United Steelworkers of America, Afl-cio and James Garry,quinto Delissio, Patrick Mcghen and Ernest A.oblack, on Behalf of Themselves Andothers Similarly Situated, Appellees, v. Fort Pitt Steel Casting, Division of Conval-penn, Inc.,division of Conval Corporation, Appellant, 598 F.2d 1273 (3d Cir. 1979)

These three consolidated appeals result from a longstanding labor dispute between Fort Pitt Steel Casting (Fort Pitt, or the Company) and the United Steelworkers of America (Steelworkers, or the Union). The Steelworkers are the exclusive bargaining agent for over 300 Fort Pitt employees at the Company's plant in McKeesport, Pennsylvania. On June 23, 1978, the district court enjoined Fort Pitt from terminating premium payments necessary to keep its employees' hospital and insurance benefits in effect during a labor dispute¹  (No. 78-2035). Subsequently, on November 9, 1978, the district court held Fort Pitt in civil contempt for stopping the premium payments in violation of the injunction (No. 78-2654). Finally, on December 18, 1978, the court denied Fort Pitt's motion to vacate the injunction²  (No. 79-1019). We affirm the district court's orders in Nos. 78-2035 and 78-2654. However, in No. 79-1019, although we reject Fort Pitt's claim that the injunction be vacated immediately, we remand to the district court to determine whether the Company has permanently terminated all operations at the plant. If the court finds it has done so, then the injunction must be dissolved.

* FACTS

Fort Pitt and the Steelworkers executed a three year collective bargaining Agreement (Agreement) on March 3, 1975. Section 9 of the Agreement is entitled "Adjustment of Grievances." That section provides that the grievance procedures agreed upon by the parties culminate, if necessary, in binding arbitration,³  that they apply to "(a)ny (employee) request or complaint,"⁴  and that "(t)he grievance procedure may be utilized by the Company in processing Company grievances."⁵  Section 19 is entitled "Prior Agreements." Paragraph 140 of that section provides:

The parties agree that in the event of a labor dispute at the end of termination of this Agreement, The Company will continue hospitalization and insurance benefits. At the end of said dispute, The Company will be reimbursed for payments made on behalf of the employees in payment methods mutually agreed on by the parties.

On March 3, 1978, the Agreement having expired and the parties having failed to reach a new contract, the Steelworkers began a lawful work stoppage. Pursuant to paragraph 140 of the 1975 agreement, Fort Pitt continued hospitalization and insurance coverage for its striking employees. As the strike continued, the parties engaged in negotiations for a new contract. In the course of those negotiations, the union denied that it was obligated by paragraph 140 to reimburse Fort Pitt for the benefit payments advanced by the Company during the work stoppage.⁶ 

The Company considered the Union's refusal to commit itself to reimbursement to be in breach of paragraph 140. As a result, in a letter to the Union dated May 16, 1978, Fort Pitt threatened to discontinue making premium payments unless by June 1, 1978, the Union guaranteed in writing to provide repayment.

The Steelworkers declined to furnish the assurances sought by Fort Pitt and, in order to prevent the Company from carrying out its threat, sought injunctive relief in the Court of Common Pleas of Allegheny County.⁷  The case was removed to the United States District Court for the Western District of Pennsylvania and, on June 7, 1978, the court entered a preliminary injunction barring Fort Pitt from:

Failing to advance and to pay, in a timely manner, the premiums necessary to keep (Fort Pitt employees') hospitalization and insurance policies in effect.

On June 23, 1978, the district court issued an opinion and amended order maintaining the preliminary injunction.⁸  452 F. Supp. 886. The court held that whether the Steelworkers were required by paragraph 140 to guarantee reimbursement was an arbitrable issue and that by threatening to cut off premium payments, instead of seeking arbitration, the Company was engaging in "self-help." Because the court found that the Company's self-help remedy tended to undermine the integrity of the arbitral process, and because it concluded that the union members were in danger of immediate and irreparable injury, the court held that a preliminary injunction prohibiting the Company from terminating payments was both lawful and appropriate under the doctrine of Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970).⁹ 

Fort Pitt initially complied with the preliminary injunction and negotiations for a new contract proceeded. Fort Pitt did not, however, seek to grieve the Union's alleged breach of the Agreement. On June 30, the Company proposed that paragraph 140 be changed so that the Company would make premium payments only during the first 30 days of a work stoppage.¹⁰  The Union rejected this proposal. On September 13, the Company submitted a modified proposal which gave the Company the sole right to terminate contributions after the 30 day period had expired.¹¹  This proposal, too, was promptly rebuffed.

Concluding that the parties had bargained to an impasse regarding paragraph 140, the Company unilaterally implemented its September 13 proposal. On October 16, it notified its employees by letter that because more than 30 days had elapsed since the new paragraph 140 had been implemented, it was exercising its right under the new provision to terminate the payments. The Steelworkers subsequently filed a "Motion for Adjudication of Civil Contempt" in the district court. In granting the motion, the court recognized that management is ordinarily entitled to implement its own proposals once an impasse is reached, but concluded that because of the "unique" nature of the old paragraph 140, "the Company ha(d) in effect bargained away its right to institute a unilateral change in this clause following an impasse."

On November 10, with the work stoppage continuing, the Company made a "last and final offer" for a new Agreement. This offer was rejected and on November 29, the Company announced that it was totally and permanently closing the plant effective November 30, 1978. Fort Pitt subsequently moved to vacate the June 7 and June 23 orders, contending that its obligation under paragraph 140 ended with the shut-down of the plant. At a hearing before the district court, the Company claimed that no future production of any kind was planned, that steps were being taken to cancel orders already accepted, and that service by various public utilities at the plant was being cancelled.

The Steelworkers argued that "recent experience" suggested that the Company's announcement was merely a ruse designed to avoid its obligations under paragraph 140. The Union also contended that production work was being performed after November 30 by supervisory personnel who crossed the picket lines at the plant, and that this work would take three to four months to finish.

The district court found that despite the Union's reservations, Fort Pitt did intend "to close the plant once 'winding down' operations are completed." Nevertheless, the court refused to vacate the injunction. Relying on Nolde Bros. v. Local 358, Bakery Workers, 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300 (1977), it ruled that whether Fort Pitt's "obligations under Paragraph 140 terminated upon shutdown of its plant is an arbitrable issue," and that until the issue was resolved, the Company had no grounds to justify vacating the injunction.II

DISCUSSION

The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1976), limits the jurisdiction of federal courts to issue injunctive relief in cases involving labor disputes. Section 4(c) of that Act¹²  provides:

No court of the United States shall have jurisdiction to issue any . . . temporary or permanent injunction In any case involving or growing out of any labor dispute To prohibit any person or persons . . . from . . .

(c) Paying or giving to, or Withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value.

The Company claims that in terminating premium payments, it was "withholding . . . other monies or things of value" from participants in a labor dispute. As a result, it asserts that the June 7 and June 23 injunctions were prohibited by section 4(c). The Steelworkers argue, however, that the injunction was valid under the Boys Markets exception to the Norris-LaGuardia Act.

Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970), involved the question whether section 4(a) of the Norris-LaGuardia Act¹³  deprived a federal court of jurisdiction¹⁴  to enjoin a strike in breach of a no-strike/compulsory arbitration provision in a collective bargaining agreement. The Supreme Court found that unless federal courts were permitted to grant injunctions forbidding unions from striking, unions would be free to ignore the compulsory arbitration clauses of their agreements. Id. at 248-49, 90 S. Ct. 1583. This, in the Court's view, would seriously damage "the congressional policy to promote the peaceful settlement of labor disputes through arbitration." Id. at 241, 90 S. Ct. at 1587.¹⁵  Thus, the Court held that the "core purpose" of the Norris-LaGuardia Act "to foster the growth and viability of labor organizations," Id. at 252, 90 S. Ct. at 1593 "is not sacrificed by the limited use of equitable remedies to further" the federal policy in favor of arbitration. Id. at 253, 90 S. Ct. at 1594.

We agree with the Steelworkers that the Boys Markets exception to the Norris-LaGuardia Act applies in this case and, therefore, that the district court's June 7 and June 23 injunctions were proper. We begin by noting that, although the Supreme Court in Boys Markets enjoined a strike by a union, injunctions may in certain circumstances issue against acts taken or threatened by the employer. See United States Steel Corp. v. United Mine Workers, 534 F.2d 1063, 1077 (3d Cir. 1976). In determining whether such an injunction is appropriate, we must examine: 1) whether the underlying dispute is subject to mandatory arbitration, See Buffalo Forge Co. v. United Steelworkers, 428 U.S 397, 407-08, 96 S. Ct. 3141, 49 L. Ed. 2d 1022 (1976); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1341 (3d Cir. 1976); 2) whether the employer, rather than seeking arbitration of his grievance, is "interfer(ing) with and frustrat(ing) the arbitral processes . . . which the parties had chosen," Buffalo Forge, 428 U.S. at 407, 96 S. Ct. 3141, 49 L. Ed. 2d 1022; and 3) and whether an injunction would be appropriate "under ordinary principles of equity." Boys Markets, 398 U.S. at 254, 90 S. Ct. at 1594, Quoting Sinclair Refining Co. v. Atkinson, 370 U.S 195, 228, 82 S. Ct. 1328, 8 L. Ed. 2d 440 (1962) (Brennan, J., dissenting).

That the dispute which led to Fort Pitt's threat to terminate premium payments whether the Union was obligated to reimburse the Company for health and insurance plan contributions made during the strike was covered by the Agreement's arbitration clause is beyond dispute. That clause stated that grievance procedures were to be used with regard to "any . . . request or complaint." Indeed, the Company concedes that "(t)here is nothing to limit the scope of this coverage." Brief for Appellants at 7.

We also conclude that the Company was "interfer(ing) with and frustrat(ing) the arbitral processes." When Fort Pitt was informed by the Union that the Union denied responsibility for reimbursement, Fort Pitt was required by the Agreement to grieve its objections to the Union's position. Thus, its decision to exercise "self-help" by threatening to cease making premium payments ran counter to the congressional policy of "promotion of the arbitral process as a substitute for economic warfare." United States Steel Corporation v. United Mine Workers, 593 F.2d 201, 204 (3d Cir. 1979).

We are unpersuaded by Fort Pitt's claim that it acted properly because for it, arbitration was permissive, not mandatory. Fort Pitt interprets P 97 of the Agreement which states that "(t)he grievance procedure May be utilized by the Company" (emphasis added) as allowing it to seek arbitration or not as it wishes. Thus, the Company argues that it was not required to grieve its objections to the Union's position; instead, it was entitled to terminate the premium payments as an exercise of its management rights.¹⁶  If, according to the Company, the Union objected to the cut-off of the payments, then the Union was required to initiate grievance procedures. Because the Union did not do so, the Company did not, in its view, interfere with the arbitral process.

The problem with the Company's approach is that the parts of the Agreement dealing with the grievance procedures applicable to employees also use the permissive word "may."¹⁷  Yet, the Company asserts that the grievance mechanism is obligatory for the Union. If, as Fort Pitt contends, the grievance procedures are indeed mandatory for the Steelworkers despite the permissive language of the Agreement, we cannot say that the district court committed plain error in finding that those procedures are also mandatory for the Company.¹⁸ 

Finally, we believe that the district court properly exercised its discretion in finding that an injunction was appropriate under equitable principles. The critical issue facing the district court was whether breaches of the contractual agreement to arbitrate caused or threatened to cause irreparable injury to Union members. See Boys Markets, 398 U.S. at 254, 90 S. Ct. 1583. The Company contended that since only the payment of money was involved, there was apparently as a matter of law no risk of irreparable harm. The district court ruled, however, that if injunctive "relief is denied, the hospital and insurance benefits of the union members will lapse." 452 F. Supp. at 890. Fort Pitt now argues that the district court abused its discretion because even after premium payments stopped, benefits would continue for 30 days, at which time the union members would have the opportunity to convert to individual policies.

Initially, we agree with the district court that the fact that the payment of monies is involved does not automatically preclude a finding of irreparable injury. If the risk of "water pipes freezing" can constitute irreparable injury, See Celotex Corp. v. Oil Workers, 516 F.2d 242, 247 (3d Cir. 1975), then surely the possibility that a worker would be denied adequate medical care as a result of having no insurance would constitute "substantial and irreparable injury." Id. Moreover, the risk of irreparable injury was not appreciably lessened merely because the employees allegedly would remain covered for 30 days after premium payments were terminated and because the employees thereafter would have the option to convert to individual policies. There was no assurance at the time the injunction was issued that the strike would end within 30 days; thus there was a significant risk that absent an injunction, the employees would be without insurance coverage. In addition, the likelihood that all of the employees could have exercised their right to obtain individual policies was problematic, because while the employees were on strike, they were not collecting their wages. We conclude, therefore, that the district court did not err in issuing the June 7 and June 23 injunctions.¹⁹ 

It is undisputed that when Fort Pitt ceased advancing premium payments for its employees on October 13, it did so in the face of orders by the district court to continue the payments. Thus, the issue in this appeal is not whether Fort Pitt complied with the June 7 and June 23 injunctions but whether the court erred in rejecting the Company's claim that changed circumstances required the injunctions to be dissolved.

Fort Pitt contends that when, during the fall of 1978, an impasse was reached over the version of paragraph 140 to be included in the new Agreement, it was entitled to implement its pre-impasse proposal. Since that proposal did not obligate the Company to advance premium payments during a strike for more than 30 days, the court, in the Company's view, should have vacated the injunction. The Company relies chiefly on American Federation of Television and Radio Artists v. N.L.R.B., 129 U.S.App.D.C. 399, 395 F.2d 622 (1968). There, the District of Columbia Circuit approved the principle, advanced by the NLRB, that:

(A)fter bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the (Labor Management Relations Act) by making unilateral changes that are reasonably comprehended within his pre-impasse proposals.

Id., 129 U.S.App.D.C. at 401, 395 F.2d at 624.

We conclude, however, that American Federation And the impasse doctrine that it espouses are inapposite to the facts of this case. In American Federation, management did not impose its pre-impasse proposals on its employees until both the Entire collective bargaining agreement and a mutually agreed-upon extension had lapsed. Thus, American Federation stands only for the principle that management can unilaterally implement its own pre-impasse proposals when it is not bound by contrary provisions which have been agreed upon by the parties. Here, however, paragraph 140 of the 1975 Agreement was still operative. That paragraph did not even take effect until the rest of the 1975 Agreement had expired and the labor dispute had begun, and did not lapse, by its terms, until the end of the dispute. Thus, because Fort Pitt had already struck a bargain with the Union on paragraph 140, it was precluded from altering the substance of that bargain, without the Union's approval, during the life of paragraph 140 i. e., until the end of the labor dispute.²⁰  We hold, therefore, that the district court properly held Fort Pitt in civil contempt for violating the June injunctions.²¹ C. No. 79-1019

In hearings before the district court on December 13, 1978, Fort Pitt asserted that it had totally and irrevocably shut down its plant and dismissed its employees. Thus, under the theory that its obligations under paragraph 140 ceased with the discontinuance of the employer-employee relationship, it requested the district court to vacate the injunction. The Union argued that the announcement of the decision to shut down was merely a ploy by Fort Pitt to evade its obligations under the June injunctions, and that even if the Company actually intended to close the plant, production work being carried out by supervisory personnel would last for three or four months. The Union therefore claimed that until operations at the plant permanently ended, Fort Pitt's obligation to advance premium payments continued. The district court, in maintaining the injunction, concluded that the Company did "intend to close the plant"; it made no finding, however, regarding the Company's claim that the shutdown of the plant had already occurred.

Since the district court did not determine whether the plant has permanently discontinued operations, and since the evidence in the record on this matter is in conflict, we are unable to state with assurance that the plant has, as of this date, irrevocably shut down. As a result, we must reject Fort Pitt's request that we vacate the injunctions which restrain the Company from terminating the payments at issue.

Fort Pitt concedes that even though the 1975 Agreement has expired, whether its obligation to continue payments survives the announcement of its Decision to shut down is an arbitrable dispute under the doctrine of Nolde Bros. v. Local 358, Bakery Workers, 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300 (1977). The Company contends, however, that the fact that a dispute is arbitrable does not automatically permit a court to grant an injunction against one of the parties to the dispute.

We agree with Fort Pitt that the district court's holding that Nolde Bros. governs this case was inaccurate. Nolde Bros. dealt only with whether a dispute which arises out of a contract but which did not occur until after the contract had expired is Arbitrable under the expired contract's arbitration clause; it was silent regarding when and whether a district court may appropriately grant injunctive relief in such a situation. Notwithstanding the district court's reliance on Nolde Bros., however, the denial of Fort Pitt's motion to vacate the injunction was nevertheless correct.

Our rationale for upholding the district court's refusal to vacate the injunction rests upon Boys Markets. The Boys Markets exception to the Norris-LaGuardia Act permits federal courts to enjoin conduct stemming from a labor dispute when that conduct "frustrate(s) the arbitral processes." Buffalo Forge, 428 U.S. at 407, 96 S. Ct. 3141. And, as the Fourth Circuit held in Lever Bros. v. International Chemical Workers, Local 217, 554 F.2d 115 (4th Cir. 1976), the arbitral processes are frustrated when the arbitrator's award is no more than "a hollow formality" because "when rendered (it) could not return the parties substantially to the Status quo ante." Id. at 123. Here, it was for the arbitrator to decide whether Fort Pitt was required under paragraph 140 to continue making insurance and hospitalization premium payments until the plant was permanently closed. Yet, if the Company were permitted to cease advancing payments pending arbitration, and if some of the Union members suffered irreparable injury to their health as a result of the termination of payments, the arbitrator's award vindicating the Union's interpretation of paragraph 140 would indeed be only "a hollow formality." We hold, therefore, that the district court did not err in ordering Fort Pitt to continue making premium payments during the period in which the Company winds down its operations at the plan.

The district court ruled that whether Fort Pitt's "obligations under Paragraph 140 Terminated upon shut-down of its plant is an arbitrable issue" (emphasis added). Thus, in the district court's view, the injunction must continue not only while Fort Pitt winds down its operations at the plant, but even after the plant has permanently closed, unless the dispute is submitted to and resolved by the arbitrator. We disagree.

Our reason for holding that under the facts of this case, the injunction must be dissolved upon final closing of the plant is premised on the very limited scope of the Boys Markets exception to the Norris-LaGuardia Act. Boys Markets injunctions are designed to preserve the status quo when maintenance of the status quo is Needed to protect the arbitral process. And the only time that preservation of the status quo is an appropriate, or even rational, remedy is when the party seeking equitable relief claims entitlement, under the terms of the labor contract, to the status quo relationship with its adversary, or claims that the changes in the status quo contemplated by its adversary are prohibited by the contract.

Here, the status quo is represented by Fort Pitt's continued premium payments on behalf of the Union members. Yet, our review of the record demonstrates that the Union never contended before the district court that its members were entitled under paragraph 140 to continued insurance and hospitalization coverage after permanent shut-down of the plant. Nor is there anything in the record evidencing a claim by the Union that paragraph 140 prohibits Fort Pitt from stopping the payments once all work at the plant has ended and the plant has gone out of business.²²  Thus, in the absence of any allegation that the parties contemplated a continuation of benefits beyond final closing, the district court may not order the Company to continue paying the premiums necessary to maintain those benefits once the court finds that the plant has permanently shut down.²³ 

CONCLUSION

The orders of the district court appealed from in Nos. 78-2035 and 78-2654 will be affirmed. In No. 79-1019, we remand to the district court for a determination whether all work at the plant has ceased and a final closing of the plant has taken place. If the court finds that the plant is permanently closed, it must dissolve the injunction.

Each party shall bear their own costs.