Plain Dealer Pub. Co. v. Cleveland Typographical Union No. 53

• Decision Date: 15 August 1975
• Docket Number: No. 75-1219,75-1219
• Citation: 520 F.2d 1220
• Parties: 90 L.R.R.M. (BNA) 2110, 77 Lab.Cas. P 11,065 PLAIN DEALER PUBLISHING COMPANY, Plaintiff-Appellant, v. CLEVELAND TYPOGRAPHICAL UNION # 53 et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1220

520 F.2d 1220

90 L.R.R.M. (BNA) 2110, 77 Lab.Cas. P 11,065

PLAIN DEALER PUBLISHING COMPANY, Plaintiff-Appellant, v. CLEVELAND TYPOGRAPHICAL UNION # 53 et al., Defendants-Appellees.

No. 75-1219.

United States Court of Appeals, Sixth Circuit.

Aug. 15, 1975.

James P. Garner, Elliott S. Azoff, Victor Strimbu, Jr., Don H. Pace, Baker, Hostetler & Patterson, Cleveland, Ohio, for plaintiff-appellant.

Norton N. Newborn, Melvin S. Schwarzwald, Metzenbaum, Gaines & Stern Co., LPA, Mark A. Rock, James L. Oakar, Cleveland, Ohio, for defendants-appellees.

Before PECK, McCREE and MILLER, Circuit Judges.

PER CURIAM.

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, 90 S.Ct. 1583, 26 L.Ed.2d 199 (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 defendant unions did not cross the Guild picket lines. Mass picketing and incidents of violence attended the Guild 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 Plain 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 denying the motion for injunctive relief, stated that the narrowly 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, United States Court of Appeals for the Second Circuit considered the issue before us. In Buffalo Forge Co. v. United Steelworkers of America, 517 F.2d 1207 (1975), it determined that when members of a union not directly in conflict with an employer conduct a work stoppage out of respect for another interested union's lawful picket line, and not because of a desire to avoid arbitration 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.

the denial of injunctive relief accords with the national labor relations policy expressed in the Norris-LaGuardia Act.

APPENDIX

_______ea

MEMORANDUM

(Filed November 8, 1974)

BEN C. 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 (hereinafter Stereotypers), and Cleveland Mailers' Union, No. 12 (hereinafter Mailers). The complaint alleged the existence of continuing collective bargaining agreements between plaintiff and each of the said defendants, which contracts contained clauses obligating the parties thereto "to settle all differences that may arise between the parties" by conciliation or grievance procedures "and final 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 arbitrable under the contracts, but that the defendants, nevertheless, "have caused a work stoppage in violation of the Agreement".

The relief sought under the complaint was:

1) A preliminary injunction enjoining the work stoppage.

2) A decree that the collective bargaining agreements preclude a work stoppage during their terms and that the disputes alleged were subject to arbitration 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 stoppage.

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.

There was presented to the Court, with the complaint, a motion for temporary restraining order. Such motion sought an order upon defendants prohibiting the continuing of "their unauthorized strike now existing at the Company's plant". When counsel for plaintiff appeared with that request, counsel for defendant Printers was also present. 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 Printers 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. Plaintiff's counsel then advised that within the hour an order had been obtained in the Common Pleas Court of Cuyahoga County limiting the number of pickets permitted and prohibiting any interference with rights of others. He conceded, 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 plaintiff's counsel, and the same was convened at about 3:00 p. m. At that time plaintiff filed an amended complaint, adding as a party defendant the Cleveland Newspaper Printing Pressmen's Union No. 5 (hereinafter Pressmen) and the officers thereof in their official capacities. The allegations of the amended complaint as against the Pressmen were essentially the same as against the other defendants. A further motion for temporary restraining order against all defendants was presented. That proposed order was similar to the original request for temporary restraining order, but contained an added clause that:

. . . nothing contained herein shall be construed as requiring any individual employee member of the defendant 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.

Plaintiff'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 defendants 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 Monday, 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 before the Court. Such decision was reached based upon 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 criteria 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 injunction is proper have been set forth in North Avondale Neighborhood Association v. Cincinnati Metropolitan Housing 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 factors 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...