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June 30, 1972

Amstar Corporation, Plaintiff,
United Sugar Workers Local 9, Sugar Workers Council of North America, ILA, AFL-CIO et al., Defendants

Neaher, D. J.

The opinion of the court was delivered by: NEAHER



 In this action brought under Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185 et seq., plaintiff moved for a preliminary injunction pursuant to Rule 65, F.R. Civ. P., restraining the defendant union from engaging in a strike and other threatened violations of a collective bargaining agreement between the parties. While the strike was in progress a five-day temporary restraining order was issued pursuant to Section 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107. The striking employees returned to work shortly thereafter but on defendants' consent the temporary restraint has remained in effect pending the court's determination after a full testimonial hearing on the application for a preliminary injunction.

 Plaintiff, a Delaware corporation, is engaged in the production of refined cane sugar at its refinery in Brooklyn, New York. It also operates sugar refineries located at Philadelphia, Pennsylvania, Boston, Massachusetts, Baltimore, Maryland, and Chalmette, Louisiana. Defendants are the officers, executive board members and individual employee members of United Sugar Workers Local 9, an affiliate of Sugar Workers Council of North America, ILA, AFL-CIO (hereinafter collectively referred to as the "union"). The union is the collective bargaining representative of approximately 500 production and maintenance employees at plaintiff's Brooklyn refinery.

 The current collective bargaining agreement between the parties was negotiated during a strike in January 1972 and went into effect after ratification by the union's membership on January 24. The striking employees returned to work immediately thereafter.

 The agreement expressly provides that

"When differences or complaints arise between Management and the Union, or any employee or employees, there shall be no suspension of work on account of such disputes." Article III (3.01).

 If a dispute is not settled by means of the detailed grievance procedure prescribed in the agreement, either party may demand arbitration and, after compliance with specified notice provisions, "the grievance shall be referred for decision to the Arbitrator". Article III (3.03), emphasis supplied. The agreement authorizes the arbitrator "to make decisions in cases of alleged violation and/or differences as to the interpretation of the terms of this Agreement . .. as the facts and circumstances may warrant, subject to the limitations of this Agreement." His decision and award "shall be final and binding . . . and the parties agree to abide by such decision." Article III (3.03). Express provision is also made that "this Agreement and all other prior Agreements, whether written or oral, which are established to the satisfaction of an arbitrator shall be binding upon the parties hereto." Article XXVI (26.01), emphasis supplied. The agreement also contains a "no-strike" clause. Article XIX (19.01).

 The evidence at the hearing abundantly established that the two-day walkout at plaintiff's Brooklyn refinery on February 14 and 15 was union sanctioned and involved a dispute between the union and management which the parties were contractually bound to arbitrate under the terms of their agreement. The dispute clearly concerned the scope and alleged violation of a "no reprisal" commitment given by plaintiff to the union during the course of the bargaining negotiations which led to the final formulation and ratification of the current agreement and the union's related breach of the "no-strike" clause. Although the "no reprisal" commitment was entirely oral, there is no question that it was made; indeed both parties assert its binding effect as a part of their agreement. The arbitrable character of their difference over its interpretation plainly appears from the circumstances which gave rise to the commitment. In delineating that background below, the court does not intend to limit in any way the function of an arbitrator in resolving the dispute.

 Prior to ratification of the current labor agreement, not only plaintiff's Brooklyn refinery but also its Philadelphia and Boston refineries were on strike, since all were represented by locals of the United Sugar Workers Council. The strike was subsequently extended to plaintiff's Baltimore and Chalmette refineries when Sugar Workers pickets appeared at those locations. Those refineries, however, are represented by a different union, the Amalgamated Meat Cutters and Butcher Workmen of North America ("Meat Cutters"), which had collective bargaining agreements with plaintiff containing no-strike clauses. When employees at Baltimore and Chalmette refused to cross the Sugar Workers' picket line, with a resulting shutdown of those refineries, plaintiff obtained a temporary restraining order and thereafter a preliminary injunction against the Meat Cutters from the United States District Court in New Orleans. *fn1" That court, as required by law, imposed upon plaintiff as a condition that it arbitrate its dispute with the Meat Cutters. The Meat Cutters members in Chalmette disobeyed the court's orders and in Baltimore an employee was charged criminally for carrying a loaded firearm on plaintiff's premises during the walkout.

 While negotiations for the current agreement were going on the union's president, Randazzo, became concerned that the Baltimore-Chalmette picketing activities might result in contempt proceedings or other punitive measures against union members. He therefore insisted on the "no reprisal" commitment which was given by plaintiff together with explicit assurances that plaintiff contemplated no contempt proceedings or disciplinary action against employees with the single exception of the Baltimore employee arrested on the firearms charge. The current labor agreement was concluded and ratified on that understanding. *fn2"

 On February 14 -- three weeks after ratification and return of the union members to work -- Randazzo ordered not only the Brooklyn refinery but also those in Boston and Philadelphia shut down. *fn3" The sole basis for this strike action was his contention that plaintiff had breached the "no reprisal" commitment by proceeding to arbitration of its grievance against the Meat Cutters in compliance with the order of the District Court in New Orleans. *fn4" The union made no attempt to invoke the grievance and arbitration procedure provided in the newly ratified agreement. Nor did it satisfactorily respond to plaintiff's requests and formal demand that the differences between the parties be referred to arbitration. *fn5"

 In opposing this application the union argues that plaintiff has wholly failed to meet the requirements for injunctive relief established by the Supreme Court in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). First, it says, there are grave questions as to the existence of a contract between the parties. That suggestion is disingenuous. In evidence, without objection by the union, are authentic copies of three documents which comprise the current agreement as ratified by the union's membership on January 24. One is the comprehensive printed agreement between the parties in force for the three-year period ending September 30, 1971 (Pl. Exh. 1); the second is a memorandum of agreement executed January 16 at the conclusion of the collective bargaining, which incorporates "all" provisions of the expired agreement "except as deleted or modified hereinafter" (Pl. Exh. 2); and the third is a mutually executed written amendment to the foregoing memorandum dated January 22, 1972, containing early retirement stipulations requested by the union membership as a condition of ratification (Pl. Exh. 3). Thus there is no question, and the court so finds, that on February 14 and 15, when the union engaged in a walkout, there was a binding agreement in effect between the parties which provided without exception for arbitration of "differences or complaints . . . between Management and the Union" without "suspension of work on account of such disputes." Pl. Exh. 1, Article III (3.01).

 The foregoing finding is in no way affected by the union's further suggestion that the "no reprisals" commitment does not appear to be encompassed within the terms of the parties' agreement, especially since the dispute about it relates to employees of plaintiff whose union, i. e., the Meat Cutters, is not a party to the agreement. The short answer to that contention is that both parties concede the "no reprisals" commitment was made a condition -- albeit unwritten -- of their present ...

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