but argued that the work stoppage was a safety measure justified under Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 38 L. Ed. 2d 583, 94 S. Ct. 629 (1974) (if the union presents ascertainable objective evidence of an abnormally dangerous working condition, an injunction pending arbitration can issue only if the unsafe condition is corrected). Safety concerns involving the area known as Track 6 were brought to the court's attention. On March 22, 1986, the court viewed PNI's plant in order to understand the evidence presented at the hearing that followed. The court concluded that the grievance did not concern dangerous working conditions but that the work stoppage resulted from a manning dispute concerning the installation of new mailroom equipment. Gateway Coal did not apply and a Boys Market injunction issued.

 The instant case was correctly assigned to this judge as related to the prior case. "Civil cases are deemed related when a case filed involves the same issue of fact or grows out of the same transaction of another suit . . . ." Local Rule 3(b)(3)(A). Although the prior case involves the Daily News and this case the Inquirer, both cases involve: (1) the same union; (2) the same plant; (3) the same group of employees, mailers; and (4) essentially the same underlying dispute, that is, changes in production in connection with changes in automated equipment, the notice of changes required, and the effect of these changes on Union jobs. (Testimony of Savryk).

 The court having found the work slow down is in violation of a no-strike clause of the Agreement over an issue the parties have agreed to arbitrate, a preliminary injunction must issue, if warranted under ordinary principles of equity. These are: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) the movant will suffer irreparable harm unless the injunction issues; (3) greater injury would be inflicted upon the movant by denial of injunctive relief than will be inflicted upon defendants by the granting of such relief; and (4) the injunction is in the public interest.

 The substantial likelihood that the movant will ultimately prevail on the merits is evident from the court's findings and previous discussion.

 The movant will suffer irreparable harm if the injunction does not issue. There is a presumption of irreparable harm:

 

While it is of course true . . . that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike.

 Boys Market, supra at 248. But even if there were no presumption, the testimony on behalf of PNI clearly established that this continuing work slow down will cause substantial, immediate and irreparable harm to the plaintiff in terms of long-term and short-term loss of advertisers and subscribers in addition to the damage already suffered by the loss of production occasioned by the work slow down of April 23, 1986. *fn9"

 Defendants contend that the company is not entitled to an injunction because the company had a right to deny the requested changes in job assignments if those requesting were not competent and having failed to do so cannot now grieve. Section 12 provides that regular mailers will be given preference over extras in work assignments for which they are competent. But the problem here is not only the competence of the regulars to perform work of extras but the competence of their replacements to perform their original work assignments. Whether PNI could have denied the mass exercise of bumping rights on the ground of the competence not of the regulars but of the extras is not clear from the Agreement and would, of course, be arbitrable. The employer reasonably feared a walk out if permission were withheld so that it was reasonable for it to accommodate the requests when faced with the prospect of incalculable losses from a stop in production. The company brought this action only after it subsequently realized that the slow down was actually a manning dispute under Section 6 and related to the prior dispute.

 Greater injury would be inflicted upon plaintiff by denial of injunctive relief than will be inflicted upon defendants by granting such relief. While PNI will suffer irreparable harm if the injunction does not issue, the injury inflicted on the defendants as a result of the injunction is slight. Individual employees will still be able to exercise a contractual right to change job assignments. What the Union and its members may not do is engage in a concerted change in job assignments to protest or impede proposed changes in equipment by work stoppage or by slow down (pending arbitration on this issue). *fn10"

 Finally, granting the injunction is in the public interest; encouraging peaceful settlement of disputes through arbitration procedure is consistent with our national labor policy.

 Defendants contend that an injunction is not appropriate because: (1) there has been only a single instance complained of that is unlikely to reoccur; and (2) if mass bumping were attempted and refused by PNI, the Union would then resort to the grievance-arbitration procedure. But the Union's conduct with regard to use of equipment in preparation of the Daily News and then with regard to use of equipment in preparation of the advance section of the Sunday Inquirer makes clear there is an underlying and continuing dispute over mechanization 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.


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