H & M Cake Box, Inc. v. BAKERY & CON. WKRS. INT. U. OF A., NO. 45

• Decision Date: 28 January 1972
• Docket Number: No. 71-1322.,71-1322.
• Citation: 454 F.2d 716
• Parties: H & M CAKE BOX, INC., Plaintiff-Appellant, v. BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL NO. 45, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

454 F.2d 716 (1972)

H & M CAKE BOX, INC., Plaintiff-Appellant, v. BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL NO. 45, Defendant-Appellee.

No. 71-1322.

United States Court of Appeals, First Circuit.

Heard January 3, 1972.

Decided January 28, 1972.

Frederick T. Golder, Boston, Mass., for appellant.

Warren H. Pyle, Boston, Mass., with whom Angoff, Goldman, Manning & Pyle, Boston, Mass., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE, Circuit Judge, and WYZANSKI, Senior District Judge.^*

McENTEE, Circuit Judge.

This is an appeal from the granting of summary judgment against the company, appellant herein, in an action brought by it under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970). The company alleged that the appellee union had breached its collective bargaining agreement by calling a strike on June 25, 1969.

The facts most favorable to the company indicate that on or about June 25, 1969, a dispute arose during a telephone conversation between the company's treasurer, Martin Myerow, and the union business agent, George Newman, over the union's right to substitute one worker for another at the company's bakery. The business agent is alleged to have threatened a strike if the company did not acceed to his demands. The argument continued when Newman appeared personally at the company's plant later the same day and ordered several employees to leave their jobs immediately. Myerow suggested arbitration, to which Newman is alleged to have replied, "Arbitrate profanity, I'll fix you good." Union employees did not appear for the night shift and thereafter the union was on strike.

As a result of this strike it was necessary for the officers of the company to work sixteen hours per day, seven days a week, to retain their business. The company's bargaining agent¹ arranged for an arbitration proceeding to be held on June 30. The company, however, refused to participate because the union was on strike and because the officers of the company were too busy to leave the bakery. On July 11 an attorney for the company wrote to the union stating, "that as of May 29, 1969 the H & M Cake Box, Inc. . . . was no longer a union shop. If any money is owed to the union up until that time, please advise us of the amount and where it should be paid." The company appears to have been in arrears in its payments to the union's health and welfare fund.²

In granting summary judgment for the union the district court ruled that: (1) the company's refusal to arbitrate prevents it from complaining about the strike; (2) the letter by the company's attorney acted as a repudiation of the contract; and (3) the contract requires arbitration of violations of the no-strike clause.

Addressing ourselves initially to the district court's third point, we find that the contract does not necessarily require arbitration of breaches of the no-strike agreement. Compare Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), with Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). Article XIV of the contract states:

"ARBITRATION — GRIEVANCES

"It is hereby agreed that there shall be no strikes unless for those reasons as may be expressed herein or lockout during the term of this agreement, since it provides for the amicable settlement by arbitration of grievances and disputes arising under it."

Very possibly, unlike the contract in Drake Bakeries, here the no-strike...