dissenting, with whom WEIS, Circuit Judge, joins, and with whom JAMES HUNTER, III, Circuit Judge, also joins except for part IV. B.
The question for decision is whether a complaint filed by 15 local unions of the Amalgamated Transit Union [ATU] stated a claim upon which relief could be granted. The complaint charged that New Jersey officials impermissibly interfered in the collective bargaining process between the local unions and various transit companies by threatening to withdraw state subsidies from any transit company which provided *1031in its collective bargaining agreement for an uncapped cost of living clause or for a wage increase for union employees higher than that given to state employees. The unions sought declaratory and injunctive relief against state interference in the negotiations. Pursuant to Fed.R.Civ.P. 12(b)(6), the district court dismissed the complaint for failure to state a claim. Because I would reverse the district court’s determination, I dissent from the majority’s opinion.
I.
As the majority properly observes, on a Rule 12(b)(6) motion, the factual allegations of a complaint should be accepted by the court as true, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Radovich v. Nat’l Football League, 352 U.S. 445, 448, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved in support of its claims. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). These oft-stated precepts are consistent with the simplified pleading requirements of the Federal Rules of Civil Procedure, whose purpose is “to facilitate a proper decision on the merits.” Conley, supra, 355 U.S. at 48, 78 S.Ct. at 103.
The present complaint alleged that for at least 25 years, plaintiff-appellant local unions engaged in collective bargaining with various privately owned transit companies in New Jersey, and that on January 9,1976, during the parties’ negotiations over new labor contracts to succeed those soon to expire, Alan Sagner, New Jersey’s Commissioner of Transportation,' called a meeting of union officials involved in the negotiations to announce that “the State would not continue its policy of subsidizing troubled private transit companies if the unions insisted on retaining the ‘uncapped cost of living’ clause in their contracts . . ..” Further, it alleged that on February 6, 1976, Sagner and Lewis Kaden, Counsel to New Jersey Governor Brendan Byrne, met with union officials in Washington; that at this meeting, Kaden informed the union representatives that New Jersey “objected to the cost of living principle as it existed in current contracts and was going to ‘destroy’ it”; and that both Kaden and Sagner reiterated that any transit company agreeing to such cost of living clauses in the present negotiations would not receive state subsidies.
The local unions also averred that in March, 1976, transit company negotiators informed union negotiators that state officials had instructed their companies to abandon the cost of living clauses and to hold any wage increases at the level of that granted state employees, lest the state withdraw subsidy assistance from the company; that the unions objected to these positions, and negotiations reached an impasse, as a result of which strikes occurred at four transit companies; that during the strikes, Governor Byrne stated publicly that New Jersey would not subsidize any transit company which retained a cost of living clause in its labor agreements; and that Alan Sagner distributed to the negotiating parties a statement indicating that the state would not subsidize any company which granted salary and benefit increases beyond those granted state employees. Finally, it was averred that at a bargaining session occurring during the strikes, a representative of Governor Byrne stated to negotiators that “a new contract could not contain the uncapped cost of living clause as it existed in the current contract.”1
II.
My difference with the majority is a fundamental one, because my point of departure is a basic disagreement with its major premise “that plaintiffs do not contend that defendants have violated the specific terms of any provision of the NLRA.” Maj. op. at *10321027. While I readily concede that plaintiffs’ complaint is not a model of pleading even under the notice pleading philosophy of the Federal Rules of Civil Procedure, the basic thrust of their claim is that the defendants
interfered with and impaired and will continue to interfere with and impair the collective bargaining process between the plaintiff unions and those privately owned companies. This interference is in conflict with federal law and policy favoring free and unfettered private collective bargaining. .
Complaint at H 25.
I read the complaint to be a contention that defendants violated the keystone of our national labor policy, embodied in the original National Labor Relations Act of 1935 [NLRA], 29 U.S.C. § 151:
It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.
July 5, 1935, c. 372, § 1, 49 Stat. 449; June 23, 1947, c. 120, Title I, § 101, 61 Stat. 136.
Because I start with the premise that the plaintiffs have averred a specific violation of 29 U.S.C. § 151, and the majority takes a contrary premise, it becomes quickly apparent that our separate approaches will not be reconcilable.2
A.
As originally passed and as amended in 1947, the NLRA reflects a careful balancing of the differing powers and viewpoints of labor and management. See Local 1976, Carpenters v. NLRB, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). Concerned that the inequality of bargaining power between employers and employees threatened the national economy and industrial peace, Congress encouraged “practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions . . .29 U.S.C. § 151.
In enacting the NLRA, Congress acknowledged that the legislation “preempts the field that the act covers insofar as commerce within the meaning of the act is concerned.” H.R.Rep.No. 245, 80th Cong., 1st Sess. 44 (1947). But the Act was “more noticeable for its generality than for its precise prescriptions,” H. K. Porter Co. v. NLRB, 397 U.S. 99,100,90 S.Ct. 821, 822, 25 L.Ed.2d 146 (1970), and the limitations on state authority to regulate conduct in the labor sector emerged gradually as the courts construed the purpose of the statute. See Garner v. Teamsters Local 776, 346 U.S. 485, 488, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 771-72, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947).
A state may not impinge on conduct which is protected under section 7 of the Act, 29 U.S.C. § 157, nor may a state sanction conduct which is prohibited as an unfair labor practice under section 8, 29 U.S.C. § 158. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, *103329 L.Ed.2d 473 (1971); Hanna Mining Co. v. Marine Engineers, 382 U.S. 181, 187, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-45, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Nor may state law interfere with rights implicitly guaranteed by the NLRA, even though the state conduct is not expressly prohibited, or the activity specifically protected, by the Act. The congressional intent, as perceived by the Supreme Court, was that certain conduct be privileged against state regulation. Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 140, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971); Hanna Mining Co. v. Marine Engineers, 382 U.S. 181, 187, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965).
“An appreciation of the true character of the national labor policy expressed in the NLRA and the LMRA indicates that in providing a legal framework for union organization, collective bargaining and the conduct of labor disputes, Congress struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes that would be upset if a state could enforce statutes or rules of decision resting upon its views concerning accommodation of the same interests.” Id. at 140 n.4, 96 S.Ct. at 2553, quoting Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1352 (1972). State attempts to regulate these same interests must fall if they disturb the balance contemplated by Congress. See Teamsters Local 20 v. Morton, 377 U.S. 252, 259-60, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964).
B.
Appellants’ right to collectively bargain with the employer transit companies, a crucial part of the “balance” and guaranteed under section 7 of the Act, 29 U.S.C. § 157, is accompanied by a duty to bargain in good faith, as defined in section 8, 29 U.S.C. § 158(d). But this good faith obligation “does not compel either party to agree to a proposal or require the making of a concession . . Id. Congress added this specific amendment in 1947 to prevent the National Labor Relations Board [NLRB] from forcing negotiating parties to accept terms rather than face unfair labor practice charges based on inferences of bad faith. The section was designed to return the Board to its originally intended administrative role,3 and the supreme Court subsequently held, as it had even prior to the amendment, see NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893 (1937), that the Board is “without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement.” H. K. Porter Co. v. NLRB, 397 U.S. 99, 102, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). See also NLRB v. Insurance Agents, 361 U.S. 477, 490, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 287, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972).
This understanding that collective bargaining must be free from governmental control is applicable to the states as well as to the NLRB. The Supreme Court has given directions in this regard, and has not hesitated to vindicate the supremacy clause when state interests collide with the federal labor policy announced in the NLRA. Thus, upholding the NLRB’s primary jurisdiction, the Court could teach that “[t]he ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of *1034Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy.” Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 104, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962).
Holding that a state antitrust law could not nullify the negotiated solution of a wage problem because the application of state controls “would wholly defeat the full realization of the congressional purpose,” Teamsters Local 24 v. Oliver, 358 U.S. 283, 295-96, 79 S.Ct. 297, 304, 3 L.Ed.2d 312 (1959), the Court has flatly stated that “there is no room” for a state policy which would limit “the solutions that the parties’ agreement can provide to the problems of wages and working conditions.” Id. at 296, 79 S.Ct. at 305. The same result was reached in Connell Construction Co. v. Plumbers and Steamfitters Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), in which the Court distinguished between federal and state antitrust laws. The Court reasoned that federal antitrust legislation had been carefully balanced with labor policy; that state antitrust laws generally represent a completely different balance; and, accordingly, that state regulation in this field could upset basic federal policy.
Recently presented with the question of whether Wisconsin could prohibit a union’s concerted refusal to work overtime during negotiations for a new contract, the Court has instructed:
Our decisions hold that Congress meant that these activities, whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board are “afforded flexibility in picking and choosing which economic devices of labor and management would be branded as unlawful.” Rather, both are without authority to attempt to “introduce some standard of properly ‘balanced’ bargaining power,
[SJtate attempts to influence the substantive terms of collective-bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB: “[sjince the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State.”
Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, supra, 427 U.S. at 149-50, 153, 96 S.Ct. at 2557 (citations omitted).
The power and authority of a state, therefore, may not be invoked to disturb the balance of bargaining power existing between negotiating parties, nor may it be used in an effort to dictate the substantive terms of a collective bargaining agreement.4
III.
Just as the states are prohibited from legislating contrary to the federal labor pol-., icy, the same prohibition extends to actions by the state executive branch. I see no distinction between the legislative and executive actions, and New Jersey does not suggest any in this appeal.
What is beyond the pale of permissible action is official activity that seeks to alter the economic forces at work or to influence the substantive terms of collective bargaining agreements. New Jersey appears to accept this premise. It nevertheless contends that here there was no state interference, that this was simply a case “where the State tells parties to a negotiation that only a certain amount of money is available for subsidization purposes,” and that under these circumstances “the State has not provided additional economic weapons to one side and . . . has not removed the available weapons of the other party.” Asserting that “[t]he State has determined *1035under what financial conditions it will subsidize the carriers’ operations and communicated this fact to all affected parties.” the state argues, with much force, that in so doing it was discharging its responsibilities under the New Jersey Transit Subsidy Program: 5
The State of New Jersey has carefully designed its motor bus subsidy program to provide for essential transportation needs of its citizens. This program exists outside of the occurrence of a labor dispute and is constructed to last beyond such an event. The determination that a subsidy will be offered to a carrier is discretionary with the State. It depends on various factors some of which may be of significance to collective bargaining negotiations. The fact that there is such an impact is not equivalent to saying that during the term of labor negotiations the law requires that all such considerations by the State shall be deferred.
Appellees’ Brief at 19.
What this argument overlooks is that there exists a critical difference between a state communicating to all affected parties the extent of finances it intends to grant for carriers’ operations and a state communicating that it will not continue its subsidization if the carriers agree with the unions to retain uncapped cost of living clauses in their employment contracts. The former communication presumably does not constitute interference with negotiations over wages and working conditions, as it is not a state attempt “to influence the substantive terms of collective bargaining agreements.” But when the state has “determined under what financial conditions it will subsidize the carriers’ operations” and then imposes these conditions as prerequisites to continued subsidization, the state has transformed these conditions into critical limitations on the terms of the collective bargaining agreement, and has moved beyond the pale of permissible activity. It has attempted to dictate, or at least influence, the substantive terms of the collective bargaining agreement.
By brief and at oral argument New Jersey vigorously asserted that it did not, in fact, interfere with the collective bargaining process or prescribe specific substantive terms of the resulting agreements. I cannot agree or disagree with this contention. The jurisprudential posture of this appeal requires us to accept the factual averments of the complaint as true. As averred, and if proved, New Jersey’s conduct constituted interference with the collective bargaining process protected by the National Labor Relations Act. To the extent that New Jersey can rebut the factual allegations of the complaint, it may be able to prevail. In the posture of this appeal, however, that is not relevant. The issue here is solely whether the complaint states a claim upon which relief can be granted. I would hold that it does.
IV.
The view I take requires me to meet the question whether the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., denies plaintiffs a remedy. This defense was not raised by defendants either in the district court or on appeal, but was injected sua sponte by certain members of the court during the in banc oral argument. The parties have filed post-argument briefs, and after consideration, I am persuaded that the Act does not bar labor unions from seeking relief under the circumstances at bar.
A.
Assuming the propriety of the court meeting this issue, I believe that under no *1036circumstances was Norris-LaGuardia designed to preclude declaratory relief. By its specific terms it precludes only injunctive relief; it denies the employer “merely of one form of remedy”, Brotherhood of R.R. Trainmen v. Toledo P. & W. R.R., 321 U.S. 50, 63, 64 S.Ct. 413, 420, 88 L.Ed. 534 (1944), the injunction. See United States v. United Mine Workers, 330 U.S. 258, 270, 67 S. Ct., 677, 91 L.Ed. 884 (1947). Whatever had been the state of the law immediately following Samuels v. Mackell, 401 U.S. 66, 69-74, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), which emphasized the similarity between injunctive and declaratory relief in the context of interfering with an ongoing state criminal prosecution, and which seemingly blurred the distinctions raised in Zwickler v. Koota, 389 U.S. 241, 254-55, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), it is clear that at least since Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Court has been consistent in characterizing a basic difference between declaratory and injunctive relief: “Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction . ..” Id., at 466, 94 S.Ct. at 1219. Thus, “even though a declaratory judgment has ‘the force and effect of a final judgment,’ 28 U.S.C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.” Id. at 471, 94 S.Ct. at 1221, quoting Perez v. Ledesma, 401 U.S. 82, 125-26, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion of Brennan, J.). Compare Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Zwickler v. Koota, supra, 389 U.S. at 254, 88 S.Ct. 391 (1967); and Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), with Samuels v. Mackell, supra, 401 U.S. at 69-74, 91 S.Ct. 764.6
*1037 B.
This court is considering, in 1977, matters arising from collective bargaining negotiations which took place in the spring of 1976. The reality is that the injunction request is probably moot because of the passage of time. But assuming that the injunctive relief claim is not mooted, I would hold that Norris-LaGuardia does not preclude labor unions from seeking injunctive relief to enforce the national labor policy. I read the legislative purpose of the Act to protect the union against the employer and those .standing in the employer’s interests, and not vice versa. Thus, the public policy declared by the Act states:
§ 102. Public policy in labor matters declared
In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is declared as follows:
Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted.
Mar. 23, 1932, c. 90, § 2, 47 Stat. 70.
“The Norris-LaGuardia Act was designed primarily to protect working men in the exercise of organized, economic power, which is vital to collective bargaining.” Brotherhood of R.R. Trainmen v. Chicago R. & I. R.R., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Appellees have not cited, nor has our research uncovered, a federal court decision holding that the employer, or one standing in the interest of the employer, may interpose the defense of the Norris-LaGuardia Act to an injunction request brought by a union to protect a bargaining process. I have always perceived Norris-LaGuardia as a shield to protect union members, not as a sword to attack them. Certainly that was the perception of Senator Norris and Representative LaGuardia, who shepherded the legislation through the Senate and House.7
*1038Moreover, no precedent has been cited, nor has our research discovered any federal court case holding that Norris-LaGuardia forbids the issuance of injunctions against state officials in preemption cases. In the one reported preemption case in which the issue was raised, the Norris-LaGuardia Act was held inapplicable. Almacs, Inc. v. Hackett, 312 F.Supp. 964 (D.R.I., 1970). Almacs was similar to the instant case, as it was a suit to enjoin the director of a state agency from taking action alleged to be in conflict with the NLRA. Furthermore, in many instances federal courts have granted injunctions against state officials in labor preemption cases without perceiving any Norris-LaGuardia problems. See, e. g., United Steelworkers v. Bagwell, 383 F.2d 492 (4th Cir. 1967); Oil, Chemical & Atomic Workers v. Arkansas Louisiana Gas Co., 332 F.2d 64 (10th Cir. 1964); General Electric Co. v. Callahan, 294 F.2d 60 (5th Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962); Rochester Telephone Corp. v. Levine, 90 L.R.R.M. 3031 (W.D.N. Y.1975); Hawaiian Telephone Co. v. Hawaii, 405 F.Supp. 275, 90 L.R.R.M. 2854 (D.Haw.1975); Delaware Coach Co. v. Public Service Comm’n, 265 F.Supp. 648 (D.Del. 1967); Allied Industrial Workers v. Schmidt, 43 L.R.R.M. 2808 (E.D.Ky.1959); Grand Rapids City Coach Lines v. Howlett, 137 F.Supp. 667, 37 L.R.R.M. 2259 (W.D. Mich.1955).
V.
Accordingly, I would reverse the judgment of the district court and remand the proceedings.
Judge Hunter joins in this opinion, except to the extent it discusses injunctive relief. Since the court is reviewing the grant of a motion to dismiss for failure to state a claim on which relief could be granted, F.R. Civ.P. 12(b)(6), since the presence of at least one equitable remedy — declaratory judgment — is clear, he would allow the district court to provide for the making of an appropriate record. In this posture and at this procedural stage, he would not reach the various ramifications of, and problems involved in, injunctive relief.
. The complaint also averred that two of the strikes ended with the signing of contracts which did not include the cost of living clause; that two of the strikes continued; and that negotiations were about to begin between the union locals and other transit companies.
. In the context of Roscoe Pound’s formulation, the majority and I part company in the first step of the decisional process:
Supposing the facts to have been ascertained, decision of a controversy according to law involves (1) selection of the legal material on which to ground the decision, or as we commonly say, finding the law; (2) development of the grounds of decision from the material selected, or interpretation in the stricter sense of that term; (3) application of the abstract grounds of decision to the facts of the case. The first may consist merely in laying hold of a prescribed text of code or statute, or of a definite, prescribed, traditional rule; in which case it remains only to determine the meaning of the legal precept, with reference to the state of facts in hand, and to apply it to those facts.
Pound, The Theory of Judicial Decision, 36 Harv.L.Rev. 940, 945-46 (1923).
. Prior to the Act’s passage, the Senate Committee on Education and Labor stated:
The committee wishes to dispel any possible false impression that this bill is designed to compel the making of agreements or to permit governmental supervision of their terms. It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory.
S.Rep.No. 573, 74th Cong., 1st Sess. 12 (1935).
. Nothing I say here should be construed as contrary to the salutary state programs which provide state mediation services upon application by negotiating parties. Such programs have as their purpose the encouragement, not coercion, of satisfactory agreement on working conditions. See, e. g., Pa.Stat.Ann. tit. 43, §§ 211.31—.39.
. Private transit companies receive state aid under the following provision:
The Department of Transportation is hereby authorized to contract with any motor bus carrier operating bus or rail transit service in the State which is in imminent danger of terminating all bus services or all rail transit services provided by said motor bus companies to insure the continuance of that portion of the bus and rail transit services which is essential. Payment by the department under such a contract shall not exceed the actual cost to the motor bus carrier for providing such services and shall not include any return on investment.
27 N.J.Stat.Ann. § 1A-28.1 (Supp.1976).
. An examination of the congressional debates and legislative history of the Norris-LaGuardia Act leads to the inescapable conclusion that the Act was intended to curb the abuse of the injunction and the powerful threat of contempt in labor disputes. Numerous examples of sweeping injunctions directed against workers, union members and officials, and those who might offer them aid were cited in the debates. The problem was summarized by Representative O’Connor:
Among the many abuses of the issuance of injunctions in labor disputes has been forbidding the unions to pay any strike benefits to the strikers; forbidding any person, whether a member of the union or not, to give any aid or assistance to the strikers. Often the injunctions have gone so far as to forbid attorneys to advise the strikers as to their rights even in proceedings to dispossess the strikers from their homes. Again some injunctions have prohibited the strikers from giving any publicity to the existence of the strike or the reasons for it or their justification of it. Such prohibitions are, of course, outrageous violations of the right of “free speech.”
Yet there has been no legislative law for these extraordinary decrees of our courts. This judge-made law has developed in the past 40 years. The judges have themselves made the law and have themselves enforced the penalties for the violation of the laws made by them.
75 Cong.Rec. 5463 (1932) (remarks of Representative O’Connor); see, e. g., id. at 4620-21, 4624, 4625.
The nature of the contempt power and in particular, the fact that it could be unilaterally imposed by the same judge who issued the injunction claimed to have been violated, was of serious concern to the legislators. Thus, Senator Norris stated:
And let us suppose, too, that for a violation of this order, one of the defendants was arrested. Where would he be tried? Would it be in the courts of the State where the offense is alleged to have been committed? No. . . . [discussing contempt] . In such a case the defendant would have committed a crime as defined by this arbitrary law in the shape of an injunction — not a crime under the State law, not a crime under any Federal law, but a crime made so by an arbitrary order of a judge . And if, when he was arrested, there was a dispute as to whether he had violated the order of the judge and thus committed a crime, would he have the right to lay his case before a jury of his peers? Would the constitution and laws of the State where the alleged offense was committed control in such trial? No. No jury could sit in that case. Who would be the jury? The answer is, the judge — the same person who made the law, the same person who fixes the penalty. He would fix the punishment and he would render the judgment, and at his will the defendant would go to jail for a time limited only by the discretion of the same judge.
*1037Id. at 4507 (remarks of Senator Norris).
The legislators’ basic concern was that the contempt power altered the relative positions of labor and management to the point that concerted action by labor could only be undertaken under threat of imprisonment. See id. at 4625.
. Senator Norris: “[L]aboring men have organized into associations and unions in order that they may present a united front to the demands of combined wealth and great aggregations of capital. His right to do this has become universally recognized, but, [misuses of injunctive power] have often taken away the real right of labor to have a voice in the wage it shall receive, and the effect has often been involuntary servitude on' the part of those who must toil in order that they and their families may live.” 75 Cong.Rec. 4502 (1932).
Representative LaGuardia: “Gentlemen, this bill does not — and I can not repeat it too many times — this bill does not prevent the court from restraining any unlawful act. This bill does prevent the Federal court from being used as an agency for strike-breaking purposes . to break a lawful strike. This is what the bill does.
“The bill does not take one iota of jurisdiction — because we have not the power — from the State courts and does not change any State law.
“Therefore you can well disregard all these expressions of fear of destroying the Government. Gentlemen, there is one reason why this legislation is before Congress and that one rea*1038son is disobedience of the law on the part of whom? On the part of organized labor? No. . . . [discussion of injunctions against labor] .... The trouble is that a few — and I am glad to say a few — Federal judges . were willing to . . . take the employer side of a labor dispute, and act as a strikebreaking agency. That, gentlemen, is the reason, the history, and the necessity of my bill.” 75 Cong.Rec. 5478 (1932).