Stroehmann Bros. Co. v. LOCAL# 427 OF CONF. WKRS. INT. U., Civ. No. 70-330.

• Decision Date: 25 July 1970
• Docket Number: Civ. No. 70-330.
• Citation: 315 F. Supp. 647
• Parties: STROEHMANN BROTHERS COMPANY, 1685 Four Mile Drive, Williamsport, Pennsylvania, Plaintiff, v. LOCAL #427 OF the CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA and Its Officers, Agents, Servants, Representatives or Employees, Individually and Collectively and any Person Acting in Concert With Them or Otherwise Participating in Their Aid, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

315 F. Supp. 647

STROEHMANN BROTHERS COMPANY, 1685 Four Mile Drive, Williamsport, Pennsylvania, Plaintiff, v. LOCAL #427 OF the CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA and Its Officers, Agents, Servants, Representatives or Employees, Individually and Collectively and any Person Acting in Concert With Them or Otherwise Participating in Their Aid, Defendant.

Civ. No. 70-330.

United States District Court, M. D. Pennsylvania.

July 25, 1970.

McNerney, Page, Vanderlin & Hall, Charles J. McKelvey, Williamsport, Pa., for plaintiff.

Sidney A. Simon, Williamsport, Pa., and VanArkel & Kaiser, Ronald Rosenberg, Washington, D. C., for defendant.

MEMORANDUM

HERMAN, District Judge.

Before the court is a motion for a preliminary injunction filed on behalf of the Stroehmann Brothers Company to enjoin the defendant, its officers, agents, servants, representatives, or employees from directly, or indirectly, engaging, enticing, or participating in a strike, interruption of work, or partial or complete walkout at plaintiff's plant in Williamsport, Pennsylvania, in violation of Article XIII of their existing collective bargaining agreement dated October 1, 1968.¹

The within matter had been originally instituted in the Court of Common Pleas of Lycoming County, wherein a complaint in equity was filed on July 7, 1970, seeking a preliminary injunction subsequent to a hearing enjoining the alleged conduct set forth above. The Honorable Thomas Wood, Judge of the Court of Common Pleas of Lycoming County, Commonwealth of Pennsylvania, issued a temporary injunction, which by its terms, was effective for five (5) days pending a hearing to ascertain whether or not the temporary injunction should be continued.

On July 7, 1970, Local #427 of the Bakery and Confectionery Workers International Union of America, AFL-CIO (hereinafter Local 427) filed a petition for removal with the District Court claiming that the United States District Court has jurisdiction of such a matter under § 301 of the Labor Management Act of 1947, and under the "Federal Question" provisions of 28 U.S.C. § 1331. The requisite procedures as set forth in 28 U.S.C. § 1446 were followed, and the court acquired jurisdiction.

Plaintiff Stroehmann Brothers, petitioner herein, filed a motion to remand and a motion for a preliminary injunction. A full hearing was held on July 13, 1970, wherein the court assumed jurisdiction, as dictated by Avco-Corporation v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

At the hearing both parties agreed that as of that moment no picketing was taking place at the Williamsport Plant, and Joseph Malkiewicz, International Representative of the Confectionery Workers International of America, represented to the court that from the International level, at the present time, "there were no proposals at all for continuing the picketing."

Upon the representation that picketing had terminated at the Williamsport Plant, and that there were no plans to continue picketing, the court denied the motion for a preliminary injunction on grounds that no equitable basis existed for issuance, and retained jurisdiction generally.

On July 18, 1970, picketing at the Williamsport Plant resumed and Stroehmann Brothers again sought a preliminary injunction. A hearing was held on July 20, 1970, at which time testimony was presented to the court comparable to that presented on July 13, 1970, with the exception that picketing had resumed and there were no representations offered that the picketing would be discontinued, or that the picketing would not continue in the future.

As it appears from the testimony elicited at the two hearings, Stroehmann Brothers is a Pennsylvania Corporation engaged in the manufacturing and production of baked goods, with twelve separate plants throughout the United States. The principal office of Stroehmann Brothers (hereinafter Stroehmann) is located in Williamsport, Pennsylvania, which is also the situs of two of their plants, a roll plant and a cake plant. In addition, Stroehmann operates a plant at Cumberland, Maryland.

The employees at the Cumberland, Maryland, Plant are represented by Local #246 of the Confectionery Workers International Union of America, the same International Union of defendants herein. Presently, Local #246 is engaged in an economic strike over wages.

On July 7, 1970, at 1:30 a. m., pickets representing Local #246 appeared at the Stroehmann Roll Plant in Williamsport and patroled across the main employee entrance with placards stating:

"STROEHMANN BROTHERS COMPANY ON STRIKE

BAKERS' UNION

LOCAL 246 AFL-CIO

CUMBERLAND, MARYLAND"

The patroling continued from approximately 1:30 a. m. until 10:00 a. m., at which time the pickets left after the serving of a temporary injunction as issued by the Court of Common Pleas of Lycoming County.

Approximately 25 Roll Plant employees refused to cross, or honored Local 246's picket and thereby failed to report for their scheduled work; whereas, approximately 60 employees were scheduled.

The picketing was resumed by Local 246 at the Williamsport Roll Plant subsequent to the hearing held on July 13, 1970, and the court's assumption of jurisdiction on or about July 18, 1970. Again, approximately 25 employees honored and continued to honor the picket. Production of sweet rolls and soft rolls have been cut back approximately 50% and 30%, respectively. Testimony has been offered that the Williamsport Roll Plant produces all of Stroehmann's sweet roll products for all the plants, and approximately 80% of its soft roll production.

Additional testimony was offered that Malkiewicz, the International Representative, and Lesko, the Business Agent of #427, commingled with the employees who refused to cross the picket line on July 15, 1970.

Stroehmann contends that the strike, or refusal to report for work, is in material breach of the no-strike clause (Article XIII). Furthermore, Stroehmann contends that the breach of the no-strike clause is an arbitrable grievance which the parties are contractually bound to arbitrate and which Stroehmann is willing to arbitrate as a condition for issuance of the preliminary injunction; and that an injunction is warranted under ordinary principles of equity.

Local 427 argues that plaintiff has failed to show that defendant Local 427 breached the contract; that the Norris-LaGuardia Act prohibits issuance of the preliminary injunction sought here; and that the dispute here is not over an arbitrable grievance.

The issue of whether or not a preliminary injunction may be granted in an action under § 301(a) is now controlled by The Boys' Market, Inc., v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, 1970 (hereinafter Boys' Market) which adopted the principles set forth in the dissenting opinion of Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962) (hereinafter Sinclair).

As set forth in the dissent in Sinclair and reiterated in Boys' Market, a "District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity 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 to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the...