filed: March 16, 1976; As Amended April 6, 13, 1976.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 75-235) (D.C. Civil Action No. 75-200)
Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges. Rosenn, Circuit Judge. Seitz, Chief Judge, concurring and dissenting.
These are appeals from an order granting a Boys Markets*fn1 preliminary injunction prospectively enforcing an implied no-strike undertaking in the National Bituminous Coal Wage Agreement which became effective December 5, 1974. A single injunction*fn2 was issued as follows:
It is, therefore, ordered, adjudged and decreed:
1. That a Preliminary Injunction is hereby issued enjoining the defendants, United Mine Workers of America, District 5, United Mine Workers of America, and Local 1248, United Mine Workers of America, their officers, representatives, members, and all persons acting in concert with them, or in their behalf, during the pendency of this preliminary injunction and until final determination from
(a) Engaging in a strike or work stoppage at the plaintiff's Maple Creek Mine located in Washington County, Pennsylvania; or
(b) Picketing or in any other manner interfering with operations at the plaintiff's Maple Creek Mine located in Washington County, Pennsylvania, because of any difference concerning the meaning and application of the provisions of the Agreement or any difference about matters not specifically mentioned in the Agreement or because of any local trouble of any kind arising at the mine.
2. It is further ordered that the defendants, their officers, representatives and members are hereby directed to utilize the Settlement of Disputes procedure of the 1974 Bituminous Coal Wage Agreement for the resolution of the following disputes:
(a) The dispute as to whether the plaintiff is required to furnish security guards from dusk to dawn at the employee parking lots at the Maple Creek Mine;
(b) The dispute as to whether the employees at the Maple Creek Preparation Plant have the right to refuse to work with Richard Beranek, a bargaining unit employee, because he worked on December 17 and 18, 1974, during an illegal work stoppage at the Maple Creek Mine; and
(c) The seniority dispute involving the filling of a temporary vacancy at Maple Creek Mine #1 in the job of slate motorman, including arbitration, if necessary.
3. It is further ordered that during the pendency of this preliminary injunction and pending final determination, the defendants, their officers, representatives and members utilize the Settlement of Disputes procedure for the resolution of any further ". . . differences . . between the Mine Workers and the Employer as to the meaning and application of the provisions of said agreement . . ." and ". . . differences . . . about matters specifically mentioned in said agreement . . ." and ". . . any local trouble of any kind arising at the mine . . ." including if necessary, final and binding arbitration.
4. It is further ordered that the defendants' officers, and representatives, pending final determination of this case, take all action which may be necessary to assure compliance with the terms of the 1974 Bituminous Coal Wage Agreement, during pendency of this preliminary injunction.
United States Steel Corp. v. United Mine Workers of America, 393 F. Supp. 936, 941 (W.D. Pa. 1975). The specific references in subparagraphs (a), (b) and (c) of paragraph 2 of the injunction order are to three specific disputes which resulted in work stoppages. Paragraphs 1, 3 and 4 of the injunction, however, go far beyond a prohibition of strikes over those three specific disputes. They amount to a general prohibition against a strike over any dispute falling within the Settlement of Disputes provisions of the 1974 agreement. The defendants, United Mine Workers of America (UMW), District No. 5, United Mine Workers of America (District 5), and Local Union No. 1248, United Mine Workers of America (the Local) urge on appeal (1) that neither the specific disputes which resulted in work stoppages nor the broad range of disputes which would fall within the terms of the injunction are arbitrable under the 1974 agreement, and thus no Boys Markets injunction was proper; (2) that the work stoppages were wildcat strikes of which the Local, District 5 and the UMW disapproved, and for which they should not be subjected to an injunction; (3) that the prospective injunction is both overbroad, going beyond the relief permitted by Boys Markets and § 9 of the Norris-LaGuardia Act, 29 U.S.C. § 109, and so vague as to be inconsistent with Rule 65(d) Fed. R. Civ. P; (4) that the injunction which relegates the union defendants to grievance-arbitration remedies until the further order of the court does not impose a correlative obligation upon the employer; and (5) that the plaintiff has not shown the likelihood of irreparable injury pending final hearing. We conclude that the district court could properly have issued a Boys Markets injunction enforcing the grievance-arbitration provisions of the 1974 agreement, but that the injunction issued in this case must be vacated.
I. Facts and Proceedings in the District Court
At its Maple Creek complex in Washington County, Pennsylvania, the plaintiff United States Steel Corporation operates two large underground mines and a coal preparation plant. For many years the production and maintenance workers employed at Maple Creek have been represented in collective bargaining by the UMW, District 5, and the Local. On December 5, 1974 the National Bituminous Coal Wage Agreement of 1974 became operative. Both prior to that date and thereafter there had been a series of work stoppages*fn3 at Maple Creek which resulted in suits by United States Steel Corporation under § 301 of the Labor-Management Relations Act of 1947,*fn4 for injunctive relief. The three work stoppages which resulted in the order appealed from occurred between February 12, 1975 and February 25, 1975.
The first of these work stoppages commenced early on February 12, 1975 when Thomas Cunningham, Chairman of the Local's grievance committee, spoke to the mine foreman at Maple Creek Mine No. 2 about the theft of an employee's truck from the mine parking lot the previous evening. Cunningham explained that the men were upset about the stolen truck and wanted a permanent security guard posted in the parking lot. The foreman reported that there would be no increased security. At that point the Mine No. 2 midnight shift walked out. At Mine No. 1 Martin Connors, Treasurer of the Local, also asked the foreman for that mine about a permanent security guard in the parking lot. He was told of the company's position. When he informed the men who worked the midnight shift in Mine No. 1 of the company's position they, too, walked out. That same day United States Steel brought suit against the three defendants under § 301. The district court issued a temporary restraining order which was served on the Local on February 13. Meanwhile, on the evening of February 12, the officers of the Local met with the membership and ordered the miners back to work. The members were also advised that both District 5 and the UMW ordered them to return to work. These orders were of no avail. A similar meeting on the night of February 13 was also fruitless.
On February 14 the district court, on the motion of United States Steel, held a hearing in which it adjudged the Local to be in civil contempt of the temporary restraining order and imposed a $10,000 conditional fine which was to be suspended if the order was obeyed by February 14 at 4 p.m., but was to increase by $5000 each day thereafter that the members failed to comply. The officers of the Local called another membership meeting, and this time successfully prevailed upon the men to resume work.
On February 24, the midnight shift employees at the coal preparation plant suddenly refused to work with a fellow UMW member, Richard Beranek, because Beranek had, during a December 1974 work stoppage over an arbitrable grievance, crossed a picket line.*fn5 United States Steel filed a new complaint and the district court issued a second temporary restraining order. At 4 p.m. on February 24, the employees in the coal preparation returned to work.
On February 25, the midnight shift at Maple Creek Mine No. 1 refused to go to work because of a dispute over a job assignment. The stoppage spread to Mine No. 2 and to the coal preparation plant on the daylight shift. The company filed a third § 301 suit. When the Local was served with the order to show cause in the second suit it called a special meeting at which its officers told the men to return to work. They did so on the afternoon shift.
In the three complaints United States Steel sought both injunctive relief and damages. In the prayers for injunctive relief the complaints sought not merely orders prohibiting work stoppages pending arbitration of the specific disputes which led to those stoppages, but an order directing that the three defendants, their officers, representatives and members "utilize the Settlement of Disputes procedures of the 1974 agreement . . . for the resolution of any grievances, differences, or local trouble . . . including, but not limited to [the specific disputes]."
An evidentiary hearing was held on United States Steel's application for a preliminary injunction on February 27 and 28. By stipulation and testimony the foregoing facts were established, as was the likelihood that a protracted interruption of the supply of metallurgical coal from Maple Creek would cause a widespread shutdown of blast furnace operations in western Pennsylvania. The district court found within the prior twelve months there had been seven work stoppages at the Maple Creek complex, including the three in February 1975, over disputes which were subject to resolution under the Settlement of Disputes procedure of the 1974 and the prior 1971 National Bituminous Coal Wage Agreement, and that all seven required resort to the § 301 remedy in the district court. The court found specifically that the February 12, February 24, and February 25 work stoppages were all subject to resolution under the Settlement of Disputes provisions of the 1974 agreement, that those work stoppages breached the agreement, and that unless restrained by the court such breaches would continue. Based on these findings of fact the preliminary injunction quoted above was entered. There was no finding of fact that the officers of the Local, of District 5, or of the UMW encouraged or condoned the work stoppages.*fn6 Nevertheless, the district court made the following conclusion of law:
"The defendants are responsible for the mass action of their members in resorting to self help through work stoppages in violation of the implied no-strike clause of the labor agreement."*fn7
It is clear from the court's discussion elsewhere in its opinion that this conclusion of law refers only to the availability against the defendants of injunctive relief, not to their liability in damages.*fn8
II. Availability of any Boys Markets remedy
On appeal the defendants urge that unlike the 1971 and 1968 agreements with which this and other courts became all too familiar, the 1974 agreement cannot be construed as impliedly*fn9 prohibiting work stoppages such as those which occurred in February 1975. Their answer, which was not served or filed until after the district court's decision on the motion for a preliminary injunction, pleads this contention as a first defense. United States Steel questions whether the issue is properly before us in view of certain stipulations made at the hearing on the preliminary injunction. The defendants stipulated to the truth of the allegations in paragraph 9 and the first sentence of paragraph 10 of the complaints, quoted in the margin.*fn10 This stipulation would seem to establish that the 1974 agreement includes a provision for final and binding arbitration at least as broad as that in the 1971 agreement, which we construed in Island Creek Coal Co. v. United Mine Workers of America, 507 F.2d 650 (3d Cir. 1975), cert. denied, 423 U.S. 877, 96 S. Ct. 150, 46 L. Ed. 2d 110, (1975). The text of the Settlement of Disputes provision was before the district court, however, and is before us. We are dealing with an interlocutory order, and § 301 jurisdiction of the district court in any further proceedings looking to permanent injunctive relief will depend upon whether the agreement in fact provides for arbitration. We do not construe counsel's oral stipulation to the accuracy of the quotation of the contract provisions, in open court in the hearing on the preliminary injunction, as a concession as to the legal effect of the agreement for purposes of the entire case. Thus, despite the stipulation, it is appropriate to address the contention that the 1974 agreement differs significantly from those of 1968 and 1971 with respect to the arbitrability of disputes.
Island Creek Coal Co. v. United Mine Workers of America, supra, held that the grievance-arbitration undertaking in the 1971 national agreement was "unusually broad; broad enough to permit the arbitrator to decide issues which the parties did not specifically resolve in the bargaining process." 507 F.2d at 653. The defendants urge that the scope of the grievance-arbitration undertaking has in the current agreement been significantly narrowed. The key provisions in the 1971 agreement were Article XVII, § (b) and Article XX. The equivalent provisions in the 1974 agreement are Article XVIII, § (c) and Article XXVII. The respective texts are quoted in parallel columns in the margin.*fn11 The significance of the differences escapes us.
The section in the 1974 agreement dealing with grievance procedures omits the parenthetical clause that the parties will not be represented by counsel. Except for this omission the introductory clause of that section is identical with the equivalent 1971 clause. After that introductory clause the 1974 agreement adds the following new language:
"Disputes arising under this agreement shall be resolved as follows:"
Then follows the same five step grievance-arbitration arrangement set forth in the 1971 agreement. The only change from 1971 made in the Integrity of the Contract clause is the express exception of cases involving successorship. The defendants would have us conclude that by inserting the clause "Disputes arising under this agreement shall be resolved as follows," the parties intended to restrict grievance-arbitration to contract issues only, and thereby to exclude from arbitration "matters not specifically mentioned in this Agreement" and "local trouble of any kind". If that had been intended there would have been no point in carrying forward the language of the 1968 and 1971 agreements, which have been so frequently construed by the federal courts,*fn12 most authoritatively by the Supreme Court in Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374-76, 38 L. Ed. 2d 583, 94 S. Ct. 629 (1974). We conclude that the language change relied on made no change of substance in the rights and obligations of the covenanting parties. The introductory clause in Article XXIII, § (c), referring to "differences . . . about matters not specifically mentioned in this Agreement" and to "any local trouble of any kind" still defines the scope of the parties' arbitration undertaking with respect to local disputes. If that clause gives the union and the employee the right to grieve and arbitrate a given local dispute, that remedy must be pursued in preference to a work stoppage.
We have no difficulty agreeing with the district court that the employees could have grieved and arbitrated over the absence of a security guard at the parking lot, over the work assignment at Mine No. 1 on February 25, and over the work assignment of Beranek. These all were at least "local trouble" of some kind. Thus we reject the contention that no Boys Markets preliminary injunction was appropriate.*fn13
III. Injunctive relief against the unions
The UMW, District 5 and the Local all contend that since no finding was made that any of their officers or agents encouraged or condoned the unauthorized work stoppages, no injunction, and a fortiori no prospective injunction should have been entered against them. The district court did find that there was no evidence that either the UMW or District 5 took any action to end the work stoppages of February 24 and February 25, and that the only action taken by the UMW and District 5 to end the February 12 work stoppage was to transmit a telegram to the officers of the Local disavowing it, along with some oral instructions to resume work. The court also found that the officers of the Local ordered the men to return to work following the February 12 work stoppage only after they were adjudged in civil contempt, and even then not until after the expiration of the time fixed by the court within which they and their Local could purge themselves of that contempt by returning to work. The court found, moreover, that the work stoppages were actions of the Local engaged in by the concerted action of the employee-members. None of these findings is claimed to be clearly erroneous. It is the defendants' position that they are insufficient as a matter of law to support the entry of a preliminary injunction against them.
The unions rely in advancing this argument on the proposition that a labor union's liability for damages arising from the acts of its officers or members in breach of a contractual undertaking is measured by "ordinary doctrines of agency."*fn14 It points to repeated statements in the case law that unions cannot be held financially responsible for wildcat strikes. See, e.g., Lewis v. Benedict Coal Corp., 259 F.2d 346, 351-52 (6th Cir. 1958), aff'd by an equally divided Court, 361 U.S. 459, 80 S. Ct. 489, 4 L. Ed. 2d 442 (1960); United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 877 (4th Cir.), cert. denied, 350 U.S. 847, 100 L. Ed. 754, 76 S. Ct. 87 (1955). The degree of union responsibility for the consequences of a strike in breach of an express no-strike agreement has recently received extended consideration in this court. See Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951 (3d Cir. 1975), cert. denied, 424 U.S. 935, 96 S. Ct. 1149, 47 L. Ed. 2d 342 (1976); Penn Packing Co. v. Meat Cutters, Local 195, 497 F.2d 888 (3d Cir. 1974); cf. Meat Cutters, Local 195 v. Cross Brothers Meat Packers, Inc., 518 F.2d 1113 (3d Cir. 1975) (enforcement of arbitrator's award of damages). In Eazor Express Judge Maris held that a no-strike undertaking pending arbitration necessarily implied an obligation on the part of the union parties to use every reasonable means to bring an end to a strike begun by their members without authorization.*fn15 Although the defendant unions in Eazor Express had used the written and spoken word in an ...