Jacksonville Maritime Association, Inc., Etc. v. International Longshoremen's Association, Etc.

GODBOLD, Circuit Judge,

dissenting:

I respectfully dissent from the majority’s holding that the employer was not required to allege and prove as a prerequisite to a Boys Markets 1 injunction that it was willing to arbitrate and had resorted to the contractual arbitration machinery. The Supreme Court pretermitted this issue in Buffalo Forge Co. v. United Steel Workers, 428 U.S. 397 , 96 S.Ct. 3141 , 49 L.Ed.2d 1022 (1976). The majority characterize preinjunction arbitration as a mere “procedural nicety.” I consider it to be much more substantial than that, given the narrowness of the Boys Markets exception to the Norris-La Guardia Act, 29 U.S.C. § 104 , and the strong national policy favoring arbitration as a dispute-resolution mechanism.

The most serious flaw in the majority opinion is that it underestimates the strength of the national labor policy expressed in the Norris-La Guardia Act. The Act’s anti-injunction provision so permeates the fabric of labor regulation that it yields only to the strong national policy favoring arbitration. See Boys Markets, supra. The majority’s decision injures both these interests. By abrogating the anti-injunction Act the majority treat too lightly the protective purpose of the Act, which is to ensure that injunctions issue in only the most extreme cases of labor strife. Then, by refusing to require the employer to seek arbitration prior to receiving an injunction, the majority bypass the recognized preference for arbitration as a voluntary, peaceful means of resolving labor disputes. 2 It seems to me that the implicit premise of the majority opinion is that arbitration is ineffective as a means of settling grievances; otherwise, the majority would not condone the employer’s repairing to the courthouse without resort to arbitration. This premise is, of course, contrary to every Supreme Court case to consider arbitration since the Steelworkers Trilogy. 3

Two independent considerations support requiring the employer to resort to arbitration prior to receiving an injunction. The first is the language of 29 U.S.C. § 108 , denying jurisdiction to issue injunctions if the employer “has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” (Emphasis added.) This “clean hands” provision of the Norris-La Guardia Act would seem to deny *327 jurisdiction to issue injunctions in the situation condoned by the majority. Fifth Circuit precedent reads § 108 to cover voluntary private arbitration as well as governmental mediation. In Carter v. Herrin Motor Freight Lines, Inc., 131 F.2d 557 (CA5, 1942), the court consistently treated the three clauses of § 108 — negotiation, governmental mediation, and voluntary arbitration — as being written in the disjunctive. See id. at 559, 560 & 560 n.5. 4

Apart from Carter , there are substantial reasons for applying the jurisdictional limitation of § 108. The highly preferred status of arbitration lends it a governmental imprimatur. Moreover, equity traditionally requires the person seeking an injunction to demonstrate clean hands. Here, the employer accuses the union of violating the no-strike provision of the contract. But unless the employer lives up to its promise to arbitrate, it, too, has violated the contract.

Boys Markets itself supports the result I would reach. That case required that the employer be ordered to arbitrate as a condition of obtaining an injunction. The majority say that this provision “speaks against” the requirement of pre-injunction resort to arbitration. It does not speak with much force else the Supreme Court would hardly have pretermitted the question six years later in Buffalo Forge. In truth, Boys Markets “speaks for” the result opposite that reached by the majority. The employer there had sought to invoke the contractual procedures for grievance and arbitration, but the union had refused. 398 U.S. at 239, 90 S.Ct. at 26 L.Ed.2d at 204. Thus the employer would appear to have been entitled to an unconditional injunction — it already had brought itself within the § 108 requirements and had shown clean hands. Despite this the Court required arbitration as a condition to the injunction granted to the employer. This decision is hardly authority that an employer who has spurned arbitration should be granted an injunction conditional upon his doing what he agreed to do in the first place but has not done. Rather Boys Markets demonstrates the great deference which the Supreme Court gives to arbitration.

Policy considerations also support requiring the employer to invoke preinjunction arbitration rather than merely express willingness to arbitrate. Arbitration may end the strike and obviate the need for an injunction, and prompt institution of arbitration may act as an industrial safety valve to dissipate pressures and hostilities that led to the strike. The Boys Markets exception to the Norris-La Guardia Act is very narrow, see United States Steel Corp. v. United Mine Workers, 519 F.2d 1236 (CA5, 1975); in abrogating the jurisdictional ban on injunctions, the Supreme Court expressed no intention also to lift the procedural requirements of the Act. Moreover, given the Court’s concern in Boys Markets with harmonizing the anti-injunction Act and the national policy favoring arbitration, requiring the employer to initiate arbitration guards against hastily issued injunctions and strengthens the favored status of arbitration as a dispute resolution procedure. See Elevator Mfgr’s Assn. v. Int’l Union of Elevator Constr. Local 1, 331 F.Supp. 165 (S.D.N.Y.1971); Transamerican Trailer Transp., Inc. v. Seafarer’s Int’l Union, 336 F.Supp. 1052 (D.Puerto Rico 1971); see generally Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586 (CA2, 1971), cert. denied 405 U.S. 1066 , 92 S.Ct. 1500 , 31 L.Ed.2d 796 (1972); Celotex Corp. v. OCAW, 516 F.2d 242 (CA3, 1975) (procedural requirements of § 7 applicable to Boys Markets injunctions).

The employer before us contends that arbitration would not have been as speedy as injunctive relief and that it would have suffered serious injury while arbitration was in process. This ignores that the subject matter is one which the employer contracted to arbitrate and that the employer *328 is asserting the power, at its option, to bypass the machinery which it agreed to use. More importantly, the question of what happens if arbitration takes too long or is delayed by union foot-dragging is an issue to be faced in another case. In this case the employer simply decided for itself that it was not going to use the arbitration route at all and filed its papers in the district court.

. Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 , 90 S.Ct. 1583 , 26 L.Ed.2d 199 (1970).

. Chief Justice Burger recently reiterated the strong preference given arbitration by the judiciary. See Remarks of the Chief Justice on the State of the Judiciary, American Bar Association Midyear Meeting (Feb. 12, 1978). See generally Sibley v. Tandy Corp., 543 F.2d 540 (CA5, 1976), cert. denied, - U.S. -, 98 S.Ct. 71 , 54 L.Ed.2d 82 (1977).

. See, e. g., United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960); United Steelworkers of American v. Warrior & Gulf Nav. Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960); cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448 , 77 S.Ct. 923 , 1 L.Ed.2d 972 (1957).

. Dicta in Brotherhood of Railroad Trainmen v. Toledo P. & W. RR., 321 U.S. 50 , 64 S.Ct. 413 , 88 L.Ed. 534 (1944), seems to indicate that the phrase encompasses only “governmental machinery ... of voluntary arbitration.” See Charles D. Bonanno Linen Serv. Inc. v. McCarthy, 532 F.2d 189 (CA1, 1976).