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November 5, 1948.

ALCOA S.S. CO., Inc., et al.
McMAHON et al.

The opinion of the court was delivered by: RIFKIND

RIFKIND, District Judge.

Collective bargaining is the legislatively established labor policy of the United States. That policy was expressed in the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., in the Wagner Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., and in the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C.A. § 141 et seq. Basic to the success of such a policy is responsible self discipline on the part of those who are collectively represented in such bargaining. If collectively bargained agreements are mere pious hopes which do not in fact govern the conduct of employees and employers, then the whole system of orderly, democratic unionism will in course os time be acknowledged a failure. The inevitable result of such a development will be to confront us with a choice of one of three evils: industrial anarchy; a return to that unequal and inequitable system when the employment agreement was the product of private negotiation between the powerless employee and the all-powerful employer; of an authoritanian subjugation of both employers and employees.

 To put it simply, a union, which will not secure acquiescence on part of the minority of its members in the views of its majority as expressed in a duly accepted union agreement with the employer exhibits less than the required measure of fortitude and self discipline which the employer has the right to expect when he "recognizes" the union as bargaining representative. The minority which reduces the union to such a state of impotence is in reality sabotaging the union and sapping the bargaining power of the majority as well as of the minority of the employees. There is no hope of peaceable progress for the wage earner in such a self-defeating and suicidal policy. Scholars in the field of labor relations are coming to regard the labor agreement, collectively negotiated, as the constitution for the civilized regulation of the industry affected, Chamberlain, 1948, 48 Col.L.Rev. 829. It is simple wisdom that constitutions do not thrive on nullification.

 These observations are prompted by the petition of a number of employers of longshoremen in the Port of New York, filed pursuant to Title 28, § 400(2) now codified in 28 U.S.C.A. § 2202. The facts are simple enough.

 A collectively bargained agreement is in effect between the longshoremen, represented by the International Longshoremen's Association, and their employers. The construction of one of its provisions having come into question, it was resolved in an action for a declaratory judgment by a decree which adjudicated that, under the agreement, the employers had the right to assign more than eight men, out of a gang of twenty, for work inside the hold of a vessel in loading or unloading operations.

 Despite the provision of the agreement, notwithstanding the adjudication and in defiance of the instruction of union officers. a number of the members of three locals subject to the agreement have refused to abide by their obligations thereunder. Respondents do not deny the facts of the petition nor oppose an injunction if one may issue.

 To load or unload general hold cargo a "gang" of twenty men has traditionally been employed, distributed about the hold, deck, and pier. New methods have however been developed under which the number of men to be stationed in each place for efficient operation varies with the nature of the cargo and the apparatus of discharge. To achieve the eConomies of the new method a proper distribution of manpower is required. The effect of insisting, as the recalcitrant longshoremen here insist, on an eight-four-eight distribution among hold, deck, and pier at all times, is on the one hand greatly to prolong the duration of the operations and on the other to leave a portion of the "gang" standing idle on deck or pier because the men in the hold are too few to handle cargo rapidly. That economic waste results both immediately and prospectively in blocking the adoption of improved instruments and techniques is self-evident.

 The petition asks for injunctive relief in aid of the declaratory judgment. The precise character of the relief requested, as modified upon the agrument, is as follows:

 That an injunction issue

 1. restraining the union officials from ratifying such disobedience on the part of the members;

 2. restraining the individual members from refusing, so long as they are in the plaintiffs' employ, to obey the direction to work as directed;

 3. restraining the union from receiving the dues of the recalcitrant members and conferring upon them any union benefits;

 4. restraining the recalcitrant members from working in the longshore industry anywhere in the Port of New York for so long as they continue to disobey.

 The problem is urgent. Its social and industrial implications evoke a keen desire on the part of at least one judge to be the architect of a successful solution. Reluctantly I have concluded that federal judicial action is precluded. ...

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