Warren E. Burger: We'll hear arguments next in Ford Motor Company against the National Labor Relations Board. Mr. Kammholz, I think you may proceed whenever you're ready.
Theophil C. Kammholz: Mr. Chief Justice and members of the Court. The central issue in this case is whether prices of cafeteria and vending machine food provided in a manufacturing plant to employees falls within the term wages, hours or other terms and conditions of employment as said out in Section 8 (d) of the Act.
Potter Stewart: Well, it's just the last of those phrases that --
Theophil C. Kammholz: Or --
Potter Stewart: -- conceitedly is not -- well there is a claim as much as wage, is it not?
Warren E. Burger: Oh, subsidy.
Theophil C. Kammholz: Yes.
Potter Stewart: Concededly it's not hours.
Theophil C. Kammholz: Or it may be wages. The board has raised this issue and I should like to address it late --
Warren E. Burger: Well, specially if the Union demanded in a subsidy that would be in effect (Voice Overlap) --
Theophil C. Kammholz: That would be in the area of wages.
Warren E. Burger: -- addition of compensation.
Theophil C. Kammholz: Yes. The facts essentially are not in dispute. The Ford plant, Chicago Heights, Illinois, employs some 3500 hourly employees with reference to the issue before the Court here. There are two cafeterias, five vending machine areas known as Cook Cribs. The providing of food is pursuant to a contract with a food vendor, ARA. And over the years the contract has been in effect, the contractor has a 9% override on its cost of food, labor and related services. And in the event of a deficit there is provision for a maximum of $52,000 a year cushion which Ford is obligated to pay. There is a concurrent provision that in the event of profit, this inures to Ford's benefit but as one might anticipate there has not been a profit in recent years.
Harry A. Blackmun: Mr. Kammholz, would your position here be any different if Ford itself were operating this cafeterias?
Theophil C. Kammholz: No, it would be identical Mr. Justice Blackmun.
Harry A. Blackmun: You would take the position that they are not subject to collective bargaining.
Theophil C. Kammholz: Precisely, precisely.
Harry A. Blackmun: Even though you could fix all the prices?
Theophil C. Kammholz: Exactly.
Warren E. Burger: Would you take the view that permitting or not permitting food dispensing establishments was subject to collective bargaining mandatory?
Theophil C. Kammholz: Not in the context of this case. One can visualize a situation such as presided in the Weyerhaeuser case, remote location, no opportunity for employees to --
Warren E. Burger: Lumberjacks up in the mountains.
Theophil C. Kammholz: Lumberjacks, exactly. But here there are -- any number of eating places outside the plant granted they were utilized very infrequently. Here, in 1976 when this -- the underlying dispute arose the Union requested bargaining on food prices and services. The company refused. Employees engaged in a boycott. And over 50% of the Union members from the period early February to June 1976 either brownbagged, perhaps some of them didn't eat all or others went to the restaurants nearby.
William H. Rehnquist: Didn't they just get 30 minutes for lunch?
Theophil C. Kammholz: 30 minutes for lunch Your Honor and two twenty -- two minute rest periods.
William H. Rehnquist: They couldn't have gone very far.
Theophil C. Kammholz: The nearest restaurant is 1.6 tenths miles away.
Harry A. Blackmun: Well then they're really captive.
Theophil C. Kammholz: No, I would not concede that they're captive.
Harry A. Blackmun: Which I wonder why you made reference to the presence of restaurants in the area.
Theophil C. Kammholz: Because some employees utilize the restaurants as the record indicates.
Harry A. Blackmun: Even with a mile --
Theophil C. Kammholz: Yes.
Harry A. Blackmun: -- plus and 30 minutes?
Theophil C. Kammholz: Yes.
Harry A. Blackmun: They're faster than we are here?
Theophil C. Kammholz: Well --
Byron R. White: Much better.
Theophil C. Kammholz: Or they could bring their lunch which very many did. And during the boycott presumably nearly all of them did because the boycott was indulged by more than 50% of the employees. A complete -- a charge was filed with the National Labor Relations Board upon Ford's refusal to bargain about prices and services. The hearing was had and the administrative law judge found that factually and legally this case was in the context of four other cases which have addressed this issue of food prices. In each of the four other cases the National Labor Relations Board had gone one way that held that food price is worse mandatory subject to bargaining. And in each case, the Court of Appeals reversed twice in the Fourth Circuit, once in the First Circuit, in the Food Machinery case and the prior decision in the Seventh Circuit in the Ladish case. In each instance, the Court held that food prices properly were not within the meaning of other terms and conditions of employment but rather were remote from what could viewed as the mainstream of the relationship of employer-employee. In support of that view may I say that over the years, this Court in one case, the Allied Chemical Workers case, circuits in other cases and indeed the Board have made these distinctions between mandatory and nonmandatory subject to bargaining. It's perfectly for instance that wages whether incentive or straight hourly, overtime, seniority, holiday pay, vacation pay clearly relate to terms and conditions of employment or indeed wages or hours. On the other hand, the decided cases hold that such matters as insurance benefits for retired employees, a code of ethics for employees coupled with penalty provisions. The right to a strike route before a strike may be called, a performance bond required of the Union not to engage in conduct contrary to the contract during its term likewise not a mandatory subject to bargaining. Now, clearly Your Honors what we're dealing with here is a drawing of the line. What properly is encompassed by the requirement of the statute. Mr. Justice Stewart in your concurrence in the Fibreboard case stated very explicitly that the Act is restrictive and it does contemplated -- contemplate unlimited bargaining. Indeed the legislative history supports this view rather clearly and this is articulated in your concurring opinion, the views of the Board and the unions to the contrary. When we're talking about food prices, we're talking about one element of the cost of living along with housing, transportation, clothing, the national agreement between Ford and the United Auto Workers over the years had has and now contains a cost of living provision so that food prices on the basis of COLA, cost of living adjustment are already bargained and what we're talking about here really would be another bite at the apple. The underlying purpose of the Act as set out in this preamble does promote and maintain industrial peace to require food bargaining -- bargaining of the food prices would really not encourage industrial peace. Indeed the UAW in its brief very candidly and openly asserts that "The Act contemplates combat". This of course is aviated by the ruling -- if this Court will pursue the rulings of the circuits prior to the Seventh Circuit decision in this case that -- and I used the phrase with some hesitation but this is what the Court said in the Westinghouse case in the Fourth Circuit this is dealing with trivialities in terms of the employment relationship. Granted, food is essential for life but we consume it not as employees but as people.
John Paul Stevens: Mr. Kammholz supposing a company or an employer had a rule requiring employees to eat in the company cafeteria, would the existence or nonexistence of such a rule be mandatory subject to bargaining?
Theophil C. Kammholz: No, I think not. If -- to use the logging camp example it would make not only complete sense there but really would become an integral part of the job.
Warren E. Burger: But if you really thought to the Weyerhaeuser case, if the lumberjacks didn't eat the very hearty food which lumber companies normally provide for them, the productivity would probably go down.
Theophil C. Kammholz: Ultimately, but that's not our case. There because of the circumstances --
Warren E. Burger: But I was pursuing Mr. Justice Stevens' --
Theophil C. Kammholz: Yes.
Warren E. Burger: -- suggestion in some circumstances a you've -- as you are aware with the Weyerhaeuser case. The -- there being no other place to eat up in the mountains, on the mountainside cutting trees down. The company provides the food and they want to provide food that will produce a lot of energy that in turn will produce a lot of logs. Isn't that the theory behind it?
Theophil C. Kammholz: Yes, I think the theory Mr. Chief Justice Burger goes one step beyond. And that is in order to have employees at all in this logging camp there must be some provision for food. But here again, this is outside the mainstream of the American industrial life and is exception and not the rule.
Thurgood Marshall: Is the period of times lunch, the bargaining point?
Theophil C. Kammholz: A period of time for lunch is --
Thurgood Marshall: So --
Theophil C. Kammholz: -- this is within the context of hours of employment.
Thurgood Marshall: So lunch is not trivial, is it?
Theophil C. Kammholz: No, I didn't say it was trivial. The Fourth Circuit did it.
Thurgood Marshall: I thought you did, I misunderstood you.
Theophil C. Kammholz: The Fourth Circuit did.
Thurgood Marshall: And I misunderstood you.
John Paul Stevens: Imagine if you had told someone in the Army or the Navy that the kind of food they had to eat was the trivial condition of the employment they might not agree.
Theophil C. Kammholz: Probably so, but that same person wouldn't have much choice and whether he or she wanted --
John Paul Stevens: That there would be a bargain of what?
Theophil C. Kammholz: -- or not be there. The point is made that in the Board's brief that there is industrial practice concerning bargaining about food prices. This simply is not so, the Board alludes to a case. The fact of the matter is despite searches on both sides in those case we've been able to come up with no contracts which so provide. I have never seen one in my experience. This is again not embracing the term trivial but it's a matter outside the mainstream of the workplace, the workstation. And the price of food is to be bargainal -- bargainable then why not the price of gasoline or a discount toward price of gasoline in order to get to the workplace or bargaining about work clothes which certainly are essential.
John Paul Stevens: Well, it might be if Ford supplied them and insisted that their supplies be used that wouldn't shock me.
Theophil C. Kammholz: Uniforms?
John Paul Stevens: Yes.
Theophil C. Kammholz: This then might well become a matter of wages but it does not mean that it's a compulsory subject to bargaining under the National Labor Relations Act Your Honor. The Act does not contemplate as Mr. Justice Stewart noted in Fibreboard that there must be bargaining about anything that either side he likes to bargain about. That wasn't the intent of the Congress at all. The effect of Section 8 (d) is to in effect, the line, the power of the Federal Government under this statute on the side of the bargaining agent who has the right to bargain on a mandatory subject. In other words, economic strikers have rights under the law. And again, as I noted this simply was not contemplated by the Congress. Moreover, over the many years this has not been industrial practice.
John Paul Stevens: Mr. Kammholz, would you help me a little bit on the practical aspect of this. Assume we were to hold it was a mandatory subject, would that mean that every time they change the price of coffee they'd have to give you a notice -- they give -- you'd have to give the Union and they'd have a right to --
Theophil C. Kammholz: And they would have a right to bargain. They would have the right to bargain Your Honor.
John Paul Stevens: Just --
Warren E. Burger: Unless they lowered the price?
Theophil C. Kammholz: Yes, an unlikely possibility Your Honor. This is a problem, the fragmentizing, the injection of a very complex area really loading the gun on one side and not on the other. The Seventh Circuit without record support stated that brown bagging was not a viable alternative. But here again, the record simply does not support that conclusion as evidenced by the boycott when over 50% of the Union members did it.
Warren E. Burger: For how long?
Theophil C. Kammholz: From early February until June.
John Paul Stevens: You can do it during the summer, I gather.
Theophil C. Kammholz: Well Your Honor, our Chicago summers aren't much different from winters currently.
John Paul Stevens: Well, they're pretty hot for leaving food in the locker, aren't they?
Theophil C. Kammholz: Well, may I address this point, there is provision in the locker room area, ventilated area for the storing of lunches. Lunches may not be eaten there but they may be eaten and are eaten in the cafeteria areas which are air conditioned.
John Paul Stevens: Is the storage area a refrigerator?
Theophil C. Kammholz: The storage area is not. This is the locker area.
John Paul Stevens: Storage for -- for the milk or something, you couldn't do it, end of summer.
Thurgood Marshall: Or many?
Theophil C. Kammholz: Well Your Honors, we address this in our reply brief and I think it's a significant point under modern practices there is a laundry list of food, this is the appendix to our reply brief of food, no refrigeration needed.
Potter Stewart: Right.
Theophil C. Kammholz: Indeed, the venerable --
John Paul Stevens: I suppose you don't even have to eat if you're really want to (Inaudible).
Theophil C. Kammholz: And many did not during the boycott and it is probably better for them on occasion not to. In the Fannie Farmer Cookbook, this statement is made, for lunch boxes and picnics, frozen sandwiches thaw completely in about 4 hours and tape pressure even though many days or weeks before than sandwiches made the same day which have not been refrigerated. Similarly in Women's Day from September 27, 1978 appears this statement, packing lunch can be a real inflation fighter and lots of fun too.
Byron R. White: Think for yourself.
Thurgood Marshall: You can also get them for find and tells you, if you let mayonnaised food sit out over four and a half hours, you're in trouble. And I take them before I take Fannie Farmer.
Theophil C. Kammholz: Well, Your Honor I must confess you spread it out that way I have no real response. We have not dealt with the subject of food services. Indeed, neither the Board nor the Court dealt with food services and what is encompassed by that term. Does it mean margarine versus butter? Does it mean special facilities without delivering the point that the problem area here is identical with the problem area on food prices. It opens a Pandora's Box of problems, far transcending the lunch box as such. As a second --
Warren E. Burger: Does the company -- was Ford supply the space to the franchised restaurant operator --
Theophil C. Kammholz: Yes.
Warren E. Burger: -- at no cost?
Theophil C. Kammholz: At no cost.
Warren E. Burger: Anything else beside the space?
Theophil C. Kammholz: Most of the equipment. Basically, the contractor provides food, health -- runs the operation. Gets a total 9% --
Thurgood Marshall: (Inaudible)
Theophil C. Kammholz: That's --
Thurgood Marshall: -- by Ford.
Theophil C. Kammholz: All belongs to Ford, yes. Well, finally with respect to services as I have perhaps noted in addition to the problem that is inherent in the price problem there is the additional problem of vagueness of the Board's and the Court's order, what are services if -- for it doesn't comply, should there be an order that this is a mandatory subject to bargaining? It's subject to contempt for violation of an order directing bargaining about “food services”. Thank you.
Lewis F. Powell, Jr.: May I ask just this question. As I read the opinion of the Seventh Circuit, this case was decided by it -- on the basis of the facts and circumstances presented in the particular case.
Theophil C. Kammholz: Yes.
Lewis F. Powell, Jr.: The questions are stated in the briefs for all of the counsel, applied is here. It seems to me to be posed questions -- seemed to be posed in a different way. Is the argument that we are hearing here today directed to the facts and circumstances of this case? Or is it an argument directed to whether or not the prices of food served in an in-house cafeteria always are the subject of mandatory bargaining?
Theophil C. Kammholz: The question here is posited on the Board's finding that this case is within the factual and the legal context of the earlier decisions. In other words, the factual finding was that indeed it was not different despite what the Seventh Circuit said about it.
Lewis F. Powell, Jr.: Well, the argument it seems to me to be addressed to whether or not on any and all circumstances whatever they may be that the prizes of food in an in-company -- in-house cafeteria are the subject of mandatory bargaining. Is that your understanding --
Theophil C. Kammholz: That is --
Lewis F. Powell, Jr.: -- regardless of the facts and circumstances.
Theophil C. Kammholz: Yes, because the facts and circumstances in the thesis that have come up earlier are no different than this case. Now that excludes --
Lewis F. Powell, Jr.: Well --
Theophil C. Kammholz: -- the situation --
Thurgood Marshall: Why?
Theophil C. Kammholz: -- to which the Chief Justice --
Lewis F. Powell, Jr.: I would've thought that the facts and circumstances could very considerably and apparently the Court of Appeals for the Seventh Circuit thought so. It went to a considerable detail as to the facts and compared them with other cases, produced charts at the end of its opinion, itemizing all sorts of facts.
Theophil C. Kammholz: I respectfully suggest that the Seventh Circuit arrived at its decision and then wrote an opinion to have followed the result. For instance, the factors to which it alluded, influence over prices, Court of Appeals said that Ford retains influence over cafeteria and vending machine prices. But this was a situation in McCall's in the Fourth Circuit. The Court of Appeals says the possibility of profit.
John Paul Stevens: Mr. Kammholz --
Theophil C. Kammholz: Well --
John Paul Stevens: I share Justice Powell's inquiry and I -- perhaps I should ask Mr. Come this question but I gather that the -- your opponents are not here defending the Seventh Circuit opinion. They're --
Theophil C. Kammholz: I think they're defending it on the very broad base.
John Paul Stevens: They're defending the result but I certainly --
Theophil C. Kammholz: Yes.
John Paul Stevens: -- don't read their brief to go along with the theory expressed by the Seventh Circuit in its opinion.
Theophil C. Kammholz: No, Your Honor, they do not. And finally I should note further that the amici go beyond the Seventh Circuit and take the position despite the Fibreboard concurrence of Mr. Justice Stewart that there should be bargaining about all matters beyond prices, beyond food services. As I understand their position, any matter which either party desires to bargain about. Thank you.
Warren E. Burger: Very well Mr. Kammholz. Mr. Come.
Norton J. Come: Mr. Chief Justice and may it please the Court. With reference to Justice Blackmun's question, the Board's decision rest on alternative grounds, the Board's basic position is that --
Warren E. Burger: The Board's or the Court of Appeals, I'm not --
Norton J. Come: The Court of Appeals' decision rest on the second alternative of the Board's decision. The Board's basic position which is setout at A23 of the petition is the position that the Board has consistently maintained for over 13 years namely that the services provided and the prices at which the services -- food services are provided in in-plant facilities such as cafeterias and vending machines are terms and conditions of employment within the meaning of 8 (d) and thus within the area of mandatory bargaining. The Board in footnote 11 of its decision went on to set forth the alternative ground that in any event these matters were bargainable on the facts of this case which the Board sets out there. The Seventh Circuit sustained the Board on the alternative ground. As far as the Board is concerned we would prefer to win the case on the broader ground.
Potter Stewart: Although, death sentence are broader -- it's a broader generic question that was sent down as a question presented in the company's certiorari petition.
Norton J. Come: That is correct, if the Court will --
Potter Stewart: And maybe -- but maybe the -- but maybe the answer to it as suggested in the questions of my Brothers Blackmun and Powell is, sometimes yes, sometimes no.
Norton J. Come: Well, that may well be and I call the Court's attention to the fact that the Board opposed certiorari on the ground that on the facts of this case, it was not necessary to reach the broader question. Certiorari however was granted not withstanding our opposition. And now that were here as I say we would prefer to get the area cleared up. However, if -- we can only win the case on the narrower ground, we'll take it on their ground because the Board had both grounds for its decision.
William H. Rehnquist: Is it the Board's position Mr. Come that if a com -- if a plant has no eating facilities in it but the union wants the plant to put in eating facilities that is a subject of mandatory bargaining?
Norton J. Come: I think the logic of the Board's position would carry you there although the Board has not had occasioned to address that question and that might present questions of capital investment that might get into the reservation expressed in the concurring opinion in Fibreboard. We don't have that here. We do have an in-plant facility that Ford has elected to provide for many, many years. It has done so --
Warren E. Burger: That is -- that's an indirect subsidy in itself, isn't it?
Norton J. Come: That is correct Your Honor.
Warren E. Burger: What if -- if your position is correct, the Board's position is correct, the Union then could make a demand not only for all the subsidy indirectly involved in providing the space and the -- all the equipment but in addition 50% of the cost. No reason why they couldn't require that to be bargained. And if they could require to the bargained they could go on straight to first, the employer, to pay half of the cost of the food, do they not?
Norton J. Come: Well, I --
Warren E. Burger: Any doubt about that?
Norton J. Come: I think we have to take this on a step by step basis. I think the term "conditions of employment" is a broad term Congress entrusted to the Board in the first instance. The task of giving content to it, it does have -- it's not unlimited in the sense that you cannot obliterate the distinction between mandatory and permissive bargaining subjects which the Board and this Court has recognized. On the other hand there may be an area as the concurring opinion in Fibreboard recognizes where decisions going to the core of an entrepreneurial control might not be within the area of mandatory bargaining. But we certainly --
Potter Stewart: Even though they do effect clearly anybody's definition of conditions of employment.
Norton J. Come: That is correct, but we submit that we're a long way from that in this case because --
Warren E. Burger: But don't you think we have an obligation when this kind of an issue is presented to see where the proposals on one side of the other will carry us.
Norton J. Come: Well, I think that you do Your Honor and I like to show you that you're not carried that far on what we have in this case.
Warren E. Burger: Yes, we haven't -- at least I didn't hear you yet answer my question. The Union demands not only the provision for the space and the refrigerators and the stoves and the implements and the chairs and the tables also in addition to that 50% of the cost of the food so that the employees can have lunch for half prices at work.
Norton J. Come: Well, I think it's difficult for me to tell you how the Board is going to answer that question because they haven't had it. But conceptually I'm -- I don't --
Warren E. Burger: But if you can bar -- if they must bargain the price of the lunch it can -- is there any escape from bargaining the -- exactly what I've hypothesized to you?
Norton J. Come: Well, look at -- I think that there's no question that everyone will agree that the physical dimensions of the employees' working environment are mandatory bargaining subject. What one hour -- what one's hour is -- are to be. The amount of work that's expected, what periods of relief are available, what safety practices are observed? Now, petitioner acknowledges that temperature and the quality of plant air and restroom privileges are part of the physical dimensions of the working environment. Now, we submit that food availability during the working day is no less a part of the physical dimensions of the employees working environment because as an employee has to work a full 8-hour day without stopping to eat, he is not going to be able to physically perform his job.
William J. Brennan, Jr.: Mr. Come, let me go back to the Board's basic position. Suppose that in this plant there were just two vending machines, as to -- is there any de minimis exception to the Board's position if Ford wanted to take the coffee out of those machines and replace it with milk, is that bargainable?
Norton J. Come: Well, I think there is a de minimis concept. I'm not prepared to say that that would be within the de minimis area because I think that Congress made the judgment that it's to be left to the parties to determine what is significant and what is not significant once you get something that is of vital concern to the employees as part of their working environment because otherwise you're on the shoal of having the Government, of the Board and the Courts sitting judgment on what is significant and what is not significant. Industrial experience has shown that many things that might to a layman appear to be trivial have given rise to industrial unrest. Now, let me tell you what Ford has done here. They've not only provided this facility and greatly subsidized it, they've got a provision.
William J. Brennan, Jr.: Now you're arguing the facts of it, and I'm trying to --
Norton J. Come: Yes.
William J. Brennan, Jr.: -- stay with the Board's --
Norton J. Come: What?
William J. Brennan, Jr.: -- basic broad initial position.
Norton J. Come: Well, what I think -- I think that --
William J. Brennan, Jr.: Maybe you're suggesting we should do as the Seventh Circuit did and decide this case on the facts?
Norton J. Come: Well, I think that the facts are important in showing that in the -- of a -- that a -- as a matter of industrial experience it would not be a radical thing to hold that this type of arrangement is a bargainable matter. Ford has bargained with the Union since 1967 about the services to be provided in its in-plant facilities. Since 1967, the local agreement between Ford and the Union has contained specific provisions concerning vending machine and cafeteria services --
Potter Stewart: That's no --
Norton J. Come: -- such as the --
Potter Stewart: Has no conclusive evidence however that that was a mandatory subject to bargaining.
Norton J. Come: Now, I agree with you that that is not what again accepting my premise that food availability is part of the physical conditions of the working environment.
Warren E. Burger: Well, assume that so, is this price part of availability --
Norton J. Come: Well --
Warren E. Burger: -- in your view?
Norton J. Come: We submit that price is an integral part of the subject to food services.
Potter Stewart: Well, it comes very close to wages, there's a fringe benefit. Let's say the demand were for free lunches, free food which for sure I would include half price food. That's so could close to a wage demand, isn't it? A fringe benefit so closely related to compensation that I would suppose that would clearly be a subject of compulsory bargaining, wouldn't it?
Norton J. Come: Yes, it would Your Honor. And that's why it doesn't make too much -- it isn't too rational to try to separate this thing out because it -- you have various gradations of it. And it depends upon the conditions -- well, it depends upon the bargain that the parties are able to work out. And you have the whole spectrum from where there would be a subsidy in terms of the cost of the food, the ware, its no more than what you'd have to pay elsewhere but nonetheless. It is an important benefit because you've got a plant here that is a quarter mile square out in the outline limits of Chicago. You got a lunch hour that's 30 minutes. You got breaks that are 22 minutes. They are not permitted to leave the plant property during the breaks and even if they were during the lunch hour, they couldn't feasibly do it because it takes 10 or 15 minutes to go you're your workstation to the parking lot to get your car out and then you got to drive it out and go through a single file gate and then drive a couple of miles down to hope to get into one of these cafeteria of a -- fast food places that are also serving a lot of other industrial plants in the same area. I mean, why has the company gone to the expense of providing this substantial facility if it did -- if they didn't -- if they did not regard it as a very important part of the physical well-being of the worker while he was on the job.
Warren E. Burger: How did they manage during the boycott? They carry their food probably?
Norton J. Come: They either carry their food --
Warren E. Burger: Or they went out.
Norton J. Come: -- or they did not eat.
Warren E. Burger: Or they went out, isn't that what the --
Norton J. Come: Well, according to the record the finding is the 12 out of 3600 employees left the plant at lunch. But they had to call off the boycott once the summer came because there were no refrigeration facilities for storing the food which had to be kept in the locker rooms. But even if -- assuming that brown bagging is an alternative, we submit that the Act gives the employees and their Union representatives the right to try to better that alternative. And obviously if you can get wholesome food at reasonable prices at the place of work that is better than having to, as I explained, run somewhere off the plant premises or even in many cases bringing your own lunch.
Byron R. White: Well, I take it, I thought you would say that if a plant has no food facilities at all and just relies on the restaurants in the area, that if the Union wants to bargain about putting in a facility to -- it would be a bargainable subject.
Norton J. Come: I think it would be subject of course to the question as to how much of a capital investment that would require and whether that would then bring you --
Byron R. White: That's just part of the bargaining that you would take that the employer could not refuse to talk about it, is that it?
Norton J. Come: Well, if it is a mandatory bargaining, well, if it's a mandatory bargaining subject you cannot refuse to talk about it.
Byron R. White: Well under your position, I -- what's your -- your position is, that under your position I take it, it would be -- he would have to bargain about it.
Norton J. Come: I think that the logic of the position that I am urging would lead to that result --
Byron R. White: Surely you'd have to bargain about it if there wasn't a facility and the employer decided that it was a real bummer and wanted to close it down.
Norton J. Come: I think so.
Thurgood Marshall: Mr. Come, does the IBM have to negotiate on the country club it has up in Connecticut?
Norton J. Come: IBM on the country club?
Thurgood Marshall: Yes, their average employees up in -- upstate New York and Connecticut.
John Paul Stevens: They're not organizing.
Thurgood Marshall: That's the answer I guess.
Norton J. Come: Well, we have had cases where hunting lodge privileges have been --
Thurgood Marshall: Yes, that's right.
Norton J. Come: -- accorded to employees and if it has been accorded over -- enough years so that it has become part of the monuments of the employment relationship bargaining obligation has been found. I think that --
Thurgood Marshall: I must --
Norton J. Come: -- I think that the further you get away from the plant though, the more tenuous it becomes and --
Thurgood Marshall: Well, what about in the plant? Had you ever take against what Justice Steven talking about, there they raised the price of coffee a nickel?
Norton J. Come: Yes.
Thurgood Marshall: How do you stop that from being a --
Norton J. Come: Well --
Thurgood Marshall: -- a grievance?
Norton J. Come: Well, the Board's order here --
Thurgood Marshall: Well, you -- don't you agree that you couldn't cover the whole working of it?
Norton J. Come: No, no. You can't --
Thurgood Marshall: Well, how could you restrict it, that's what I want to --
Norton J. Come: Well, the first one -- the first of all the Board's order here unlike the typical order, it is entered in one of these bargaining cases, does not require on the company to bargain before the price increase is made effective. It is obligated to bargain only if it is put into -- once it has been put into effect and if the Union so requests. So presumably de minimis matters are not going to be raised. But beyond that, the ingenuity of the parties is such that they can take care of that in the collective bargaining agreements that are negotiated. They could provide that -- they could put a cap on raises such as to say that --
John Paul Stevens: What if you had more than one Union? What if you have more than one Union?
Norton J. Come: Well, if you have more than one Union Your Honor the problem is no different than the problem that you have with respect to a lot of other benefits like pensions, the Seventh Circuit dealt with that problem in the Inland Steel case. Where it -- well, one of the company's basic argument was pension shouldn't be bargained about because the steelworkers, the Union that has raised it, it all represents only one bargaining unit. We got seven or right other unions here. The Seventh Circuit said that this is something that the parties can work out in collective bargaining. It is not a reason for denying of benefits of the Act to an employee just because they happen to be in a plant where there are multiple bargaining units. Parties in practice negotiate things like that jointly with all the unions. And I have confidence that they would be able to work that out here.
Byron R. White: Mr. -- Mr. Come, I take it before you sit down, I take that the board doesn't put you -- it doesn't rest his position on the relationship of food prices to wages, it -- its working conditions, right?
Norton J. Come: It is where -- it is conditions of employment --
Byron R. White: And as -- so we're not -- we -- even if we thought it really was part of wages or sort of a fringe benefit we -- we couldn't affirm on that basis, we'd either have to agree with the Board or not.
Norton J. Come: Well, in the Weyerhaeuser case which was the --
Byron R. White: I know, but wouldn't you -- shouldn't we have a little chainier problem on the --?
Norton J. Come: I don't --
Byron R. White: Or an enlarged chainier problem.
Norton J. Come: Well, you might have a small chainier problem because if you read the Board decisions in this area beginning with Weyerhaeuser where they squarely put it on both conditions of employment and wages. And in the Ladish case which was the one before this case although the Board on heavily on conditions of employment. They also --in their opinion indicated that it was the equivalent of a tax free subsidy. The opinion can be read as it -- as at least not or completely being oblivious to the fact that there is a wage element --
Byron R. White: But not here?
Norton J. Come: Well, they relied on all the other cases as their basis for the decision here. The Board cited Ladish in the earlier cases and again we have the problem of how clearly they have to articulate it.
Byron R. White: And the Court -- but the Court of Appeals didn't?
Norton J. Come: The Court of Appeals relied on the conditions of employment. But we think that that is broad enough to cover this because it is a catch all that speaks in terms or of -- or other terms and conditions of employment. And this has an economic benefit to what -- even though it might not be technically wages, it would still be enough to make it a condition of employment. As a matter of fact --
Potter Stewart: Well, there are wages in hours are condition of employment by this --
Norton J. Come: That is correct.
Potter Stewart: -- as they use with other, it makes clear.
Norton J. Come: That is correct. And I might say that the legislative history which petitioner overlooks but -- which is referred to in our brief and in the amicus brief indicates that the Congress corollary visualized that conditions of employment would be a broader term to just mere working conditions because the Senate Bill which is the genesis of 8 (d) has originally proposed, talked in terms of working conditions. And Senator Wagner who was still around at that time expressed great concerns that that would take out of the area of mandatory bargaining a lot of things that should be in there and the --
Warren E. Burger: You're a little over your time now Mr. Come.
Norton J. Come: I'm sorry, Your Honor. Thank you. So as to change the conditions of employment.
Warren E. Burger: Mr. Fillion?
John A. Fillion: Mr. Chief Justice, may it please the Court. Your Honors I'd like to focus briefly on a matter that while it figured predominantly and prominently in the briefs has not been discussed much here today but I think it's a very key part of this case. I'm referring to the really radical exaggeration the Ford is giving vital effects test in this case. And in doing so, it is urging the Board and ultimately the Courts to get heavily into the matter of regulating the terms that is the substantive terms of collective bargaining agreements. Moreover, it is violating the fairly clear standards that this Court has already articulated as to how to judge whether or not a bargaining proposal is a term and condition of employment. This Court or rather the Congress in a statute which has been explicated over and over by this Court has made it very clear that the Labor Board is not to get into the matter of sitting in judgment on the substantive terms of collective bargaining agreements. That is the Board is not to mix into what goes into and what stayed out -- stays out of collective bargaining agreements.
Potter Stewart: Well, except for subject matter areas.
John A. Fillion: I'm sorry, Your Honor.
Potter Stewart: Well, that's what this case is about. They -- the Board and the Courts do have a job of saying what subject matter areas --
John A. Fillion: Right. That this Court --
Potter Stewart: -- are subject to compulsory collective bargaining.
John A. Fillion: Right. This Court has laid down as its basic rule those proposals are terms and conditions of employment which are within the employee-employer relationship. Then you Mr. Justice Stewart in Fibre -- in your concurrent decision on Fibreboard went on to say that there is a way of identifying those proposals that are most obviously terms and conditions of the employment and they are the ones that are the physical dimensions of the job environment. And I would submit that those are the two clear principles that this Court has laid down in judging this matter of what is a term or condition of employment. Now, what Ford would have you do --
Potter Stewart: -- that concurring opinion was a concurring opinion, it wasn't the Court laying down anything. It was just a essay on behalf of three members of the Court.
John A. Fillion: Correct Your Honor. Now, the Court has also indicated in Pittsburg Plate Glass that there is a very narrow area within which the vital effect test can be applied. But it is a very narrow effect. When the proposal deals with individuals outside the employer-employee relationship then vital effect becomes relevant. Ford wants you and wants the board to go way beyond that and say a vital effect applies not only when the individuals involved are outside the employee-employer relationship. Vital effect applies and is the standard even where the individuals involved and even where the subject matter is well within the employer-employee relationship. But in other words, Ford wants you to apply the vital effect test wall-to-wall and cover the entire gambit of Section 8 (d) with it. Moreover, even with respect to the physical environment test by which we are to identify those subjects that are most obviously terms and conditions of employment. Ford says disregard that, even if we assume that something is a part of the physical environment that makes no difference. The vital effect test is what applies. Now it is in that --
Warren E. Burger: Well, do you agree with Mr. Come that although he was not willing to respond that 50% subsidy for the food was bargainable, he quickly ceased on the idea that free food would be bargainable. Do you think free food?
John A. Fillion: I think free food is bargainable. I think 50% is bargainable. As a matter of fact Mr. Chief Justice I think this is a good illustration of the way in which we might handle the problem that was raised by Mr. Justice Stevens. That is, "How do you handle something like food prices that are fluctuating all the time?" There are a number of ways.
Warren E. Burger: You don't have to worry about it if the employer pays all of it.
John A. Fillion: Well, that's --
Warren E. Burger: There's no bargaining problem.
John A. Fillion: One thing we may do at the bargaining table would be to say we proposed that if there are price increases in the future, the employer will pay half the price increase.
John Paul Stevens: But you also --
John A. Fillion: Pardon me?
John Paul Stevens: You also going to want to bargain about what's going into the menu.
John A. Fillion: That's something that fluctuates radically too but there are a lot of things --
John Paul Stevens: It won't be any good to keep the price the same, let them -- give you half a scoop of ice cream.
John A. Fillion: Well, then maybe what we'll want to do is what we do in practically every collective bargain agreement we have. And that is to negotiate that into the grievance procedure like other things that fluctuate radically or rapidly like --
John Paul Stevens: In all seriousness. It's inherent in your position that you can bargain about the menu as well as the price, isn't it?
John A. Fillion: Yes. That's quite --
John Paul Stevens: Yes.
John A. Fillion: -- quite correct Your Honor. But probably we would institutionalize that. Probably we would put into the grievance procedure. If a price change comes along or a menu change or a quantity change, we wouldn't say, "Let's bargain now, we would file a grievance". The grievance would go to the first step, the second step, maybe to arbitration. Maybe some fortunate arbitrator would have the question to resolve of, "Is there enough mashed potatoes or is there enough gravy?" But it would be institutionalized and it wouldn't be something that would be picky and get in the way of the parties and absorb a lot of time.
William J. Brennan, Jr.: Well, I take it the Board's orders in these areas anyway if they were ever upheld which they haven't been until now, I suppose they say that the employer doesn't have to bargain before he puts in any changes. They just put some in and then if the Union wants to bargain, they ask.
John A. Fillion: That's correct.
Byron R. White: That's in a -- that's -- that in -- that is sort of like a grievance procedure?
John A. Fillion: Exactly, a grievance procedure classically is the company acts, the union reacts and that's exactly the way this would be.
Potter Stewart: But the claim is always that there has been a violation of the bargaining agreement. That's what a grievance is.
John A. Fillion: Right. Now, we would have negotiated into the collective bargaining agreement as we have now in this local agreement provisions that they would probably deal with a little more institutionalization of these things, but there would be rights and duties in that collective bargaining agreement. Based upon, they would be negotiated as a result of Ford's having to bargain with us and if there are violations of that count, those contractual provisions, we would then take it through the grievance procedure.
Byron R. White: But under the Board's order as I take, if the Board -- if the employer raise the price of milk or something else and he just put it in like he would be entitled to do under the Board's order and the Union said, "Let's bargain?" The employer says, "Okay, let's bargain." They sat down and they didn't reach any agreement. The employer doesn't have to agree with them.
John A. Fillion: Absolutely right.
Byron R. White: They can have a strike maybe but --
John A. Fillion: In the absence of a provision on the contract on the price of milk --
Byron R. White: Yes.
John A. Fillion: -- or regulating the price of milk but absent -- anything on the contract on there, we would bargain to an impasse and Ford would go ahead and raise the price of milk --
Byron R. White: Well, it's already been raised?
John A. Fillion: -- to his last proposal.
Byron R. White: -- already raised. It's already been raised. They're gone to the Board's order, it would've been raised already.
John A. Fillion: That's correct.
Thurgood Marshall: Would you also tell me, could use lettuce?
John A. Fillion: That they could use a lettuce Your Honor?
Warren E. Burger: Not use.
Thurgood Marshall: Not use lettuce?
John A. Fillion: We might -- yes, we will -- we could under our rights raise quantity, quality, selection, the whole gambit.
Warren E. Burger: But if it was focused just on lettuce, would that be a secondary boycott?
John A. Fillion: Sorry Your Honor, I missed your original allusion. Excuse me.
John Paul Stevens: I pardon you.
John A. Fillion: Thank you, Your Honor.
Warren E. Burger: Very well Mr. Fillion.
John A. Fillion: Thank you.
Warren E. Burger: Do you have anything further.
Theophil C. Kammholz: Very briefly Mr. Chief Justice and the members of the Court. I think the bottom line on the position which learned counsel for the UAW artic -- has articulated here. What he is talking about and what they're asking for is a recipe for industrial unrest. In essence, bargaining on cost of living which embraces as I noted earlier food prices as well as other matters it seems to me as history has demonstrated in the collective bargaining arena, very satisfactorily solves the problem. To now expand the concept to include prices, services, would be doing a disservice. I suggest to the intent of the Congress, to the working and the living relationship amongst the parties. Thank you very much.
Warren E. Burger: Thank you gentleman. The case is submitted.


Earl Warren: Number 101, William Vincent Vitarelli, petitioner, versus Fred A. Seaton, Secretary of the Interior, et al.
Clifford J. Hynning: Mr. Chief Justice --
Earl Warren: Mr. Hynning, is that correct pronunciation?
Clifford J. Hynning: That's correct. Please the court. This case is here on a writ of certiorari to the Court of Appeals of District of Columbia Circuit. It involves a former governmental employee, an educational employee of the Department of Interior who was removed in 1954 as a security risk from a position, which the government concedes, was non-insensitive, this is, this case doesn't involve any issue of secrets information, confidential information or anything of that sort. The suit was instituted in the summer of 1956. It was heard on cross motions for summary judgment in the District Court, which granted the summary motion for the government. Then it went up to the Court of Appeals, which affirmed it. Now it is our contention here that the firing of this governmental employee from a non-sensitive position has a security risk and under the purported authority of a security order in the security act, it was unlawful under the decision of this court in Cole versus Young. And that he was therefore entitled to reinstatement as a result of a fact that his firing was unlawful. Now we are asked -- we asked in the District Court for both an order expunging the record and declaring the firing to be unlawful and for reinstatement. We achieved part of that through a so-called voluntary expunging of the record. The issue here is whether the firing was so unlawful that he was entitled to -- is entitled to reinstatement. Now turning to the facts --
Speaker: (Inaudible)
Clifford J. Hynning: That is correct, at the time of his removal. Now there are certain changes that have occurred in the personnel policy of the Department of Interior that I am going to allude to later which somewhat modifies the answer to that question. I think it's necessary here to recall a little bit of the political atmosphere of 1954 when this security board -- when he was suspended and when he had his hearing before the security board. This was at a time prior to the decisions of this Court in Peters, in Service and Cole and there was a common assumption within the government that at a security hearing there were no legal problems or constitutional problems. That appeared to be the result of the decision of this Court in Bailey against Richardson which had been affirmed by an equal division. Now Vitarelli, as I said, was a teacher, an educational employee of the Office of Trust Territories of the Department of the Interior. He was employed to train native teachers out in the Caroline Islands. Now these Caroline Islands are islands being administered by the United States in trust for the United Nations. They were the islands that were previously administered by Japan as mandated islands under the League of Nations. Now this case started initially with a newspaper interview with a high commissioner of the trust territories of the pacific, and this was printed in a Guam newspaper of March 13, 1954 and it's been reproduced as Pages 1 and 2 of the record in this case. The headline here was that it was going to be a security probe in the trust isles and that five employees were to be ousted as bad risks or asked to resign. And an example was given of a known conscientious objector where the high commissioner stated that an advocate of pacifism is out of place and so sensitive and strategic in area as the trust territories. I think this is a little ironic to find the high commissioner of trust territories believing that pacifist is out of place in some islands being administered by the United States in trust for the World Peace Organization. A few days later he received a cable from the Secretary of the Interior advising him that he was being suspended without stating any of the charges on which he was being suspended. I assume that this was in the interest of economy, he was going to receive letter a little later stating the charges. That came about a week later and it's been reproduced in the record on pages 3 through 6. Now these charges allege that in the years from 1941 to 1945 he was either a member of or affiliated with one sympathetic association with the Communist Party, with members of the Communist Party. And then he went -- they went to list that he was in association with certain named individuals that in 1945 he had registered a preference for the American Labor Party that while an instructor at Columbia University, he had subscribed to the USSR information bulletin and had purchased copies of the Daily Worker and the New Masses. That in a previous answer to, under the Truman Loyalty Program, he had stated that his association with these named individuals were casual and it was asserted that this was not true, that his associations were those of an intimate friendship. It then went on to allege that he was therefore not reliable or trustworthy in view of these facts and that he had deliberately misrepresented falsified or admitted material facts or he might be subject to coercion, influence or pressure. He was also notified that he was entitled to a hearing under the security order and he was supplied with a copy of the executive order under departmental security regulations as well as the Act of 1950, the Security Act. At that time, he was given the alternative of returning to Washington at his own expense from half way around the world, try to answer these charges or if he wanted to bring his family back at government expense, he could resign. He then tried to see how he could raise the funds to travel, but fortunately the government somehow or other was induced to change its mind and gave him a travel request so he could proceed to Washington. At this time, of course, he was suspended without pay. He arrived here and prepared an answer together with approximately 44 affidavits principally from his associates on the job out in the trust territories. In this answer, he denied any sympathy -- membership in or sympathy with the Communist Party or anyone who was a Communist, but he was informed that his answer was insufficient and therefore a hearing was scheduled. He appeared at this hearing with counsel together with four witnesses, live witnesses. The only live witnesses at this hearing were the petitioner and his four witnesses in support of him. One of them was the very distinguished author James Michener, who wrote the Tales of the South Pacific who had been instrumental for Vitarelli's employment in the Office of Trust Territories. As I said, the government presented no evidence of any kind. He was asked a great variety of questions. Now these, the nature of these questions are of the --
Speaker: The records of the procedure are on file in this Court?
Clifford J. Hynning: No sir, no sir. This case is submitted here on what is a somewhat abbreviated record of only about 50 pages, the record of the -- consist of the pleadings in the District Court to which were not attached the transcript.
Speaker: I read all of that and I couldn't find in the record, I couldn't find it.
Clifford J. Hynning: Now the questions that I am referring to were contained in certain allegations in the complaint. And since case was disposed off on the basis of a motion for summary judgment, these questions were -- are in the record only to the extent they are contained in paragraph 26.
Speaker: (Inaudible)
Clifford J. Hynning: We have not discussed that question, I have no objection thereto.
Earl Warren: Has it been written up?
Clifford J. Hynning: It's in type written form.
Earl Warren: Is there any objection from the government?
John G. Laughlin, Jr.: No, no none. No objection on behalf of the government.
Earl Warren: So then, will you present it then for the (Inaudible)?
Clifford J. Hynning: We will. Now in this paragraph 26 of the complaint where we enumerated the kind of -- or endeavored to describe the kind of hearing that was afforded here and show the nature of questions asked of this witness. We stated that he was a -- it was inquired at first whether he thought this was a republican plot to get rid of democrats. What were his views on --
Tom C. Clark: What was that first question?
Clifford J. Hynning: The question is did he believe the security program was a republican plot to get ride of democrats. Now the exact question, well it's not in the record, is reproduced in the margin of the brief on page 9, footnote 3. The security officer stated, do you think that the security program undertaken by Executive Order 10450 is politically inspired from the Republican administration?
Tom C. Clark: Who asked that?
Clifford J. Hynning: The security officer.
Tom C. Clark: What was the date?
Clifford J. Hynning: Of the hearing?
Tom C. Clark: The date of that question.
Clifford J. Hynning: The date of that question was May or June 1954. Now I think there is an even more extraordinary exchange with respect to his vote for the presidency in 1948, in 1940, which are set forth verbatim in the brief on pages 29 to 30. They inquired whether he had voted for Mr. Wallace and in the -- who was running on the progressive ticket in 1948. And he said I voted for Henry Wallace once and the Chairman of the Hearing Board said just one question on that, did you not vote for Henry Wallace when he was a candidate for Vice President? Yes I did. The Chairman - Then you voted for him once more, more than once? Now since the issue of veracity is I believe one of the crucial issues in this administrative hearing, this was one of the means of testing his candor and truthfulness I presume. Now among the other questions asked of him at this hearing was what were his views on racial equality. Did he believe there was discrimination against Negros and Jews? He was asked questions on the methods of pricing cotton in Georgia, whether he had heard of consumers union. What was Black Mountain transcendentalism?
Tom C. Clark: What is it by the way?[Laughter]
Clifford J. Hynning: I haven't found anybody who knows.[Laughter]
Tom C. Clark: Did he know?
Clifford J. Hynning: He said he didn't know. He was asked whether he was quite hap up over the one world idea, and whether he was still, June 1954, it's in parenthesis by me, a strong advocate of the United Nations.
Speaker: Who was asking the question?
Clifford J. Hynning: The security officer.
Earl Warren: This was at the hearing?
Clifford J. Hynning: At the hearing. Now these questions have been -- the security officer at that time was the assistant solicitor of the Department of Interior Mr. Reuel Armstrong, who since became solicitor, but I believe has left the government service. Now that was the nature of the hearing that he had and of course the problem that confronted his then counsel was what were the issues in this proceeding, were this -- were they charges. They stated at the hearing his loyalty was not in question, and then they went over this whole area of political opinion. I might say political partisan opinion. Now a little later the Hearing Board recommended that his retention in employment was not in the interest of the national security and that recommendation was endorsed by the Secretary of the Interior, who said that as a result thereof, the employment of Vitarelli was to be terminated for the reasons specifically set forth in the letter of charges. Now the letter of charges I have summarized to you and since it was conceded at the hearing, that he was entirely loyal, it would appear that by a process of elimination, the question was one of veracity that somehow or other he was not deemed a person who had fully told the truth. Now I do not know this, I don't know what -- why he was terminated. I can only go by the documents and analyze what appears in the transcript. But I believe that when you have looked at several of these transcripts in here, you find -- tend to find a pattern on the part of the security machinery that can be described only as an obsession with veracity. That is you are charged with something that isn't perhaps too important, but if you don't admitted and come clean in someway other, we know you are lying, we are going to get you on that. Now I think that is the explanation of what the Hearing Board did, but it's entirely a deduction or a speculation on my part. All that I can see in the record is that the Secretary of the Interior said that his employment should be terminated in the interest of national security for the reasons specifically set forth in the charges, and most of those charges seem to disappear if you assume that he is perfectly loyal.
Earl Warren: You say the government concedes that there is no question of loyalty in the case.
Clifford J. Hynning: I believe that's correct. It was so stated twice on the face of the transcript by the security officer. I do not believe there is any controversy with the government on that point at all, nor is there any controversy on the nature of the position he had.
Potter Stewart: That is -- that's being -- as to it's being non-sensitive?
Clifford J. Hynning: As to it's being non-sensitive, that he was training teachers of native children in the Caroline Islands in the Pacific. Now the next stage, in this proceeding came up along approximately a year later, and if it were to be written up in fiction, it would be challenged I assume by many reviewers on the ground that it involves too many coincidences. But Viterelli's counsel was taking a trip around the world, and while he was waiting at the airport out in India, he ran into a person who said he was a personnel officer of the Officer of Trust Territories of the Department of the Interior. So his counsel introduced himself and said that he had been attorney for Viterelli. Now the personnel officer said well that was a case that should have been handled differently. Now this is alleged in our complaint that Viterelli should -- wasn't a person of doubtful loyalty of security, he just didn't have common sense, because he associated with the natives.
Tom C. Clark: Associated with what?
Clifford J. Hynning: With the natives. Out in the -- he was supposed to train native teachers in the Caroline Islands, but he permitted his children to associate with native children and this reflected a lack of common sense. Well his counsel represented these facts to the Secretary of the Interior, and on the occasion of the personnel officer's return to the United States, a supplemental hearing was held in which all of this was testified to under oath by the personnel officer. So at this second hearing, Viterelli did have a witness on behalf of the government come in and more or less confirm what his counsel had represented had transpired there at that airport in India. Well this was the posture of the situation, of the case, the time this Court decided Cole versus Young. Whereupon a demand was made on the Secretary of the Interior for immediate reinstatement on the ground that he held a non-sensitive position. When that demand was not complied with, the suit went into the District Court. Now at that time, the government came up with the defense that in as much as Viterelli had held a position called Schedule A, that is one of the scheduled accepted from the competitive civil service under the Lloyd-La Follette Act. He could be fired for no reason at all and therefore he had no right to -- right of reinstatement. At that point, we served a notice for the taking of depositions on the Secretary of the Interior and the respondent members of Civil Service Commission to inquire of why they insisted on firing him with a badge of infamy as a security reason when he could have been fired for no reason at all, without any infamy, without damage to his profession and career. The government opposed this discovery on the ground that these questions were hypothetical and immaterial. I am now reading from page 11 of the brief, “the only relevant legal issue herein is whether the procedures in fact employed by the defendant's secretary in accomplishing plaintiff's discharged were legal and valid. Neither the existence of any other procedure which could have been used to discharge plaintiff, nor the reason why it was not in fact employed can have any possible relevance therein.” Noting this as a concession of record, we abandoned the effort of discovery. Now the district judge, the -- the next step then was the voluntary expunging of the record by respondents. They stated that a new personnel form had been issued which struck from it all references to the executive order into the Act of 1950. And stated that that was the maximum relief to which this petitioner was entitled. Now the district judge felt that since Vitarelli was not in the competitive civil service and was therefore an employee at will, he could not order him reinstated since the government -- since the employing department could turn around that same day and fire him for no reason at all. Now in the Court of Appeals we argued the constitutional issue that the -- while Vitarelli could have been dismissed as an employee at will, he was not so dismissed, he was dismissed as a security risk under a legal authority which was not applicable thereto. Now the manner of his dismissal was defamatory. It started with a newspaper conference on Guam and it went on from there. It defamed him in his right to follow his calling as a teacher. Now the Court of Appeals held that there was a modicum or a minimum of constitutional rights available to an employee such as Vitarelli. He had a right to be free from dismissal on unconstitutional or flagrantly arbitrary grounds. But that no such dismissal had occurred here, but the treatment was not arbitrary and was consistent with due process referring to the fact that he has charges, there was the paraphernalia of a hearing and review. Furthermore the Court of Appeals had held that even these things aside, there was a clear basis for the executive to have fired Vitarelli on the ground that he was untrustworthy. And they recited here at this paragraph of the letter of charges which said that he was untrustworthy or alleged that he was untrustworthy. The Court of Appeals further held that he had gotten the maximum relief that he would be entitled to under any circumstances namely an expunging of the record. Now this expunging of the record is a rather interesting thing in this case, the government recited that they have expunged all references to any adverse findings made with respect to Vitarelli under the security order. So that means that the letters making a finding that his removal was required by the interest of national security, that's out, and for the reason specifically set forth in letter of charges, he look -- he must then look at the letter of charges to see what remains after the expunging takes place. Now the subject matter is suspension under the executive order, that's out. Next paragraph says by authority of the executive order you are suspended, so that's out. The next paragraph, number two says a specific -- a specific of security interest permits your charge as follows, so that's out, that's under the executive order. Then you get down to paragraph number three which says your behavior et cetera show you to be unreliable in the light of the facts above alleged that's out, because it refers obviously to the facts above alleged. Moreover the language of numbered paragraph 3 is paradigm from the criteria for security dismissal under the executive order. Now in the next paragraph number four, there is your advice of your rights to have a hearing under the executive order. So that's out. The last paragraph says you get a copy of the executive order, well that's out.
Speaker: Where are you reading?
Clifford J. Hynning: I am reading from the record pages 3 through 6. Now that follows therefore that this document which furnishes a clear basis for the Secretary's action after being expunged reads to Vitarelli from the Secretary of Interior signed Douglas McKay. I think that's all that remains under that expunging. Now the basic contention that remains here I think is that the constitutional rights of an employee such as Vitarelli are coterminous with the rights given to him by Congress and if Congress has given him no rights, he has no constitutional rights.
Speaker: Excuse me Mr. Hynning, but I suppose Vitarelli has stated (Inaudible)
Clifford J. Hynning: That is one -- no – now I think at this point I should take up the change in the personnel policy that's occurred in the Department of the Interior, and in doing that I want to apologize for bringing it up at this late stage. But neither counsel for the government nor I knew about this until after the final brief had been filed in this case just a few days ago. And it took a little clarity now to find, but at the time of Vitarelli's dismissal in 1954 all the overseas positions of educational employees at the Department of Interior were in Schedule A. But then in 1956, the President authorized a gradual blanketing in of overseas positions and the Secretary of the Interior acting entirely within the Department of the Interior blanketed in all these education positions as of April 1, 1956 before this lawsuit was started.
William J. Brennan, Jr.: Blanketed in what?
Clifford J. Hynning: Into the competitive civil service. Now under and --
Felix Frankfurter: May I trouble you for the date? When -- when was the dismissal?
Clifford J. Hynning: The dismissal was made effective September 10, 1954. He was suspended in April 1954. The change in the personnel practices of the Department of Interior were made effective on April 1, 1956. Now under this blanketing in procedure it was necessary for an employee to meet two tests. He had to pass what was equivalent to an -- passing an unassembled civil service examination that is he was qualified by training and experience. And secondly he had to have the recommendation of the high commissioner. Now it is our --
Speaker: (Inaudible)
Clifford J. Hynning: Then he became a regular civil servant that is a civil servant in the competitive civil service and entitled to the statutory protections of the Lloyd-La Follette Act.
Hugo L. Black: What date was that?
Clifford J. Hynning: This was done in the Department of Interior as of April 1, 1956.
Felix Frankfurter: And he satisfied these two conditions?
Clifford J. Hynning: He satisfies the first condition, the second condition involves the act of the High Commissioner of the Trust Territories, an official of the Department of the Interior. Now with respect to that I think that the Court must assume that in exercising that discretion the High Commissioner is going to act in an honorable and responsible manner and to the mere fact that Vitarelli is a litigant in this case is not going to leave the High Commissioner to refuse to make such a recommendation.
Felix Frankfurter: Well, but as a matter of fact he has not been covered in because he has not satisfied the two conditions.
Clifford J. Hynning: He has not been covered in because he has been off the government role since 1954.
Felix Frankfurter: He was not being covered in.
Clifford J. Hynning: That's correct.
Felix Frankfurter: Therefore he is not within the protection of that.
Clifford J. Hynning: Well that raises the question whether the position or the employee is in. Now if -- if he were to be reinstated on the ground that his --
Felix Frankfurter: But it must be – it must be the official because if he wouldn't pass an examination, the office can't pass it.
Clifford J. Hynning: That is true.
Felix Frankfurter: That was first condition, he must pass a certain examination.
Clifford J. Hynning: That's correct, that's correct.
Felix Frankfurter: And therefore, it must be individual and not -- and not abstract office.
Clifford J. Hynning: I -- yes, but I think it also follows that at the time of the order of reinstatement that the position to which he would reinstated under the present personnel situation of the Department of the Interior, he would be ordered reinstatement to a position which is in the competitive civil service.
Felix Frankfurter: He would be eligible for it.
Clifford J. Hynning: That's correct. Now this is one of the rights that he stands to lose that is to compete for being blanketed in unless he secures an order of reinstatement, so that at issue here are two things.
Felix Frankfurter: That isn't quite so, is it?
Clifford J. Hynning: He doesn't need the test of eligibility unless he becomes an employee of the Department of Interior again.
Felix Frankfurter: (Inaudible) employee, it doesn't follow that the high commissioner has to give in (Inaudible).
Clifford J. Hynning: That is --
Felix Frankfurter: And that wasn't if he had to take an examination (Inaudible).
Clifford J. Hynning: Well I said the examination here is an unassembled examination, that is based on training and experience not a written examination.
Felix Frankfurter: But the assessment must be made on that.
Clifford J. Hynning: That's correct.
Felix Frankfurter: And therefore he – that must be satisfied.
Clifford J. Hynning: That is correct.
Felix Frankfurter: I am not saying that all these things shouldn't happen, I am suggesting they haven't happened, and it is not within the protection of the -- of the Civil Service Commission protection.
Clifford J. Hynning: Oh, I certainly agree I am not here contending that he is now entitled to the protection of the Lloyd-La Follette Act. I am contending however that these attempted personnel actions taken in October 1956 by which he was purportedly dismissed without any reason at all, since they related to a position which had been blanketed in under the Lloyd-La Follette Act necessarily did not meet the statutory test of the Lloyd-La Follette Act and therefore those personnel actions were invalid.
Felix Frankfurter: Therefore if those restrictions were illegal imposed, they should be -- they should be expunged or vacated, so that then the process by which he could become again may become (Inaudible).
Clifford J. Hynning: I don't quite follow Your Honor when you say those restrictions.
Felix Frankfurter: Well I mean if he was properly fired in 1954?
Clifford J. Hynning: Well then he has -- then he has no cause whatever.
Felix Frankfurter: Therefore all of that should out. I think I am making a (Inaudible) likely in my mind. If this (Inaudible) then he is not protected.
Clifford J. Hynning: He is not at the present time protected, that's granted.
Felix Frankfurter: He is not protect in all fairness or according to all honorable fairness, in your words, he ought to be covered.
Clifford J. Hynning: I am saying that this suit involves two things, it involves a claim for reinstatement as well a claim for back pay. Of course, the claim for back pay isn't properly before this Court on certiorari from the District Court.
Felix Frankfurter: But if he isn't covered by the -- If he isn't covered, if he isn't protected by the civil service safeguard, he maybe fired for no reason at all.
Clifford J. Hynning: That is correct.
Felix Frankfurter: And he says that's sufficient.
Clifford J. Hynning: Well he was not -- he was not fired for no reason at all here.
Felix Frankfurter: Well but he could be.
Clifford J. Hynning: He could have been, he could have been.
Felix Frankfurter: And he could deny, if he is not covered?
Speaker: What you are saying --
Clifford J. Hynning: Well, I am not certain if the answer is necessarily yes to the last question. He would have to be fired from a position and if that position is covered by the civil service standards, then there is a question --
Felix Frankfurter: Well, we are back where we were. I don't I think the position is covered, the position must be covered but he must be selected for the covered position.
Speaker: I thought you are claiming there is more than -- that there is not only money at stake here namely his salary.
Clifford J. Hynning: That is not properly at stake this particular lawsuit.
Speaker: No, I understand that, but that's the consequence or might be the consequence if we reverse this case. You are saying in addition to that he has sort of a mandatory right to take his civil service examination, don't you?
Clifford J. Hynning: I am stating that he -- if his dismissal as the security risk in 1954 is unlawful, as we were contending, then he is entitled to reinstatement to the situation he had at that time.
Speaker: Without an examination?
Clifford J. Hynning: Well he had -- and then he would be entitled it seems to me as one of the rights of reinstatement to compete for securing a competitive civil service status under the blanketing and process. That would be my answer to the --
Charles E. Whittaker: Even though the government might have the right then meanwhile to discharge him, because it didn't like the color of his hair?
Clifford J. Hynning: Well, I believe the government concedes that they cannot discharge a man because they don't like the color of his hair, that that is the kind of the thing which even a person outside the civil service is protected for under the constitution.
Felix Frankfurter: But they may not disclose the fact.
Clifford J. Hynning: They maybe silent on the subject.
Felix Frankfurter: All right.
Clifford J. Hynning: And it's the fact that they were not silent here, but they said he is a security risk and they discharged him in a defamatory manner.
Felix Frankfurter: That says on the hearing during which he was illegally discharged.
Clifford J. Hynning: That's correct.
Felix Frankfurter: That's there on the part of the government after -- while he still is and before it covers.
Clifford J. Hynning: That's correct. Now it's our contention that -- therefore that his dismissal in -- in 1954 was unlawful under the authority under which it purported to be made.
Charles E. Whittaker: Assume that's true.
Clifford J. Hynning: Secondly that it was done in such a defamatory manner and a gratuitously defamatory manner, that is the executive here has the power to discharge him for no reason, but it insisted as it were on imposing a badge of infamy on him. Well that's violated his constitutional rights, so that there he --
Charles E. Whittaker: So that would be void, wouldn't it?
Clifford J. Hynning: I beg your pardon?
Charles E. Whittaker: So that could be void.
Clifford J. Hynning: That would be void, now if that's void then he is entitled to reinstatement.
Charles E. Whittaker: All right, but could not the government then the next day discharge properly just by saying, you are discharged without reason?
Clifford J. Hynning: I so conceded in the District Court and the Court of Appeals and I would concede here today, but for the intervening change of the general personnel policy of the Department of the Interior.
Felix Frankfurter: But you can appeal to the honor of the department and not to any coed legal right.
Clifford J. Hynning: I think, if as a result of reinstatement he then becomes eligible to compete for recognition of that right. Now I certainly would go on to concede that I do not believe that the denial of that right to him after his reinstatement is one that can be litigated.
Hugo L. Black: (Inaudible)
Clifford J. Hynning: Now the government says here that his constitutional right, as I said, is coterminous with a statutory right. Now I believe that is not true, that is I believe that he has a constitutional right here not to have been defamed gratuitously. Secondly, we have contended that it is no justification in any court exercising the judicial power to justify an act on the basis of what could have been done, but wasn't done. And it doesn't, it seems to me, help the government one iota to come in here and say, we could have fired Vitarelli for no reason if in fact you gave the wrong reason.
Speaker: A step without reason, that's your position.
Clifford J. Hynning: I beg your pardon?
Speaker: A step without reason, and the question is whether or not the procedure under which he was fired was adequate for the reason for the ground on which they purported to fire him, namely as a security, that's your position?
Clifford J. Hynning: That's correct. Now I think they are also stuck with the position they took on the discovery motion, that is they at that point presented to the lower court that this firing of him for no reason at all was legally irrelevant. Now they prevented discovery and I think they are bound by that position having taken it in the lower court. Now our next contention is that his firing under the departmental security regulations violated the regulations whereby the Secretary of the Interior had provided for the security risk dismissals. Now the government here seems to challenge this Court's ruling in service, by saying it seems anomalous, that the head of a department would limit its authority. Well of course, that is precisely what this Court held in Service that there the Secretary of State had limited its authority -- his authority under the McCarran Rider. So that I think that these regulations are binding on the Secretary of the Interior and I believe they are violated, although the proof of their violation is to be presented in terms, which sounds like the constitutional arguments.
Charles E. Whittaker: Assume that that's all true and I should follow that, yet would not that status end when the government did properly discharge him?
Clifford J. Hynning: Well the question then you see is what was the illegal effect of these papers in 1956. Now there were two papers there, one was an expunging of the record. They said the record is expunged and he is now fired for no reason, and that presents the question, two questions really, can you fire the man without rehiring him, that is can you fire the man in (Voice Overlap)
Charles E. Whittaker: But the theory is he has never been discharged, that the proceeding up until that time was for the discharge was only void and ineffective and he is still an employee and entitled to pay.
Clifford J. Hynning: Well that of course was the not theory of the government in presenting those documents, because on the face on the document --
Charles E. Whittaker: Because the legal effect of it, if your other argument is sound.
Clifford J. Hynning: Well I think it -- my argument certainly is that the firing in 1954 was invalid. Now I am also contending that these attempted firing, this attempted firing in 1956 is equally invalid, on the ground by that time -- and this brings me back to the discussion I had with Mr. Justice Frankfurter. By that time the position which Vitarelli would have had, but for the intervention of his unlawful firing was in the competitive service -- civil service and therefore subject to the Lloyd-La Follette Act, and that these 56 documents on their face do not comply with the Lloyd-La Follette Act. So our contention is the 56 firing fails. And that --
William J. Brennan, Jr.: Does that add up to what you are contesting? None of this happened at al in 1956, then they sought (Inaudible) have been done without giving him this opportunity to qualify for the new civil service?
Clifford J. Hynning: I believe that's correct. Now in by way of concluding, let me state why I believe reinstatement is necessary in addition to the -- in addition to the reason already given. This man has suffered a gratuitous defamation. It's perhaps somewhat unique in the security annals that you start out by telling the press you're going to remove a man as a security risk before you give him charges or have a hearing. Now where a defamation occurs in -- normally there are two things that happen one is the retraction and the other are the -- are the payment of damages. Now the government has contented here in the brief in the Greene case, they haven't consented to be sued in tort for damages. But they haven't made a retraction, what they have done here is to expunge the record but they haven't rectified the error, by saying we were wrong. They haven't reemployed the man. Now that is the test of the man in the street in the security case, when is it shown that a security case is wrong the government takes him back. And I submit that that kind of retraction means reinstatement. I'd like to reserve the --
Speaker: Could you – are you going to deal at all with the respects in which you claim that the regulations that were --
Clifford J. Hynning: Yes let me – yes, I will come to those right now.
Speaker: That's why I raised the question about the record, the proceedings that you may have a bearing on.
Clifford J. Hynning: The regulations, on their face, state that they apply to any removal of any employee on security grounds with the exception of temporary employees. They then go on to say that, in such a case, where they -- where an employee is being removed on security ground, he is entitled to a written statement of charges, and I am now reading from the regulation, “as specific and detailed as security considerations permit.” Now we come to the charges to see whether it meets that test. The charges, in view of the concession that is loyalty was not in issue, gets down to a charge of veracity, and that charge of veracity is that he had stated that his associations with three named individuals were not casual, but were on the contrary associations of an intimate friendship. Now I submit that you test whether or not a charge is specific by trying to determine whether you can answer the charge on the assumption of innocence. Of course, if you assume the man is guilty there isn't any point of this inquiry. But if the assumption of innocence is applicable, then a charge that the man has said his relationship was casual, how can he answer that in terms of something that didn't occur. I mean if -- if his sole association was casual, that's all it is, how can he answer something more that it was one of intimate friendship without telling him times, places and so on. We submit that that weighting of the charge doesn't meet the test of specificity. It's I think entirely subject to the criticism of this Court in Simmons against the United States of a game of blind man's bluff.
William O. Douglas: That's number three at the bottom of Page 5.
Clifford J. Hynning: That's correct. Now the second thing he is entitled to a fair hearing. Well, I think this hearing is one of the strangest hearings I have ever examined, and I believe that the questions asked of a partisan nature clearly demonstrate that. Now the preceding counsel had dealt very exhaustibly with the issue of confrontation and I don't want to take any more time on that than is necessary other than I think to say, here is the case that requires no balancing of interest. There is no question here of government secrets, there is no question of a sensitive job. The man is concededly loyal, what was there in this case that required the secret importance. I would like to reserve the balance of my time.
Earl Warren: You may. Mr. Laughlin.
John G. Laughlin, Jr.: Mr. Chief Justice.
Earl Warren: Mr. Laughlin, to satisfy a curiosity, would you please tell us what Black Mountain Transcendentalism is?
John G. Laughlin, Jr.: I, I do not know.
Felix Frankfurter: How can we decide this case?
John G. Laughlin, Jr.: I beg your pardon.
Felix Frankfurter: How can we decide that case?
John G. Laughlin, Jr.: I will work on that tonight. In accordance with this Court's decision in Cole v. Young, we concede here as we have conceded in the courts below that petitioner's removal from federal employment was not authorized by the act of August 26th, 1950. Consistent with that concession, the Civil Service Commission has expunged from its records all adverse findings relating to petitioner that were taken in accordance with Executive Order 10450. The Department of Interior likewise consistent with that -- this concession has similarly expunged its personnel records with respect to Mr. Viteralli of all implications that his removal from government service was pursuant to the act of August 26 to the executive order and to the departmental order and there is no basis upon his -- from his personnel record from which anyone could infer that Mr. Viteralli is or was a security risk, whether that was the reason or is the reason for his separation from government service. This administrative relief, which has been accorded to the petitioner is a substantial compliance with the -- one of the prior for relief that he sought in his complaint filed in the District Court. In addition, however, he asked that his removal in 1954 be declared invalid, and that he -- that the courts direct that he be reinstated to his former position. These are the two issues, which are involved in this case as we view it. The question of whether or not his removal was invalid must we think be disassociated from the question of whether or not the authority relied upon by the Secretary of Interior was erroneous. We concede of course that the authority far fell with the decision in Cole v. Young, but it does not follow because the Secretary's authority that he relied upon has fallen that the removal is necessarily invalid. We are concerned here with an employee who is not a veteran, who was not in the classified civil service, as such his employment was without fixed tenure, and he was at all times subject to removal for cause or for no cause or for a reason and without assignment of reason.
Felix Frankfurter: May I ask -- might trouble to ask you what -- whether any general policy followed the decision of the Court in the Cole case, is there any -- generalized to this case?
John G. Laughlin, Jr.: Generally the policy was if the employee were in the classified -- I -- I don't want to be too categorical about this, because I know of one instance in the Court of Claims where restoration was made on the strength of the decision in Cole v. Young. And this case, we cited in our brief as the Langley v. United States, it was a super back pay. Now there restoration was affected but that involved an employee who was subject to the Veterans' Preference Act or to the Lloyd-La Follette Act.
Felix Frankfurter: But what happened as to their retention after discharge?
John G. Laughlin, Jr.: Well the proceedings either had the -- whatever proceedings had been taken were either expunged from the record and commenced new or another possibility which might have been open, say in the Cole case, was that to grant him an appeal to the Civil Service Commission, which was the procedural right that it was denied the petitioner in the Cole v. Young case.
Felix Frankfurter: It involved a good many employees, isn't it, the Cole -- the decision in the Cole case?
John G. Laughlin, Jr.: It -- I don't have any idea how many it was in terms of numbers Mr. Justice Frankfurter.
Earl Warren: As to those that had no civil service standing, would you give them a same treatment that you gave this man, fire him immediately?
John G. Laughlin, Jr.: I don't know that that is true, I don't know how many of the Schedule A or accepted employees were affected by the decision. But here there was of course an application for reinstatement that followed immediately after the Court's decision in Cole v. Young that was denied by the Department of Interior for reason which are not apparent. So I suppose and I would hope that it was handled on an ad hoc basis and that there was no fixed policy again the blanket dismissal of all such employee, but rather a good faith reevaluation of the action that had been taken in the light of the Court's decision.
Earl Warren: The reason I ask it was because there is an apparent to the session here that this man was a loyal.
John G. Laughlin, Jr.: Yes that, as I understand it, it appears on the transcript of the hearing unlike Mr. Justice Harlan I have been able to get a hold of that entire hearing as yet, but I do know that he was cleared under the Executive Order 9835 loyalty program. The validity of his removal must we think be said in the light of the traditional role that the courts have played where employee removals are involved. This of course, now this case involves a removal by the executive which had, what it was, without any limitations as to your procedural or substantive -- of a substantive character. Now for a 170 years the inquiry of the courts has been as to whether or not the removal has been effective in compliance with the procedural limitations that had been imposed upon the employment either by Congress or by regulation or by executive order. That is perhaps open to another limitation that being whether or not the removal was effective for some patently arbitrary or discriminatory reason. Here however we are dealing with an employee at will without any tenure and no procedural rights, statutory regulatory were involved in affecting his removal. In these circumstances, we submit, that there is no basis upon which this Court may invalidate that removal.
Speaker: What about the secretary's regulations that you are referring to?
John G. Laughlin, Jr.: Well, in our view Mr. Justice Harlan.
Speaker: Wouldn't they govern?
John G. Laughlin, Jr.: I beg your pardon.
Speaker: Wouldn't they govern dismissal on security grounds?
John G. Laughlin, Jr.: Not necessarily. First of all in our view the regulations fall with the statute if the -- we can see of course the statute did not authorize his removal. The regulations were promulgated in accordance with the statute and the executive order. So we fell it would be bit contradictory to say that while he was not entitled to the procedural protections of the statute or he was no authorized could not have been dismissed under the authority of the statute that the regulations implementing that statute there -- yes that they -- the validity of his removal must be judged by the regulations. I only say that the regulations, the procedures prescribed in the regulations do not differ in any material respect from those that appear in the statue itself. And secondly --
Earl Warren: (Inaudible) what you say -- didn't we have the other situation in the cases we have been hearing today the Greene case and the Taylor case, the statute didn't provide for any procedure, but the set up procedure and the question is whether they should abide by that procedure, and I got to this agreement that they should.
John G. Laughlin, Jr.: Well, here we do not have a procedure set up applicable to or purporting to delimit, the plenary removal authority of the Secretary of Interior. That is my second point and answer to Mr. Justice Harlan that unlike the Service case where you had positive indication that the Secretary of State had intended to circumscribe his summary removal powers under McCarran Rider, we don't have that here in our view and for these -- for this -- for that additional reason, the validity of his removal should not be measured in terms of those regulations.
Earl Warren: But didn't you have -- didn't the regulations provide a procedure?
John G. Laughlin, Jr.: They did, procedure for removals we suggest under the Act of 1950. That Act, of course, did not authorize his removal and the procedures were promulgated implementing they are the same as they are in they are in the statute in substance and in effect, so that there is really is no difference and the procedures that the statute prescribes and what is set out in the Department of Interior order 2738. The statute falls, we think, the regulations which are in terms the same as the statute necessarily fall too. So he was --
Charles E. Whittaker: What you are saying that the regulations here apply only to the case where the person had the tenure under civil service, but did not apply if he was Schedule A employee (Inaudible), is that what you saying?
John G. Laughlin, Jr.: Well, I am concerned here Mr. Justice Whitaker with whether or not his removal was invalid and our position is that the statute did not authorize it, we concede that. The regulations are not a proper basis for saying the validity of that removal because they, in our view, fall with the statute. We defend this removal only as an exercise of the plenary authority of this Department of Interior to remove this employee and employee at will.
Charles E. Whittaker: Now then were these regulations applicable to exercise that power?
John G. Laughlin, Jr.: Not in terms and we say no that they were not intended in contrast to the Service v. Dulles case, they were intended to apply or to delimit the plenary authority upon which we now rely.
Charles E. Whittaker: But when you -- but you did attempt to exercise the power of discharge to use those regulations.
John G. Laughlin, Jr.: We did and we think moreover that we follow those regulations scrupulously, that this point of course I am saying that they are not simply not a basis. Later I will explain why we think that they were complied with so that there can be no valid basis for complaint in that respect.
Earl Warren: Is it your position whether you did or did not, did or not follow the regulations, the discharge was lawful?
John G. Laughlin, Jr.: The discharge is valid and lawful.
William J. Brennan, Jr.: Well, does that include (Inaudible) originally the statute it was thought to be a limitation upon the plenary power of discharge in this type case required where you were dealing with the security risk to follow certain procedure. And then when Cole and Young was decided that this was discovered that the statute did apply to this class of employees.
John G. Laughlin, Jr.: Well, that suggests that the statute in our view was not intended to delimit the plenary authority -- plenary removal authority of the Executive Branch of the government.
William J. Brennan, Jr.: Well, it was intended where you so -- it was thought before Cole and Young, was it not, that you could not remove on this ground without following the statute? Whether that was the interpretation or not I don't know, but how many employees at will are relevantly few, to what extent it was considered as applicable or a limitation on that I don't know. But (Inaudible) that the Act was rather delimitation on the -- or a (Inaudible) to facilitate the removal on -- for some reason (Inaudible) that his employment was not fairly consistent with the national security.
John G. Laughlin, Jr.: From the fact and if we are correct that the removal was not invalid if necessarily follows that he is not entitled to reinstatement in his former position that I think is a proposition that he is not in dispute here so that the real and critical issue is whether or not he was validly and effectively removed in 1954. Now further bearing upon his right --
Speaker: The regulations, if we accept your view the regulations don't apply, then you are faced with a constitutional question if there is one or two as to whether what was done is constitutionally --
John G. Laughlin, Jr.: No, because our answer to that is that the records have been expunged of all security risk matters and that therefore there is no occasion as in the Peters case for this Court to reach the more difficult constitutional question.
Speaker: (Inaudible)
Earl Warren: We will recess now.