Kiley, Stevens and Sprecher, Circuit Judges.
On November 25, 1969, two employees in appellant's (ARCO's) East Chicago refinery refused to perform assigned work, claiming it to be unsafe. ARCO's Safety Committee determined, without consulting the Union, that no safety problem was involved. The men were again ordered to do the work and again refused. The next day they picketed the main gate and a work stoppage occurred. On November 28, 1969, the two men were discharged. The work stoppage which had commenced on the morning of November 26, 1969, was still in effect on December 17, 1969, the date on which the district court made the findings of fact which are the basis for this paragraph.
The work stoppage involved about 950 bargaining unit employees. It was a violation of the "No Strike" clause of the parties' Collective Bargaining Agreement. ARCO requested the Union to arbitrate the safety dispute. The Union refused, contending that safety disputes were not arbitrable under the contract, but the court found otherwise.*fn1 ARCO suffered, and on December 17, 1969, was continuing to suffer, substantial and irreparable damage as a result of the work stoppage.
On December 2, 1969, ARCO filed a four-count complaint against the Union. Count I sought damages from the Union under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185; Count II sought damages from certain individuals; Counts III and IV sought equitable relief and raised the issues presented by this appeal.
Count III recited the circumstances of the work stoppage then in progress and, in addition, charged that the Union had "encouraged, aided and abetted and engaged in a pattern of work stoppages and strikes" on five specific occasions.*fn2 Count III sought to enjoin the Union from breaching the No Strike clause.
The allegations in Count IV related only to the pending strike. In that count ARCO asked for a mandatory injunction to compel the Union to submit the safety dispute to arbitration and to terminate the strike.
When the complaint was filed ARCO also filed a motion for a preliminary injunction under Counts III and IV. After hearing ARCO's evidence in support of its motion, the court sustained a motion previously filed by the Union to dismiss Count III and entered an order denying a preliminary injunction under Count IV. No Rule 54(b) findings were requested or entered. ARCO filed its notice of appeal from the orders entered with respect to Counts III and IV*fn3 on December 31, 1969; thereafter, both the facts and the law were changed.
On February 10, 1970, we were advised by the Union that the strike had been settled and the dispute had been submitted to arbitration. It accordingly moved to dismiss the appeal as moot, and on the additional grounds that the notice of appeal was not timely and the order dismissing less than all the pending counts was not appealable. ARCO opposed the motion but did not contest the facts stated therein.
On June 1, 1970, Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 8 L. Ed. 2d 440, 82 S. Ct. 1328, upon which the district court had relied in this litigation, was overruled. Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583. That development was of special relevance because (a) the Collective Bargaining Agreement under review in the Sinclair case contained provisions identical to those involved in this litigation,*fn4 and (b) in his opinion for the Court in Boys Markets, Mr. Justice Brennan expressly adopted the position expressed in his dissent in Sinclair.
Against this background, we must decide whether to dismiss the appeal and, if not, whether an injunction should issue.
We have decided not to dismiss the appeal.
A voluntary cessation of wrongful conduct may eliminate the need for injunctive relief but does not defeat a court's power to act. United States v. W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894; Bowater Steamship Co. v. Patterson, 303 F.2d 369 (2nd Cir. 1969); see Walling v. Helmerich & Payne, 323 U.S. 37, 43, 89 L. Ed. 29, 65 S. Ct. 11; Goshen Mfg. Co. v. Myers Mfg. Co., 242 U.S. 202, 207-08, 61 L. Ed. 248, 37 S. Ct. 105. The exercise of that power depends on the court's appraisal of all relevant circumstances, including the threat or likelihood of recurring violations. See United States v. Oregon Medical Society, 343 U.S. 326, ...