The opinion of the court was delivered by: DUFFY
This case was brought to this court by removal from the New York State Supreme Court. The plaintiffs seek a preliminary and permanent injunction restraining the individual defendants and the union of which they are officers from calling or continuing to call a strike or picketing the plaintiffs' premises. Both sides admit that no court has passed upon a problem similar to that presented by the facts of this case.
The plaintiffs are engaged in interstate commerce as manufacturers and transporters of ready-mix concrete, sand, gravel, asphalt and bulk cement. For many years the truck driver-employees or "chauffeurs" of the plaintiffs have been represented by the defendant Union. The last formal collective bargaining agreement between the parties expired by its terms on June 30, 1972. Apparently the Union did not strike on the expiration of the contract but collective negotiations continued through the ensuing months until April 23, 1973, when the negotiating committees initialed a twenty page document which was subject to ratification by the Union membership. As is usual in such circumstances, neither side was completely satisfied but both were apparently willing to accept and live with the bargain struck in the April 23, 1973 document. The Union presented the terms and conditions agreed upon to their membership for ratification, and on May 3, 1973, the Union membership ratified the bargain.
The "Agreement of April 23, 1973 contained, inter alia, the following provisions:
"The employers and the Union agree that they shall jointly submit this Agreement to the appropriate government agency requesting approval, if submission is required, and that they will exercise their best good faith efforts to secure approval.
"Within 2 wks [weeks] after CISC approval, if required, retroactive pay shall be made in two equal weekly installments by separate check."
The CISC referred to in the above quoted language stands for the Construction Industry Stabilization Committee established by Executive Order #11588 (36 CFR 6339, April 3, 1971) under the Economic Stabilization Act of 1970, 84 Stat. 799 as amended, and by delegation of authority from the Cost of Living Council to the CISC.
On June 19, 1973, representatives of the defendant Union wrote to the appropriate subcommittee of the CISC requesting a ruling that the "Agreement" between the plaintiffs and the Union represented by the April 23, 1973 document "is not subject to CISC jurisdiction . . .."
On July 17, 1973, the subcommittee of the CISC met and considered the problem but was unable to make a determination on the request. Thereafter, on July 25, 1973, the question was submitted directly to the CISC. On August 24, 1973, the CISC had not rendered a decision on the sole question presented to it by the parties, i.e., whether the agreement was within the purview of the jurisdiction of the CISC.
On August 24, 1973, the parties have stipulated, the chauffeur-members of defendant Union refused to work for the plaintiffs. There is sharp dispute as to whether this refusal to work was inspired by the Union through its leadership. I find, based on the evidence presented at the hearing for the preliminary injunction, that the Union leadership instigated and called the strike.
The CISC apparently was immediately notified of the Union action. On August 30, 1973, the CISC authorized the payment (including the retroactive pay) of the wage increases bargained for between the parties and contained in the April 23, 1973 "Agreement ". The CISC ruling was:
". . . taken without prejudice to its consideration of the matter of jurisdiction."
" . . . any economic adjustments other than those listed above have not been approved by the Committee and may ...