(dissenting).
The question here involved is whether or not the right to strike, Section 28.0 *886under Article XXVIII, of the Collective Bargaining Agreement between The Yale & Towne Manufacturing Company and the three Union defendants, is within the purview of the Grievance Procedure, as set forth in Article XXIV thereof.
The narrow question which a court may consider in a collective bargaining agreement concerning an arbitration provision is confined to ascertaining whether the parties seeking arbitration are making a claim which, on its face, is governed by the contract. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403.
Section 28.0, Article XXVIII, under .the Collective Bargaining Agreement between the parties, provides, in unequivocal terms, that the Union will not call or sanction a strike.
Section 24.0, Article XXIV, as set forth in the majority opinion, provides, inter alia:
“* * * Any such difference shall constitute a grievance and be taken up in the manner hereinafter set forth.”
The balance of the Article provides the procedural methods to be used, entitled “Steps” wherein the issues shall be brought to the attention of the foreman and they shall be induced to writing and provides various procedures until finally they reach representatives of management and the international union, and if they are not there settled, resort is to be had to arbitration. Step IV covers “all grievances” to be arbitrated.
It is submitted that the no-strike clause is not such a difference as to be within this procedure, which is obviously applicable to disputes occurring between labor and management. It is essential, as I view it, under the Agreement, that the “Grievance” or “Difference” is to be arbitrated, not the right to strike which is clearly prohibitive and needs no arbitrator to decide.
There can be no question here but that the difference between the company and the union is a matter which is arbitrable because it involves an employee-employer dispute concerning the demand of a group of employees that their job be upgraded, which would have meant an increase in the hourly rate of pay, and this is purely within the terms of the arbitration agreement. United Steelworkers of America v. American Manufacturing Co., supra; United Steelworkers of America v. Warriors & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; and United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
In the American Manufacturing Co. case, supra, the matter concerned a grievance as to whether an employee was ezztitled to return to his job by virtue of the seniority provision of the collective bargaining agreement. In the Warrior & Gulf Navigation Co. case, supra, the court held that the contracting out of repairs and maintenance work, as well as construction work, was not strictly a function of management, but rather that it was a matter for arbiti'ation under the agreement. In the Enterprise case, supra, the question conceimed whether or not there should be a reinstatement of employees with back pay under the provision of the arbitration agreement.
None of these cases, it will be observed, are apposite to the problem posed here for determination.
Likewise, the cases before this ciz*cuit, cited by the znajority, such as Radio Corporation of America v. Association of Professional Engineering Personnel, 3 Cir., 291 F.2d 105, concerned itself with a matter of merit increases on the paid; of employees; International Telephone & Telegraph Co. v. Local 400, Professional, Technical & Salaried Division, International Union of Electrical Workers, 3 Cir., 290 F.2d 581, concerned itself with whether or not the retirement of four employees of the company constituted, in effect, a discharge within the meaning of the collective bargaining agreement; in International Molders Union v., Susquehanna Casting Co., 3 Cir., 283 F.2d 80, the union applied for an order to ar*887bitrate the question of whether, under the contract, the right “to discharge for proper cause” was vested in the company and, here again, the court said this is a matter for arbitration. In Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 3 Cir., 283 F.2d 93, the question concerned itself with whether or not a union member had been taken out of a bargaining unit by becoming a supervisory employee and the court held here that this, likewise, was a function of the arbitrator. In Tenney Engineering, Inc. v. United Electrical, R. & M. Wkrs., 3 Cir., 207 F.2d 450, the point was not decided by this court but remanded back to the district court which shall be adverted to later.
In none of these cases was the question posed here, whether or not a specific provision containing a no-strike clause of a collective bargaining agreement, is covered by the grievance procedure set out in the contract here involved.
However, there is a sharp difference of opinion in the various circuits of the country, some holding the action should not be stayed pending arbitration and about an equal number holding that it should. In the Second Circuit in Drake Bakeries v. Local 50, American Bakery and Confectionery Workers, 287 F.2d 155, 158, it was held that the no-strike clause was not within the orbit of the grievance procedure but, upon rehearing, 2 Cir., 294 F.2d 399, the court was sharply divided with three judges affirming and three judges dissenting, Judges Lumbard, Moore and Friendly, and, under the circumstances, the district court was affirmed in holding that the no-strike clause was within the orbit of the agreement. However, another recent case on the precise point, Vulcan-Cincinnati, Inc. v. United Steelworkers of America, 6 Cir., 289 F.2d 103, where the court, after a review of the authorities, relied on International Union U.A.A. v. Benton Harbor Malleable Industries, 6 Cir., 242 F.2d 536, wherein the court, at p. 540, held: " * * * The 'difference’ or
‘grievance’ is to be arbitrated to a final conclusion, but while it is being arbitrated and regardless of how it is eventually decided and terminated, there is to be no strike. The thing to be arbitrated is the ‘difference’ or ‘grievance,’ not the right to strike or any claimed justification for the strike. There was no right to strike. The arbitration called for by this paragraph of the contract was to be used instead of a strike, not to determine whether the strike was justified after it had occurred. * * * ”
To the same effect is Hoover Motor Express Co. v. Teamsters Local 327, 6 Cir., 217 F.2d 49; United Electrical, R. & M. Wkrs. v. Miller Metal Products, Inc., 4 Cir., 215 F.2d 221.
In this circuit, Tenney Engineering, Inc. v. United Electrical, R. & M. Wkrs., Local 437, D.C., 174 F.Supp. 878, the district court held that a violation of a no-strike clause was an arbitrable issue. However, in this case, the union alleged the strike to be a wildcat affair without union responsibility which does not obtain in this case. The opposite view was reflected in Structural Steel & Ornamental Ass’n v. Shopmen’s Local Union, D.C., 172 F.Supp. 354.
We must here decide what the intendment of the parties was to this agreement. Can we construe this agreement, or more particularly, the articles and section concerned, as encompassed within the orbit of the grievance procedure, that the parties meant and said it embraced a violation of an express promise not to strike? Has it within its purview the connotation that the plant would be struck, the industry dislocated with its consequent hardship to the wageearner and then this act was to constitute a grievance which was to be later arbitrated, through the procedures set forth ?
While the United Steelworkers of America v. Warrior & Gulf Navigation, supra, among other things, held that in the absence of an express provision excluding a grievance for arbitration, only the most forceful evidence of a purpose to exclude it can prevail, it is to be remembered that this principle is set forth *888in the context of the factual situation which was presented before the court which, as above has been indicated, concerned the contracting out of repair and maintenance work and whether or not this was a function of management, which the court held was arbitrable.
Here it is true that either party had recourse to arbitration and so either the company or the union might have done so. However, the record discloses that the company discussed this dispute with the Chief Day Steward of the union and requested the men to return to work and upon their refusal so to do, they were discharged and immediately the picket line was thrown around the plant and the strike came into being.
Whatever the merits of the case are, we are not herewith concerned, but, nevertheless, the fact remains that the affirmative act of violating the agreement not to strike was taken by the union. Courts in some circuits have held that this conduct on the part of the union, relying on the equity of the situation, denies them relief. Cuneo Press, Inc. v. Kokomo Paper Handlers Union, 7 Cir., 235 F.2d 108; International Brotherhood of Teamsters v. W. L. Mead, Inc., 1 Cir., 230 F.2d 576.
To construe this collective bargaining agreement, as the majority has, it is submitted is somewhat like turning back the clock to the turn of the century when industrial' strife was the rule and the long road plod by both union and management for better industrial relations through the National Labor Relations Act, 29 U.S.C.A. § 141 etc., down through its implementation by the Labor Management Relations Act of 1947, 29 U.S. C.A. § 185, commonly called the TaftHartley Act, in the prevention of strikes, then has been in vain. For, it is submitted, that if this view is to be upheld, only chaos can result in this industry, for if a strike may be called in violation of a no-strike provision, certainly any dispute obtaining between management and the union, of a lesser nature, such as alleged unlawful union activities or the discharge of an individual by the company, can prompt a strike and arbitration can only be had after the strike is underway. The history of arbitration has ofttimes been a long and tedious one and during this period a struck plant causes great dislocation to the industry and consequent hardship to the wage-earner.
The better construction, I submit, is rather than have events come full cycle,, to construe the words and phrases of this, agreement so that the no-strike provision shall not be within the orbit of the grievance procedure and thus be in conformity with an enlightened labor and management federal policy.
I would affirm the judgment of the lower court.