Cafeteria & Restaurant Workers v. McElroy

PETITIONER:Cafeteria & Restaurant Workers
RESPONDENT:McElroy
LOCATION:Trailways Bus Terminal

DOCKET NO.: 97
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 367 US 886 (1961)
ARGUED: Jan 12, 1961
DECIDED: Jun 19, 1961

Facts of the case

Question

  • Oral Argument – January 12, 1961 (Part 2)
  • Audio Transcription for Oral Argument – January 12, 1961 (Part 2) in Cafeteria & Restaurant Workers v. McElroy

    Audio Transcription for Oral Argument – January 12, 1961 (Part 1) in Cafeteria & Restaurant Workers v. McElroy

    Earl Warren:

    Number 97, Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO, et al., Petitioners, versus Neil H. McElroy et al.

    Mr. Dunau.

    Bernard Dunau:

    May it please the Court.

    This case can be put in quick focus.

    A civilian, non-governmental employee works as a short-order cook at a cafeteria located on the premises of the Gun Factory.

    She works for a civilian, non-governmental employer who operates the cafeteria pursuant to a contract with the Gun Factory.

    The Superintendent of the Gun Factory and his Security Officer calls the short-order cook to lose her job because she allegedly fails to meet security requirements.

    There is no disclosure of what the security requirements constitute.

    There is no statement of reasons particularizing the respects in which the employee allegedly fails to meet them.

    And there is no hearing of any kind at which to know or meet the evidence supporting the bare conclusion.

    Our question is whether such action by governmental officers is authorized and if authorized, whether it is constitutional.

    What happened here?

    On November 15th, 1956, the employer operated three main cafeterias on the premises of the Naval Gun Factory, government land.

    He operated those cafeterias pursuant to an Agreement with the Board of Governors of the Naval Gun Factory cafeterias, a group of seven civilian governmental employees appointed by the Superintendent.

    One of the provisions of that Agreement said this, “In no event shall the Concessionaire engage or continue to engage for operations under this Agreement, personnel who failed to meet the security requirements or other requirements under applicable regulations of the Activity, as determined by the Security Officer of the Activity.”

    The employees working at those cafeterias were represented by the petitioner Union in collective bargaining.

    The Union had been certified as the exclusive representative in 1942 by the National Labor Relations Board and collective bargaining agreements have entered ever — into ever since.

    Each collective bargaining agreement contained the provision that no employee shall be suspended or discharged without good and sufficient cause.

    On November 15th, 1956, one of the employees working there was a person named Rachel Brawner, who worked as a short-order cook.

    She had worked at that shop — at that cafeteria for six and one-half years.

    She was a first-rate employee whose performance of work was never questioned as being altogether satisfactory.

    Felix Frankfurter:

    Does the length of service make a difference?

    Bernard Dunau:

    I think it makes a difference, Your Honor, in terms of the suggestion that she has not been injured on the loss of his job.

    I think that when a person has had a job for six and a half years, it goes a rather a long way to say that the loss of that job is not an injury.

    Felix Frankfurter:

    I should think if a person loses a job, even if she’s been there six and a half weeks.

    Bernard Dunau:

    I go along entirely with that and go further to say a person who’s been denied an opportunity to get a job has also been injured as well as the person who has lost a job.

    Potter Stewart:

    She had acquired certain rights by virtue of her seniority haven’t she had under the collective bargaining agreement.

    Bernard Dunau:

    Under the collective bargaining agreement, by virtue of seniority, she would have priority over those below her in terms of layoff, at least.

    Potter Stewart:

    Right.

    Felix Frankfurter:

    And on constant, she would’ve lost if she had been transferred to another place?

    Bernard Dunau:

    If she had been transferred to other cafeterias on the Naval Gun Factory, of course, she would still retain her seniority because the Agreement covered all operations.

    If she would be transferred to any other establishment which this employer operated, she would lose her seniority.

    There were no collective bargaining agreements protecting that seniority in other respects.

    Felix Frankfurter:

    Then we have to see all the collective bargaining agreements to her employer.

    Bernard Dunau:

    It wouldn’t make a bit of difference, Your Honor because —

    Felix Frankfurter:

    Did we take judicial notice of the fact that the contractor, who hires out for this kind of thing, has a special seniority Agreement as compared with other places here before?

    Bernard Dunau:

    No, I — and that’s — I think it wouldn’t make any — any difference because even if the place to which the employee went had a collective bargaining agreement, in that place, that employee would be a new employee.

    She could not take her seniority under one unit and transfer it and get it under another unit in the absence of very special circumstances.

    Felix Frankfurter:

    All I’m suggesting is, I’m not sure that I would take judicial notice of all these — of all these matters as a matter of common law of Trade Union Law.

    I’m further suggesting if either irrelevancy, that’s what I’m talking about.

    Bernard Dunau:

    Very well, sir.

    On November 15th, 1956, as I said, she was working as a short-order cook.

    The day before, the secretary treasurer of the Board of Governors notified a Mr. Baker, who was the supervisor of the cafeteria employees and he told Mr. Baker that you have — you’re going to have to pick up the identification badge of Rachel Brawner, the Security Officer has told her she is a security risk and she — and he requires that her badge be surrendered.

    The next day, Rachel Brawner was relieved from her job at the cafeteria and she reported to the office of Mr. Baker and in her words, this is what happened at that office.

    As I read from page 7 of our brief.

    “Well, when I first went in, I sat down and Mr. Baker told me that he was sorry, that he hasn’t told to pick up my badge and I asked Mr. Baker what for?”

    And he said, “For security reasons.”

    I said, “What about security?

    I haven’t did anything.

    I don’t know anything that I did.”

    And he said, “That’s all I know, to pick your badge.”

    I said, “What must I do or who do I see?”

    He said, “Write a letter to the Superintendent of the yard.”

    If he were me, he would write a letter to the Superintendent.

    I turned my badge over to Mr. Baker and he asked the clerk to write me a slip of paper to get out of the gate so that I could show it to the Marine on the gate.”

    And this is what Mr. Baker said, naturally, it upset her a great deal.

    I could not tell her anything except I had been directed to take such an action.

    I tried to explain to her the several steps which I thought might be possible for her to follow, including going to the Security Officer himself and to the Superintendent and of course, I told her to see Mr. Palmer, her business agent.

    She surrendered her badge.

    She left the premises.

    Bernard Dunau:

    She has not worked for the company since.

    A badge is required in order to secure entrance to and exit from the Naval Gun Factory grounds.

    This employee had no access to classified information.

    We deal with an employee here who has no access to classified information.

    She immediately went to her business agent and reported to him what had transpired.

    In a personal meetings in correspondence, the Union protested to the employer that her discharge was — was without good and sufficient cause.

    Repeatedly, he asked for an explanation of the reason why her security status was thought to be in question and repeatedly, the company said, “We do not know.

    We cannot find out why her security status is thought to be in question.”

    Potter Stewart:

    Is her badge restricted to any particular area?

    Bernard Dunau:

    I don’t know, Your Honor.

    I — and I don’t recall that the record shows one way or another.

    In connection with the Union’s request for an explanation, the employer attempted to arrange a meeting with the Superintendent to discuss this question, but the Superintendent refused to meet.

    He said, we have made our determination, it is a proper determination and these are his exact words, “The meeting proposed would serve no useful purpose and is therefore unnecessary.

    “And so we have a case in which governmental officers deprived a private employee of her private employment on the basis of an alleged failure to meet security requirements and nobody knows what the security requirements constitute, how she failed to meet them or whatever there — there is to support that conclusion.

    John M. Harlan II:

    But supposing they hadn’t told her anything, but that that they didn’t wish her employed any further, would your case be different?

    Bernard Dunau:

    I do not think it would be different, Your Honor, because this is a private employee of a private employer.

    The Government in that situation is an outsider.

    If the Government wishes to interfere with the employment of a private employee, of a private employer, it must show justification.

    And if it causes a discharge without any explanation at all, it has shown no justification.

    John M. Harlan II:

    Could the — could the naval establishment kicking off the naval post that it wished to?

    Bernard Dunau:

    Yes, sir, it could.

    We are not dealing here with a sightseer who wants to go into the grounds in order to satisfy his curiosity.

    We are dealing here with a person who has an interest by virtue of employment on those grounds, by virtue of the fact that denial of employment on the basis of a reason given, impairs her opportunity for employment elsewhere and we are dealing with a person who when found to be a security risk, has a reputation (Inaudible)

    And in deal with such a person who has these interests and has those interests invaded, we are dealing with very different kind of a person than one who is a sightseer or one who — to satisfy his curiosity, simply wishes to get on the grounds.

    Felix Frankfurter:

    Does the record disclose the nature of the Agreement between the Government and the contractor?

    Bernard Dunau:

    Yes, sir.

    The record — the original record which is before this Court has that Agreement in full.

    The printed record contains that part of the Agreement which I believe is relevant to this case.

    That part of it which I read said, “In no event shall the Concessionaire engage or continue to engage for operations under this Agreement, personnel who fail to meet the security requirements or other requirements under applicable regulations of the Activity.”

    Felix Frankfurter:

    Well, I wasn’t referring to that.

    Felix Frankfurter:

    I was referring to the arrangement between the Government and the contractor as to his rights to continue to be a contractor.

    Bernard Dunau:

    I believe the contract was terminable on 60 days notice by either party.

    I believe under the contract, the concessionaire — well, here — I have it here, “This Agreement shall continue for a period of one year from the effective date herein.

    Unless notice in writing of an intention not to renew this Agreement is given by the concessionaire to the Board or by the Board to — on the — to the concessionaire at least 30 days before the end of the term, this Agreement shall be extended automatically for another term of one year.”

    And then it goes on, “This Agreement may be terminated at any time by either party upon 30 days notice to the other in writing.”

    And then under disputes, it says this which maybe relevant, “Any dispute concerning a question of fact arising between the Board, that is the Board of Governors of the Naval Gun Factory Cafeterias, and the concessionaire under this Agreement, which is not disposed of by mutual Agreement, shall be decided by the commanding officer of the Activity who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the concessionaire.

    The decision of a commanding officer — officer shall be final and conclusive unless fraudulent, unless determined by a court of competent jurisdiction to have in fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or not supported by a substantial interest.”

    Felix Frankfurter:

    I suppose the Commander in Chief this afternoon, jots down his cafeteria with the confession there that sue for frustration of the contract?

    Bernard Dunau:

    If the commanding officer were to decide —

    Felix Frankfurter:

    The Commander in Chief not the commanding officer.

    The President of the United States —

    Bernard Dunau:

    The President of the United States were to decide that on the premises of the Gun Factory, there is no point in keeping cafeterias off (Voice Overlap) —

    Felix Frankfurter:

    No I mean he shuts to the factory.

    Bernard Dunau:

    It — it’s a — he may shut the factory, the claim under as — the concessionaire under those terms as I read this Agreement, would be for loss profit for a period of 30 days because of the failure to give 30 days notice in writing.

    We do not claim that the Government cannot shut this factory down.

    But we do claim —

    Felix Frankfurter:

    You mean that — you mean that provision would come into play?

    Bernard Dunau:

    I beg your pardon sir.

    Felix Frankfurter:

    Do you think if the President as the Commander in Chief, who deems it appropriate to shut that factory, if it’s sued for loss of profit?

    Bernard Dunau:

    For the 30-day period —

    Felix Frankfurter:

    Yes.

    Bernard Dunau:

    — because under this Agreement, the 30 days notice is required before the Agreement can be terminated and I don’t see that that provision can be gained, say, simply because of a decision to terminate them now.

    You can terminate now and pay the damages for the 30 days.

    Felix Frankfurter:

    You don’t have to decide that, but I might not so sure you’re right.

    Bernard Dunau:

    Well, that maybe sir.

    I should not suppose that the President of the United States, although he is President, has the power to abrogate valid agreements without passing —

    Felix Frankfurter:

    Neither do I, but it all depends what the agreement is, what its implications are.

    Bernard Dunau:

    We think that this case is controlled by Greene v. McElroy.

    The navy personnel instructions which we quote on page 30 of our brief, in which the respondents quote at page 29 of their brief, say this, “The services operated by concessionaires are classed as private enterprises.

    They acquire none of the status of a government instrumentality and their employees have the same legal status as do the employees of any private employer.”

    Bernard Dunau:

    This Court, in Greene v. McElroy decided the status of a private employee of a private employer, whose employment was adversely affected on security grounds by the Secretary of Defense or his subordinates.

    This Court held that in the absence of explicit authorization for either the President or Congress, the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.

    We have a case therefore, in which an employee who has access to classified information and who has been given a limited hearing, may nevertheless not have his — lose his employment on the basis of such a limited hearing.

    In this case, we are told that though such an employee cannot lose his employment, an employee with no access to classified information and without any hearing at all, may nevertheless, lose her job on security grounds.

    We think that turns things upside down.

    There are three distinctions suggested, of course, the first in Greene, there was a — no authority and here, there was.

    The second, William Greene was an aeronautical engineer and Rachel Brawner is a cook.

    William Greene couldn’t work as an aeronautical engineer once the security clearance was taken from him, Rachel Brawner can work as a cook here and everywhere.

    William Greene worked on private property.

    Rachel Waner — Brawner worked on government property.

    Let’s look at the distinctions, let’s take authority first.

    In Greene, there was at least explicit departmental authority for the action taken.

    In this case, there is not even departmental authority shown.

    Now, an oral argument is no place for the meticulous tracing of regulations, but I want to make only two points with respect to the lack of even departmental authority for the action taken.

    Respondents agreed that if Rachel Brawner, working on the premises of the Gun Factory, had had access to classified information, she would at least, have gotten the limited hearing under the regulation which this Court invalidated in Greene v. McElroy.

    Yet, they say she is not entitled to even this limited hearing because she has no access to classified information.

    We think this turn — turns things upside down.

    A regulation which requires that an employee with access to classified information be given at least a limited hearing, cannot conceivably be read to authorize no hearing as to an employee with no access to classified information.

    We think the inference from the departmental regulation itself is that such employees are to be let alone and they are to be let alone for the very good reason that they have no access to classified information.

    And we are told, however, that throughout the history of this country, military commanders have done as they please with respect to civilian presence on governmental land and departmental usage is therefore, the basis for our departmental authority.

    The most I get from the showing is that military personnel have told each other so often that they can do as they please with respect to civilian presence on governmental land that they have to come to believe it must be so.

    But even what they show does not in the least relate to security clearance and as the denial of a job on that basis and it could not, because security clearance and the denial of a job on that basis is a relatively recent invention.

    There is no history to appeal to with respect to that question.

    But interestingly enough, respondents’ own showing indicates that an insurance salesman who solicits business on a military post cannot be excluded from that post without being given an opportunity to be heard.

    An insurance company cannot have its representatives excluded from the post on the basis of misconduct of the representatives without giving the insurance company an opportunity to explain.

    Well, if insurance salesmen have an opportunity to be heard and insurance companies an opportunity to explain, I can hardly imagine the existence of departmental authority by which private employees may lose their jobs and be stigmatized their security risks without any hearing at all and with no chance to explain.

    Potter Stewart:

    What are these insurance companies, insurance salesmen examples?

    Are those decided cases or —

    Bernard Dunau:

    Those are under the regulations, Your Honor.

    Potter Stewart:

    Cited, you say, by the Government?

    Bernard Dunau:

    I beg your pardon, sir.

    Potter Stewart:

    Relied upon by the Government (Voice Overlap) —

    Bernard Dunau:

    Relied upon by the Government.

    I did not know of their existence until I read the Government’s brief and gather that —

    William J. Brennan, Jr.:

    You mean these are formal regulations?

    Bernard Dunau:

    These are formal Army regulations, Your Honor.

    Yes, sir.

    Potter Stewart:

    Do you remember off-hand where they appear in the Government’s brief?

    Bernard Dunau:

    Yes, sir.

    They — they appear at page 53, note 32 of the Government’s brief.

    Actually —

    William O. Douglas:

    Are these — these enforced at the time of this discharge?

    Bernard Dunau:

    I do not know whether these particular regulations were enforced at the time of the discharge.

    Well, maybe I do know.

    The — no, sir, I do not know.

    Actually, the existence of departmental authority —

    John M. Harlan II:

    Very comparable regulations to this if there may to —

    Bernard Dunau:

    Not that I know about, Your Honor.

    There are maybe but — I do not know.

    John M. Harlan II:

    You said no application as such to enable installation.

    Bernard Dunau:

    No, this would be applicable only to Army installations, but the case here obviously is not confined to what naval commanders can do but — and something different from what Army commanders can do.

    Actually, the existence of departmental authority in this case, is almost a side issue.

    Because even if they were departmental authority, it would make no difference in the absence of explicit authorization for that action either from the President or from Congress, this is what this Court said in Greene v. McElroy.”

    No presidential authority is claimed or exists on the contrary.”

    Since this Court’s decision in Greene v. McElroy in February of this year, an executive order was promulgated authorizing the establishment of a security program.

    And under that executive order, a limited hearing is afforded to employees including a limited opportunity for cross-examination.

    Now, we can hardly believe that when the President authorizes or requires a limited hearing and a limited opportunity for cross-examination on behalf of employees whose — who do have access to classified information, then he could possibly be have — have said to have authorized no hearing at all, with respect of an employee who has no access to classified information.

    There’s, of course, no congressional authority.

    The most that respondent showed by way of statutory authority is that when military establishments have been authorized to run a military establishment and they have been authorized to promulgate regulations to run that establishment.

    This much and much more that is present in Greene v. McElroy, it didn’t suffice there and it cannot suffice here.

    Bernard Dunau:

    Let’s go to the question that this case is different because Greene was an aeronautical engineer and Rachel Brawner is a cook.

    Greene could not work as an aeronautical engineer.

    Rachel Brawner can work as a cook here and everywhere.

    45 years ago, in Truax v. Raich, this Court protected the job of a man called Mike Raich who worked as a cook in a restaurant in Arizona.

    Of his employment as a cook in a restaurant in Arizona, this Court said, “It needs no argument that the work in the common occupations of the community is of the essence of personal freedom and opportunity.”

    And it also said that though Mike Raich’s employment was at the will — at will, it was at the will of his employer, not at the will of somebody else.

    Rachel Brawner is in a fortiori position.

    Her employment is not an employment at will.

    Her employment was safeguarded by collective bargaining agreement which said, “She shall not be suspended or discharged without good and sufficient cause.”

    Felix Frankfurter:

    It is correctly right really has something to do with this case?

    Bernard Dunau:

    To the extent that the Government claims and it seems to me this is what it injures this whole case on that her job — the protection of her job, was not an interest which would bring into play due process or the right to be free from unauthorized action, I think (Voice Overlap) —

    Felix Frankfurter:

    But it does so because of the special nature, the claimed nature of a — of a service post to actually right to involve the constitutionality of the statute —

    Bernard Dunau:

    Yes, sir.

    Felix Frankfurter:

    — as against the federal overriding authority.

    Bernard Dunau:

    Yes, sir.

    Felix Frankfurter:

    Well, I’m only surprised when people resort to —

    Bernard Dunau:

    I do not seem —

    Felix Frankfurter:

    — a case like that and the case like this.

    Bernard Dunau:

    If we are talking about a protectable right and injury, the job is the protected right, the job has been injured.

    If we talk about the question that this job was located on federal land, we are no longer talking about whether there is an interest you can protect, we are talking about whether the Government has justification for invading that interest, which seems to me to be a different question.

    And on the question of the interest, it seems to me that Truax v. Raich is pertinent.

    Potter Stewart:

    You understand the Government’s distinction with respect to the — to the jobs, to the occupations followed by Mr. Greene on the one hand and the petitioner here to — to be — to be saying from the Government’s point of view that here, there was no property and no liberty and the petitioner could’ve been deprived out under the —

    Bernard Dunau:

    That seems to me, when they start talking about —

    Potter Stewart:

    Do you think that what they’re saying?

    Bernard Dunau:

    That’s exactly what they’re saying.

    I cannot read it anymore plainly than that.

    They say when they begin their constitutional argument on page 57, the interest of a private person in having access to a military base in order to be able to work there for a private employer is not liberty or property entitled to procedural due process protections.

    So, I — I take it that they have to agree that what William Greene had was liberty or property, otherwise, this Court would never had a grave constitutional question to avoid, but what was liberty or property to William Greene, is not liberty or property to Rachel Brawner.

    And that has to come down to a distinction that Rachel Brawner was a cook and William Greene was an engineer and perhaps an additional distinction that Rachel Brawner worked on governmental property, William Greene worked on private property.

    Potter Stewart:

    Well, that is —

    Bernard Dunau:

    (Voice Overlap) — questions which I’d like to get to.

    Potter Stewart:

    The additional distinction goes to a different points that —

    Bernard Dunau:

    Yes.

    It seems to me to go to an entirely different point.

    Potter Stewart:

    Yes.

    Bernard Dunau:

    — Yes, Your Honor.

    Felix Frankfurter:

    That’s what I think, most talk about due process argued deep an open door, namely, whether there’re some human interests involved.

    You’ve to go on and say, “Is it — is it depravation of due process.”

    And that’s why I — myself, Truax in right, has nothing to do with this case.

    But what else you can — a man can come in and — in from the street and say, “I think that Arizona statute,” if it was Arizona, was it —

    Bernard Dunau:

    Yes, sir.

    It was.

    Felix Frankfurter:

    That Arizona statute offends the national interest of immigration, etcetera.

    He can’t do that, he’s got to have some — he’s got to have a lawsuit and nobody questions that a fellow on can’t — isn’t allowed to work — isn’t allowed to work.

    The question is whether there are some justifications and all that Chief Justice Hughes, if it was Hughes, who wrote that opinion, said it’s just to tell the facts.

    But the real question was whether you can justify it.

    And so here, if a person is deprived of any kind of a job, whether of the Justice of the Supreme Court or a lawyer or cook is deprived of something.

    But the question is, is she deprived of it, without due process of the law?

    Bernard Dunau:

    I quite agree with your analysis, Your — Your Honor.

    It’s respondents who disagree with it.

    I —

    Felix Frankfurter:

    But you’re talking —

    Bernard Dunau:

    — agree that there was light, that there was liberty or property taken.

    Respondents cannot agree to that because they cannot for a minute, claim that it was taken with due process of law.

    Felix Frankfurter:

    But that’s what they do say.

    They — they —

    Bernard Dunau:

    No, sir.

    They didn’t —

    Felix Frankfurter:

    — become a military reservation, it’s a different thing.

    Bernard Dunau:

    No, sir.

    Bernard Dunau:

    They do not say that.

    Felix Frankfurter:

    Alright, we’ll let —

    Bernard Dunau:

    They spend (Voice Overlap) 30 pages of their brief not saying that.

    Felix Frankfurter:

    Let me not take your time, Mr. Dunau —

    Bernard Dunau:

    Very well.

    Felix Frankfurter:

    — we’ll listen to Mr. Davis and he’ll tell us what it says.

    Bernard Dunau:

    Well, I’ll try to read that brief very clearly because I could hardly contain my amazement when I read it.

    Felix Frankfurter:

    That was a good thing for both lawyers and judges to contain that (Inaudible).

    Bernard Dunau:

    Even if — even if in this case, all that Rachel Brawner had lost towards this particular job at that cafeteria which she had held for six and one-half years, it would be injury enough.

    This much at least, this Court decided in Peters against Hobby.

    Dr. Peters worked for the Government for four to six day — 4 to 10 days a year on a per diem basis.

    He was a fulltime professor of medicine at the Yale University Medical School.

    His four to six days was enough of an interest for him to protest his debarment from federal employment on loyalty grounds.

    If his four to six days employment in an annual period is enough, we can hardly imagine why a cook’s employment for one year, is not enough.

    Actually, if Rachel Brawner has the next day gotten an entirely comparable job, she would still have suffered a permanent injury, economic injury.

    Because however comparable that other job may be, she must start at it with zero seniority.

    She must give up six and one-half years of seniority and not withstanding all the limitations on judicial notice.

    I think in the year 1961, one can recognize that six and one-half years of seniority is a valuable economic benefit.

    But she — her loss even in economic terms was not confined to the loss of that shop or its purposes.

    Her opportunity for employment was generally impaired.

    This Union represents 2600 employees in the District of Columbia.

    2000 of them worked in governmental cafeterias.

    Those 2000 jobs are closed to Rachel Brawner.

    She cannot work as a short-order cook in any cafeteria located in any governmental building.

    Let me read what the business agent said about that.

    An employee, I read from page 91 of our brief, who may be discharged as a security risk has not a ghost of a chance of getting a job in a government cafeteria and it is very difficult to obtain employment for any employee who has that tag on them in any cafeteria.

    If the actual extent of the injury were material, a trial would show that Rachel Brawner in the last four years has been able to work only half of the full time available to her.

    In the six and one-half years preceding that, she worked fulltime.

    Now, an injury which results in depriving an employee of half of the income he would otherwise have gotten seems to me to be injury enough.

    John M. Harlan II:

    Could I ask you a question?

    Bernard Dunau:

    Yes, sir.

    John M. Harlan II:

    Do the — did the Government publicized the withdrawal of her badge or —

    Bernard Dunau:

    No, sir.

    It did not.

    John M. Harlan II:

    No public statement issued?

    Bernard Dunau:

    No, sir.

    No public statement issued.

    The — they make an — an argument based on it, but to say, if only she had kept her mouth shut, no one would’ve known that she was deprived of this — that she has been discharged as a security risk.

    And they say, “The only reason that was ever published or publicized is that she sought to protect her interests.”

    And so presumably, we should not have began a lawsuit in order to protect her interest because, by that means, the community would not have known that she had been discharged as a security risk.

    We think it’s fair to say that the jobs which circuit judges think are — are available here and everywhere for short-order cooks, are somewhat more difficult for business agents of unions to find.

    And the tag on the employee that she was a security risk is itself, an injury.

    The community does not distinguish between loyalty and security.

    If an employee has that talk — tag on him, he has been hurt and that’s annoying wrong.

    We’re told two things, however, on the question of injury.

    We’re told, “Well, the employer, after he discharged her, offered her employment at another place he operated in Virginia.”

    What difference does that make?

    Would this case be different if the employer had no other place that he was running?

    Would this case be different if though he had another place, he didn’t choose to give her employment there?

    And in any event, she didn’t take that other job, the record shows, because it was an unsatisfactory location.

    And if it were material, we could show conclusively that it has been satisfactory.

    To the extent that public transportation is even available to that job, it takes three hours to get to and from work.

    It takes a $1.60 in transportation fare to get to and from their job.

    If she were earning the same rate of pay at that new place that she had at the old place, she was getting a $1.18 an hour.

    We don’t think a satisfactory job is one which it takes three hours to get to and from and which takes 17% of your income.

    We have another curious distinction that is suggested.

    The same employer no longer operates the cafeterias as to what operated them at the time of her discharge.

    There is now a new concessionaire.

    This new concessionaire has agreed, has promised to put Rachel Brawner back to work with full seniority rights, but this doesn’t make any difference.

    She is still now in the position of trying to get a new job.

    Bernard Dunau:

    She’s not trying to protect her old job.

    Well, there’s nothing new about the job.

    His job is still the same old job.

    The only thing that’s new is the corporate employing entity.

    And even if it were true that even analytically, one could say she’s trying to get a new job, not retaining her old job, we, like the Ninth Circuit, think that although employment of which plaintiffs were deprived, was prospective only if their rights to earn a livelihood like that in Truax v. Raich was entitled to protection at the hands of a court of equity.

    We think that getting a job is as important as keeping a job.

    So we get to the last distinction.

    This was governmental land.

    William Greene worked on private property.

    On this premise, had William Greene worked as an aeronautical engineer of the premises of the Naval Gun Factory, he could’ve lost his job, his employment opportunities could’ve been destroyed, his reputation could’ve been besmirched not on the basis of a limited hearing, but with no hearing at all and why?

    Because he worked on governmental premises.

    I had not understood that just because the act takes place on governmental land, that a governmental officer may act without authority and I had not understood that the Constitution stops at the entrance to a naval installation.

    If the issue of governmental land were indeed relevant, that would have been the short answer to a long line of cases which state and federal governments have lost when public employees sought to regain their jobs which they had lost because of failure to meet so-called security requirements.

    The federal employees who lost their jobs because the governmental officers exceeded their authority could have been — could have been told, “You work on government — worked in governmental buildings, we can keep anybody out of a governmental building we choose.

    It doesn’t matter that the labor view has a security risk without any authority.”

    Potter Stewart:

    You think there’s a distinction between governmental buildings generally and military buildings in particular?

    Bernard Dunau:

    No, sir.

    Not in terms of the issue presented by this case, Your Honor.

    I think there maybe a distinction in this sense only.

    If it’s a military installation and if there are secrets available in that installation, I think the Government is entitled to set up a security program which provides persons with an adequate opportunity to defend.

    I think that may not be true where you have a governmental building in which there is no access to classified information.

    But I can conceive it to be relevant only in terms of protection of classified information, but I cannot conceive that whether it is a governmental building like the National Labor Relations Board occupies or the Naval Gun Factory that the military occupies that on the issue of authority to act in the first place or constitutional authority to act if we get to that, that the mere existence of a military land as distinguished from other land can make a difference.

    Potter Stewart:

    How about a ship or an aircraft of the United States Navy?

    Bernard Dunau:

    Again, the only — well, you don’t throw people overboard presumably if he’s (Voice Overlap) —

    Potter Stewart:

    You don’t throw overboard but you — can you tell him to get off?

    Bernard Dunau:

    Well, you can’t —

    Potter Stewart:

    (Voice Overlap) off.

    And the commanding officer, I’m talking about.

    Bernard Dunau:

    Let me make this clear at the beginning.

    The commanding officer can tell any civilian to get off a ship, to get off his property, to stay off.

    Bernard Dunau:

    What he cannot do and what was done here is to tell him that and not render the hearing on the question of the reason why he’s kept off.

    We do not deny the power of summary suspension so long as thereafter, the employee has an opportunity to have a hearing at which he can defend against the charges and if the charges are not substantiated to have a compensation for his lost time.

    What the Government wants is to recognize all the interest on is — on its side and no interest on the other, wants to subjugate the employees’ interest.

    I think that’s not permissible.

    Earl Warren:

    We’ll recess now.