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October 17, 1959

UNITED STATES of America, Plaintiff,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Atlantic Coast District, ILA, Atlantic and Gulf District, ILA, The New York Shipping Association, Portland Shipping Association, Providence, Rhode Island Shipping Association, New Bedford Stevedoring Corporation, The Steamship Trade Association of Baltimore, Inc., The Boston Shipping Association, Inc., The Philadelphia Marine Trade Association, The Hampton Roads Maritime Association, Inc., South Atlantic Steamship Company, Miami Steamship Association, Mobile Steamship Association, New Orleans Steamship Association, and J. Ross Dunn, Galveston, Texas, Defendants

The opinion of the court was delivered by: KAUFMAN

The Attorney General of the United States, pursuant to the National Emergencies provisions of the Labor Management Relations Act of 1947, the Taft-Hartley Act, 61 Stat. §§ 155, 206-210, 29 U.S.C.A. §§ 176-180, brought the instant proceedings.

The Attorney General is authorized by the aforesaid statutes, upon direction of the President, after receipt of the report of a Board of Inquiry appointed by him, to seek an injunction against the continuance of a strike which imperils the national safety and health. The strike of the employees represented by the International Longshoremen's Association, Atlantic Coast District of ILA, and Atlantic and Gulf District, of ILA, commenced on October 1, 1959, and this strike caused the invoking of the Taft-Hartley provisions by the President of the United States and the issuance of the aforesaid direction to the Attorney General of the United States. The strike resulted from a failure to come to terms on a new labor agreement, the old agreement having expired September 30, 1959.

 On October 8, 1959, this court, upon the application of the Attorney General, issued a ten day temporary restraining order against the defendants who, in addition to the union representing the striking employees, included employer associations. This order was granted by a showing that all of the statutory requirements were met and that a continuance of the strike would imperil the national health and safety and would result in irreparable injury.

 On the hearing for the temporary restraining order, counsel for the union concerned himself primarily with the terms of the restaining order and the ultimate injunctive decree and did not offer opposition to the issuance of the order itself.

 The hearing on the motion for the temporary injunction was set for October 15, 1959. Upon the return day the defendant-union appeared by its attorney as did most of the employer associations. Counsel for the respective participants stated that the government had established a prima facie case for the relief requested and that if the affiants upon whose affidavits the temporary restraining order was based were to give oral testimony they would testify substantially in accord with their affidavits. A similar stipulation was entered into with respect to the testimony of William V. Bradley, President of the International Longshoremen's Association. None of the appearing defendants opposed the granting of the temporary injunction for a period of eighty days, as provided for in the Taft-Hartley Act. However, specific modifications in the terms of the injunction were suggested by counsel for the union and the Shipping Associations which I shall presently discuss.

 Counsel representing the majority of the Shipping Associations has suggested that the injunction be modified so as to include an injunction against 'work stoppages or slowdowns.' I see no reason for such a modification. No evidence was presented that the union had not completely and in good faith complied with the terms of the temporary restraining order previously issued by this court, and I see no purpose to be served by enjoining activity which would be in effect a violation of the terms of the injunction as issued. The same conclusion was reached in a recent case involving this same industry, see United States v. International Longshoremen's Ass'n, D.C.S.D.N.Y. 1956, 147 F.Supp. 425, 428, and no evidence has been presented that the shipping companies were in any way prejudiced by the non-inclusion of the requested language.

 The second modification was requested by the defendant union, and presents a question which has given me some concern. The union requests that a clause be inserted in the injunctive order providing that whatever wages and other monetary benefits are eventually achieved by the union at the bargaining table, be made retroactive to the date of inception of the temporary restraining order. The union argues that in the absence of a retroactivity clause in the injunction, the employers are given a bargaining advantage. Because of the government's intervention in this dispute, the union says, the employees must go back to work for 80 days under the former terms and conditions of employment and must bargain for retroactivity with the employers. It adds, that in return for agreeing that any final settlement shall be retroactive, the companies are in the position to exact many concessions from the union, and the longer the strike continues, the greater the sum involved and the greater the exactions open to the employers. Furthermore, it is urged that in this industry retroactivity clauses have been customary, and yet in this instance the employers may be able to use at least eighty days of retroactive wages as a bargaining point, while their employees remain at work, unable to use their chief weapon of economic coercion. The union urges finally that such a situation is not conducive to the quick settlement of the labor dispute, an avowed purpose of the act under which this injunction is issued. See 29 U.S.C.A. § 179.

 While these arguments have much force and I am convinced that the employers' opposition to the inclusion of such a clause is dictated, at least in part, by their desire to use whatever leverage they derive from their position at the bargaining table, I am of the opinion that the act under which this injunction is issued does not empower me, nor should I in my discretion, if such power is given, deal in the injunction with matters ordinarily left to negotiations between the parties to a labor dispute.

 Section 178 was enacted to stay strikes or lockouts that would imperil the national health or safety, and to provide for the more speedy settlement of such controversies. As to the matters at issue in the labor disputes themselves, the government, and that includes the courts, are to remain completely neutral. The public interest will best be served by having the courts leave the parties to the dispute in the position in which they were found. Only in this way can the purport of the National Emergencies provisions of the law be carried out -- that the court acts in the public interest and not in the adjudication of private contentions of the parties. Other provisions of Title 29 U.S.C.A. evidence legislative intent that the courts should not meddle in the questions actually at issue in the labor controversy. See, e.g., 29 U.S.C.A. §§ 101-115. See also 29 U.S.C.A. § 179(a) 'Neither party shall be under any duty to accept, in whole or in part, any proposal of settlement made by the Service.' In every instance, where retroactivity clauses were incorporated into injunctive provisions issued pursuant to 29 U.S.C.A. § 178, such was done only to effectuate the policy of preserving the status quo as of the time of the injunction. See United States v. International Longshoremen's Association, supra, where the employers' associations and the union had signed an agreement that all financial arrangements would be retroactive to the date of the expiration of the previous agreement. This retroactivity agreement was in effect at the time of Judge Bryan's ruling. This was not the case here.

 Furthermore, the facts here illustrate the wisdom of the expressed legislative policy against dealing with bargainable questions in an action like the present one. While retroactivity clauses may have been previously agreed upon in this industry, it is my understanding that they were acceded to by the employers in return for agreement by the union not to strike immediately upon the expiration of its contract. No such trade of concessions took place in this case. It is true that the equities in this case depend to a great extent on fixing blame for the absence of any such agreement. But, for this court to attempt to consider those equities would demand that it make findings on matters at the heart of the labor dispute itself. I do not think that it is in the best interests of the nation for the courts to use section 178 as a warrant for such interference with the orderly settlement of labor disputes by negotiation between the parties. While what the union urges that I decree here may benefit it at the bargaining table in this instance, I suggest that its position is short sighted, for on another occasion this precedent, if followed, may work to its decided disadvantage. The public interest and legislative intent require this court to abstain from decreeing matters which should be disposed of by negotiations among the parties.

 The application of the government for a temporary injunction is granted and the order signed. Accordingly, having considered all the evidence submitted, the pleadings, affidavits, memoranda and arguments of counsel, I make the following findings of fact and conclusions of law.

 Findings of Fact

 1. On October 6, 1959, the President of the United States acting under the provisions of Section 206 of the Labor Management Relations Act, 1947 (29 U.S.C.A. § 176) (hereinafter referred to as the 'Act'), issued Executive Order 10842 (24 F.R. 8249), whereby he appointed a Board of Inquiry to inquire into the issues involved in labor disputes between employers (or associations representing such employers) who are (1) steamship companies or who are engaged as operators or agents for ships engaged in service from or to Atlantic and Gulf Coast ports from Searsport, Maine, to Brownsville, Texas, or from or to other ports of the United States in its Territories or possessions; (2) contracting stevedores; (3) contracting marine carpenters; (4) or other employers engaged in related or associated pier activities, and certain of their employees represented by the International Longshoremen's Association, Atlantic Coast District, ILA, and South Atlantic and Gulf District, ILA (hereinafter sometimes referred to collectively as 'defendant ILA'). In said Executive Order, the President expressed the opinion that such disputes had resulted in a strike affecting a substantial part of the maritime industry, an industry engaged in trade, commerce, transportation, transmission or communication among the several States and with foreign nations, which strike, if permitted to continue, would imperil the national health and safety.

 2. The Board of Inquiry so convened by the President inquired into the issues involved in the disputes and rendered its written report to the President on October 7, 1959.

 3. After receipt of the report, the President, on October 7, 1959, directed the Attorney General, pursuant to the provisions of Section 208 of the Act, to petition in the name of the United States any district court of the United States having jurisdiction of the parties to enjoin the continuance of such strike and for such other relief as may be necessary or appropriate.

 4. Thereupon, on October 8, 1959, the Attorney General brought this action on behalf of the United States of America in this District against the ...

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