Delaware Coca-Cola Bottling Company, Inc. v. General Teamster Local Union 326 and Eastern Conference of Teamsters, General Teamster Local Union 326

must be considered in the first instance

the trier of fact.

V. For these reasons we will reverse the grant Rosenn, of summary judgment by the district Judge, Circuit concurred proceedings court and remand for further opinion. filed opinion. inconsistent with this DELAWARE COCA-COLA BOTTLING

COMPANY, INC.

v. GENERAL TEAMSTER LOCAL UNION

326 and Eastern Conference of Team-

sters, General Teamster Local Union

326, Appellant.

No. 79-2169. United States Appeals, Court of

Third Circuit. Argued Feb. 1980. Decided June Management 301 of the Labor Relations

§ Act, (1976), for a strike at U.S.C. § Delaware, Employer’s Wilmington, plant.

I. in the business Employer engaged drinks.

of producing selling and soft November of certified the Union was representative as bargaining em- for maintenance production and ployees Employer’s and drivers Following certification, Wilmington plant. commenced Employer the Union and the negotiating a contract.

In the the Union and the spring of as to the Employer reached employees and production maintenance bargaining agreement signed a collective 1, 1976, June that went into effect on until 1979. that was in effect to remain estab- Articles and 15 of the contract grievance procedures. lished and arbitration grievance Section 1 of 14 defined a Article arising between dispute as “a complaint or out of this hereto under or applica- Agreement, interpretation, or the termination, tion, any or al- performance, such leged Any breach thereof.” Bader, (argued), Sheldon N. Dor- Sandler through three-step processed would be Kreshtool, Del., sey Wilmington, ap- & for which, was procedure, if no resolution pellant. reached, under lead to arbitration would Article 15. Richards, Elliott, Jr., Layton Richard G. Del., Finger, Wilmington, & Michael G. Article which is the Bowden,

Tanner (argued), Hamilton & here, pro- It dispute is a no-strike clause. counsel, Jacksonville, Fla., appellee. for vides: cause will not 1. The Section Union ROSENN, SEITZ, Before Judge, Chief bargaining nor will member of the any SHAPIRO, Judge, Circuit District sit-down, strike, part any unit take Judge.* operation stay-in, any slow down of work or Company any or curtailment OPINION OF THE COURT or interference restriction of service SEITZ, Judge. Chief Company or operation during the term of picketing patrolling or (the Union) Local 326 General Teamster Agreement. this entered in appeals judgment from a final have the Bottling shall Company favor of Delaware Co. Section Coca-Cola including (the awarding discipline up under to and Employer) * sylvania, sitting by designation. Shapiro, United States The Honorable Norma L. Judge District Penn- for the Eastern District of employees violated tenance instigates who

discharge any employee to, leadership participates or clause in the 1976 collective gives trial, non-jury slow-down or curtail- any strike or work agreement. After stoppage term of this during of work work ment court concluded that action met- Agreement. Any disciplinary and that sympathy strike Company here- imposed by ed out or and mainte- clause waived grievance shall be to under sympathy strike. right to employees’ nance including Agreement, of this procedure $67,922.85 The court awarded arbitration. followed. interest, appeal plus and this of this Arti- provisions Section

cle, above, than as mentioned shall other II. arbitration, grievance not be or assessing damages or purpose for the A. any oth- securing specific performance, proposition We start with matter, being such matters of law de- er engage sympa right employees terminable and enforceable in the courts. thy protected strikes is under the National contract, negoti- signing After the can be right Act. Yet this Labor Relations ap- the drivers continued for ations over agree bargaining in a collective waived negotiations These proximately one month. Sup Rockaway News ment. NLRB v. 1976, 9, the Em- stopped July on because 519, 71, 97 L.Ed. ply 345 U.S. 73 S.Ct. engage Countrywide ployer had decided addition, here has Union (1953). 832 it with drivers. The supply Personnel to finding court’s challenged the district Employer transferred all its drivers to authorized the Union Countrywide, negotiated Union UMW, 444 v. Fuel Co. Cf. Carbon agreement collective with Coun- bargaining 394 410, L.Ed.2d 212, 62 U.S. 100 S.Ct. trywide. strike). wildcat (1979) (union for not liable 22, 1977, Employer On March termi- is whether question presented Thus the Countrywide, nated its relationship 1976contract virtue of the terms of the again employ- and the drivers once became production employees and maintenance ees of the Employer. day, The next cross the waived their to refuse president of one-day the local called a picket drivers’ line. of both the production and maintenance in a collective The extent of the waiver employees and the The Employer drivers. to strike bargaining again began nego- Union then once “ interpretation upon proper ‘turns concerning tiations . . . particular contract [which] agreement for the drivers. light whole and must be read as a ” 19, 1977, July On agreement having no Food Fair made.’ relating law to it when reached, been the drivers set up picket 388, NLRB, (3d Stores, 491 F.2d 395 Inc. v. plant.

line at Although the production Corp. Plastics v. 1974), Mastro quoting Cir. and maintenance employees reported for 279, 349, 356, 270, NLRB, 76 S.Ct. 350 U.S. work that morning, they refused to cross Moreover, we have (1956). 100 L.Ed. 309 picket day line. This occurred each for statutory right held “that a waiver of a days nine until on the afternoon of the 27th clearly unmistakably must be estab the Union ordered the production and main- lished, language will not and that tenance employees to return to work. The expansively.” be read United Steelworkers 12, drivers picket August continued to until NLRB, 550, (3d 1976) v. 536 555 F.2d Cir. when returned to work. (waiver procedures). of certain Accord, g., e. Hobart Water v. Employer Gary filed this suit in district Co. NLRB, 284, (7th Cir.) (sympa 287 court under 301 of the National Labor 511 F.2d § denied, strike), claiming nine-day thy Relations Act cert. (1975). stoppage by

work and main- 46 L.Ed.2d 252 S.Ct.

H85 These are principles compli waiver ture of the waiver inquiry requires an ex- cated in the context of a amination of those in- factors in case because the union’s obligation volving clause where created in one ways: by of two there explicit is no in the reference contract implication from the arbitration clause or to sympathy strikes. by an express clause in the contract. See UMW, Gateway Coal Co. v. U.S. B. 629,38 (1974). L.Ed.2d 583 In United Initially, we must consider whether the (U.S. Corp. II), States Steel v. UMW Steel language of itself (3d 1976), 548 F.2d 67 denied, cert. waives strike. The 53 L.Ed.2d broad, general contract here contains a no- (1977), U.S. Steel’s refused to strike clause. As the district court correct picket cross a line at employer’s another noted, ly clause,1 line picket there is no nor plant. We held that the sympathy strike the does expressly sympa contract refer to implied did not violate obliga the no-strike thy Although language strikes. the tion arising out of the arbitration clause in broad in the refers “any sense that it the agreement. strike,” law, as in so many areas of labor In II we U.S. Steel reserved the seemingly express language may not be question of whether express an no-strike read out of legal the other prin context of clause like we have here would waive the ciples. Several courts have concluded that right to engage in sympathy a strike. Giv broad, general no-strike clause in and of en that waiver turns on the facts of each itself is not a clear and unmistakable waiv case, implied and obliga no-strike right er of the sympathy g., strike. E. tions present different factual and analyti Co., NLRB v. C. K. Smith & 569 F.2d 162 problems. cal Where obliga (1st 1977), denied, Cir. cert. tion is express contract, in the there are a (1978). 57 L.Ed.2d 1122 We number of facts relevant to whether the agree with that result for two reasons. union intended to waive the right engage First, the underlying rationale sympathy simply strike that are U.S. Steel not II, present supra, in cases leads us to involving implied an the conclusion that no- general itself, obligation. language, strike is not example, explicit For with an clause, enough to right sympathy the court waive the can determine its strike. In that meaning by looking to language the of the we relied on the notion clause, the structure of the coterminous interpretation, the an idea that bargaining history, grew up and other largely implied relevant in the area no- conduct of the parties obligations. that shows strike their Coterminous interpreta- understanding of the contract. While we subject tion means that if the matter of the do not mean to suggest this is an arbitrable, strike is then the strike violates list, exclusive we feel that the factual na- the no-strike clause. The theory underlying language Cutters, (8th Article 16 that states 1979), “The 597 F.2d 1138 Cir. where any picketing” supplement Union will not cause . provided to the no-strike clause picket “picket is not a line clause. The term “promptly that the union would order its mem- line clause” refers to a clause that deals with bers to resume their normal duties notwith- employees’ picket standing any picket to refuse to cross the existence of line." Id. lines, itself, picket not the at 1144. To language which the extent that other opinions picket position, Article 16 those deals. Thus there is no line inconsistent with our normally we decline to follow clause here as that term is it. used. For reason, Service, W-I Canteen Inc. v. Although the district court seemed to attach NLRB, (7th 1979), 606 F.2d 738 decided significance picket some to the absence of a after the district court’s decision and relied on picket line we find none. A line clause heavily by here, distinguishable preserve could either to refuse to picket picket because involved two line clauses. relinquish cross lines or it could See right. id. 745^46. The same specify is true of Iowa The failure to one or the other Processors, Amalgamated Beef Inc. v. Meat cannot be determinative of waiver. to the bility sympa- of the no-strike clause quid pro no-strike clause is a this is thy clause. general- quo for the arbitration strike: short, supra. In ly Gateway found, Coal it is not and Court District strike is to not read to be obligation now was disputed, that to not strike over arbitrable is- obligation the Union and over any dispute between sues. remotely sub- was even employer that ject provisions to the arbitration sympa- principles these Applying was sym- issue The strike at contract. obliga- thy implied of sister pathy unions support strike in II, we noted that with a tion in U.S. Steel employer; neither negotiating strike, subject matter of the sympathy underlying it was its nor the issue causes between the dispute strike is a procedures pro- subject to the settlement employer and thus is not and their strikers . vided the contracts. sympa- between the arbitration subject to short, employer. their thy 407-08, and strikers Id. at at 3147-3148. Fur- 96 S.Ct. any dispute” “over between expressly the strike is not thermore, relied on the the Court strikers. employer support analysis. its quid pro theory to quo II, 548 F.2d at 73. Accord- See U.S. Steel at 3147. The Court See id. at in that case that be- we concluded ingly, matter because concluded that matter of the strike cause between the of the strike was not arbitrable not arbitrable between employer, the strikers strikers, pending arbi- enjoined strike could not be implied obliga- did not violate express no-strike scope tration tion. clause. Forge is the The relevance of Buffalo reasoning applicable where find this

We that, recognition some evidence to no-strike clause in the absent express there is an quo theory the un- contrary, quid pro un- the quid pro quo rationale contract. The interpretation derlying applies interpretation ap- also coterminous derlying coterminous no-strike clause in express its where plies actually gives up union there is an where the the will Normally, the right having implied instead of it contract. to strike he gets unless agree clause. faced not to arbitration from the arbitration When it that will not the the union no-strike Su- from with an issues. In addi- preme al- those arbitrable applied principles has the over Court union will not tion, case the example, Buffalo For the normal ready discussed. that extends Steelworkers, clause agree to no-strike v. 428 U.S. Forge Co. United 3141, beyond clause. 397, (1976), 49 the arbitration 96 L.Ed.2d 1022 S.Ct. question confronted with the the Court was supports cot- Moreover, here the contract be en- sympathy whether a erminous The arbitration interpretation. joined pending the question arbitration of disputes is expressly clause tied to between the strike whether violated employees production and maintenance in the no-strike clause contract. The Court previously, and As noted Employer. applicability of the no- first held grievances the contract defines arbitrable sympathy strike was strike clause to parties “arising disputes as between arbitrable.2 of” the contract. under or out availability mention the Turning injunctive to the Nowhere the contract does other relief, employees carefully rights distinguished the Court the drivers maintenance em- subject of the but the and arbitrability production matter accompany- and arbitrability 5 infra applica- ployees. strike from the note See subject no-strike clause is not to wording arbitration. of Section 3 of Article Given Forge provisions Thus in Buffalo is not of this this first issue Article “[t]he before shall to or arbitra- us. not tion,” scope would seem that helpful analogy. is a Plastics Mastro of arbitrable ing text. Thus the definition there, Here, dispute between the as and production means that the grievances employees and maintenance have in- could not maintenance covered anything is not over Employer dispute over the between voked arbitration noted, already by the As 1976contract. Employer. drivers and the whole, not cover does taken as in- that coterminous Although we realize the Em the drivers and their relation facts in to the must be terpretation applied 5 infra ac ployer. generally note Co., supra, Gateway see Coal each Plastics, it Mastro companying text. As in 639, 382, at we believe 94 S.Ct. clause as proper to read the no-strike the conclu- it leads to reasoning behind limited to strikes over matters covered more, clause, without sion that a no-strike Plastics the contract. Thus under Mastro sympathy strike. right does not waive the waive the does per- rests on a interpretation Coterminous right sympathy strike because the dis equal relations that has ception of labor relations be pute is not over the economic express no-strike where there is an force and their em tween the strikers contrary, evidence clause. Without explicated as are the 1976 ployer proper presume it is generally NLRB v. C. K. contract. See the arbitration clause is not broader than 162, (1st 569 F.2d Smith & sym- that where clause. Thus we feel denied, 1977), 436 U.S. cert. employer cannot strikers pathy (1978). 57 L.Ed.2d 1122 See also Sub arbitrate the matter NLRB, 536 F.2d Corp. urban Transit v. worded no-strike clause dispute, generally 1976)(strike violated (3d Cir. 1021-22 strike. does not bar the though the no-strike clause because even for the conclu- support second source of A union, it strike was over a with the dispute broad, will not general language sion that dispute employer). also involved a strike is Mas- waive the that a broad Accordingly, we hold NLRB, v. Corp. tro Plastics worded There, generally (1956). clause that 100 L.Ed. 309 broad, does not general constitute a clear and unmistak Court held that a Supreme no-strike clause did not waive the to able waiver of the evidence, the notion practice contrary strikes. Absent some engage in unfair labor pro quo phrases quid broad like is the The Court noted that that the no-strike clause equal with light applies be read in for the arbitration clause “any strike” should then an no-strike rest of the contract. The Court noted force where there is whole, contract, precedent, Supreme taken as a dealt clause. Relevant Court that Forge Mastro Buffalo by relations between the as shown both the economic that a Plastics, em- conclusion practice supports strikers and their unfair labor does not hours, clause wages, broadly and so forth. worded no-strike ployer, such as effect, over nonarbitrable promise right clause was a waive the to strike by the strik matters not covered by the union not to strike over matters that are Moreover, 281-83, ers’ contract. this accords with by covered the contract. id. at See general that waiver must be clear at 357-358.3 rule strike as it relates to the strikers and their Mastro Plastics con- Union claims that Moreover, Employer’s employer. of a trols the result here because the the characterization bargain practice drivers strike or refusal to and its claim that the strike as an unfair labor legal analytical bargain- “fell back within” have the 1976 collective context, consequences present ing agreement such labor outside the makes the strike an unfair proceed- practice disagree. assuming practice in unfair labor strike. We Even as remedies Accordingly, say ings. we decline to that that the drivers’ strike was an unfair labor strike, automatically practice sympathy strike should be treat- that in no sense diminishes the practice if unfair that and maintenance em- ed as an fact alleged ployees engaged unfair labor strike is over an were strike. practice. the nature of the Mastro Plastics focuses on directly tied to arbitrable matters.” If lan- explicit and that and unmistakable language expansively. by this the court meant that guage will not be read had to somehow or structure of the contract C. the arbitration tie the no-strike clause slate, previous our dis- a clean we discussion writing together,4 If we were on clause would end the clause might opt poses for a rule that of that. Because arbitra- inquiry by asking language quo whether the for the normally pro quid that explicitly assumption the contract deals tion the normal related, strike. if the employees Such even they functionally are of reduc- approach would have the benefit one on condition explicitly contract does not engendered by uncertain- ing litigation Physical separation or lack of the other. ty variety over of the wide any whether cannot con- cross-reference in the contract will constitute usually factors considered sympa- stitute clear waiver of waiver. thy strike. However, adopt we do not feel free to hand, the district court On the other such an and therefore now turn to approach referring 3 of might have been to Section by

the factors examined the district court “provisions Article which states that the they to determine whether constitute suffi- . . . shall not [the clause] Initially, cient of waiver. we note evidence arbitration, or for offered no evidence that because the damage or secur- assessing the purpose of negotiation as to the other mat- ing specific performance, we whether evidence of need not decide seem mean language ter.” This would bargaining history could overcome the re- particu- only question that the of whether Rockaway sult here. NLRB v. News lar clause is not strike violated the no-strike Supply already arbitrable. As supra. See note 2 (1953) (evidence L.Ed. 832 Forge, noted in our Buffalo discussion of rejected a clause offered union to effect from whether analytically distinct picket could refuse to cross matter of strike is arbitra- line). rests on the ble. Because our decision lat- impact first factor relied on the district ter has no on our question, Section 3 finding court to find waiver was a reasoning. arbitration and no-strike clauses here were Next, the court relied the law district on reasoning Its “functionally independent.” the contract was made existing at the time essentially was that where the no-strike to infer waiver of the

clause and the arbitration clause are relat- It noted that in several courts ed, then the no-strike clause covers had held that where the no-strike issues, arbitrable but where are inde- togeth- were tied and the arbitration clause pendent, the no-strike clause is broader. er, waive the the no-strike clause did not explained right supra.

The district court never note 4 sympathy strike. See precise meaning phrase cases, the of the From these “func the court reasoned that tionally independent.” It did refer to “a “at the time executed the contract was was there was in no-strike clause which included in the distinction the established grievance procedures broad, of a contract which case law independent between no- here, apply. Forge, example, In Buffalo as 4. For the district court relied on NLRB v. 538 F.2d 1291 clause and the clause were suc- Keller-Crescent arbitration (7th 1976). provided The contract that cessive sections of and neither the contract n.l, party there would be no strike unless either referred to the other. at 399 See 428 U.S. n.2, comply n.l, proce- refused to 96 S.Ct. at 3144 Never- n.2. Forge, theless, Supreme employed dures. Id. at 1293 n.2. Buffalo how- the Court cotermi- ever, obligation interpretation analysis. demonstrates that the no-strike nous its Id. at expressly need not conditioned on the arbi- 96 S.Ct. at 3147. quid pro quo tration clause for the rationale to Well, that our determination was A: limited, dependent and more strike clauses after we had cancelled The court concluded no-strike clauses.” Countrywide Personnel’s no-strike clause was here the that because us, fall would drivers no- intended the parties the independent, plant contract, pro- the back into the the arbitra- than strike clause to be broader and duction workers’ maintenance tion clause. contract, position and the union’s the cases cited assuming Even that was that there should be two differ- on the fact that district court rested we were ent contracts. And because arbitration clause no-strike clause and the day, a decision that not able to reach together,” it does “functionally were tied they were president] stated [the a distinction be- not follow that there was during I stated going on strike. And dependent clauses. independent and tween did, meeting that if they pre- dependent clauses The mere fact produc- in violation would be mean that necessarily clude waiver does con- workers’ tion and maintenance result in waiver. will independent clauses tract. which was Indeed, pro quo theory, quid to that? Q: reply his What was present time the contract established at the The time matter. A: said it didn’t [He] against such distinc- signed, militates plant was to strike the Coca-Cola Moreover, court cited no the district tion. go- summertime, he wasn’t and none, where and research reveals re- ing to wait until issue was clauses independent court had held that solved. sympa- would lead to waiver of and unmistak- not clear testimony This is clear we can find no thy strike. Because president believed able evidence that law between distinction in the 1976 case produc- the contract waived the clauses, the law dependent independent tion and maintenance signing of the contract at the time “they said Initially, when president evidence that not clear unmistakable strike,” on going were is unclear whether it to waive the the union intended drivers, he meant sympathy strike. Thus the or both. employees, maintenance relied on the con- The district court also because we ambiguous exchange entire during the prior to and duct of the Jones and cannot tell what kind of their under- here to determine about. talking president were it related to standing of the contract as just said Moreover, that Jones had given prohibit- strike was whether the by the 1976 that the drivers were covered danger recognize ed. of course We to the threat- reply then Jones’s because utilizing inherent in such evidence violate the ened strike —that “it” would intention of parties’ not reflect the saying he was contract—could mean that of the contract. the time of the execution would violate the drivers’ strike Nevertheless, the district court considered remark president’s contract. Thus the result, and we reaching such evidence in its “it didn’t by saying ambiguous because The district feel constrained to address it. matter,” could have meant president following events: court relied on the strike vio- that Jones’s comment about the was irrelevant be- lating the 1976 contract court found that when (1) The district the drivers’ president believed cause the Jones, plant, told the manager contract. not violate strike would that a strike would president of the Union contract, re- president violate the 1976 strike, the Eastern Con- (2) During the fact, “I care.” In Jones testified plied don’t telegram to sent a ference of Teamsters as follows: vio- stating sympathy that the local find this We what 1976 contract. Q: relate to the Court lated the youWill The proof. time? of the standard president] told at that fall short you [the question. Eastern Conference was not involved in ne- U.S. Steel contract, gotiating making the 1976 its III employed two-prong test to reach this views less than persuasive on the intent of result, prongs and two neither of the the Union to waive satisfied here. Moreover, production when the and prong The first III test U.S. Steel maintenance employees sympathy struck in was primary dispute between March the Conference remained si- employees employer and must be sub- their lent. Here, ject to F.2d at 208. arbitration. 593 (3) The district court found that the un- signed the drivers never a contract with the ion shop steward employees told the that a Employer. found that The district court sympathy strike would violate the 1976con- negotiations drivers continued af- with the tract. The record is at variance with this ter the contract production with the and finding. testimony reads: signed maintenance was employees right up A: I went and I production told the until employees drivers became personnel that there was liable to be Indeed, Countrywide. Article 1 of the 1976 a strike in the morning, but I also recognition contract is a and it is told them that under Article 16 in production limited to the and maintenance that if —and employees.5 Nowhere does it mention that each man was judg- to use his own the drivers are covered. Thus because the ment about to work. going drivers were not 1976 con- A statement that employee each should use tract, Employer dispute their his own judgment is not evidence that the not arbitrable. thought steward a sympathy strike would prong The second of the U.S. III Steel violate Article 16. test dealt with the fact that although “tech- (4) Some Employ- members of the nically” the sympathy striker’s local could management

er’s told the Union that a not arbitrate the em- dispute between sympathy strike would violate Article 16. ployer and the strikers, primary dispute We decline to hold that an employer’s state- essentially was between the and UMW U.S. ments, more, without are evidence of the Steel. We noted that both the union’s intent to waive the sympa- strikers and the strikers were thy strike. subject to the same collective short, negotiated by In that had evidence, none been of this sin international, gly or collectively, not the locals. See id. supports an inference contrast, Here, that the Union 208-09. the drivers believed a sympathy strike by the production and and maintenance maintenance em- employ ployees ees would violate the 1976 were not to the same con- contract. Indeed, tract. the drivers seem to have had Finally, it does not matter that all no contract at all. employees represented were by the same summarize, local To broad, or that one we hold that a gen- was in volved. eral no-strike United clause does not Corp. States Steel v. constitute evi- (U.S. III), UMW dence of clear and (3d Steel 593 F.2d 201 unmistakable waiver of 1979), one local of the UMW struck sympathy strike. Absent evi- Steel, and other representing UMW locals dence contrary, where the U.S. Steel went out on matter of the strike is not arbitrable be- that, strikes. We held unlike in U.S. Steel tween the sympathy strikers and their em- II, implied no-strike obligation ployer barred and where the contract read as Company recognizes gaining production, 5. Article 1 loading ship- states: “The for all acknowledges cooler, ping, advertising janitorial employ- the Local Union is the representative employ- sole and excluding exclusive of all ees . . but all office clerical guards, supervisors, ees employees, classification of work covered this advance sales- Agreement purpose men, for the employees.” of collective bar- and tell-sell salient features of op. whole indicates that at 1183-1184. the no-strike clause is Several because I limited to issues need to be underscored by covered this case proper res- critical to its general language such will not be read to believe become First, by sep- were Here, cover olution. strikes here sympathy strikes. none of the same union proof bargaining evidence satisfies the arate units of the quantum nec- essary employer to overcome this result. The at a dealing local with a common presented Second, no bargaining evidence of histo- the no-strike common work site. ry, and neither the law at the time of the clause in the Coca-Cola contract between signing parties’ of the contract nor the con- and the way inside workers was in no tied duct during supply the events here evidence to the arbitration clause in the contract. maj. Third, from which an op. inference was warranted See at 1186n.2. the primary that the Union intended to waive the by against truck drivers Coca- to sympathy strike. only Cola occurred after re- Company

fused collectively bargain with them fol- lowing III. Countrywide re-transfer from Last, Personnel. the issue before us is not The judgment of the district court will be injunctive whether will lie relief but reversed. damages may whether an award of alleged obtained for the union’s breach of ROSENN, Judge, concurring. Circuit the no-strike clause. I agree majority judg- with the that the With these mind, facts I proceed first holding ment of the district court Local 326 to the majority’s analysis. majority liable to Coca-Colafor as a result first holds no-strike clause of the sympathy strike must be reversed. I in the inside workers’ contract with however, write Coca- separately, express my Cola was not enough broad to waive disagreement analytical frame- to a sympathy strike, because the employed work by majority to resolve primary strike by the truck drivers was not My objection this case. to the majority’s over any dispute within the terms of the extension of the doctrine of coterminous inside workers’ arbitration clause. The ma- application to bargaining agree- jority by importing reaches this result ments no-strike clauses inde- doctrine of application” “coterminous from pendent of the arbitration clause. I also cases in bargaining which the collective except to the by rule laid down the majority agreement is devoid of a no-strike clause necessarily must show but one is implied presence from the of an clear and unmistakable waiver of the arbitration clause. to engage strike where a broad, unambiguous no-strike clause bars Flour, Teamsters Local v. Lucas Rather, any picketing. strike or I be- (1962), 82 S.Ct. 7 L.Ed.2d 593 lieve the controlling factor which renders the Court announced that in the absence of impotent here is the a no-strike the presence of an arbi- apparent prac- commission of unfair labor tration clause in a collective by tices the employer against the truck agreement give will rise implied to an obli- drivers which precipitated strike gation not to disputes. strike over arbitrable by them and a the in- This view was confirmed and refined in side workers. Gateway Workers, Coal v. Co. United Mine 38 L.Ed.2d 583

I. (1974). There, implied the Court held in an The majority has adequately recounted no-strike clause that “the the events leading up to the strike by the [implied] duty arbitrate and the not to truck drivers and the resultant strike should having be construed as coter- inside and mainte- application.” minous Id. at 94 S.Ct. at (inside workers). nance employees maj. means noth- application Coterminous 1192 sit-down, strike, stay-in, part any in take imply will not a a court

ing more than that any Com- operation than the arbitra- slow down in no-strike clause broader re- or it emanates. There- work tion from which or of pany any clause curtailment fore, the is over a nonarbitrable if strike with service striction of or interference dispute, may not be restrained. the strike any or operation Company the appli- The for coterminous theoretical basis during term of the picketing patrolling or con- cation that no-strike clause is is a Agreement. this quid quo of an arbitration pro sidered the to strikes clause not limited The no-strike a Textile clause in labor contract. See any prohibits grievances over arbitrable —it Mills, Workers Union v. Lincoln Indeed, have further the strike. 448, (1957). 972 923, 1 L.Ed.2d 77 S.Ct. arbi- the from the isolated no-strike clause in con- When a no-strike clause absent a by expressly clause of the tration contract tract, present, an arbitration clause but of whether a providing question that the to presence parties’ its the intent indicates is not an clause strike violates Therefore, it is peacefully. disputes settle the contract.1 dispute arbitrable under In duty not to strike. imply fair to a in this clause Thus, I view the no-strike contrary, to the language the absence of court, be func- case, as did the district obligation not to the makes sense to limit the from arbitration tionally independent strike of the arbitration clause scope point of It is at this clause the contract. Thus, its the from which it draws force. its that majority advances thesis that any matter sub- may union not strike over must express even an no-strike clause ject to arbitration. coterminously applied with arbitration In v. Corp. United States UMW Steel It the strike clause. holds because (U.S. II), 1976), (3d 548 F.2d 67 Steel not an the truck drivers was arbitrable 968, denied, 2926, cert. 431 53 U.S. grievance con- under the inside workers’ (1977), L.Ed.2d 1063 we were faced with the Coca-Cola, with workers tract inside question duty engage of not to in whether-a engage sympathy had in a sympathy implied strike could be from an despite express strike the broad of arbitration clause in the absence an ex majority heavily relies on the clause. The press no-strike We held that be clause. Forge Court’s decision Buffalo Supreme cause the the strike was of not over Workers, 397, Co. v. 428 United Steel U.S. any dispute, duty engage arbitrable not to (1976), L.Ed.2d 1022 96 49 S.Ct. in a could not be implied. strike I this reliance is its believe support thesis. However, the majority 548 F.2d at 73. as misplaced. notes, at correctly maj. op. we did not decide in U.S. Steel II whether an Forge In Buffalo Co. v. United Steel might waive the no-strike clause Workers, S.Ct. the union to engage (1976), issue for precise L.Ed.2d 1022 decision whether a federal court case,

In present we are not faced with enjoin a the arbi- pending problem an obligation whether not to trator’s decision as to whether the strike is bemay implied from an arbitration thus, forbidden no-strike clause doctrine coter- application. bargaining minous We ex- have broad contained in collective press prohibits any which agreement between stoppage. or work Article striking employer’s union. bargaining provides: office clerical and technical plants picketed company’s nor struck and

Section 1. The Union will not cause bargain- any during negotiations will unit for a collective member securing specific performance, provides or or 1. Section 3 of no-strike clause matter, being provisions Article, such matters of law of this other than men- other above, tioned “shall not be determinable and enforceable the courts.” arbitration, purpose assessing for the

H93 at disputes.” 398 U.S. employer’s ing agreement. employees represented by

and maintenance picket honored the unions defendant believe, relationship therefore, I of their sister unions de- support lines strikers’ between the promise with the em- spite their contractual clause con- strike and the arbitration The no-strike clause ployer to strike. read not in the Forge must tract in Buffalo clause; namely whether was tied to the arbitration context requested, of the relief the nonarbitrability of un- injunction. the violated the strike The the to availa- derlying dispute relates un- dispute arbitrable clause was itself an Boys Mar- injunctive of under bility relief in this the strike der the As contract. ket, I see noth- damages. not to a suit for in support of at issue was a ing in to indicate Forge Buffalo employer. negotiating sister unions relationship for the between damages, suit Forge held in Buffalo Court in the arbitration and no-strike enjoined not be could be- sympathy strike the strike is any way germane to whether of the primary cause matter subject the Indeed, in violation the of no-strike clause. under sympa- the strike was not arbitrable violation in for the of an remedy the thy employer, contract with strikers’ all clause becomes the therefore, within was not the narrow general light of the una- necessary more in an- exception the Norris-LaGuardia Act to relief under the vailability injunctive of Markets, Inc. nounced v. Retail Boys in Precisely for this Norris-LaGuardia Act. Union, 235, 1583, 26 Clerks reason, Congress to restore some undertook (1970). L.Ed.2d The Norris-LaGuardia 199 relations with the equilibrium in industrial 1932, 29 101 Anti-Injunction Act of U.S.C. § Management Rela- enactment of Labor the (1976), jurisdic- federal courts of deprived 1947, permitted re- tions Act of wherein restraining in- any tion to issue order or bargaining lief for breach of the damage strikes actions junction peaceful involving agreement the form of against in 301, (1976), under section 185 in dispute. 29 U.S.C. Boys § or out of a labor growing federal or state courts. Market, however, excepted the Court from against injunctions general prohibition the Refining 370 In Atkinson v. Sinclair labor those cases in which an disputes 238, 1318, (1962), 82 L.Ed.2d 462 U.S. S.Ct. 8 require to injunction sought the arbi- was (Atkinson II), before it the had the Court to tration the settle- of a matter the out of same damages growing issue of procedures bargain- ment in the collective injunctive strike in it had denied which This result was ing agreement.2 necessary 2, Atkinson, note 370 supra, U.S. relief congressional 440. give meaning policy 195, to “the L.Ed.2d Both 82 8 S.Ct. day and decid- favoring voluntary establishment of a were same cases decided the pertaining to separately questions ed peaceful mechanism for the resolution of by injunction thereby was barred section 4 of retreated from its earlier Court Act; position injunction case in- that such an was barred Norris-LaGuardia meaning Refining dispute” volved a within the of under In Sinclair “labor Norris-LaGuardia. Act, stoppage Atkinson, v. 82 8 even if the work Co. 370 bargain- (1962), employer brought an of the collective L.Ed.2d constituted breaches Court, 301(a) ing agreement. Writing Man- for the Mr. Jus- action under section Labor although agement enjoin, tice Black work Act of 1947 inter observed that Relations alia, stoppages may peaceable picketing, claiming have constituted a strikes and and strike promise breach of the union violated its contractual the collective provided griev- plain did not fact that The contract also for this alter the injunction sought, procedures terminating dispute a labor ance and the final and bind- therefore, pro- ing squarely question to the “runs counter arbitration. Confronted 4(a) scription policy favoring peaceful of in section strikes contained of whether resolu- Act, proscriptions disputes through tion of Norris-LaGuardia contract arbitration injunctions peaceful picketing judicial against policies con- enforcement of no-strike 4(e).” upon Id. at S.Ct. at tained in section could be accommodated with ban strikes, injunctions peaceful held Court injured party injunctive if injunctive damages. title the relief relief and The no- provided: strike clause in the contract is not arbitrable. dispute “[Tjhere (1) shall be no strike . . for . NLRB, Services, Inc. v. In W—I Canteen any cause which is or be the 1979), court (7th Cir. F.2d for (2) ... other ap- coterminous principle stated: “[The] cause, except upon written notice and no-strike plication of the arbitration union to the . .” The employer. . clauses, excep- ... is not without perceived as “not suscep- Court the contract . The principle merely tions. . Company tible a construction that interpretation par- rule contract was bound to arbitrate claim for dam- its may by express ties language indicate ages against breach the union interpret intent to the no-strike and arbi- undertaking not to Id. at strike.” differently.” Assuming tration clauses S.Ct. at 1321. The therefore conclud- Court exchanges the employer the to arbi- ed that the to employer prove was entitled promise by tration a the not to for union damages in court its claim for from the strike, necessarily this does not mean that contract, union for although breach of it the must be promise Nothing coterminous. injunctive denied relief under the no-strike prom- securing forbids the from a n.2, clause in its companion decision. See ise not strike the to that is broader than supra. promise grievances. to arbitrate In this The Court in Buffalo did not Forge reach case, the arbitration and no-strike clauses the issue of the damages because issue were functionally independent. Coca-Cola of whether the strikers violated successfully promise obtained a from the was itself an arbitrable union to not engage in strike—not dispute and was for the arbitrator to “[i]t merely strikes over grievances. arbitrable determine a whether there was breach [of Thus, I believe we must look to the the no-strike clause], remedy as as the well ” itself, language of the no-strike clause any breach, for . . . at arbitration, the merely scope to deter- to at Thus, though S.Ct. even the damages mine whether an action for will sympathy strike enjoinable, was not the We, essence, lie. face the same task as employer might still have been able to col- Forge: lect the in Buffalo this if the arbitrator did arbitrator determined the particular sympathy the strike violate the no- violated no-strike clause. action give strike clause so as to rise to an for damages by employer? believe, therefore,

I Buffalo Forge provides no applica- basis for coterminous in damage tion a action for breach of an III. express no-strike clause. I think that coter- there can be Facially, question no application minous is a doctrine limited the strike in this case violates the broad solely to implied no-strike clauses which no-strike clause of the Coca-Cola contract. scope obligation not to strike Putting one attempt to side the majority’s must be measured the breadth of the scope to limit no-strike clause arbitration Although clause. a no-strike grievances arbitrable by the of co- concept clause, express or implied, quid pro application, terminous majority alterna- quo clause, for an arbitration coterminous no tively finds “clear and unmistakable” application implied necessary only no- the right engage sympa- waiver of in a strike situations when there no other thy despite express language

plausible determining means of the extent forbidding any the no-strike clause strike or promise But, not to where Maj. op. union has work at Re- plainly expressly stoppage. set forth 1186-1187. its promise NLRB, provision, lying broad on Mastro principally Plastics v. promise give breach of that may rise to a 350 S.Ct. 100 L.Ed. damages, suit for although may not en- (1956), majority reasons that the broad

H95 rejected The Court stoppage” practices. argu- or work is insuf- this “any term to waive the ment because to so ficient hold strike, and that the no-strike clause must be eliminate, year, would for the whole read in light strike, peti- if employees’ even right to history subsequent tioners, employ- by coercion, ousted the Despite unambigu- conduct. the clear and representative ees’ lawful bargaining ous language of and, discharge, caused threats of majority parole looks to extrinsic evidence membership cards in a sign support its efforts to hold that the no- new union. said Whatever be strike clause did not bar strikes. legality of such a waiver when explicitly It concludes that no such clear and unmis- stated, for there is no basis adequate takable waiver is discernible from the facts implying its existence without a more of this and the union therefore did not compelling expression appears of it than relinquish against its to strike Coca- in . this contract. majority Cola. I believe the takes too 358. The Court held Id. at a view of Mastro Plastics in announc- broad “no strike” would not that the literal term ing any sympathy rule that strike must be barring an unfair labor as interpreted unmistakably clearly and waived before the is that practice reason a literal strike. The union held for it. may be accountable reading poli- national would frustrate Plastics, Mastro like the case now before effectively insulate cy employer could —the us, containing involved a labor contract his Relations breach of Labor the National express broad no-strike clause. Mastro by Act concerted action any from effective Plastics, however, significantly involved a through a broad no-strike primary against employer pro- strike in right clause. Inasmuch as the to strike test over its commission of unfair labor over unfair practices protected labor ac- practices against the union. The issue in tivity under section 7 of the National Labor broad, Mastro Plastics was whether a ex- (NLRA), Relations Act was un- the Court press no-strike clause by itself could waive willing to find a waiver of such a basic right solely union’s to strike in protest it, without reference to specific even over employer’s commission anof unfair language. in the of no-strike presence broad practice. labor The Court that indicated short, language tacitly broad no-strike upon proper answer not turned limited, of legal- “whatever be said interpretation particular of the contract but stated,” ity explicitly of such a waiver when contracts, other it must be read as a “[l]ike by policy forbidding employ- national labor relating whole in light of the law it when Court, er practices. unfair labor The how- 279, made.” Id. (emphasis at 76 at 356 S.Ct. ever, believed that broad supplied). The Court went on to indicate language to waive the un- was sufficient light contract must be read in ion’s engage in an economic strike. labor policy, which is to eliminate obstruc- 283, See 350 at 76 U.S. S.Ct. at tions to interstate by commerce encouraging practice Mastro Plastics dealt with procedure a serious un of collective bargaining by protecting fair practice by labor allegedly committed by exercise workers of full freedom employer against unit association, self-organization, designa- with whom it had collectively contracted. representatives tion of of their own Circuit cases have held that Mastro Plastics choosing, purpose for the of negotiating requires a “clear and unmistakable” waiver the terms and conditions of their employ- over unfair to strike labor protection. ment or other mutual aid or See, practices. g., Newspaper Production e. NLRB, 821, (5th 279-80, 356, Co. v. 503 F.2d 830 Cir. Id. at at quoting 29 NLRB, 519, 1974); 457 Kellogg Co. v. F.2d employer argued U.S.C. § 850, denied, “any enough (6th Cir.), the term was broad to 525 cert. 409 93 strike” 58, any right (1972). waive to strike over unfair labor 92 Courts have S.Ct. 34 L.Ed.2d relationship employer contractual the Mastro Hasties rule and upon seized sup- See, engaged sympathy have strike sympathy strikes. e. applied have it to port of the truck primary drivers’ Services, NLRB v. supra; W-I g., Canteen support of Sympathy always strikes are (1st 569 F.2d 162 C. K. & Smith strikers sympathy another strike for the 957, denied, 1977), cert. 436 U.S. S.Ct. against the complaint no independent have (1978); Gary Hobart 57 L.Ed.2d 1122 any focus majority eschews employer. NLRB, (7th 511 F.2d Water Co. v. in de- strike primary on the nature denied, Cir.), cert. strike termining sympathy whether the ap This wholesale (1975). 46 L.Ed.2d 252 language in the by broad no-strike barred problem Plastics to the plication of Mastro Instead, maj. op. at 1187 n.3. contract. See facially barred sympathy strikes waiv- holds that a clear and unmistakable it pro has language, broad strike present er must be in all without consideration largely ceeded if such a to determine proceeds cases and forbidding unfair labor policy national labor bargaining history in the waiver is evident Indeed, Mastro Plastics as I read practices. parties. I subsequent conduct making every no-strike clause implicitly controlling question is believe that may not exception that it Plastics as I of Mastro whether the rule prac unfair labor employer waive serious to a be extended read can tices, stated. The National explicitly unless of a support which is Board also has limited Labor Relations bar- a sister practice unfair labor rule to cases explicit Mastro Plastics waiver against same local gaining unit of the a serious employer in which the commits a common work site. employer common Depart practice. unfair labor Arlan’s Inc., 133 N.L.R.B. A causes a rift between Michigan, ment Store believe, therefore, (1961). strikers I with whom he has In most scope dispute. Mastro Plastics is limited in and sim no instances, I that national posits policy de would conclude ply national policy favoring stability labor of em- of the term mands a less literal construction relationships requires that precip ployer-employee stoppage “no strike” when a work be construed in its language broad no-strike by of the NLRA by itated a serious breach However, where plain, unequivocal terms. employer.3 unfair labor employer commits a serious bargaining unit of practice IV. against a sister which plant the same local at the same inquiry I therefore believe that a relevant strike, I believe underlying cause of in application in the of a no-strike clause favoring con- policy labor that the national employer labor contract is whether the has sup- in mutual employees certed by action precipitated by the strike a serious unfair rights requires protection port of their practice labor in violation of national labor that waiver of the to strike under relatively The policy. answer would be stated. explicitly such circumstances be concerned, simple were we as was Mastro Plastics, practices unfair labor directed with Teamsters Local 326 present whom the em- bargaining engaged unit with in the represented both the drivers Here, ployer who, how- has its labor contract. workers primary strike inside ever, line, primary by picket strike is the truck by refusing to cross the drivers’ employer engaged drivers with whom the has no in a strike. Coca-Cola employer workers who are in a was the of both the drivers and contract. inside provisions they public policies commonly from contractual over which 3. Particular con- are germane interpretation unequal bargaining sidered have no choice because of contract variety instance, strength. generally of contexts. For insurance Brokers Title Co. v. St. contracts, (3d because are considered con- Paul Fire & Marine Ins. 610 F.2d interpreted 1979). generally tracts of adhesion are in light policy protecting consumers employed em- by unit the common gaining workers and all inside with job Initially, site. site but ployer worked at a common common work negotiate separate con- attempted to honor local whom the has a contract and the inside workers. tract for the drivers Even the picket line and also strike. contract for the drivers’ negotiations When the inside though by a sympathy strike down, decided to transfer broke Coca-Cola relationship workers their disrupt would Person- Countrywide employment national labor Coca-Cola, I believe successfully nego- Local 326 thereafter nel. did not action policy favoring concerted agreement for bargaining tiated a collective impermissible render the Countrywide the drivers with Personnel. under these limited circumstances. Cf. C. Smith, sup- K. strikers Country- supra (sympathy After the local’s contract with practice expired, wide the drivers were port primary Personnel unfair labor Instead of at- retransferred to Coca-Cola. reinstatement). entitled to tempting to a contract with Local negotiate drivers,

326 for the Coca-Cola insisted V. into the insider the drivers “fell back” summarize, the doctrine of To I believe perceived workers’ contract. The local this place no application coterminous has attempt to circumvent as a sham and an express no-strike over the drivers’ con- cases in which an bargaining from the arbitra- practice functionally independent no unfair labor Although tract. filed, charges appears were that Coca- believe present. tion clause is I further bargain constituted a seri- policy Cola’s refusal to labor view of our national practice ous unfair labor under section over unfair protecting to strike 8(a)(5) NLRA, 158(a)(5).4 29 U.S.C. practices § labor 7 of the under section Thus, the mid-summer strike the drivers NLRA, may a court not find a waiver of practice constituted an unfair labor right, such a basic even in a broad no-strike waiver, whatever unless such a Although Coca-Cola had committed no I legality, explicitly be said of its stated. practice against unfair labor the inside Plastics this rule of Mastro apply would workers, the existence of a serious unfair on behalf of a strikers practice against the drivers who were unfair la- sister unit’s represented local by the same and who a common em- practice against bor plant, worked at the same understandably site. In these ployer at a common work disrupted labor-management relation- circumstances, sympathy strike apparent- narrow ship plant. at the Coca-Cola Therefore, I concur ly violating 8(a)(5) by its continued is impermissible. section insistence were covered basis and I would majority that the drivers on this the inside has Congress workers’ contract. of the district court. judgment reverse the expressed major policy national labor

when the National Labor Relations Board has certified a union as the exclusive bar-

gaining agent employees, for bargain good

must with that union in faith. It ill policy employer, would serve that if an who unfairly bargain has refused to with a bargaining agent representing

certified his thereby precipitating and is strike, agent for could sue because members of related bar- (5) bargain collectively pertinent 8(a)(5) provision to refuse reads: § employees, representatives of his practice It shall be an unfair for an provisions 159(a) title. employer- of this section

Case Details

Case Name: Delaware Coca-Cola Bottling Company, Inc. v. General Teamster Local Union 326 and Eastern Conference of Teamsters, General Teamster Local Union 326

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 25, 1980

Citation: 624 F.2d 1182

Docket Number: 79-2169

Court Abbreviation: 3rd Cir.