United Steelworkers of America v. United States

PETITIONER:United Steelworkers of America
RESPONDENT:United States
LOCATION:Bonneville Dam

DOCKET NO.: 504
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 361 US 39 (1959)
ARGUED: Nov 03, 1959
DECIDED: Nov 07, 1959

Facts of the case

Question

  • Oral Argument – November 03, 1959 (Part 1)
  • Audio Transcription for Oral Argument – November 03, 1959 (Part 1) in 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

    J. Lee Rankin:

    — to answer a question for Mr. Justice Frankfurter and I was trying to describe a little bit of the problem in regard to trying to furnish to you on whether or not plans that are not struck could furnish it.

    I think one of the difficulties in regard to the affidavits in this case is that the union’s affidavits very largely treat steel as though it was a fungible commodity.

    It is of course when you deal with the ingots but when you get beyond that, you have so many and very great problems.

    There are so many shapes and forms and sizes, thousands of them.

    And then you’ve also get into qualities of various kinds of stainless cobalt and alloys, some 35 different alloys that to try to assume that just because a supplier either a plant — steel plant as they call it or a warehouse had any such material that you needed for defense contract just because they had a thousand tons of items that were steel is an impossible assumption.

    When the contractors are seeking a particular commodity, they need something that will fit the design but they’re given by the defense department and it isn’t the right shape or form, if that’s the problem of course, it’s of no value.

    One of the problems we have now, with a large inventory which is not bound completely it’s around seven million tons from about almost 25 that it was at the beginning of the strike and it’s going down at some five million a month, it’s the figure that is given.

    Even with that, there are many items that contractors are unable to find that will fit with the things that they have in supply.

    And it’s of course useless to try to have just a half a car or a railroad wheel when you need axle to go with it or other parts of the steel product that you’re trying to develop.

    So that has to be kept in mind in examining this question.

    Now, there are also are steel suppliers who are qualified by the defense department.

    And anybody that wants to come forward and qualify for these various — the supply steel is very welcome.

    And they have had all kinds of procedure in regards to that.

    And they so certify it when they are qualified.

    Now, many of these cases, some steel plant will come forward and say, “We’d like to qualify.”

    And it maybe as much as six — as six or eight months before they demonstrate their ability to produce the quality of steel that the defense department contract requires.

    So that — that is one of the problems.

    It was some of the mills that are not struck at the present time.

    Another problem is that many of those mills have got all the business and that they can handle in the form of defense contracts they’re now supplying their ability to take care of defense contracts.

    The — and then there — the special items that I referred to in regard to missile and the other top priority programs that none of the mills that are struck can supply.

    So, in dealing with that problem, I just wanted to demonstrate the fact that there was in effect, in accordance with public regulations, a system that was taking out of the unstruck mills everything that would contribute to the defense effort without any further order on October 16th.

    Now, on October 16th at least say in our brief a counsel referred to.

    We did, the Government did through the allocation administration put out this order to take care of the mills if a settlement was reached or if the injunction or when the injunction became effective to terminate the strike.

    At that time, there would be a considerable problem in the whole industry of the plants that had been struck.

    The problem would be whether hardly it would deal with this top priority items that had accumulated during the time of the strike.

    And the order expressly provides that they shall have a little leeway to try to meet these requirements for defense.

    Instead of having to — prepare a batch for a particular defense item and if they have another item that’s top priority too, then they close down the whole works instead of finishing that batch out and make the next one which would become so economic — uneconomic, that the Government would have to pay tremendous prices for steel that — within a very limited time in the ordinary course of doing business could be produced at reasonable prices.

    Potter Stewart:

    Mr. Solicitor General, apart from this argument you’re now making the —

    J. Lee Rankin:

    Yes.

    Potter Stewart:

    — steel is fungible —

    J. Lee Rankin:

    Yes.

    Potter Stewart:

    — product and this other practical problem that you’re telling us about.

    Do you accept the figure that I understand the counsel for the union has given us that the total defense need in terms of tonnage is around 1% of the total capacity of steel, 1% or 140 million tons whatever it is?

    J. Lee Rankin:

    Well, I don’t think that figure is accurate but it isn’t — I don’t believe much more than 2% with — according with the Government affidavits.

    Potter Stewart:

    And how is the — how is defense needs — how does that define when you’re talking about 1% or 2%?

    J. Lee Rankin:

    Well, in our ,figure we’re trying to define the actual demands, that is for defense contract.

    Potter Stewart:

    By the Government itself?

    J. Lee Rankin:

    That’s right.

    Potter Stewart:

    By — by —

    J. Lee Rankin:

    That’s right.

    Potter Stewart:

    — by contractors with direct contracts to the Government itself —

    J. Lee Rankin:

    Yes.

    Now, there is —

    Potter Stewart:

    — to make — to make ordinance?

    J. Lee Rankin:

    Yes.

    There is a factor of replacement of plant and all of those elements that is not in that figure, as I understand it.

    That as each defense contractor has to put in new machine tools from time to time, replace his rolling — his rollers and another things in the plants and that requires steel.

    And that is not enough to figure but that would not be a large sum.

    Now, the reason that the figure is not as large as a — was before is because of the change in the whole defense program that’s involved in the change from World War II to our present plant.

    While it’s — it’s a very substantial amount, it’s more crucial in special items than ever before.

    One example is in regard to missile program, the skin for the missile is of the special stainless steel to resist the conditions of the atmosphere.

    And that has to be rolled out by some of the leading mills between two sheets of other steel in order to make this steel skin otherwise it wouldn’t hold together during the rolling process.

    That’s part of the problem and then the whole research and development program is also involved in all kinds of special new items that our — our industry is adopting as rapidly as it can but only a few had been able to qualified to do it.

    And it’s — you just can’t accept inferior product in the process.

    And —

    Felix Frankfurter:

    Did I understand you to say that the list of qualified suppliers is a matter of public or susceptible of public knowledge?

    J. Lee Rankin:

    I’m not sure about that, Mr. Justice Frankfurter.

    Felix Frankfurter:

    But you did say something about its (Inaudible), its public body.

    J. Lee Rankin:

    The — the regulations are open.

    Felix Frankfurter:

    Regulation.

    J. Lee Rankin:

    And — and any supplier that wants to come and qualify is free to do it.

    And every — we assume — that is allocation assumes that any manufacturers, the things any possible supplier that still not struck has got a piece of steel that he can get to keep his place open, he will do it.

    And that’s the theory back of the allocations and that the system that was working part of the October 16th date would pick up any steel if there was that could possibly supply these contracts.

    Felix Frankfurter:

    I suppose the — to qualify — one (Inaudible) suppliers qualify, he would have to ascertain who the Government contractors are to some of these weapons or products, and I suppose that is not matter of public.

    J. Lee Rankin:

    Well, the Defense Department tells it very promptly if any supplier that’s qualified is willing — has any capacity or willing to do any business, they put that out immediately to anybody that indicates a need.

    And —

    Felix Frankfurter:

    But — but the supplier would then know to whom — to what Government contractor he is furnishing his materials or his quality of kind of steel, wouldn’t he?

    J. Lee Rankin:

    Yes or who is seeking it.

    Felix Frankfurter:

    Who — who is seeking it and I — I don’t suppose that matter of public notarizing, is it?

    J. Lee Rankin:

    That —

    Felix Frankfurter:

    Who — who the government contractors are, is it?

    J. Lee Rankin:

    No.

    The — the knowledge is what — to whom by the Government itself to the contractors but the (Voice Overlap) —

    Felix Frankfurter:

    They didn’t know to whom to go for their need of — of steel.

    J. Lee Rankin:

    That’s right.

    If there’s any capacity that’s — the Government knows of, that’s open.

    They notify them immediately so that they can try to supply the Government contract.

    That’s the system, and that was in operation.

    The problem about their information not available is how many contracts we have outstanding in the ghost amount and the shapes and sizes and so that anybody could put together exactly what the detail of our defense program was.

    Felix Frankfurter:

    But you are quite unqualified and say that no open mill or plant whatever the public term is, is available for the need of this top priority the Government needs, is that right?

    J. Lee Rankin:

    If you’ll add to that, that isn’t being used for — the needs that are outstanding that aren’t supplied.

    They’re — that’s true.

    Now, some of our supplying needs and we’re not figuring that in the amount that puts us in jeopardy or in parallel —

    Felix Frankfurter:

    Suppose the need couldn’t be met from this open non-supplier?

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    (Voice Overlap) opened non-suppliers?

    J. Lee Rankin:

    That’s right.

    Now, the detail of that, as I said, was not in the record because this particular issue was never brought out.

    It was that — you open uneconomic defense plants and so forth.

    But I did make the inquires so I could tell the Court what the fact or situation was.

    J. Lee Rankin:

    And it would require in order to take care of the needs.

    Now, some — you will take seven plants for general means that would have to be open with some 75,000 employees.

    And in addition to that, there would be or included within that, would be the special needs for special steels with alloys and so forth.

    Then if you take into consideration the containers that they recognized would be and referred to as involving health, that is all kinds of food containers which is in very short supplied the present time and would or badly needed to meet the crop needs right after the first of the year and so forth.

    And under the system in the industry, they build up an inventory to take care of the times when they are packing and so forth and to be able to have a big supply on hand.

    To take care of that, would involve another about 160,000 employees in mill.

    And then you had two that the cindering and the quarrying employees and the oil producing employees that are integrated in this — these operations and so forth, you got another 60,000 employees.

    So, I was advised by the Commerce Department the allocation to study this thing all the time.

    That it would take that many of the steel plants plus the — the seven — the seven that I referred to, to take care of just defense needs plus nine additional to take care of these containers that they recognized as a matter of public health or practically around to have of the entire force that’s out just to take care of those two problems in the industry.

    And they carefully assessed that in order to try to advise what the situation is.

    General, could I ask you a question?

    Am I correct in my understanding your argument on safety that you accept the premise that safety refers to the military safety?

    J. Lee Rankin:

    Well, we — we say that —

    We’ve been talking hear all about defense, your arguments entirely predicated on defense and I wonder if I understood you correctly that that was the premise in which you regarded the reach of the word “safety”.

    J. Lee Rankin:

    We feel that if that is found to be imperil that it clearly satisfies the remote — most remote requirements in the statute, that we think that the statute require — provides that for other elements has to safety.

    But that if you find the defense of the country is imperil that safety means at least the very least.

    You don’t limit the content of the statutes to that.

    J. Lee Rankin:

    No.

    We think that other elements of —

    I misunderstood your argument.

    J. Lee Rankin:

    — other elements in the economy because we think that we have a definite problem of replacement involved in safety in our entire transportation system.

    For instance, they — I’m advised that some 60% of our transportation system has to be replaced almost regularly that 60% of the steel that’s used in transportation equipment so forth is for replacement purposes.

    Felix Frankfurter:

    Annually?

    J. Lee Rankin:

    No.

    60% of the amount.

    Felix Frankfurter:

    I mean right now.

    J. Lee Rankin:

    Yes, each year, 60% of the amount that’s used is for the purpose of replacement of present equipment.

    Felix Frankfurter:

    But — 60% of what?

    Of what (Voice Overlap) —

    J. Lee Rankin:

    Of the amount of steel that used in — in making transportation equipment.

    Felix Frankfurter:

    All right.

    I understand.

    William J. Brennan, Jr.:

    Mr. Solicitor General, so far as this case is concern on this record, safety deals only with military hardware, doesn’t it?

    J. Lee Rankin:

    Well, there is a showing in regard as I described —

    William J. Brennan, Jr.:

    In the finding?

    J. Lee Rankin:

    In — no.

    William J. Brennan, Jr.:

    I mean, the findings before us —

    J. Lee Rankin:

    Yes.

    William J. Brennan, Jr.:

    — on the issue of national safety deal only with military hardware, don’t (Voice Overlap) —

    J. Lee Rankin:

    That’s right, Mr. Justice.

    William J. Brennan, Jr.:

    And there’s no other findings to which we could — with which we could deal on a boarder interpretation of safety.

    J. Lee Rankin:

    I don’t think so.

    William O. Douglas:

    What was your answer?

    J. Lee Rankin:

    I don’t think so.

    Hugo L. Black:

    What are the limitations on those — except in your means in those two words?

    What part the limitation for the issuance of an injunction?

    J. Lee Rankin:

    Well, the Government does not take the position that the issuance of the injunction has to be automatic.

    But it does take the position that if the national health or safety is found to be imperil that the — the injunction should be issued unless there was something that would so appeal to the equity or judgement of the Court that’d be overwhelming against that strong refinement because, by its very nature, as defined by the Congress, the imperilling would have to be something that is recognized to do great damage to the country by definition.

    And any other factors that could be considered would be — they are hard to imagine even that could overcome a finding of that type.

    William J. Brennan, Jr.:

    And you conceive that something is —

    J. Lee Rankin:

    I — I haven’t been able to.

    I was trying to in my —

    William J. Brennan, Jr.:

    That should be says that there is a narrow area of discretion you don’t tell us to cover what.

    J. Lee Rankin:

    Well, the difficulty we have with that, Mr. Justice, is that we don’t like to say that an equity court has no discretion by definition.

    William J. Brennan, Jr.:

    This because you suggest if you did, there might be a constitutional infirmity?

    J. Lee Rankin:

    No.

    Equity could sit in equity.

    Felix Frankfurter:

    Is it because you’re thinking — you don’t say that there might be?

    There might be [Laughter] there would be.

    J. Lee Rankin:

    No.

    J. Lee Rankin:

    I — I didn’t approach it that way.

    I thought that the — the Government that — in an equity court, it was traditionally set in federal system in determining the equities in regard to the parties and that here they would have to in trying to do that would have to take into account what the Congress had said.

    And when the Congress dealt with anything as important as imperilling the health and safety of the country, it would have to be something remarkable that we’re —

    William J. Brennan, Jr.:

    But you’re conceding then that Congress intended would not stand in the finding of the national health and safety as a peril.

    But nevertheless, the decision whether or not to allow an injunction, is that it?

    Within somebody at least to a — to judicial discussion.

    J. Lee Rankin:

    Well, I think — I —

    William J. Brennan, Jr.:

    Where in — where in the (Inaudible) legislative history you would find it?

    J. Lee Rankin:

    There isn’t anything like that in the legislative history.

    I —

    William J. Brennan, Jr.:

    You’re telling out then the same way that Mr. Goldberg did out of — in the grant of jurisdiction or the language granted in this —

    J. Lee Rankin:

    No, because we don’t come to anything like the broad discretion that he tries to claim for the statute.

    William J. Brennan, Jr.:

    Even if the finding is a narrow discussion.

    J. Lee Rankin:

    Well, I was — I have a case that may have straight what I was thinking that I developed in the office.

    And perhaps the question is consistent to you in your position (Inaudible)–

    J. Lee Rankin:

    [Laughs]

    Well, that’s — that’s involved but the case I was thinking of in the or described in the office was where it was indicated to the Court that although all the proof was clear that the national health and safety was imperil.

    At the moment, both parties agreed that if they were given until tomorrow, they would settle the strike.

    And I didn’t think that a court of equity even — in light of the statute would issue the injunction or that this Court would find it was error if it failed to in that circumstance.

    That’s the best I can —

    William J. Brennan, Jr.:

    It — I think it just postponed it.

    Charles E. Whittaker:

    Why —

    J. Lee Rankin:

    Probably.

    Charles E. Whittaker:

    Would that — would that involve the exercise of a discretion to deny an injunction or merely to differ it?

    J. Lee Rankin:

    My colleagues didn’t think it was a very good example.

    [Laughter]

    Felix Frankfurter:

    The truth of the matter is that you — even the truth of the matter is that you’re leaving for an escalator but can’t possibly design them.

    J. Lee Rankin:

    Well, I haven’t designed one, I’ll confess.

    Felix Frankfurter:

    Then why do you have to bother about leaving room for one?

    J. Lee Rankin:

    Well, I don’t —

    Felix Frankfurter:

    (Voice Overlap) design one.

    J. Lee Rankin:

    I don’t —

    Felix Frankfurter:

    (Voice Overlap) to be able to design what he thinks is appropriate.

    J. Lee Rankin:

    Well, I haven’t been able to, I confess.

    Potter Stewart:

    In what connection was the statement of the — in the Government’s brief in the other case made that that — was it just — just gratuitous or did it have some relevance in that case?

    The statement as to — as to discretion of this (Inaudible).

    J. Lee Rankin:

    I think that the government counsel — well, I’m — I just wouldn’t want to try to supply that.

    Potter Stewart:

    It could have been restricted anyway.

    J. Lee Rankin:

    [Laughs]

    Felix Frankfurter:

    Make intellectual estoppel apply?

    J. Lee Rankin:

    Well, I — I don’t like to disassociate myself in prior administrations.

    I think they’re continuous as far as the Government is concern.

    Hugo L. Black:

    If — if you are right on the meaning of the health as including not merely physical health but economic disruption, if you are right with reference to safety as including not merely national defense but economic disruption and various kinds, what other limitations in this field which the Court would have to refer in connection with issuing an injunction?

    J. Lee Rankin:

    Well, it would have to satisfy itself as to the peril.

    Hugo L. Black:

    Peril.

    J. Lee Rankin:

    There is considerable involved in that.

    Hugo L. Black:

    Peril for what?

    J. Lee Rankin:

    The imperiling —

    Hugo L. Black:

    Peril to what?

    J. Lee Rankin:

    To the national and safety —

    Hugo L. Black:

    Yes but —

    J. Lee Rankin:

    — foreign.

    Hugo L. Black:

    — if national health and safety means health of the people like the milk side or food side or something of that kind, it also means to all economic disruption which had made.

    And the national safety needs national defense and also all economic disruptions we might have been.

    What would be the limitations on and what would the Court have to sign?

    What would be the maximum that he had to sign in order to — if he doesn’t make (Inaudible) in order to get injunction.

    J. Lee Rankin:

    Well, Mr. Justice Black, I — I meant in answering you’re question about imperiling that I thought that there were gradations of effect on the various elements that you mention.

    And that the Court could find that there was not an imperiling if there is certain gradations, even though he would be satisfied that there was an effect.

    Hugo L. Black:

    But your illustration with the reference to the automobile industry, the economic disruption is sufficient.

    I see no reason for drawing the slightest distinction between the fact in the automobile field just like any other field.

    Hugo L. Black:

    It doesn’t — if you’re not — not limited to some kind of health under national defense merely economic eruption, why wouldn’t the public be heard, why wouldn’t it be terrible for the national health that you’re speaking of, you don’t use an understatement.

    To have a general strike of automobile though (Inaudible) stop the production and distribution of automobiles.

    J. Lee Rankin:

    Well, in my own thinking, there is a substantial difference between a general strike in the automobile industry and in the steel industry because the automobile industry is one in which they’re — they’re producing certain equipment but steel is used for the production of that equipment along with —

    Hugo L. Black:

    That —

    J. Lee Rankin:

    — a — merely of other items.

    Hugo L. Black:

    Well, that it have to close up the steel mill though as it bring about equality in distress such as we had in the — in the depression.

    As I gather, if you are saying is something like this, can bring on something like depression I don’t mean to speak (Inaudible) that would affect the national health.

    Do you have to go that far here or — or your finding — are you going — is it necessary to construe this Act that’s being left that far in order to support your case from your standpoint?

    J. Lee Rankin:

    No.

    I’ve said that you don’t have to go that far in order to satisfy the requirements of the statute but the Government take the position that it is broader than the union claims as far as it terms but you can use the narrowest error here of Section 208 as a basis and we think we have satisfied that both as to the proof and the findings.

    Hugo L. Black:

    Have you satisfy it if you considered that national health means something that would see imperil the national physical health that we come to, like a national milk strike for or national food strike for or national transportation strike that were stopping food from being distributed or national electrical strike that was stopping data from getting a milk?

    J. Lee Rankin:

    Well —

    Hugo L. Black:

    Have you — is it — is it your judgment that the — your case is sufficient on the basis of that meaning with reference to national health?

    J. Lee Rankin:

    Only as to containers if you use that kind of a definition.

    There is a real threat to the country as far as food containers are concern within the immediate future.

    And that is within that kind of a category.

    Now, we think the Congress deliberately rejected that kind of an approach to the problem.

    Hugo L. Black:

    That’s what administered.

    I haven’t heard even one.

    You referred to anytime when the intention of Congress would focus on what they meant by national health is an argument that Senator Kennedy statement that an indirect equivalent to that but I heard neither one of you referred to any direct efforts to — to think — to define what was meant by the national health.

    J. Lee Rankin:

    Well, what I meant, Mr. Justice Black, in regard to that was that the Congress in the House bill did have those — that type of units as those that could be enjoined once that you’re describing the — they took instead the —

    Hugo L. Black:

    When they did have that?

    Is that in your briefs?

    J. Lee Rankin:

    We argue that in the brief in detail.

    Hugo L. Black:

    You mean they had something about the national health?

    J. Lee Rankin:

    No.

    Hugo L. Black:

    Referring to it as health?

    J. Lee Rankin:

    No.

    They had communications and public utilities in language of that type in place of industries as they have now in the Act that affect commerce or —

    Hugo L. Black:

    Why was that taken out?

    J. Lee Rankin:

    — engage.

    Hugo L. Black:

    The utility?

    J. Lee Rankin:

    Well, it seem quite apparent but they try to make it broader and cover industries that engaged in commerce or affect commerce which is the widest categories that you can imagine.

    And they took as far as protecting interstate commerce concern.

    And in the House bill, they had these more limited standards of the public utilities and communications and so forth.

    Now, I don’t move — before we leave this, I — maybe you’re not ready to leave it, I don’t mean that — I would say that automobile strike couldn’t imperil the national health and safety.

    But I think the time when it would imperil might be far different than it would be as to steel or copper or some other commodity that was involved in many businesses in trying to produce and develop for the country.

    And what I —

    Hugo L. Black:

    Does the record show — I haven’t heard you referred to it yet, I — either one of you (Inaudible)

    Does the record show outside of what the statement by Congressman Kennedy, why they limited the — the public health and safety?

    J. Lee Rankin:

    Well —

    Hugo L. Black:

    Or to that of health concerns?

    J. Lee Rankin:

    We think — we construe that the — that Congress deliberately chose to make at the national health and safety which are quite different than as we construe it in the public health and safety but —

    Hugo L. Black:

    But why did the (Voice Overlap) —

    J. Lee Rankin:

    — the union contends otherwise.

    Hugo L. Black:

    — to those two fields or what does the record show about why they chose to do that, the — the report or anything?

    J. Lee Rankin:

    I don’t — didn’t find anything in the legislative history that would contribute.

    Now, there was quite a bit of talking in regard to the — or interest that might be too indefinite words to that affect but as far as how they happen to — to decide to use national in place of public, when they used to modify health and safety or health or safety, I — I didn’t find anything to explain that.

    We contribute anything to it.

    Hugo L. Black:

    Nothing you says interlied on whether it was broadened or to narrow?

    J. Lee Rankin:

    It didn’t seem to me, Mr. Justice Black.

    Now, we have dealt with the question of whether or not this is a constitutional problem.

    And we do not think it is a serious matter in this case.

    The injunctive power is one that’s come to courts.

    We do not tie the injunctive provision of a lay counsel has to the other actions in the statute because we think that the Congress deliberately chose the injunction for the purpose of trying to protect the public during this 80-day interim.

    They chose the 80 days or a period of, as defined in the statute in order — they call it possible cooling off period.

    They didn’t — they hope for settlement during that period.

    They didn’t indicate that it was going to be accomplished.

    And they discuss the fact that whether or not there should be compulsory arbitration or some other device at the end to that period to solve the strike and Senator Taft advised directly that he was opposed to that, that he felt the Congress should examine the thing upon the report of the President in each case much as the common law and determine what should be done to solve the situation at the end of the injunctive period, if — if the strike was not settled.

    And — so, it was not conceived that this would settle all the strikes and Senator Taft was very careful to point that out.

    J. Lee Rankin:

    But he did feel when — that the Congress could handle the matter and devise a program for each incident as occurred from time to time upon the report of the President.

    Now, the elements of — for judicial action are here.

    The issue is to whether or not the country is in peril by a strike that satisfies these requirements of the statute.

    It’s a factual situation that the courts do deal with in some areas.

    We think it’s comparable to that.

    The courts regularly are asked to deal with in regard to the anti-trust laws, in regard — determining whether is a tendency toward a trend, toward monopoly or whether there’s the other elements of economic and financial control involved in some of those case.

    And that there has to be a determination as — not only as to the present condition but what the effect may — might be or will be in the future.

    And that the courts have traditionally been called upon to do that and Congress thought it was asking the court to do something that courts do traditionally and have that the form is one that the courts have been called upon, to act upon in the past.

    The Tubin (ph) case is one example.

    We think that the power of the Government to acquire property under statute and the authority Congress has given there is another where there is no duty.

    There is certainly no duty on the part of the owner of the property, invade the property before the action is brought in condemnation proceedings and — and the other case that we have indicated.

    We think the Debs case is another support for this traditional way of handling procedures in the courts.

    And that it supports our position that there is nothing to the constitutional argument.

    I’d like to say final that I think that the Congress was trying to develop a remedy in this situation that would protect the public interest that they were not trying to put their hands upon the scale and health either labor or management.

    That it — the construction suggested by counsel would cause it to have a very inequitable arrangement if there could be some of these plants opened and others remain closed because, presumably, either those that were close and were unable to satisfy their civilian business would lose that business or they would have to settle immediately and pay a higher price to the business in the interim.

    And if you follow the — that through the — in the practical economics of business, you’d see that Congress didn’t have anything like that in mind, it didn’t intend to.

    It was trying to address itself to the protection of the public in this kind of situation and see that throughout the period they define which they hope would make it possible to resolve the conflict but they recognized that at the end, it will have to be accorded to the Congress and that if it wasn’t determined, the Congress would have to settle it in each case for itself.

    Earl Warren:

    Mr. Goldberg, you may — just — just one moment, was someone else going to — will you — will you do address —

    John C. Bane, Jr.:

    I thought it’s Mr. Goldberg, if Your Honor please.

    I’m going to go and then Mr. Goldberg after me in favor of —

    Earl Warren:

    Well, who do you represent, sir?

    John C. Bane, Jr.:

    I’m John Bane.

    I represent the steel company in this case.

    Earl Warren:

    Well, did you file the brief, Mr. —

    John C. Bane, Jr.:

    No, the — I understood that a — if I’d be allowed a few minutes time, and I’ll take two minutes.

    Earl Warren:

    To what issue?

    John C. Bane, Jr.:

    (Voice Overlap) —

    Earl Warren:

    Would you mind — would you mind stating what issue you direct your attention to?

    John C. Bane, Jr.:

    I wanted to tell Your Honors that in the light of the exhaustive treatment given in this case by my two friends, I did not wish to make any argument today.

    Earl Warren:

    Well, then that’s — that’s very good [Laughter].

    Earl Warren:

    Very good.

    William O. Douglas:

    Mr. Bane, did you — did you have a brief?

    John C. Bane, Jr.:

    No, I did not, Mr. Justice Douglas.

    William O. Douglas:

    Are you going to — do you plan to file one?

    John C. Bane, Jr.:

    I do not.

    Earl Warren:

    Mr. Goldberg.

    [Laughter]

    Arthur J. Goldberg:

    Mr. Chief Justice and may it please the Court.

    I would like very briefly to reply to my friend, the Solicitor General.

    Mr. Justice Stewart, you asked the question of where we got our 1% figure from.

    If you’ll look at page 92 of the record, you will find that the source is the Office of Civil and Defense Mobilization of the United States Government.

    It’s less by quarters, starting first quarter of 1958, the amount of shipments of steel products for all defense purposes, it is less than 1% over the last year.

    And I think that’s an appendix statement of the Government’s need in the defense they’re at.

    Mr. Justice Black, you inquired as to legislative history on health and safety.

    There is some illumination in this area that we haven’t adverted to.

    Senator Smith was a distinguished man or member of the Senate Labor Committee, later it became the ranking republican member.

    In the debates, in this discussing this, he said, “Furthermore, entitled to the bill, we provide for extreme cases which threaten national paralysis.”

    To me, the industry-wide stoppage of some kind which may cause injury to the health or safety of 140 million people, such as a transportation strike or a coal strike, we have set up special machinery which will unable the Attorney General on his own initiative to petition the courts to prevent either a shut down or a walkout until remediation processes have had time to function.

    That’s in the legislative history.

    The — it’s compiled by the board, 2 Legislative History 1145.

    I referred earlier that I have also at page 1270, where Mr. Smith, in response to questions, makes the same essential statement.

    I referred earlier to Senator Taft’s statement where he dealt with the automobile situation, which is also in the legislative history and where he again says “The national health or safety or condition, which either is anticipated, will not often occur.”

    Now, there is another reason that the statute in this area ought to be construed very narrowly.

    My friend, Mr. Solicitor General, adverted to it in passing.

    I would like to emphasize it.

    This statute is engrafted on the Labor Management Act.

    And Section 13, protecting the right to strike, is still an important and indispensable part of that statute.

    This is a limited exemption to the broad right to strike protected by Section 13 of the National Labor Relations Act.

    Statement was made in this Court about the number of plants by the Solicitor General will — which might have to be opened.

    This is the first time to get information on this subject in this Court.

    Arthur J. Goldberg:

    The record doesn’t contain one piece of evidence on any construction of evidence giving the best — best credence you can to opinion evidence.

    But as I understand the rules, nevertheless, must be base upon fact as to this particular fact which is now given to us about the seven plants.

    The record does show that over 310 steel plants of varying types of seven-dozen loom has a large number.

    And in the specific response to the question as to whether the steel can be produced by the plants now on strike, there is the conclusion to this effect by the Secretary of Defense.

    But there are no names, no numbers, no specification of this fact.

    Now, it is true that steel is not a completely a fungible commodity, it is a largely a fungible commodity.

    When I talked about carbon steel, that’s a fungible commodity, structural steel is a fungible commodity.

    The type of steel that is not a fungible commodity by and large is steel alloy, steels made out of electric furnaces.

    It is not entirely true that we don’t know the companies that make these in the sense that this is not a publicized fact.

    The brochures of many companies openly say that we make steel of this type for the missile programs for Polaris, for Atlas, for Titan.

    I saw a couple of dozen of them in my offices.

    They — and they’re — all we have to do is pick up Time magazine this week, and we will find many companies advertising the fact that they make this steel for these high priority highly confidential events.

    The problem we have and have confronted and confronted with throughout is that the Government does not specify in any of its affidavits what these companies are.

    So, we have had to do a job of reconstruction which we attempted to do in our brief, in this document filed with the clerk, metal selector, October 26 and in the appendix to our brief, we have tried to take the alloy steel by its composition which is described here.

    And companies are in — in the metal selector in industry magazine.

    And we try to demonstrate by these published documents that the electric steel of the various types used for the defense program is made in the plans not on strike.

    Assuming that 100% plants were struck, so that no steel companies were operating, would your position here be different from that it — what it is now?

    Arthur J. Goldberg:

    So — with the respect to the national safety, it will be the same because the Government made no showing as to this, that they cannot — their affidavits are so inadequate that they do not say except in terms of conclusion that the program is delayed because of this fact.

    They do not point specifically to any inadequacy due to any particular failure in the program or because of the strike.

    But you have — I haven’t taken the time of this Court to review each of the affidavits.

    It is done in our brief and it is done in our application for a stay in the Court of Appeals.

    You’ve got statements like this on the Government.

    You’ve got statements that steel is an important commodity.

    Steel is essential for our defenses.

    We are delayed in our steel — in our — in our program.

    The delays may be due to budgetary consideration or in the Wall Street Journal, last night, in which it was said that a good part of the missile program has been canceled out because of budgetary consideration.

    I’m in a lost to know whether or not the delays are due to that or to lack of steel.

    On the national health aspect of the statute, would your position be different?

    Arthur J. Goldberg:

    Under national health aspect of the statute, I would say that because steel — well, it is not all fungible is durable and isn’t expended everyday.

    The Government have to make a showing that the containers which are required, which they have not talked about, which are not in the affidavit, are containers that are not available out of present inventories of containers, even if the containers are not now produced.

    Arthur J. Goldberg:

    In other words, we would require a specification.

    They have to prove their case that this is something that causes a peril to the national health.

    Now, while they talk about national health, let me say this.

    I’ve been struggling since the questions were asked this morning, Mr. Justice Harlan, your question, what about this term “national”?

    And I should have known better because I argue the case which involved that question in this Court.

    The amalgamated streetcar case, where there was a health problem involving a local utility, and it was a gas utility.

    And this Court held under Taft-Hartley Act that that local health problem was not reachable under the — under the Taft-Hartley Act.

    It was not reachable.

    Well, I assume that one of the aspects of national is the thing that is involved in coal and railroad transportation that must pertain to the nation at large.

    Charles E. Whittaker:

    But not in steel?

    Arthur J. Goldberg:

    Not in steel because they have not shown of the Government evidence that this involves the nation at large.

    Now, Mr. Justice Brennan, this morning, you asked me if the Government made a case on safety but not health, would that be enough of the case.

    And I said yes.

    I — I ment — I should have put a copy which I am sure was in fight from my prior argument that this is so, if my other elements were not proved like part of the industry and — and discretion and so.

    I did it in the sense if other elements were not present, that would be so.

    William J. Brennan, Jr.:

    I understood —

    Arthur J. Goldberg:

    Now, the — the selective character of an injunction order that should be entered was them, by the Government, I have neglected to mention that.

    Then the American Locomotive case, our case, as Mr. Rankin has not yet assumed.

    In that case, there were three plants of the company.

    But the injunction ran against one plant of the same company because that was the plant that produced pipe for the Atomic Energy Commission.

    And the injunction, it was on dispute between one union and one company.

    And the injunction there, ran against one plant.

    It did not run against the three plants of the company.

    Was the suit brought for the respect to only that one plant —

    Arthur J. Goldberg:

    Only that one plant.

    — or other three plants?

    Arthur J. Goldberg:

    Only the one plant.

    Only the one.

    Arthur J. Goldberg:

    Only the one plant.

    The other two plants were made on strike.

    William J. Brennan, Jr.:

    (Inaudible)

    Arthur J. Goldberg:

    Yes.

    This is the finding that I objected to very strenuously but never got final review on that.

    I might explain how that came about.

    The Court — the Court of Appeals said in effect that because of the nature of this fight, the — for the Atomic Energy Commission, they would say that this type was a special industry.

    That’s the theory upon which the Court of Appeals went.

    The Solicitor General has said that we have, for the first time, talked about reopening mills for all purposes rather than the defense in answer to the argument that it would be, Mr. (Inaudible), it would be convenient and inconvenient to do so.

    This is not our position.

    It never was our position in any court.

    The record shows, Record 92.

    My statement to the District Court, Record 153, that it was theory that if the plant had to be reopened then it would be reopened for all purposes.

    Mr. Justice Frankfurter, I worry more about you’re question to me about jurisdiction.

    And maybe I have a better answer now that I gave them before (Inaudible) assistant.

    And that is that where you read the language on jurisdiction in — if I may refer to in page 95 of the appendix to the Government brief Section 208 (a) 2 permitted to occur to continue will imperil the national, health or safety, it shall have jurisdiction to enjoin any such strike or lockout or the continuing thereof and to make such other ordinance.

    It is possible to read that jurisdiction applies to both, jurisdiction to enjoin the strike and jurisdiction to make any other ordinance.

    This is what Judge Hastie thought, this is what I believed to.

    I ought to explain a moment about the priority system.

    I think Mr. Rankin and I are not in fundamental disagreement but I think we would both want to set the record straight and I, perhaps, am little bit in the air because I think he is.

    The priority system which is administered by the Government operates this way.

    Every steel company, not every, but of many steel companies operate under priority systems of the — under the defense production.

    And the non-struck companies as well as the struck companies have operated traditionally under that priority system.

    And under that priority system, when the strike took place, there was an existing amount set aside for defense on the state for illustration, 10%.

    Now, the non-struck plants have that.

    That was there normal set-aside for defense purposes when the strike broke up.

    My complaint against the Government was that despite a great strike, despite the length of that strike, nothing was done to change that set-aside until October the 16th.

    On October the 16th, they were told by an order which is attached to the brief which we files on the District Court, which is part of the record here, we transmitted it in orders in the record, they were told that they must accept for delivery during the fourth calendar quarter of 1959, more orders even though the applicable set-aside has been reached.

    So they were told that.

    What they were not told, this is the point I meant to make, was that the rest of their steel as they — that — and it’s all specialty steel in many of these plants, should be set aside for filling other orders of the Government.

    Of course, this is what was done in 1956.

    All of their specialty steels were frozen so that defense requirements could be met.

    Arthur J. Goldberg:

    That would mean that under the Defense Production Act, that steel could be sequestered for some of these manufacturers that Mr. Rankin adverted to.

    Now, when my friend, the Solicitor General says that they need a lot of steel for transportation, that statistic includes automobile, and it is a great question as to whether the automobile industry is necessary or detrimental to the health of the United States.

    [Laughter]

    And finally —

    Felix Frankfurter:

    Do you think Mr. (Inaudible) would like you to — would like to hear that, would he?

    Arthur J. Goldberg:

    He — he might not, Your Honor.

    [Laughter]

    I hope he won’t be reading the newspapers.

    Now, we should not dismiss the automobile industry so cavalierly, not only its impact on the national economy, it uses 25% of the steel of the country, but in addition to that, that great industry is very much in defense.

    It makes tanks, guns, armored vehicles, military trucks, jeeps, missiles and a variety of ordinance required through — for the defense of the country.

    That, Your Honor.

    Earl Warren:

    Gentlemen, I think it would not be out of order at this — at this time to — to say that in these days, when we have a national problem of court congestion and delays of the law, it is both refreshing and comforting to — to see a case of this magnitude tried on — fully tried on all levels of the federal system and solely through the cooperation of counsel with the courts and with each other.

    We’ll adjourn now.