Drake Bakeries Incorporated v. Local 50 American Bakery & Confectionery Workers International AFL-CIO/Dissent Harlan

Mr. Justice HARLAN, dissenting.

The question presented in this case is whether the parties to this collective bargaining agreement intended that a court, rather than an arbitrator, should decide the employer's claim that the union had violated the no-strike clause of the agreement. Whether a strike in breach of contract has occurred and, if so, what damages have been suffered, are matters with respect to which a court of law can hardly be deemed less competent, as an adjudicator, than an arbitrator. There is no special reason to suppose that the parties preferred to submit this kind of a dispute to an arbitrator whose expertise is more likely to be in the area of employees' grievance claims, as in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580-582, 80 S.Ct. 1347, 1351-1352, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424. The less so, from the standpoint of the employer, when it is recognized that any damages awarded by an arbitrator would not be self-enforcing.

It would require more persuasive evidence than either this collective agreement or record affords to persuade me that it was contemplated that the employer would forego his statutory remedy under § 301 respecting alleged violations of the no-strike clause of the collective agreement. I would reverse the judgment below substantially for the reasons given in the panel opinion of the Court of Appeals, 287 F.2d 155.