ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civ. No. 77-0303)
Before Seitz, Chief Judge, Rosenn, Circuit Judge, and Shapiro, District Judge.*fn*
General Teamster Local 326 (the Union) appeals from a final judgment entered in favor of Delaware Coca-Cola Bottling Co. (the Employer) awarding damages under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), for a strike at the Employer's Wilmington, Delaware, plant.
The Employer is engaged in the business of producing and selling soft drinks. In November of 1975, the Union was certified as the collective bargaining representative for the production and maintenance employees and the drivers at the Employer's Wilmington plant. Following certification, the Union and the Employer commenced negotiating a contract.
In the spring of 1976, the Union and the Employer reached an agreement as to the production and maintenance employees and signed a collective bargaining agreement that went into effect on June 1, 1976, and that was to remain in effect until 1979. Articles 14 and 15 of the contract established grievance and arbitration procedures. Section 1 of Article 14 defined a grievance as "a dispute or complaint arising between the parties hereto under or out of this Agreement, or the interpretation, application, performance, termination, or any alleged breach thereof." Any such grievance would be processed through a three-step procedure, which, if no resolution was reached, would lead to arbitration under Article 15.
Article 16, which is the subject of the dispute here, is a no-strike clause. It provides:
Section 1. The Union will not cause nor will any member of the bargaining unit take part in any strike, sit-down, stay-in, slow down in any operation of the Company or any curtailment of work or restriction of service or interference with the operation of the Company or any picketing or patrolling during the term of this Agreement.
Section 2. The Company shall have the right to discipline up to and including discharge of any employee who instigates or gives leadership to, or participates in any strike or work slow-down or curtailment of work during the term of this Agreement. Any disciplinary action meted out or imposed by the Company hereunder shall be subject to the grievance procedure of this Agreement, including arbitration.
Section 3. The provisions of this Article, other than as mentioned above, shall not be subject to grievance or arbitration, for the purpose of assessing damages or securing specific performance, or any other matter, such matters of law being determinable and enforceable in the courts.
After the signing of the contract, negotiations over the drivers continued for approximately one month. These negotiations stopped on July 9, 1976, because the Employer had decided to engage Countrywide Personnel to supply it with drivers. The Employer transferred all its drivers to Countrywide, and the Union negotiated a collective bargaining agreement with Countrywide.
On March 22, 1977, the Employer terminated its relationship with Countrywide, and the drivers once again became employees of the Employer. The next day, the president of the local called a one-day strike of both the production and maintenance employees and the drivers. The Employer and the Union then once again began negotiations concerning a collective bargaining agreement for the drivers.
On July 19, 1977, no agreement having been reached, the drivers set up a picket line at the plant. Although the production and maintenance employees reported for work that morning, they refused to cross the picket line. This occurred each day for nine days until on the afternoon of the 27th the Union ordered the production and maintenance employees to return to work. The drivers continued to picket until August 12, when they returned to work.
The Employer filed this suit in district court under § 301 of the National Labor Relations Act claiming that the nine-day work stoppage by the production and maintenance employees violated the no-strike clause in the 1976 collective bargaining agreement. After a non-jury trial, the court concluded that the work stoppage was a sympathy strike and that the no-strike clause waived the production and maintenance employees' right to sympathy strike. The court awarded damages of $67,922.85 plus interest, and this appeal followed.
We start with the proposition that the right of employees to engage in sympathy strikes is protected under the National Labor Relations Act. Yet this right can be waived in a collective bargaining agreement. See NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S. Ct. 519, 97 L. Ed. 832 (1953). In addition, the Union here has not challenged the district court's finding that the Union authorized the sympathy strike. Cf. Carbon Fuel Co. v. UMW, 444 U.S. 212, 100 S. Ct. 410, 62 L. Ed. 2d 394 (1979) (union not liable for wildcat strike). Thus the question presented is whether by virtue of the terms of the 1976 contract the production and maintenance employees waived their right to refuse to cross the drivers' picket line.
The extent of the waiver in a collective bargaining agreement of the right to strike " "turns upon the proper interpretation of the particular contract . . . (which) must be read as a whole and in light of the law relating to it when made.' " Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 395 (3d Cir. 1974), quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279, 76 S. Ct. 349, 356, 100 L. Ed. 309 (1956). Moreover, we have held "that a waiver of a statutory right must be clearly and unmistakably established, and that express language will not be read expansively." United Steelworkers v. NLRB, 536 F.2d 550, 555 (3d Cir. 1976) (waiver of certain grievance procedures). Accord, e.g., Gary Hobart Water Co. v. NLRB, 511 F.2d 284, 287 (7th Cir.) (sympathy strike), cert. denied, 423 U.S. 925, 96 S. Ct. 269, 46 L. Ed. 2d 252 (1975).
These waiver principles are complicated in the context of a sympathy strike because the union's no-strike obligation may be created in one of two ways: by implication from the arbitration clause or by an express clause in the contract. See Gateway Coal Co. v. UMW, 414 U.S. 368, 94 S. Ct. 629, 38 L. Ed. 2d 583 (1974). In United States Steel Corp. v. UMW (U.S. Steel II ), 548 F.2d 67 (3d Cir. 1976), cert. denied, 431 U.S. 968, 97 S. Ct. 2926, 53 L. Ed. 2d 1063 (1977), U.S. Steel's employees refused to cross a picket line at another employer's plant. We held that the sympathy strike did not violate the implied no-strike obligation arising out of the arbitration clause in the collective bargaining agreement.
In U.S. Steel II we reserved the question of whether an express no-strike clause like we have here would waive the right to engage in a sympathy strike. Given that waiver turns on the facts of each case, implied and express no-strike obligations present different factual and analytical problems. Where the no-strike obligation is express in the contract, there are a number of facts relevant to whether the union intended to waive the right to engage in a sympathy strike that simply are not present in cases involving an implied no-strike obligation. For example, with an express clause, the court can determine its meaning by looking to the language of the clause, the structure of the contract, the bargaining history, and any other relevant conduct of the parties that shows their understanding of the contract. While we do not mean to suggest that this is an exclusive list, we feel that the factual nature of the waiver inquiry requires an examination of those factors in any case involving an express no-strike clause where there is no explicit reference in the contract to sympathy strikes.
Initially, we must consider whether the language of the no-strike clause itself waives the right to sympathy strike. The contract here contains a broad, general no-strike clause. As the district court correctly noted, there is no picket line clause,*fn1 nor does the contract expressly refer to sympathy strikes. Although the language is broad in the sense that it refers to "any strike," as in so many areas of labor law, seemingly express language may not be read out of the context of other legal principles. Several courts have concluded that a broad, general no-strike clause in and of itself is not a clear and unmistakable waiver of the right to sympathy strike. E. g., NLRB v. C. K. Smith & Co., 569 F.2d 162 (1st Cir. 1977), cert. denied, 436 U.S. 957, 98 S. Ct. 3070, 57 L. Ed. 2d 1122 (1978). We agree with that result for two reasons.
First, the rationale underlying U.S. Steel II, supra, leads us to the conclusion that general language, by itself, is not explicit enough to waive the right to sympathy strike. In that case, we relied on the notion of coterminous interpretation, an idea that grew up largely in the area of implied no-strike obligations. Coterminous interpretation means that if the subject matter of the strike is arbitrable, then the strike violates the no-strike clause. The theory underlying this is that the no-strike clause is a quid pro quo for the arbitration clause. See generally Gateway Coal Co., supra. In short, the obligation to not strike is read to be an obligation to not strike over arbitrable issues.
Applying these principles to the sympathy strike and the implied no-strike obligation in U.S. Steel II, we noted that with a sympathy strike, the subject matter of the strike is a dispute between the primary strikers and their employer and thus is not subject to arbitration between the sympathy strikers and their employer. In short, the strike is not "over any dispute" between the employer and the sympathy strikers. See U.S. Steel II, 548 F.2d at 73. Accordingly, we concluded in that case that because the subject matter of the strike was not arbitrable between the employer and the sympathy strikers, the sympathy strike did not violate the implied no-strike obligation.
We find this reasoning applicable where there is an express no-strike clause in the contract. The quid pro quo rationale underlying coterminous interpretation also applies where the union actually gives up its right to strike instead of having it implied from the arbitration clause. When faced with an express no-strike clause, the Supreme Court has applied the principles already discussed. For example, in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S. Ct. 3141, 49 L. Ed. 2d 1022 (1976), the Court was confronted with the question of whether a sympathy strike may be enjoined pending arbitration of the question of whether the strike violated the express no-strike clause in the contract. The Court first held that the applicability of the no-strike clause to the sympathy strike was arbitrable.*fn2
Turning to the availability of injunctive relief, the Court carefully distinguished the arbitrability of the subject matter of the strike from the arbitrability of the applicability of the no-strike clause to the sympathy strike:
The District Court found, and it is not now disputed, that the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract. The strike at issue was a sympathy strike in support of sister unions negotiating with the employer; neither its causes nor the issue ...