The opinion of the court was delivered by: OBERDORFER
Plaintiffs, KenAmerican Resources, Inc., et al., are several coal mining companies operating in Ohio and Kentucky, among other places. They sue, and move for a preliminary injunction against, the International Union, United Mine Workers of America (the "Union"), which injunction would interdict their ongoing arbitration. By way of background there is uncontroverted evidence that for several months prior to December 1993, the Union was on strike against some employer coal companies, but not against plaintiffs. See Exhibit 3 of Plaintiffs' Motion at 4 (agreement between some of the plaintiffs and the Union providing that in consideration, in part, for plaintiffs' agreeing not to lock out any classified employees, the Union "will not call such strike against the Employer"). On December 16, 1993, the Union and the Bituminous Coal Operators Association entered into a "Memorandum of Understanding Regarding Job Opportunities" [hereinafter "December 1993 Agreement"]. The substance of the December 1993 Agreement was an undertaking by the signatory employers that "job openings for work of a classified nature shall be filled by mine management as follows: The first three (3) out of every five (5) new job openings for work of a classified nature shall be offered to laid-off miners" from "laid-off panel members of the signatory Employer" or from "active miners who have notified the signatory Employer...of their interest in and qualifications for any such job openings at the specific operation involved." See Exhibit 1 of Defendant's Opposition, P6. This provision of the December 1993 Agreement was to apply to "existing, new, or newly acquired nonsignatory bituminous coal mining operations of the nonsignatory Companies." Id. (emphasis added).
Plaintiffs are not members of the Bituminous Coal Operators Association. Nevertheless, on that same day, December 16, 1993, Robert E. Murray, on behalf of plaintiffs Ohio Valley Resources, Inc., Hocking Valley Resources, Inc., Ohio Valley Coal Company, and Ohio Valley Transloading Company [hereinafter referred to collectively as "Ohio Valley Resources, Inc."], and the Union entered into an "Adoption Agreement, by which the signatory plaintiffs agreed to be bound by the December 1993 Agreement reached between the Union and the Bituminous Coal Operators Association. The Adoption Agreement provided, in relevant part, that:
The parties to this agreement are The Ohio Valley Coal Company ("Employer") and the International Union, United Mine Workers of America, on behalf of its employees. The parties hereto agree to adopt each and every term of the 1993 NBCWA [National Bituminous Coal Wage Agreement], including...the Memorandum of Understanding regarding Job Opportunities, and the 1993 Memorandum of Understanding dated March 24, 1993....
See Exhibit 5 of Plaintiffs' Motion. In addition to adopting the December 1993 Agreement, the Adoption Agreement also explicitly incorporated an earlier understanding reached by Robert Murray, on behalf of Ohio Valley Resources, Inc., and the Union, dated March 24, 1993 [hereinafter "March 1993 Memorandum"]. In the March 1993 Memorandum, plaintiff Ohio Valley Resources, Inc. acted on behalf of "any subsidiary or affiliate as of the date of this Agreement, or acquired during its term which may hereafter (during the term of this Agreement) be put into production or use" and also on behalf of "all current and future coal lands and operations of the Employer." See Exhibit 3 of Plaintiffs' Motion, PP1, 3 (March 1993 Memorandum). The March 1993 Memorandum prospectively adopted the December 1993 Agreement.
On April 6, 1994, defendant Union sent to plaintiff Ohio Valley Resources, Inc. a form "Memorandum of Understanding Regarding Job Opportunities" [hereinafter "April 1994 Memorandum"], which reiterated the essential provisions of the December 16, 1993 instruments. The April 1994 Memorandum provided that any breach of the agreement "shall be referred to the Chairman of the UMWA-BCOA Labor Management Policy Committee," specifically, former Labor Secretary William Usery. See Exhibit 7 of Plaintiffs' Motion at 8. The April 1994 Memorandum further provided that "the Chairman shall not have authority to alter, amend, modify, add to or subtract from, or change in any way the provisions of this [memorandum]. Any decision rendered by the Chairman shall be final and binding on all parties to that decision." Id.
On April 18, 1994, Thomas Holmes, Assistant Secretary, Ohio Valley Resources, Inc., signed the April 1994 Memorandum. Before it was signed, however, he or someone caused the deletion and/or insertion of the following language: in the space provided for identification of the companies for which Ohio Valley Resources, Inc. was a "limited agent," Ohio Valley Resources, Inc. inserted the word "None." See id. at 1. The Memorandum stated that the names of the non-signatory corporations that were to be covered by this agreement should be listed in Appendix A. At Appendix A, Ohio Valley Resources, Inc. inserted the word "None." See id. at 10. Finally, below the signature line of the Memorandum was language that Ohio Valley Resources, Inc. was acting "As Limited Agent for Parent Corporation and its Non-signatory Coal Mining Subsidiaries". Id. at 9. Plaintiff Ohio Valley Resources, Inc. marked over this phrase with "x'"s.
In May, 1995, the Union, alleging that plaintiff KenAmerican Resources, Inc. had violated the terms of the December 16, 1993 Adoption Agreement by failing to provide preferential hiring to Union-favored workers, initiated arbitration before Chairman Usery for final and binding decision to compel plaintiff KenAmerican Resources to comply with the Adoption Agreement and, by incorporation, the December 1993 Agreement. Purportedly acting pursuant to authority vested in him by the several agreements between the Union and the signatory employers, Chairman Usury has conducted an arbitration and on December 14, 1995 filed an interim decision in favor of the Union. See Exhibit 13 of Plaintiffs' Reply. The decision directs plaintiff KenAmerican Resources to comply with the terms of the Adoption Agreement and essentially awards the Union three out of every five jobs at KenAmerican's mines. The award, however, leaves for further negotiation and/or arbitration the precise remedies by which the award would be implemented.
Plaintiffs' complaint and motion for preliminary injunction argue that plaintiff KenAmerican Resources, Inc., did not agree to arbitration because it did not sign either the Adoption Agreement or the December 1993 Memorandum and, therefore, is not legally obligated to be bound by the arbitration process there provided. Plaintiffs acknowledge that the same person, Robert E. Murray, who is the President and Chief Executive Officer and sole shareholder of Ohio Valley Resources, Inc., which did sign these instruments and is bound by their terms, is also the sole shareholder of plaintiff KenAmerican. Nevertheless, no one signed any of these instruments on behalf of KenAmerican, and it argues that there is no actual or apparent agency relationship between it and plaintiff Ohio Valley Resources, Inc. that could bind KenAmerican to an agreement signed by Ohio Valley Resources, Inc. Indeed, as plaintiff points out, KenAmerican was not even incorporated until after all the instruments at issue were signed. See Plaintiffs' Reply at 16. Therefore, plaintiffs seek an order enjoining defendant from proceeding with the arbitration, staying further proceedings, and prohibiting the defendant from taking action to enforce the arbitrator's decision. Defendant by its answer and opposition to plaintiff's motion for preliminary injunction invokes the Norris-LaGuardia Act as an effective bar to any order enjoining the arbitration. Defendant contends that because the arbitration constitutes or grows out of a labor dispute, plaintiffs must (but fail to) satisfy the strict requirements of the Act in order to obtain a preliminary injunction. In addition, the defendant has counterclaimed against the plaintiffs and named Mr. Murray as a third-party defendant seeking an order enforcing the arbitrator's award.
The threshold question is whether, assuming that KenAmerican Resources, Inc. has not agreed to submit to arbitration, the Norris-LaGuardia Act nevertheless applies to any injunction interdicting the arbitration. Section 7 of the Norris-LaGuardia Act states in pertinent part:
No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute...except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in ...