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March 11, 1980


The opinion of the court was delivered by: McMILLEN, District Judge.


The Corrected First Amended Complaint (hereinafter referred to as the complaint) seeks relief pursuant to §§ 301 and 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, 187. Defendant has filed a motion to dismiss the complaint, pursuant to Rules 12(b)(1) and (b)(6). Rule 12(b)(1) is invoked because defendant takes the position that certain of plaintiff's theories fall within the exclusive jurisdiction of the National Labor Relations Board.

Although defendant has filed no materials beyond the pleadings in support of this motion, it relies on certain facts and factual conclusions inferred from the temporary restraining order proceedings in this case. These matters beyond the pleadings cannot be considered on a motion to dismiss, since the factual record on many points is not closed. A plaintiff is not required to prove its case on the merits at a preliminary hearing. E. g., Progress Development Corporation v. Mitchell, 286 F.2d 222, pp. 233-34 (7th Cir. 1961). For the purposes of this motion, therefore, the allegations of the complaint are taken as true.

Plaintiff attached the collective bargaining agreement between itself and defendant to the complaint. In paragraph 9 it alleges that "Article VI of the Contract also contains a mandatory arbitration clause which requires that all grievances caused by a violation of the parties' agreement be submitted to the joint arbitration committee and investigated and resolved for at least seven (7) days before any stoppage of work can occur" (emphasis added). While plaintiff concludes that Article VI constitutes a mandatory arbitration clause, plaintiff's allegation limits the scope of that clause to grievances flowing from a violation of the agreement.

In Count II, paragraph 35, plaintiff alleges that the purpose of defendant's conduct and of this work stoppage is to force plaintiff to cease doing business with the general contractor, or in the alternative to force the general contractor to stop doing business with any non-union contractors on the job site. To remedy these conditions, plaintiff offers a variety of legal theories and prayers for relief.

I. The availability of injunctive relief under § 301.

Paragraphs 10 through 18 of the first amended complaint contain plaintiff's allegations in support of injunctive relief. The exact nature of the prayer is unclear; however, it is apparent that plaintiff seeks injunctive relief against the strike pending arbitration, pursuant to § 301. Defendant contends that such injunctive relief is barred by the Norris-LaGuardia Act, 29 U.S.C. § 101, et seq.

The leading case in this area is Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In part IV of that decision, the Court held that some accommodation is necessary between the seemingly absolute terms of the Norris-LaGuardia Act and the policy considerations underlying § 301(a). But in part V of that decision, the Court emphasized that its holding was a narrow one: "We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure." 398 U.S. at 253, 90 S.Ct. at 1594. The Court further emphasized that injunctive relief is not appropriate as a matter of course in every case of a strike "over an arbitrable grievance." 398 U.S. at 254, 90 S.Ct. at 1594. The Court quoted from the Sinclair dissent, in overruling that decision, as follows:

  When a strike is sought to be enjoined because it is over a
  grievance which both parties are contractually bound to
  arbitrate, the District Court may issue no injunction until it
  first holds that the contract does have that effect; and the
  employer should be ordered to arbitrate, as a condition of his
  obtaining an injunction against the strike.

Ibid. Boys Markets established at least two threshold requirements to avoid the prohibition of the Norris-LaGuardia Act: (1) that the collective bargaining contract contain a mandatory grievance adjustment or arbitration procedure, and (2) that the parties are contractually bound to arbitrate the dispute giving rise to the strike.

This interpretation of Boys Markets was confirmed in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). 428 U.S. at 407, 96 S.Ct. at 3147:

  The driving force behind Boys Markets was to implement the
  strong Congressional preference for the private dispute
  settlement mechanisms agreed upon by the parties. Only to that
  extent was it held necessary to accommodate § 4 of the
  Norris-LaGuardia Act to § 301 of the Labor-Management Relations
  Act and to lift the former's ban against the issuance of
  injunctions in labor disputes. Striking over an arbitrable
  dispute would interfere with and frustrate the arbitral
  processes by which the parties had chosen to settle a dispute.
  The Court in Buffalo Forge held that Boys Markets was not controlling there, because "the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract." Ibid. That strike was in sympathy to a primary strike and had ...

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