DUMBAULD, District Judge.
On October 30, 1973, this Court routinely and ex parte, thinking we were dealing with what Judge Adams calls "a 'Boys Markets' injunction",
granted a temporary restraining order against a work stoppage upon presentation of a complaint containing copy of a collective bargaining agreement including a no-strike provision and a provision for grievance arbitration procedure in the usual form.
At the hearing on preliminary injunction on November 9, 1973, the union defendants contended persuasively that in fact no collective bargaining agreement was in force between plaintiff and defendants, and the Court was convinced that the temporary restraining order had been improvidently granted and should be permitted to expire.
The Court accepted, as on a common law demurrer, the truth of the allegations set forth by plaintiff's counsel, and concluded as a matter of law that "the determination sought to be judicially enforced is not the type of quasi-judicial award pursuant to a collective bargaining agreement which is so enforceable under current doctrine, but is a quasi-legislative negotiation of certain terms of such an agreement, the attempt to enforce which without exhausting the appropriate grievance procedure is premature, and this Court therefore has no authority to afford injunctive relief."
Stated differently, the Court was of opinion that the instant case did not fall within the Boys Markets exception
to the Norris-LaGuardia Act
which eliminated labor injunctions.
On November 9, 1973, an appeal was taken, and on the same day Judge van Dusen made an order whereby "the terms of the temporary restraining order entered by the United States District Court for the Western District of Pennsylvania, which expires tonight, are continued until further order of this court," and a hearing before a panel of the Court of Appeals was set for November 13, 1973, "to consider the continuance of such injunction pending appeal and the Motion for an expedited appeal."
At the hearing on November 13, 1973, before Judges Kalodner, van Dusen, and Adams, the following order was made:
It appearing on hearing that the parties are agreed that the cause should be remanded to the district court for a hearing on the application for a preliminary injunction, the stay order of this court entered November 9, 1973 is hereby vacated, and the cause is remanded to the district court with directions to proceed forthwith to a hearing on the application for a preliminary injunction, without prejudice to an application to the district court for a temporary restraining order pending hearing. The mandate shall issue forthwith.