LOCATION:Superior Court of Bibb County
DOCKET NO.: 42
DECIDED BY: Warren Court (1958-1962)
CITATION: 361 US 363 (1960)
ARGUED: Nov 19, 1959
DECIDED: Jan 25, 1960
Audio Transcription for Oral Argument – November 19, 1959 (Part 2) in Local No. 8-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO
Mr. Welborn, you may continue your argument.
Robert R. Welborn:
Mr. Chief Justice, please the Court.
I would just like to say in summary of the position of the State of Missouri in this case that this case, as I think must all preemption cases in this field, be determined on the basis of conflict between the Missouri law and the federal law.
Conflict is the touchstone of preemption.
So, we say, wherein does the conflict lie?
The appellant says that the conflict is clear based on the opinion of this Court in the Amalgamated case.
We say that the Amalgamated case does not control this case.
We say that the implications which were drawn from the statement of Senator Taft and which were the basis for the finding of conflict in the Amalgamated case between the Wisconsin statute and the federal statute do not apply.
We say further that Senator Taft’s statement and the implications derived therefrom should be extended no further than the Amalgamated case.
We say that we have, in the instance of a Missouri statute, a statute designed to protect the public health and the public welfare of the citizens of the State of Missouri in emergency situations.
We say that that is a distinguishing feature, a vitally distinguishing feature between the Missouri Act and the Wisconsin Act.
And I would point out to the Court that although as appellant says in this case, there was involved a strike of clerical workers, which the Chief Justice in the Amalgamated case referred to as evidencing not involving an emergency situation where the Wisconsin acted that applied to the strike of clerical workers, but this situation is entirely different, because along with the clerical workers on strike, were all of the operating workers and also the foreman obliquely.
And so, I say that no significance can be derived from the fact that the strike here also included the clerical workers.
We say that this is valid emergency legislation enacted by the State of Missouri pursuant to its inherent police power, that this Court does not invalidate such legislation in the absence of compelling direction from Congress, which we assert does not exist as it applies to this legislation.
And we assert that the appellants have pointed out no expressed conflict between the Missouri statute and the federal law.
And we assert that under the holdings of this Court extending the benefit to the States of the right to protect their citizens in emergency situations.
That the State of Missouri may in this — in the situation here exercise that emergency power even though the power is evoked to the necessity for the — for the exercise of the power arises in a labor dispute.
In the Kohler Company case Mr. Justice Reed said, “The States are the natural guardians of the public against violence.
It is the local communities that suffer most from the fear and loss occasioned by coercion and destruction.
We would not interpret an Act of Congress to leave them powerless to avert such emergency without compelling direction to that effect.”
We say that there is no compelling direction to be found in any act of Congress that leaves the State of Missouri powerless to act in these circumstances.
And we assert that this legislation is valid.
Mozart G. Ratner:
It has been suggested that under the Missouri law, that the Governor may return the facility which he has seized to the private company when the emergency, which led him to seize the utility, has ceased to exist.
The statute negatives such an interpretation.
It provides that once the Governor has seized a plant or utility, and I’m quoting from paragraph 2 of Section 295180 which appears at the bottom of page 45 of our brief, the last three lines thereof, “shall be returned to the owners thereof as soon as practicable after the settlement of said labor dispute and it shall thereupon be the duty of the utility to continue the operation of the plant, facility or equipment in accordance with its franchise of certificate and certificate of public convenience and necessity.”
Hugo L. Black:
When was it returned here?
Mozart G. Ratner:
It was returned after the labor dispute was settled.
Now appellees said that if Missouri — I mean, if Wisconsin applied its statute to this set of facts, that would be unconstitutional, because Wisconsin statute is a compulsory arbitration statute and that’s all that this Court dealt with in the Amalgamated case.
Mozart G. Ratner:
May I point out Your Honors that the Missouri statute has an infinitely worse impact upon collective bargaining than does the Wisconsin Act.
At least, Wisconsin substituted some form of impartial determination by third parties for its destruction of the right to collective bargaining and strikes.
Missouri substitutes unilateral determination by the employer of what the terms of conditions of employment shall be and compels the employees to work endlessly and without limit on the employer’s terms until they yield to whatever collective bargaining contract he’s willing to offer.
This, it seems to me, is an infinitely great invasion of the right of collective bargaining and far more antisceptical with it than — then compulsory arbitration which arguably, at least in that case, was suggested to be not incompatible with collective bargaining.
In Bus Employees case, Amalgamated, this Court took cognizance of the fact that Congress had considered and rejected proposals to outlaw strikes in public utilities because those were the places that strikes affected the public interest worst.
The Wisconsin statute declared in its policy that any strike in a public utility, which interrupts public service, and both of these statutes alike dealt with no strikes except those which did interrupt public service, created emergencies which were harmful to the public health and safety.
The statutes were indistinguishable on that strike.
And in their application, at least as far as the United Gas case is concerned, they’re indistinguishable in the conditions that were created by the strike.
Unless you are to attribute to this strike, the acts of unidentified third parties.
And those were not — and according to this record, not shown to be attributed to the strike here.
They are not shown on this record to have had played any part whatever in the Governor’s determination to seize.
The first we hear of him is in the testimony of Mr. Burgess, the Vice President in charge of personnel.
In the record in this case, no such statement comes out of Rogers who was a witness in this case and who was the one who conducted the investigation on behalf of the Governor.
So, that there is no distinction, and Amalgamated controls this case unless we are to say that this Court’s judgment in United Gas, which set aside the contempt to conviction for refusal to obey an emergency injunction predicated on the State’s power to protect the health of the citizens of the State of Wisconsin against the threat to their health and safety, unless we are to say that this Court’s action in setting aside that contempt to conviction is not a judgment of this Court, it’s to be disregarded, because this Court didn’t quote the findings of the Supreme Court of Wisconsin to which I have referred.