Opinion
Hearing Granted July 2, 1980.
Opinion on pages 1-15 omitted.
HEARING GRANTED [*]
Gray, Cary, Ames & Frye, San Diego, Thomas A. Nassif, Brawley, and Richard A. Paul, San Diego, for plaintiff and appellant Vessey & Company, Inc.
[163 Cal.Rptr. 489]Dressler, Stoll, Hersh & Quesenbery, Newport Beach, and Ronald H. Barsamian, El Centro, for plaintiff and appellant Mario Saikhon, Inc.
Marco Lopez, Francis E. Fernandez, Carmen Flores, and Carlos Alcala, Keene, for defendants and respondents.
STANIFORTH, Associate Justice.
Plaintiffs Mario Saikhon, Inc. and Vessey & Company, Inc. (Saikhon-Vessey) sought preliminary injunctions to prohibit the defendant United Farm Workers of America, AFL-CIO (Union) from engaging in strike activities in asserted violation of a no-strike clause and arbitration and grievance procedures contained in their respective collective bargaining agreements.
Vessey and Saikhon entered into separate collective bargaining agreements with the Union and originally brought separate suits charging the Union with striking in defiance of contract terms. These actions were consolidated.
The Union contended the agreements had expired, were no longer in effect. Saikhon-Vessey rely upon Labor Code sections 1126, 1165, subdivision (a), and the "Boys Market " doctrine as authority for granting a preliminary injunction.
Labor Code section 1126 provides: "Any collective bargaining agreement between an employer and a labor organization shall be enforceable at law or in equity, and a breach of such collective bargaining agreement by any party thereto shall be subject to the same remedies, including injunctive relief, as are available on other contracts in the courts of this State."
Labor Code section 1165, subdivision (a), provides: "Suits for violation of contracts between an agricultural employer and an agricultural labor organization representing agricultural employees, as defined in this part, or between any such labor organizations, may be brought in any superior court having jurisdiction of the parties, without respect to the amount in controversy."
Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199.
The trial court, after a contested evidentiary hearing denied the request for the preliminary injunction upon the rationale that neither Boys Markets, Inc. nor any other authority cited authorized judicial intervention to enjoin a strike being maintained after the termination of the labor agreements. Saikhon-Vessey appeal asserting trial court abuse of discretion.
FACTS
Vessey and Saikhon were lettuce and melon growers in the Imperial Valley. Vessey signed a collective bargaining agreement with the Union on April 16, 1977, and Saikhon signed an agreement with the Union on February 9, 1978. Both contracts contained termination dates of January 1, 1979, and both have appended what will be referred to as a "most favored nations clause" or the "Inter Harvest letter." The precise language of the "most favored nations clause" is:
"However, should the Union execute a contract with a different termination date with any Produce company engaged in the growing and shipping of fresh vegetables in California or Arizona during the term of this agreement, the Company reserves the right to change to that newly negotiated date by giving written notice of it's (sic) desire to exercise such right."
[163 Cal.Rptr. 490]In May of 1978, the Union signed a contract with K. K. Ito, an Oxnard celery and tomato grower. The Ito contract contained a termination date of February 29, 1980. Saikhon and Vessey contend the Ito contract triggered the most favored nations clause and extended their contracts to that expiration date contained in the Ito contract. The trial court took extensive testimony relevant to the meaning to be given the "most favored nations clause"; it not only examined the extrinsic circumstances in which these parties negotiated and agreed to the clause, but also heard evidence as to the circumstances surrounding the original negotiations of the "Inter Harvest letter."
The "Inter Harvest letter" referred to had its origins when the Union signed a collective bargaining agreement with Inter Harvest, Inc., one of the largest producers of iceberg lettuce in the United States. By its express terms, the Inter Harvest contract would expire on December 1, 1978. Mid-term in that contract, February 1977, Inter Harvest asked the Union to reopen the contract. The purpose of this request in the words of the Inter Harvest executive vice-president, Harold Bradshaw, was to "raise the wage scale up to the level of the Teamsters contract." As a result of a series of meetings, Inter Harvest and Union agreed to (1) raise the wages to a parallel with the Teamsters wage scale, (2) extend their contract to a later date for termination, to wit, January 1, 1979, and (3) included a "most favored nations clause" on duration. This most favored nations clause was drafted by Bradshaw, the negotiator for Inter Harvest, and the Inter Harvest labor relations director, Carl Watkins. The language is the same as that contained in the "most favored nations" letter of intent attached to the Saikhon-Vessey contracts.
Initially Bradshaw testified the most favored nations clause means exactly what it says on the face of the document, but he continued, explained the purpose of the clause Inter Harvest did not intend a literal interpretation of the clause. Bradshaw stated "We were concerned with our competition," which he defined as "anybody that was producing the same crops, major crops that we were." To illustrate this articulated intent, Bradshaw referred to the Union contract with Sam Vener, a San Diego County tomato grower. Vener's contract he concluded would not trigger the most favored nations clause in the Inter Harvest UFW contract even though Vener and Inter Harvest grow tomatoes, because Vener's tomatoes were harvested and on the market at a different time of the year than Inter Harvest. Similarly, Bradshaw testified that a Union contract with a hypothetical artichoke grower even though literally within the scope of most favored nations clause would not trigger operation of the clause because the clause applied only to competition and Inter Harvest does not grow artichokes.
Inter Harvest's interpretation of this clause was summed up by this exchange between the court and Bradshaw: (The Court:) "So at least it was your intent . . . to only have the clause triggered where there are areas of competition? (Bradshaw:) That's correct."
The Union participants in the Inter Harvest negotiations leading to the most favored nations clause letter agreed with Bradshaw's interpretation of that clause. Marshall Ganz, union board member, testified that the Inter Harvest letter was intended to deal only with Inter Harvest competition. Union agent Gilbert Padilla also testified the most favored nations clause was intended to cover Inter Harvest competition, not just any vegetable grower in California.
Concerning the Vessey contract negotiations, union negotiator Smith testified the most favored nations clause was not included in the final agreement of the parties but that "before the signing on April 16, there was an attempt to put into written form all of the agreements that we had reached that had only been expressed verbally during the last sessions of the bargaining." In the course of preparing the final draft of the contract, Mr. Nassif (negotiator for Vessey) presented the "InterHarvest supplement" [163 Cal.Rptr. 491] and expressed a desire to include "the InterHarvest letter of understanding on termination" in the Vessey contract. Negotiator Smith testified: "My understanding of the intention of the InterHarvest letter was to refer to lettuce companies or companies whose prime operation was lettuce both in Salinas and Imperial Valley. And since that was the entire scope of any discussions with Vessey in reference to economic negotiations, it was my understanding that the InterHarvest intention was what Vessey was given. . . . It was included in the contract as it had been in the InterHarvest contract. So we didn't reach any new understandings about what it meant. . . ." Without further discussion, the Inter Harvest letter of understanding was included in Vessey's contract.
Smith also testified to the Saikhon negotiations where again the Inter Harvest letter of understanding was not raised at the bargaining session nor was it included in the resulting final agreement; later at a "drafting" session, Charley Stoll (representing Saikhon) asked that the "letter of understanding, the InterHarvest letter of understanding, be included." Smith further testified: "(W)e included it as a almost as a side effect of having already reached agreement on all the substantive issues, was almost as a courtesy to give Vessey and in the Saikhon case the same protection that InterHarvest had sought, which was to remain competitive with other lettuce companies in the Salinas and Imperial Valley. There was no other special discussion of its intention."
Vessey and Saikhon look only to the face of the documents and argue for a literal interpretation of the most favored nations clause. They presented no evidence to suggest such a literal interpretation was intended at the time they requested the clause. Nor did Saikhon-Vessey offer any evidence to suggest an intent contrary to the expressed intent of the original drafters of the "Inter Harvest letter"; or that this clause was intended to insulate their companies from noncompetitors as well as competitors.
Although the Union had signed a collective bargaining agreement with Ito (the Oxnard grower of celery and tomatoes ) with the February 29, 1980, termination date, yet it had refused to negotiate a contract with a Santa Clara produce company (and other vegetable growers specified in the testimony) with a termination date later than that in the Saikhon-Vessey agreements for the reason that the Santa Clara grower, and the others, grew lettuce and other vegetables which placed them in direct competition with Saikhon-Vessey as well as Inter Harvest.
By letter of December 4, 1978, Saikhon attempted to extend its contract with the Union until February 29, 1980, the termination date of the Ito contract. By similar letter of December 2, 1978, Vessey attempted the same contract extension. The Union demurred. The strike activities here sought to be enjoined occurred after January 1, 1979.
DISCUSSION
I
Saikhon-Vessey cite Boys Markets, Inc. v. Retail Clerk's Union, Local 770, supra, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, as controlling authority authorizing injunctive relief as an appropriate remedy to halt an illegal breach of a collective bargaining agreement. In Boys Markets, Inc., the United States Supreme Court upheld the right of the federal district court to enforce the breach of a no-strike clause in a valid-operative collective bargaining agreement in spite of the preemptive effect of the Labor Management Relations Act of 1947 (LMRA) (29 U.S.C.A., § 185, subd. (a)) and the anti-injunction provisions of the Norris-LaGuardia Act (29 U.S.C.A., § 104).
Since the enactment in 1941 of Labor Code section 1126, there has been no question of the authority of the California state court to grant equitable relief for breach of the terms of a collective bargaining agreement in an appropriate case. Boys Markets, Inc., supra, addresses the question of federal court authority to give injunctive relief in view of the federal statutory constraints.
[163 Cal.Rptr. 492]In Boys Markets, Inc., there was an unquestioned effective collective bargaining agreement between the parties at the time when the dispute arose, when the strike activities occurred, and when injunctive relief was sought. Here the Union's first challenge was to the existence if any of collective bargaining agreement when the strike activities occurred or when aid of equity was sought. In analyzing the "landmark" decision in Boys Markets, Inc., supra, the authors of Labor and Labor Relations, section 1979, volume 48A Am.Jur.2d p. 372, state:
"In this case, the court established three prerequisites to jurisdiction in a Federal District Court to enjoin a strike: (1) the strike must be in breach of a no-strike obligation under an effective collective bargaining agreement ; (2) the strike must be over an arbitrable grievance; and (3) both parties must be contractually bound to arbitrate the underlying grievance which caused the strike." (Fn. omitted; italics added.)
Speaking for itself, the United States Supreme Court stated:
"A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance." (Sinclair Refining Company v. Atkinson, 370 U.S. 195, 228, 82 S.Ct. 1328, 1346, 8 L.Ed.2d 440.)
And in Parade Publications, Inc. v. Philadelphia Mailers U. No. 14, 459 F.2d 369, 373, the court said:
"(W)e interpret the court's rulings at the end of the hearing on the preliminary injunction as indicating a legal conclusion that a District Court may enjoin a strike without specifically determining what grievance caused the strike and whether that grievance was an arbitrable one under an existing collective bargaining agreement. The clearly stated position of the unions was that without such findings the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the strike."
The federal court, after review of the Boys Market decision, vacated the trial court's grant of preliminary injunction (Parade Publications, Inc., supra, p. 374) stating: "The District Court must in the first instance, decide these issues." California law is in accord. In Consolidated Theatres, Inc. v. Theatrical Stage Employees Union, 69 Cal.2d 713, 73 Cal.Rptr. 213, 447 P.2d 325, the plaintiff (Consolidated Theatres) sought to enjoin the union's picketing to compel the theatre to employ members of the union at one of its theatres. The theatre contended it had an agreement and its breach authorizing the injunctive relief and claimed that the "contract exception" ( § 301, subd. (a) of the LMRA; 29 U.S.C.A., § 185, subd. (a)) gave the state court authority to grant such relief. Said the Supreme Court at page 731, 73 Cal.Rptr. at page 225, 447 P.2d at page 337:
"Under this view, then, the contract was terminated upon reasonable notice prior to the activities of which Consolidated complains. (P) Our conclusion, that there was no valid contract between the parties at the time of the labor dispute leading to the instant litigation, precludes application to this case of the so-called contract exception to the rules relating to the jurisdiction of the National Labor Relations Board."
[163 Cal.Rptr. 493]In John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898, an action to compel arbitration, the issue was whether a duty to arbitrate under a collective bargaining agreement survived the merger of the contracting employer with another corporation. The United States Supreme Court said:
"The threshold question in this controversy is who shall decide whether the arbitration provisions of the collective bargaining agreement survived the Wiley-Interscience merger, so as to be operative against Wiley. Both parties urge that this question is for the courts. Past cases leave no doubt that this is correct. (Fn. omitted.) 'Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.' (Citations.)" (Id. at pp. 546-547, 84 S.Ct. at pp. 912-913.)
In Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 354, 182 P.2d 182, 194, the California Supreme Court said:
"The field of arbitration is a limited one and presupposes a judicial determination of any disputed issue which concerns the question as to whether there is a valid contract between the parties at the time of the demand for arbitration. Professor Williston states the law in this regard as follows: 'When the claim, however, is that the contract is invalid because of fraud, duress, failure of consideration, rescission, cancellation, accord and satisfaction, there is much doubt on the matter, but it is probable that the court will first pass on the issue of fraud, etc., even if the arbitration clause seems broad enough to allow the arbitrators themselves to pass on those issues of fraud.' In a footnote to this statement, he adds: 'It seems clear that the court should first pass on these issues before ordering arbitration. * * * ' (Williston on Contracts, § 1920, pp. 5370, 5371.)
"This rule rests upon fundamental principles. In the event that a defendant in resisting a proceeding to compel arbitration pleads a defense concerning the validity of the contract which would bar an award against him upon the merits of the controversy, a finding in his favor by arbitrators would destroy the only basis of their jurisdiction, which is a valid contract to arbitrate. Such an issue, therefore, requires judicial determination. 'If the defendant is found correct in his contention, judgment for the defendant could be granted. . . .' "
Moreover, Saikhon-Vessey's reliance upon the doctrine expressed in the "Steelworkers Trilogy" (United Steelwkrs. of Amer. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelwkrs. of Am. v. Warrior & Gulf N. Co., 363 U.S. 574 (80 S.Ct. 1347); United Steelwkrs. of A. v. Enterprise W. & C. Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424) of cases is inapposite. Each of these cases rest upon an unchallenged valid enforceable effective collective bargaining agreement containing an arbitration and detailed grievance procedure clauses. In such context, the trial court's function is indeed limited to a determination of the matter sought to be arbitrated as on its face within the arbitration clause of the contract. These cases do not deal with a challenge to the viability of the contract itself. Thus the "presumption of arbitrability" has no application here.
Nor is Nolde Bros. Inc. v. Loc. No. 358 Bak. & Conf. Wkrs. U., 430 U.S. 243, 97 S.Ct. 1067, 48 L.Ed.2d 793 in point. In Nolde, after termination of its contract, the union sought to compel the employer to arbitrate a dispute over the meaning of the "severance pay" clause in the agreement. The court held that parties to a collective bargaining agreement may agree that rights accrued during the term of the agreement shall be realized after its expiration. (Id., at p. 249, 97 S.Ct. at p. 1070.) "The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract." (Id., at p. 249, 97 S.Ct. at p. 1071.) To the same effect see John Wiley & Sons v. Livingston, supra, 376 U.S. 543, 555, 84 S.Ct. 909, 917, 11 L.Ed.2d 898.
[163 Cal.Rptr. 494]Saikhon-Vessey here sought judicial intervention by way of an injunction against strike activities occurring after the agreement had expired by its plain language, its express terms. Nolde therefore bears no factual resemblance to the case at bench. Finally Saikhon-Vessey after vigorously asserting the foregoing legal arguments make this startling concession: "What is at issue between the parties in this case is whether the contract does indeed exist." We agree.
II
Thus the trial court correctly addressed the "threshold" question a question of fact: Was the contract in fact in existence authorizing a grant of the equitable relief sought?
Where the existence of the contract is in doubt or its existence is not proved with the degree of certainty which the law requires, an injunction will be refused. (43A Corp.Jur.Sec., p. 105, Injunctions, § 89, and cases cited.) And the moving party (Saikhon-Vessey) had the burden of proof as to the reasonable probability of success in the assertion of their rights. (Continental Baking Co. v. Katz, 68 Cal.2d 512, 528, 534, 67 Cal.Rptr. 761, 439 P.2d 889.)
Civil Code section 1636 declares that "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." This section was applied to the interpretation of private collective bargaining agreements in General Precision, Inc. v. International Association of Machinists, 241 Cal.App.2d 744, 746-747, 50 Cal.Rptr. 921, and McKay v. Coca-Cola Bottling Co., 110 Cal.App.2d 672, 676, 243 P.2d 35.
In carrying out these duties, the trial court admitted both oral and documentary evidence on the issue of the intent of the parties, the meaning to be given to the "most favored nations clause."
Vessey and Saikhon assert that extrinsic evidence on this issue offered by the Union and admitted by the Court should have been excluded under the parol evidence rule. It is claimed the "Inter Harvest letter" is unambiguous on its face.
It may be conceded that the clause appears facially unambiguous. However, this conclusion does not end the race for the applicable rule is:
" ' "The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. " To determine whether offered evidence is relevant to prove such a meaning the court must consider all credible evidence offered to prove the intention of the parties. " If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, is 'fairly susceptible of either one of the two interpretations contended for * * * ' (citations), extrinsic evidence to prove either of such meanings is admissible. " (Citation.)' " (Gribaldo, Jacobs, Jones & Associates v. Agrippina Versicherunges A. G., 3 Cal.3d 434, 443, 91 Cal.Rptr. 6, 11, 476 P.2d 406, 411.)
The trial court followed precisely the procedure approved in Gribaldo, Jacobs, supra, wherein it was said:
"In applying the foregoing test, the preliminary consideration of all credible evidence offered to prove the intention of the parties requires that the trial court consider evidence which includes testimony as to the circumstances surrounding the making of the agreement including the object, nature and subject matter of the writing so that the court can place itself in the same situation in which the parties found themselves at the time of contracting. (Citation.)" (Ibid.)
Moreover, the trial court correctly admitted the evidence conditionally. (See Pacific Gas & Elec. Co. v. G. W. Thomas Drayage etc. Co., 69 Cal.2d 33, 48, fn. 7, 69 Cal.Rptr. 561, 442 P.2d 641.)
[163 Cal.Rptr. 495]The evidence so offered and received demonstrated the fact that a latent ambiguity existed in the most favored nations clause and secondly, explained that ambiguity once found. No violation of the parol evidence rule occurred.
The determination of both the presence of a latent ambiguity and the meaning to be given to these words were factual matters to be determined by the trier of fact after a contested evidentiary hearing. The court, in Scott v. Sun-Maid Raisin Growers Assn., 13 Cal.App.2d 353, 359, 57 P.2d 148, 151, said: "When the meaning of the language of a contract is uncertain or doubtful and parol evidence is introduced in aid of its interpretation, the question of its meaning is one of fact . . . ." (Walsh v. Walsh, 18 Cal.2d 439, 444, 116 P.2d 62; Thomson v. Leak, 135 Cal.App. 544, 548, 27 P.2d 795; Gallatin v. Markowitz, 139 Cal.App. 10, 13, 33 P.2d 424.)
Further, it is a long-established rule where extrinsic evidence was properly admitted as an aid to interpretation of the contract and the evidence is in conflict, a reasonable construction of the agreement by the trial court, if supported by substantial evidence, will be upheld. (In re Marriage of Fonstein, 17 Cal.3d 738, 746-747, 131 Cal.Rptr. 873, 552 P.2d 1169.) The trial court here after consideration of much extrinsic evidence concluded the most favored nations clause was to be triggered only by a grower in competition with Saikhon-Vessey whose contract had a later termination date and that celery-tomato grower Ito was not in "competition" with lettuce growers Saikhon-Vessey. Substantial evidence supports these trial court conclusions.
The granting or denial of a preliminary injunction in the circumstances here disclosed, rests ultimately upon the sound discretion of the trial court and its order may not be interfered with on appeal except for an abuse of discretion. (People v. Black's Food Store, 16 Cal.2d 59, 61, 105 P.2d 361; Greenly v. Cooper, 77 Cal.App.3d 382, 390, 143 Cal.Rptr. 514; Continental Baking Co. v. Katz, supra, 68 Cal.2d 512, 527, 67 Cal.Rptr. 761, 439 P.2d 889.)
We find no abuse of discretion on the part of the trial court in its refusal to issue a preliminary injunction.
Judgment affirmed.
COLOGNE, Acting P. J., concurs.
San Diego Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council.
I concur in the judgment. It has long been held that the trial court has broad discretion in deciding whether to grant injunctive relief. The fact a plaintiff may ultimately be entitled to a permanent injunction does not necessarily mean he is entitled to a preliminary injunction (Gosney v. State of California, 10 Cal.App.3d 921, 89 Cal.Rptr. 390). Absent an abuse of discretion the trial court's determination should be upheld:
" ' "The authorities are numerous and uniform to the effect that the granting or denial of a preliminary injunction . . . , even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and that the order may not be interfered with on appeal, except for an abuse of discretion. " . . . "The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him. " . . . In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights.' " (Weingand v. Atlantic Sav. & Loan Assn., [163 Cal.Rptr. 496] 1 Cal.3d 806, 820, 83 Cal.Rptr. 650, 657, 464 P.2d 106, 113.)
There was ample evidence regarding the conflict in the interpretation of the labor contract to justify the court's denial in issuing the preliminary injunction. However, the court's detailed fact finding into the intent of the parties in reaching an agreement on the favored nations clause, and its ultimate conclusion the contract had terminated, were matters beyond the role of the court in its inquiry as to whether to issue the injunction.
It is true that where the issue in dispute is the threshold question of whether a bargaining contract exists, this issue must be resolved by the courts (9 U.S.C., § 4; International U., U.A., A. & A.I.W. v. International T. & T., 508 F.2d 1309). However, the parties may agree to arbitrate the issue of whether a contract exists, and the determination of whether the existence of the contract is arbitrable depends on the language of the arbitration clause (International U., U.A., A. & A.I.W. v. International T. & T., supra, 508 F.2d 1309; Haig Berberian v. Cannery Warehousemen, 535 F.2d 496). The courts in Haig and ITT held the language of the so-called "standard arbitration clause" evidences an intent to arbitrate the issues of the existence of a contract. The language of the standard arbitration clause discussed in those cases is almost identical to the language of the grievance and arbitration clause in the case before us:
"Grievance and Arbitration Procedure A. The parties to this Agreement agree that all disputes which arise between the Company and the Union under the interpretation or application, of this Agreement shall be subject to the Grievance and Arbitration Procedure." (Italics added.)
I would affirm the judgment denying the preliminary injunction but am of the opinion the court should have referred the interpretation of the contract to the arbitrator.
[*] on March 16, 1981, the matter was dismissed as moot.