author: GARTH, Circuit Judge.

text:
    PAAC as a Commission and Individually et al. v. Frank L. RIZZO, Mayor of the City of Philadelphia and as an individual, et al. D. C. Civil No. 73-957) CITY OF PHILADELPHIA v. Melvin L. HARDY and Isaiah Crippins. (D. C. Civil No. 73-990)
    No. 73-1914.
    United States Court of Appeals, Third Circuit.
    Argued April 2, 1974.
    Decided June 14, 1974.

      Donald E. Matusow, S. Gerald Litvin, Philadelphia, Pa., for appellants PAAC and Melvin Hardy.
    John Mattioni, Deputy City Solicitor, Martin Weinberg, City Solicitor, Philadelphia, Pa., for appellees.
    Before VAN DUSEN, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

We are called upon to resolve a conflict between the Mayor of Philadelphia, the Honorable Frank Rizzo, and the Philadelphia Anti-Poverty Action Commission (“PAAC”). For reasons other than those articulated by the district court, we conclude that it was proper for the court to refuse the relief sought against Mayor Rizzo.

Melvin Hardy (a former Executive Director of PAAC), Isaiah Crippins (a former General Counsel of PAAC), and PAAC commenced this action in the District Court for the Eastern District of Pennsylvania on April 27, 1973. Their complaint includes a variety of claims concerning the alleged interference of Mayor Rizzo with the functioning of the anti-poverty agency. By far the most prominent of these claims is the charge that the Mayor violated federal law by removing Melvin Hardy as the Executive Director of PAAC and by refusing to renew Mr. Crippins’ contract as General Counsel. Less precise, but still present in the complaint, are charges that: (1) the Mayor illegally blocked appointments to PAAC made by its Executive Director; (2) the Mayor appointed persons to the PAAC Board illegally; (3) the Mayor convened PAAC meetings illegally; and (4) the Mayor defamed each of the plaintiffs. The complaint seeks declaratory and injunc-tive relief, as well as compensatory and punitive damages.

Four days after the above action was commenced, the City of Philadelphia instituted an action in state court against Hardy and Crippins, seeking to restrain the defendants from exercising their duties as Executive Director and General Counsel of PAAC. On May 3, 1973, Melvin Hardy and Isaiah Crippins removed the City’s action to the District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1441. Perceiving a close similarity between the two actions, the district court then consolidated the original action brought by PAAC, Hardy and Crippins (District Court No. 73-957) with the City’s removed action (District Court No. 73-990). On May 10, 1973, the court conducted a one day hearing on the merits of the consolidated case.

After the hearing, the City moved for dismissal of No. 73-957 and for remand of No. 73-990 on the grounds of lack of subject matter jurisdiction. These motions were denied sub silentio by the district court. In a memorandum opinion, the district court found that:

(1) subject matter jurisdiction exists (pursuant to 28 U.S.C. § 1831) for the district court to consider all matters raised in the consolidated actions; and
(2) federal law permits the Mayor to remove PAAC’s Executive Director and to refuse to renew the contract of PAAC’s General Counsel.

With regard to the peripheral matters raised in PAAC’s original complaint, the Court stated:

We have not considered the myriad of other allegations and issues raised in the pleadings for the following reasons: (a) no evidence was presented at the hearing in connection therewith; (b) these matters were not briefed by the parties; and (e) in view of the issues decided herein, the other allegations and issues raised in the pleadings now appear moot.

Judgment was thereupon entered in favor of the defendants in No. 73-957 and in favor of the plaintiff in No. 73-990. PAAC and Hardy appeal pursuant to 28 U.S.C. § 1291.

I. Background

To understand the district court’s primary conclusions, it is necessary to trace briefly the history of relevant anti-poverty legislation. As part of the Economic Opportunity Act of 1964, Congress established a Community Action Program. This Program encouraged the development of local agencies to provide multiple services to impoverished communities. Originally, the Program envisioned as a goal the “maximum feasible” participation of the poor in the development of Community Action Programs. By 1967, however, Congress recognized that the Community Action Program could not succeed without the support of locally elected officials. See 1967 U.S. Code, Congressional & Administrative News at 2448-49 (excerpted from House Report No. 866, 90th Cong., 1st Sess. 1967).

On December 23, 1967, Congress enacted the Green Amendments to the Economic Opportunity Act of 1964. These Amendments gave flexibility to the Community Action Program, permitting localities a choice in the type of “community action agency” that would qualify for federal funding. Under the Green Amendments, the agency may either be a “State or political subdivision of a State (having elected or duly appointed governing officials), or a combination of such political subdivisions” or it may be a “public or private non-profit agency or organization which has been designated by a State or such a political subdivision or combination of such subdivisions.” 42 U.S.C. § 2790(a). The former administers its program through a community action board, while the latter administers its program through a governing board. 42 U.S.C. § 2791(a).

The Economic Opportunity Act is somewhat imprecise with regard to the distinctions between the two types of boards. A governing board has the power to “appoint persons to senior staff positions, to determine major personnel, fiscal, and program policies, to approve overall program plans and priorities, and to assure compliance with conditions of and approve proposals for financial assistance under this subchapter.” 42 U.S.C. § 2791(e). The parallel powers of a community action board, on the other hand, are not made explicit by the statute. The Office of Economic Opportunity, however, has explained that in jurisdictions with community action boards, the “governing officials” will exercise the same powers that governing boards exercise, unless the officials delegate these powers to the community action boards. OEO Community Action Program Memorandum No. 81 at 5.

In determining whether PAAC or Mayor Rizzo had the authority to remove Hardy, the district court focused upon the fact that the appointive powers of community action agencies differ, depending upon whether the agency is administered by a governing board (lodging the appointive powers in the board itself) or by a community action board (lodging the appointive powers in governing officials). The court thus posed as determinative the issue as to whether PAAC “is a political subdivision of the City of Philadelphia administered by a ‘community action board’ or whether it is a public or private non-private agency administered by a ‘governing board.’ ”

To resolve this issue, the district court examined the history of the Philadelphia Anti-Poverty Action Commission. As the court found, PAAC was created on February 22, 1965 by the Executive Order of former Mayor James H. Tate. According to the uncontra-dicted testimony of appellant’s witnesses, PAAC was (from 1965 to 1967) the only community action institution in the country that existed solely by virtue of an Executive Order. To mollify demands from Washington, a blue ribbon panel was formed to develop permanent legislation. As a result of the panel’s efforts, the Philadelphia City Council adopted Bill No. 2846 on December 27, 1967. This Ordinance, appearing as Title 21-800 of the Philadelphia Code, provides, in pertinent part, that:

(1) Creation of Commission. The Philadelphia Anti-Poverty Action Commission is hereby created. It shall be composed of an uneven number of members, not less than 31 nor more than 45 in number. All of the members of the Commission shall serve without compensation. The initial number of members of the Commission shall be 38 members and there shall be no change in the number of members of the Commission at any time unless two-thirds of the members appointed to the Board approve the change in membership. The members of the Commission shall select a chairman from among themselves. The term for which any member of the Commission shall serve shall be for a period of one year and until their successors are appointed, and qualify.
(2) Appointment of Members. The Members of the Commission shall be appointed by the Mayor. [The ordinance then recommends that the May- or appoint specific officials as members.] * * * * * *
(3) The Mayor shall select an Executive Director from among a panel of 3 persons whose names are submitted to the Mayor by the Commission. The Mayor shall be at liberty to request the Commission to present to the Mayor additional panels of 3 persons from which he may select an Executive Director. The request of the Mayor for additional panels shall not preclude him from selecting a name from among the prior panels. * * * * * *

(5) Powers and Duties. The Commission shall have the following powers and duties:

(a) To conduct, administer and coordinate Federal anti-poverty programs in Philadelphia;
(b) To mobilize the resources of the City of Philadelphia and its residents to combat poverty through a community action program;
(c) To mobilize and utilize resources, public and private, in an attack on poverty;
(d) To provide services, assistance and other activities of sufficient scope and size to give promise of progress through elimination of poverty or a cause or causes of poverty through developing employment opportunities, improving human performance, motivation, productivity or bettering conditions under which people live, learn and work;
(e) To carry out a community action program which is developed, conducted and administered with the maximum feasible participation of residents of the areas and members of the groups served;
(f) To cooperate with federal, state and local governments and their agencies and representatives in every way possible in the conduct, administration and coordination of a community action program ;
(g) To act as an agency of the City of Philadelphia for any and all of the purposes set forth herein; and
(h) To receive, expend and account for funds, property and services supplied by federal, state or local governments, or by others, and in every way possible to further the purposes of the Commission.

The district court concluded from the Executive Order and City Ordinance that “PAAC is an agency of the City, administered by a ‘community action board,’ rather than a non-profit organization administered by a ‘governing board.’ ” Having found that PAAC is an agency of the City, the court considered itself bound by federal law to hold that the appointive power lies with the governing official, Mayor Rizzo. Looking to state law, the court noted that the removal power tracks the appointive power. Accordingly, the court held that it was proper for the Mayor to remove Melvin Hardy from office.

II. Jurisdiction

Before evaluating the reasoning of the district court (as outlined above), we find it necessary to discuss, as a threshold issue, the subject matter jurisdiction of the district court. We shall analyze the court’s conclusion that jurisdiction vested (to consider all claims raised herein) by treating separately (1) the claim that Mayor Rizzo could not remove Hardy, (2) the peripheral claims raised by PAAC in 73-957, and (3) the removed claims.

A. No. 73-957: The Primary Claim

We agree with the district court that jurisdiction exists under 28 U.S.C. § 1331 to consider Hardy’s claim that he was illegally discharged.

To confer original jurisdiction upon a district court pursuant to 28 U. S.C. § 1331, the complainant must assert a claim founded directly upon federal law. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Cabana Management, Inc. v. Hyatt Corp., 441 F.2d 862, 864 (5th Cir. 1971). The federal right asserted “must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Gully v. First National Bank, supra, 299 U.S. at 112. Furthermore, the claim must be essential to plaintiff’s cause of action, Warrington Sewer Co. v. Tracy, 463 F.2d 771, 772 (3d Cir. 1972) (per curiam), and must raise a substantial federal question, Hagans v. Lavine, 415 U.S. 528, 534-542, 94 S.Ct. 1372, 39 L.Ed.2d 577, (1974). For the claim to be substantial, it need not be one that will ultimately succeed on the merits. See, e. g. Lewis v. American Federation of State, County, and Municipal Employees, AFL-CIO, 407 F.2d 1185, 1188, n.3 (3d Cir.), cert. denied, 396 U.S. 866, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969). Provided that the federal claim is material (and not raised solely for the purposes of obtaining jurisdiction) and is not rendered frivolous by prior case law, a federal question will exist for purposes of 28 U. S.C. § 1331. See Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

In the action filed as No. 73-957, PAAC and Hardy argue that the Economic Opportunity Act (42 U.S.C. § 2701 et seq.) and regulations promulgated in furtherance thereof preclude May- or Rizzo from removing PAAC’s Executive Director. Specifically, they contend: (1) that as a condition to recognition of PAAC as a grantee agency, the Office of Economic Opportunity (OEO) required that the removal power remain within PAAC, and (2) that local law cannot supersede terms imposed by the OEO pursuant to federal law. In essence, they claim that Mayor Rizzo’s removal of Hardy contravened the Supremacy Clause of the United States Constitution by subordinating a Congressional mandate to local law.

We find that such a claim satisfies all the requisites of a substantial federal question. Essential to plaintiff-appellants’ ease is the claim that federal law (namely, the Economic Opportunity Act) precludes Mayor Rizzo from removing Hardy from office. If we read the Act as PAAC and Hardy would have us read it, we might well be compelled to conclude that the Mayor is without authority to remove Hardy; if, on the other hand, we interpret the Act as irrelevant to the issue of Hardy’s removal, we could reach the opposite result. We have been cited to no case law that renders the claim frivolous. Since there is no doubt but that the $10,000 amount in controversy requirement is satisfied, we conclude (as did the district court) that jurisdiction vests pursuant to 28 U.S.C. § 1331 to consider the legitimacy of Hardy’s discharge.

B. No. 73-957: The Peripheral Claims

As discussed above, the complaint in No. 73-957 charges that the Mayor: (1) illegally blocked appointments to PAAC, (2) illegally appointed persons to PAAC, (3) convened PAAC meetings, and (4) defamed the plaintiffs. With regard to the first three peripheral claims, the theory of illegality is based upon the argument that federal law (namely the Economic Opportunity Act and regulations promulgated in response thereto) prohibits the actions taken by the Mayor. For the reasons discussed above, we find that these claims too raise a substantial federal question.

We cannot, however, find an independent jurisdictional basis for plaintiffs’ defamation claim. If the district court was correct in exercising jurisdiction of this claim, it could only be so as a result of the court’s power to exercise pendent jurisdiction over state claims related to legitimate federal claims. In United Mine Workers of America v. Gibbs, the Supreme Court analyzed this power as follows:

Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority .,’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 [, 53 S.Ct. 549, 77 L.Ed. 1062]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole, (footnotes omitted).

See also Deaktor v. Fox Grocery Co., 475 F.2d 1112, 1115-1116, n.2 (3d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 65, 38 L.Ed.2d 86 (1973).

We find that the defamation claim is factually distinct from the claims involving Mayor Rizzo’s interference with the operation of PAAC. The defamation claim does not derive from a “nucleus of operative fact” common with the federal claims. Nor is the defamation claim one which we would “ordinarily expect” to be tried with the federal claims. Accordingly, we find that the doctrine of pendent jurisdiction is unavailable to justify the district court’s consideration of the defamation claim. We hold that the court erred in exercising jurisdiction over same.

C. No. 73-990: The Claim Removed from State Court

The removal statute, 28 U.S.C. § 1441, generally keys removal jurisdiction to original jurisdiction. A case which originally may be brought in federal district court is generally removable upon defendant’s petition. Where, as here, removal is predicated upon the assertion of a federal question, the principles discussed above with regard to § 1331 jurisdiction are applicable to removal from state courts. See Wright, Law of Federal Courts (2d ed. 1970) at 1304. Most importantly, the federal question must appear as an essential element of the plaintiff’s complaint in state court. If the federal question arises only as a defense, or in anticipation of a defense, removal jurisdiction will not exist. See, e. g., Tennessee v. Union and Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Crow v. Wyoming Timber Products Co., 424 F.2d 93, 95 (10th Cir. 1970); Romick v. Bekins Van & Storage Co., 197 F.2d 369, 370 (5th Cir. 1952); see also Wright, Law of Federal Courts (2d ed. 1970) at 131 (“Defendant can remove a case where the plaintiff relies on federal law for his claim, though the plaintiff is perfectly willing to entrust his federal claim to a state court, but neither party can take the case to federal court where defendant sets up federal law as a defense to a non-federal claim by plaintiff.”)

In the action commenced by the City of Philadelphia to restrain Hardy and Crippins from serving as PAAC’s Executive Director and General Counsel, plaintiff’s complaint is based entirely on state law. According to the complaint, the Mayor’s authority to discharge the defendants is predicated solely upon the Philadelphia Home Rule Charter. The federal question in No. 73-990 thus arises only as a defense, Hardy and Crippens asserting that federal law supersedes the Charter and precludes their discharge. Since the federal question does not appear as part of the complaint well-pleaded, the state action is not properly removable, regardless of its similarity with No. 73-957. We find that the district court erred in denying the City’s motion to remand No. 73-990.

Our analysis discloses that the district court was incorrect in concluding that subject matter jurisdiction exists to consider all claims raised in the consolidated actions. We need discuss the merits of only two sets of claims, the primary assertion that federal law precludes Hardy’s discharge and the three peripheral allegations raised in PAAC’s complaint (without the defamation claim).

III. The Merits

A. No. 73-957: The Primary Claim

Appellants assert that it was improper for the district court to focus upon the issue of whether PAAC is administered as a “governing board” or a “community action board.” They maintain that the essential structure of PAAC was developed before the adoption of the Green Amendments and has not been altered since. It is appellants’ position that early negotiations between PAAC, OEO, and the City of Philadelphia led to the creation of an independent entity whose federally-imposed autonomy cannot be undermined by local law. They assert that:

In view of the fact that the Green Amendments did not change the functioning of PAAC, resolution of such questions as who possesses the power to discharge the Executive Director of PAAC must depend on the nature of the arrangements, agreements and understandings reached through negotiations conducted by OEO, PAAC and the City of Philadelphia. A community action agency must be operated in accordance with the terms and conditions attached to the grant of federal funds.

Appellants’ Brief at 14.

Both the district court and the appellants construe the Federal Community Action Program as being mandatory in form. The court predicated its entire opinion upon the assumption that 42 U. S.C. § 2790 requires local governments to establish agencies which are administered either by governing boards or community action boards. Appellants, likewise, assume that it is mandatory that PAAC be operated “in accordance with the terms and conditions attached to the grant of federal funds.”

Were we concerned herein with the eligibility of PAAC for federal funding, we, like the district court and appellants, would regard federal law as mandatory. The instant case, however, does not center around federal funding. Rather, we are concerned with identifying the basic structure of PAAC. While the Economic Opportunity Act may strongly influence the structure ultimately developed, it is a matter for local governments to decide whether they will create poverty agencies that satisfy federal guidelines. Contrary to the assumptions made by the district court and by the appellants, there is nothing in the Economic Opportunity Act (or in the regulations promulgated in furtherance thereof) which requires localities to establish community action agencies. An agency which fails to comport with the Act’s guidelines is neither illegal nor in contravention of the Supremacy Clause. Rather, it is merely an agency that may be forced to forego federal funding. In short, the Act does not establish powers in local agencies, but rather merely describes the .powers that are prerequisites to federal funding.

To determine whether the Mayor or PAAC has the authority to remove Melvin Hardy, it is necessary to examine the documents which created PAAC rather than the federal guidelines which may or may not have been followed. Section 3 of the Ordinance creating PAAC gives the Mayor the power to appoint the Executive Director. Under Pennsylvania law, the power to remove an appointed officer is lodged in the same entity that has the power to appoint. We thus agree with the district court’s conclusion that Mayor Rizzo has the authority to remove Melvin Hardy from' office.

B. No. 73-957: The Peripheral Claims (other than the defamation claim)

We agree with the district court that plaintiffs failed to satisfy their burden of proving the Mayor’s alleged interferences with PAAC. On the basis of the record herein, regardless of the effect of federal law, plaintiff-appellants cannot succeed on their peripheral claims.

The judgment entered in favor of the defendants in District Court No. 73-957 will be affirmed with respect to all claims but the defamation claim. The judgment entered in District Court No. 73-957 with respect to the defamation claim and the judgment entered in District Court No. 73-990 will be reversed for want of subject matter jurisdiction. To effect the above dispositions, the entire case will be remanded to the district court for entry of a judgment consistent with this opinion.

      . It is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937).

      . The City commenced this second action in the Court of Common Pleas of Philadelphia County.

      . Although Isaiah Crippins joined PAAC and Hardy in the filing of a notice of appeal, Crippins has not submitted a brief to this Court. We limit our remarks in this opinion to the appellants before us, PAAC and Hardy. As to Crippins, we dismiss his appeal for failure to prosecute. See Fed.R. App.P. 3(a) ; 9 Moore’s Federal Practice IT 203.12.

      . To avoid confusion, “community action boards” are sometimes referred to as “administering boards” by the Office of Economic Opportunity.

      . 42 U.S.C. § 2791(a) provides:
      Each community action agency which is a State or a political subdivision of a State, or a combination of political subdivisions, shall administer its program through a community action board which shall meet the requirements of subsection (b) of this section. Each community action agency which is a public or private nonprofit agency or organization designated by a State or political subdivision of a State, or combination of political subdivisions, or is an agency designated by the Director under section 2790(d) of this title, shall have a governing board which shall meet the requirements of subsection (b) of this section.

      . Generally, the term “governing official” applies to:
      “. . . (a) the governor and legislature of any of the 50 States, the Commonwealth of Puerto Rico, or a self-governing territory, or (b) the top elected or duly appointed officials of a local political subdivision, District of Columbia, or a non-self-governing territory, who collectively possess the power to adopt and carry out local laws or ordinances.” OEO Community Action Program Memorandum No. 81, at 2.

      . The Order was authorized by Section 3-100(h) of the Philadelphia Home Rule Charter, which provides that the executive and administrative functions of the City shall be performed by “such additional advisory boards as the Mayor may appoint.”

      . See discussion infra.

      . See Appellant’s Brief at 17.

      . Cf. People Cab Co. v. Bloom, 472 F.2d 163 (3d Cir. 1972) (per curiam); Church v. Hamilton, 444 F.2d 105 (3d Cir. 1971) (per curiam).

      . 383 U.S. 715, 725, 30 S.Ct. 1130, 1138,16 L.Ed.2d 218 (1900).

      . Indeed, Congress has recognized that jurisdictions may be unwilling to establish agencies that conform with the federal guidelines. 42 U.S.C. § 2790(d) provides that:
      The Director may designate and provide financial assistance to a public or private nonprofit agency as a community action agency in lieu of a community action agency designated under subsection (2) of this section for activities of the kind described in this subchapter where he determines (1) that the community action agency serving the community has failed, after having a reasonable opportunity to do so, to submit a satisfactory plan for a community action program which meets the criteria for approval set forth in this sub-chapter, or to carry out such plan in a satisfactory manner, or (2) that neither the State nor any qualified political subdivision or combination of such subdivisions is willing to be designated as the community action agency for such community or to designate a public or private nonprofit agency or organization to be so designated by the Director.

      . We express no opinion as to whether or not PAAC has met the requisite federal guidelines. This issue is not before us.

      . The Ordinance supra at 7-9 does limit this appointment power somewhat, since the Mayor is free to choose only from a list of candidates selected by PAAC. However, the Mayor’s ability to reject -these candidates ad infinitum renders the limitation negligible.

      . Article 6, section 7 of the Pennsylvania Constitution provides:
      Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed.
      The Philadelphia Home Rule Charter is entirely consistent with this constitutional directive, providing in § 9-200 that: “Any appointed officer may be removed at the pleasure of the appointing power.”


source: Caselaw Access Project

author: BREITENSTEIN, Circuit Judge.

license: Public Domain

text:
    Tynell T. STANTON, By and Through her father and next friend, William H. Stanton, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-1959.
    United States Court of Appeals, Tenth Circuit.
    Argued July 11, 1974.
    Decided Sept. 3, 1974.

      Frederick P. Charleston and Jon S. Nicholls, Denver, Colo., for plaintiff-appellant.
    John K. Villa, Atty., Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., and James L. Treece, U. S. Atty., on the brief), for defendant-appellee.
    Before BREITEN STEIN, MC-WILLIAMS and BARRETT, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

The Secretary of Health, Education and Welfare denied the application of plaintiff-appellant Tynell T. Stanton for child’s insurance benefits under the Social Security Act. See 42 U.S.C. § 402(d). The issues relate to the applicability and constitutionality of certain 1965 amendments to the Act. The district court upheld the Secretary. We affirm.

The facts are not in dispute. The worker, William H. Stanton, applied for, and was found entitled to, the old-age insurance benefits of the Act in December, 1963. Plaintiff Tynell, the grandniece of the worker, was born February 9, 1965, was equitably adopted by the worker in March, 1965, and was legally adopted on September 1, 1971. Application for child’s insurance benefits was filed July 29, 1971.

So far as pertinent, the basic eligibility requirements of the Act, § 202(d)(1)(A) and (C), 42 U.S.C. § 402(d)(1)(A) and (C), provide that a child of a worker receiving old-age benefits shall receive child’s benefits if he “has filed application for child’s insurance benefits” and “was dependent upon such individual * * * at the time such application was filed.”

The Act of July 30, 1965, Pub. L. 89-97, 79 Stat. 286, by its § 323 added paragraph (9) to § 202(d). It is there provided, § 202(d)(9), that when a worker entitled to old-age benefits adopts a child after the worker becomes entitled to benefits, the child is not eligible unless— * * * * *

(B) [the child] was legally adopted by such individual before the end of the 24-month period beginning with the month after the month in which such individual became entitled to old-age insurance benefits, but only if
(i) such child had been receiving at least one-half of his support from such individual for the year before such individual filed his application for old-age insurance benefits * * *, and
(ii) either proceedings for such adoption of the child had been instituted by such individual in or before the month in which the individual filed his application for old-age insurance benefits or such adopted child was living with such individual in such month.”

® The child with whom we are concerned cannot satisfy the requirements of paragraph (9)(B)(i) and (ii) because she was bom after the worker’s entitlement to old-age benefits.

Counsel for the child say that the 1965 amendments do not apply because of the provisions of § 323(b) of the enacting legislation, 79 Stat. 398. That subsection has two sentences which must be considered separately. The first is:

“The amendments made by subsection (a) of this section shall be applicable to persons who file applications, or on whose behalf applications are filed, for the benefits under section 202(d) of the Social Security Act on or after the date this section is enacted.”

The plain and unambiguous language makes the amendments applicable to applications filed after the section “is enacted.” Any doubt on this score is dispelled by the legislative history which shows an intent that the new requirements affect applications “on or after ■the date of the enactment of the bill.” S. Rep. No. 404, 89th Cong., 1st Sess., 1 U.S.Cong. & Admin.News ’65 at p. 2193. The effective date was July 30, 1965. We are concerned with an application filed July 29, 1971.

Claimant argues that she was entitled to the benefits under the law as it existed before 1965 and that the application of the amendments deprives her of due process. The Secretary does not dispute the claim that if the child had filed application for benefits between March, 1965, when equitable adoption occurred, and July 30, 1965, the effective date of the amendments, she would have been entitled to those benefits. The difficulty is that the pre-existing law required the filing of an application for the benefits and none was filed dur-0 ing the critical period. See 42 U.S.C. § 402(d) (1964 ed.). At the most the child had an expectation, not a vested right. In Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, the Court said that “ a person covered by the Act has not such a right in benefit payments as would make every defeasance of ‘accrued’ interests viola-' tive of the Due Process Clause of the Fifth Amendment.” Richardson v. Belcher, 404 U.S. 78, 80, 92 S.Ct. 254, 257, 30 L.Ed.2d 231, holds that “an expectation of public benfits [does not] confer a contractual right to receive the expected amounts.” The child’s reliance on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, is misplaced. That decision holds that as a matter of procedural due process the interest of a welfare recipient in the continued payment of benefits may not be terminated without an evidentiary hearing. The Richardson case says that, 404 U.S. at 81, 92 S.Ct. at 257, Goldberg cannot “be stretched to impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” The con-gressionally mandated application of the 1965 amendments to applications filed after the effective date has no constitutional impediment.

The second sentence of § 323(b) is a savings clause which reads:

“The time limit provided by section 202(d) (10) (B) [Codified as 42 U.S.C. 402(d) (9) (B); see fn. supra] of such Act as amended by this section for legally adopting a child shall not apply in the case of any child who is adopted before the end of the 12-month period following the month in which this section is enacted.”

The question is the effect of the quoted provision on the eligibility of the child before us. The worker applied for, and received, old-age benefits in December, 1963. The child was equitably adopted in March, 1965. Colorado recognizes equitable adoption. Barlow v. Barlow, Colo., 463 P.2d 305, 308-309.

Subparagraph (9)(B) requires adoption before the end of a 24-month period beginning a month after the worker became entitled to benefits. The savings clause makes this provision inapplicable to a child adopted before the end of a 12-month period beginning a month after enactment of the amendments. The use in § 323 of the word “before” indicates a deadline rather than a period within which adoption must occur. In the instant case the child was adopted before expiration of both the 24-month and the 12-month periods. Hence, the rights of the child are saved unless lost by nonconformity with subparagraphs (i) and (ii) of paragraph (9)(B).

Subparagraph (i) requires that the child receive at least one-half of his support from the worker for the year before the worker’s application for old-age benefits, and (ii) requires either adoption proceedings in or before the month of the old-age benefit application or residence of the child within that month. Neither requirement can be met here because the child was not then born.

The argument for the child is that the savings clause eliminates the necessity of compliance with subparagraphs (i) and (ii). We do not agree. Section 323 refers to the “time limit” provided in paragraph (9) (B). There is only one time limit therein, the mentioned 24-month period after the worker became entitled to old-age benefits. The applicable provisions of subparagraphs (i) and (ii) refer respectively to amount of support from, and period of life with, the worker, Neither is a “time limit” for “legally adopting a child.” Hence, the savings clause does not eliminate need for compliance with them.

This conclusion is supported by legislative history. Senate Report No. 404 recognizes the problem arising from the then pertinent law and says that thereunder “a child adopted by a worker who is already retired and getting old-age insurance benefits can become entitled to benefits even though he was not dependent on the worker at the time the latter retired.” 1 U.S. Cong. & Admin. News '65 p. 2048. See also H.Rep. 92-231 on Pub.L. 92-603, Social Security Amendments of 1972, 3 U.S.Cong. & Admin. News ’72 p. 5039.

The proposed solution of the problem required that (1) the adoption be completed within two years after the worker became entitled to benefits; (2) the child receive at least one-half of his support fi’om the worker for one year before the worker became entitled to the benefits; and (3) the child be living with the worker when that person became entitled to the benefits, or that adoption proceedings have begun. 1 U. S.Cong. & Admin.News ’65 pp. 2048-2049.

The Senate Report further says, Ibid, at p. 2193, that, the savings clause, § 323(b), applies only to the first of the three new requirements:

“Section 323(b) of the bill provides that the new requirements (added by Section 323(a) will be effective with respect to applications for child’s insurance benefits on or after the date of enactment of the bill. The requirement that adoption be : mpleted within 2 years after the worker became entitled to benefits is not to apply in any case where a child is adopted within 1 year after the month in which the bill is enacted.”

We read § 323 to mean that subparagraphs (i) and (ii) of § 202(d)(9)(B) apply to the case before us and, in the absence of constitutional infirmity, deprive the child of the sought benefits because she cannot meet their requirements. This construction of the statute is supported by Economy v. Gardner, W.D.Tex., 286 F.Supp. 472, 474, affirmed 5 Cir., 396 F.2d 115.

To sustain her construction of the savings clause the child relies on Kara-haleos v. Secretary of Health, Education and Welfare, 144 U.S.App.D.C. 181, 445 F.2d 657. That decision recognizes that legislative history bolsters the Secretary’s position, but rejects it on the ground that its acceptance would raise a substantial due process question. Ibid, at 659-660. The court says that the interpretation of the savings clause urged upon it (elimination of the requirements of subparagraphs (i) and (ii)) is a “fairly possible one,” Ibid, at 660, and adopts that interpretation. The case does not discuss the merits of the claim of unconstitutionality which arises if the savings clause is interpreted in accordance with our views.

The child’s argument for unconstitutionality is based on the claim of invidious discrimination against adopted children. See Stanley v. Secretary of Health, Education and Welfare, W.D. Mo., 356 F.Supp. 793, 804-806. Reliance is placed on both due process and equal protection. We have already rejected the argument that the 1965 amendments divested the child of an accrued interest in violation of due process.

Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, was concerned with a due process argument relating to classifications established by nonentitlement provisions of the Act affecting aliens. The Court said, Ibid, at 611, 80 S.Ct. at 1373:

“Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.”

Under the rubric of equal protection, Richardson, 404 U.S. at 81, 92 S.Ct. at 257, 30 L.Ed.2d 231, cites with approval Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491, and says that a statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” The Court goes on to say that:

“While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment.”

The Secretary says that the attacked provisions relating to adopted children are rational because the purpose is (1) to replace lost support when a worker becomes retired or disabled, and (2) to ^prevent spurious claims. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363, was concerned with the rationality of a distinction made by the Social Security Act between two classes of illegitimate children. The decision mentions the position of the Secretary that the purpose was to provide lost support, Ibid, at 633, 94 S.Ct. 2496, and holds that the legislative lines drawn by Congress refute that general principle in the context of illegitimacy. We are concerned with adoption. The intent of Congress to prevent abuse of the Act by adoption after entitlement to old-age benefits is shown by the statement in S. Rep. p. 404, 1 U.S.Cong. & Admin.News 65 p. 2048, that:

“The committee believes that the provisions concerning adoptions by retired workers should be made comparable to those relating to adoptions in other cases so as to provide safeguards against abuse through adoption of children solely to qualify them for benefits, * * *.”

As said in Hagler v. Finch, 9 Cir., 451 F.2d 45, 48:

“ * * * Congress thought that one who makes the decision to adopt when he is already receiving Social Security payments is more likely to be motivated by economic considerations instead of genuine concern for a child's welfare.”

Jimenez recognizes a legitimate governmental interest in the prevention of spurious claims. 417 U.S. at 636, 94 S. Ct. 2496. A classification designed to prevent claims of that nature has a rational basis and is not invidious. Congress saw a need to provide safeguards against abuse through adoption. The method adopted in the 1965 amendments is reasonable. In our opinion the different treatment given adopted children does not run afoul of either due process or equal protection requirements.

Affirmed.

      . When originally enacted in 1965, the provisions in question were found in § 202(d) (10) of the Act. At the time of the administrative proceedings herein, they were codified as 42 U.S.C. § 402(d)(9). The Social Security Amendments of 1972, Pub.U. 92-603, which are not applicable herein, moved these provisions, as amended, to § 202(d) (8) of the Act, 42 U.S.C. § 402(d) (8) (pocket part). Herein reference will he made to § 202(d) (9).


author: WEIS, Circuit Judge. JAMES HUNTER, III, Circuit Judge, with whom SEITZ, Chief Judge, joins ADAMS, Circuit Judge

text:
    NAPA PITTSBURGH, INC., Appellee, v. AUTOMOTIVE CHAUFFEURS, PARTS AND GARAGE EMPLOYEES, LOCAL UNION NO. 926, et al., Appellants.
    No. 73-1798.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 28, 1974.
    Submitted on Rehearing en banc June 12, 1974.
    Decided Aug. 8, 1974.
    James Hunter, III, Circuit Judge, dissented and filed opinion, and Seitz, Chief Judge, joined in dissent.
    Adams, Circuit Judge, dissented and filed opinion.
    Elmer E. Myers, David H. Perez, R. A. King, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., for ap-pellee.
    Herman L. Foreman, James B. Brown, Rothman, Gordon, Foreman & Groun-dine, Pittsburgh, Pa., for appellants.
    Argued February 28, 1974
    Before HUNTER and WEIS, Circuit Judges, and BECKER, District Judge.
    Submitted in banc June 12, 1974

      Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

This is an appeal from an order enjoining appellant Automotive Chauffeurs, Parts and Garage Employees, Local Union No. 926 (Local 926) from refusing to cross a picket line maintained by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110 (Local 110). The question presented is whether the district court erred in issuing a preliminary injunction against Local 926 and in ordering arbitration of the differences between the parties in accordance with the provision of the collective bargaining agreement. We conclude that the action of the trial court was proper and we affirm.

Plaintiff-appellee, NAPA Pittsburgh, Inc., is a corporation with its executive offices and principal place of business on Hamilton Avenue in Pittsburgh, Pennsylvania. Appellant, Local 926, represents approximately 54 of 110 employees at the Hamilton Avenue facility for collective bargaining purposes. A work stoppage occurred at this location as a result of the efforts of a second unr ion, Local 110, to represent the employees of a company located in Altoona, Pennsylvania, doing business under the name of NAPA Altoona, Inc. In order to promote its endeavors, Local 110 called a strike at the Altoona facility and began picketing there. For reasons that do not appear in the record, they decided to extend the picketing to the NAPA Pittsburgh building on Hamilton Avenue.

When this occurred, appellant, Local 926, informed its Hamilton Avenue members that they could refuse to cross Local 110’s picket line. The union based this position on Article XIII of its collective bargaining agreement with ap-pellee, which provides:

“It shall not be a violation of this Agreement ... in the event an employee refuses to enter upon any property involved in a primary labor dispute or refuses to go through or work behind any primary picket lines at the Employer’s [NAPA Pittsburgh’s] place or places of business.”

As a result of this stand, a work stoppage occurred at the Hamilton Avenue facility.

NAPA Pittsburgh’s response was to seek injunctive relief from the district court. The company argued that a question existed as to whether the picket line that Local 926 chose to honor was “primary” within the meaning of Article XIII, and contended that this issue was subject to’ the mandatory arbitration and no strike provisions contained in the collective bargaining agreement. The circumstances thus were alleged to bring the case within the Boys Markets exception to the anti-injunction provisions of the Norris-LaGuardia Act.

After a hearing, the district court found that the employees’ right to honor a picket line at the Hamilton Avenue plant was limited by the terms of the collective bargaining agreement and that the arbitration clause provided the compulsory method of resolving a dispute over the exercise of the privilege. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) was held to be applicable, and a preliminary injunction was issued ordering that the work stoppage be ended and the parties begin arbitration of their differences.

In cases of this nature we start with the basic premise that the law favors arbitration of labor disputes. That there can be no doubt about this is clear from the pronouncements of the Supreme Court in the Steelworkers’ Trilogy — United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The most recent reaffirmation of the policy may be found in Gateway Coal Co. v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

Boys Markets, Inc. v. Retail Clerks Union, Local 770, supra, holds in essence that where a matter has been made arbitrable by the terms of a contract between the union and the company, an injunction may be issued to enforce this method of settling controversies between the parties. In determining whether a matter is arbitrable under the contract, any doubt should be resolved in favor of arbitration. United Steelworkers v. Warrior & Gulf Navigation, supra.

Here, the parties agreed to arbitrate “. . . any and all grievances, complaints or disputes arising between the employer and the union . . . .” The collective bargaining agreement also provided that it would not be a violation of the contract if an employee honored a primary picket line. Obviously then, it would be a breach of the agreement if the employees honored a picket line which was not primary.

The contractual provisions are clear but the parties disagree as to whether the picket line involved in this case was “primary.” The union says that it was; the company denied it. Both contend vigorously that they are correct. This is clearly a “dispute” and hence covered by the contractual requirement of arbitration.

If it should be determined that a “primary” picket line was present at the plaintiff’s plant, then unquestionably Local 926 could refuse to cross. If it was “secondary,” then the company had the right to insist that the union honor its no strike agreement.

The union relies on the holdings of Amstar Corp. v. Amalgamated Meat Cutters & Butcher Workmen, 468 F.2d 1372 (5th Cir. 1972); General Cable Corp. v. International Brotherhood of Electrical Workers, 331 F.Supp. 478 (D.C.Md.1971); and Simplex Wire and Cable Co. v. Local 2208 of the International Brotherhood of Electrical Workers, 314 F.Supp. 885 (D.C.N.H.1970), but these opinions are clearly distinguishable. In none of the cited cases was there a contractual provision restricting the union’s right to honor picket lines of other labor organizations. Indeed, the district court in the Simplex case, supra, specifically noted the omission of any reference to the subject in the contract between the parties in that case.

By way of contrast, the Court of Appeals in Monongahela Power Co. v. IBEW, 484 F.2d 1209 (4th Cir. 1973), held that an injunction could be issued to enforce a no strike clause in a contract even though it had no provision applicable to honoring a picket line of another union. In a later case, Pilot Freight Carriers v. Teamsters, 497 F.2d 311 (4th Cir. 1974), the same court sustained an injunction against a union honoring a picket line where the contract contained language similar to the one sub judice, and held that the matter was arbitrable.

We hold that determination of whether the picket line should be classified as primary or secondary was arbitrable under the terms of the contract and pending resolution of the question Local 926 was properly enjoined from causing a work cessation. Requiring arbitration does not nullify the union’s right to honor a primary picket line, but only suspends the exercise of the right until its existence is established by an arbitrator’s decision. Undue delay should not be permitted since the district court has ample authority in the exercise of its equitable powers to see to it that arbitration proceeds promptly and expeditiously.

The order of the district court will be affirmed.

JAMES HUNTER, III, Circuit Judge, with whom SEITZ, Chief Judge, joins

(dissenting):

The majority begins its discussion of the merits of the case by referring to “the basic premise that the law favors arbitration of labor disputes.” It then goes on to emphasize one key point: that the dispute between the Company and Local 926 — over whether Local 110’s picket line is primary or secondary and thus whether Local 926’s work stoppage is legal — is an arbitrable dispute. Our response is wholehearted agreement. The law does favor arbitration in this area, and the dispute over the nature of the Local 110 picket line is arbitrable. Moreover, we note that the district court found the issue to be arbitrable and that the appellant Union does not dispute this finding.

We feel that this last point is of great significance in view of the position taken by the majority. Since everyone, including the appellant union, agrees that this issue is arbitrable, the majority’s conclusion that the Company-Local 926 dispute is arbitrable, while undoubtedly correct, does not address itself to the issue raised by appellant and therefore cannot resolve the question presented by this appeal.

Thus, we must begin with a formulation of the issue we are called upon to resolve. In our opinion that issue can be framed in the following way: given the fact that the issue as to the legality of the Local 926 work stoppage is arbi-trable, should the district court be able to involve itself in this dispute by enjoining the work stoppage until an arbitrator can decide its legality ?

One possible resolution of this question is to conclude that the federal courts can always intervene and issue an injunction against a strike whenever the resolution of an arbitrable dispute might end it. This is the implicit conclusion of the majority. Since we feel this decision is not supported either by a reasoned balancing of the legal policies at stake or by the precedent, we dissent.

I. POLICY CONSIDERATIONS

Once we get beyond the majority’s discussion of the arbitrability of the primary-secondary issue, its decision rests primarily upon the Supreme Court’s decision in Boys Markets. Our disagreement with their holding comes down to a disagreement over the scope of the rule first enunciated in that case. However, we will defer our explanation of the Boys Markets holding until we have reviewed the policy impact of Boys Markets and contrasted it with the policy impact of the majority’s decision in this case. We do this because we believe that the key to understanding the scope of the Boys Markets rule (and its lack of applicability here) lies in an understanding of its intended impact upon competing legal policies.

Boys Markets involved a dispute between an employer and union over the right of union employees to perform certain tasks at the employer's store. This was a dispute that the Union, in its collective bargaining agreement, had agreed to resolve through the presentation of reasoned arguments to a neutral arbitrator, rather than through the use of economic force, i. e., by means of a strike. However, in that case, the union ignored both its no strike pledge and its agreement to arbitrate the issue and struck for the avowed purpose of forcing a favorable resolution to the arbitra-ble dispute. Thus, the union’s actions made it clear that they did not intend to return to work until the Company conceded that the tasks involved had to be performed by union men.

Clearly, this strike had the effect of undermining the rule of law that favors the arbitration of labor disputes, since the strike was an attempt to force a union victory on the very issue that was made arbitrable not through the presentation of reasoned arguments to a neutral arbitrator, but rather through the use of sheer economic.force. If the tactic had been successful, it would have settled the arbitrable dispute, making arbitration superfluous and thereby defeating the arbitrator’s jurisdiction. Thus, the strike represented a plain attempt by the union to undermine and avoid its agreement to arbitrate the issue in dispute and the legal policy that favors the arbitration of labor disputes cut clearly in favor of having the district court issue an injunction to end the work stoppage.

However, the Court could not decide the case with a simple citation to this policy effect, for though the issuance of an injunction ordering an end to the strike plainly promoted arbitration, it just as pláinly interfered with the clear policy directive of Congress contained in the Norris-LaGuardia Act, 29 U.S.C. § 104 (1970). That section in essence strips federal courts of the power to enjoin strikes. Faced with this clear conflict between two policies of law, the Supreme Court chose to create a “narrow” exception to the anti-injunction provisions of the Norris-LaGuardia Act so that the court had the power to prevent the Union from' undertaking a course of conduct that was plainly designed to circumvent and defeat its explicit agreement to arbitrate.

In the instant case, the policy considerations that provide the raison d’etre for the Boys Markets decision are totally absent. Stated simply, while the policy enunciated in the anti-injunction provisions of the Norris-LaGuardia Act will be frustrated here just as it was in Boys Markets if an injunction is issued, the policy that favors the arbitration of labor disputes will in no way be undermined if the injunction requested here is denied.

In Boys Markets the strike was designed to pressure the Company into capitulating on the arbitrable issue before it could present its position to the arbitrator. In the present case, no similar situation exists. It is true that here, as in Boys Markets, there is a dispute that is clearly arbitrable — that is, the dispute over the nature of the Local 110 picket line and hence the legality of the Local 926 work stoppage. However, in this case, unlike Boys Markets, the union’s work stoppage is not designed to force settlement of this arbitrable issue before arbitration can take place; it is not an attempt to defeat the arbitrator’s jurisdiction.

We can state this conclusion without equivocation because of the undisputed facts in this case. Local 926 engaged in its work stoppage only because of the presence of Local 110’s picket line. The work stoppage was not begun, nor was it continued, because of the union’s disagreement with the Company over the ar-bitrable issue; that is, over its right to engage in a work stoppage. As a result, no concession that the Company could have made on this issue would have helped to end the walkout. That goal could be attained by the Company only if it resolved its dispute with Local 110 and thus caused that union to remove its picket line.

Since this is true, the work stoppage could have exerted no pressure upon the Company to give up its fight on the arbitrable issue and forego arbitration since resolution of the arbitrable dispute prior to arbitration would have brought nothing in return: the work stoppage would have continued in any event. Thus, the work stoppage placed no pressure on the'1 Company to forego arbitration.

This fact makes the policy considerations operative here crucially different from those that were present in Boys Markets. In that case, the Court enjoined a strike that was specifically undertaken in order to force a resolution to the arbitrable dispute and therefore to circumvent arbitration; here, the work stoppage exerted no pressure on the Company to resolve the arbitrable issue short of arbitration. As a result, while in Boys Markets the strike deterred the employer from pursuing arbitration, thus making it necessary to enjoin the strike in order to promote the policy favoring arbitration, no similar situation exists here. In this case, since the work stoppage does not pressure the Company to forego arbitration, the issuance of a Boys Markets injunction will do nothing to promote the arbitration of labor disputes and its issuance cannot be supported by the policy considerations •that underlie Boys Markets.

However, one might object that while the factors we discuss above make it clear that the issuance of an injunction in this case will not promote arbitration in the same way that it was promoted by the injunction in Boys Markets, the majority’s decision might still promote that goal by other means. We do not think that this suggestion can withstand analysis. In fact, in our opinion, the overall effect of the majority’s decision is to actually discourage the arbitration of labor disputes.

If no injunction is permitted in this case, employers who in the future are placed in the situation faced by NAPA Pittsburgh will have every reason to seek arbitration since they will be able to end the work stoppage only by prevailing on the merits. However, if we affirm the district court and allow it to enjoin the work stoppage pending arbitration, employees in future cases will have everything to lose and nothing to gain from arbitration. Thus, we will be giving them every incentive to avoid and obstruct arbitration by every means at their disposal.

This unfortunate effect will occur because of the peculiarly limited role that the court plays in a case such as this. The district courts cannot look at the merits of these disputes since that is the province of the arbitrator. All they can do is review the circumstances of the case to see if an arbitrable issue exists and issue an injunction if the requirements of Boys Markets are met. As a result, the majority’s interpretation of the Boys Markets holding creates a situation where an employer can end any work stoppage simply by going to the district court and alleging that under the terms of the collective bargaining agreement the work stoppage itself is illegal.

The advantage that an employer enjoys in initiating this sort of proceeding, instead of pursuing arbitration of the merits is apparent. In arbitration he runs the risk of losing on the merits; before the district court no such risk exists since the merits are never reached. Thus, we can safely assume that employers who in the future are faced with work stoppages similar to the one that faced the company in this ease, will seek their initial relief in federal court rather than through arbitration.

Moreover, once the district court has issued its injunction, the employer will have everything he seeks, since the work stoppage will have been ended. As a result, he will no longer have anything to gain from arbitration. On the other hand, arbitration might conceivably be very costly to him, since once the merits of the issue are reached, he will always run some risk of losing and a defeat on the merits would cause the injunction to lapse, raising the possibility of a renewal of the work stoppage. Thus, a rational employer will not only avoid initiating arbitration, hé will use every means at his disposal to delay it as long as possible.

We think it is clear that a rule that gives one party every incentive for avoiding the arbitration will inhibit the smooth functioning of that procedure. As a result, it is our conclusion that the majority’s opinion, rather than promoting the arbitration of labor disputes, will actually tend to discourage it.

We can see two objections that might be raised in an attempt to refute this conclusion. The first would concede that the issuance of an injunction here would discourage future employers from seeking or submitting to arbitration, but argues that the opposite result would only encourage equal recalcitrance on the part of the union. If this is true, it would obviously eliminate the negative policy impact we have outlined above. The second objection is raised by the majority and it also concedes (at least, by implication) that the issuance of an injunction will make obstruction of arbitration useful from the employer’s point of view. However, this argument then suggests that undue delay can be controlled by the district court through the use of its equitable powers.

We do not believe that either of these arguments can withstand close scrutiny. With regard to the first, we think it is clear that the refusal to permit the issuance of an injunction in factual situations such as this would not place the union in a situation similar to that faced by the employer when an injunction can issue. As we have seen, if an injunction is issued, employers are given every reason to avoid and delay arbitration. However, if no injunction is issued, the union does not have the same incentive to seek delay for it will ultimately be liable in damages if it is, in fact, engaged in an illegal work stoppage. Thus, while obstruction and delay of the arbitration proceeding might permit the union to continue an illegal work stoppage for some period of time, this gain will only come at a significant cost since it would increase the union’s monetary liability to the same extent.

As far as the second argument is concerned, it is true that the district court can use its equitable powers to seek to control undue delay. However, we do not feel that there is any reasonable way that a district court can use this power to prevent significant delay when that goal is sought by one of the parties.

In this case, for example, the employer can delay arbitration for nine days simply by using all of the time that is allotted to it at each step in the grievance procedures that leads to arbitration. Moreover, this nine day figure does not include the time that it will take for the Board established by the “Third” paragraph to deliberate on the matter, nor does it include the time needed (under the “Fourth” paragraph) to choose a neutral arbitrator, to bring the arbitration panel together, and to have the panel hear and decide the dispute. Obviously, these steps will use additional time in any event, and also provide a determined employer with further opportunities for stretching out the time needed to complete arbitration.

As a result, the employer will be able to delay the arbitration proceedings for at least several weeks, and throughout this period, the work stoppage will be enjoined. Since strikes like the present one are a response to specific disputes over which the union has no control, they are highly dependent upon timing for their success, and a minimum delay of this magnitude will render many of them ineffective. Thus, the incentive for the delay of arbitration by the employers, that is created by the issuance of an injunction in this case, cannot be effectively controlled by the district court’s equitable powers.

Our conclusion therefore is that the Local 926 work stoppage did not have a negative impact, overall, on the goal of promoting the arbitration of labor disputes and that as a result the policy considerations that led to the creation of the Boys Markets rule do not support the issuance of an injunction in this case.

II. THE HOLDING IN BOYS MARKETS

While our analysis of the policy considerations underlying Boys Markets leads us to the conclusion that an injunction should not issue in this case, we must still deal with the suggestion, implicit in the majority’s holding, that the rule created in that case encompasses the factual situation presented here. If this is true, then policy considerations notwithstanding, the issuance of an injunction was permissible.

The majority characterizes the Boys Markets holding as follows:

“[Boys Markets] holds in essence that where a matter has been made arbitrable by the terms of a contract between the union and the company, an injunction may be issued to enforce this method of settling controversies between the parties.”

If these words are meant literally then the majority has misapplied its own rule under the facts presented here. Both parties agree that the “primary-secondary” issue is arbitrable and, as explained above, the union never tried to short circuit arbitration of that dispute by means of the work stoppage. As a result, there was no need to issue an injunction to “enforce this method of settling controversies between the parties,” since there was never an attempt by the union to resolve the only arbitrable dispute by any other means.

However, since the majority affirms the issuance of the injunction, we assume that it reads the Boys Markets rule to permit the issuance of an injunction whenever arbitration might ultimately have the effect of ending a work stoppage. We cannot agree with this expansive reading of the case. Not only does it run counter to the policy considerations that underlie the Boys Markets decision, it also ignores the language that carefully limits its holding.

As we noted earlier, in Boys Markets a dispute arose over the right of union employees to perform certain tasks at the employer’s store and the union called a strike in an effort to force the Company to capitulate on that issue, despite the fact that it had agreed to seek resolution of this kind of dispute through the use of arbitration, rather than by means of a strike. .Under these facts the Court held that since the strike was “over a grievance which both parties are contractually bound to arbitrate,” 398 U.S. at 254, 90 S.Ct. at 1594 (emphasis added), an exception to the broad anti-injunction provisions of the Norris-La-Guardia Act was appropriate and an injunction could issue. In addition, it carefully spelled out the circumstances under'which such an injunction could issue and emphasized the limited nature of its decision by stating that, “[o]ur holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act.” 398 U.S. at 253, 90 S.Ct. at 1594.

In our opinion, the import of this careful language is clear. An injunction can be issued to end a work stoppage only when an arbitrable issue is itself the “underlying cause” of the strike. We reach this conclusion for three reasons. First, the Court in Boys Markets specified that a strike must be “over” an arbitrable dispute if it is to be en-joinable, and in our opinion a strike cannot be described as “over” a dispute unless that dispute is a cause of the work stoppage. Second, the Boys Markets decision is, by its own description a “narrow” one. Therefore it should logically be limited by the key factual circumstances that were present in the case. As a result, since the arbitrable dispute in Boys Markets (over the right of the union employees to perform the tasks involved) was also the underlying cause of the strike, this is logically a required part of the rule.

Finally, and of greatest significance, we reach this conclusion because, as we discussed at length in Part I of this opinion, a broader reading of the Boys Markets holding would extend it into areas where the policy considerations that dictated that decision simply do not operate. If the arbitrable dispute is not a “cause” of the work stoppage, then a concession on that dispute by the employer will not help to end the work stoppage. Under these circumstances, the work stoppage will exert no pressure on the employer to resolve the arbitrable issue short of arbitration. Thus, if this basic cause-effect relationship between the arbitrable issue and the strike is not present, the strike will not discourage arbitration and the policy that favors the arbitration of labor disputes will'not be furthered by the issuance of an injunction.

Applying this rule to the facts of the present case, it is clear that an injunction should not have issued. Here, the dispute that was the sole underlying cause of the Local 926 work stoppage was the fight between the Company and Local 110 that led to the creation of that union’s picket line. This issue was plainly not arbitrable under Company-Local 926 collective bargaining agreement since it did not involve Local 926. Thus, though it caused the strike it provided no reason for the issuance of a Boys Markets injunction.

On the other hand, the dispute as to the nature of the Local 110 picket line and thus as to the legality of the Local 926 work stoppage was arbitrable. However, this dispute was never an “underlying cause” of the Local 926 work stoppage since it arose after that work stoppage had begun and never became a basis for its continuation. As a result, the strike never deterred the arbitration of this issue and the existence of this dispute never provided a basis for the issuance of an injunction under the holding in Boys Markets.

Before we close our discussion of the holding in Boys Markets, we must finally discuss its relationship to Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). While the majority never articulates the point, we believe that it is influenced by an unstated feeling that Gateway Coal has somehow expanded the Boys Markets exception to the anti-injunction provisions of the Norris-La-Guardia Act in a way that is relevant here.

We do not believe that a careful reading of that opinion can support this conclusion. In Gateway Coal, a strike occurred because the employer attempted to reinstate two suspended foremen who the union felt would pose a safety hazard if allowed to resume their normal responsibilities. The employer responded by seeking a Boys Markets injunction.

The right to obtain such an injunction in that case revolved around three key issues that were ultimately settled by the Supreme Court: 1) whether the issue in dispute was truly arbitrable; 2) whether the arbitration clause in the collective bargaining agreement gave rise to an implied no-strike obligation; and 3) whether the circumstances in the case satisfied the traditional equitable considerations that must also be met before a Boys Markets injunction can be issued. The Court answered each question affirmatively and concluded that a Boys Markets injunction should issue.

The first thing that should be noted is that in Gateway Coal the undisputed facts clearly established that the strike was caused by the “arbitrable” dispute over the work status of the two foremen. Thus, since the “underlying cause” requirement of Boys Markets was clearly satisfied, that case could not have held that that element was no longer a prerequisite to the issuance of a Boys Markets injunction.

Second, we can find nothing in the Court’s discussion of the issues that were raised in Gateway Coal that would suggest that at some point in the future it is likely to hold that the “underlying cause” requirement of Boys Markets is no longer operative. As we have noted, this requirement was established in order to limit the availability of Boys Markets injunction to those cases in which the work stoppage has the effect of undercutting the arbitration of labor disputes. As a result, as long as the promotion of the arbitration of labor disputes remains the policy rationale that justifies the issuance of Boys Markets injunctions, the “underlying cause” requirement will logically remain an integral part of the rule.

We can find nothing in the Gateway Coal decision that suggests that this policy goal has been or will be changed. The Court’s discussion of the arbitrability of the safety dispute involved in the case, and its discussion of the traditional requirements of equity deal with the existence of additional factors that are plainly required before an injunction can issue under the holding in Boys Markets. Its conclusion that these prerequisites were met can support no inference that the underlying policy rationale of the Boys Markets rule has been changed or expanded.

The rest of the opinion addresses itself to the question of whether the union’s agreement to arbitrate the dispute must be reinforced by an explicit agreement not to strike in order for a Boys Markets injunction to issue. The Court concludes that an explicit no-strike clause is not needed since the agreement to arbitrate a dispute implies, in the normal case, a corresponding agreement not to seek its resolution through a strike.

It is true that this part of the Gateway Coal opinion does expand the Boys Markets holding, since it permits courts to enjoin strikes in the absence of explicit no-strike agreements. However, this extension of the rule in no way changes the policy rationale of Boys Markets. On the contrary, it only provides for its logical extension since it allows the district courts to enjoin strikes that undercut agreed upon arbitration regardless of whether those strikes are also explicitly barred by the terms of the collective bargaining agreement.

As a result, nothing in Gateway Coal in any way suggests a change in the underlying policy rationale that justifies the Boys Markets rule. It is still designed to end strikes if, but only if, they have the effect of undercutting agreed upon arbitration. Since this is true, we can only assume that the “underlying cause” requirement will remain a necessary prerequisite to the issuance of a Boys Markets injunction.

III. CONCLUSION

As we stated at the outset, our disagreement with the majority boils down to a dispute as to the meaning of Boys Markets. In our opinion, the holding in that case permits the issuance of injunctions to end work stoppage only when an arbitrable dispute is an underlying cause of the strike.

We reach this conclusion, in part, because of the language used to state the holding in that case. However, we are primarily persuaded by our understanding of the policy considerations that underlie that decision. In Boys Markets the court was faced with a dilemma. On the one hand, it was obliged to give effect to the policy judgment that is embodied in the anti-injunction provisions of the Norris-LaGuardia Act by refusing to issue an injunction. On the other, it was equally obliged to enjoin the strike since its clear effect was to undercut the policy that favors the promotion of arbitration of labor disputes. Under these special circumstances, it ruled that an injunction could issue.

It is important to note that the Court’s goal was not to end the strike. Instead, its sole purpose was to promote the arbitration of the labor dispute involved by eliminating a serious impediment to that goal. Thus, its rule sensibly permits the enjoining of strikes only when they have the effect of interfering with agreed upon arbitration. As we have noted, a strike can have this effect only when it is caused by the dispute that is supposed to be arbitrated, since only under those circumstances will the strike pressure the employer to capitulate on the arbitrable dispute and therefore forego its arbitration.

Once this “underlying cause” requirement is accepted as an integral part of the Boys Markets rule, its application to the facts of this case is mechanical. Here, the underlying cause of the strike was not arbitrable (and the only dispute that was arbitrable was not a cause of the work stoppage). Thus, the work stoppage was not an attempt to force the company to capitulate on the arbi-trable dispute and forego arbitration, and the district court erred in enjoining the work stoppage.

ADAMS, Circuit Judge

(dissenting):

Judge Hunter’s thoughtful and comprehensive opinion reflects to a large extent my own views with respect to the issues presented by this appeal. However, although Judge Hunter, in discussing Boys Markets, Inc. v. Retail Clerks Local 770, does advert to the fundamental jurisprudential principle that courts are to interpret laws and to permit policy considerations to infect their decisions only within statutory interstices, he does not appear to accord that principle the same weight I would in reaching the conclusion that a Boys Markets injunction is not appropriate in the circumstances here.

Analysis of the scope of the Boys Markets decision must encompass an appreciation of the widespread abhorrence of the labor injunction that existed at the time of the enactment of the Norris-LaGuardia Act. Many viewed the injunction as the principle weapon of those antagonistic to the emerging labor movement. Some courts, it was felt, employed the injunction to effectuate their own policy predilections, predilections that did not attach substantial significance to the interests of the working man. In response to these sentiments, Congress enacted the Norris-LaGuardia Act. The Act expressly deprived the federal courts of jurisdiction to issue labor injunctions in almost all circumstances.

Subsequent developments, however, seemed to temper somewhat the posture of judicial abstention imposed by the Norris-LaGuardia Act. In 1947, Congress enacted Section 301(a) of the Labor-Management Relations Act which, by its terms, permits suits for violations of collective bargaining agreements to be brought in federal courts. In Textile Workers Union v. Lincoln Mills, the Supreme Court, in reversing the district court’s refusal to compel the employer to arbitrate pursuant to the collective bargaining agreement, held that Section 301(a) calls upon the federal courts to fashion a federal substantive labor law.

Lincoln Mills and the Steelworkers Trilogy, *which followed three years later, made it apparent that the cornerstone of this judge-made labor law was to be a policy favoring the operation of the arbitral process in resolving labor-management disputes. Inevitably the Supreme Court was faced with the request of an employer, relying on this federal policy favoring arbitration, to enjoin a strike over an arbitrable grievance. The union, of course, interposed the express prohibition against such an injunction contained in the Norris-LaGuardia Act. In 1962, the Court, in Sinclair Refining Co. v. Atkinson, held that the Act precluded the issuance of the injunction.

But eight years later, in Boys Markets, the Supreme Court reconsidered Sinclair. This reconsideration was prompted in part by the “anomalous” situation created when some employers seeking injunctive relief in state courts, which were not subject to limitations like those of the Norris-LaGuardia Act, were frustrated in their attempts by the unions’ removal of the cases to federal courts. Such federal courts proceeded to vacate the state court injunctions on the basis of the Act. The Court overruled Sinclair and, as Judge Hunter notes, made a “narrow” exception to the Norris-LaGuardia Act. In so doing, the Court “accommodated” the Act to the federal policy favoring arbitration by permitting an injunction in the carefully circumscribed situation that exists when a work stoppage is over an arbitrable grievance. The Court, nevertheless, emphasized that with its opinion in Boys Markets it did “not undermine the vitality of the Norris-LaGuardia Act.”

In light of this historical backdrop, it is necessary to approach cases appearing to hover near the parameters of the Boys Markets exception to the Norris-LaGuardia Act with an understanding that Boys Markets itself may represent the judiciary’s most ambitious foray into an area seemingly pre-empted by statute. Absent a clear signal from the Supreme Court, doubts should be resolved in favor of the applicability of the Norris-LaGuardia Act. When viewed from this perspective, Judge Hunter’s analysis is, in my judgment, particularly persuasive.

It may be suggested that Gateway Coal Co. v. United Mine Workers constitutes a direction by the Supreme Court for federal courts to exercise less circumspection than the language of Boys Markets would seem to indicate in issuing injunctions in circumstances such as those here. The basis of such a suggestion, so the argument seems to go, is the Court’s willingness to imply a no-strike obligation when the collective bargaining agreement did not contain an express no-strike provision. However, in Teamsters Local 174 v. Lucas Flour Company, a damage action, the Supreme Court, eight years prior to Boys Markets, implied a no-strike clause coextensive with the arbitration provision. Therefore, in light of the well-established Lucas Flour precedent, the implication of a no-strike clause in the context of a suit to secure a Boys Markets injunction was not particularly surprising, and, therefore, cannot be said to amount to a signal to relax the rather strict preconditions placed on the issuance of a labor injunction by the Boys Markets decision and set out with specificity by Justice Brennan.

Accordingly, for the reasons so well expressed by Judge Hunter plus those set forth above, I respectfully dissent.

      . After the appeal in this case was filed, ap-pellee submitted a motion to dismiss that suggested the issue had become moot since Local 110 was no longer maintaining a picket line. This claim is without merit. Ap-pellee posted a $5,000 bond to indemnify appellant for attorneys’ fees and any injury suffered in the event it would be determined that the injunction was improvidently granted. Since appellant’s right to indemnification depends upon a decision on the merits, the case is not moot. Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964).

      . The district court never determined the exact relationship between plaintiff-appellee NAPA Pittsburgh and NAPA Altoona. However, appellee concedes that NAPA Pittsburgh liad “potential control” of NAPA Altoona (Brief of Appellee at 3) and at the hearing before the district court held September 7, 1973 appellee’s attorney indicated his belief that the two companies had interlocking directorships and, in most cases, common officers (Appendix at 43a). Appellant asserts that the two are in fact a single company with headquarters at Hamilton Avenue in Pittsburgh. Clarification of this relationship would be important to determine the question of whether the picket line was primary or secondary.

      . The company here concedes that the NLRB has authority to secure an injunction against secondary picketing but contends that this does not deprive the employer of the right to seek an injunction under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. We agree that this is a correct statement of the law. See Arnold v. Carpenters District Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (U.S.1974).

      . In his memorandum of September 11, 1973, the district judge wrote:
      “The testimony showed that Local 926 instructed its members that it would not be a violation of its contract if any of the members refused to enter upon the premises at 6550 Hamilton Avenue because this was a primary picket line and the contract specifically provided it would not be a cause for discharge or disciplinary action for an employee to refuse to enter the premises where there was a primary picket line.” (Appendix at 49a) * * * *
      “The alleged dispute in the instant case concerns the honoring of another union’s picket line.” (Appendix at 51a)
      During the hearing before the district court, counsel for the union also made clear that he was contending that the picket line was primary. (Appendix at 42a-45a)
      The record in the district court makes clear that the disagreement between the parties revolves around the pivotal issue of whether there was a primary picket line. See Boys Markets v. Retail Clerks Union, Local 770, supra at 237-38, 254, 90 S.Ct. 1583, 26 L.Ed.2d 199.

      . The appellant does argue at great length that the “underlying” dispute is not arbitrable. However, as it makes clear even in the initial statement of its first argument, the dispute that it refers to as the “underlying dispute” is the fight between the Company and Local 110 (Brief of appellant at 7). Since this dispute did not concern Local 926 in any way, it obviously was not arbitrable under the terms of Company-Local 926 collective bargaining agreement.
      With regard to the Company-Local 926 dispute as to the legality of the Local 926 work stoppage, appellant’s brief never takes issue with the district court’s finding of arbitrability.

      . Here, resolution of the arbitrable issue will end the work stoppage if the arbitrator rules in the Company’s favor. Obviously, if the union wins, the work stoppage will continue.

      . Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).

      . “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
      “(a) Ceasing or refusing to perform any work or to remain in any relation of employment ; . . . . ” 29 U.S.C. § 104.

      . 398 U.S. at 253, 90 S.Ct. 1583, 26 L.Ed.2d 199.

      . If Local 926, after walking out in recognition of the Local 110 picket line, had said that the men would not return until the pickets were removed, and also until the Company recognised their right to honor that picket line under the collective bargaining agreement, then the situation would be different. Under these facts, it could fairly be said that the union was trying to prevail on the merits of the arbitrable issue by employing economic force rather than by employing reasoned arguments before a neutral arbitrator, and the work stoppage would then be an effort to resolve the merits of the dispute in a way that rendered the arbitrator’s jurisdiction ineffective. At that point, we would be in the true Boys Markets situation and, under the holding of that case, the issuance of an injunction would be sustainable. However, as we note in the text, the facts of the present case are otherwise.

      . One might object to this blanket statement by arguing that the work stoppage does discourage arbitration, indirectly, by pressuring the Company to settle its dispute with Local 110. If the company did, in fact, give in to this pressure, the pickets would be removed, the work stoppage would end, and resolution of the primary-secondary dispute would become totally irrelevant, thereby defeating the arbitrator’s jurisdiction.
      The fallacy in this argument lies in the assumption that resolution of the Company-Local 110 dispute would make an arbitrator’s decision in the primary-secondary issue superfluous. This assumption is wrong for two reasons. First, the company, if correct on the merits, would still have a cause of action for the damages against Local 926, and would need the arbitrator’s decision in order to pursue it. Second, if the Company wished to discipline or discharge any of the employees who engaged in the work stoppage the issue of its legality would also have to be arbitrated.
      In the true Boys Markets situation the employer would not be free to pursue arbitration for these reasons since he would have already conceded on the arbitrable issue. Thus, his continued pursuit of arbitration would amount to a renunciation of his concession of the arbitrable dispute and would invite a renewal of the work stoppage.

      . Since issues arising out of differing interpretations of the terms of the collective bargaining agreement are arbitrable under most arbitration clauses, these allegations will be sufficient to elicit an injunction ending the work stoppage.

      . It is true that the company may eventually need a favorable decision on the merits if it wants to sue the union for the damage caused during the pre-injunction period when the strike was still in progress. However, since these damages can be collected many months after the event, the company can delay arbitration to the maximum extent possible and still not jeopardize its right to monetary relief.

      . As the majority opinion puts it, “Undue delay should not be permitted since the district court has ample authority in the exercise of its equitable powers to see to it that arbitration proceeds promptly and expeditiously.”

      . The relevant Article of the collective bargaining agreement reads as follows :
      “Article XI — Grievance Procedure “Any and all grievances, complaints or disputes arising between the Employer and the Union or any employee represented by the Union and covered by this Agreement shall be settled in the following manner : “FIRST: All complaints or grievances shall be in writing and be filed by the grieving party within 48 hours, and shall be taken up by the Steward and the Employer or Representative of the Employer in the first instance and they shall endeavor to arrive at a settlement of the dispute within 48 hours.
      “SECOND: Failing to agree, the shop Steward shall report the matter to the Union and the Union shall submit it in writing within three (3) days and attempt to adjust the same with the Employer within three (3) days.
      “THIRD: Upon failure to agree and upon request of either the Union or the Employer, the matter shall be submitted within 48 hours to a Board made up of two (2) representatives selected by each party for the purposes of hearing and attempting to adjust the matter.
      “FOURTH: In the event the matter cannot be adjusted by the method set forth above, or in case of any other disputes arising under this contract p'ertain-ing to its meaning or application, each party shall forthwith name one (1) arbitrator and the two (2) so chosen shall within forty-eight (48) hours name a neutral arbitrator. If the two do not agree upon a neutral arbitrator within 48 hours, the Director of the U.S. Mediation and Conciliation Service shall be requested to name a panel of five (5) suggested neutral arbitrators. The arbitrators named by the parties will then select the neutral arbitrator from such panel by each eliminating two of the arbitrators on the suggested panel submitted by the Director of the U.S. Mediation and Conciliation Service. The expense of the neutral, if any, shall be shared equally by the parties. Each party agrees to accept and abide by an award made by the majority of the Arbitration Board so constituted.
      “FIFTH: There shall be no cessation of work during the pendency of the grievance proceedings.”

      . Here, arbitration would have ended the work stoppage if the company had prevailed on the merits of the dispute. However, if the union had prevailed on the merits then arbitration would have had no effect on the work stoppage.

      . As this Court stated in Parade Publications, Inc. v. Philadelphia, 459 F.2d 369 (3d Cir. 1972) :
      “We read [Boys Markets] to indicate that arbitration should be encouraged by permitting judicial enforcement of a ‘no-strike’ clause when the underlying issue is arbitrable, but that there should be no injunction if the underlying dispute is not arbitrable.” Id. at 374 (emphasis added.)

      . We note that our interpretation of the scope of the Boys Markets decision and our conclusion tliat a, Boys Markets injunction should not issue here finds direct support in cases that have been decided by the Fifth Circuit and several district courts on facts almost identical to those presented here. Amstar Corp. v. Amalgamated Meat Cutters, 468 F.2d 1372 (5th Cir. 1972); see, e. g., General Cable Corp. v. Int’l Bhd of Elec. Workers, 331 F.Supp. 478 (S.Md.1971); Simplex Wire and Cable Co. v. Local 2208, Int’l Bhd of Elec. Workers, 314 F.Supp. 885 (D.N.II.1970); 1tut see Monongahela Power Co. v. Local 2332, Electrical Workers, 484 F.2d 1209 (4th Cir. 1973).
      The majority seeks to distinguish this precedent by stating that, “[i]n none of the cited cases was there a contractual provision restricting the union’s right to honor picket lines of other labor organizations.” However, we are constrained to note that the majority, in its attempt to distinguish these cases, has seized upon a factual difference that in no way supports its implicit conclusion that a Boys Markets injunction could be properly denied in the cited cases and still be issued here. In fact, the only conclusion that can sensibly be drawn on the basis of the factual difference noted by the majority is that if a Boys Markets injunction should be issued to end the strike here, then there is an even stronger reason for concluding that a Boys Markets injunction should have been issued in the cited cases.
      It is true, as the majority notes, that the collective bargaining agreement in this case contains a clause that was not contained in the agreements that were in operation in the cited cases. However, to characterize this additional clause as a restriction on the union’s right to strike is misleading. Article XIII of the Company-Local 926 collective bargaining agreement does not restrict appellant’s right to strike. Instead, it enlarges that right by creating an exception to the agreement’s apparently all inclusive no-strike language. See the “Fifth” paragraph of Article XI, note 12, supra. This intent to “enlarge” the union’s right to strike is apparent from the language of Article XIII itself :
      “It shall not he a violation of this Agreement ... in the event an employee . . . refused to go through or work behind any primary picket lines at the Employer’s place or places of business.” (Emphasis added).
      In the cases cited, it is true that the agreements contained no clause similar to Article XIII. However, the agreement in each of these cases, like the agreement here, did contain an apparently all inclusive no-strike pledge. As a result, each of the unions in the cited precedent apparently had no right to strike at all, while in this case the union retained a limited right to strike that was arguably applicable under the facts of the case. Thus, the argument in favor of issuing a Boys Markets injunction to end the strike was stronger in the cited cases than it is in this case, and their denial of injunc-tive relief is a fortiori, in point here.

      . These foremen had been suspended from their jobs because they had neglected to make a safety check they were responsible for making and, as a result, had unnecessarily subjected the men to a dangerous condition.

      . Indeed, it did this most reluctantly in view of the anti-injunctions provisions of the Xorris-LaGuardia Act.

      . 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).

      . See generally Frankfurter & Green, The Labor Injunction (1930).

      . Cf. United States v. UMW, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

      . 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

      . United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).

      . At the time of Boys Markets, “about one-half of the States [had] enacted so-called ‘little Norris-LaGuardia Acts’ . . . .” However, “in only about 14 jurisdictions [was] there a significant Norris-LaGuardia-type prohibition against equitable remedies for breach of no-strike obligations.” 398 U.S. at 247-248 n. 15, 90 S.Ct. at ^1591.

      . 398 U.S. at 253, 90 S.Ct. at 1594.

      . 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

      . 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).

      . 398 U.S. 253-255, 90 S.Ct. 1583, 26 L.Ed. 2d 199.