United States Court of Appeals, Fourth Circuit
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2d 340
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
LOCAL UNION 175, affiliated with the International
Brotherhood of Teamsters, AFL-CIO-CLC, PlaintiffAppellant,
v.
INITIAL SERVICES INV., Inc., a Georgia corporation, d/b/a
Chartex Services, Incorporated, Defendant-Appellee.
No. 92-1083.
United States Court of Appeals,
Fourth Circuit.
Argued: June 1, 1992
Decided: August 3, 1992
Appeal from the United States District Court for the Southern District of
West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge.
(CA-91-1144-2)
ARGUED: Carl Edward Hostler, Hostler & Segal, Charleston, West
Virginia, for Appellant.
Scott D. Spiegel, Lynch, Cox, Gilman & Mahan, P.S.C., Louisville,
Kentucky, for Appellee.
ON BRIEF: Stanley Milton Hostler, Hostler & Segal, Charleston, West
Virginia, for Appellant.
Debra K. Goff-Stamper, Lynch, Cox, Gilman & Mahon, P.S.C.,
Louisville, Kentucky, for Appellee.
S.D.W.Va.
Vacated and Remanded.
Before ERVIN, Chief Judge, and HALL and MURNAGHAN, Circuit
Judges.
OPINION
PER CURIAM:
Teamsters Local 175 appeals the district court's denial of its request for an
injunction prohibiting the appellee company from closing a plant pending
arbitration of grievances concerning the closing. We vacate the judgment of the
district court and remand with instructions to dismiss the case as moot.
I.
2
Appellee Initial Services Investment, Inc., operated a textile production plant,
employing sixty-eight workers, in Charleston, West Virginia, under the name
Chartex Services, Inc. Teamsters Local 175 represents the Charleston plant's
employees; however, a similar Chartex facility in Huntington, West Virginia, is
non-union, and a third in Youngstown, Ohio, has a union unaffiliated with
Local 175.
On October 28, 1991, as required by the Worker Adjustment and Retraining
Notification Act of 1988 (WARN), 29 U.S.C. 2101 et seq., Chartex notified
its Charleston employees that it was closing the plant on December 9, 1991.
Though the production operations performed in Charleston were being
transferred to Huntington and Youngstown, Chartex informed the employees
that none of them would be given the right to transfer, and that consequently all
would be terminated.
On November 14, 1991, the union filed suit in district court to enjoin the
closing pending arbitration of two grievances the union had filed concerning it.
On November 25, 1991, the district court issued a ten-day temporary
restraining order and asked the parties for briefing on the pertinent legal issues.
On December 5, 1991, after a hearing, the district court extended the
restraining order for ten more days. However, on December 13, 1991, the
district court vacated the restraining order and denied a preliminary injunction.
The district court ruled that the dispute was not arbitrable under the parties'
collective bargaining agreement. The court did not address the company's
alternate contention that, because arbitration is an adequate remedy, an
injunction prohibiting the closing would be improper in any event. See Boys
Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 254 (1970)
(injunction prohibiting strike over arbitrable dispute should issue only if
injunction would be proper under "ordinary principles of equity"). We describe
the parties' contentions, which are not pertinent to our disposition, in the
margin.1
II.
5
After the district court's order, the plant closing went forward. All production
work at the plant has been discontinued, and sixty of the sixty-eight employees
have lost their jobs. A small crew of eight former production workers now
operates the facility as a distribution depot. To the extent equipment and assets
have been transferred, this case is moot.
In Railway Labor Executives' Ass'n v. Chesapeake Western Railway, 915 F.2d
116 (4th Cir. 1990), cert. denied, 111 S.Ct. 1312 (1991), the sale of a Norfolk
Southern rail line was at issue. Among other relief, the plaintiff unions sought
to enjoin the line sale pending bargaining over the dispute under the Railway
Labor Act. The sale went forward while the appeal was pending. We held that
the claim for injunctive relief against the line sale was moot: "An appeal of the
denial of an injunction to prohibit an act is rendered moot by the happening of
the act." 915 F.2d at 118.
The entire relief prayed for in the union's complaint is:
8
Plaintiff
prays that the Defendant be temporarily restrained and preliminarily
enjoined pending the outcome of the above grievances from transferring any work,
machinery, or any capital assets from the Charleston, West Virginia facility.
9
Insofar as these things have happened, they cannot be enjoined.
III.
10
As we stated above, Chartex has not moved every asset from Charleston;
instead, it has converted its plant to a small distribution center. No removal of
the remaining assets is imminent. The power of a federal court may not be used
to enjoin the conjectural. Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991).
Unless Chartex desires to move these remaining assets, there is no "case or
controversy" concerning them. A federal court may not issue a perpetual
injunction prohibiting acts that may never occur, or that may occur under
circumstances that cause no controversy.
IV.
11
Because this matter became moot while on appeal, thus depriving the union of
its right to our review, the union should be relieved of the judgment against it.
United States v. Munsingwear, 340 U.S. 36 (1950). The Munsingwear rule
prevents the judgment below from "spawning any legal consequences." 340
U.S. at 41. Consequently, dismissal leaves open and unresolved the questions
discussed by the district court in its opinion.2 Kennedy v. Block, 784 F.2d
1220, 1225 (4th Cir. 1986).
12
The judgment of the district court is vacated. The case is remanded with
instructions to dismiss the union's complaint as moot.
VACATED AND REMANDED WITH INSTRUCTIONS
The union's grievances alleged that the company was transferring work and
ignoring seniority in violation of the collective bargaining agreement. The
collective bargaining agreement provides a procedure for processing
grievances, with arbitration as the final step. The agreement defines grievance
as "any controversy, complaint, misunderstanding, or dispute." This boundless
definition is limited, however, by a lengthy management rights clause
(emphasis added):
1 MANAGEMENT:
The management of the plant covered by this agreement and the direction of
the working forces therein are solely and exclusively the functions and
prerogatives of the management of the Company subject only to any specific
provisions of this agreement. All of the rights, functions and prerogatives of
management which are not expressly modified by one or more explicit
provisions of this agreement are reserved and retained exclusively to the
Company and shall not be subject to arbitration nor shall the exercise thereof be
otherwise questioned by the Union as a violation of this agreement except that
any claim that the Company has exercised such rights contrary to the provisions
of this agreement may be taken up as a grievance. In no event shall any right,
function or prerogative of management ever be deemed or construed to have
been modified, diminished or impaired by any past practice or course of
conduct, or otherwise than by explicit provision of this agreement.
Specifically, but without in any manner limiting or affecting the generality of
the foregoing and subject to any specific provision of this agreement, it is
distinctly understood and agreed that this agreement shall never be deemed or
construed to impair the Company's right in its sole discretion and judgment to,
determine the services to be rendered; determine the customers with whom it
will deal and the prices at which and terms upon which its services will be sold;
determine the size of the working force and policies affecting the selection of
employees; establish quality standards for its services; change, combine or
establish new departments or divisions; discontinue existing departments or
divisions; introduce new and improved production methods and facilities;
change existing production methods and facilities; and subcontract or procure
others to do such other production and maintenance work of the business as the
Company may deem advisable or necessary where such action is either
economically justified or there are not employees working who are capable of
performing the work satisfactorily or the Company does not have equipment
available to satisfactorily perform the work.
The company argued, and the district court agreed, that the decision to close
the Charleston plant was a management prerogative under this section, that no
other provision of the agreement limited it, and that the grievance was therefore
not subject to arbitration. The union counters that management's right to
discontinue operations is confined to "departments" and "divisions," and an
entire plant is not included. Inasmuch as the dispute requires interpretation of
the agreement, says the union, arbitration is required.
Ordinarily, arbitrability is an issue for judicial determination. AT & T
Technologies, Inc. v. Communications Workers of America, 475 U.S. 643,
649650 (1986). However, there is an important exception: "unless the parties
clearly and unmistakably provide otherwise." Id. at 649. The collective
bargaining agreement provides (emphasis added):
11
3 AUTHORITY OF THE ARBITRATOR:
The arbitrator shall not have the authority to amend or modify this agreement or
to establish new terms or conditions under this agreement. The arbitrator shall
determine any question of arbitrability ....
The union argues that the English language is hardly susceptible of a more
clear and unmistakable provision than "The arbitrator shall determine any
question of arbitrability." The district court held that it would be futile in this
case to have an arbitrator decide arbitrability. Because this case is moot, we
need not decide whether the "clear and unmistakable" exception to judicial
determination of arbitrability is itself subject to a "futility" exception.
The union maintained at oral argument that the company had initially agreed to
arbitrate the grievances, but has refused to do so in reliance on the district
court's order. That order will henceforth have no preclusive effect on any union
attempt to compel arbitration
