irreparably harmed if, in the future, it resumes its business operations
in Kansas City, Missouri, because the Union’s picket signs alleged unfair
labor practices by Transport and Railway. Moreover, under the Union's view
that Railway and Transport are a single employer, Railway would likely be
irreparably harmed because of the disruption to its interstate rail service
caused by its own uninvolved employees' refusal to cross the Union's picket
line. This likelihood, together with the existence of the other three
Dataphase factors, is sufficient, without further proof of irreparable harm
to Transport, to support the relief granted.
Furthermore, we disagree with the holding in Tudor because it is
contrary to federal labor policy favoring arbitration as “a mechanism for
the expeditious settlement of industrial disputes without resort to
strikes, lockouts, or other self-help measures.” Boys Markets, 398 U.S.
at 249. “The primary function of a preliminary injunction is to preserve
the status quo until, upon final hearing, a court may grant full, effective
relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th
Cir. 1984) (issuing injunction to restore business activity). It is
therefore consistent with federal labor policy to preserve the status quo
by enjoining the Union’s picketing over the termination of the Transport
employees, which may be an arbitrable issue, pending a final determination
of whether the Union is bound to resolve the dispute by arbitration.
We hold that the district court’s order complies with Boys Markets.
The district court properly modified its original order issuing the
preliminary injunction and stayed the arbitration provisions "pending an
evidentiary hearing on the permanent injunction (including the issue of
single employer status)." Modified order at 1. In AT&T Technologies, Inc.
v. Communications Workers of Am., 475 U.S. 643 (1986) (AT&T Technologies),
the Supreme Court set forth three rules governing a party’s duty to
arbitrate. First, “arbitration is a matter of contract and a party cannot
be required to submit to arbitration any dispute which he has not agreed
so to submit.” Id. at 648 (citation omitted). Second, “the question of
arbitrability -- whether a collective bargaining agreement creates a duty
for the parties to arbitrate the particular grievance