Verizon New England, Inc. v. International Brotherhood of Electrical Workers

United States Court of Appeals
For the First Circuit

No. 10-2092

VERIZON NEW ENGLAND, INC.,

Plaintiff, Appellant,

v.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL NO. 2322,

Defendant, Appellee,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL NO. 2323,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Arthur G. Telegen, with whom John E. Duke and Seyfarth Shaw,
LLP were on brief, for appellant.
Harold L. Lichten, with whom Timothy Belcher, Lichten & Liss-
Riordan, P.C., Alfred Gordon, and Pyle Rome Ehrenberg, P.C. were on
brief, for appellee.

June 30, 2011
 LYNCH, Chief Judge. This appeal arises from a denial of

injunctive relief against a union under Boys Markets, Inc. v.

Retail Clerks Union, Local 770, 398 U.S. 235 (1970), and § 301 of

the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185, as well

as a denial of declaratory relief concerning actions previously

taken by that union. We affirm the denial of injunctive relief,

vacate the denial of declaratory relief, and remand.

Verizon New England, Inc. (VNE) alleges that the

International Brotherhood of Electrical Workers, Local 2322 (the

Union) violated a collective bargaining agreement (CBA) no-strike

clause on four occasions in 2008 and 2009. VNE argues that these

acts were part of a pattern of behavior undercutting the arbitral

process that warrants federal court relief. It alleges that the

Union did not comply with the CBA when its members (1) made

representations that the Union would fine members who brought

required devices to work, (2) engaged in a short but concerted work

stoppage, (3) coordinated refusals to volunteer for overtime work,

and (4) protested at a VNE facility each morning for several weeks.

VNE seeks injunctive relief and, in the alternative, declaratory

relief in furtherance of the arbitral process.

The district court granted the Union's motion for summary

judgment, finding that VNE had not shown future harm and declining

to issue either injunctive or declaratory relief. Verizon New

England, Inc. v. Local No. 2322, Int'l . Bhd. of Elec. Workers, No.

-2-
09-10165-RGS, 2010 WL 3282605 (D. Mass. Aug. 20, 2010). Because a

Boys Markets injunction must meet the traditional standards for

injunctive relief and because VNE has not, at this point,

demonstrated irreparable injury, we find no abuse of discretion in

the district court's denial of injunctive relief. However, because

we believe the district court misapprehended the relevant legal

standard for declaratory relief, we vacate the denial of that

relief and remand for further consideration of the issue.

I.

The CBA, effective from August 3, 2008 until August 6,

2011, contains a no-strike clause at Article G10. The clause

provides,

The Union agrees that during the term of this
Agreement, or any extension thereof, it will
not cause or permit its members to cause, nor
will any member of the Union take part in, any
strike of or interference with any of the
Company's operations or picketing of any of
the Company's premises.

Notably, the clause prohibits interference with operations and

picketing of company premises in addition to strikes. It also

imposes obligations on the Union with respect to both its own

conduct and the conduct of its members.

Under Article G8 of the CBA, the Union may submit to a

grievance process any "complaint involving the interpretation or

application of any provisions of this Agreement" and any "complaint

that an employee or group of employees for whom the Union is the

-3-
bargaining agent has, in any manner, been unfairly treated." After

the conclusion of the final step of the grievance procedure, under

Article G9 the Union may demand arbitration when it believes "the

intent and meaning of one or more of the Articles of this Agreement

. . . has been violated by the Company," provided that certain

procedural prerequisites have been met. The CBA allows for

expedited arbitration for "any grievance involving the suspension

of an individual employee."

The CBA does not permit VNE to invoke the grievance

procedure to institute the process leading toward arbitration.

Only the Union may do so, and VNE contends that the Union's failure

to invoke these procedures led to this lawsuit. Rather than follow

the grievance process, VNE asserts, the Union and its members have

taken "self-help" measures in violation of the no-strike clause.

In its complaint, VNE focused on what it asserts are four such

prohibited self-help measures. One of these alleged violations was

in response to a new company rule concerning the transport of

company tools, while the remaining three alleged violations

followed an altercation between a Union member and his supervisor.

VNE has sought to place these instances within the

context of a previous pattern of conduct it claims violated the no-

strike clause. Most of these incidents involved other locals:

Locals 2321, 2324, and 2222. As to incidents involving other

locals, VNE asserts that since 2007 there have been two alleged

-4-
incidents of picketing, a "sit-down" strike, a boycott of overtime,

and pressures by local representatives to reduce productivity. VNE

also alleges that there have been "[p]eriodic efforts" by "several

Locals to discourage bargaining unit employees from accepting

temporary assignments to management positions going back to the

mid-1980s." As to incidents involving Local 2322, the defendant

here, VNE notes that members protested the discipline of an

employee in 2001 by engaging in a "sick out," which was enjoined by

Verizon New England, Inc. v. International Brotherhood of

Electrical Workers, No. 01-11636, slip op. at 1-2 (D. Mass. Nov.

17, 2001).

The first of the four alleged violations at the core of

this suit followed the introduction of a company rule that

employees transport company-issued tool kits between job sites. An

earlier rule had required only that tools be on the job site with

the employee. For Equipment Installation Technicians (EI Techs),

employees who are routinely assigned to work on lengthy projects at

remote locations in the field, company-issued tool kits included

cell phones equipped with global positioning capabilities. Some EI

Techs, apparently concerned that VNE might use the phones to track

their movements, refused to comply with the new rule. VNE

disciplined two employees for non-compliance with the rule shortly

after it was issued, and the Union grieved these disciplinary

actions.

-5-
 In addition to filing these grievances, the Union

established a set of "EI Work Rules." The chief steward for EI

Techs, Katherine Crowley, drafted these rules after confirming with

the Union's business manager and highest official, Eugene

McLaughlin, that the EI Techs could create such rules and after

confirming with the Union's assistant business manager, Chris

Jolls, that such rules could be enforced by fines. One rule stated

that it was the Union's position that employees must be paid to

travel or transport any company tools they choose to carry on

personal time. The rule instructed EI Techs to claim overtime and

travel expenses, and stated that if overtime and travel expenses

were denied, "this must be grieved." It continued, "[t]his is not

negotiable and is contractual."

The EI Techs adopted the rules at a Union meeting.

Shortly thereafter, on January 8, 2009, Crowley sent an email to

Union members. The email stated, "The decision has been made to

enforce the union E.I. Work Rule number one in regard to the tools.

The union stance is as follows, do not transport any tools (except

for the 3 items under protest) for the manager[s]. . . . You could

be subject to answer . . . for your actions and a possible

fine. . . ." After Crowley sent this email, McLaughlin called her

and told her not to send any more email messages. Crowley was not

told why she should not send any additional emails, however, nor

-6-
was she told to retract the email. She received no instruction as

to how to enforce the EI Work Rules, and remained a chief steward.

VNE alleges that only one EI Tech did not comply with the

EI Work Rules, and that he was spoken to by many of the other

employees. The Union, by contrast, alleges that no EI Tech ever

failed to actually carry the company's tools. On this motion for

summary judgment, we must take any conflict in the evidence in the

light most favorable to VNE, the non-moving party. It is

undisputed that no employees were disciplined by the Union for

failing to comply with the EI Work Rules.

The three other alleged violations at the core of this

suit followed an August 25, 2009 confrontation between a splice-

service technician (SST), Peter Sem, and his supervisor, Patty

Regan, in a parking lot next to the VNE garage in Brockton where

they worked. The facts concerning the altercation are disputed,

though again we must take the facts in the light most favorable to

VNE, the non-moving party. VNE alleges that Sem was drinking and

that when Regan approached with a camera he assaulted her and broke

the camera.1 VNE suspended and later fired Sem as a result of the

altercation. Regan also filed a criminal complaint against him;

Sem was placed on probation and ordered to pay Regan $313 in

restitution.

1
The Union contends that Regan accosted Sem and that, as
Sem attempted to defend himself, Regan dropped her camera.

-7-
 The second alleged violation of Article G10 occurred a

few days after the altercation, on August 28, 2009. That morning,

all the employees in the garage refused to work until they had

spoken to a third-level supervisor, Lance Cummings. The garage's

chief steward, Bob Wall, told a first-level supervisor, Michael

Shea, that the employees felt unsafe around Regan. Shea responded

that Cummings would not come to the garage and that the employees

needed to return to work. The employees did not return to work,

and after about forty-five minutes Shea told them that if they did

not return to work within five minutes they would be suspended. In

the ensuing five minutes, during which only a few employees

returned to work, Shea contacted the Union's new business manager,

Erik Hetrick. Shea informed Hetrick that VNE was about to suspend

almost all of the employees at the garage.

Hetrick requested that Shea delay any suspensions until

he could get to the garage, and drove from the Union headquarters

in Middleboro to the garage in Brockton. Once Hetrick arrived he

spoke with the employees and reassured Shea that he believed the

situation would resolve itself. He then called Cummings and

requested that Regan not interact with the employees until after a

representative from VNE's Employee Assistance Plan had spoken with

them the following Monday. After Cummings accepted that request,

the employees returned to work. VNE estimates that this work

stoppage delayed the start of the work day by between an hour and

-8-
an hour and a half, and argues that the stoppage violated the no-

strike clause in Article G10. The Union submits that the delay was

shorter, but we take the estimate of VNE, the non-moving party.

VNE alleges that a third violation of Article G10 also

began on August 28, 2009, when employees at the Brockton garage who

had previously made themselves available to work voluntary overtime

refused to work that overtime. VNE's Director of Labor Relations,

Joseph Santos, informed Hetrick in a letter dated the same day that

the employees declining overtime were acting "in protest of a

dispute subject to arbitration under the collective bargaining

agreement." The letter stated that the Union's obligations under

Article G10 of the agreement required that it not permit such

interference with VNE's operations. Santos requested that Hetrick

inform him of the actions the Union was taking to restore voluntary

overtime. Hetrick responded by fax stating that it was the Union's

position that it had satisfied its obligations under Article G10.

By September 3, 2009, every SST in the Union was refusing voluntary

overtime.

Finally, VNE alleges that employees at the Brockton

garage violated the no-strike clause of the CBA by picketing the

entrance to the garage. It is undisputed that on September 1,

2009, about twenty EI Techs began protesting in front of the

Brockton garage each morning between 7:15 and 7:30. The employees

walked between the two entrances of the garage and some carried

-9-
signs. The Union denies that it organized these actions, but it

acknowledges that Hetrick and other Union leaders participated.

The Union has conceded that these protests lasted a few weeks.

In its supplemental complaint, VNE argued that these

actions interfered with VNE's business and that the Union failed to

meet its obligations to prevent and eliminate these interferences.

It argued that the alleged CBA violations caused irreparable injury

to VNE by undermining the grievance and arbitration provisions of

the CBA and by injuring VNE's goodwill among customers in the

telecommunications field. VNE acknowledged that the damages

resulting from these alleged harms were not "readily

ascertainable," and has not pursued the request for damages it

nonetheless included in its complaint. It has focused on the two

other forms of relief it requested: injunctive relief and

declaratory relief. The proposed injunctive relief would enjoin

the Union to take adequate steps to prevent future strike

activities.

The Union sought summary judgment arguing that VNE had

failed to identify a violation of the no-strike clause and that in

any case VNE had failed to show that any violations had caused

damages or irreparable harm. It argued that (1) VNE had not found

that any employee refused to carry company tools as directed by

VNE, and at any rate the Union was not responsible for the actions

of a rogue Union steward directing members not to follow the

-10-
policy; (2) the Union acted swiftly to resolve the initial protest

at the Brockton garage and prevented it from causing any harm to

VNE; (3) VNE employees were entitled to refuse voluntary overtime

because VNE may compel mandatory overtime, and the fact that VNE

did not compel mandatory overtime demonstrates that it was not

harmed by this refusal; and (4) the protests held outside of the

Brockton garage did not constitute picketing, and at any rate did

not cause VNE any harm. Further, the Union argued, VNE had

available contract remedies; that is, VNE could have suspended

employees, provoking the Union to start the arbitral process.

Without detailing all of VNE's responses, it is quite

clear that the Union was not entitled to summary judgment based on

its defense that there neither was nor could have been a breach of

the CBA's no-strike clause. At the very least, there were facts in

dispute and the Union's attempt to disclaim any responsibility is

unfounded. VNE provided evidence that the purportedly rogue Union

steward acted with the Union's approval and complicity, that the

sit-down strike and picketing were a classic example of wink/wink,

nod/nod by Union officials, and that at least the voluntary

overtime boycott affected its operations.

The district court did not assess the evidence as to

whether CBA violations had occurred. Instead, it assessed the

level of harm to VNE and the ongoing nature of the alleged

violations. The district court granted summary judgment for the

-11-
Union on VNE's request for injunctive relief, finding that VNE had

not alleged any ongoing breach of the CBA and had not adequately

alleged either irreparable harm or a threat of a future CBA breach.

Verizon New England, 2010 WL 3282605, at *5-7.

The district court also granted summary judgment for the

Union on VNE's request for declaratory relief, finding that two of

the four alleged CBA violations presented no threat of recurrence,

and that declarations concerning the remaining two violations would

be too abstract and uncertain to warrant this form of relief. Id.

at *7.

II.

The Norris-La Guardia Act of 1932 (NLA) prohibited

federal courts from granting injunctive relief in labor disputes.

29 U.S.C. § 104. In 1947, however, Congress enacted the LMRA,

which gave federal courts jurisdiction over suits alleging

violations of collective bargaining agreements. 29 U.S.C.

§ 185(a). In the 1950s, the use of arbitration to resolve labor

disputes became a central and controlling component of federal

labor policy. See Textile Workers Union v. Lincoln Mills, 353 U.S.

448, 455 (1957). In the Steelworkers trilogy in 1960, moreover,

the Supreme Court strengthened the requirement for arbitration

under collective bargaining agreements. See United Steelworkers v.

Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior

-12-
& Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v.

Enter. Wheel & Car Corp., 363 U.S. 593 (1960).

There was some tension between the NLA, the LMRA, and

this emphasis on arbitration. The Supreme Court found there was a

need for some adjustment of the prohibition against enjoining

strikes contained in the NLA in light of the LMRA and the use of

arbitration. In Boys Markets2 the Court held that, despite the

anti-injunction provisions of § 4 of the NLA, a federal court in

LMRA § 301(a) cases may issue limited injunctive relief to protect

the effectiveness of arbitration agreements:

[T]he very purpose of arbitration procedures
is to provide a mechanism for the expeditious
settlement of industrial disputes without
resort to strikes, lockouts, or other self-
help measures. This basic purpose is
obviously largely undercut if there is no
immediate, effective remedy for those very
tactics that arbitration is designed to
obviate.

Boys Markets, 398 U.S. at 249. The Court expressed concern that

incentives for employers to agree to submit grievances to

arbitration would be inappropriately dissipated3 if employers were

2
Boys Markets overruled Sinclair Refining Co. v. Atkinson,
370 U.S. 195 (1962), an earlier effort among a series of efforts to
reconcile these tensions. See Boys Mkts., Inc. v. Retail Clerks
Union, Local 770, 398 U.S. 235, 237-38 (1970); see generally, Paula
L. McDonald, Comment, Judicial Interpretation of Collective
Bargaining Agreements: The Danger Inherent in the Determination of
Arbitrability, 1983 Duke L.J. 848, 853-57.
3
VNE is not precluded from Boys Markets relief by the fact
that only the Union could institute the grievances and arbitration
processes under the CBA. Once arbitration is sought, both parties

-13-
deprived of injunctive relief to enforce the quid pro quo of a no-

strike clause.4 Id. at 248.

In Boys Markets, the Supreme Court established certain

preconditions for the issuance of injunctive relief in labor

disputes: (a) the existence of a no-strike clause, (b) clarity that

the grievance in question was subject to arbitration, and (c)

employer readiness to engage in such arbitration. Id. at 253-54.

In addition to these preconditions, there are other limitations on

the grant of a Boys Markets injunction. The injunction must also

meet all the usual criteria for injunctive relief, including

irreparable injury, likelihood of success on the merits, balancing

of the equities, and consideration of the public interest. Id. at

are bound to arbitrate. If the Union grieves, then VNE must follow
the procedures through arbitration. That is all that Boys Markets,
with its statement that "both parties are contractually bound" to
arbitrate, 398 U.S. at 254, requires. See also Avco Corp. v. Local
Union #787, 459 F.2d 968, 972 (3d Cir. 1972). Indeed, one-way
grievance ratchets may increase the likelihood of employers seeking
Boys Markets injunctions. In any event, the Union has not asserted
that the normal rules for Boys Markets cases are somehow altered by
the fact that the CBA in this case contains such a one-way ratchet.
4
Some courts have recognized what is called "the reverse
Boys Markets exception." Aeronautical Indus. Dist. Lodge 91 v.
United Techs. Corp., 230 F.3d 569 (2d Cir. 2000). This exception
"permits unions to obtain injunctions against employers to preserve
the status quo pending arbitration of a labor dispute as long as:
(1) the underlying dispute is subject to mandatory arbitration; and
(2) an injunction is necessary to prevent the arbitration process
from becoming a 'hollow formality' or 'meaningless ritual.'" Id.
at 581 (quoting Niagara Hooker Emps. Union v. Occidental Chem.
Corp., 935 F. 2d 1370, 1377, (2d Cir. 1991)); see also Lever Bros.
Co. v. Int'l Chem. Workers Union, 554 F.2d 115, 123 (4th Cir.
1976).

-14-
254. Further, the Court held that an employer "should be ordered

to arbitrate, as a condition of . . . obtaining an injunction

against the strike." Id. (quoting Sinclair Refining Co. v.

Atkinson, 370 U.S. 195, 228 (1962) (Brennan, J., dissenting)).

Many years ago this Court held there are three conditions

for injunctive relief under Boys Market: "(1) the collective

bargaining agreement must contain mandatory arbitration procedures;

(2) the strike to be enjoined must be over an arbitrable grievance;

and (3) 'ordinary principles of equity' must warrant the injunctive

relief." Nat'l Elevator Indus., Inc. v. Int'l Union of Elevator

Constructors, 776 F.2d 374, 376-77 (1st Cir. 1985) (quoting Int'l

Detective Serv., Inc. v. Int'l Bhd. of Teamsters, Local 251, 614

F.2d 29, 31 (1st Cir. 1980)). The first two of these conditions

are clearly met in this case. As to the first, there is no

question that the collective bargaining agreement contains

mandatory arbitration procedures. As to the second, the

presumption of arbitrability applies in Boys Markets cases, see

Gateway Coal Co. v. United Mineworkers, 414 U.S. 368, 379-82

(1974), and the disputes at issue here certainly appear to be over

arbitral grievances. The third condition presents a steeper climb

for VNE.

Our analysis is informed by both statutory constraints

and limits stemming from the rationale for the Boys Markets

injunction. As to statutory restrictions, Boys Markets injunctions

-15-
are limited by § 9 of the NLA, which requires that injunctions

contain "only a prohibition of such specific act or acts as may be

expressly complained of in the . . . complaint or petition filed"

in the case. 29 U.S.C. § 109; Latas Libby's, Inc. v. United

Steelworkers, 609 F.2d 25, 31 (1st Cir. 1979).5 As to limits

stemming from the rationale in Boys Markets, the Supreme Court has

held that a Boys Markets injunction can only issue if the dispute

is "over" issues which the striking union is obligated to

arbitrate. Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397,

407 (1976). In so holding, the Court responded to risks that

employers would seek court determinations on issues of

arbitrability meant to be left to arbitrators.

Under Buffalo Forge, the underlying grievance, not just

the activity to be enjoined, must be governed by the arbitration

requirement. If there were no requirement to arbitrate that

grievance, any injunction could hardly be in aid of arbitration.

Id. When it is clear the strike is not "over" such issues, no

injunction may issue. In Buffalo Forge, the Court held that it was

5
While this circuit apparently has not reached the
question, see Otis Elevator Co. v. Int'l Union of Elevator
Constructors, Local 4, 408 F.3d 1, 7 n.5 (1st Cir. 2005), most
courts have concluded that the requirements of § 7 of the NLA also
apply to Boys Markets injunctions. That section, 29 U.S.C. § 107,
specifies certain procedural and evidentiary requirements. See 1
John E. Higgins, Jr., The Developing Labor Law 1449 n.255 (5th ed.
2006) (collecting cases). The Supreme Court has not addressed the
question of the applicability of these NLA requirements in Boys
Markets cases. Id.

-16-
error to issue a Boys Markets injunction against a sympathy strike

which "had neither the purpose nor the effect of denying or evading

an obligation to arbitrate or of depriving the employer of its

bargain." Id. at 407-408. The Supreme Court reinforced this

requirement in Jacksonville Bulk Terminals v. International

Longshoremen's Ass'n, 457 U.S. 702 (1982), holding that a Boys

Markets injunction should not issue to stop a politically motivated

boycott that was plainly not arbitrable. Id. at 721.

This court has read Boys Markets such that frustration of

the arbitral process does not necessarily establish irreparable

injury for purposes of injunctive relief. In Latas Libby's, we

affirmed a district court's finding that a union had violated a no-

strike clause and affirmed the district court's award of damages

for the illegal strike. Latas Libby's, 609 F.2d at 28-30. We

vacated, however, prospective injunctive relief as to future

strikes. The injunction had required the union to comply in all

future actions with the no-strike clause of the CBA. Id. at 30.

This court held that given that the record disclosed no prior

violations of the no-strike agreement, the prospective injunctive

relief went further than needed. Id. at 30-32. We commented,

"[a]lthough we do not say that repeated violations of a no-strike

covenant never warrant broad prospective relief, in the absence of

any showing here of a continuing course of conduct evidencing the

unwillingness of the Union to abide by the no-strike provision,"

-17-
the district court's injunction was too broad to stand. Id. We

also noted that the broad relief granted would violate § 9 of the

NLA. Id. at 31.

This court has also reaffirmed the requirement that

injunctive relief may only be granted under Boys Markets in

furtherance of the arbitral process. In Tejidos de Coamo, Inc. v.

International Ladies' Garment Workers' Union, 22 F.3d 8 (1st Cir.

1994), we held that an order on behalf of an employer staying

arbitration, id. at 11, was an immediately appealable injunction

and that the injunction was not validly issued under Boys Markets,

see id. at 12-13. There, injunctive relief could not be justified

"on either ground--to enforce a contract or support arbitration--

let alone both." Id. at 12. That an order staying arbitration

could not be in support of arbitration was self-evident. Id. The

company argued that there was no contract requiring arbitration and

that it could not be forced into arbitration. Id.

In addition to vacating overly broad injunctive relief

and injunctive relief that did not advance the arbitral process,

this court has also reversed grants of Boys Markets injunctive

relief for failure to meet the traditional four-part equitable

test. See Anheuser-Busch, Inc. v. Teamsters Local No. 633, 511

F.2d 1097, 1100 (1st Cir. 1975) (holding that the balance of

relative harms to the parties showed employer did not meet its

burden).

-18-
 Neither the Supreme Court nor this court has imposed any

requirements as to the sequence of decision making on issues

presented by Boys Markets injunction requests. Cf. Pearson v.

Callahan, 129 S. Ct. 808, 818-21 (2009) (holding that there is no

mandatory order of decisionmaking in qualified immunity cases).

There is no reason why the district court could not jump, as it

did, to the irreparable injury issue, and so we turn to that. We

review denials of injunctive relief for abuse of discretion,

reviewing underlying legal questions de novo. Animal Welfare Inst.

v. Martin, 623 F.3d 19, 26 (1st Cir. 2010).

VNE argues that the district court made several errors in

its denial of injunctive relief. Primarily, it argues the court

misapprehended the nature of the harm at issue by measuring the

direct harm caused by each alleged CBA violation.6 VNE argues that

the court should have taken the four alleged violations as a whole

and assessed "the harm to the arbitral process caused by the

Union's repeated resort to picketing and strikes over matters the

Union seems to agree are subject to the grievance and arbitration

provisions of the CBA."

In the more common case in which Boys Markets injunctions

have been issued, the strike is occurring at the time of suit or is

6
We note but do not reach VNE's argument that the district
court erred in its balance of the hardships analysis because, in
its view, the Union could not be harmed by taking matters to
grievance and arbitration.

-19-
imminent. See 1 John E. Higgins, Jr., The Developing Labor Law

1461 (5th ed. 2006). Boys Markets itself concerned an ongoing

violation of a no-strike clause. Boys Markets, 398 U.S. at 239-40.

In theory, questions may arise as to the application of Boys

Markets to job actions short of actual strikes. But we have held

that activities short of an actual strike may also violate no-

strike clauses, including work slowdowns and concerted refusals to

work overtime.7 Nat'l Elevator Indus., 776 F.2d 374; see also Avco

Corp. v. Local Union #787, UAW, 459 F.2d 968, 974 (3d Cir. 1972)

(holding that concerted refusals to work overtime fell within the

proscriptions of a CBA no-strike clause and were subject to

injunctive relief under Boys Markets).

The fact that there is no present ongoing dispute as to

these four alleged violations does not, of course, mean the case is

moot. See Jacksonville Bulk Terminals, 457 U.S. at 704 n.1 (suit

by employer under LMRA § 301 is not mooted by cessation of work

stoppage). But that fact does go to the issue of irreparable harm.

Patterns of repeated past strikes in violation of no-strike clauses

may support issuance of prospective injunctive relief even when

there is no ongoing strike. As the district court recognized,

however, in this case the four alleged job actions were not full-

7
VNE's complaint details other clauses in the CBA that it
alleges are violated by the Union's actions, but we need not delve
into whether other types of clauses subject to mandatory
arbitration may support a Boys Markets injunction as those other
clauses are not invoked on appeal.

-20-
blown strikes, nor do the alleged actions establish a repeated

pattern giving rise to ongoing harm. VNE's assertion that the four

alleged breaches threaten "death by pin pricks," Verizon New

England, 2010 WL 3282605, at *7 n.7, is insufficient. The district

court did not abuse its discretion in holding that the threshold of

irreparable injury had not been met.

III.

The Supreme Court has indicated that appellate review of

discretionary decisions not to grant declaratory relief is generally

for abuse of discretion. See Wilton v. Seven Falls Co., 515 U.S.

277, 289-90 (1995). It has "repeatedly characterized the

Declaratory Judgment Act as 'an enabling Act, which confers a

discretion on the courts rather than an absolute right upon the

litigant.'" Id. at 287 (quoting Pub. Serv. Comm'n of Utah v. Wycoff

Co., 344 U.S. 237, 241 (1952)). The Court has not yet established

the contours of that abuse of discretion review except in cases

where the denial is based on there being a parallel proceeding which

presents the opportunity to ventilate the same state law issues in

the state courts. See id. at 290. Wilton expressly declined "to

delineate the outer boundaries of that discretion" in cases raising

issues of federal law, id., such as the case before us.8

8
In a pre-Wilton case this court held that where the
district court holds it lacks jurisdiction to issue a declaratory
judgment because a case is not ripe, that issue is usually reviewed
de novo. Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d
530, 534 (1st Cir. 1995). As to the discretionary aspects of a

-21-
 Out of caution, we apply an abuse of discretion standard

of review to all aspects of the denial of a declaratory judgment

here, with the important caveat that errors of law constitute an

abuse of discretion. Voice of the Arab World, Inc. v. MDTV Med.

News Now, Inc., No. 10-1396, 2011 WL 2090132, at *3 (1st Cir. May

27, 2011). At any rate, we reach the same result under any standard

of review. See Rossi v. Gemma, 489 F.3d 26, 38 n.21 (1st Cir.

2007).

We start with the basics. Requests for a declaratory

judgment may not be granted unless they arise in a context of a

controversy "ripe" for judicial resolution. Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99, 105 (1977). Ripeness is an

Article III jurisdictional requirement. The need for ripeness is

emphasized in the Declaratory Judgment Act (DJA), 28 U.S.C.

decision to withhold declaratory judgment, we said in Ernst & Young
that we hewed a middle ground, between de novo and abuse of
discretion review. Id. "This standard encourages the exercise of
independent appellate judgment if it appears that a mistake has
been made." Id. It is unclear whether Wilton overruled Ernst &
Young on this point, at least in federal question cases.
Our case law post-Wilton has articulated both standards of
review. In a case involving a student's claim for declaratory
relief under IDEA, we adhered to the Ernst & Young formulation.
See Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 39 (1st Cir. 2006).
However, in two other cases, we stated the standard of review for
denial of declaratory relief as a simple abuse of discretion
standard, without discussing Wilton's caveats. See Hartford Fire
Ins. Co. v. R.I. Pub. Transit Auth., 233 F.3d 127, 130 (1st Cir.
2000); DeNovelis v. Shalala, 124 F.3d 298, 313 (1st Cir. 1997).

-22-
§ 2201(a), which refers to an "actual" controversy. This is a sine

qua non of any assumption of federal jurisdiction.

In Ernst & Young v. Depositors Economic Protection Corp.,

45 F.3d 530 (1st Cir. 1995), we interpreted Abbott Labs. to hold

that where challenges are asserted to government actions and

ripeness questions arise, a court must consider both "fitness" for

review and "hardship." Id. at 535. The "fitness" inquiry concerns

questions of finality, definiteness, and the need for further

factual development. Id. Under "hardship," the court should

consider whether the challenged action "creates a 'direct and

immediate' dilemma" for the parties. Id. (quoting W.R. Grace & Co.

v. EPA, 959 F.2d 360, 364 (1st Cir. 1992)). As we have reaffirmed

since our decision in Ernst & Young, these inquiries are highly

fact-dependent, such that the "various integers that enter into the

ripeness equation play out quite differently from case to case."

Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003) (quoting Ernst &

Young, 45 F.3d at 535).

Before the district court, the Union argued that

declaratory relief should not be granted because VNE's allegations

were not of "sufficient immediacy or controversy" to warrant the

exercise of the court's discretion. It argued that the controversy

was no longer ongoing, and that VNE had not shown that the arbitral

process had failed to function properly. In State of R.I. v.

Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1999), we rejected

-23-
such a confined approach to considering the question of "hardship."

In that case, we firmly held that "this part of the [ripeness]

inquiry should focus on the judgment's usefulness." Id. at 693.

We held that "[r]ather than asking, negatively, whether denying

relief would impose hardship, courts will do well to ask, in a more

positive vein, whether granting relief would serve a useful purpose,

or, put another way, whether the sought-after declaration would be

of practical assistance in setting the underlying controversy to

rest." Id.

The district court identified this governing standard, but

its analysis did not comport with the standard's requirements. The

court concluded that the first two of the four claimed CBA

violations could not meet the ripeness requirement because "they

pertain to discrete past incidents that present no threat of

recurrence." Verizon New England, 2010 WL 3282605, at *7. It

allowed that there could be possible future harm to VNE from renewed

boycotts of voluntary overtime or wildcat picketing, but held it

would be inappropriate to comment on future events. Id. As to the

overtime boycotts, the court stated that it "would be uncomfortable

ordering employees to do what [VNE] itself characterizes as a

voluntary act," and that VNE had not shown that the overtime

boycotts posed a "substantial hardship." Id. As to the alleged

picketing, it held that any effort "to define in the abstract when

picketing is or is not lawful (or appropriate) is a hopeless task

-24-
given the myriad forms that speech can take in the context of a

labor dispute." Id.

This articulation mischaracterizes VNE's request for

declaratory relief, which went to the four alleged CBA violations

and sought a declaration as to their legal effects. VNE did not

request that the court define in the abstract when picketing is

lawful, nor did it request that the court issue a declaratory order

requiring employees to volunteer for overtime. Nor did VNE rest its

request for declaratory relief on the premise that work stoppages

and Union communications about company tools would continue to occur

in the future as they had in the past. Rather, VNE requested a

declaration as to the lawfulness of the particular acts described

in its complaint under the no-strike clause of the CBA.

The dispute about the legal effect of these four alleged

violations is clearly ripe, as Article III requires. The actions

have happened; it is the legal effects of these actions under the

no-strike clause and LMRA § 301 that are at issue. "There is little

difficulty in finding an actual controversy if all of the acts that

are alleged to create liability have already occurred. The court

is then merely being asked, as in any litigation, to determine the

legal consequences of past events . . . ." 10B Charles Alan Wright

et al., Federal Practice and Procedure § 2757, at 475 (1998). VNE

seeks a declaration that the Union's past actions contravened the

no-strike clause of the CBA and frustrated the company's bargained-

-25-
for quid pro quo that such matters be resolved through arbitration.

This is not a situation where a declaration is sought on the legal

consequences of a hypothetical act that may or may not occur in the

future. Id. at 475-476.

Nor does a decision that the harm to VNE does not warrant

preliminary injunctive relief preclude an examination of whether VNE

should nonetheless be granted a declaratory judgment. See Powell

v. McCormack, 395 U.S. 486, 499 (1969) ("A court may grant

declaratory relief even though it chooses not to issue an injunction

or mandamus."). More than that, "a federal district court has the

duty to decide the appropriateness and the merits of the declaratory

request irrespective of its conclusion as to the propriety of the

issuance of the injunctions." Zwickler v. Koota, 389 U.S. 241, 254

(1967). The DJA itself states that declaratory judgment may be

granted "whether or not further relief is or could be sought." 28

U.S.C. § 2201(a). The Act embodies the view that declaratory relief

is alternative or cumulative, and not extraordinary relief. 10

Wright et al., supra § 2758, at 508.

Further, this court has recognized the utility of

declaratory judgments in cases brought under § 301 of the LMRA in

which injunctive relief is denied. In Tejidos de Coamo, this court

remanded for consideration of a request for declaratory relief in

a § 301 LMRA action where we had reversed the grant of injunctive

relief:

-26-
 Although section 301 actions are ordinarily
brought to enforce contracts, the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-02, permits the
declaration of rights about which a real
controversy exists, and the Unions have not
disputed the district court's authority to
grant declaratory relief.

Tejidos de Coamo, 22 F.3d at 15. Importantly, Tejidos also

emphasized that the constraints on injunctions in Boys Markets type

cases do not apply to the relief of declaratory judgment. As we

said, "Nor does section 7 [of the NLA, 29 U.S.C. § 107] pose any

barrier to such a declaration; it is directed only against

injunctions." Id. The NLA provides no protection against actions

for declaratory relief. Wilkes-Barr Pub. Co. v. Newspaper Guild of

Wilkes-Barre, Local 120, 647 F.2d 372, 379 (3d Cir. 1981).

Even if an injunction is unwarranted, an adjudication as

to whether the events at issue in this litigation establish CBA

violations that undercut the arbitral process could be of assistance

in settling the underlying controversy. Whether there has been a

pattern of evasion of arbitration through violations of a no-strike

provision is highly relevant to whether future injunctive relief

should be granted if the pattern recurs. See Latas Libby's, 609

F.2d at 31-32; see also Powell, 395 U.S. at 499. Future relief

aside, declaratory relief can have a current utility. As the Third

Circuit noted in affirming a denial of injunctive relief but

remanding for consideration of declaratory relief, a "declaration

that . . . breaches did or did not occur certainly would aid the

-27-
parties in understanding their mutual obligations under the

contract." Bituminous Coal Operators' Ass'n, Inc. v. Int'l Union,

United Mine Workers of Am., 585 F.2d 586, 595 (3d Cir. 1978),

abrogated on other grounds by Carbon Fuel Co. v. United Mine Workers

of Am., 444 U.S. 212, 216 & n.4 (1979).

If we thought VNE's claims were easily rejected on their

merits, we would not remand. But that is not the case. Certain of

the claims that these actions by the Union have violated VNE's

rights under the CBA are substantial and merit serious

consideration. Declaratory relief, of course, may not be used to

supplant the role of the arbitrator in interpreting the provisions

of the contract. It may be useful, however, in determining whether

the actions at issue have undercut the arbitral process. Cf.

Buffalo Forge, 428 U.S. at 407.

III.

We affirm the denial of injunctive relief, reverse the

denial of declaratory relief, and remand for further consideration

of declaratory relief. No costs are awarded.

-28-