(dissenting) .
I respectfully dissent.
Without attempting to analyze the motivations for the strike offered by the company, I believe that it is significant that the safety issue was not raised until after the union went on strike over the company’s refusal to pay the men who failed to work on April 15th.
In addition, I have other serious reservations about the argument that the June continuance of the strike was because of the safety issue. If working with the two assistant foremen who were on the third shift was the genuine concern of the union, what explanation can be offered for the unilateral action of the union in calling off all men employed in the mine? Men were called off who were not working on the same shift with the two assistant foremen. Others who were employed on the surface also struck.
The union contended that the presence of the two assistant foremen in the mine constituted a safety hazard because they had committed isolated violations of mine safety regulations in the past. However, the record is to the contrary. First, the union had never complained about the alleged past violations, and the assistant foremen had continued in their jobs without objection from the union. Second, the union president was notified by the Pennsylvania Department of Environmental Resources, which exercises jurisdiction over coal mines, that:
In view of the satisfactory record and good performance of these foreman [sic], in the past and the pending legal action, we feel that no further action should be taken in this matter. The coal company is at liberty to return the three (3) assistant foreman [sic] to work if it so desires.1
The only blot on their records was the April incident which the Commonwealth authorities did not believe warranted lifting of their licenses or precluding them from work. In view of the investigation conducted by the Commonwealth, its findings, which are expert and impartial, are of the utmost importance.
Whatever the probative weight of the evidence the union presented, the majority constructs a test to evaluate the existence of safety hazards which is totally at odds with the commands of both Section 502 and the national policy in favor of arbitration. Although it recognizes that in interpreting and applying labor contracts there is a strong federal policy in favor of arbitration, it considers “a dispute concerning the safety of the place and circumstances in which employees are required to work [as] sui *1162generis.” It would seem to conclude that if a union honestly believes a safety issue exists, it has satisfied its burden under Section 502. Under this view, what criteria shall be used to measure union belief, especially when it concerns an assessment of the skill and integrity of a supervisory employee? I believe that when a union raises Section 502 as a justification for a work stoppage, particularly in situations involving the subjective assessment we have here, the union must present ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists. See, e. g., Philadelphia Marine Trade Association v. NLRB, 330 F.2d 492 (3d Cir. 1964) (use of slings instead of pallets to unload ship); NLRB v. Knight Morley Corp., 251 F.2d 753 (6th Cir. 1957), cert. denied, 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370 (1958) (broken fan blower). Acceptance of anything less by a court would be an abdication, of its judicial role.
But this result may be what the majority opinion portends. Its new test is that “[i]f employees believe that correctible circumstances are unnecessarily adding to the normal dangers of their hazardous employment . . . ”, they need not arbitrate. This test will require a court to accept the naked assertion of an employee that the presence of one of his fellow employees in a plant constitutes a safety hazard. If employees may label another employee a working risk and thereupon engage in a work stoppage which, because of its characterization as a safety strike, is unreviewable by arbitration or court, no employer can expect stability in labor relations. Moreover, each employee is the possible victim of the attitudes, fancies and whims of his fellow employees. Unions, themselves, will be at the mercy of “wildcatters.” In my opinion, such a rule not only runs directly counter to our national policy of promoting labor stability but opens new and hazardous avenues in labor relations for unrest and strikes.
Further, I believe the majority misapprehends the effect of Section 502 on the court’s ability to compel arbitration under a contract. The Supreme Court in Local 174 Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), held that there is an obligation not to strike coterminous with the contract’s arbitration clause even in the absence of a specific no-strike clause. The majority would now seem to read that decision to say that if a court cannot enjoin a strike, it cannot compel arbitration of the issue in spite of a broad arbitration agreement. I believe that such reasoning is unwarranted and undercuts the salutary principle of United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), which permits federal courts to order disputes covered by an appropriate provision to an arbitrator. Section 502 nowhere states or implies that safety issues are not appropriate for an arbitrator’s decision. In fact, as I view it, the section requires a third party, a court, to determine the reasonableness of the union’s belief in the abnormally dangerous condition. Since Congress has determined by its enactment of Section 502 that a court may appropriately decide a safety claim, absent language to the contrary, there is no reason to believe that an impartial arbitrator is not equally capable of rendering a similar decision.
It seems perfectly reasonable and logical that even if a court cannot order employees to return to work because of Section 502, it can still order the matter to arbitration if the contract so states. Such a result would properly harmonize the federal policies in favor of both worker protection and peaceful settlement of labor disputes.
Were it not for the majority’s conclusion on this point, I believe the contract would compel the union to submit the safety question to arbitration. The National Bituminous Coal Wage Agreement of 1968 contains a broad arbitration clause providing for final and binding *1163arbitration, including as well “. differences . . . about matters not specifically mentioned in [said] agreement . . .” and “. . . any local trouble of any kind [arising] at the mine. . . . ” This dispute fell squarely within the language of this arbitration clause and was not excluded from arbitration by any other provision of the agreement. See, e. g., Blue Diamond Coal Co. v. United Mine Workers, 436 F.2d 551 (6th Cir. 1970).
Finally, it is important to point out that the preliminary injunction avoided the Section 502 issue by specifically providing for the continued safety of the men in the mine. It forbade the foremen from returning to their jobs pending the resolution of the dispute. This protection was all the union could properly demand in light of the appropriate arbitration order.
Vacating the preliminary injunction solves nothing. It restores the parties to the impasse which confronted them in June 1971. I would affirm the order of the district court.
. The same letter to the union president concluded with the following statement: “The objectives of the mining laws of this State is [sic] to enhance and assure mine safety. The penalty language in the Bituminous Mining Law was meant to penalize violators of the mining law to the extent deemed appropriate by the judiciary. Other than the above noted action on the part of our District Inspector and the penalty imposed by the magistrate, we feel that sufficient action has been taken by the Commonwealth in this case.”