Briggs & Stratton Corp. v. Local 232, Intern. Union, Allied Indus. Workers of America (AFL-CIO)

• Decision Date: 28 December 1994
• Docket Number: AFL-CIO,Nos. 93-3868,s. 93-3868
• Citation: 36 F.3d 712
• Parties: 147 L.R.R.M. (BNA) 2531, 148 L.R.R.M. (BNA) 2097, 129 Lab.Cas. P 11,200 BRIGGS & STRATTON CORPORATION, Plaintiff-Appellee, v. LOCAL 232, INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA (), et al., Defendants-Appellants. & 94-1484.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 712

36 F.3d 712

147 L.R.R.M. (BNA) 2531, 148 L.R.R.M. (BNA) 2097,

129 Lab.Cas. P 11,200

BRIGGS & STRATTON CORPORATION, Plaintiff-Appellee, v. LOCAL 232, INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA (AFL-CIO), et al., Defendants-Appellants.

Nos. 93-3868 & 94-1484.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1994.

Decided Oct. 3, 1994.

Order Denying Rehearing and Suggestion of Rehearing

En Banc Dec. 28, 1994.

Kevin J. Kinney, Thomas P. Krukowski (argued), John D. Finerty, Jr., Krukowski & Costello, Milwaukee, WI, for plaintiff-appellee.

Kenneth R. Loebel (argued), Frederick Perillo, Scott D. Soldon, Previant, Goldberg, Uelmen, Gratz, Miller & Bruegeman, Milwaukee, WI, for defendants-appellants.

Before CUMMINGS, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Briggs & Stratton Corporation has a collective bargaining agreement with Local 232 of the Paperworkers Union. The workers promised that during its term they would not participate in "any concerted slow down, strike, work stoppage or other concerted interruptions of Company operations relative to any dispute amenable to the arbitration provisions of the labor agreement". In August 1993 Briggs & Stratton reorganized its Large Engine Division. Local 232 and its parent international (collectively, "the union") believed that the changes, which altered the way in which seniority could be exercised, violated the terms of the collective bargaining agreement and called on its members to "work to rule"--that is, to enforce every picayune rule found in the contract and the plant's operating procedures. It aimed to place economic pressure on the employer. Local 232 urged its members to reject overtime assignments, and the faithful shunned and put other social pressure on workers who displayed a lack of enthusiasm for the job action. The union also filed a grievance and took the dispute about the new organization to arbitration.

Contending that the campaign was a "concerted slow down" forbidden by the agreement, the employer filed this suit under Sec. 301 of the Labor-Management Relations Act, 29 U.S.C. Sec. 185, seeking an injunction requiring its workers to resume work as usual. Although Sec. 1 of the Norris-LaGuardia Act, 29 U.S.C. Sec. 101, forbids injunctions in labor disputes, the Supreme Court held in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), that if the union promises not to strike over an arbitrable dispute, the court may enforce that promise with an injunction while arbitration proceeds. See also Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976) (if the dispute is not arbitrable, no injunction may issue even if the agreement contains a no-strike clause). The "work to rule" campaign ended on September 23, two weeks before the suit got under way. By the time the district court took evidence, things were humming again at the plant. The court brushed aside a suggestion that this made the request for an injunction moot (voluntary cessation generally does not moot a dispute) and did not discuss the question whether Boys Markets authorizes an injunction after a strike or slowdown has ended. After finding that the union's campaign was a "concerted slow down" within the meaning of the agreement, the court issued an injunction pending the outcome of the arbitration. The union appealed.

Arbitrator Robert J. Mueller issued his decision on March 29, 1994, shortly before the oral argument of the appeal. He dismissed the union's grievance after concluding that Briggs & Stratton had not violated the collective bargaining agreement in reorganizing the Large Engine Division. The injunction lapsed the same day. "When an order expires by its own terms, there is nothing to review." Certified Grocers of Illinois, Inc. v. Produce Union, 816 F.2d 329, 331 (7th Cir.1987). The dispute cannot be characterized as one capable of repetition but evading review, because damages remain in issue--the union wants to collect under an injunction bond (although it is hard to see what its injury might be, given its representation that the campaign was over before the suit began). See Henco, Inc. v. Brown, 904 F.2d 11, 13-14 (7th Cir.1990). The appeal from the injunction is dismissed as moot.

Briggs & Stratton, too, wants damages. It contends that it lost production before the campaign ended on September 23. The union asked the district court to dismiss the claim under Fed.R.Civ.P. 12(b)(6) for failure to arbitrate or, at a minimum, to order the employer to present its demand to an arbitrator and to stay proceedings in the interim. The district court denied both requests on February 15, 1994, ruling that the collective bargaining agreement "is not susceptible to a construction that the company is bound to arbitrate its claim for damages against the union for breach of the no-strike clause." From this decision the union took a second appeal, whose interlocutory nature presents an obvious question of appellate jurisdiction. To the extent the union wants us to review the district court's failure to dismiss the case outright, it hasn't a leg to stand on. Goetz v. Cappelen, 946 F.2d 511, 514 (7th Cir.1991). To the extent the union seeks review of the district court's failure to stay proceedings in favor of arbitration, things are murkier.

After Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988), junked the Enelow- Ettelson doctrine, the courts of appeals divided on the question whether a decision refusing to stay litigation in favor of arbitration could be appealed under 28 U.S.C. Sec. 1292(a)(1). Several circuits answered yes on the theory that proceeding with the litigation amounted to an injunction against arbitration. E.g., Kansas Gas & Electric Co. v. Westinghouse Electric Corp., 861 F.2d 420, 422 (4th Cir.1988); Nordin v. Nutri/System, Inc., 897 F.2d 339, 341-42 (8th Cir.1990). See also Abernathy v. Southern California Edison Co., 885 F.2d 525, 527-28 (9th Cir.1989) (taking jurisdiction of an appeal from a stay pending arbitration while reserving question whether the denial of a stay would be appealable). Others saw no injunction in proceeding with a suit seeking monetary relief. Queipo v. Prudential Bache Securities, Inc., 867 F.2d 721, 722 (1st Cir.1989); Zosky v. Boyer, 856 F.2d 554, 560-61 (3d Cir.1988); Jolley v. Paine Webber Jackson & Curtis, Inc., 864 F.2d 402, 403 (5th Cir.1989); Administrative Management Services, Ltd. v. Royal American Managers, Inc., 854 F.2d 1272, 1278-79 (11th Cir.1988). Searching for an injunction in orders controlling the progress of damages litigation has an artificial quality. Every decision to proceed or wait imposes costs, but none resolves the merits. If potential costs of procedural decisions make for appellate jurisdiction, then many interlocutory orders are appealable--a step the Supreme Court has told us to resist. See Digital Equipment Corp. v. Desktop Direct, Inc., --- U.S. ----, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Cf. In re Springfield, 818 F.2d 565 (7th Cir.1987) (order that imposes costs but does not affect ultimate disposition of the merits is not appealable as an "injunction"). It is, after all, established that the costs of litigation are not "irreparable injury." Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988); FTC v. Standard Oil Co., 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040-41, 39 L.Ed.2d 123 (1974); Petroleum Exploration, Inc. v. Public Service Commission, 304 U.S. 209, 222, 58 S.Ct. 834, 841, 82 L.Ed. 1294 (1938). If a district court errs in conducting a lawsuit when a contract calls for arbitration, that mistake may be corrected on appeal from a final decision; proceeding with the litigation therefore is not appealable as a "collateral order" under the approach of Digital Equipment and its predecessors.

Congress eliminated the significance of this issue for most purposes by adding a new section to the Arbitration Act, spelling out which interlocutory orders concerning arbitration are appealable and which are not. 9 U.S.C. Sec. 16. Yet Sec. 1 of the Arbitration Act, 9 U.S.C. Sec. 1, excludes from its coverage--and therefore from the jurisdictional rules of Sec. 16--"contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Several of the circuits have concluded that this language places collective bargaining agreements outside the Arbitration Act. E.g., Street, Electric Ry. & Motor Coach Employees v. Pennsylvania Greyhound Lines, Inc., 192 F.2d 310 (3d Cir.1951); Electrical Workers v. Miller Metal Products, Inc., 215 F.2d 221 (4th Cir.1954). In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n. 2, 111 S.Ct. 1647, 1651 n. 2, 114 L.Ed.2d 26 (1991), the Supreme Court noticed the issue but left it unresolved. If collective bargaining agreements are indeed excluded by Sec. 1, then courts must continue to wrestle in labor cases with questions of appellate jurisdiction under Sec. 1292. E.g., Tejidos de Coamo, Inc. v. ILGWU, 22 F.3d 8 (1st Cir.1994). As it happens, however, our circuit is among the minority that has limited Sec. 1 to the transportation industries and therefore applies the Arbitration Act to most collective bargaining agreements. Pietro Scalzitti Co. v. Operating Engineers, 351 F.2d 576, 579-80 (7th Cir.1965). Neither side has asked us to revisit Pietro Scalzitti, so we turn to Sec. 16 of the Arbitration Act to decide whether we have appellate jurisdiction.

Section 16(a) provides:

An appeal may be taken from--

(1) an order--

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application...