Before CLARK, Chief Judge, LUMBARD and MOORE, Circuit Judges.
CLARK, Ch. J.: A. H. Bull Steamship Co. brought suit below against the defendant Union seeking declaratory and injunctive relief and damages for the defendant's alleged breach of the collective bargaining agreement between the parties. Bull then moved for a preliminary injunction restraining the Union from continuing the peaceful strike then in progress, which constituted the alleged breach of contract. The trial court heard the motion on affidavits and briefs and entered an injunctive pendente lite of substantial scope against continuance of the strike.*fn1 This appeal from the order of injunction followed.
The basic facts are not in dispute. Bull is an operator of ships engaged in interstate commerce. The Union represents unlicensed personnel aboard Bull's ships. The parties entered into a collective bargaining agreement effective October 15, 1956, which runs until September 30, 1958. The agreement provides in part that "[there] shall be no strikes, lockouts, or stoppages of work" while its provisions are in effect. On June 17, 1957, the Union sought to renegotiate certain wages.These negotiations were unsuccessful and on August 19, 1957, the Union called a strike which still continued when the trial court issued its order. The parties disagree as to the scope of the no-strike clause and whether a strike over wages constitutes a breach of the agreement. We do not decide this issue because we hold that in any event the trial court exceeded its jurisdiction in issuing the preliminary injunction.
Section 4 of the Norris-LaGuardia Act of March 23, 1932, 29 U.S.C. § 104, deprives federal courts of jurisdiction to issue injunctions which prohibit peaceful strikes in cases "involving or growing out of any labor dispute." No one controverts that this is a peaceful strike. Section 13(c) of the Act, 29 U.S.C. § 113(c), provides:
"The term 'labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee."
This case involves an impasse in renegotiation of wages. The Union maintains that the no-strike clause has no application to a strike for this purpose. Bull contends otherwise. But the basic controversy concerns wages - terms or conditions of employment - and thus, under § 13(c), this is a labor dispute.Nothing in the Act makes its provisions inapplicable where, after a labor dispute arises, one party takes action which constitutes a breach of a contract between them. It is immaterial that the strike might be a breach of the Union's duty under the collective bargaining agreement or that the controversy itself might be determined by reference to it. W. L. Mead, Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 1 Cir., 217 F.2d 6; In re Third Avenue Transit Corp., 2 Cir., 192 F.2d 971; Alcoa S.S. Co. v. McMahon, D.C.S.D.N.Y., 81 F.Supp. 541, affirmed 2 Cir., 173 F.2d 567, certiorari denied 338 U.S. 821. Hence under § 4 of the Act, if still applicable, the trial court would lack jurisdiction to issue its preliminary injunction in the present labor dispute.
So much appears to be common ground between the parties and with the court. The real issue is whether or not there has been a repeal by implication of the Norris-LaGuardia Act. The court found that § 301 of the Taft-Hartley Act of June 23, 1947, 29 U.S.C. § 185, as interpreted in Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, authorized it to issue the injunction. The question thus presented is whether or not this later statute repeals the Norris-LaGuardia Act to the extent that federal courts will now have jurisdiction to enjoin a peaceful strike which constitutes a breach of a non-strike clause in a collective bargaining agreement. As Bull itself states, "[this] Court's problem is to reconcile these two laws, in the light of the circumstances of this case and of the Supreme Court's decision of June 3, 1957 in Textile Workers Union v. Lincoln Mills, 353 U.S. 448."
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * * 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."
Textile Workers Union of America v. Lincoln Mills of Alabama, supra, 353 U.S. 448, does clearly hold that this section is more than procedural and gives substantive rights grounded in a body of federal law which in a proper case may be enforced by equitable relief. There the collective bargaining agreement between the union and the employer included both an arbitration clause and a no-strike clause. After grievance procedures had been exhausted to no avail, the union demanded that the employer arbitrate differences concerning work loads and work assignments. The employer refused, and the union brought an action under this statute in the federal district court to compel the employer to arbitrate. The district court concluded that it had jurisdiction and ordered the employer to comply with the arbitration provisions. The Court of Appeals reversed this determination and the Supreme Court reversed the Court of Appeals. The Supreme Court held that § 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 performance of promises to arbitrate grievances under collective bargaining agreements." 353 U.S. 448, 451.
But this case does not say that § 301 authorizes federal courts to issue injunctions when that remedy is clearly prohibited by the Norris-LaGuardia Act. The Court does hold, after an analysis of legislative history, to reach the conclusion just quoted, that the issuance of an order compelling arbitration was not prohibited by the Norris-LaGuardia Act. The Court reasoned that refusal to arbitrate is not protected conduct under § 4, 29 U.S.C. § 104, and is not the kind of conduct which had given rise to abuse of the power to enjoin. Indeed the Court found that § 8, 29 U.S.C. § 108, indicates a congressional policy favoring the settlement of labor disputes by arbitration. The Court next dealt with § 7, 29 U.S.C. § 107. This section, in addition to § 4, deprives federal courts of jurisdiction to issue injunctions in cases involving labor disputes unless the court makes specific findings of fact and follows prescribed procedural requirements.*fn2 Citing Judge Magruder in Local 205, United Electrical, Radio and Machine Workers of America (UE) v. General Elec. Co., 1 Cir., 233 F.2d 85, 92, affirmed General Elec. Co. v. Local 205, United Electrical, Radio and Machine Workers of America (U.E.), 353 U.S. 547, the Court found these procedures "inapposite" and concluded 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." 353 U.S. 448, 458.*fn3
In the case at bar the Union's conduct comes squarely within § 4 of the Norris-LaGuardia Act. This is a lawful and peaceful strike which Congress said a federal court may not enjoin. The Supreme Court in Lincoln Mills was concerned with a refusal to arbitrate - conduct not protected by § 4 and at odds with congressional policy. It did not involve a strike - the issue here. The ultimate question in Lincoln Mills was whether or not Congress by § 301 of the Taft-Hartley Act authorized the federal courts to compel arbitration. The question here is whether or not Congress by that same provision intended to repeal the Norris-LaGuardia Act pro tanto. This is not the question which was before the Supreme Court.*fn4
Prior to the Supreme Court's decision in Lincoln Mills both this Circuit and the First Circuit had agreed that § 301 did not impliedly repeal the Norris-LaGuardia Act. Alcoa S.S. Co. v. McMahon, supra, 2 Cir., 173 F.2d 567, certiorari denied 338 U.S. 821; W. L. Mead, Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, supra, 1 Cir., 217 F.2d 6; Local 205, United Electrical, Radio and Machine Workers of America (UE) v. General Elec. Co., supra, 1 Cir., 233 F.2d 85, affirmed General Elec. Co. v. Local 205, United Electrical, Radio and Machine Workers of America (U.E.), 353 U.S. 547. Two reasons for this conclusion were stressed. First, Congress in enacting § 301 did not expressly withdraw the restrictions of the Norris-LaGuardia Act and such withdrawal cannot be implied, particularly since in other sections of the same Act, viz., §§ 101(h), 208(b), and 302(e), 29 U.S.C. §§ 160(h), 178(b), and 186(e), Congress expressly lifted the bar of the Norris-LaGuardia Act to vest certain injunction powers in the courts when the National Labor Relations Board initiated the court proceedings. Thus, see Alcoa S.S. Co. v. McMahon, supra, D.C.S.D.N.Y., 81 F.2d 541, 543, affirmed 2 Cir., 173 F.2d 567, certiorari denied 338 U.S. 821; and see also McCarroll v. Los Angeles County District Council of Carpenters, 315 P.2d 322 (Cal. 1957). Second, it is an accepted canon of construction that repeals by implication are not favored, especially where the previous statute (the Norris-LaGuardia Act) is not stale or forgotten, but is a "significant and tremendously important piece of legislation which the Congress evidently had specifically in mind when it came to enact the Labor Management Relations Act in 1947." W. L. Mead, Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, supra, 1 Cir., 217 F.2d 6, 9.
Bull maintains that these cases are distinguishable because neither involved a no-strike clause in a collective bargaining agreement. But this does not follow. The presence of the clause might make it easier to find a breach by a strike, but it can have no effect on the problem of statutory construction. The cases cited above involved strikes which allegedly breached collective bargaining ...