Petition — Plain Dealer Publishing Co. v. Cleveland Typographical Union No. 53

Supreme Court of the United States

wie i 4s 1975

No. - (9-56 5 ‘

PLAIN DEALER PUBLISHING CoO.,

Petitioner,

VS.

CLEVELAND TYPOGRAPHICAL UNION NO. 53, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

JAMES P. GARNER

Don H. Pace

E.uiot S. AZOFF

1956 Union Commerce Building

Cleveland, Ohio 44115

Attorneys for Petitioner

BAKER, HOSTETLER & PATTERSON

Of Counsel

THE GATES LEGAL PUBLISHING CO., CLEVELAND, CHIO— TEL. (216) 621-5647

INDEX

UII eniiccneresesesesscenscaserqennsenonesnnniersannctmntenvctsessiateessnisnsenressneenes 1

I OD ae ciccesesicininnsitcccssnssninsiscanieninaninaninseeneasinmmeciinannties 2

PF RR RIEL 5 SE RECS Ree SME Ce AE AOE Ae ES 2

Question Presented ................. ENR rte SAN IOS 5 2

AIT LETC RL NE EET Te RD Ie 3

aceite talameieenniinnianieitiel 3

FR RE eee cree Cae ON 3

a a alislataeliatlidate 4

3. The Proceedings Bebo ...............cccccccescccscccccsscsssssees 6

Reasons for Granting the Writ -...22....2...eeeeeeeeeeeeeeeeeeee es 7

1. The Decision Below Conflicts in Principle With

the Federai Labor Policy Articulated by This

Court in the Steelworkers Trilogy and Boys

Markets v. Retail Clerks Union Accommodating

Section 301 of the LMRA and Section 4 of the

PUI ID i 7

2. The Decision Below Presents an Important Ques-

tion of Statutory and Federal Labor Policy on

Which Court of Appeals Are in Direct Conflict 13

re a a ET 15

Appendix A--—Opinion and Judgment of the United

States Court of Appeals for the Sixth Circuit ........ 17, 19

Appendix B-—Memorandum and Order of the District

Court for the Northern District of Ohio —....000000..... 20, 41

Appendix C—Statutes Involved 2.....2......eeeececceeeeeee es 42

De" ETE SEINE’ siasssietisiiternminancatpanieninacnindbaccsieipeniocnmens 42

2. 29 U.S.C. §185a

II

Appendix D—Collective Bargaining Agreement ............ 44

1. Contract Between The Plain Dealer Publishing

Co. and Typographical Union No. 53 (In Part) 44

2. Contract Between The Plain Dealer Publishing

Co. and Mailers Union No. 12 (In Part) ............ 46

3. Contract Between The Plain Dealer Publishing

Co. and Cleveland Newspaper Printing Press-

men’s Union No. 5 (Im Part) -02..........eeeeeeeeeeeeee 48

4. Contract Between The Plain Dealer Publishing

Co. and Cleveland Stereotypers Union No. 22

SER UII -ccchensnlbidenscsincrisebiitetgnitnennsiondiss ahiidienaiteiieninianieniibaee 50

AUTHORITIES CITED

Cases

Amstar Corp. v. Amalgamated Meat Cutters, 468 F.2d

Ee CE SD, CINE ccissiccentntncnmnensnicaieisitiinnaienniteptanasiintinian 14

Armco Steel Corp. v. United Mine Workers, 505 F.2d

Se I: SUID seicietcnscunininsnssniencnesistanilnniediniessssiaiaaios 13

Associated General Contractors of Minn. v. Construc-

tion & General Laborers Local No. 563, ........ F.2d

ene , 89 LRRM 3077 (8th Cir. July 29, 1975) 000. §=618

Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235

RETIN. eiudiiscdacndesinaiaiesslinstibinienitinisiiaineeageil 6, 7, 8, 10, 11, 12, 13, 14

Buffalo Forge Co. v. United Steelworkers, ........ F.2d

ianaiiea , 89 LRRM 2303 (2nd Cir. 1975) ............................6, 14

Gateway Coal Co. v. U.M.W., 414 U.S. 368 (1974) ....10,11

Huster Co. v. Independent Towing and Lifting Machine

I, siindin i an , 89 LRRM 2885 (7th Cir. 1975) 14

Inland Steel Co. v. Local 1545, United Mine Workers,

ge & Be Be MRPs eno 14

Island Creek Coal Co. v. United Mine Workers, 507 F.2d

Be 8 nen 13

Ill

Monongahela Power Co. v. Local 2332, IBEW, 484 F.2d

I I I, a atte teeelineminnnteumnee 13

NAPA Pittsburgh, Inc. v. Automotive Chauffeurs Local

926, 502 F.2d 321 (3rd Cir.) (en banc), cert. denied

ey IR UID SUID icsisietsceiicccelicasencianiciepadtisestiniemmipeniaiameneti 13

Pilot Freight Carriers, Inc. v. Teamsters, 497 F.2d 311

(4th Cir.), cert. denied 419 U.S. 869 (1974) ............ 13

Steelworkers Trilogy ...............: PEA ae ee one APRA 7,12

Teamsters, Local 174 v. Lucas Flour Co., 369 U.S. 95,

ff: _ ee 8

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

Bika PETE AR a ae AE ON SRO #

United Steelworkers v. American Mfg. Co., 363 U.S. 564

STITT «css ceceinasiishineiteatithinesibdedeaiunaahemaleniandigmioensdibieapentiemets 7

United Steelworkers v. Enterprise Wheel & Car Corp.,

SE ED SUE REIT —snstsisis crscnstssiennniinienepegntcenbneidasioneeniiinnes 7

United Steelworkers v. Warrior & Gulf Nav. Co., 363

RRC SEE eNO 7,9

Valmac Industries, Inc. v. Food Handlers Local 425,

cecilia F.2d ........, 89 LRRM 3073 (8th Cir., July 29,

ITI \ihedsieeeicouseeenciaeienadimaidamaiiesincninaiabaaiadiiiite veibeliiaiiaathdleiiadieoni 13, 14

Wilmington Shipping Co. v. Longshoremen, ........ F.2d

‘aan , 86 LRRM 2846 (4th Cir.), cert. denied 95 S.Ct.

EERE ARS EER 5 Ae ee ee 13

Statutes

Labor Management Relations Act

4 Eee ee 7

RR Cn nS Ors ere 3

Norris-LaGuardia Act

RN RESETS einen nae pI ne I Te ROSEY 3, 6,7

i ail ol crs laiias 8

Supreme Court of the United States |

October Term, 1975

No.

PLAIN DEALER PUBLISHING Co.,

Petitioner,

vs.

CLEVELAND TYPOGRAPHICAL Union No. 53; HAvEN COMBS

as President; WiLLIAM WITHERS as Vice-President;

NORMAN GLENN as Secretary-Treasurer of Cleveland

Typographical Union No. 53;

CLEVELAND STEREOTYPERS UNION, No. 22; JOSEPH VAVRUS as

President; Epwarp H. Porrarrke as Vice-President;

TERREANCE MAacDonaALp as Secretary-Treasurer of

Cleveland Stereotypers Union, No. 22;

CLEVELAND MAILers Unron, No. 12; HerpertT McTacGaRT as

President; FRANK DeRose as Vice-President; EAR.

BEcKETT as Secretary-Treasurer of Cleveland Mailers’

Union, No. 12;

CLEVELAND NEWSPAPER PRINTING PRESSMEN’sS UNION No. 5;

RALPH HANNA as President; Ropert MApes as Vice-

President; ADOLPH LEGERSKI as Secretary-Treasurer of

Cleveland Newspaper Printing Pressmen’s Union No. 5;

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner, Plain Dealer Publishing Co., respectfully

prays that a writ of certiorari issue to review the opinion

of the United States Court of Appeals for the Sixth Circuit

entered in this case on August 15, 1975.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit, not yet officially reported, appears

unofficially at 90 LRRM 2110. It is appended at App.

A, pp. 17-19, infra. The opinion of the United States Dis-

trict Court for the Northern District of Ohio, not yet

officially reported, appears unofficially at 88 LRRM 2155.

It is appended at App. B, pp. 20-41, infra.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on August 15, 1975.

This Court has jurisdiction under 28 U.S.C. §1254(1).

QUESTION PRESENTED

If an employer enters into binding collective bargain-

ing agreements with four unions representing various em-

ployee bargaining units within its plant that contain broad

mandatory arbitration procedures, an obligation on the

part of the unions in absolute terms to supply the man-

power needs of the employer and in two cases specific

clauses limiting observance of picket lines of other Unions

and these unions engage in a work stoppage in deference

to a fifth union’s lawful picket line, does a federal dis-

trict court have jurisdiction under section 301 of the Labor-

Management Relations Act, notwithstanding section 104

of the Norris-LaGuardia Act, to enjoin the unions’ sym-

pathy strike conduct and to compel arbitration as to

whether the unions’ conduct violates their respective col-

lective bargaining agreements?

STATUTES INVOLVED

This case involves section 4 of the Norris-LaGuardia

Act, 47 Stat. 70, 29 U.S.C. §104 and section 301(a) of

the Labor-Management Relations Act of 1947, 61 Stat. 156,

29 U.S.C. §185(a). These provisions are appended at App.

C, pp. 42-43, infra.

STATEMENT OF THE CASE

1. Federal Jurisdiction

This case arose when the Plain Dealer Publishing Co.

(Plain Dealer), petitioner, pursuant to section 301 of the

Labor-Management Relations Act, 29 U.S.C. §185(a), filed

an action against four craft unions which represent various

groups of its employees, Cleveland Typographical Union

No. 53 (Typographers), Cleveland Mailers Union No. 12

(Mailers), Cleveland Stereotypers Union No. 12 (Stereo-

typers) and Cleveland Newspaper Printing Pressmen’s

Union No. 5 (Pressmen). The complaint sought a tem-

porary restraining order, preliminary and permanent in-

junctive relief against the defendant unions ordering them

to fulfill their contractual obligations to

(1) submit existing disputes to the contractually

specified grievance procedure culminating in final and

binding arbitration; and

(2) supply the contractually required manpower

needs of the employer pending resolution of the dispute

by arbitration.

2. Statement of Facts

The Plain Dealer publishes a daily and Sunday morn-

ing newspaper that is distributed throughout northeastern

Ohio. The Typographers, Mailers, Stereotypers and Press-

men represent craft employees in mechanical departments

of the Plain Dealer and each has a separate collective

bargaining agreement. The Cleveland Newspaper Guild

No. 13 (Guild) is the collective bargaining representative

of the Plain Dealer editorial employees.

The Plain Dealer’s contract with the Guild expired

at midnight October 31, 1974; and the Guild commenced

an economic strike, establishing picket lines around the

Plain Dealer building in the early hours of the morning

of November 1, 1974. Initially, the Guild engaged in typi-

cal mass picketing. The Plain Dealer filed an action for

injunctive relief in the Cuyahoga County Court of Common

Pleas and obtained an order Friday afternoon limiting

the number of pickets permitted and prohibiting interfer-

ence with the rights of others. The Guild leadership knew

of the order immediately, and the restraining order was

served on those on the picket line in the normal course.

Each of the four craft unions who were named defen-

dants in this action were requested by the Plain Dealer

management to fulfill their contractual obligations to sup-

ply the Plain Dealer’s manpower needs in accordance with

the markup and foreman’s instructions and in the alterna-

tive to process the matter through the grievance-arbitra-

tion machinery. They ali have consistently maintained

that they do not have such an obligation and that the

district court had no jurisdiction to grant the Plain Dealer’s

request that the unions be ordered to fulfill their obliga-

tions and arbitrate the question, and that they had the

right to honor the Guild picket line.

The Typographers and Stereotypers took the further

position on Saturday, November 2, 1974, that they were

attempting to report to work but were prevented from

doing so by repeated incidents of violence. The two unions

made two alleged attempts, one on November 2 and one

on November 3, to report to work after the service of

the injunction on November 2. These were the only efforts

these unions made until the strike ended on December

23, 1974.

During the period relevant to this dispute, the Plain

Dealer had collective bargaining agreement with each of

the four craft union defendants. These agreements obli-

gated the four unions to supply the manpower needs of

the Plain Dealer (See App. D, pp. 44, 46, 48, 50, infra).

Each of the four collective bargaining agreements con-

tain broad arbitration agreements. The contracts with

the Typographers and Mailers provide settlement through

conciliation and then final binding arbitration of “all differ-

ences that may arise” (See App. D, pp. 45, 46, infra). The

scope of the grievance machinery with the Pressmen ex-

tends to “any difference of dispute arising as to the inter-

pretation or the operation of this Agreement.” (See App. D,

p. 48, infra), and, with the Stereotypers “[a]ny dispute

or complaint arising out of the interpretation or application

of the terms of this agreement” (See App. D, p. 50, infra).

Finally, the collective bargaining agreements with the

Typographers and Mailers contain specific picket line

clauses. ‘No employe covered by this contract shall be

required to cross a picket line established because of an

authorized strike by any other subordinate Union of the

International Typographical Union” (See App. D, pp. 44,

48). The Guild, which had established the picket line, is not

6

such a subordinate union. Both the Pressmen and Stereo-

typers contracts contain clauses providing that during

the pendency of arbitration, work as scheduled by the

Publisher shall proceed without interruption (See App.

D, pp. 49, 50).

3. The Proceedings Below

The Plain Dealer appealed the district court’s denial

of injunctive relief. On August 15, 1975, the United States

Court of Appeais for the Sixth Circuit affirmed the order

of the district court, which decision is appended at App.

A, pp. 17-19, infra. The Court of Appeals dealt with a single

threshold issue—“whether the exception to the anti-injunc-

tion provision of the Norris-LaGuardia Act, 29 U.S.C. §104,

carved out in Boys Markets, Inc. v. Retail Clerks Union

Local 770, 398 US. 235 (1970), permits an injunction

against unions engaged in a work stoppage in deference

to another union’s lawful picket line.” It held that it

did not for the reasons set forth in Buffalo Forge Co. v.

United Steelworkers, ........ , 89 LRRM 2303 (2nd

Cir. 1975), and in the district court opinion below, appended

at App. B, pp. 20-41, infra. It is on this narrow but im-

portant issue that petitioner seeks that writ of certiorari

issue for review by this Court.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts in Principle With the

Federal Labor Policy Articulated by This Court in

the Steelworkers Trilogy and Boys Markets v. Retail

Clerks Union Accommodating Section 301 of the

LMRA and Section 4 of the Norris-LaGuardia Act.

The court below held that in light of the anti-injunc-

tion provision of the Norris-LaGuardia Act, 29 U.S.C. §104,

the district court was without jurisdiction to grant the

requested injunctive relief, that is to order arbitration

and enjoin the refusal to supply manpower needs, against

unions engaged in a work stoppage in deference to another

union’s lawful picket line. This approach is at odds with

the clear congressional policy’ of promoting the peaceful

settlement of labor disputes through arbitration that has

been nurtured by the federal judiciary in the Steelworkers

Trilogy® and its progeny. Since the Steelworkers Trilogy,

this Court has been fashioning federal labor law so as

to establish arbitration as the linchpin of its policy.

The inexorable development of this policy culminated

in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S.

235 (1970), where this Court accommodated the terms

of section 4 of the Norris-LaGuardia Act (1932) to the

subsequently enacted provisions of section 301(a) of the

1. Section 203(d) of the Labor Management Relations Act,

1947, 29 U.S.C. §173(d) declares:

Final adjustment by a method agreed upon by the parties

is declared to be the desirable method for settlement of

grievance disputes arising over the application or interpreta-

tion of an existing collective-bargaining agreement.

2. United Steelworkers v. American Mfg. Co., 363 U.S. 564

(1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S.

574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. 593 (1960).

Labor Management Relations Act, 1947 and the purposes

of arbitration. The Court reviewed the history of unionism

and determined that the Norris-LaGuardia Act was di-

rected “to a situation different from that which exists

today.” Id. at 250. Labor unions were no longer struggling

entities but had become an important segment of modern

industrial society. The interaction between labor and man-

agement—collective bargaining—was exalted as the key

to industrial peace; and its product, the collective bargain-

ing agreement was the compact for joint rule. But, in

order to develop meaningful collective bargaining relation-

ships, this Court in Boys Markets recognized that it was

necessary to render work stoppages in violation of collec-

tive bargaining agreements enjoinable. If the parties

agree to resolve disputes by final and binding arbitration,

as opposed to resorting to self-help, then that agreement

was to be specifically enforceable in federal courts. Only

in this way would industrial peace be promoted.

Indeed, the wording of the Norris-LaGuardia Act itself

reveals that its core purpose was to eliminate jurisdiction

of the federal courts over lawful strikes in labor disputes.

Injunctions are still appropriate “when unlawful acts have

been threatened .. . or have veen committed .. .”? and

this Court has said that the Norris-LaGuardia Act is not

to be read literally but rather constitutes a single facet

of an overall substantive federal labor policy to be created

by the federal judiciary. Textile Workers Union v. Lincoln

Mills, 353 U.S. 448, 456-57 (1957), Teamsters, Local 174

v. Lucas Flour Co., 369 U.S. 95, 103 (1962).

This Court has further set as the first and foremost

condition for granting injunctive relief against a strike

or work stoppage that there be a dispute involving a matter

3. 29 U.S.C. §107.

within the parameters of a grievance procedure which

the parties are contractually obligated to follow:

Thus, a court must make an examination of arbitrabil-

ity—of whether the grievance procedure of the parties

encompasses the particular dispute.

A court does not proceed to analyze arbitrability in

a vacuum, and is not without Supreme Court guidelines.

In United Steelworkers v. Warrior & Gulf Nav. Co., supra,

this Court concluded that because of the importance

attached to the peaceful settlement of labor disputes and

the desirability of settling such disputes through the in-

formed judgment of one familiar with the “common law

of the shop,” courts should indulge in a strong presumption

of arbitrability:

An order to arbitrate the particular grievance

should’ not be denied unless it may be said with posi-

tive assurance that the arbitration clause is not sus-

ceptible of an interpretation that covers the asserted

dispute. Doubts should be resolved in favor of cov-

erage. (363 U.S. at 582-83; emphasis supplied. )

In the absence of any express provision excluding

a particular grievance from arbit:ation, we think only

the most forceful evidence of a purpose to exclude

the claim from arbitration can prevail. . . (363 US.

at 584-85.)

As long as a dispute is arbitrable, no injustice occurs

when a court orders arbitration and issues an injunction

since both parties will have their claims determined by

the tribunal which they have agreed was most competent

and appropriate to interpret the provisions of the collective

agreement. 398 U.S. at 253 n. 22. Thus, the accommodation

between section 301 and Norris-LaGuardia was established:

10

if a court applying the proper standard determines a dis-

pute to be arbitrable, it is to order arbitration and issue

injunctive relief.

The unions have agreed to supply the employer’s man-

power need. The Typographers and Mailers agreed that

only when confronted by ITU picket lines would the obliga-

tion to perform available work be vitiated. Additionaliy,

the Pressmen and Stereotypers have expressly agreed that

there will be no interruption process since the disputes

are arbitrable. And, they have agreed to submit disputes

over these clauses to arbitration. Federal labor policy

dictates that a contractual commitment to submit a dispute

for final and binding arbitration gives rise to an implied

no-strike obligation over the matter. This was stated only

recently in Gateway Coal Co. v. U.M.W., 414 U.S. 368

(1974):

[A] contractual commitment to submit disagreements

to final and binding arbitration gives rise to an implied

obligation not to strike over such disputes. Indeed,

the strong federal policy favoring arbitration of labor

disputes was the linchpin of this Court’s reasoning

in Boys Markets. Denial of all equitable relief for

breaches of no-strike obligations would have carried

“devastating implications for the enforceability of arbi-

tration agreements.” Id. at 381-382.

In essence the issues of arbitrability and implication

of a no-strike obligation are inextricably intertwined. If

a dispute is subject to the grievance procedure, resort

to strike or work stoppage is prohibited. For the em-

ployer’s agreement to resolve a particular dispute through

a mandatory grievance-arbitration procedure, the union

has impliedly promised not to strike over the issue—a

promise enforceable under Boys Markets. The emphasis

11

to be placed on this rationale was articulated by Justice

Powell in Gateway Coal Co., when he stated that absent

an express negation of any implied no-strike obligation

“the agreement to arbitrate and the duty not to strike

should be construed as having coterminous application.”

Id. at 382.

The holdings of Gateway and Boys Markets are appli-

cable to the case at bar. Under each of their collective

bargaining agreements, the four unions agreed to submit

all grievances to mandatory and exclusive grievance proce-

dures leading to final and binding arbitration. All four

unions agreed to supply the employer’s manpower needs.

As to two unions it was agreed that if confronted with

pickets of a union of their International, members would

be excused from performing work, otherwise failure to

report or obtain a substitute is grounds for discharge.

Two other unions agreed explicitly that there would be

no interruption of work pending arbitration. Thus, as

long as this Court, indulging in the prescribed presumption

of arbitrability, finds the issues involved in this case to

be subject to the mandatory arbitration provisions of the

collective bargaining agreements involved, it must find

that the district court had the requisite jurisdiction to

grant the injunctive relief sought, to enforce the obligations

and to arbitrate any disputes as to meaning.

The Sixth Circuit apparently follows the Second Cir-

cuit’s narrow limitation of Boys Markets injunctions to

strikes “over” an arbitrable dispute, rather than to all

illegal strikes involving arbitrable disputes. Such reliance

on semantics not only elevates form over substance, but

ignores the fact that a sympathy strike presupposes that

the union’s view of its manpower-supply duties is contrary

to the company’s view, thereby necessarily raising a strike

issue “over” an arbitrable dispute.

12

All apparently agree that the Unions have some duty

to supply men upon request of the company, and that

the Unions’ refusal to do so raises an arbitrable dispute.

Is this dispute less arbitrable and hence not enioinable

because the Union’s intention is to aid another striking

Union? Contrary to the Sixth Circuit, The Plain Dealer

respectfully submits that irrespective of the Union’s con-

tentions the contract dispute is arbitrable; and once this is

acknowledged, Boys Markets and Steelworkers Trilogy to-

gether compel the issuance of injunctive relief.

What if one day a union caused a work stoppage

by refusing to supply men but refused to disclose a rea-

son? Under such a circumstance the work stoppage would

not be “over an arbitrable grievance.” Nonetheless, Peti-

tioner Plain Dealer would contend Boys Markets would

mandate injunctive relief be granted. A union conceivably

might refuse to supply men in protest against the Plain

Dealer’s editorial policy or in support of an unlawful wild-

cat strike of another union. Boys Markets should apply

to each of these situations despite the fact that the work

stoppage was not “over an arbitrable grievance.” In each

of these cases the refusal to supply men is an arbitrable

dispute which can be resolved through arbitration.

The fact that arbitration will not resolve the dispute

between the Guild and Plain Dealer is totally irrelevant.

Arbitration will resolve the dispute between the four de-

fendant unions and the Plain Dealer, and it is such peaceful

resolution of disputes that Boys Markets and the Steel-

workers Trilogy was intended to foster.

A strike by the union may spawn disputes between

the employer and other unions. When craft employees

failed to report to work because of Guild picket lines in

violation of the express contractual obligations to supply

the Plain Dealer’s manpower needs, a dispute arose. The

13

duty of the district court is to determine if a disagreement

on contractual terms is arguably arbitrable. If the matter

cannot be said with positive assurance not to be arbitrable,

the court, under Boys Markets is to order arbitration.

As a concomitant of arbitration, the court must enforce

the no strike pledge which is the quid pro quo for arbi-

tration. Otherwise, the employer does not get the benefit

of his bargain, loses all impetus for agreeing to arbitration

and the basis of peaceful industrial society is eroded.

2. The Decision Below Presents an Important Question

of Statutory and Federal Labor Policy on Which

Court of Appeals Are in Direct Conflict.

The issue presented here, namely, whether a federal

district court possess authority to enjoin a union engaged

in a work stoppage in deference to another union’s lawful

picket line, has caused division among the circuit court

of appeals. Three circuit courts have adopted a view

contrary to the decision of the Sixth Circuit. The Third

Circuit in NAPA Pittsburgh, Inc. v. Automotive Chauffeurs

Local 926, 502 F.2d 321 (3rd Cir.) (en banc), cert. denied

95 S. Ct. 625 (1974) and Island Creek Coal Co. v. United

Mine Workers, 507 F.2¢ 650 (3rd Cir. 1975); the Fourth

Circuit in Monongahela Power Co. v. Local 2332, IBEW,

484 F.2d 1209 (4th Cir. 1973), Pilot Freight Carriers, Inc.

v. Teamsters, 497 F.2d 311 (4th Cir.), cert. denied 419

U.S. 869 (1974), Wilmington Shipping Co. v. Longshore-

A, cctseees CE slaisite , 86 LRRM 2846 (4th Cir.), cert. de-

nied 95 S. Ct. 498 (1974), Armco Steel Corp. v. United

Mine Workers, 505 F.2d 1124 (4th Cir. 1974); and the

Eighth Circuit in Valmac Industries, Inc. v. Food Handlers

Local 425, ........ , 89 LRRM 3073 (8th Cir., July

29, 1975) and Associated General Contractors of Minn.

v. Construction & General Laborers Local No. 563, ........

F.2d ....., 89 LRRM 3077 (8th Cir. July 29, 1975) have

14

all held that in a variety of situations a federal dis-

trict court has jurisdiction to enjoin such a work stop-

page where the work stoppage itself was the question

to be arbitrated. These courts have stressed the dominant

policy favoring the peaceful settlement of labor disputes

by final and binding arbitration. They have suggested

that to limit the scope of Boys Markets to grievances

entirely independent of the underlying work stoppage

would leave an employer helpless to compel a union to

fulfill its contractual commitments and to arbitrate rather

than strike.

Two circuits have agreed with the Sixth Circuit that

the work stoppage must be one which is “over a grievance

which both parties are contractually bound to arbitrate”

and hence, there is no jurisdiction to enjoin a work stop-

page in deference to another union’s lawful picket line.

These circuits are the Fifth Circuit in Amstar Corp. v.

Amalgamated Meat Cutters, 468 F.2d 1372 (5th Cir. 1972)

and the Second Circuit, relied on by the Sixth Circuit,

in Buffalo Forge Co. v. United Steelworkers, ........ F.2d

sicadi , 89 LRRM 2303 (2nd Cir. 1975).*

The issue presented here as stated in Valmac Indus-

tries, Inc., supra, at p. 3075 “has caused division in the cir-

cuits.” This conflict among the circuits seriously impairs

the requirement for a single uniform federal labor policy.

The issue is a recurrent one, as witnessed by the fact

that seven circuits have already dealt with the matter,

and affects the relationship of millions of workers and

their employer. There is no way that the conflicting deci-

sions among the circuits can be reconciled and the disagree-

4. The position of the Seventh Circuit in Inland Steel Co.

v. Local 1545, United Mine Workers, 505 F.2d 293 (7th Cir. 1974)

and Hyster Co. v. Independent Towing and Lifting Machine Assn.,

rs F.2d ..., 89 LRRM 2885 (7th Cir. 1975) is difficult to

athom.

15

ment among the circuits can be resolved only by this

Court. ;

This case is a particularly good vehicle for resolving

the conflict. The four contracts involved contain all the

various elements found in all the other cases: all four

contracts contain a substantive provision to supply man-

power needs which is inimical to striking, all four contain

mandatory arbitration procedures, two contain specific no

interruption of work pending arbitration clauses and two

contain picket line clauses. Thus, in one case the Court

may fashion guidelines that would govern the range of

situations in which the problem can and has arisen.

CONCLUSION

For the reasons stated above, this petition for certiorari

should be granted.

Respectfully submitted,

JAMES P. GARNER

Don H. PAcE

Euiiot S. AZorr

Attorneys for Petitioner,

Plain Dealer Publishing

Company

Of Counsel:

BAKER, HOSTETLER & PATTERSON

1956 Union Commerce Building

Cleveland, Ohio 44115

(216) 621-0200

17

APPENDIX A

Opinion of the Court of Appeals

(Decided and Filed August 15, 1975)

No. 75-1219

UNITED STATES COURT OF APPEALS

For THE SrxtTuH CIRCUIT

PLAIN DEALER PUBLISHING Co.,

Plaintiff-Appellant,

Vv.

CLEVELAND TYPOGRAPHICAL UNION, et al.,

Defendants-Appellees.

Before: Peck, McCree and Mier, Circuit Judges.

Per CurRIAM. This is an appeal from the denial of an

injunction requested in a dispute between the Cleveland

Plain Dealer and the craft unions representing some of its

employees. It requires us to decide whether the exception

to the anti-injunction provision of the Norris-LaGuardia

Act, 29 U.S.C. § 104, carved out in Boys Market, Inc. v.

Retail Clerks Union, Local 770, 398 U.S. 235 (1970), permits

an injunction against unions engaged in a work stoppage

in deference to another union’s lawful picket line. We

hold that it does not.

The Cleveland Newspaper Guild, not a party to this

litigation, was engaged in a lawful economic strike against

the Plain Dealer in November, 1974, and members of the

18

defendant unions did not cross the Guild picket lines.

Mass picketing and incidents of violence attended the Guiid

strike, and a state court order limiting the number of

pickets was not totally effective. Although members of

two of the four defendant unions did attempt to report for

work, they were unable to enter the Piain Dealer building

because of the persistent violence.

The Plain Dealer brought suit in the district court to

enjoin the work stoppage by the craft unions and to force

them to arbitrate the dispute. The district court, in deny-

ing the motion for injunctive relief, stated that the nar-

rowly circumscribed injunctive relief authorized in Boys

Market did not extend to the prohibition of work stoppages

generated by lawful labor disputes; that neither the violence

nor the threats of violence on the Guild picket line violated

the Guild-Plain Dealer collective bargaining agreement;

and that equitable considerations favored the denial of

the motion for the injunction. After the district court

issued its order, the United States Court of Appeals for

the Second Circuit considered the issue before us. In Buf-

falo Forge Co. v. United Steelworkers of America, 43 U.S.

L.W. 2506 (May 1, 1975), it determined that when mem-

bers of a union not directly in conflict with an employer

conduct a work stoppage out of respect for another inter-

ested union’s lawful picket line, and not because of a de-

sire to avoid arbitration, the denial of injunctive relief

accords with the national labor relations policy expressed

in the Norris-LaGuardia Act.

For the reasons set forth in the Buffalo Forge decision

and for the reasons set forth in the district court’s opinion,

attached hereto as an appendix,* the judgment is affirmed.

*See Appendix B.

19

APPENDIX A (Cont'd)

Judgment of the Court of Appeals

(Decided and Filed August 15, 1975)

No. 75-1219

UNITED STATES COURT OF APPEALS

For THE SrxTuH CIRCUIT

PLAIN DEALER PUBLISHING Co.,

Plaintiff-Appellant,

Vv.

CLEVELAND TYPOGRAPHICAL UNION, et al.,

Defendants-Appellees.

JUDGMENT

AppgeaL from the United States District Court for the

Northern District of Ohio.

Tuts CAUSE came on to be heard on the record from

the United States District Court for the Northern District

of Ohio, and was argued by counsel.

On CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be and the same is hereby

affirmed.

Ir Is FurRTHER OrpERED that the Defendants-Appellees

recover from Plaintiff-Appellant the costs on appeal as

itemized below and that execution therefrom issue out of

said District Court if necessary.

20

APPENDIX B

Memorandum of the District Court

No. C74-1001

UNITED STATES DISTRICT COURT

Northern District of Ohio

EASTERN DIVISION

PLAIN DEALER PUBLISHING Co.

Plaintiff,

Vv.

CLEVELAND TYPOGRAPHICAL Union No. 53, et al.,

Defendants.

MEMORANDUM

(Filed November 8, 1974)

GREEN, J.:

This action was commenced on Friday, November 1,

1974, by the Plain Dealer Publishing Co. (hereinafter

Plain Dealer) against three unions and the officers thereof

in their official capacities. The union defendants so named

were Cleveland Typographical Union, No. 53 (hereinafter

Printers), Cleveland Stereotypers Union, No. 22 (herein-

after Stereotypers), and Cleveland Mailers’ Union, No. 12

(hereinafter Mailers). The complaint alleged the exis-

tence of continuing collective bargaining agreements be-

tween plaintiff and each of the said defendants, which

contracts contained clauses obligating the parties thereto

“to settle all differences that may arise between the par-

ties” by conciliation or grievance procedures “and final

21

and binding arbitration.” The complaint further alleged

the existence of a dispute between plaintiff and each of

the said defendants, in that each of the defendant unions

had an obligation to provide workers for duty at the Plain

Dealer, but that as of November 1, 1974, each of the unions:

.. . indicating it was speaking for and on behalf of

itself and its members indicated it would not supply

the necessary men and cause them to report for work |

on their regularly scheduled shifts.

It was further alleged that the said disputes were arbi-

trable under the contracts, but that the defendants, nev-

ertheless, “have caused a work stoppage in violation of

the Agreement”.

The relief sought under the complaint was:

1) A preliminary injunction enjoining the work stop-

page.

2) A decree that the collective bargaining agreements

preclude a work stoppage during their terms and

that the disputes alleged were subject to arbitra-

tion thereunder.

3) A finding that defendants were in violation of the

agreements by failing to cause their members to

report for work.

4) A permanent injunction against the work stop-

page.

5) Retention of jurisdiction to enforce the injunctive

orders and for determination of damages.

6) Recovery of fees, expenses, cost and disbursements

of the action.

22

There was presented to the Court, with the complaint,

a motion for temporary restraining order. Such motion

sought an order upon defendants prohibiting the continu-

ing of “their unauthorized strike now existing at the Com-

pany’s plant”. When counsel for plaintiffs appeared with

that request, counsel for defendant Printers was also pres-

ent. The Court was advised that the factual background

for the litigation was that The Cleveland Newspaper Guild

Local No. 1 (hereinafter Guild), was engaged in a lawful

economic strike against the Plain Dealer as of November

1, 1974, and that members of the defendant unions had not

crossed the Guild picket lines which had been set up at

6:00 a.m. that morning. However, counsel for the Print-

ers advised the Court that the failure to report for work

by his clients was not voluntary, in that there was mass

picketing at the Plain Dealer plant, with threats of harm

and violence to anyone attempting to gain entry. Plain-

tiff’s counsel then advised that within the hour an order

had been obtained in the Common Pleas Court of Cuya- —

hoga County limiting the number of pickets permitted and

prohibiting any interference with rights of others. He con-

ceded, however, that it was not known whether such order

had yet been served and what the actual conditions were

at that time.

Based upon such representations the Court advised

that the requested order would not be granted, but that

action would be withheld until it was determined what

conditions developed at the Plain Dealer premises following

service of the Common Pleas order. The Court also advised

that if necessary further proceedings could be had on

Saturday.

A request for a Saturday hearing was made by plain-

tiff’s counsel, and the same was convened at about 3:00

p.m. At that time plaintiff filed an amended complaint,

23

adding as a party defendant the Cleveland Newspaper

Printing Pressmen’s Union No. 5 (hereinafter Pressmens)

and the officers thereof in their official capacities. The

allegations of the amended complaint as against the Press-

mens were essentially the same as against the other defen-

dants. A further motion for temporary restraining order

against all defendants was presented. That proposed order

was similar to the original request for temporary restrain-

ing order, but contained an added clause that:

. nothing contained herein shall be construed as

requiring any individual employee member of the de-

fendant Unions who, upon attempting to enter the

plaintiff's premises, is unable to do so because of real

fear of bodily harm to himself from the pickets of

the Cleveland Newspaper Guild Local No. 1.

Piaintiff’s counsel advised that the Common Pleas order

had been served shortly after 6:00 p.m. the preceding

evening, that he believed it was then possible for the

members of the craft unions to obtain entrance to the

Plain Dealer Building, but that no members of the four

defendant unions had reported for work.

Defendants’ counsel, on the other hand, maintained

that notwithstanding the Common Pleas order conditions

at the premises were still such that the craft employees

were being denied access to the plant, and that there

existed a real danger to the safety of any person who

might try to cross the Guild picket line.

Faced with such conflicting representations by counsel,

the Court set the matter for evidentiary hearing on Mon-

day, November 4, 1974. On Tuesday, November 5, it was

agreed that the matter would be considered as a motion

for preliminary injunction upon the pleadings then be-

fore the Court. Such decision was reached based upon

24

the extent of the record being developed and in order

to afford appellate review from this Court’s determination.

The hearing having been concluded, and the Court

having received briefs from counsel during the progress

thereof, the matter is before the Court for decision.

At the outset, it must be borne in mind that this

is a motion for preliminary injunction. As such, the cri-

teria pertinent thereto are not the same as control on

a decision on the merits. The standards which this Court

should apply in determining whether a preliminary injunc-

tion is proper have been set forth in North Avondale

Neighborhood Association v. Cincinnati Metropolitan Hous-

ing Authority, 464 F. 2d 486 (CA 6, 1972), as follows:

1) Has petitioner made a strong showing of probable

success at trial?

2) Has petitioner shown irreparable injury?

3) Would issuance of the preliminary injunction cause

substantial harm to others?

4) Where lies the public interest?

Further, a determination made on a request to invoke

the Court’s equitable powers involves consideration of fac-

tors beyond those which apply to a prayer for remedies

at law. It is also important to note that this is an action

against the unions themselves for concerted activity, and

does not involve determination of action by any particular

individual involved, except insofar as such conduct bears

on the question of concerted activity.

In determining whether plaintiff has made a strong

showing of probable success on the merits, the Court must

consider the law controlling herein, and the application

of such legal principles to the evidence upon the record.

25

The starting point for a discussion of the legal issues

raised in this case should be the Supreme Court’s decision

in Boys Markets, Inc. v. Retail Clerks Union, 398 US.

255 (1970). In fact, the injunction being sought by plaintiff

is of a nature now commonly referred to as a “Boys

Market” injunction, and has been so designated in the

course of this proceeding. Before the landmark Boys Mar-

kets decision, federal courts could not enjoin a strike,

even in breach of a no-strike contractual obligation, in

any case arising from a labor dispute, because of the all-

encompassing language of the anti-injunction provisions

of Section 4 of the Norris-LaGuardia Act. 29 U.S.C. § 104.

In Boys Markets, however, the Supreme Court carved

out a “narrow exception” to the Norris-LaGueardia Act

in order to accommodate the Act to § 301(a) of the Labor

Management Relations Act, 29 U.S.C. § 185(a), and the

federal labor law policy which encourages arbitration as

a method for settling disputes.

In Boys Markets, the union insisted that only its mem-

bers and not supervisory personnel could rearrange mer-

chandise in the frozen food cases of the employer’s market.

When the employer refused to empty the shelves stocked

by non-union employees, the union went out on strike.

The dispute was subject to arbitration under the collective

bargaining agreement and the strike was in violation of

an express no-strike clause of that agreement. The Su-

preme Court held that the district court had properly

enjoined the strike, stating that under § 301(a) the federal

courts may enjoin a strike if it is found that the “strike

is sought to be enjoined because it is over a grievance

which both parties are contractually bound to arbitrate...”

and that the injunction is warranted under normal equity

considerations. The Supreme Court’s holding is reflected

in the following portion of its opinion:

26

Our holding in the present case is a narrow one. We

do not determine the vitality of the Norris-LaGuardia

Act. We dea! only with the situation in which a

collective-bargaining contract contains a mandatory

grievance adjustment or arbitration procedure. Nor

does it follow from what we have said that injunctive

relief is appropriate as a matter of course in every

ease of a strike over an arbitrable grievance. The

dissenting opinion in Sinclair suggested the following

principles for the guidance of the district courts in

determining whether to grant injunctive relief—prin-

ciples that we now adopt:

“A District Court entertaining an action under § 301

may not grant injunctive relief against concerted ac-

tivity unless and until it decides that the case is one

in which an injunction would be appropriate despite

the Norris-LaGuardia Act. When a strike is sought

10 be enjoined because it is over a grievance which

both parties are contractually bound to arbitrate, the

District Court may issue no injunctive order until

it first holds that the contract does have that effect;

and the employer should be ordered to arbitrate, as

a condition of his obtaining an injunction against the

strike. Beyond this, the District Court must, of course,

consider whether issuance of an injunction would be

warranted under ordinary principles of equity—

whether breaches are occurring and will continue, or

have been threatened and will be committed; whether

they have caused or will cause irreparable injury to

the employer; and whether the employer will suffer

more from the denial of an injunction than will the

union from its issuance.” 370 US.,.at 228, 8 L. Ed. 2d

at 460. (Emphasis in original.) 398 U.S. 235, 253-254.

27

In Boys Markets, there was an express no-strike provi-

sion in the collective bargaining agreement. It was this

express contractual duty which the Supreme Court held

could be enforced by an injunction under § 301(a) of

the Labor Management Relations Act. In a subsequent

ruling, the Court has further held that an implied no-

strike clause will also support a Boys Market injunction.

Gateway Coal Co. v. United Mine Workers of America,

414 US. 368 (1974). In Gateway the Court noted that

“a contractual commitment to submit disagreements to

final and binding arbitration gives rise to an implied obliga-

tion not to strike over such disputes.” Id., at 381. The

Court further stated that “the agreement to arbitrate and

the duty not to strike should be construed as having coter-

minous application.” Id., at 382.

Although Boys Markets is of relatively recent origin,

there are a number of cases involving its application to

fact situations similar to that before the Court.

It appears to the Court that while many of the deci-

sions may be distinguishable on their precise facts, they

do present two basically different jurisprudential views

as to the proper construction and reach of Boys Markets.

On the one hand, there are a number of decisions

which hold that a refusal of union members to cross a

picket line established at their place of employment by

another union is not enjoinable. The leading case repre-

senting that view is Amstar Corp. v. Amalgamated Meat

Cutters and Butcher Workmen of North America, 468 F.2d

1372 (CA 55,1972). Therein the Court stated:

The case sub judice is entirely outside the scope of

the exception to the Norris-LaGuardia Act delineated

in Boys Markets. [Citations omitted] ‘The strike by

the Chalmette employees was not “over a grievance”

28

which the parties were contractually bound to arbi-

trate. Rather, the strike itself precipitated the dis-

pute—the validity under the Union’s no-strike obliga-

tion of the member-employees honoring the ILA picket

line. Were we to hold that the legality of the very

strike sought to be enjoined in the present situation

constituted a sufficiently arbitrable underlying dispute

for a Boys Markets injunction to issue, it is difficult

to conceive of any strike which could not be so en-

joined. The Boys Markets holding was a “narrow

one,” not intended to undermine the vitality of the

anti-injunction provision of the Norris-LaGuardia Act.

Indeed, the Supreme Court specifically stated that

its decision did not mean “that injunctive relief is

appropriate as a matter of course in every case of

a strike over an arbitrable grievance.” This appeal

is such a case. The district court was without juris-

diction to enter the injunction. Id., at pps. 1373-74.

The same theory was stated much more succinctly in Gen-

eral Cable Corporation v. International Brotherhood of

Electrical Workers, Local Union 1644, 331 F.Supp. 478

(D.Md., 1971), wherein the Court stated:

The only grievance between the Company and Local

1644 is the result of the strike and not the cause

of the strike. It does not come within the narrow

exception created by the rule in Boys Market to the

applicability of the Norris-LaGuardia Act. Id., at p.

482.

The same conclusion was reached in Simplex Wire and

Cable Co. v. Local 2208, International Brotherhood of Elec-

trical Workers, 314 F.Supp. 885 (D. N.H., 1970).

Although not directly in point, in that it does not

involve a refusal to cross picket lines, the decision in

29

Parade Publications, Inc. v. Philadelphia Mailers Union

No. 14, 459 F. 2d 369 (CA 3, 1972), warrants mention.

Therein union defendants having a no-strike and arbitra-

tion clause in their contracts had engaged in a work

stoppage in protest of the employer’s alleged setting up

of a new concern ty which the work being performed

by the union members would be diverted. In reversing

a Section 301 injunction, the court stated:

Parade’s argument that the strike itself clearly created

an arbitrable issue of whether the union had violated

the general ‘“‘no strike” clause does not require a differ-

ent result for two reasons. First, it is apparent from

the court’s reference to “any dispute which underlies

the alleged walkout” that it did not rest its decision

to issue an injunction upon a finding that the strike

itself created an issue which the parties have bound

themselves to arbitrate. Second, this argument of

Parade goes beyond anything decided in the Boys

Market case. Indeed, if the Diversified situation

caused the strike and does not present an issue which

the parties have bound themselves to arbitrate,

it would run contrary to the rationale of Boys Market

to grant Parade an injunction. Id., at p. 374.

The contrary point of view proceeds from a line of

authority represented by Monongahela Power Company

v. Local No. 2332, International Brotherhood of Electrical

Workers, 484 F. 2d 1209 (CA 4, 1973). In that decision,

although stating that:

The anti-injunction provision of Norris-LaGuardia still

retained much of its vitality after Boys Markets, how-

ever, as the Court specifically limited its holding—

that injunctive relief against labor disputes may be

available—to a narrow fact situation,

30

the court found that by virtue of the “extremely broad

and encompassing language” of the express no strike-no

lockout and grievance-arbitration clauses of the collective

bargaining agreement “the facts of the instant case clearly

bring it within the narrow Boys Markets exception”. The

Fourth Circuit again upheld a Boys Markets injunction

in a picket line situation in Pilot Freight Carriers v. Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America, 497 F.2d 311 (1974).

The decision therein was predicated upon the fact that

the collective bargaining agreement, which contained an

express no-strike clause and a broad arbitration clause,

had a clause which granted the union the right to refuse

to cross a primary picket line. The court found that a

dispute existed as to whether the picket line was primary

or secondary and that the “relationship between the no-

strike clause and the clause allowing individual employees

to refuse crossing a primary picket line” was an arbitrable

matter within the sense of Boys Markets. In NAPA Pitts-

burg, Inc. v. Automotive Chauffeurs, Parts and Garage Em-

ployees, Local Union 926, _... F.2d ..., 87 LRRM

2044 (CA 3, 1974), the court was also presented with

a collective bargaining agreement containing a clause

granting employees the right to refuse to cross a primary

picket line. The decision therein was en banc, with a

6-3 vote affirming the granting of a § 301 injunction.

The majority distinguished the Amstar line of authority

on the basis that “In none of the cited cases was there

a contractual provision restricting the union’s right to bon-

or picket lines of other labor organizations”, while the

dissent took the view under the rationale of Boys Markets

that an injunction should not be granted in the factual

context presented. In Barnard College v. Transportation

Workers Union of America, 372 F. Supp. 211 (S.D. N.Y.,

1974), the court based its injunction upon a contractual

i,

31

commitment to resolve “all differences” by arbitration with

an obligation not to “call or countenance any form of

strike”, while in Bethlehem Mines Corporation v.

United Mine Workers of America, a contract clause obliging

the parties to arbitrate all differences under the contract

and any differences “about matters not specifically men-

tioned in this agreement or . . . any local trouble of any

kind . . . at the mine” was sufficient to support a Boys

Market injunction.

The uncertain state of the law on the issue before

the Court is clearly brought home by the fact that within

one week of each other two district courts reached conflict-

ing conclusions on essentially the same facts and law as

were later presented to the Fourth Circuit Court of Appeals

in Pilot Freight, supra. On March 25, 1974, Judge O’Kelley

of the Northern District of Georgia entered a § 301 injunc-

tion, applying the same theory adopted by the Fourth

Circuit in its later decision. Pilot Freight Carriers, Inc.

v. International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, 86 LRRM 2419.

On April 1, Judge Stern of the New Jersey district denied

an injunction sought on the same grounds as had been

advanced in Georgia, adopting the view of Boys Markets

contained in the Amstar line of authority. Pilot Freight

Carriers, Inc. v. Local 560, International Brotherhood of

Teamsters, 373 F. Supp. 19. Similarly, although the court

sought to distinguish the ruling in the Maryland General

Cable case, it appears to the Court that the decision in

General Cable Corporation v. International Brotherhood

of Electrical Workers, Local Union 1798, 333 F. Supp.

331 (W.D. Tenn., 1971), simply represents a different con-

clusion on basically the same facts in each case.

Having rev‘ewed the considerations discussed in what

this Court believes to be the two divergent lines of author-

32

ity, this Court is of the opinion that the conclusion of the

Amstar case is the sounder view.

In this Court’s opinion, there is a clear difference be-

tween a labor dispute which results from a work stoppage

and a work stoppage which is the result of a labor dispute

arising from conditions of employment. While Boys Mar-

kets teaches that the latter is enjoinable, the Court believes

that an injunction as to the former cannot be reconciled

with the express language of the Supreme Court in that

decision. In this Court’s opinion, the philosophy repre-

sented by the Monongahela Power, NAPA, and Pilot Freight

decisions runs counter to the Supreme Court’s admonition

that the Boys Markets holding was a “narrow one’, not

making injunctive relief “appropriate as a matter of course

in every case of a strike under an arbitrabie grievance”,

and that the decision was not intended to “undermine the

vitality of the Norris-LaGuardia action”, but rather repre-

sented an accommodation of the literal terms of Section 4

of Norris-LaGuardia to the provisions of Section 301 (a)

of the Labor Management Relations Act and the judicial

policies favoring arbitration of labor disputes. 398 U.S.

235, 250, 253-254. In this case, there was no dispute what-

soever between plaintiff and defendants until such time

as the craft employees failed to report for work following

posting of the Guild picket lines. It therefore follows that

no injunction may issue herein against these defendants.

Although the Court’s decision as expressed above is

determinative of the plaintiff's motion, as previously

stated, the Court intends to cover all issues presented in

this proceeding. Consequently, assuming that this Court

has too narrowly viewed Boys Markets and that the theory

of the Monongahela Power, NAPA and Pilot Freight de-

cisions applies, the Court will now consider the remaining

issues. This is done so that in the event of an appeal,

33

should the Court of Appeals disagree with this Court’s view

of the law, it will not be necessary to remand the action

for further findings.

In considering the remaining issues, which are matters

of both fact and law, the burden of proving its case rests

upon the plaintiff. An employer seeking an injunction

has the burden of proving that he comes within the Boys

Markets doctrine. He must provide the Court with an

evidentiary basis for making the findings required by that

case aS a prerequisite to the issuance of an injunction.

Parade Publications, Inc. v. Philadelphia Mailers Union

Local No. 14, 459 F.2d 369, 373 (CA 3, 1972). While in a

proceeding for preliminary injunction a plaintiff need not

prove its case to the same degree as would be required at

a trial upon the merits, the record must reflect sufficient

evidence of the factors required to support a Boys Markets

injunction to satisfy the “strong showing of probable suc-

cess” test.

In order to satisfy its burden, plaintiff must demon-

strate that the unions are in fact engaged in an unlawful

work stoppage, that such work stoppage is over a grievance

that the parties are contractually bound to arbitrate, and

that the collective bargaining agreements contain no-strike

clauses, express or implied, which afford a basis for an

injunctive order. Avco Corp. v. Local Union +787 of the

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, 459 F. 2d

968, 972 (CA 3, 1972).

The first issue is whether these defendants are now

engaged in an unlawful work stoppage. If they are not,

then no injunction could issue.

We must start with the premise that a person who re-

fuses to cross a picket line of another union as a matter of

34

principle becomes a striker, but that one who refuses to

do so by reason of physical fear does not act on principle

and may not be considered a striker. National Labor Re-

lations Board v. Union Carbide Corporation, 440 F. 2d 54

(CA 4, 1971). See also, National Labor Relations Board v.

Knight Morley Corp., 251 F. 2d 753 (CA 6, 1958). This

principle has been codified in § 502 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 143, which provides:

{N]jor shall the quitting of labor by an employee or

employees in gouwd faith because of abnormally danger-

ous conditions fur work at the place of employment of

such employee ve deemed a strike under this chapter.

This recognition of a .ight to refuse to work provides a lim-

ited exception to an express or implied no-strike obligation.

Gateway Coal Co. v. United Mine Workers of America, 414

U.S. 368 (1974).

While the express terms of § 502 would appear to apply

to occupational safety hazards, it has been construed as

extending to potential labor violence. Redwing Carrier,

Inc., 130 N.L.R.B. 1208, enforced as modified, 325 F. 2d

1011 (CA D.C., 1963). Therefore, whether fai!wre to re-

port to work in the face of credible threats of violence be

characterized as protected activity under § 502 or as not

representing a breach of contract, the result is the same—

there is no basis for an injunction mandating a return to

work.

In this case there is a dispute between the parties as

to whether the defendants have failed to report for work

as a consequence of a bona fide fear for personal safety.

This is a matter of fact which the Court must resolve.

The Court finds that the facts are not the same as to

all defendants.

35

Approximately a week before the Guild went on

strike, the possibility of that event was discussed at a

Printers’ union meeting, and the membership was advised

that they would be obliged to continue working.

On the evening that the Guild strike vote was taken,

the craft unions held a unity meeting at which the ques-

tion of supporting the Guild strike was presented. All

unions present, excepting the Pressmens and Mailers, voted

to cross the picket lines and report for work if possible.

The Pressmen and the Mailers abstained on the basis that

they required instructions from their international unions.

Members of both the Printers and Stereotypers have

attempted, either individually or collectively, to obtain

entry into the Plain Dealer plant. The record reflects

that in each instance they have been met with resistance

and threats of violence. When a large body of Printers

attempted to report on Sunday, November 3, they were

met by an equally large body of strikers barring their way.

Plaintiff’s Director of Labor Relations testified that

he believed the threats to be idle ones, and there has been

the strong intimation by plaintiff that the Sunday mass

confrontation was a neatly arranged scenario. The mem-

bers of the defendant unions who testified stated they

fully believed the threats, and honestly believed that vi-

olence would have ensued had they attempted to pass those

barring their way.

It has been said that:

What constitutes unlawful intimidation depends on all

the circumstances. Force threatened is the equivalent

of force exercised. There may be unlawful intimida-

tion without any direct threats or overt acts of vi-

olence. Words or acts which are calculated and in-

tended to cause an ordinary person to fear an injury

36

to his person, business, or property are equivalent to

threats. The number of pickets, their methods, their

placards, and their circulars may constitute intimida-

tion. A display of force without actual use thereof

may be intimidation. 48 Am. Jur. 2d, Labor and La-

bor Relations § 1390.

In the context of discussing the provisions of § 502, the

Supreme Court stated in Gateway Coal that there must be

some objective evidence of an abnormally dangerous con-

dition for work. 414 U.S. 368, 386. This Court is satisfied

that the evidence of the threats and confrontations meets

that standard. The Court does not believe that it was in-

cumbent upon the craft employees to further prove the

dangerous conditions by going forward in the face of the

threats of violence, in order to establish the validity of

such threats.

In the Court’s opinion, the record is insufficient to

support the conclusion that the Printers and Stereotypers

have allied themselves with the Guild as a matter of prin-

ciple. The evidence of their consistent avowed intent to

work if possible cannot be disregarded in determining

whether the unions are engaged in a concerted unlawful

work stoppage.

As the Court cannot find that the Printers and Stereo-

typers are engaged in an unlawful work stoppage in vio-

lation of their contractual obligations, it necessarily fol-

lows that they could not be subjected to a mandatory

order to discontinue such conduct.

However, as to the Pressmens and Mailers, there is no

evidence that any of their members have attempted to

report for work. There is likewise no evidence of the of-

ficial position of the unions as regards the Guild strike.

Consequently, it is just as reasonable to assume that the

37

failure of those unions to report for work is by virtue of

sympathizing with the Guild, as it is out of fear of the

Guild. Absent any objective evidence that justifies the

failure of those unions to report for work, this Court must

conclude that they may be considered as strikers.

Having determined that the Pressmens and Mailers

could be found to be engaged in an unlawful work stop-

page, it must then be determined whether such a stoppage

is subject to being enjoined under the Boys Markets stan-

dards, for as is pointed out therein, not every strike is sub-

ject to being enjoined. That issue is controlled by the

terms of the parties’ collective bargaining agreements.

Consistent with the Court’s decision to treat on all is-

sues inherent in this case, the Court will also consider the

matter of whether the Printers and Stereotypers contracts

will support a Boys Markets injunction, notwithstanding

the conclusion reached as to those unions’ status as non-

strikers.

The Court has examined the collective bargaining

agreements of all defendant Unions. None of the said

agreements contains an express no-strike clause compara-

ble to those contained in the collective bargaining agree-

ments in the cases previously considered herein in which

mandatory orders were issued requiring the crossing of

picket lines. Consequently, the obligation of these unions

not to engage in work stoppages must be implied from

the grievance-arbitration clauses of their contracts, and

cannot exceed the scope of those clauses.

As to all the unions, plaintiff contends that “manning”

provisions in each contract provide the basis for the find-

ing of an arbitrable dispute, in that the work stoppages

violate the unions’ obligations thereunder. This Court

does not agree with that position. The actual dispute here

38

is the right of the craft employees to refuse to cross the

Guild’s picket line. To characterize the arbitrable dispute

in terms of the manning provisions would bootstrap all

work stoppages into arbitrable grievances. There can be

many reasons for a work stoppage, and it is the validity

of these reasons which is the proper subject for arbitra-

tion if the contract so provides, not the failure to work

itself.

The Court finds that the Printers and Mailers con-

tracts have reasonably broad grievance and arbitration

clauses, although there are perhaps some ambiguities

within the terms of the clauses. Those contracts also con-

tain clauses pertaining to the subject of “Picket Line”.

Bearing in mind that in Gateway Coal, a Boys Markets

injunction action, the Supreme Court did reaffirm the fed-

eral policy favoring resolving doubts as to arbitrability in

favor of arbitration, if this Court were to apply the Mo-

nongahela Power, NAPA, Pilot Freight standards the Court

would conclude that an arbitrable grievance supportive

of a § 301 injunction exists. However, by virtue of the

absence of strong express no-strike clauses, the contracts

would certainly be borderline situations.

As to the Stereotypers contract, while the grievance-

arbitration clause is arguably broad, the Court finds no

other contract provisions therein comparable to those

which afforded the basis for the orders in the Monongahela

Power line of decisions. Therefore, the failure to cross a

picket line could present no arbitrable dispute under the

contract, and hence no § 301 injunction could issue.

In the Court’s opinion, the grievance-arbitration pro-

visions of the Pressmens contract is of such a limited scope

that it cannot be said to imply a no-strike obligation ap-

plicable to the facts of this case.

39

Finally, if this Court was of the opinion that the con-

trolling law permitted the entry of an injunctive order,

the Court, as dictated by both the Sixth Circuit Court of

Appeals in the North Avondale decision and by the Su-

preme Court in Boys Markets, would have to take into

account the general equitable considerations and the pub-

lic interest as pertinent hereto. Injunction is an equitable

remedy which should not be lightly indulged in, but used

sparingly and only in a clear and plain case. 42 Am. Jur.

2d, Injunction §2.

Mr. Justice Black recognized that honoring a picket

line has been a respected tradition within the labor move-

ment:

Section 7 of the Taft-Hartley Act, 29 USC § 157 rec-

ognizes a right of employees to work together in “con-

certed activities for their mutual aid and protection.”

One way some union men help others is to refrain

from crossing picket lines. Habitual respect for union

picket lines has long been the practice of union men.

This practice has been a prized asset of the unions.

The Taft-Hartley Act was designed to regulate and

restrict the type of concerted activities in which em-

ployees could engage. But even that Act did not at-

tempt to deprive unions of the advantage of a policy

that required union men to respect picket lines. Na-

tional Labor Relations Board v. Rockaway News Sup-

ply Co., 345 U.S. 71, 81 (1953).

The Court can understand ise emotional impact that at-

tempts to cross a picket line might have in a community

with a long history of strong unionism.

Throughout these proceedings defendants have em-

phasized the risk of violence on the picket lines. Although

the Court has some reservations about the evidence of cer-

40

tain of the altercations and confrontations between the

defendant unions and the pickets, the Court does believe

that an attempt to forcibly cross the picket line does pre-

sent a real potential for violence.

In cases involving vindication of fundamental consti-

tutional rights, the courts have granted injunctions even

though aware that their decisions might result in violence

and personal injury. However, this Court believes that

in cases seeking vindication of contractual rights, the courts

should draw a careful balance between the need to protect

a litigant’s private interests and the potential for public

disorder that such action might entail.

As the authority of the courts to order any picket line

breached is of recent origin, this Court has little historical

perspective to draw upon in determining whether an in-

junctive order would result in actual violence. However,

the Court cannot ignore the fact that violence did occur

at the Plain Dealer in 1971, when members of craft unions

attempted to forcibly cross a Guild picket line established

in an economic strike.

As the Court has stated that its conclusions on all is-

sues will be expressed, it is this Court’s opinion that the

equitable considerations would be sufficient to preclude

the entry of a mandatory injunction herein, had it been

necessary to reach that issue.

Plaintiff’s motion for preliminary injunction will be

denied,

/s/ Ben C. GREEN

United States District Judge

41

APPENDIX B (Cont’d)

Order of the District Court

No, C74-1001

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PLAIN DEALER PUBLISHING Co.

Plaintiff,

Vv.

CLEVELAND TYPOGRAPHICAL UNION No. 53, et al.,

Defendants.

ORDER

(Filed November 8, 1974)

Upon CONSIDERATION of plaintiff's motion for prelim-

inary injunction,

Ir Is Heresy OrpveERED that the said motion is denied;

see this Court’s memorandum of even date. The Court’s

ruling is certified pursuant to 28 U.S.C. § 1292(b).

/s/ Ben C. GREEN

United States District Judge

42

APPENDIX C

Statutes Involved

Section 4 of the Norris-LaGuardia Act

29 U.S.C. § 104. Enumeration of specific acts not subject

to restraining orders or injunctions

No court of the United States shall have jurisdiction

to issue any restraining order or temporary or permanent

injunction in any case involving or growing out of any

iabor dispute to prohibit any person or persons participating

or interested in such dispute (as these terms are herein

defined) from doing, whether singly or in concert, any of

the following act:

(a) Ceasing or refusing to perform any work or to

remain in any relation of employment;

(b) Becoming or remaining a member of any labor

organization or of any employer organization, regardless

of any such undertaking or promise as is described in sec-

tion 103 of this title;

(c) Paying or giving to, or withholding from, any

person participating or interested in such labor dispute,

any strike or unemployment benefits or insurance, or other

moneys or things of value;

(d) By all lawful means aiding any person participat-

ing or interested in any labor dispute who is being pro-

ceeded against in, or is prosecuting any action or suit in

any court of the United States or of any State;

(e) Giving publicity to the existence of, or the facts

involved in, any labor dispute, whether by advertising,

43

speaking, patrolling, or by any other method not involving

fraud or violence;

(f) Assembling peaceably to act or to organize to

act in promotion of their interests in a labor dispute;

(g) Advising or notifying any person of an intention

to do any of the acts heretofore specified;

(h) Agreeing with other persons to do or not to do

any of the acts heretofore specified; and

(i) Advising, urging, or otherwise causing or induc-

ing without fraud or violence the acts heretofore specified,

regardless of any such undertaking or promise as is de-

scribed in section 103 of this title.

Section 301 of the Labor Management Relations

Act of 1947

29 US.C. § 185. Suits by and against labor organiza-

tions—Venue, amount, and citizenship

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees in

an industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be brought

in any district court of the United States having jurisdic-

tion of the parties, without respect to the amount in con-

troversy or without regard to the citizenship of the parties.

44

APPENDIX D

Collective Bargaining Agreement

1. Contract Between The Plain Dealer Publishing Co.

and Typographical Union No. 53 (In Part)

ARTICLE I

Recognition and Jurisdiction

* 7 * > *

Section 3. The Union agrees, upon the request of the

Employer, at all times to use all means within its power

to provide a sufficient number of employes necessary to

perform all work which is recognized by this agreement

to be within the jurisdiction of the Union.

Section 4. All employees will work at any and all

times where the needs of the Employer may require, pro-

vided, however, that nothing in this Section shall waive

any of the provisions of this contract pertaining to hours,

wages, call-back or overtime embodied in this contract.

ARTICLE VI

General Provisions

Section 6. No employe covered by this contract shall

be required to cross a picket line established because of

an authorized strike by any other subordinate Union of the

International Typographical Union.

45

ARTICLE VII

Conciliation and Arbitration

Section 1. Witnesseth: That the parties hereto, being

desirous of maintaining harmonious relations between em-

ployers and employes, hereby mutually agree to settle all

differences that may arise, by conciliation, and if concilia-

tion fails, by arbitration. This applies only to differences

arising during the life of this contract, and not the renewal

of this contract.

Section 2. A Joint Standing Committee shall be ap-

pointed, consisting of two representatives of the Employer

and two representatives of the Union. These representa-

tives shall be appointed by their respective organizations.

All questions that may arise as to the construction to be

placed on any part of this Agreement, and any controversy

over discharge of help shall be referred to said committee.

Section 3. This contract alone shall govern relations

between the parties on all subjects concerning which any

provision is made in this contract, and any dispute involv-

ing any such subjects shall be determined in accordance

with the conciliation provisions provided for herein.

Section 4. Should either party have a grievance, the

same shall be presented in writing within forty-five (45)

days to the Joint Standing Committee for conciliation; said

committee shall meet to consider said grievance within

five (5) days (two days in discharge appeals) after filing

of same (such time may be extended by mutual agree-

ment); if an understanding cannot be reached within ten

(10) days after the grievance has been presented, then

the settlement of said grievance shall be left to the Board

of Arbitration. Provided that by mutual agreement the

46

presenting of said grievance to the Board of Arbitration

can be extended not to exceed thirty (30) days.

Section 6 (a). The decision of a majority of this

Board shall be final and binding upon all parties. If any

controversy arises as to interpretation or enforcement of

this Agreement, the conditions prevailing prior to the

dispute shall be maintained until the controversy has been

disposed of as provided herein; provided that in discharge

cases any discharged employe shall have the right to ap-

peal to the chapel the fairness of any reason given for his

discharge.

. * * > *

2. Contract Between The Plain Dealer Publishing Co.

and Mailers’ Union No. 12 (In Part)

ARTICLE I—Recognition and Jurisdiction

* * - * *

Section 12. The Union agrees, upon the request of

the Employers, at all times to use all means within its

power to provide a sufficient number of employes neces-

sary to perform all work within the jurisdiction of the

Union.

> > > >

ARTICLE VII—Conciliation and Arbitration

Section 71. WITNESSETH: That the parties hereto,

being desirous of maintaining harmonious relations be-

tween emplovers and employes, hereby mutually agree

to settie all differences that may arise by conciliation,

and if conciliation fails, by arbitration. This applies only

to differences arising during the life of this contract, and

not to the renewal of this contract.

a bee

OE a AE OP Un ee om ew 4 ot

47

Section 72. A Joint Standing Committee shall be ap-

pointed, consisting of two representatives of the Employer

and two representatives of the Union. These representa-

tives shall be appointed by their respective organizations.

All questions that may arise as to the construction to

be placed on any part of this Agreement, and any contro-

versy over discharge of help shall be referred to said

committee.

Section 73. This contract alone shall govern relations

between the parties on all subjects concerning which any

provision is made in this contract, and all disputes involving

any such subjects shall be determined in accordance with

the conciliation provisions provided for herein.

Section 74. Should either party have a grievance, the

same shall be presented in writing within forty-five (45)

days to the Joint Standing Committee for conciliation;

said committee shall meet to consider said grievance within

five (5) days after filing of same; if an understanding

cannot be reached within ten (10) days after the grievance

has been presented, then the settlement of said grievance

shall be left to the Board of Arbitration.

Section 76 (a). The decision of a majority of this

Board shall be final and binding upon ali parties. If any

controversy arises as to interpretation or enforcement of

this Agreement, the conditions prevailing prior to the dis-

pute shall be maintained until the controversy has been

disposed of as provided herein; provided that in discharge

cases, any discharged employe shall have the right to ap-

peal to the chapel the fairness of any reason given for

his discharge. |

48

ARTICLE VIII—General Provisions

Section 82. No employee covered by this contract

shall be required to cross a picket line established because

of an authorized strike by any other subordinate union

of the International Typographical Union.

3. Contract Between The Plain Dealer Publishing Co.

and Cleveland Newspaper Printing Pressmen’s

Union No. 5 (In Part)

ARTICLE III

Foremen, Their Authority and Hiring

> * * * *

Section 38 ( ). The Employers desire to have a relia-

ble source for obtaining their pressmen employees and the

Union represents that it has available for employment

persons with the necessary experience and qualifications

to perform work of the type and character covered by

this agreement in accordance with the terms thereof and

hereby agree to supply such competent pressmen.

> * * * *

ARTICLE X

Conciliation and Arbitration

Section 101. In the event of any difference or dispute

arising as to the interpretation or the operation of this

Agreement which cannot be settled between the Employer

or Employers in question and the employee or employees,

such differences or disputes shall be submitted to a Joint

Standing Committee hereby created.

* * * * *

A te OAR i Nm

49

Section 104. * * * In the event the Joint Standing

Committee, after making an earnest effort to reach agree-

ment, fails to agree upon a settlement, then either party,

within the next succeeding fifteen (15) days, may serve

upon the other party a written “notice of intention to

submit the issue to arbitration”, provided, however, that

if there is no Union meeting held within such fifteen

(15) day period, the Union may serve such written notice

within seven (7) days after the first Union meeting held

following the expiration of such fifteen (15) day period,

but in no event more than ninety (90) days from the

expiration of such fifteen (15) day period. Within fifteen

(15) days from the notice of intention, the dispute shall

proceed to consideration and determination before an Ar-

bitration Board, unless the parties mutually agree, in writ-

ing, to extend the time.

Section 106. The determination of the Arbitration

Board, as agreed to by the majority thereof, as well as

any decision of the Joint Standing Committee settling the

grievance before going to arbitration, shall be final and

binding.

Section 107. It is understood that during the pendence

of the foregoing procedure and arbitration, work shall

proceed without interruption.

50

4. Contract Between The Plain Dealer Publishing Co.

and Cleveland Stereotypers Union No. 22 (In Part)

ARTICLE III—Foremen and Their Authority

.s ¢ @¢ ae

Section 36 (a). The Publisher desires to have a re-

liable source for obtaining stereotype employees and the

Union represents that it has available for employment

persons with the necessary experience and qualifications

to perform work of the type and character covered by

this agreement in accordance with the terms thereof and

hereby agree to supply such competent stereotypers.

ARTICLE X—Arbitr ition

Section 101. Any dispute or complaint arising out

of the interpretation or application of the terms of this

agreement remaining unsettled after having been subjected

to the grievance procedure set forth above, may be sub-

mitted to arbitration as provided for herein.

= * * * *

Section 104. The decision of the arbitrator shall be

final and binding on all the parties, the Publisher, the

Union and the employees.

Section 105. During the pendency of the foregoing

procedure and arbitration, including specifically the griev-

ance procedure, work as scheduled by the Publisher shall

proceed without interruption; moreover, it is expressly

understood that the arbitrator may in his discretion deter-

mine upon a remedy which includes making whole either

party or employees for any inconvenience or disadvantage

suffered by reason of the action, practice, or conduct com-

plained of in the grievance, as well as awards to the

parties or employees calculated to discourage such im-

proper conduct, action or practice.