concurring:
Based on my understanding of the teaching of Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), I concur in the result reached by the majority. I believe that Buffalo Forge can best be understood by examining its implication with respect to three categories of labor contracts.
*75The first category consists of contracts which expressly forbid sympathy strikes, as well as all other strikes, and which provide for mandatory arbitration of all grievances. When a contract in this category is in force, the reasoning of Buffalo Forge clearly suggests that the legality of a sympathy strike would be immediately arbitrable and that such a strike could be enjoined pending the outcome of the arbitration. Damages for such an illegal strike would undoubtedly be recoverable.
The second category consists of contracts — like the one involved in Buffalo Forge — which contain general “no strike” clauses and provisions for mandatory arbitration of grievances. Contracts in this category differ from those in the first category in one important respect: whereas the contracts in the first category expressly forbid sympathy strikes, those in the second simply forbid all strikes generally. Buffalo Forge holds that when contracts in this category are involved, the legality of a sympathy strike is clearly subject to arbitration but that the sympathy strike cannot be enjoined pending the arbitrator’s decision. Buffalo Forge also indicates that should the arbitrator eventually determine that the strike was illegal, it could be enjoined at that time. 428 U.S. at 405, 96 S.Ct. at 3146. Although Buffalo Forge did not discuss whether an employer could recover damages for a sympathy strike under a contract of this sort it would appear that damages could be recovered in those cases in which it was ultimately determined that the strike was illegal.
The third category consists of contracts— like the one involved in Island Creek Coal Co. v. United Mine Workers, 507 F.2d 650 (3d Cir. 1975), cert. denied, 423 U.S. 877, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975) — which contain provisions for mandatory arbitration of grievances but which do not contain an express “no strike” clause of any sort. With respect to these contracts, Buffalo Forge stated flatly: “To the extent that the Court of Appeals . . . have assumed that a mandatory arbitration clause implies a commitment not to engage in sympathy strikes, they are wrong.” 428 U.S. at 408, 96 S.Ct. at 3147 n.10. Justice White also stated that under such a contract there would be “no possible basis for implying from the existence of an arbitration clause a promise” not to engage in sympathy strikes. 428 U.S. at 408, 96 S.Ct. at 3147. In other words, Buffalo Forge established as a matter of law that a sympathy strike does not violate a labor contract which falls into this category. Of course, it goes without saying that a sympathy strike could not be enjoined under this type of contract. In addition, the legality of such a strike would not even be subject to arbitration, since Buffalo Forge established that such strikes are legal. Furthermore, since as a matter of law sympathy strikes cannot violate contracts in this category, damages could not be recovered.
The labor contract involved in the instant case quite clearly falls into the third category. Hence, there having been no contract violation by UMW Local 6321 and therefore no damages allowable to United States Steel Corporation, judgment should have been entered in favor of the Union.