dissenting.
Although I am in general agreement with the majority’s resolution of the damages *859issues raised by the Union, I respectfully dissent because I am convinced that the explicit no-strike clauses included in the bargaining agreement waived the Union’s right to strike in this case. The majority’s extension of the applicability of the “doctrine of coterminous interpretation” to collective bargaining agreements containing express no-strike clauses independent of arbitration clauses from collective bargaining agreements containing arbitration clauses but no no-strike clause breaks ground better left to the legislative plow. I further regret the majority’s willingness to construe the district court’s findings of fact in a vacuum, the result of which is a failure to recognize that this case is one in which the Union allowed a clearly arbitrable issue to explode into a nonarbitrable one.
The majority’s recounting of the facts concerning the dispute at Ryder’s St. Louis terminal and the strike at Ryder’s Nashville terminal is generally adequate. Several facts, however, need to be underscored because they are critical to a full understanding of this case. First, the strike continued after the drivers had been released from jail and had returned to Nashville.1 Second, the underlying dispute over who was to clean the windshields was a controversy that could have been resolved by arbitration. Third, article 8, section 2 of the National Master Freight Agreement specifies that the local union will give the employer a twenty-four hour prior written notice of the local union’s authorization of a strike action. Fourth, the Union gave no notice to Ryder prior to taking the strike action. Fifth, the strike was not authorized by any of the express exceptions to the no-strike clause contained in article 8, sec-' tion 2 of the National Master Freight Agreement. Last, the issue is not whether the district court’s grant of injunctive relief was proper but whether an award of damages may be granted on account of the strike.
The majority accepts the Union’s argument that if the strike was in protest of the arrests, it did not violate the collective bargaining agreements because the arrests were not arbitrable under the agreements. The majority then requires this case to be remanded to the district court for a determination of the reason for the strike. In my view there is no reason to remand.
The basic question in this case is the scope of the waiver of the right to strike in the no-strike clauses of the collective bargaining agreement. The majority apparently fails to recognize that this question is totally divorced from the question whether a federal court could have enjoined the continuation of the strike without running afoul of the anti-injunction provision of § 4(a) of the Norris-LaGuardia Act.2 The majority’s citation of cases involving the legality of courts’ prohibition or restraint of work-stoppages is inappropriate. In such cases the issue is whether exercise of a court’s equitable powers may be brought within the narrow exception to § 4(a) that the Supreme Court established in Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Applicability of the Boys Markets exception does hinge on whether a dispute is arbitrable because “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.” Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 409, 96 S.Ct. 3141, 3148, 49 L.Ed.2d 1022 (1976).
*860The majority’s reliance on Buffalo Forge is misplaced. The Buffalo Forge Court, in holding that the Boys Markets exception does not sanction the enjoining of strikes over nonarbitrable disputes, did not thereby hold that actions for damages could not arise if those strikes were in violation of an express no-strike clause. See Note, Coterminous Interpretation: Limiting the Express No-Strike Clause, 67 Va.L.Rev. 729, 744- (1981) (“The limitation the Court in Buffalo Forge placed on injunctive relief for sympathy strikes resulted from the interaction between the policy favoring arbitration and the jurisdictional limitation on federal injunctions against peaceful strikes not from the coterminous interpretation of arbitration and no-strike clauses.”). As Boys Markets itself recognized, “other avenues of redress, such as an action for damages, would, remain open to an aggrieved employer” even if injunctive relief was prohibited by the Norris-LaGuardia Act. 398 U.S. at 248, 90 S.Ct. at 1591. Cf. Hampton Roads Shipping Ass’n v. International Longshoremen’s Ass’n, 631 F.2d 282 (4th Cir.1980) (non-enjoinable work-stoppage may still be prohibited by general no-strike clause).
In support of its position that a remand is required in this case the majority offers as a settled legal rule that “[a] no-strike provision must be interpreted in light of the concomitant duty to arbitrate.” Maj. op. at 857. The majority reads the legal precedents too broadly. As the Third Circuit has noted in construing the decision by a divided panel in Delaware Coca-Cola Bottling Co. v. General Teamster Local 326, 624 F.2d 1182 (3d Cir.1980), “[t]he principle of coterminous interpretation, however, is not a rule of law, but merely a tool of contract interpretation ... which ‘must be applied to the facts of each case.’ ” Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 457-58 (3d Cir.1981) (citations omitted). The Ninth Circuit’s decision in NLRB v. Southern California Edison Co., 646 F.2d 1352 (9th Cir.1981), provides little support for the majority’s position because in that case the court, Over Judge Markey’s dissent, simply deferred to the NLRB’s factual determination that the contractual no-strike provisions at issue did not prohibit a sympathy strike. Again, the majority’s reliance on Irvin H. Whitehouse & Sons v. NLRB, 659 F.2d 830 (7th Cir.1981), is misplaced because that case involved an implied no-strike obligation, not an express no-strike clause. Finally, it is clear that courts have recognized that although “an arbitration agreement is usually linked with a concurrent no-strike obligation ... the two issues remain analytically distinct,” Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 382, 94 S.Ct. 629, 639, 38 L.Ed.2d 583 (1974), and have held that the applicability of no-strike clauses are not limited by the scope of the arbitration clause. E.g., Iowa Beef Processors, Inc. v. Amalgamated Meat Cutters, 597 F.2d 1138 (8th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979); W-I Canteen Service Inc. v. NLRB, 606 F.2d 738 (7th Cir.1979); Amcar Division, ACF Industries, Inc. v. NLRB, 641 F.2d 561 (8th Cir.1981).
To understand the proper application of the principle of coterminous interpretation, it must be recognized that different types of labor contracts impose different no-strike obligations. In one type, the no-strike obligation is not express, but rather is implied from the mandatory arbitration provisions of the contract. Not surprisingly, such contracts are held not to forbid strikes over matters not subject to compulsory arbitration. See Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 382, 94 S.Ct. 629, 639, 38 L.Ed.2d 583 (1974) (“Absent an explicit expression of [a contrary] intention ... the agreement to arbitrate and the duty not to strike should be construed as having coterminous application.”).
In other cases, such as here, the right to strike is explicitly waived in the collective bargaining agreement. Even where a dispute is not between the parties to a collective bargaining agreement, and therefore could not be settled by arbitration under the contract, the right to strike may be waived. Amcar Division, ACF Indus. v. NLRB, 641 F.2d 561, 566 (8th Cir.1981). Thus, the right to engage in a sympathy *861strike, or to refuse to cross a picket line, may be waived by contract. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 80, 73 S.Ct. 519, 524, 97 L.Ed. 832 (1953).
The question remains whether the work-stoppage in this case was prohibited by the general no-strike clauses found in the collective bargaining agreements. The majority argues that the arrests of the drivers may have taken the Union’s dispute with Ryder out of the coverage of those clauses. This argument ignores the arbitrability of the underlying dispute over the responsibility for cleaning windshields,3 the Union’s failure to provide a twenty-four hour prior written notice of the strike authorization and the absence of any authorization for the strike in the exceptions to the no-strike clause.
I would adopt the conclusions of District Judge Wiseman in this case:
[T]he parties in this case have classically made a mountain out of a mole hill. The two drivers could have washed their own windshields. One of them testified that the trucks contain automatic washers, which he customarily used. If they thought this work was not their responsibility and a dispute existed in relation to it, they could have filed a grievance over it upon their return to Nashville. The company used monumental bad judgment in causing the arrest of the two drivers. The union officials in Nashville, in frequent telephone conversation with the drivers, had the opportunity to give better advice to them than was given. The Company had the opportunity to defuse the situation when the matter was discussed between the union officials and Mr. Barton. In general, most of the actors in this drama performed with less than common sense.
The mutual errors leading up to the work stoppage cannot excuse the fact that there was an illegal strike in breach of the contract. When a union sanctions, approves, or incites an illegal strike, as the Court finds defendant has done in this case, it is liable in damages to the employer. Penn. Packing Co. v. Amalgamated Meat Cutters, Local 195, 497 F.2d 888 (3rd Cir.1974).
(Emphasis added).
Judge Wiseman’s conclusions are well-supported by the language of the contract in that Article 44 of the Supplemental Agreement provides in relevant part:
The Unions and the employers agree that there shall be no strikes, lockouts, tieups, or legal proceedings without first using all possible means of settlement as provided for in this Agreement and in the National Agreement, if applicable, of any controversy which might arise.
(Emphasis added). The failure to defuse the arbitrable underlying dispute by the Union was in clear violation of its contractual obligations. Indeed, the majority’s failure to find the Union’s conduct to be in violation of the no-strike clause acts as an invitation to unions to allow arbitrable disputes to erupt into nonarbitrable ones. Recognition that the work-stoppage , was in violation of the no-strike clauses, however, would give deference to “the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare.” Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 105, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962).
Although both Ryder and the Union may have acted obtusely in this affair, and both may have been playing games of.brinksmanship in labor relations, it is the Union that violated the collective, bargaining agreement by needlessly allowing a small bud of disagreement to ripen into a dispute. The Union must therefore be held liable for the strike, even though Ryder is. not blameless in its handling of the problem, at the St. Louis terminal. Therefore, although I am in agreement with the majority’s handling of the issues raised concerning the district court’s assessment of damages, I dissent from the majority’s remanding this case to the district court.
. This fact eviscerates the Union’s impassioned portrait of the strike as the only means of rescuing the drivers from “unconstitutional” custody.
. Which provides:
No court of the United States 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.
29 U.S.C. § 104.
. Similar disputes had in fact been arbitrated under the procedures set in the collective bargaining agreements.