(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-4993
(Summary Calendar)
_____________________________
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local Union
No. 390, ET AL., Plaintiffs-Appellees,
versus
QUANTUM CHEMICAL CORPORATION,
USI Division,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:92cv355)
_________________________________________________
(February 3, 1993)
BEFORE KING, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
In this labor law case, Defendant-Appellant Quantum Chemical
Co. (Quantum) appeals the district court's grant of a preliminary
injunction preventing Quantum from implementing its overtime
policy. Concluding that the district court abused its discretion
in granting such relief, we vacate the preliminary injunction.
I

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2
FACTS AND PROCEEDINGS
This dispute arises from Quantum's implementation of an "on
call duty" policy (the new policy) to supplement its preexisting
policy (the old policy). Under the old policy, overtime work was
assigned on the basis of a list that ranked workers in order, from
those with the least number of accumulated overtime hours to those
with the most. Whenever an unscheduled need for overtime work
arose, the company would begin to call workers by telephone in that
order. If no one from the list agreed to come into work, the
process would be repeated a second time. If there was still no one
willing to come in, the company would bring in either a supervisor
or an outside contractor from a second list.
Because its workers had demonstrated an unwillingness to work
overtime when called in the past, Quantum initiated the new policy
on the authority of the following language contained in the newly
negotiated collective bargaining agreement: "Because of the
absolute necessity of keeping the Plant in continuous production,
employees will be required to work overtime." The new policy
requires workers to be "on call" on a rotating basis every day of
the week, including weekends. Throughout such periods, each "on
call" employee is required to carry an electronic pager. If
called, the employee must respond within twenty minutes; and once
the employee responds, he or she must report to work within "a
reasonable time" or face disciplinary actionSQincluding the
possibility of discharge. We reiterate, however, that an employee
would be called under the new policy only if the established method

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1 29 U.S.C. § 185.
2 Id. §§ 101-115.
3
under the old policy failed to produce the required overtime
workers. And, under the new policy, the employees are free to swap
their rotation schedules.
The unions objected to the new policy through the appropriate
grievance procedures. In addition, the unions filed suit in
federal district court under § 301 of the National Labor Relations
Act (NLRA),1 alleging breach of collective bargaining agreements
and seeking a temporary restraining order and a preliminary
injunction to prevent implementation of the new policy pending
completion of arbitration. The district court granted the
temporary restraining order, and subsequently granted the
preliminary injunction, reasoning that arbitration would not
compensate the employees for lost time and that therefore an
injunction was appropriate to preserve the status quo.
Quantum timely appealed, arguing that under the Norris-
LaGuardia Act (NLGA)2 the district court lacked jurisdiction to
issue the injunction. Alternatively, Quantum urges that even if
the district court had jurisdiction to issue the injunction, it
abused its discretion in doing so in the instant case.
II
ANALYSIS
The NLGA limits the jurisdiction of federal courts to issue
injunctions in labor disputes, providing in pertinent part:
No court of the United States . . . shall have

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3 Id. § 101.
4 398 U.S. 235 (1970).
5 In Boys Markets, the action at issue was a strike by the
employees. The Court classified this as a "tactic[] that
arbitration is designed to obviate." Id. at 249. The Court also
reasoned that the issuance of the injunctive relief would "merely
enforce[] the obligation that the Union freely undertook under a
specifically enforceable agreement to submit disputes to
arbitration. Id. at 252-53.
6 Id. at 253.
7 Most importantly, see Buffalo Forge Co. v. Union
Steelworkers of America, 428 U.S. 397 (1976).
8 906 F.2d 149 (5th Cir. 1990).
4
jurisdiction to issue any restraining order or temporary
or permanent injunction in a case involving or growing
out of a labor dispute, except in strict conformity with
the provisions of this chapter; nor shall any such
restraining order or temporary or permanent injunction be
issued contrary to the public policy in this chapters.3
The Supreme Court clarified this provision in Boys Markets, Inc. v.
Retail Clerks Union,4 holding that a court may issue an injunction
to prevent an action, the continuation of which would frustrate the
arbitration agreement.5 An injunction under such circumstances is
permissible, the Court reasoned, because it was the "limited use of
equitable remedies to further the important public policy" of
favoring voluntary arbitration.6
Both parties concede that the exception created by Boys
Markets is a narrow one. Subsequent decisions of this court have
applied the rule of Boys Markets and its progeny,7 which guide our
determination in the instant case. In Local Union 733 of IBEW v.
Ingalls Shipbuilding,8 we articulated a two prong test when we
held that injunctions to preserve the status quo should not be

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9 Id. at 152.
10 Id.
5
issued unless: (1) the employer agreed in the labor contract not to
engage in self-help, or "[t]he arbitration process to which the
parties have agreed would be frustrated or rendered nugatory by the
self-help measure"; and (2) the "traditional requirements for a
preliminary injunction" are present.9 The arbitration process is
rendered meaningless "only if any arbitral award in favor of the
union would fail to undo harm occasioned by the lack of an
injunction to preserve the status quo pending arbitration."10
In its memorandum opinion, the district court accurately set
forth the rule of Boys Markets as applied in this Circuit.
Considering the second of the two alternative elements contained in
the first prong of the Ingalls test, the court concluded that the
arbitration process was meaningless under the circumstances because
it could never compensate the employees for the time they had lost
while "on call." The view that this harm was sufficiently
irreparable to require an injunction is reflected in the court's
statement that
[t]he harm done to union members under Quantum's `on
call' policy is the ongoing, uncompensated and
irreparable loss of these workers' off-duty time and
freedom. . . . That most precious and most perilous of
all mortal assets, time, and the freedom to utilize what
little time we have outside of the pursuit of our daily
breadSQto loaf, fish, watch football, have a drink at the
local bar, or play with childrenSQhas been eaten away,
never to be regained.
Even under the deferential abuse of discretion standard that

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11 Allied Pilots Ass'n v. American Airlines Inc, 898 F.2d 462,
465 (5th Cir. 1990).
12 Bright v. Houston Northwest Medical Center Survivor, Inc.,
934 F.2d 671 (5th Cir. 1991) (en banc) (holding time spent "on
call" was not compensable "working time" for purposes of Fair Labor
Standards Act so long as the employee can use the on call time
effectively for his or her own use).
13 In Bright, we held that a similar twenty minute restriction
did not prevent the employee from effectively using his free time
while "on call." The fact that the employees in the instant case
were from a rural area is not persuasive given that the employee in
Bright lived 25 to 30 minutes from his place of employment.
6
we apply to the grant or denial of a preliminary injunction,11 we
are here convinced that the district court erred in granting an
injunction for the reasons expressed. Although we have never
decided whether the loss of time by workers "on call" is an injury
sufficient to warrant an injunction pending arbitration of that
issue, we have, in another context, expressed the view that the
inconveniences associated with being "on call"SQeven when the sole
employee so situated was on call for a continuous one-year period
without the possibility of rotation or swapping duty time with
othersSQwas not such an extreme burden given that the employee
could use the "on call" time effectively for his own purposes.12
In the instant case, the numerous employees on call duty would
rotate; they could swap their "on call" assignments; and they had
"a reasonable time" to report to work.13 When we view the totality
of the circumstances that the district court here had before it, we
are convinced that the court abused its discretion by holding that
the inconveniences visited on each of the workers by the new policy
while it was their respective turns to be on call rises to a high

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14 Ingalls, 906 F.2d at 152-53 (citing Independent Oil & Chem.
Workers of Quincy, Inc. v. Proctor & Gamble Mfg. Co., Inc., 864
F.2d 927 (1st Cir. 1988)).
15 Ingalls, 906 F.2d at 153 (citing Proctor & Gamble, 864 F.2d
at 928).
7
enough level to require that the statute quo be preserved by an
injunction pending arbitration.
Our conclusion is further buttressed by our Ingalls decision,
in which we held that an injunction to prevent drug testing pending
arbitration was unwarranted. In that case, we rejected the
argument that arbitration would be meaningless because it would not
remedy the humiliation, the harm to the reputation, or the invasion
of privacy anticipated to be suffered by the employees. Certainly
those harms are no less serious than the occasional loss of time,
cited here as justification for the district court's injunction.
Moreover, in Ingalls we cited with approval the First Circuit
case of Independent Oil and Chemical Workers of Quincy, Inc. v.
Proctor & Gamble Manufacturing Co, in which that court held that
the restructuring of work-shift scheduling and change of dress code
were not sufficiently serious to warrant an injunction.14 Here, the
district court attempted to distinguish the instant case on the
fact that the policy in the First Circuit case changed only the
times when off-duty time could be taken, whereas Quantum's new
policy changed the amount of off-duty time availability. We do not
find this distinction persuasive, especially when we note, as we
did in Ingalls, that the new policy in Proctor & Gamble "virtually
eliminated the workers' previous ability to swap shifts freely."15

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8
Rather, we find that here the district court abused its discretion
in granting the injunction to prohibit implementation of the new
policy pending arbitration.
Consequently, the injunction granted by the district court is
VACATED.

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