# United Steelworkers of America v. United States/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Frankfurter Douglas
United States Supreme Court
361 U.S. 39
United Steelworkers of America v. United States
Mr. Justice DOUGLAS, dissenting.
Great cases, like this one, are so charged with importance and feeling that, as Mr. Justice Holmes once remarked (Northern Securities Co. v. United States, 193 U.S. 197, 400-401, 24 S.Ct. 436, 468, 48 L.Ed. 679, dissenting opinion), they are apt to generate bad law. We need, therefore, to stick closely to the letter of the law we enforce in order to keep this controversy from being shaped by the intense interest which the public rightfully has in it. The statute, which Congress had authority to pass, speaks in narrow and guarded terms. Section 206 of the Labor Management Relations Act 1947, 61 Stat. 155, 29 U.S.C. § 176, 29 U.S.C.A. § 176, gives the President power to invoke the aid of a board of inquiry whenever he is of the opinion that a strike or lock out will imperil 'the national health or safety.' The President, in appointing the board of inquiry in this case, stated:
'The strike has closed 85 percent of the nation's steel mills, shutting off practically all new supplies of steel. Over 500,000 steel workers and about 200,000 workers in related industries, together with their families, have been deprived of their usual means of support. Present steel supplies are low and the resumption of full-scale production will require some weeks. If production is not quickly resumed, severe effects upon the economy will endanger the economic health of the nation.'
It is plain that the President construed the word 'health' to include the material well-being or public welfare of the Nation. When the Attorney General moved under § 208 for an injunction in the District Court based on the opinion of the President and the conclusions of the board of inquiry, the union challenged the conclusion that 'the national health or safety' was imperiled, as those words are used in the Act. The District Court found otherwise, stating five ways in which the strike would, if permitted to continue, imperil 'the national health and safety':
'(a) Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports. Any further delay in resumption of steel production would result in an irretrievable loss of time in the supply of weapons systems essential to the national defense plans of the United States and its allies.
'(b) The planned program of space activities under the direction of the National Aeronautics and Space Administration has been delayed by the strike and will be further delayed if it is continued. Specifically, project MERCURY, the nation's manned satellite program, which has the highest national priority, has been delayed by reason of delay in construction of buildings essential to its operation. This program is important to the security of the nation. Other planned space programs will be delayed or threatened with delay by a continuation of the strike.
'(c) Nuclear Submarines and the naval shipbuilding program other than submarines, including new construction, modernization, and conversion, have been affected by reason of the inability to secure boilers, compressors, and other component parts requiring steel. Products of the steel industry are indispensable to the manufacture of such items and delay in their production will irreparably injure national defense and imperil the national safety.
'(d) Exported steel products are vital to the support of the United States bases overseas and for the use of NATO allies and similar collective security groups. The steel strike, if permitted to continue, will seriously impair these programs, thus imperiling the national safety.
'(e) A continuation of the strike will have the ultimate effect of adversely affecting millions of small business enterprises, almost all of which are directly or indirectly dependent upon steel products and most of which lack the resources to stock large inventories. In addition, it will have the effect of idling millions of workers and a large proportion of the facilities in industries dependent upon steel for their continued operation. Manufacturing industries directly dependent on steel mill products account for the employment of approximately 6,000,000 workers and normal annual wages and salaries totalling approximately $34,000,000,000. The products of these industries are valued at over $125,000,000,000. The national health will be imperiled if the strike is permitted to continue.'
Here again it is obvious that 'national health' was construed to include the economic well-being or general welfare of the country. The Court of Appeals, in sustaining the injunction, was apparently of the same view. This seems to me to be an assumption that is unwarranted. I think that Congress, when it used the words 'national health,' was safeguarding the heating of homes, the delivery of milk, the protection of hospitals, and the like. The coal industry, closely identified with physical health of people, was the industry paramount in the debates on this measure. The coal industry is indeed cited on the Senate side in illustration of the need for the measure. S.Rep.No.105, 80th Cong., 1st Sess., p. 14. There were those in the Senate who wanted to go so far as to outlaw strikes 'in utilities and key Nation-wide industries' in order to protect the 'public welfare.' 93 Cong.Rec. A1035. Reference was, indeed, made to strikes in industries 'like coal or steel' among those to be barred in 'the public interest.' Ibid. But the Senate did not go that far. The Senate bill reached only situations where there was peril to the 'national health or safety.' The House bill went further and included cases where there was peril to 'the public health, safety, or interest.' The Senate view prevailed, its version being adopted by the Conference. Some light is thrown on the wide difference between those two standards-if words are to be taken in their usual sense-by the following colloquy on the floor of the House:
'Mr. KENNEDY. I believe that this country should certainly be in a position to combat a strike that affects the health and safety of the people. Therefore, I feel that the President must have the power to step in and stop those strikes. I am not in the position of opposing everything in this bill, but there are certain things in the bill that are wrong. I do not see how the President is going to have the power to stop strikes that will affect the health and safety of the people under the procedure listed in section 203. I think he must have that power.
'I agree with you that any bill providing for an injunction should carefully consider the position of the striking union and make sure that their rights are protected. I think that in those cases Federal seizure until the dispute is settled would perhaps equalize the burden in the fairest possible manner.
'Mr. OWENS. Will not the gentleman admit that we have a third word in there? It is 'interest.' Could we not better use the word 'welfare' instead of 'interest,' because the word 'welfare' occurs in the Constitution? It is just as broad as the word 'interest' and more practical.
'Mr. KENNEDY. The proposal embraces two separate things, health and safety. Because the remedy is drastic these two, in my opinion, are sufficient. I believe we should apply this remedy when the strike affects health or safety, but not the welfare and interest, which may mean anything. I would not interfere in an automobile strike because while perhaps that affects national interest, it does not affect health and safety.
'Mr. OWENS. Does not the gentleman agree that 'welfare' is the stronger and in line with the President's idea?
'Mr. KENNEDY. No. Both 'welfare' and 'interest' are too indefinite. They could cover anything. I would not have the law apply except in cases where the strike affected health and safety.'
To read 'welfare' into 'health' gives that word such a vast reach that we should do it only under the most compelling necessity. We must be mindful of the history behind this legislation. In re Debs, 158 U.S. 564, 584, 15 S.Ct. 900, 906, 39 L.Ed. 1092, stands as ominous precedent for the easy use of the injunction in labor disputes. Freewheeling Attorneys General used compelling public demands to obtain the help of courts in stilling the protests of labor. The revulsion against that practice was deep, and it led ultimately to the enactment of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101, 29 U.S.C.A. § 101. We deal, of course, with a later Congress and an Act that by § 208(b) sets aside pro tanto the earlier Act. What Congress has created Congress can refashion. But we should hesitate to conclude that Congress meant to restore the use of the injunction in labor disputes whenever that broad and all-inclusive concept of the public welfare is impaired. The words used-' national health or safety'-are much narrower.
Congress in the same Act knew how to speak when it spoke all-inclusively. The declaration of policy in the Labor Management Relations Act, 1947, speaks in broad terms. There is a declaration in § 1(b) that 'neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.' 61 Stat. 136. The words 'public * * * interest' cover five titles of a far-reaching regulatory measure. Yet, when Congress came to define the jurisdiction of courts to intervene in strikes or lockouts, it spoke in more restricted terms, confining the judiciary to injunctions where there is impending peril to 'the national health or safety.' That narrow reading is, indeed, the only one that can be squared with Senator Taft's explanation of the use of an injunction in a strike situation. The strike, he said, must not only affect substantially 'an entire industry,' it must also 'imperil the national health or safety, a condition which, it is anticipated, will not often occur.' Yet if 'national health' includes the public welfare, injunctions will issue whenever any important industry is involved-whether it be steel or automobiles or coal or any group of industries where one union makes collective agreements for each of the component unions.
It is a fact of which we can take judicial notice that steel production in its broadest reach may have a great impact on 'national health.' Machinery for processing food is needed; hospitals require surgical instruments; refrigeration is dependent on steel; and so on. Whether there are such shortages that imperil the 'national health' is not shown by this record. But unless these particularized findings are made no case can be made out for founding the injunction on impending peril to the 'national health.'
Nor can this broad injunction be sustained when it is rested solely on 'national safety.' The heart of the District Court's finding on this phase of the case is in its statement, 'Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports.' Its other findings, already quoted, are also generalized. One cannot find in the record the type or quantity of the steel needed for defense, the name of the plants at which those products are produced, or the number or the names of the plants that will have to be reopened to fill the military need. We do know that for one and a half years ending in mid-1959 the shipments of steel for defense purposes accounted for less than 1% of all the shipments from all the steel mills. If 1,000 men, or 5,000 men, or 10,000 men can produce the critical amount the defense departments need, what authority is there to send 500,000 men back to work?
There can be no doubt that the steel strike affects a 'substantial' portion of the industry. Hence the first requirement of § 208(a) of the Act is satisfied. But we do know that only a fraction of the production of the struck industry goes to defense needs. We do not know, however, what fraction of the industry is necessary to produce that portion. Without that knowledge the District Court is incapable of fashioning a decree that will safeguard the national 'safety,' and still protect the rights of labor. Will a selective reopening of a few mills be adequate to meet defense needs? Which mills are these? Would it be practical to reopen them solely for defense purposes or would they have to be reopened for all civilian purposes as well? This seems to me to be the type of inquiry that is necessary before a decree can be entered that will safeguard the rights of all the parties. Section 208(a) gives the District Court 'jurisdiction to enjoin' the strike. There is no command that it shall enjoin 100% of the strikers when only 1% or 5% or 10% of them are engaged in acts that imperil the national 'safety.' We are dealing here with equity practice which has several hundred years of history behind it. We cannot lightly assume that Congress intended to make the federal judiciary a rubber stamp for the President. His findings are entitled to great weight, and I along with my Brethren accept them insofar as national 'safety' is concerned. But it is the court, not the President, that is entrusted by Article III of the Constitution to shape and fashion the decree. If a federal court is to do it, it must act in its traditional manner, not as a military commander ordering people to work willy-nilly, nor as the President's Administrative Assistant. If the federal court is to be merely an automaton stamping the papers an Attorney General presents, the judicial function rises to no higher level than an IBM machine. Those who grew up with equity and know its great history should never tolerate that mechanical conception.
An appeal to the equity jurisdiction of the Federal District Court is an appeal to its sound discretion. One historic feature of equity is the molding of decrees to fit the requirements of particular cases. See Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756. Equity decrees are not like the packaged goods this machine age produces. They are uniform only in that they seek to do equity in a given case. We should hesitate long before we conclude that Congress intended an injunction to issue against 500,000 workers when the inactivity of only 5,000 or 10,000 of the total imperils the national 'safety.' That would be too sharp a break with traditional equity practice for us to accept, unless the statutory mandate were clear and unambiguous. In situations no more clouded with doubt than the present one we have refused to read a statutory authority to issue a decree as a command to do it. Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. We there said, 'A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances.' 321 U.S. at page 329, 64 S.Ct. 591. And see Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332. The concurring opinion seeks to distinguish the Bowles case by laying great stress on the language of the statute there in issue to the effect that remedy by injunction 'or other order' shall be granted, as distinguished from the use of the words 'and to make such other orders' in § 208 presently involved. In the Bowles case, however, we expressly declined to reach the question whether it was an abuse of discretion for the District Court to deny any relief, which is what it did in that case. 321 U.S. at page 331, 64 S.Ct. 592. Moreover, the language of the statute in the Bowles case stated that an injunction or other order 'shall be granted.' We have here no such command, since § 208 only provides that the District Court 'shall have jurisdiction' to issue an injunction and other orders, as may be appropriate.
Plainly there is authority in the District Court to protect the national 'safety' by issuance of an injunction. But there is nothing in this record to sustain the conclusion that it is necessary to send 500,000 men back to work to give the defense department all the steel it needs for the Nation's 'safety.' If more men are sent back to work than are necessary to fill the defense needs of the country, other objectives are being served than those specified in the statute. What are these other objectives? What right do courts have in serving them? What authority do we have to place the great weight of this injunction on the backs of labor, when the great bulk of those affected by it have nothing to do with production of goods necessary for the Nation's 'safety' in the military sense of that word? Labor injunctions were long used as cudgels-so broad in scope, so indiscriminate in application as once to be dubbed 'a 'scarecrow' device for curbing the economic pressure of the strike.' See Frankfurter and Greene, The Labor Injunction (1930), pp. 107-108. The crop of evils that grew up during those regimes was different in some respects from those generated by this decree. The problems of vagueness, of uncertainty, of detailed judicial supervision that made police courts out of equity courts are not present here. But the same indiscriminate leveling of those within and those without the law is present. The injunction applies all the force of the Federal Government against men whose work has nothing to do with military defense as well as against those whose inactivity imperils the 'national safety.' It is not confined to the precise evil at which the present Act is aimed. Like the old labor injunctions that brought discredit to the federal judiciary this is a blanket injunction broad and all-inclusive, bringing within its scope men whose work has nothing whatsoever to do with the defense needs of the Nation. Being wide of the statutory standard it has, to use the words of Mr. Justice Brandeis, all the vices of the injunction which is used 'to endow property with active, militant power which would make it dominant over men.' See Truax v. Corrigan, 257 U.S. 312, 354, 368, 42 S.Ct. 124, 137, 143, 66 L.Ed. 254 (dissenting opinion). I cannot believe that Congress intended the federal courts to issue injunctions that bludgeon all workers merely because the labor of a few of them is needed in the interest of 'national safety.'
Labor goes back to work under the present injunction on terms dictated by the industry, not on terms that have been found to be fair to labor and to industry. The steel industry exploits a tremendous advantage:
'Our steel mills can produce in nine months all the metal the country can use in a year. That means a three-month strike costs the companies nothing in annual sales, and Uncle Sam picks up the tab for half of their out-of-pocket strike losses in the form of eventual tax adjustments.
'The industry's final insurance against any acute financial pinch is the certainty that the President will have to step in with a national emergency injunction under the Taft-Hartley Act whenever steel stockpiles shrink to the danger level. This takes much of the bite out of the union's assault on the pocketbooks of the steel producers.'
This is a matter which equity should take into consideration. For a chancellor sits to do equity.
Some years ago this Court struck down as unconstitutional state statutes making arbitration of labor disputes mandatory. Wolff Packing Co. v. Industrial Relations Court, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103; Dorchy v. State of Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686. Those cases held that compulsory arbitration violated the Due Process Clause of the Fourteenth Amendment. One can only guess as to what institutions of adjudication we might have in this field today had that experiment been given a chance. The experiment, however, did not survive, and we have had little experience with it. Collective bargaining and mediation are today the norm, except for the period of time in which an injunction is in force. By the terms of § 209, however, any injunction rendered may not continue longer than 80 days. The Act thus permits an injunction restricted in duration and narrowly confined by the requirements of the 'national health or safety.' When we uphold this injunction we force men back to work when their inactivity has no relation to 'national health or safety.' Those whose inactivity produces the peril to 'national health or safety' which the Act guards against and only those should be covered in the injunction. The rest-who are the vast majority of the 500,000 on strike-should be treated as the employers are treated. They should continue under the regime of collective bargaining and mediation until they settle their differences or until Congress provides different or broader remedies. When we assume that all the steelworkers are producing steel for defense when in truth only a fraction of them are, we are fulfilling the dreams of those who sponsored the House bill and failed in their efforts to have Congress legislate so broadly.
Though unlikely, it is possible that, had the District Court given the problem the consideration that it deserves, it could have found that the only way to remove the peril to national safety caused by the strike was to issue the broad, blanket injunction. It may be that it would be found impractical to send only part of the steelworkers back to work. The record in this case, however, is devoid of evidence to sustain that position. Furthermore, there is no indication that the District Court ever even considered such a possibility. I am unwilling to take judicial notice that it requires 100% of the workers to produce the steel needed for national defense when 99% of the output is devoted to purposes entirely unconnected with defense projects.
The trier of fact under our federal judicial system is the District Court-not this Court nor the Court of Appeals. No finding was made by the District Court on the feasibility of a limited reopening of the steel mills and it is not, as the concurring opinion suggests, the province of the Court of Appeals to resolve conflicts in the evidence that was before the District Court.
I would reverse this decree and remand the cause to the District Court for particularized findings as to how the steel strike imperils the 'national health' and what plants need to be reopened to produce the small quantity of steel now needed for the national 'safety.' There would also be open for inquiry and findings any questions pertaining to 'national health' in the narrow sense in which the Act uses those words.

## Notes

* ↑ Legislative History of the Labor Management Relations Act, 1947 (Gov.Print.Off. 1948), Vol. I, pp. 274, 276.
* ↑ Legislative History, Vol. I, supra, Note 1, pp. 214-215.
* ↑ H.R.Rep. No. 510, 80th Cong., 1st Sess., p. 64.
* ↑ 93 Cong.Rec. 3513.
* ↑ For discussion of the abusive use of blanket injunctions in labor controversies, see Allen, Injunction and Organized Labor, 28 Am.L.Rev. 828; Chafee, The Inquiring Mind, p. 198; Dunbar, Government by Injunction, 13 L.Q.Rev. 347; Frey, The Labor Injunction: An Exposition of Government by Judicial Conscience and its Menace; Lane, Civil War in West Virginia; Pepper, Injunctions in Labor Disputes, 49 A.B.A.Rep. 174; Royce, Labor, The Federal Anti-Trust Laws, and the Supreme Court, 5 N.Y.U.L.Q.Rev. 19; Stimson, The Modern Use of Injunctions, 10 Pol.Sci.Q. 189.
* ↑ 93 Cong.Rec. 6860.
* ↑ Section 208(a) provides:
* ↑ The record shows, as does the President's statement, supra, that mills accounting for at least 15% of the Nation's steel production are still in operation and are unaffected by the strike.
* ↑ Equity has contrived its remedies and has always preserved the elements of flexibility and expansiveness so that new ones may be invented, or old ones modified, to meet the requirements of every case. Union Pacific R. Co. v. Chicago, R.I. & P.R. Co., 163 U.S. 564, 601, 16 S.Ct. 1173, 1187, 41 L.Ed. 265. And the extent to which the Court may grant or withhold its aid, and the manner of molding its remedies may be affected by the public interest involved. United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 801, 83 L.Ed. 1211; Securities & Exchange Comm. v. United States Realty & Improvement Co., 310 U.S. 434, 435, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293. There is in fact no limit to the variety of equitable remedies which can be applied to the circumstances of a particular case. 1 Pomeroy's Equity Jurisprudence (5th ed.) § 109.
* ↑ Reskin, To Prove Karl Marx Was Wrong, N.Y. Times Magazine, Oct. 25, 1959, pp. 12, 84
* ↑ It was stated in S.Rep. No. 105, 80th Cong., 1st Sess., pp. 13-14, in reference to the new machinery for settling labor disputes:
* ↑ Such an opinion was stated in an affidavit by the Chairman of the Council of Economic Advisers; but that is conclusional only. There has been no sifting of the facts to determine whether defense needs can be satisfied by practical means short of sending all men back to work.
* ↑ The particularized findings necessary are illustrated by those in United States v. United Steelworkers of America, 2 Cir., 202 F.2d 132, 134:
* ↑ The factor of 'safety' may well involve, for example, the need for replacement of equipment on railroad trains. An affidavit of the Secretary of Commerce states:
'The continuing availability of most of these steel supplies is vital to the nation's health and safety, used as they are for the production of personal necessities, including surgical instruments, heating and refrigeration equipment, and articles used in the preparation and preservation of food. Steel is also essential to transportation, to the production and transmission of light and power, to the provision of sanitation services, and in the construction and mining industries.'
But the Government in oral argument conceded that neither that aspect of 'safety' nor any other aspect of 'safety' apart from military defense is presented by this record, since there are no findings showing the extent to which inventories for those other purposes may be in short supply.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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