Before BIGGS, MARIS, GOODRICH, McLAUGHLIN, and O'CONNELL, Circuit Judges.
McLAUGHLIN, Circuit Judge.
The plaintiff appeals from an order of the District Court dismissing its complaint on the ground that it fails to state a cause of action under Section 8(c) of the War Labor Disputes Act.*fn1 The District Court opinion is found in 67 F.Supp. 841, 845.
The complaint alleges that appellant is a Pennsylvania corporation which during the relevant period manufactured metal packing for the United States Navy, United States Army and/or the United States Maritime Commission. The appellees are stated to have been at the time of their cessation of production and at the time of their instigation of cessation of production, employees of appellant and representatives of the employees within the meaning of Section 2(d) of the Act. It is said that on or about October 24, 1945 the representative union of appellant's employees filed a notice of a labor dispute as provided by Section 8(a)(1) of the Act. The complaint goes on to say that on or about October 31, 1945 the appellees being persons under a duty to perform acts required by Section 8(a) of the Act wilfully refused to continue production and wilfully incited all the other employees in the bargaining unit to refuse to continue production to the damage of appellant.
The complaint as drawn follows the Act and the meticulous use of the statutory language may be assumed to allege a strike. Whether the defendants were actually striking or were abandoning their positions completely is of course not as yet an issue.
Taking the complaint at its face value, as must be done on such a motion, the District Court, concluding that the appellees had not wilfully failed in or refused to perform any duty imposed upon them by Section 8(a), held, "that no action for damages will lie under Section 8 of the Act against the individual defendants by reason of their refusal to continue production during the thirty days succeeding the notice of a labor dispute given by the union representative." The language of 8(a)(2) that "the contractor and his employees shall continue production * * *" was said by the court to "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, * * *." With reference to the charge in the complaint that the appellees wilfully incited all the other employees to refuse to continue production, the lower court found such conduct not unlawful either expressly or impliedly under Section 8.
Support for its decision was found by the court below in the Constitutional protection against involuntary servitude; in the legislative history of the War Labor Disputes Act; and in the lack of a similar provision in Section 6 of the same Act which applies to government seized plants and provides criminal punishment for inciting work stoppages therein but does not mention any sanctions for actual cessation of work.
The contention that a limitation of the right to strike under the specified narrow conditions of Section 8 partakes of involuntary servitude is not substantiated by the cases. To the contrary, there is a wide distinction between a worker quitting his job, for any reason or no reason, on the one hand, and a cessation of production by workers who seek to win a point from management, on the other hand. The Act here to be construed, in Section 2, adopted its definitions of employee from the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., not then affected at all by the recent Taft-Hartley Act, 29 U.S.C.A. § 141 et seq. Section 2(3) of the N.L.R.A., 29 U.S.C.A. § 152(3), described a striker as still an employee. Constructing that very definition, the Supreme Court in N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, at page 345, 58 S. Ct. 904, at page 910, 82 L. Ed. 1381, said:
"The strikers remained employees under Section 2(3) of the Act, 29 U.S.C.A. § 152(3), which provides: 'The term "employee" shall include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, * * *.' Within this definition the strikers remained employees for the purpose of the act and were protected against the unfair labor practices denounced by it."
Again, 304 U.S. at page 347, 58 S. Ct. at page 911, 82 L. Ed. 1381, the court said:
"The respondent insists that the relation of employer and employee ceased at the inception of the strike. The plain meaning of the act is that if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employees for the remedial purposes specified in the act. We have held that, in the exercise of the commerce power, Congress may impose upon contractual relationships reasonable regulation calculated to protect commerce against threatened industrial strike. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 48, 57 S. Ct. 615, 629, 1 L. Ed. 893, 108 A.L.R. 1352. The Board's order there sustained required the reinstatement of discharged employees. The requirement interfered with freedom of contract which the employer would have enjoyed except for the mandate of the statute. The provision of the act continuing the relationship of employer and employee in the case of a strike as a consequence of, or in connection with, a current labor dispute is a regulation of the same sort and within the principle of our decision."
And see N.L.R.B. v. Fansteel Co., 306 U.S. 240, 256, 59 S. Ct. 490, 83 L. Ed. 627, 123 A.L.R. 599; N.L.R.B. v. Ohio Calcium Co., 6 Cir., 133 F.2d 721, 726.A quite similar situation is presented by Texas & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548, 50 S. Ct. 427, 432, 74 L. Ed. 1034, which upheld the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C.A. § 151 et seq. The court there agreed that "the major purpose of Congress in passing the Railway Labor Act was 'to provide a machinery to prevent strikes.'" It approved Section 10 of that Act which stated that "after the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose." Regarding this the court through Chief Justice Hughes said, 281 U.S. at pages 566, 567, 50 S. Ct. at page 432, 74 L. Ed. 1034:
"The provision of section 10 is to be read in connection with the qualification in subdivision eighth of Section 9 that nothing in the act shall be construed to require an individual employee to render labor without his consent or as making the quitting of service by an individual employee an illegal act, and that no court shall issue any process to compel the performance by an individual employee of labor without his consent. The purpose of this limitation was manifestly to protect the individual liberty of employees and not to affect proceedings in case of combinations or group action. The denial of legal process in the one case is significant with respect to its expected, appropriate use in the other."
Much to the same effect is Wilson v. New, 243 U.S. 332, 359, 37 S. Ct. 298, 306, 61 L. Ed. 755, L.R.A.1917E, 938, Ann.Cas.1918A, where in sustaining the Eight Hour Day Act of 1916, 39 Stat. 721, 45 U.S.C.A. §§ 65, 66, the Supreme Court held that Congress had the ...