United States v. NATIONAL MARINE ENGINEERS'BEN. ASS'N

• Decision Date: 22 August 1961
• Docket Number: Docket 27082.,No. 428,428
• Citation: 294 F.2d 385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, Seafarers International Union of North America, and International Organization of Masters, Mates and Pilots, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

294 F.2d 385 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION, Seafarers International Union of North America, and International Organization of Masters, Mates and Pilots, Defendants-Appellants.

No. 428, Docket 27082.

United States Court of Appeals Second Circuit.

Argued August 17, 1961.

Decided August 22, 1961.

Lee Pressman, New York City (Lee Pressman, New York City, Richard Markowitz, Philadelphia, Pa., Ned R. Phillips, New York City, of counsel), for appellant, National Marine Engineers' Beneficial Assn.

Richard H. Markowitz, Philadelphia, Pa., for appellant, Seafarers Intern. Union of North America.

Betty H. Olchin, New York City (Marvin Schwartz, Betty H. Olchin, New York City, Donald E. Klein, New York City, of counsel), for appellant, Intern. Organization of Masters, Mates and Pilots.

William H. Orrick, Jr., Asst. Atty. Gen. (Robert M. Morgenthau, U. S. Atty., New York City, Alan S. Rosenthal, Pauline B. Heller, W. Harold Bigham, Edward A. Groobert, Attys., Dept. of Justice), Washington, D. C., for appellee.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

National Marine Engineers' Beneficial Association, AFL-CIO (MEBA), International Organization of Masters, Mates and Pilots (MMP) and Seafarers International Union of North America (SIU) appeal from an order of Chief Judge Ryan, entered in the District Court for the Southern District of New York on July 10, 1961, pursuant to § 208 of the Labor Management Relations Act of 1947, 61 Stat. 155, 29 U.S.C.A. § 178 (sometimes hereafter the Taft-Hartley Act or the Act), which temporarily enjoined continuation of a large scale strike of the United States merchant marine. Other unions which were defendants below and were named in the injunction have not appealed. It is not disputed that all the preliminary steps to such an injunction required by §§ 206-208 of the Act, 29 U.S.C.A. §§ 176-178 — Presidential appointment of a board of inquiry, the making and filing of a report by the board, and direction by the President to the Attorney General to start a suit — were duly taken. The District Court found that the strike affected a substantial part of an industry engaged in transportation among the several states and with foreign nations and that, if permitted to continue, it would imperil the national health and safety. Although the parties differ slightly as to the number of vessels in the United States merchant fleet and the proportion that would have been immobilized by the strike at the time of the injunction but for a temporary restraining order issued by the District Court on July 3,¹ we need not discuss this since the lowest percentage claimed, 45½%,² is plainly "a substantial part,"³ and appellants do not here contend to the contrary.

However, the parties are in sharp conflict whether the District Court was warranted in finding that continuance of the strike "will imperil the national health or safety," a finding which § 208(a) (ii) makes indispensable to the issuance of the injunction. Here, as in United Steelworkers of America v. United States, 1959, 361 U.S. 39, 80 S.Ct. 1, 177, 4 L.Ed.2d 12, 169, the Government urges a broadly inclusive interpretation of these words of the statute whereas the appellant unions claim that "health" is limited to the physical health of the populace as distinguished from the general well-being of the nation and its economy, and that "safety" is limited to the national defense and even that viewed on a somewhat restricted basis. The question of what these terms embody is not without its difficulties, and Congressional clarification of so important a matter would surely be helpful. Like the Supreme Court in the Steelworkers case, we find it unnecessary to resolve the issue. For the record supports the granting of the injunction even on the narrower interpretation of the statutory language for which the unions contend.⁴

The District Court found that continuation of the strike "would have an adverse effect upon the maintenance in this country of an adequate supply of petroleum products, which is essential to transportation, both military and civilian, and for the operation of industrial plants and electric utilities and for heating." There is no need to belabor the point that a material depletion of petroleum supply would imperil the national health and safety even on the most restricted interpretation of those terms. Without going into burdensome detail, it is evident that a supply of petroleum products adequate for the production and transportation of foods and drugs, for heating, for the making of electrical energy, and for many other purposes, is essential to the physical health of the people; and adequate supply is equally required for the training and readiness of the Air Force, the production and transportation of goods essential to national defense, and the operations of the Navy, the merchant marine, and air and land transport in the event of military emergency. Even the dissent in the Steelworkers case considered a coal strike within the purpose of Congress in enacting § 208, 361 U.S. 65, 80 S.Ct. 6; in today's economy the effect of a shortage of petroleum, the source of 45% of the energy consumed in this country as the record shows, would be at least as serious. The question, therefore, is whether the District Court was warranted in concluding that the maritime strike was threatening petroleum supply.

It plainly was. An affidavit of the Secretary of the Interior stated that the East Coast of the United States uses more than 3,500,000 barrels of oil daily;⁵ that more than half this supply comes by tank vessel from United States Gulf Coast ports; and that legal requirements demand that this movement be in United States registered vessels. Other affidavits stated that more than half the American flag tankers active in the Gulf Coast-East Coast service were strike-bound until the District Court issued its temporary restraining order; Judge Ryan was justified in accepting this estimate. The Secretary further averred there were no other means of transportation which could promptly replace the tankers; that, accordingly, spot shortages of petroleum products, especially gasoline, could be expected shortly; that these would rapidly worsen; that aircraft fuel would soon be in short supply; and that the necessary summer build-up of stocks of heating oils would be interfered with. Other Government officers attested the prospect of shortages of petroleum products affecting industrial operations necessary to the national defense. Defendants adduced no evidence requiring rejection of these statements.

We could rest here, and on the convincing evidence supporting the finding that continuation of the strike "would have a critical impact upon Hawaii, which occupies a key position in our defense structure, because Hawaii's supply of essential foods (taking into account the time required for transportation from the West Coast to Hawaii) would be exhausted * * *"⁶ but for appellants' contention that, assuming so much to have been established, the injunction should have been limited to strikebound tankers serving the East Coast and ships in the Hawaii trade. True, this contention reminds of that with respect to "a selective reopening of some of the steel mills * * * to fulfill specific defense needs," which the Supreme Court rejected in the Steelworkers case, 361 U.S. 39, 43, see also 49-54, 80 S.Ct. 1, 4, 180-182. However, the economics of merchant shipping may not be parallel with those of steel as regards the feasibility of segregating particular operations; and we prefer to rest affirmance upon another finding to which this contention is inapplicable.

This finding is that "Since the American merchant marine is intended, pursuant to the Merchant Marine Act, 1936 (46 U.S.C. 1101 et seq.), to be available as a naval and military auxiliary in time of war or national emergency, the strike, by rendering the merchant marine inoperative, would constitute a serious risk to the national health and safety"; we endorse this insofar as it refers to the national safety, which in view of the disjunctive wording of § 208(a) (ii), is all that is required.

The Merchant Marine Act of 1936 was enacted, after comprehensive consideration, to replace predecessor statutes, Act of June 5, 1920, 41 Stat. 988; Act of May 22, 1928, 45 Stat. 689, themselves designed to prevent recurrence of the situation in World War I in which the United States had found itself almost without a merchant marine at a time when foreign nations, on whose ships we had become largely dependent, withdrew these for their own needs. The very first sentence of the Merchant Marine Act declares, 46 U.S.C.A. § 1101, that "It is necessary for the national defense * * that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service on all routes essential for maintaining the flow of such domestic and foreign water-borne commerce at all times," and "(b) capable of serving as a naval and military auxiliary in time of war or national emergency * * *" The Secretary of Commerce is directed "to study, perfect, and adopt a long-range program for replacements and additions to the American merchant marine" in order to achieve various objectives, one of which is that "the vessels in such fleet are to be so designed as to be readily and quickly convertible into transport and supply vessels in a time of national emergency," 46 U.S.C.A. § 1120. He is instructed also to maintain a Merchant Marine Academy, cadets appointed to which "may be appointed by the Secretary of the Navy as Reserve midshipmen in the United States Navy and may be commissioned as Reserve ensigns in the United States Navy upon graduation from the Academy," 46...