The opinion of the court was delivered by: KNIGHT
There comes up for consideration by this Court a motion, by the plaintiff, for a preliminary injunction enjoining 'the defendants, and each of them, and their officers, agents, servants and employees, and all persons in active concert or participation with them, or any of them, (a) from in any manner continuing, encouraging, ordering, aiding, engaging or taking any part in strikes or lockouts in the plant of the American Locomotive Co. (hereinafter called ALCO) at Dunkirk, New York; (b) from in any manner interfering with or affecting the orderly continuation of work in the said plant, and from taking any action which would interfere with this Court's jurisdiction in the premises.'
On December 12, 1952, this Court, on application of the plaintiff, granted a temporary restraining order enjoining defendants and individuals from doing or engaging in any of the aforesaid acts. The temporary restraining order provided for its expiration at 2:35 o'clock P.M. on December 22, 1952, lest before that time the said order, for good cause shown, is extended or lest the defendants consent that it may be extended for a longer period. It is in pursuance of the provisions of the temporary restraining order that this application on the 18th day of December, 1952, was made for a preliminary injunction.
There is also here under consideration a motion made by the defendants for an order to dissolve the restraining order herein on the ground that it appears on the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that said complaint does not comply with the provisions of Sec. 208 of the Labor Management Relations Act, 1947. Also, for the further reason that this Court has no jurisdiction over the subject matter and for such other and further relief as may be proper.
Several voluminous affidavits have been submitted on behalf of the plaintiff and defendants. It has been stipulated that certain individuals making such affidavits, if called as witnesses, would testify as stated in their respective affidavits and it is further stipulated that, subject to the approval of the Court, the issues presented by the application of the United States for a preliminary injunction, together with the motions, filed by the United Steel Workers of America, CIO, to dissolve the temporary restraining order and to dismiss the complaint may be determined upon the within stipulated evidence, the oral argument of counsel and written memoranda or briefs submitted or to be submitted by counsel for the parties.
The application of the Government for a temporary injunction is made under the provisions of Sec. 208 of the Labor Management Relations Act of 1947 (The Taft-Hartley Act), 61 Stat. 155, 29 U.S.C.A. 178.
The relevant parts of Sec. 208 are as follows:
'Section 208 (29 U.S.C. (Supp. V) 178). Strikes subject to injunction; in applicability of sections 101-115 of this title; review
'(a) Upon receiving a report from a board of inquiry the President may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lock-out or the continuing thereof, and if the court finds that such threatened or actual strike or lock-out-
'(i) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce; and
'(ii) If permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lock-out, or the continuing thereof, and to make such other orders as may be appropriate.
'(b) In any case, the provisions of sections 101-115 of this title, shall not be applicable.
'(c) The order or orders of the court shall be subject to review by the appropriate United States court of appeals and by the Supreme Court upon writ of certiorari or certification as provided in section 1254 of Title 28.'
The Dunkirk plant has approximately 1500 employees of whom 950 were working on products for the Atomic Energy Program at the time of a strike of the United Steel Workers of America, CIO. About fifty percent of the plant's output consisted of products for the Atomic Energy Program. The contract between ALCO and the Union covering this plant expired on January 31, 1951. Thereafter negotiations were engaged in to reach an agreement on the terms of a new contract, which continued to the time of the granting of the order on December 12th.
The work stoppage concerned, among other things, wages, paid vacations and the union shop. While the defendant ALCO has other plants than that at Dunkirk, we are concerned only with the work stoppage at that plant. ALCO was under contract with the Atomic Energy Commission, and certain of its prime contractors, to furnish certain specialized materials, including among others processed piping, heat exchanger shells and heat exchangers and gas converter sub-assemblies, vitally needed for the completion of the constructions of major facilities for the production of fissionable materials. It is apparent that these facilities constitute a substantial part of the Atomic Energy industry and that delay in the construction of these materials, caused by the Dunkirk strike, will mean a loss in the production of atomic weapons. Large dimension pipes are needed in the construction of three plants which, when completed, will produce uranium-235. As a result of the strike, work has been stopped on twenty-four heat exchanger shells to be used in the Savannah work program of the Commission. These shells are needed in the production of heavy water, which in turn is required for the operation of nuclear reactors capable of producing fissionable materials. The strike has also stopped the production of gas converter assemblies which are needed for installation at the Commission's plants for the production of fissionable materials and any attempt to obtain these sub-assemblies from other sources would cause substantial delay.
It is made to appear from the affidavits that the present facilities for the production of fissionable materials are inadequate to meet atomic weapon wants which the President, on recommendations of the Joint Chiefs of Staff and the National Security Council, has determined to be required for national defense. It becomes imperative to construct the plants, the construction of which is delayed by the strike. It also appears from the affidavits that the estimated cost of the plants affected by the strike exceed $ 1,800,000,000 and that the total cost of all the existing facilities of a comparable kind is $ 1,450,000,000.
At the expiration of the contract between the Company and the Union in 1951, negotiations were entered into for a new contract. These were unsuccessful and a strike was threatened. On December 29, 1951, the President of the United States, by virtue of Executive Order 10233, 50 U.S.C.A.Appendix, § 2071 note, certified the dispute to the Wage Stabilization Board. This latter Board set up a panel to hear the dispute but the Company objected to this dispute at Dunkirk being processed as part of a principal steel and ore case. The Company and the Union agreed to defer presentation to the Wage Stabilization Board until after the steel case was disposed of, when the parties asked the Wage Stabilization Board to proceed with the Dunkirk case. Hearings were had and testimony taken but the amendment of June, 1952, to the Defense Production Act, 50 U.S.C.A.Appendix, § 2071 et seq., took away the jurisdiction of the Wage Stabilization Board to make recommendations in a dispute case. Negotiations, however, continued between the two parties, and the Company offered 12 1/2 cents per hour increase in pay. This was rejected by the Union and this strike began August 29, 1952.
Before the institution of this action the President of the United States, on December 3, 1952, acting under the provisions of Sec. 206 of the Act, 29 U.S.C.A. § 176, issued Executive Order 10417, 17 F.R., 10981, creating a Board of Inquiry to inquire into the issues involved in the dispute and to submit its report to the President, all in accordance with the provisions of Sec. 206, Labor Management Relations Act, 1947, 61 Stat. 155.
'Sec. 206 (29 U.S.C. (Supp. V) 176). National emergencies; appointment of board of inquiry by President; report; contents; filing with Service
'Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. Such report shall include a statement of the facts with respect to the dispute, including each party's statement of its position but shall not contain any recommendations. The President shall file a copy of such report with the Service and shall make its contents available to the public.'
Thereafter, on December 11, 1952, the President directed a communication to the Attorney General of the United States in which he in part said, 'In my opinion this unresolved labor dispute has resulted in a strike affecting an entire industry, or a substantial part thereof engaged in trade and commerce among the several States and with foreign nations and in the production of goods for commerce, which strike, if permitted to continue, will imperil the national safety'. He directed the Attorney General to petition any District Court of the United States, having jurisdiction of the parties, to enjoin the continuation of such strike. Thereafter, on December 12, 1952, pursuant to the direction, the Attorney General, appearing by the Assistant Attorney General, the United States Attorney for the Western District of New York, the Special Assistant to the Attorney General, and two attorneys of the Atomic Energy ...