Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.
The United States brought this suit, at the direction of the President, pursuant to § 208 of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 178, 61 Stat. 155, against United Steel Workers of America, CIO Local 2286, United Steelworkers of America, CIO and Local 4498, United Steelworkers of America, CIO, who are the appellants hereinafter called the union, and against the Locomotive Company, Inc., hereafter called the company, to obtain an injunction in a labor dispute. An injunction was granted against all of the defendants but the union alone has appealed and has presented three issues: (1) whether on the facts which are undisputed the appellee has made out a cause of action within the coverage of the statute properly construed; (2) if so, whether the statute, so construed, is constitutional; and (3) whether the injunction is too broad in respect to restraint upon the conduct of individual members of the union.
The record shows that the union at all pertinent times was the exclusive bargaining representative of the company's employees at its plant at Dunkirk, N.Y. The collective bargaining agreement in effect in 1951 was to expire on January 31, 1952 and the parties attempted to agree upon the terms of a new one, but in December 1951 their efforts broke down and the union threatened to cause the employees to strike beginning on January 31, 1952.
At its Dunkirk plant the company was then engaged in commerce and in the production of goods for commerce, primarily in the "heat exchanger, pressure vessel and prefabricated pipe industry"; the threatened strike would not have affected all, or a substantial part, of that industry. A major part of the Dunkirk plant's production was to carry out contracts the company had with the Atomic Energy Commission and certain of its prime contractors to furnish specialized articles which were essential to the completion of the Commission's program for construction of facilities needed to produce atomic bombs for the national defense. These essential articles were heat exchanger shells used in the production of heavy water needed to operate nuclear reactors capable of producing fissionable materials, gas converter assemblies and other critical items all of which could have been obtained elsewhere only after other potential sources had been equipped to produce them. Resort to other sources would, consequently, have involved months of delay and set back correspondingly the construction program of the Commission and the production of fissionable materials and atomic weapons vital to the national defense. The threatened strike would have affected a substantial part of the atomic weapon industry and would have imperiled the national safety.
The strike was not called as threatened, however, because on December 29, 1951 the President, by Executive Order No. 10233, 16 Fed.Reg. 3503, 50 U.S.C.A.Appendix, § 2071 note, certified the dispute to the Wage Stabilization Board. As that Board had under consideration the labor dispute in the steel industry, the union and the company agreed to defer the presentation of their dispute until the Board had finished with that in the steel industry and, meanwhile, continued their attempts to negotiate a new collective bargaining agreement without stoppage of work at the Dunkirk plant. After the Board had made its recommendations for a settlement of the steel industry dispute, the union and the company, in April 1952, requested it to hear their dispute. A designated panel did so and concluded the hearings on June 27, 1952; but, before the Board had made any recommendations, amendments to the Defense Production Act, 50 U.S.C.A.Appendix, § 2103(b)(6) effective July 29, 1952, did away with its jurisdiction so to do. Efforts to agree upon a new contract were continued but they were unsuccessful and a strike was called by the union and put into effect on August 29, 1952. It was initiated and conducted without violence but it did, as the one threatened for January 31, 1952 would have done, affect a substantial part of the atomic energy industry and imperil the safety of the nation.
Consequently, on December 3, 1952, the President resorted to the National Emergencies provisions of the Labor-Management Relations Act, 29 U.S.C.A. §§ 176-180, 61 Stat. 155, §§ 206-210, by issuing Executive Order 10417, 17 Fed.Reg. 10981, U.S.Code Congressional and Administrative News 1952, p. 1112, creating a Board of Inquiry to investigate the dispute and report to him pursuant to § 206 of the Act. Thereafter, in strict compliance with the provisions of the Act, there was a report by the Board to the President, who then sent a communication to the Attorney General which in part stated that "[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" and which directed the Attorney General to bring this suit. He, accordingly, did so by filing a complaint on December 12, 1952 which sought relief as follows:
"1. That this Court enter its order 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 a strike or lock-out in the plant of the American Locomotive Company at Dunkirk, New York, and (b) from in any manner interfering with or affecting the orderly continuance of work in the said plant, nad from taking any action which would interfere with this Court's jurisdiction in the premises.
"2. That this Court enter its order enjoining the members of the defendant Union, and those of Local 2286 and of Local 4498, acting in concert, from in any manner continuing, encouraging, ordering, aiding, engaging or taking any part in a strike or lock-out in the plant of the American Locomotive Company at Dunkirk, New York, or from in any manner interfering with or affecting the orderly continuance of work in the said plant, and from taking any action which would interfere with this Court's jurisdiction in the premises; Provided, however, that nothing in this paragraph shall be construed to require an individual employee to render labor or service without his consent nor to make the quitting of his labor or service by an individual employee an illegal act.
"3. That this Court enter its order directing the defendant Union and those of Local 2286 and of Local 4498 and its appropriate officers, agents, servants and employees (a) forthwith to instruct all its members in Local 2286 and Local 4498, United Steel Workers of America, CIO, to continue or resume their normal employment, and (b) to take all action which may be necessary to insure that such instructions are carried out.
"4. That this Court order the several defendants to engage in free collective bargaining in good faith for the purpose of resolving their dispute and to make every effort to adjust and settle their differences, as contemplated by the National Emergencies provisions of the Labor Management Relations Act, 1947.
"5. That this Court, pending the final determination of this cause, issue a preliminary injunction restraining and enjoining the defendants, their members, officers, agents, servants and employees, and all persons in active concert or participated with them, in the manner and form aforesaid.
"6. That, pending the issuance of the aforesaid injunction, the Court issue forthwith a temporary restraining order, restraining and enjoining the defendants, their members, officers, agents, servants and employees, and all persons in active ...