DocketNumber： No. 9307
Judges： Biggs, Connell, McLaughlin
Filed Date： 2/16/1948
Status： Precedential
Modified Date： 11/4/2024
The plaintiff appeals from an order of the District Court dismissing its complaint on the ground that it fails to state a cause of action under Section 8(c) of the War Labor Disputes Act.
The complaint alleges that appellant is a Pennsylvania corporation which during the relevant period manufactured metal packing for the United States Navy, United States Army and/or the United States Maritime Commission. The appellees are stated to have been at the time of their cessation of production and at the time of their instigation of cessation of production, employees of appellant and representatives of the employees within the meaning of Section 2(d) of the Act. It is said that on or about October 24, 1945 the representa
The complaint as drawn follows the Act and the meticulous use of the statutory language may be assumed to allege a strike. Whether the defendants were actually striking or were abandoning their positions completely is of course not as yet an issue.
Taking the complaint at its face value, as must be done on such a motion, the District Court, concluding that the appellees had not wilfully failed in or refused to perform any duty imposed upon them by Section 8(a), held, “that no action for damages will lie under Section 8 of the Act against the individual defendants by reason of their refusal to continue production during the thirty days succeeding the notice of a labor dispute given by the union representative.” The language of 8(a) (2) that “the contractor and his employees shall continue production * * * ” (Emphasis added) was said by the court to “afford no basis of distinction upon the reasons impelling the individual worker to leave his post, except perhaps if the employee’s act is part of a concerted strike: but even then the distinction is of doubtful validity, * * With reference to the charge in the complaint that the appellees wilfully incited all the other employees to refuse to continue production, the lower court found such conduct not unlawful either expressly or impliedly under Section 8.
Support for its decision was found by the court below in the Constitutional protection against involuntary servitude; in the legislative history of the War Labor Disputes Act; and in the lack of a similar provision in Section 6 of the same Act which applies to government seized plants and provides criminal punishment for inciting work stoppages therein but does not mention any sanctions for actual cessation of work.
The contention that a limitation of the right to strike under the specified narrow conditions of Section 8 partakes of involuntary servitude is not substantiated by the cases. To the contrary, there is a wide distinction between a worker quitting his job, for any reason or no reason, on the one hand, and a cessation of production by workers who seek to win a point from management, on the other hand. The Act here to be construed, in Section 2, adopted its definitions of employee from the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., not then affected at all by the recent Taft-Hartley Act, 29 U.S.C.A. § 141 et seq. Section 2 (3) of the N.L.R.A., 29 U.S.C.A. § 152(3), described a striker- as still an employee. Constructing that very definition, the Supreme Court in N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, at page 345, 58 S.Ct. 904, at page 910, 82 L.Ed. 1381, said:
“The strikers remained employees under Section- 2(3) of the Act, 29 U.S.C.A. § 152 (3), which provides: ‘The term “employee” shall include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, * * *.’ Within this definition the strikers remained employees for the purpose of the act and were protected against the unfair labor practices denounced by it.”
Again, 304 U.S. at page 347, 58 S.Ct. at page 911, 82 L.Ed. 1381, the court said:
“The respondent insists that the relation of employer and employee ceased at the inception of the strike. The plain meaning of the act is that if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employees for the' remedial purposes specified in the act. We have held that, in the exercise of the commerce power, Congress may impose upon contractual relationships reasonable regulation calculated to protect commerce against threatened industrial strike. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 48, 57 S.Ct. 615,*754 629, 1 L.Ed. 893, 108 A.L.R. 1352. The Board’s order there sustained required the reinstatement of discharged employees. The requirement interfered with freedom of contract which the employer would have enjoyed except for the mandate of the statute. The provision of the act continuing the relationship of employer and employee in the case of a strike as a consequence of, or in connection with, a current labor dispute is a regulation of the same sort and within the principle of our decision.”
And see N.L.R.B. v. Fansteel Co., 306 U. S. 240, 256, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; N.L.R.B. v. Ohio Calcium Co., 6 Cir., 133 F.2d 721, 726. A quite similar situation is presented by Texas & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548, 50 S.Ct. 427, 432, 74 L.Ed. 1034, which upheld the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C.A. § 151 et seq. The court there agreed that “the major purpose of Congress in passing the Railway Labor Act was ‘to provide a machinery to prevent strikes.’ ” It approved Section 10 of that Act which stated that “after the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.” Regarding this the court through Chief Justice Hughes said, 281 U.S. at pages 566, 567, 50 S.Ct. at page 432, 74 L. Ed. 1034:
“The provision of section 10 is to be read in connection with the qualification in subdivision eighth of Section 9 that nothing in the act shall be construed to require an individual employee to render labor without his consent or as making the quitting of service by an individual employee an illegal act, and that no court shall issue any process to compel the performance by an individual employee of labor without his consent. The purpose of this limitation was manifestly to protect the individual liberty of employees and not to affect proceedings in case of combinations or group action. The denial of legal process in the one case is significant with respect to its expected, appropriate use in the other.”
Much to the same effect is Wilson v. New, 243 U.S. 332, 359, 37 S.Ct. 298, 306, 61 L.Ed. 755, L.R.A.1917E, 938, Ann.Cas. 1918A, where in sustaining the Eight Hour Day Act of 1916, 39 Stat. 721, 45 U.S.C.A. §§ 65, 66, the Supreme Court held that Congress had the power “to provide by appropriate legislation for compulsory arbitration.”
In brief, the restrictéd limitation of the right to strike, in this Act, refers to circumstances involving a continuing master and servant relationship. There is no involvement here with the distinct — and unquestioned — right of the worker to quit his job or the right of the employer to discharge him for cause. In this situation we fail to see any true constitutional question in this case.
The court below in concluding that the record of Congressional discussion at the time of the statute’s passage shows the section in question was meant only to apply to employers, relied greatly upon a statement by Senator Taft on the floor of the Senate. Senator Lodge had come upon a “continue production” phrase in a proposed part of the bill which would have made it a crime for a worker to strike during a certain period in a private plant producing war material. He wanted to know if there was criminal punishment for such a discontinuance. Senator Taft replied, at page 3972 of Part 3, Volume 89 of the Congressional Record, “I do not think there is any penalty, so to speak, in that case.” He then said that the clause continued previous agreements for labor-management relations during any then current dispute. However, the whole section of which he spoke failed of passage and never became law. Cong. Rec., Vol. 89, Part 3, p. 3984.
The bill which actually did become law and which is before this court for construction was an amendment originally in somewhat different form proposed by Representative Harness. Cong. Rec. Vol. 89, Part 4, p. 5328. As first proposed, this amendment attempted, during a cooling-off period after the rise of a labor dispute in a war production plant, to make it “unlawful for a * * * contractor to conduct a lock out * * * for employees * * * to strike * * Commenting on this proposal, Representative Harness said his bill “would apply to labor unions or individuals of la-
It is true that on occasion Congressman Harness seemingly contradicted himself. It is to be noted, however, that his statements above quoted and consistent with the wording of the Act were made later than any statements by him to the contrary prior to its passage. Certainly it is plain that the legislative history of the statute in its entirety does not sustain the proposition that Congress did not intend to touch the right to strike. And even assuming that the history of itself does not conclusively show that said right was to be affected, the final statutory language is so plain it needs no such collateral support. “Construction may not be substituted for legislation.” United States v. Missouri Pac. R. Co., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322. “To let general words draw nourishment from their purpose is one thing. To draw on some unexpressed spirit outside the bounds of the normal meaning of words is quite another.” Addison v. Holly Hill Co., 322 U.S. 607, 617, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488, 153 A.L.R. 1007. Cf. Crossett Western Co. v. Commissioner, 3 Cir., 155 F.2d 433, 437, and the remarks of Judge Maris in Suwannee Fruit & St. S. Co. v. Fleming, Em.App., 160 F.2d 897, 898.
The fact that there are no civil penalties contained in Section 6 for striking from a government operated war plant weighed heavily with the District Court, but this cannot be said to control the present situation because such penalties are expressly contained in Section 8. Nor does there appear any sound reason for concern over the alleged inconsistency between Sections 6 and 8. Indeed, when it is recalled that Section 6 involves criminal penalties, its sharp limitations as compared with Section 8 shape up as reasonable.
It does seem therefore that the national security measure under consideration applies to employers and employees alike in their fundamental obligation as citizens functioning in a wartime emergency and that the ordinary meaning of the words of Section 8 should be recognized as referring to Both groups. As stated by Judge Miller in Hamilton v. N.L.R.B., 6 Cir., 160 F.2d 465, at page 470:
“The Act specifically provides that during the cooling-off period the contractor and his employees ‘shall continue production under all the conditions which prevailed when such dispute arose.’ The phrase ‘shall continue production’ is not ambiguous. It is the exact opposite of discontinuing production or discontinuing the work which results in production. The Act requires not only that the contractor continue production, but also- that the employees continue production. The employees cannot be permitted to discontinue work and at the same time be required to continue production. Section 6 of the Act, dealing with Government operation of plants, specifically preserves to the employees by a separate sentence the right to cease work, but such a reservation of right is omitted from Section 8 dealing with war production under a war contractor. Such an intentional omission is significant and important * * *. [Citing cases] The essential purpose of Section 8 is to prevent interruptions to war production; this purpose is defeated if the Act permitted employees to discontinue work during the cooling-off period. It is another purpose of the Act that the employees participate in a secret ballot during the cooling-off period to determine whether or not any interruption to> the war production should take place; this purpose is also defeated if individual employees, regardless of their number, are permitted to cease work before such a ballot is taken, and irrespective of any result of such balloting. In short, a construction of the section which authorizes the employees to quit*756 work during the cooling-off period ■ runs diametrically counter to the fundamental purpose of the Act, which is to continue production during a 30-day period regardless of the labor dispute involved. The ■construction which we give to the provisions of the Act that the employees shall ■continue production, namely, that employees are not permitted to cease work during the 30-day cooling-off period, does not violate any constitutional rights when ■considered as an incident of the exercise ■by Congress of its war powers in furtherance of the war effort. * * * [Citing •cases] The Act is civil, not criminal, in its nature, imposing damages, not confinement, for. its violation.”
Regarding the further charge in the complaint that appellee wilfully incited all the other employees of the bargaining ■unit to refuse to continue production, the ■District Judge correctly states that 'Section 8(c) does not make it unlawful to commit that type of act. It is also a fact that Section 6 in dealing with government seized plants does expressly prohibit such conduct. In the circumstances it must be fairly accepted that the Congress simply •did not intend such provision to be included in Section 8. This, however, does not defeat the claim clearly pleaded against the .appellees for their own wilful refusal to •continue production. It is stated that the .allegation as to the appellees wilfully inciting all the other employees to refuse to •continue production was made because appellant felt, as the District Court states in the opinion [67 F.Supp. 845], that Section .8 impliedly “asserts that no strikes may be called during the thirty-day ‘cooling-off’ period,” and because such allegation is of •considerable assistance to appellant in presenting and making out a cause of action •on the primary charge. There may be ■enough merit to the latter contention to justify retention of tire allegation in the complaint for that stated purpose; but that question has to do with amendment of the complaint and is for the District Court.
It should be noted that the suit is against three individuals and not against the union of which they are officers. The statute, in terms, permits this, so that its propriety at this stage of the litigation cannot be gainsaid. Any defense on this point will be passed upon in due course by the trial court. Our present decision is simply that the complaint does state a cause of action against appellees for their alleged wilful refusal to continue production.
The judgment of the District Court will be reversed and the case remanded to that court for further proceedings not inconsistent with this opinion.
Act of June 25, 1943, c. 144, 57 Stat. 167, 50 U.S.C.A. Appendix, § 1501 et seq. Section 8 reads in part as follows:
“(a) In order that the President may be apprised of labor disputes which threaten seriously to interrupt war production, and in order that employees may have an opportunity to express themselves, free from restraint or coercion, as to whether they will permit such interruptions in wartime—
“(1) The representative of the employees of a war contractor, shall give to the Secretary of Labor, the National War Labor Board, and the National Labor Relations Board, notice of any such labor dispute involving - such contractor and employees, together with a statement of the issues giving rise thereto.
“(2) For not less than thirty days after any notice under paragraph (1) is given, the contractor and his employees shall continue production under all the conditions which prevailed when such dispute arose, except as they may be modified by mutual agreement or by decision of the National War Labor Board. * * *
“(c) Any person who is under a duty to perform any act required under subsection (a) and who willfully fails or refuses to perform such act shall be liable for damages resulting from such failure or refusal to any person injured thereby and to the United States if so 'injured. ”
In tbe present posture of this litigation, we do not see that we are concerned with attempting to anticipate possible difficulties, if any, plaintiff may experience with its proof as to damages!