Before KALODNER, HASTIE and ROSENN, Circuit Judges.
This is an appeal from an order, entered after hearing, that stated merely that a preceding temporary restraining order "shall now constitute a preliminary injunction without change until further order of this Court."
The underlying cause of controversy was the failure of three assistant foremen at a large underground coal mine to carry out certain prescribed mine safety procedures on a particular occasion and the consequent refusal of the miners to work so long as those supervisors should be employed. The miners also rejected a proposal to submit the matter to binding arbitration.
In its complaint the mine owner, Gateway Coal Co., invoked the jurisdiction of the district court under section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, and asked the court to order binding arbitration of the controversy and also to restrain the union from striking to enforce its demands for the removal of the foremen. In its temporary restraining order, later converted into a preliminary injunction, the court ordered that the dispute be submitted to an impartial umpire for binding decision, that the controversial mine foremen be suspended pending the umpire's decision and that the employees not strike to enforce their demands for the removal of these supervisors.
During the pendency of this appeal the impartial umpire rendered his decision in which he determined that the assistant foremen should be permitted to return to work. Accordingly, two of those foremen have resumed their duties as supervisory employees responsible for mine safety procedures. Thus, in its present and continuing effect the injunction from which this appeal has been taken compels miners to accept an arbitrator's decision that their safety is not significantly jeopardized by risks inherent in working under certain foremen whose handling of safety procedures they distrust and prohibits them from refusing to work despite their own apprehension of danger.
In greater detail, the undisputed facts are these. On April 15, 1971, shortly after the daylight shift began work in the mine, it was discovered that the flow of air through a work area was 11,000 cubic feet per minute as contrasted with a normal 28,000 cubic feet. This increased the danger of the accumulation of dust and flammable gas and the risk of consequent explosion. Subsequent investigation disclosed a partial blockage of an intake airway. This was corrected promptly and normal air flow was restored.
On April 16 and 17, pursuant to a request by the union, federal and state inspectors visited the mine and investigated the circumstances of the April 15 incident and the adequacy of the consequent repair work. In the course of this investigation it was discovered that three assistant mine foremen, whose duty it was to check and record air flow before the daylight shift began work, had made false entries in their log books that failed to disclose the true air flow at the time in question.
On Sunday, April 18, some 200 Gateway employees attended a special union meeting and unanimously voted not to work under the assistant foremen in question. The next day the foremen were suspended by management. Criminal proceedings also were instituted against them for falsifying mine records.
Late in May, the Pennsylvania Department of Mines notified Gateway that it did not object to the reinstatement of the suspended foremen, though criminal proceedings against them were still pending. On June 1, Gateway reinstated two of the foremen. The third had elected to retire.
When the foremen returned to work on June 1, the union employees left the job. This work stoppage continued while Gateway offered to arbitrate the dispute. The union refused to arbitrate. Gateway then filed the present suit and obtained the now challenged order that terminated the work stoppage and compelled arbitration of the dispute.
Subsequently the arbitrator found that the dispute was arbitrable, that the contention of the miners that the retention of the foremen with safety responsibilities would be dangerous was without merit and that the foremen should be allowed to perform their assigned tasks without interference.
There is no finding, indeed no basis for a finding in this record, that the miners did not honestly believe that their lives were unduly endangered so long as the foremen in question were responsible for safety procedures. The foremen had been guilty of significant dereliction. Indeed, they pleaded nol contendere to a charge of criminal violation of safety requirements and were fined $200 each. And there had been a few earlier complaints concerning their handling of matters involving safety.
The employer reasons that the present dispute was arbitrable under the terms of the collective bargaining agreement of the parties and, therefore, that a strike that repudiates the agreed settlement procedure and attempts to compel acceptance of the union's demands is an enjoinable violation of the labor contract, even in the absence of a no-strike agreement, as held by the Supreme Court in Teamster Local 174 v. Lucas Flour Co., 1962, 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593.
The applicable National Bituminous Coal Wage Agreement of 1968 contains a section on "Settlement of Local and District Disputes." That section provides that "should any local trouble of any kind arise at the mine" an attempt shall be made to settle it by local negotiation and if necessary, by a board composed of two representatives of the union and two representatives of management. Should these procedures fail, the dispute is to be referred ...