that "the contract does not permit the Union to strike under the circumstances alleged in the amended complaint" (p. 4), the Court did not intend to hold as a factual matter that a "dispute" over the "interpretation or application" of the contract had been demonstrated. The Court reached only the legal arguments before it on the motion to dismiss.
Counsel for defendant now claims the evidence showed no "dispute" within the meaning of the contract between union and employer. This claim was made at final argument after all the testimony had been heard. Plaintiffs had relied on the Court's earlier ruling. In order to avoid prejudice, both sides were then given the opportunity to file post-trial briefs on the issue whether or not refusal to cross another union's picket line constitutes a "dispute" sufficient to invoke the no-strike obligation.
When this issue has arisen in the context of injunctive relief, the Circuits have divided sharply over whether a refusal to cross another union's picket line constitutes an arbitrable dispute with the primary employer sufficient to invoke a no-strike clause. Compare Amstar Corp. v. Amalgamated Meat Cutters, 468 F.2d 1372 (5th Cir. 1972), with Monongahela Power Co. v. Elect. Workers Local 2332, 484 F.2d 1209 (4th Cir. 1973); Inland Steel Corp. v. Local Union No. 1545, United Mine Workers, 505 F.2d 293 (7th Cir. 1974); NAPA, Pittsburgh, Inc. v. Automotive Chauffeurs, Teamster Local 926, 502 F.2d 321 (3rd Cir. 1974) (en banc), cert. denied, 43 U.S.L.W. 3330 (No. 74-419) (Dec. 9, 1974). Both lines of cases rely in part on policies peculiar to the area of injunctive relief, no Court of Appeals has ruled on the issue in the context of suits for damages under § 301, and the Fourth Circuit has indicated that it would not necessarily follow its own holding in Monongahela Power, supra, in a damage action. See Armco Steel Corp. v. United Mine Workers, 505 F.2d 1129, 1134 n. 4 (4th Cir. 1974).
Recognizing the issue to be unsettled in this Circuit, the Court has determined to follow Amstar, supra, in this case. The Court holds that the decision not to cross Local 82's picket lines involved no "dispute" with the employers and was therefore a protected right not bargained away under the contract. The rule that all doubts must be resolved in favor of arbitrability enunciated by the Supreme Court in the Steelworkers Trilogy, see, e.g., United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-3, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960), and recently reaffirmed in Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 377-380, 38 L. Ed. 2d 583, 94 S. Ct. 629 (1974), does not apply. Where the scope of the arbitration clause is susceptible to honest differences of interpretation, the possibility of injunctive relief is sufficient to serve the federal policy in favor of amicable resolution of labor disputes. Where damages are claimed, the contract terms must be more strictly interpreted. Cf. Kellogg Co. v. NLRB, 457 F.2d 519 (6th Cir. 1972), cert. denied, 409 U.S. 850, 34 L. Ed. 2d 92, 93 S. Ct. 58 (1972).
Viewing the naked contract language, unsupplemented by any evidence as to the intent or practice of the parties, the Court holds there has been no agreement to waive the otherwise protected § 7 right of the members to refuse to cross a picket line under Rockaway News, supra. Since there was no dispute with the primary employer which could have been resolved through the arbitration process, the Court finds the parties did not intend the agreement not to strike "pending arbitration" to apply in this situation. See Gary-Hobart Water Corp., 210 N.L.R.B. 742, 210 NLRB No. 87, 86 LRRM 1210 (1974).
Although the Court has concluded that plaintiff has failed to prove a breach of the contract, it must recognize that this determination rests on issues of law unsettled in this Circuit. In the interests of judicial economy, it is therefore appropriate to set forth conclusions with regard to the damages since there was a full trial on the merits.
Three categories of damages are claimed to be foreseeable consequences of the failure of Local 99 to cross the picket lines: at 1111-18th Street, damage to a compressor; at 1800-G Street, loss of compensation for overtime air-conditioning service and cost of labor recruited from Blake supervisory personnel to perform the functions of engineers not reporting to work at three buildings.
The compressor broke down. It is undisputed that an expense of $3,530.92 was incurred by Bender in Civil Action No. 74-1175, which includes some tools specially purchased having a continuing utility. The proof to support its claim was insufficient. The proof showed that the compressor failed shortly after it was started up when the oil pressure fell below minimum. Plaintiff suggests that a union operator on duty could have prevented this occurrence. However, it is not apparent from the proof what caused the oil pressure to drop. Deterioration of the bearings may have occurred and, if so, it would have been impossible to correct this condition for any length of time. Moreover, there is no explanation of why the machine failed to cut off automatically as designed before the pressure dropped below minimum levels. Thus the cause of the failure of the compressor could have been its age and deterioration or inattention of an operator. Plaintiff failed to carry its burden. Indeed, its failure to call the representative of the management who started up the machine on the day it failed and the absence of more concrete proof as to the cause or causes of the failure serve to emphasize the insufficiency of the proof which, at best, is in equipoise. The Court rejects testimony of a member of the Union that he warned management about the inadequacy of the oil pressure.
The loss of overtime compensation for which $1,527 is claimed by Northwestern Development Company in Civil Action No. 74-1176 is based on the inability of the building to provide overtime air-conditioning. Its claim is premised on gross compensation which could have been earned under an undisputed contract with the tenant. No allowance is made for expense necessary to provide the service which proof shows would have been provided were it not for the strike. The claim must be reduced by $400 as a reasonable sum for the estimated expense, but the loss was shown to be proximately caused by the failure of Local 99 to report.
Finally, there is a claim for labor in the amount of $2,182 to be divided among plaintiffs, as itemized in exhibit 5.
This sum covers services rendered by Blake's personnel and made necessary by refusal of engineers assigned to the buildings involved to report to work. The labor was furnished, the expense was proximately caused by the failure of Local 99 to report, and the amounts were billed in accordance with standing procedures.
In accordance with the foregoing, which constitutes the Court's findings of fact and conclusions of law, judgment shall be entered in favor of the defendant in all three cases.