After petitioner employer's "office clerical-technical"
(O&T) employees went on strike and picketed petitioner's plants
during negotiations for a collective bargaining contract,
petitioner's production and maintenance (P&M) employees, who
are represented by respondent unions, honored the O&T picket
lines and stopped work in support of the sister unions representing
the O&T employees. Petitioner then filed suit against
respondents under § 301(a) of the Labor Management Relations Act,
claiming that the P&M employees' work stoppage violated the
no-strike clause in the collective bargaining contracts between
petitioner and respondents, and that the question whether such work
stoppage violated the no-strike clause was arbitrable under the
grievance and arbitration provisions of the contracts for settling
disputes over the interpretation and application of each contract.
Petitioner sought damages, injunctive relief, and an order
directing respondents to arbitrate such question. The District
Court, concluding that the work stoppage was the result of P&M
employees' engaging in a sympathy strike in support of the striking
O&T employees, held that it was prohibited from issuing an
injunction by § 4 of the Norris-LaGuardia Act because the P&M
employees' strike was not an "arbitrable grievance," and hence was
not within the "narrow" exception to the Norris-LaGuardia Act
established in Boys Markets v. Retail Clerks Union,
398 U. S. 235
Court of Appeals affirmed.
The District Court was not empowered to enjoin
the P&M employees' sympathy strike pending the arbitrator's
decision as to whether the strike was forbidden by the no-strike
clause. Pp. 428 U. S.
(a) The strike was not over any dispute between respondents and
petitioner that was even remotely subject to the arbitration
provisions of the collective bargaining contract, but was a
sympathy strike in support of sister unions negotiating with
petitioner with neither the purpose nor the effect of denying or
Page 428 U. S. 398
an obligation to arbitrate or of depriving petitioner of its
bargain. Boys Markets, supra,
428 U. S.
(b) Nor was an injunction authorized solely because it was
alleged that the sympathy strike violated the' no-strike clause,
since, although a § 301 suit may be brought against strikes that
breach collective bargaining contracts, this does not mean that
federal courts may enjoin contract violations despite the
Norris-LaGuardia Act. P. 428 U. S.
(c) While the issue whether the sympathy strike violated the
no-strike clause was arbitrable, it does not follow that the
District Court was empowered not only to order arbitration but also
to enjoin the strike pending the arbitrator's decision, since, if
an injunction could so issue, a court could enjoin any alleged
breach of a collective bargaining contract pending the exhaustion
of the applicable grievance and arbitration procedures, thus
cutting deeply into the Norris-LaGuardia Act's policy and making
courts potential participants in a wide range of arbitrable
disputes under many collective bargaining contracts, not just for
the purpose of enforcing promises to arbitrate, but for the purpose
of preliminarily dealing with the factual and interpretative issues
that are subjects for the arbitrator. Pp. 428 U. S.
517 F.2d 1207, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and
POWELL, JJ., joined, post,
p. 428 U. S.
Page 428 U. S. 399
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue for decision is whether a federal court may enjoin a
sympathy strike pending the arbitrator's decision as to whether the
strike is forbidden by the express no-strike clause contained in
the collective bargaining contract to which the striking union is a
The Buffalo Forge Co. (employer) operates three separate plant
and office facilities in the Buffalo, N.Y., area. For some years,
production and maintenance (P&M) employees at the three
locations have been represented by the United Steelworkers of
America, AFL-CIO, and its Local Unions No. 1874 and No. 3732
(hereafter sometimes collectively the Union). The United
Steelworkers is a party to the two separate collective bargaining
agreements between the locals and the employer. The contracts
contain identical no-strike clauses, [Footnote 1
] as well as grievance and arbitration
Page 428 U. S. 400
for settling disputes over the interpretation and application of
each contract. The latter provide:
"26. Should differences arise between the [employer] and any
employee covered by this Agreement as to the meaning and
application of the provisions of this Agreement, or should any
trouble of any kind arise in the plant, there shall be no
suspension of work on account of such differences, but an earnest
effort shall be made to settle such differences immediately [under
the six-step grievance and arbitration procedure provided in
sections 27 through 32]. [Footnote
Shortly before this dispute arose, the United Steelworkers and
two other locals not parties to this litigation were certified to
represent the employer's "office clerical-technical" (O&T)
employees at the same three locations. On November 16, 1974, after
several months of negotiations looking toward their first
collective bargaining agreement, the O&T employees struck and
established picket lines at all three locations. On November 18,
P&M employees at one plant refused to cross the O&T picket
line for the day. Two days later, the employer learned that the
P&M employees planned to stop work at all three plants the next
morning. In telegrams to the Union, the employer stated its
position that a strike by the P&M employees would violate the
no-strike clause, and offered to arbitrate any dispute
Page 428 U. S. 401
which had led to the planned strike. [Footnote 3
] The next day, at the Union's direction, the
P&M employees honored the O&T picket line and stopped work
at the three plants. They did not return to work until December 16,
the first regular working day after the District Court denied the
employer's prayer for a preliminary injunction.
The employer's complaint under § 301(a) of the Labor Management
Relations Act, 1947, [Footnote
] filed in District Court on November 26, claimed the work
stoppage was in violation of the no-strike clause. Contending in
the alternative that the work strike was caused by a specific
incident involving P&M truck drivers' refusal to follow a
supervisor's instructions to cross the O&T picket line, and
that the question whether the P&M employees' work stoppage
violated the no-strike clause was itself arbitrable, the employer
requested damages, a temporary restraining order and a preliminary
injunction against the strike, and an order compelling the parties
Page 428 U. S. 402
any "underlying dispute" to the contractual grievance and
arbitration procedures. The Union's position was that the work
stoppage did not violate the no-strike clause. [Footnote 5
] It offered to submit that question to
arbitration "on one day's notice," [Footnote 6
] but opposed the prayer for injunctive
After denying the temporary restraining order and finding that
the P&M work stoppage was not the result of the specific
refusal to cross the O&T picket line, the District Court
concluded that the P&M employees were engaged in a sympathy
action in support of the striking O&T employees. The District
Court then held itself forbidden to issue an injunction by § 4 of
the Norris-LaGuardia Act [Footnote
] because the P&M employees' strike
Page 428 U. S. 403
was not over an "arbitrable grievance," and hence was not within
the "narrow" exception to the Norris-LaGuardia Act established in
Boys Markets v. Retail Clerks Union, 398 U.
(1970). 386 F.
On the employer's appeal from the denial of a preliminary
injunction, 28 U.S.C. § 1292(a)(1), the parties stipulated that the
District Court's findings of fact were correct, that the Union had
authorized and directed the P&M employees' work stoppage, that
the O&T employees' strike and picket line were bona fide,
primary, and legal, and that the P&M employees' work stoppage,
though ended, might "be resumed at any time in the near future at
the direction of the International Union, or otherwise." [Footnote 8
The Court of Appeals affirmed. It held that enjoining
Page 428 U. S. 404
this strike, which was not "over a grievance which the union has
agreed to arbitrate," was not permitted by the Boys
exception to the Norris-LaGuardia Act. 517 F.2d 1207,
1210 (CA2 1975). Because the Courts of Appeals are divided on the
question whether such a strike may be enjoined, [Footnote 9
] we granted the employer's
petition for a writ of certiorari, 423 U.S. 911 (1975), and now
affirm the judgment of the Court of Appeals.
As a preliminary matter, certain elements in this case are not
in dispute. The Union has gone on strike not by
Page 428 U. S. 405
reason of any dispute it or any of its members has with the
employer, but in support of other local unions of the same
international organization, that were negotiating a contract with
the employer and were out on strike. The parties involved here are
bound by collective bargaining contracts each containing a
no-strike clause which the Union claims does not forbid sympathy
strikes. The employer has the other view, its complaint in the
District Court asserting that the work stoppage violated the
no-strike clause. Each of the contracts between the parties also
has an arbitration clause broad enough to reach not only disputes
between the Union and the employer about other provisions in the
contracts, but also as to the meaning and application of the
no-strike clause itself. Whether the sympathy strike the Union
called violated the no-strike clause, and the appropriate remedies
if it did, are subject to the agreed-upon dispute settlement
procedures of the contracts, and are ultimately issues for the
arbitrator. Steelworkers v. American Mfg. Co.,
363 U. S. 564
(1960); Steelworkers v. Warrior Gulf Co., 363 U.
(1960); Steelworkers v. Enterprise
Corp., 363 U. S. 593
(1960). The employer thus was entitled to invoke the arbitral
process to determine the legality of the sympathy strike and to
obtain a court order requiring the Union to arbitrate if the Union
refused to do so. Gateway Coal Co. v. Mine Workers,
414 U. S. 368
(1974). Furthermore, were the issue arbitrated and the strike found
illegal, the relevant federal statutes as construed in our cases
would permit an injunction to enforce the arbitral decision.
Steelworkers v. Enterprise Corp., supra.
The issue in this case arises because the employer not only
asked for an order directing the Union to arbitrate, but prayed
that the strike itself be enjoined pending
Page 428 U. S. 406
arbitration and the arbitrator's decision whether the strike was
permissible under the no-strike clause. Contrary to the Court of
Appeals, the employer claims that, despite the Norris-LaGuardia
Act's ban on federal court injunctions in labor disputes, the
District Court was empowered to enjoin the strike by § 301 of the
Labor Management Relations Act as construed by Boys Markets v.
Retail Clerks Union, supra.
This would undoubtedly have been
the case had the strike been precipitated by a dispute between
union and management that was subject to binding arbitration under
the provisions of the contracts. In Boys Markets,
union demanded that supervisory employees cease performing tasks
claimed by the union to be union work. The union struck when the
demand was rejected. The dispute was of the kind subject to the
grievance and arbitration clauses contained in the collective
bargaining contract, and it was also clear that the strike violated
the no-strike clause accompanying the arbitration provisions. The
Court held that the union could be enjoined from striking over a
dispute which it was bound to arbitrate at the employer's
The holding in Boys Markets
was said to be a "narrow
one," dealing only with the situation in which the collective
bargaining contract contained mandatory grievance and arbitration
at 398 U. S. 253
"[F]or the guidance of the district courts in determining whether
to grant injunctive relief," the Court expressly adopted the
principles enunciated in the dissent in Sinclair Refining Co.
v. Atkinson, 370 U. S. 195
370 U. S. 228
(1962), including the proposition that,
"'[w]hen 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
Page 428 U. S. 407
issue no injunctive order until it first holds that the contract
have that effect; and the employer should be ordered
to arbitrate as a condition of his obtaining an injunction against
398 U.S. at 398 U. S. 254
(emphasis in Sinclair
). The driving force behind Boys
was to implement the strong congressional preference
for the private dispute settlement mechanisms agreed upon by the
parties. Only to that extent was it held necessary to accommodate §
4 of the Norris-LaGuardia Act to § 301 of the Labor Management
Relations Act and to lift the former's ban against the issuance of
injunctions in labor disputes. Striking over an arbitrable dispute
would interfere with and frustrate the arbitral processes by which
the parties had chosen to settle a dispute. The quid pro
for the employer's promise to arbitrate was the union's
obligation not to strike over issues that were subject to the
arbitration machinery. Even in the absence of an express no-strike
clause, an undertaking not to strike would be implied where the
strike was over an otherwise arbitrable dispute. Gateway Coal
Co. v. Mine Workers, supra; Teamsters v. Lucas Flour Co.,
369 U. S. 95
(1962). Otherwise, the employer would be deprived of his bargain,
and the policy of the labor statutes to implement private
resolution of disputes in a manner agreed upon would seriously
plainly does not control this case. The
District Court found, and it is not now disputed, that the strike
was not over any dispute between the Union and the employer that
was even remotely subject to the arbitration provisions of the
contract. The strike at issue was a sympathy strike in support of
sister unions negotiating with the employer; neither its causes nor
the issue underlying it was subject to the settlement
Page 428 U. S. 408
provided by the contracts between the employer and respondents.
The strike had neither the purpose nor the effect of denying or
evading an obligation to arbitrate or of depriving the employer of
its bargain. Thus, had the contract not contained a no-strike
clause, or had the clause expressly excluded sympathy strikes,
there would have been no possible basis for implying from the
existence of an arbitration clause a promise not to strike that
could have been violated by the sympathy strike in this case.
Gateway Coal Co. v. Mine Workers, supra
at 414 U. S. 382
Page 428 U. S. 409
Nor was the injunction authorized solely because it was alleged
that the sympathy strike called by the Union violated the express
no-strike provision of the contracts. Section 301 of the Act
assigns a major role to the courts in enforcing collective
bargaining agreements, but, aside from the enforcement of the
arbitration provisions of such contracts, within the limits
permitted by Boys Markets,
the Court has never indicated
that the courts may enjoin actual or threatened contract violations
despite the Norris-LaGuardia Act. In the course of enacting the
Taft-Hartley Act, Congress rejected the proposal that the
Norris-LaGuardia Act's prohibition against labor dispute
injunctions be lifted to the extent necessary to make injunctive
remedies available in federal courts for the purpose of enforcing
collective bargaining agreements. See Sinclair Refining Co. v.
at 370 U. S.
-208, and 370 U. S.
-224 (dissenting opinion). The allegation of the
complaint that the Union was breaching its obligation not to strike
did not in itself warrant an injunction. As was stated in the
dissent embraced in Boys Markets:
"[T]here is no general federal anti-strike policy, and although
a suit may be brought under § 301 against strikes which, while they
are breaches of private contracts, do not threaten any additional
public policy, in such cases the anti-injunction policy of
Norris-LaGuardia should prevail."
370 U.S. at 370 U. S.
The contracts here at issue, however, also contained grievance
and arbitration provisions for settling disputes over the
interpretation and application of the provisions of the contracts,
including the no-strike clause. That
Page 428 U. S. 410
clause, like others, was subject to enforcement in accordance
with the procedures set out in the contracts. Here the Union
struck, and the parties were in dispute whether the sympathy strike
violated the Union's no-strike undertaking. Concededly, that issue
was arbitrable. It was for the arbitrator to determine whether
there was a breach, as well as the remedy for any breach, and the
employer was entitled to an order requiring the Union to arbitrate
if it refused to do so. But the Union does not deny its duty to
arbitrate; in fact, it denies that the employer ever demanded
arbitration. However that may be, it does not follow that the
District Court was empowered not only to order arbitration, but to
enjoin the strike pending the decision of the arbitrator, despite
the express prohibition of § 4(a) of the Norris-LaGuardia Act
against injunctions prohibiting any person from "[c]easing or
refusing to perform any work or to remain in any relation of
employment." If an injunction could issue against the strike in
this case, so, in proper circumstances, could a court enjoin any
other alleged breach of contract pending the exhaustion of the
applicable grievance and arbitration provisions, even though the
injunction would otherwise violate one of the express prohibitions
of § 4. The court in such cases would be permitted, if the dispute
was arbitrable, to hold hearings, make findings of fact, [Footnote 11
] interpret the
applicable provisions of the contract, and issue injunctions so as
to restore the status quo
or to otherwise regulate the
relationship of the parties pending exhaustion of the arbitration
process. This would cut deeply into the policy of the
Norris-LaGuardia Act, and make the courts potential participants in
a wide range of arbitrable disputes under the many existing and
Page 428 U. S. 411
bargaining contracts, [Footnote 12
] not just for the purpose of enforcing
promises to arbitrate, which was the limit of Boys
but for the purpose of preliminarily dealing with the
merits of the factual and legal issues that are subjects for the
arbitrator, and of issuing injunctions that would otherwise be
forbidden by the Norris-LaGuardia Act.
This is not what the parties have bargained for. Surely it
cannot be concluded here, as it was in Boys Markets,
such injunctions pending arbitration are essential to carry out
promises to arbitrate and to implement the private arrangements for
the administration of the contract. As is typical, the agreements
in this case outline the pre-arbitration settlement procedures and
provide that, if the grievance "has not been . . . satisfactorily
adjusted," arbitration may be had. Nowhere do they provide for
coercive action of any kind, let alone judicial injunctions, short
of the terminal decision of the arbitrator. The parties have agreed
to submit to grievance procedures and arbitrate, not to litigate.
They have not contracted for a judicial preview of the facts and
the law. [Footnote 13
they anticipated additional regulation of their relationships
pending arbitration, it seems very doubtful that they would have
resorted to litigation, rather than to private arrangements. The
unmistakable policy of Congress stated in § 203(d), 29 U.S.C. §
"Final adjustment by a method agreed
Page 428 U. S. 412
upon by the parties is declared to be the desirable method for
settlement of grievance disputes arising over the application or
interpretation of an existing collective bargaining agreement."
Gateway Coal Co. v. Mine Workers,
414 U.S. at
414 U. S. 377
But the parties' agreement to adjust or to arbitrate their
differences themselves would be eviscerated if the courts, for all
practical purposes, were to try and decide contractual disputes at
the preliminary injunction stage.
The dissent suggests that injunctions should be authorized in
cases such as this, at least where the violation, in the court's
view, is clear and the court is sufficiently sure that the parties
seeking the injunction will win before the arbitrator. But this
would still involve hearings, findings, and judicial
interpretations of collective bargaining contracts. It is
incredible to believe that the courts would always view the facts
and the contract as the arbitrator would; and it is difficult to
believe that the arbitrator would not be heavily influenced or
wholly preempted by judicial views of the facts and the meaning of
contracts if this procedure is to be permitted. Injunctions against
strikes, even temporary injunctions, very often permanently settle
the issue; and, in other contexts, time and expense would be
discouraging factors to the losing party in court in considering
whether to relitigate the issue before the arbitrator.
With these considerations in mind, we are far from concluding
that the arbitration process will be frustrated unless the courts
have the power to issue interlocutory injunctions pending
arbitration in cases such as this or in others in which an
arbitrable dispute awaits decision. We agree with the Court of
Appeals that there is no necessity here, such as was found to be
the case in Boys Markets,
to accommodate the policies of
the Norris-LaGuardia Act to the requirements of § 301 by
Page 428 U. S. 413
the District Court to issue the injunction sought by the
The judgment of the Court of Appeals is affirmed.
Section 14.b. of each agreement provides:
"There shall be no strikes, work stoppages or interruption or
impeding of work. No Officers or representatives of the Union shall
authorize, instigate, aid or condone any such activities. No
employee shall participate in any such activity. The Union
recognizes its possible liabilities for violation of this provision
and will use its influence to see that work stoppages are
prevented. Unsuccessful efforts by Union officers or Union
representatives to prevent and terminate conduct prohibited by this
paragraph will not be construed as 'aid' or 'condonation' of such
conduct and shall not result in any disciplinary actions against
the Officers, committeemen or stewards involved."
at 17. The final step in the six-part grievance
procedure is provided for in § 32:
"In the event the grievance involves a question as to the
meaning and application of the provisions of this Agreement, and
has not been previously satisfactorily adjusted, it may be
submitted to arbitration upon written notice of the Union or the
at 22-23. At oral argument before this Court, the
parties disagreed whether the employer's telegrams were sufficient
to submit the dispute to the contractual grievance procedures. Tr.
of Oral Arg. 44-45, 450. The employer's complaint prayed for an
order requiring arbitration of a dispute "relating to work
performance of truck drivers or any other underlying dispute." App.
10. As far as the record indicates, no grievance proceedings have
taken place with respect to any aspect of the dispute. The Union
apparently argued in the Court of Appeals that the employer was not
entitled to an injunction because it failed to invoke the
contractual grievance procedures. 517 F.2d 1207, 1209 n. 4 (1975).
Like the Court of Appeals, ibid.,
we need not reach the
issue under our disposition of the case.
61 Stat. 156, 29 U.S.C. § 15(a). Section 301(a) provides:
"Suits for violation of contracts between an employer and a
labor organization representing employees in an industry affecting
commerce as defined in this Act, or between any such labor
organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the
District Court Tr. 57; Memorandum for Respondent in District
Court 9, 13.
Section 4 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §
"No court of the United State shall have jurisdiction to issue
any restraining order or temporary or permanent injunction in any
case involving or growing out of any labor dispute to prohibit any
person or persons participating or interested in such dispute (as
these terms are herein defined) from doing, whether singly or in
concert, any of the following acts:"
"(a) Ceasing or refusing to perform any work or to remain in any
relation of employment;"
"(b) Becoming or remaining a member of any labor organization or
of any employer organization, regardless of any such undertaking or
promise as is described in section 3 of this Act;"
"(c) Paying or giving to, or withholding from, any person
participating or interested in such labor dispute, any strike or
unemployment benefits or insurance, or other moneys or things of
"(d) By all lawful means aiding any person participating or
interested in any labor dispute who is being proceeded against in,
or is prosecuting, any action or suit in any court of the United
States or of any State;"
"(e) Giving publicity to the existence of, or the facts involved
in, any labor dispute, whether by advertising, speaking,
patrolling, or by any other method not involving fraud or
"(f) Assembling peaceably to act or to organize to act in
promotion of their interests in a labor dispute;"
"(g) Advising or notifying any person of an intention to do any
of the acts heretofore specified;"
"(h) Agreeing with other persons to do or not to do any of the
acts heretofore specified; and"
"(i) Advising, urging, or otherwise causing or inducing without
fraud or violence the acts heretofore specified, regardless of any
such undertaking or promise as is described in section 3 of this
App. 25. The presence of an existing dispute makes this a live
controversy despite the P&M employees' return to the job.
See Super Tire Engineering Co. v. McCorkle, 416 U.
, 416 U. S.
-125 (1974); Bus Employees v. Missouri,
374 U. S. 74
374 U. S. 77
(1963). The collective bargaining agreements in effect when this
action arose have expired, but the parties have stipulated, App.
25, that they govern resolution of this dispute. On appeal, the
employer did not challenge the District Court's finding that the PM
employees' work stoppage was not, at least in part, a protest over
truck driving assignments. 517 F.2d at 1211 n. 7.
The decision of the Second Circuit in this case is in accord
with decisions of the Fifth and Sixth Circuits, Amstar Corp. v.
468 F.2d 1372 (CA5 1972); Plain Dealer Pub.
Co. v. Cleveland Typographical Union,
520 F.2d 1220 (CA6
1975), cert. denied, post,
p. 909; see United States
Steel Corp. v. Mine Workers,
519 F.2d 1236 (CA5 1975),
526 F.2d 376 (1976), cert. denied,
p. 910, but at odds with decisions of the Third, Fourth,
and Eighth Circuits, NAPA Pittsburgh, Inc. v. Automotive
502 F.2d 321 (CA3) (en banc), cert.
419 U.S. 1049 (1974); Island Creek Coal Co. v.
507 F.2d 650 (CA3), cert. denied,
U.S. 877 (1975); Armco Steel Corp. v. Mine Workers,
F.2d 1129 (CA4 1974), cert. denied,
423 U.S. 877 (1975);
Pilot Freight Carriers, Inc. v. Teamsters,
497 F.2d 311
(CA4), cert. denied,
419 U.S. 869 (1974); Wilmington
Shipping Co. v. Longshoremen,
86 L.R.R.M. 2846 (CA4),
419 U.S. 1022 (1974); Monongahela Power
Co. v. Electrical Workers,
484 F.2d 1209 (CA4 1973);
Valmac Industries v. Food Handlers,
519 F.2d 263 (CA8
1975), cert. granted, vacated and remanded, post,
Associated Gen. Contractors v. Operating Engineers,
F.2d 269 (CA8 1975). The Seventh Circuit has adopted an
intermediate position. Hyster Co. v. Independent Towing
519 F.2d 89 (1975), cert. denied sub nom. Hyster
Co. v. Employees Assn. of Kewanee, post,
p. 910; Gary
Hobart Water Corp. v. NLRB,
511 F.2d 284, cert.
423 U.S. 925 (1975). But cf. Inland Steel Co. v.
505 F.2d 293 (1974).
To the extent that the Court of Appeals, 517 F.2d at 1211, and
other courts, Island Creek Coal Co. v. Mine Workers,
F.2d at 653-654; Armco Steel Corp. v. Mine Workers,
F.2d at 1132-1133; Amstar Corp. v. Meat
Cutters, 337 F.
, 815 (ED La.), rev'd on other grounds,
F.2d 1372 (CA5 1972); Inland Steel Co. v. Mine Workers,
505 F.2d at 299300, have assumed that a mandatory arbitration
clause implies a commitment not to engage in sympathy strikes, they
Gateway Coal Co. v. Mine Workers
itself furnishes no
additional support for the employer here. In that case, after
finally concluding that the dispute over which the strike occurred
was arbitrable within the meaning of the arbitration clause
contained in a contract which did not also contain a no-strike
clause, the Court held that the contract implied an undertaking not
to strike, based on Teamsters v. Lucas Flour Co.,
369 U. S. 95
(1962), and permitted an injunction against the strike based on the
principles of Boys Markets.
The critical determination in
was that the dispute was arbitrable. This was the
fulcrum for finding a duty not to strike over that dispute, and for
enjoining the strike the union had called. Of course, the authority
to enjoin the work stoppage depended on "whether the union was
under a contractual duty not to strike." 414 U.S. at 414 U. S. 380
But that statement was made only preparatory to finding an implied
duty not to strike. The strike was then enjoined only because it
was over an arbitrable dispute. The same precondition to a strike
injunction also existed in Boys Markets.
factor, neither case furnishes the authority to enjoin a strike
solely because it is claimed to be in breach of contract and
because this claim is itself arbitrable.
Fed.Rule Civ.Proc. 52(a).
This could embroil the district courts in massive preliminary
injunction litigation. In 1972, the most recent year for which
comprehensive data have been published, more than 21 million
workers in the United States were covered under more than 150,000
collective bargaining agreements. Bureau of Labor Statistics,
Directory of National Unions and Employee Associations 87-88
Whether a district court's preview led it to grant or to refuse
the requested injunction pending arbitration, its order, as in this
case, would be appealable, 28 U.S.C. § 1292(a)(1).
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE POWELL join, dissenting.
A contractual undertaking not to strike is the union's normal
quid pro quo
for the employer's undertaking to submit
grievances to binding arbitration. The question in this case is
whether that quid pro quo
is severable into two parts --
one which a federal court may enforce by injunction and another
which it may not.
Less than three years ago, all eight of my Brethren joined in an
opinion which answered that question quite directly by stating that
whether a district court has authority to enjoin a work stoppage
"depends on whether the union was under a contractual duty not to
strike." Gateway Coal Co. v. Mine Workers, 414 U.
, 414 U. S. 380
The Court today holds that only a part of the union's quid
is enforceable by injunction. [Footnote 2/2
] The principal
Page 428 U. S. 414
bases for the holding are (1) the Court's literal interpretation
of the Norris-LaGuardia Act; and (2) its fear that the federal
judiciary would otherwise make a "massive" entry into the business
of contract interpretation heretofore reserved for arbitrators. The
first argument has been rejected repeatedly in cases in which the
central concerns of the Norris-LaGuardia Act were not implicated.
The second is wholly unrealistic, [Footnote 2/3
] and was implicitly rejected in Gateway
when the Court held that "a substantial question of
contractual interpretation" was a sufficient basis for federal
equity jurisdiction. 414 U.S. at 414 U. S. 384
That case held that an employer might enforce a somewhat ambiguous
quid pro quo;
today, the Court holds that a portion of the
quid pro quo
is unenforceable no matter how unambiguous it
may be. With all respect, I am persuaded that a correct application
of the reasoning underlying the landmark decision in Boys
Markets v. Retail Clerks Union, 398 U.
, requires a different result.
In order to explain my conclusion adequately, I first review the
rationale of Boys Markets,
and then relate that rationale
to the question presented by this case.
Page 428 U. S. 415
Eight years before Boys Markets,
the Court squarely
held that the Norris-LaGuardia Act precluded a federal district
court from enjoining a strike in breach of a no-strike obligation
under a collective bargaining agreement requiring arbitration of
the underlying dispute. Sinclair Refining Co. v. Atkinson,
370 U. S. 195
] To authorize the
injunction in Boys Markets,
the Court was therefore
required to overrule a decision directly in point, as well as to
harmonize its holding with the language of the Norris-LaGuardia
Act. The Court found several reasons that compelled this
First, the Court noted that injunctions enforcing a contractual
commitment to arbitrate a grievance were not among the abuses
against which the Norris-LaGuardia Act was aimed. [Footnote 2/5
] This, of course, is clear from the
declaration of policy in the Norris-LaGuardia Act itself, [Footnote 2/6
Page 428 U. S. 416
which .plainly identifies a primary concern with protecting
labor's ability to organize and to bargain collectively. It was the
history of injunctions against strike activity in furtherance of
union organization, recognition, and collective bargaining, rather
than judicial enforcement of collective bargaining agreements, that
led to the enactment of the Norris-LaGuardia Act in 1932. [Footnote 2/7
] As the
Page 428 U. S. 417
Court observed in Boys Markets,
the climate of labor
relations has been transformed since the passage of the
Norris-LaGuardia Act, 398 U.S. at 398 U. S.
"the central purpose of the Norris-LaGuardia Act to foster the
growth and viability of labor organizations is hardly retarded --
if anything, this goal is advanced -- by a remedial device that
merely enforces the obligation that the union freely undertook
under a specifically enforceable agreement to submit disputes to
at 398 U. S.
-253 (footnote omitted). It is equally clear that the
present case does not implicate the central concerns of the
Norris-LaGuardia Act, for it also deals with the enforceability of
a collective bargaining agreement, rather than with the process by
which such agreements are negotiated and formed.
Second, the Court emphasized the relevance of the subsequently
enacted statute enlarging the jurisdiction of federal courts to
grant relief in labor disputes. Section 301(a) of the Labor
Management Relations Act expressly authorized federal jurisdiction
of suits for violation of collective bargaining agreements without
respect to the amount in controversy or the citizenship of the
parties. That provision was viewed as supporting the collective
bargaining process, for employers would have more incentive to
enter into agreements with unions
Page 428 U. S. 418
if they were mutually enforceable than if they were not. With
specific reference to the value of an enforceable commitment to
arbitrate grievance disputes, Boys Markets
importance of the union's no-strike commitment as the quid pro
for the employer's undertaking to submit disputes to
arbitration. [Footnote 2/8
] And, in
many collective bargaining agreements, the employer
Page 428 U. S. 419
has agreed to mandatory arbitration only in exchange for a
no-strike clause that extends beyond strikes over arbitrable
disputes. [Footnote 2/9
] It is
therefore simply wrong to argue, as the Court does, that the strike
in this case could not have had the purpose or effect "of depriving
the employer of his bargain." Ante
at 428 U. S. 408
If the sympathy strike in this case violates the Union's no-strike
pledge, the same public interest in an enforceable quid pro
is present here as in Boys Markets.
contends, however, that this strike did not violate its contract,
or at least that it has not yet been decided that it does.
Accordingly, this portion of the rationale of Boys Markets
applies only to the extent of the certainty that the sympathy
strike falls within the no-strike clause.
Third, the Court relied upon a line of cases in which the
language of the Norris-LaGuardia Act had not been given controlling
effect. Several decisions had held that the federal courts could
issue injunctions in labor disputes to compel employers and unions
to fulfill their obligations under the Railway Labor Act, [Footnote 2/10
] notwithstanding "the
earlier and more general provisions of the Norris-LaGuardia Act."
Virginian R. Co. v. System Federation, 300 U.
, 300 U. S. 563
Accord, Railroad Trainmen v. Howard, 343 U.
, 343 U.S.
; Graham v. Locomotive Firemen, 338 U.
, 338 U. S.
-240. These decisions culminated in Railroad
Trainmen v. Chicago, R. & I. R. Co., 353 U. S.
, 353 U. S. 39
which held that a federal court could enjoin a strike by a railroad
union over a dispute subject to mandatory arbitration under the
Railway Labor Act. The Norris-LaGuardia Act was held not to bar the
injunction because of "the need to accommodate
Page 428 U. S. 420
two statutes when both were adopted as a part of a pattern of
labor legislation." Id.
at 353 U. S. 42
See Chicago & N.W. R. Co. v. Transportation Union,
402 U. S. 570
402 U. S.
-584. In Textile Workers v. Lincoln Mills,
353 U. S. 448
Court relied on the same rationale to hold that § 301(a) of the
Labor Management Relations Act conferred jurisdiction upon the
district courts to grant the union specific enforcement of an
arbitration clause in a collective bargaining agreement. Speaking
for the Court, Mr. Justice Douglas noted that the legislative
history of § 301(a) "is somewhat cloudy and confusing," but that
the conference report had stated that, once the parties had made a
collective bargaining agreement, its enforcement "should be
left to the usual processes of the law.'" 353 U.S. at 353 U. S. 452,
quoting H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 42 (1947). He
"Both the Senate and the House took pains to provide for 'the
usual processes of the law' by provisions which were the
substantial equivalent of § 301(a) in its present form. Both the
Senate Report and the House Report indicate a primary concern that
unions, as well as employees, should be bound to collective
bargaining contracts. But there was also a broader concern -- a
concern with a procedure for making such agreements enforceable in
the courts by either party. At one point, the Senate Report [S.Rep.
No. 105, 80th Cong., 1st Sess. (1947),] p. 15, states,"
"We feel that the aggrieved party should also have a right of
action in the Federal courts. Such a policy is completely in accord
with the purpose of the Wagner Act, which the Supreme Court
declared was 'to compel employers to bargain collectively with
their employees to the end that an employment contract, binding on
both parties, should be made. . . .' "
Page 428 U. S. 421
"Congress was also interested in promoting collective bargaining
that ended with agreements not to strike. The Senate Report,
p. 16 states:"
" If unions can break agreements with relative impunity, then
such agreements do not tend to stabilize industrial relations. The
execution of an agreement does not, by itself, promote industrial
peace. The chief advantage which an employer can reasonably expect
from a collective labor agreement is assurance of uninterrupted
operation during the term of the agreement. Without some effective
method of assuring freedom from economic warfare for the term of
the agreement, there is little reason why an employer would desire
to sign such a contract."
" Consequently, to encourage the making of agreements and to
promote industrial peace through faithful performance by the
parties, collective agreements affecting interstate commerce should
be enforceable in the Federal courts. Our amendment would provide
for suits by unions as legal entities and against unions as legal
entities in the Federal courts in disputes affecting commerce."
"Thus, collective bargaining contracts were made 'equally
binding and enforceable on both parties.' Id.
p. 15. As
stated in the House Report [H.R.Rep. No. 245, 80th Cong., 1st Sess.
(1947),] p. 6, the new provision"
"makes labor organizations equally responsible with employers
for contract violations and provides for suit by either against the
other in the United States district courts."
"To repeat, the Senate Report, supra,
p. 17, summed up
the philosophy of § 301 as follows:"
"statutory recognition of the collective agreement as a valid,
binding, and enforceable contract is a logical and necessary
Page 428 U. S. 422
It will promote a higher degree of responsibility upon the
parties to such agreements, and will thereby promote industrial
"Plainly, the agreement to arbitrate grievance disputes is the
quid pro quo
for an agreement not to strike. Viewed in
this light, the legislation does more than confer jurisdiction in
the federal courts over labor organizations. It expresses a federal
policy that federal courts should enforce these agreements on
behalf of or against labor organizations, and that industrial peace
can be best obtained only in that way."
353 U.S. at 353 U. S.
-455 (footnote omitted). With direct reference to the
argument that jurisdiction was withdrawn by the Norris-LaGuardia
Act, Mr. Justice Douglas pointed out that, even though a literal
reading of that statute might bring the dispute within its terms,
there was no policy justification for restricting § 301(a) to
damages suits and subjecting specific performance of an agreement
to arbitrate grievance disputes to the inapposite provisions of
that Act. 353 U.S. at 353 U. S.
These decisions, and the holding of Boys Markets
itself, make clear that the literal wording of the Norris-LaGuardia
Act is not an insuperable obstacle to specific enforcement of a
no-strike commitment in accordance with "the usual processes of the
law." [Footnote 2/11
Page 428 U. S. 423
Fourth, Boys Markets
stressed one anomalous consequence
In many state jurisdictions, a no-strike
clause could be enforced by injunction. The enactment of § 301(a),
which was intended to provide an additional forum for the
enforcement of collective bargaining agreements, [Footnote 2/12
] made it possible to remove state
litigation to the federal forum, [Footnote 2/13
] and then to foreclose any injunctive
relief by reliance on the Norris-LaGuardia Act. 398 U.S. at
398 U. S.
-247. This incongruous result could not easily be
squared with the intent of Congress in § 301(a) to confer
concurrent jurisdiction upon the state courts. That argument
applies with equal force to this case.
Finally, Boys Markets
emphasized the strong federal
policy favoring settlement of labor disputes by arbitration. 398
U.S. at 398 U. S.
-243. Since, apart from statutory authorization, this
method of settling disputes is available only when authorized by
agreement between the parties, the policy favoring arbitration
equally favors the making of enforceable agreements to arbitrate.
For that reason, Boys Markets
also emphasized the
importance of ensuring enforceability of the union's quid pro
for the employer's agreement to submit grievance disputes
to arbitration. Id.
at 398 U. S.
-249, 398 U. S.
-253. A sympathy strike in violation of a no-strike
Page 428 U. S. 424
not directly frustrate the arbitration process, but if the
clause is not enforceable against such a strike, it does frustrate
the more basic policy of motivating employers to agree to binding
arbitration by giving them an effective "assurance of uninterrupted
operation during the term of the agreement." [Footnote 2/14
] This portion of Boys
is therefore not entirely applicable to the present
case. Accordingly, it is essential to consider the importance of
arbitration to the holding in Boys Markets.
question I now turn.
The Boys Markets
decision protects the arbitration
process. A court is authorized to enjoin a strike over a grievance
which the parties are contractually bound to arbitrate, but that
authority is conditioned upon a finding that the contract does so
provide, that the strike is in violation of the agreement, and
further that the issuance of an injunction is warranted by ordinary
principles of equity. Id.
at 398 U. S. 254
] These conditions
plainly stated in Boys Markets
demonstrate that the
interest in protecting the arbitration process is not simply an end
Page 428 U. S. 425
itself which exists at large and apart from other fundamental
aspects of our national labor policy.
On the one hand, an absolute precondition of any Boys
injunction is a contractual obligation. A court may
not order arbitration unless the parties have agreed to that
process; nor can the court require the parties to accept an
arbitrator's decision unless they have agreed to be bound by it.
at 398 U. S.
-255. Accord, Gateway Coal,
414 U.S. at
414 U. S. 374
414 U. S.
-384. If the union reserves the right to resort to
self-help at the conclusion of the arbitration process, that
agreement must be respected. [Footnote 2/16
] The court's power is limited by the
contours of the agreement between the parties. [Footnote 2/17
On the other hand, the arbitration procedure is not merely an
exercise; it performs the important purpose of determining what the
underlying agreement actually means as applied to a specific
setting. If the parties have agreed to be bound by the arbitrator's
decision, the reasons which justify an injunction against a strike
that would impair his ability to reach a decision must equally
justify an injunction requiring the parties to abide by a decision
that a strike is in violation of the no-strike clause. [Footnote 2/18
] The arbitration mechanism
would hardly retain its respect as a method of resolving disputes
Page 428 U. S. 426
end product of the process had less significance than the
The net effect of the arbitration process is to remove
completely any ambiguity in the agreement as it applies to an
unforeseen, or undescribed, set of facts. But if the specific
situation is foreseen and described in the contract itself with
such precision that there is no need for interpretation by an
arbitrator, it would be reasonable to give the same legal effect to
such an agreement prior to the arbitrator's decision. [Footnote 2/19
] In this case, the question
whether the sympathy strike violates the no-strike clause is an
arbitrable issue. If the court had the benefit of an arbitrator's
resolution of the issue in favor of the employer, it could enforce
that decision just as it could require the parties to submit the
issue to arbitration. And if the agreement were so plainly
unambiguous that there could be no bona fide
submit to the arbitrator, there must be the same authority to
enforce the parties' bargain pending the arbitrator's final
decision. [Footnote 2/20
Page 428 U. S. 427
The Union advances three arguments against this conclusion: (1)
that interpretation of the collective bargaining agreement is the
exclusive province of the arbitrator; (2) that an injunction
erroneously entered pending arbitration will effectively deprive
the union of the right to strike before the arbitrator can render
his decision; and (3) that it is the core purpose of the
Norris-LaGuardia Act to eliminate the risk of an injunction against
a lawful strike. [Footnote 2/21
Although I acknowledge the force of these arguments, I think they
are insufficient to take this case outside the rationale of
The Steelworkers trilogy
] establishes that a collective bargaining
agreement submitting all questions of contract interpretation to
the arbitrator deprives the courts of
Page 428 U. S. 428
almost all power to interpret the agreement to prevent
submission of a dispute to arbitration or to refuse enforcement of
an arbitrator's award. Boys Markets
itself repeated the
warning that it was not for the courts to usurp the functions of
the arbitrator. 398 U.S. at 398 U. S.
-243. And Gateway Coal
held that an
injunction may issue to protect the arbitration process even if a
"substantial question of contractual interpretation" must be
answered to determine whether the strike is over an arbitrable
grievance. 414 U.S. at 414 U. S.
-384. In each of these cases, however, the choice was
between interpretation of the agreement by the court or
interpretation by the arbitrator; a decision that the dispute was
not arbitrable, or not properly arbitrated, would have precluded an
interpretation of the agreement according to the contractual
grievance procedure. In the present case, an interim determination
of the no-strike question by the court neither usurps nor precludes
a decision by the arbitrator. By definition, issuance of an
injunction pending the arbitrator's decision does not supplant a
decision that he otherwise would have made. Indeed, it is the
ineffectiveness of the damages remedy for strikes pending
arbitration that lends force to the employer's argument for an
injunction. [Footnote 2/23
court does not oust the arbitrator of his proper function, but
fulfills a role that he never served.
The Union's second point, however, is that the arbitrator will
rarely render his decision quickly enough to prevent an erroneously
issued injunction from effectively depriving the union of its right
to strike. The Union relies particularly upon decisions of this
Court that recognize that even a temporary injunction can quickly
end a strike. [Footnote 2/24
this argument demonstrates only that
Page 428 U. S. 429
arbitration, to be effective, must be prompt, not that the
federal courts must be deprived entirely of jurisdiction to grant
equitable relief. Denial of an injunction when a strike violates
the agreement may have effects just as devastating to an employer
as the issuance of an injunction may have to the union when the
strike does not violate the agreement. Furthermore, a sympathy
strike does not directly further the economic interests of the
members of the striking local or contribute to the resolution of
any dispute between that local, or its members, and the employer.
] On the contrary,
it is the source of a new dispute which, if the strike goes
forward, will impose costs on the strikers, the employer, and the
public without prospect of any direct benefit to any of these
parties. A rule that authorizes postponement of a sympathy strike
pending an arbitrator's clarification of the no-strike clause will
not critically impair the vital interests of the striking local
even if the right to strike is upheld, and will avoid the costs of
interrupted production if the arbitrator concludes that the
no-strike clause applies.
Page 428 U. S. 430
Finally, the Norris-LaGuardia Act cannot be interpreted to
immunize the union from all risk of an erroneously issued
injunction. Boys Markets
itself subjected the union to the
risk of an injunction entered upon a judge's erroneous conclusion
that the dispute was arbitrable and that the strike was in
violation of the no-strike clause, 398 U.S. at 398 U. S. 254
subjected the union to a still greater risk,
for the court there entered an injunction to enforce an implied
no-strike clause despite the fact that the arbitrability of the
dispute, and hence the legality of the strike over the dispute,
presented a "substantial question of contractual interpretation."
414 U.S. at 414 U. S. 384
at 414 U. S. 380
n. 10. The strict reading that the Union would give the
Norris-LaGuardia Act would not have permitted this result.
Page 428 U. S. 431
These considerations, however, do not support the conclusion
that a sympathy strike should be temporarily enjoined whenever a
collective bargaining agreement contains a no-strike clause and an
arbitration clause. The accommodation between the Norris-LaGuardia
Act and § 301(a) of the Labor Management Relations Act allows the
judge to apply "the usual processes of the law," but not to take
the place of the arbitrator. Because of the risk that a federal
judge, less expert in labor matters than an arbitrator, may
misconstrue general contract language, I would agree that no
injunction or temporary restraining order should issue without
first giving the union an adequate opportunity to present evidence
and argument, particularly upon the proper interpretation of the
collective bargaining agreement; the judge should not issue an
injunction without convincing evidence that the strike is clearly
within the no-strike clause. [Footnote 2/27
] Furthermore, to protect the efficacy of
arbitration, any such injunction should require the parties to
submit the issue immediately to the contractual grievance
procedure, and if the union so requests, at the last stage and upon
an expedited schedule that assures a decision by the arbitrator as
soon as practicable. Such stringent conditions would insure that
only strikes in violation of the agreement would be enjoined and
that the union's access to the arbitration process would not be
foreclosed by the combined effect of a temporary injunction and
protracted grievance procedures. Finally, as in Boys
Page 428 U. S. 432
the normal conditions of equitable relief
would have to be met. [Footnote
Like the decision in Boys Markets,
reflects, on the one hand, my confidence that experience during the
decades since the Norris-LaGuardia Act was passed has dissipated
any legitimate concern about the impartiality of federal judges in
disputes between labor and management, and, on the other, my
continued recognition of the fact that judges have less familiarity
and expertise than arbitrators and administrators who regularly
work in this specialized area. The decision in Boys
requires an accommodation between the Norris-LaGuardia
Act and the Labor Management Relations Act. I would hold only that
the terms of that accommodation do not entirely deprive the federal
courts of all power to grant any relief to an employer, threatened
with irreparable injury from a sympathy strike clearly in violation
of a collective bargaining agreement, regardless of the equities of
his claim for injunctive relief pending arbitration.
Since, in my view, the Court of Appeals erroneously held that
the District Court had no jurisdiction to enjoin the Union's
sympathy strike, I would reverse and remand for consideration of
the question whether the employer is entitled to an injunction.
The Court read Boys Markets v. Retail Clerks Union,
398 U. S. 235
conclude that "§ 301(a) empowers a federal court to enjoin
violations of a contractual duty not to strike." 414 U.S. at
414 U. S. 381
There was no dissent from that proposition.
The enforceable part of the no-strike agreement is the part
relating to a strike "over an arbitrable dispute." In Gateway
however, my Brethren held that the District Court had
properly entered an injunction that not only terminated a strike
pending an arbitrator's decision of an underlying safety dispute,
but also "prospectively required both parties to abide by his
resolution of the controversy." Id.
at 414 U. S. 373
A strike in defiance of an arbitrator's award would not be "over an
arbitrable dispute;" nevertheless, the Court today recognizes the
propriety of an injunction against such a strike. Ante
428 U. S.
The Court's expressed concern that enforcing an unambiguous
no-strike clause by enjoining a sympathy strike might "embroil the
district courts in massive preliminary injunction litigation,"
at 428 U. S. 411
n. 12, is supposedly supported by the fact that 21 million American
workers were covered by over 150,000 collective bargaining
agreements in 1972. These figures give some idea of the potential
number of grievances that may arise, each of which could lead to a
strike which is plainly enjoinable under Boys Markets.
These figures do not shed any light on the number of sympathy
strikes which may violate an express no-strike commitment. In the
past several years, over a dozen such cases have arisen. See
at 428 U. S. 404
n. 9. Future litigation of this character would, of course, be
minimized by clarifying amendments to existing no-strike
One week after the decision in Sinclair,
decided Teamsters v. Yellow Transit, 370 U.
, by per curiam order citing only
The dissenters in Sinclair,
position was substantially adopted in Boys Markets,
concurred in Yellow Transit
because "the collective
bargaining agreement involved in this case does not bind either
party to arbitrate any dispute." 370 U.S. at
-712. In this case, as in those cases, it does not follow
from the availability of an injunction when the agreement contains
a mandatory arbitration clause that one may issue when it does not.
fn2/20|>n. 20, infra.
Referring to the holding in Textile Workers v. Lincoln
Mills, 353 U. S. 448
Court stated that it had
"rejected the contention that the anti-injunction proscriptions
of the Norris-LaGuardia Act prohibited this type of relief, noting
that a refusal to arbitrate was not 'part and parcel of the abuses
against which the Act was aimed,' id.
at 353 U. S.
, and that the Act itself manifests a policy
determination that arbitration should be encouraged. See
29 U.S.C. § 108."
398 U.S. at 398 U. S. 242
Section 2 of the Act provides:
"In the interpretation of this Act and in determining the
jurisdiction and authority of the courts of the United States, as
such jurisdiction and authority are herein defined and limited, the
public policy of the United States is hereby declared as
"Whereas under prevailing economic conditions, developed with
the aid of governmental authority for owners of property to
organize in the corporate and other forms of ownership association,
the individual unorganized worker is commonly helpless to exercise
actual liberty of contract and to protect his freedom of labor, and
thereby to obtain acceptable terms and conditions of employment,
wherefore, though he should be free to decline to associate with
his fellows, it is necessary that he have full freedom of
association, self-organization, and designation of representatives
of his own choosing, to negotiate the terms and conditions of his
employment, and that he shall be free from the interference,
restraint, or coercion of employers of labor, or their agents, in
the designation of such representatives or in self-organization or
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection; therefore, the
following definitions of, and limitations upon, the jurisdiction
and authority of the courts of the United States are hereby
47 Stat. 70, 29 U.S.C. § 102.
In Boys Markets,
the Court quoted with approval the
following statement by the neutral members of the Special
Committee of the American Bar
Association Labor Relations Law Section:
""Any proposal which would subject unions to injunctive relief
must take account of the Norris-LaGuardia Act and the opposition
expressed in that Act to the issuing of injunctions in labor
disputes. Nevertheless, the reasons behind the Norris-LaGuardia Act
seem scarcely applicable to the situation . . . [in which a strike
in violation of a collective bargaining agreement is enjoined]. The
Act was passed primarily because of widespread dissatisfaction with
the tendency of judges to enjoin concerted activities in accordance
with doctrines of tort law which made the lawfulness of a
strike depend upon judicial views of social and economic policy.'
[Citation omitted.] Where an injunction is used against a strike in
breach of contract, the union is not subjected in this fashion to
judicially created limitations on its freedom of action, but is
simply compelled to comply with limitations to which it has
previously agreed. Moreover, where the underlying dispute is
arbitrable, the union is not deprived of any practicable means of
pressing its claim, but is only required to submit the dispute to
the impartial tribunal that it has agreed to establish for this
398 U.S. at 398 U. S. 253
n. 22, quoting Report of Special Atkinson-Sinclair
Committee, American Bar Association Labor Relations Law Section --
Proceedings 242 (1963).
"As we have previously indicated, a no-strike obligation,
express or implied, is the quid pro quo
for an undertaking
by the employer to submit grievance disputes to the process of
arbitration. See Textile Workers Union v. Lincoln Mills,
at 353 U. S. 455
. Any incentive
for employers to enter into such an arrangement is necessarily
dissipated if the principal and most expeditious method by which
the no-strike obligation can be enforced is eliminated. While it
is, of course, true, as respondent contends, that other avenues of
redress, such as an action for damages, would remain open to an
aggrieved employer, an award of damages after a dispute has been
settled is no substitute for an immediate halt to an illegal
strike. Furthermore, an action for damages prosecuted during or
after a labor dispute would only tend to aggravate industrial
strife and delay an early resolution of the difficulties between
employer and union."
398 U.S. at 398 U. S.
-248 (footnotes omitted). Accord, William E.
Arnold Co. v. Carpenters, 417 U. S. 12
417 U. S. 19
414 U.S. at 414 U. S.
-382, and n. 14.
The Court relied upon another statement by the neutral members
of the Special Atkinson-Sinclair
"'Under existing laws, employers may maintain an action for
damages resulting from a strike in breach of contract and may
discipline the employees involved. In many cases, however, neither
of these alternatives will be feasible. Discharge of the strikers
is often inexpedient because of a lack of qualified replacements or
because of the adverse effect on relationships within the plant.
The damage remedy may also be unsatisfactory because the employer's
losses are often hard to calculate and because the employer may
hesitate to exacerbate relations with the union by bringing a
damages action. Hence, injunctive relief will often be the only
effective means by which to remedy the breach of the no-strike
pledge, and thus effectuate federal labor policy.'"
398 U.S. at 398 U. S.
-249, n. 17, quoting Report of Special
Atkinson-Sinclair Committee, supra, 428
fn2/7|>n. 7, at 242.
Feller, A General Theory of the Collective Bargaining Agreement,
61 Calif.L.Rev. 663, 757-760 (1973).
44 Stat. 577, as amended, 48 Stat. 1185, 45 U.S.C. §§
The Court relies upon the fact that, when Congress enacted the
Labor Management Relations Act, it considered and rejected a
proposal that would have rendered the Norris-LaGuardia Act
inapplicable in any proceeding involving the violation of a
collective bargaining agreement. Ante
at 428 U. S. 409
The argument that congressional rejection of a broad repeal of the
Norris-LaGuardia Act precluded accommodation of the two Acts was
fully canvassed in Sinclair,
where it was accepted by the
Court and rejected by the dissenters, whose views were later
substantially adopted by the Court in Boys Markets.
Sinclair Refining Co. v. Atkinson, 370 U.
, 370 U. S.
at 370 U. S.
-225 (BRENNAN, J., dissenting); Boys
398 U.S. at 398 U. S. 249
The Court today nevertheless revives this argument, candidly citing
the overruled decision in Sinclair,
and arguing, as did
the opinion in that case, that any further accommodation between
the Labor Management Relations Act and the Norris-LaGuardia Act
will result in wholesale enforcement of no-strike clauses by
injunction. See Sinclair, supra
at 370 U. S.
William E. Arnold Co. v. Carpenters,
417 U.S. at
417 U. S. 20
Dowd Box Co. v. Courtney, 368 U.
Avco Corp. v. Aero Lodge 735, 390 U.
353 U.S. at 353 U. S. 454
As the Court reminded us in Gateway Coal,
"'the parties' objective in using the arbitration process is
primarily to further their common goal of uninterrupted production
under the agreement, to make the agreement serve their specialized
414 U.S. at 414 U. S. 379
quoting Steelworkers v. Warrior & Gulf Co.,
363 U. S. 574
363 U. S.
later extended Boys Markets
injunction enforcing an implied no-strike clause coextensive with
the arbitration clause in a case in which the question of
arbitrability was itself a "substantial question of contractual
interpretation." 414 U.S. at 414 U. S.
-384. It did not alter the fundamental preconditions
of a Boys Markets
injunction: a contractual commitment to
final and binding arbitration, a corresponding no-strike
commitment, and satisfaction of the ordinary principles of equity.
at 414 U. S.
-384, 414 U. S.
Associated Gen. Contractors of Illinois v. Illinois
Conference of Teamsters,
454 F.2d 1324 (CA7 1972).
In particular, an implied no-strike clause does not extend to
sympathy strikes. See ante
at 428 U. S.
-408, and n. 10.
The Court recognizes that an injunction may issue to enforce an
arbitrator's decision that a strike is in violation of the
no-strike clause. Ante
at 428 U. S. 405
See Longshoremen v. Marine Trade Assn., 389 U. S.
, 389 U. S. 77
(Douglas, J., concurring in part and dissenting in part); New
Orleans S.S. Assn. v. General Longshore Workers,
389 F.2d 369
(CA5 1968), cert. denied,
393 U.S. 828; Dunau, Three
Problems in Labor Arbitration, 55 Va.L.Rev. 427, 473-477
The Court asserts that interim relief should not be granted
unless the collective bargaining agreement expressly provides for
at 428 U. S. 411
The same argument could have been made against the holding in
left the parties
free to endow the arbitrator with power to order an end to strikes
over arbitrable grievances. Indeed, the union members of the
Committee suggested such
contractual provisions as an alternative to abandonment of
Report of Special Atkinson-Sinclair
Committee, supra, 428
fn2/7|>n. 7, at 239.
Cf. Stokely-Van Camp, Inc. v. Thacker, 394 F.
, 719-720 (WD Wash.1975); Note, The Applicability of
Injunctions to Refusals to Cross a Picket
Line, 76 Col.L.Rev. 113, 136-140 (1976). It is not necessary to
hold that an injunction may issue if the scope of the no-strike
clause is not a clearly arbitrable issue. If the agreement contains
no arbitration clause whatsoever, enforcement of the no-strike
clause would not promote arbitration by encouraging employers to
agree to an arbitration clause in exchange for a no-strike clause.
Furthermore, even if the agreement contains an arbitration clause,
but the clause does not clearly extend to the question whether a
strike violates the agreement, then the parties' commitment to
enforcement of the no-strike clause through enforcement of the
arbitrator's final decision also remains unclear.
The Union also argues that an injunction should be barred
because the party seeking arbitration is usually required to accept
the condition of which he complains pending the decision of the
arbitrator. The employer normally receives the benefit of this
rule, since it is the union that initiates most grievances. The
Union contends that fairness dictates that it receive the same
benefit pending the outcome of employer grievances. However, the
rule has its origins in the need for production to go forward under
the employer's control pending clarification of the agreement
through arbitration. See Feller, supra, 428
fn2/9|>n. 9, at 737-740. This justification hardly
supports, but rather undermines, the Union's position.
The Court advances the same argument as a threat of "massive
preliminary injunction litigation" by both employers and unions
over all arbitrable disputes. Ante
at 428 U. S. 411
n. 12. This argument simply ignores the special status of the
no-strike clause as the quid pro quo
of the arbitration
Steelworkers v. American Mfg. Co., 363 U.
, 363 U. S.
-568; Steelworkers v. Warrior & Gulf
363 U.S. at 363 U. S.
-583; Steelworkers v. Enterprise Corp.,
363 U. S. 593
363 U. S.
fn2/8|>n. 8, supra.
Construction Laborers v. Curry, 371 U.
, 371 U. S. 550
Liner v. Jafco, Inc., 375 U. S. 301
375 U. S. 308
held that a judgment of a State Supreme Court
requiring issuance of a temporary injunction against labor
picketing was final, and hence reviewable in this Court.
held that a state court injunction against labor
picketing was reviewable in this Court despite a claim of mootness
arising from completion of construction at the picketed site. In
both cases, the claim on the merits was that state court
jurisdiction was preempted by federal law. The finality and
mootness holdings in each case rested partly on the need to protect
federal labor policy from frustration by temporary injunctions
erroneously issued by state courts. It was at this point that the
final effect of a temporary labor injunction became relevant.
In this case, the sympathy strike is in support of a strike by
other local unions of the same international. The parties, however,
attach no significance to that fact.
The Court emphasizes the risk of conflicting determinations in
this case, but ignores the risk of conflicting determinations in
and Gateway Coal.
the District Court was required to determine the
arbitrability of the dispute and the legality of the strike, clear
or not, and in Gateway Coal,
the District Court need only
have found that the arbitrability of the dispute and the legality
of the strike were "a substantial question of contractual
interpretation," and hence not clear at all. The likelihood of an
injunction against a lawful strike was vastly larger under the
standard of Gateway Coal
than under a standard requiring
the District Court to find a clear violation of the no-strike
The Court obscures the latter point by misreading Gateway
to hold that an injunction was properly issued because
the dispute in that case was arbitrable. Ante
428 U. S.
-409, n. 10. But Gateway Coal
that the question whether the union properly invoked a provision
for work stoppages because of unsafe mine conditions was
"a substantial question of contractual interpretation, and the
collective bargaining agreement explicitly commits to resolution by
an impartial umpire all disagreements 'as to the meaning and
application of the provisions of this agreement.'"
414 U.S. at 414 U. S. 384
(footnote omitted). Consistently with this holding, the arbitrator
remained free to decide that the underlying dispute was not
arbitrable, and hence that the enjoined strike was not in violation
of the agreement.
Of course, it is possible that an arbitrator would disagree with
the court even when the latter finds the strike to be clearly
prohibited. But in that case, the arbitrator's determination would
govern, provided it withstands the ordinary standard of review for
arbitrators' awards. See Steelworkers v. Enterprise Corp.,
363 U.S. at 363 U. S.
"'[T]he 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.'"
398 U.S. at 398 U. S. 254
370 U.S. at 370 U. S. 228
(BRENNAN, J., dissenting).