April 28, 1994    UNITED STATES COURT OF APPEALS
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 93-1762

                TEJIDOS DE COAMO, INC., ETC.,

                     Plaintiff, Appellee,

                              v.

    INTERNATIONAL LADIES' GARMENT WORKERS' UNION, ET AL.,

                   Defendants, Appellants.

                                        

                         ERRATA SHEET

   The  opinion  of this  Court issued  on  April 25,  1994, is
amended as follows:

   On page 6,  footnote 3,  line 4, replace  "(7th Cir.  1984).
See" with "(7th Cir. 1984); see."
                             

   On page 13, line 14, add a comma after the word "Board."

   On page  13, line  14, add  the word  "the"  after the  word
"and."

   On  page  14,  line   17,  replace  "Further,  having"  with
"Having." 

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1762

                TEJIDOS DE COAMO, INC., ETC.,

                     Plaintiff, Appellee,

                              v.

    INTERNATIONAL LADIES' GARMENT WORKERS' UNION, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen C. Cerezo, U.S. District Judge]
                                                    

                                         

                            Before

                   Torruella, Circuit Judge,
                                           

                Coffin, Senior Circuit Judge,
                                            

                  and Boudin, Circuit Judge.
                                           

                                         

Ira  Jay  Katz with  whom Rosa  Garcia  Badillo, Nicolas  Delgado,
                                                                 
Reinaldo Perez-Ramirez, and Jose E. Carreras-Rovira were on  brief for
                                               
appellants.
Vicente J. Antonetti,  Howard Pravda, Goldman, Antonetti,  Cordova
                                                                  
&amp;  Axtmayer, R. Carl Cannon, Frank  B. Shuster and Constangy, Brooks &amp;
                                                                  
Smith were on brief for appellee.
 

                                         

                        April 25, 1994
                                         

     BOUDIN, Circuit Judge.  On January 12, 1993, Teijidos de
                          

Coamo, Inc. ("the Company") filed this suit in district court

against the International Ladies' Garment Workers' Union  and

one  of  its  locals   (collectively,  "the  Unions").    The

complaint, premised  on section 301 of  the Taft-Hartley Act,

29 U.S.C.     185,  sought  a declaration  that  no  contract

existed  between the Company and  the Unions; and the Company

also  requested  a stay  of pending  arbitration proceedings.

The district  court granted  a stay  pendente  lite, and  the
                                                   

Unions appealed.  We  vacate the stay and remand  for further

proceedings.

                              I.

     Well before the  current law suit,  the Company and  the

Unions  were parties  to  a  collective bargaining  agreement

covering  the  Company's  knit,  cut, and  sew  employees  at

Barranquitas, Puerto Rico.  That contract expired on February

29, 1992.  Thereafter, on April 17, 1992, the parties entered

into a  "summary of agreement" looking toward a new contract.

It is enough  for present  purposes to say  that the  Company

believes  that no effective contract was adopted at that time

or thereafter;  the Unions, by  contrast, take the  view that

(based on past practice  and the summary of agreement)  a new

contract  did  go into  effect on  or  after April  17, 1992,

retroactive to February 1, 1992, and is currently in force.

                             -2-

     On November 5,  1992, the Unions requested  arbitration,

before arbitrator  David  Helfeld, of  a  dispute  concerning

access   for   union   representatives   to   the   Company's

Barranquitas mill.   The Company agreed;  its explanation for

agreeing is  that the contract  that expired on  February 29,

1992, had provided for  arbitration of disputes arising under

that  agreement and that the access dispute dated back to the

period before the contract expired.  The arbitrator scheduled

a hearing for December 7, 1992.

     On or about November  30, 1992, the Unions  learned that

some  of the  Company's  employees desired  to decertify  the

Unions as the representative  of the Barranquitas workers and

were preparing to petition the National Labor Relations Board

for  a new  election.   In early  December 1992  there was  a

strike and certain employees  were disciplined by the Company

for  what it said was strike and picket-line misconduct.  The

Unions then  sought arbitration before  arbitrator Helfeld of

these disciplinary disputes.  The Company objected that there

was  no contract  and thus  no basis  for arbitration  of new

disputes arising after February 29, 1992.

     The arbitrator held a hearing  on December 30, 1992, and

advised the parties  that he would  determine whether he  had

authority to  proceed.   The Company  then filed  the present

lawsuit on January 12, 1993; the complaint sought, as already

noted, a judicial declaration  that no contract existed after

                             -3-

February  29,  1992, a  determination  that  would strip  the

arbitrator of  power at  least as to  disputes arising  after

that date.    The Company also sought a  judicial stay of the

arbitration while the contract  issue was being determined by

the court.

     On January 20, 1993, a magistrate judge denied a stay of

the  arbitration  proceedings.     On January  27,  1993, the

arbitrator  issued  a   decision  finding  that  a   contract

currently  existed between  the Company  and the Unions.   He

proposed to schedule additional hearings on the merits of the

disputes.    The  Company  appealed  the  magistrate  judge's

decision and  also asked the  district court to  stay further

arbitration proceedings  pending the  court's decision  as to

whether the arbitrator had authority to proceed.  

     On  June 21,  1993,  the district  court  issued a  stay

pendente lite of arbitration as to grievances alleged to have
             

arisen  after February 29, 1992.   The Unions  then filed the

present  appeal  to  this court.    So far  as  we  have been

advised, the district court has not yet determined the merits

of the dispute  and we  are concerned only  with the  Unions'

claim  that   interim  relief--reflected   in  the   stay  of

arbitration--was improperly granted.

                             II.

     On this appeal, the  first question presented is whether

we  have  jurisdiction  to  review the  stay  of  arbitration

                             -4-

granted  by the district court as  either a final order or an

appealable interlocutory injunction.  The Company  has raised

this issue by  motion to  dismiss the appeal.   Clearly,  the

district court's stay is not a final disposition of the case.

But  we  agree  with the  Unions  that  it  is an  appealable

interlocutory injunction.

     The governing statute, 28  U.S.C.   1292(a)(1), provides

for  immediate  appeals of  interlocutory orders  of district

courts "granting . . . [or]  refusing . . . injunctions."  An

order staying an arbitration proceedings is in substance, and

often  in form,  a  directive to  the  parties to  cease  the

arbitration.  It  is thus  injunctive in character,  A. &amp;  E.
                                                             

Plastik Pak  Co. v. Monsanto Co., 396 F.2d 710, 713 (9th Cir.
                                

1968), and one might  think that there could be  little doubt

that such an order was immediately appealable.  

     The  doubts,  such as  they  are, stem  from  two facts.

First, several  circuits, including this one,  have held that

an order  refusing to stay  an arbitration proceeding  is not

immediately  appealable  under   28  U.S.C.      1292(a)(1).1

Second,  in a series of decisions beginning with one by Judge

Friendly in  the Lummus  case,2 the  Second Circuit  has gone
                       

                    

     1E.g., New England Power Co. v. Asiatic Petroleum Corp.,
                                                            
456 F.2d 183, 185 (1st Cir. 1972); Stateside Machinery Co. v.
                                                          
Alperin, 526 F.2d 480, 482-84 (3d Cir. 1975).
       

     2Lummus Co.  v. Commonwealth Oil  Ref. Co., 297  F.2d 80
                                               
(2d Cir. 1961),  cert. denied,  368 U.S. 986  (1962).   Later
                             
Second Circuit cases  are listed in 16 Wright, Miller, Cooper

                             -5-

further  and  held  that  an  order  staying  an  arbitration

proceedings  also  is  not  immediately  appealable under  28

U.S.C.    1292.  The Company argues that the Second Circuit's

approach is  supported  by  considerations  of  symmetry  and

policy.

     The Second Circuit appears to stand alone.  At least six

other  circuits  treat an  order  staying  arbitration as  an

injunction  that  is   immediately  appealable.3    Our   own

decision in Societe Generale v. Raytheon  European Management
                                                             

and  Systems  Co., 643  F.2d 863  (1st Cir.  1981), tenuously
                 

distinguished by the  Company, leans in the direction  of the

majority rule.   A 1988 amendment to  the Federal Arbitration

Act,  now  9  U.S.C.    16(a)(2)--although  perhaps  formally

inapplicable  to this case--expresses  a congressional policy

in  favor  of immediate  appeal  of  "an interlocutory  order

granting . . .  an injunction against an arbitration  that is

subject to this title."4

                    

&amp;  Gressman, Federal  Practice and  Procedure    3923, at  60
                                             
(1977). 

     3The circuits  are  the Fifth,  Sixth, Seventh,  Eighth,
Ninth, Tenth, Eleventh,  and the District of Columbia.  E.g.,
                                                            
Timberlake v. Oppenheimer  &amp; Co., Inc., 729  F.2d 515, 518-19
                                      
(7th Cir. 1984); see 16 Wright, supra,   3923 (1977 and  1994
                                     
Supp.). 

     4The  arbitration  title   broadly  covers   arbitration
clauses  in  maritime  agreements  or  agreements  evidencing
transactions involving interstate commerce, 9 U.S.C.   2, but
it  excludes "contracts of employment" from its scope.  Id.  
                                                           
1; see Paperworkers Co. v. Misco, 484 U.S. 29, 40 n.9 (1987).
                                

                             -6-

     Judge  Friendly's  views   are  never   lightly  to   be

disregarded.   However, his  main concern in  Lummus was with
                                                    

"the  baneful effect"  of  permitting appeals  from "order[s]

refusing  a stay  of arbitration."   297 F.2d  at 86.   As he

explained,  immediate   appeals   from  such   orders   would

compromise   the  speedy,   informal  disposition   at  which

arbitration  agreements  aim.    Id.    Judge  Friendly  then
                                   

concluded  that,  as  a  matter  of  symmetry, "if  an  order

refusing a stay" is deemed not to be  an injunction, then "an

order granting such  a stay"  also cannot  be so  classified.

Id.  
   

     Courts since Lummas have  been willing to entertain just
                        

such  a   distinction  between   orders  granting   stays  of

arbitration and orders denying them.  Perhaps the best way to

explain this  outcome is to  say that both  orders constitute

injunctions   but  that   the  policy   favoring  arbitration

precludes an  immediate appeal  where the district  court has

refused a stay.    New England Power Co.,  supra, 456 F.2d at
                                                

186.  After all,  treating procedure as a special  concern of

the  courts,  judges  have  not hesitated  to  embroider  the

Judicial Code  with other judge-made rules  on appealability.

E.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
                                               

(1949).    

     Accordingly we  believe that an order  declining to stay

an arbitration is an injunction but for policy reasons is not

                             -7-

immediately   reviewable  by   appeal,  although   of  course

fundamental  objections to the  arbitration are preserved for

later judicial review  if an award is made.   By contrast, an

order  staying   arbitration  is   an   injunction  that   is

immediately  appealable under  28 U.S.C.     1292(a)(1), even

where  section 16  of  the Federal  Arbitration Act  does not

apply  to the particular order.  We thus have jurisdiction to

review the district court's stay order in this case, and turn

now to  the question whether the district court had authority

to grant such a stay.

                             III.

     The Unions claim  that the stay granted  by the district

court was an injunction issued in violation of the  stringent

requirements  of section  7 of  the Norris-LaGuardia  Act, 29

U.S.C.   107.   In the  alternative, the Union says  that the

stay was unjustified even  under the less stringent equitable

standards  that govern  ordinary  injunctions.   For  reasons

already  indicated  we  agree  that  the  stay  comprised  an

injunction.    The  next,  and more  difficult,  question  is

whether section 7 supplies the yardstick.

     Section  7 is one of a set of interlocking provisions of

the Norris-LaGuardia Act designed to curb the use of  federal

court injunctions  in cases  "involving or  growing out  of a

                             -8-

labor  dispute."5   Under  section  7, no  injunction  may be

issued  in such a  case except after  an evidentiary hearing,

specified  findings by  the  court, and  certain other  steps

including  a bond.   The  required findings  include findings

that absent an injunction "substantial and irreparable injury

to  complainant's  property  will  follow"  and  that  public

officers  "are  unable  or   unwilling  to  furnish  adequate

protection."  Id.
                 

     The threshold  question, where section 7  is invoked, is

whether the case derives  from a "labor dispute,"  a critical

phrase that  provides  the outer  boundary  for much  of  the

Norris-LaGuardia Act.  On  the face of the matter,  a dispute

between  an employer  and its  unions involving  arbitration,

plant access, discipline of  employees, and the existence vel
                                                             

non  of a  collective  bargaining agreement  does comprise  a
   

labor dispute,  taking that phrase literally.   The pertinent

definitions in  the  statute are  broad, see  section 13,  29
                                            

                    

     5Section 1 of the statute  says that federal courts have
no  jurisdiction to  issue  temporary  restraining orders  or
injunctions in such cases  except in "strict conformity" with
the statute; section  4 prohibits  any temporary  restraining
order or  injunction against certain acts  (e.g., refusing to
                                                
work) regardless  of  circumstances; and  section  7  imposes
severe conditions on the grant of injunctive relief  where it
is not  barred outright by section 4.  29 U.S.C.    101, 104,
107.

                             -9-

U.S.C.   113, and  have been broadly construed by  the courts

including the Supreme Court.6  

     While the Supreme Court has been unwilling to narrow the

definition of  "labor dispute,"  it  has carved  out a  quite

important set  of exceptions  to the Norris-LaGuardia  Act in

relation to  arbitration.   Following the  Taft-Hartley Act's

creation  of contract  suits under  section 301,  the Supreme

Court upheld an injunction requiring an employer to arbitrate

a dispute, as  the employer  and union had  agreed.   Textile
                                                             

Workers Union v. Lincoln Mills, 353 U.S. 448 (1957).  What is
                              

pertinent  here is  not  the decision's  famous holding  that

federal law governs  such labor contracts; it  is the further

conclusion that section 7 did not apply to the injunction:

     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.

Id. at 458-59 (footnote omitted).
   

     Thereafter, in  Boys  Markets,  Inc.  v.  Retail  Clerks
                                                             

Union,  398 U.S.  235 (1970),  the Court  took the  even more
     

extreme  step  of approving  a  federal  court injunction  to

enjoin  a strike  that  the union  was  conducting despite  a

contract promising to arbitrate  and to refrain from strikes.

                    

     6Burlington  Northern R.R. v. Brotherhood of Maintenance
                                                             
of Way Employees, 481  U.S. 429, 441-42 (1987); International
                                                             
Ass'n of Machinists v. Eastern Air Lines, 826 F.2d 1141, 1145
                                        
(1st Cir. 1987).

                             -10-

Section  7  aside,  this  injunction required  the  Court  to

override section 4's flat prohibition on  federal injunctions

against strikes.   29  U.S.C.    104.   Nevertheless, Justice

Brennan declared that "the unavailability of equitable relief

in the  arbitration context" would frustrate Congress' policy

"favoring the voluntary establishment  of a mechanism for the

peaceful  resolution of labor disputes . .  . ."  398 U.S. at

253.  

     The twin themes in  these cases are the desirability  of

enforcing   labor   contracts   and   the   desirability   of

arbitration.  At least where these objectives coincide, as in

Lincoln  Mills and Boys Markets, we are told that the Norris-
                               

LaGuardia  Act's "seemingly  absolute terms"  can be  made to

yield to "the subsequently enacted provisions of   301(a) . .

. and the purposes of arbitration."  Boys Markets, supra, 398
                                                        

U.S. at 249-50.  We do not think that in this case injunctive

relief  can  be  justified  on either  ground--to  enforce  a

contract or support arbitration--let alone both.

     It  requires  no  argument  to  show that  the  stay  of

arbitration  granted in  this case  is  not a  step fostering

arbitration.   Nor can the stay fairly be described as one to

enforce  a  collective bargaining  agreement.   The Company's
       

position,  after all, is that  there is no  such agreement at

all.  The Company is seeking not to enforce a contract but to

obtain  a judicial determination that none exists.  This is a

                             -11-

permissible aim but it  is rather far from  the circumstances

of Lincoln Mills and Boys Market.
                                

     The Company's  argument for  bypassing section 7  is not

without some force.  It points out that whatever the strength

of  the policy  favoring arbitration  of labor  disputes, the

obligation  to  arbitrate  remains a  creature  of  contract.

United Steelworkers of  America v. Warrior  &amp; Gulf Nav.  Co.,
                                                            

363 U.S. 574, 582 (1960).    Thus, there is no  obligation to

arbitrate if  the parties  did not agree  to do  so.  Id.   A
                                                             

fortiori there is no  obligation to arbitrate if  the parties
        

did  not  agree to  anything,  as  the  Company claims  here.

Indeed, in AT&amp;T Technologies, Inc. v. Communications Workers,
                                                            

475  U.S. 643  (1986), the  Supreme Court  held that  a court

cannot  order arbitration  without  a  judicial finding  that

there is an agreement providing for it.  

     But AT&amp;T Technologies, although heavily stressed  by the
                          

Company,  does  not  directly  govern  our  case.   Here  the

arbitration clause invoked by  the Unions does not require  a

court order:   an  arbitrator being already  designated under

the alleged  contract--that is,  the prior contract  that the

Unions claim  to have  been extended--the Unions  could begin

the process without cooperation from the Company or aid  from

the  courts.  It is the  Company that has taken the offensive

and  sought to  preempt  the arbitration.    Nothing in  AT&amp;T
                                                             

Technologies addresses the question whether section 7 applies
            

                             -12-

to  injunctive  relief  when  an employer  seeks  to  preempt

arbitration.

     Taking  a very  broad  view, one  could  argue that  the

Lincoln Mills policy of  issuing injunctions to enforce labor
             

contracts should entail an  equal willingness to help parties

avoid  spurious claims that a contract exists.  It might also

be argued  that, despite the Norris-LaGuardia  Act's sweeping

language,  the  primary  concerns  that  it  had  with  labor

injunctions involved conduct such as lawful strikes, peaceful

picketing and union organizing which are very remote from the

conduct--a  disputed  arbitration  proceeding--sought  to  be

stayed in this case.  These are not frivolous arguments.

      On  the  other  hand,   the  judicial  virtues  include

respecting  statutory language,  and section  7 seems  on its

face  to  apply to  our  case.   The  Lincoln Mills  and Boys
                                                             

Markets  cases  are  distinguishable  because  they  involved
       

affirmative enforcement of collective bargaining contracts in

support of arbitration.   Also, what law can  be found in the

circuits  may lean slightly in favor of the view that section

7 does apply here:  the Ninth Circuit has so held, as did the

Third (though by  a two-to-one vote); and  the Second Circuit

cases  that look  in the opposite  direction do  not directly

discuss our issue.7

                    

     7Compare Camping Constr. Co. v. District Council of Iron
                                                             
Workers,  915 F.2d 1333 (9th Cir. 1990) (no stay), and Lukens
                                                             
Steel Co. v. United Steelworkers of America, 989 F.2d 668 (3d
                                           

                             -13-

     On  balance, we are disposed to hold that section 7 does

govern a suit to enjoin a labor arbitration--unless and until

the Supreme Court says otherwise.  Carving out new exceptions

to the Norris-LaGuardia Act,  or markedly extending old ones,

is primarily a matter for the Supreme Court.  We think such a

step is entirely possible; but we do  not think it so certain

that we should anticipate  it.  Modern labor law,  after all,

is  largely a construct of Congress, the Labor Board, and the

Supreme Court.  The edifice does not need another architect.

                             IV.

     To say  that section  7 applies  is not  the end  of the

matter.  The central findings  and procedures required for an

injunction under section 7 differ from those required for  an

ordinary  injunction,8 but only by degree and in detail.  The

most important findings required by and peculiar to section 7

are that "unlawful acts" be threatened, that "substantial and

irreparable injury  to  complainant's property"  will  follow

absent an injunction, and  that "public officers" "are unable

                    

Cir.  1993) (same  by a  divided court),  with  Diamond Glass
                                                             
Corp.  v. Glass  Warehouse Workers  and Paint  Handlers Local
                                                             
Union 206, 682 F.2d 301 (2d Cir.  1982) (arbitration enjoined
         
without discussing section 7).

     8The  almost  universal  considerations  in  granting  a
preliminary injunction are a  (1) a likelihood of  success on
the  merits, (2) irreparable injury to  the moving party, (3)
outweighing harm  to the  opponent, and (4)  compatibility of
the injunction with the public interest.

                             -14-

or  unwilling  to   furnish  adequate   protection"  to   the

property.9  

      Based on  these requirements, especially  the reference

to public  officers, a  decent  argument could  be made  that

section 7 precludes any injunctive  relief in a labor dispute

except where essential to prevent damage to physical property

caused by violent acts.  That reading, however, goes slightly

beyond the  precise  words of  the statute.   Further,  there

would  be some tension  between such a view  of section 7 and

the Supreme Court's willingness  to uphold injunctions in aid

of contractually  promised  arbitration (Lincoln  Mills)  and
                                                       

even against peaceful strikes (Boys Markets).  
                                           

     Having given the term  "labor disputes" a broad reading,

we see good  reason to  preserve at least  the potential  for

injunctive  relief  where  unlawful  (but  non-violent)  acts

threaten to  cause  "substantial and  irreparable injury"  to

some  property-like interest (other  than physical security).

There is even legislative history in the Norris-LaGuardia Act

to  the  effect  that  Congress  did  not  mean  to  preclude

injunctive  relief against "unlawful acts or acts of fraud or
                                                             

                    

     9Section 7  also requires  findings that the  balance of
harms as to each element of the injunction be in favor of the
complainant and  that complainant lack an  adequate remedy at
law;  but these are  requirements that normally  apply to any
injunction.

                             -15-

violence."10    If  the  balance  of  harms  and  irreparable

injury requirements are taken seriously, little danger exists

of promiscuous injunctions under section 7.

     This  danger   is   further   reduced   by   two   other

considerations.  First,  no matter what threats  or harms are

presented, section 4--except as limited by the Supreme court-

-creates  an unqualified  "no injunction"  zone for  the core

conduct  of  striking, organizing  in unions,  and picketing.

Second,  where  the  conduct  falls outside  that  zone,  the

substantive  findings required  by  section 7  are backed  by

procedural  requirements  that go  beyond  those of  ordinary

injunctions  (e.g., an  evidentiary  hearing and  a bond  for
                  

costs and attorney's fees).

     In this case, we  do not think that either  the findings

or the  procedural requirements of section  7 were satisfied.

The district court may have assimilated a stay of arbitration

to  a stay of  a phase of  its own proceedings,  for which no

findings of any  kind would  be required.   But despite  some

similarities,  the stay  of arbitration  is a  coercive order

directed not at the  court's own proceedings but at  the out-

of-court activities  of parties before  the court.   That, in

fact,  is why the stay  is an injunction  appealable under 28

U.S.C.   1292(a).

                    

     10S. Rep.  No.  163,  72d  Cong., 1st  Sess.  11  (1932)
(emphasis added); see Grace Co. v. Williams, 96 F.2d 478, 481
                                            
(8th Cir. 1938), recounting the legislative history.

                             -16-

     Here,   starting  with  procedure,  the  district  court

apparently omitted  the  requirement that  no  injunction  be

granted except  "after hearing the testimony  of witnesses in

open  court  (with the  opportunity  for cross-examination),"

section 7;  nor were there  separate formal findings  of fact

covering  the  issues  for  which  section  7  requires  such

findings;11 nor does it  appear that bond was filed  to cover

damages  including  attorney's   fees,  as  section  7   also

requires.  There may be  cases where one or another of  these

procedural  requirements   is  waived  or   its  omission  is

manifestly harmless;  but the  lack  of substantive  findings

cannot be so easily ignored.

     Turning  to  substance,  we  do  not  think  that  it is

apparent how the lack of an injunction threatened the Company

with substantial and irreparable injury.  In this  court, the

only claim made  by the Company under  this head is  that the

arbitration  proceedings  would be  used  by  the Unions  "as

campaign propaganda  in a  decertification  election."   This

assertion is not explained  in the brief, and it  is scarcely

                    

     11Section 7 requires five findings.   The first four are
that  unlawful  acts  are threatened,  that  substantial  and
irreparable injury  will follow, that the balance  of harm on
each  element  of relief  favors  the  complainant, and  that
complainant  has  no  adequate  remedy at  law.    The  fifth
finding,  that public  officers  are unable  or unwilling  to
furnish protection,  is (as  we read the  statute) irrelevant
where  the harm is not  of a kind  that the police ordinarily
prevent.

                             -17-

self-evident that the arbitration proceedings  would or would

even be likely to alter the election results.  

     If the concern is with  relief that the arbitrator might

order,  the short  answer  is that  the  award is  not  self-

executing.    A  valid  objection to  jurisdiction  would  be

presented  to and decided by  the court before  the award was

implemented.   As for any  propaganda benefit accruing to the

Unions from  the  existence of  the arbitration  or even  the

arbitrator's  findings,  the  Company  is  no  less  free  to

publicize its own  claim that the  arbitration is a  nullity,

pointing to  its declaratory  judgment suit as  evidence that

the challenge is a serious one.  

     In its district court papers the Company argued that  it

needed a  stay to forestall  a hopeless predicament:   either

participate in the arbitration "and risk waiving its right to

judicial   determination  of   the   issue   of   substantive

arbitrability" or decline to participate and be  bound by the

award if the arbitrator  is later held to have  jurisdiction.

Not surprisingly,  no authority was cited  for the suggestion

that  the   Company  would   waive  an   explicitly  asserted

jurisdictional  objection by  defending on  the merits.   The

suggestion is mistaken.   E.g., IAM  Lodge 1777 v.  Garsteel,
                                                             

Inc., 900 F.2d 1005, 1008-10 (9th Cir.), cert. denied, 111 S.
                                                     

Ct. 143 (1990).  

                             -18-

     It is true  that participating would  cause one form  of

loss, namely, the  time and expense of litigation  before the

arbitrator.  But courts have ordinarily not deemed litigation

expense to be  substantial and irreparable  injury warranting

an  injunction, Renegotiation  Board v.  Bannercraft Clothing
                                                             

Co., 415 U.S. 1, 24 (1974), USM Corp. v. GKN Fasteners, Ltd.,
                                                            

574 F.2d 17, 20 (1st Cir. 1978), and perhaps in deference  to

such  decisions the Company does not argue to the contrary in

this court.   If the Bannercraft generalization may have some
                                

exceptions, nothing here makes this case appear exceptional.

     In sum, so far as appears  from this record, there is no

substantial and  irreparable injury--or at least  injury of a

kind  that  courts  recognize  in injunction  cases.    Under

ordinary standards for injunctive relief,  irreparable injury

is nominally required but courts are often generous where the

complainant's  claim   on  the  merits  is   very  strong  or

unanswerable.   Under section  7, however,  there is  no such

generosity.   Absent a supported finding  of "substantial and

irreparable injury," the stay of arbitration cannot stand.

                              V.

     This case is not over.  The Company's complaint sought a

declaration that there was no collective bargaining agreement

in force after  February 29,  1992, and so  no obligation  to

arbitrate disputes arising after that date.  Although section

301 actions are ordinarily  brought to enforce contracts, the

                             -19-

Declaratory Judgment  Act, 28 U.S.C.     2201-02, permits the

declaration of rights about  which a real controversy exists,

and  the  Unions  have  not  disputed  the  district  court's

authority to grant  declaratory relief.   Nor does section  7

pose any barrier to  such a declaration; it is  directed only

against injunctions.  See,  e.g., Wilkes-Barre Publishing Co.
                                                            

v.  Newspaper Guild of Wilkes-Barr,  Local 120, 647 F.2d 372,
                                              

379 (3d Cir. 1981), cert. denied, 454 U.S. 1143 (1982).
                                

     If this 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 &amp; Greene,  The Labor Injunction
                                                             

(1930).    Perceived  judicial  abuses gave  rise  to  severe

restrictions   on   federal   court   authority;    and   the

restrictions,  being  statutory,   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.

     The stay of arbitration granted by the district court is

vacated and the  case is remanded for further  proceedings on
                                 

the request for declaratory relief.

                             -20-
