                            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 injunc-
tive 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 jurisdic-
tion to review an order permitting arbitration to proceed,
and ending the litigation, is secure.
  Electrical Workers Local 21 contends that AT&T Broad-
band has failed to negotiate in good faith to reach agree-
ments covering three particular bargaining units. It de-
manded arbitration under a master agreement between
AT&T Corp. (AT&T Broadband’s parent) and the Interna-
tional 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 dis-
pute 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 juris-
    diction to issue any restraining order or tempo-
    rary 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 “in-
volving 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 is-
sue 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 em-
    ployer; 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 asso-
    ciations 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 compet-
    ing 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, chang-
    ing, or seeking to arrange terms or conditions of
4                                                No. 02-1950

    employment, regardless of whether or not the dis-
    putants stand in the proximate relation of employer
    and employee.
AT&T observes that neither subsection mentions arbitra-
tion, from which it concludes that a dispute about ar-
bitrability is not a “labor dispute” and thus is outside §1.
We grant that arbitration is a dispute-resolution mecha-
nism, 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 injunc-
tion in “a case involving or growing out of” that underly-
ing “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 ar-
bitration, may arise from a labor dispute, and this con-
nection 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 prohibi-
tion 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 Norris-
LaGuardia 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 hold-
ing of AT&T Technologies, Inc. v. Communications Work-
ers, 475 U.S. 643 (1986), that, unless the parties agree
otherwise, arbitrability is a question for a judge to de-
cide. 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 enforce-
ment 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 Norris-
LaGuardia Act. The linchpin of AT&T’s argument is that
if the employer has a substantive right (here, to a judi-
cial 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 injunc-
tions. 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 unani-
mously held that the Norris-LaGuardia Act forbids in-
junctive relief against a secondary boycott, despite the
fact that the boycott violated the employer’s substan-
tive rights.
  What Congress established through the Norris-LaGuardia
Act is that a substantive right does not imply an injunc-
tive 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 prom-
ise) 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 ge-
neric labor-agreement exception to the Norris-LaGuardia
Act.
  AT&T, which wants the court to issue an anti-arbitra-
tion 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 agree-
ment 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 injunc-
tive relief otherwise available is not permissible unless
the parties have exhausted arbitral remedies. Section 8
was the principal footing of the pro-arbitration order sus-
tained 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 adjudica-
tion 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 anti-
arbitration 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 non-
judicial 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 dis-
pute, 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 pre-
arbitration 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 assis-
tance 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 struc-
ture 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 deci-
sion 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 pre-
arbitration judicial review is essential to avoid irrepara-
ble 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 injunc-
tions, 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 cus-
    tomarily 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
