United Steelworkers of America v. United States – Oral Argument – November 03, 1959 (Part 1)

Media for United Steelworkers of America v. United States

Audio Transcription for Oral Argument – November 03, 1959 (Part 2) in United Steelworkers of America v. United States

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Earl Warren:

Number 504 United Steelworkers of America, Petitioner, versus the United States, et al.

Counsels, may I — may I say to you that because of the cooperation which the counsels of both parties has been shown throughout the proceedings and travelled through the lower courts to this Court, we feel that there would be no need of putting the time limits to the arguments (Inaudible)

Arthur J. Goldberg:

Mr. Chief Justice may it please the Court.

I have the honor to represent the petitioner, the United Steelworkers of America in this proceeding.

This Court has granted certiorari from the judgment of the Court of Appeals of the Second Circuit affirming the injunction order issued by the District Judge for the Western District of Pennsylvania, Judge Sorg.

In order to understand the issues, statutory, equitable, and constitutional involved, it is necessary that I give some of the background facts.

United Steelworkers of America, the petitioner, is a labor organization representing approximately 1,250,000 workers engaged in the steel and fabricating industries.

There are involved in the strike which will be the subject to the Court’s attention, more than 500,000 members of the union, the employees of the defendant company.

It is important for me to call your attention to the fact that the Steelworkers Union has separate agreements with the companies which are likewise parties-defendant to this lawsuit.

Originally, there were 97 companies.

One of the companies was dismissed by agreement in the District Court and one of the companies, the Kaiser Steel Corporation was dismissed by stipulation in the Court of Appeals, following a settlement of the dispute with the union which took place after the case was decided in the District Court.

It is also necessary for me to point out because I shall advert to it later, that the union is separately certified as the bargaining agent with respect to each of these companies.

And in fact in many of these companies, they’re certified not on a company basis but even on a plant basis.

The contracts with the companies, who are at bar, the collective agreements expired by and large with few exceptions on June 30th, 1959.

At the request of President Eisenhower, an extension of these agreements was made for a period of 14 days.

And following the expiration of the extension agreements with the defendant companies, strikes occurred, and I emphasize strikes not a strike, strikes occurred at the different plants and companies.

The record shows without contradiction and it is uncontroverted that the strikes which occurred resulted in a shutdown of 310 steel plants, of a 118 iron ore companies and of shipping and other transportation facilities connected with the basic steel industry.

Now, these companies who are at bar, originally, before the Kaiser settlement produced 84 and 6/10th percent of the total steel capacity of the United States.

I might point out to you and it appears in the record that the present steel capacity of the United States is 140,633,000 odd tons of steel.

These are ingot tons.

In the steel making process approximately 20% to 30% of ingot tons is lost in the finishing process of finished steel.

This is not completely lost because with the great technological development in steel, this steel which is lost is reduced to scrap.

It is called the internal scrap in the steel industry, it goes back into the furnaces and again constitutes part of the essential process of making steel.

It is likewise important to note that at the time this lawsuit was filed an excess of 15%, 15.36% to be exact, of the total capacity of the steel industry embracing some 63 companies were not struck.

The majority of these operated under agreements with the Steelworkers Union expiring on different dates.

Some of them had the extension agreements, and a few of these companies were not organized or represented by the Steelworkers Union.

Now, these companies are not insubstantial in character.

They have a total capacity of 20 — 22,683,480 tons.

And these figures become relevant in connection with a discussion of the evidence a little later in the course of my argument.

Now, as I mentioned earlier, following the commencement to these proceedings, the Kaiser Steel Corporation settled with the union.

Arthur J. Goldberg:

This company, one of the 12 largest companies in the steel industry, has a capacity of about 2% of the total steel production of the United States or approximately 3 million tons.

So there has been added to the present capacity not on strike.

These 3 million tons that we may then in round numbers assert that the companies not on strike produce and are capable of producing approximately 25 million tons of steel.

It is also relevant to note that the production before the strike from January 1st to July 14th on the part of the companies, they were all not on strike at that time, was an extraordinary production.

None in the companies produced in anticipation of the strike.

In any event, for the first nine months of this year, the record shows that the total steel production of the United States amounted to 72,479,609 tons, and this of course is supplemented by imports of steel into the United States which would be an addition to this amount.

There are three months yet unaccounted for in our summary of steel production, and even if the strike were to go on, and we hope and pray it won’t, for the balance of the three months, it is interesting to note that the total production for the year 1959 will be very close to equal the entire non-strike year of 1958 for the whole industry, which amounted to 85,254,885 tons.

Later I shall be —

William J. Brennan, Jr.:

What is the relevance of this Mr. Goldberg?

Arthur J. Goldberg:

This relates to the question of whether or not we have sufficient steel to meet the health and safety requirements of the United States.

Felix Frankfurter:

Did you say last year 85 million —

Arthur J. Goldberg:

254,000 tons.

Felix Frankfurter:

The figures for this year?

Arthur J. Goldberg:

For this year, so far for nine months —

Felix Frankfurter:

Yes.

Arthur J. Goldberg:

Nine months — we don’t have the whole year — 72,479,000 tons.

Felix Frankfurter:

So that an earlier figure that you gave, probably a 100 million tons —

Arthur J. Goldberg:

The total steel making capacity of the United States.

Last year was a recession year.

The steel industry did not produce to its capacity.

Felix Frankfurter:

Well, then there’s an increase for the technological reforms or in movements thereby — more is produced with the same process thereby?

Arthur J. Goldberg:

Oh yes.

Yes, there has been —

Felix Frankfurter:

For the considerable percentage?

Arthur J. Goldberg:

Pardon, I didn’t hear you.

Felix Frankfurter:

For a considerable percentage?

Arthur J. Goldberg:

Yes.

This has been growing rapidly year by year.

So that the steel capacity of the United States is — is — the increase is due to two factors, new investment and new plant and modernization and technological improvement of existing plant.

Felix Frankfurter:

Does this 85 million — this 85 million, out of the 85 million attributable to advance in technology and plant extension.

Arthur J. Goldberg:

And the old facilities too, three categories at the interim.

Felix Frankfurter:

Those two — those two have added and gives to a higher company despite the strike period — strike’s period if you will have it.

Arthur J. Goldberg:

They are a substantial factor in this.

Now, as I mentioned earlier, the strike of the union, the strikes against these various companies, continued — started July 14th, continued through the months of July, August, and September and they still continue except in this lawsuit as to Kaiser which settled.

Finally, on October 9, 1959, the President invoked the procedures under the Labor Management Relations Act of 1947 which we popularly called the Taft-Hartley Act and he invoked the sections of the law which we commonly referred to and is referred to in the statute by title as the national emergency sections of that Act.

I shall have frequent occasions to refer to that statute.

It is set forth in full text in page 94 of Government’s first brief.

Could I ask you a question?

As to the 15% of the industry that is not struck, does the record show anything as to the likelihood one way or the other that there would be — the strike spreading to those — that 15% within a foreseeable period of time?

Arthur J. Goldberg:

The record shows they are operating under extension agreements with the union and most — I don’t think the record shows this, but I can tell Your Honor that most of these extension agreements provide that they’re extended until there is a settlement in the basic steel industry.

And some of them of course do not expire at all during this period.

The President on October 9, 1959, invoked the procedures specified in the statute and then I will not take time now to advert to those procedures, because I want to later make an analysis and full argumentation on those procedures, but for the purpose of chronology, for the setting of this case I would like to go on and give you the time sequence.

Under that statute, the President issued an executive order, 10843, which is set forth on page 9 of the record of this case.

In that executive order, the President expressed the opinion, I emphasize opinion, because the President was complying with the statute, he did not make a finding, an opinion that the strike if permitted to continue will imperil the national health or safety — and safety.

And thereupon, he appointed a Board of Inquiry to inquire into the facts of the dispute.

The Board of Inquiry as Your Honors well know was headed by Dr. George Taylor of the University of Pennsylvania.

In connection with the appointment of the Board of Inquiry, the President also made a statement which is set forth on page 10 of the record, and in that statement the President said, and this is relevant to an argument which I shall make later.

You’ll find in the third paragraph of the statement of the President, in the last sentence.

“If production is not quickly resumed, severe effects upon the economy will endanger the economic health of the nation.”

I underline for this purpose the word “economic health of the nation” because I shall challenge this later as going to one of the essential aspects of this case.

The Board of Inquiry —

Felix Frankfurter:

In his first paragraph, he says, (Inaudible)

Arthur J. Goldberg:

Yes he did.

But then he went on and he talked about economic and later I shall go back to safety but economic health was the term he used to describe his conception of health.

The Board of Inquiry was directed to report, it was appointed on October 9th.

It was directed to report on or before October 16.

However, the Board felt they’d needed more time, requested the President for an extension, and by another executive order which is found on page 11 of the record, the President extended the time until October 19.

The Board held hearings for several days, October 12th, 13th, 14th, 15th and also on the 18th and on the 19th, the Board reported to the President and the report is set forth in the record before you.

Now, under the procedures of the statute, the Board of Inquiry is mandated to find, in effect, to make a finding on the facts and to state the positions of the parties, but is not authorized to make any recommendations.

On the same day that the Board of Inquiry handed down its report to the President, the President directed the Attorney General to bring this injunction action and his direction to the Attorney General is contained in a letter which is set forth on page 8 of the record.

Arthur J. Goldberg:

And hereto, I wish to point out to you that in this letter in the third paragraph, again the President makes no finding of fact as we — we lawyers understand the term, but expresses his opinion.

“In my opinion, this unresolved labor dispute has resulted in a strike” and I skip, “which strike will, if permitted to continue, imperil the national health and safety.”

Here he uses the exact language of the statute.

Felix Frankfurter:

It was in feeling with the forecast to imperil, look to the future must end up in giving enhancement of fact.

Arthur J. Goldberg:

That it looks to the future but there’s a sense of immediacy about the term imperil.

It is not as my distinguished friend, the Solicitor General suggests, a word like “affect”.

The word “imperil” has peril in it.

Felix Frankfurter:

Yes.

But it is an opinion, that it isn’t upon you to make the forecast.

Arthur J. Goldberg:

It’s an opinion of a forecast.

It is not a finding however, based upon hearing, as when I said, as we lawyers understand.

Felix Frankfurter:

Not findings, but it is in a fashion in the sense of something that can be objective and deserved.

Arthur J. Goldberg:

It’s a forecast as to the future, a prophecy.

William J. Brennan, Jr.:

Mr. Goldberg, you said the President used the exact words of the statute?

Arthur J. Goldberg:

No not the exact but I meant in terms of national heath and safety —

William J. Brennan, Jr.:

Well, if that would —

Arthur J. Goldberg:

— health and of safety.

William J. Brennan, Jr.:

Well, that — the statute has imperiled the national health or safety.

Arthur J. Goldberg:

Right.

Yes.

In the — you’re correct Mr. Justice Brennan I stand corrected.

And here’s we have an opinion that it does both here and if that is — that is correct.

Charles E. Whittaker:

And in view of the fact that the President could not make a finding in this matter as distinguished from the opinions and the question anyway with the statute.

Arthur J. Goldberg:

No it does not.

The President was scrupulously following the statute.

Charles E. Whittaker:

Yes.

Arthur J. Goldberg:

I do not quarrel that the President did not follow the statute.

To follow — the President was scrupulously following the language of the statute.

The — as I said the — that the direct to the Attorney General was directed to him on October 19th and the following day, the Government filed its petition for injunctive relief in the District Court in Pennsylvania in the Western District against the union.

And the — at that time as I’ve said the 97 companies I should point out to you and I want to say that the Government courteously communicated with the union, its counsel, the person of myself, and with counsel for the industry gave us notice that it was going to make this application and in fact on the day before the hearing commenced, we exchanged pleadings, they gave me a copy of the petition so that I was able to file an answer.

Arthur J. Goldberg:

We exchanged affidavits which I shall talk about in a moment and we executed a stipulation about which I shall also advert in a few minutes.

The District Court action in Pennsylvania was commenced on October the 20th and it was tried before the District Court on the afternoon of October 20.

When I say tried, I emphasize tried.

We stipulated that the cause should be heard on final hearing on the pleadings, the petition, and the answer that I filed, the defendant-companies waived the filing of an answer and find the affidavits.

So that the case would be in the posture once the District Court decided it, of entering a final order.

As final an order as you can enter under the Taft-Hartley injunction procedure.

The case was submitted, the transcript shows the afternoon of that day, the — we — we submitted our affidavits to the District Judge and my friend, the Assistant Attorney General, Mr. Doub (ph) and I argued the case before the District Judge.

We have both prepared trial memoranda, and these were made available to the District Judge.

The companies confined themselves to a brief statement that they do not feel it appropriate to discuss the merits but that they would want to be heard on the terms of the injunction order and that was their participation in the trial of the case that took place.

The District Judge late, early evening actually of October the 20th took the case under advisement.

The next morning he asked counsel to — this all appears in the record and the transcript was made of the part at least of the chamber proceeding not all unfortunately, but part of it.

And when I say unfortunate, it was not due it any — of any lack of concern of the District Judge.

And as soon as when he started to talk about the findings and he realized we were making objections, he courteously said he thought that there ought to be a record and he invited the court reporter in to make a record.

And as the record shows, there, most of the discussions report the District Judge on the findings is included in the record.

The — morning the District Judge called counsel into chambers and right off, indicated that he has decided that the Government had made a case and he would issue the injunction.

Tom C. Clark:

That was on October 21st, the next morning?

Arthur J. Goldberg:

That was the — October 21st.

We concluded on the afternoon of October 20th.

October 21st, the Judge entered into this chamber discussion with counsel and later that afternoon entered the injunction order.

The Government tendered findings of fact and conclusions of law, and on behalf of the union, I tendered findings of fact and conclusions of law.

We also filed objections to the Government’s proposed points which are stated in the record.

The findings of the District Court the — the — I might say that the District Judge sustained some of the objections which we filed.

And the Government consented to deletion of some language in the findings as going beyond the affidavits that they filed or as not being sustained by the affidavits that they filed.

The findings of the District Judge are to be found commencing on page 244 of the record and the injunction is to be found at page 249 of the record.

I’m going to discuss those findings later in some specific detail.

Here again, I mention this for chronological purposes.

In substance, the District Judge found that the strike affects, strikes that are against this company, affects the steel — affect the steel industry or a substantial part thereof, and if permitted to continue, will imperil the national health and safety.

The judge issued no opinion.

That afternoon, he appeared on the bench, he announced that he felt that the Government had made a case and he was going to enter the injunction order and signed the findings of fact and conclusions of law which had been tendered by the Government with the amendments and deletions that have been developed in our discussion in chambers.

On the same — on the same afternoon, following this, the District Judge permitted a short stay of the injunction order to enable me to present my application for a further stay to the United States Court of Appeals for the Third Circuit.

Arthur J. Goldberg:

It so happened that Judge Staley, a — a member of that court was in Pittsburgh his home.

The Judge — the Solicitor Judge communicated with Judge Staley.

He told us he had and Judge Staley was kind enough to advise the District Judge and the District Judge advised us that he would appear promptly after the District Judge had disposed of the matter for the purpose of hearing my application for a stay.

Judge Staley within, I would say 35 or 40 minutes after the District Judge had issued the order and the — what maybe called short stay, appeared in open court and I presented to him the application of the union for a stay, pending the filing of an appeal to the Court of Appeals.

Judge Staley at that time asked whether the Government and ourselves were prepared to proceed next morning to Philadelphia to present an application to the full — to a panel of the full court.

And also said that he, after his conversation with Judge Sorg, that’s been in communication with Chief Judge Biggs, and that a panel of that court would be available in Philadelphia at 10 o’clock the next morning.

After argument on the application for restraint, the Government opposed.

Judge Staley entered an order staying the order of the District Judge, the injunction order, until we have an opportunity to appear 10 o’clock the next morning before the panel of the Court of Appeals.

We comforted ourselves to this order and we appeared, and this now is Thursday, October 22nd.

We there appeared the next morning in Philadelphia before a panel of the Court of Appeals consisting of Chief Judge Biggs, Judge Goodrich, and Judge Hastie.

We presented at that time as we were required to do under Judge Staley’s order if they wanted to stay to continue an effect, an application for a further stay and a motion for expedited procedure in the Court of Appeals.

The Court of Appeals then asked us and counsel for the Government whether we would agree to submit the case on its merits to the Court of Appeals that morning.

On the memorandum — memoranda filed in the District Court and oral arguments.

We —

This is still the 22nd?

Arthur J. Goldberg:

22nd.

This is 10 o’clock in the morning, the 22nd.

We agreed, we agreed.

And the Government, after consultation with the Attorney General likewise agreed.

Then we proceeded to a hearing before the Court of Appeals an argument, a final hearing on the merits there.

We argued the case orally, and in the course of the argument, a question of the stay, Judge Hastie inquired as to whether the stay should continue on paragraph five of the injunction order.

This was a paragraph of the injunction order following the statute, which requires the parties to bargain with each other during the continuation of the injunction.

We said that we regarded it to be our obligation and we arranged this to continue the bargain.

We have no objection to that part of the order remaining in effect.

And so the stay of the Court of Appeals, which was then granted the full — the full panel, pending their disposition of the case exempted from the stay order that paragraph five of the injunction which required the parties to bargain.

And in fact bargaining took place by the Court of Appeals, unsuccessful bargaining I should add, took place in the Court of Appeals while the Court of Appeals was considering this matter.

We — we concluded our arguments.

The Court, as this Court did, put no limitation upon time of argument, gave us an ample opportunity to argue on the memorandum filed in the District Court.

We had no time to prepare at noon, and we didn’t ask for it.

And on the following Thursday, we now jump from October 22nd.

Arthur J. Goldberg:

On the following Thursday, October 27, the Court handed down its opinion.

On the following Tuesday, October 27, the Court handed down its opinion.

Opinion of the Court was a divided opinion — the opinion of the judges was a divided opinion.

Chief Justice Biggs delivered the opinion of the Court concurred in by Judge Goodrich.

My question at this point, is it the fairest thing to say that in this course of events that you’ve given, there was no objection by either side to the time on the stay?

Arthur J. Goldberg:

There was no objection, but later, Your Honor, I want to make some observations about it.

There’s no objection because of certain reasons peculiar to this type of procedure, which I would like to talk about later.

The — the Court divided.

The Court of Appeals of the Third Circuit has a procedure where they circulate their opinions by the panel among the entire court to determine whether or not a rehearing before and then was to be held.

The — simultaneously with the judgment of the Court of Appeals, an order of the Court was entered reporting that on this circulation for a rehearing requesting opinions as to rehearing, the Court had equally divided three and three.

Judge Kalodner had disqualified himself.

Three judges thought there ought to be a rehearing and three judges thought there ought not to be a rehearing.

Three judges who thought there ought to be a rehearing said that for the reasons stated by Judge Hastie in his dissent, they felt there ought to be a rehearing and the other three judges felt that for the reason stated by Chief Judge Biggs, there ought not to be.

Felix Frankfurter:

I don’t suppose one knows — and I’m not referring to this case.

I don’t suppose one knows, or does one know as to what the practice of the Third Circuit is as to the time within which the nonparticipating judges have for considering the opinion or opinions of the panel, does one?

Arthur J. Goldberg:

I do not know Your Honor.

Felix Frankfurter:

Anyone?

Potter Stewart:

(Inaudible) there was an argument some years ago as to the precise practice of the Third Circuit of Court of Appeals and en banc hearings and rehearings.

Arthur J. Goldberg:

I’m not aware of it.

Felix Frankfurter:

What I wanted to know is just — and that’s nothing to do with this case.

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

Whether one knows they’ve had — how long they’ve had the opinion before they decide whether or not they’ll vote for a rehearing.

Arthur J. Goldberg:

Well they — they could not have had it very long because between the argument date and the opinion date only five days intervene.

Felix Frankfurter:

I mean one has — one has to know then when the opinion of the panel was written or the opinion, wouldn’t one?

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

In order to answer my question, would one not?

Arthur J. Goldberg:

Yes.

I do not know.

Felix Frankfurter:

It’s a purely academic question.

Arthur J. Goldberg:

On Friday, this is — we now come to the 27th.

Arthur J. Goldberg:

On Friday, October 3rd, we filed our petition for certiorari in this Court and it was granted on the same day.

We argued today on Tuesday, November the 3rd.

This is exactly two weeks.

The case has proceeded on final hearing, two, three courts to, through two courts and now in the Supreme Court.

And Mr. Justice Harlan, you asked about an objection, whether I objected to this, and I will say at this point and later I want to explain the nature of my comments, not an objection, that while justice delayed is justice denied, I will raise the question later as to whether under the procedures specified in the statute and with no criticism of the courts below.

And in fact, commendation for their expedition, whether the procedure necessarily entailed in the statute is compatible with the judicial process.

And then I would like to comment on at a later stage of the argument.

And may it please the Courts, I now respectfully submit to this Court on this chronology of events which I shall amplify in particular points that the injunction order should be reversed for the following reasons.

One, findings of the District Court as to national health and safety were based on an erroneous reading of the statute, and even if that reading were accepted, which I don’t think should be done, were unsupported by the evidence in this case.

Two, the judgment of the below, judgment below, should be reversed even if the Government met the burden of proving that health and safety were imperiled, because on the equities of this case and the reasonable exercise of the equity, the injunction should have been denied.

And three, the 80-day injunction provisions of the statute are unconstitutional as they confer on the District Courts duties which are not judicial and are not connected with any case in controversy and are therefore outside the limits of Article III Section 2 of the Judiciary Clause of the Constitution.

William J. Brennan, Jr.:

Mr. Goldberg, suppose we imply (Inaudible), is it your position that the findings that are required by the statute must be that the national health and safety are imperiled?

Arthur J. Goldberg:

No.

William J. Brennan, Jr.:

That if either.

Arthur J. Goldberg:

Either one, either one.

But the Court here made findings on both.

William J. Brennan, Jr.:

Well does that important that in fact to either is could?

Arthur J. Goldberg:

I didn’t get that.

William J. Brennan, Jr.:

Even though the Court did make findings —

Arthur J. Goldberg:

Yes.

William J. Brennan, Jr.:

— as to both.

If there are proper findings as to either —

Arthur J. Goldberg:

Then we would —

William J. Brennan, Jr.:

— the statute operates.

Arthur J. Goldberg:

Then the judgment should be affirmed.

Now I do — I start first with the findings of the District Court as to national health and safety.

This statute is commonly known as the — as the national emergency provision of the Taft-Hartley Act.

And perhaps at this stage we have to look at the statute which is set forth in Appendix B, page 94 of the Government’s brief.

Statute starts off in Section 206 with the recital that “Whenever in the opinion about the President of the United States,” and I shall not read all the words, but the pertinent words, “a threatened or actual strike or lock-out affecting an entire industry or substantial part thereof engaged in trade, commerce, transportation, transmission or communication among the several States or with foreign nations or engaged in the production of goods for commerce will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire to the issues involved in the dispute.”

I emphasize here the keywords “a strike or lock-out affecting an entire industry or a substantial part thereof will, if permitted to occur or to continue, imperil the national health or safety.”

Arthur J. Goldberg:

And I emphasize also the following word “he may appoint a board of inquiry”.

This is a discretionary, of course, with the President.

Section 207 deals with the composition of the board of inquiry.

And it is not pertinent here, and except as I shall later point out that the Board of Inquiry made no finding on the national emergency issue and I, myself, think this is a proper reading of the statute that it shall not, although many boards of inquiry had.

That Dr. Taylor, when he convened this board of inquiry, made a statement that he does not regard this to be disfunction, because he says that his function is to ascertain the facts with respect to the causes and circumstances of the dispute.

And he — we have a dispute with the steel industry and various companies and he did not regard that to be pertinent.

I shall later tell you that I offered some evidence for the purpose of advising the President and the Government long in advance of this hearing order, long in advance as this — this hasty schedule permitted.

Now if this point was going to be raised —

Felix Frankfurter:

You mean offered evidence before the Board?

Arthur J. Goldberg:

Board.

Felix Frankfurter:

Same board.

Arthur J. Goldberg:

And that Dr. Taylor said it was not pertinent, he would take it and transmit it to the President.

The key section, the Section 208, “Upon receiving a report from the board of inquiry, President may direct the Attorney General”, again, we have may, to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or a lock-out for the continuing thereof, and if the court finds”, that’s the keyword here.

Before we have had the statement, “if the President is of the opinion”, but now it changes.

Now, “if the court finds that the threatened or actual strike or lock-out affects an entire industry or substantial part thereof and, if permitted to occur or to continue, will imperil the national health or safety”, then there are some keywords.

“It shall have jurisdiction to enjoin any such strike, any such strike or lock-out, or the continuing thereof,” and I emphasize the word “any”, “and to make such other orders as may be appropriate.”

Then the next section is also important.

There is a pro tanto repealing of the Norris-La Guardia Act.

In case the provisions of the Act — in any case the provisions of the Act from March 23, 1932 entitled, etcetera, shall not be applicable.

Then we go on because this triggers an administrative procedure, but if you’ll go on to — there’s a review provision, Section 209.

When the District Court issues the order, then it’s the duty of the parties to make every effort to adjust and settle their differences.

That it was this part of the injunction order which after suggestion of Judge Hastie was not stated.

Then there’s another procedure.

Upon the issuance of such order, the President shall reconvene the board of inquiry which has previously reported with respect to the dispute.

And it’s interesting to note that in this particular dispute, it has apparently been the opinion of the Government that that board of inquiry cannot be convened until triggered by the injunction.

And Dr. Taylor and his colleagues have not been called back into session.

We have been reading here the last few days under the auspices of the mediation service.

At the end of a 60-day period, unless the dispute has been settled by that time, the board of inquiry shall report to the President the current position of the parties, offers which have been made for settlement, and shall include a statement by each party of its position, and statement, if there’s something new of the employers’ last offer of settlement.

The President shall make such report available to the public.

Now we have something new injected.

Arthur J. Goldberg:

There we have the National Labor Relations Board within the succeeding 15 days shall take a secret ballot of the employees of each employer.

So in this great dispute a ballot would have to be taken separately for each company on the question of whether they wish to accept the final offer of settlement made by their employer as stated by him and shall certify the results with the Attorney General within eight days thereafter.

Now you, — with five days thereafter.

Now you notice that if the strike is settled beforehand, this procedure does not follow.

And we will later see that in the next section, the Attorney General must discharge an injunction as, in effect, he did at the Kaiser Steel Corporation when a settlement was reached.

Then the following, on the final paragraph, upon certification of the results of such ballot or upon a settlement being reached, whichever happen sooner, the Attorney General shall move the Court, here we come to mandatory language, to discharge the injunction, which motion shall then be granted and the injunction discharged And then, because it’s conceivable, the strike might still be resumed.

And a final step in this procedure, when such a motion is granted, the President shall submit to the Congress a full and comprehensive report of the proceedings including the findings of the board of inquiry and the ballot taken by the National Labor Relations Board together with such recommendations that he may see fit to make for consideration and appropriate action.

This has been properly called the 80-day injunction section.

It is not actually an 80-day.

It maybe as it was in Kaiser a few days, depending upon whether the matter is settled.

Now this is a very involved procedure involving President, the Attorney General, the federal courts, the conciliation service, the National Labor Relations Board.

And if Your Honor will permit a note of congressional humor in this situation, the minority in the House criticizing this emergency section in a — little earlier version but not substantially different, the House, Minority Report number 245 said this.

“Under Sections 203 and 204 the President, the Attorney General, the district courts, the Secretary of Labor”, he was put out of this in the final version, “the Office of Conciliation, the Administrator of the National Labor Relations Act, the Circuit Court of Appeals, and special boards would all be concerned with the handling of the most vital disputes in the country affecting the national health and safety.

Everybody seems to be in the Act except Jimmy Durante.

The — I now turn to my analysis of the — appropriate analysis of this statute.

And here on health and safety, we come to one of the substantial parts of this case.

And our argument here can be briefly summarized this way.

Acquisition of jurisdiction by the District Court in the case and its issuance of the injunction were based upon two determinations made by the District Court.

And this relates to the findings of the District Court.

One, national health in the sense of economic well-being will be imperiled, because the steel strike will adversely effect business, idle workers and facilities dependent upon steel.

This is apparent, if you will look at the findings, on page 247.

And I refer you specifically to the finding (E) where the District Judge, at the request of the Government which likewise adopted the theory that economic well-being is synonymous with national health, really find that a continuation of the strike will have the ultimate effect of adversely affecting, millions of small business enterprises.

Almost all of which are directly or indirectly dependent upon steel products and most of which lack the resources to stock large amount.

And additionally, will have the effect of idling millions of worker and a large proportion of facilities and industries dependent upon steel for their continued operation.

Manufacturing industries dependent on steel products, account for the employment of approximately 6 million workers.

Their normal wages and salaries total proximity $34 billion.

Products of these industries are valued at over a $125 billion.

The national health will be in imperiled if strike is permitted to continue.

I shall, in a moment, address myself to whether that is a correct reading of the statute.

William J. Brennan, Jr.:

May I ask, Mr. Goldberg?

William J. Brennan, Jr.:

How you view findings A and B?

Arthur J. Goldberg:

A and B relate to the safety of the country in the national defense program and I will talk about those specifically.

William J. Brennan, Jr.:

Now C and D, of course, in language say that they are findings of imperiling of the national safety.

Arthur J. Goldberg:

A, B, and C relate to D — C relate to safety.

D, as I read it, relates to our foreign affairs, and E relates to economic health of the country.

William J. Brennan, Jr.:

What I — what I’m interested in is whether you read A, B, C, and D, each of them as a finding that on account of the things there stated, the national safety is imperiled.

Arthur J. Goldberg:

I do.

William J. Brennan, Jr.:

And only subdivision E is related to the national health.

Arthur J. Goldberg:

That is correct.

William J. Brennan, Jr.:

Now are there any other findings that specifically relates to either?

Arthur J. Goldberg:

No.

These are the substantive findings of the District Judge.

The — the or there, I should correct myself.

There’s also 13 which also relates to economic health.

Where they — where they talk about unemployment, where they talk about the number of people unemployed.

I shall deal with that in my discussion of economic health.

Now on the second theory of the Government adopted by the District Court, is that national safety will be imperiled because the shortage of certain steel affects the progress of certain defense activities.

This is the finding Mr. Justice Brennan that you just adverted to.

Now in my opinion, and upon the congressional history and a plain meaning of the Act, each determination is based upon a serious misreading of the statute.

First, economic health is not relevant to health in the statutory sentence.

And peril is second, peril to safety, if any there be in this situation, and we deny that there is any peril to safety, arises and stands from a shutdown of a minute part of the steel industry.

And as I shall later point out, this does not confer upon the District Court.

Felix Frankfurter:

Let me see if I understand you.

Do you deny that that’s, whatever your phrase was, minute or a small percentage, that the shutdown of that imperiled the safety?

Arthur J. Goldberg:

I deny it and I also say —

Felix Frankfurter:

I’m not saying that it comes within the — that it justified the injunction but as a determination or the basis for the President’s opinion.

Do you deny there was any peril to the national safety in the shutdown of any branch of this industry?

Arthur J. Goldberg:

I do.

I shall deal with in the argument.

I say that the Court doesn’t have jurisdiction even if it imperiled national safety.

Felix Frankfurter:

I understand that.

Arthur J. Goldberg:

Now I would like to turn to a more detailed discussion of economic health, when we — economic well-being really, as not fitting in the statutory definition of health.

I read to you — you’ve seen the findings, unemployment and the finding that business will be adversely affected.

These are the two belts of the Government’s case on this issue and the District Judge’s finding.

Now there’s no evidence related — in this record related to physical health, none at all.

They have several affidavits by the Government.

There is no affidavit from the Secretary of Health Education and Welfare.

There is no discussion except some discussion by the Secretary of Commerce relating to the containers in a conventional sense of food shortage, impairment of hospital and medical care, lack of heating, or the like.

Nothing is on record in respect to physical health.

Now it’s interesting, I’ve referred you to the President who talked in one of the statements about economic health, economic well-being.

Permeating the Government’s case are references of a light character.

Secretary Mitchell whose statement is found on 173 of the record refers to the economic health of the country.

The small — the– the administrator of the small business administration whose affidavit is found on Record 184 refers to the economic health of the country, well-being.

Now to extend health in this way, in my opinion, runs contrary to the whole legislative history of this statute, As Your Honors well know when the great congressional debate was taking place with respect to Taft-Hartley, two bills were passed and they were separate bills.

One was passed in the House and one was passed in the Senate.

The House bill referred to national health or safety or interest, three words, health, safety, or interest.

William J. Brennan, Jr.:

That was public health though, wasn’t it?

Arthur J. Goldberg:

And at times there were discussions of public health and even in this statute, we’ll talk about the statement of purposes in just a moment, Mr. Justice Brennan.

There was some reference to public hereto.

William J. Brennan, Jr.:

Does it — could that — to see if I an understanding your position.

Is it fairly to put it this way that you say national health does not mean the health of the nation in the sense of the well-being of the nation, it means the physical health of those of us who make up the nation.

Is that what you —

Arthur J. Goldberg:

Physical health.

It means physical health and not economic well-being or prosperity.

But it means health of individuals rather than the health of the nation.

Arthur J. Goldberg:

Health of our citizenry who make up the nation.

William O. Douglas:

Health of the citizenry not — not the general welfare of this.

Arthur J. Goldberg:

Not general welfare, precisely because that was discussed in the debates that took place.

Not —

Hugo L. Black:

But now you think It would be insufficient to support for a finding under the health?

Arthur J. Goldberg:

I would think for example that — and we have an appendix to that effect.

This, the coal situation which is very prominently discussed at the time that this statute was enacted and when you have analyzed the statistics on health, which we have done in an appendix in our brief, you will find that the bulk of the coal production of the country relates to the physical health of the United States, of the citizens of our country.

It relates to heating, the light, and matters of that character, the bulk, over 50%.

We have the Government figures which show that the industrial part of coal consumption is still a minority of the coal consumption of the country.

Tom C. Clark:

You said the statute doesn’t reach the steel?

Arthur J. Goldberg:

I said the statute doesn’t reach.

Tom C. Clark:

Does not possibly reach.

Arthur J. Goldberg:

Well possibly is a long word but it doesn’t reach the steel as we now have it in light of the circumstances that I have put.

Potter Stewart:

With respect to health, do you — you concede that it could reach and with respect to national safety.

Arthur J. Goldberg:

If there would — oh yes, oh yes.

I will come to the national — by all means, we make no argument that — that national safety may not be involved.

We say it isn’t in this case and that — but we make no argument that the national safety may not be involved.

Charles E. Whittaker:

Mr. Goldberg, if I may call you.

Do you contend that national safety means individual safety?

Arthur J. Goldberg:

No.

That we — we contend here that it means the security of the country.

The only possible meaning you can attach in light of the — of the congressional history.

Charles E. Whittaker:

But that national health does mean individual as distinguished from national.

Arthur J. Goldberg:

What it means national — no it means national physical health which relates to the citizens of our country.

They are the national body.

I do not draw a distinction between them and the country.

They are part of it.

But the key there, I think, is physical, not national.

I say that on a fair reading of the statute, they were talking about physical health, not economic well-being.

William J. Brennan, Jr.:

As to the physical health of the individual?

Arthur J. Goldberg:

Yes, because the individuals —

National health is simply a short formed way of saying national well-being, national welfare.

Arthur J. Goldberg:

It is — it is not in light of the congressional history because Congress had an opportunity to say that if it wanted to, and turn that down as I shall point out in just a second.

The — the history in that area is the — the interest concept which was put in, in the House would — was an all-embracing term to indicate economics, to indicate the general welfare, to indicate the terms which would be encompassed, in my opinion at least, in economic well-being.

This is what I think the debates show.

Arthur J. Goldberg:

But the Senate, under Senator Taft’s leadership, was talking about something else.

And it was the Senate version which prevailed, not the House version.

The Senate was talking in terms of the situation in this area where there, some of the Senators used the word, “where there would be a national paralysis.”

That word frequently comes up.

Felix Frankfurter:

That didn’t mean — didn’t mean health paralysis, did it?

Arthur J. Goldberg:

No.

National paralysis, (Inaudible), the — the — it’s interesting one colloquy which occurred in the House.

Any large strike can affect the economic well-being of the country.

Steelworkers are not the only union that has as many people in it.

The automobile workers have even more people employed in the basic automobile industry.

They have some 700,000 employed in the basic automobile industry.

And yet, Congressman Kennedy who played an active part in the discussions, he was a member of the committee, objected to the word interest on the specific basis, that it might include a strike in the automobile industry.

And he said, “That’s too broad.

We don’t intend to encompass that.”

And yet, the history, recent history, demonstrates that when automobiles aren’t selling, it has as the very profound effect upon the economic well-being of the United States.

We learned that last year, when we had an excess of five and a half million people unemployed primarily — not primarily but as — as a factor in the recession was the said state of the automobile industry.

Charles E. Whittaker:

Was that condition, as I understand you right, does not affect the national health, the national health?

Arthur J. Goldberg:

That is correct.

Now again, we go back to Senator Taft to manage the bill.

And he dealt with the automobile situation as did Congressman Kennedy.

And he went on to say, the statement has been made that this amendment, and as — that he was dealing now with the language affecting the industry or substantial part thereof, would subject a strike with the employees of one automobile manufacturing company to an injunction.

He’s probably thinking of General Motors which itself almost employs the same number of people as the total steel industry employees.

If I remember it correctly, General Motors employs about 300,000 people.

And this is what Taft — here again, the speaker ignored the remainder of the paragraph which imposes the additional requirement that such strike imperil the national health or safety, a condition, which, it is anticipated, will not often occur.

Now, the Government has advanced another theory here.

It was not accepted by the Court of Appeals, but it is in the Government’s case.

The Government extends economic health to include general welfare of the country, the general welfare of the country.

They in effect said that they wished to revive Debs, not in the form in which Debs was decided in my judgment, but in the form in which Debs was viewed in its most outrageous form.

That the Government, by injunction, can use the injunction process in the courts to safeguard the general welfare of the country, and this is what the Government in effect says is the justification for its position.

There is a fundamentally wrong thing with that and perhaps two.

Arthur J. Goldberg:

One is, I would have assumed that Debs was discredited even with the Government?

Felix Frankfurter:

Why do you say that when Mr. Justice Brandeis cited it in the unanimous opinion not so long ago?

Arthur J. Goldberg:

Well, I say that because of the — what I thought was the march of events, Mr. Justice Frankfurter.

Maybe I’m wrong.

Felix Frankfurter:

I’m suggesting that it was best in use by this Court when Mr. Justice Brandeis, who knew something about labor and we’re not unfriendly to it, in the opinion.

Arthur J. Goldberg:

But, Mr. Justice Frankfurter, the way it was used was within the limits of the facts of Debs.

Felix Frankfurter:

Well that’s a different story but it’s of the case to discredit it.

Arthur J. Goldberg:

Well I —

Felix Frankfurter:

I’ve said something myself on that subject but the case hasn’t been discredited.

Arthur J. Goldberg:

Yes, yes — I think I should have confined it and meant to say the sweep of Debs is popularly construed.

The case itself dealt with on — and the facts dealt with violent action that struck the mails in interstate transportation.

Felix Frankfurter:

Does the Government — well, you mark (Inaudible)

Does the Government say it can travel outside of the authorization of the Taft-Hartley Act to sustain its injunction?

Arthur J. Goldberg:

I think it does because it travels way beyond the Act and —

Felix Frankfurter:

Well I’m not — I’m not questioning your view and their view of the Act, but does the Government claims to sustain this — desire to sustain its injunction on the Debs ground in defense of the — that did not rest on the statute?

Arthur J. Goldberg:

They rested on the statute but not the enactment part of the statute.

They turned from the statute we have been considering, the Section’s 208.

They turned to the general statement of purposes in the Labor Management Relations Act where they say in general that this act is designed to protect the public and the general welfare.

Felix Frankfurter:

Well that’s made thereon their construction of national health.

Aren’t they confined within the structure of the statute, which is, the injunction certainly couldn’t rest beyond the time that it’s been granted.

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

That isn’t true of the Debs situation.

Arthur J. Goldberg:

Right.

Felix Frankfurter:

So I’m asking again whether we’re to understand from you that you’re answering an argument that I wished the Government could speak to sustain its injunction outside their notion of what the statute permitted.

Arthur J. Goldberg:

They seek to sustain it on the basis of the statute but not its operative parts.

Felix Frankfurter:

Correct.

Arthur J. Goldberg:

And in my opinion, that leaves them seeking to sustain it in broad way, in a broad way.

Now it’s interesting because they contradict themselves.

The general statement of purposes in the statute which talks about general welfare because there are a lot of provisions of the Taft-Hartley Act not involved here which bear on the general welfare.

Also, it talks about public health.

Arthur J. Goldberg:

They can’t have their cake and eat it.

Felix Frankfurter:

By the statute I mean Sections 206 and 210.

Arthur J. Goldberg:

They read beyond that.

Felix Frankfurter:

Correct.

Arthur J. Goldberg:

And then that’s the way they — I think, they attempt for an expanded version.

Now I’d like to turn from — I have not and I would propose to wait a moment to discuss with even on the Government’s version economic well-being has been so imperiled as to justify the injunction.

Even if we were to accept their version, I would like to turn for a moment before I do that to the safety argument.

Now, I want to say as I’ve said in response to your questions, of course, defense is pertinent to a determination of the national safety.

I do not contest that.

But in any case, even assuming the Government’s best case, any problem, or any peril, for the national safety arises not from these 96 strikes that are taking place in totality, but from a shutdown of a tiny fraction of the steel industry.

Felix Frankfurter:

But does it occur with reference to that tiny fraction?

Arthur J. Goldberg:

Yes.

It may.

I challenge that on the evidence but for the —

Felix Frankfurter:

And here it doesn’t.

Arthur J. Goldberg:

— for — it doesn’t but for the moment I’m assuming that the Government has made that case.

Later I shall challenge it as I challenged economic health, even if you’ll assume their case.

But now I say assuming their case is firmed.

Now I say that under the Taft-Hartley Act a shutdown does not confer jurisdiction upon the District Court to enjoin a strike in the entire industry because a small fraction of the industry is required for the national safety.

Now any view of this would necessitate their conclusion that if, let us say, taking them out of the (Inaudible), 5000 employees in three plants were involved in processes vital to national defense that the injunction could break the strike as to 500,000.

Felix Frankfurter:

That all depends on the relation of the 5000 to the 500,000.

Arthur J. Goldberg:

That is correct.

But later, I shall have something to say about that relationship.

Now I go back to some of the background figures I gave you.

I said that originally 23 million tons of steel were being produced by non-struck companies.

This has been added to now by Kaiser two, two, a little over two, on 23 million.

So that’s 25 million.

What are the defense needs in terms of steel of the United States as demonstrated here by uncontroverted evidence in the affidavits?

Less than 1% of the total steel produced in United States.

In terms of finished steel, as contrasted with our capacity of 147 million tons, as contrasted with production now going on of 25 million tons, as contrasted with the production of the first six months much of which went into inventory.

Arthur J. Goldberg:

As contrasted with steel which is coming in from abroad.

As my friends in the industry say it’s overwhelming us, which we have denied, but taking all these together, all of this of all types for defense use have never exceeded in their past couple of years and they’ve fallen below 700,000 tons of steel.

Now we go on to this.

Steel, as Your Honors probably know, is generally of two or three basic types.

We must — we must give the Government all that it has to say in this area in all fairness.

Steel consists of various types.

The great bulk of steel production in the United States is carbon steel.

This is produced in generally in open hearth furnaces.

It’s carbon steel.

The open hearths also produce some low-alloy steels.

In fact in the ore, they produce quite a bit of it.

The specialty steels, this is what appears in the Government affidavits is there a need and claim, the specialty steels.

These are high-alloy steels are made in the industry of what is called — what are called electric furnaces.

Now we have been trying throughout these proceedings, we’ve criticized the Government’s affidavits.

It’s not telling us what plants, where, how, what type of steel, other than the general statement specialized steel.

And so we have been forced to make our own analysis from public resources.

And if you will look at our brief, you will find an appendix from sources of which this Court can take judicial notice.

And you will find in this appendix page, starting at Appendix F, the availability of special steel is needed from military aircraft and missile purposes.

And if you look at table 1 on page 87, you’ll find that the companies not on strike, while they represent now 17% of the steel capacity, there are in many areas the electric furnace producers of the country.

And they have 35% of the total electric furnace capacity of the nation.

Now just the other day, I believe it was October the 26th, there was a publication which we have filed with the Court which lists defense orders and we have made an analysis of that and we find that in virtually every instance, the type of steel required is being made by the companies not on strike, or they are capable of making.

This is a document published by the industry.

And I might say to Your Honors for your own information, we ask the — the defense department and the persons in charge for a statement of what companies were involved, and I will later, on the discretion argument, make an argument about that, about our desire to cooperate to produce this material.

Felix Frankfurter:

Do you say, are being made or are capable of being made?

Arthur J. Goldberg:

Are and are capable, both.

Felix Frankfurter:

Well do we know in what amount?

Arthur J. Goldberg:

No, we do not.

Felix Frankfurter:

You had it within your power to have human (Inaudible), and you agreed to leave it all to affidavits.

Arthur J. Goldberg:

I don’t know, don’t want to say why.

Felix Frankfurter:

Well I don’t care why, but that is a fact.

Arthur J. Goldberg:

Well it is a fact but that — the why is relevant.

Felix Frankfurter:

Yes, I know, but all I’m saying at this point is that all of these amounts that could have been brought out through the — I would say, testimony.

Arthur J. Goldberg:

If we — through cross-examination.

However, it is my view, this came up on final hearing, it is not our burden to prove that there is a threat to the national health or safety.

It’s the Government’s burden.

Felix Frankfurter:

I understand that point.

Arthur J. Goldberg:

Now if you look at that and one of the Government claims that were made in one of their affidavits is that one particular type of specialty steel, vacuum process steel is particularly in need.

This publication demonstrates that 20 of the 23 companies making this particular type of steel are not on strike, 20 of the 23.

Felix Frankfurter:

Just as a matter of information, is there anything in the record by which we can tell what defense orders, if that’s the correct term to use, what defense orders are actually in place at those non-struck plants or what percent of the orders placed by the Government elsewhere are dependent upon steel from those non-struck plants?

Arthur J. Goldberg:

There’s nothing in the record.

I was just saying, Mr. Justice Frankfurter, we attempted to find out without success, although — although I must say this, and this illustrates this corporate secrecy that’s put on this.

The Metal Magazine which is an industry magazine illuminates us very largely on this subject.

It goes into a great detail; it doesn’t tell us purportedly, but it goes into great detail of these things, telling that the constituency, the type of steel, the place, the project for which it is designed or when the union desiring to cooperate with its Government request the information, this information is denied to the union.

Felix Frankfurter:

Is there anything in the record to show that had you desired to secure this information through the power of compulsory testimony would not have been available?

Arthur J. Goldberg:

No.

There was nothing.

And then — and there are no — there are no affidavits where security considerations are involved.

But later on, Mr. Justice Frankfurter, I’m going to talk to that subject on — on evidence.

Now I say that where the record does show without contradiction that a minute amount of steel is required, particularly specialty steel, a minute part, Government can make no claim that carbon steel is not available, because this 22 million tons is — is in large part carbon steel whereupon specialty steel, all the Government requires of specialty steel, is required —

Felix Frankfurter:

Would you mind telling — telling me at least what specialty steel is?

Arthur J. Goldberg:

It’s high-alloy steel.

It is hard.

It is made in electric furnaces.

It has properties that cover missiles and ammunition and other ordinance.

Whereupon the minute section is involved, it is, at least it seems to me that the statute, now we turn to the statute, doesn’t permit an injunction to be issued against the strike in a small part of the industry, even though that strike imperil the national safety.

This is the key question.

I’d like to repeat it.

The statute says, there are two elements in the statute, one that the threatened or actual strike affects an entire industry or substantial part thereof; two, if permitted to occur or continue will imperil the national health or safety.

And I put you a simple case.

Suppose that in the steel industry, there is one company employing 5000 people that produces items and it’s in the steel industry.

Arthur J. Goldberg:

It’s a steel company.

It produces an alloy steel required for national defense.

This statute does not permit an injunction to be issued to put that plant at work under the injunction process.

I want to make that as emphatic as I can.

To do that, it would be to misread the statute.

This is not what the congressional favors of the statute meant.

They were talking in terms of the industry or substantial part of the industry, strike there imperiling the health or safety of the country.

Now I want to add something very hastily.

Is our country defenses under this situation?

It’s a legitimate concern to all of us, although it might be a — it’s probably a congressional concern.

But Congress has acted.

Congress has acted in this area not by injunction, but just a fatal fallacy of the Government’s case.

Congress has at least three statutes which bear on this subject.

One is the Selective Service Act of 1948 as Your Honors had occasion to consider in the Steel Seizure case in 1952.

Now in the several opinions of the Steel Seizure case, Mr. Justice Clark, you talked about it at some length.

Mr. Justice Jackson talked about it.

The Selective Service Act says specifically that if there is a commodity and it refers specifically to steel at one stage, necessary for the defense of our country, and if the employer refuses or fails to produce it, then the Government may seize that instrumentality.

And that’s a statutory seizure.

That is not the seizure under the alleged implied powers that this Court dealt with in the Youngstown versus Sawyer.

Now the Government has the means if an employer is disabled because of the strike, to seize that plant and put it back into production.

There are other statutes —

Tom C. Clark:

Does there have to be an order issued that you had in regards to the security?

Arthur J. Goldberg:

No.

The Government — Government may place an order anytime, and your footnote in the Youngstown versus Sawyer demonstrates that that was done on occasion.

Order was placed within 24 hours.

The next statute which is available, Government has three — three vehicles.

There’s the Defense Production Act of 1950.

The Defense Production Act of 1950 authorizes two procedures.

One is that it permits the Government if needed for defense purposes to establish priorities, to allocate, to require the production of defense items.

Now it’s interesting to see in reference to the Government’s concept that you’d have to act in the way it acted here by enjoining a nationwide strike and disputes between many companies by injunction order.

Arthur J. Goldberg:

It’s interesting to see what the Government did with its powers under that statute.

The Government for the first month of the strike did nothing under the Defense Production Act except send a letter or issue an order advising all companies not struck to keep the Government advised as to what they were doing.

That’s all they did there for the first period.

They didn’t do anything further until October the 16th after the Board of Inquiry had acted, after I made an argument before the Board of Inquiry on this subject pointing to the Defense Production Act.

And on October 16th, they finally issued an order.

And the order is primarily designed to assure, as the Government says frankly in its brief that when the struck plants go back into operation, that defense orders will have priority.

That’s not the primary design of that order.

Now let’s contrast this with the action of the Government which we have an affidavit on, in the 1956 strike.

In 1956, we had a strike in 1956, the 20th day of that strike, not the 90th day, the Government issued a freeze order on steel in the non-struck plants.

So that specialty, and these were all specialty steels, so that they would have access to that steel and could allocate it anywhere that they wanted to for processing by contractors of the Government.

Now finally on this subject, there’s another provision, and that is this, under the Defense Production Act, the Government may — the President may solicit the voluntary agreement of labor and management to fulfill the purposes of this statute.

We have an affidavit on our reply which is uncontradicted.

But where the Government solicited the — the cooperation of the Steelworkers Union to move goods out of struck plants that cooperation has been forthcoming.

Now we have letters from — a letter from the admiral in charge for procurement of the navy certifying that this is so.

Felix Frankfurter:

Do I comprehend your argument to be, and you can correct me if I misunderstand you.

Do I comprehend your argument from the last few minutes to be that since there are three available modes by which the President, even though he’s convinced or it is his opinion, the national safety is imperiled, didn’t he has these three statutory means of effectuating and overcoming that peril, that those are considerations that debar the use of the — of the Taft-Hartley provisions?

Arthur J. Goldberg:

No.

My argument is not —

Felix Frankfurter:

Or do they bear on the discretion of the judge?

Arthur J. Goldberg:

Yes.

Later I shall talk about discretion.

My argument at this point was merely to reassure all of us that the Government is not powerless in a situation where the national emergency provisions of Taft-Hartley don’t authorize an injunction against a strike in a few plants making up a part of the industry.

Felix Frankfurter:

The pre-propositions of those assurances is that there is a national — an element of national safety which may concern the President.

Arthur J. Goldberg:

Yes, but national safety in a few plants.

I was just saying Your Honors that as a citizen, that at this point, clearly Congress might now have provided for that and that wouldn’t have helped anyhow.

What I was saying that we can be reassured there are methods to do.

Later I will talk about discretion.

Tom C. Clark:

Neither thing that goes along with this or any of that got a law rather than an equitable remedy?

Arthur J. Goldberg:

I just think they are a remedy by law and they can enter into the exercise of equitable discretion by the judge.

If I’m —

Tom C. Clark:

Is this to be exhausted first that you want to (Inaudible)?

Arthur J. Goldberg:

I’d say that judge can weigh properly should weigh and if I’m wrong in my argument that the emergency sections do not reach a few plants for a constituting part of a whole industry which are necessary for the national safety, I say it is relevant for a judge to consider other available means short — very limited means involving relatively few people and companies rather than terminating a strike of 500,000 people.

Felix Frankfurter:

And if he has no business to issue the injunction, it’s none of his concern or there are — there are other methods.

Arthur J. Goldberg:

That is correct.

I just — as I said, I said this as a citizen and later however, it becomes relevant on discretion.

Now I — I said that I would address myself — so far I’ve given you our version of the evidence, which I think is going out on a fair reading of the evidence.

Let’s take the Government’s reading of the evidence and the Government’s theory.

Assume now that I’m wrong.

That national health or safety and health in the — encompasses the economic well-being of the United States.

And let’s assume that safety encompasses — the safety encompasses their requirement, they need some steel from — from certain plants.

Let’s make both of those assumptions.

Now take the economic health of the country.

This is the subject of the plaintiff.

What do we have?

We have affidavits and we can take public notice of facts.

The facts are that at the present moment there are about three million people unemployed.

500,000 are steel workers 250,000 at the time of the filing a suit, are workers unemployed so it appears from the record because of the shutdown in steel.

Now the judge, looking to the future based upon one of these affidavits, says that in the findings, by the end of the year, it has to be served, because we’d hope the strike will be settled before that.

But he says by the end of the year, the unemployment including unemployed steel workers may arise to two million or thereabouts, that’s two million and a quarter.

We’d have unemployed by this thesis of five million and a quarter.

And in addition, we have some economic reports made by one of the Government’s own witnesses, the Government document which I want to advert to.

In the last year, we had unemployed of five and a half million, more than that, and it was not asserted that the national health or safety was in peril — imperiled.

We don’t like unemployment.

We’ve been very articulated in the labor movement about unemployment.

But it is a far cry for the Government to argue that this state of unemployment imperils the national health of the country.

But we have some more significant theory other than these releases we seem to be getting currently everyday in the newspaper.

The counsel and economic advisers, the chairman is a witness here, has just the other day issued his economic forecast and report.

And what did he say?

The Country is booming at a great rate.

It is 1% less than our top gross national product in our top production right now, right now as we sit here today.

Arthur J. Goldberg:

It has declined due to the steel strike.

I don’t dispute that, but it is far in excess of what the situation was in — in 1958.

Now —

Felix Frankfurter:

It’s not a good baseline, is it?

Arthur J. Goldberg:

No, I don’t think it’s a very good baseline, but I will say that the country wasn’t paralyzed.

There was hardship, there was difficulty, but it scarcely quickly describes at least so the Government felt at that time as a state of economic paralysis for the country.

Now on that record, I believe that the Government has not sustained its burden.

And again I emphasize the burden, the case was tried, on final trial, this was not a preliminary order.

The burden is on the Government to prove by clear and preponderating evidence that national health or safety was involved.

And on the safety factor, we have, let’s get back Mr. Justice Frankfurter, to the affidavit.

We have scanned the affidavit for the Government.

It is truly tried within affidavits.

And I want to say a word about that.

We have no choice.

If we had proceeded otherwise, then on affidavits, the Government would have obtained the preliminary — and the record of Taft-Hartley injunction showed this.

This has nothing like “aren’t you out of your mind?” and in a case in which I participated shows this.

Government would have obtained a temporary restraining order and if —

Felix Frankfurter:

I would suggest that falls on expression of an opinion and not a fact?

Arthur J. Goldberg:

No.

I want to — I want to —

Felix Frankfurter:

But that’s a fact that you would have known what a particular judge would in a new case have done, if you had asked of the fact that be tried before the temporary injunction is granted.

You think that’s a fact.

Arthur J. Goldberg:

I think no.

I can’t tell what the individual judge —

Felix Frankfurter:

Well that’s the point though about granting injunction.

Arthur J. Goldberg:

I can only — I can only act on the history and experience that confronts a litigant and a counsel in this type of proceeding and something —

Felix Frankfurter:

And we have to examine all the details of all those other cases in order to waive the property that just led you to agree to stipulation.

Arthur J. Goldberg:

And the history of injunction which is relevant.

Felix Frankfurter:

As you well know, I am no friend of affidavits and granting injunction.

Arthur J. Goldberg:

I know that.

Arthur J. Goldberg:

But in addition to that, we have a significant Government statement in its brief as to the course of conduct which they anticipated, I’m not the only one anticipating.

The Government says this.

Government says that if my theory is right, that a judge could look into selective reopening.

Obviously, the only indicated course of procedure under this statute, obviously, the only indicated course of procedure would be to restrain the strike and then hold hearing.

Felix Frankfurter:

I’ve suggested that all counsel are optimistic about what relief they can get within courts.

Arthur J. Goldberg:

Yes, that’s true your — that’s true Your Honor.

But the indicated course of procedure would have been then to conduct a fact of inquiry with respect to this manner to determine what steel was required for what.

But we — we tried once in the Taft-Hartley area to get an adjudication from a temporary order and it’s in the record here, the American Locomotive case where we tried in the normal procedures of the courts to get a review, and we appealed a temporary order at the Court of Appeals of the Second Circuit.

We knocked down the door of this Court and we were denied.

We appealed to the Second Circuit and we got an order affirming the order of the Court below on the 79th day, where the case mooted the next day and we could not get the review.

Now — I would now like to move on and move to the next foundation of my argument.

And that is this.

That even if the Government has met the burden of proof, as the jurisdictional requisites of Section 208 were satisfied, the judgment should be reversed, first because the District Court completely failed to consider the equities before issuing its order, and thus failed to perform an essential part of its function; second, the Court of Appeals there in sustaining the District Court on the basis that the Court’s exercise of discretion which had been exercised was inappropriate exercise of its discretion.

And third, that the balancing of the equity, if I’m wrong about the what we might call the selective reopening, that the balance of the equities in this case, would have justified withholding of an injunction or at most an injunction limited to a tiny fraction of the several struck plants which might be required to satisfy shortages to safety purposes.

And for health purposes for that matter, that health could be sustained.

Now I turn again to the statute.

Potter Stewart:

It’s your point — you’re not referring to a fraction of a plant, are you?

Arthur J. Goldberg:

Well, although I’m not at the mood but it could be done in the steel, Mr. Justice Stewart.

Steel plants if I may explain it are — are of varying types.

The — you have integrated plants you have non integrated plants.

An integrated plant is a plant which starts with a blast furnace and takes iron ore and melts it.

It proceeds to an open hearth which makes steel and then proceeds them to roll — to roll steel in different forms and to — and to fabricate.

Now in all the industry, the various parts in the plant sometimes are activated without the other parts.

The firm may not have enough furnace capacity and they use its rolling capacity by getting ingots from other plants and this is possible.

But at the moment I say that this could be done by putting a whole plant back if necessary.

Now the first thing we look at is the statute again.

And the statute talks in terms of jurisdiction.

It doesn’t mandate the District Judge to issue the injunction.

It does not say, “shall enjoin”.

It says that the District Judge shall have jurisdiction to enjoin.

Arthur J. Goldberg:

And that’s a vital distinction, because it gives him the jurisdiction of a court of equity free from the limitations of the Norris-LaGuardia Act but to a limited extent prescribed in the statute.

Potter Stewart:

Does it also include, because I gather what your argument does, that in fact findings of a strike which imperils the national health and safety appear.

Arthur J. Goldberg:

Yes.

Potter Stewart:

But nevertheless you say that there is a discretion in the District Court.

Arthur J. Goldberg:

He has discretion.

Potter Stewart:

Now is there anything in the legislative history to support any intention of the Congress that he should have a discretion?

Arthur J. Goldberg:

The — the — what I find — I read it from the statute itself.

Potter Stewart:

That’s from the word, “shall have jurisdiction.”

Arthur J. Goldberg:

It’s the best to read it.

And then I read it also from the Government, which I will come to it in a moment in a very significant application of that principle.

Potter Stewart:

But there’s nothing in the legislative history —

Arthur J. Goldberg:

I don’t find.

Potter Stewart:

— that Congress had any such intention.

Arthur J. Goldberg:

I don’t find why it didn’t say.

Felix Frankfurter:

Did Congress stand on the statute?

Arthur J. Goldberg:

We stand on the statute.

On the plain words itself.

Now it is apparent —

William J. Brennan, Jr.:

Well, may I ask this?

Shall have jurisdiction of itself imports a grant of jurisdiction, is that — the discretion, is that your thought?

Arthur J. Goldberg:

I — I would think so.

William J. Brennan, Jr.:

What support have you for that?

Arthur J. Goldberg:

Pardon?

William J. Brennan, Jr.:

What support have you for that?

Arthur J. Goldberg:

I have support from the fact that when you give a court of equity jurisdiction, the court of equity must act like a court of equity.

In Hecht versus Bowles, your own decision in this area indicates that when a court of equity acts, it should act like a court of equity.

Felix Frankfurter:

May I remind that in Hecht against Bowles, the statute said, they issue an injunction or other order, in this case it said and other order — and other appropriate order.

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

Except in specifically the statute since I’m happily — happily find you resorting the statute instead of the history if you know what the statute means it said, issue an injunction or other orders.

The opinion in Hecht against Bowles relied on that.

Felix Frankfurter:

Here we have to issue an injunction and shall have jurisdiction to issue an injunction and other appropriate order which I read not touching your present argument any other supplementary order to the injunction.

Arthur J. Goldberg:

Interestingly the Court of Appeals seemed to feel that the right to issue an order was not linked to the injunction.

They read at the end in effect (Voice Overlap)

Felix Frankfurter:

But in here, you (Inaudible) Court of Appeals, aren’t you?

Arthur J. Goldberg:

In this I’m in agreement.

Now —

Potter Stewart:

You’re referring to Section 5, paragraph 5 of the statement.

Arthur J. Goldberg:

That is correct.

Potter Stewart:

And then — that the Court of Appeals was unanimous.

Arthur J. Goldberg:

That is correct.

Now the — the —

Felix Frankfurter:

You simply say that in Hecht against Bowles doesn’t give me much help for this case.

Arthur J. Goldberg:

I think the general expression of a — a doctrine as to the court of equity, I think Your Honor is right on — on the facts but I don’t see how it can be argued.

Now when you read this jurisdiction in a court of equity for a limited purpose, you then mandate the court without a plain statute mandate.

Felix Frankfurter:

I entirely agree with you for the Court has given discretion, it must exercised the discretion.

Arthur J. Goldberg:

Now it is clear from the record that the District Judge did not feel he had any discretion.

We tendered a finding on discretion.

It was turned down.

William J. Brennan, Jr.:

Do you have any colloquy that (Inaudible)?

Arthur J. Goldberg:

We have a supposed finding which is in the record on page 214 of the record.

But I don’t recall a colloquy on this point.

215 is the actual —

William J. Brennan, Jr.:

And what you’re saying is supposed, aren’t you?

Arthur J. Goldberg:

Yes I supposed, and that was denied by the judge.

William J. Brennan, Jr.:

In his reading?

Arthur J. Goldberg:

No he just said denied.

Now the interesting thing is that the Government — the Government — I don’t know where the Government stands on this issue.

The — in the District Court, the Government I think assumed there was no discretion.

In the Court of Appeals, Government counsel said there was no discretion and then under heavy questioning by the Court, I believe I quote him correctly, said, maybe they can squeeze something out.

In the briefs that the Government has filed, was at a loss on this subject, but the Government was not so much at a loss when it argued the other case I have in the — in the — the American Locomotive case.

Arthur J. Goldberg:

They filed a brief in the American Locomotive case which involved this section in the Second Circuit.

And here they — they touched our case here.

Now I read from their brief.

“The power under the present act to exercise discretion in granting or withholding an injunction means no more that in each case, the Court must fall into the equity.

For example, it is conceivable that a case may occur which all go within the statute and arouse relatively slight danger to the public safety and a prospect of severe injury to the economic interest of the strikers.

In such a case, the Court might refuse an injunction.

Now I say that the Government’s statement in American Locomotive upon ruling in all the other issues, that’s the case implied.

Felix Frankfurter:

May I accompany you to sketch the consideration that you think should have gone through the District Court’s end in deciding this balancing.

Arthur J. Goldberg:

There are three considerations.

Felix Frankfurter:

On the basis of what was before him —

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

— the affidavit.

Arthur J. Goldberg:

Right.

Felix Frankfurter:

The affidavit.

Arthur J. Goldberg:

The three considerations that I see are these.

No injunction was warranted and he could have exercised his discretion, because an issuance of an injunction would prevent a settlement which would be expeditiously achieved in the absence of this.

Felix Frankfurter:

You don’t think that’s the wildest kind of a guess even though Mr. Frank Zinger (ph) and Mr. Woods both of whom I know well and greatly respect and Dr. Taylor indicated that.

You don’t think that’s the widest one.

Arthur J. Goldberg:

No.

I think it is —

Felix Frankfurter:

In your long experience or living about this.

Arthur J. Goldberg:

I think this — I think the history reported by the Mediation Service and Government documents, Mr. Ching, when he was the director of mediation said that is the basis of their extent.

Felix Frankfurter:

But then it is to learn the very statement on which you relied but of course nobody has really a full and final view of it.

Arthur J. Goldberg:

Well if you can’t tell —

Felix Frankfurter:

This is all in notion of speculations.

Arthur J. Goldberg:

But we filed on a state of the record that we are to accept opinion evidence from the Government as to the state of its national safety we have the only affidavit on record, on this subject.

The Government has none.

And we have —

Felix Frankfurter:

But your President said that.

The President Mcdonald said.

Arthur J. Goldberg:

Yes, he did.

Felix Frankfurter:

I know but that’s his opinion, opinion and appeal that is really shot through with speculative factors.

Arthur J. Goldberg:

And we have the opinion of the Government witnesses that if we don’t resume still, it will encourage small wars.

Felix Frankfurter:

Well that isn’t — that isn’t all they have.

Arthur J. Goldberg:

Oh, but we — this isn’t all we have here either.

Felix Frankfurter:

No, but on this point, that’s all you have — the affidavit of the President of the steel workers —

Arthur J. Goldberg:

And —

Felix Frankfurter:

— as to his forecast which deserve a great deal of respect.

Arthur J. Goldberg:

And —

Felix Frankfurter:

What I’m suggesting with some knowledge of settling strikes and big strikes but that’s a very speculative judgment that anybody can make.

Arthur J. Goldberg:

And — and Mr. Justice Frankfurter, we have a settlement two days after this.

Felix Frankfurter:

A settlement.

Arthur J. Goldberg:

Yes, but a substantial one.

Felix Frankfurter:

But you’re here because the strike is on fundamentally.

Arthur J. Goldberg:

Well oh, yes.

I am here very much because the strike is on.

But the interesting thing is that the Government itself throughout speculations in the future, they have a speculation of finding of a fact, the strike is going to continue in the indefinite future.

Felix Frankfurter:

I’m — I’m — that’s my point, everybody is speculating.

Arthur J. Goldberg:

And I will come to this speculation.

Felix Frankfurter:

Everybody’s speculating.

Arthur J. Goldberg:

Yes.

I will come to this speculation.

Felix Frankfurter:

And — and if one can have views that the President expressed that Taft-Hartley isn’t salvation.

Arthur J. Goldberg:

And I will come to a — a point in my argument where I think all the speculation is non-judiciary.

Felix Frankfurter:

I can’t imagine anything that there’s less — makes less of a judicial appeal to grant judges to forecast how, when, and what manner a strikes will be settled.

Arthur J. Goldberg:

I can imagine something more for the reasons that I’m going to give you, when you are asking judges to speculate on our foreign policy, national defense, economic health of the country and many other considerations.

But I would like to reach that a little later in the argument.

Now, the second element of discretion is that the injunction should be denied because statutory remedies are available and less drastic than the equitable remedy —

Felix Frankfurter:

And you don’t think that speculation which poor district judge is having who may not have had any experience in this domain.

Arthur J. Goldberg:

I don’t think so.

Arthur J. Goldberg:

I think the facts demonstrate that.

Felix Frankfurter:

You can tell that it’s better to see the steel mills rather than you did.

Arthur J. Goldberg:

And not see all of the steel mills.

Felix Frankfurter:

I envy him.

Arthur J. Goldberg:

Not all of the steel mills.

But I think it quite apparent that if as I think this record plainly indicates that a small member of the steel mills could be involved if that’s far less drastic and a chance for balancing the equity which is his responsibility can properly use that in his discretion.

And this seems to me, these are the elements, it seems to me that entered, these three elements that entered into this area.

But the fact of the matter is, you don’t’ have to go that far here.

We have a court that did not exercise any discretion and we have a right to have the Court exercise this discretion, (Inaudible), we have a court which did not exercise any discretion as the record plainly shows.

Now I would like to turn to the last leg of the argument, the constitutional argument.

It’s our position that the 80-day injunction provisions are unconstitutional as they confer on the Court’s duties which are not judicial and are not connected with any case that comes.

And here I raise what I believe to be a very serious fundamental question which the Court has not reached has not properly reached with the case is decided under other facets of my argument, but is reached if the other facets of my argument are held against me.

The — I don’t have to deliver the point that this Court and federal courts are to engage in a judicial function, and their judicial function is adjudicating justiciable controversies.

And it is my position that this statute that bears upon the Court not judicial function but makes the Court part of an administrative process to settle strikes.

And this is not the function of the federal courts, the constitutional courts.

Now the plain fact of the matter to leave the congressional history here on any fair reading is that Congress did not intend the courts to adjudicate any rights or compel the performance of any duties but the Act is part of the machinery that they were creating to define and settle the labor dispute.

And here the Government — and we clash directly.

We say that Congress did not create a substantive right of the United States and the public to be free from a work stoppage affecting the national health and safety, and providing a judicial remedy to comply with its duties to end such a stoppage.

Now there are provisions in the Taft-Hartley Act which define cooling off period.

This is popularly called the cooling off period.

In 8 (d) of the statute, there are two.

We have got to give the Mediation Service 30 days notice.

We got to give the parties 60 days notice before we can strike.

And it would be unlawful, the parties have recourse against them in the event, we did not comply with those provisions.

Now Congress knew what it was doing when it enacted those provisions.

But here, what Congress did was faced with an unpopular decision.

The question of legislation whether the solution to a national emergency dispute is to make it an obligation on the union alone not to strike, or to do something about the substantive issue that might be more equitable to both sides.

Congress did not decide that point.

It was within the competence of the Congress to decide.

It was the duty of the Congress to decide, but on the popular parlance, they passed the buck to the Supreme Court to break the strike.

Felix Frankfurter:

Well it isn’t merely to break the strike.

We have known lock-outs in the history of this country.

Arthur J. Goldberg:

Yes we have.

But — but barely —

Felix Frankfurter:

You mean what about if there is anymore?

Clearly you do not worry about those anymore.

Arthur J. Goldberg:

Yes, I will.

I will say the same thing for my friends on the other side.

Now this is what precisely happened here.

Now let me demonstrate by again recourse to the cases that there is no conceivable way if there was a duty of my distinguished friend, the Solicitor General says can be applied from the statute, the jurisdiction of grant.

And there are cases where jurisdictional grant implies duty that has been decided by this Court, but there is no way we can comply with our duty which the Government assert exists.

No way, and I will again refer to my prior experience in the American Locomotive.

There was a strike which threatened to imperil the national safety.

For 280 days, the union voluntarily complied with request from the President to postpone that strike, 280 days.

At the end of the period, we were enjoined.

We were enjoined.

We have no way of complying at all with this alleged duty which is owing.

Now if Congress had intended to make the decision, it could have done it very simple.

It could have said that as there is in the Railway Labor Act, as there was in the Thomas Luzinski Bill offered in 1959, that after a finding at 49, that after a finding by the President or some competent body, that after a declaration by the President, that it is the duty of the union or the company as the case maybe to remain at work, and then of course the courts could have adjudicated whether or not the union complied with that duty.

But here, here there is one thing done and that is this that — that the injunction for the first time which creates the obligation.

Now this Court many times, has said that on constitutional issues, you must exercise caution, give deference to the acts of Congress, but the one area where this Court has been most vigilant to scrutinize the acts of Congress is this area where the judicial power is involved.

And this stands both from Article III and from the great concept of separation of powers upon which our Government depends.

Now we ought not to assume, we ought not to assume duties here that can’t be complied.

We cannot imply duties that cannot be complied.

We ought not to test with the courts the functions which properly belong to the legislature or the Executive.

And this is what this statute does on any plain reading of its terms and it cannot be read otherwise.

It is the injunction which for the first time will create a duty.

It is interesting.

And when I queried the distinguished Assistant Attorney General in our trial in the District Court, and I asked him, “Is it your contention that the Steelworkers Union has violated any duty owing to anybody?”

The answer of the Assistant Attorney General was very plain.

Arthur J. Goldberg:

It’s in the record too.

And I agree with him, it’s 158 of the record that this union has not violated or been remiss in any legal duty.

Now there — this Court has — has considered this problem in many areas, Government cites good many cases.

I want to say a word about these cases.

I find that I am only troubled really by one.

Generally, cases cited by the Government are cases were first the Brinson case where the courts held that a — there was a duty under the law for witnesses to respond to a spree of the Interstate Commerce Commission.

That’s a judicial function based upon a prescribed duty.

Government cites Douds, the Labor Board case.

But there the statute defined the unfair labor practice and the Court has a right and the Court so held, not this Court but the Court of Appeals, that the Court could enter an order, a preliminary order, enjoining the unfair labor practice.

But that was prescribed by statute and there was a duty, a duty that you could have avoided that by not committing the unfair labor practice.

Government cites a case of eminent domain that all common law lawyers know that eminent domain was a common law right, well recognized in the law.

Frankly Your Honors, I am troubled by one case in this area, and that’s the Tudor case, a naturalization case.

And I could make an argument in this Court on Tudor saying that the statute sets forth some duties, which a person desiring naturalization must comply with.

But frankly as I read Judge Brandeis’s decision in that, Mr. Justice Brandeis’s decision in that case, I come to the conclusion in my own mind that that case is a sport, derived from the fact that this function has been performed by the federal courts in 1795.

And when you have a case of that character, special in character, I don’t think that that case ought to be extended to open the federal courts to functions which the federal courts should not, under the Constitution, perform.

And I — this leads me to a final observation of the statute.

And this has to do with matter that Mr. Justice Frankfurter you queried me about and said I would cover in detail later.

What is the judicial function involved in making the determinations which has to be made in this case if an injunction is to issue?

And on this record these are the determinations which a court of equity is required to make.

It will weaken our position in the cold war.

It seems to me that that’s a function for Congress and the President.

But you’re required to make that.

This was one of the arguments that the Government advances, which the court finds.

We will be in a bad way with our allies in the NATO alliance, that some undefined time in the future we’ll have so much unemployment that it will imperil the country.

These are findings that this Court is supposed to make.

It’s interesting to me that when we get into the question of whether we will jeopardize our relations with our allies and imperil — imperil the — our alliances, the one who makes that affidavit is not our Secretary of State but the Chairman of the Council of Economic Advisers, what his confidence in this — in this area, I’m at a loss to understand.

And then, you are asked, and the District Court is asked to make in an assessment of our defense situation in light of the steel structure.

Is our defense program going to be delayed?

Is that an assessment for this Court to make or the District Court, even assuming that we cross-examine witnesses?

There is no doubt in my mind and this is in further answer to the affidavit question.

Arthur J. Goldberg:

There is no doubt in my mind had we pressed that point, we would have been met with an argument of classified information.

That isn’t a speculation.

I was met with it in the American Locomotive case.

It seems to me these are not determinations for a court.

These are determinations that are properly made by a chief executive or by a congress or at most by an administrative agency.

And the Government it seems to me concedes much when trying to justify this type of procedure that says, but look at the Labor Board and the SEC and the Interstate Commerce Commission.

They all do this type of thing.

Well I‘d say to my distinguished friends, those are not courts.

Felix Frankfurter:

I suggest you’re — you’re conceding needlessly by saying these determinations could be made by an administrative board but when so made there certainly could be court review whether there’s any basis for making them.

Arthur J. Goldberg:

But on the basis of whether or not they have exceeded the law.

Felix Frankfurter:

But don’t you think the President of the United States and the highest officials in the land are equal to an administrative agency?

Arthur J. Goldberg:

If they proceed and the Congress empowers them to proceed as an administrative agency.

Congress did not.

Felix Frankfurter:

Well but the — the Interstate Commerce Commission makes orders on the basis of its opinion still before courts.

Arthur J. Goldberg:

Yes.

That’s what it goes before courts, your determination is whether or not they have exceeded the legal rules applicable to administrative agency.

Felix Frankfurter:

And two-thirds of your argument was precisely that, that there wasn’t a basis here.

Arthur J. Goldberg:

Well I have to — I have to make the argument.

I could not start out with a constitutional argument.

Felix Frankfurter:

I know.

I don’t mean that.

I mean your — your — two-thirds of your argument is the challenge, the foundation, on which review is sought because Congress directed it be sought in the Court.

Arthur J. Goldberg:

Yes, but only —

Felix Frankfurter:

And I see no difference between opinions expressed by the President and its cabinet officers and the opinions expressed by the ICC or the Federal Communications Commission.

Arthur J. Goldberg:

I — I — I see a great deal of difference because Congress described a method of procedure, finding, challenge the findings.

Here we do not have any of that.

Felix Frankfurter:

Here we have merely an expression of opinion by the head of a nation.

Arthur J. Goldberg:

And we have —

Felix Frankfurter:

And you think it’s equal to what the various administrative officials define for their head.

Arthur J. Goldberg:

And we have no findings by the —

Felix Frankfurter:

An expression of opinion, because the thing lies in the realm of opinion.

Arthur J. Goldberg:

We have the expression of opinion for which I have due deference but that does not —

Felix Frankfurter:

It has nothing to do with —

Arthur J. Goldberg:

That does not substitute for —

Felix Frankfurter:

This has nothing to do with deference if there’s merely the relevance of entrusting this expression of opinion in the one person presumably best qualified in the greatest responsibility in the land for making such an expression of opinion.

Arthur J. Goldberg:

Yes.

But — but the Congress wanted to act on that, that it is not natural to assume that they would have said return to work when the President expresses that opinion.

Felix Frankfurter:

But they didn’t want to do that.

They wanted — they wanted you to have a chance to go to the Court and challenge the basis of that.

Arthur J. Goldberg:

They wanted the Court to issue the injunction which is different in our opinion.

Felix Frankfurter:

If it was then applied.

Arthur J. Goldberg:

Now I would finally say this.

And that is that in our opinion, the statute has not been complied with.

In our opinion, the Government has not met the standard of proof required of it.

In our opinion, no union ought to be compelled to terminate the strike which for 80 days amounts in the equivalent to almost a permanent order in the history of labor injunctions on the basis that if evidence is fragmentary, as the Government has ought.

And while I say that we make one final observation upon the Government’s case.

And the Government’s supplemental brief for the first time trying to meet my argument that we have to open only a few plants based upon published material, the Government says it is reliably informed that we’d have to open the big companies in US Steel and Bethlehem.

Reliably informed by whom?

We’re not told.

And then from that, the Government proceeds to say that if that were so, which I doubt very much on the basis of the published material, these companies are not the prime companies that make this special type of steel which is custom-made.

Then on — on that basis, the Government says and this I find to be an astonishing statement, as though this is the function of the courts which in my way completely vitiates the notion of the courts are to act judicially.

They say if we have to reopen US Steel and Bethlehem, this would be unfair to the small employers in the industry.

What concern is that for the Government in this proceeding?

The collective bargaining situation in our dispute with these various companies is our concern and the industry’s concern and if there’s a public interest, as I know there is, that would be manifested according to a congressional definition of that interest.

Congress debated at length whether they would prohibit industry strikes, whether they would not, but the concept that the Government asserts that they shouldn’t do this, they shouldn’t open this plant or that plant because the collective bargaining situation would be impaired, there’s not a concept it seems to me properly addressed to this Court.

Mr. Chief Justice, I want to express my appreciation for presuming on your time in this length of time.

Earl Warren:

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

I would like to begin by saying that the Government accepts the statement by counsel of the chronology of events in this case and comments that it is very frank, open, and skillfully done.

This is a matter of great importance to the country, to the union, to management, and of course to our judicial system in this country.

J. Lee Rankin:

I should like to clarify the governmental position in regard to the Taft-Hartley Act to start with.

It is not the position of the Government that Congress had any intention to open up Norris-LaGuardia, wipe out that statute, and permit injunctions in the same manner as had occurred prior to that time in labor disputes.

We think if some of the arguments of the union were valid especially about whether this injunction would contribute to the settlement of the dispute.

If that was the measure, the Congress certainly should have made the statute broad enough to encompass all labor disputes, because that is the objective that we are all looking for in all of that.

We think that there has been a gloss imposed upon the area of labor disputes in this country that must be recognized by all parties and by the courts.

The Wagner Act and the Labor Management Act are all part of that, so that you cannot expect or think about returning to a condition prior to Norris-LaGuardia.

But the Labor Management Act did have a purpose.

And it was conceived by a Congress that was bedeviled by strike and labor disputes during the year 1946 that were unequalled in the history of this country except for the year 1919 right after the First World War.

And we must address ourselves in a consideration of this statute and what its meaning is and what Congress was trying to do for the country, not for management or labor either one of them, but for all the people of this country in this Act, in the light of the situation that existed then.

There were more men out of work than any other period during that year in the history of the country up to that date, and more work stoppages.

That is not entirely true as to work stoppages when you compare the labor force.

If you compare the labor force back in 1919, it was larger proportionately, the work stoppages.

But the actual number were larger in 1946 than anytime in the history of the country.

What happened during 1946? You recall that the end of hostilities was declared in December of that year.

And the Congress had to consider the effect upon all of the legislation that bore on the question of hostilities and whether or not it was effective with our hostilities continuing.

But they had strikes and labor disputes and very difficult ones to look at in determining what action should be — they should try to take in solving these problems.

There was a strike in the automobile industry.

There was a nationwide steel strike that year.

There was a strike of the bituminous coal mines.

And the Government seized those coal mines.

There was a railroad strike and the Government seized the carriers.

And then there was a strike after the seizure of the carriers.

The President addressed the joint session of the Congress asking that he’d be given some emergency legislation to help solve this situation.

I don’t mean any implication that this was his solution because you recall he vetoed this particular act, but he did ask for some affirmative help from the Congress in the form of emergency legislation to help solve this problem.

Great Lake Shipping was tied up by a strike.

The unlicensed maritime personnel went on strike and paralyzed shipments in every port in the country.

And the licensed personnel, as soon as the unlicensed came back to work, the licensed went off and held up shipping.

The bituminous coal industry was struck again after the Government took it over.

Then you recall the celebrated contempt action involving Mr. John L. Lewis and his union and the large judgment of damages, all of that occurred during this year.

And there were great variety of additional strikes during that year, too numerous to name.

J. Lee Rankin:

Now it’s against that background that we have to consider what the Congress was trying to do when it passed the statute.

In the first place it was very careful.

No one could read the history, let alone the statute itself, without observing that Congress was using great care not to open up the injunctive procedure generally in regard to labor disputes.

It was only in very limited area that they were going to permit it.

And you had to find that the strike or lock-out, it applies to both, affected either a substantial part, the two key elements, or the entire industry.

And then you have to find that the nation’s health and safety is imperilled.

Only in those events, not nation’s health or safety, only in those events can you get an injunction under this Act.

Now I say that the Congress was using great care as was evidenced throughout.

The history shows that the bill in the House was not accepted by the Congress.

It had a distinction which cuts several ways.

Now one of the distinctions was that the bill has finally passed, that was developed in the Senate largely under the direction of Senator Taft, was to encompass a much larger area of commerce.

I think the bill in the House could be said to have been covering very much communications, public utilities and special groups of national industries of that type.

But the bill in the Senate was to — provided that it would include businesses which were engaged in commerce or affected commerce.

On the light of the history of all that had happened up to 1946 from the 1930 on, it can hardly be assumed that the Congress didn’t know when it was changing language that way, that it could not appreciate the difference of the enlargement that it was providing in this change in the legislation.

Now we do not say that in construing Section 208 which is the key section of the statute, that you turn to Section 1 (b), the purpose that Congress recites, and that you try to read from that something into Section 208 that isn’t there.

All we’re trying to do, which we think is common and legitimate according to the decisions of this Court, is to look upon the purpose, as we cited there, which this Court has said in a preamble of an act, cannot affect or change the operative sections of the legislation.

For some guide, that might help us, if you have difficulty interpreting Section 208 from the language itself.

Then we have some difficulty with Section 1 (b).

It set — set out at the bottom of page 38 of our brief.

And there, the Congress that did carefully reject the words or interest or it says in this provision jeopardize the public health safety or interest.

In the final operative sections, the Congress has very carefully — careful not to accept that terminology of public safety, public health safety or interest as the measure, but it left in, in this section of the same act this provision.

Now the way we understand that, and the Government, is that the Congress in the operative words was trying to make clear that the national health and safety or safety was what governed, but that as between these two expressions, they did not carry it over into this Section.

And if you assume that the Congress was intending to carry it over and this therefore should read the national safety or health.

Nevertheless, it does furnish guidance to anyone examining the statute as to what Congress was trying to say in this Act and its passage.

And there you will note that the Congress expresses what it thinks about people’s rights in this area.

It is trying to make very plain that it does respect, and it’s obvious from the debates that it did, the right to strike.

That is a part of the American system.

We regard it as a — an important and precious right of our people.

And the right of lock-out is also a right of management that the Congress respected as a part of our free system.

But after they recognized that carefully and thoroughly, they then say, “Nobody has a right to do this to the American people if it’s going to imperil.”

J. Lee Rankin:

So they say, above all, neither party, that’s management and labor or either one, has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety or interest.

Now if they really meant and I don’t think that’s the proper reading of it in view of what they did about national safety and health, or health in the other part, I think it properly should read as the change they made otherwise as to the national health or safety.

But either way you read it, it’s a very strong expression by the Congress that no one has a right to jeopardize the people generally, their rights by their acts.

Now they don’t say all other rights or the general welfare anything like that.

We have to restrict it more than that.

But they do say the national health or safety.

Now it’s quite impossible for me on behalf of the Government to understand how national safety can be recognized as the safety of a nation, and then you’re going to take that word national and when you apply it to health you mean something else.

How Congress could have any such conception and how our reasonable minds can arrive at such a conclusion is very difficult for me to conceive because it’s just one phrase, it’s the same — it’s tied together right there and if you’re going to deal with health, as you would safety as involving the whole nation and its safety, that certainly, it seems to me, would have to do the same with regard to health.

William O. Douglas:

And if that is so, you’re going to restrict the rule, the national health might be involved in such thing says the steel has served in processing of food, steel has served for the processing of milk, it is necessary for the production of surgical instruments in hospitals.

J. Lee Rankin:

I think —

William O. Douglas:

That doesn’t quite answer you.

What you said doesn’t quite answer the petitioner, I don’t believe.

J. Lee Rankin:

Well I think that that is a restrictive application that the Government is not willing to go along with — if the — because it seems that if you’re going to do that you have to assume that it means biological health or the health of the —

William O. Douglas:

It does mean physical well-being.

J. Lee Rankin:

— of the individuals as distinguished from the nation.

Now the nation has a health too just like it has a question of safety, and the difficulty they have with saying that the safety of the nation does not involve the defense of the nation is that they can’t find any other application that could be reasonably pointed to.

And that’s true, but the — the health of the nation or the national health, the Government contend is much more than the health of the individuals.

William O. Douglas:

But of course you’re up against this, Mr. Solicitor General, that the history of this law, you had a — some contraction of the standard by the time they started the House and ended in the Congress from health, safety and public interest to health and safety.

J. Lee Rankin:

Yes.

Now if it was public interest, the Government would concede that that is even larger concept than public health, than the national health.

And that it involves other elements that might not be involved in economic well-being or even imperiling the economic life or development of the country.

William O. Douglas:

It would be pretty hard to imagine anything that would be broader than economic well-being.

J. Lee Rankin:

Well I think that you — if you took the general interest of the country, you’d have almost any factor that there could be that could be adversely affected, it could affect the country adversely.

William O. Douglas:

But the way that strikes affect that it seems to me to be generally in the context of economic well-being.

J. Lee Rankin:

Well —

William O. Douglas:

Health and safety and things like that.

J. Lee Rankin:

That– that is a factor.

It also generally affects the health of the country in its ability to conduct its various activities domestically and otherwise and it also often depending upon how long it continues, affects the health of the people generally and sometimes far beyond the people that are involved in the strike itself.

Now we think that there was nothing to indicate in the legislative history from the language itself that would limit it to such a narrow concept.

William O. Douglas:

That’s maybe not but I was wondering if — as — as I read the legislative history yesterday in preparation for this argument whether, what you said in the beginning wasn’t the — the real true setting for this whole legislation, namely, the United Mine Workers case and the coal strike and the —

J. Lee Rankin:

And the steel strike too.

William O. Douglas:

— the imminence of the shutdown of the supplies of fuel are certainly tremendously important to the health, to the health of people because it worked with the houses and your hospitals and the schools and so on.

J. Lee Rankin:

Well, that is quite effect during steel too.

Now I think that the difference might be shown by a strike in the automobile industry which would be more remote as far as having a direct effect upon the whole economy and the ability of the country to national health or to maintain itself.

It takes longer for a strike in the automobile industry and it’s secondary in its effect upon the ability of people to maintain themselves and the country to maintain itself and so forth.

Even though you have the same number of workers but in the steel industry, that’s a basic commodity which — the production of which is equal to all other metals in this country.

And when you shut that down, there are many industries which are well able to continue except for that particular product.

There’s no strike in that particular industry and there’s disposition on the part of both management and labor to go ahead and do business, but they just can’t because they don’t have the commodity.

Now that is another factor that was very serious, of course, this Youngstown case that the Court is well familiar with and other occasions during our history and the effect upon the conduct of the nation’s business.

And it’s — it’s the activity of its labor.

William J. Brennan, Jr.:

Mr. Solicitor, you might have turned the inference from your argument that the Congress had no distinction in mind between national health on the one hand and national safety on the other?

J. Lee Rankin:

Oh no.

It very definitely had in mind a — the national safety would be — involve the ability of the country to conduct its defense and be able to satisfy its commitments to its allies and its various international associations that it had throughout the world and (Inaudible) and so forth.

William J. Brennan, Jr.:

So that in that situation, an injunction might go under the statute even though the Government couldn’t prove the impairment of the national health in the sense that you’ve been discussing.

J. Lee Rankin:

Oh yes.

The Congress had clearly conceived, as we read it, that if either one was satisfied that was enough for the injunction and we think it’s clear under the evidence in this case that the defense of the country is imperiled.

Potter Stewart:

Well if you’re right about that, we don’t have to reach the (Voice Overlap)

J. Lee Rankin:

We don’t have to reach the more difficult one.

I just want to make it clear that the Government did not conceive the limited position that was contended for by counsel.

Potter Stewart:

Is that — is there any help to be found in the use of the phrase, “national health and other statutes enacted by Congress?”

J. Lee Rankin:

Well generally, the Congress uses the words public health when it applies to the area of the biological health of the people of the country.

But I don’t think that you can rely on that completely in view of the fact that this started out with the word public health, safety or interest and then changed over to national.

Potter Stewart:

Is national health a — a unique phrase so far as the contemporary enactment of — enactments of Congress go?

J. Lee Rankin:

I don’t know of any other but I haven’t made that kind of a search.

I made a brief search through the indexes generally and found they usually treated it under public health when they’re dealing with the —

William O. Douglas:

But in the preamble of this very act, there’s public health, safety, or interest, isn’t it?

J. Lee Rankin:

Yes, Mr. Justice, I just was trying to clarify that it started out that way in the House and carries over into the preamble.

Now if you make the most extreme argument on behalf of the Government, you’d say, well there is the Congress still kept it, but I think their intention really was to make it national health and — or safety like they did in the —

Felix Frankfurter:

(Inaudible) do I much deduce from that with health than Congress offered in interest.

J. Lee Rankin:

That’s — that’s right.

J. Lee Rankin:

But I think that we have to turn to Section 208 for our real force.

William J. Brennan, Jr.:

But then preamble covered more by titles, didn’t it?

J. Lee Rankin:

That’s right.

But this was, we think, applied to jeopardizing this particular area and that that was the emergency area that they were considering when they spoke about the right to jeopardize.

Now there’s the reliance by the union considerably upon statements of congressmen, then Congressman, Kennedy in the House, now Senator in regard to the kind of strike that he was trying to give refernce and provide for and his statement was, “Some method must be worked out to deal with strikes which crippled the nation’s industrial power”, and that is not quoted by counsel but we think that that shows his appreciation of what the Congress was trying to deal with.

He even went farther than this Act and that he thought that the injunction should be permanent in form and so recommended in his minority report.

But he did think where they were of national strikes that that’s what should be reached and he was trying to reach in this legislation even though he presented the minority report.

Now in regard to the evidence in this case, it was tried, as counsel said on affidavits and that is a different form than we often have, but it was by agreement of parties limited to that, and so I don’t see how that contributes much, except that it seems to me that the lower courts did comment properly upon that evidence when they said that these people who were giving the evidence on behalf of the Government were charged with important responsibilities in the areas in which they purport to speak.

And each of them, the Secretary of Commerce, when he was talking about this, had the responsibility not only of dealing with the question of the state of the nation’s economy and — and its business activity and all of those things, but the Department of Commerce has also the defense allocations division and it is a part of its responsibilities to try to find out and determine when the defense requirements of the country are being met and if they are not being met, how that can be done by allocations.

Now some of the arguments presented by counsel here, we do not think were properly presented or even developed at all before the lower courts.

And this question of abuse of discretion, we do not find at any place as in the manner counsel is now presenting it.

If you note the request for —

Hugo L. Black:

Do you think that they — they decided on the basis of (Inaudible)?

J. Lee Rankin:

No.

I — but it does, Mr. Justice Black, deal with my problem of trying to meet it here adequately for you.

That’s all that I want to call it to your attention for.

I think this matter of great importance and this Court should have all that we can contribute toward it.

But when the question is raised here for the first time, it does make it difficult for me to marshall all of the facts that I would otherwise have for you, and I tried to do it, and I’ll — I’ll call attention to them later.

But on page 215, in the finding that was requested by counsel for the union, you’ll notice that he did not say, did not ask the Court to find that it had discretion to deny the injunction if it found that there were some plants that could be opened.

In that course, they took the position that the only way that any plants could be opened would be just to produce defense materials and we met that squarely by showing how impossible and impractical it was to try to do anything like that.

You can’t open the steel mill and run out a little batch of this and then close down and start up another batch and run out another little batch of that and they recognize that.

They didn’t meet that.

Felix Frankfurter:

Where did you — where did you —

J. Lee Rankin:

That was in —

Felix Frankfurter:

— you sought to meet that?

J. Lee Rankin:

Mr. — Dr. (Inaudible) affidavit, and showed that how it just was an impossible thing to do.

Now they come up with the idea, well we — you don’t have to limit them that way, you can open them up for all purposes and run them just for civilian purposes, or defense.

Now that’s entirely a different problem and I’ve tried to seek out in the Government in response to the people in regard to the allocation of materials and knowledge in this field but it could be done in there.

And I’ll develop that for you too but I want to call attention to the fact that the — this question was not developed in the way counsel suggests —

William O. Douglas:

But I suppose we should read the officials of both (Inaudible) particularized finding of that.

William O. Douglas:

I see on the paragraph 11 on page 214 of the petitioner’s brief as to what’s the reason for national defense which (Inaudible) that particular situation.

J. Lee Rankin:

Well I think there was — maybe it’s in 11, the suggestion that they should take defense into consideration alone.

My argument all the way through in the District Court and in the Court of Appeals in that regard was that the Court had no jurisdiction to issue injunction at all if they could open few plants for defense purposes only, rather than that the Court had that discretion.

Now this is a change of approach, but I don’t think that the conclusion on page 215 and number 2 is any fair request to a court to exercise its discretion to determine that steel plants could opened for defense purposes alone or for defense purposes and civilian purposes too when they tie up as they did.

Felix Frankfurter:

Mr. Solicitor, the (Inaudible) under the Goldberg’s argument reaches beyond this immediate problem, and I think undercuts the step you are now making that they didn’t raise it, the claim for through which by petition, that the burden is on the Government to show what particularity and detail, what is necessary to secure the supply that are needed for security purposes or safety purposes in view of the fact, if it’d be a fact, that the steel, the quantity of steel needed by the Government, those will be sure for crucial purposes, is mathematically appointed that it be a small fraction of the total steel production of the country.

J. Lee Rankin:

Well, the difficulty with that assertion —

Felix Frankfurter:

And that is — that is the argument, isn’t it? If that is right, you must affirmatively show what is needed not only from — with respective plant but — but the units within the respective plants, and that was not made out, was it?

J. Lee Rankin:

Well it — it was in some cases but not as to particular plants.

Now, but the proof was there that as to certain top priority and crucial programs, the steel wasn’t available from any of the plants that were open, and that it was impracticable and uneconomic and unreasonable.

Felix Frankfurter:

Is that also end up (Inaudible) as the affidavit?

J. Lee Rankin:

Yes, the latter.

The detail of the effect on each of the particular defense projects was given by the deputy manager of the — the manager of the Atomic Energy Commission and each of ones that had charge — the space agency and the acting secretary of defense telling in detail just various things that were necessary and what programs affected?

Felix Frankfurter:

And that it was not securable from the unstruck plant?

J. Lee Rankin:

That’s right as there wasn’t any question about that.

Felix Frankfurter:

And who is this, is that in the Secretary Gates, is that —

J. Lee Rankin:

It was Secretary Gates and in — in the manager — general manager of the Atomic Energy and head of the defense — deputy head of the defense of the space agency.

Each one going in with particularity to the fact that the Mercury program, the manned satellite and the bigger program of the special large satellite and the Polarus submarines and the — the various control devices and much of the research program and the fact that some of the satellite — of the missile program was all — they couldn’t get the supplies they needed and they had to close down and was already closed down in several places and that four more would be closed down in very short time.

That is explicitly stated and that it wasn’t available from many other source.

Then the suggestion was made and that was all that it’d be made, provided from some of the plants that were struck, that limited to defense alone and that was meant by Dr. (Inaudible) affidavit that this just couldn’t be done.

Now, in this Court for the first time, we are met with claim, well open them up for all purposes the struck mills.

It couldn’t be done from the others.

Now, it’s been suggested by counsel that the Government had no program of allocation under the defense production act that was in effect during this period and that they were Johnny-come-latelies about applying it on October 16th.

That is not true.

The fact is that the defense allocations administration have been in cooperation with the defense department.

Anyone who’s worked with the military procurement knows it’s a complicated operation.

There are certain steel mills that are qualified.

And all the mills know how to become qualified for producing steel that will satisfy the defense contracts.

And the Government over long experience has tried to set up that system because they have found that steel is often times not in accordance with the requirements.

We have much case history about the fact that during some of our military operations, the steel was not what it was supposed to and we’ve had difficulties because of that.

If they don’t require a some kind of a standard about the steel that goes into it and qualify suppliers on that kind of a basis, then the manufacturers that use that have difficulty with the quality of it and their product is rejected and they say, “Well, why don’t you either qualify them or why didn’t you do this and why do you cause us all of these expenses and so forth.”

J. Lee Rankin:

So anybody could find out.

It’s part of the public record that they have qualified suppliers for these various activities and have had them under regulations under the allocations administration, under the Defense Production Act.

And those were, in effect, at all times up to the very moment of this action in the District Court and their efforts.

Now what happens?

They have a certificate that’s put upon the invoice by authority of the Defense Department and the allocations administration.

And that says to the supplier of steel, anybody they want to go to is a qualified supplier that this particular defense manufacturer for the Government is qualified as with certain priority and is entitled to get the steel.

Now that system was working on everyone of the open plants in the country, and the defense allocations administration had known not a single time that there was any indication from the Defense Department upon inquiry daily between the two, that any of the items that the — the Defense Department needs and threaten the security of this country could be obtained from the plants at all.

Felix Frankfurter:

Have we not from one plant?

J. Lee Rankin:

Not from a single one.

That was not being taken care of by that system.

Now the — they were supplying some defense materials but there was this part that is not supplied that can’t be taken care of.

Some of it they were just not able to do at all because of special kinds of steels, some of it — and in quantities they were not able to do, some of them are not — apparently not either able, ready or willing to do.

And so there is some that they are furnishing in regard to defense contract of this position to the Government that you can’t take out the defense needs of the country and say, “This part will do without“ or in such litigation as this have the union say, “Well you don’t really need any shells today, you just forget about that” or “You don’t need any rifles or some other kinds of units.”

The defense operation has to got to be one that is followed in accordance with the directions of the Congress in procurement and in trying to establish a balanced defense program.

Now someone could determine that — we don’t need to have to replace our planes for sac as greatly as we did before we had missiles.

And on the other hand someone, the President or the commander-in-chief, has got to decide, well, we better well maintain the sac until we’ve got the missiles in such shape that we’re sure they’ll take their place.

And so it’s under that whole complex of defense need that we try to present the facts to the Court as — as to the safety of the country.

Felix Frankfurter:

Let me see if I understand this.

I understand that there is something less than about 20% or less that are open plants, something like that.

J. Lee Rankin:

That’s right.

That’s less than.

Felix Frankfurter:

And — less than — that there is the system, the terms of which or the — the details of which are open to public scrutiny, available to public knowledge of the suppliers for what the various officials who put in their affidavit and given their affidavit say, are needed for safety purposes for various etcetera, etcetera.

Do I understand you to —

J. Lee Rankin:

No.

I can’t say that latter because I want to explain that.

Felix Frankfurter:

But they do say that (Inaudible) do not these affidavits to let themselves to the need of having the necessary means of carrying out those safe — those security programs?

J. Lee Rankin:

Yes.

And the — a system was in effect so that these invoices were provided and the invoices were presented and did not get the commodity.

Now there is the assumption that the manufacturer who is producing defense materials would try to get the materials from one of these suppliers in order to keep his plant open and still operate, but we think that was a fair assumption that the Government could make.

Felix Frankfurter:

That what you said earlier, at least I understood you to say that none of the plants, none of the open plants, supplied the materials or were available for the materials which the Secretary of Defense and the general manager of Atomic Energy Commission, etcetera, etcetera, gave as the reasons why the national safety was involved.

Felix Frankfurter:

Is that correct?

J. Lee Rankin:

That’s true as to well these particular materials.

Yes.

Felix Frankfurter:

Yes.

Earl Warren:

We’ll recess now.