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February 8, 1963

UNITED STATES of America, Plaintiff,
The BOEING COMPANY, a Delaware Corporation, et al., Defendants

The opinion of the court was delivered by: LINDBERG

A hearing was held on the application for temporary restraining order upon oral notice to the defendants, who all appeared by counsel and were heard. The court entered a temporary restraining order on January 25, 1963, enjoining the occurrence of the threatened strike.

 A hearing was scheduled for February 1, 1963, on the motion for a preliminary injunction; affidavits and memoranda were filed, and argument was had. Certain defendant unions, while not opposing the issuance of a preliminary injunction, moved for entry of an order which differed in language and scope from the form of preliminary injunction proposed by the government and previously served upon the parties.

 After argument, the court entered findings of fact and conclusions of law. The court found that on January 23, 1963, the President of the United States, acting under the provisions of Section 206 of the Labor-Management Relations Act (29 U.S.C. § 176) issued Executive Order 11078 whereby he found that the existing labor disputes among the defendants named herein threatened to result in a strike which would affect a substantial part of an industry engaged in trade, commerce and transportation among the several states and would imperil the national safety, and he appointed a Board of Inquiry to inquire into the issues involved in the disputes.

 The Board of Inquiry inquired into the issues involved in the disputes and made a written report to the President on January 25, 1963, and the President thereafter directed the Attorney General to commence this proceeding for an injunction against the occurrence of the strike.

 The court further found that a strike was threatened which would affect a substantial part of the ballistic missile, space vehicle and military aircraft industry of the United States, and, if permitted to occur, would imperil the national safety.

 The court on February 1, 1963, issued a preliminary injunction in the form proposed by the government, enjoining the occurrence of the strike; directing the defendants to refrain from interfering with the orderly continuance of work in the affected installations; and directing them to engage in collective bargaining in good faith and to attempt to settle their differences.

 This matter is now before the court upon motion made by certain defendant unions, and supported by the remaining defendant unions, moving the court to amend the preliminary injunction heretofore issued on February 1, 1963, by the addition of certain language to section 1(b) thereof. Section 1(b) provides, in pertinent part, that defendants are restrained 'from in any manner interfering with or affecting the orderly resumption and continuance of work * * *' in the affected installations. Defendant unions ask the court to add language which would require continuance of the work 'at the same rates of pay, hours of labor and other terms and conditions of employment as were in effect immediately prior to January 25, 1963' and reference is made to certain collective bargaining agreements.

 Affidavits have been filed herein which tend to show that written agreements extending the terms of collective bargaining agreements between the defendant Boeing Company and the defendant International Association of Machinists unions and between the Vertol Division of the Boeing Company and the defendant United Automobile Workers unions have expired by the terms of the agreements; whereas it appears from the affidavits filed that agreements between the Rohr Company and certain of the defendant unions have not yet expired according to their terms.

 However, in the exercise of the court's limited jurisdiction herein and in view of the limited purpose of the applicable statutory provisions, the court does not believe that it is appropriate or advisable to make a determination of the legal positions of the various defendants in regard to their collective bargaining agreements.

 There is nothing in the showing here made to suggest that either of the defendant employers has evidenced any intention to discontinue policies, procedures and conditions of employment established under existing or pre-existing contracts, with the exception of the union security provisions of the agreements, referred to as maintenance of membership provisions. There is no evidence that the Rohr Company is not observing the terms of collective bargaining agreements made by the parties, nor that the Boeing Company, with the exception noted, has made or intends to make unilateral changes in existing wages, hours, and working conditions during the collective bargaining negotiations now in progress. It has been held that unilateral modifications of working conditions, while such conditions are the subject of collective bargaining talks, may and usually do constitute an unfair labor practice. National Labor Relations Board v. Katz, 369 U.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230. Such unilateral actions, if they should occur, would invoke the primary jurisdiction of the National Labor Relations Board. If at some future time a situation should develop wherein either bargaining party considers the other bargaining party to be guilty of an unfair labor practice resort may be had to the National Labor Relations Board for a determination of what relief, if any, may be indicated; or resort may be had to this court if the preliminary injunction is being violated. I am not persuaded that Congress intended to oust the National Labor Relations Board of its primary jurisdiction and responsibility through the enactment of the national emergency provisions.

 In regard to the union security provisions of the collective bargaining agreements which require maintenance of union membership as a condition of employment for those employees who are members of the union in good standing on a specified date, the Boeing Company has taken the position that the bargaining agreements have expired by their terms and, in the absence of an existing contractual obligation to enforce the union security provisions, the company is not at liberty to continue in effect the contractual provisions which require discharge of employees who do not maintain their membership in the union. The company expresses its belief that to do so would violate the Act and bases its position on the statutory language contained in Section 7 of the Act (29 U.S.C. § 157) pertaining to rights of individual employees, upon Sections 8(a)(3) and 8(a)(1) (29 U.S.C. § 158), and upon the interpretation of these statutory provisions by decisions of the National Labor Relations Board and the courts. National Labor Relations Board v. International Union, United Auto, Aircraft Agricultural Implement Workers (1 Cir., 1961) 297 F.2d 272; Communications Workers of America, CIO v. National Labor Relations Board (2 Cir., 1954) 215 F.2d 835; Bethlehem Steel Company and Bethlehem-Sparrows Point Shipyard, Inc. and Industrial Union of Marine & Shipbuilding Workers of America, 136 N.L.R.B. No. 135. The position taken by the company finds support in the cited cases. The sections of the statute relied on by Boeing have not been shown to be inapplicable in proceedings under Section 208 of the Act (29 U.S.C. § 178).

 It is not the function of this court in this type of proceeding to determine the correctness or incorrectness of the company's evaluation of its legal position in connection with union security provisions of a pre-existing bargaining agreement unless it should clearly appear that failure to abide by the maintenance of membership provisions has created conditions which constitute a material interference or threatened interference with the overall ...

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