such action might not be in violation of the anti-trust laws.
The court concludes that insistence upon inclusion of the so-called 'able and willing' and 'memorial period' clauses in the negotiation of an agreement is a refusal to confer in good faith, and therefore a practice condemned by Section 8(b)(3). By finding lack of good faith in such insistence I do not mean that it is done with 'evil purpose', but merely that it is an insistence on inclusion of provisions without the scope of proper negotiation between the parties which may constitute a bar to effecting an accord.
The court further concludes that the record supports the probability that the respondents did insist on inclusion of the 'able and willing' and 'memorial period' clauses in any new wage agreement.
The last of the unfair labor practices with which respondents are charged is refusal to answer the request of the Southern Coal Producers Association for a collective bargaining conference. Such action would be in direct violation of Section 8(b)(3), and the record supports the probability of such violation.
Respondents' sixth defense alleges that 'since each of the alleged activities of the Respondents of which complaint is made in the petition filed herein and upon which Petitioner predicates his claims for temporary relief is wholly beyond the power, authority and jurisdiction of the Board, the relief sought in said petition and as prayed for therein is beyond the power, authority and jurisdiction of the Court to grant.' The court, having determined that the practices complained of are unfair labor practices within the meaning of Sections 8(b)(2) and 8(b)(3), finds this contention without merit.
We proceed then to the question of appropriate injunctive relief.
It is important to note that the question here involved, entirely apart from the interest of the parties to the labor-management dispute from which the case arose, is of prime importance to the entire nation. It is not necessary to point out that coal is a matter of vital concern to the whole economy of the United States. It has now been recognized that the failure of labor and management in the coal industry to get together and to produce an adequate amount of coal has imperiled the welfare of the nation.
It should be noted further that the petitioner here is not one of the parties to the labor-management dispute, but is a representative of the Government of the United States, acting to protect the rights of the public.
The mere fact that the injunctive relief requested is not that commonly recognized at common law, but is statutory, does not render the relief sought illegal. In N.L.R.B. v. Colten, 105 F.2d 179, 182, the Circuit Court of Appeals for the Sixth Circuit said of National Labor Relations Board orders, 'They are to implement a public social or economic policy not primarily concerned with private rights, and through remedies not only unknown to the common law but often in derogation of it.' The same is applicable to injunctive relief under the Labor Management Relations Act, 29 U.S.C.A. 141 et seq.
The court is clearly conscious of the fact that a finding that the record supports the conclusion that there is reasonable probability that the respondents have engaged in unfair labor practices proscribed by the letter, intent, and purpose of the Labor Management Relations Act of 1947 and that an injunction should issue, will not necessarily make for a rapid and amicable negotiation of an agreement, even if the respondents, in the light of this memorandum, abandon their request, insistence, or demand for inclusion of the provisions here complained of. This, at least, can be said: that a conscientious endeavor on the part of the parties can quickly disclose what the true difference or differences between them are, and that concentration on such differences will offer far stronger probability that an accord may be reached.
Significant at this point is the language of the Circuit Court of Appeals for the Fourth Circuit in the case of Jeffery-DeWitt Insulator Co. v. N.L.R.B., 91 F.2d 134, 139, 112 A.L.R. 948: 'It is true that the act does not require the parties to agree but merely to negotiate with each other; but it is based upon the idea that negotiations honestly entered into will generally result in the settlement of differences, and commands negotiation for that reason.'
Under the circumstances of this case, the court believes petitioner entitled to the injunctive relief prayed. Counsel will prepare appropriate findings of fact, conclusions of law, and order.