United States District Court, Northern District of Illinois, E.D
April 1, 1985
NATIONAL WRECKING COMPANY, PLAINTIFF,
ERNEST KUMEROW, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is plaintiff's motion for a temporary
restraining order to enjoin the defendants from striking, work
stoppage, and illegal picketing at various locations where
plaintiff and defendants are engaged in demolition. For the
reasons stated herein, plaintiff's motion for a temporary
restraining order, pursuant to Section 301 of the Labor
Management Relations Act (LMRA), 29 U.S.C. § 185, Fed.R.Civ.P.
65(b) and Rule 12(a) of the Local Rules, is denied.
On July 15, 1984, plaintiff National Wrecking Company,
through the Chicago Building Wreckers Association, entered
into a collective bargaining agreement with defendant
Construction and General Laborers' District Council of Chicago
and Vicinity and Laborers' Local Union No. 225 covering
plaintiff's employees working within Cook County, as well as
other counties. Section 8 of the collective bargaining
agreement prohibits strikes or work stoppages by employees and
provides for binding arbitration of disputes and grievances
with respect to the application and construction of the
agreement. Section 8 reads as follows:
UNION agrees that there shall be no strike Or
picket against this EMPLOYER during the period of
this Agreement; nor shall it engage in or
participate in any sympathy strike or secondary
boycott directed against EMPLOYER. The parties
further agree to arbitrate their grievances with
the Illinois Department of Concilliation and
Mediation or similar arbitration association. The
UNION does, however, maintain its right to strike
for nonpayment of wages, health and welfare,
pension contributions or dues deductions by
EMPLOYER beyond sixty (60) days.
Plaintiff contends that defendants have violated this
no-strike and mandatory arbitration clause by virtue of their
picketing and work stoppage at two of plaintiff's demolition
sites in Chicago, Illinois, on March 27, 1985. Plaintiff
further asserts that the dispute underlying defendants' strike
is their desire to renegotiate the amount of plaintiff's
pension fund contributions from 24 cents per hour, contained
in the collective bargaining agreement, to $1.30 per hour.
Since it has refused to renegotiate the agreement, plaintiff
concludes that defendants' strike is an attempt to force
plaintiff to renegotiate. Since the amount of pension fund
contributions is a contract dispute, plaintiff further
concludes that the underlying dispute involves an issue
subject to mandatory arbitration and therefore defendants'
strike violates the no-strike clause in the agreement.
Defendants counter that they have a right to strike for
nonpayment of dues deductions. The no-strike clause
specifically excludes from its scope a strike for nonpayment
of dues deductions beyond 60 days. Defendants assert that,
since the beginning of the agreement, the plaintiff has failed
to pay dues deductions as provided for in Section 6 of the
In support of their proposition, defendants submit evidence
of past payment of dues deductions to counter plaintiff's
contentions that there was no set procedure for payment of
dues deductions and that plaintiff did not have in its
possession proper authorization cards necessary for the
payment of dues deductions. Since they have presented evidence
of plaintiff's failure to pay the dues deductions for over 60
days, defendants conclude that their strike comes within the
exception to the no-strike clause and therefore does not
violate the no-strike clause.
Section 4 of the Norris-La Guardia Act, 29 U.S.C. § 104,
prohibits an injunction
against a strike or work stoppage. However, in Boys Markets v.
Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d
199 (1970), the Supreme Court held that anti-strike injunctions
could be issued when the strike arises out of a grievance that
is the subject of compulsory arbitration, provided the usual
equitable requirements for preliminary relief are met. Id. at
254, 90 S.Ct. at 1594. In Boys Markets, the parties were
obligated to arbitrate the underlying grievance that was the
occasion of the strike, i.e., whether members of the Retail
Clerks Union were entitled to perform certain work being done
by nonmembers of their bargaining unit, and the strike was
enjoined. See, Gateway Coal Co. v. United Mine Workers of
America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).
On the other hand, when the parties have not agreed to
arbitrate the underlying dispute, as was the case in
Buffalo Forge Co. v. United Steelworkers of America,
428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), where the issue was
whether a sympathy strike violated a no-strike clause, there
was no occasion to invoke the policy in favor of compulsory
arbitration and, in recognition of the general mandate of § 4
of the Norris-La Guardia Act, the Court held that such a strike
may not be enjoined. In short, Buffalo Forge teaches that the
mere arbitrability of the issue of whether a strike or work
stoppage violates an express or implied no-strike clause does
not entitle the employer to a Boys Markets injunction; there
must be an underlying arbitrable grievance. Id. at 409-10, 96
S.Ct. at 3148-49; see, Jacksonville Bulk Terminals, Inc. v.
International Longshoremen's Ass'n, 457 U.S. 702, 102 S.Ct.
2673, 73 L.Ed.2d 327 (1982); Elevator Mfrs.' Ass'n of N.Y.,
Inc. v. Local 1, Etc., 689 F.2d 382, 385 (2d Cir. 1982). The
issue now becomes whether a case is governed by Boys Markets or
In order to determine whether Boys Markets or Buffalo Forge
applies to this case, it is necessary to engage in a
preliminary interpretation of the agreement in light of the
surrounding circumstances. First, under the agreement, the
court must determine whether the strike violates the no-strike
clause. Second, if the no-strike clause is violated, the court
must determine if the underlying dispute involves a grievance
which the parties are bound to arbitrate. Elevator Mfrs.' Ass'n
of N.Y., Inc. v. Local 1, Etc., supra, 689 F.2d at 386.
First, the Court holds that the party seeking the
injunction, the plaintiff, has failed to show that the
defendants have violated the no-strike clause in Section 8 of
the agreement. Plaintiff argues that the failure to pay dues
deductions is a smoke screen or a sham to hide the real
underlying dispute and to enable defendants to strike in
violation of the no-strike clause. Defendants have submitted
evidence which suggests that plaintiff has not paid dues
deductions since at least July, 1984. Plaintiff protests that
it was not supplied proper authorization cards necessary to
make the dues deductions. However, it has not produced a
sample of the proper cards for the Court to compare with the
cards produced by the defendants.
In addition, plaintiff has not shown that it ever tendered
payment of dues deductions, requested proper authorization
cards for payment, or inquired as to the procedure for paying
the dues. The evidence which plaintiff does submit tends to
support the fact that defendants have asked it to renegotiate
the agreement regarding pension fund contributions. From this
fact, plaintiff argues that the failure to pay dues deductions
is a sham. However, plaintiff's characterization of the
dispute underlying the strike could as easily be a sham
In light of the fact that the burden of proof is on the
party seeking the injunctive relief, the plaintiff has failed
to meet this burden because it has not shown payment of the
dues deductions. Since plaintiff has not shown payment of the
dues deductions, defendants' strike falls within the exception
to the no-strike clause. Since plaintiff has failed to show
that defendants' strike violates the no-strike clause, the
not be enjoined according to Buffalo Forge.
Second, the threshold issue to be arbitrated is whether the
dispute underlying the strike is renegotiation of the
agreement or plaintiff's failure to pay the dues deductions.
The threshold issue is not whether renegotiation of the
agreement is an issue to be arbitrated. The courts which have
addressed this complex issue, i.e., whether the strike's
underlying dispute violates the no-strike clause, have
concluded that an injunction should not issue. Waller Bros.
Stone Co. v. United Steelworkers, 620 F.2d 132, 137 (6th Cir.
1980); Skokie Valley Bev. v. Beer, Soft Drinks, Water,
563 F. Supp. 460, 462 (N.D.Ill. 1983); see also Chicago
Typographical Union v. Chicago Newspaper Pub. Ass'n,
620 F.2d 602 (7th Cir. 1980) (denial of injunction pending arbitration).
In Waller, the Sixth Circuit Court of Appeals addressed the
same problem as presented here:
Where the union has expressly reserved its right
to strike over certain issues, a Boys Markets
injunction should not issue unless it clearly
appears to the trial judge that the dispute which
underlies the strike is subject to a no-strike
obligation. Under the circumstances which exist
here, the issue is so greatly in doubt that we
believe that it was an abuse of discretion to issue
an anti-strike injunction in the face of the
literal ban of the Norris-La Guardia Act and the
narrow construction which the Supreme Court and our
circuit have placed upon the Boys Markets rule.
620 F.2d at 137.
In Skokie Valley, the court followed reasoning similar to
that in Waller: "When the arbitrable issue is the
permissibility of the strike itself, rather than some other
underlying issue, then an injunction should not issue. In such
a case the strike does not constitute an evasion of the
agreement to arbitrate disputes; . . ." 563 F. Supp. at 462.
Following the direct reasoning in Waller and the supportive
reasoning in Skokie Valley, the Court further holds that an
injunction against the defendants' strike is improper, where as
here, the underlying dispute for the strike may be in doubt.
The Court reiterates its primary holding that plaintiff's
failure to show that defendants' strike violates the no-strike
clause prohibits this Court from entering an injunction against
the defendants' strike.
Since plaintiff has failed to show that the circumstances in
this case come within the Boys Markets exception to Section 4
of the Norris-La Guardia Act, plaintiff's motion for a
temporary restraining order enjoining defendants' strike is
IT IS SO ORDERED.
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