Island Creek Coal Co. v. United Mine Workers of America

ADAMS, Circuit Judge

(dissenting):

This Court in NAPA, by a 6 to 3 vote, decided that a strike could be enjoined by a federal court when the union members refused to cross a secondary picket line that was established by employees of an associated plant located some distance away. In NAPA, the collective bargaining contract in question contained an express no-strike clause and also stated that “It shall not be a violation of the agreement ... in the event an employee refuses ... to go through or work behind any primary picket lines ... at the Employer’s place or places of business.” There is no express no-strike clause in the collective bargaining agreement present in this case and no direct or indirect reference to secondary picketing. Accordingly, the majority opinion in this case constitutes an extension of the rule in NAPA.

For the reasons set forth in the dissenting opinions in NAPA1 and for the additional reason that an extension is here made to the NAPA doctrine that will further constrict the protection established by the Norris-LaGuardia Act, I respectfully dissent.

Moreover, no bench mark has been suggested by which additional extensions can logically be precluded, once the underpinnings- of NAPA plus those in this case are established.

I am concerned that if the courts continue to interpret the national policy favoring arbitration along the lines set forth by the majority here and in NAPA, then by a process of attrition, the salutary rule established after a long and sometimes bitter struggle by the Norris-LaGuardia Act will be imperceptibly chipped away until it has lost a substantial portion of its vitality. The Supreme Court specifically eschewed such an intent. 398 U.S. at 253, 90 S.Ct. 1583.

It was one thing to further the policy favoring arbitration of grievances conventionally submitted to arbitration, and to interpret the no-strike clause so as to permit that to be done.2 It is quite an*655other thing to make it virtually impossible for union members to maintain their tradition of not crossing picket lines under a rationalization that the union, sub silentio, relinquished this valued right in favor of permitting an arbitrator to decide whether an agreement not to honor a picket line should be read into the contract.3

. For an incisive analysis of the considerations militating against permitting the district court to enjoin the work stoppage in NAPA, which is equally applicable in Island Creek, see Note, 88 Harv.L.Rev. 463 (1974). The Note points out: (1) that the work stoppage was not designed to force a concession from the employer on an arbitrable issue, as was the strike in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); (2) that in NAPA, unlike Boys Markets, the union was not trying to avoid its obligation to arbitrate and the dispute would ultimately have been resolved by arbitration even without an injunction, so that no “accommodation” was necessary between the policy of the Norris-LaGuardia Act; (3) that in Boys Markets the strike was clearly illegal, while in NAPA the work stoppage was arguably legal, and instead of “merely enforc[ing] the obligation that the union freely undertook,” as in Boys Markets, the NAPA injunction created a new obligation which undermined the union’s contractual rights; (4) that NAPA by permitting an injunction wherever the work stoppage was arguably illegal would emasculate the Norris-LaGuardia Act by prohibiting injunctions only when the strike was clearly legal, in which case no injunction could be issued in any case; (5) that in NAPA since the dispute underlying the work stoppage was between the company and another union, it was not subject to settlement under the arbitration process set out in the NAPA-Local 926 contract — while the arbitra-ble dispute between NAPA and Local 926 was a result, rather than a cause, of the work stoppage; and (6) that under ordinary principles of equity, before enjoining the strike the district court in NAPA should have concluded that the employer would probably succeed on the merits of the issue whether the stoppage was legal.

. See Boys Markets, 398 U.S. at 247-248, 90 S.Ct. 1583 (1970). In Boys Markets, the dispute arose when the store’s frozen foods supervisor and members of his crew, not members of the bargaining unit, began to rearrange merchandise in the frozen food cases. *655398 U.S. at 239, 90 S.Ct. 1583. This is the type of dispute conventionally submitted to arbitration.

. In the present case, as in Boys Markets and NAPA, the question involved — whether the union has a right to honor secondary picket lines — is not clearly arbitrable under the collective bargaining agreement. Contrast Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 376, 94 S.Ct. 629, 636, 38 L.Ed.2d 583 (1974): “On its face, th[e] contractual language admits of only one interpretation: that the agreement required the union to submit this dispute to arbitration for resolution by an impartial umpire.”

The arbitration clauses relevant here are the same generalized ones present in Gateway Coal. The character of the issue on which arbitration is sought, however, is different. In Gateway the union went on strike because the employer reinstated two supervisors whose presence the union considered a safety hazard. The Court stated, “A collective-bargaining agreement cannot define every minute aspect of the complex and continuing relationship between the parties. Arbitration provides a method for resolving the unforeseen disagreements that inevitably arise.” 414 U.S. at 378, 94 S.Ct. at 637. Surely, however, the mineworkers’ right here to observe a stranger picket line cannot nonchalantly be described as an “unforeseen” issue.