(dissenting):
Since it is my view that there was no jurisdiction to arbitrate the dispute growing out of supply workers’ picketing of the Packers’ facility, I would vacate the district court order enforcing the arbitrator’s award.1 I dissent from the contrary result reached by the majority opinions.
It has been reiterated in many decisions that arbitration is a matter of contract. Unless a bargaining unit has contracted for arbitration, a court has no power to require arbitration as a matter of law. United Steelworkers of America v. Warrior Gulf & Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), United Steelworkers of America v. America Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The much repeated presumption in favor of arbitration can operate only where there first has been an affirmative grant of power to arbitrate by both the bargaining unit and the employer. As the majority opinions concede, it is for the court in the first instance to determine whether arbitration jurisdiction exists.
See: opinion of Judge Van Dusen at 6.
In the instant case, valid arbitratibn/no-work stoppage clauses appeared in both the boning and slaughtering agreements. See: opinion of Judge Van Dusen at 3, n.2. Since these two groups of workers had bound themselves to arbitrate disputes, the arbitrator had jurisdiction to consider their refusal to cross the supply workers’ picket line. The arbitrator found that the refusal to cross the picket line violated the no-work stoppage clauses and assessed damages accordingly. If the award had stopped here, I would have had no difficulty joining in the court’s affirmance. It is to that portion of the award assessing damages for the illegal supply picket line that I cannot subscribe. When the supply workers picketed the adjacent Packers’ facility, their collective bargaining agreement had expired and they were bound by no arbitration clause. Absent a collective bargaining agreement and arbitration clause, I simply cannot understand how an arbitrator could get jurisdiction over any misconduct by the supply workers.
The majority opinions would support this result by focusing on the fact that all three collective bargaining units, boners, slaughterers and supply workers, were represented by the same union, Local 195 of the Amalgamated Meat Cutters & Butcher Workmen of North America. Jurisdiction, which coneededly existed over the boning and slaughtering workers, is somehow spirited through the *1126common union to the supply workers.2 By focusing on the union without reference to the three separate units represented by the union, I think both opinions err.
It is true that for the purposes of the Labor Management Relations Act, § 301(b), 29 U.S.C. § 185(b), a union may sue and be sued in its own capacity and that damages entered against a union, either in an arbitration case or in a § 301 case, must be satisfied from union funds. The personal resources of union agents may not be attached in the § 301 context. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 248, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). This is not to say, however, that the union’s activity can be examined without any reference to the bargaining unit it represents. § 301(b), 29 U.S.C. § 185(b), recognizes that the union acts “in behalf of the employees whom it represents.” (Emphasis added). From this language, courts have implied a duty of fair representation which the labor organization owes to the employees for whom it acts as bargaining agent. Although the union is recognized as an entity with independent status, it is an entity which acts primarily in a representative capacity.
In the instant case I do not find it inconsistent with the union’s status as an entity to say that Local 195 as the representative of the supply workers could be charged with different responsibilities than as representative of the boning and slaughtering workers. In holding otherwise, Judge Van Dusen implies that one local cannot fairly represent different bargaining units where different duties may arise from its status with respect to each unit.3 The premise of this remarkable conclusion is that the provisions of one unit’s collective bargaining agreement can bind a different group of workers who happen to be represented by the same union.4 In my view the effect of this line of reasoning is to obliterate boundary lines between bargaining units represented by the same local without any basis in logic, precedent or policy.
In support of the finding of jurisdiction, Judge Van Dusen seems to accept *1127the employer's theory that the union should not be allowed to “change hats” at will. See : opinion of Judge Van Du-sen at 1118. This overly simplistic analogy once again ignores the union’s representative status. With this same vision of the union as entity, the court reads an ambiguity into the slaughtering and boning agreements where fairly considered none exists. In the contracts at issue, Local 195 bound itself and its individual members not to interfere with production at the Packers’ facility. This guarantee language appears in the collective bargaining agreements covering Packers’ employees. Local 195 bound itself and its individual members solely in the context of this bargaining situation and within this context, “individual members” logically should refer to the boning and slaughtering employees for whom Local 195 was then acting as guarantor and representative. Furthermore, that Local 195 bound itself does not translate through to supply employees who played no role in the formation of the contract. I find it completely unjustified to take this guarantee language out of context and to use it as the basis for binding supply workers by the boning and slaughtering agreements.
The court seems to derive further support for its theory that the contract was ambiguous from the past strike history of the supply workers and this employer. In the past, the supply workers had not extended their picketing to related facilities of the employer, thereby leading the employer to assume, in the court’s view, that such picketing would not occur. Even if the employer justifiably expected the supply workers to limit picketing to the Supply Division, this fact is utterly irrelevant to the issue of whether the arbitrator had jurisdiction to enforce that expectation in this case. Stated quite simply, the supply workers, and the union as its representative, were bound by no contract when the supply workers extended their picketing to the adjacent facilities. The expectations of the employer and the asserted ambiguities in the boning and slaughtering agreements, do not, in my view, alter that situation-with respect to the supply workers.
As though to make the incursion on protected rights appear less drastic, the court emphasizes that “holding for the company does not entirely deprive the members of the Supply unit of their right to engage in protected concerted activities.” Opinion of Judge Van Duseñ at. 1120. Supply workers can still picket the Supply Division itself. Only'their picketing of the adjacent facility is penalized. Having once established the principle that workers can be judged by the collective bargaining agreements of a separate bargaining unit, after their own agreement has expired, it does little, in my view, to characterize the restriction as minor. A broad ranging principle has been stated in the court’s opinion, the applicability of which is obviously not limited by the facts of this case.
The arbitrator conceded that a different result would have obtained if the supply workers had been represented by a different union. See: opinion of Judge Van Dusen at 1118, n.ll. I find it impossible to accept that significant rights of workers should turn on the fortuitous circumstances of being represented by a particular local.
But even more disturbing in my view is the fact that in blurring the boundary lines between separate bargaining units, the court necessarily calls into question the National Labor Relations Board’s process for certification of an appropriate bargaining unit. § 9(b) of the National Labor Relations Act, 29 U.S.C. § 159(b), specifically gives the National Labor Relations Board power to determine an appropriate bargaining unit “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subsection. . . . ” In the instant case, the National Labor Relations Board has certified three separate units and accepted Local 195 as the representative of each. The court nevertheless suggests that one means of avoiding recurrence of the same problem in the future might be to petition the *1128National Labor Relations Board for consolidation of the three bargaining units. See: opinion of Judge Van Dusen at 1120, n.15. To suggest that three separately certified bargaining units should be joined into one merely because of the arbitrator’s implied findings in this case, is to lose sight of the relationship between the National Labor Relations Board and arbitration. In this case, the arbitrator found that Local 195 could not “change hats” from packers to supply representative, since it had bound itself in all its roles. Because of this finding the court in turn theorized a conflict of interest in one union’s representation of three different bargaining units. The inescapable product of this line of reasoning is that the National Labor Relations Board erred either in certifying three bargaining units or in allowing Local 195 to represent the three. Although the Board will often defer as a matter of policy to arbitral settlement, the Supreme Court has agreed that in case of actual conflict “the superior authority of the Board” should “take precedence” over the arbitrator’s ruling. Carey v. Westinghouse Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), NLRB v. Plasterers Local Union No. 79, 404 U.S. 116, 137, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971). In my estimation, this court’s insinuation of conflict between the National Labor Relations Board’s certification of three separate units and the arbitrator’s decision in this case is wholly unjustified. As I have already stated, I find no difficulty in accepting the fact that one union can act as the representative of three units of workers although different responsibilities arise in each context. But even if the court were correct in its assessment of a possible conflict, the cited precedents should prevent a wholesale acceptance of the arbitrator’s findings when those findings seem to clash with the National Labor Relations Board’s certification of three separate units under § 9(b) of the National Labor Relations Act, 29 U.S.C., § 159(b).
In my view, the union, as bargaining representative for the supply workers, could not be bound by the arbitration clauses it had negotiated as representative of the slaughtering and boning workers; the supply workers’ own collective bargaining agreement with the employer had expired; and this court has power to enforce an arbitration award only where it finds that the parties by contract have agreed to arbitrate. Since no arbitration jurisdiction over the supply picket line has been shown, I would vacate the district court’s order enforcing the arbitration award.
The contrary result reached by the majority is a disturbing extension of the arbitration remedy5 to situations where there has been no clearcut grant of arbitration jurisdiction. In effect, the majority goes a long way toward eroding the sound rule that arbitration' cannot be required as a matter of law. Coincident *1129with the extension of arbitration is a move to penalize and restrict employees in the exercise of activities, including picketing, which have traditionally served as tools of striking workers. In so elevating the arbitration remedy, I think the majority opinions go far astray.
. I do not feel that this court is empowered to affirm portions of a unitary arbitration award, since our scope of review is limited. Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir., 1969). A portion of the instant award was rendered by an arbitrator without jurisdiction. I would, therefore, vacate the entire award.
. Judge Van Dusen’s opinion addresses the same jurisdictional issues we believe are raised in the case. He finds arbitration jurisdiction because he feels that the union’s attempt to maintain two separate identities in its representation of the packers and supply units is not justified on the facts of this case.
The concurring opinion of Judge Gibbons asserts in contrast that once jurisdiction was gained over the union through the two enforceable collective bargaining agreements, the arbitrator could assess damages for all incidents of the work stoppage, whether caused by supply workers’ illegal picketing or by the boning and slaughtering workers’ refusal to cross the picket line.
. Indeed, Judge Van Dusen implies that Local 195 might have violated its duty of fair representation in this case by favoring one unit as opposed to another in the drafting of a “defective” contract. See: opinion of Judge Van Dusen at 1115, n.13. The basis for this suggestion is that the boners’ and slaughterers’ contracts were ambiguous and could be interpreted to bind the supply workers.
In order to arrive at this supposed breach of duty, one must first assume that a Local cannot act independently for two separate units of employees. I do not agree that a contract negotiated for one group of workers can be applied to another group. Since I disagree with this premise, I cannot accept that this contract was defective or ambiguous or that any possible breach of fair representation can be implied from these facts.
. We cannot agree with Judge Van Dusen’s conclusion that the restrictions he transfers from the packers’ contracts to the supply workers are in any way analogous to the case of a local being bound by terms imposed by the international. See : opinion of Judge Van Dusen at 1118, n.ll.
Even considered in ordinary contract terms, there is privity between the supply workers and the international which would justify binding the supply workers by the international’s constitution and bylaws. Quite clearly, there is no privity between the boning and slaughtering workers and the supply workers.
The supply workers were not parties to the packers’ employees’ collective bargaining agreements. To imply, in Judge Van Dusen’s words, that mere “forewarning of the potential limitation on their protected activities” (Opinion of Judge Van Dusen at 1119, n.ll) might be sufficient to bind the supply workers is, in my view, a drastic departure from ordinary principles of contract law. I note further that no support for this view is offered in the main opinion.
. In this Circuit, a finding of jurisdiction to arbitrate has often gone hand-in-hand with a holding that a federal court can enjoin a particular work stoppage pending arbitration. Island Creek Coal Co. v. United Mine Workers, 507 F.2d 650 (3d Cir., 1975), NAPA Pittsburgh, Inc. v. Automotive Chauffeurs Local 926, 502 F.2d 321 (3d Cir., 1974). I have expressed my disagreement with this tendency to equate arbitrability with enjoinability. See: my dissenting opinion in NAPA, 502 F.2d at 324 and Judge Adams’ dissenting opinion in Island Creek, 507 F.2d at 654. Although injunctions are not an issue in this case, the majority’s finding of arbitrability would probably be sufficient under NAPA and Island Creek to support an injunction of the supply workers’ picket line.
Under NAPA, there was at least some restraint on a federal court’s power to enjoin a work stoppage since a valid grant of arbitration jurisdiction was a prerequisite to any injunction. But if arbitration jurisdiction is found to exist as here where there is no arbitration clause either operative or in effect, even this limited restraint on a federal court’s power to enjoin work stoppages disappears. The predicted effect of the majority opinions will be the effective repeal in this Circuit of the no-injunction rule of § 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104. I must voice my complete disagreement.