Firestone Tire & Rubber Co. v. INTERNATIONAL UNION, ETC.

• Decision Date: 13 April 1973
• Docket Number: No. 72-2189.,72-2189.
• Citation: 476 F.2d 603
• Parties: The FIRESTONE TIRE & RUBBER COMPANY, Plaintiff-Appellee, v. INTERNATIONAL UNION OF the UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.2d 603 (1973)

The FIRESTONE TIRE & RUBBER COMPANY, Plaintiff-Appellee, v. INTERNATIONAL UNION OF the UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, et al., Defendants-Appellants.

No. 72-2189.

United States Court of Appeals. Fifth Circuit.

April 13, 1973.

George E. Barrett, Nashville, Tenn., George Vasko, Gen. Counsel, United Rubber Workers Int'l, Akron, Ohio, for defendants-appellants.

Robert L. Thompson, George B. Smith, Atlanta, Ga., S. B. Lippitt, Jr., Albany, Ga., Walter B. Connolly, Jr., Akron, Ohio, for plaintiff-appellee.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

PER CURIAM:

This is an appeal from the entry of an order denying a stay pending arbitration and enjoining the defendant-union from pursuing any actions or proceedings arising out of the contract breach at issue in this lawsuit. We affirm.

This action was initiated by plaintiff-appellee, Firestone Tire & Rubber Company Firestone against defendants-appellants, the International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 887 of that Union, and several individuals. In the suit Firestone sought injunctive relief and damages for violation of the no-strike provision contained in the collective bargaining agreement. After considerable procedural jockeying,¹ the Union filed a motion in the court below on March 29, 1972, seeking a stay of the court proceedings pending arbitration. After hearing argument on the motion, the district court found that the collective bargaining agreement did not contemplate arbitration of no-strike clause breaches. In an order dated April 11, 1972, the district court denied the stay pending arbitration and enjoined the Union:

"from commencing or continuing, or causing the commencement or continuation, either directly or indirectly, of any action, suit, proceeding, case, controversy, or other form of litigation or dispute against the Plaintiff herein (including without in any way limiting the generality of the foregoing, the action presently pending as Civil Action No. C72-196 in the United States District Court for the Northern District of Ohio), which are based upon, arise out of or are related to the transactions or occurrences which are the subject matter of the Plaintiff\'s complaint herein; provided, however, that the foregoing shall not be deemed or construed as restricting, prejudicing or adversely affecting in any manner the rights of any or all of the Defendants herein to assert in this proceeding any defense or counterclaim that may be available to any or all of such Defendants to or against the claims asserted by the Plaintiff herein."

It is from the entry of the above order that the Union brings this appeal.²

As a threshold matter, Firestone argues that (a) the order appealed from is non-appealable, and (b) the case is moot. It is true that an order denying a stay pending arbitration is non-appealable where the underlying suit seeks equitable relief. See Wallace v. Norman Industries, Inc., 5 Cir. 1972, 467 F.2d 824; Southeastern Enameling Corp. v. General Bronze Corp., 5 Cir. 1970, 434 F.2d 330; Jackson Brewing Co. v. Clarke, 5 Cir. 1962, 303 F.2d 844; New England Power Co. v. Asiatic Petroleum Co., Inc., 1 Cir. 1972, 456 F.2d 183; J. M. Huber & Co. v. M/V Plym, 4 Cir. 1972, 468 F.2d 166; Buffler v. Electronic Computer Programming Inst., Inc., 6 Cir. 1972, 466 F.2d 694; Standard Chlorine of Del., Inc. v. Leonard, 2 Cir. 1967, 384 F.2d 304; 9 Moore's Federal Practice ¶ 110.20 .4-1. The order appealed from here, however, went beyond merely denying a stay. It enjoined any and all proceedings, including arbitration, that might have been pursued by the Union. An injunctive order of this type is clearly appealable, 28 U.S.C. § 1292(a) (1).

Firestone also challenges the justiciability of this appeal based upon the fact that subsequent to the submission of this appeal on February 6, 1973, the underlying suit went to trial and on March 9, 1973, the United States District Court for the Middle District of Georgia issued a memorandum opinion containing findings of fact and conclusions of law. The Union, seeking reversal, urges us to decide the case. Firestone urges us to find in mootness a refuge from decision. If Judge Bootle's decision, in fact, left nothing of the order appealed from to pass upon, then our jurisdiction would be ousted. We do not sit to render advisory opinions as to the interpretation of collective bargaining agreements. This is not, however, such a case. We are unable to say for a certainty that had we found the district court's injunction erroneously entered the Union would have been remediless. Inasmuch as we are affirming the injunction and thereby leaving the status quo undisturbed, it is unnecessary to catalogue the potential remedies had we reversed and decided the case should never have gone to trial. The justiciability of a controversy should not be dependent upon the result reached. It suffices to say that had we reversed, the possibility for some relief was present and we therefore conclude that the order appealed from is not moot. See Flight Eng. Int'l...