(dissenting).
In explaining my reasons for dissenting from the conclusions reached by the majority of the court, I should like to stress several facts: (1) Plaintiff is not under Government operation, but is engaged in manufacture and sale for private profit; .(2) the Complaint, based solely upon the War Labor Disputes Act, 50 U.S.C.A.Appendix, § 1501 et seq., contains no allegation that defendants were other than employees at will, and (3) defendants apparently are being sued as individuals. Two issues are raised: (1) Does the statute give to a private employer the right to damages against an employee who goes out on strike before the 30-day statutory period has elapsed? and (2) if so, is the statute constitutional ?
In United States v. Petrillo, 1947, 332 U. S. 1, 67 S.Ct. 1538, the Supreme Court again ruled that constitutionality of a statute would be passed upon only where the decision of a precise constitutional question is a necessity; consequently, in the present posture of this case, the question of the validity of Section 8 of the War Labor Disputes Act must be limited to the question whether it is constitutional on its face. I believe it unnecessary to consider even this question for, like the court below, I believe that a negative answer to the first issue requires dismissal of the Complaint.
I consider persuasive both the reasoning and conclusion of the lower court; namely, that the clause “shall continue production under all the conditions which prevailed when such dispute arose” was not intended to apply, and does not apply, to individual employees. The remarks which follow are intended only as supplementary to those of the court below.
The majority of this court has found that Section 8 of the War Labor Disputes Act is substantially the same as the amendment which was initially introduced by Representative Harness of Indiana and passed by the House of Representatives. While it is true that no comparable provision was included in the bill previously passed by the Senate (S. 796), the conference version which subsequently became law appears to me to differ measurably, both in language and in substance, from the Harness amendment. Eor example, the clause “shall continue production under all the conditions which prevailed” is almost verbatim the language Senator Taft had unsuccessfully proposed, while it can at best be only inferred from the Harness amendment; and Section. 3 of the Harness amendment, making it “unlawful for employees of a war contractor to strike” before certification of the election by secret ballot, seems to have no specific counterpart in the conference bill.
Moreover, it is important to note the background of the War Labor Disputes Act. Congressional debate of the bill throughout clearly indicates that attention was focused upon the provisions dealing with work stoppages in facilities under Government operation, with little or no consideration given to difficulties in privately operated plants.1 The bill itself met such strong press criticism as “haphazard,” a “hastily put together hodge-podge,” and a “hasty, ill-considered and confused measure.” 2 With these facts in mind, I consider it difficult to link up the bill we now know as the Smith-Connally Act with an amendment which was written the same day as it was introduced3 and which amendment changed radically the bill reported out by the House Committee on Military Affairs.
*758Even if it be assumed that the Harness amendment was the progenitor of Section 8, however, I have considerable doubt whether, as stated in the majority opinion, that amendment was intended or designed to forbid individual employees from striking during the 30-day period. Language tending to support the conclusion of the majority of this court is quoted in the majority opinion; but other statements made by Representative Harness seem to me even more illuminating. On June 3, 1943, while the legislation was being considered on the floor of the House of Representatives, the following colloquy took place between Representatives Harness and Elmer:
“Mr. Elmer: Could this House pass a measure that would compel me to work for some other man, if I did not want to work for him?
“Mr. Harness: Why, certainly not. That is slave labor, and I will not even consider that as a possible necessity. American Labor is patriotic, and will cooperate with the Government in wartime. We will accomplish much more if we depend upon voluntary cooperation, rather than coercion.
“Mr. Elmer: If you take away the right to strike, or if you delay the right to strike, then to that extent you have introduced involuntary servitude, have you not, and that is forbidden by the Constitution.
“Mr. Harness: Of course.” 4
Again, in the course of a radio address delivered while the conference bill was awaiting action by President Roosevelt, Representative Harness said:
“ * * * Because this provision [Section 6(b) of the War Labor Disputes Act, 50 U.S.C.A.Appendix, § 1506(b)] might mistakenly be interpreted to mean that an individual will be unable to quit his job if he so desires, let me assure you that there is nothing in this provision, or anywhere else in this act, that could possibly be interpreted to force an individual to work against his will. * * * I would be the last to deny the individual the right to strike any time, in war or in peace, except against the Government. This act does recognise that individual right, as I think we always must, if we are not to descend into slave labor. * * *» 5
In the light of the foregoing comments, I cannot agree with the conclusion that striking on the part of individual workers was the target of Section 8. It seems to me more likely that Congress, constantly reminded of the ban on involuntary servitude and consistently voicing faith in'the reasonableness and patriotism of the individual workingman, drafted Section 8 with a view to preventing interruptions to war production induced by restraint or coercion.6
Moreover, I find difficulty in attempting to apply the interpretation laid down by the majority of this court, where the question of damages is considered. An employer may be able to calculate the financial loss he has suffered as the result of a work stoppage; but, where more than one employee has ceased work, how can the liability of each be apportioned? The statute, as interpreted by the majority, sets forth no standard for determination of the allocation of financial responsibility. I consider the conclusion irresistible that Section 8(c) can, and was intended to, apply only to a group of employees rather than to an individual employee, and consequently that the instant Complaint does not state a cause of action upon which recovery may be had.
For the reasons stated, I believe the judgment of the court below should be affirmed.
Senator Connally, leader in the passage of the bill, described the provisions of Section 8 as “incidentals.” 89 Cong. Rec. page 6488.
See editorials in June 7, 1943, June 14, 1943, and June 26; 1943, issues of the New York Times.
In this connection, another excerpt from the June 14, 1943, editorial seems most appropriate: “A Congress that hurriedly frames or accepts such ambiguous legislation has a poor excuse to ■complain later about ‘judge-made’ law.”
89 Cong.Rec. page 5330:
“Mr. Sadowski: What action did the gentleman’s committee take on Ms substitute [the Harness amendment] when it was presented to the committee?
“Mr. Harness: I did not offer it as a substitute in committee.
“Mi\ Sadowski: AVhy not, may I ask?
“Mr. Harness: Because I just got it written this morning.”
89 Cong.Ree. page 5308; ' emphasis supplied. See also the highly relevant comments of Representative Elmer, 89 Cong.Ree. page 5321, and of Senator LaFollette, 89 Cong.Ree. page 5782.
89 Cong.Rec. page A3051; emphasis supplied.
In Hamilton v. N. L. R. B., 1947, 6 Cir., 160 F.2d 465, the court held that violation of the War Labor Disputes Act does not deprive an employee of his rights under the National Labor Be-lations Act. The excerpt from that case quoted in the majority opinion, as I analyze it, was a dictum not necessary to the decision; for that Court would have reached the same result even if it had been assumed arguendo that there had been a violation of the War Labor Disputes Act. In so far as the thoughts expressed in that dictum are inconsistent with my analysis of the applicable, law, I respectfully disagree.