
USCA1 Opinion

	




          April 28, 1994    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                     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                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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            ____________________   _____________  ____________________________        &  Axtmayer, R. Carl Cannon, Frank  B. Shuster and Constangy, Brooks &        ___________  ______________  _________________     ___________________        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-                                         -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-                                         -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-                                         -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. &  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-                                         -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                                            ____________________            &  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  & 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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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  & 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&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&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&T                                                                     ____            Technologies addresses the question whether section 7 applies            ____________                                         -12-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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 & 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-                                         -20-
