United States Court of Appeals

For the First Circuit

Nos. 04-1933

04-2047

OTIS ELEVATOR COMPANY,

Plaintiff-Appellant/Cross-Appellee,

v.

INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL 4;

MICHAEL LANGER, Individually and as Business Manager;

KEVIN MCGETTIGAN, Individually and as Business Representative;

and STEVE MORSE, Individually and as Business Representative,

Defendants-Appellees/Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Timothy E. Copeland, Jr., with whom Downs Rachllin Martin

PLLC, Peter B. Robb, Shari S. Sobel, Morgan, Brown & Joy, LLP and

Nathan L. Kaitz were on brief, for appellant/cross-appellee.

Paul F. Kelly, with whom Stephanie R. Pratt and Segal, Roitman

& Coleman were on brief, for appellees/cross-appellants.

May 11, 2005
1 "[C]ourts of appeal shall have jurisdiction of appeals from

. . . [i]nterlocutory orders of the district courts of the United

States . . . granting, continuing, modifying, refusing or

dissolving injunctions."

2 Also appearing as Defendants-Appellees/Cross-Appellants are

Michael Langer, Kevin McGettigan, and Steve Morse in their

individual and official capacities as officials of Local 4. The

term "Local 4" used herein includes the individually named

defendants in addition to the local union.

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TORRUELLA, Circuit Judge. This case is before us on

interlocutory cross-appeals pursuant to 28 U.S.C. § 1292(a)(1),1 as

a result of the district court's grant of a preliminary injunction

under the aegis of Boys Markets, Inc. v. Retail Clerks Union, Local

770, 398 U.S. 235 (1970) (finding jurisdiction to enjoin a labor

organization from engaging in a work stoppage over a dispute

subject to arbitration under the governing collective bargaining

agreement).

I. Background

Plaintiff-Appellant/Cross-Appellee Otis Elevator Company

("Otis") constructs and services elevators throughout the United

States, including in Massachusetts, New Hampshire and Maine. Otis

employs elevator mechanics, helpers and apprentices, all of whom

are represented for collective bargaining purposes by the

International Union of Elevator Constructors ("IUEC") on behalf of

its locals, including Defendant-Appellee/Cross-Appellant IUEC Local

4 ("Local 4").2
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A. The Collective Bargaining Agreement

On July 9, 2002, Otis and IUEC, on behalf of Local 4 and

other local unions, entered into a five-year collective bargaining

agreement ("the Agreement") that covers all of Otis' elevator

employees in Massachusetts, New Hampshire and Maine. The Agreement

contains three provisions central to the present appeals.

The first is Article XIV ("Strikes and Lockouts"), which

prohibits strikes or lockouts during the life of the Agreement,

provided the parties comply with the terms therein. The second is

Article IV, paragraph 11, which deals with the processing of

grievances related to Article IV ("Work Jurisdiction") and Article

IV(A) ("Systems, Modular, and Industrial Structures"), which

specify the work that the parties have agreed will be performed by

IUEC members under the Agreement. Article IV, paragraph 11(a)

requires that such disputes "be settled in accordance with the

grievance procedures in Article XV." Paragraph 11(b) stipulates

that while work disputes are "being processed [Otis], where

possible, shall assign the employees work other than the work in

dispute." However, "[w]here the work has progressed to a point

where it is not possible to perform work other than the work in

dispute, then the employees shall perform the disputed work pending

final resolution as provided herein." Art. IV, para. 11(b).

Finally, in Article XV ("Arbitration"), the parties

unambiguously agreed that "[a]ny difference or dispute regarding
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the application and construction of the Agreement" constitutes a

"grievance" which "shall be resolved under the [procedures

established therein]." Art. XV, para. 1. Article XV's grievance

procedures constitute an elaborate, integrated and well-detailed

process intended by the parties to provide a modicum of industrial

justice in the workplace, while at the same time allowing for

stability in the collective bargaining relationship.

"Any employee, local union, or [Otis]" has the right to

initiate a grievance, first by presenting an oral complaint before

a designated representative of Otis (or the IUEC, when Otis is the

grievant) within ten working days of the grievance being known.

Id. para. 2. If, after this initial interchange, the grievance

remains unresolved, the aggrieved party has ten working days to

formalize the complaint in a written form provided for such

purposes, thus moving the grievance procedure to the next step.

Id. para. 3.

At this point the matter is taken up by higher-level Otis

and IUEC representatives, who must meet to again attempt to reach

a mutually satisfactory solution of the grievance. Id. At this

meeting, the responding party is obligated to answer the written

complaint. Id. Within ten working days thereafter, Otis or the

IUEC, as the case may be, may indicate its dissatisfaction with the

opposing party's answer by notifying that party of its intention to
3 The NAC meets once every calendar quarter. On the employer's

side, the NAC is composed of Otis Director of Labor Relations (or

his designee) and two other Otis representatives, while the IUEC is

represented by its General President (or his designee) and two

other union representatives. Art. XV, para. 4.

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appeal from the decision. Id. Any grievance disposition not

appealed to the next step is final and binding on all parties. Id.

If appealed, the grievance then moves to the next step in

the process, in which the matter is placed on the agenda of a

scheduled meeting of the National Arbitration Committee ("NAC").3

Id. para. 4. At the NAC meeting, the responding party may make a

written proposal for the disposition of the grievance. Id. If

accepted by the opposing party, the solution becomes a final and

binding disposition of the grievance on all parties. Id. If not

accepted, the aggrieved side may notify the other in writing of its

desire to seek arbitration of the grievance. Id.

The parties are then required to attempt to agree upon an

impartial arbitrator. Id. para. 6. If unable to do so, they must

jointly request arbitration before a member of the National Academy

of Arbitrators, pursuant to the Labor Arbitration Rules and

Procedures of the American Arbitration Association. Id. The

decision of the arbitrator is final and binding on all parties.

Id.

Although this is the mandatory procedure for the

resolution of most grievances, Article XV, paragraph 9 also

establishes an expedited arbitration procedure in the case of
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grievances involving the discharge of an employee. Within this

limited subset, the parties have agreed to a fast-track procedure

for discharge grievances not satisfactorily resolved after the

matter is grieved in the formal written step. Id. para. 9. At

this point, the controversy is directly referred for a discussion

between Otis' Director of Labor Relations and the IUEC's General

President, and if the matter is not resolved, either party may ask

for "immediate, expedited impartial arbitration." Id.

B. The Concerted Activities

The present appeals arise from a work stoppage directed

by Local 4 against Otis that resulted from a dispute over the use

of cranes to hoist and put in place elevator plunger/cylinder

units. Local 4 claims that this practice is prohibited by the

collective bargaining contract, which, it alleges, only allows use

of a crane to hoist "heavy material" -- a term that includes

plunger/cylinder units -- outside of building structures. It is

Local 4's position that, inside buildings, these units must be

hoisted manually. Otis responds that the use of cranes to move the

plunger/cylinder units in the manner to which Local 4 is now

objecting has been Otis' long-standing practice, a practice which

it alleges was acquiesced in by Local 4 until recently. In fact,

it claims, during the prior year alone, plunger/cylinder units for

50 to 60 elevators were installed with cranes. Neither side filed
4 Local 4 had, however, previously filed grievances concerning

disputes over the use of cranes for plunger/cylinder installation.

On both prior occasions, Otis rejected the grievances, and Local 4

did not appeal to the next step of the Article XV procedure, thus

rendering Otis' objection binding. See Letters of May 5 and May 7,

2004 from Dorothy L. Mynahan, Otis Branch Manager, to Michael

Langer, IUEC.

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a grievance,4 although Otis claims it offered to submit the dispute

to expedited arbitration, a proposal that apparently was not acted

upon by the IUEC. In fact, Local 4 officials have allegedly

indicated that they will not file a grievance.

As is the case with many labor disputes, there is

considerably more background to this controversy than meets the

eye. Throughout the spring of 2004, there arose a series of work

controversies between Otis and Local 4 in various sites throughout

Massachusetts, New Hampshire and Maine, all of which "involved

Otis' use of labor saving devices." Brief of Appellee/CrossAppellant at 9. In April 2004, Otis unsuccessfully sought

injunctive relief in the U.S. District Court for the District of

Maine against Local 4 over alleged work stoppage activities related

to disputes about safety precautions for union members working in

elevator hoist ways. Otis Elevator Co. v. Local 4, Int'l Union of

Elevator Constructors, No. 04-00074 (D. Me. Apr. 14, 2004)

(transcript of conference in chambers) (finding no cause for

granting equitable relief because the employees in question had

already returned to work). Two days later, Otis again sought

injunctive relief, this time for alleged work stoppage activities
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related to the installation of prefabricated electronic components

and pre-drilled, pre-tapped doors. Otis Elevator Co. v. Local 4,

Int'l Union of Elevator Constructors, No. 04-00074 (D. Me. Apr. 16,

2004) (transcript of conference in chambers). The court again

denied a temporary restraining order, as it appeared that other

work could be continued while the dispute was addressed through the

Agreement's grievance procedure. Id. at 23-25.

Thereafter, commencing on May 13, 2004, Otis elevator

employees at the Bentley College work site in Waltham,

Massachusetts reported being instructed by Local 4 officials to

refuse to work, purportedly over the installation of certain pretapped elevator doors. The stoppage spread to other work sites in

the Boston area, with an additional eighteen elevator employees

eventually joining the refusal to work. On May 14, 2004, Otis

sought injunctive relief in the U.S. District Court for the

District of Massachusetts, as a result of which the court issued an

order on May 19, 2004 requiring arbitration of the dispute and

enjoining the work stoppage "pending resolution of all issues

deemed by the arbitrator to be related to the dispute over the

installation of the elevator car doors." Otis Elevator Co. v.

Local 4, Int'l Union of Elevator Constructors, No. 04-10966 (D.

Mass. May 19, 2004) (Order to Arbitrate and Restraining Order).

On May 26, 2004, as a result of instructions given by

Local 4 officials to its members, Otis was unable to proceed with
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the scheduled installation of plunger/cylinder units at four

Boston-area job sites. Otis' operations were seriously disrupted,

as were those of other contractors at the building sites. For

example, at one job site, the contractor was forced to leave a hole

open at the top of a completed building frame to permit

installation of the plunger/cylinder unit at a later date.

Finishing work in the building could not proceed until the top of

the building was enclosed. According to Otis representatives, the

work at the job sites in question had progressed to such a point

that, until the plunger/cylinder units were installed, no other

work was available to be assigned to the elevator mechanics. Thus,

Otis claimed, two union members were sent home without pay for lack

of work. Local 4 saw the matter differently.

By May 27, 2004, 90 of the 110 Local 4 members Otis

employed in the Boston area, including all employees assigned to

service elevators, were reporting "sick" or absent "for personal

reasons." Otis was thus unable to respond to service calls

involving elevator malfunctions, including two such calls from a

hospital.

C. The Boys Markets Injunction

Otis proceeded to file for injunctive relief in the

District of Massachusetts under Boys Markets, Inc. v. Retail Clerks

Union, Local 770, 398 U.S. 235 (1970). After a brief hearing on

May 27, 2004, attended by attorneys for both parties and recessed
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temporarily to allow the parties to submit proposed orders, the

district judge signed Local 4's draft order, finding in relevant

part: (1) that the parties had a collective bargaining agreement,

which contained a no-strike clause and a grievance and arbitration

provision applicable to the existing plunger/cylinder dispute; (2)

that the parties were claiming mutual breaches of the collective

bargaining agreement; and (3) that ordinary principles of equity

warranted the granting of relief. Otis Elevator Co. v. Local 4,

Int'l Union of Elevator Constructors, No. 04-11108 (D. Mass.

Jun. 3, 2004) (Temporary Restraining Order); see also Boys Markets,

Inc., 398 U.S. at 254 (adopting conditions for injunctive relief).

The order, issued through June 7, 2004: (1) enjoined Local 4, and

all in concert therewith, from striking or otherwise interfering

with Otis' normal operations; (2) required the parties to arbitrate

the plunger/cylinder dispute "pursuant to the Expedited Labor

Arbitration Procedures of the American Arbitration Association";

and (3) restrained Otis from "imposing discipline on Local 4

members over contract disputes between Otis and Local 4, and from

applying to the Court for further equitable relief unless it has

first offered to Local 4 the opportunity to arbitrate the

underlying dispute pursuant to the Expedited Labor Arbitration

Procedures of the American Arbitration Association."

The court failed, however, to address Otis' objections to

those parts of the order imposing expedited extra-contractual
5 Because we ultimately reverse those portions of the injunction

directed against Otis, we need not consider its additional claim

that the district court committed error in not granting an

evidentiary hearing before issuing the preliminary injunction. See

29 U.S.C. § 107 (requiring hearing prior to issuance of an

injunction in labor disputes). As to the portion of the

preliminary injunction that we affirm -- the prohibition on further

work stoppages by Local 4 -- no evidentiary hearing was necessary

because the facts supporting that relief are not in dispute. See

Kansas City S. Transp. Co., Inc. v. Teamsters Local Union No. 41,

126 F.3d 1059, 1067-68 (8th Cir. 1997) (holding that if 29 U.S.C.

§ 107 applies to Boys Markets injunctions, it does not require an

evidentiary hearing when injunction is based on undisputed facts).

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arbitration of the plunger/cylinder dispute, and prohibiting

disciplinary action against employees or the seeking of additional

equitable relief, absent prior extra-contractual arbitration of

said actions. Otis' protestations were again of no avail when the

district court, on June 17, 2004, converted the temporary

restraining order into a preliminary injunction containing

substantially the same conditions.

These two issues constitute the principal questions

raised by Otis' appeal.5 The issues raised by Local 4's crossappeal are better viewed as arguments in support of the district

court's order than as objections to the same. Thus, our

consideration of Local 4's cross-appeal is subsumed within, and

will be addressed as part of, Otis' appeal.

II. Standard of Review

A district court may grant a Boys Markets injunction

provided the petitioner establishes that: (1) a collective

bargaining agreement between the parties provides for mandatory
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binding arbitration; (2) the dispute giving rise to the concerted

action which is sought to be enjoined is subject to binding

arbitration under that agreement; and (3) ordinary principles of

equity warrant injunctive relief. Nat'l Elevator Indus. v. Int'l

Union of Elevator Constructors, 776 F.2d 374, 376-77 (1st Cir.

1985).

The issuance of a Boys Markets injunction is reviewed, as

in the case of other injunctions, for abuse of discretion.

See Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 387-88

(1974); see also SEC v. Fife, 311 F.3d 1, 7 (1st Cir. 2002).

Questions of law are reviewed de novo, and those of fact are

subjected to a clear error standard. Fife, 311 F.3d at 7. There

is an abuse of discretion by the trial court if an error of law is

committed, or if it "considers improper criteria, ignores criteria

that deserve significant weight, or [if it] gauges only the

appropriate criteria but makes a clear error of judgment in

assaying them." Rosario-Urdaz v. Rivera-Hernández, 350 F.3d 219,

221 (1st Cir. 2003).

With this framework of review to guide us, we turn to the

actions of the district court in these appeals.
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III. Analysis

A. The Quid Pro Quo

Today, it is a fundamental principle of industrial

relations in the United States that labor disputes are settled

through voluntary arbitration rather than labor/management strife.

Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 458

(1957) (identifying "congressional policy toward settlement of

labor disputes by arbitration"). As background to this principle,

we note that the use of injunctions in labor disputes has evolved

through various stages, commencing with an early period during

which the organization of labor for collective bargaining purposes

was considered a criminal enterprise, and the indiscriminate use of

the labor injunction to stop these activities was the order of the

day. Cf. In re Debs, 158 U.S. 564, 586 (1895) (upholding President

Cleveland's power to obtain an injunction against the Pullman

Strike despite the absence of any statutory authority, on the

grounds that "the wrongs complained of [were] such as affect[ed]

the public at large"). In response to a period of considerable

labor instability and unrest, Congress enacted the anti-injunction

provisions of the Norris-LaGuardia Act, 29 U.S.C. § 101-115, which

continues in effect to this day. Nevertheless, changing times and

the growing strength of the unions eventually led to a relaxation

of these stringent standards via Section 301(a) of the LaborManagement Relations Act, 29 U.S.C. § 185(a) (providing federal
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courts jurisdiction to hear disputes arising from violation of

collective bargaining agreements), as interpreted in Boys Markets,

398 U.S. at 250-54, to permit labor injunctions in limited

circumstances.

This path has not been without bumps and bruises. All

sides to labor strife have had to give some quid in exchange for

some quo. To achieve a measure of labor peace and uninterrupted

business operations, employers have had to surrender some of their

traditional management prerogatives, subjecting many of these socalled rights to scrutiny and judgment before private, quasijudicial fora in the form of arbitral tribunals. See Lincoln

Mills, 353 U.S. at 455 ("Plainly the agreement to arbitrate

grievance disputes is the quid pro quo for an agreement not to

strike."). The use of this voluntary system of dispute resolution

is so prevalent today, not only in a labor relations setting, but

in commerce and industry generally, as to hardly require further

comment.

One cardinal principle, however, needs to be kept in mind

when considering the issues before us. Notwithstanding our

comprehensive system of labor relations legislation in the United

States -- which, among other things, establishes the right of

employees to organize and negotiate with employers for collective

bargaining purposes, 29 U.S.C. § 157 -- with few exceptions, the

contents of collective bargaining agreements are left to the
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discretion and negotiating strength of the parties, see id. § 158

(d). That is, it is ultimately up to the parties to a collective

bargaining agreement to determine what working conditions and

similar matters they wish to agree upon, and make part of, their

contractual relationship. This includes which method, if any, they

will use to resolve disputes that arise during the course of their

collective bargaining agreement. While there is no legal

requirement that employers and unions include a grievance and

arbitration procedure in their collective bargaining agreement, it

seems that, in practice, almost all such agreements today do

include a grievance and arbitration procedure. However, this is

just one of several items subject to mandatory negotiation, but

which theoretically can be rejected by the parties from becoming

part of the collective bargaining contract if they fail, in good

faith, to agree on said provision. The point is that it is up to

the negotiating parties whether or not to agree to have a formal

method for settling their labor/management differences, and it is

up to them, and only them, to determine what shall be the

procedure. See id. §§ 158(a)(5), (b)(3), (d).

Once there is agreement, however, the chosen procedure is

binding on the parties and subject to judicial enforcement. Id. at

§ 185. Compliance with agreed-upon grievance procedures is highly

desirable from a public policy standpoint, to such a degree that if

a collective bargaining contract has a binding grievance and
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arbitration clause, Boys Markets relief is available even without

the existence of a specific no-strike clause in the contract.

Gateway Coal Co., 414 U.S. at 381; see also Boys Markets, 398 U.S.

at 248 ("[A] no-strike obligation, express or implied, is the quid

pro quo for an undertaking by the employer to submit grievance

disputes to . . . arbitration.") (emphasis added). Once a court

determines that a dispute between the parties is covered by a

binding grievance and arbitration agreement between them, the court

should enforce the arbitration provisions of that agreement.

Lincoln Mills, 353 U.S. at 455 (stating that the Labor Relations

Management Act "expresses a federal policy that federal courts

should enforce [collective bargaining] agreements on behalf of or

against labor organizations and that industrial peace can best be

obtained only in that way"); Int'l Detective Serv., Inc. v. Int'l

Bhd. of Teamsters, Local 251, 614 F.2d 29, 32 (1st Cir. 1980) ("The

Supreme Court has consistently emphasized and promoted federal

policy which encourages peaceful settlement of labor disputes

through compelling arbitration under collective bargaining

agreements.").

B. The Injunction

In the instant case, the district court reached the

essentially uncontested conclusion that a work stoppage was being

promoted by Local 4 against Otis over the use of cranes to place

plunger/cylinder units, a dispute subject to the grievance and
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arbitration procedures detailed in Article XV of the Agreement.

Both parties had agreed to use those procedures for resolving their

disputes. Otis indicated its willingness to submit the dispute to

the agreed process, but, for whatever reason, Local 4 chose not to

avail itself of that process and instead promoted a concerted work

stoppage in violation of the no-strike clause in Article XIV of the

Agreement. The district court correctly enjoined the work

stoppage, and rightly ordered the parties to submit the

plunger/cylinder dispute to arbitration. It should have stopped

there.

Unfortunately, the district court went further, and in

doing so exceeded its discretion by requiring that the parties

submit to an arbitration regime different than what was

contractually bargained for. For example, Otis points out that the

Expedited Labor Arbitration Procedures of the American Arbitration

Association, unlike the arbitration procedures provided for in

Article XV of the Agreement, do not permit the parties to choose

the arbitrator and explicitly prohibit the filing of post-hearing

briefs and the preparation of a stenographic record of the

proceedings. The district court's abrogation of the regime

contractually bargained for was inappropriate. Only the procedures

of the Agreement, voluntarily agreed upon in good faith by the
6 We note that the Supreme Court approved an order, which did not

preempt any previously agreed-upon procedure, that was issued to

eliminate a potentially unsafe working condition pending

arbitration. Gateway Coal Co., 414 U.S. 368 (approving court

ordered suspension, pending arbitration, of foreman whom union

believed to pose a safety risk). No such order is at issue in the

instant case. Moreover, we express no view at this time on what

limited measures to order expedition of existing grievance

procedures, if any, lie within a court's equitable authority, nor

on what circumstances justify their use. See Hanna Min. Co. v.

United Steelworkers, 464 F.2d 565, 569 (8th Cir. 1972). The

procedure ordered here diverged from that agreed upon by the

parties in more than just the time requirements.

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parties, could be enforced by the court.6 It was beyond the

district court's power to go further under the circumstances, and,

in doing so, it contravened the policies promoted by Boys Markets,

398 U.S. at 248, and Lincoln Mills, 353 U.S. at 455. The equitable

powers of a court are not a warrant for reforming the conditions of

a collective bargaining agreement.

The district court's intrusion into the disciplinary

authority of Otis, restraining it from taking action against

employees engaged in strike activity in violation of the no-strike

clause, is also an abuse of discretion. An employee who engages in

such conduct engages in unprotected activity and as such may be

subject to discipline. See Liberty Mut. Ins. Co. v. NLRB, 592 F.2d

595, 604-05 (1st Cir. 1979) (upholding employer's right to

discipline employee engaged in activities not protected by the

National Labor Relations Act, including "activities . . . in breach

of contract"); see also NLRB v. Sands Mfg. Co., 306 U.S. 332, 344

(1939). The employee may, of course, challenge such an accusation
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by use of the contract's grievance and arbitration procedure, but

the district court exceeded its authority in preempting the normal

and agreed upon process for dealing with such matters.

The district court's last imposition upon Otis, barring

it from requesting further equitable relief from the court unless

Otis first extends an offer to Local 4 to arbitrate the dispute

pursuant to a procedure other than the one outlined in the

Agreement, is on particularly shaky ground. A federal court's

ability to restrict a litigant's access to the courts by issuing an

injunction prohibiting any further filing, although not unheard of,

can only be justified "in extreme circumstances involving

groundless encroachment upon the limited time and resources of the

court and other parties." Castro v. United States, 775 F.2d 399,

408 (1st Cir. 1985). The district court's cryptic orders give no

explanation in support of this unusual directive, nor can we find

any on the record unless we consider Otis' two prior requests for

relief, previously described, as the sub silentio basis for its

action. But "litigiousness alone will not support an injunction

against a plaintiff." Pavilonis v. King, 626 F.2d 1075, 1079 (1st

Cir. 1980). Otis' filings pale in comparison with those rare

instances in which limitation of access to the courts has been

justified. See, e.g., Castro, 775 F.2d at 409 (upholding

injunction against further filings against employer for nonrenewal

because multiple actions filed were intended only to harass,
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contained virtually identical allegations, and were personally

insulting to defendant and its counsel).

Considering the above, we affirm that part of the

preliminary injunction which orders Local 4 to cease and desist

from engaging in or promoting concerted activities against Otis, or

in any way interfering with its normal operations. All other parts

of the preliminary injunction issued on June 17, 2004 are reversed,

and the matter is remanded for the district court to modify the

preliminary injunction to indicate that any grievance by Local 4

concerning the use of a crane to hoist and place a plunger/cylinder

unit must be processed as indicated in Article XV of the Agreement.

It is so ordered. Costs are taxed against Local 4.