Fairchild, Cummings and Stevens, Circuit Judges.
The district court enjoined a strike in order to preserve its own jurisdiction to resolve an underlying dispute between parties to a collective bargaining agreement. To decide whether the district court followed a permissible procedure, we need not reach the merits of the underlying dispute. Nevertheless, an understanding of the nature of that dispute is relevant.
The parties have bargained on a multi- employer multi-union basis for many years. Plaintiff is an association composed of numerous contractors engaged in the building and construction industry, and defendant's membership comprises various local unions. Effective as of April 1, 1970, one three-year agreement was succeeded by another. The transition gave rise to a relatively narrow dispute which mushroomed into this litigation.
The underlying dispute is over the wage scale applicable to certain work performed during the three-month period between April 1, 1970, and July 1, 1970, in connection with highway construction contracts which had been previously negotiated. Plaintiff contends that the wage rates are governed by Article XXIII, section 2, paragraph (c), of the 1967-70 agreement.*fn1 The union contends that the elimination of that paragraph in the 1970-73 agreement was specifically intended to make all wage increases effective as of April 1, 1970. Plaintiff relies primarily on the language of the two written instruments; defendant stresses the intent of the parties as evidenced by their negotiations.
The negotiations were initiated by a union letter written in September, 1969, advising that its proposals for a new contract would be submitted shortly. Among the union's proposed changes was a demand that paragraph (c) of Article XXIII be eliminated and that all negotiated wage increases should become effective on April 1, 1970.*fn2
The negotiating teams agreed upon the substantial terms of the new contract on about May 7, 1970; after ratification by the union membership, the agreement was executed on May 27, 1970. Article IV described the new wage schedule effective on April 1, 1970, and paragraph (c) of Article XXIII relating to work already under contract was omitted, as the union had requested. Apparently construing the new agreement as covering work in progress on April 1, 1970, the union immediately requested that the new wage rates be paid on all such work. The employers took the position that the contract change related only to the transition that would occur three years in the future, and that the old contract still governed the work in question.
When the dispute arose on May 27, 1970, it related to some work that had already been performed (i.e., since April 1, 1970) and to some that was not yet completed. Some contractors paid the new rates, but others did not. The union therefore initiated a number of grievances against the contractors who refused to put the new rates into effect prior to July 1 or to make any retroactive payment for work performed since April 1, 1970. On July 2, 1970, at a meeting of the joint grievance committee, a union motion to allow the claims and an association motion to submit the cases to arbitration both failed by a tie vote. The parties were deadlocked.
The grievance procedures contained in the 1967-70 and 1970-73 contracts were identical. Neither contract provides for compulsory arbitration. The parties covered the deadlock contingency by the following provision:
"Deadlocked cases shall be submitted to arbitration if a majority of the Joint Committee determine to submit such matter to an arbitrator for decision. Otherwise, either party shall be permitted all economic recourse."
Following the deadlock, the union proceeded in accordance with this provision. On July 2, 1970, it either struck, or threatened to strike, the contractors who were parties to the deadlocked grievances. No strike activity was initiated before the grievance procedure had been exhausted or against any contractor not a party to a grievance.
On July 9, 1970, plaintiff invoked the district court's jurisdiction under § 301 of the Labor-Management Relations Act.*fn3 At that time the dispute related to a liquidated amount that either was or was not payable on account of work that had been completed. The complaint prayed for a declaratory judgment determining that the rates specified in the expired contract were applicable. It was alleged that the seasonal nature of the construction business would make it economically impossible for plaintiff's members to withstand a strike, and, therefore, unless enjoined, defendant would coerce plaintiff's members both into releasing their right to invoke the court's jurisdiction and into acceding to the union's improper demands. To avoid the risk that the strike would therefore divest the court of its § 301 jurisdiction, and to protect the plaintiff's members from irreparable injury, a motion for a temporary restraining order was filed. The court granted the motion and, after an evidentiary hearing, entered a preliminary injunction.
The union appeals pursuant to 28 U.S.C. § 1292(a)(1),*fn4 contending that the district court disregarded the plain meaning of § 4 of the Norris-LaGuardia Act*fn5 and the teaching of Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583. Plaintiff responds by arguing that the controversy is not a "labor dispute" within the statute because it concerned completed rather than on- going work, and that Boys Markets authorizes courts to ...