The opinion of the court was delivered by: McMILLEN, District Judge.
DECISION ON MOTION TO DISMISS
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.
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 ...