The opinion
George Bose Smith, J., dissenting. The fundamental question in this case is whether the appellees are striking for an unlawful purpose, so that picketing can be enjoined under the doctrine of Giboney v. Empire Storage Co., 336 U. S. 490 , 93 L. Ed. 834 , 69 Sup. Ct. 684. The majority hold that the strike is in breach of the union’s contract and is therefore for an unlawful purpose. While I doubt very seriously if a mere breach'of a civil contract, compensable in damages, is so unlawful as to bring such conduct within the Giboney ruling, a simpler answer is that in this case there has been no breach of contract.
By implication the majority say that the collective bargaining agreement between the company and the union is a contract of employment; but of course it is not. Contracts of employment arise individually, whenever the company employs a person to work for it. The collective bargaining agreement simply provides the various conditions that will prevail while those employees represented by the union are working for the company under their own separate contracts of employment. As the court said in J. I. Case Co. v. N. L. R. B., 321 U. S. 332 , 88 L. Ed. 762 , 64 Sup. Ct. 576: “Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. ’ ’ To the same effect is Division No. 1344 of Amalgamated Ass'n v. Tampa Elec. Co., (Fla.) 47 S. 2d 13.
By the contract before us the company and the union agreed upon the terms that were to govern working conditions from October 23,1950, until October 23,1951. They further agreed that no modification of these terms would be sought during that year, as the 60-day notice of the desire to amend the contract could not be given before August 24, 1951 — exactly 60 days before the end of the first year. Thus the employer and the employees alike gained by the contract the assurance of uninterrupted work for one year. Both parties abided by the contract during its primary term.
But on and after August 24, 1951, either side was free to give 60 days notice of its desire to change the terms of the collective bargaining agreement. During that 60 days the parties were to attempt to arrive at a new contract by peaceful negotiations. This provision of the contract was evidently intended to supply the 60-day period of negotiations that is required by the Taft-Hartley Law. 29 U. S. C. A., § 158. But it is significant that by this contract the employees did not relinquish their right to strike after the expiration of the period of negotiations. See N. L. R. B. v. Columbian Enameling, Etc., Co., 7th Cir., 96 F. 2d 948 ; Wilson & Co., Inc., 89 N. L. R. B. No. 32. After negotiating for 60 days the employees are just as free to go on strike as the company is to close the plant.
The majority seem to rely upon the provision that requires an additional 60-day notice as a condition to terminating the contract altogether. There is certainly nothing in this clause that forbids a strike during the second 60 days, nor does the Taft-Hartley Law require such a protracted cooling-off period. The purpose of this clause is to enable the parties to cancel the contract in its entirety. As long as the collective bargaining agreement is in force the company is bound to pay the agreed wages to all its employees, whether members of the union or not. If the company should desire to reduce its wage scale and be unable to negotiate a contract to that effect, then it may terminate the contract after 60 days notice and be free to employ other workmen at whatever wages they are willing to accept. But, since the 60 days of negotiations required by the Taft-Hartley Law must by this contract have already taken place before the notice of termination can be given, it was evidently the intention of the parties to leave the union legally free to call a strike upon receipt of the notice of termination. In this way the union is able-to bring economic pressure upon the company for 60 days, during which the employer cannot replace the striking employees with cheaper labor.
All these considerations are ignored by the majority, who content themselves with the blunt assertion that a strike during the existence of the contract is unlawful. There would, it is true, be at least a breach of contract if this were a contract of employment or if it contained a clause giving up the right to strike during the existence of the agreement. But the majority do not point to any language of the contract to indicate that either of these conditions is present. We certainly know that strikes during the continued existence of a collective bargaining agreement are by no means uncommon; it would be impossible to negotiate a contract of any duration unless there were provisions for further negotiations during its term. I do not find a.syllable in this contract that tends to show that this strike is even in breach of the agreement, much less for an unlawful purpose.
Millwee, J., joins in this dissent.