SUPER TIRE ENGINEERING CO. v. MCCORKLE

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Argument of Lawrence Cohen

Chief Justice Warren E. Burger: We will hear arguments next in 72-1554, Super Tire Engineering against McCorkle.

Mr. Cohen.

Mr. Lawrence Cohen: Mr. Chief Justice and may it please the Court.

This case presents two issues for decision.

First, our substantial state welfare subsidy is to strikers which are payable solely because of the strike and impermissible intrusion upon the National Labor Policy of free Collective-Bargaining.

And second, whether declaratory judgment action to resolve that important issue is rendered moot when the particular strike, during which the payments are made is settled.

Notwithstanding that such payments continue and continue to have an effect on both the same employer and other employers in the state.

This case arose in May 14, 1971 when employees of Super Tire Co., who are represented by respondent Teamsters Local 676, struck to obtain an agreement as to their proposals for a new collective-bargaining agreement.

During the first 30 days of that strike, many of the strikers received public welfare assistance under a totally state-funded program, New Jersey’s General Public Assistance Program.

Subsequently, after a 30-day waiting period had elapsed, the strikers became eligible for and received assistance under a joint federal-state program, Aid to Families of Dependent Children.

The aided program is no longer in effect in New Jersey and has now been replaced by another totally state-funded program, Aid to Families of the Working Poor.

This action was filed on June 10, 1971 after the strike had continued for approximately three weeks.

It sought both declaratory and injunctive relief.

The crux of the case was the issue of whether the Supremacy Clause embodying the Federal Labor Policy precluded the state and federal welfare subsidies to strikers.

The argument was that such payments and the availability of such payments violated the National Labor Policy of free Collective-Bargaining.

This issue came before the court on June 24, 1971.

The company argued two things.

First, it argued that, as a manner of law, it was correct that there was a substantial state interference by the statute itself, by the regulations itself and, therefore, that was an impermissible intrusion of free and collective-bargaining.

It further offered to demonstrate through the testimony of state officials who were present, through the testimony of expert witnesses who were present that there was substantial interference in this particular case with the collective-bargaining relations between Super Tire and Teamster Local 676.

The District Court, however, orally dismissed the case under Rule 12b6 for failure to state a claim.

Four days later, on June 28, the strike ended.

The employees returned to work.

The company, there upon, appealed to the Court of Appeals for the Third Circuit which, in a lengthy divided opinion, dismissed the appeal as moot.

The basis for the Third Circuit’s opinion was the belief that this court’s decision in Oil Workers v. Missouri required a separate distinct rule for labor cases as opposed to other controversies and that in the labor controversy, at least where the government is a defendant, a finding that settlement of a strike would moot the termination of any issues that could arise as a result of that strike.

Justice William J. Brennan: Mr. Cohen, suppose we agree with you and it is not moot, what do we do with it?

Mr. Lawrence Cohen: I think you should decide it, Mr. Justice Brennan.

I think you should --

Justice William J. Brennan: They did not decide it below.

Why should we?

Mr. Lawrence Cohen: Well, there are several reasons.

We are dealing with an issue here, welfare to strikers, which has been presented on numerous occasions to this court.

It is probably one of the most controversial labor cases we have today.

Justice William J. Brennan: That do not overstate it.

Mr. Lawrence Cohen: Well, I do not think I am overstating it.

I am looking at the --

Justice Byron R. White: Well, that may be the --

Mr. Lawrence Cohen: That is the first --

Justice Byron R. White: Best argument for remanding it.

Justice William J. Brennan: Yes.

Mr. Lawrence Cohen: And it is also a case that, I submit, you do not have to have a record apart from what is already present to decide.

I think the case can be decided as a matter of law.

There is no need to take testimony here.

There is no need for an exhaustive analysis required.

There is no need to do anything but look at the state statutes and the state regulations which have been presented and are part of the Appendix.

Look at the briefs of the parties which this issue has been fully briefed to this court.

And then, I think, based upon those two considerations, a decision is possible.

I get --

Chief Justice Warren E. Burger: Have you cited any case to us in which this case has taken that route that you are now suggesting?

Mr. Lawrence Cohen: This court has decided cases where, in the interest of economy, it felt the record was complete enough to decide it even though if the lower court has found no jurisdiction.

We did not cite any case there, but I will be glad to supply the court with those in a supplemental brief if necessary.

I think once --

Justice William J. Brennan: Can you tell me, Mr. Cohen, are the New Jersey statute or a statute, whatever it is, is that a counterpart precisely of similar statutes in other states?

Mr. Lawrence Cohen: The New Jersey state statute, the General Assistance Program, has a counterpart in every state in the United States.

The New Jersey --

Justice William J. Brennan: I am speaking of welfare payments to strikers.

Mr. Lawrence Cohen: Yes, well, there are three statutes involved in the case.

We have totally state-funded New Jersey plan which operated during the first 30 days, the General Public Assistance Plan.

That type of statute has its counterpart in every state of the United States.

Justice William J. Brennan: In every other state, the strikers --

Mr. Lawrence Cohen: Under every state --

Justice William J. Brennan: Get payments under that?

Mr. Lawrence Cohen: Under that program, that is a state program, most of the states are divided.

Some pay strikers.

Some do not pay strikers.

Iowa does not pay strikers.

New Jersey does.

Maryland does not pay strikers.

Massachusetts does.

And so on down the line.

We also have a federal, the Aid to Families of Dependent Children Program.

That was in effect then, but it is not now in effect in New Jersey.

That is an optional state program, the HEW program under that.

The plain statistics I have seen, other 29 states have the HEW program at this time. Of those 29 states, there are approximately seven who have qualifications to strikers.

Maryland says we do not pay anybody who is not eligible for unemployment compensation.

Kansas and Nebraska say “we do not pay anybody who is engaged in unlawful strikes,” as I believe.

Some states say “we pay people but we do not pay anybody who is engaged in a lockout.”

And, there are limitations --

Justice William J. Brennan: And yet you suggest, despite these differences, that --

Mr. Lawrence Cohen: Well, I think the principle is whether --

Justice Byron R. White: If we decide this, it is going to be of national --

Mr. Lawrence Cohen: I think what the principle that needs to be decided is whether the states can pay welfare under the -- whether it is to people engaged in any form of economic pressure which is permissible under federal law.

That is really the question of whether that type of issue which pervades, I agree it pervades, state programs, applies unemployment compensation.

The states have generally many forms of assistance but that general principle, it seems to me, is an important principle that needs to resolved.

And, we think that this court either should decide it or, at the very least, provide guidelines for the District Court here if it does remand so the District Court will know how to apply a standard here.

This is an issue that I see is being litigated throughout the country.

At this time, there are no real guidelines as to how the lower court should operate.

So, even if the court disagrees with me and finds that there is an incomplete record here and it needs a better record to decide it, I would hope that it would provide some assistance to counsel, such as myself who has to litigate this case throughout the country, and would like to be able to be informed whether the huge test of the First Circuit is applied in Grinnell, for example.

Is that an appropriate method of proceeding in this area?

I would like to first address my comments to the mootness argument because that certainly was the basis for the decision below, and the only basis for the decision below.

I think the first consideration in the mootness area is whether the Court of Appeals was correct in saying that there should be a different mootness test for labor controversies or for controversies where the government is a defendant rather than a plaintiff or whether we should have a series of variables that will regulate mootness in cases that come up for appellate review or whether conversely, as we contend, there is an evolving mootness concept most recently articulated in cases such as Sibron and Moore which apply to all cases and govern for disposition of all cases regardless of what field of law is involved.

The court below, at the outset of its opinion, seemed to indicate that that was the rule.

They articulated four criteria of mootness which we think are appropriate.

They said the test are whether there is a possibility of an effective judicial decree, second, whether the controversy is concrete, third, whether the parties are under sufficiently adverse context to ensure effect of litigation and, finally, apart from all of the other tests whether we fall within Southern Pacific, the Moore test, where this is a recurring controversy that is likely to evade judicial review.

We think that under any of those four standards in this case, we have met each of those four standards.

Super Tire sought a declaratory judgment, not an injunction.

Effective decree which regulates the state policy as to both Super Tire and other employers are still possible.

Super Tire is going to be affected in the future and that is what it sought to have determined, its rights both present and future by means of a declaratory judgment as to whether the state can engage in the payments.

There is nothing in this record to show this is a faint or a hypothetical, or an abstract controversy.

Super Tire was harmed on one occasion, will continue to be harmed.

Other employers have been harmed and continue to be harmed.

This is a need for advisory opinion.

There has been actual injury and a live controversy that has taken place and continues to take place, and that is whether we regard this as a challenge to payment to strikers or availability to strikers.

The parties continue to remain in adverse posture.

Super Tire has collective-bargaining agreement contracts up this year.

The new negotiations will start.

There is a possibility of a strike again.

More than that, we have the fact that over 30% of all strikes in this country take place during a contract term, notwithstanding those strike clauses and the inhibitions on midterm contract strikes of voice market and gateway call.

The collective-bargaining negotiation is more than something that takes place once every three years and stops the continuing day-to-day ongoing relationship.

As long as strike benefits are payable to the striker, that is affected by the availability of the New Jersey policies that we challenge here.

Both the Firth Circuit in ITT and Grinnell cases, the Three-Judge District Court in Francis, each of these courts was confronted by a mootness contention and in a precise same situation we have here today.

And, each of those found the controversy not to be moot and that there was continuing relationships.

The Third Circuit said one strike with a length requisite to raise the issue has already occurred and nothing in the record suggest the unlikelihood of future repetition.

We think that same principle is applicable to this case.

Finally, this case presents what we believe to be a clear example of the continuing controversy, the type of controversy that might otherwise evade appellate review of the type that this court found to fall within the Southern Pacific and such cases as Moore v. Ogilvie and Roe v. Wade.

Strikes on the average, as we point out in our reply brief, lasts 11 days.

That is even a far shorter time than the period of pregnancy involved in Roe or the two-year ICC orders that were called short-term and evasive of review in Southern Pacific.

If this case is found moot, every trailer is the state welfare law is a basis of preemption in the country is likely to be similarly rendered moot before we can have an appellate decision.

An entire class of cases would be denied review and avenues of appellate decision will be denied for an important state federal controversy in an important preemption area.

Justice William H. Rehnquist: Mr. Cohen, if you are challenging a New Jersey state regulation, does not the New Jersey Court system not provide some way for challenging that through a system of administrative appeal and then go to the courts?

Mr. Lawrence Cohen: Well, the challenge to New Jersey -- it is not like unemployment compensation.

As far as I understand it, you can bring an administrative determination.

An administrative determination has been made.

Payments are being dispensed during the strike.

We had not choice at the time.

The only way we could enjoin those payments to prohibit the strikers from getting them and, thereby, irreparably injuring our situation.

Justice William H. Rehnquist: But a typical state administrative procedure act will provide that a regulation can be challenged just on a declaratory judgment type of basis.

Mr. Lawrence Cohen: The challenge here would have been, whether there is such a procedure I am not sure, but the challenge in this case would have resulted -- there has been a decision by the New Jersey department that administers the law.

The State Attorney General has said that is a correct decision.

Justice William H. Rehnquist: Well, why can you not take that to the New Jersey courts?

Mr. Lawrence Cohen: I suppose we could take it to the New Jersey courts, but the New Jersey courts would not be in position to agree with us that what we are challenging here, I suppose I could, is a violation of a federal right.

Justice William H. Rehnquist: They are sworn to uphold the federal constitution too, are they not?

Mr. Lawrence Cohen: That is right, but that is not our exclusive form.

We think the federal courts are the appropriate place, not necessarily the only place but certainly the appropriate place, for resolving questions of federal preemption.

Justice William H. Rehnquist: Well, your mootness argument then really is that when we are talking about evading review and that sort of a thing.

That the mootness ought to be tailored so that you can, even with a short-lived controversy, get a review on a federal court every time the preemption arises.

Mr. Lawrence Cohen: Well, presumably, if it is moot in the federal court, it would be moot in the state courts as well.

Justice William H. Rehnquist: I would think, if you recall the Dorimas case some years ago in this court, the Supreme Court of New Jersey apparently has different rules as to mootness than we have.

Mr. Lawrence Cohen: Well, this court has said on occasion that mootness of a preemption issue is a federal question.

So that even if the State Court, for example, had a different rule, this court would still apply its own rule.

I think we could go to the New Jersey courts.

My feeling was that at that time, that would be a futile act.

The New Jersey courts have issued and not ruled on this question precisely, but there certainly have been determination by New Jersey officials here.

We felt that this was presenting squarely an important federal issue that ought to be resolved not just for New Jersey but generally and that, therefore, the appropriate form was rather than go to the New Jersey courts you go to the federal courts.

And, that is why we commenced this action.

Now, the point I was making is that if that is going to be decided as moot, whether by reason of the fact of the strike itself, then there is no way that we are ever going to be able to get.

We or any other employer throughout the United States is ever going to get review of the question.

And going to this court’s opinion in Liner v. Jafco, that is the exact type of situation which should not occur when you are dealing with a preemption problem.

Preemption issues are particular problems where the court should be very careful to avoid hindrances in the light of decision.

And that is what we think, as I say, would be the result here and it would certainly be the result with 11-day average strike period should this court agree with the Third Circuit on mootness.

Before I turn to the merits, I just wanted to address the Oil Workers case which is the basis for the decision below.

We do not think that case stands for the proposition that there is a distinct or different or new rule for labor controversies.

Rather we submit that that case which was a situation involving the emergency seizure by the governor of the state which was a discretionary power of a public utility confronted in the labor situation.

The crux of that case, we think, are three-fold where it is different from our case, first, the emergency discretionary speculative nature of any reoccurrence.

Secondly, the fact that if the governor seized another utility and there is no showing that some other plaintiff could not have come in and it did not fall within the Southern Pacific Doctrine.

And finally, and perhaps most significantly, the plaintiffs in that case has sought to enjoin only a specific act, mainly the seizure of the utility.

They did not seek, as we saw here, a declaratory judgment which would affect future as well as present rights.

For all those reasons, we think that the defendant and oil workers perhaps have met this burden of showing that there was no likelihood or reasonable expectation that the wrong would be repeated.

In this case, we do not think the defendants had met this burden, that there has been continuing irreparable injury that continues to occur as long as there is availability on the books, and that ought to be a controversy this court ought to address.

Justice William H. Rehnquist: Mr. Cohen, in Moore against Ogilvie, which you cite, had the case been deemed moot from the beginning by the lower courts or had it become moot between the time of the lower decision and in this court’s proposed decision?

Mr. Lawrence Cohen: It was certainly moot before it reached this court.

Justice William H. Rehnquist: Is that not somewhat different than to say that Moore against Ogilvie, in effect, protects this court’s right to review a recurring problem when the lower courts have decided it in a concrete non-moot context as opposed to what you are asking here which is basically that you start out in the Federal District Court, your court of first jurisdiction with something that may already be moot.

Mr. Lawrence Cohen: No, that is not what we have here.

We had a controversy that when it reached the District Court it was not moot.

The District Court here did not find it to be moot.

There was no argument that it was moot before the District Court.

The District Court decided on the merits entirely against us.

The District Court said that there was no way that we could ever prove that welfare payments to strikers constituted a substantial interference.

It read the ITT v. Minter case in the First Circuit as ruling out any possibility that we could ever make proof to meet the allegations of our complaint.

Now, subsequently, the First Circuit in Grinnell explicated ITT to say that is precisely what it did not mean ITT to say.

So that I think there is no question that the District Court’s reading of ITT, which was the basis of its decision, is wrong.

It was the appeal on that basis, similar to the appeal that the employer took in Grinnell and the same where the District Court did the same thing.

That was the basis for appeal and it was four days after the District Court decision that the strike settled and, therefore, raised the mootness controversy.

That is when the employees returned to work.

Now, there was a statement made at the hearing before the District Court that the employees had ratified the agreement and were going to return to work the next working day which was Monday, 28th, but there was never any contention or argument or finding by the District Court that that mooted the controversy at that point.

I would like to turn to the merits of the case which, again, I think are significant, worthy of decision, and which this court should either decide or provide significant guidelines for the lower federal courts.

The crux of our position is this.

The basis of federal labor law is the voluntary private --

Justice Byron R. White: There is one more thing on the --

Mr. Lawrence Cohen: Sure.

Justice Byron R. White: On mootness.

This was unemployment compensation?

Mr. Lawrence Cohen: No, this was welfare assistance, state and joint federal-state welfare assistance.

Justice Byron R. White: Does the same argument about it arise out of other unemployment --

Mr. Lawrence Cohen: The same mootness argument would arise.

The Grinnell case --

Justice Byron R. White: How about the same preemption case?

Mr. Lawrence Cohen: The same preemption argument was raised in Grinnell.

Now, I think that the unemployment compensation presents a somewhat different principle in the sense that unemployment is a direct tax on employer, there is no need standard.

But, I think the same general principle should govern the disposition of all cases.

Justice Byron R. White: This is a different mootness argument.

Mr. Lawrence Cohen: No, I do not think it is because in each case in Grinnell -- the ITT involved welfare.

Grinnell involved unemployment compensation.

Justice Byron R. White: Yes but if you can pay it, then you certainly have a stake in what your rate is going to be of continuing state --

Mr. Lawrence Cohen: That is right, except in Grinnell, it was not directly charged to the employer.

Justice Byron R. White: This does not involve that.

Mr. Lawrence Cohen: This involves welfare.

In Grinnell, it was taken out of a general pot so that the employer there did not have to pay a particular share as opposed to other states where it is directly taxed to a single employer.

There was no argument to that.

The court found it not to be moot because of Southern Pacific and because the likelihood that there would be another strike involved with the same employer, and that is really the basis of our position here.

I want to save a few minutes for rebuttal, but I would like to spend some time on merit argument.

The federal labor law, we believe the core of the federal labor law is the voluntary private adjustment of disputes.

The federal labor law has set up a framework which indicates that certain types of conduct in the disposition of disputes certain types of economic pressure by Unions, secondary boycotts, violence, partial strikes are forbidden.

But where there is no such regulation, it is an area which Congress has specifically intended to be free.

Congress, in order to decide which area is to be free and which area is to be prohibited, has weighed the interest of employers, of Unions, of public, and of the employees involved.

Where the area has been decided to be free, where Congress has not regulated it, then neither the Labor Board in cases such as Porter or American Ship Building, or the states in cases such as Morton may impinge upon that area.

In Morton, for example, the state attempted to provide damages for certain types of Union economic pressures which the federal law has held to be lawful.

This court held such damage awards to be impermissible, that the state had interfered with the balance struck by Congress.

Now, we think that principle is similarly applicable here.

A state, by insulating one party from the economic disadvantages of the strike, by ailing its treasury on the side of the Union’s economic power has tipped the scale.

It has affected the balance.

A striker who is receiving substantial state welfare payments is going to have a different result and a different determination and approach negotiations in a different manner than the striker who is not getting money from the state.

Justice William J. Brennan: How generous are the state generals?

Mr. Lawrence Cohen: Well the estimate, according to the expert testimony that is contained in the Appendix, is they run anywhere from 30-70% and maybe even higher in cases of a pre-strike take home pay for strikers.

If you look at the striker’s pre-strike take home pay -

Justice William J. Brennan: How about New Jersey?

Mr. Lawrence Cohen: In New Jersey, the record does not contain any evidence.

The testimony we are prepared to put on show that the benefits in this case ran 70% or more pre-strike take home pay based upon the wage rates for the employees involved and the level of assistance in the State of New Jersey.

The employees are making more money.

It would have been a lower percentage.

Justice William J. Brennan: Pretty absolute stake.

Mr. Lawrence Cohen: Well, this is not uncommon.

As I say, the expert testimony is that is pretty standard.

Now, this can increase.

You have got other forms of assistance, unemployment compensation for example.

It can also kick in and you can have several different benefits.

I think the important point here, two points before I close.

The important point here is that New Jersey has created a special rule of law which is applicable only to strikers.

These are benefits that would not be payable to any other person seeking benefits and seeking welfare in the State of New Jersey.

Anyone else in New Jersey who was physically and mentally capable of taking a job is ineligible for welfare assistance if he refuses to take the job.

A striker, by federal law, has a federally protected right to a job and, yet, he is not taking that job.

Now, we submit that that is a special exception, not of general application rule as the state would encourage, but a special exception that has been carved out only for strikers and which necessarily affects the area which Congress designed to be free.

The second thing that I think is significant here is that what we are talking about is not something that would have existed and continued to exist before the strike, but something that has tilted the balance right at the status quo before the strike commenced.

And this type of interference where the state has gone in and created a special policy that applies only to strikers and is a direct interference with state law regardless of the state interest involved.

Justice Byron R. White: Do you object to welfare employees who are locked out?

Mr. Lawrence Cohen: I think that as long as the employees are engaged in a federally protected activity, it was a permissible lock up, then they ought not to get welfare assistance and ought not to get any state help.

I think the private parties can go in and always assist.

The Union is entitled to use its strike funds.

It is entitled to get other assistance.

But once the state gets involved in ailing its economic power with the economic power of the Union itself, then I think we would tip the scale and that is really the crux of our position.

There has been much discussion in the briefs about the federal policy on AFDC.

Let me say this again.

The AFDC Program is no longer operative in New Jersey.

The program that we think is the only program now operating are state-funded programs.

But more than that, in New Jersey --

Justice Byron R. White: The AFDC is not operative in --

Mr. Lawrence Cohen: That is correct.

Justice Byron R. White: Did New Jersey withdraw?

Mr. Lawrence Cohen: New Jersey withdrew it from the HEW program of the AFDC, the one that benefits were payable under here.

Secondly, even if we go to the AFDC policy for the reasons that we have covered in our reply brief, we think Congress has not sufficiently spoken in that area to give any indication of its intent.

I would like to reserve the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. O’Brien.

Argument of Robert O’brien

Mr. Robert O’brien: Your Honors, we represent the respondent Teamsters Local Union.

By leave of court, we have been permitted to divide our oral argument with the counsel, Deputy Attorney General, who represents the public officials in this matter.

The state has not argued mootness.

We, however, have argued mootness.

We would like to make several points, if we may, relative to the record below.

Initially, Your Honor, we would think that the court, in reviewing this case, should have as its starting point, the complaint which was filed by Super Tire.

If the court examines the complaint, I think the court can see in effect that Super Tire was complaining not about welfare benefits in general, but rather than the granting of welfare benefits to the particular employees of Super Tire during the time that they were on strike.

And, I think that is rather important sense in effect, I think it puts this particular lawsuit into a certain time frame.

Additionally, Your Honor, at the hearing below, and I think this is important, Judge Kitchen in the District Court took no testimony.

However, he did allow oral argument of all counsel and it was at that time that we raised the issue that this case, in effect, was something that the court should not get into under ITT versus Minter.

But we also raise, Your Honor, and I think it is important and it is in the Appendix rather clearly, that we raise the issue of mootness.

We told the court at that time in the Appendix, and I think it is rather clear, that the strike was over.

That the day before the hearing, June 23rd, the employees voted to return to work and that the employees were about to go back to work on the next working day.

And then, employer's counsel agreed that the strike had ended and that the employees were making preparation to go back to work.

So, in effect, what we have is a suggestion of mootness not on appeal, but a suggestion on mootness at the District Court level.

The United States --

Chief Justice Warren E. Burger: What do you have to say about Mr. Cohen’s argument that by definition, a striker is refusing to take available work and it is therefore, under New Jersey law, automatically ineligible for New Jersey welfare relief?

Mr. Robert O’brien: If Your Honor please, I am going to refer to my co-counsel, the Deputy Attorney General, who will get into the merits of it.

I would simply note that you can also take the opposite view and, in effect, say that a man who exercises his federal right to strike in effect would be discriminated against by the State of New Jersey denying him welfare benefits because the argument has been raised.

We would go on to ask the Court to particularly examine the rather (Inaudible) opinion of Judge Adams below who pointed out that there are, generally, different kinds of mootness criteria which have been applied.

We will take issue with counsel for the petitioner who says that the type of case involved is what is important.

We think that the particular criteria spelled out by Judge Adams below are somewhat criteria which have always existed but which come up with different results depending on the type of case.

Judge Adams put particular emphasis upon oil workers, and we think it was well-placed.

Oil workers, in effect, concerned a labor dispute where the state seized or the state declared that a private employer was a public employer and, therefore, the employees had no right to strike.

By the time the case got up to this court, the court said that the labor dispute is over.

There, we could again say that the court would never really have that kind of a case before it but, yet, three years later, the labor dispute continued in Bus Employees versus Missouri and the court did get an opportunity to review the case.

So, what I am suggesting to the court is that we are not faced with the situation where this is continually evading review.

There is a case now pending in the Eastern District Court from Michigan where the strike itself has continued rather for two years.

So, we are not faced with something which was pointed out in ICC versus Southern Pacific that is going to continually evade review.

Rather, we think this is something that the court should really decline to look at and decline to act upon under the Article 3 clause that we got to have a concrete case.

Justice William H. Rehnquist: Do you say all the employer has to do is to wait for a good long strike?

Mr. Robert O’brien: Well, I think the employer has got to be personally affected by what is going on.

That he has got to have something harmed befalling him, and I do no think we have the harm befalling Super Tire at this posture of the case.

In effect, Super Tire claims that there is a continuing effect upon it.

But then, in Oil Workers, the employees said that they could have a continuing effect upon them since they did not have a right to strike.

But the court said that is somewhat speculative and here too, we think to say that this employer has as continuing controversy and that the case is still alive ignores the realities of the situation.

We, as the Union, have a contract with this employer.

We are at peace with the employer.

We do not feel that we have an antagonistic interest with him.

The State of New Jersey, as such, is not doing anything to this employer.

We would also point out to the court in Oil Workers.

Mr. Justice Stewart pointed out a very good point that if the court acted, they could not really issue an effective order because, in effect, in Oil Workers the labor dispute was over.

Here too, if the court were to issue an order, it would be ordering the respondent State Officials to do that which they have already done, which is already done with.

They would be ordering them not to make welfare payments to the particular employees involved and, as such, it would be impossible to do anything because, quite frankly, they are no longer making these welfare payments.

We would, therefore, think that the case of Oil Workers and the four criteria relied upon by the judge below, Judge Adams, should be affirmed.

I think in closing on the mootness issue itself, I think the words of Judge Adams were quite --

Justice Byron R. White: Though, while doing that you would lose your favorable decision in the District Court.

Mr. Robert O’brien: I am sorry, Your Honor.

I do not understand.

Justice Byron R. White: Well, it was vacated.

Mr. Robert O’brien: The decision below was vacated in the District Court and a new order was told to be entered by the District Court.

Justice Byron R. White: In this --

Mr. Robert O’brien: Yes, that is correct, Your Honor.

In effect, the words of Judge Adams that “A court acts only when called upon to act, can it legitimately act at all?”

Here, I do not think the court can say that it is really required to act since the strike has ended, since this matter has now in effect terminated between this employer and these employees.

We would, therefore, ask the court to look at the four criteria, to look at Oil Workers which is very, very applicable rationale and, in effect, declare this case to have been mooted out below.

Thank you.

Chief Justice Warren E. Burger: Mr. Skillma.

Argument of Stephen Skillman

Mr. Stephen Skillman: Mr. Chief Justice and may it please the Court.

The single issue on the merits of this case is one of congressional intent.

Has Congress expressed the intent to prohibit the payment of welfare benefits to strikers?

I think the petitioner would agree with that formulation of the issue.

Justice Byron R. White: What is the state’s view on the mootness issue?

Mr. Stephen Skillman: Your Honor, the state is in a somewhat anomalous position on --

Justice Byron R. White: Do you say it is moot or not?

Mr. Stephen Skillman: We would say that if our analysis of the merits of the case is correct, that you look to the -- I do not mean ultimately on the merits but I mean, as to what you look to, the general legislative history.

This is a question of abstract general law applicable across the board and not depending on the particular facts and circumstances of the 1971 strike then --

Justice Byron R. White: You do not represent them, do you?

Mr. Stephen Skillman: Yes, I do, Your Honor, the state officials, the Commissioner of Institutions and Agencies, and the Director of the Division of Public Welfare.

But, we have not urged in any point of this obligation, Mr. Justice White that the case should be disposed off on grounds of mootness.

We have not gone to the other extreme of taking issue with it.

We have just not taken a position on this issue.

Thank you.

Chief Justice Warren E. Burger: Mr. Skillman, you may continue.

Mr. Stephen Skillman: May it please the Court.

As I started by indicating prior to the luncheon break, I think that the state is on common grounds with the petitioner in saying that this case on the merits, involves an issue of congressional intent.

Our area of disagreement, however, is whether in ascertaining that the intent of Congress -- the court should look to the National Labor Relations Act as urged by the petitioner or whether as urged by the state, it should look to the Federal Categorical Assistance Provisions of the Social Security Act.

If Congress had not dealt comprehensively with the subject of welfare in the Social Security Act, then it would be arguable certainly that the court should look to the National Labor Relations Act, look to certain underlying principles in the National Labor Relations Act with regard to collective-bargaining, whether or not those principles require a principle of neutrality by the state in labor disputes and whether or not there is an important countervailing state interest, as we certainly would say that there is, in providing assistance to the needy.

However, the primary welfare programs in effect in this country today are themselves federal programs enacted by Congress, as was the National Labor Relations Act.

And since the provisions of the Social Security Act, dealing with those welfare programs, specifically outline conditions of eligibility for the receipt of welfare, rather than as to these provisions enacted by Congress, rather than the general provisions of the National Labor Relations Act dealing with collective-bargaining that the court should look in ascertaining whether or not it was the intention of Congress to prevent the payment of welfare to needy individuals who happened to be on strike.

Now, when you look to the Social Security Act, you find no such expression of congressional intent.

Rather, with the main Federal Categorical Assistance Program and the one, remaining principal Federal Categorical Assistance Program still in effect in New Jersey, that involving the so-called one-parent household, there are two criteria of eligibility.

One; that a parent be dead, absent from the home, or disabled, and two; that there be the requisite need.

Now for the court to hold that there is a disqualification from the receipt of benefits under this program for strikers, it would, in effect, have to read into the Act, a further condition of eligibility which is simply not in the provisions of the Federal Social Security Act.

Justice William J. Brennan: Have there been any practice in New Jersey, before New Jersey withdrew from AFDC, on payments in such versions like this under AFDC?

Mr. Stephen Skillman: Your Honor, it is my understanding that it is difficult to piece this fact before ’57 which is the day of the regulation in question here but it is my understanding, that New Jersey under the Federal Categorical Assistance Programs has never disqualified strikers.

Justice William J. Brennan: It never goes back therefore --

Mr. Stephen Skillman: Never, I assume back to 1935, but my source of knowledge is --

Justice William J. Brennan: My recollection is not that.

Mr. Stephen Skillman: My source of knowledge, as I say, is internal agency memoranda from the middle 1950s which indicate that that was the case with respect to the Federal Categorical Assistance Programs.

Justice William J. Brennan: That is the middle 1950s?

Mr. Stephen Skillman: That is the date of the memoranda which, I must say, are my only vision of what occurred prior to the middle 50's.

But, those memoranda indicate that benefits have been paid on the Federal Categorical Assistance Programs but not under state general assistance.

And it was because there was considerable controversy with respect to state general assistance that we had several bills that went into the state legislation in the middle of the 1950s and, finally, the regulation which has become the focus of this case and which, although by its terms is only applicable to state general assistance, has, as a matter of administrative application, been applied to the Federal Categorical Assistance Programs as well.

Chief Justice Warren E. Burger: Mr. Skillman, Mr. Cohen in his presentation suggested that, by definition, a striker was ineligible under New Jersey statutes because New Jersey limited payments to a person who was ready to accept work, if that work was available and, again by definition, a striker is rejecting work which is available, what do you have to say about that in terms of the New Jersey statute?

Mr. Stephen Skillman: Your Honor, first of all with respect to New Jersey’s participation in the Federal Categorical Assistance Programs which is the main part of this case we are, of course required to abide by federal requirements and not by state requirements except to the extent that the state may have the option to augment or supplement federal requirements.

But my understanding is that, under both the applicable federal and state provisions, that there were ordinarily certain exceptions to this but, ordinarily, an applicant for assistance must be prepared to seek and accept work.

And, I do not think the striker would be any exception to this.

In other words, he has an obligation to seek and accept work other than work with the employer from whom he is striking.

Chief Justice Warren E. Burger: Well, who fits in this “other than”?

Is that your reading of the statute or does the statute say “other than”?

Mr. Stephen Skillman: No, all the statute says is that anyone who applies for categorical assistance or general assistance must be ready to seek and accept employment.

Chief Justice Warren E. Burger: Yes.

Well, now, Mr. Cohen’s point is that a striker is automatically ineligible because he is refusing to work in a very vigorous way, is he not?

Mr. Stephen Skillman: Well, he is refusing to work for one particular employer.

He is not refusing to work for another employer and it is not that uncommon for someone who is out on strike, particularly when you are speaking about a lengthy strike --

Chief Justice Warren E. Burger: All I am trying to get at it.

Who writes in this exception that you are talking about?

Where does that come from?

Mr. Stephen Skillman: I do not think that it is an exception.

I think, on the face of the statute, there is an obligation of any applicant for assistance to seek and accept employment.

That is not limited to any particular employer, and the --

Chief Justice Warren E. Burger: But what is New Jersey’s position on that?

Mr. Stephen Skillman: New Jersey’s position on that is that the striker may be called upon to seek and accept employment with an employer other than the employer from whom he is on strike.

Chief Justice Warren E. Burger: We are going around in a circle.

Where does New Jersey get the authority for making the exception if the statute is as Mr. Cohen described it?

Mr. Stephen Skillman: I think that all the statutes says --

Chief Justice Warren E. Burger: That he must accept work if available.

Mr. Stephen Skillman: That is correct.

Chief Justice Warren E. Burger: And he is declining to accept work which is available with his regular employer, is he not?

Mr. Stephen Skillman: That is correct, with his regular employer but not generally refusing to accept employment.

Chief Justice Warren E. Burger: Well each time you come back, and I am still unenlightened, you read an exception into the statute for the particular employer who has been struck.

What is New Jersey’s position on that issue?

Mr. Stephen Skillman: Well, the position has to be that the employee is permitted not to go back to work with that particular employer and I think that the foundation for that position by the State of New Jersey, itself draws sustenance from the National Labor Relations Act.

Justice William J. Brennan: Well, this has to mean, I gather it.

That if the only possible work available is that struck plant where he is striking New Jersey, nevertheless, pays him welfare benefits because New Jersey does not require him to accept work at the struck plant.

Is that it?

Mr. Stephen Skillman: That is correct as a matter of --

Justice William J. Brennan: I would be interested to -- is this a matter of administrative interpretation of the requirement or is there a New Jersey court decision that says this?

Mr. Stephen Skillman: There is no court decision on this point, Your Honor.

And, certainly, in the face of the regulation which was the focus of the case, all that regulation says is that an individual is not disqualified from receiving welfare benefits by virtue of being on strike.

It does not go on and deal with the various situations which may arise under -- satisfying the various conditions by their federal or state statute.

Justice William J. Brennan: Did I understand you, Mr. Skillman, to say that New Jersey did disqualify them, at least insofar as the Federal Categorical Assistance Programs are concerned, New Jersey would violate the provisions of the federal requirements?

Mr. Stephen Skillman: Well, the federal requirements are quite similar with respect to an individual being willing to accept work so I would say, no.

Justice William J. Brennan: That is what I thought, so that New Jersey could disqualify him because he refused to accept work without violating any federal statute?

Mr. Stephen Skillman: That is correct.

Justice William J. Brennan: So that there would be no conflict at all between the federal welfare laws and the labor laws if he was disqualified.

Mr. Stephen Skillman: No, but that has not been the focus of --

Justice William J. Brennan: Well --

Mr. Stephen Skillman: --of this case.

Unknown Speaker: Some of the argument is that you should look to the welfare laws for guidance here and not to the labor laws.

If you look to the federal welfare law which is thought to preempt here or is thought to be forceful enough to preempt the labor requirement, if you look to that, there is just no conflict between that and the labor law, is there?

Mr. Stephen Skillman: Well, when you say that in the labor law, there is certainly a great conflict between the provisions of the Social Security Act and what the petitioner would like to read into the labor law.

Justice William J. Brennan: Why?

Mr. Stephen Skillman: Because the Federal Act requires two principal criteria of eligibility.

One; that you have the one-parent home and, number two; that there be need.

Justice William J. Brennan: Yes.

Mr. Stephen Skillman: Once those two criteria are satisfied --

Justice William J. Brennan: I know, but I just asked you if a man refuses to take a job, is there need?

Mr. Stephen Skillman: There still is need, certainly.

Justice William J. Brennan: I know, but it does not -- you just told me it would not violate the federal law if this man was disqualified.

Mr. Stephen Skillman: Individually, he may be disqualified.

His family may not be disqualified, so that you are talking -- in that type of situation, if I can get away for a second from the labor content but let us take an individual who refuses to work.

He says “I do not want to work.”

Justice William J. Brennan: Okay.

Mr. Stephen Skillman: The family may still receive assistance under Federal Categorical Assistance Programs.

That particular indolent individual, his needs will not be included in the calculation of the needs of his family.

Justice William J. Brennan: But New Jersey includes him.

Mr. Stephen Skillman: Well, New Jersey would not include him if, in fact, he has not taken available work.

New Jersey requires, as does the Federal Government --

Justice William J. Brennan: But you do not interpret as strike as staying away from work on account of a strike is refusing to take available employment.

Mr. Stephen Skillman: That is correct.

Justice William J. Brennan: Although the federal law would not be inconsistent with federal law if you did disqualify him.

Mr. Stephen Skillman: Not inconsistent with federal law?

Justice William J. Brennan: If you did disqualify him.

It would be consistent with federal law if you did disqualify him.

Mr. Stephen Skillman: I think it would be consistent with the Federal Social Security Act to disqualify the individual but not his family if he is available for work.

We get right back around to the same question and that is what is the meaning of refusing to take available work, and when you have a strike situation, can it fairly be said that there is available work taking into account, as the petitioner would have the court in other respects taking into account, the policies which underlie the National Labor Relations Act --

Chief Justice Warren E. Burger: And let me see if I have this --

Mr. Stephen Skillman: Would make it permissible.

Chief Justice Warren E. Burger: Now, that interpretation is, by virtue of a regulation, that construction is by virtue of regulation of the New Jersey Welfare Department or just their policy added to it?

Mr. Stephen Skillman: In terms of “available for work”?

Chief Justice Warren E. Burger: Yes.

Mr. Stephen Skillman: It is my understanding that this is the policy of the New Jersey Division of Public Welfare not expressed in the regulation and that it is also the position with respect to the Federal Categorical Assistance Programs of the Department of Health, Education, and Welfare.

So, we are not talking here about the position of the State of New Jersey alone but I think a position in common with that, held by the Department of Health, Education, and Welfare with respect to the meaning of “available for work”.

I guess --

Justice William J. Brennan: I gather, Mr. Skillman, that all that New Jersey has withdrawn from effective June 30, 1971 is the unemployed parent segment --

Mr. Stephen Skillman: That is correct.

Justice William J. Brennan: -- of the AFDC.

New Jersey still participates, otherwise, in the AFDC Program.

Mr. Stephen Skillman: And the other parts of the program that it participates in are the principal parts of the program.

In the present time, in New Jersey, we have 422,000 people on --

Justice William J. Brennan: But so far as the --

Mr. Stephen Skillman: AFDC.

Justice William J. Brennan: Unemployed parent segment is concerned, to the extent he has covered, he is covered under New Jersey’s own Assistance to Families of the Working Poor.

Mr. Stephen Skillman: That has taken the place, as of July 1, 1971, of the unemployed parent segment.

Justice William J. Brennan: Now, the regulation that we have here is a regulation applicable to that state program, Assistance to Families of the Working Poor?

Mr. Stephen Skillman: By its terms, it is applicable only to general assistance which AFWP does not technically fall under.

Justice William J. Brennan: Yes.

Mr. Stephen Skillman: As a matter of administrative application, it is applied to general assistance, to AFWP, and to the Federal Categorical Assistance Programs.

So, as a atter of administrative application that is applied across the board.

Justice William J. Brennan: I do not see how it is applicable to the unemployed parent segment of the AFDC Program that you have withdrawn from.

Mr. Stephen Skillman: Well, it does not apply to programs that we are not participating in but it is applicable to all programs that the State of New Jersey is participating in.

Justice William J. Brennan: Where --

Mr. Stephen Skillman: So --

Justice William J. Brennan: Where the unemployed parent is a consideration.

Mr. Stephen Skillman: No, that is the one program --

Justice William J. Brennan: When Mr. Cohen suggested that if we get to the merits we ought to decide it here without sending it back, or the life will be -- everything you have said indicates more forcefully -- if we agree that this case is not moot in the first instance, we have got to send it back and let the Three-Judge Court wrestle with it.

They will know a lot more about the New Jersey situation than we could possibly know.

Mr. Stephen Skillman: Your Honor, if I may briefly direct myself to that question because I think it is important.

I think that when this case is fully analyzed, it will be shown that the case really turns on an analysis of the meaning of federal statutes, most specifically the Federal Social Security Act.

If we are wrong in this and if the case requires factual development, then I think it is obvious.

This court cannot decide the case.

Justice William J. Brennan: It may involve more than that.

It may involve some questions of construction of the New Jersey statute.

Mr. Stephen Skillman: Likewise, if it involves those sorts of questions, I, again agree the case would have to go back before the courts could reach the merits but I do not think that it does.

Justice William J. Brennan: I suggest, Mr. Skillman, some of the things you have been saying to us indicate that matters of construction of the New Jersey statutes may be very significant.

Mr. Stephen Skillman: I may, Your Honor, have to the extent that my response to some of the questions may have suggested that there is not a congruence between the New Jersey statutes and Federal statutes and between New Jersey administrative interpretations and federal HEW interpretations.

I think I might have suggested that, but I think that that is incorrect.

That essentially, all that New Jersey is doing with respect to both the Federal Categorical Assistance Programs and its own state-created programs is what is required by the Federal Social Security Act in what has been recognized to be required by the Federal Social Security Act.

Justice William J. Brennan: That is what we held in Davidson against Francis, is it not, in affirming per curiam, that District Court decision of Maryland?

Mr. Stephen Skillman: Well, I think that there is some dispute as to what exactly the court did hold there because, and I think that the petitioner rightly points out in his reply brief that, the jurisdictional statement filed by the State of Maryland did not specifically raise the issues that are being raised at this time.

A jurisdictional statement filed with the Chamber of Commerce did, however.

But, as a technical matter, that was dismissed on procedural grounds and not on the merits.

So, as a very technical matter, it may be said that this court has not already reached this issue in Davidson but I think --

Justice William J. Brennan: Well, what do you think was decided in Davidson?

Mr. Stephen Skillman: I think that that case involved specific questions of interpretation of the unemployed parent segment of the AFDC statutes.

Justice William J. Brennan: Right, and the District Court held and we affirmed it, as I remember it.

That Maryland was required under the federal statute to make payments to unemployed parents who are unemployed by reason of a labor dispute.

Is it not correct?

Mr. Stephen Skillman: I think that is what the court held, but I would have to concede that that District Court opinion is difficult reading.

It can be read to have dealt solely with the conformity of what Maryland was doing with certain federal regulations without going further to the next step of examining the provisions of the Social Security Act which those regulations were predicated on.

It is a difficult decision.

Justice Byron R. White: Mr. Skillman, you have said that there is a distinction, for the purposes of discussion, between a party on strike and an able bodied person not on strike who just nevertheless refuses to take a job.

I am thinking about how you would define who is on strike.

Assume for a moment that you had a supervisory employee who just decided he did not like his employer and he quit and came into the Welfare Office and said “I am on strike.

I would like to collect my welfare check.”

What would New Jersey do with respect to a fellow like that?

Mr. Stephen Skillman: First of all, Your Honor, if I may answer that by correcting, I think, what is perhaps a misconception.

He would not come into the New Jersey Welfare Office and say “I am on strike.”

He would come into the New Jersey Welfare Office and say “I am needy,” and the only question would be whether or not New Jersey should disqualify a needy individual who, otherwise, would be eligible simply because of the fact that the reason for his being needy is that he is on strike and New Jersey would not draw any distinction between the lockout situation, the supervisory employee situation, the employee who is on strike but had dissented on the vote as to whether or not a strike should be taken and the employee who had voted to go on strike.

In either instance, what New Jersey would look to, and what I think the Federal Social Security Act would require New Jersey to look to, under its provisions is, is the individual needy?

That is the --

Justice Byron R. White: If you concluded this supervisor was in need even though a job was still available for him and he were able bodied and he said “I am here on strike,” if he were in need under those circumstances, he would receive welfare benefits.

Mr. Stephen Skillman: Well, the utility individual who is in effect refusing to cross the picket line --

Justice Byron R. White: No, I am talking about a man where there is no strike except his own private little strike.

He said “I just do not like this --

Mr. Stephen Skillman: I would think that, although those sections are not involved here, I would be quite sure that the state would find that individual to be disqualified as not being willing to take available work

Justice Byron R. White: You are saying the equal protection implications in drawing the line, you suggest --

Mr. Stephen Skillman: We have not suggested any federal equal protection consideration in this case.

Justice Byron R. White: I know you have not, but I ask whether you saw any such implications.

Mr. Stephen Skillman: I can conceive of factual circumstances in which there might be, but that is not what we are relying on here.

Justice Byron R. White: But you would disqualify everybody who is protected by the Labor Act as well as everybody who is not.

Mr. Stephen Skillman: That, I think, is the line that New Jersey would take.

It is not what it said by the regulations before the court.

Justice Byron R. White: You said that that is the line you think that --

Mr. Stephen Skillman: That is the line I think the state would take as a matter of interpretation of the underlying federal and state law.

Chief Justice Warren E. Burger: And do you think that would present no equal protection problems?

To clarify it, a man who is on strike against the world as against a man who is on strike against a particular employer, and you think that New Jersey may say yes.

If you are striking against Westinghouse Electric, you are qualified to receive welfare.

But if you are just on strike because you are mad at the world, they will not give it to you.

Mr. Stephen Skillman: Well, the striker who is on strike against an employer is doing something that has certain protection under the National Labor Relations Act.

That is not true of the individual who has his own private war with respect to some private interest.

Chief Justice Warren E. Burger: Maybe he has got a First Amendment right not to work.

Mr. Stephen Skillman: Conceivably, maybe there would be an equal protection question if you could spell that out but I think I would have some difficulty with that.

Thank you.

Chief Justice Warren E. Burger: You have about four minutes left, Mr. Cohen.

Rebuttal of Lawrence Cohen

Mr. Lawrence Cohen: I would like to spend those four minutes I think trying to unravel some of the confusion which Mr. Skillman perhaps left the court with.

There is a clear regulation of New Jersey which is contained on page 129 of the Appendix.

It has been in effect since 1957 in the State of New Jersey which governs the State Welfare Programs of New Jersey which is the main part of this case.

Justice William J. Brennan: Now, in light of Mr. Skillman, I thought he said the main part of this case was the Federal Categorical Assistance Programs?

Mr. Lawrence Cohen: That is where he is wrong.

Justice William J. Brennan: I see.

Mr. Lawrence Cohen: The strikers did not receive benefits in any substantial amount.

Under the ADC Program, single-parent household, that the likelihood of a single parent being absent from the house because of a strike.

There was no unemployed provision under that section.

Strikers became eligible for federal welfare assistance and started collecting it in substantial amounts only with the adaption of the HEW Program.

The HEW Program is the key to federal welfare assistance to strikers.

That program provides specifically that “anyone who is involuntarily unemployed,” the term that is used in unemployment compensation laws to bar strikers, “and who does not refuse work for good cause,” a term that is limited to physical disabilities or safety hazards, “collects benefits.”

And unless you are going to make an exception for strikers which is what New Jersey has done under its HEW Program then you are, under federal law, not eligible for assistance because “for good cause” does not include participating in a labor dispute unless you want to define it that way.

What New Jersey has done is define its federal program, the HEW Program, when it had it and define its state programs, which it still has, consistent with the regulations contained on page 129 which is to make a special rule for strikers.

And, that is what we are attacking.

Chief Justice Warren E. Burger: He said that HEW has agreed with that.

Mr. Lawrence Cohen: HEW said “we will approve any state program whether it pays strikers or it does not pay strikers.”

We are not going to, at all, get involved in decision under Francis.

Now, incidentally, in Francis, the District Court now has dissolved that injunction since HEW has passed new rules and permit a male -- to go ahead and refuse to pay strikers.

Unknown Speaker: To either pay or not pay.

Mr. Lawrence Cohen: Either pay or not pay.

Unknown Speaker: And so—

Mr. Lawrence Cohen: It said “we are not going to get involved in the constitutional question.

We are going to let states do whatever they want in this.”

Unknown Speaker: And that is the present regulation --

Mr. Lawrence Cohen: That is right.

Unknown Speaker: As I understand it, of HEW, so --

Mr. Lawrence Cohen: That is correct.

They are contained in the Appendix.

Unknown Speaker: So, what New Jersey has done is wrong as somebody might think it is, is perfectly within its power to do so far as HEW goes.

Mr. Lawrence Cohen: As far as HEW --

Unknown Speaker: And certainly so far as its own state policy goes and the only question is whether it is conceivably unconstitutional as violative of the Equal Protection Clause of some other provision of the constitution or whether it is invalid because of the Federal Labor Relations legislation.

Is that it?

Mr. Lawrence Cohen: That is correct, and what we are saying here comes down to this.

The federal labor law creates, as a policy, of not having governmental participation in a strike.

The federal welfare law has a policy of only providing money to those who were involuntarily unemployed.

Those two statutes can be reconciled and harmonized by not paying welfare to strikers.

But if you go ahead and pay welfare to strikers, then what you have done is interfered with the labor law and deviated from the general policy of the welfare law.

That is a construction of the law which serves the purposes of neither of the Acts, and conflicts with the purposes of both.

Chief Justice Warren E. Burger: Do you think there is any need for the state courts of New Jersey to determine whether the policy of the state welfare authorities in New Jersey is consistent with the state statute?

Mr. Lawrence Cohen: I do not think so.

The regulation has been in effect in New Jersey since 1957.

Chief Justice Warren E. Burger: Now if your friend, speaking for New Jersey, said that it was not their regulation but merely an attitude or a policy.

Mr. Lawrence Cohen: I think it is contained in page 129 of the Appendix and it spells it out for the clear --

Justice William J. Brennan: Well, I know but you want us to interpret it.

Why should be interpret it?

Mr. Lawrence Cohen: No, I do not, because the regulation is clear and concise and --

Justice William J. Brennan: Well, that is your view of it.

Mr. Lawrence Cohen: I do not think it is open to any possible interpretation.

It has never been interpreted in any other way.

It says, specifically, strikers get welfare benefits.

Justice William J. Brennan: I mentioned a Three-Judge -- was this a Three-Judge Court?

Mr. Lawrence Cohen: No, it was a single-judge.

Justice William J. Brennan: Single-judge, who was it?

Mr. Lawrence Cohen: Judge Kitchen.

Justice William J. Brennan: He is now dead.

Justice Byron R. White: Do you think it applies to legal and illegal strikes?

Mr. Lawrence Cohen: I think it applies to any strike that is consistent with a strike in the National Labor Relations Act.

Unknown Speaker: Well, the regulation does not say that.

It says a strike, when lawfully authorized and conducted --

Mr. Lawrence Cohen: I am sorry.

I meant my interpretation rather than the regulation.

Justice William J. Brennan: Well, that is just the problem.

Mr. Lawrence Cohen: Well, that is what the state should not get into.

The state should not get into the policy of saying “we are going to pay some strikers but not other strikers.

We are going to pay people who are in lockouts but not in other times of disputes.”

That is the kind of decision that ought to be made under federal labor law by the National Labor Relations Board and not by state agencies.

I see my time is up, I think.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.