The appellant and the appellee are parties to a collective bargaining contract within the purview of the National Labor Relations Act.1 The contract was effective for a two-year period from June 1, 1956, through May 31, 1958, and included a renewal provision. Under the terms of the contract, the right to employ and discharge employees, while vested exclusively in the Company, is subject to certain limitations, one being that a discharge may constitute a "grievance." A "grievance procedure" is specified for any difference arising between the Company and any employee as to the meaning, application or interpretation of the contract; an unsettled grievance may be submitted to arbitration. Pertaining to arbitration, Article V, Section 2 of the contract states:

"The Board of Arbitration shall render a decision within fifteen (15) days from the date the hearing is completed. The terms and conditions of settlement shall be within the sole discretion of the Board and the decision of a majority of the Board shall be final and binding on the parties; provided, however, the Board shall have no authority to violate, contravene, disregard or supplement the terms of this agreement."

The contract contains a "wage reopening clause" which states that the question of wages can be reopened by either party once a year upon giving thirty days' written notice to the other, and if no agreement is reached within sixty days after the notice, any strike limitation on the Union terminates.

The appellant reopened the question of wages under the "wage reopening clause" and, after reaching no agreement, effected a strike on April 29, 1957. The strike ended on June 8, 1957, with a settlement of a three cent per hour wage increase. The settlement agreement was in the form of a letter from the Company accepted by the appellant. The last paragraph of this letter states:

"Strikers who are lawfully entitled to reinstatement shall be reinstated to their respective jobs as rapidly as an orderly and economic readjustment of plant operations will permit, and in any event in not more than thirty (30) days from the date the strike is discontinued. Reinstatement notices will be mailed to the last known address of striking employees. Employees who do not report for duty, or submit a valid reason for not reporting, within five (5) days after reinstatement notice is mailed shall forfeit any right to reinstatement. These provisions shall not in any way prejudice the right of the company to reduce the working force." (Emphasis supplied.)

Upon the termination of the strike, fifteen employees, members of appellant, were discharged or were refused reinstatement because of "strike misconduct."

Appellant demanded arbitration of the discharge of or refusal to reinstate the fifteen employees and, upon refusal by the Company, brought this action to compel arbitration under the contract, invoking the jurisdiction of the federal courts under section 301 of the Act.2 The trial judge granted summary judgment for the Company under Rule 56, Federal Rules of Civil Procedure, 28 U. S.C.A.

The Company defends this action upon two grounds: first, that the arbitration provisions of the contract are in no way applicable to the matter of discharging or refusing to reinstate the fifteen employees released for misconduct during the strike; second, if the arbitration provisions are applicable, the matter of discharge or reinstatement is within the exclusive jurisdiction of the National Labor Relations Board which renders an arbitration agreement on this matter unenforceable. The trial court held the first defense good and declined to consider the second. It reasoned that the parties intended by the contract to submit grievances to arbitration only where the operations of the Company were normal; that the employees were not in the employ of the Company since the strike precluded normal operations; and that the language of the Settlement Agreement implied that the Company should unilaterally decide who was "law fully entitled to reinstatement." The pertinent portion of the trial judge's memorandum opinion is printed in the margin.3

Since we disagree with the district court's opinion that no arbitration would lie to the matter at bar, we must also decide the issue of pre-emption raised by the appellee.

I. Was the Dispute Arbitrable?

Initially, the appellant earnestly contends that the question of arbitrability should be determined by the arbitration board in this case, saying that the lower court should not have decided the issue of arbitrability in view of the contract provision that "any grievance" could be arbitrated. While there is much to say in favor of appellant's argument,4 the courts have, with practical uniformity, held the question of arbitrability to be an issue for the courts — that is, the courts decide if the particular grievance is arbitrable under the terms of the collective bargaining contract.5 This is true even where the contract specifies that any controversy relating to the meaning or interpretation or application of the contract is arbitrable.6 Perhaps, if the contract expresses that the arbitrators will decide arbitrability, the courts would refrain from a decision.7 We will not delve into the intricacies or the merits of either side of this problem.

The general policy considerations of promoting harmonious interplay and propitious relations between labor and management, which will achieve industrial peace, have been given their full weight in the interpretation of collective bargaining contracts. With this search for true tranquillity in the industrial world ever in mind, the courts have crystalized from the supersaturation of litigation since 1947 several "rules of construction" in the interpretation of collective bargaining contracts to arbitrate. We consider the general rule to be that a dispute between labor and management is arbitrable where the dispute is specifically contracted to be arbitrable or generally where the contract expresses a broad arbitration policy, i. e., a general arbitration clause;8 but controversies are not arbitrable where the controversy in question is specifically excluded, where because of a listing of many arbitrable incidences the instant controversy is impliedly excluded,9 and where the controversy or grievance concerns violation of a "no strike clause."10

In the case at bar, not only does the contract specifically state that grievances arising from discharges may be arbitrated but it also has the general provision that "any difference" arising "between the Company and any employee as to the meaning, application or interpretation of the provisions" of the contract may constitute a grievance and, if not settled, may be arbitrated. We cannot agree with the trial court that the parties contemplated the contract to cover only "normal operations free from strike," nor can we agree that the striking employees were not in the employ of the Company.11 The contract implies a broader, even an inclusive, coverage. The preamble of the contract states:

"Article I — Preamble

"The intent and purpose of the parties hereto is that this agreement will promote, improve, and maintain industrial economic and harmonious relations between the Union and the Company and to set forth herein the basic agreement covering rates of pay, hours of work, and conditions of employment to be observed between the Company and its employees."

We cannot interpret the contract to say that grievances arising from a discharge of employees for strike misconduct, where the employees were striking under the terms of the contract, would be impliedly excluded from arbitration. Neither did the settlement memorandum impliedly exclude from arbitration any arbitrable matter in the contract. The question of which strikers are "lawfully entitled to reinstatement" must be considered an arbitrable matter rather than left to the unilateral determination of the Company in order to preserve the terms of the contract relating to seniority, retirement, etc., and to carry out its general intent and purpose.

II. Exclusiveness of Jurisdiction.

The second ground of defense presents the question of whether parties to a collective bargaining agreement may contract to submit matters involving unfair labor practices12 to private arbitrators with such contract enforceable by the federal courts under section 301 of the Act, or whether all controversies concerning unfair labor practices are within the exclusive jurisdiction of the National Labor Relations Board which pre-empts the federal courts from acquiring jurisdiction over a contract violation which happens also to be an unfair labor practice. This question has not been raised previously in this Court, nor has it been decided by the Supreme Court.

The appellee asserts that, since the discharges were made because of union activity — protected or unprotected — which presents the question of unfair labor practice vel non,13 and since the exclusive jurisdiction of the Board pre-empts state courts and agencies from deciding issues involving such unfair labor practices,14 certainly the parties cannot by contract give to private arbitrators more jurisdiction than is afforded to state courts. However, the appellee overlooks the obvious distinction between contract provisions and matters committed exclusively to the Board. If an arbitrable contract violation encompasses an unfair labor practice, the majority of the courts have held that arbitration is proper to decide all matters not included in the pre-emptive area. Likewise, the better-reasoned cases hold that even where the aggrieved incident or act constitutes both a contract violation and an unfair labor practice, particularly concerning a substantive contract right such as employment or pay, the federal district courts will not be deprived of jurisdiction to grant relief as to the breach of contract, the other aspect being left to the Board.15

However, in this case, we must go one step further because substantially the same conduct here involved would constitute a violation of the contract and an unfair labor practice. The distinguishing point is that, while an act may be both an arbitrable contract violation and an unfair labor practice, a "breach of contract is not an unfair labor practice"; the former is enforced by the courts, the latter by the Board;16 the former gives to private parties a remedy, the latter uses a private right to effectuate the declared policies of the Act;17 the former gives a certainty of decision, the latter leaves decision discretionary.18 Section 10(a) of the Act19 states that the power of the Board over unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Will the submission of a contract violation, which is also an unfair labor practice, to arbitration "affect" this power of the Board? Certainly not. Since the Board's power is plenary in all respects, "neither the existence of an agreement to arbitrate nor a rendered award can preclude the Board from exercising its statutory jurisdiction."20 But certainly an award or an agreement to arbitrate may serve to temporarily assuage the aggrieved party and afford validity to contract terms (even including unfair labor practices) until a final disposition of the matter of unfair labor practice be made by the Board. Even though the Board is not bound by an arbitration award, it may find that compliance with the award is not violative of the Act,21 or it may even, in the exercise of its discretionary power, decline action because an award has been made or arbitration is possible.22

Such a practice may be at least a partial answer to the commonly known fact that the National Labor Relations Board has presented to it such a multitude of complaints and grievances that decisions are slow in forthcoming and many cases are refused review.23 State tribunals have no jurisdiction in many areas of unfair labor practices even though the Board, because of its overflowing docket, has voluntarily relinquished jurisdiction but failed to cede jurisdiction to a state agency.24 But "we cannot believe that Congress intended to create a no man's land where voluntary arbitration is barred and the national labor relations board may be too overburdened to enter."25 Certainly, if an otherwise arbitrable controversy happens also to be an unfair labor practice, the parties should not be forced to abandon their contract right and be relegated "to the slow and creaking procedure which, like a wounded snake, has dragged its slow length along, sans bargaining, sans labor peace, sans everything but pride of opinion, ill temper and frustration."26 We think it too technical and obtrusive to attempt a division of the present controversy into a contract part and an unfair labor part. Such a division is merely a play on words. It is better to call the spade and say that enforcement of a contract to arbitrate grievances is different from an adjudication of an unfair labor practice by the National Labor Relations Board. This will prevent the nebulous determination of what part is contract and what part is unfair labor practice when the one part constitutes both.

We believe that this decision is required by the teaching of the recent Lincoln Mills cases.27 While these cases did not concern an issue which was both contracted to be arbitrable and concerned unfair labor practice, they did establish two broad principles: first, that the United States district courts have the unequivocal statutory power to decree specific performance of collective bargaining contracts to arbitrate; and, second, that private arbitration in the labor-management field is to be afforded broad liberalities. In this connection, the Supreme Court stated at 353 U.S. 455, 456, 457, 77 S. Ct. 917:

"Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.

* * * * * *

"It seems, therefore, clear to us that Congress adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes, by implication rejecting the common-law rule, discussed in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 [44 S. Ct. 274, 68 L. Ed. 582] against enforcement of executory agreements to arbitrate. We would undercut the Act and defeat its policy if we read § 301 narrowly as only conferring jurisdiction over labor organizations.

"The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandate. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 351 [60 S. Ct. 285, 288, 84 L. Ed. 313]. Federal interpretation of the federal law will govern, not the state law. Cf. Jerome v. United States, 318 U.S. 101, 104 [63 S. Ct. 483, 485, 87 L. Ed. 640]. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners of Jackson County v. United States, supra, [308 U.S. at pages 351-352, 60 S.Ct. at pages 288-289]. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights." Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 455-457, 77 S. Ct. 912, 918, 1 L. Ed. 2d 972.

"The range of judicial inventiveness will be determined by the nature of the problem." Within the spirit of the Lincoln Mills cases, and consonant with other well-reasoned decisions, the fact that the conduct here involved may constitute an unfair labor practice will not prevent it from being also an arbitrable contract violation.

Reversed and remanded.

CAMERON, Circuit Judge.

I concur in the result.