APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 72-2223)
Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges
VAN DUSEN, Circuit Judge.
This is an appeal from a March 22, 1974, district court judgment. The court enforced the award of an arbitrator in favor of the defendant-counter-claimant, Cross Brothers Meat Packers, Inc. ("Packers"), and against the plaintiff, Local 195 of the Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO ("Local 195," the "local," or "the union"). Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 372 F. Supp. 1274 (E.D. Pa. 1974).
Local 195 is the elected bargaining representative of two collective bargaining units within the Packers plant, the two units consisting of slaughtering employees and boning employees. There are two other collective bargaining units in Packers, consisting of office and clerical employees and of delivery employees. These units are represented by Teamsters' Locals 161 and 500, respectively. Local 195 also represents a bargaining unit in a second company, Cross Brothers Hotel Supply, Inc. ("Supply"). Packers and Supply are located across the street from one another. While not contesting the issue, Packers has reserved its position on Local 195's position that Packers and Supply are in reality a single employer, contending that this issue has no legal significance. See 372 F. Supp. at 1277; Cross Bros. Meat Packers, Inc. and Amalgamated Meat Cutters, Local 195, Voluntary Labor Arbitration Tribunal, Case No. 14 30 085 71 R, Arbitrator's October 7, 1972, Award and Opinion (Stein, Arbitrator) (App. 140a ff.) at 3 (hereinafter "Arbitrator's Opinion").
The incident underlying this litigation occurred on July 1, 1971, the first day after the Supply unit's collective bargaining agreement had expired.*fn1 On that day the Supply employees struck Supply and 20 to 30 Supply employees also began to picket across the street at the four entrances to Packers' premises. 372 F. Supp. at 1277. Local 195 requested employees of Packers to respect the picket line. Id. The arbitrator described the success of the picket line as follows:
"On July 1, 1971, Packers expected approximately 65 slaughterhouse and 18 boning employees to report for work. None reported, since they refused to cross the Local 195 picket line. The office and clerical employees and the delivery employees, represented by Teamsters' locals 161 and 500 respectively, similarly did not report for work.... Employees of an independent contractor building an addition to Packers' building, as well as those of a garbage removal contractor, also refused to cross the picket line in order to perform their job duties.... Packers' employees who were not part of any represented bargaining unit, including members of management, were either not permitted to enter the building or were induced not to report for work."
Arbitrator's Opinion at 5. The shut-down at Packers did not last long; in the afternoon of July 1, 1971, a Pennsylvania Court of Common Pleas issued a "preliminary restraining order" which prevented Local 195 from picketing at the Packers plant. Cross Bros. Meat Packers, Inc. v. Amalgamated Meat Cutters Local 195, et al., Court of Common Pleas, County of Philadelphia, June Term 1971, No. 4535.
At the time of the work stoppage there were collective bargaining agreements in effect for the two units of Packers employees represented by Local 195. Both agreements contained "no-strike" clauses, in each of which the union guaranteed "for itself and for its individual members" that there would be no interference with production during the term of the agreement.*fn1a Both agreements also created grievance procedures which included compulsory arbitration as the last resort.*fn2
Invoking these grievance procedures, Packers demanded compensation from Local 195 for the damages caused by the work stoppage. Voluntary adjustment of the claims failed, and the matter was submitted to a single arbitrator.*fn3 On October 7, 1972, the arbitrator ordered the union to pay Packers $14,826.43 in damages.*fn4 On November 9, 1972, Local 195 filed a complaint in the United States District Court for the Eastern District of Pennsylvania, requesting the court to vacate the arbitrator's award.*fn5 Packers counterclaimed for enforcement of the arbitration award. In an initial Memorandum Opinion, the district court denied Packers' motion for judgment on the pleadings. Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 362 F. Supp. 127 (E.D. Pa. 1973). In a second opinion, the court granted the defendant's motion for summary judgment. Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 372 F. Supp. 1274 (E.D. Pa. 1974). Local 195 timely appealed from the district court's judgment in favor of Packers.
The first issue raised by Local 195 is whether Packers' claim for damages caused by the picketing was arbitrable.*fn6 Both parties agree that this issue is for the courts to decide. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 11 L. Ed. 2d 898, 84 S. Ct. 909 (1964); Local 616, Int. U. of E., R. & M. Wkrs. v. Byrd Plastics, Inc., 428 F.2d 23, 25 (3d Cir. 1970).
It is helpful to divide the dispute into two parts, damages caused by the refusal of members of the boning and slaughtering units to cross the Supply unit's picket line, and damages caused by the refusal of other persons to cross the picket line.
With respect to the first, we can begin with two generally accepted propositions: the union can bargain away the right of members of a collective bargaining unit it represents to honor lawful picket lines; and, therefore, the question whether that right has been bargained away may be an arbitrable question. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 97 L. Ed. 832, 73 S. Ct. 519 (1953); Island Creek Coal Co. v. United Mine Workers, 507 F.2d 650, 652 (3d Cir. 1975). Both the slaughtering and the boning agreements included grievance-arbitration clauses which were called into play "[should] any difference arise between the parties hereto... as to the interpretation or application of this agreement," and "[if] a grievance arises."*fn7 While these clauses did not specifically refer to disputes over the right of the employees to honor lawful picket lines, they were contained in the same articles that contained sweeping no-strike clauses. It is, therefore, natural to infer that the scope of the no-strike clauses was a proper subject of arbitration, particularly in the light of the strong policy favoring the peaceful resolution of labor disputes through arbitration. See Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); NAPA Pittsburgh, Inc. v. Automotive Chauffeurs Local 926, 502 F.2d 321, 323 (3d Cir.), cert. denied, 419 U.S. 1049, 95 S. Ct. 625, 42 L. Ed. 2d 644, 43 U.S.L.W. 3328 (Dec. 9, 1974). Since this court recently held that the question whether the union had relinquished the right to cross picket lines was arbitrable, even in the absence of any no-strike provision, Island Creek Coal Co. v. United Mine Workers, supra, it would be anomalous to reach a different result in this case, where both collective bargaining agreements contained strong no-strike clauses which were tied directly to the grievance-arbitration mechanism.
The arbitrator's award extended beyond the damages caused by the actions of the slaughtering and boning employees, however. His award also encompassed the damages caused by the refusal of persons not represented by Local 195 to cross the Supply picket lines.*fn8 Apparently, the arbitrator included these damages because he found that the picketing itself - apart from the actions of the slaughtering and boning employees in honoring the picket lines - was proscribed by the collective bargaining agreements covering the slaughtering and boning units.*fn9 Arbitrator's Opinion at 9-11. We therefore must decide whether the Supply employees' right to picket was an arbitrable issue where the collective bargaining agreement covering those employees had expired, but where the local which represented them had agreements which related to different bargaining units, and which contained no-strike and arbitration clauses.*fn10
Our problem is that the two basic propositions with which we began analysis of the arbitrability of the first part of the arbitrator's award (page 6, supra) cannot form the foundation for analysis of the second part. It is one thing to say that a union, in representing one collective bargaining unit, may bargain away that unit's right to honor picket lines, but quite a different thing to say that in representing one unit the union may bargain away the right of a different unit to picket at the first unit's work location. And yet this is exactly the result which the arbitrator reached. He interpreted collective bargaining agreements for the slaughtering and boning employees in such a way as to allow Packers to recover damages caused by the picketing of Supply employees, who were members of an entirely different collective bargaining unit, and whose collective bargaining agreement had expired.
So far as we have been able to determine, we face a question of first impression. Strong arguments have been advanced on both sides. The union bases its contentions on the unassailable proposition that an arbitrator's power derives from an existing collective bargaining agreement. John Wiley & Sons, Inc. v. Livingston, supra, 376 U.S. at 546-47; Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582. Since the picketing related to a dispute between Local 195 and Supply, between whom there was no existing collective bargaining agreement, there was no contractual basis for the arbitrator's power to determine the union's right to picket. Put another way, the union is maintaining that it could not force Supply to arbitrate the economic dispute (negotiation of a new collective bargaining agreement) which gave rise to the picketing; therefore, there is no quid pro quo for the no-strike "agreement" which the arbitrator enforced against the union. See Avco Co. v. Local 787, UAW, 459 F.2d 968, 971-73 (3d Cir. 1972); see also The Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 252-53, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970).*fn11
Packers, on the other hand, points out that in both the slaughterhouse and boning agreements Local 195 guaranteed "for itself," without limiting "itself" to its capacity as representative for the slaughtering and boning units, that it would not engage in any work stoppage.*fn12 The company maintains that it had a right to rely on these clauses and that the local should not be allowed to circumvent them by "changing hats," first agreeing to broad nostrike clauses as the representative for two units, then picketing as the representative ...