*1 ” Owens-Illinois, Inc., v. Mason tion.... UNION, 1975). (6th UNITED Cir. INTERNATIONAL AEROSPACE, AUTOMOBILE, AGRI that Ohio defendants contend IMPLEMENT AND CULTURAL applicable 2305.11 is state § Rev. Code AMERICA, Plaintiff- WORKERS OF reads statute. 2305.11 limitations Section Appellee, part: pertinent assault, libel, slander, An action for CORPORATION, DANA im- false battery, prosecution, malicious Defendant-Appellant. shall be prisonment, malpractice 80-3458. No. the cause year within one after

brought thereof accrued.... Appeals, United States hand, argues Circuit. Kilgore, on the other Sixth Ohio apply the court should appeal 9, 1981. Feb. Argued 2305.07, perti- Rev. which reads Code § 4, 1982. June Decided part nent as follows: Opinion Rehearing En Banc Granted in section 1302.98 of Except provided as 12, 1982. Aug. Vacated Code, upon an action ... the Revised other than a liability created statute brought penalty,

forfeiture or shall six after the cause thereof years

within

accrued. 4,1981 court, opin-

The district in its March

ion, rejected Kilgore’s argument based on overlooking

Ohio Rev. Code 2305.07 § face, section 2305.11

the fact that “[o]n analogous’ limita-

provides closely ‘the most plaintiff’s predicate

tions for the factual identifies

complaint” “explicitly since it false prosecution

claims for malicious subject one-year peri- to a

imprisonment

od of limitation.” agree

We with the district court the applicable

Ohio Rev. Code 2305.11 is § plain governing

statute of limitations Austin v. Bram

tiff’s 1983 action. See §

mer, (6th 1977); 555 F.2d 142 Carmicle Cir. Weddle, (6th 1977); and 555 F.2d 554 Cir. Zeitler, F.2d 119 Cir.

Crawford v.

1964). Kilgore’s complaint Because beyond period

filed well the one year set Rev. Code

limitation forth Ohio 2305.11, her action is barred. judgment of the district court is AF-

FIRMED. *2 TAYLOR, Judge. District

ANNA DIGGS this court’s seeks Corporation 1292(a)(1) review, to 28 U.S.C. pursuant Re- Temporary of a and 29 U.S.C. § Injunction straining Preliminary Order pending which were entered agree- neutrality alleged breach of a *3 Workers. ment with United Automobile adjudica- appeals Dana District Court’s contempt temporary tion of its order, as well. We affirm straining Young, Don J. Sen- orders of the Honorable Judge. ior Dana, principal with its corporation Ohio, Toledo, in place of business meaning commerce within interstate 142, 152, 185(a), has had 29 U.S.C. §§ with the bargaining relationship collective since at least organization appellee negotiated and exe- parties 1956. The have every Agreements cuted National Master then, most recent of third since year Dana and which was executed on behalf of Locals, International as well as 25 UAW its terms from December and is effective gov- December 1982. It through employ- and conditions of erns the terms 12,000 employees. approximately ment of that provides 3 of that contract Section of the contract application there shall be no thereto, any “or should any supplement kind arise controversy trouble or within respect In- company between and union.” unit as stead, to be resolved disputes all such are Walinski, Czarnecki, Richard John Hay- dispatch only through the with utmost ward, Straub, Cramer, Cooper, Walinski & provided, Procedure. It is also Grievance Toledo, Ohio, Arent, Fox, Siegel, Allen Kin- any dispute “interpre- that over Section ter, Plotkin, Kahn, C., Washington, & D. for of terms” be application tation and/or defendant-appellant. De- directly between the UAW Dana raised Torzewski, Green, Lackey, Gerald B. Joan appellant’s Director and General partment Nusbaum, Toledo, Ohio, & John A. .Lackey Department. Industrial Relations Office Page, Fillion, Whitman, Jay R. M. Leonard agree appealable directly Failure to Mich., Counsel, Detroit, Gen. permanent arbitrator. Section parties’ plaintiff-appellee. that the Arbitrator’s decision provides both the binding upon

“shall final and company.” Union EDWARDS, Before Judge, Chief MAR TIN, TAYLOR,* Judge, Circuit District Master supplements to the Since Judge. agreement contract included an have * Diggs Taylor, Judge, Michigan, sitting by designation. Honorable Anna District Court, United States District Eastern District of bargain- collective urgency position of neutrali- tion Dana maintain a would 1979; and work- list” for the Union in ty organize ing seeks to when the Union represented change language recent ers at facilities. The most the letter had agreement. It been subject on this is evidenced from the union, 2,1979, in favor because strengthened letter of Dana’s Cor- December experience union’s unfortunate porate Director of Industrial Relations the 1976 Depart- organizing despite drive UAW’s Director its Dana Oklahoma ment, testimony Mr. Rand’s pertinent part: supplement. which states letter we experience, “As a result was that negotiations the course of the 1979 the letter strengthen it was needed felt requested Agreement you Master is what we have done in recent and that certain concerning relationships letter contract, it.” The letter improved upon Dana facilities in which the speeches highlighted was then both represented by any are not union. Delegate in written materials to the UAW Over Dana and Auto years the United deliberations, and its ratification body in developed Workers have a constructive *4 obtaining membership the the UAW trust, relationship integrity, based on Master of the National Con- its ratification is ded- respect. management mutual Our he would not tract. Mr. Rand testified that organizational icated to an autonomous without have recommended ratification structure for our various divisions. How- neutrality supplement. ever, recognize we that certain matters require cut across divisional lines and the parties stipulated have that Wix The

corporate position. Carolina, Gastonia, Corporation of North corporate position regarding Our of Dana. Union wholly-owned subsidiary that, to representation is as Rand negotiator follows: testified nego- supplement during letter of “... We that our should believe to the tiations we referred Wix specifically exercise free choice and for them- decide Corporation. agreement, After we had the on by voting they selves whether or not knowing so well that it covered that situa- wish or represented to be the UAW tion, organizers to then we directed our any organization. other labor become involved in the Wix Plant Gasto- objection We have no be- to UAW nia.” coming bargaining representative our people as a result of such an election. Accordingly, by letter of December Where the UAW becomes involved in or- notified Department the UAW Dana ganizing employees, our we intend to con- Industrial Relations Director: Dana’s position maintaining tinue our a neu- organiz- an begun UAW has tral this position compa- matter. The production ing involving drive ny representatives and/or will commu- Dana Cor- maintenance of the employees, nicate with our in an anti- located at Gasto- poration’s Wix facilities manner, positive UAW but in a pro-Dana nia, North Carolina. manner. expect you would to advise Dana We If a of our majority employees indicate Company representatives Wix UAW, desire we represented by to be relating to corporation’s position will cooperate with all in- parties Also, neutrality. expect we would expedite an volved to NLRB election. company representatives Wix at Gastonia addition, neutrality right speak we reserve the to to adhere letter of out any regarding manner when un- the intent appropriate parties well as due organiz- during campaign provocation neutrality organizing evident in an ing (Emphasis added.) campaign. by the UAW. the NLRB for negotiator petitioned UAW’s chief with Dana then UAW

for 18 bar- Rand, Donald determine a collective years, testified an election to Wix neutrality posi- gaining agent issue of had “... some for the above-identified 12,1980, was then re- unprepared. hearing June Board set

employees, parties May for an election. Dana had re- scheduled for the date express election. it on Dana’s agree expedited agreed postpone to an to fused (which office of the no more representation Dana’s General Counsel that there would be in-house eight includes a staff of least until such neutrality violations of the letter Di- corporation’s attorneys) advised the hearing time as the could be held. neu- rector of Industrial Relations However, 2, 1980, on June President on the binding corporation trality letter of vi- four-page addressed stream Hoyle organiz- with The union’s respect to Wix. (no longer Employees” triol to “All Wix organizers ing underway. drive was with the “Fellows”). opens The letter among neutrality distributed the letter willing “Are bone-chilling question: you as reassurance of employees, Wix-Gastonia a vicious union take a risk that we will have neutrality. year?” in the next It strike here at Wix 28, 1980, Benny April On President S. to explicit thereafter from veiled descends Hoyle Corporation of Wix directed a letter threats, statements simple anti-UAW Employees.” to all “Fellow That letter specifically The letter states interspersed. stated, notably: most hope (that) Mr. “... it is abundant- Hoyle’s opposed having 1. That “Dana is this has no intention ly company clear that plants Wix become unionized.” Neither pressures such strike yielding statement, hereafter;” Hoyle’s authority nor and that strikers either now it, repudiated by “forever,” make has ever been jobs because risked loss of their Appellant. every exercising “we have intention of our replace keep plants strikers to these provide job 2. That “The Union does not *5 original.) operation.” (Emphasis un- security,” citing 25 to 30% of Dana’s long lay- ion and indefinite employees 5, 1980, the union received a On June offs, prospects without of return. letter; of the and it demanded imme- copy 3. The hint that the policy ample Wix emergency Friday, diate arbitration on may, overtime work to meet demand for response June 6th. There was no from reasons, unexplained supplanted by a Dana. frequent frequent lay- rule of hires and 9, 1980,the Union filed Monday, On June offs, if the were UAW elected. Court, complaint request- its in the District 4. will result in victory That a UAW enjoining a order ing temporary restraining renegotiation pay of ALL and benefit agents Dana and its from violation of the plants, ground up.” “from the anti-union, anti-UAW agreement by letter 30,1980, April griev- On the UAW filed a employees, pending communications to Wix protesting ance Dana’s violation of the neu- prelimi- the union’s motion for hearing on trality supplement with the Dana Industrial nary injunction, requesting an order Director, Department pursuant Relations to grievance. Dana to arbitrate the compelling Agreement. By 37 of the Master letter Court, hearing argu- District after 2,1980, of May Dana reiterated its neutrali- parties, ments of counsel for both found ty agreement, adding that it is “applicable con- dispute parties that between the facilities,” to all noting Dana that it at Gastonia cerning defendant’s activities would be in the all con- best interest of was, face, agree- of an “... on its a breach cerned expedite the NLRB election and plaintiff ment and defendant and between 9, May “conclude this matter.” On terms of the arbitrable under the parties agree, after failure of the bargaining agree- applicable collective appealed to the Permanent directly found that Judge Young ment.” further Arbitrator. irreparable suffer harm if plaintiff would unrestrained, inasmuch as the grievance Arbitration of the was Dana were union’s 16, 1980, subjected to be first scheduled for would continue May employees Dana, anti-union, date was cancelled because it was anti-UAW statements 12,1980, he who prosecute anyone 2. That would on June election would be held of the taped his full talk “to the extent rendering subsequent “hollow formali- law.” grievance no more than was entered Order

ty.” Accordingly, 3. That a union is a to trouble “pathway forthwith directing arbitration requested trouble”; serious jobs its “from restraining agents Dana will be em- permanent strikers filled with or anti-UAW oral or anti-union making and that strikers “can walk until ployees, or other communica- statements written bloody.” their knees are facili- to its Gastonia tions “never, predict one never 4. That should from departing position or otherwise ty strike, think in terms of a always a short election, neutrality” regarding pending long strike.” injunction. hearing preliminary on the 5. That the UAW believes directed to those was further remove strike, they workers on but that putting special materials from the Gastonia bulletin it, well: so will assess the workers within the prohibition. boards fell new car buy that this “not a time Hoyle Benny President was advised Wix new on the furniture installment evening the district court’s order same plan.” counsel, general who later testi- That, well, go if continue things 6. he tell Mr. to cease Hoyle fied that did not your pay Wix will “continue to increase his activities. and benefits after reference quarterly,” “the mb 10, 1980, next June President day, you increase pay granted hour-long delivered himself Hoyle July.” last each of the three shifts of Wix speech to in mind Finally: “Keep 7. these threats worked, who which a tran- sign card and you when the authorization record, is in which the script vote this union in.” Judge wrote: District later 11,1980, the filed a motion July On The evidence left no room for doubt the District order requesting vio- whatsoever that defendant had why Dana to show it not be cause should temporary lated terms June adjudicated contempt of court’s hour, straining For order. almost an reflects counsel 9th Order. record *6 harangued Hoyle President the defend- of present at the time parties for both were ant’s with the of most serious show the court set its request, and that statements, and of anti-union dire threats 12, 1980, at 8:00 hearing for June cause action that Wix would take them against That, course, Election was also A.M. recognized if the union was usual and the and the Wix Both the union Day plant. processes re- bargaining collective were join that Dana Judge requested the District If very sorted to. one listens it carefully, of the seeking postponement in hear, possible to amidst the torrent join refused to so NLRB election. Dana verbiage, few sentences which could thereafter, after a six month and the union pro-Dana, be perhaps construed it drive, withdrew temporarily organization more imagine complete is hard viola- its Petition Election. of the temporary restraining tion order contempt show cause June 12th the On speech. than Hoyle’s President the testi- presented held and the union noted special The court further partial and a mony of several witnesses

bulletin boards had not been cleared of speeches. On transcript Hoyle’s of one of Mr. propaganda. Hoyle’s speech anti-union its Memorandum the court entered June following included the statements here per- Order, containing findings Opinion tinent: matter, in law the and conclusions of fact the June unions, UAW, holding contempt That particularly

1. Dana in delay the UAW’s communists, no were better than and that Inasmuch 9th Order. petition to a withdrawal of prefer plant. by he would Russia the election congres- context of that stated pos- for Dana’s actions It is remedy had made a sible, prohi- it- purge apply the court directed Dana that we must policy sional 31,1980, either contempt by by self of June the issuance of in- bition of § tending to rees- certain affirmative actions junctions upon which disputes, in labor in the neutrality eyes tablish the of Dana Dana here relies. employees, by payment Wix of a fine that, repeal of the We next note without per day. $250.00 Act, Congress, Norris-LaGuardia 27, 1980, On June en- the District Court 301(a) Management of the Labor Rela- § injunction tered its the basis preliminary 185(a)), has (29 Act of 1947 tions U.S.C. § of the contempt evidence taken at the hear- that suits for violation of collec- provided conduct, ing finding and its if brought bargaining agreements may tive continued, would remove all benefit from having any United States District agreement the neutrality and render jurisdiction In Textile parties. arbitration a hollow formality. July On Mills, 353 Workers Union v. Lincoln 1980, the District Court denied Dana’s mo- tion for a stay preliminary injunction of the the court that Douglas Justice wrote for and purgation order. 301(a) the federal courts had authorized § enforce, at the instance of a specifically I. union, griev- to arbitrate provision Appellant argues first here that the ances, and to of federal law body fashion a Act of Norris-LaGuardia U.S.C. for the enforcement contracts. of labor 104, categorically prohibits the issuance § law, That entire body of federal injunction appeals. which it We first Act, history tenor of the must include note that courts were admonished Con recognition that an to arbi- that, gress at 102 of that law in the Act’s § trate is the for a quid pro quo union’s interpretation determinations of Moreover, agreement not to strike. Justice jurisdiction their “... authority, Douglas wrote that Norris-LaGuardia public policy hereby of the United States presented injunctive no bar orders declared as follows: arbitrate, and indeed that 8 of Norris-La- § Whereas unorganized the individual (29 108) Guardia U.S.C. indicated a clear § commonly helpless worker is exercise Congressional policy early even in that Act liberty actual of contract protect and to favoring disputes settlement of labor labor, his thereby freedom of to ob- arbitration, which unnecessary rendered acceptable tain terms and conditions of stringent procedural suits the § wherefore, employment, though he should quirements which 7 of Norris-LaGuardia be free to decline to associate with his requisite entry otherwise made of an fellows, it is necessary he have full dispute. in a labor Justice Doug- association, self-organization, freedom of wrote, las finally, that: designation of representatives of his *7 Management The Labor Relations Act own choosing, negotiate the terms and expressly furnishes some substantive law. conditions of employment, his and that he points parties may It out what the or interference, shall be free from the may not do certain situations. Other straint, labor, or employers coercion of of problems penumbra will lie in the of ex- agents, or their in the designation of such press mandates. will lack statutory Some representatives self-organization or in express statutory sanction but will be in other concerted pur- activities for the by looking policy solved at the of the pose of bargaining collective or other mu- fashioning remedy therefore, legislation tual aid or protection; the fol- of, range lowing policy. definitions will effectuate that and limitations upon, jurisdiction judicial will be determined authority inventiveness problem. (353 the courts of of the the United States are here- the nature U.S. 457, 918). enacted. at at 77 S.Ct.

641 Rela- 301(a) Management Labor of the Thereafter, his in the through opinions § (United .1. purposes of arbitratic of 1960 tions Act and the Trilogy” “Steelworkers Manufacturing more v. American requires Steelworkers Statutory interpretation words; 1343, 564, 4 L.Ed.2d upon 80 S.Ct. isolated 363 U.S. than concentration Warrior and v. 1403; to the United Steelworkers rather, given must be consideration 574, 1347, Navigation, 363 Gulf 80 S.Ct. law and pertinent U.S. corpus total and United 1409, Steelworkers 4 L.Ed.2d inconsist- ostensibly inspired policies Corporation, 363 Enterprise Wheel Car 250, 90 S.Ct. (398 at provisions. ent U.S. 1358, 1424), 593, 4 L.Ed.2d 80 U.S. S.Ct. 1592.) at the court the Douglas

Justice fashioned for changing concerns The court traced the obtains, today law which body federal of this centu- Congress early part from the labor arbitration. a demand for support of as allies regarded courts were ry, when the Gulf, supra, that: in Warrior and He wrote of the nascent management repression the particular An order to arbitrate movement, which fact led to unless it should not be denied grievance to correct enactment of Norris-LaGuardia assurance that positive be said with abuses; Wagner in the through response its susceptible clause is not the arbitration practices which dis- management Act that covers the asserted interpretation couraged participation; collective 582-3, (363 at dispute. at 80 S.Ct. U.S. emphasis and its 301(a) provision NLRB’s § 1352-53.) bargaining of collective upon enforcement supra, he reit- Manufacturing, In American and administrative obligations contract Mills that: of Lincoln finding erated his resolution of techniques peaceful changes which disputes; industrial all of “no strike” exception There is no in the extensive revi- accomplished were without read clause and none therefore should be statutes, including the anti-in- clause, sion of older grievance into the since one is junction of Norris-LaGuardia. quid pro quo for the other. (363 provision U.S. that, judi- as our The court wrote inasmuch 1346.) of full committed to the accordance ciary is 1970, through Boys Market v. Retail arbitrate, promise credit to a faith and Union, Clerks S.Ct. im- express or obligation, and a no-strike recognized prob L.Ed.2d the court new pro quo quid employer’s for an plied, is the penumbra lems which did indeed lie in the to submit to arbitration: undertaking mandates, Douglas as Justice statutory wary of assum- Clearly employers will be predicted, through had Justice Bren specifically to arbitrate ing obligations nan’s opinion approved remedy them when no simi- enforceable legislative policy. would effectuate is available to remedy efficacious larly Sin court, (of reversing prior position undertaking the concomitant enforce Atkinson, Refining clair Co. striking. On the union to refrain from 440, 1962) although hand, purpose the other the central Congress had not amended the Norris-La foster Act Norris-LaGuardia anti-injunction provisions Guardia since organiza- viability of labor growth Sinclair, provisions held that those did not anything, hardly tions is retarded —if preclude District Court United States remedial device goal advanced — enjoining from in breach of a no- a strike obligation enforces merely strike clause where the contract contains an spe- under a undertook freely the union under clause enforceable to submit cifically enforceable 301(a) of LMRA for arbitration *8 (398 at 252- to arbitration. U.S. disputes grievance which the strike was concerning 1593-94.) 3, 90 S.Ct. at called. The court wrote that: the Boys Market permits decision of the Norris-La- The literal terms of over an enjoin a strike district court Guardia Act must be accommodated clearly under grievance subsequently provisions enacted arbitrable returned no award could have however, which circumstances, and for its defined District ante. The facts, quo us to to the status parties it refers description of those determined, as the correctly in the Sin- had also Justice Brennan’s dissent directs, case, Trilogy follows: clair Steelworkers’ specifically question grievance may issue no District Court [T]he arbitration parties’ excluded from it first holds that injunctive order until clause, of the inter- question and that the effect; have that the contract does left to the of the contract must be pretation arbi- be ordered to employer should court. by the arbitrator and not decided trate, obtaining an of his as a condition probability prevailing The union’s Beyond injunction against the strike. course, merits, for must, purposes equity-balancing for this, the District Court cases, injunctive of an in- relief in such was held the issuance consider whether under ordi- properly probability be warranted measured junction would contention equity prevail that the union will nary principles —whether continue, will arbitrator. occurring dispute are that the is one for the breaches com- dispute threatened and will be genuine or have been if there is a Accordingly, mitted; issue, or will they whether have caused to an arbitrable respect with irreparable injury employer; to the most irreparable cause harm falls probability union, employer teaching will suffer of Lever heavily and whether the on the injunction injunction prop- more from the denial is Brothers is that such an than will the union from its issuance. erly entered. 1346.)

(370 at U.S. at S.Ct. v. Fort Pitt In Steel United Steelworkers notably Market decision in- Boys (1979), the Court of Casting, 598 F.2d 1273 finding cludes the that: Third Circuit affirmed Appeals employer injunction against district court’s Indeed, of arbitration very purpose tend which it found would self-help activity provide is to a mechanism for procedures of the arbitral integrity to undermine expeditious settlement of industrial injury of the un- strikes, process irreparable resort to lock- disputes without self-help (Em- ion’s members. The outs, self-help measures. or other and insur- hospital was the termination of added.) (398 phasis during a payments 1591.). premium ance benefit agreed The Circuit Court dispute. decisions, circuits other subsequent to Norris- exception that the Market Boys have had occasion to affirm the issuance of against acts tak- applicable LaGuardia was injunctions which have met all of the crite- under employer, en or threatened an Market, by Boys ria enunciated to be ex- certain circumstances. The facts strikes, have directed not at but at been 1) held to be: amined on such a claim were were employer self-help measures which subject to dispute is underlying whether the process the arbitral found to undermine arbitration; 2) whether the em- mandatory a “hollow making the extent of seeking than arbitration of ployer, rather v. Inter- formality.” In Lever Brothers Co. and frus- “interfering his is with grievance, Union, national Workers Chemical par- which the trating processes the arbitral Ap- the Fourth Circuit Court 1279); (3) (598 chosen” F.2d at ties had peals grant affirmed the District Court’s under injunction appropriate whether restraining prelimi- order and temporary ordinary principles equity. relo- nary employer’s court to address requires This case plant, pending cation of a arbitration. with the agree and we appropri- problem, was held to have that same District Court discretion, holding Brothers Boys within Fourth Circuit’s Lever ately exercised its Market constraints, Young, Boys by enjoining employer Judge Market applicable exception the ar- to Norris-LaGuardia conduct which would have rendered “a to make acts which threaten process formality,” employer bitral a “hollow after *9 upon injunction intruding rights of process, tue an of the arbitral formality” hollow the subsequent the First Amendment of by render a arbitrator’s assured it and would injunc- an all of practical nullity. outweighs award a Constitution Such United States mandatory only appropriate is under argument tion That the above considerations. (for which binding clause and arbitration discussion. requires separate clause); paid has the union with no-strike II. a probabili-

where the has established union the dis- ty of in the sense that prevailing the first extent to We must examine not one pute greater is than by probability to its em which Dana’s communications arbitrator; probabili- and where the the First Amend protected by the ployees are heavily on ty irreparable of harm falls more case, of this ment the circumstances under union, on the injunction, the absent an than public policies through the directives injunction. employer by grant an Congress Supreme and the expressed by rights concerning First Amendment Court case, Judge In this Young’s context; then However, in the labor relations meets all of the above standards. whether, argues, contractual requires Appellant as irreparable the element of harm make such of right There no waiver further discussion. is protect been may to the of this as have harm union communications be— election-eve conduct would is employer’s ed unenforceable. delaying has irreparable. While been — Act, 8(c), Labor Relations § National grievance, the union’s 158(c)], provides that: U.S.C. § [29 made not anti- employer repeatedly views, argument, expressing communications, UAW but serious threats thereof, opinion, or or dissemination employees organizers

to the whom union written, or printed, graphic, whether neutrality. assured of his A promised had form, or be visual shall not constitute conducted, long drive had been organizing practice under evidence of an unfair point the entire of which was to convince Act, expres- if any provisions of this such strength employees North Carolina or reprisal no sion contains threat as their efficaciousness UAW (Emphasis force of benefit. promise or representative dealings with Wix. An added.) lost arbitration award cannot restore a elec- Packing In NLRB v. Gissel post-election petition A tion. NLRB 23 L.Ed.2d S.Ct. aside, granted, set the election even if 8(c) imple- Supreme held that § and even if a Board implemented by bar- in a labor rela- First Amendment ments the order gaining employer, hardly would noted context. Justice Warren tions confidence, constitute the vote of show of his to communicate employer’s an and mandate for confrontation unity, neces- established, firmly views to his to enter which sary negotiations into either union infringed by and cannot be drag on well until decertification becomes as no threat long so possible. 12,000 or Board al- of benefit represented promise have or force ready by reprisal rati- fied a contract not they would other- made. However: presented, paid wise have been and have precise scope Any assessment of certain, unknown, if concessions course, must be expression, of employer the terms conditions of their own em- labor relations context of its made in the pre- for Dana's ployment, assurance Thus, can- employer’s rights setting. these not cisely eventualities would occur. the em- outweigh equal rights They are clause. The bound no-strike freely, those ployees to associate has irreparable demonstrated dam- protected 7 and are embodied § age. (395 8(c). proviso 8(a)(1) § however, U.S. at Appellant argues, ir- reparable damage 580.) which it sustains vir-

644 8(c) employer of 8(a)(1), turn, gives the Act prohibits in interfer- Section

Section ence, restraint, employees opposi- in express coercion of to his in right opinion the self-organiza- union, exercise of their right express the to tion to the also the tion. support opinion. in argument of such But, expressions not contain may his Gissel, employer’s In court found aup He reprisal. may threat of not dress “strike-happy” that union statements Even language opinion. threat in by would have to enforce its demands may expressions his statements be though strike, plant which result in probably would tend- opinion only, if their reasonable shutdown as had in the occurred elsewhere effect, viola- area; coercive in are ency they and that would have added.) 8(a)(1). (Emphasis tive of other Section great difficulty finding employ- in ment, at 1215. speech by unprotected First properly Amendment and found unlawful that proceeded This thereafter to find court the Board. that: by The court wrote of an employer’s agents the statements Any balancing of these must take a possi- that they stood to lose dependence into account the economic bene- wages ble reduction and insurance the employees employers, on their fits, that the “destructive forces former, the necessary tendency of violence, “strife, law unionism” included because of relationship, pick that up neighbors, between breaking, hostility intended implications latter that work,” 8(c). unprotected by loss of were § might be more readily dismissed into the veiled They category thinly fell (395 more disinterested at ear. U.S. threats, or le- than mere predictions rather 89 580.) S.Ct. at L.Ed.2d gitimate argument. are re- Again, there Gissel further held that parallels communica- markable between the protection an employer’s extends even to tions of that case and this those before predictions as to the unfortunate effects court. which he believes will unioniza- result from Indeed, when pre-injunction commu- but only predictions

tion: insofar as such nications of Wix evalu- Hoyle President are fact, upon objective are based and concern scope ated of the First Amend- consequences beyond his The em- control. context, ment in the labor relations under ployer in that to have case was found had the rule Gissel and its it is clear progeny, factual support assumption no for his basic beyond those communications are union, which not yet had even this scope employer’s First Amendment demand, presented one would have to strike privilege, regardless neutrality be heard. were suggestions Such agreement which it seeks to dishonor. protected speech but threats: and so were April Hoyle purported speak 28th letter suggestions the baseless made other repu- of Dana and behalf has never been closings plant in the area attributable were suggested It diated. that unionism has to unionism. The speech found Gissel to layoffs caused other Dana and will plants unprotected by the First Amendment Wix; that overtime will cease and bears remarkable resemblance to the com- pay lower benefits result from here appellant munications seeks negotiations. “predic- Not one of those protection. tions” claimed to be upon based N.L.R.B., Henry 2,1980,

In Siegel objective Co. v. F.2d fact. his letter of June (6th Cir., 1969), Hoyle’s suggestions cert. den. President of a “vicious 545, (1970), to which the has “no company strike” had court occasion to a Gissel situ- yielding,” consider intention of involves and which ation, apparent without job “forever,” clearly benefit Justice loss risk of are June, 1969, opinion. Warren’s Gissel threats. to the em- unprotected speech reached, however, 10th, result was identical. all three on June ployees of shifts Judge Combs receipt injunction, wrote: after fell com- rights to process that due The court held proviso of proscriptive pletely within judgment to civil hearing 8(c). notice and waiver, had waived. been subject are as the caselaw is Accordingly, inasmuch applicable stan- examined Justice Blackmun such as those uniform that communications of waivers judicial recognition dards for are unprotected here in *11 context, liberty personal the where criminal Amendment, employee are violative of First involved rights are property than rather association, are unlawful- rights to free and counsel, to right of the (including waivers coercive, ap- the to irreparable damage ly self-incrimination, presence and to consequent injunction pellant upon an trial), Overmyer’s at found that waiver met of arbitration straining speech pending such standards, not decide whether and did those be hardly can held neutrality in applied be civil a lower standard could presented by outweigh equities An waiver of a constitu- cases. accused’s entered, there- union. here voluntary, right required is tional fore, general prin- under the appropriate made, intelligently with full knowing, and ciples equity. of legal consequences, of the to be awareness Finally, the small extent that the holding in that controlling facts valid. in have question may communications here (1) valid that waiver was were Overmyer’s of retained the mantle complex a of Overmyer corporation was a waiv Dana had executed valid protection, activities; (2) widespread structure right er of First Amendment to such its of adhesion that the contract was not one be characterized as expressions might unequal bargaining one and the case not of “anti-UAW,” “pro-Dana,” by rather than (3) that initial power overreaching; supplement to the union of De its letter no confession of contract had contained 2, was cember 1979. The commitment reit judgment, only but the clause was executed 1980, May 2, response erated letter in of payment, in Overmyer’s delinquency after to union demand. The under fact forbearance; (4) for Frick’s consideration taking undisputed at the district either it, or its Overmyer did contend court or precise application here. Its counsel, significance were unaware for facts this case is a matter the labor note; (5) was not Overmyer (See su Trilogy” arbitrator. “Steelworkers clause, because defenseless rendered Its mere how pra.) presented, existence been va- judgment obtained could have ever, prevailing probability the union’s showing valid cause. In the upon cated presenting legitimate ques extent of circumstances, Overmyer’s light of those for mandatory tion the arbitrator under the was held right process hearing to due clause parties’ of these contract intelligently, and voluntarily, to have been (See Brothers), Lever and therefore was advance, with full knowingly waived in injunctive properly pend the basis of relief legal consequences. Jus- awareness ing arbitration. concurrence, wrote that: Douglas, tice As to the validity factually hardship the Whatever Ohio procedural undisputed its waiver of First Amendment worked judgment confession of scheme communications, right to make “anti-UAW” petitioners voluntarily was upon Overmyer this court refers to D. H. v. Frick through understandingly self-inflicted 775, arms-length bargaining of these cor- case, (1972). Overmyer In that had (405 porate parties. given cognovit note certain considera- 784). tion, waiving hearing prior notice and applica- entry judgment, This the standard in case of default. On court examined Amend- entry of waiver of First judgment, appeal of such the debtor’s ble to claim Restaurants, Inc. v. upon was based it could not ment in Sambo’s claim Arbor, waived, 1981. Ann constitutionally City be held to have Overmyer, supra, advance, right recognizing process to due of law. While controlled, this court distinguished that case in-house General Counsel staff. The neu- that, Sambo’s, Inc., held if trality agreement had the First here in language question Amendment right in of was at the time new in and was a modification the alleged waiver was the waiver 1976 supplement, drafted Dana’s In- invalid. controlling dustrial factors found Relations Director to meet the un- the finding of ion’s invalidity request were: stronger for a commitment than that of

1. which had caused parties No agreement between parties difficulties. The discussed binding was as a entered which mat- plans the UAW’s to organize the ter of Wix-Gas- state law. tonia plant prior supplement, 2. Insufficient consideration flowed to contemplated precisely this situation in its Sambo’s, Inc., to evidence a valid waiver execution. Neither Dana nor its counsel of its First Amendment to the ap- have ever contended a lack of under- pellation of its choice. The “bene- *12 standing or awareness of the legal effect of fit” received was held to have ap- been the document. Dana is not rendered de- proval of a site plan, which could not fenseless the supplement: every claimed constitute a consideration as it was an arbitrated, violation can be on demand. required action by law. 3. There was no “clear and compelling” Since December of Dana has had waiver, evidence of a as was required by the benefit implemented contractual Supreme Court in Curtis Publishing management 12,000 employment Butts, Co. v. U.S. employees. That contract contains a no- L.Ed.2d a case in which strike clause which constitutes an equiva- the failure to interpose a constitutional lent “waiver” of the First Amendment defense in the prior trial court decision of those employees to peacefully was held not to waive invocation of picket strong public demonstrate. The defense on appeal. nation, policy of this expressed repeated- ly by Congress in favor of the free associa- Sambo’s, Inc., concurrence in was based tion of employees and collective bargaining, upon the holding that a contract obtained does not permit this court to enforce the through assault, fraud, duress, or extortion implicit Amendment waiver in a no- should not recognized binding. strike clause but corporate not that of a This case meets all of the above-described promise of neutrality. standards for validity waiver, of a whether Overmyer alone is govern, or this cir- Appellant finally argues that cuit’s extension of that rule in Sambo’s. District Court’s temporary restraint The evidence of the contract is clear preliminary injunction making compelling, even undisputed. part It is a “anti-union”, “anti-UAW” communica a binding collective bargaining agreement, tions constituted prior unlawful restraints enforceable 301(a) under LMRA. of Dana’s First rights. There Dana has received benefits from its execu- prior was no restraint. Hoyle Mr. had al tion, in that a National Master Agreement ready published Dana’s views on two occa presented UAW was for ratification cease, sions before the first order to pend 12,000 and ratified by other Dana ing arbitration, and the upon conduct which would not otherwise have the Order was founded was clearly violative been presented. It is clear from contract, that testi- of both if applicable, and law. mony the union has foregone other The District speech Court had found the demands in exchange for promise waiver, unprotected because of the in a neutrality. This is no contract of probability adhesion: entry sufficient for the of a and there is no disparity bargaining pow- restraining order after review of the evi er. large Dana is a complex corpora- dence and arguments of counsel for both tion, employing an Department entire parties. The only governmental action of Industrial Relations personnel, as well as an which Dana complain can is that of Judge Young exercised arbitrator. Court, Senior adversary proceedings. District after this labor heat of dis- apposite, are his discretion None of Dana’s cited cases which, hindsight, even pute with a skill this area. challenge. we cannot were to be considered But if this restraint, it be held valid prior as a must AFFIRMED. careful scruti require

one. Such restraints per se. although are not invalid ny, they MARTIN, Jr., Judge, Circuit F. BOYCE Conrad, Promotions, Ltd. v. Southeastern dissenting. 1239, 43 L.Ed.2d 448 95 S.Ct. U.S. respectfully majority dissent from the I (1975). validly restrain com A court District following reasons. The by the protected which are not munications orders the neu- injunctive enforcing Court’s Rodgers First Amendment. v. U. S. Steel are unconstitutional trality clause Cir., Co., 1001, (3rd 1976). The they protected prohibit because straints “di necessary prevent restraint must be injunc- whether the speech. rect, immediate, damage” irreparable Boys under the Market ex- tions are valid competing protect or imminent threat Act Norris-LaGuardia ception Oil public ed interest. Bernard Gulf proper disposi- irrelevant therefore Cir., 1980), on other 619 F.2d 459 aff’d. separately, setting case. I write tion of this 2193, 68 grounds, 452 my of the record and my reading forth (1981). Finally, L.Ed.2d 693 the restraint question. the First Amendment analysis of *13 narrowly must and least be both drawn separately facts for two reasons. I state the restrictive means available. Carroll First, differently than interpret I the record Anne, 393 President and Comrs. of Princess Second, majority majority. does 347,21 (1968). 89 S.Ct. L.Ed.2d elements of the important several omits The met all of those orders this case have discussion,including the ex- its record from that, It is to draw the noteworthy criteria. neutrality agreement press terms of the the dis narrowly possible, restraint as District Court’s language and the gave trict Dana the purgation court’s order orders. its communica alternative cessation of action, payment or of tions and corrective long history a Dana the UAW share and fines. accumulating 1979,they exe- In bargaining. of collective a cur- Agreement cuted Master here to standing Dana has no provides rently Agreement in force. The of its argue rights the First Amendment meaning and disputes all about its to to listen the communications through bind- shall be resolved application Jackson, question. Barrows specifically lists the arbitration. It ing 1031, 97 L.Ed. 1586 namely encompasses, it Dana facilities stated rule that “one the well-settled plants. twenty-four manufacturing standing not claim to vindicate the constitu supplementing the subsequent In a letter party.” tional of some third stated its inten- Dana Agreement, Master preliminary injunc- The District Court’s attempt- if neutral the UAW tion to remain and order are af- contempt tive order also covered facilities not organize ed to cause on the hearing firmed. A show con- that Dana letter indicated Agreement. The tempt was held on June 12th motion and employees “not in would communicate the court’s extensive memorandum and or- manner, positive, in a an anti-union 20th, finding June Dana in der filed con- also manner.” Dana reserved pro-Dana tempt. None the court’s extensive find- of “undue in the event “speak to out” erroneous; ings clearly of fact are cited as a fact campaign, UAW provocation” moreover, it be must all times remem- to discuss. majority fails interpretation full bered that the task of UAW’s arises from the controversy parties’ contract to This application be, December, organize to em- was, attempt it left to the the situation must (1) sending Wix a ployees Corporation, wholly repudiating letter to all Wix Dana, employees; (2) subsidiary representatives owned in Gasto- UAW giving located to access to nia, Hoyle addressed president, North Wix’s Ber- audiences Carolina. enable Hoyle’s union to address them in nie Hoyle, openly opposed the cam- UAW’s mandatory presence; all (3) removing paign. anticipation of an election NLRB anti-union material from Wix’s environs. 12,1980, scheduled for June mailed a Hoyle order also required Dana to reserve letter to his on April listing half of each for least Wix bulletin board ten Hoyle “facts” about the UAW. materials, pro-union give and to UAW alleged responsible also posting for access to the daily boards. anti-union material on Wix’s bulletin boards. The invoked neutrality UAW opinion, In memorandum the District Agreement clause of the Master initiat- justified restraining the temporary Court grievance ed a in response Hoyle’s ac- contempt by speculat- order order Although parties tions. sev- scheduled might the union election ing that be unfair: eral hearings, case, could not they “In this with the election three agree result, on a convenient date. away, permit As the defendant to con- days they never to violate met. tinue its remain pending speediest neutral even the arbitra- Hoyle wrote a Wix second letter to em- tion could result in an unfair election. The later, ployees on June 2. One week result of come too arbitration would late petitioned the District for the added). plaintiff.” (emphasis avail the On Ohio, Northern District of Western Divi- preliminary June the court in- issued sion, to enforce the neutrality agreement junction Dana, based on the facts compel emergency to submit to legal supporting previ- conclusions arbitration. court issued a temporary ous also concluded that orders. court restraining prohibiting order Dana “from pre- the UAW had shown “traditional making anti-union anti-UAW oral or relief: requisites” injunctive written statements or other communica- appears plaintiff It will further suf- tions” to employees. Wix’s The court also irreparable if fer immediate and harm ordered Dana to remove all anti-union ma- *14 making defendant is not restrained from terial from the bulletin boards walls of anti-union, anti-UAW communications facility. Gastonia Finally, court pending at Gastonia a dis- its ordered Dana to submit to arbi- emergency lawsuit, that, position of this without tration. relief, defendant’s Gastonia employ- such general counsel read the terms of subjected will continue to be ees anti- the court’s to Hoyle telephone order in a union, anti-UAW statements from the conversation and told him that Dana ex- employer and an election may be held pected compliance. Nevertheless, his on plaintiff being remedy without able to 10, June Hoyle made anti-union speeches to violation thereby completely depriv- such Wix employees during each factory shift. plaintiff ing benefit from its neu- He also failed to remove anti-union materi- trality agreement rendering any ar- al from the plant’s bulletin boards and formality, bitration be held hollow walls. (emphasis added). 11, language On June essentially post- decided to pone election, temporary restraining mirrors withdrew application its NLRB, from order. and filed a show motion to why cause should Dana not be in civil held appeal, On Dana raises numerous conten- contempt. After a hearing the next on day tions, chief among them that the District motion, the UAW’s the court held Dana in injunction enforcing Court’s neutrality contempt of the temporary restraining or- is an prior clause unconstitutional restraint. der. It Dana view, ordered either to pay per right $250 In Dana is in this my contention day, purge or to itself of contempt civil by: following for the reasons.

649 involving judicial enforcement Two cases majori- matter, reject the I As an initial its Dana has waived contracts illustrate employment ty’s conclusion of CIA rights by bar- Amendment arsenal of First Snepp In v. United analysis. proper waiver neutrality adopting the gaining for and 62 States, 100 that Dana majority states clause. The up Supreme L.Ed.2d intelligently voluntarily, and knowingly, standard se of the CIA’s validity held the curtail communications agreed to em CIA agreement, requires crecy conclusion, it this support In employees. manuscripts to submit proposed ployees Co.,405 U.S. Overmeyer v. Frick cites D. H. censorship before review and the CIA for (1972). 31 L.Ed.2d 92 S.Ct. Marchetti, In United States publication. that, under principle I Although agree denied, (4th Cir.), cert. 466 F.2d 1309 circumstances, company may appropriate rights waive its First Amendment validly judicial Fourth Circuit held (1972),the in the face of agree to remain neutral oath secrecy an identical enforcement efforts, as a matter organizing prior restraint not an unconstitutional was the record before corporate policy, however, not did Snepp, publication. waiver of the support will not a broad court whether one answer the squarely view, my In right employees. to address subject to a contract to be may validly finds a waiver of mistakenly majority Rather, sanctioned the the Court restraint. in an addendum to a right speak in which bargaining agreement profits trust on collective of a constructive imposition terms, to remain promises, vague through employee a former earned organizing to union respect “neutral” with agree secrecy standard of the CIA’s breach con- gives itself no efforts. The pur a contract In breach of Snepp, ment. “neutral,” because Dana to the word tent First Amendment to waive the porting to make unequivocally retained pun publication to uncensored “speak and to “pro-Dana” pronouncements prospectively. retrospectively, ished out” in certain circumstances. two reasons. these cases for I discuss ignore conclusions majority’s with which First, rigor they exemplify waivers of First well-settled rule that must compelling” “clear and standard inferred rights may As a waivers. to First Amendment apply circumstances. compelling” “clear and Snepp both employment, condition of Halkin, (D.C.Cir.1979). re 598 F.2d 176 expressly signed contracts Marchetti Poly- this court held in National Recently considerations. security recited national Borg-Warner mer Products applicants required The contracts 1981), Cir. that court enforcement publication, right to uncensored waive their voluntary pre-trial agreement by of a Laws, Espionage Act reading the outside disclosure of after first injunction prohibiting *15 Moreover, prior 25, 1948, trial evidence was an unconstitutional as amended. of June waiv- voluntary restraint. On the issue of clear disavowal of required the contracts er, that a waiver must be “clear we said and ownership interest in information any compelling,” “narrowly and construed” tenure with intelligence gathered during in the of the First Amendment. Id. context short, was a In the CIA contract the CIA. Co., at 423. v. See also Bernard Gulf Oil waiver clear, compelling unambiguous banc), (5th 1980)(en aff’d 619 F.2d 459 Cir. rights. a valuable 89, grounds, on other 101 S.Ct. 452 U.S. Marchetti, Furthermore, Snepp and both 2193, (1981); Rodgers v. 68 L.Ed.2d 693 read, of com- presence turned on the fairly (3d Co., 1001 United Steel F.2d States 536 security interests—national pelling state view, 1976). my In neutral- Cir. the UAW’s confidentiality. Supreme The explicit clause is not a waiv- ity sufficiently to the Snepp’s relationship characterized support sweeping speech. er to ban which carries fiduciary, of a CIA as that Arbor, City of Ann See Sambo’s 444 trust.” extremely high degree 1981). “an 686 Cir. 650 765, court enforcement 763, justify In order to 507, 509, 100 S.Ct. was careful to The Fourth Circuit 709. to publish not contract’s covenant CIA prob would that “the law note in Marchetti Marchetti, Circuit the Fourth issue in there had imply secrecy agreement ably itself agreement first determined that ...” agreement formally expressed been no did Amend- agent’s violate inter compelling 1316. No such 466 F.2d at rights. agreement specifically ment support inference present ests are here classified only covered use of agent’s an competing interest a valid waiver. careful to em- information. The court was whol atmosphere pre-election this case is a phasize scope: the contract’s narrow per I am not ly favorable to the UAW. said, however, As we have Marchetti private self-interest suaded that UAW’s security equal footing accepting employment

shares with national with the CIA confidentiality. secrecy agreement did not by signing right his First Amendment surrender Second, point and Marchetti Snepp case, is enforce- majori- speech. which the free critical issue in this whether court enforce- ty fails to address: it is not a violation of able because waiver of First ment of a contractual We would decline enforce- rights. those state rights Amendment is unconstitutional signed oath when he secrecy ment of the con- reject majority’s implicit action. I employment CIA left enforcement of the neu- clusion that court prevent disclo- purports extent that it significant no than trality clause is more information, for, to unclassified sure of contract, without private enforcement of a extent, in contra- the oath would be ramifications. It is clear to constitutional rights. Amendment vention of his First impermissible me that state action occurs retains the Thus Marchetti injunctive pow- when marshall their courts write about the CIA and its speak and op- ers private agreements to enforce it as other operations, As criticize prior speech. erate as restraints on Judge Bazelon observed in Halkin : he not disclose clas- may, may citizen

Even where individuals have entered himby during information obtained sified express into not to disclose agreements his which is not employment the course of information, certain either consent public in the domain. 466 F.2d already agreement, v. Bradstreet 312 Crosby omitted). (footnote 1317 denied, (2d Cir.), F.2d 483 cert. 373 U.S. on to that “the risk of say The court went (1963); 83 10 L.Ed.2d 412 S.Ct. great disclosure is so and main- harm from or by employment contract and secre confidentiality necessary” so tenance of oath, Marchetti, cy United States system an administrative as to warrant denied, (4th Cir.), F.2d 1309 cert. 409 U.S. Id. at 1317. prior restraint. (1972), 34 L.Ed.2d 516 judicial have courts held that orders that, although from these cases It is clear enforcing agreements prior such are re contract to waive one’s First one implicating straints First Amendment and to submit to rights. unambiguous in a clear and con- restraint (emphasis added). F.2d at 189-190 tract, power a court’s to enforce such a Sullivan, New York Times Co. v. bargain narrowly circumscribed 254, 264, 710, 717, L.Ed.2d judicial prohibition against constitutional Supreme Court found suffi- *16 Prod- prior Polymer restraint. National cient state action enforcement in court ucts, supra. Borg-Warner Corp., Inc. v. See common law rule to the First implicate Co., Rodgers v. supra; Bernard v. Gulf Oil Amendments, noting: Fourteenth “[T]he Co., A supra. United Steel court States test is not the form state power in which speak not to enforcing promise order applied, but, form, has been whatever the purely private action publish transforms power whether such has in fact been exer- action, to strict subject which is cised.” into state

651 choice, this kind of between Thus, precisely It is such an in- scrutiny. constitutional information, suppressing dangers prior as a operate order must not junctive if it of its misuse dangers and the by restraint, terms or either its own available, First Amend- that freely it en- agreement underlying those for us.” ment makes view, enforcement my injunctive forces. ambiguous neutrality 1620, of an 97, 52 L.Ed.2d 97 S.Ct. 431 U.S. ap- scope its Bd. v. against party disputing Virginia Pharmacy (quoting at 164 Council, 425 Amend- by First Consumer plication, judged Virginia must be Citizens 748, 770, 96 1817, 1829, 48L.Ed.2d U.S. S.Ct. ment standards. (1976). 346 Dana has not Because I conclude that the merits I turn now to consider rights, I need waived its First Amendment Dana characterizes appeal. majority’s state- length not dwell at order, contempt restraining temporary standing lacks to raise ment that Dana prior as finding, and employees First Amendment of Wix that, argues expression. straints of campaign in a robust to receive information actions, such, while not unconstitu- these Nevertheless, I note that atmosphere. se, require careful per tional nevertheless free flow of protects First Amendment Promotions, Ltd. v. scrutiny. Southeastern ideas, marketplace information in the 1239, 546, 43 Conrad, 95 420 U.S. S.Ct. See, speak. well as an individual’s (1975). In New York Times L.Ed.2d 448 e.g., Township Linmark Assoc. Inc. v. 713, 714, States, 91 v. 403 U.S. Co. United 1614, 85, Willingboro, 431 97 52 U.S. S.Ct. (1971) (the 2140, 2141, 822 S.Ct. (1977). L.Ed.2d 155 case) Supreme “Pentagon Papers” My compelled view prior that a its admonition Court reiterated Amendment, national labor presumption “heavy restraint bears committed to policy as well. This court is validity.” See its constitutional policy campaigns debate Sullivan, Books, v. 372 also Bantam Inc. vigorous highly should be “It is open: 631, 58, (1963); 9 L.Ed.2d 584 83 U.S. S.Ct. desirable that ... hear all employees (6th CBS, 234 Cir. Young, Inc. v. 522 F.2d sides of the in order that [union] 1975) curiam). (per they may exercise the informed and rea- restraint has been Traditionally, prior soned choice is their NLRB v. right,” judicial prohi “pre-determined as a defined (9th Lenkurt Elec. 438 F.2d 1108 expression restraining specified bition 1971) NLRB, (citing Corp. Cir. Colonial v. ” Co., supra at Bernard v. Gulf Oil .... (6th 1970). 427 F.2d 302 Cir. To the extent Chicago Lawyers Council of [quoting 467 it this of national objective frustrates Bauer, (7th 1975), 522 F.2d 248 Cir. to shield policy, attempt the UAW’s denied, 49 cert. adversary’s Wix from its views is (1976) L.Ed.2d 1204 The District Court’s ]. misguided As the paternalistic. Su- creates a injunction unquestionably preme Court observed in Linmark: effect are not to purpose restraint. Its “There is ... an alternative fact, speech after the but rather to punish highly paternalistic That al- approach. terms, outright. By it its Dana is suppress ternative is to assume that this informa- addressing from prevented harmful, people tion is not in itself reaches future union matters. It about perceive will their own interests if best presumptively conduct that fall speech and informed, only they enough are well Amend purview of the First within to open that the best means to that end is WXYZ, See, Michigan Inc. and e.g. ment. Assoc, Hand, the channels of communication rather J. Broadcasters v. Michael than to them choice (6th 1981); close .... But the Universal F.2d 420 Cir. among Vance, is not approaches these alternative Amusement Co. curiam, 1978), per

ours Virginia to make or the General Cir. aff’d (1980). L.Ed.2d 413 Assembly’s. *17 652 (Act) nor “[Njeither Amendment:

Next, prior must consider whether the I scrutiny. abridgement in this case withstands an restraint tolerates Constitution First, narrowly must fit within of the it one to communicate right employer of an prohibition exceptions defined not he does long so employees with his example, For against prior restraints. infringe (their) rights attempt speech restrain or infor- may validly court Bangor v. by the Act.” NLRB guaranteed it is not mation that is of such nature that Inc., 772, (6th Cir. Plastics, F.2d 775 392 Rodg- protected by the First Amendment. Ford, 170 F.2d 735 1967). also NLRB v. See (cit- Corp., supra, ers v. United Steel States Bulk 1948). Nebraska (6th Accord Cir. v. Lottery Comm. ing Jersey New State (8th NLRB, F.2d 311 608 Transport, Inc. v. States, 219, (3rd F.2d 222 Cir. United 491 Hospital, 1979); NLRB v. Shore Cir. South 1974) (en banc) grounds, other vacated on Auto, (1st 1978). In 571 F.2d 677 Cir. 371, 941, 260 420 95 43 L.Ed.2d U.S. S.Ct. NLRB, 400 F.2d Div., Bendix Meas. Co. Second, (1975) curiam)). the restraint (per 1968), we (6th stated: 145 Cir. “direct, necessary prevent must be imme- right upheld we have In this Circuit compet- to a irreparable damage” diate and organizational in a Union speech of free ing protected interest. Bernard v. Gulf Oil its exercise and stated that campaign Co., supra Finally, at 473. the restraint N. L. restricted. narrowly should not be must be both drawn and the least narrowly Serv., 398 F.2d B. v. Rental R. Uniform restrictive available. Carroll v. means 1968); B. v. Hobart (6th N. L. R. 812 Cir. Anne, 393 89 President Princess U.S. 1967); Co., (6th 203 Cir. Bros. 372 F.2d CBS, (1968); Inc. 21 L.Ed.2d 325 B., L. R. Mfg. Co. v. N. Surprenant Young, supra. Judged by these stan- (6th 1965); Union Carbide F.2d 756 Cir. dards, injunction entered the District B., (6th L. R. 310 F.2d 844 Cir. Corp. v. N. rea- following Court cannot stand. For the 1962). sons, reject majority’s contrary I conclu- sion. NLRB, 427 F.2d Corp. v. [quoted in Colonial

First, injunction (6th 1970).] does not fall within Cir. any exception prohibition against Furthermore, whether an en- restraints. The constitutes expression anti-union employer’s dispute. tered in the context of a labor unlawful threat or protected speech or an However, unquestiona- employer’s speech careful be determined promise can bly protected First Amendment. by the outlined in balancing, Supreme as the See, e.g. Packing NLRB v. Gissel Gissel: to com- speech an free employer’s NLRB, (1969); Florida Steel Co. v. views to his municate his 1979). employ- Cir. Protection for infring- cannot be firmly established and 8(c) section speech springs er’s also from Thus, 8(c) or ed a union the Board. § Act, which the National Labor Relations (29 158(c)) merely implements U.S.C. § provides that: by requiring views, expressing any argu- views, argument, “any expression ment, opinion, or or the dissemination an shall not be “evidence of opinion” or thereof, written, printed, whether long so as such practice,” unfair form, or visual shall not consti- graphic, reprisal contains “no threat expression an unfair labor tute or be evidence of promise of benefit" in viola- or force or provisions under practice 8(a)(1).... tion of § con- subchapter, expression if such reprisal

tains no threat of or force scope of precise Any assessment 158(c). promise of benefit. 29 U.S.C. course, must be employer expression, relations context of its labor made in the consistently recognized This court has Thus, rights can- setting. employer’s an statements to his employer’s rights of the em- outweigh equal the First guaranty are within the

653 rights Second, as those freely, sup can be prior to associate restraint ployees protected enjoined 7 and ported specific findings embodied that the § are 8(c). And proviso danger” 8(a)(1) speech present § and creates a “clear and must take rights balancing of those competing pro or an imminent threat to a any dependence economic account the ex E.g. into tected interest. Near v. Minnesota and employers, their Olson, 697; 625, rel 57 75 S.Ct. 283 former, tendency of necessary CBS, (1931); Young, L.Ed. 1357 Inc. v. su pick up relationship, of that pra. Georgia, because also Wood v. 370 U.S. See that the latter implications (1962). intended 569 S.Ct. L.Ed.2d aby readily Brandeis, dismissed more an might “only be the words of Justice ear. repression”, Whitney more disinterested can emergency justify California, 357, 377, 47 274 U.S. S.Ct. at 1941. 575 at (1927) (concurring opin 71 L.Ed. 1095 mind, I have principles With these ion). find The District Court made no such The District Court examined the record. ings. majority today To the extent or Hoyle’s letters finding made no that findings, makes such it far exceeds the coercive be- threatening or speeches were scope of review. The District appellate anti-union all future fore it restrained prevent possible Court entered its order to be found them to merely The court speech. election, preserve taint to the union and to The “pro-Dana.” rather than “anti-union” bargain. the benefit of the UAW’s may have vio- Hoyle’s fact that statements not convince me that an unfair record does letter, of the if not the spirit, lated the election was imminent or that the UAW’s deprive does not them neutrality clause Indeed, bargain seriously was threatened. Nor does it protection. Amendment First election, and thus postponed UAW certainty any virtual that establish with destroyed any urgency its claim once would postings letters or speeches, future have had. coercive. The District impermissibly be however, concern, was not primary Court’s Rather, Wix employees. for the The District Court did not consider injunction, restraining order and whether the UAW’s interests were substan- the UAW the bene- attempted give court tial compelling, approaching Dana’s thus exalted a bargain. fit of its The court First Amendment rights in dignity and im- speak interest over Dana’s private portance. CBS, Inc. v. Young, supra. I freely. search the record in vain any for evaluation concludes, of the support implications without majority temporary straining made record, injunction, that the District Court order or the any in the or for Hoyle’s finding that that Hoyle’s speech determination would inevita- implicit bly destroy process letters fell outside both speeches and lead to an 8(e) unfair election. protection. findings and section Without effect, the court argues prior as well that restraint cannot justi- Cruise, ex- fied. Hoyle’s have found” See Alberti v. “may below 383 F.2d 268 1967). before it issued Cir. pressions unprotected were However, specu- I decline to restraint. intentions the District Court’s late about when First Amend- implicit findings Third, sweep restraint must The record on are at stake. agree ment interests too I with Dana that broadly. express finding no appeal contains over- injunction fatally District Court’s violated federal labor laws. speech Hoyle’s enjoined broad. The court’s order future explicit sentiments, determination Absent a clear expression of all anti-union letters, and notices speeches, Hoyle’s employ- “other communications” with Wix injunction cannot unprotected, are beyond ees. To the extent it went stand.1 enjoining reprisal promises threats of or brief, granted; 2) According the District the order was 1. to the UAW’s July part appeal dated not this any Court noted in a memorandum made of the formal record on to In court, Hoyle reprisals and also therefore I do not consider it. 1980 that threatened However, event, language injunction pro- promised I do not consider benefits. 1) “threatening” adequate finding two reasons: hibited more than this an for much “promising” speeches. a full week after the that order was entered benefits, ORDER the injunction is too broad to with scrutiny. stand See Coal Co. Consolidation majority A Judges of this Court Va., Disabled Miners of F.2d 1261 service regular this case en banc. rehearing have voted *19 (4th 1971), denied, Cir. cert. Rule 14 Sixth Circuit 228, 30 L.Ed.2d 184. provides as follows: The effect of the granting hearing of a Finally, the District neither exam- en banc shall be to vacate previous nor ined ble considered the alternatives availa- opinion and judgment Court, of this to federal under the labor stay the mandate and to restore case laws that would have restricted Dana’s on the docket as a pending appeal. less rights drastically injunctive than Supreme relief. The Court Accordingly, it is ORDERED that field, has stated that this sensitive “[i]n previous decision and judgment of this may not employ broadly State means that vacated, Court is issuance of the mandate is stifle fundamental liberties personal when stayed and this case is restored to the dock- the end can narrowly be more achieved.” et as pending appeal. Anne, Carroll v. supra President of Princess 184-185, at 393 U.S. at 89 S.Ct. at 253. It is alterna- clear that a less restrictive was, fact, The federal tive labor laws establish a scheme tive ees’ available. of retrospec- BOWIE, Plaintiff-Appellant, Nina C. penalties employ- for infringements rights. associational These com- ostensibly prise the interest that the UAW HARRIS, Secretary Roberts Patricia sought do the labor protect. In no sense Welfare, Health, Education and contemplate system laws Defendant-Appellee. have filed unfair straint. UAW could practice the NLRB con- charges No. 81-5131. testing the election. The fairness of the have petitioned UAW could then Board States Court of Appeals, United set the election aside and to order new Sixth Circuit. election, bargaining order to enter a facili- respect Dana with to the Wix Argued 1982. April Agri. NLRB v. Chem. Div. ty. See Kaiser Decided June 1982. Go., Kaiser A of 1973). & C Cir. reject majority’s assumption I express of the federal remedies labor laws are inadequate. Furthermore, protect rights, own the UAW could have tried more diligently to meet Dana at the arbitration table. The record shows that the UAW itself cancelled Also, arbitration dates. the record shows willingness proceed arbitration. Nevertheless, the UAW made no showing, and the court finding, below no harm UAW could not have been averted by less drastic means than through prior re- straint. The District Court’s orders thus respects

fail all the heavy pre- to meet sumption against validity. their judg- I Accordingly, would reverse ment of the remand for District Court and

entry dismissing of an the orders order granting temporary the UAW’s motions injunctive relief.