Indiana Law Review


Indiana Law Review
Volume 14 1981 Number 2

Prospective Labor Injunctions: Do They Have a Future?

Charles e. Trant*

I. Introduction

The employment relationship is rarely, if ever, a static entity.
Rather, it is a continuing reevaluation by both parties of their

respective positions to insure that their interests are satisfied.

Therefore, labor disputes are inevitable, although not necessarily

undesirable, so long as the bargaining strength of each party keeps

excesses by the other in check. In these disputes the most potent

weapon in the union arsenal is the strike or the threat of strike,

both of which require a highly fluid situation in which the ability to

build economic pressure and adjust stategies is the key to victory.

An employer's success depends upon his ability to defuse the
fluid situation and freeze the "status quo." Traditionally, employers

have relied upon theories such as criminal and civil conspiracy,

nuisance, and interference with advantageous relationships. More
recently, the injunction has become the most prevalent device, as
well as the singularly most effective method of killing a strike.

Because a prospective injunction magnifies the employer's bar-

gaining strength, policy considerations must be balanced in
determining if and to what extent an injunction will be allowed. The
prospective injunction must be viewed from the historical perspec-
tive of the ordinary injunction. The latter underwent a period of
widespread use and resultant abuse, which prompted a period of
legislative action engendered by public discontent to perceived

judicial excesses. Initially, anti-trust legislation was enacted,
however, because of subsequent judicial emasculation, specific labor

legislation was later enacted.
The courts have been involved in an ongoing attempt to accom-

modate these legislative acts when apparent conflicts arise. Such a
conflict exists between the anti-injunction posture of the Norris-
LaGuardia Act and the presumption of favorability accorded arbitra-
tion and injunctive relief under the Taft-Hartley Act. The use of the

Charles E. Trant, Captain, United States Army JAG Corps; B.A., Suffolk
University, 1973; J.D., Suffolk University, 1975; Bar admissions include the Supreme

Court of the United States and the Supreme Judicial Court of Massachusetts.

581



582 INDIANA LAW REVIEW [Vol. 14:581

prospective injunction in this accommodation process ultimately
revolves around policy considerations of its social desirability, its
potential uses and abuses.

II. Historical Perspective .

The labor injunction is so inextricably intertwined with the
socio-political-economic climate of the times, that an understanding

of its origin and development is essential in determining its
desirability. Injunctions are an integral part of our labor laws, laws

which are rooted in the English experience. 1 The ability of laborers
to challenge the economic superiority of employers in England

became a dilemma of major proportions in 1348 when the available
work force was drastically reduced by the ravages of the Black
Plague. To prevent the sought after employees from controlling the
terms of their employment and to preclude interference with the
employment relationship, Parliament enacted The Statute of
Laborers2 and A Statute of Laborers.3 In succeeding years additional
laws were passed, culminating in a comprehensive labor code, the
Elizabethan Statute of Laborers.

4

A. Criminal Conspiracy

The laborers' attempts to improve their conditions of employ-
ment, notwithstanding these restrictive laws, gave rise to the

theory of concerted activity as criminal conspiracy. This theory was
clearly enunciated in Rex v. Journeymen-Taylors of Cambridge,5 in
which the court found concerted demands by the journeymen tailors
for higher wages to be an unlawful conspiracy. This concept was
readily assimilated into the American experience as evidenced by
the famous Philadelphia Cordewainers case decided in 1806.6 In that

case, the leaders of the strike were convicted of criminal conspiracy

and the union was effectively destroyed.7

A series of indictments and convictions occurred over the three

'See generally, R. HEDGES & A. WlNTERBOTTOM, The Legal HISTORY OF TRADE
Unionism (1930).

2The Statute of Laborers, 1349, 22 Edw. 3, c.1-8.
3A Statute of Laborers, 1350, 25 Edw. 3, c.1-7.
'Elizabethan Statute of Laborers, 1562, 5 Eliz. c.4.
588 Eng. Rep. 9 (K.B. 1721).

"Commonwealth v. Pullis (Mayor's Court of Philadelphia, 1806), reprinted in 3
The Documentary History of American Industrial Society 59-248 (J. Commons & E.
Gilmore eds. 1910). These records include the entire testimony and proceedings in
several of the early unreported labor cases in inferior courts.

'The court reasoned, "A combination of workmen to raise their wages may be
considered in a two fold point of view: one is to benefit themselves ... the other is to
injure those who do not join their society. The rule of law condemns both." Com-
monwealth v. Pullis (Mayor's Court of Philadelphia, 1806), reprinted in 3 The Documen-



1981] LABOR INJUNCTIONS 583

decades which followed Philadelphia Cordewainers.
8 The basis of

these convictions was succinctly illustrated in People v. Melvin,
9
in

which the court noted that conspiracy is the gist of the charges; and

even to do a thing which is lawful in itself, by conspiracy is unlaw-

ful.
10

Fortunately, equating a labor organization with a criminal con-

spiracy was permanently arrested in Commonwealth v. Hunt. 11 The
court in Hunt held that the purpose of labor organizations was not
unlawful and thus "the legality of such an association will therefore

depend upon the means to be used for its accomplishment." 12 The
emphasis thus shifted from the justifiable objectives of the labor

association to its tactics.
13

B. Civil Theories

Employers were also active in the civil courts, basing their
claims on such common law theories as nuisance, trespass, and tort-
ious interference with advantageous relationships. 14 Again, drawing

sustenance from the English traditions, American civil courts were
receptive to restraints on concerted activity. 15 The courts utilized an
"objectives" test to determine the validity of the concerted activity.

Because union demands necessarily curtail the employer's private
property interests, the courts held that any intentional infliction of

tary History of American Industrial Society 233 (J. Commons & E. Gilmore eds.
1910).

"See, e.g., People v. Fisher, 14 Wend. 9 (N.Y. Sup. Ct. 1835). See generally Witte,

Early American Labor Cases, 35 Yale L.J. 825 (1926).
9
2 Wheel. Cr. Cas. 263 (Crim. Ct. N.Y. 1810).

"Id. at 279-80.

"45 Mass. (4 Met.) Ill (1842).
12Labor associations were no longer subject to criminal conspiracy charges in

England by act of Parliament in 1875. The Conspiracy, and Protection of Property Act,

1875, 38 & 39 Vict., ch. 86, § 3.
"Thus, although criminal conspiracy charges continued to exist into the 1880s, it

was not as easy to establish "means," as it was merely to prove "purpose." This caus-
ed such charges to simply fall into disuse.

"In Lumley v. Gye, 118 Eng. Rep. 749, 755 (Q.B. 1853) (Erie, J.) the court stated:

The authorities are numerous and uniform, that an action will lie by a master
against a person who procures that a servant should unlawfully leave his ser-
vice. The principle involved in these cases comprises the present; for, there,
the right of action in the master arises from the wrongful act of the defend-

ant in procuring that the person hired should break his contract, by putting

an end to the relation of employer and employed; and the present case is the

same.

See also South Wales Miners' Fed'n v. Glamorgan Coal Co. [1095] A.C. 239.
15With the demise of the criminal conspiracy concept, the English were invoking a

concept of civil conspiracy which precluded a combination of workers to injure their

employers without justifiable objectives. See, e.g., Quinn v. Leathern, [1901] A.C. 495.

This practice ended with the Trade Disputes Act, 1906, 6 Edw. 7, c.47.



584 INDIANA LAW REVIEW [Vol. 14:581

temporal damage to those interests required justification. The union
had to win immunity for its actions through its purpose. Certain ob-
jectives of concerted action, such as higher wages, were of a direct
and obvious benefit to the workers and were therefore protected. 16

However, the step across some nebulous line to an area where the
objectives could be subjected to dispute was not far. 17 Because
unions had their objectives 18 subjected to the personal philosophies

and predilections of judges, results were often illusory, ambiguous,
and contradictory.19 The conservative nature of the judiciary re-
sulted in the repressive use of injunctions against unions, depriving

them of their most valuable economic weapon, the strike.20

Despite intervening legislation 21 which afforded employers addi-

tional avenues of attack, the vitality of the "objectives" test, cir-

16
F. Frankfurter & N. Greene, The Labor Injunction (1930):

Self-interest, in its undefined amplitude is the end that justifies. But of the

innumerable ways in which self-interest may be asserted, only those grant
immunity which have "a direct relation to benefits that laborers are trying to

obtain." Obviously this is a test implying judgment on economic and social

data; yet it is treated as "a question of law to be decided by the court."

Id. at 27 (quoting respectively Folsom v. Lewis, 208 Mass. 336, 338, 94 N.E. 316, 317

(1911) and DeMinico v. Craig, 207 Mass. 593, 598, 94 N.E. 317, 319 (1911)).

"One degree more remote and the courts could vary. See, e.g., Mechanics' Foun-

dry & Mach. Co. v. Lynch, 236 Mass. 504, 128 N.E. 877 (1920) (seeking the reinstate-

ment of a discharged employee was not a protected objective).
18
If a number of objectives were involved, it was only necessary for one objective

to be illegal to render the union activity illegal. See Folsom v. Lewis, 208 Mass. 336, 94

N.E. 316 (1911).
19
C. Gregory, Labor and the Law (2d Rev. Ed., 1961).

20See Cox, The Role of Law in Labor Disputes, 39 Cornell L.Q. 592 (1954). Il-
lustrative of judicial thought during this era is the classic case of Vegelahn v. Guntner,

167 Mass. 92, 44 N.E. 1077 (1896), wherein the court stated:

A combination among persons merely to regulate their own conduct is within
allowable competition, and is lawful, although others may be indirectly af-
fected thereby. But a combination to do injurious acts expressly directed to

another, by way of intimidation or constraint, either of himself or of persons
employed or seeking to be employed by him, is outside of allowable competi-

tion, and is unlawful.

Id. at 98-99, 44 N.E. at 1077-78. This theory was later overturned by Congress's enact-

ment of the Norris-LaGuardia Act. See notes 60, 66-67 infra. In dissent, Justice

Holmes would have allowed intentional infliction of temporary damage to the employer

(absent violence) to balance the economic realities of the parties. Id. at 104-09, 44 N.E.

at 1079-82 (Holmes, J., dissenting). See also Plant v. Woods, 176 Mass. 492, 504-05, 57

N.E. 1011, 1015-16 (1900) (similar dissent by Holmes); Holmes, Privilege, Malice and

Intent, 8 Harv. L. Rev. 1 (1894).
2, Sherman Anti-Trust Act of July 2, 1890, ch. 647, 26 Stat. 209 (1934) (current ver-

sion at 15 U.S.C. §§ 1-7 (1976)) [hereinafter cited as the Sherman Act]; Clayton Anti-

Trust Act, Pub. L. No. 212, ch. 323, 38 Stat. 730, 731, 736-40 (1914) (current version at

15 U.S.C. §§ 12-27 (1976)) [hereinafter cited as the Clayton Act]. See notes 25 & 42 in-
fra and accompanying text.



1981] LABOR INJUNCTIONS 585

cumscribed narrowly by an anti-union judicial tenor, survived vir-

tually unabated into the twentieth century.22 The Supreme Court of
the United States reiterated the test in the highly criticized opinion

of Hitchman Coal & Coke Co. v. Mitchell.23 The Court held:

[A]ny violation of plaintiffs legal rights contrived by the defen-

dants for the purpose of inflicting damage, or having that as

its necessary effect, is as plainly inhibited by the law as if it

involved a breach of the peace. A combination to procure
concerted breaches of contract by plaintiff's employees con-

stitutes such a violation.24

III. Anti-Trust Legislation

A. Sherman Act

During the same period that the civil conspiracy injunctions and
the "objectives" test were at the height of their popularity, big

business was expanding and amassing tremendous economic power.
The abuses which resulted created a storm of public indignation
that prompted Congress to pass the Sherman Anti-Trust Act.25 The
principal thrust of the Act was to protect trade and commerce
against unlawful restraints and monopolies.26 However, employers
latched onto the general language of the Act 27 and utilized it as

another vehicle to enjoin labor organizations.28 The catalyst for
employers utilizing the Sherman Act was In re Debs,29 in which the
Court upheld federal intervention in breaking the Pullman Strike.30

i2
E.g., American Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184

(1921); Coppage v. Kansas, 236 U.S. 1 (1915).
23245 U.S. 229 (1917).
u
Id. at 257. See also Adair v. United States, 208 U.S. 161 (1908).

25245 U.S. at 257. See note 21 supra.
26See generally Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359 (1933);

United States v. Colgate & Co., 250 U.S. 300, 307 (1919); D.R. Wilder Mfg. Co. v. Corn
Prods. Ref. Co., 236 U.S. 165, 173-74 (1915).

"Prior to its amendment by Act of Aug. 17, 1937, Pub. L. No. 314, § 690, 50 Stat.
693, the Sherman Act, § 1, provided, "Every contract, combination in the form of trust

or otherwise, or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be illegal." Sherman Act, ch. 647,
26 Stat. 209 (current version at 15 U.S.C. § 1).

28
In United States v. Workingmen's Amalgamated Council, 54 F. 994 (C.C.E.D.

La., 1893), the court, interpreting the Sherman Act as outlawing such combinations
whether the source be massed capital or labor, found that concerted activity was il-

legal as a combination in restraint of trade.
29
158 U.S. 564 (1895).

30The American Railway Union, founded in 1893 by Eugene V. Debs, struck the

Pullman Place Car Company, causing a nationwide transportation problem. A violent
strike ensued which eventually resulted in the intervention of the United States Ar-

my. Debs and his associates were jailed for violating the court's injunction. The



586 INDIANA LAW REVIEW [Vol. 14:581

Although the court of appeals had found31 that section 1 of the Sher-
man Act32 applied to labor organizations, the Supreme Court affirmed
on narrower grounds.33

Following In re Debs,34 there was a proliferation of injunctions
against unions, resulting in an era of "law by injunction."35 Public

concern regarding the applicability of the Sherman Act to labor
peaked after the famous Danbury Hatters case,36 in which an unan-
imous Supreme Court held that labor unions were subject to the
Sherman Act.37

B. Clayton Act

Congress, by enacting the Clayton Anti-Trust Act,38 moved to
curb what it perceived as judicial excesses in the application of the

resulting destruction of the union was, according to Debs, the result of the injunction

not the military intervention.

Following the Pullman strike, a United States Strike Commission, recognizing the

inequality of bargaining strength, prompted Congress to pass the Erdman Act in 1898
aiding organized labor. Erdman Act of June 1, 1898, ch. 370, 30 Stat. 424. However, in
Adair v. United States, 208 U.S. 161 (1908), the Court struck it down because it un-
constitutionally deprived employers of property without "due process of law." Addi-

tionally, the Court found that the employment relationship was local in nature and

thus, not within the power of Congress to regulate under the Commerce Clause. Id. at
180.

31 United States v. Debs, 64 F. 724 (C.C.N.D. 111. 1894).
32
Id. See note 27 supra.

33
In re Debs, 158 U.S. at 600. Whether Congress intended for labor organizations

to be subject to the Sherman Act was unclear. See E. Berman, Labor and the Sher
man Act ch. 3 (1930) (maintaining that Congress did not intend for labor organizations
to be subject to the Act). But see A. Mason, Organized Labor and the Law chs. 7-9
(1925) (maintaining that Congress did intend for labor organizations to be subject to

the Act). However, the courts proceeded on the assumption that Congress did intend

for labor organizations to be subject to the Act. See Gompers v. Bucks Stove & Range
Co., 221 U.S. 418 (1911), in which the Court applied the Sherman Act to unlawful com-

binations of capital or labor.
34 158 U.S. 564 (1895). See also Lewis, A Protest Against Administering Criminal

Law By Injunction- The Debs Case (1894), 33 Am. L. Reg. (N.S.) 879 (1894).
35See S. Rep. No. 163, pt. 1, 72d Cong., 1st Sess. 18 (1932), reprinted in

Statutory History of the United States: Labor Organization 184-85 (R. Koretz ed.

1970).
36Lowew v. Lawlor, 208 U.S. 274 (1908).
37The Court stated:

The act made no distinction between classes. It provided that "every" con

tract, combination or conspiracy in restraint of trade was illegal. The records

of Congress show that several efforts were made to exempt, by legislation,

organizations of farmers and laborers from the operation of the act and that

all these efforts failed, so that the act reminded as we have it before us.
Id. at 301.

38Clayton Act, 38 Stat. 730 (current version at 15 U.S.C. § 12 (1976)).



1981] LABOR INJUNCTIONS 587

Sherman Act.39 Labor organizations, relying on sections 640 and 20,
41

perceived the Clayton Act as its "Magna Carta." 42 However, the only
significant benefit that unions ultimately received under the Clayton

Act was that they could not be dissolved by the courts as unlawful

per se.43

Despite the obvious attempt by Congress to assist labor

organizations by enactment of the Clayton Act, the Supreme Court
emasculated the Act in Duplex Printing Press Co. v. Deering.44 The

Court held that

there is nothing in the section [6] to exempt such an
organization or its members from accountability where it or
they depart from its normal and legitimate objects and

engage in an actual combination or conspiracy in restraint of

trade. And by no fair or permissible construction can it be
taken as authorizing any activity otherwise unlawful, or

enabling a normally lawful organization to become a cloak
for an illegal combination or conspiracy in restraint of trade

as defined by the anti-trust laws.45

The Court extrapolated this rationale from what it considered to be
ambiguous language in sections 6 and 20 of the Clayton Act.46 The

39See Kovner, The Legislative History of Section 6 of the Clayton Act, 47 Colum.

L. Rev. 749 (1947).

"Section 6 of the Clayton Act provides in part:

[T]he labor of a human being is not a commodity or article of commerce.
Nothing contained in the antitrust laws shall be construed to forbid the ex-

istence and operation of labor, agricultural, or horticultural organizations, in-

stituted for the purposes of mutual help, and not having capital stock or con-

ducted for profit, or to forbid or restrain individual members of such
organizations from lawfully carrying out the legitimate objects thereof; nor

shall such organizations, or the members thereof, be held or construed to be
illegal combinations or conspiracies in restraint of trade, under the antitrust

laws.

15 U.S.C. § 17 (1976).

''Section 20 of the Clayton Act prohibits federal judges from issuing injunctions

in cases between employers and employees involving disputes arising out of terms and

conditions of employment, except in very limited circumstances. 29 U.S.C. § 52 (1976).

"Curiously, in Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917), the
Supreme Court simply ignored section 6 in its decision.

"Overall, the Act may have been more detrimental than it was beneficial to the
labor movement. Prior to the Clayton Act, under section 4 of the Sherman Act, only
the government could move for an injunction. See Paine Lumber Co. v. Neal, 244 U.S.
459 (1917). However, section 16 of the Clayton Act, 15 U.S.C. § 26 (1976), expanded this

right to private individuals with obviously detrimental ancillary effects on labor.

"254 U.S. 443 (1921).

"Id. at 469.

"The ambiguous language of section 6 includes "legitimate objects" and "lawfully"
carried out. The ambiguous language of section 20 includes "peaceful means," "lawfully,"
and "peacefully."



588 INDIANA LAW REVIEW [Vol. 14:581

courts relentlessly continued their application of anti-trust laws to

labor organizations,
47

to the point where the double standard that
they applied toward employers and labor became blatant. In Bedford
Cut Stone Co. v. Journeyman Stone Cutters Association,™ the Court
applied an "effects" test49 under which the pursuit of legitimate ob-

jectives was not determinative, but the result would be. The Court
stated: "A restraint of interstate commerce cannot be justified by
the fact that the ultimate object of the participants was to secure an
ulterior benefit which they might have been at liberty to pursue by

means not involving such restraint."50 The distrustful attitude of
labor toward the judiciary that developed during this period remained

for some time.

IV. Labor Legislation

A. Railway Labor Act

Because of the continuing interference of the courts into labor

matters,51 the first purely labor relations piece of federal legislation,

the Railway Labor Act,52 was enacted. Although the Railway Labor
Act was not as comprehensive53 as the later National Labor Rela-

tions Act,
54

it clearly recognized the right of laborers to organize

and bargain collectively,55 and interestingly, imposed a mandatory in-

junction against employers to bargain with a certified union.56 This

mandatory injunction was upheld in Virginian Railway v. System

"See, e.g., United States v. Brims, 272 U.S. 549 (1926); United Leather Workers
Local 66 v. Herkert & Meisel Trunk Co., 265 U.S. 457 (1924).

48
274 U.S. 37 (1927).

"The same "effects" test had been rejected as applied to employers in United

States v. E.C. Knight Co., 156 U.S. 1, 17 (1895).
50274 U.S. at 47.

"See, e.g., Corondo Coal Co. v. UMW, 268 U.S. 295 (1925).
"Railway Labor Act, Pub. L. No. 257, ch. 347, 44 Stat. 577 (1926) (current version

at 45 U.S.C. § 151 (1976)) (as amended by Railway Labor Act Amendments of 1934, ch.
691, § 3, 48 Stat. 1189 (current version at 45 U.S.C. § 153 (1976))).

53The Railway Labor Act had no enforcement agency similar to the National

Labor Relations Board, no lists of prohibited practices similar to unfair labor practices,

and no limitation on the amount of economic force that could be used in labor disputes.
The Act did set up a National Railroad Adjustment Board for the resolution of

disputes. Railway Labor Act, ch. 347, 44 Stat. 577, 578 (current version at 45 U.S.C. §
151 (1976)).

"National Labor Relations (Wagner) Act of July 5, 1935, Pub. L. No. 74-198, ch.

372, 49 Stat. 449 (1935) (current version at 29 U.S.C. §§ 151-69 (1976)) [hereinafter cited

as the Wagner Act).
"See Texas & N.O. Ry. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548 (1930)

(upholding the constitutionality of the Railway Labor Act).

^Railway Labor Act, ch. 347, 44 Stat. 577 (1926) (current version at 45 U.S.C. §
151 (1976)).



1981] LABOR INJUNCTIONS 589

Federation No. -40,57 despite the enactment in the interim of the

Norris-LaGuardia Anti-Injunction Act.58 Indeed, the Railway Labor

Act had a significant impact on the law of labor injunctions in cases

where an accomodation of the two Acts had to be struck.59

B. Norris-LaGuardia Act

The Norris-LaGuardia Act was the preeminent legislative enact-
ment dealing with labor injunctions. Prior to this Act, there was no
general legislative labor law guidance, leaving the courts to rely

upon common law and anti-trust law. The personal predilections of
judges prevailed. Employers had turned to the injunction as their
primary weapon because damage remedies often proved to be inade-
quate.

60
Injunctions were swift, effective, and often determinative

but were subject to procedural inadequacies and substantive
errors.

61 Against this backdrop, Congress, through the Norris-

LaGuardia Act, sought to limit the federal courts by withdrawing
their injunctive power.62

In the Norris-LaGuardia Act, Congress set forth a broad prohibi-

tion:

[N]o court of the United States, as herein defined, shall have

jurisdiction to issue any restraining order or temporary or

"300 U.S. 515, 562-63 (1937). The Court viewed the Railway Labor Act, as amend-

ed in 1934, as a more recent and more specific legislative act than the Norris-

LaGuardia Act. Therefore, this injunctive provision was crucial and created only a

minimal intrusion into the Norris-LaGuardia Act. Id.
58Norris-LaGuardia Act, Pub. L. No. 65, ch. 90, 47 Stat. 70 (1932) (current version

at 29 U.S.C. §§ 101-15 (1976)).
59The Norris-LaGuardia Act did not deprive federal courts of jurisdiction to com-

pel compliance with positive mandates of the Railway Labor Act. Graham v.
Brotherhood of Locomotive Firemen, 338 U.S. 232, 237 (1949). Also, in Steele v.

Louisville & N.R.R., 323 U.S. 192 (1944), the Court enjoined the union to give fair
representation to all employees. See also Tunstall v. Brotherhood of Locomotive

Firemen, 323 U.S. 210 (1944). See generally Comment, Labor Injunctions and Judge-

Made Labor Law: The Contemporary Role of Norris-LaGuardia, 70 Yale L.J. 70
(1960).

""Among the inadequacies were the procedural difficulties in suing a union qua

union, the judgment-proof status of many unions and the interminable delays.
"'Decisions were often ex parte and based on misleading evidence. Hasty deci-

sions made in an emotionally charged atmosphere based upon amorphous and illusory
substantive law resulted in many errors. Although these errors could be corrected in
later proceedings, in practice the initiative and morale of the union had been broken.

Employers had the unions' economic power in check while their own was relatively
unabated.

62
In Marine Cooks & Stewards, A.F.L. v. Panama S.S. Co., 362 U.S. 365, 369 n.7

(1960), the Court noted that the Norris-LaGuardia Act "was prompted by a desire . . .

to withdraw federal courts from a type of controversy for which many believed they
were ill-suited and from participation in which, it was feared, judicial prestige might

suffer."



590 INDIANA LAW REVIEW [Vol. 14:581

permanent injunction in a case involving or growing out of a
labor dispute, except in a strict conformity with the provi-

sions of this Act; nor shall any such restraining order or

temporary or permanent injunction be issued contrary to the

public policy declared in this Act.
63

Section 4 of the Act provided a similar proscription and delineated

specific acts, including strikes and picketing, which would not be en-

joined.
64 Thus, the Act put an end to the criminal conspiracies and the

civil "objectives" test theories
65 and brought judicial interpretation

of the use of injunctions in anti-trust cases into proper perspective.66

The Norris-LaGuardia Act reflected the laissez-faire philosophy of
Congress,67 a philosophy which had to be accommodated to prior and
subsequent regulatory schemes.68

Accommodation with the Railway Labor Act was usually ef-
fected with minimal intrusion into the Norris-LaGuardia Act.69

However, when the Supreme Court enjoined a strike in Brotherhood
of Railroad Trainmen v. Chicago River & Indiana Railway,10 its
holding was in direct conflict with the specific language of section 4
of the Norris-LaGuardia Act.71 The Court stated:

We hold that the Norris-LaGuardia Act cannot be read
alone in matters dealing with railway labor disputes. There

must be an accomodation of that statute and the Railway

Labor Act so that the obvious purpose in the enactment of

63Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (current version at 29 U.S.C. § 101

(1976)).

M
Id. at 70-71 (current version at 29 U.S.C. § 104 (1976)).

65As there was no mention of "objectives" in the Norris-LaGuardia Act, the court
in Wilson & Co. v. Birl, 27 F. Supp. 915, 917 (E.D. Pa.), aff'd, 105 F.2d 948 (3d Cir.
1939), concluded that the rationale of the dissent in Duplex Printing Press Co. v. Deer-

ing, 254 U.S. 443, 479 (1921) (Brandeis, J., dissenting), was the intended result.
e6
See, e.g.. Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940), wherein the Court in-

dicated that a union, pursuing its own interest by lawful means, did not violate anti-
trust laws, thus reversing the restrictive precedents. See also United States v. Hut-

cheson, 312 U.S. 219 (1941) in which the Court resurrected section 20 of the Clayton

Act.
e7See S. Rep. No. 163, pt. 1, 72d Cong., 1st Sess. 18 (1932), reprinted in

Statutory History of the United States: Labor Organization 184-85 (R. Koretz ed.
1970); H.R. Rep. No. 669, 72d Cong., 1st Sess. 3 (1932), reprinted in Statutory History
of the United States: Labor Organization 193-94 (R. Koretz ed. 1970).

""See generally Loeb, Accommodation of the Norris-LaGuardia Act to Other
Federal Statutes, 11 Lab. L.J. 473 (1960).

69
See, e.g., Steele v. Louisville & N.R.R., 323 U.S. 192 (1944); Virginian Ry. v.

System Fed'n No. 40, 300 U.S. 515 (1937).
70353 U.S. 30 (1957).
7

'Id. at 42. Compare this holding with the Norris-LaGuardia Act, ch. 90, 47 Stat,
(current version at 29 U.S.C. § 104 (1976)).



1981] LABOR INJUNCTIONS 591

each is preserved. We think that the purposes of these Acts
are reconcilable.72

Thus, the Court, in holding the injunction permissible,
73 looked at

both statutes as "part of a pattern of labor legislation."
74

C. The Wagner Act

The task of accommodating the Railway Labor Act75 and the
Norris-LaGuardia Act was immeasurably different from that of ac-
commodating the latter act with the Wagner Act,76 because the
Wagner Act was passed subsequent to the Norris-LaGuardia Act
with a full congressional debate on its impact. The Wagner Act, to a
limited extent, reopened the door to federal court use of the labor

injunction. Section 10(e)
77 granted power to the National Labor Rela-

tions Board to seek judicial enforcement of its orders in the ap-

propriate United States circuit court of appeals. In granting juris-

diction to the circuit courts to entertain such proceedings, the

Wagner Act specifically bestowed the power to grant equitable
relief, including "such temporary relief or restraining order as it

deems just and proper."78 Section 10(f)79 allowed petitions to be filed
by "[a]ny person aggrieved by a final order of the Board," with the

grant of jurisdiction and equitable relief power identical to that of
section 10(e). The courts were not presented with any ambiguity as
to the congressional intent vis-a-vis Norris-LaGuardia, because sec-

tion 10(h) specifically rendered Norris-LaGuardia inapplicable.80

72353 U.S. at 40.

"The court believed that the Adjustment Board provided a reasonable alter-
native to the limited concession of the right to strike. To offset this inbalance of
economic power, the Court, in Brotherhood of Locomotive Eng'rs v. Missouri-Kansas-

Texas R.R. Co., 363 U.S. 528 (1960) held that as a condition precedent to the issuance

of such an injunction, management could be ordered to maintain the status quo. Id. at
535.

74
353 U.S. at 42.

"Railway Labor Act, ch. 347, 44 Stat. 577 (current version at 45 U.S.C. §§ 151-188

(1976)).

"The Wagner Act, ch. 372, 49 Stat. 449 (current version at 29 U.S.C. § 160 (1976)).
"Wagner Act, § 10(e), 49 Stat, at 454-55 (current version at 29 U.S.C. § 160(e)

(1976)).

"Wagner Act, § 10(e) 49 Stat, at 454 (current version at 29 U.S.C. § 160(e) (1976)).
"Wagner Act, § 10(f) 49 Stat. 454 (current version at 29 U.S.C. § 160(f) (1976)).
80Wagner Act, § 10(h) 49 Stat. 454 (current version at 29 U.S.C. § 160(h) (1976)).

Section 10(h) of the National Labor Relations Act provides:

When granting appropriate temporary relief or a restraining order, or mak-
ing and entering a decree enforcing, modifying, and enforcing as so modified,

or setting aside in whole or in part an order of the board, as provided in this

section, the jurisdiction of courts sitting in equity shall not be limited by [the

Norris-LaGuardia Act].



592 INDIANA LAW REVIEW [Vol. 14:581

However, in Fur Workers Union Local 72 v. Fur Workers Union
No. 21238,

81
the court held that the Wagner Act did not modify the

Norris-LaGuardia Act prerequisites to the issuance of labor injunc-

tions.
82 Nevertheless, section 10(h) was not a signal to return to the

pre-Norris-LaGuardia days, because it was later determined that
section 10(h) did not carry with it any private rights to seek injunc-

tions.
83

D. Taft-Hartley Act

In 1947, the Wagner Act was amended by the Labor Manage-
ment Relations (Taft-Hartley) Act.84 With enactment of the Wagner
Act, Congress focused on actions of employers; with enactment of
the Taft-Hartley Act, Congress evidenced a change of attitude

toward the role of unions by adding a list of union unfair labor prac-
tices to balance the Wagner Act list against employers.85 This
change was prompted by certain post-Wagner Act practices of
organized labor which Congress perceived as causing industrial

unrest and coercive influence by unions over employees. Although

Congress, in the Taft-Hartley Act expressly accepted the desirabil-

ity of collective bargaining, it determined that change in the

remedial and enforcement provisions of the Wagner Act was re-
quired.

This change necessarily required an examination of the efficacy

of the injunction as a remedial device. In section 101 of the Taft-

Hartley Act, Congress added among others sections 10(1) and 10 (j) to
the Wagner Act. Section 10(Z) compels the Board to seek an injunction
whenever a union is charged with violating section 8(b)(4), subsec-
tions (A), (B), or (C), and the regional director has reasonable cause

8,
105 F.2d 1, 17 (D.C. Cir.), aff'd mem., 308 U.S. 522 (1939).

82
Earlier courts interpreting the impact of the Wagner Act seemed to be more

concerned with the question of whether a particular dispute was a "labor dispute" and

thus within the ambit of the Wagner Act. See, e.g.. International Union of United

Brewery v. California State Brewers Inst., 25 F. Supp. 870 (S.D. Cal. 1938), rev'd on

other grounds, 106 F.2d 871 (9th Cir. 1939) (involved jurisdictional dispute not between

employer and employees, thus no true labor dispute); Grace Co. v. Williams, 20 F.

Supp. 263 (W.D. Mo. 1937) (certification of bargaining representative was no "labor

dispute"). But cf., Donnelly Garment Co. v. I.L.G.W., 99 F.2d 309 (8th Cir. 1938) and

Cupples Co. v. A.F.L., 20 F. Supp. 894 (E.D. Mo. 1937) (finding labor disputes existed).
83Bakery Sales Drives, Local No. 33 v. Wagshal, 333 U.S. 437, 442 (1948).
84Labor Management Relations (Taft-Hartley) Act, Pub. L. No. 101, ch. 120, 61

Stat. 136 (1947) (as amended by Labor-Management Reporting and Disclosure Act,

Pub. L. No. 86-257, 73 Stat. 519 (1959) (current version at 29 U.S.C. § 401 (1976))) (cur-

rent version at 29 U.S.C. § 141 (1976)).

"Taft-Hartley Act, § 8(b), 61 Stat. 141 (current version at 29 U.S.C. § 158(b)

(1976)).



1981] LABOR INJUNCTIONS 593

to believe the charge is true.86 Although section 10(Z) does not have

language specifically exempting it from the Norris-LaGuardia Act, it

does state that injunctive relief can be granted "notwithstanding

any other provision of law." 87 Section 10(j) grants the Board discre-

tionary power to seek an injunction in any case where it has issued

an unfair labor practice complaint against an employer or a union.88

This section contains no exempting language similar to sections 10(h)

or 10(1). Nevertheless, the court in Douds v. Local 294, International
Brotherhood of Teamsters,

89
stated:

The measure of the court's jurisdiction is similar in both sub-
divisions (j) and (I); to-wit, to grant such injunctive relief or

temporary restraining order as it deems just and proper. No
other grant or limitation of power is found.

. . . When the court is given jurisdiction without limitation,
the Act means just that; the phrase [notwithstanding any
other provision of law] may be considered as surplusage.
Certainly, it can not be used to imply a limitation upon

another subsection where the phrase is not found.90

The resurrection of the injunction in federal courts as a mode of
regulating labor disputes under sections 10(j) and 10(Z) can be recon-

ciled with the underlying rationale of the Norris-LaGuardia Act,

because procedural safeguards91 obviate many of the evils previously
associated with the private use of labor injunctions.92

86Taft-Hartley Act, § 10U), 61 Stat. 149 (current version at 29 U.S.C. § 160(1)

(1976)).

"'Taft-Hartley Act, § 10U), 61 Stat. 149 (current version at 29 U.S.C. § 160U)

(1976)). Section (h) carries such an express exception. Taft-Hartley Act, § 10(h), 61 Stat.

149 (current version at 29 U.S.C. § 160(h) (1976)). See also § 208(a) of the Taft-Hartley

Act, which states that the provisions of the Norris-LaGuardia Act are inapplicable in

situations dealing with national health or safety. Taft-Hartley Act, ch. 120, § 208(a), 61

Stat. 155 (current version at 29 U.S.C. § 178 (1976)).

"Taft-Hartley Act, § 10(j), 61 Stat. 149 (current version at 29 U.S.C. § 160(j)

(1976)).

89
75 F. Supp. 414 (N.D.N.Y. 1947).

w
Id. at 417-18.

9,The Board must make preliminary findings of fact and law justifying the is-

suance of the unfair labor practice complaint. The petition for the injunction must

allege substantial and irreparable injury or else the person charged must be given

notice and the right to appear and present testimony prior to the issuance of the in-

junction. Taft-Hartley Act, ch. 120, § 10U)), 61 Stat. 149 (current version at 29 U.S.C. §

160U) (1976)).

^Injunctive relief upon petition of private parties was not contemplated under

these sections of the Act. G. Van Arkel, An Analysis of the Labor Management
Relations Act of 1947, 63 (1947). In Amazon Cotton Mill Co. v. Textile Workers

Union, 167 F.2d 183, 190 (4th Cir. 1948), the court upheld the exclusive jurisdiction of



594 INDIANA LAW REVIEW [Vol. 14:581

Section 301(a) of the Taft-Hartley Act caused the greatest dif-

ficulty in accommodating the Norris-LaGuardia Act and eventually

thrust federal courts back into a preeminent role in establishing

labor policy. Section 301(a) states:

Suits for violation of contracts between an employer and a
labor organization representing employees in an industry af-

fecting commerce as defined in this Act, or between any
such labor organizations, may be brought in any district
court of the United States having jurisdiction of the parties,

without respect to the amount in controversy or without
regard to the citizenship of the parties.93

Ostensibly, this provision granted federal courts plenary jurisdiction

in suits between employers and unions over contract violation

disputes. Such a broad jurisdictional grant would be expected to

carry with it the full panoply of legal and equitable remedial power,

including the injunction. The legislative history, however, casts
doubt on such an assumption. A comparison of the original versions
of section 301(a) indicates that Congress did not intend a sub silentio

authorization of federal injunctive relief. The Senate version 94 made
collective bargaining agreement breaches unfair labor practices and

gave the Board injunctive power under section 10(j) to enjoin such
violations. The House version,95 however, provided that violations of
the collective bargaining agreement fell within the jurisdiction of

the federal courts and expressly authorized the issuance of injunc-

tions against private parties for such violations. This latter grant

would have been a de facto repeal of Norris-LaGuardia Act in this

area. The conference committee accepted the House version but
eliminated the portion which reinstituted private injunctive relief.96

Thus, the apparent Congressional rejection of injunctive relief in

section 301(a) as evidenced by its history, coupled with a broad

jurisdictional grant, presumably including full remedial powers,

renders the section instrinsically inconsistent. Although it is obvious

that the Taft-Hartley Act made some inroads into Norris-

the Board to petition for 10U) injunctions. See also, International Longshoremen's and

Warehousemen's Local No. 6 v. Sunset Line & Twine Co., 77 F. Supp. 119 (N.D. Cal.
1948).

"Taft-Hartley Act, ch. 120, § 301(a), 61 Stat. 156 (current version at 29 U.S.C. §

185(a) (1976)).
94
S. 1126, 80th Cong., 1st Sess., § 8(b)(5) (1947), reprinted in 1 NLRB, Legislative

History of the Labor Management Relations Act, 1947, at 114 (1948).
9SH.R. 3020, 80th Cong., 1st Sess., § 302(e) (1947), reprinted in 1 NLRB,

Legislative History of the Labor Management Relations Act, 1947, at 95 (1948).
96
H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 67, reprinted in [1947] U.S. Code

Cong. & Ad. News 1135, 1174.



1981] LABOR INJUNCTIONS 595

LaGuardia's restrictions, the absence of definitive criteria in section

301(a) renders nebulous the exact extent.

V. Judicial Interpretation

A. Lincoln Mills to Avco

Section 301(a) is framed in such broad jurisdictional terms that a

split arose among the circuits as to whether the section was only a
procedural grant97 or an authorization for federal substantive law.98 In

Textile Workers Union v. Lincoln Mills of Alabama," the Supreme
Court resolved this split in the context of a suit to compel arbitra-

tion.
100 The Court focused on the Congressional intent of section

301(a) to make collective bargaining agreements "equally binding
and enforceable." 101 The Court concluded that "[T]he substantive law
to apply in suits under § 301(a) is federal law, which the courts must
fashion from the policy of our national labor laws. . . . The range of
judicial inventiveness will be determined by the nature of the prob-

lem." 102 Recognizing that an employer's agreement to arbitrate is the

quid pro quo for a no-strike clause, the Court adopted the rationale

expressed in Textile Workers Union v. American Thread Co. 103 in

stating that section 301 "authorizes federal courts to fashion a body

of federal law for the enforcement of these collective bargaining

agreements and includes within that federal law specific perform-

ance of promises to arbitrate grievances under collective bargain-

ing agreements." 104 The Court did not feel constricted by the stiff
procedural requirements of section 7 of the Norris-LaGuardia Act,

and asserted that a failure to comply with an agreement to arbitrate
was not similar to the type of acts listed in section 4 which had
given rise to abuses of the injunctive power against which the

"See, e.g., I.L.G.W. v. Jay-Ann Co., 228 F.2d 632 (5th Cir. 1956); Mercury Oil Ref.
Co. v. Oil Workers Int'l Union, 187 F.2d 980 (10th Cir. 1951).

98
See, e.g., Signal-Stat Corp. v. Local 475, United Elec. Radio and Mach. Workers,

235 F.2d 298 (2d Cir. 1956), cert, denied, 354 U.S. 911 (1957); United Elec. Radio and
Mach. Workers v. Oliver Corp., 205 F.2d 376 (8th Cir. 1953).

"353 U.S. 448 (1957).
l00The employer, after complying with graduated steps of a negotiated grievance

procedure pursuant to a contract that contained a no-strike clause and a broad arbitra-
tion clause, refused to submit to arbitration. The district court's order to arbitrate was
reversed by the circuit court which held that § 301(a) granted jurisdiction but not the
power to grant the requested relief. Lincoln Mills v. Textile Workers Union, 230 F.2d
81 (5th Cir. 1956).

,0,
353 U.S. at 454 (quoting S. Rep. No. 105, 80th Cong., 1st Sess. 15 (1947)).

102
353 U.S. at 456-57. The Court noted Mendelsohn, Enforceability of Arbitration

Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167 (1956).
,03
113 F. Supp. 137 (D. Mass. 1953).

IM
353 U.S. at 451.



596 INDIANA LAW REVIEW [Vol. 14:581

Norris-LaGuardia Act was aimed. 105 Admitting that a literal reading
of the Norris-LaGuardia Act would bring the dispute within its pur-
view, the Court, relying on section 8 which evinces a Congressional
policy in favor of "voluntary arbitration," nevertheless reasoned

that "the congressional policy in favor of the enforcement of

agreements to arbitrate grievance disputes being clear, there is no

reason to submit them to the requirements of § 7 of the Norris-
LaGuardia Act." 106 However, although arbitration could be compelled,

the status of injunctions to prevent violations of no-strike clauses

was uncertain.
The preference for the peaceful resolution of labor disputes via

arbitration, having received Congressional approval, continued to

receive judicial blessing. In the Steelworkers Trilogy, 101 the Court

stated:

"Final adjustment by a method agreed upon by the parties is
hereby declared to be the desirable method for settlement of
grievance disputes arising over the application or interpreta-

tion of an existing collective bargaining agreement. . . ."

That policy can be effectuated only if the means chosen by
the parties for settlement of their differences under a collec-

tive bargaining agreement is given full play. 108

The Court cautioned, however, that the function of the federal
courts is not to weigh the merits of the grievance but to ascertain

"whether the party seeking arbitration is making a claim which on
its face is governed by the contract." 109 Noting that "arbitration is

the substitute for industrial strife," 110 the Court stated that the ar-

bitrator is knowledgable in the "common law of the shop." 111

Therefore, absent an express exclusionary provision or other

forceful evidence, "[a]n order to arbitrate the particular grievance

should not be denied unless it may be said with positive assurance
that the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute. Doubts should be resolved in favor

of coverage." 112

""Id. at 458.
m

Id.

m
See, e.g., United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593

(1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);
United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960).

'""United Steelworkers v. American Mfg. Co., 363 U.S. at 566 (quoting the Labor

Management Relations Act, 1947, 29 U.S.C. § 173 (1976) (amended 29 U.S.C. § 173
(Supp. Ill 1979)).

109363 U.S. at 568.

""United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 578.
U1
I(L at 582. Accord, Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev.

1482, 1498-1500 (1959).
ll2363 U.S. at 582-83.



1981] LABOR INJUNCTIONS 597

Two years later, in Charles Dowd Box Co. v. Courtney, 113 the
Supreme Court recognized that state courts were not divested of
their jurisdiction to entertain suits for contract violations between

employers and unions. 114 In rejecting any federal "exclusivity" in

this area, the Court relied upon the permissive "may" language of
section 301(a), as opposed to mandatory "shall" language, and the

fact that Congress left the enforcement of collective bargaining

agreements "to the usual processes of the law." 115 However, the

Court quickly dispelled any notion that state court concurrent

jurisdiction would be allowed to create a multifarious body of

substantive labor law. In Local 174, Teamsters v. Lucas Flour Co., 116

the Supreme Court held that "incompatible doctrines of local law
must give way to principles of federal labor law. . . . The dimensions
of § 301 require the conclusion that substantive principles of federal

labor law must be paramount in the area covered by the statute." 117

Thus, a state court proceeding would be procedurally appropriate,

but the substantive law to be applied was federal.
In Lincoln Mills, the Steelworkers Trilogy, and Lucas Flour, the

suits to compel arbitration were union initiated. Employers soon

began to question whether they could likewise expect judicial en-

forcement of the union side of the bargain — the no-strike clause.
Although a split developed among the circuits,118 the issue was
resolved in Sinclair Refining Co. v. Atkinson.

119
In Sinclair the

employer, seeking to enjoin a union violation of a no-strike clause,

relied upon the Congressional concern expressed in section 2 of the

Norris-LaGuardia Act "to protect concerted activities for the pur-
pose of collective bargaining." 120 The employer contended that

[a]n interpretation of the term "labor dispute" so as to include

a dispute arising out of a union's refusal to abide by the

terms of a collective agreement to which it freely acceded is

113
368 U.S. 502 (1962).

"Yd. The Court rejected the analogy to San Diego Bldg. Trades Council v. Gar-
mon, 359 U.S. 236 (1959), in which the Court recognized the necessity of withdrawing

from the state courts, jurisdiction over controversies subject to the jurisdiction of the

NLRB. 368 U.S. at 507.
115368 U.S. at 511.
U6369 U.S. 95 (1962).
ni

Id. at 102-03. Accord, Humphrey v. Moore, 375 U.S. 335 (1964).
usSee Chauffeurs Local 795 v. Yellow Transit Freight Lines, Inc., 282 F.2d 345

(10th Cir. 1960), rev'd per curiam, 370 U.S. 711 (1962) (upholding an injunction in viola-

tion of a no-strike clause). But see A.H. Bull S.S. Co. v. Seafarers' Int'l Union, 250 F.2d
326 (2d Cir. 1957), cert, denied, 355 U.S. 932 (1958) (refusing to uphold an injunction in

a similar case).
u9370 U.S. 195 (1962) (overruled in Boys Mkts., Inc. v. Retail Clerks, Local 770, 398

U.S. 235 (1970)).
120370 U.S. at 201.



598 INDIANA LAW REVIEW [Vol. 14:581

to apply the Norris-LaGuardia Act in a way that defeats one
of the purposes for which it was enacted. 121

Although the Court recognized this as a forceful argument with sup-
port among the legal commentaries,122 it declared that nothing in sec-
tion 2 narrowed the broad definition of "labor dispute," 123 and that
section 301(a) "was not intended to have any such partially repealing

effect upon such a long-standing, carefully thought out and highly

significant part of this country's labor legislation as the Norris-

LaGuardia Act." 124 The Court distinguished its holding in Sinclair
from that in Lincoln Mills because the latter involved injunctions

against failure to arbitrate, which Norris-LaGuardia was not intended
to prevent, while the former involved injunctions to prevent strikes,

at which Norris-LaGuardia was specifically directed. 125 The Court
refused to accomodate section 4 of the Norris-LaGuardia Act and

section 301(a) of the Taft-Hartley Act.

In a noteworthy dissent, Justice Brennan stated:

Of course § 301 of the Taft-Hartley Act did not, for purposes

of actions brought under it, "repeal" § 4 of the Norris-

LaGuardia Act. But the two provisions do coexist, and it is
clear beyond dispute that they apply to the case before us in

apparently conflicting senses. Our duty, therefore, is to seek
out that accommodation of the two which will give the
fullest possible effect to the central purposes of both.126

Justice Brennan noted that while section 301 does not specifically
address the remedy question, a court's function may be crippled if it
is deprived of its injunctive power.127 Also, when faced with this sur-
face conflict, prior decisions had flexibly applied the Norris-

LaGuardia language. 128 Therefore, Justice Brennan justifiably con-

sidered the majority opinion in Sinclair to be out of harmony with
prior decisions.

129

m
id.

l22See Gregory, The Law of the Collective Agreement, 57 Mich. L. Rev. 635
(1959); Rice, A Paradox of Our National Labor Law, 34 Marq. L. Rev. 233 (1951);
Stewart, No-Strike Clauses in the Federal Courts, 59 Mich. L. Rev. 673 (1961).

,23370 U.S. at 202 n.13 (quoting Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330
(1938)).

,24370 U.S. at 203.
,2S
Id. at 212. See Keene, The Supreme Court, Section 301 and No- Strike Clauses:

From Lincoln Mills to Avco and Beyond, 15 Vill. L. Rev. 32, 49 (1969).
I26370 U.S. at 215-16 (Brennan, J., dissenting).
ni

Id. at 216-17.
l2e
Id. at 217. In Lincoln Mills, § 7 of the Norris-LaGuardia Act was accommodated

to § 301(a) of the Taft-Hartley Act. Id. at 219.
129Brennan stated, "Accommodation requires only that the anti-injunction policy of

Norris-LaGuardia not intrude into areas not vital to its ends, where injunctive relief is



1981] LABOR INJUNCTIONS 599

Additionally, Justice Brennan realized the effect of the decision

on state court injunctive relief. The state courts would become the
preferred forum for enforcement of arbitration agreements placing

the "development of a uniform body of federal contract law ... in

for hard times." 130 Finally, if removal to federal courts were allowed,

it would result in an extension of the Norris-LaGuardia Act to the

states, effectively negating their injunctive power.131

Although Sinclair ostensibly left state court injunctive power in-
tact, the tactical procedural maneuver of the federal removal
statute

132
quickly preempted the field. Courts had to grapple with

the question of whether the Norris-LaGuardia Act denied jurisdic-

tion to the federal courts when the sole relief requested in a labor
dispute was an injunction. Again a split arose among the circuits. 133

The question was answered in Avco Corp. v. Aero Lodge No. 735 13i

in which the Supreme Court held:

Removal is but one aspect of "the primacy of the federal
judiciary in deciding questions of federal law." See England
v. Medical Examiners, 375 U.S. 411, 415-416.

It is thus clear that the claim under this collective

bargaining agreement is one arising under the "laws of the
United States" within the meaning of the removal statute.
28 U.S.C. § 1441(b). It likewise seems clear that this suit is
within the "original jurisdiction" of the District Court within

the meaning of 28 U.S.C. §§ 1441(a) and (b).
135

Thus, the holding in Sinclair was unquestionably extended to the state
courts.

136 The three concurring justices in Avco, realizing the impact
of the decision in connection with Sinclair, expressed a willingness

to reconsider Sinclair at an appropriate time. 137

vital to a purpose of § 301; it does not require unconditional surrender." 370 U.S. at

225 (Brennan, J., dissenting).
m
Id. at 226.

13
7d. at 227.

13Z28 U.S.C. § 1441(a) (1976).
133
In American Dredging Co. v. Local 25, Marine Div., Int'l Union of Operating

Eng'rs, 338 F.2d 837 (3d Cir. 1964), cert, denied, 380 U.S. 935 (1965), the court found no

jurisdiction under 28 U.S.C. § 1441(a) (1976). Contra, Avco Corp. v. Aero Lodge No.
735, 376 F.2d 337 (6th Cir. 1967), aff'd, 390 U.S. 557 (1968), wherein the court found

jurisdiction.
134390 U.S. at 557, rehearing denied, 391 U.S. 929 (1968).
,35390 U.S. at 560 (footnote omitted).
I36
lndeed, some commentators thought that Sinclair should be so extended. See,

e.g., Dunau, Three Problems in Labor Arbitration, 55 Va. L. Rev. 427, 468-73 (1969).
137
390 U.S. at 562 (Stewart, Harlan, and Brennan, J.J., concurring).



600 INDIANA LAW REVIEW [Vol. 14:581

B. Boys Markets and Beyond

The opportunity to reconsider Sinclair presented itself in Boys
Markets, Inc. v. Retail Clerks Union, Local 770, m in which a state
court issued an injunctive order against a violation of a no-strike

clause. The case was removed to the district court, which upheld the
order. The Ninth Circuit, relying on Sinclair, reversed the holding.139

However, the Supreme Court found that the holding of Sinclair
represented a "significant departure from [a] . . . consistent . . . con-

gressional policy [favoring] . . . arbitration" and was undermined by
subsequent events, requiring its overruling. 140 The Court declared,
"The principal practical effect of A vco and Sinclair taken together is
nothing less than to oust state courts of jurisdiction in § 301(a) suits

where injunctive relief is sought for breach of a no-strike
obligation."

141 Such an occurrence would result in rampant forum
shopping based on the availability of injunctive relief and frustrate

efforts to establish a uniform federal labor law. It would effectively

eliminate equitable remedies leaving only inadequate money
damages.142 The Court accommodated the instant situation under sec-
tion 301(a) with the Norris-LaGuardia Act because the abuses which

led to the latter were not present. However, the Court noted that
its holding was a very narrow one and set forth strict criteria for the
issuance of injunctions in this area. Adopting his own language from
the Sinclair dissent, Justice Brennan speaking for the court stated:

A District Court entertaining an action under § 301 may not
grant injunctive relief against concerted activity unless and

until it decides that the case is one in which an injunction

would be appropriate despite the Norris-LaGuardia Act.

When a strike is sought to be enjoined because it is over a
grievance which both parties are contractually bound to ar-

bitrate, the District Court may issue no injunctive order un-
til it first holds that the contract does have that effect; and

the employer should be ordered to arbitrate, as a condition

,38398 U.S. 235 (1970).
,39416 F.2d 368 (9th Cir. 1969), rev'd, 398 U.S. 235 (1970).
140398 U.S. at 241. The Court refused to accept congressional silence re Sinclair as

approval, noting that "[i]t is at best treacherous to find in congressional silence alone

the adoption of a controlling rule of law." Id. (quoting Girouard v. United States, 328

U.S. 61, 69 (1946)).
m398 U.S. at 244-45.
142Even Justice Black, in his dissenting opinion in Boys Mkts., recognized that

damages were not as effective as injunctions in stating, "[t]he court would have it that

these techniques [money damages] are less effective than an injunction. That is

doubtless true." 398 U.S. at 261 (Black, J., dissenting). Accord, Edwards & Bergmann,

The Legal and Practical Remedies Available to Employers to Enforce a Contractual

"No-Strike" Commitment, 21 Lab. L.J. 3 (1970).



1981] LABOR INJUNCTIONS 601

of his obtaining an injunction against the strike. Beyond this,

the District Court must, of course, consider whether is-

suance of an injunction would be warranted under ordinary

principles of equity — whether breaches are occurring and
will continue, or have been threatened and will be commit-

ted; whether they have caused or will cause irreparable in-

jury to the employer; and whether the employer will suffer

more from the denial of an injunction than will the union
from its issuance. 143

Thus, the Court felt that the "overriding interest in the successful

implementation of the arbitration process" 144 required this limited in-

trusion into the broad nonintervention policy of the Norris-

LaGuardia Act.

The Supreme Court had an opportunity to address the Boys
Markets criteria in a slightly expanded manner in Gateway Coal Co.
v. UMW. U5 Applying the presumption in favor of arbitration
established in the Steelworkers Trilogy and under section 203(d) of

the Taft-Hartley Act to safety disputes, 146 the Court addressed the

applicability of Boys Markets to situations in which, despite a broad

arbitration clause, there was no express no-strike clause. The Court
held, "Although the collective-bargaining agreement in Boys Markets
contained an express no-strike clause, injunctive relief also may be
granted on the basis of an implied undertaking not to strike." 147

Realizing that, although unusual, it was possible that the contractual
intent of the parties was to have a broad arbitration clause without
a no-strike clause, the Court stated, "Absent an explicit expression

of such an intention, however, the agreement to arbitrate and the

duty not to strike should be construed as having coterminous applica-

tion."
148 The Court, having found an implied no-strike agreement and

that the limited exception to express or implied no-strike clauses

under section 502 was inapplicable, 149 upheld the district court in-
junction.

,43398 U.S. at 254 (quoting Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 228 (1962)

(Brennan, J., dissenting)).

'"398 U.S. at 252.
M5414 U.S. 368 (1974).
146The Court stated, "Relegating safety disputes to the arena of economic combat

offers no greater assurance that the ultimate resolution will ensure employee safety.

Indeed, the safety of the workshop would then depend on the relative economic

strength of the parties rather than on an informed and impartial assessment of the

facts." Id. at 379.

'"Id. at 381 (footnote omitted).
us

Id. at 382.
H9The Taft-Hartley Act § 502, 29 U.S.C. § 143 (1976), provides, in part, "[N]or shall

the quitting of labor by an employee or employees in good faith because of abnormally

dangerous conditions for work at the place of employment of such employee or



602 INDIANA LAW REVIEW [Vol. 14:581

Another aspect of the Boys Markets criteria to receive addi-
tional amplification was the "over an arbitrable dispute" require-
ment. The issue arose in the context of sympathy strikes when,
after a split in the circuits,

150
the Supreme Court decided Buffalo

Forge Co. v. Steelworkers. 151 The Court held that a sympathy strike,
"was not over any dispute between the Union and the employer that
was even remotely subject to the arbitration provisions of the con-
tract. . . . The strike had neither the purpose nor the effect of deny-
ing or evading an obligation to arbitrate or of depriving the

employer of its bargain." 152 Although the question of whether the

strike itself was a violation of the no-strike clause was conceded to
be an arbitrable issue, 153 because the underlying cause of the

strike — sympathy — was not an arbitrate issue, the Court would not
enjoin it. To hold otherwise the Court acknowledged "would cut deep-
ly into the policy of the Norris-LaGuardia Act." 154

VI. Prospective Injunctions: A View of the Circuits

A. Generally

The question left unanswered after Boys Markets and its progeny
is the availability of prospective injunctions. The typical injunction
halts an on-going strike over a particular dispute. Absent the injunc-
tion, the strike would continue into the future; therefore, although

directed at terminating an existing condition, the ultimate effect is

somewhat prospective in nature. Conversely, a prospective injunc-
tion is directed not at an existing condition but at a dispute arising

in the future over an arbitrable issue. Issuance of prospective in-

junctive relief is usually based on a history of similar strikes which

portend a reasonable likelihood of future repetition. The benefit the

employees be deemed a strike under this chapter." The Court found this section inap-
plicable because the union presented no "ascertainable, objective evidence supporting

its conclusion that an abnormally dangerous condition for work exists." 414 U.S. at 387
(quoting Gateway Coal Co. v. UMW, 466 F.2d 1157. 1162 (1972)).

Xb0See Plain Dealer Publishing Co. v. Cleveland Typographical Local 53, 520 F.2d
1220 (6th Cir. 1975), cert, denied, 928 U.S. 909 (1976); Amstar Corp. v. Amalgamated
Meat Cutters, 468 F.2d 1372 (5th Cir. 1972) (holding no injunction against a sympathy
strike). But see Valmac Indus., Inc. v. Food Handlers Local 425, 519 F.2d 263 (8th Cir.
1975), vacated and remanded, 428 U.S. 905 (1976); NAPA Pittsburg, Inc. v. Automotive
Chauffers Local 926, 502 F.2d 321 (3d Cir.) (en banc), cert, denied, 419 U.S. 1049 (1974);
Monongahela Power Co. v. Local 2332, IBEW, 484 F.2d 1029 (4th Cir. 1973) (holding
that an injunction against a sympathy strike was permissible).

,5,428 U.S. 397 (1976).
,52
Jd. at 407-08.

153The court stated that the employer could obtain a court order compelling the
union to arbitrate this issue and later obtain an order enforcing the arbitrator's deci-
sion. Id. at 410.

,5
7d.



1981] LABOR INJUNCTIONS 603

employer is that when the anticipated violation occurs, the union is
immediately in violation of a standing court order and thus, subject

to contempt citations.

The courts have moved cautiously in this area, mindful of con-
gressional reaction to perceived judicial abuse of the injunctive

power as evidenced by the Norris-LaGuardia Act. The issuance of a
prospective injunction would require an extension of the admittedly

narrow exception carved out in Boys Markets. Although the precise

issue has not been decided by the Supreme Court, the Court has
provided guidance to the district courts. " '[T]he District Court must,

of course, consider whether issuance of an injunction would be war-

ranted under ordinary principles of equity — whether breaches are
occurring and will continue, or have been threatened and will be

committed; whether they have caused or will cause irreparable in-

jury to the employer. . . .'" 155 The emphasized language appears to
address future activity, but it is unclear if this is future activity of

an ongoing condition or if it is future activity of a condition that will

arise at some later time. It may be loose language, or it may be tacit
approval of prospective injunctions.

The Court in Boys Markets relied heavily upon the Sinclair dis-
sent, and language in the latter opinion clearly recognized the

possibility of prospective injunctions. The dissent in Sinclair stated:

Under the contract and the complaint, . . . the District Court
might conclude that there have occurred and will continue to

occur breaches of contract of a type to which the principle of

accommodation applies. It follows that rather than dismis-
sing the complaint's request for an injunction, the Court

should remand the case to the District Court with directions
to consider whether to grant the relief sought — an injunction
against future repetitions. This would entail a weighing of

the employer's need for such an injunction against the harm
that might be inflicted upon legitimate employee activity. It
would call into question the feasibility of setting up in futuro
contempt sanctions against the union (for striking) and
against the employer (for refusing to arbitrate) in regard to

prospective disputes which might fall more or less clearly into
the adjudicated category of arbitrable grievances. In short,

the District Court will have to consider with great care

whether it is possible to draft a decree which would deal
equitably with all the interests at stake. 156

,55Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. at 254 (quoting
Sinclair Ref. Co. v. Atkinson, 370 U.S. at 228 (Brennan, J., dissenting) (emphasis
added)).

i6
370 U.S. at 228-29 (emphasis added).

156C



604 INDIANA LAW REVIEW [Vol. 14:581

The Court in Boys Markets did not specifically address this proposi-
tion; however one must bear in mind that the Sinclair dissent and
the Boys Markets opinion were both written by Justice Brennan,
who stated at one point, "We have also determined that the dissent-
ing opinion in Sinclair states the correct principles concerning the

accommodation necessary between the seemingly absolute terms of
the Norris-LaGuardia Act and the policy considerations underlying §
301(a)."

157Thus, Boys Markets may be read to embrace the entire
Sinclair dissent analysis, including the approval of prospective in-

junctions. However, until the Supreme Court specifically addresses
the issue, there is room for conflicting interpretations as illustrated
by the existing split among several circuit courts.

B. Seventh Circuit

The first circuit court to address the issue was the Seventh Cir-
cuit in Old Ben Coal v. Local U87, UMW, (Old Ben II). l5S The district
court permanently enjoined the union based on "its finding that the

union had a general policy of 'resort to self help through strikes and

work stoppages which were in violation of existing labor
agreements.'

" 159 The union conduct occurred before and after the
decree in Old Ben 7. 160 Finding that damages were inadequate and
disciplinary measures were inefficacious, the circuit court reasoned:

In light of the frequency of the work stoppages and of the
nature of the disputes, most if not all of minor dimension, it

is apparent that defendants have utilized the device of work
stoppages with questionable motivation and little justifica-

tion. We are far from convinced that without a permanent
injunction similar conduct would not continue. 161

The court focused on the intent of Boys Markets, that an injunction
enhances the arbitration process, and considered the Norris-

LaGuardia Act, which "declares that the breadth of an injunction is

to be determined by the extent of the misconduct." 162 The court con-
cluded that "there is a proper basis for the issuance of a broad in-

,57398 U.S. at 249.
,58500 F.2d 950 (7th Cir. 1974). In Old Ben Coal Corp. v. Local 1487, UMW, 457

F.2d 162 (7th Cir. 1972) (Old Ben I), although the circuit court upheld an injunction

against the union, it narrowed its holding from a prospective injunction to one covering

only the existing dispute. 457 F.2d at 165.
I59500 F.2d at 952.

""The union had been admonished in Old Ben I that "(p]erhaps a broad injunction

would be appropriate in some future action should it appear that the Union is unwilling to

accept the present adjudication with respect to its rights." 457 F.2d at 165.
m500 F.2d at 952. The mere number of work stoppages was not determinative. Id.
,6
7d. at 953.



1981] LABOR INJUNCTIONS 605

junction, given the appropriate facts."
163 The union's allegation of

vagueness and lack of specificity in the order was discounted by the
court because the order incorporated the specific contract language

and thus required the union to do only that for which it had

specifically negotiated.
184

C. Tenth Circuit

Approximately four months after Old Ben II, the Tenth Circuit,
addressing the issue of prospective injunctions, reached the same
result in CF&I Steel Corp. v. UMW. 165 Having considered eight
strikes in the complaint, the district court found four strikes to be

over issues unlikely to arise again
166 and four strikes to be over

issues likely to arise again.
167 The court granted a permanent injunc-

tion against those activities in the latter group.
168 On appeal, the cir-

cuit court disposed of the union's contention that the order was im-
permissibly vague under Rule 65(d) of the Federal Rules of Civil
Procedure: 169 "We find enjoined specific concerted activity, namely,
'strike, work stoppage, interruption of work, or picketing at the
Allen mine.' These are terms of reasonably specific content in the

'common law of the shop.' . . . We find no incapacitating vagueness
in the decree."

170 The court of appeals also rejected the union's posi-
tion that the injunction was prohibited by the Norris-LaGuardia Act as
interpreted by Boys Markets. After discussing the countervailing in-
fluences of the Norris-LaGuardia Act and the preference for the

peaceful resolution of labor disputes by arbitration, the court, em-

,63
/d.

lM
Id. Moreover, the court noted that the union could utilize declaratory remedies

to clear up ambiguities. Id. at 954.
,65
507 F.2d 170 (10th Cir. 1974). The Tenth Circuit made no mention of Old Ben I

in its decision.
166The issues included portal-to-portal pay, medical services, vacation pay, and

hoistman's pay. Id. at 172.
167The issues included employee suspensions, employee discharges, and work

assignments. Id.
168The union had argued that it was inconsistent to permanently enjoin one group

but not the other. The circuit court rejected this as a "confusion of thought." Id. at

176.
,69Fed. R. CIV. P. 65(d) provides in pertinent part:

Every order granting an injunction and every restraining order shall set

forth the reasons for its issuance; shall be specific in terms; shall describe in

reasonable detail, and not by reference to the complaint or other document,

the act or acts sought to be restrained; and is binding only upon the parties

to the action, their officers, agents, servants, employees, and attorneys, and

upon those persons in active concert or participation with them who receive

actual notice of the order by personal service or otherwise.
170507 F.2d at 173.



606 INDIANA LAW REVIEW [Vol. 14:581

phasizing the future tense language in Boys Markets, 171 reasoned, "It

is clear that the opinion [in Boys Markets] considered also the

possibility of remedial action directed toward future conduct in a

proper case. . .
"m The Tenth Circuit upheld the district court's ac-

commodation between section 4 of the Norris-LaGuardia Act and

section 301(a) of the Taft-Hartley Act and sustained the injunction

within the permissible limits, to specific activities likely to recur.
173

The principal difference between the results achieved by the
Seventh and Tenth Circuits was that the former had approved a
prospective injunction as broad as the contract language while the

latter's approval was limited to specific incidents with a likelihood of

recurrence.

D. Fifth Circuit

Less than a year later, it was the Fifth Circuit which grappled
with the prospective injunction issue in United States Steel Corp.

v. UMW. l7i The district court, after a long series of strikes and
disregard for court orders, permanently enjoined the union from

striking over arbitrable issues for the life of the contract. In its

order, the court utilized the exact language of the contract arbitra-

tion clause to delineate the scope of arbitrable issues. A subsequent
sympathy strike resulted in a contempt citation, which together
with the original order was appealed. 175 The circuit court reversed,
relying on its interpretation of Boys Markets, section 9 of the

Norris-LaGuardia Act, and Rule 65(d) of the Federal Rules of Civil

Procedure. 176 First, the court held that Boys Markets' "carefully

drawn guidelines" required a "case-by-case adjudication" of whether
a strike was over an arbitrable issue and, if so, whether the strike
was enjoinable. 177 The court concluded that the order was overbroad
and "nothing less than an injunction against striking for the life of

the contract."
178 Second, the court declared that section 9 of the

Norris-LaGuardia Act requires injunctions to be for "specific acts or

acts as may be expressly complained of in the bill of complaint or peti-
tion filed in such case and as shall be expressly included in said find-

ings of fact made and filed by the court. . . ." 179 Therefore, reliance

"'Id. at 176. See note 157 supra.
172507 F.2d at 176.
,7
7d. at 177. See note 170 supra.
m519 F.2d 1236 (5th Cir. 1975), rehearing and rehearing en banc, denied, 526 F.2d

376 (5th Cir.), cert, denied, 428 U.S. 910 (1976).
,75519 F.2d at 1238.
177d at 1238, 1245.
n7

Id. at 1245.
17
7d.

I7
7d. at 1246 (quoting 29 U.S.C. § 109 (1976)).



1981] LABOR INJUNCTIONS 607

upon the general language of the contract was insufficient to meet,

the "specific acts" requirement. Lastly, in finding that the order

violated Rule 65(d) with regard to vagueness, the court rejected the

employer's argument that the contract language rendered the order

unambiguous. The court stated, "A collective bargaining agreement,
however, is anything but a precise document; the parties themselves

are often unsure of what it means." 180 Thus, the Fifth Circuit refused

to recognize the use of prospective injunctions in labor disputes,

where the injunction was based on broad contract language.

However, the position of the Fifth Circuit in regard to prospective

injunctions limited to specific acts is still an open question. 181

E. Third Circuit

The following year, the Third Circuit voiced its opinion on pro-
spective injunctions in United States Steel Corp. v. UMW.™2 The
district court, having issued three injunctions within a month, issued

a prospective injunction as broad as the arbitration clause of the

contract. The court maintained that unless restrained prospectively,
the union would continue to breach its contract. 183 Although the cir-

cuit court found the Boys Markets holding applicable, it found error

in the particular order because "[njo finding was made . . . that the
likelihood of future breaches of contract was attributable to any
specific activity or lack of activity on the part of the UMW, District
5, or the officers of the Local."

184 Furthermore, the court specifically

addressed the prospective nature of the injunction, summarizing the
opinions of the Fifth, Tenth, and Seventh Circuits.

Thus the Fifth Circuit seems to suggest that no injunctive
relief against future violations would be proper, the Tenth

Circuit holds that a prospective injunction against specifically

identified types of future violations which have in the past oc-

curred is proper, and the Seventh Circuit holds that an injunc-

tion as broad as the contract is permitted. We think that a
position somewhere between the extremes is appropriate. 185

The court stated that prospective injunctions would not run
afoul of the overbreadth proscription of section 9 of the Norris-

180519 F.2d at 1246. The court recognized the decisions of the Seventh and Tenth

Circuits but distinguished them.
18I
In Drummond Co. v. District 20, UMW, 598 F.2d 381 (5th Cir. 1979), the court

noted that the "[f]ate of single-subject prospective injunctions in this circuit, a matter

of speculation after United States Steel, must be decided elsewhere." Id. at 386.
182
534 F.2d 1063 (3d Cir. 1976).

,8
7d. at 1068-69.

18
Vd. at 1075.
m
Id. at 1077.



608 INDIANA LAW REVIEW [Vol. 14:581

LaGuardia Act if there is evidence of a "pattern of conduct which
results in repeated and similar violations," 186 and the court limits "in-

junctive relief to the likelihood of their recurrence, or to new and
different kinds of violations which may be expected to occur in the
future."

187 The Third Circuit considered the prospective injunction to
be necessary to combat a "chronic pattern of continuing mischief" 188

which burdened the court and the parties with repeated litigation

over "essentially the same issue in a slightly different context . . . ," 189

On the issue of notice and vagueness, the court declared that Rule
65(d) required that the parties be notified of specific steps that must

be taken to comply with the court order. 190 Thus, the Third Circuit's

position is somewhere between the extremes of the Seventh and
Fifth Circuits, and although it is most analogous to the Tenth Cir-

cuit's position, it differs in certain particulars such as the Rule 65(d)

effect.
191

F. Ninth Circuit

Less than two weeks after the Third Circuit's pronouncement,
the Ninth Circuit added its thoughts to the evolving split. In

Donovan Construction Co. v. Construction, Production & Mainten-
ance Laborers Union Local 383, 192 the court stated that if a party

seeking a Boys Markets injunction can show "a reasonable ap-
prehension that the misconduct will recur, a hearing to determine

the appropriateness of future injunctive relief is proper." 193 Under
Boys Markets, the district court's inquiry must encompass the or-
dinary principles of equity;

The difficulties of such an inquiry are naturally compounded
when the court is faced with anticipated troubles rather
than a present controversy. However, the complexity of this

task will not deny a party access to this remedy if he can ad-

,9
7rf.

m
Id.

18
7d.

18
7d.

,9
Vd. at 1078. This differs from the Tenth Circuit which stated that the "law of the

shop" rendered the broad language specific enough. CF & I Steel Corp. v. UMW, 507
F.2d 170, 173 (10th Cir. 1974) (quoting Cox, Reflections Upon Labor Arbitration, 72
Harv. L. Rev. 1482, 1499 (1959)).

'"Furthermore the Third Circuit addressed an issue that may have been implied
in the other decisions but which was not specifically discussed, to wit, the need for the
prospective order to include an order to the employer "directing compliance with the
settlement of disputes clause at least as broad, and for the same period, as the injunc-
tion." 534 F.2d at 1079.

"2
533 F.2d 481 (9th Cir. 1976).

,93
Id. at 484.



1981] LABOR INJUNCTIONS 609

duce convincing evidence that the anticipated labor dispute

is sufficiently likely to occur, and that the harm threatened
thereby is of such magnitude as to bring his situation within

the Boys Markets guidelines.194

Thus, although the Ninth Circuit would permit prospective injunc-

tions, the order must be accompanied by detailed factual findings

that specifically identify contractual violations which have occurred

in the past and are likely to recur in the future. 195

G. Sixth Circuit

The Sixth Circuit, having the benefit of five previous circuit opin-

ions, articulated its own in Southern Ohio Coal Co. v. UMW. 196

After recognizing the lack of consensus among the circuits with
regard to prospective injunctions and summing up their respective
positions, the court took an "intermediate position." 197 Initially, the

court stated, "We see nothing in Boys Markets that is inconsistent
with a grant of prospective injunctive relief in the exercise of § 301

jurisdiction."
198

Unlike the other circuits, the Sixth Circuit not only relied upon

the future tense language of Boys Markets but also set forth ver-
batim the Sinclair dissent language that clearly envisioned the

possibility of prospective injunctions. 199 Because the basic thrust of

Boys Markets was the enhancement of the arbitration process, the
court reasoned that a "[w]ide-scale disregard of the union's no-strike

obligation . . . threatens the underpinnings of the arbitration pro-

cess"
200

unless the employer has the effective immediate remedy of
the prospective injunction. Joining the circuit courts that fall

somewhere between the Seventh and Fifth Circuits, the Sixth Cir-
cuit held:

Once a court has found that a union is engaged in a contin-
uing practice of striking over arbitrable disputes and the

Boys Markets guidelines are satisfied, we believe that the

"Yd. (citations omitted).
l95
/d. at 485. The court remanded the case because the factual support for the

broad based injunction was insufficient. However, the circuit court acknowledged that
a modification "may embrace 'any strike or work stoppage, or a threat of work stop-
page' incident to a jurisdictional dispute substantially similar to that which was re-
solved by the May 16 arbitration award," provided sufficient record support was estab-
lished. Id. at 486.

,96
551 F.2d 695 (6th Cir.), cert, denied, 434 U.S. 876 (1977)).

,97
551 F.2d at 708.

m
Id.

m
Id. at 708-09. See text accompanying note 158 supra.

200
551 F.2d at 709.



610 INDIANA LAW REVIEW [Vol. 14:581

ensuing injunction may be extended to encompass future
strikes over disputes similar to those which caused strikes in

the past.
201

The court left undecided the issue of whether a prospective injunc-
tion could be "as broad as the contractual arbitration clause."202

However, the court cautioned that prospective injunctions should be
drawn as narrowly as possible 203 and should be "firmly grounded on
factual support in the record." 204 District courts were given the
following instructions by the Sixth Circuit:

Before an injunction may issue which grants prospective
relief, the District Court should expressly find: that the pre-

sent strike may be enjoined under Boys Markets; that the
union has engaged in a pattern of strikes over arbitrable

grievances that is likely to continue; that the strikes con-

stituting the pattern of violation would warrant relief under

the Boys Markets formula; and, that the decree is limited to
specifically identified areas of dispute which have already

been adjudicated and which satisfy the Boys Markets
guidelines.

205

The court also addressed the Rule 65(d) issue, declaring that the
order should "include instructions informing the parties of specific

steps they must take to prevent a recurrence of the illegal work
stoppages" 206 so that the scope of the order need not be tested

through contempt proceedings. Finally, like the Third Circuit, the

court stated that prospective injunctions "must include an order to

the employer directing him to arbitrate all grievances within the

scope of the injunction."
207

VII. Prospective Injunctions: Relevant Considerations

The relevant considerations with respect to prospective injunc-
tions appear to be: (1) the nature of the present dispute vis-a-vis the

Boys Markets decision, (2) the existence of a pattern of the same or
similar disputes and the likelihood of future recurrence, (3) the applica-

2<n
Id.

202
Id. at 709-10 (footnote omitted).

203
Id. at 710. The court noted that the overbroad injunctions run the risk of going

afoul of Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (1976).
204
551 F.2d at 710.

20b
Id. (footnote omitted).

206
Id. at 711.

207
Id. The court held that the preliminary injunctions issued by the district court

were overbroad and failed to comport with the established guidelines of the Boys

Mkts. opinion. Id.



1981] LABOR INJUNCTIONS 611

bility of Boys Markets to this category of disputes, (4) the accommoda-

tion of section 4 of the Norris-LaGuardia Act to this category, (5)

compliance with the substantive requirements of section 9 of the Norris-

LaGuardia Act, (6) the effect of Rule 65(d), and (7) the inclusion of the

employer in the order.

Five of the six circuits that have addressed the issue have found

that Boys Markets can be read consistently with the use of prospec-

tive injunctions. The lone hold-out, the Fifth Circuit, elected to
stress the narrowness of the Boys Markets opinion. Although

recognizing that vindication of the arbitration process was at the

core of the Boys Markets opinion, the Fifth Circuit concluded that

such vindication must be established by case-by-case adjudication.

The future tense language of Boys Markets did not convince the
Fifth Circuit otherwise as they noted that such language is "in

almost identical words, . . . mandated by the Norris-LaGuardia Act
before any labor injunctions may issue."208 The Fifth Circuit felt that
any extension of these words to include prospective injunctions was
reading "too much into this language." 209

Such a restrained application of Boys Markets, while perhaps
sustainable if looked at from the narrow nature of the holding, does

not appear to further the overall rationale of Boys Markets. The
other circuits have chosen to place Boys Markets in the larger
perspective of enhancement of the arbitration process itself. Boys
Markets cannot be read in vacuo but must be seen as a concomitant
part of the overall process of "peaceful resolution of labor disputes."

Indeed, it was the very deviance of Sinclair from that process that
resulted in its subsequent repudiation.

A reading of Boys Markets to preclude prospective injunctions
prohibits the realization of the decision's full potential. While a case-

by-case adjudication of violations of a no-strike clause may be accept-
able to resolve an existing condition, this method fails to give mean-
ingful relief in the face of widespread disregard of such a clause. It is

theoretically unobjectionable, but in the practical realities of labor

disputes, it is intolerable. The circuits that allow prospective injunc-
tions recognize the necessity of such remedial devices in the arbitra-

tion process. Furthermore, the language in Boys Markets does not
specifically prohibit prospective injunctions and, despite a narrow

holding, would conversely appear to encourage them. The Boys
Markets opinion is the definitive accommodation of section 4 of the
Norris-LaGuardia Act and section 301(a) of the Taft-Hartley Act;

208United States Steel Corp. v. UMW, 519 F.2d at 1245 n.17. See Norris-LaGuardia
Act, § 7(a), 29 U.S.C. § 107(a) (1976).

209519 F.2d at 1245 n.17.



612 INDIANA LAWREVIEW [Vol. 14:581

courts have correctly extended its guidance and rationale to pro-
spective situations.

Having resolved the question of the applicability of Boys
Markets to future violations, the courts had to determine if the
orders complied with the mandates of section 9 of the Norris-
LaGuardia Act210 and Rule 65(d).211 Although these two provisions ap-
pear to address the same category of defects, lack of specificity, the
former is directed against the substantive problem of overbreadth

while the latter concerns the procedural defect of vagueness.212

Section 9 of the Norris-LaGuardia Act obviously must be accom-
modated,213 although to a lesser extent than section 4 of the same
Act. However, as the Sixth Circuit has indicated, section 9 "still re-
quires a court to issue the narrowest possible injunction necessary

to effectively safeguard the plaintiff's rights." 214 The "express find-
ings of fact" requirement of section 9 of the Norris-LaGuardia Act

can be satisfied if the court expressly finds that specific violations of

the no-strike clause have occurred in the past and are likely to recur

in the future. The record should indicate the specific violations and
predictions about future violations should be reasonable.

The Fifth Circuit, in addition to its unwillingness to interpret
Boys Markets to include prospective injunctions, also held that
failure to allege a specific act in the complaint was unsupportable
under section 9 of the Norris-LaGuardia Act.215 However, if specific
acts were complained of, the Fifth Circuit may have taken a dif-
ferent view of the applicability of section 9.216 The point that gave
rise to the overbreadth concern in the other circuits was whether
the language of the order could be as broad as the arbitration agree-

ment. Only the Seventh Circuit has gone this far.217 The remaining
circuits fear that blanket injunctions may present an unacceptable

210Norris-LaGuardia Act, § 9, 29 U.S.C. § 101 (1976).
2"See note 172 supra.
212The court noted that vagueness and overbreadth are distinct concepts:

Analytically, the broadness of an injunction refers to the range of pro-

scribed activity, while vagueness refers [to] the particularity with which the

proscribed activity is described. Developments in the Law — Injunctions, 78
Harv. L. Rev. 994, 1064 (1965). "Vagueness" is a question of notice, i.e., pro-

cedural due process, and "broadness" is a matter of substantive law. See

Wright & Miller, Federal Practice & Procedure 2953 at 546-47 (1973).
Southern Ohio Coal Co. v. UMW, 551 F.2d 695, 705 n.ll (6th Cir.), cert, denied, 434
U.S. 876 (1977) (quoting United States Steel Corp. v. UMW, 519 F.2d 1236, 1246 n.19
(5th Cir. 1975)).

2,3
551 F.2d at 709.

"'Id. Accord, International Ass'n of Machinists v. Street, 367 U.S. 740 (1961).
2I5519 F.2d at 1246.

""See Drummond Co. v. District 20, UMW, 598 F.2d at 386.
2"01d Ben Coal Corp. v. Local 1487, UMW, 500 F.2d 950 (7th Cir. 1974).



1981] LABOR INJUNCTIONS 613

risk of excessive judicial entanglement.218 The issuance of an injunc-
tion, based upon the arbitration clause language of the contract,

would create a drastic shift in the economic power balance between
employers and unions. Instead of fostering arbitration, it may result
in excessive employer reliance upon contempt proceedings instead

of the arbitration process. The court should avoid this result which
is obviously counterproductive to the entire purpose of the national

policies. The procedure which safely accommodates section 9 to
these policies is for the court to make specific findings of fact on
violations that have occurred, determine if they meet the Boys
Markets criteria, identify the likelihood of their recurrence or that

of analogous violations, and limit the scope of the order to those

areas.

Attacks on prospective injunctions based on Rule 65(d) center

around the adequacy of notice that has been given to allow the party

to know in advance what actions will violate the order. They are
premised on procedural due process requirements and efforts of the

courts have been to compel compliance. The union should have fair
notice of the prohibited scope of activities and should not have to

test the parameters of the order in contempt proceedings.219 This

again raises questions concerning the feasibility of drafting an order

as broad as the arbitration clause. Often, unions may be unable to com-
ply with such an indefinite standard. Many disputes are not clearly
definable as arbitrable or nonarbitrable as evidenced by the frequency

with which this issue arises even in arbitration proceedings. A court
which limits its order to specifically identified violations with steps

that the union must take to comply, should easily meet the Rule 65(d)
requirements.220 However, the converse is not necessarily true; that
is, an order drafted in the arbitration clause language is not always

in noncompliance with Rule 65(d). If a union has an established

history of disregarding its contractual obligations, the court should

be allowed to draft an order that is sufficiently broad to meet this
contingency. This is not to advocate blanket injunctions but is a

realization of the practical difficulties that often occur in declaring

certain activities as being within a particular category. If the order

had to be overly specific, a union could attempt to circumvent it by

pointing to minute distinctions between its present act and the pro-
hibited category. Courts should be given enough flexibility to deal
with the realities of labor disputes and draft an order which

recognizes the interests of both parties as well as the national labor

policy. Thus, so long as the court describes "in reasonable detail"

2,8
See, e.g., 551 F.2d at 710.

2nSee United States Steel Corp. v. UMW, 534 F.2d at 1078.
220
Id.



614 INDIANA LAW REVIEW [Vol. 14:581

the scope of the prohibited acts, Rule 65(d) can be complied with in

the issuance of prospective injunctions.

The extent to which Rule 65(d) allows or limits broad language
was addressed in United States Steel Corp. v. UMW, 221 wherein its
was stated:

A union should not be allowed to escape injunctive
restraints merely because the range of previous violations

by its members defies categorization. The injunction "should
be broad enough to prevent evasion." Local 167 v. United

States, 291 U.S. 293, 299, 54 S.Ct. 396, 399, 78 L.Ed. 804, 810

(1934), cited with approval in May Stores Co. v. Labor Board,
326 U.S. 376, 391, n.13, 66 S.Ct. 203, 212, 90 L.Ed. 145, 157

(1945). When past violations may be reasonably categorized,
the order should do so. See CF&I, supra, 507 F.2d at 173.

When, however, the pattern of past conduct does not readily
lend itself to such treatment, I see no objection to the use of

carefully considered language broadly restraining strikes

over arbitrable grievances, especially if it can be joined with

specific language to provide effective relief. See May Stores
Co. v. Labor Board, 326 U.S. at 391, 66 S.Ct. at 212, 90 L.Ed,
at 157.

As a procedural safeguard, the union should have available the
declaratory relief process to eradicate doubtful situations.

To keep the arbitration process functioning properly, the court
should, of course, include as part of its order a requirement compel-

ling the employer to arbitrate that is as broad as the order to the

union not to strike. While only the Third and Sixth Circuits have

specifically addressed the issue,222 it is clear from the entire ra-

tionale of the accommodation process that this requirement should

be mandatory. Otherwise, the employer would have a tremendous

weapon without any compensating obligations. Employers could use
the prospective injunction to harass the union. Also, without such an

order, the employer has no incentive to arbitrate because he can

take unilateral action and indefinitely delay compliance with his con-

tractual obligation to arbitrate, so long as the union via the prospec-

tive injunction could not retaliate with a strike.

VIII. Conclusion

The injunction, a distinctly equitable remedy,223 plays an impor-
tant, sometimes outcome determinative, role in labor disputes.

22
'Id. at 1083 (Rosenn, J., concurring).

222See notes 190 & 207 supra.
223

In Truly v. Wanzer, 46 U.S. (5 How.) 141 (1847) the Court stated, "There is no

power, the exercise of which is more delicate, which requires greater caution, delibera-



1981) LABOR INJUNCTIONS 615

Whenever an injunction is issued in a labor dispute, no matter how
narrowly drafted by the court, there is a critical alteration in the

balance of power in the economic struggle between the employer
and the union. If such an injunction has prospective application, the

alteration is drastic. Nevertheless, although prospective injunctions

have social desirability as labor policy, the circuit courts, have been

acutely aware of their potential abuses. Thus, a majority of the

courts have allowed prospective injunctions, but have set stringent

guidelines to insure their proper use.

Labor disputes are complex affairs. To maintain economic
equilibrium, injunctions, particularly prospective injunctions, should

not be used to provide an easy solution. The arbitration agreement
coupled with a no-strike clause, supported by Congress and the

judiciary, has evolved as the preferred method of peaceful resolution
of labor disputes,

224
as is evidenced by the entire accommodation pro-

cess between section 4 of the Norris-LaGuardia Act and section 301(a)
of the Taft-Hartley Act. So long as courts, recognizing that labor
disputes are not of comparable simplicity, continue in the direction

of the Sixth Circut,225 the prayer of the Third Circuit 226 for a

definitive resolution by the Supreme Court, should be answered af-
firmatively in favor of prospective injunctions.

tion and sound discretion, or more dangerous in a doubtful case, than the issuing of an
injunction. It is the strong arm of equity. . . ." Id. at 142.

224
See, e.g., United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593

(1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);
United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960).

™See Southern Ohio Coal Co. v. UMW, 551 F.2d 695 (6th Cir.), cert, denied, 434
U.S. 876 (1977), wherein the court stated, "[Granting prospective injunctive relief in

appropriate cases is consistent with the accommodation reached in Boys Mkts. be-
tween the policies of the Norris-LaGuardia Act and the public policy encouraging
peaceful settlement of labor disputes through arbitration." Id. at 709.

229
In United States Steel Corp. v. UMW, 534 F.2d 1063 (3d Cir. 1976), the court

stated, "Only the Supreme Court is in position to resolve this conflict .... The issue of
injunctive relief with respect to future violations of implied no strike agreements is of
such importance that we prefer to take no step that might delay a petition for cer-
tiorari." Id. at 1085.