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September 23, 1946

DAILEY et al.

The opinion of the court was delivered by: KALODNER

This action to recover damages was brought by the plaintiff pursuant to Section 8(c) of the War Labor Disputes Act, 1943, 57 Stat. 167, 50 U.S.C.A.Appendix, § 1508(c). The defendants filed a motion to dismiss asserting that the complaint fails to state a cause of action upon which relief may be granted.

The controversy herein may be simply stated. Section 8(c) of the Act, provides in part, that 'Any person who is under a duty to perform any act required under subsection (a) and who willfully fails or refuses to perform such act shall be liable for damages resulting from such failure or refusal to any person injured thereby and to the United States if so injured.' The precise issue involved in the instant case, then, is whether subsection (a) of Section 8 imposes any duty upon the defendants which they have willfully failed or refused to perform.

 Section 8(a) of the Act, insofar as it is involved here, is set out of the margin. *fn1" Specifically, the complaint alleges that the defendants on October 31, 1945, 'willfully refused to continue production', and incited other employees in the same bargaining unit to refuse to continue production

 Paragraph five of the Complaint admits that District Lodge No. 1 of the International Association of Machinists, the representative of plaintiff's employees, *fn2" did file, on October 24, 1945, the notice of a labor dispute required by Section 8(a)(1) of the Act. Plaintiff's action, accordingly, is premised on an interpretation of Section 8(a)(1) of the Act. Plaintiff's action, accordingly, is premised on an interpretation of Section 8(a)(2) which would impose upon the defendants, as employees, a duty to have continued production for at least thirty days following the notice of a labor dispute given by the Union, and it is this alleged obligation which the plaintiff asserts that the defendants have wilfully failed and refused to perform.

 The War Labor Disputes Act, more familiarly known as the Smith-Connally Act, has not previously been judicially construed insofar as it is here pertinent. The legislative history and the discussions of the legislators on the measure, however, offer aid in the proper construction and application of the Section 8(a)(2) of the Act. *fn3"

 Section 8(a)(2), however, does not stop with the quoted words. The sense of the provision is amplified by the words following, and the section must be read and construed in its entirety: 'the contractor and his employees shall continue production under all the conditions which prevailed when such dispute arose, except as they may be modified by mutual agreement or by decision of the National War Labor Board.' (emphasis supplied).

 Read as a whole, it is evident that the purpose of this section is essentially to preserve the status quo of working conditions during the thirty day 'cooling-off' period. Impliedly, the subsection carries out the conceptual basis of Section 8, that no official strike should be called within the thirty days. Nevertheless, in my opinion, the subsection under consideration does not deprive the individual worker of the right, or privilege, to leave his job on his own initiative.

 Plaintiff appears willing to concede, lest it clash with the Constitutional prohibition against involuntary servitude, that subsection (2) of Section 8(a) does not operate to prevent an employee from quitting his job. It asserts that, on the contrary, the subsection does operate to prevent the employee from striking. The difficulty with this theory is that, even underscoring the words 'shall continue production', as plaintiff does, the subsection would afford no basis of distinction upon the reasons impelling the individual worker to leave his post, except perhaps if the employee's act is part of a concerted strike: but even then the distinction is of doubtful validity, for the theory of Section 8, as its title and preamble indicate, is to destroy the desire, or willingness, of union leaders to call a strike, and to repose that will in the employees themselves.

 To construe Section 8(a)(2) as requiring an employee to continue working for the plaintiff despite his will to the contrary would make Section 8, which deals with privately operated plants, more stringent than in the case where the government has taken over under Section 3 of the Act, 50 U.S.C.A.Appendix, § 1503. Thus Section 6, 50 U.S.C.A.Appendix, § 1506, while it prohibits, upon criminal penalties, any person from doing certain things, *fn4" does not prevent an employee from leaving his job for any reason. On the contrary, it expressly provides that 'No individual shall be deemed to have violated the provisions of this section by reason only of his having ceased work or having refused to continue to work or to accept employment.' The mere absence of similar language in the framework of Section 8 cannot be regarded as requiring a different result particularly in view of the lack of clear and specific language which would otherwise compel an employee to work against his will. It is difficult to believe that Section 8, the heart of which is to place 'in the hands of the rank and file of American labor the privilege and responsibility to decide of their own violation whether there shall be strikes' *fn5" was meant to deny the right of the individual to cease production -- a right not denied even against the government.

 The legislative history of the Smith-Connally Act, and the discussions in Congress, do not warrant the literal construction of Section 8(a)(2) for which the plaintiff contends.

 The Smith-Connally bill (S.796) as originally presented in Congress did not contain any provision similar to the present Section 8, but rather was directed to the taking-over and operation by the government of strike-bound plants. One of the numerous suggested amendments to that bill, the Taft amendment, did, however, set up a system similar to that embraced by Section 8. This included a provision using the same language as that in Section 8(a)(2) here in controversy. The colloquy between Senators Taft and Lodge on this matter merits recognition, and bear out the conclusion that Section 8(a)(2) was intended to preserve the status quo and to provide a standard to determine whether the Act is violated, rather than to deprive individual employees of the power of ceasing production:

 'Mr. Lodge: I should like to invite the Senator's attention to section 8, page 3, which contains the provision that --

 'Whenever any labor dispute has been certified to the Board, or jurisdiction assumed on the Board's own motion, and until 10 days after the order of the Board has been issued the parties to the dispute shall continue ...

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