Under § 301 of the Labor Management Relations Act, 1947, an
employer sued a union for damages alleged to have resulted from the
union's action in encouraging its members to strike or not to
report for work on a certain day in violation of a no-strike clause
contained in a collective bargaining agreement between the employer
and the union. The contract provided for compulsory, final and
binding arbitration, at the request of either party, of
"all complaints, disputes or grievances arising between [the
parties] involving questions of interpretation or application of
any clause or matter covered by this contract or any act or conduct
or relation between the parties hereto, directly or
indirectly."
The union moved that the suit be stayed pending arbitration of
the dispute, and it supported this motion by an affidavit denying
that it had instigated a strike or encouraged its members not to
work on the day in question.
Held: the District Court properly stayed the action
pending completion of arbitration. The contract here involved
obligates the employer to arbitrate its claim for damages for
forbidden strikes by the union, and there are no circumstances in
this record which would justify relieving the employer of its duty
to arbitrate the consequences of this one-day strike, intertwined
as it is with the union's denials that there was any strike or any
breach of contract. Pp.
370 U. S.
255-267.
(a) The employer's claim against the union for damages for an
alleged strike in violation of the contract is clearly within the
scope of the arbitration provisions of the contract here involved.
Atkinson v. Sinclair Refining Co., ante, p.
370 U. S. 238,
distinguished. Pp.
370 U. S.
256-260.
(b) In the circumstances of this case, the alleged one-day
strike was not such a breach or repudiation of the arbitration
clause by the union that the employer was excused from arbitrating
its claim for damages resulting therefrom. Pp.
370 U. S.
260-266.
Page 370 U. S. 255
(c) On the record in this case, it cannot be said that the union
is not entitled to a stay because it did not proceed with
sufficient dispatch in seeking arbitration of the employer's damage
claim against it. Pp.
370 U. S.
266-267.
294 F.2d 399, affirmed.
MR. JUSTICE WHITE delivered the opinion of the Court.
The petitioning company brought this action for damages in the
District Court under § 301(a) of the Taft-Hartley Act, alleging
that the respondent union had violated the no-strike clause of the
collective bargaining contract between the union and the company.
The sole question in the case is whether the District Court was
correct in holding that the employer's claim was an arbitrable
matter under the contract, and in ordering a stay of the action
pending completion of arbitration. The Court of Appeals for the
Second Circuit affirmed the judgment of the District Court by an
equally divided vote. [
Footnote
1] This Court granted certiorari (368 U.S. 975), and set the
cause for argument immediately following
Atkinson v. Sinclair
Refining Co., ante, p.
370 U. S. 238,
decided this day.
Page 370 U. S. 256
The company's business is baking and selling cakes and other
bakery products. On December 16, 1959, the company notified the
union and its employees that, because Christmas and New Year's
would fall on Fridays, and because it was desirable to have fresh
bakery products to sell on the Mondays following the holidays,
employees would not work on the Thursdays before Christmas and New
Year's, but would work on the Saturdays following those holidays.
Meetings between the union and the company on December 18 and
December 22 ensued, the company's position being that it was
exercising management's prerogative in rescheduling work, the
union's that the proposed work schedule violated the collective
bargaining contract and that the employees were not obligated to
work on December 26 or January 2. A compromise arrangement was
worked out for December 26, and 80 out of 190 employees reported on
that day, a sufficient number to allow production to proceed.
Further conversations On December 28 were not fruitful, however,
and on Saturday, January 2, the company was unable to produce its
goods because only 26 employees reported for work. The company
promptly filed this damage action on January 4, 1960, alleging that
the union instigated and encouraged its members to strike or not to
report for work on January 2, all in violation of the no-strike
clause contained in the collective bargaining contract. No answer
has been filed by the union, but the union's affidavit in support
of the motion for stay stated what its answer would contain and
specifically denied that the union had instigated a strike or
encouraged its members not to work on January 2.
As was true in
Atkinson, supra, the issue of
arbitrability is a question for the courts and is to be determined
by the contract entered into by the parties. " . . . [A] party
cannot be required to submit to arbitration any dispute which he
has not agreed so to submit."
United
Steelworkers
Page 370 U. S. 257
v. Warrior & Gulf Nav. Co., 363 U.
S. 574,
363 U. S. 582.
But the contract here is much different from the agreement in
Atkinson. Under Article V [
Footnote 2] of the contract:
"The parties agree that they will promptly attempt to adjust all
complaints, disputes or grievances arising between them involving
questions of interpretation or application of any clause or matter
covered by this contract or any act or conduct or relation between
the parties hereto, directly or indirectly."
This is broad language, indeed, and the procedure thereafter
provided in Article V does not, as it did in
Atkinson,
exclude claims or complaints of the employer. It is provided that
in the first instance the union will be represented by a committee
and the shop chairman, and the employer by the shop manager.
Failing adjustment at this stage, the issue is required to be
submitted in writing by "the party claiming to be aggrieved to the
other party,"
Page 370 U. S. 258
whereupon the union and the plant manager are to attempt to
reach a satisfactory agreement. If agreement is not reached within
seven days from the time the issue is submitted in writing, either
party "shall have the right to refer the matter to arbitration. . .
."
Article V does not stop with disputes "involving questions of
interpretation or application of any clause or matter" covered by
the contract. The adjustment and arbitration procedures are to
apply to all complaints, all disputes, and all grievances involving
any act of either party, or any conduct of either party, or any
relation between the parties, directly or indirectly. The company
asserts that there was a strike by the union in violation of the
no-strike clause. It therefore has a "complaint" against the union
concerning the "acts" or "conduct" of the union. There is also
involved a "dispute" between the union and the company, for the
union denies that there was a strike at all, denies that it
precipitated any strike, denies that the employees were obligated
under the contract to work on that January 2, and itself claims
that the employer breached the contract in scheduling work for the
holidays. [
Footnote 3] Article
V, on its face, easily reaches the employer's claim against the
union for damages caused by an alleged strike in violation of the
contract.
The company earnestly contends that the parties cannot have
intended to arbitrate so fundamental a matter as a union strike in
breach of contract, and that only an
Page 370 U. S. 259
express inclusion of a damage claim by the employer would
suffice to require arbitration. But it appears more reasonable to
us to expect such a matter, if it is indeed so fundamental and so
basic to the company under the contract, to have been excluded from
the comprehensive language of Article V if the parties so intended.
In Article VII, [
Footnote 4]
which contains the no-strike provisions, the parties prohibited
strikes, insulated the union, its officers and members from damages
for strikes which the union did not authorize, and agreed that,
even in the case of unauthorized strikes, the company would
arbitrate disciplinary action taken against the strikers. In the
face
Page 370 U. S. 260
of the comprehensive language of Article V, it would have been
most appropriate at this point for the parties to have excluded
from the arbitration procedures the company's claim for strike
damages, if they had intended to do so. Instead, the inclusive
coverage of Article V was left intact.
Of significance also are certain events which occurred in
August, 1959. At that time, the company took issue with union
conduct in connection with overtime work. Labeling this conduct an
"overtime strike" and a "breach of contract," the company wrote a
letter to the State Mediation Board of New York saying that the
contract with the union provided for arbitration of disputes before
an arbitrator appointed by the Board and requesting the appointment
of an arbitrator to "determine the question of breach of contract
and damages suffered by" the company as a result of the strike. An
award of damages against the union was requested, as was injunctive
relief against a continuance of the overtime strike. [
Footnote 5] It would appear, then, that the
company, just four months earlier in 1959, considered that the
fundamental matter of a union-led strike was a dispute to be
arbitrated under the provisions of the contract. [
Footnote 6]
The company further asserts that, even if it agreed in the
contract to arbitrate union violations of the no-strike clause, it
is excused by the union's breach from pursuing the post-breach
remedies called for in the contract. The
Page 370 U. S. 261
company does not deny that grievance and arbitration procedures
under this contract -- as is true generally (
United
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.
S. 574,
363 U. S. 584)
-- contemplate as a matter of course the arbitration of many
alleged breaches of contract. Indeed, central to the company's
position is its assertion that the union was bound to arbitrate,
rather than strike over, its claim that the company breached the
contract by scheduling Saturday work. But, in its view, the union's
violation of the no-strike clause is
sui generis, and so
basic to what the employer bargained for in the contract and so
inherently and "fundamentally inconsistent with" the grievance and
arbitration procedures that the faithful observance of the
no-strike clause by the union is a condition precedent to the
employer's duty to arbitrate (even though he has promised to do
so), or that the union must be deemed to have waived, or to be
estopped from asserting, its right to arbitrate.
However, this Court has prescribed no such inflexible rule
rigidly linking no-strike and arbitration clauses of every
collective bargaining contract in every situation. [
Footnote 7] The company has not attempted, or
claimed the right, either to terminate the entire contract or to
extinguish permanently its obligations under the arbitration
provisions. Instead, it has sued for damages for an alleged strike
and, as far as this record reveals, the contract continued in
effect, as did the promises of the parties to arbitrate and the
promise of the union not to strike. Moreover, in this
Page 370 U. S. 262
case, under this contract, by agreeing to arbitrate all claims
without excluding the case where the union struck over an
arbitrable matter, the parties have negatived any intention to
condition the duty to arbitrate upon the absence of strikes. They
have thus cut the ground from under the argument that an alleged
strike, automatically and regardless of the circumstances, is such
a breach or repudiation of the arbitration clause by the union that
the company is excused from arbitrating, upon theories of waiver,
estoppel, or otherwise. [
Footnote
8] Arbitration provisions, which themselves have not been
repudiated, are meant to survive breaches of contract, in many
contexts, even total breach; [
Footnote 9] and, in determining whether one party has so
repudiated his promise to arbitrate that the other party is excused
the circumstances of the claimed repudiation
Page 370 U. S. 263
are critically important. [
Footnote 10] In this case, the union denies having
repudiated in any respect its promise to arbitrate, denies that
there was a strike, denies that the employees were bound to work on
January 2, and asserts that it was the company itself which ignored
the adjustment and arbitration provisions by scheduling holiday
work.
In passing § 301, Congress was interested in the enforcement of
collective bargaining contracts, since it would "promote a higher
degree of responsibility upon the parties to such agreements, and
will thereby promote industrial peace" (S.Rep. No. 105, 80th Cong.,
1st Sess. 17). It was particularly interested in placing "sanctions
behind agreements to arbitrate grievance disputes" (
Textile
Workers Union v. Lincoln Mills, 353 U.
S. 448,
353 U. S.
456). The preferred method for settling disputes was
declared by Congress to be "[f]inal adjustment by a method agreed
upon by the parties" (§ 203(d) of the Act, 29 U.S.C. § 173(d)).
"That policy can be effectuated only if the means chosen by the
parties for settlement of their differences under a collective
bargaining agreement is given full play."
(
United Steelworkers v. American Mfg. Co., 363 U.
S. 564,
363 U. S.
566). Under our federal labor policy, therefore, we have
every reason to preserve the stabilizing influence of the
Page 370 U. S. 264
collective bargaining contract in a situation such as this. We
could enforce only the no-strike clause by refusing a stay in the
suit for damages in the District Court. We can enforce both the
no-strike clause and the agreement to arbitrate by granting a stay
until the claim for damages is arbitrated. This we prefer to do.
[
Footnote 11]
Petitioner relies upon decisions by various Courts of Appeals
denying stays of damage suits for breach of no-strike clauses for
want of arbitrability of the dispute. [
Footnote 12] Most of them, however, involved far more
narrowly drawn arbitration clauses than that which is involved
here. [
Footnote 13] And in
at least two Court of Appeals decisions involving clauses of
comparable breadth to that of the instant case, violations of
no-strike clauses have been held to be arbitrable
Page 370 U. S. 265
and suits for damages have been stayed pending arbitration.
[
Footnote 14]
This Court held in
Mastro Plastics Corp. v. Labor
Board, 350 U. S. 270,
that the employer did not have the right to replace employees who
had struck over employer unfair labor practices, in the face of an
absolute no-strike clause. It was said that, despite the broad
prohibition of strikes in the contract, the parties could not have
intended to waive the employees' right to strike over a flagrant
unfair labor practice, absent an express statement in the contract
to that effect. The company urges that
Mastro precludes
the result we have reached in this case.
Mastro, however,
involved a flagrant unfair labor practice by the company
threatening the very existence of the union itself. A strike in
violation of contract is not
per se an unfair labor
practice, [
Footnote 15] and
there is no suggestion in this record that the one-day strike
involved here was of that nature. We do not decide in this case
that in no circumstances would a strike in violation of the
no-strike clause contained in this or other contracts entitle the
employer to rescind or abandon the entire contract or to declare
its promise to arbitrate forever discharged or to refuse to
arbitrate its damage claims against the union. We do decide and
hold that Article V of this contract obligates the company to
arbitrate its claims for damages from forbidden strikes by the
union, and that there are no circumstances in this record which
justify relieving
Page 370 U. S. 266
the company of its duty to arbitrate the consequences of this
one-day strike, intertwined as it is with the union's denials that
there was any strike or any breach of contract at all.
If the union did strike in violation of the contract, the
company is entitled to its damages; by staying this action, pending
arbitration, we have no intention of depriving it of those damages.
We simply remit the company to the forum it agreed to use for
processing its strike damage claims. That forum, it is true, may be
very different from a courtroom, [
Footnote 16] but we are not persuaded that the remedy
there will be inadequate. Whether the damages to be awarded by the
arbitrator would not normally be expected to serve as an
"effective" deterrent to future strikes, which the company urges,
is not a question to be answered in the abstract or in general
terms. This question, as well as what result will best promote
industrial peace, can only be answered in the factual context of
particular cases. Here, the union claims it did not call a strike,
and that the men were not bound to work on January 2, basing its
claim upon years of past practice under the contract. The dispute
which this record presents appears to us to be one particularly
suited for arbitration, if the parties have agreed to arbitrate. We
hold that they did so agree, and will hold the company to its
bargain.
A final matter is the company's suggestion that the union is not
entitled to a stay because it has not proceeded with dispatch in
seeking arbitration. The District Court held that the union was not
in default, and we agree. If the company had a claim for damages,
the contract provided for the company's attempting to adjust its
claim by consulting with the union. Failing this, either party
could take the matter to arbitration. The company's claim arose out
of events which occurred on
Page 370 U. S. 267
January 2. This case was filed on January 4. This was the first
occasion for the union to insist upon its right to arbitrate the
employer's claim for damages. This it promptly did by moving for a
stay in the District Court. [
Footnote 17] As its conduct shows in a previous
situation, the employer was aware of the procedure to be followed.
[
Footnote 18] It should have
followed it here.
For the foregoing reasons, the judgment affirming the opinion of
the District Court was correct, and, on the merits, the panel
decision properly withdrawn.
Affirmed.
MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.
[
Footnote 1]
The Court of Appeals originally heard the appeal before a
three-judge panel, which reversed the judgment below. (287 F.2d
155). But rehearing was ordered before the active judges of the
court, who divided 3-3 on the merits, and by a 4-2 vote withdrew
the panel decision and affirmed the judgment below (294 F.2d 399).
The priority of this procedure was questioned in the petition for
certiorari, but later petitioner abandoned the question.
[
Footnote 2]
"Article V -- Grievance Procedure"
"(a) The parties agree that they will promptly attempt to adjust
all complaints, disputes or grievances arising between them
involving questions of interpretation or application of any clause
or matter covered by this contract or any act or conduct or
relation between the parties hereto, directly or indirectly."
"In the adjustment of such matters, the Union shall be
represented in the first instance by the duly designated committee
and the Shop Chairman and the Employer shall be represented by the
Shop Management. It is agreed that, in the handling of grievances,
there shall be no interference with the conduct of the
business."
"(b) If the Committee and the Shop Management are unable to
effect an adjustment, then the issue involved shall be submitted in
writing by the party claiming to be aggrieved to the other party.
The matter shall then be taken up for adjustment between the Union
and the Plant Manager or other representative designated by
management for the purpose. If no mutually satisfactory adjustment
is reached by this means, or in any event within seven (7) days
after the submission of the issue in writing as provided above,
then either party shall have the right to refer the matter to
arbitration as herein provided."
[
Footnote 3]
Immediately before the Christmas weekend in 1959, petitioner and
respondent exchanged telegrams, in the course of which exchange
respondent charged:
"We have informed you that we did not agree with, or accept your
proposal to amend or alter past practice concerning holiday
week-ends. Your proposed schedule and your threats of disciplinary
penalties violates contract and practice. . . . If you do no
retract position, we shall demand arbitration."
[
Footnote 4]
Article VII-No Strikes
"(a) There shall be no strike, boycott, interruption of work,
stoppage, temporary walk-out or lock-out for any reason during the
terms of this contract except that if either party shall fail to
abide by the decision of the Arbitrator, after receipt of such
decision, under Article 6 of this contract, then the other party
shall not be bound by this provision."
"(b) The parties agree as part of the consideration of this
agreement that neither the International Union, the Local Union, or
any of its officer, agents or members, shall be liable for damages
for unauthorized stoppage, strikes, intentional slowdowns or
suspensions of work if:"
" (a) The Union gives written notice to the Company within
twenty-four (24) hours of such action, copies of which shall be
posted immediately by the Union on the bulletin board that it has
not authorized the stoppage, strike, slowdown or suspension of
work, and"
" (b) if the Union further cooperates with the Company in
getting the employees to return and remain at work."
"It is recognized that the Company has the right to take
disciplinary action, including discharge, against any employee who
engages in any unauthorized strike or work stoppage, subject to the
Union's right to submit to arbitration in accordance with the
agreement the question of whether or not the employee did engage in
any unauthorized strike or work stoppage."
[
Footnote 5]
Apparently the employer's thought was that the federal law
should borrow the New York rule, which is that an arbitrator may
award relief in the nature of an injunction, enforceable in the
courts regardless of the New York statute similar to the
Norris-LaGuardia Act.
Ruppert v. Egelhofer, 3
N.Y.2d 576, 170 N.Y.S.2d 785, 148 N.E.2d 129.
[
Footnote 6]
The union opposed arbitration of this dispute, claiming that
there was no arbitrable controversy as to the claimed existence of
an obligation to work overtime. The parties settled the controversy
without conclusive determination of the arbitrability dispute.
[
Footnote 7]
We do not understand the opinions in
Textile Workers Union
v. Lincoln Mills, 353 U. S. 448,
353 U. S. 455,
or
United Steelworkers v. American Mfg. Co., 363 U.
S. 564,
363 U. S. 567,
to enunciate a flat and general rule that these two clauses are
properly to be regarded as exact counterweights in every industrial
setting, or to justify either party to the contract in wrenching
them from their context in the collective agreement on the ground
that they are mutually dependent covenants which are severable from
the other promises between the parties.
[
Footnote 8]
In
Local 174 v. Lucas Flour Co., 369 U. S.
95,
369 U. S.
105-106, it was held that a clause requiring the parties
to submit disputes to final determination by arbitration implied an
obligation not to strike over such disputes. Accordingly, the Court
upheld an employer's § 301 breach of contract suit against the
union for strike damages due to a walkout over an arbitrable
dispute. In that case, unlike the present one, the union conceded
that there had been a strike over a grievance which the union had
agreed to submit to arbitration. The only question in dispute was
liability
vel non. The union did not contend that, and the
Court did not consider whether, the employer's damage claim should
have been taken to an arbitrator. And, of course, the Court did not
consider whether the union's breach of the no-strike clause
constituted a repudiation or waiver of arbitration of the damage
claim.
[
Footnote 9]
See In re Pahlberg Petition, 131 F.2d 968 (C.A.2d
Cir.);
Kulukundis Shipping Co. v. Amtorg Trading Corp.,
126 F.2d 978 (C.A.2d Cir.);
Pennsylvania Greyhound Lines v.
Amalgamated Ass'n, 98 F. Supp.
789 (W.D.Pa.),
rev'd on other grounds, 193 F.2d 327
(C.A.3d Cir.);
Batter Bldg. Mats. Co. v. Kirschner, 142
Conn. 1, 110 A.2d 464;
Heyman v. Darwins, Ltd., [1942]
A.C. 356 (H.L.) (disapproving
Jureidini v. National Br. &
Ir. Ins. Co., [1915] A.C. 499, 505 (H.L.)).
See also
Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp.,
70 F.2d 297, 299 (C.A.2d Cir.),
aff'd, 293 U. S. 293 U.S.
449,
293 U. S.
453-454.
[
Footnote 10]
6 Corbin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-193)
states:
"The effect of a repudiation upon the repudiator's right to
arbitration should depend on the character of his so-called
'repudiation' and the reasons given for it. One who flatly
repudiates the provision for arbitration itself should have no
right to the stay of a court action brought by the other party. But
mere nonperformance, even though unjustified, is not
per
se a 'repudiation.' One who asserts in good faith that the
facts justify him in refusing performance of other provisions in
the contract should not thereby lose his right to arbitration that
he would otherwise have had. There is no inconsistency in his
demanding arbitration at the same time that he asserts his legal
privilege not to proceed with performance."
[
Footnote 11]
Cf. Boone v. Eyre, 1 Bl.H. 273, 126 Eng.Rep. 160 (K.B.
1777) (L. Mansfield):
". . . [W]here mutual covenants go to the whole of the
consideration on both sides, they are mutual conditions, the one
precedent to the other. But where they go only to a part, where a
breach may be paid for in damages, there the defendant has a remedy
on his covenant, and shall not plead it as a condition
precedent."
See also Dermott v.
Jones, 23 How. 220,
64 U. S.
231.
[
Footnote 12]
These cases are collected in the withdrawn decision of the
three-judge panel of the Court of Appeals, 287 F.2d 155, 158 n. 4.
See also Vulcan-Cincinnati, Inc. v. United Steelworkers,
289 F.2d 103 (C.A.6th Cir.).
[
Footnote 13]
E.g., International Union United Furniture Workers v.
Colonial Hardwood Flooring Co., 168 F.2d 33 (C.A.4th Cir.),
where arbitration was limited to employee grievances over wages,
hours, or working conditions, as in
Atkinson v. Sinclair
Refining Co., ante, p.
370 U. S. 238; and
International Union United Automobile Workers v. Benton Harbor
Indus., 242 F.2d 536 (C.A.6th Cir.);
Cuneo Press, Inc. v.
Kokomo Paper Handlers' Union, 235 F.2d 108 (C.A.7th Cir.),
where arbitration was limited to employee grievances.
But see
United E., R. & M. Workers v. Miller Metal Prods., Inc.,
215 F.2d 221 (C.A.4th Cir.) ("[a]ll differences, disputes and
grievances that may arise between the parties to this contract with
respect to the matters covered in this agreement");
Markel
Elec. Prods., Inc. v. United E., R. & M. Workers, 202 F.2d
435 (C.A.2d Cir.) ("differences . . . as to the meaning and
application of the provisions of this agreement, or . . . any
trouble of any kind . . . in the plant").
[
Footnote 14]
Signal-Stat Corp. v. Local 475, 235 F.2d 298 (C.A.2d
Cir.);
Yale & Towne Mfg. Co. v. Local Lodge No. 1717,
299 F.2d 882 (C.A.3d Cir.).
See id. at 883-884 n. 5,
collecting authorities from lower courts. Under New York law, broad
arbitration clauses permit arbitrators to award damages.
See In
re Publishers Ass'n, 8
N.Y.2d 414, 208 N.Y.S.2d 981, 171 N.E.2d 323.
[
Footnote 15]
International Union, United Mines Workers v. Labor
Board, 103 U.S.App.D.C. 207, 257 F.2d 211;
Lodge No. 12 v.
Cameron Iron Works, Inc., 257 F.2d 467, 473 (C.A.5th Cir.);
see Charles Dowd Box Co. v. Courtney, 368 U.
S. 502,
368 U. S. 513;
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 41-42.
[
Footnote 16]
Bernhardt v. Polygraphic Co., 350 U.
S. 198,
350 U. S.
203.
[
Footnote 17]
Compare Shanferoke Coal & Supply Corp. v. Westchester
Serv. Corp., 70 F.2d 297, 299 (C.A.2d Cir., L. Hand, J.),
aff'd, 293 U. S. 293 U.S.
449,
293 U. S.
453-454,
with Lane, Ltd. v. Larus & Bro.
Co., 243 F.2d 364 (C.A.2d Cir.).
[
Footnote 18]
See text accompanying notes
5-6 supra.
MR. JUSTICE HARLAN, dissenting.
The question presented in this case is whether the parties to
this collective bargaining agreement intended that a court, rather
than an arbitrator, should decide the employer's claim that the
union had violated the no-strike clause of the agreement. Whether a
strike in breach of contract has occurred and, if so, what damages
have been suffered, are matters with respect to which a court of
law can hardly be deemed less competent, as an adjudicator, than an
arbitrator. There is no special reason to suppose that the parties
preferred to submit this kind of a dispute to an arbitrator whose
expertise is more likely to be in the area of employees' grievance
claims, as in
United Steelworkers v. Warrior & Gulf
Navigation Co., 363 U. S. 574,
363 U. S.
580-582;
United Steelworkers v.
Enterprise Wheel &
Page 370 U. S. 268
Car Corp., 363 U. S. 593,
363 U. S.
597-598. The less so, from the standpoint of the
employer, when it is recognized that any damages awarded by an
arbitrator would not be self-enforcing.
It would require more persuasive evidence than either this
collective agreement or record affords to persuade me that it was
contemplated that the employer would forego his statutory remedy
under § 301 respecting alleged violations of the no-strike clause
of the collective agreement. I would reverse the judgment below
substantially for the reasons given in the panel opinion of the
Court of Appeals, 287 F.2d 155.