[Industrial peace] would hardly be obtained if a substantial minority of the craft were denied the right to have their interests considered at the conference table and if the final results of the bargaining process were to be to the sacrifice of the interests of the minority by the action of a representative chosen by the majority. The only recourse of the minority would be to strike, with the attendant interruption of commerce, which the [ Railway Labor ] Act seeks to avoid.1
Ever since Lincoln Mills and the Steelworkers' Trilogy promulgated the rule that the no-strike clause and grievance-arbitration machinery are the quid pro quos for each other,2 it has become increasingly clear that if the arbitration part of the bargain is inadequate, the limitations imposed upon the strike weapon may well become inoperative. The Supreme Court appeared to recognize this point in the context of a safety dispute in Gateway Coal Co. v. United Mine Workers3 where Justice Powell concluded that a "work stoppage called solely to protect employees from immediate danger...authorized by §502 [the safety provisions of Taft- Hartley] cannot be the basis for either a damages award or...[an] injunction."4 While, in my judgment, the ability of trade unions or employees to strike in the face of a no-strike obligation contained in a collective-bargaining agreement may not be totally dependent upon the adequacy or inadequacy of the arbitration machinery insofar as employment discrimination disputes are concerned, the fact is that the two things have a great deal to do with each other.
First, Sections 8(a)(1) and (3) of the National Labor Relations Act, as interpreted by the board and the courts, prohibit employer retaliation in the form of discharge and discipline against workers who protest through a walkout or picketing what they regard to be poor working conditions.5* But when a union negotiates a collective agreement which prohibits such practices through, for example, a no-strike clause,6* the walkout becomes unprotected and the worker is exposed to the above-noted penalties. The Supreme Court has limited the ability of employers to discipline workers even when no-strike clauses exist. In Mastro Plastics v. NLRB.7 the Court held that a no-strike clause could not be read to prohibit a strike that was called in response to unfair labor practices by the employer.8* The Mastro Plastics opinion noted that such unfair labor practices were destructive of the