Napa Pittsburgh, Inc. v. Automotive Chauffeurs, Parts and Garage Employees, Local Union No. 926, Etal.

OPINION OF THE COURT

WEIS, Circuit Judge.

This is an appeal from an order enjoining appellant Automotive Chauffeurs, Parts and Garage Employees, Local Union No. 926 (Local 926) from refusing to cross a picket line maintained by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110 (Local 110). The question presented is whether the district court erred in issuing a preliminary injunction against Local 926 and in ordering arbitration of the differences between the parties in accordance with the provision of the collective bargaining agreement. We conclude that the action of the trial court was proper and we affirm.¹

Plaintiff-appellee, NAPA Pittsburgh, Inc., is a corporation with its executive offices and principal place of business on Hamilton Avenue in Pittsburgh, Pennsylvania. Appellant, Local 926, represents approximately 54 of 110 employees at the Hamilton Avenue facility for collective bargaining purposes. A work stoppage occurred at this location as a result of the efforts of a second unr ion, Local 110, to represent the employees of a company located in Altoona, Pennsylvania, doing business under the name of NAPA Altoona, Inc.² In order to promote its endeavors, Local 110 called a strike at the Altoona facility and began picketing there. For reasons that do not appear in the record, they decided to extend the picketing to the NAPA Pittsburgh building on Hamilton Avenue.

When this occurred, appellant, Local 926, informed its Hamilton Avenue members that they could refuse to cross Local 110’s picket line. The union based this position on Article XIII of its collective bargaining agreement with ap-pellee, which provides:

“It shall not be a violation of this Agreement ... in the event an employee refuses to enter upon any property involved in a primary labor dispute or refuses to go through or work behind any primary picket lines at the Employer’s [NAPA Pittsburgh’s] place or places of business.”

As a result of this stand, a work stoppage occurred at the Hamilton Avenue facility.

NAPA Pittsburgh’s response was to seek injunctive relief from the district court. The company argued that a question existed as to whether the picket line that Local 926 chose to honor was “primary” within the meaning of Article XIII, and contended that this issue was subject to’ the mandatory arbitration and no strike provisions contained in the collective bargaining agreement. The circumstances thus were alleged to bring the case within the Boys Markets exception to the anti-injunction provisions of the Norris-LaGuardia Act.³

After a hearing, the district court found that the employees’ right to honor a picket line at the Hamilton Avenue plant was limited by the terms of the collective bargaining agreement and that the arbitration clause provided the compulsory method of resolving a dispute over the exercise of the privilege. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) was held to be applicable, and a preliminary injunction was issued ordering that the work stoppage be ended and the parties begin arbitration of their differences.

In cases of this nature we start with the basic premise that the law favors arbitration of labor disputes. That there can be no doubt about this is clear from the pronouncements of the Supreme Court in the Steelworkers’ Trilogy — United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The most recent reaffirmation of the policy may be found in Gateway Coal Co. v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

Boys Markets, Inc. v. Retail Clerks Union, Local 770, supra, holds in essence that where a matter has been made arbitrable by the terms of a contract between the union and the company, an injunction may be issued to enforce this method of settling controversies between the parties. In determining whether a matter is arbitrable under the contract, any doubt should be resolved in favor of arbitration. United Steelworkers v. Warrior & Gulf Navigation, supra.

Here, the parties agreed to arbitrate “. . . any and all grievances, complaints or disputes arising between the employer and the union . . . .” The collective bargaining agreement also provided that it would not be a violation of the contract if an employee honored a primary picket line. Obviously then, it would be a breach of the agreement if the employees honored a picket line which was not primary.

The contractual provisions are clear but the parties disagree as to whether the picket line involved in this case was “primary.” The union says that it was; the company denied it.⁴ Both contend vigorously that they are correct. This is clearly a “dispute” and hence covered by the contractual requirement of arbitration.

If it should be determined that a “primary” picket line was present at the plaintiff’s plant, then unquestionably Local 926 could refuse to cross. If it was “secondary,” then the company had the right to insist that the union honor its no strike agreement.

The union relies on the holdings of Amstar Corp. v. Amalgamated Meat Cutters & Butcher Workmen, 468 F.2d 1372 (5th Cir. 1972); General Cable Corp. v. International Brotherhood of Electrical Workers, 331 F.Supp. 478 (D.C.Md.1971); and Simplex Wire and Cable Co. v. Local 2208 of the International Brotherhood of Electrical Workers, 314 F.Supp. 885 (D.C.N.H.1970), but these opinions are clearly distinguishable. In none of the cited cases was there a contractual provision restricting the union’s right to honor picket lines of other labor organizations. Indeed, the district court in the Simplex case, supra, specifically noted the omission of any reference to the subject in the contract between the parties in that case.

By way of contrast, the Court of Appeals in Monongahela Power Co. v. IBEW, 484 F.2d 1209 (4th Cir. 1973), held that an injunction could be issued to enforce a no strike clause in a contract even though it had no provision applicable to honoring a picket line of another union. In a later case, Pilot Freight Carriers v. Teamsters, 497 F.2d 311 (4th Cir. 1974), the same court sustained an injunction against a union honoring a picket line where the contract contained language similar to the one sub judice, and held that the matter was arbitrable.

We hold that determination of whether the picket line should be classified as primary or secondary was arbitrable under the terms of the contract and pending resolution of the question Local 926 was properly enjoined from causing a work cessation. Requiring arbitration does not nullify the union’s right to honor a primary picket line, but only suspends the exercise of the right until its existence is established by an arbitrator’s decision. Undue delay should not be permitted since the district court has ample authority in the exercise of its equitable powers to see to it that arbitration proceeds promptly and expeditiously.

The order of the district court will be affirmed.

1 . After the appeal in this case was filed, ap-pellee submitted a motion to dismiss that suggested the issue had become moot since Local 110 was no longer maintaining a picket line. This claim is without merit. Ap-pellee posted a $5,000 bond to indemnify appellant for attorneys’ fees and any injury suffered in the event it would be determined that the injunction was improvidently granted. Since appellant’s right to indemnification depends upon a decision on the merits, the case is not moot. Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964).

2 . The district court never determined the exact relationship between plaintiff-appellee NAPA Pittsburgh and NAPA Altoona. However, appellee concedes that NAPA Pittsburgh liad “potential control” of NAPA Altoona (Brief of Appellee at 3) and at the hearing before the district court held September 7, 1973 appellee’s attorney indicated his belief that the two companies had interlocking directorships and, in most cases, common officers (Appendix at 43a). Appellant asserts that the two are in fact a single company with headquarters at Hamilton Avenue in Pittsburgh. Clarification of this relationship would be important to determine the question of whether the picket line was primary or secondary.

3 . The company here concedes that the NLRB has authority to secure an injunction against secondary picketing but contends that this does not deprive the employer of the right to seek an injunction under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. We agree that this is a correct statement of the law. See Arnold v. Carpenters District Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (U.S.1974).

4 . In his memorandum of September 11, 1973, the district judge wrote:

“The testimony showed that Local 926 instructed its members that it would not be a violation of its contract if any of the members refused to enter upon the premises at 6550 Hamilton Avenue because this was a primary picket line and the contract specifically provided it would not be a cause for discharge or disciplinary action for an employee to refuse to enter the premises where there was a primary picket line.” (Appendix at 49a) * * * *

“The alleged dispute in the instant case concerns the honoring of another union’s picket line.” (Appendix at 51a)

During the hearing before the district court, counsel for the union also made clear that he was contending that the picket line was primary. (Appendix at 42a-45a)

The record in the district court makes clear that the disagreement between the parties revolves around the pivotal issue of whether there was a primary picket line. See Boys Markets v. Retail Clerks Union, Local 770, supra at 237-38, 254, 90 S.Ct. 1583, 26 L.Ed.2d 199.