Buffalo Forge Company v. United Steelworkers of America, AFL-CIO – Oral Argument – March 24, 1976

Media for Buffalo Forge Company v. United Steelworkers of America, AFL-CIO

Audio Transcription for Opinion Announcement – July 06, 1976 in Buffalo Forge Company v. United Steelworkers of America, AFL-CIO

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Warren E. Burger:

We will hear arguments next in Buffalo Forge against United Steel Workers.

Jeremy V. Cohen:

Mr. Chief Justice and may it please the Court.

The issues in this case while significant, will not I am afraid, be stimulating to the Court as the issues case argued just prior this or in the case argued yesterday, but I will do my best.

The company is a manufacturer in Buffalo, New York and in 1974, the Steel Workers Union was certified by the National Labor Relations Board as the exclusive bargaining agent for the company’s office employees.

At the same time, the Union was also the exclusive bargaining agent for the company’s factory workers and had been for many, many years.

The factory workers have been covered by collective bargaining contracts between the steel workers and the company going back into the late 1940s and early 1950s.

Those contracts, among other terms and conditions, contained broad No Strike Clauses, two in fact, a very broad definition of what matters to be resolved through the grievance and arbitration procedure and at the time of the instant dispute, contained provisions allowing both Union and the employer to use the grievance procedure to resolve items of policy or general contract interpretation issues.

In the latter part of 1974, the Steel Workers in the midst of bargaining the first contract for the office and technical workers set up picket lines around the company’s premises in the Buffalo, New York area and conducted a strike against the Buffalo Forge Company.

The office workers and the factory workers worked in the same buildings with the offices generally being in the front and the factory area being in the back, but used common entrances.

The pickets were set up at these entrances and at all other places surrounding the company’s premises.

Four days later, that is four days after the picketing was established the respondent Steel Workers directed the local union officers of the factory local unions to honor the office-worker picket lines which the steel workers had established and to instruct the employees who were members of the factory workers local unions and members of the steel workers to also respect those office-worker picket lines.

That afternoon, the company having heard of a work stoppage plan, fired of a telegram to the steel workers, protesting that the rumored work stoppage will be a violation of the No Strike Clause, contained in the factory worker contract and offered to immediately arbitrate or go to arbitration over any issue which had caused this potential work stop.

That telegram was ignored and the work stoppage commenced the very next morning.

The company attempted to obtain injunctive relief under the theory of Boys Markets from the Federal District Court.

Its application for temporary restraining order and the preliminary injunction were denied, essentially on the theory of the Fifth Circuit’s decision in the Amstar case interpreting this Court’s decision in Boys Market as having no application to any breach of contract strike, save the one situation where the strike is triggered by an ongoing or live grievance between the union and employer party to the contract.

An appeal to the Second Circuit Court of Appeals resulted in affirmance of the District Court’s decision on essentially the same grounds that I have just summarized.

The strike, even if it were a breach of contract, had to be literally over or triggered by some ongoing live grievance between the contracting parties.

It is our position generally, stated at the outset, that the requested relief falls squarely in the pathway of this Court’s decisions in Boys Markets, in Gateway Coal, as well as those decisions while they involved damage actions, also indicate the Court’s intention and purpose of finding ways to meaningfully enforce both the No Strike Clause as well as the Arbitration Clause in the contract.

This is not as a matter of premise, this is not the first time this Court has considered a sympathy strike situation.

The case is build as one which is the first sympathy strike case to appear before this Court, but it is not.

One week after this Court’s decision in Sinclair, majority reversed the Court of Appeals in Yellow Transit Systems versus Teamsters, a case very simply which involved a union and an employer of an ongoing collective bargaining relationship.

The union advised the employers in that case that it was going the set about organizing the Company’s office workforce.

Potter Stewart:

That (Inaudible) case is Yellow Transit Systems?

Jeremy V. Cohen:

Yellow Transit Systems —

Potter Stewart:

Is it in the –?

Jeremy V. Cohen:

It is it in the reply brief as also mentioned in the respondent’s brief.

Yellow Transit Systems is mentioned on page 2 or page 3, excuse me of the reply brief and on several pages of the respondent’s brief, in particular page 9 of respondent’s brief.

Potter Stewart:

It is Teamsters against Yellow Transit Systems that is the reason I could not find it?

Jeremy V. Cohen:

I am sorry, Your Honor.

The significance of that old case since the Court will recall that the reversal was a one word that majority opinion citing the Court’s decision in Sinclair was in our view the concurring opinion, the special concurring opinion written by Justice Brennan and in which the other dissenters in Sinclair joined, in which the concurring Justices said that the only reason they were concurring in the result was because there was no agreement between the parties to arbitrate any dispute.

Jeremy V. Cohen:

There was no clause in the contract providing for any internal arbitration over any dispute between the parties.

So this is not the first sympathy strike case that has come before this Court.

As you might suspect, Your Honors, we have put it in a formula, that is if Teamsters versus Yellow Transit is to Sinclair as Monongahela, the Fourth Circuit case is to Boys Market than the extension, I would say extension, it is just the redundancy, that is our position in Buffalo Forge claiming that we were entitled to an injunction, has the same relationship to Boys Market as Monongahela as to Boys Market and as we think the concurring opinion in Teamsters versus Yellow Transit has to the original Sinclair decision.

The respondents claim that only the narrow holding of this Court’s decision in Boys Markets applies and that is continuation of the requirement that the strike must be literally over a live grievance.

Its position in our view is essentially that Norris-LaGuardia is more than alive and well.

It is the dominant theme of federal regulation of labor management relationships.

We could not disagree more and we think that the decisions of this Court establish that Norris-LaGuardia does not invariably bar injunctive relief, for example, the unlawful strike.

Legislative history referred to in our petition for certiorari and in our main brief indicate that it was not the intention of the Congress to bar injunctions against unlawful strikes.

Is this strike in the Buffalo Forge case unlawful?

It is our contention that by resorting to strike, given the contract terms, that by resorting to strike without first arbitrating the disputed right of the union to engage in conduct prohibited by the contract that it violated its duty to arbitrate which it had freely given in the contract, violated its duty to arbitrate without irrigating to itself the interpretation of the Collective Bargaining Agreement, especially in this case because a dispute arose the day before the work stoppage when the union directed its local unions to respect the picket lines and the company disputed the union’s right to issue such an instruction.

John Paul Stevens:

Mr. Cohen, let me be sure I understand what you just said about the issue that would have been presented to the arbitrator had there been arbitration.

It would not have been as I understand, whether the contract prohibited the strike, but whether assuming the contract prohibited the strike, the strike could go forward?

Jeremy V. Cohen:

It would have been —

John Paul Stevens:

What would the issue be?

Jeremy V. Cohen:

The issue would have been, Mr. Justice Stevens, that the Union’s directive, the Steel Workers’ directives to their local union officials and members to honor the office-workers picket lines was a violation of the No Strike Clause of that contract and that the arbitrator was empowered to determine the union’s disagreement with the company’s position, that is whether the strike, the orders and the ensuing work stoppage were in fact a violation of the no strike pledges in the Collective Bargaining Agreement.

Byron R. White:

Did the Court of Appeals say that the arbitration clause did not reach the stand of the dispute?

Jeremy V. Cohen:

The Court of Appeals and the District Court neither concluded that the arbitration clause went to the issue of aribitrability of the issue that I have just described to Justice Stevens.

There was in the Court of Appeals —

Byron R. White:

This kind of a dispute was not arbitrable?

Jeremy V. Cohen:

No, they said that this was not the kind of arbitrable dispute which would permit the granting of an injunction since it would not be an aid of the arbitration processes.

The theory espoused by the Court of Appeals was that only if the strike is triggered by a live grievance can it be said that an injunction is appropriate because the union is trying to evade or avoid its obligation to arbitrary.

Byron R. White:

I thought that if it is not a live grievance though, it is un-arbitrable, is it?

Jeremy V. Cohen:

Oh! Very much so.

In fact this court has —

Byron R. White:

Where does the clause, the arbitration clause appear in the record here?

William J. Brennan, Jr.:

At page 13 (a), I think (Inaudible) in the petition?

Jeremy V. Cohen:

In the appendix — well, in the appendix on page 16, there is the No Strike Clause and on page 17 paragraph 26 of the agreement, there is the definition of arbitrable grievance and any dispute or any trouble of any kind arising in the plant, there was in the District Court’s decision —

William J. Brennan, Jr.:

(Inaudible)

Jeremy V. Cohen:

Yes, Mr. Justice Brennan?

William J. Brennan, Jr.:

Taking is there or is there not a determination either District Court or the Court of Appeals that Article 26 does not reach, does not make arbitrable this dispute?

Jeremy V. Cohen:

No, there is no such —

William J. Brennan, Jr.:

There is no such holding.

Jeremy V. Cohen:

No, there is a statement in the District Court —

William J. Brennan, Jr.:

If there was such a holding, would you be here?

Jeremy V. Cohen:

No.

William J. Brennan, Jr.:

Because then I gather that as an interpretation of the clause which we are not likely to review again?

Jeremy V. Cohen:

No, if the Court were to decide that the Arbitration Clause did not cover this dispute, then in no way could an injunction be in aid of the arbitration process.

William J. Brennan, Jr.:

And your position is that the Court did not decide it or it did not reach dispute?

Did it decide that it did reach the dispute?

Jeremy V. Cohen:

It did not decide that either.

It decided that looking at the District Court’s decision —

William J. Brennan, Jr.:

Did it decide that as am initial question in here?

Jeremy V. Cohen:

No, you do not.

In fact, I think in reading respondent’s brief that there is an essentially an acknowledgment that the issue of the scope of a No Strike Clause is arbitrable.

Footnote 6, among other things in the respondent’s brief, goes on at great length about the issues of fact and issues of fact in law that arise under contracts.

Under contract such as this one, this is the footnote 6 of the respondent’s brief, I guess it is buff-colored, and many of the decisions of this Court which we have cited in our brief applying the principles of the trilogy are to the effect that a disputed application or disputed exception to a No Strike Clause is presumptively arbitrable.

William H. Rehnquist:

But what is the No Strike Clause here had been absolutely plain on its face, so that it was clear the union was breaching it by engaging in this sympathy strike.

Would your case be stronger or weaker for the issuance of an injunction?

Jeremy V. Cohen:

I would say it would be stronger, Your Honor.

William H. Rehnquist:

In effect that any strike that is a breach of contract in effect whether it is a breach of the Union’s No Strike Clause can be enjoined?

Jeremy V. Cohen:

No, I am not saying that.

It is very important the Court understand the company’s position in this case.

A contract which contains the most — of we had in a Buffalo Forge Contract, no arbitration provisions whatsoever, only a clause which among the, in addition of the language already expressed said and further more there shall be no Sympathy Strike whatsoever.

If the injunction in this case is not an assistance to the arbitration process by which the parties voluntary agree that any dispute that they had as defined in the agreement would be resolved by arbitration without resort to 301 litigation, then there is no injunction.

And so we are not here asking this Court to adapt what I regard as a very substantial expansion of Boys Market that a mere request of the employer given a clear No Strike Pledge that all the Court has to do is make a determination whether the contract has been violated and if so enforce the No Strike Clause.

That was never as far as I know has been the policy of this Court.

It is not the policy, we are asking the Court to reach on the facts of this case.

So, a simple enforcement of the no strike clause is not what is at issue, at least it is not the main issue that the petitioner is raising in this case.

Potter Stewart:

So in answer to Mr. Justice Rehnquist’s question, if the breach of the Collective Bargaining Agreement were very, very clear then there would be no — then it could not be enjoined?

In absence of arbitration?

Jeremy V. Cohen:

Absent in arbitration clause.

If Mr. Justice Stewart is saying that there really is no issue of fact for an arbitrator, no decision for an arbitrator to render, it is our contention of course that the Court should be making no determinations of facts aside from determining whether the arbitration process is broad enough in scope to cover the dispute between the employer and the Union.

Once it makes a determination that the clause certainly is broad enough, applying the presumptions of the trilogy, its business is finished and what the respondent is in effect saying to us is that we have as the Union, we have a right to strike for a while.

We have a right to strike while the arbitration process that we have committed ourself to is being administered.

John Paul Stevens:

Could the Union defeat the injunction then by saying, we concede your interpretation of the contract, and therefore, there is no arbitrable issue.

We agree that it prohibits what we are doing, but we are going to do it anyway.

Then what would you have an injunction for?

Potter Stewart:

(Inaudible) with an arbitration.

Jeremy V. Cohen:

Well, then you would get an injunction because the union stipulation in Court is still not what we should be doing of course is enforcing a No Strike Clause without any enforcement of the arbitration process.

We should —

Byron R. White:

(Inaudible) also for remedy, it is not just to settle factual disputes?

Jeremy V. Cohen:

Most certainly it should be for remedy.

Byron R. White:

You cannot concede yourself out of arbitration, can you if you have other party to the promise insists on it?

Jeremy V. Cohen:

No, in fact Mr. Justice White your decision in Drake Bakeries fits Buffalo Forge to a tee.

We have in Drake Bakeries a requirement that arbitration rather than the Federal Courts would have made the determination of liability as well as damages and in the Drake Bakeries decision you commented, speaking for the majority that there was another case that came of the Second Circuit, in which there was as broad an Arbitration Clause as the one you were dealing with in Drake and that was Markel Electric.

And writing so many briefs in this case one has, I have had to find, dig deeper and deeper for my own enjoyment in presenting this argument and I had to smile when I noticed the quotation of the Markel Electric case because it was my life partner Edward Flirty who negotiated both the original Markel Electric Contract in the original Buffalo Forge Contract which had identical descriptions of arbitrable grievance that you will find in paragraph 26 of the current contract.

So that arbitration must be used both for determination of liability and for determination of any penalties, if there are any to be paid.

William H. Rehnquist:

Well, how would the arbitration proceed here as you envision it?

The union has presumably enjoin from striking and then you go to arbitration as to whether or not they have the right to engage in the strike.

What sort of remedy could the arbitrator prescribe in that situation, where you are talking about a kind of conduct that has never taken place?

Jeremy V. Cohen:

Injunction as well as damages.

The Fifth Circuit for example in the decision involving U.S. Steel and the Mine Workers made it quite clear that if an arbitrator issued a back to work order as part of the arbitration process, that that court would enforce the arbitrator’s award or by having it confirmed at the employer’s request.

William H. Rehnquist:

But if the union has never gone on strike, why would there be any back to work order, if the union is enjoined from strike?

Jeremy V. Cohen:

If the injunction occurred before a strike took place?

I must have misunderstood the fact proposition.

The problem here is that in many, many cases, Mr. Justice Rehnquist, the employer or the union is about to do something, for example closing down a plant because of adverse economic conditions or the employer is going to change the hours of work, it is usually not a surprise to the union, there are opportunities to utilize grievance procedure, there are opportunities to attempt the resolve the matter in advance.

As indicated by the facts in this case, the Union is not likely to give the employer advance notice of its intentions to engage in a sympathy strike.

In this case, in fact, we had only but a few hours notice of the rumored strike plan.

But all the employer was able to do was to fire of its telegram saying if there is some problem, we are willing to arbitrate it and besides you are violating the Collective Bargaining Agreement.

We have to under the circumstances appeal to Federal District Court for expeditious relief.

John Paul Stevens:

Mr. Cohen, I am still troubled by trying to understand precisely what issue would be arbitrated.

If the Union conceded that the No Strike Clause was applicable and as Mr. Justice White suggested, well, maybe you would arbitrate the issue of remedy, but if you have entered a Boys market injunction, pending the arbitration and everybody is at work, what issue could there be with respect to remedy?

There is no issue as to liability because they concede the clause applies.

What issue as to remedy would be presented?

Jeremy V. Cohen:

The union is not on strike at this time.

John Paul Stevens:

It has been enjoined.

You have gotten the relief, you asked for in this case.

Jeremy V. Cohen:

But the strike started that was stopped by the injunction?

John Paul Stevens:

If that 24 hours notice and you ran into a court and got your injunction before anybody left work?

Jeremy V. Cohen:

There will only be the academic question of whether the union is threatened conduct was a violation.

John Paul Stevens:

But they have conceded under my hypothesis.

So what is the need for an injunction in aid of arbitration?

Jeremy V. Cohen:

Upon the concession, there would be none.

I would not see what the need would be in aid of the arbitration process?

John Paul Stevens:

Then what should the Court do, vacate the injunction and then they could go on strike.

I have a terrible difficulty understanding precisely what —

Jeremy V. Cohen:

Well, if we appeared before, let us say we have a threatened strike, a Sympathy strike and if in response to that, the employer appeared before a Federal District Court Judge with the appropriate papers and the union appeared and said there is no issue for arbitration; we agree the employers’ right, if we did strike it would be a violation of the contract and the judge looked at me and said, Mr. Cohen what do you want us to do?

If the union were despite that exchange in front of Federal District Court judge going to resume picketing a day or two later, then I imagine I get rather expeditious relief from the Federal District Court Judge in view of that assurance that the union was expressing to the District Court Judge if there was no reason for the strike.

John Paul Stevens:

But the theory of the relief would be your enjoining of breach of contract.

You are not getting an injunction in aid of arbitration.

Would that not be correct?

Jeremy V. Cohen:

That would be correct.

John Paul Stevens:

And so your position is that you are entitled to an injunction against the strike and breach of contract?

Jeremy V. Cohen:

No, if the union agreed that a strike would violate the contract, yet it insisted on its right to strike anyway, then I would say the Court would be within its rights under the guidelines of Boys Market to issue the injunction because the Union does not mean what it says, if it is insisting that a strike would breach the contract and has right to breach the agreement.

There is still a dispute between the employer and the union as to whether the No Strike Clause applies to the union’s threatened or actual conduct and that should be resolved by an arbitrator and the status quo in the fact situation you mention, should be maintained while the parties expeditiously decide whether a strike would be a breach of the contract and what remedy if any the arbitrator will allow.

If I tell you that there is no violation of a No Strike Clause, yet I insist on my right to strike anyway, then there is obviously a continuing dispute between the parties about whether you can strike despite the existence of a man against strike contained in the agreement.

Byron R. White:

I take it in this case, however, that you got here that the Union says that their conduct did not violate the No Strike Clause?

Jeremy V. Cohen:

The Union has disputed that.

Byron R. White:

They can still dispute it here.

Jeremy V. Cohen:

Currently so.

William J. Brennan, Jr.:

Well, what does it mean in 18 (a) in the very first sentence in the District Court Opinion, “The Boys Market standards do not apply in this case because there is no arbitrable grievance between the parties.”

Now, is that or is it not an interpretation of Section 26 as for the reach of the obligation to arbitrate?

Jeremy V. Cohen:

It is not an interpretation of paragraph 26.

It is a literal interpretation of this Court’s decision in Boys Markets that there was no arbitrable grievance which was —

William J. Brennan, Jr.:

Conceding that though Mr. Cohen, the court properly stated I thought at 17 (a), the third thing that the Court must find that both parties are contractually bound to arbitrate the underlying grievance with the cause of strike which is what Boys Market said and I do not know why that sentence is not to be read as an interpretation of 26 that this dispute is not made arbitrable by paragraph 26, is it not?

Jeremy V. Cohen:

I think a fair reading of the complete opinion as well as the Court of Appeals decision shows us that the District Court and the Court of Appeals did not find did not find that there was no arbitrable dispute, but that there was no arbitrable dispute which would support an injunction.

Potter Stewart:

I think is it not the keyword grievance, he does not say there is no arbitrable dispute, just said that if there is no grievance under the Collective Bargaining Agreement, it is subject to arbitration and that distinguishes it from Boys Market.

Is that not the meaning of that first sentence?

Jeremy V. Cohen:

I believe that is the meaning of that sentence.

I know that that the respondent has argued that that is a finding of fact, but if that is a finding of fact, it flies in the face of every decision whether it is a damage action or and injunction action issued by this Court and it is not a proper interpretation of what the District Court or the Court of Appeals have decided.

I would like at this time to reserve whatever few moments I have left for a rebuttal.

Warren E. Burger:

Mr. Cohen.

Jeremy V. Cohen:

Mr. Chief Justice and may it please the Court.

It is the Respondent Union’s position that no Boys Market Injunction is proper here for two separate discreet reasons.

Number one this was not a strike over an arbitrable grievance and number two, there was —

William J. Brennan, Jr.:

Is that in Paragraph 25?

Jeremy V. Cohen:

Mr. Justice Brennan, what we mean by that is that the dispute between the United Steel Workers of America and the Buffalo Forge Company which lead to the sympathy strike had nothing to do with any term or condition of employment which was subject to the grievance arbitration machinery of Section 26.

William J. Brennan, Jr.:

That is within the reach of the arbitration?

Jeremy V. Cohen:

Well, I would say yes to that, but I do not want to mislead the Court down the line.

The question of whether or not to strike itself, albeit not over an arbitrable grievance, creates an independent arbitrable grievance.

The answer to the latter question is yes, under the No Strike Provision of the contract.

A grievance ultimately is presented which is available to the arbitrator, but we want to emphasize that the company, while invoking the pro-arbitration policy of Section 301 never even invoked the arbitration procedure.

They never even filed a grievance alleging that the strike itself and here what we are talking about is the legality of the strike itself was in fact a breach of the No Strike Clause.

We do not think that is the touchstone.

The touchstone we maintain is that one has to go back and look at the threshold question.

Warren E. Burger:

We will resume at 1 o’clock.[Lunch Break]

Mr. Cohen, you may resume.

Jeremy V. Cohen:

Mr. Chief Justice, the case here before us follows in our analysis strictly along the lines of the Boys Markets decision of this Court.

In Boys Markets, the parties had entered into a Collective Bargaining Agreement which included a provision that the adjustment of all grievances, all disputes concerning the meaning, application or interpretation of a Collective Bargaining Agreement would be resolved through final and binding arbitration.

In the face of that particular —

Byron R. White:

Suppose under a contract, the employer has some objections to what the union is doing, like it is striking when it should not be striking in violation of the No Strike Clause and suppose on the face of the arbitration clause, it says, it covers all disputes or at least it all covers all disputes about interpretation of contract, the union says we are striking, but it is not the kind of strike that is covered by the clause.

The employer said yes it is and so they have a dispute over the meaning of the No Strike Clause.

How does that ever get to arbitration?

Can the employer request a arbitration?

Jeremy V. Cohen:

Well, once again Mr. Justice White, it depends on the language of the contract.

In this contract for example, it is clear that the employer had a right to file a grievance claiming that the Union Strike was in breach of a No Strike Clause.

Byron R. White:

With whom will he file it?

Jeremy V. Cohen:

With whom?

He would physically file it with the Union.

That is right and then there is a —

Byron R. White:

And then call out a grievance.

Jeremy V. Cohen:

Then call out a grievance and then the procedure which would then be triggered would follow up to including final and binding arbitration.

In any event, in Boys Markets, the employer contracted out certain work which the union maintained constituted a breach of the Collective Bargaining Agreement because it was work which the union claimed under the contract belonged to employees in the bargaining unit.

The Union did not file a grievance.

Union did not file the grievance arbitration machinery and instead went out on strike in support of its position that that work had to be reassigned to the employees in the bargaining unit.

In the face of that strike, the employer sought an injunction and this Court was confronted with the possible dilemma of on the one hand a Norris-LaGuardia seemingly absolute ban on enjoining any strikes and on the other hand the pro-arbitration policy as set forth in Section 301 of the Taft-Hartley Amendments and this Court concluded that it was possible to accommodate those two competing and conflicting policies by writing a very narrow and limited intrusion upon the Norris-LaGuardia ban and that intrusion was predicated on the assumption that it was necessary to have an injunction where the vindication of the arbitration policy was at stake.

More particularly, for example in Boys Market what this meant was essentially that if the Union had succeeded in bringing to bear enough economic pressure on the employer, so that the employer would capitulate and given to the union’s demands by reassigning the work, the consequence of that action by the union would have been to undermine the entire arbitration process said this Court in Boys Market because in essence it would have taken away the jurisdiction of the arbitrator and transferred it into the industrial warfare that the whole policy and procedure of Section 301 was designed to avoid.

So said this Court, we will in order to vindicate Section 301, set forth certain various specific requirements and those requirements of course petitioner has referred to as being literal requirements.

We submit they are both literal and they also capture the very underlying purpose and intent of Boys Market, namely that although there is no general federal anti-strike policy, and therefore, Norris-LaGuardia should prevail said this Court in Boys Market even where there is a breach of a private contract unless it can be shown that some additional compelling public consideration is present.

Now, that additional compelling public consideration was present said this Court in Boys Markets because the strike was designed to undermine and indeed was undermining arbitration and the Court determined it would vindicate arbitration by doing two things: One, compelling the parties to in effect go back to arbitration and two, enjoining the strike at that time.

Warren E. Burger:

Do you think there is no underlining of the arbitration clause here even in a symbolic sense?

Jeremy V. Cohen:

Mr. Chief Justice that is clearly our position.

Our position and I think if you focus on the contrast —

Warren E. Burger:

That is because you are saying there is nothing to arbitrate?

Jeremy V. Cohen:

No, that is not so.

What we are saying is basically as follows.

That as contrasted from Boys Markets where the strike was in fact designed to obtain capitulation over an arbitrable grievance, over a term or condition of employment about which the parties were disputing and which the parties had agreed to submit to an arbitrator for his final and binding decision, that is Boys Market.

Now, as contrasted from the situation here, the union was out on strike.

There was no dispute between the union and the employer as to any time or condition of employment for any of the production and maintenance employees.

There was nothing the employer could do unlike in Boys Market which would constitute a concession that would have resolved that problem.

William J. Brennan, Jr.:

But Mr. Cohen, I take it the parties could have written a provision for arbitration which would have reached this far as situation, could they not?

Jeremy V. Cohen:

I imagine that is possible.

William J. Brennan, Jr.:

That has been done, but in case of —

Jeremy V. Cohen:

No, I do not think they, I think what they have written.

William J. Brennan, Jr.:

Not every Arbitration Clause is limited to matters of interpretation and application of the Collective Bargaining Agreement?

Jeremy V. Cohen:

That is correct.

Some go beyond that.

You had one in Gateway Coal where we talked about local trouble at the plant as well as that.

The problem is though, Mr. Justice Brennan that when you are striking in a sympathy strike situation there is —

William J. Brennan, Jr.:

Well, what you say whatever may have been the case, these parties would not agree to an Arbitration Clause which reached this matter?

Jeremy V. Cohen:

That is correct and this was not a strength over an arbitrable grievance in the District Court.

Byron R. White:

But you do agree that whether or not the union’s conduct violated the No Strike Clause was arbitrable under this?

Jeremy V. Cohen:

Absolutely, as far as we are concerned that has been red herring in a sense Mr. Justice White.

We clearly agree that and we agree that if the company had filed the grievance, they were clearly entitled to arbitration on the question of whether or not the No Strike Clause had been breached.

Byron R. White:

If a grievance had been filed and the employer had said by the way, while this grievance is pending for decision, you must not strike, you would say we are going to strike until and unless the arbitrator tells us not to?

Jeremy V. Cohen:

Correct.

We would say that and our support would be Norris-LaGuardia Act Mr. Justice White.

The key core evil that Norris-LaGuardia was designed to get rid of was the enjoining of what might be lawful strikes and this is the exact posture in the —

Byron R. White:

Does an arbitrator normally have any power to control the conduct to pending arbitration?

Jeremy V. Cohen:

Well, normally not, but it even goes farther than that.

Let us look for example at Boys Market.

In Boys Markets when this Court ordered the parties in effect by remand into the District Court to send that dispute as to contracting out to arbitration and at the same time enjoining the strike, the Court did not go on to say and by the way Mr. Employer, reinstate that status quo, turn that work back and give it back to the employees in the bargaining unit.

Byron R. White:

If an employer discharge just someone and there is a grievance filed over it and it goes to arbitration, pending arbitration, the fellow stays fired —

Jeremy V. Cohen:

That is right.

Byron R. White:

— unless the employer voluntarily takes him back?

Jeremy V. Cohen:

Right and of course that is not only arbitration law.

That is really basically consistent with the whole industrial relations reality which is to say the employer acts and the union reacts and management has certain prerogatives and that is how it functions.

Warren E. Burger:

Mr. Cohen, to pursue Justice White’s question about scope of Arbitration Clauses, could you have a valid Arbitration Clause that provided that if any strike or lock-out occurred during the pendency of the arbitration, the Arbitration Board could impose and asses a fine of $1,000.00 a day on the offending party, could that be enforceable?

Jeremy V. Cohen:

Well, of course Mr. Chief Justice that problem is clearly not here before us.

I would say that the parties have the opportunity.

Jeremy V. Cohen:

This Court has held for example, you can waive the right to strike.

We acknowledge if you have a clear and unequivocal waiver of a sympathy strike, you can do that.

I think the parties could in their collective bargaining relationship reach agreements which would constitute all kinds of waivers that might give protections to either one or both of the parties beyond that which the law would otherwise entitle them to.

Warren E. Burger:

One other question.

Was the union undertaking to exercise economic coercion on the employer here?

Jeremy V. Cohen:

Absolutely.

I do not think there is any — no I think — but I think I would like to couch it —

Warren E. Burger:

For their own benefit?

Jeremy V. Cohen:

I would like to couch it in these terms.

The Union was engaged in what is protected strike activity under the National Labor Relations Act unless and until there is a clear and unequivocal waiver as contained in the No Strike Clause and there is a very substantial question insofar as the merits are concerned here as to whether or not this language, this just general statement that there will be no strike in fact would constitute a waiver of that basic fundamental protected right.

Warren E. Burger:

How would you answer Mr. Justice White when he asked you if that was the meaning of that clause was open to arbitration? I think he asked you that question?

Jeremy V. Cohen:

I said that — of course, and it was open to arbitration right here Your Honor. In other words, let us suppose that this company not only invoked the name of arbitration as they are doing before this Court, but they actually filed a grievance.

They had an absolute right to file a grievance contending that that strike was in breach of the No Strike Clause.

Warren E. Burger:

The strike would go on in the meantime?

Jeremy V. Cohen:

The strike would go on in the meantime and unless and until a strike is in fact declared unlawful then we say that the core purpose of Norris-LaGuardia demands that no injunction issue unless and until that has been determined.

Warren E. Burger:

That would be a purpose in arbitration if that were the issue raised?

Jeremy V. Cohen:

Well, if you are not striking, I think you have to keep coming back to the threshold question, are you striking over an arbitrable grievance?

If the answer to that question is no, and we submit that is the situation here, the answer to that question is no, there is, therefore, nothing to vindicate in terms of the arbitration policy.

The union was not trying to extract any —

Warren E. Burger:

You separate that from the fact of the strike when you concede there would be the right to arbitrate the question of their right to strike?

Jeremy V. Cohen:

Because basically, we are talking about two distinct problems.

One problem is when you strike —

Warren E. Burger:

I understand your position.

You want to make them two distinct problems.

What I am probing at is how are they two distinct?

Jeremy V. Cohen:

Let us go back for a second to the Boys Market analysis.

Your insistence was that in order to reach an appropriate accommodation that would not intrude improperly on Norris-LaGuardia, you have to make sure that the strike itself was over an arbitrable grievance.

If it is not over an arbitrable grievance then you are not vindicating arbitration and you are left with one thing and one thing only.

The question of whether or not the employer is entitled to a specific enforcement of the Collective Bargaining Agreement no strike commitment.

To which — the answer to that of course is Norris-LaGuardia precludes that.

Jeremy V. Cohen:

An effort was made to repeal Norris-LaGuardia in Section 301 of Taft-Hartley and it was rejected.

So that you have to address in each one of these instances the threshold question, is that a strike over an arbitrable grievance which could, in other words, if the Union had committed itself to resolve a particular problem through that process then enjoining the strike is not an independent basis.

The injunction just follows naturally from the separate public concern about making the arbitration policy work.

You do not have that here we maintain.

There is nothing here to be vindicated.

If the employer had filed a grievance, there is nothing to suggest that that grievance would not have been processed though the arbitration.

The employer acknowledges that in a sense.

The employer’s petition and all of its brief have said what we want is an injunction pending arbitration.

We know, we have committed ourselves to arbitrate that issue.

We think in the interim, we are entitled to injunction, even though of course, the strike still may be lawful.

On the one hand, they take as a given that the strike is unlawful, but on the other hand they acknowledge they have to go to arbitration and get a result from an arbitrator before they are in a position —

William J. Brennan, Jr.:

Would I be correct in suggesting that the arbitration trilogy, all had as a basic underpinning.

Now, that rather than resorting to strikes and other economic combat wetness, the notion was we should encourage arbitrations so that production will continue while his grievances are resolved in arbitration, would that be right?

Jeremy V. Cohen:

That would be right if we focus on what —

William J. Brennan, Jr.:

That would be what?

When you get around the Boys Market, assuming we have a situation here, in which as you have conceded as I understand it, the employer had made the grievance of this?

Jeremy V. Cohen:

No, I say he could have.

William J. Brennan, Jr.:

That is what I say.

Suppose he had then it would you say be arbitrable under the clause.

Nevertheless, you suggest that Norris-LaGuardia prohibits an injunction in this situation against the strike because the very issue to be decided in arbitration is whether the strike is in violation of the agreement.

Well, that makes the underpinning of the Steel Workers trilogy meaningless in this situation?

Jeremy V. Cohen:

No, I do not think —

William J. Brennan, Jr.:

Because you are going right on with the interrupted production, that is what the effect of the strike is while arbitration is going on, but all you wind up with the strike, they say is lawful or unlawful and if the arbitrator decides it is unlawful as I understand you, there would be nothing that the employer could do about it.

At that juncture he could not get an injunction even then if you want to continue with it, could he?

Jeremy V. Cohen:

We go back to the —

William J. Brennan, Jr.:

And now could he?

Suppose you continue the strike.

The arbitration is completed and the arbitrator concludes that it was a violation of contract, if they review that, can the employer can at that juncture get an injunction?

Jeremy V. Cohen:

If the strike itself is over an arbitrable grievance, there is no question that the Boys Market rationale would apply a fortiori and in fact an injunction would be proper.

William J. Brennan, Jr.:

The hypothetical I put to you is that this very thing is strike over an arbitrable grievance?

Jeremy V. Cohen:

Well, no —

William J. Brennan, Jr.:

The employer had made it such by filing?

Jeremy V. Cohen:

No, the strike itself is creating a grievance.

There was no dispute as to any meaning or interpretation or application of the contract.

William J. Brennan, Jr.:

It creates the grievance, of course, the strike created a grievance?

Jeremy V. Cohen:

The strike created the grievance, but the strike itself was an over arbitrable grievance and there is nothing that need be vindicated here.

William J. Brennan, Jr.:

That is the very issue, is it not?

Jeremy V. Cohen:

No, I do not think so.

I think the petition has acknowledged that read literally at least this is not a strike over an arbitrable grievance.

What the petitioner is arguing is that one should expand —

William J. Brennan, Jr.:

Yet have the grievance created by the strike could have been made arbitrable?

Jeremy V. Cohen:

Could have been made arbitrable.

We are not questioning —

William J. Brennan, Jr.:

Can he continue that is not on the strike over an arbitrable grievance after it has been made arbitrable?

Jeremy V. Cohen:

There could come a circumstance, but I do not think that if you just had a non-arbitrable grievance, let us suppose you had excluded from the arbitration provision a certain kind of a dispute, a contracting out dispute and there was a No Strike Clause and you went to arbitration.

Well, first of all if the Union went out on strike in those certain circumstances, it would not be an arbitrable grievance, although it might constitute a breach of the No Strike Clause.

There is the number of variables that you can have as to whether or not the actual strike itself is over an arbitrable grievance.

But the crucial aspect is as we see that the Boys Market decision focused on that essential pre-requisite because absent that the separate independent vindication of arbitration was not present.

William J. Brennan, Jr.:

The arbitration as a means of continuing production does not accomplish that in this case is you suggest?

Jeremy V. Cohen:

Well, the whole trilogy, now the whole purpose of the trilogy was to give an impetus to the agreements reached by the parties as to how they would —

William J. Brennan, Jr.:

Or the reason that that was a method of continuing production?

Jeremy V. Cohen:

That is right, but if they did not reach an agreement, in other words, there is nothing in the trilogy that suggests, although arbitration is the preferred method that the parties are precluded from agreeing certain subjects will not be subject to arbitration or that you cannot —

William J. Brennan, Jr.:

Of course that is the whole point, but the hypothetical I put to you was on the premise —

Jeremy V. Cohen:

Yes.

William J. Brennan, Jr.:

— that this very strike could have been made a grievance by the employer —

Jeremy V. Cohen:

Yes.

William J. Brennan, Jr.:

— and then it would have had to go to arbitration —

Jeremy V. Cohen:

Right.

William J. Brennan, Jr.:

— and yet you are suggesting that while arbitration would and you would then have to participate —

Jeremy V. Cohen:

Absolutely.

William J. Brennan, Jr.:

— nevertheless, you could continue the strike —

Jeremy V. Cohen:

I am saying —

William J. Brennan, Jr.:

So that not withstanding the arbitration, there is an interruption of —

Jeremy V. Cohen:

I am saying that at that stage, with a final and binding arbitration award once again a Court would be faced with balancing the competing policies of the Norris-LaGuardia Act on the one hand and 301 on the other hand.

William J. Brennan, Jr.:

But the whole idea of Boys Market is that production continues while arbitration goes on and what you are saying is production in this situation does not have to continue, the strike can go on while arbitration proceeds and if the employer has any right to enjoin it.

It has to be, he has the wait until the arbitrator finds in his favor, that the strike is illegal?

Jeremy V. Cohen:

In this instance, that is clear.

In this instance, as far as we are concerned and you got to have, you got two deficiencies, not only do you not have a strike over an arbitrable grievance, but you have not even got a finding that the strike itself is in breach of contract and at that stage then you are running head long into the Norris-LaGuardia problem of curing the evil that was there, namely you may be enjoining what is the lawful strike.

Byron R. White:

Well yes but we do not have — the courts below said even if it is in — did they not say even if this is in breach of contract?

Jeremy V. Cohen:

No.

Mr. Justice White, my understanding is the Courts below did not reach that question.

Byron R. White:

Alright, so that we must assume that they would come out the same way even if it had been a breach of contract?

Jeremy V. Cohen:

I think that is correct because under our —

Byron R. White:

Or we should judge this case on the assumption this was not a breach of contract?

Jeremy V. Cohen:

No, I am not saying that because I think there is a very serious question as to whether or not this case, the strike itself is —

Byron R. White:

The Courts below said they would come out, I think they said that they would have come up the same way even if the strike was not a breach of contract?

Jeremy V. Cohen:

I think that is the correct legal analysis that they would come out the same way.

All I am suggesting it the fact that they did not and the fact that there is a substantial question as to whether or not there is a breach at all is a separate independent argument we have in support of the proposition that no injunction should issue because what you are talking about here is the situation where we have protected a protected sympathy strike unless and until there is a clear and unequivocal waiver.

Now, the circuits that I have look at that question for example in the Seventh Circuit and we cited the Gary Hobart case and the Hyster case have looked for very clear and unmistakable language and in some instances have said that the general language of a No Strike Clause does not suffice to bring it within this waiver doctrine and they have looked to the bargaining history of the parties to ascertain whether or not when they have reached an agreement that there would be no strike, that the union had in effect agreed that it was foregoing protected NLRA rights —

John Paul Stevens:

These case is turn on the scope of the Arbitration Clause rather than the scope of the No Strike Clause?

I do not think you finally did.

Jeremy V. Cohen:

Well, actually Gary Hobart was an unfair labor practice posture and Hyster came up in the posture of the injunction.

John Paul Stevens:

Let me ask another question.

I think I understand your position, but I want to be sure.

If the matter had been submitted to arbitration while the strike was pending and while the arbitration was still in process, the union had said to the company, the men will stay out and strike unless you withdraw the arbitration.

Then I would say.

I would assume you would say it will be appropriate to issue the injunction?

Jeremy V. Cohen:

Yes, we would because then we have a strike over an arbitrable grievance and then we have the interference that Boys Market was designed to avoid in that kind of an accommodation.

John Paul Stevens:

Now, supposing instead of that, you would let the arbitration process run to a conclusion.

There have been a word against you.

John Paul Stevens:

Could you then have kept your men out without there being an injunction?

Jeremy V. Cohen:

Excuse me —

John Paul Stevens:

If you have let the arbitration process run its course and an award had been entered saying the company is correct that No Strike Clause applies, would the injunction then have been permissible?

Jeremy V. Cohen:

Well, once again at that stage, I think the Court would have to enter into this balancing process between the Norris-LaGuardia on one hand and —

John Paul Stevens:

How would you say they should come out?

I understand they have to.

Jeremy V. Cohen:

We do not have any strong position in that regard.

The Fifth Circuit is the only Circuit that has looked at that problem and the Fifth Circuit has recently concluded that they would find that an injunction would be appropriate in that situation.

It is the only Court that I know that has looked at that question.

We think it is something that —

Byron R. White:

Is there any other enforceable arbitration award?

Jeremy V. Cohen:

Well, once again the enforceable arbitration award that does not answer the question of enjoining a strike which has a Norris-LaGuardia overtone to it, even though in fact, that is what is happening and that would be the argument of course against the proposition that you could.

Byron R. White:

You would say in the Boys Market case, you could enjoin the strike until the arbitration was over, but you could not afterwards?

Jeremy V. Cohen:

No, we are not saying that at all Mr. Justice White because my exchange with Mr. Justice Stevens was that as long as you have a strike over in arbitrable grievance then and in fact that strike is in breach and then Boys market applies an injunction can issue.

A fortiori if not only did send them to arbitration, but the arbitrator ruled against the union and the union kept striking, Boys Market likewise would apply, but I was addressing a separate question.

Byron R. White:

Would you concentrate on the legality of the strike then and then say that whatever the arbitrator says the union can strike?

Jeremy V. Cohen:

I did not say that was the case.

Byron R. White:

Well, would you like to go and take a position on it anyway?

Jeremy V. Cohen:

No, what I said was that if you have a situation where the strike itself was not over and arbitrable grievance, but that eventually you get an arbitration award and the question is if the union in the face of that arbitration award continues to strike then I am saying the Court is called upon to make an independent analysis and it is different than Boys Market to the extent that you never had a strike over an underlying grievance.

That is the difference.

Now, whether or not that should tip the balance and allow the strike to continue all I am saying is that it is not this case —

Byron R. White:

(Inaudible) you have — to the extent you have an easy case, you even got an easier one or a less hard one, however you want to put it because the employer here, he had the right to arbitrate and could arbitrate.

Jeremy V. Cohen:

That is correct.

Byron R. White:

So you wanted to get the legality of the strike adjudicated or get the strike stopped in the Court?

Jeremy V. Cohen:

That is exactly right.

Byron R. White:

Without ever filing, even if he could have gotten an injunction if he had filed —

Jeremy V. Cohen:

That is correct and we said our basic proposition was in the name of invoking arbitration to its —

Byron R. White:

You should move to dismiss for kind of exhausting the arbitration part?

Jeremy V. Cohen:

Well, we have not contemplated on that Your Honor.

William J. Brennan, Jr.:

No, but if you should prevail on that ground here that we never reach the thing you and I have been talking about?

Jeremy V. Cohen:

Well, I do not know what the company’s position was insofar as their failing to file a grievance.

It appeared to us that they were awaiting for the Union to file a grievance, requesting some advisory opinion from an arbitrator as to the legality of our going out on strike, that appeared to me what counsel was saying to the Court this morning in the face of the whole structure and system of arbitration which that of course is not how it functions.

Potter Stewart:

Well, there was a complaint filed in this case, as the Court to order both parties to go promptly to arbitration.

Look at page 10, paragraph b.

Jeremy V. Cohen:

Yes, Your Honor.

Mr. Justice Stewart, if you will notice, however, that refers back to our problem that in fact never got before the Court.

If you look at paragraph 13 of the complaint at page 6, you will see what happened.

What happened Mr. Justice Stewart is essentially this.

The petitioner recognized that he was coming in for an injunction in circumstances that could not satisfy Boys Market.

They could not satisfy Boys Market because the Union Strike was not over an arbitrable grievance.

So the employer tried to create an arbitrable grievance by saying there was activity going on at the plant which was in fact arbitrable under the contract and that the union was actually striking over that arbitrable dispute.

It involved the question of whether truck drivers should handle certain kind of work.

That is referred to particularly in paragraph, I think I told you the right paragraphs of the complaint.

What happen in District Court though was that the Court found that the sole underlying cause of this strike was the sympathy action of the union and that there was no evidence to support the company’s assertion that the underlying cause of the strike was in fact an arbitrable grievance which would have triggered Boys Market.

Now, that finding of fact by the District Court was never appealed to the Circuit and stands —

William J. Brennan, Jr.:

(Inaudible) pointed out Mr. Cohen in the Court opinion, page 18 (a) or something?

Jeremy V. Cohen:

No, I still do not think that is what was being referred to Mr. Justice Brennan.

That was referring to the core question of do you have a strike over an arbitrable grievance and the Court finds —

Potter Stewart:

How do you define arbitrable?

You concede there was an arbitrable dispute here, do you not?

Jeremy V. Cohen:

Yes sir.

The strike, the question of the legality of the strike —

Potter Stewart:

Whether or not that was covered by the new strike?

Jeremy V. Cohen:

That is correct.

Potter Stewart:

No strike laws?

Jeremy V. Cohen:

That is correct.

Potter Stewart:

You concede it was an arbitrable dispute?

Jeremy V. Cohen:

Absolutely.

Potter Stewart:

And the Court here says, there is no arbitrable grievance between the parties?.

Jeremy V. Cohen:

No, I am sorry.

Jeremy V. Cohen:

That has to be read in the context of the question of whether the underlying cause of the strike was an arbitrable grievance.

That is what the Court was addressing itself to.

They had taken as a given the proposition that there was an arbitrable grievance down the line, but they were focusing on —

Potter Stewart:

Dispute, I would say?

Jeremy V. Cohen:

What was the strike over?

They were focusing on what was the strike over and the strike was a sympathy strike which had nothing to do with any dispute between the parties as to the terms or condition of employment of the production and maintenance employees.

Potter Stewart:

That would be a grievance as contrasted with the dispute?

Jeremy V. Cohen:

Well, it would be a grievance, but it would not be an arbitrable grievance under the language of the agreement.

Thank you.

Warren E. Burger:

Mr. Cohen you have about three minutes left.

Jeremy V. Cohen:

Your Honor, there is some nonsense that is being discussed at this point about whether the employee ever precipitated the filing of a grievance.

As I mentioned in the opening argument, as soon as the employer learned of some kind of a strike plan, it immediately fired of a telegram to the Union which is in the adjoined appendix, complaining about the report and offering to go to arbitration over any dispute which would cause this and that is in —

Thurgood Marshall:

Joint appendix.

Jeremy V. Cohen:

On page 23.

Byron R. White:

That is not exactly dispositive, I do not think.

You use that in the Union and if you have any grievance with me, let us arbitrate.

That is what you said.

That is what your complaint says, that you were completely willing at any time to arbitrate any grievance the Union had with it.

The question is if they were striking, they were not crossing the picket line, you had a grievance with them, did you not?

Jeremy V. Cohen:

Yes.

Byron R. White:

Did you ever ask them to arbitrate that grievance, that particular grievance not some other grievance?

Jeremy V. Cohen:

We thought we had in the telegram as well as when we came before the District Judge and immediately announced our position was two-fold.

One we thought the strike had been caused because of this dispute involving truck driving assignments and also using the line of cases that identify as the Monongahela type of case felt that the over a grievance should not be interpreted literally that as long the strike involved in arbitrable matter that an injunction should lie.

Byron R. White:

They usually do.

When you ask the moment, you send somebody a letter or communicate with them and say, I have a grievance with you and you get no response whatsoever to exhaust the contractual remedies then you ask them to —

Jeremy V. Cohen:

You can go into Court and ask —

Byron R. White:

Both the arbitration, if there is an established Board you file it with the Board.

If there is not you ask the other party to name whatever you have to do to set up your arbitration panel?

Jeremy V. Cohen:

That is true.

In Monongahela —

Byron R. White:

Of course that is where it would follow?

Jeremy V. Cohen:

Yes but there are cases where the employer has –- well, I am trying to answer this quickly because it is obviously bothering the Justices.

First, if the employer need not have any right under the contract to require the Union to arbitrate, that is even if the employer has no right to compel the Union to arbitrate the issue of the No Strike breach, we should be entitled, the employer should be entitled to get an injunction simply because the Union has a right to have the matter arbitrated, I am referring to Monongahela line of cases where the employer had no right to go to arbitration.

Potter Stewart:

Has no right to initiate it?

Jeremy V. Cohen:

Has no right to initiate it and the question of who has the right to initiate is irrelevant we contend.

It is a question whether out of the contract there is an arbitrable dispute.

Now, if I could make one comment about an issue that is obviously troubling several of the Justices —

Exactly.

Jeremy V. Cohen:

— and I will.

If in Boys Market the Union had said to the employer and to the Court, not only do we have no right to compel the employer to have bargaining employees stock the shelves versus Vendor’s employees, we agree that if we struck for that result, it would be a violation of the contract.

Now, if that issue had presented to the Court in Boys Market where the Union strike was simply to force the employee to exercise discretion on behalf of the bargaining unit, I suggest that you would have still made the same decision in Boys Market that you eventually did.

Warren E. Burger:

Very well.

Jeremy V. Cohen:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.