ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AT CIVIL ACTION NO. 72-275.
Forman, Aldisert and Garth, Circuit Judges.
Bethlehem Mines Corporation (Bethlehem), a corporation of West Virginia, filed a complaint against United Mine Workers of America (UMWA), W. A. Boyle, President; United Mine Workers of America, District No. 2 (District No. 2), Owen F. Slagle, President; United Mine Workers of America, Local Union No. 1368 (Local 1368),*fn1 William A. Risbon, President; Frank Claypool, Vice President, George W. Commons, Recording Secretary, Charles D. Neff, Committeeman, in the United States District Court for the Western District of Pennsylvania seeking a declaratory judgment and an injunction under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. and the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 141 et seq.*fn2 Bethlehem alleged that it was in an industry affecting commerce as defined in the Labor-Management Relations Act, that through its Cambria Division in Cambria County, Pennsylvania, it mined and processed coal for its parent, Bethlehem Steel Corporation; that an actual controversy of a justiciable nature existed between the parties at Mine 33, one of six comprising the Cambria Division of Bethlehem; that the UMWA, District No. 2*fn3 and Local 1368 are unincorporated labor organizations and through their officers and agents represent 450 employees of Bethlehem within the Western District of Pennsylvania for the purposes of collective bargaining and have entered into a labor agreement covering wages, hours of work, and other conditions of employment; that the most recent agreement is the National Bituminous Coal Wage Agreement of November 12, 1971, expiring November 12, 1974 (the 1971 Agreement). The litigation chiefly revolves around Article XVII thereof, a compulsory grievance and arbitration provision.*fn4
Bethlehem's complaint further alleged that a preliminary injunction was issued by the District Court, which compelled Bethlehem and the UMWA parties to abide by the provisions of Article XVII for the settlement of all disputes at Mine 33; that on March 21, 1972 a further illegal work stoppage occurred over a job bid and assignment involving John Rafacz, an employee-member of Local 1368; that following a hearing in the said District Court for a citation of contempt, the difference was submitted to Bethlehem under Article XVII of the collective bargaining Agreement; that on April 4, 1972 Owen F. Slagle, President, District No. 2, wrote Larry Bellotti, Superintendent of Bethlehem's Cambria Division, as follows:
"On March 23, 1972 John Rafacz, employee at Mine 33, filed a grievance with your company and failed to resolve said grievance. The grievance was properly processed by Local Union 1368, United Mine Workers of America under the terms of the National Bituminous Coal Wage Agreement of 1971. The grievance was heard in Third Step on March 28, 1972, and no agreement was reached.
"Therefore, I notify you that I must insist that this grievance be processed with immediate dispatch provided for in Article XVII of said agreement. To this end, I am demanding that your company now agree to the orderly process of this grievance as provided in Article XVII, Article I, and Article XIV (sic), Section B of the wage agreement.
"Therefore, with the fervent hope that you will comply with my request, I am setting April 10, 1972 at 10:00 a.m. at the Candlelight Motel, Ebensburg, Pennsylvania to which place and time we shall be present with necessary Union staff and our witnesses to present our case as provided for in the wage agreement as required to above. Please confirm.
"Owen F. Slagle, District
Bethlehem further alleged that on the same day Mr. Slagle telephoned Mr. Bellotti that Maurice Shadden should be present at the Fourth Step meeting and thereafter act as Umpire in the Fifth Step in accordance with the custom and practice followed by the UMWA and Bethlehem under the terms of the 1968 National Agreement, as amended, between District No. 2 and the Central Pennsylvania Coal Producers Association (CPCPA), of which Bethlehem insisted that it was never a member of CPCPA nor a signatory to the agreement, and that, in any event, the agreement was duly terminated prior to its expiration date in 1968 by the CPCPA. Bethlehem alleged that Mr. Bellotti replied to Mr. Slagle on April 5, 1972 as follows:
"This will acknowledge your letter of April 4, 1972, and confirm our subsequent telephone conversation that afternoon.
"We are, of course, anxious to proceed with the Joint Board meeting in the Rafacz grievance, pursuant to provisions of Article XVII (b) (4) of the National Bituminous Coal Wage Agreement of 1971. As you know, the Third Step was completed on March 28, 1972, and the procedure requires that the Joint Board meet on or before April 7, 1972; however, under the circumstances, we are agreeable to the extension of time to April 10, 1972, which you have requested, but without establishing a precedent for such extentions [ sic ], because it is essential in such matters that they be handled expeditiously in accordance with the specific terms of the National Agreement.
"You indicate that you intend to present the evidence all over again. As you know, the record is already complete and closed, all evidence having been taken at the Third Step. I see no need to rehash it again, however, if you have further evidence, or if there is some new evidence, we certainly agree that it should be heard, and we propose that Step Three be reconvened for this purpose. In this regard, the Fourth Step should be limited to consideration of the evidence already in the record. It is the very essence of the grievance machinery, as it has been substantially amended in the 1971 agreement, that grievance matters be handled expeditiously and within specific time limits, and in this regard, the repetition of evidence at the Fourth Step can only slow down the procedure.
"With respect to your insistence on having an umpire present on April 10, 1972, we respectfully suggest that no useful purpose would be served by his presence, and conversely, his presence at the Joint Board meeting would usurp the function of the Joint Board. An umpire is not required unless the Joint Board disagrees, at which time, an umpire should be selected and the matter should be referred to him within the required 10 days, which is consistent with the terms of the grievance procedure as set forth in Article XVII (Section b).
"To reiterate, we shall be pleased to attend the Joint Board meeting on April 10, 1972 as you have requested, but without prejudice or precedent concerning the delayed scheduling, at which time the evidence already presented should be refused by the Joint Board but without further evidence being presented at that Step.
"I suggest that you call me at your earliest convenience if you disagree, in order that we may further discuss this matter.
Bethlehem also alleged that nothing in Article XVII of the Agreement provides for the presence of an umpire at the Fourth Step*fn5 nor does it provide for the continuance of a permanent umpire under the expired agreement; that under the terms of the current collective bargaining agreement Article XVII provides for "a committee to select a permanent or chief umpire and/or a panel of umpires," but that although a committee representing the Bituminous Coal Operators Association (BCOA) and the UMWA has met twice, no agreement has been reached concerning such selection.
Bethlehem further alleged upon information and belief that in the event it continues to refuse to permit the presence of Mr. Shadden at the Fourth Step and/or to select him as the umpire under the Fifth Step, the UMWA and Local 1368 and their members ...