In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1950

AT&T BROADBAND, LLC, et al.,

Plaintiffs-Appellants,

v.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

and its LOCAL 21,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 C 2095—Rebecca R. Pallmeyer, Judge.

____________

ARGUED SEPTEMBER 20, 2002—DECIDED JANUARY 29, 2003

____________

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge. This appeal presents the

question whether the Norris-LaGuardia Act, 29 U.S.C.

§§ 101-15, forbids a district court to enjoin the arbitration

of a labor dispute. Four other courts of appeals have

addressed this subject. All four have held that injunctive relief is unavailable. See Tejidos de Coamo, Inc. v.

International Ladies’ Garment Workers’ Union, 22 F.3d 8

(1st Cir. 1994); Lukens Steel Co. v. United Steelworkers, 989

F.2d 668, 675-79 (3d Cir. 1993); Camping Construction

Co. v. Iron Workers, 915 F.2d 1333, 1340-50 (9th Cir.

1990); In re Marine Engineers Beneficial Ass’n, 723 F.2d
2 No. 02-1950

70 (D.C. Cir. 1983). Given Green Tree Financial Corp. v.

Randolph, 531 U.S. 79, 84-89 (2000), appellate jurisdiction to review an order permitting arbitration to proceed,

and ending the litigation, is secure.

Electrical Workers Local 21 contends that AT&T Broadband has failed to negotiate in good faith to reach agreements covering three particular bargaining units. It demanded arbitration under a master agreement between

AT&T Corp. (AT&T Broadband’s parent) and the International Brotherhood of Electrical Workers. AT&T (as we

label all of the related corporate plaintiffs to simplify

exposition) took the position that the master agreement

calls for mediation rather than arbitration when the dispute arises before a collective bargaining agreement is

in place for a particular bargaining unit. AT&T and the

union earlier had created a standing arbitral body, which

the union called on. The presiding neutral asked for the

parties’ views on whether this particular dispute comes

within the scope of the reference. The union replied that

it does; AT&T refused to participate and instead filed

this suit under §301 of the Labor-Management Relations

Act, 29 U.S.C. §185, seeking an injunction. The Union

interposed §1 of the Norris-LaGuardia Act, 29 U.S.C. §101,

which provides:

No court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving

or growing out of a labor dispute, except in a strict

conformity with the provisions of this chapter; nor

shall any such restraining order or temporary or

permanent injunction be issued contrary to the

public policy declared in this chapter.

To apply the Norris-LaGuardia Act, we have only to know

whether arbitration of a labor dispute is a matter “involving or growing out of a labor dispute”. It does not
No. 02-1950 3

require deep insight to understand that the answer is “yes.”

Thus the statute applies, and district courts may not issue injunctions.

Yet if the resolution is so straightforward, why is AT&T

digging into its pocket to pay lawyers, and why has this

question been presented to four other appellate courts? One

answer is that §§ 4 and 13 of the Act (29 U.S.C. §§ 104, 113)

may blur the clarity of §1. Section 13(a) defines “labor

dispute” this way:

A case shall be held to involve or to grow out of a

labor dispute when the case involves persons who

are engaged in the same industry, trade, craft, or

occupation; or have direct or indirect interests

therein; or who are employees of the same employer; or who are members of the same or an

affiliated organization of employers or employees;

whether such dispute is (1) between one or more

employers or associations of employers and one

or more employees or associations of employees;

(2) between one or more employers or associations

of employers and one or more employers or associations of employers; or (3) between one or more

employees or associations of employees and one

or more employees or associations of employees; or

when the case involves any conflicting or competing interests in a “labor dispute” (as defined in this

section) of “persons participating or interested”

therein (as defined in this section).

Section 13(c) adds:

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
4 No. 02-1950

employment, regardless of whether or not the disputants stand in the proximate relation of employer

and employee.

AT&T observes that neither subsection mentions arbitration, from which it concludes that a dispute about arbitrability is not a “labor dispute” and thus is outside §1.

We grant that arbitration is a dispute-resolution mechanism, not an independent labor dispute. Still, the statutory

question is whether employer and union are engaged in

a dispute “concerning terms or conditions of employment”

(and so on); if yes, then a court may not issue an injunction in “a case involving or growing out of” that underlying “labor dispute.” AT&T and the Electrical Workers are

engaged in a “labor dispute” as §13 defines that term. See

Jacksonville Bulk Terminals, Inc. v. Longshoremen, 457

U.S. 702, 712 (1982); Columbia River Packers Ass’n, Inc. v.

Hinton, 315 U.S. 143, 147 (1942). That the arbitration is

not itself a “labor dispute” does not make this suit less

one “growing out of” a labor dispute. Otherwise one might

as well observe that a strike is not a “labor dispute” (it

is not in §13’s list) and contend that it is therefore proper

to enjoin work stoppages. Yet a strike or lockout, like arbitration, may arise from a labor dispute, and this connection brings both within the scope of §1.

Section 4, for its part, contains a list of particular things

that courts are not to enjoin. Section 4(a) specifies strikes,

§4(b) covers joining labor unions, and so on. Once again

arbitration is not on the list. Once again the omission is

unimportant. Section 4 does not say that the prohibition of §1 is limited to the sorts of activities mentioned in

§4. It is designed, rather, to shout “We really mean it!” for

activities at the core of union operations. The whole NorrisLaGuardia Act is a response to judicial evasion of §20 in

the Clayton Act, 29 U.S.C. §52, which had been designed to

end the labor injunction. See United States v. Hutcheson,

312 U.S. 219 (1941); see also, e.g., Burlington Northern
No. 02-1950 5

R.R. v. Maintenance of Way Employees, 481 U.S. 429, 437-

40 (1987). Section 4 of the Norris-LaGuardia Act ensured

that the new statute would not suffer the same fate. It

would be ironic if the enactment of §4 to make doubly

sure that judges keep their noses out of labor disputes

were used to evade the broader scope of §1. See Marine

Cooks v. Panama Steamship Co., 362 U.S. 365, 366 n.2

(1960) (§4 is not the limit of the Norris-LaGuardia Act’s

scope); Marine Engineers, 723 F.2d at 80.

AT&T’s second line of argument starts from the holding of AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643 (1986), that, unless the parties agree

otherwise, arbitrability is a question for a judge to decide. AT&T reads AT&T Technologies as establishing

that this decision must precede the arbitration; and if it

has a substantive right to a judicial decision then the

Norris-LaGuardia Act must be read to accommodate that

right, the argument wraps up. This would not be the first

time that the Act has been interpreted to permit enforcement of a labor agreement; Boys Markets, Inc. v. Retail

Clerks Union, 398 U.S. 235 (1970), holds that judges may

enjoin strikes that violate collective bargaining agreements

through which unions have agreed to arbitrate rather

than strike when disagreements arise. And if injunctions

may be used to enforce contracts under Boys Markets,

why not when there is a right to a pre-arbitration decision

about arbitrability?

One response to this theme is that it proves too much

and would, if accepted, wipe out the core of the NorrisLaGuardia Act. The linchpin of AT&T’s argument is that

if the employer has a substantive right (here, to a judicial decision about arbitrability) then there must be a

remedy by way of injunction. It would be only a small step

to plug in other substantive rights. Suppose the employer

has a substantive right to be free of secondary boycotts.

If AT&T’s syllogism is appropriate, then courts must
6 No. 02-1950

have authority to enforce this right by issuing injunctions. Bye, bye, Norris-LaGuardia Act, for this was the

very way in which courts evaded §20 of the Clayton Act!

Yet in Burlington Northern the Supreme Court unanimously held that the Norris-LaGuardia Act forbids injunctive relief against a secondary boycott, despite the

fact that the boycott violated the employer’s substantive rights.

What Congress established through the Norris-LaGuardia

Act is that a substantive right does not imply an injunctive remedy. Employers have to settle for damages or

other forms of ex post review, even if they turn out to be less

effective at vindicating the underlying right. So it is

no surprise that Buffalo Forge Co. v. Steelworkers, 428

U.S. 397 (1976), limited Boys Markets to one kind of

agreement (the trade of arbitration for a no-strike promise) and added pointedly that the “driving force behind

Boys Markets was to implement the strong congressional

preference for the private dispute settlement mechanisms

agreed upon by the parties.” 428 U.S. at 407. Buffalo Forge

and Burlington Northern establish that there is no generic labor-agreement exception to the Norris-LaGuardia

Act.

AT&T, which wants the court to issue an anti-arbitration injunction, is in no position to seek shelter from the

Boys Markets principle or an extension of that approach.

See also Textile Workers v. Lincoln Mills, 353 U.S. 448

(1957) (holding that enforcement of an arbitration agreement does not offend the Norris-LaGuardia Act). If there

were any doubt, §8 of the Norris-LaGuardia Act, 29 U.S.C.

§108, resolves it by stating that even the limited injunctive relief otherwise available is not permissible unless

the parties have exhausted arbitral remedies. Section 8

was the principal footing of the pro-arbitration order sustained in Lincoln Mills. An anti-arbitration injunction,

by contrast, has no purchase in the Norris-LaGuardia Act.
No. 02-1950 7

What is more, the premise of AT&T’s position—that if

the Norris-LaGuardia Act were out of the picture it would

be entitled to injunctive relief against an arbitration—

is incorrect. Where’s the irreparable injury? If AT&T

loses in the arbitration, the union will seek to enforce its

victory; AT&T can defend on the theory that it had not

agreed to arbitrate this kind of dispute. Delay would not

cause irreparable injury, so there is no justification for

an injunction. All AT&T could lose from the delay is the

cost of presenting the arguments to the arbitrator, and

it has long been established that the expense of adjudication is not irreparable injury. See, e.g., FTC v. Standard

Oil Co., 449 U.S. 232, 244 (1980); Renegotiation Board v.

Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); Petroleum

Exploration, Inc. v. Public Service Commission, 304 U.S.

209, 222 (1938). So fundamental is this principle that

we have held it sanctionably frivolous to seek an antiarbitration injunction. See PaineWebber Inc. v. Farnam,

843 F.2d 1050 (7th Cir. 1988); Graphic Communications

Union v. Chicago Tribune Co., 779 F.2d 13, 16 (7th Cir.

1986).

Arbitration clauses reflect the parties’ preference for nonjudicial dispute resolution, which may be faster and

cheaper. These benefits are eroded, and may be lost or

even turned into net losses, if it is necessary to litigate

about arbitrability, then arbitrate the underlying dispute, and finally return to court to decide whether the

award should be enforced. People may prefer arbitration

through standing panels in order to save the costs of prearbitration wrangling. Having agreed with the Electrical

Workers on such an arrangement, AT&T cannot turn

around and demand pre-enforcement review. Its request

for an anti-arbitration injunction is more a breach of faith

with the union than it is an effort to avoid “irreparable

injury.” AT&T agreed to, and must abide by, a system that

postpones until after the arbitral decision any judicial
8 No. 02-1950

review of the question whether a particular dispute was

arbitrable.

Nothing in AT&T Technologies is to the contrary. No

one sought an anti-arbitration injunction in that case. It

began instead when the union invoked the court’s assistance to oblige a reluctant AT&T to arbitrate a dispute.

Because the relief sought was an order compelling the

other party to arbitrate, of course the district judge’s

decision preceded the arbitration; that’s what the structure of the suit entailed. John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543 (1964), was in an identical posture.

That the opinions in both of these cases say that a decision about arbitrability precedes the arbitration does not

imply that this is the only proper sequence; it was just

the right sequence for the kind of dispute that arose in

those two cases. When arbitration can proceed with only

one side’s cooperation, by contrast, the timing issue

comes to the fore, and with it the question whether prearbitration judicial review is essential to avoid irreparable injury. The answer is no, for the reasons we gave in

PaineWebber and Chicago Tribune, which means that

AT&T has no colorable argument for an extension of the

Boys Markets principle to cover anti-arbitration injunctions, as opposed to injunctions that facilitate dispute

resolution through arbitration.

Judge Boudin summed up nicely in Tejidos de Coamo, 22

F.3d at 15:

If this [curtailment of equitable relief] seems an

eccentric limitation on a useful remedy now customarily available to litigants, the short answer

is that the Norris-LaGuardia Act reflects a unique

historical experience. See Frankfurter & Greene,

The Labor Injunction (1930). Perceived judicial

abuses gave rise to severe restrictions on federal

court authority; and the restrictions, being stat-
No. 02-1950 9

utory, persist even though the climate that led to

abuses has altered. Courts have assumed a lot

of authority in recent years, but the authority to

repeal statutes still belongs to Congress.

We share this perspective and therefore join the four other

circuits that have understood the Norris-LaGuardia Act

to preclude injunctive relief against the arbitration of a

labor dispute.

AFFIRMED

RIPPLE, Circuit Judge, dissenting. For the reasons

stated by Judge Cowen in his dissenting opinion in

Lukens Steel Co. v. United Steelworkers of America, 989

F.2d 668, 680 (3d Cir. 1993) (Cowen, J., dissenting), I would

reverse the judgment of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-29-03