Napa Pittsburgh, Inc. v. Automotive Chauffeurs, Parts and Garage Employees, Local Union No. 926, Etal.

WEIS, Cirсuit Before HUNTER Judge. BECKER, Judges, District 12, 1974 in banc June Submitted Judge, promote endeavors, SEITZ, 110 VAN Local and Chief Before facility ALDISERT, ADAMS, a strike at the Altoona DUSEN, GIB- called began HUNTER, picketing ROSENN, and there. For reasons BONS, and WEIS record, they Judges. appear that do not GARTH, Circuit picketing decided extend Pittsburgh building THE OF COURT OPINION NAPA on Hamilton Avenue. Judge. WEIS, Circuit occurred, appellant, this When Local appeal from an en- order This is 926, informed its Hamilton Avenue appellant joining Automotive Chauf- members could refuse to cross Garage feurs, Lo- Employees, Parts picket Local 110’s line. The union based 926) (Local re- cal fusing No. Union 926 position this on Article XIII of its picket cross a line maintained bargaining agreement ap- collective with Brotherhood the International pellee, provides: which Teamsters, Chauffeurs, Warehousemen “It shall not be a violation (Lo- Helpers America, Local 110 Agreement in ... the event an presented 110). question cal employee upon any refuses to enter whether the district court erred in issu- property primary involved a against preliminary injunction a Lo- go through or refuses to or ordering cal 926 any picket primary work behind lines parties the differences between Employer’s at the [NAPA provision accordance with the col- Pittsburgh’s] place places of busi- bargaining agreement. lective con-We ness.” clude court action the trial stand, stop- As a result of this a work proper and we affirm.1 was page occurred at the Hamilton Avenue Plaintiff-appellee, Pittsburgh, NAPA facility. Inc., corporation is a with its executive Pittsburgh’s response NAPA was to principal place offices and of business injunctive seek relief from the district Pittsburgh, Hamilton Avenue argued company ques- court. The Pennsylvania. a Appellant, 926, Local picket tion existed as to whether the represents line approximately 54 of 110 em- “pri- that Local 926 chose to ployees honor was faсility at Hamilton Avenue mary” meaning within the Article purposes. collective A XIII, and contended that this issue was occurred at this location subject mandatory to’the arbitration and as a ion, result efforts of a second unr provisions no strike contained in 110, represent Local the em- bargaining agreement. collective ployees Altoona, aof located in alleged bring circumstances thus were Pennsylvania, doing business under excep- the case within the Altoona, name of NAPA Inc.2 order Pittsburgh NAPA appeal and NAPA filed, ap- Altoona. 1. After was appellee pellee concedes that NAPA a submitted motion to dismiss Pittsburgh “potential suggested liad of NAPA control” the issue had become moot (Brief 3) Appellee pick- and at longer Altoona at maintaining Local was 110 hearing Ap- court held before district et line. This claim is without merit. September 7, appellee’s attorney pellee posted $5,000 indemnify indi- ap- bond to companies pellant attorneys’ injury cated his belief that two fees and interlocking directorships and, in most cas- suffered in the event it would be determined es, 43a). (Appendix grant- improvidently common officers was Appellant appellant’s right ed. asserts two fact Since to indemnifica- single company depends upon headquarters merits, at Hamil- a decision on the Pittsburgh. Jafco, ton Avenue in case is not moot. Liner v. Clarification 301, relationship important U.S. would be to de- S.Ct. 11 L.Ed.2d picket (1964). question termine of whether primary secondary. line was 2. The district court ex- never determined relationship plaintiff-appellee act between America, al., provisions anti-injunction et tion to the 38 L.Ed.2d 583 Act.3 Norris-LaGuardia Boys Markets, Inc. v. Retail hearing, court the district After 770, supra, Union, Clerks holds employees’ honor found that essence that where a matter has been Avenue the Hamilton line at a plant by the terms of a con made arbitrable the col tеrms of limited compa tract between the union and the agreement and that lective may ny, injunction an issued to en be provided the com the arbitration clause settling this method of controvers force resolving a pulsory method of parties. ies In determin between privilege. exercise of over the ing whether a under matter Markets, Union, Lo Retail Clerks Inc. v. any contract, re doubt should be 1583, 235, 770, L. 26 cal 90 S.Ct. 398 U.S. solved in favor of arbitration. United (1970) applica be was held to Ed.2d 199 Naviga v. Warrior & Gulf Steelworkers preliminary was is ble, a and supra. tion, ordering that the work be sued Here, parties agreed begin to arbitrate parties and the ended any grievances, . “. . and all com- differences. of their arising plaints disputes between the we start In cases of this nature employer and the union .” The . . . premise that the fa the basic law bargaining agreement pro- collective also disputes. That vors arbitration of labor vided that it would not a violation of be clear be no doubt about this is there can employee a contract if an honored pronouncements the Su from the primary picket Obviously then, line. it preme Trilo Steelworkers’ a would be breach of the if gy v. of America Steelworkers employees —United picket line honored a Mfg. Co., 564, 80 S. American 363 U.S. primary. which was 1343, (1960); 4 L.Ed.2d United Ct. 1403 provisions are The contractual of America & v. Warrior Steelworkers disagree parties but Navigation Co., 574, clear ‍‌​‌​‌​‌‌​​​​‌‌‌​​​​‌​​​​​​​​‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​‌​‍80 S. Gulf U.S. picket line involved 1347, whether (1960); and 4 L.Ed.2d 1409 Ct. says “primary.” union case was The v. En United Steelworkers America was; company denied it.4 it Corp., terprise 363 U.S. Wheel & Car vigorously Both contend 593, 1358, 4 L.Ed.2d 1424 80 S.Ct. clearly “dispute” and correct. This is a reaffirmation The most recent by the contractual re Gateway hence covered may found quirement of arbitration. Coal v. Mine Workers of Co. United 3. The secondary picketing has to seek bor 185. We does not District 2069, the district ment of the In his memorandum of members ises at structed its members “The spеcifically was a violation of its contract authority Management 40 L.Ed.2d 620 company testimony primary Council, deprive agree judge refused law. to secure an provided Hamilton Avenue because here concedes that wrote: picket Relations showed that Local 926 See Arnold v. (U.S.1974). but contends under this is a correct state- enter it would not line September 11, Act, § and the it would not 301 of the if the NLRB Carpenters 94 S.Ct. U.S.C. contract against prem- be a right La- § that he was ties whether was clear court, See concerns et line.” cause During premises “The picket primary. ^[*] revolves an counsel for 770, supra record in the district line.” alleged dispute L.Ed.2d 199. there was employee Markets v. where there was (Appendix discharge ^[*] contending (Appendix around disagreement (Appendix hearing honoring at to refuse ^[*] at 237-38, 254, union Retail primary 49a) before at of ‍‌​‌​‌​‌‌​​​​‌‌‌​​​​‌​​​​​​​​‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​‌​‍another at disciplinary 42a-45a) pivotal between the 51a) ^[*] also Clerks primary piсk- to enter court instant the district picket made clear picket 90 S.Ct. issue of union’s Union, makes action line. par- line question pending “pri- resolution and that a If be determined it should enjoined properly was the Local 926 mary” picket was line causing Requiring ar- unquestionably plant, a work cessation. then plaintiff’s nullify the does not union’s bitration cross. If could refuse to Local 926 right primary line, honor but “secondary,” then right suspends the exercise of the that the union honor insist agreement. until its existence established no strike delay decision. Undue arbitrator’s holdings of The union relies permitted not be since the dis- Amalgamated Corp. Meat Amstar authority ample has trict court Workmen, 468 F.2d Butcher Cutters & equitable powers exercise of to see 1972); (5th Cir. General Cable 1372 Corp. proceeds promptly that arbitration Brotherhood v. International expeditiously. (D. F.Supp. Workers, 331 Electrical order the district court will be C.Md.1971); Simplex Ca Wire affirmed. of Co. Local 2208 the International ble v. Workers, 314 of Electrical Brotherhood F.Supp. (D.C.N.H.1970), these but HUNTER, Judge, III, Circuit JAMES distinguishable. opinions clearly SEITZ, joins Judge, Chief with whom none of cited there cases was a con (dissenting): provision restricting tractual the union’s majority begins of its discussion picket to honor other lines of by referring of the merits the case organizations. Indeed, the district court premise that “the basic the law favors Simplex case, specifically supra, in the disputes.” of labor It then of noted the omission reference goes key emphasize point: on to one subject in the contract between dispute Company between parties in that case. Local Local and 926—over whether 110’s By way contrast, Ap- the Court of primary secondary picket line is peals Monongahela Power Co. thus whether Local 926’s work IBEW, (4th 1973), 484 F.2d 1209 Cir. legal dispute. is Our —is held that an could be issued response agreement. is wholehearted to enforce a no strike in a clause con- The law favor in this does though tract applicable provision even it had no dispute area, and the over the nature honoring picket line picket Local is line arbitrable. another case, union. In a later Pilot Moreover, we note that the district court Freight Teamsters, Carriers v. 497 F.2d found the issue to be arbitrable and that (4th 1974), Cir. the same court sus- appellant dispute Union does not injunction against tained an a union finding.1 honoring picket line where the con- great point We feel that this last is of language tract contained similar to the significance position tak- view the one judice, sub and held that the matter majority. everyone, en Since was arbitrable. cluding agrees appellant union, We hold that arbitrable, majority’s determination of this issue is whether the Company-Local line should be conclusion dispute classi primary secondary fied undoubtedly as arbitrable, arbi while trable under the correct, terms of the contract does not address to the is- itself appellant argue great length any way, obviously does at was not arbitrable “underlying” dispute Company-Local is not arbitra under terms However, ble. agreement. as it bargaining makes clear even in the collective initial argument, regard Company-Local statement of its first With 926 dis- dispute “underlying pute legality refers to as the as 926 work to the dispute” fight Company is the stoppage, appellant’s between the takes issue brief never (Brief appellant 7). and Local finding at of arbitrabil- with the district court’s Since this ity. did not concern Local 926 employer's store. certain tasks therefore by appellant and sue raised Union, that the its presented This was a question resolve cannot agreement, collective appeal. through presenta- agreed to resolve begin a formula- must we arguments to a neutral tion reasoned upon to are called we of the issue through the use arbitrator, rather than opinion issue can our resolve. e., by force, i. means of a of economic given following way: be framed the union in that strike. legality the issue the fact that pledge ignored both its no strike arbi- of the Local 926 the issue to arbitrate able trable, court be the district purpose forc- struck for the avowed en- in this to involve itself to the arbitra- a favorable resolution an arbi- joining until dispute. Thus, union’s actions ble legality ? trator can decide not intend to it clear that did made ques possible of this resolution One Company con- return to until the the federal tion is to conclude involved had to be ceded that tasks always and issue intervene courts performed by men. union against whenever the a strike might Clearly, an arbitrable had the effect of resolution of undermining implicit conclusion of law that favors end it.2 This is rule disputes, majority. feel this deci the arbitration of labor Since attempt supported a rea to a un- either the strike was an forcе sion is not legal victory balancing policies very ion the issue that was soned through presen- precedent, made we dissent. arbitrable stake or arguments tation reasoned to a neu- arbitrator, through tral but rather I. POLICY CONSIDERATIONS use of sheer If the tac- economic.force. get beyond majority’s successful, Once we tic had been would have it arbitrability pri- making dispute, of the discussion settled the arbitrable issue, mary-secondary superfluous thereby decision rests de- its arbitration primarily upon Supreme feating jurisdiction. de- Court’s arbitrator’s Boys disagree- Thus, represented plain Markets.2 the strike at- cision Our holding tempt down to ment with their comes the union to undermine and disagreement scope rule over the of the avoid its to arbitrate the is- legal policy in that case. first enunciated sue and the explanation disputes of the we will defer our favors the of labor Boys clearly having re- Markets until we have cut in favor of the dis- policy impact viewеd the Mar- trict court issue an to end the policy stoppage. kets it and contrasted work impact majority’s of the decision However, the Court could not decide We because we believe do this case. simple the case with a citation to this understanding key scope though policy effect, for the issuance of (and of the Markets rule its lack injunction ordering an end to the applicability here) lies in an under- plainly promoted arbitration, standing impact upon of its intended just pláinly as interfered with the clear legal competing policies. Congress directive of contained Act, involved a be- Norris-LaGuardia U.S.C. § (1970). tween an and union over the That section in essence right strips employees perform power of union federal en- courts Here, Boys Markets, Union, 3. resolution of the arbitrable issue will Inc. v. Retail Clerks stoppage end the work if arbitrator Company’s Obviously, rules in if favor. L.Ed.2d 199 wins, stoppage the union the work will cоn- tinue. juris- arbitrator’s join clear con- Faced with strikes.4 defeat law, diction. policies the Su- two flict between preme create chose without We can state this conclusion anti-injunc- exception “narrow”5 equivocation undisputed because provisions of the Norris-LaGuardia engaged in facts in this case. Local 926 power to court had the Act so that the stoppage its work because undertaking a prevent from' the Union presence of Local 110’s line. plainly that was de- course of conduct stoppage begun, was not nor was signed its ex- and defeat continued, to circumvent disa- because of the union’s plicit agreement greement Company to arbitrate. with the ar- over the issue; is, bitrable engage over its policy consid- instant stoppage. in a work aAs provide the raison d’etre erations Company no concession that could for the decision are total- have on made this issue would have poli- ly simply, absent. Stated while the helped goal to end the walkout. That cy pro- anti-injunction enunciated in the Company only could be attained will visions of the Norris-LaGuardia Act if it resolved its with Local 110 just be frustrated here as it was in and thus caused that union to remove its issued, Markets if picket line. that favors the arbitration la- disputes bor will no be under- true, Since way this is the work injunction requested mined if the here is could pressure have exerted no denied. Company give fight up ar forego bitrable issue and Markets the strike de- since resolution of the signed pressure Company into ca- prior to brought arbitration would have pitulating on the arbitrable issue before nothing in return: position it could to the arbi- would have continued in event. present case, trator. In the no similar placed pres here, situation exists. It is true that sure on forego the'1 Company to Boys dispute in Markets, there is a that arbitration.6 clearly is, dispute is arbitrable —that the picket over the nature of the Local 110 This policy fact makes the considera- legality line and hence the operative of the Local tions crucially here different stoppage. However, 926 work case, in this from present those that were in Boys Markets, unlike the union’s case, In Markets. that the en- stoppage designed work is joined not a strike specifically that was force un- settlement this arbitrable issue dertaken in order to of force a before resolution arbitration place; can take it is an not to the arbitrable and therefore pickets 4. “No court of the removed, United States shall have were and also until jurisdiction any restraining Company recognised to issue order or their to honor temporary permanent any injunction picket or in that bargain- line under the collective involving growing any case agreement, or out of labor then ‍‌​‌​‌​‌‌​​​​‌‌‌​​​​‌​​​​​​​​‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​‌​‍the situation would be prohibit person any persons facts, or fairly different. Under these it could participating or interested in such trying prevail be said that the union was (as defined) these terms are herein by from the merits of the arbitrable issue em- doing, singly concert, any ploying whether economic force rather than em- following ploying arguments acts: reasoned before neutral “(a) Ceasing refusing perform any arbitrator, stoppage and the work would any work or to remain in relation of em- then be an effort to resolve the merits of ” ployment ; . way . . . § U.S.C. 104. in a rendered arbi- jurisdiction trator’s ineffective. At 5. 398 at L.Ed.2d point, we would in the true Markets 199. and, holding case, situation under the of that walking recogni- injunction If Local after an out the issuance of would be sus- line, However, text, Local 110 had said tainable. as we note in the the men would not return until the facts of the case are otherwise.

3 27 pre- stoppage here, the work arbitration; to end vailing circumvent However, if we on the merits. pressure on stoppage no exerted allow to affirm the district court enjoin Company is- to resolve the pending result, stoppage arbi- the work As a of arbitration.7 sue short tration, employees will future cases de- the strike while in nothing everything to lose pursuing have gain employer arbi- terred tration, Thus, will be necessary making from arbitration. to en- thus giving every to avoid and incentive promote the them join order by every means at favoring arbitration, obstruct arbitration similar disposal. their since exists situation here. pressure the not does the work occur be- This unfortunate effect will arbitration, forego the issu- Company to peculiarly role limited cause injunction will ance of a plays as this. such the court nothing promote the arbitration do The district courts cannot look disputes cannot issuance labor disputes these since that merits of province is supported by considerations they All can arbitrator. Boys Markets. (cid:127)that underlie do is review circumstаnces if an case to see arbitrable issue exists might object that while one injunction require- an if the and issue make it above we discuss the factors met. As a ments of Markets are an the issuance of clear that majority’s interpretation promote not in this case will Boys Markets a situ- creates promoted way that it was in the same employer ation can end where Markets, going simply promote might majority’s still decision alleging district court and that under goal by do other means. We the terms of the collective suggestion withstand think that analysis. il- itself is fact, opinion, in our legal.8 majority’s decision overall effect advantage en- actually discourage is initiating joys proceed- sort of disputes. ing, pursuing instead arbitration of permitted in this If no apparent. merits In arbitration case, employers who in the future losing merits; he runs risk placed NAPA situation faced before the district no such risk ex- court Pittsburgh every reason to will have ists since merits are never reached. safely employ- able seek arbitration will be we can assume object discipline might any discharge 7. One to wished to employees this blanket statement arguing stop- engaged the in that work does dis- who the work courage arbitration, page indirectly, by pressuring legality its the issue of would also have Company to settle Local to be arbitrated. with company fact, give did, 110. If the in the true em- situation the pressure, pickets ployer removed, pursue this would not be free to arbitra- would be end, the work and resolution for these reasons since he would have would already primary-secondary conceded on would be- arbitrable issue. totally irrelevant, Thus, thereby defeating pursuit his come continued of arbitration jurisdiction. his arbitrator’s would amount con- renunciation fallacy argument The in the as- cession of the this lies would sumption stoppage. Company- invite a renewal of that resolution Local would make an arbitra- differing primary-secondary arising tor’s decision in the issue Since issues inter- out superfluous. pretations wrong assumption bar- This for of the terms of the collective is gaining agreement First, company, two if correct are arbitrable under most reasons. clauses, merits, allegations will would a cause of these still have ending damages injunction against sufficient to elicit an action for stoppage. and would decision work need arbitrator’s Company pursue Second, order if it. of an by implication) that the issuance are faced future ers who injunction arbi- will make obstruction stoppages to the one similar work point employer’s ease, seek useful from will tration faced the argument However, then rath- of view. in federal court relief their initial delay suggests be con- undue through arbitration. er than through court trolled district Moreover, has district court once the powers.10 equitable use of employer will injunction, the issued its of these do that either not believe We seeks, everything work since the he have scrutiny. arguments can close withstand a re- ended. As stoppage will have been regard first, think it is With longer anything to sult, have he will permit the issu- that the refusal to clear gain other theOn arbitration.9 from injunction situa- of an in factual ance conceivably might hand, arbitration place such as this would tions not very costly him, once the merits in a similar union situation always reached, he will the issue injunc- employer faced when losing on run risk and a defeat some seen, if tion can issue. As we have injunction to the merits would cause given issued, employers are is raising possibility lapse, a renew- every delay reason arbitra- to avoid stoppage. al a ration- of the work However, tion. if no is is- only initiating al arbitration, will not avoid sued, the union does not have the same every hé will use means delay incentive to seek mately for will it ulti- delay long disposal possi- his it as damages is, be liable if it ble. engaged illegal fact, stop- in an We that a think is clear rule page. Thus, delay while obstruction and gives party every one incentive might proceeding per- of the arbitration avoiding the arbitration will inhibit illegal mit the union to continue an functioning procedure. smooth of that period time, for some As a it is our conclusion that gain only significant will come at a majority’s opinion, pro- rather than cost since it would increase the union’s moting disputes, monetary liability to the same extent. actually discourage will tend to it. argument farAs as the second is con- cerned, it is true that the district court might objections We can see two equitable powers can use its to seek to be raised in an to refute this delay. control undue we do would conclusion. first concede feel that is way there reasonable that the issuance of an here that a district court power can use this discourage employers would future prevent significant delay when that seeking submitting arbitration, but goal sought parties. one of the argues opposite result would In this example, employ- encourage equal recalcitrance delay er can days arbitration for part nine true, of the union. If this is simply by using all of the time that obviously negative would eliminate the allotted to it step griev- at each policy impact we have outlined above. procedures ance objection leads second is raised arbitration.11 Moreover, day majority this nine (at least, and it also concedes ample trict authority court has company may the eventually It exer- is true that the equitable powers cise its to see to it need a favorable on if decision the merits proceeds promptly expedi- and damage wants sue to the union the tiously.” during pre-injunction period caused the when progress. However, the strike was still 11. The relevant Article of the collective bar- damages many since these can be collected gaining agreement reads as : follows event, months after the the can de- “Article XI —Grievance Procedure lay possi- arbitration to the maximum extent “Any grievances, complaints and all or jeopardize ble and still not mon- to disputes arising Employer between the and etary relief. any employee represented the by Union or majority opinion puts it, 10. As the “Undue delay permitted should not be dis- the figure promoting that it the time arbitration of labor does not include the dis- by policy putes and that as a result the established will take for the Board paragraph on to deliberate considerations that led to the creation of the “Third” matter, support time not it include the the Markets rule do nor does (under paragraph) of an in this the “Fourth” issuance needed bring arbitrator, to case. to neutral choose a together, to panel and the arbitration IN II. THE HOLDING panel dis- decide the have the hear and MARKETS BOYS steps pute. Obviously, ad- these will use analysis our of the con- While pro- event, any time in and also ditional underlying siderations employer vide a with further determined an in- to the conclusion that leads us stretching opportunities for out the time case, junction in this issue complete needed to arbitration. suggestion, im- must still deal with As a will be able plicit majority’s holding, that the delay proceedings to encompasses rule in that created throughout weeks, at least several and presented here. If the factual situation period, will be true, this is then considerations enjoined. Since strikes like response notwithstanding, the issuance of an disputes specific one are junction permissible. control, over the union has no which majority The characterizes timing they highly dependent upon as follows: success, delay minimum for their and a “[Boys magnitude holds essence many of this render Markets] will matter has been that where a made them ineffective. incentive by by delay of a contract for the ployers, the em- terms of arbitration company, by between the union and the that is created issuance injunction may be issued to enforce of an in this cannot be settling effectively by this method of controversies controlled the district parties.” equitable powers. between court’s literally If these words are meant then Our conclusion therefore is that the majority misapplied has rule Local 926 negative its own did not have a goal presented impact, under the here. Both overall, on the facts by Agreement above, forth or in case other dis- Union and covered putes arising p'ertain- following shall be settled manner : under this contract complaints meaning application, grievances each “FIRST: All or writing (1) by party shall and shall forthwith name one arbi- be filed grieving (2) party hours, and shall within 48 shall trator the two so chosen and up by forty-eight (48) be taken within hours name neu- Steward and the Em- ployer Representative Emрloyer agree of the tral arbitrator. If the two do not hours, in the first instance and en- a neutral shall arbitrator within deavor to arrive Mediation and settlement the Director the U.S. requested within 48 hours. shall be Conciliation Service Failing shop panel (5) suggested agree, “SECOND: neu- name of five report Steward shall tral arbitrators named matter arbitrators. by parties Union and the will select the neutral Union shall submit then writing (3) days panel within three arbitrator from such each elimi- adjust sug- Employer nating the same with two of the arbitrators (3) days. panel gested within three the Director of submitted Upon agree “THIRD: failure Service. the U.S. Mediation Conciliation upon request expense neutral, any, of either if shall the Union or the Employer, equally by parties. the matter shall be shared Each be submitted up party agrees accept within 48 hours to a Board made and abide (2) representatives majority two of the Arbi- selected each award made party purposеs hearing for the and at- Board so tration constituted. tempting adjust the matter. “FIFTH: There shall be no cessation during grievance pendency “FOURTH: the event matter of the work adjusted by proceedings.” cannot the method set stating that, “[o]ur of its decision “primary-second- agree parties that holding present is a narrow and, ex- ary” is arbitrable issue vitality not undermine to one. We do above, tried never plained the union dispute Act.” 398 of the Norris-LaGuardia arbitration circuit short by at 1594. stoppage. a at 90 S.Ct. As work means of in- an issue result, need to no there was opinion, import of this In our of set- junction method “enforce language careful is clear. An parties,” tling between controversies end a can be issued to work never there was only when an arbitrable issue itself only dis- union to resolve “underlying of the cause” strike.13 pute by means. other We reach this conclusion for three rea- majority affirms However, since the First, sons. Markets injunction, we as- thе issuance specified that a strike must be “over” Boys Markets it reads sume dispute an arbitrable if it is to be en- injunc- permit of an rule to the issuance joinable, opinion a our strike can- might ulti- tion whenever not be dispute described as “over” a un- ending mately effect of work have the dispute less that is a cause the work agree stoppage.12 cannot We stoppage. Second, the Markets de- reading expansive of the case. Not is, description cision its own a “nar- consid- does it run counter logically row” one. Therefore it should Boys Markets underlie the erations that key be limited factual circum- language decision, ignores it also stances that were in the case. holding. carefully limits its As a dispute since the arbitrable (over right Markets earlier, As we noted employees perform union in- arose over the of union tasks volved) underlying employees perform was also the at certain tasks cause strike, employer’s logically required this is union store and the called part of Compa- rule. a strike an effort to force the ny capitulate issue, despite on that Finally, greatest significance, agreed fact had to seek reso- we because, reach this conclusion as we through lution of this kind of length discussed at opinion, in Part I arbitration, the use of rather than reading broader means of a strike. .Under these facts would extend it into the Court held that since the strike was areas where the considerations grievance parties “over a which both that dictated simply that decision do not contractually arbitrate,” bound to 398 operate. If the arbitrable is not (emphasis U.S. at a “cause” of the stoppage, work then a added), exception to the broad anti- dispute by on concession ployer the em- injunction provisions of the Norris-La- help will not to end the work appropriate Guardia Act was and an in- stoppage. circumstances, Under these junction addition, could issue. pressure will exert no carefully spelled out the circumstances to resolve the arbitrable under'which such an could is- issue short of arbitration. if this emphasized sue and the limited nature basic relationship cause-effect between Here, arbitration would [Boys have ended the “We read Markets] to indicate prevailed if the encouraged by should be dispute. on the merits permitting judicial if enforcement of a ‘no- prevailed the union had on the merits then underlying strike’ clause when the issue is arbitration would have had arbitrable, no effect but there stoppage. junction underlying if (emphasis added.) arbitrable.” Id. at 374 13. As this Court stated Parade Publica- tions, Philadelphia, Inc. (3d 459 F.2d 369 1972) Cir. :

331 legality not of the Local is as to and the strike and thus issue stoppage discourage work was arbitrable. not 926 present, the strike will However, an “un was never that favors and the this derlying disputes cause” of Local 926 will'not of labor the аrbitration since it after that work of an in- arose the issuance be furthered begun a had never became junction. result, for its continuation. As a basis Applying of the rule to the facts this never deterred the the strike injunc- case, it clear that an is this issue and the existence of this Here, not have issued. tion should provided for the never a basis underlying that was the sole injunction of an under issuance of the Local 926 work cause holding Boys in Markets.14 fight Company between the that that led to the creation of Local 110 we close of the Before our discussion picket issue was line. This union’s Boys Markets, in we must final- Company- plainly not arbitrable under ly Gateway relationship its to discuss agree- collective Local 926 Workers, v. 414 Co. United Mine Coal did not ment since it involve Local 368, 629, 583 94 L.Ed.2d though pro- Thus, it it caused the strike majority While never artic- of a vided no reason the issuance point, that it is ulates believe Boys injunction. Markets feeling an that fluenced unstated Gаteway expanded the hand, Coal has somehow On the other Boys exception Markets picket to the anti-in- line the nature of Local 110 interpretation in contains a clause was not contained 14. We note that our agreements operation scope in in the were Markets decision and our However, injunction this cited characterize cases. a, conclusion tliat Markets support the un- as a additional clause restriction should not issue here in finds direct misleading. right Article ion’s to strike is cases that have been the Fifth decided Company-Local 926 collective XIII bargaining agreement Circuit and several district courts on facts ap- presented restrict does almost identical to those here. enlarges right Instead, pellant’s Corp. Cutters, Amalgamated to strike. Amstar v. Meat exception right creating (5th 1972) ; see, g., an 468 F.2d 1372 e. Cir. agreement’s apparently Corp. no-strike all inclusive General Cable v. Int’l Bhd of Elec. pаragraph language. Workers, ; Ar- F.Supp. (S.Md.1971) the “Fifth” See supra. XI, Simplex intent to “en- note This ticle Wire and v. Cable Co. Local right apparent large” Workers, is F.Supp. union’s strike Int’l Bhd of Elec. language (D.N.II.1970) ; : Monongahela XIII itself from the Article 1tut see Power Agree- he a this Workers, “It shall not violation of Co. Electrical employee (4th 1973). in an ... the event F.2d ment Cir. go through majority distinguish refused . . . seeks any primary picket precedent by stating lines at that, behind Employer’s place none of the “[i]n places provision of business.” cited cases was there a contractual added). (Emphasis restricting right the union’s to honor cited, organizations.” true that In the cases is lines of other How- ever, agreements similar contained clause no we are constrained ‍‌​‌​‌​‌‌​​​​‌‌‌​​​​‌​​​​​​​​‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​‌​‍to note that agreement majority, distinguish XIII. Article these here, cases, cases, each of these like has seized a factual difference apparently way no- supports all inclusive implicit did сontain no conclu- pledge. the un- injunction a each of As strike sion that a properly Markets could precedent apparently cited ions denied in the cited cases and still right all, fact, strike at while be issued here. conclusion sensibly strike retained limited the union basis of drawn on the arguably applicable facts majority under that was the factual difference noted argument in favor of the case. is that if a Markets should issuing to end here, be issued to end the then there stronger stronger than concluding cited cases strike was even reason for injunc- denial and their have it is point fortiori, here. relief is been issued in the cited tive cases. true, majority notes, It as the bargaining agreement collective in this case has the effect provisions Norris-La- which junction undercutting way the arbitration is relevant in a Act Guardia long disputes. result, As a as the here. promotion of the arbitration of labor read- that a careful not We do beliеve disputes remains the rationale support con- opinion can of that Boys justifies the issuance of Mar- Coal, Gateway oc- a strike clusion. “underlying injunctions, kets cause” attempted employer because the curred logically requirement remain an in- will suspended foremen who two to reinstate tegral part of the rule. safety pose a haz- the union felt would their normal to resume ard if allowed nothing Gateway We can find responsibilities.15 re- The suggests pol- Coal decision that icy goal seeking Boys sponded by a Markets changed. has been or will be junction. arbitrability Court’s discussion injunction such an to obtain safety case, dispute involved in the key revolved around three that case re- its discussion of traditional ultimately that were settled issues quirements equity deal with the exis- 1) Supreme the is- whether Court: tence of additional that are factors arbitrable; 2) truly sue in injunction plainly required before an in the whether the arbitration clausе Boys holding in can issue under the gave agreement collective pre- Markets. requisites Its conclusion that these obligation; implied rise to an no-strike support met no in- were 3) in the and whether the circumstances underlying policy ference that ra- equitable the traditional case satisfied Boys tionale of the Markets rule has that must also be met be- considerations changed expanded. been injunction Boys fore Markets can be a opinion The rest of the it- addresses ques- The Court answered each issued. question self to the of whether the un- affirmatively that a and concluded agreement ion’s to arbitrate the Boys Markets issue. agree- explicit must be reinforced thing The first that should be noted is Boys ment not to strike in order for a Gateway undisputed Coal the to issue. The Court clearly facts established that the strike explicit concludes that no-strike was caused the “arbitrable” clause is not needed since the over the work fоremen. status of two dispute implies, to arbitrate a in the “underlying since cause” re- corresponding agreement normal a clearly quirement of Markets was through to seek its resolution satisfied, held that case could not have strike. longer pre- that that element was no requisite Boys Mar- to the issuance of a part It is true that this of the Gate- injunction. kets way opinion expand Coal does permits Markets holding, since it courts nothing Second, we can find enjoin strikes in the absence of ex- Court’s discussion of the issues that plicit agreements. However, no-strike Gateway were raised in Coal that would way this extension of the rule in suggest no point that at some in the future changes rationale of likely “underlying it is to hold that the contrary, only pro- Markets. On the requirement cause” Markets is logical vides longer extension since it al- operative. noted, As we have enjoin lows the district requirement courts to strikes was established in or- agreed upon der availability limit undercut regardless to those cases in of whether those strikes are suspended making These and, foremen had been result, as a had unnecessari- jobs they neglected ly subjected their dangerous because the men condi- safety they responsible make a check were tion. explicitly interfering the terms of when have the effect of also barred agreed bargaining agreement. As we the collective arbitration. noted, have a strike can have this effect Gateway nothing Coal As a when it is caused suggests change any way in the un- supposed arbitrated, that is to be justifies derlying policy rationale that only under those circumstances will the de- Markets rule. It is still pressure capitu- if, only if, signed to end strikes but dispute late on the arbitrable and there- agreed undercutting of have effect forego fore its arbitration. true, arbitration. this is Since “underlying require- Once this cause” “underlying only assume that accepted integral part ment is оf requirement will remain a neces- cause” rule, application sary prerequisite to the issuance of a the facts of this case is mechanical. injunction. Boys Markets Here, underlying cause of the strike (and only dispute was not arbitrable III. CONCLUSION that was arbitrable was not a cause of outset, As we stated at the our disa- stoppage). Thus, the work the work greement majority with the boils down was not an to force meaning ato as to the of capitulate on the arbi- holding opinion, In in Markets. our forego trable arbitration, permits injunc- the issuance enjoining and the district court erred in stoppage only to end tions when an stoppage. underlying is an cause of the strike. ADAMS, Judge (dissenting): Circuit conclusion, part, reach

We be- Judge language thoughtful cause used to state Hunter’s and com- prehensive opinion large in that case. we are reflects to a ex- primarily persuaded by my respect our understand- tent own views with to the ing policy рresented by appeal. of the considerations that un- issues How- ever, although Judge Hunter, derlie that decision. in discuss- ing Boys Markets, the court was faced with a dilemma. On Inc. v. Retail Clerks hand, obliged give 770,1 the one it ef- does advert to the fundamen- policy judgment jurisprudential principle fect to the tal that is em- that courts anti-injunction provisions interpret permit poli- bodied are to cy and to laws of the their deci- Norris-LaGuardia Act refus- infect considerations to injunction. only statutory interstices, to issue an On the oth- sions within er, equally obliged enjoin appear princi- it was the he does not to accord that weight ple reaching strike since its clear effect was to un- the same I would promo- dercut the conclusion that a Markets in- favors junction disputes. appropriate tion of arbitration of labor is not in the cir- special circumstances, Under these cumstances here. ruled that an could issue. Analysis scope of thе important It encompass ap- to note that the Markets decision must goal preciation Court’s widespread was not to end the strike.16 abhorrence Instead, purpose promote its sole was to of the labor that existed at the arbitration of the labor the time of the enactment of the Nor- by eliminating impedi- volved Many a serious ris-LaGuardia Act.2 injunction viewed the goal. ment to that principle its rule sensi- weapon as the

bly permits enjoining antagonistic emerging strikes those Indeed, reluctantly did this most in view 1. 398 26 L.Ed.2d 199 anti-injunctions provisions Xorris-LaGuardia Act. generally Green, 2. See Frankfurter & Injunction (1930). Labor Refining felt, Atkinson,6 courts, it was em- Sinclair Co. v. held movement. Some precluded ployed their to effectuate the Act issuance predilections predilections, injunction. own signifi- did not attach substantial eight years later, But Mar- working cance to interests kets, Supreme Court reconsidered response sentiments, to these man. Sinclair. This reсonsideration was Congress enacted the Norris-LaGuardia prompted part by the ‍‌​‌​‌​‌‌​​​​‌‌‌​​​​‌​​​​​​​​‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​‌​‍“anomalous” deprived expressly Act Act. The employers situation created when some jurisdiction to issue la- federal courts seeking injunctive courts, relief state injunctions in all bor almost circum- subject which were not to limitations stances.3 Act,7 like those of the Norris-LaGuardia however, Subsequent developments, attempts by were their frustrated temper posture seemed to somewhat unions’ removal of the to federal cases judicial imposed by of abstention proceeded courts. federal to Such courts 1947, In Norris-LaGuardia Act. gress Con- injunctions vacate the court state 301(a) enacted Section of the La- basis of the Act. The overruled Court bor-Management which, Relations Act Judge and, notes, Sinclair Hunter terms, permits for suits violations exception made a “narrow” to the Nor- agreements of collective to doing, ris-LaGuardia Act. In so brought in federal courts. In Textile Court “accommodated” the Act Mills,4 Workers v. Lincoln Union Su- favoring federal preme Court, reversing the district permitting carefully an in the compel court’s refusal to when circumscribed situation that exists pursuant arbitrate to the collective bar- a work is over an arbitrable gaining agreement, held that Section grievance. Court, nevertheless, em- 301(a) calls the federal courts to phasized opinion in that with its fashion a federal substantive labor law. Markets “not it did undermine vital- 8 ity Lincoln Mills and the Steelworkers of the Norris-LaGuardia Act.” Trilogy,5 years *whichfollowed three lat light backdrop, this historical of er, apparent made corner necessary appearing approach cases judge-made stone of this labor law was parameters to hover Boys near the policy favoring operation to be a exception to the Norris- process resolving the arbitral managеment disputes. labor- understanding LaGuardia Act Inevitably the may represent Markets itself Supreme Court was faced with the re judiciary’s foray most ambitious quest employer, relying of an on this seemingly pre-empted by into an area policy favoring arbitration, federal enjoin signal a clear statute. Absent griev a strike over an arbitrable Supreme Court, doubts be re- union, course, interposed ance. The applicability solved in favor express prohibition against such an When Norris-LaGuardia Act. injunction contained in the Norris-La Judge perspective, 1962, viewed from this Court, Guardia Act. 195, 1328, UMW, 6. 258, 3. 82 L.Ed.2d 370 S.Ct. 8 440 United v. 330 U.S. States U.S. Cf. (1962). 677, (1947). 67 91 S.Ct. L.Ed. 884 Boys Markets, 448, 912, 7. 4. At “about one- the time 353 1 U.S. 77 S.Ct. L.Ed.2d 972 (1957). half so-called enacted [had] the States . . .” ‘little Acts’ . Norris-LaGuardia Mfg. Co., 5. United Steelworkers v. American jurisdictions However, 14 “in about 564, 1343, 363 U.S. 80 4 S.Ct. L.Ed.2d 1403 significant Norris-LaGuardia- [was] there a (1960) ; United v. & Steelworkers Warrior against type prohibition equitable remedies Co., 1347, 574, Gulf Nav. 363 80 4 U.S. S.Ct. obligations.” 398 U.S. breach of no-strike (1960) ; L.Ed.2d 1409 Steelworkers United 15, ^1591. 90 S.Ct. at 247-248 n. Enterprise Corp., v. Wheel & Car 363 U.S. 593, 253, 1358, (1960). 8. 90 1424 398 U.S. at S.Ct. at 1594. S.Ct. 4 L.Ed.2d

3 35 prior eight is, my judgment, preme Court, years analysis Hunter’s Markets, implied coex- persuasive. clause particularly a no-strike provision. tensive with the arbitration suggested Gateway may It light Therefore, the well-estab- Mine con- Workers Coal Co. United impli- precedent, lished Lucas Flour Supreme by the a direction stitutes of a clause con- cation no-strike less courts exercise federal text of a suit secure language circumspection than surpris- particularly was not to indicate Markets would seem ing, and, therefore, be said to cannot injunctions issuing in circumstances signal amount to relax the rather basis such a those here. The such as preconditions placed on the issu- strict argument go, suggestion, seems so ance a labor willingness imply a no- is the Court’s speci- Markets decision and set out with obligation when the collective bar- ficity Brennan.11 Justice gaining agreement did contain Accordingly, express provision. for the so well reasons no-strike expressed by Judge plus Flour Hunter those Local 174 v. Lucas Teamsters damage action, above, respectfully Company,10 forth dissent. the Su- set I 1583, 253-255, 629, 9. 11. 398 26 L.Ed. 38 L.Ed.2d 583 U.S. S.Ct. S.Ct. 2d 199. 369 U.S. 7 L.Ed.2d

Case Details

Case Name: Napa Pittsburgh, Inc. v. Automotive Chauffeurs, Parts and Garage Employees, Local Union No. 926, Etal.

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 8, 1974

Citation: 502 F.2d 321

Docket Number: 73-1798

Court Abbreviation: 3rd Cir.