November 5, 1971
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 418, AFL-CIO, ET AL., DEFENDANTS-APPELLEES.
STEVENS, C.J.: On November 3, 1971, the United States of America filed in this court an Emergency Motion for Stay of Order and for the Granting of an Injunction Pending Appeal. Contemporaneously the Government also filed its Notice of Appeal from the order entered earlier that day by the district court (1) vacating a temporary restraining order which had been in effect since October 6, 1971, and (2) denying the Government's Motion for the Issuance of a Preliminary Injunction restraining defendants from engaging in or continuing to strike in the maritime industry.
The impact on the public of the work stoppage which gave rise to the litigation is of such importance that the Government was clearly justified in requesting this court to consider its application on an emergency basis. Moreover, it is clear that this court, or a judge thereof, has power to grant the relief requested. See 28 U.S.C. § 1651. In view of the fact that an important and unresolved question of law is raised by the application, the parties were directed to file memoranda on short notice. Those papers have been filed and have been carefully considered together with the exhibits and transcript of proceedings in the court below. On the basis of my understanding of the applicable facts and law, I am persuaded that the Government's request should be denied.
The legal question which is presented is whether the words "national health" in § 208 (a)(ii) of the Labor Management Relations Act of 1947, 61 Stat. 136, 155, comprehends the country's economic health or more narrowly just the physical health of the citizenry.This question has previously been identified by the Supreme Court and by the Second Circuit in litigation in which that issue was properly avoided because the evidence adequately disclosed a peril to national safety. See Steelworkers v. United States , 361 U.S. 39, 41-42; United States v. National Marine Engineers Beneficial Assn., et al ., 294 F.2d 385, 386-87 (2nd Cir. 1961). In the present litigation, however, it is clear that the injunction could not be supported on the ground that "national safety" has been imperiled within the meaning of the statute.
The issue arises as a result of proceedings which may be briefly summarized.
I. On October 4, 1971, acting pursuant to § 206 of the Act, the President issued Executive Order No. 11621, creating a Board of Inquiry to report on certain labor disputes affecting the maritime industry of the United States. In his order the President found that the disputes had resulted in strikes on Pacific, Atlantic, Great Lakes and Gulf Coast ports, which, if permitted to continue "will imperil the national health and safety."
The Board of Inquiry met on October 5, 1971, and determined that the most thorough an expeditious inquiry could be obtained through separate investigations for the various geographic areas involved. Accordingly, two members met in San Francisco to make inquiry into the Pacific Coast situation, and two members met in Washington to inquire into the Atlantic and Gulf Coast situations and the situation in the Port of Chicago. The parties to the various disputes, including the president of Local 418, International Longshoremen's Association, the principal defendant in the present litigation, were invited to participate, or submit written information, in connection with the hearing in Washington.
On October 6, 1971, the Board of Inquiry submitted its report to the President. The report contained separate sections dealing with the labor disputes in different parts of the country. With respect to the dispute affecting the Pacific Coast ports, the Board noted that the Union contended that statutory jurisdiction had not properly been invoked because no threat to national health or safety existed. The Board took no position on this issue, correctly declining to look behind the finding made by the President which created a proper jurisdictional basis for the Board's inquiry and further noting that the appropriate time in which that jurisdictional point could be raised would be in such judicial proceedings as might ensue pursuant to § 208.
With respect to the Port of Chicago dispute, the Board found that it was of "distinct dimensions, as compared to both the West Coast dispute and the Atlantic and Gulf Coast dispute, in all three of these respects: expiration date of the Agreement, bargaining history, and the nature of the affected commerce." The Board summarized the status of negotiations and concluded that "the dispute is deadlocked, and that there is little chance of a prompt settlement." It expressed no views on the possible impact of the strike on national health or safety other than to note the contention of the employers that corn and soybeans are currently arriving in Chicago in peak volumes; that St. Lawrence seaway freezes over in December; and, therefore, the 1971 crop coming through Chicago will never find its overseas markets if the strike continues until the freeze.
On October 6, 1971, the President directed a communication to the Attorney General forwarding the report of the Board of Inquiry and noting that the report indicated little chance of prompt settlement of the disputes on both the Pacific Coast and the Great Lakes Port of Chicago. The letter stated: "These strikes, if permitted to continue, will imperil the national health and safety." In order to remove that peril, the President directed the Attorney General to commence proceedings to enjoin the continuance of the strikes on the Pacific Coast and at the Port of Chicago.
Pursuant to that direction this action was filed in the United States District Court for the Northern District of Illinois, and, on the basis of the foregoing proceedings, the District Court entered a temporary restraining order requiring a cessation of the strike for a 10-day period. Thereafter, pursuant to stipulation, that order was continued in effect until the conclusion of the hearing on the Government's Motion for a Preliminary Injunction. After receiving oral testimony and exhibits, the District Court found and concluded, in substance, as follows:
(1) That under the statute the court was not bound by the findings made by the President but rather had an independent obligation to conduct a hearing to determine whether or not the statutory requirements for an injunction had been proved; and
(2) That the Government had failed to prove that if the strike were permitted to continue it would "imperil the national health or safety" within the meaning of the Act. The latter conclusion was based on the alternative grounds (a) that the term "health" refers to the physical health of the citizenry rather that the economic health of the nation and (b) that in any event the impact of the strike on the economy was insufficient to create a national emergency. These ultimate findings and conclusions were supported by more detailed findings, a copy of which is attached hereto but which need not be further stated herein.
II. The Government does not contest the power of the District Court to make an independent inquiry on the question whether the strike imperils national health or safety. It does disagree with the District Court's construction of the words "national health" and also with the District Court's appraisal of the evidence.
On the question whether the word "health" as used in § 208 refers to physical health, as the Union contends, or encompasses economic health, it appears from the memoranda filed by the parties that the legislative history is surprisingly sparse.
The Union, in effect contends that the phrase "national health or safety" should be construed to mean the "health or safety of the citizenry of the nation." Under this construction, apart from matters of national defense, the economic impact of a strike could never justify the invocation of the President's emergency powers if a striking union made special exceptions to avoid interruption of the flow of food and hospital supplies and other essentials of life. I believe this is too restrictive a reading of the provision which was enacted to cope with national emergencies.
On the other hand, the Government seems to argue that any serious adverse impact on the economy can support a § 208 injunction. Under the Government's reading, although the court would purport to make an independent inquiry, it would seem likely that any strike which reached sufficient dimensions to invoke the attention of the President would also have the kind of impact that would warrant the entry of an injunction. As I read the statutory language, neither party is completely correct.
To me the phrase "national health or safety" is the equivalent of "health or safety of the nation." The health of the nation is a concept which includes more than the physical well-being of its citizenry. It necessarily encompasses its own life blood or, in other words, the essential well-being of the economy. But this does not mean that every interruption of commerce meets the § 208 standard because the strike must also have sufficient impact to "imperil" the health or safety of the nation. In other words, if the economic impact of the strike is so great that the national economy is threatened, in my opinion its health is "imperiled" within the meaning of the Act even if adequate provision may have been made to protect the physical health of the citizenry.
Although I consider the Government's evidence of economic injury to be substantially stronger than the District Court's findings and opinion would indicate, his overall appraisal of the impact of the particular strike which is the subject matter of the dispute at the Port of Chicago is not, in my opinion, clearly erroneous. It is serious and will have a significant adverse effect on the public interest. However, the District Court's utimate finding that the strike has not created a "national emergency" within the meaning of the Act appears to be supported by substantial evidence.
In sum, the Government has not persuaded me that there is sufficient probability that it will ultimately prevail on the merits of its appeal to justify the allowance of the extraordinary writ requested. Accordingly, it would be inappropriate to grant emergency relief which would be tantamount to a reversal of the District Court on the merits. Cf . Judge Duffy's opinion in Local 180 of International Union, etc., v. J.I. Case Co ., 281 F.2d 773 (7th Cir. 1960); see also Nordmeyer v. Sanzone , 314 F.2d 202 (6th Cir. 1963). The application for emergency relief is denied.
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