BUS EMPLOYEES v. MISSOURI

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Argument of Bernard Dunau

Chief Justice Earl Warren: Number 604 Division 1287 of the Amalgamated Association of State Electric Railway and Motor Coach Employees of America et al., versus Missouri.

Mr Dunau.

Mr. Bernard Dunau: May it please the Court?

A Missouri statute known as the King-Thomson Act provides that when the Governor of the state determines that an actual or threatened strike by a union against the utility jeopardizes the public interest, health and welfare, the Governor is authorized to take possession of the utility.

If the utility is taken over, the statute makes unlawful any strike to enforce demands against the utility or against the state.

Our principle question is whether the King-Thompson Act, which prohibits a strike to enforce demands during seizure is in conflict with and therefore preempted by the Labor Management Relations Act, which protects the right to strike and to bargain collectively, of which the right to strike is an indispensable part.

Now our question arises in these circumstances.

The utility here is the Kansas City Transit, Inc.

It's an interstate enterprise, which transports passengers by bus in and between the states of Kansas and Missouri.

In 1943, the National Labor Relations Board certified the appellant union as the bargaining representative of bus drivers, mechanics and others who worked for the company.

Since 1943 collective bargaining agreements have been entered into between the utility and the union governing the employment terms of these persons.

A collective bargaining agreement was due to expire on October 31, 1961.

Negotiations began in the Fall of that year looking towards improved contract terms.

An impasse ensued.

The deadlock was over wages, paid vacations, group insurance and other such bread and butter issues. Unable to resolve the deadlock, and the company refusing to agree to voluntary arbitration of new contract terms, the men voted to strike.

The strike was to begin at midnight November 13,, 1961.

Three days before the strike was to begin the union notified all concerned of the time it would start.

On November 13th the same day that the strike was to begin, the Governor of Missouri issued a proclamation in which he stated that the threatened strike would jeopardize the public interest, health and welfare and he was there for taking over the utility.

Taking over the utility meant no more than that the agent of the Governor deliver to the President of the company this proclamation and two, implementing executive orders.

Nothing changed as a consequence of the takeover.

The employees remained as they were employees of the company.

They did not become employees of the state.

Justice Arthur J. Goldberg: When you say nothing changed, do mean nothing changed as a matter of fact [Inaudible]

Mr. Bernard Dunau: Nothing changed.

As a matter of fact, the one change, which took place was that by operation of law the strike was prohibited.

As a matter of fact nothing changed other than to prohibit that strike.

The employment relationship continued to be within the exclusive dominion of the company.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: All the statute says as I read it, is that the state takes possession.

It does not in anyway detail what constitutes possession or what the Governor might do if he took possession. As a matter of fact in this case we know that, that what happened is that nothing happened except that the strike was prohibited.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: No, sir it takes effect by virtue of the provision of the statute which says it shall be unlawful, skipping some words, to strike after any plant, equipment or facility has been taken over by the state under this chapter as means of enforcing any demands against the utility or against the state.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: This is quite independent of what would happen if you had a true civil service situation.

This is a situation in which a private utility employing private employees is taken over by what I call a paper possession in which nothing happens except by virtue of the statute the right to strike is forbidden during the period of seizure.

The company continues to operate as it has done before completely on it's own.

The officers and the Board of Directors make their own decisions, the state has nothing to do with it.

What happens and all that happens is that seizure means that you cannot strike during the period of seizure.

The men nevertheless struck.

They struck for two days.

The strike was peaceful and the picketing was peaceful.

At the end of the two days as a result of the issuance of a temporary restraining order which eventuated into a permanent injunction against the strike, the strike was discontinued.

Now if this were a strike by bakers or miners or autoworkers there would be no doubt under the sun that the state could not enter such an injunction, this would be activity protected by the Federal Act and no state can prohibit what the Federal Act protects.

And so it seems to us that what this case comes down to --

Justice Potter Stewart: And if the were strike by state employees it would be equally clear that the state interest would rely on it, would it not?

Mr. Bernard Dunau: I am not prepared to say that the word, a strike by genuine state employees that the state could not prohibit a strike by state employees.

The Federal Government prohibits a strike by federal employees.

I think there would be no substantial question that the state could prohibit a strike by state employee.

Justice Potter Stewart: And the labor -- what the Labor Act does is exempt from it's provision to --

Mr. Bernard Dunau: That is correct sir.

In the case of true governmental ownership and operation this -- the labor relations would be outside the scope of the Taft-Hartley Act, and we would have no problem, but a constitutional problem and very little of a constitutional problem I should think.

As I was saying, if this were a strike by bankers, miners, autoworkers, it wouldn't be the slightest doubt that the state couldn't prohibit it.

And so it seems to us that our question comes down to, does it make a difference that instead of just being a strike of bankers, autoworkers or miners, it is a strike of bus drivers and mechanics working for a transit company.

And it seems to us that this Court answered that question 12 years ago in Amalgamated Association versus the Wisconsin Employment Relations Board, when this Court said, that public utility workers just like any other class of workers covered by the Federal Act enjoy all the protections of the Federal Act and the state cannot do anything to prohibit that which the Federal Act protects.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: It permits a state to engage in mediation activities, but it is our position it does not permit the state to engage in mediation activities under standards which conflict with those which are prescribed by the Federal Act for mediation.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: Maybe done all the time but if it's challenged legally i think it's erroneous, it's wrong.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: They are certainly not within the traditional role of mediators as used in the Taft-Hartley Act when even in a national emergency dispute, when the President convenes a board of inquiry to look into the dispute, the statute is explicit that the Board of Inquiry may make no recommendations.

The statute affirmatively withholds the power to make such recommendations.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: That is correct sir, yes sir.

This is --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: The key part of this statute with which we are concerned with here is the seizure no strike device.

The other part comes into play as a consequence of the state's argument that this is not a comprehensive statute and for that reason it's different from the Wisconsin Act, which this Court invalidated 12 years ago.

To that argument we have two answers, first we can't see for the life of us, why it makes a difference, whether it's comprehensive or cursory.

All that it has to be is in conflict with the Federal Act and if it's in conflict it's superseded whether it's short or long.

Now our other point is that in our appendix to our brief this non-comprehensive statute runs to eleven-and-a-half -- ten-and-a-half pages, I don't know what Missouri tell us when it writes a comprehensive statute.

This non-comprehensive statute covers every aspect of the government of the regulation of a labor dispute in public utilities.

And our point is that not only is this comprehensive, but it is comprehensive in a way, which conflicts with Federal standards even in the area of mediation.

And I think that there can be a little doubt that while the state -- the Federal statute certainly contemplates that states may participate in mediation efforts, I think it contemplates that it will participate in mediation efforts consistently with the standards of the Federal Act and not in conflict with them.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: Yes, Sir, yes, Sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: I know what Federal mediators and state mediators do in the smoke of a hotel room, and what they may properly do, but they may not properly conduct a hearing, find facts, publish a written report saying these are the settlement terms we recommend.

If any Federal mediator does that he is violating the law.

Now --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: Taft-Hartley yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: Well, let me illustrate them what the legislative history does bare out Mr. Justice Black -- Goldberg.

There was a watchdog committee setup in the Taft-Hartley Act to take a look at the administration of the Taft-Hartley Act for one year after it was enacted in 1947.

One of the things that this watchdog committee spoke about was a recommendation that there ought to be an amendment to Taft-Hartley to authorize Boards of Inquiry to make recommendations instead of simply finding the facts.

This watchdog committee then said as to that suggestion, a further suggestion has been made that the emergency board be permitted to make recommendations as well as find the facts in these disputes.

That alternative to the act's procedures was considered at length by the committees who drafted the act and rejected by them as being in fact compulsory arbitration with public opinion providing the compulsion.

Chief Justice Earl Warren: We'll recess now.

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Argument of Bernard Dunau

Chief Justice Earl Warren: -- 87 of the Amalgamated Association of State Electric Railway and Motor Coach Employees of America petitioner versus Missouri.

Mr. Dunau you may continue your argument.

Mr. Bernard Dunau: Thank you sir.

May it please the Court?

The King-Thompson Act bluntly identifies its point of conflict with the National Act.

It states in so many words that it shall be unlawful after a takeover of a utility to strike as a means of enforcing demands against the utility or against the State.

It prohibits a strike to enforce bargaining demands.

What this Court said 12 years ago in the Amalgamated Association case applies with precise equality to this case.

It would be sufficient to state that the Wisconsin Act in forbidding peaceful strikes for higher wages in industries covered by the Federal Act has forbidden the exercise of rights protected by Section 7 of the Federal act.

Missouri says, well, no we are treating with an emergency and that makes a difference, but the same emergency with which Missouri treats is the situation which this Court said, Wisconsin could not treat with.

In the Wisconsin case we had a transit strike as we had here.

We had an interruption of surface transportation in Milwaukee, Wisconsin as we had an interruption of surface transportation in Kansas City, Missouri.

Unknown Speaker: [Inaudible]

Mr. Bernard Dunau: I think Wisconsin blankets this case, yes sir.

It could hardly make a legal difference; there can hardly be a legal difference between a strike which interrupts surface transportation in Milwaukee, and a strike which interrupts surface transportation in Kansas City.

Now --

Unknown Speaker: [Inaudible]

Mr. Bernard Dunau: So long as the State does not choose to become the owner and exclusive operator of that utility, I do not see what the State can do by the way of prohibiting this strike or curtailing it in any way which would not conflict with the Federal Act.

Unknown Speaker: [Inaudible]

Mr. Bernard Dunau: My -- the implications of my first part of my statement is if precisely if Missouri wants to own and operate the transit system in Kansas City or if the city wants to own and operate it, just as New York City owns and operates the subway systems then that the situation is outside of the scope of the Federal Act and the State can then do as it chooses within constitutional limits with respect to a strike in that system.

Short of true governmental ownership and operation I do not see a way of regulating or prohibiting a strike of public utilities which would not conflict with the Federal Act.

Unknown Speaker: [Inaudible]

Mr. Bernard Dunau: No, if the end result was a genuine permanent exclusive ownership I do not think that it would make a difference that the occasion for the State's decision was a labor dispute.

But I emphasize that it has to be a genuine permanent taking over not an ad-hoc interim seizure for the purpose of getting over a labor dispute and then a return of the enterprise to private ownership or any such stopgap measure that I think is simply a crude camouflage which tries to conceal the conflict of the Federal act we cannot on a --

Justice Potter Stewart: Well do you mean a genuine take over in the sense and the fact that a condemnation for which conversation would have to be paid.

Mr. Bernard Dunau: That's correct sir.

I don't mean, for example that a State even if for the period of seizure it would operate it, but then plans to turn the utility back to the private owner at the end of the labor dispute that that is the kind of takeover which would be permitted under the Federal act.

I mean that the State owns, operates, and will continue so far as one can tell permanently to own and operate the facility.

Unknown Speaker: [Inaudible]

Mr. Bernard Dunau: Yes sir.

Now, in the Amalgamated Association case there were two cases decided.

The second of the two cases was one in which Wisconsin sought to prohibit a strike interrupting gas service.

Wisconsin was told it had no power to prohibit a strike interrupting gas service.

Now, if we are to indulge in comparisons of so called emergencies, I would suppose that a strike which interrupts gas service would be more critical to a community than a transit strike.

Yet, Wisconsin was told it could not prohibit a gas strike.

I cannot see therefore how Missouri can prohibit a transit strike.

Now the Missouri's argument seems to me to be based upon reading one part of this Court's decision and refusing to read another part of this Court's decision in Amalgamated Association.

When Wisconsin was arguing for the right to regulate public utility strikes it said these are local emergencies which should remain within the police power of the state.

To that argument the Court said two things.

One, your statute is not emergency legislation and two, it would make no difference even if it were.

The state concentrates on the first alternative and refuses to look at what this Court said by way of the alternative ground for decision.

Specifically what this Court said alternatively was in any event, congressional imposition of certain restrictions on petitioner's right to strike far from supporting the Wisconsin Act shows that Congress has closed the State regulation, the field of peaceful strikes in industries affecting commerce and where as here the state seeks to deny entirely a federally guaranteed right which Congress itself restricted only to a limited extent in case of national emergencies, however serious, it is manifest that the state legislation is in conflict with federal law.

So it seems to us that this Court said, albeit alternatively that you cannot enter this field by labeling your situation an emergency and it is old law that where you have alternative grounds for decision neither is obiter, both are authoritative adjudications.

And, I think the untenability of trying to predicate state power on emergency is emphasized by the undisputed fact shown in this case that the principal component of this so called emergency was that a strike would curtail retail sales in downtown Kansas City.

Once you start on this emergency trail there is no place you stop.

The state says well we are different from the Wisconsin Statute because we do not provide for compulsory arbitration, that is a difference.

It is a difference which it seems to us and makes the Wisconsin statute worse, not better from a conflict point of view, because the premise of the National Act is that in order for a union and an employer to bargain as equals the union must have a right to strike.

If it does not have a right to strike bargaining is just talk, there is no means by which it can move the employer to change his position.

Wisconsin took away the right to strike, but at least it offered a substitute in place of a compulsory arbitration.

Missouri takes away the right to strike and offers nothing in it's place.

It seems to us that it is a worst conflict.

It does not ameliorate the situation to take away what the Federal Act has granted and to substitute nothing in its place.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: In this specific case here it was 14 months that the strike was prohibited.

In other seizure cases, seizure has lasted from about eight days to a maximum of eight months.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: They remain in status quo by virtue of the executive order.

Justice Potter Stewart: But discussions, negotiations can go on.

Mr. Bernard Dunau: Collective bargaining can go on but without the right to strike which for us makes collective bargaining a mockery.

You cannot bargain collectively, you cannot do anything --

Justice Potter Stewart: [Inaudible] discussions.

Mr. Bernard Dunau: Yes, sir.

But yes, discussions can go on and have in fact gone on in this case.

Now the state says, well it makes a difference that we seized, that we are only prohibiting the strike during the period of seizure and this differentiates it from the federal -- from the Missouri -- from the Wisconsin situation.

Well just like compulsory arbitration Congress canvassed seizure as a method of regulating labor disputes and just like compulsory arbitration, it rejected seizure as a way of solving labor disputes.

Now I cannot put that more succinctly than it was put by this Court in Mr. Justice Black's opinion in the Steel Seizure case, when this Court held that the President could not seize the steel mills to avert a national emergency and predicated that judgment primarily on the fact that in the Taft-Hartley Act, Congress had withheld the power to seize in order to provide a means of getting over a labor dispute.

Now specifically what was said in that opinion is this, “The use of a seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment.

Prior to this controversy, Congress had refused to adopt that method of settling labor disputes.

When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.

Apparently it was thought that the technique of seizure like that of compulsory arbitration would interfere with the process of collective bargaining.

Consequently the plan Congress adopted in that Act did not provide for seizure under any circumstances.

The power to seize which Congress withheld from the President to avert a national emergency, it did not grant to a State Governor to avert a local emergency.

Seizure, compulsory arbitration, any other shortcut to industrial peace was blocked by Congress.

Congress said we put our faith in collective bargaining backed by the right to strike.”

This Court, 12 years ago said, “the creation of a special classification for public utilities is for Congress, not for this Court.”

It in effect invited the people who thought that there should be state regulation or prohibition of public utility strikes to go to Congress and people have been going to Congress ever since.

Bills have been introduced in 1951, 1954, 1958, 1959 and then the present session of Congress 1963, to authorize the states to regulate or prohibit public utility strikes.

In 1954, in 1958 and 1959 those bills came on for a vote on the Senate floor.

In each of those years those bills were roundly defeated.

Congress has refused to authorize state intercession in this field, notwithstanding this Court's indication to go to Congress.

It seems to us that if it's a good idea to have state regulation of public utility strikes, the place to make the argument and to sell that idea is across the mall, not here.

I don't think there is any serious question of mootness in this case.

This utility has been seized three times.

Each time that it has threatened to strike it has been seized.

This underlying labor dispute is still unresolved.

Should this union go out on strike?

Every factory which impels seizure the three previous times would still operate to impel seizure a fourth time.

It seems to us that what we have here is a recurring threat of prohibition of the strike through seizure anytime this union will go out on strike.

When you have this kind of a recurring threat, I do not see how you can have a mootness, a stilling, a non-live controversy.

Furthermore, because of the very fact that these orders are temporary, temporary in the sense that a labor dispute does not go on forever and therefore seizure does not go on forever, and by the nature of a kind of dispute you have, you can never get to this Court in time to test the validity of the seizure if it's mere lifting will be sufficient to moot the controversy.

In this case we thought we would finally make it, because the men were saying they were not going to settle till they had a determination of their right to strike.

We held out, that did us not a one wit of good, the Governor then vacated seizure, if this controversy can be mooted by vacation of seizure it means one can never get to this Court to test the validity of the King-Thompson Act so long as you are willing to comply with the injunction while it is in force.

You have to risk violating the injunction, getting thrown in jail for criminal contempt, and that is the only road by which you will get to this Court.

Now, it seems to us that with a history of recurrent seizures, with the short-term orders which are necessarily involved with a combination of recurrence and a short-term order is the classic situation for saying that a controversy is not mooted.

I think the other cases in which this Court has held that the controversy was mooted by virtue of the lifting of the seizure.

In the two other cases, there was an actual settlement of a labor dispute.

Here we do not have a settlement of the labor dispute.

Here we have a real risk that if the union were to go out on strike tomorrow in this labor dispute, you would have seizure tomorrow unless the Governor chose not to because of the existence of this litigation.

Now the other thing, it seems to me with respect to the other two cases, as I think it was possible to say on the records in those cases that we could awake a recurrence, we did not have to anticipate seizure.

Now, we did not have to anticipate that there will be a recurrence.

I think that basis for decision is no longer entertainable.

I think this record shows that unless this case remains alive notwithstanding the lifting of seizure there is no way you can reach this Court to test the validity of the King-Thomson Act, and I think this Court's decisions both in the recurrent, in the situations of threatened recurrence and in the short-term order doctrine have posed the possibility to a wrongdoer being able to continue doing what he wants to do and at the point where you can finally decide whether what he is doing is valid or invalid, he pulls the case out under you by stopping what is the challenge act.

Chief Justice Earl Warren: Mr. Nessenfeld.

Argument of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Mr. Chief Justice, may it please the Court.

Addressing myself first to the mootness issue, it is the position of the State of Missouri that this case is in fact as moot as was Local No. 86, which this Court decided several years ago.

It was moot because there was no subject matter then in existence upon which the judgment of this Court could operate.

What the appellant's overlook is the nature of this case and the nature of the relief sought.

In this case, the parties were the State of Missouri as the plaintiff, the union and the various officials and members as the defendants.

The state sought an injunction.

The state obtained an injunction.

There was no declaratory relief sought or granted.

The union then appealed, seeking relief from the restraint imposed by that injunction that is all they could seek on appeal by the action of the governor and releasing the property to the company not in order to avoid mootness.

That I think is a reflection upon the Governor of Missouri.

He did so because it was the mandatory duty of the Governor under the opinion of the Missouri Supreme Court in this very case to release the property just as soon as in his judgment, based on his investigation of the facts then existing, some 14 months later in the initial seizure, that there was no dire, immediate, imminent threat of jeopardy or disaster to the citizens of the state or the Community of Kansas City.

Chief Justice Earl Warren: Has this labor dispute been settled?

Mr. Joseph Nessenfeld: No Your Honor.

Chief Justice Earl Warren: What changed the conditions, what were the changed conditions?

Mr. Joseph Nessenfeld: The record does not reflect the change in conditions and I am unaware of that.

Chief Justice Earl Warren: But you said there was --

Mr. Joseph Nessenfeld: The Governor made an investigation.

The Governor made a determination, Your Honor.

It was -- he made the initial determination that there was jeopardy.

It could well have been, Your Honor, that he may have decided this late date that he was erroneous in his initial determination.

That is possible, but that's neither here nor there but has now made a determination based on the facts now existing that there is no threat of jeopardy and therefore no need for the State of Missouri to retain possession and operate the system in Kansas City.

Chief Justice Earl Warren: So the question of moot depends entirely upon the decision of the Governor for undisclosed reasons?

Mr. Joseph Nessenfeld: I couldn't put it that way Your Honor.

I think in this case the decision of mootness is based on the fact that the parties are no longer restrained.

They are no longer affected, there is no judgment affecting them, there is no legal controversy.

The only controversy in existence now is the academic one of this law, is whether it's valid or invalid.

There may or may not be other ways of testing the validity of the law but it certainly isn't by means of an appeal from a judgment which no longer in existence.

Chief Justice Earl Warren: Suppose that they decided to strike tomorrow would the Governor be -- would it be open to the Governor to seize the company again?

Mr. Joseph Nessenfeld: All I could say Your Honor is this.

If in the judgment of the Governor, he believes that there is such a dire, imminent threat of disaster as to warrant and justify seizure he could do so.

I seriously doubt that he would, because I am certain they took that in consideration in releasing the property.

Chief Justice Earl Warren: What were the stated grounds for the emergency?

Mr. Joseph Nessenfeld: The stated grounds were simply that in his judgment that there was a threat of imminent jeopardy through the public interest, health and welfare.

Chief Justice Earl Warren: There were no specifications of that?

Mr. Joseph Nessenfeld: There were no specifications.

The law does not require that he specify the grounds.

His action of course is subject to this review as the [Inaudible] Court has held and the Trial Court held that he was justified on the evidence in making that determination.

Chief Justice Earl Warren: What did the evidence show?

Mr. Joseph Nessenfeld: The evidence showed -- well all I can do is repeat what the Missouri Supreme Court, how they summarized the evidence in the opinion.

Chief Justice Earl Warren: Well it sometimes helps to have the facts disclosed here in the argument.

Mr. Joseph Nessenfeld: Well Your Honor that is quite true.

However it is, as we see it, the appellants have taken the position in this case that irrespective of whether the facts in this case justify the Governor in seizing the property, irrespective of whether the Trial Court was justified in upholding the Governor is finding of jeopardy, that even if the evidence disclosed jeopardy of the most dire character, their position nevertheless is that the law is invalid as a matter of law and that is --

Chief Justice Earl Warren: You just said to me that the Court had determined on the evidence that there was such a --

Mr. Joseph Nessenfeld: That is true Your Honor.

Chief Justice Earl Warren: I merely ask you, what is the evidence?

Mr. Joseph Nessenfeld: Well there was evidence of confusion, evidently chaos?

Chief Justice Earl Warren: What kind of confusion?

Mr. Joseph Nessenfeld: In -- oh well, all I can do is read what the Supreme Court said in their opinion.

The Court [Inaudible] the record in this case that the further continuance of the concerted work stoppage by defendants on the circumstances shown could well, might well have resulted in extreme danger to the health, welfare and safety of the inhabitants of Kansas City, Missouri and an unrest, general confusion, disorganization, excitement, tension, inability to reach places of employment of the retail district of the city, reduction of employment and loss of wages by innocent victims of the strike, congestion of traffic, destruction of business, reduction and impairment of law enforcement agencies and the creation of havoc, disaster and general chaos in the community.

And that is what the Court said, that the trial Court could have found.

I can't point specifically to any specific testimony in the record.

I say it is conceivable that the Court may well have been wrong in the finding jeopardy here, but that certainly doesn't invalidate this law.

That is what they want here, they said in their reply brief they will not settle the cases unless the law is thrown out.

That is all that's holding up settlement here Your Honor.

So that the [Inaudible] makes no difference how much jeopardy there was?

It's the law which is the subject of their attack, not the facts of this particular case and if the laws that are thrown out, it certainly couldn't be thrown out on the ground of -- as the Lower Courts made an error in the determination of the fact.

Justice Arthur J. Goldberg: General what is the [Inaudible]

Mr. Joseph Nessenfeld: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: That is true Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: I did not believe with a fair instance Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: In this particular case, whether he sees it three times, because there are three disputes, I think that is true.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: Transportation strikes, there were some, I think, not in Kansas City.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: No, I'm not aware of it and in further answer to your question Mr. Justice Goldberg, I might say this that until the present opinion by the New Jersey Supreme Court clarified and I think they made the point clear, the real meaning of the stuatute, the Governors of the states were I would say unaware of the extent of their authority to act and the circumstance under which they are justified enacted and --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: I don't think that that was testified in that way Your Honor.

I believe that in this case, type of case of this kind that there would less likelihood of the transit company being siezed in the future than there was in the past, because of the stress laid in the opinion of the Missouri Supreme Court not once, but three or four times on a necessity that there be an imminent drift of dire disaster.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: He did.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: He did Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: I think what has changed is the emphasis, the color placed upon the language and meaning of the act, I think there has been a change Your Honor.

The language of the act itself hasn't said it in words, but I think that as construed by the Court in this case, something has changed which maybe subjective, but it does have some bearing upon the future conduct of our Governors.

Chief Justice Earl Warren: If you were to prevail in this case and immediately thereafter the union has struck?

Mr. Joseph Nessenfeld: Yes sir.

Chief Justice Earl Warren: What conditions would not be available now to justify the Governor's action that existed there?

Mr. Joseph Nessenfeld: Well, certainly Your Honor I'm unaware of the conditions in Kansas City, I can't --

Chief Justice Earl Warren: Well, but you said that it's all because of the change in conditions.

Mr. Joseph Nessenfeld: The conditions that was found by the Governor, Your Honor.

Chief Justice Earl Warren: And I ask what conditions would have been changed?

Mr. Joseph Nessenfeld: I can't speak for the Governor, I don't know what he found.

This record certainly doesn't reflect anything other than what occurred in the first several days after this strike and further strike took place.

Everything that's in this record is pretty ancient and much could have happened in somewhere in those 14 months since then.

Justice William O. Douglas: I notice that the jurisdictional statement in this case was filed on November 20th and that his order was entered on December 28th?

Mr. Joseph Nessenfeld: Yes sir.

Justice William O. Douglas: And that we noted jurisdiction three days, after three days or before or three days after I guess it was.

Mr. Joseph Nessenfeld: Yes sir.

Justice William O. Douglas: His order became effective.

I wonder if there is an element of a contest here?

Mr. Joseph Nessenfeld: I don't think there is, Your Honor.

I see no point on that.

Of course, at the time the Governor acted, the true effect of what he did wasn't immediately apparent and it became apparent in the light of the decision of the Court in this case, which held that any release by the Governor would operate of itself to relieve the parties of their restraints imposed by the Judges.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: True.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: It has certainly litterally [Inaudible]

Justice Arthur J. Goldberg: Yes.

Mr. Joseph Nessenfeld: No question about that, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: Subject to judicial review.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: That is true.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph Nessenfeld: I may add Your Honor, it's not only a stike but also of the lock out is [Inaudible].

This statute works both ways.

As I say, we do feel that this case, there is no subject matter presently in existence upon which any Judge under this Court could now offer.

Now addressing myself in the brief time remaining to the merits; all that is involved in this case are certain sections of the act, not the act as a whole.

The Missouri Court held that the act was seperable and that irrespective of the validity or invalidity of any of the remaining portions, they didn't concede or make any intimation that means the rest of it was invalid.

But and so, these sections authorizing seizure and no strike during the pendency of the seizure stood on their own feet and were not related to necessarily, were independent of any provisions with respect to the State Mediation Board, powers, duties and functions of appreaing panels, also hearings or what have you.

So, the real question here on preemption is simply whether Congress by the enactment of the Labor Management Relations Act of 1947 intended or manifested clearly and explicitly an intent to [Inaudible] of a State of of Missouri or any State for that matter, the right in power to act on behalf of the public, not on behalf of either the Union or the employer, but on behalf of the public to protect the public in the event of an emergency, which threatens imminent disasters to the public health welfare and safety of the public and to by virtue of such threat to take possession of the property or utility not necessarily a transit, but gas or electric or other such more basic utility and to operate the same in the public interest, during the period of such State seizure and possession.

Chief Justice Earl Warren: Did the state operate it?

Mr. Joseph Nessenfeld: In my judgment, the State did Your Honor.

Chief Justice Earl Warren: What affirmative act of operation did it use?

Mr. Joseph Nessenfeld: The State -- Governor first appointed Mr. Daniel C. Rogers as the Chairman of State Mediation Board as his agent to take possession of property, and in his executive order he gave him broad powers and directed that the internal rules and regulations of the company utility remain in existence, and the company then acted as the agent of the state in operating the utility during the pendency of the seizure.

The law does not require that happen in that way, Your Honor.

Chief Justice Earl Warren: Is there any change in personnel or any direction of the company by the Governor or his agents?

Mr. Joseph Nessenfeld: There was no change in personnel, Your Honor.

As I said, the law does not require it be done in that way.

This was one of the alternatives facing the Governor and it seems to me is a very practical way of handling the situation.

Chief Justice Earl Warren: How is it done on the other occasions, when he seized the company?

Did the state on any of those other occasions operate the company?

Mr. Joseph Nessenfeld: In any other way, Your Honor, no.

That's the way it was done.

As I say, the law does not require to be done in that way and possession.

The fact that possession is conceded, it's admitted in the answer of the appellant's, that possession in this case carries with it the right of control and the right of control carries with it the right to decide how it should be operated during the tendency of the seizure.

Justice Byron R. White: [Inaudible]

Mr. Joseph Nessenfeld: No, Your Honor, it did not.

Justice Byron R. White: Well, what is an employer -- an employer or somebody who is paid among other things?

Mr. Joseph Nessenfeld: Yes.

Justice Byron R. White: The state didn't pay anything?

Mr. Joseph Nessenfeld: The state did not pay.

Justice Byron R. White: The only -- what you are saying is the state is excluded from being an employer?

Mr. Joseph Nessenfeld: No, Your Honor.

Our position simply isn't that the -- by virtue of the exclusion of the state as an employer from the national act that the state can do what it has done here.

We don't contend the state is the employer of these --

Justice Byron R. White: So the inclusion has nothing to do with the -- you put no weight on the exclusion?

Mr. Joseph Nessenfeld: We put no substantial weight on the exclusion, Your Honor.

Justice Byron R. White: And your point is that typically the incident and this comes down to the emergency?

Mr. Joseph Nessenfeld: It comes down to the emergency aspect with these added facts that when the state having taken possession as it did, no question about it, with the right and operating it as it did, when the state does so, no one whether they be employees or otherwise should have the right by concerted action.

Justice Byron R. White: But this doesn't fall within any express language in the act?

You are asking us to construe the act in a -- add another exception to it, as well as to add to the exception which covers state as the employer?

Mr. Joseph Nessenfeld: We are not asking you to add any exceptions at all, Your Honor.

We are simply saying that Congress in the act itself did not expressly manifest an intent to prohibit this type of action by the state.

Justice Byron R. White: Well, I thought potentially that was your intention with concerted activities with the act expressly?

Mr. Joseph Nessenfeld: Section 7 does protect concerted activities.

Justice Byron R. White: I thought the act expressly says nothing shall interfere with the right to strike.

Mr. Joseph Nessenfeld: I don't think the act is quite that broad, Your Honor.

Argument of R. Justice Brennan

R. Justice Brennan: Is it Section 13 of the –-

Justice Byron R. White: Except that otherwise the hearing provided, the word is otherwise --

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Section 13 provides that nothing in this act except that [Inaudible] construes it was either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right.

Now we contend there is no such thing as an absolute right to strike, anymore than an absolute right to do almost anything.

For example, a man -- facts of the example, may not shout Fire!

In the crowded theatre, but he may shout Fire! If there is no one around.

In this case, when the state in order to protect the public as a mutual, has nothing to do with the controversy between the employer and employee itself, but when there is a disaster threatening to the public and the state steps in to take action, then no one be the employers or otherwise shall have any right or should have any right to take any action concertedly to interfere with what the state is doing to protect the public interest and welfare.

Justice Byron R. White: And when the State takes possession in the name of what it ceases to be a public emergency situation, the right to strike should give way?

Mr. Joseph Nessenfeld: The right to strike doesn't give way, as such it is postponed.

Justice Byron R. White: But I suppose the employers in these situations would still be subject to an unfair labor practice charge if they interfered with the right to strike even in those situations?

Mr. Joseph Nessenfeld: Yes sir.

This act leaves untouched any right as between employer and employee in support, when I say this act, I am speaking solely of these particular sections and they are, because this act means these sections involving seizure and barring the strike, their pendency in seizure as construed by the Court in this case.

This act does not in any way affect the rights of either the employer or the employee into safety.

Rebuttal of R. Justice Brennan

R. Justice Brennan: You've said several times Attorney General, I think that there was possession, there was operation.

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Yes sir.

Rebuttal of R. Justice Brennan

R. Justice Brennan: Now what exactly was the first -- what was possession, did any state officers move in?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Possession, by moving in you mean into the offices of the --

Rebuttal of R. Justice Brennan

R. Justice Brennan: Did any state officials or anyone appointed by State, go in and take up --

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Yes sir.

Rebuttal of R. Justice Brennan

R. Justice Brennan: Head quarters of the offices of the transit company?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Mr. Rogers, the Chairman of the State Mediation Board was appointed the agent of that company for the purpose of taking possession.

Rebuttal of R. Justice Brennan

R. Justice Brennan: I know, but did he go in, did he open an office, did he -- what did he do?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: He didn't go in the office, I don't think.

I think he went in the office, but he didn't stay in the office, let's put it that way.

Rebuttal of R. Justice Brennan

R. Justice Brennan: Well exactly what did he do about running the company?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: He appointed to the company as an agent --

Rebuttal of R. Justice Brennan

R. Justice Brennan: Let the management go on just as it had been going on?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: The management went on as it had been.

Rebuttal of R. Justice Brennan

R. Justice Brennan: Did he participate in any policy decisions?

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: No sir.

Justice Byron R. White: Then I suppose, the company's taxes went on to.

Mr. Joseph Nessenfeld: Sir?

Justice Byron R. White: The Company's property tax liability went on too.

Mr. Joseph Nessenfeld: Yes, that's true.

Justice Hugo L. Black: What real change was there in the operation itself?

Mr. Joseph Nessenfeld: In the operation itself, there was no substantially real change.

Justice Hugo L. Black: Was there anything that --

Mr. Joseph Nessenfeld: I am not aware of it, Your Honor.

Other than the fact that they were subject -- they knew they were subject through the overriding control of the Governor's agent.

Justice Hugo L. Black: And they were subject to that under the law, before that happened, right?

Mr. Joseph Nessenfeld: No, Your Honor, they were never subject to that.

Justice Hugo L. Black: [Inaudible] you had the power to pass it, put them under supervision [Inaudible] they were under the law, weren't they?

Mr. Joseph Nessenfeld: They were under the law, everyone is under the law Your Honor, but they were not subject to the jurisdiction of the Governor's agent.

The Governor is the one who took possession and --

Justice Hugo L. Black: Maybe the Governor is the one that on paper took possession.

Mr. Joseph Nessenfeld: Call it paper, call it what you will Your Honor?

Justice Hugo L. Black: Well, was there anything else?

Mr. Joseph Nessenfeld: No, there was technical --

Justice Hugo L. Black: It has to be met on what it is --

Mr. Joseph Nessenfeld: There was legal possession --

Justice Hugo L. Black: Maybe it's all right, maybe it's all right, but that's all in one assessment.

Mr. Joseph Nessenfeld: There was legal possession.

Justice Hugo L. Black: Well there was --

Mr. Joseph Nessenfeld: But as I say Your Honor, the point I am trying to stress to the Court is that the act does not require it to be administered in this manner.

Maybe they made a mistake in doing it this way --

Justice Hugo L. Black: Well, that is a question of whether that's right and whether that violated the Labor Act, under the preemptive field, it is a different question.

Mr. Joseph Nessenfeld: Yes, Your Honor.

Justice Hugo L. Black: But what difference is the [Inaudible] that the State of Missouri passing the law and saying, you shall not strike and saying you shall not strike, at the same time delivered a paper to somebody and said, we take legal or theoretical fictional possession.

What's the difference?

Mr. Joseph Nessenfeld: I think there is substantial difference Your Honor, because in this case, the right to strike is affected only during the temporary emergency period.

Chief Justice Earl Warren: 14 months in this case?

Mr. Joseph Nessenfeld: It so happened in this case, it never has happened this long before.

Justice Byron R. White: Now the strike is over –-

Mr. Joseph Nessenfeld: You mean all other cases?

Justice Byron R. White: I mean that is [Inaudible]

Mr. Joseph Nessenfeld: It cannot last longer than the strike.

That is the outside maximum, but under the decision of the Court in Missouri, it should be terminated, possession should be terminated at a prior date and the union has the right under the opinion to request the Governor or the Court if the Governor refuses to terminate the possession, if conditions are such as no longer to require state possession, if the immanency of peril, disaster and jeopardy are no longer there.

Justice Hugo L. Black: Would you not have had precise to the same defense, whatever it is, if Missouri simply passed the law and said that during an emergency period of the public utility, for that could be closed by a strike, with great interest of the public welfare, there should be no strike.

Mr. Joseph Nessenfeld: No, Your Honor, the important thing here is the nature and character of the emergency.

Justice Hugo L. Black: Well, I understand that but you could have the emergency without going through the paper operations.

It may be that you have a right under the law.

Mr. Joseph Nessenfeld: Yeah, I understand that --

Rebuttal of R. Justice Brennan

R. Justice Brennan: I would like to you discuss your right, hold it free from a fictional possession.

Rebuttal of Joseph Nessenfeld

Mr. Joseph Nessenfeld: Well Your Honor, as I see it, there is no real way for a State in these circumstances simply bypassing the law to say that during the pendency of an emergency there shall be no strike because there must be some means of first determining the existence of the emergency.

Justice Hugo L. Black: Well, I suppose the law said that during -- the Governor is hereby given the right to determine whether there is an emergency which will affect the people adversely in connection with the public utility and to declare that there is one, when he does so declare, there shall be no strike during an emergency.

Mr. Joseph Nessenfeld: Well, that in effect is what was done here.

Justice Hugo L. Black: Well that is right, that's what I wanted you to discuss forgetting the fictiional transfer.

Mr. Joseph Nessenfeld: Yes, Your Honor.

The important thing here is that this act was enacted under the police power of the State to protect the public interest.

And we feel that no law enacted under the police power for that purpose should be deemed to be preempted by any federal statute unless there is some specific express mandate in the federal statute, which would so require.

And in this case, where the Statute -- as the Statue does, sorry the red light is on.

Chief Justice Earl Warren: You may finish your statement Mr. --

Mr. Joseph Nessenfeld: There were a statute, as this statute Your Honors limits the right to strike solely to the extent of an emergency, not an ordinary emergency, not any emergency created by any utility strike and not any emergency resulting from the interruption of services, but an emergency of such a nature, of such a drastic nature as to impair to a drastic extent and place the public health, welfare and safety of the public in imminent jeopardy and in those circumstances, those limited circumstances holding unlike the Wisconsin in which any utility strike constituted an emergency irrespective of jeopardy.

And this -- in these particular -- in this type of case, where the emergency is such that it must be as such to pose a threat of imminent disaster to the public and that type of case the State must be held not to be helpless because otherwise it is no man's land, no one can act – shall -- the answer is that Rome shall burn while Nero is fiddling, that's the effect of it is.

If the State can't act, if the State is rendered impotent and helpless to protect its citizens in the event of some dire drastic emergency, let's say not in this particular case, but what if it were of drastic nature, so the State can't act at all as is the position of the appellants here.

And I say that something is wrong and I don't think that Congress could conceivably have intended by the mere enactment of the Labor Relations Management Act to have taken over the field to such an extent that the State has rendered completely helpless to protect its citizens by exercising its police power.

Thank you.