(dissenting).
Perhaps I see more in this case than my Brothers. But, while I can enthusiastically adopt so many portions of the opinion, especially parts I and II, I think in the final analysis that what they do is the same old effort to sugar-coat what, to the judiciary, has long been a bitter pill — the idea that someone other than a court can properly adjudicate disputes; that in the field of human disputes lawyers and ex-lawyers as judges alone have the Keys to the Kingdom. Of course, the approach of many jurisdictions which, with jealous eye, scanned all such devices lest they infringe upon or oust the Courts from their historic role, was long ago rejected for Federal Courts. To this notion Judge Hough, in United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., D.C.S.D.N.Y., 1915, 222 F. 1006, 1007, retorted: “A more unworthy genesis cannot be imagined.” See also Lincoln Mills of Alabama v. Textile Workers Union, CIO, 5 Cir., 1956, 230 F.2d 81, 89, 92 (dissenting opinion), note 7 and related text. But the feeling has a hardy tenacity and decisions of this kind are the transfusions that give a few more days, or years, to an idea that has long since earned a decent interment.
To reach this result the Court seizes onto a single case involving a commercial, not a labor-management, dispute, Marchant v. Mead-Morrison Mfg. Co., 1929, 252 N.Y. 284, 169 N.E. 386, and then drags in, see note 12, though wholly irrelevant, the supposed distinction between “major” and “minor” disputes flowing from the unique situation under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., by which jurisdiction is divided between the Railway Adjustment *461Board and the Mediation Board. As to Justice Cordozo’s observations in the first, much water has since gone over the dam, not the least of which is the command that Federal Courts under Section 301 have the responsibility and duty to fashion a suitable Federal jurisprudence. Textile Workers Union v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Exercising this judicial inventiveness would require that we at least give something more than a deferential footnote citation, see note 10, to a respectable and substantial body of reported arbitration decisions as a source of learning and enlightenment.
Running through the Court’s opinion is the idea that a supposed policy of “no work — no pay” is evidence of an intent not to allow a third party to award damages. Of course, the fact of this case, as the Court acknowledges, is that a worker had a right to a specific task; the company wrongfully deprived him of it; what he seeks is what he would have earned at it. A court of law would award him no less and would pay scant heed to the suggestion that this was paying for work not done. Everyone who risks a claim of breach of contract understands that if a court rejects his denial of breach, he may end up paying twice. He will find no judicial succor on the plea that this is punitive.
The idea of a person deciding a controversy so that his decision may then become the subject of a new and further one — i. e., controversy in bargaining — is repugnant to the scheme of an orderly disposition of disputes before they ripen into the seeds of industrial conflict.
Here, three years later, we are back where we were in Lincoln Mills. There I stated that this court had concluded “that the court with power is yet powerless to proceed — it has power but no tools — in short, the door is open but the hall is empty.” 230 F.2d 81, 89. Perhaps today the hall is filled. But what takes place is mere stage acting since the players are engaged in a mere academic exercise, debating fiercely and resolving decisively, but actually delivering nothing further than the outline of tomorrow’s controversy. The fight begins, then, after leaving the hall.
I therefore respectfully dissent.