Carson, Robert J.

Chasanow, Howard S.

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Maryland Law ReviewVolume 20 | Issue 3 Article 8Scope of the President's Power to Secure 80-DayInjunction Against Continuation of Steel Strikeunder Labor Management Relations Act, Section208 - United Steelworkers of America v. UnitedStatesRobert J. CarsonHoward S. ChasanowFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Labor and Employment Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationRobert J. Carson, & Howard S. Chasanow, Scope of the President's Power to Secure 80-Day Injunction Against Continuation of Steel Strikeunder Labor Management Relations Act, Section 208 - United Steelworkers of America v. United States, 20 Md. L. Rev. 287 (1960)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol20/iss3/8UNITED STEELWORKERS v. U. S.Scope Of The President's Power To Secure 80-DayInjunction Against Continuation of SteelStrike Under Labor ManagementRelations Act, Section 208United Steelworkers of America v. United States'After a strike of more than three months by the UnitedSteelworkers of America (hereafter called the Union),affecting plants representing 85 % of the nation's basic steelproduction capability, the President appointed a board ofinquiry to report to him on the state of negotiations be-tween the Union and the steel industry.2 The Board's sub-sequent report stated that no early settlement of the strikecould be foreseen.' Thereupon, the President ordered theAttorney General to seek an 80-day injunction against theUnion's continuance of the strike,4 pursuant to Section 208of the Labor Management Relations Act, which gives adistrict court "jurisdiction to enjoin any ... strike or lock-out" in interstate commerce which "affects an entire in-dustry or a substantial part thereof" and "if permitted...to continue, will imperil the national health or safety."5The District Court for the Western District of Pennsyl-vania granted the injunction upon fact-findings that thestrike would produce an irreparable time-lag in the na-tion's military and research programs, and upon a furtherfact-finding that the strike would adversely affect the na-tion's economic health because of the large number oflayoffs which would occur in related industries due to dis-appearing steel reserves.' The Court of Appeals affirmed,Judge Hastie dissenting,7 and the Supreme Court grantedcertiorari.'In a per curiam opinion the Supreme Court affirmed thejudgments of the lower federal courts, Mr. Justice Douglasdissenting.9 Mr. Justice Frankfurter and Mr. Justice'361 U.S. 39,80 S.Ct. 1 (1959).2 Exec. Order 10843, 24 F.R. 8289 (1959), amended by Exec. Order 10848,24 F.R. 8401 (1959).8 United States v. United Steelworkers of America, 178 F. Supp. 297,300 (D.C. Pa., 1959).' Ibid., 299.561 STAT. 155, Ch. 120, § 208 (1947), U.S.C.A. 178.United tates v. United Steelworkers of America, 178 F. Supp. 297(D.C. Pa., 1959).1 United States v. United Steelworkers of America, 271 F. 2d 676 (3rdCir., 1959).'United Steelworkers of America v. United States, 361 U.S. 878, 80S.Ct. 143 (1959).'Supra, n. 1.1960]MARYLAND LAW REVIEWHarlan later filed a concurring opinion.' ° The Court foundthat the District Court's findings that the strike affected85% of the nation's basic steel production capability andimperiled four military or quasi-military programs, ful-filled the statutory requirements for the injunction. Thusit was unnecessary to decide whether the "national health"included the nation's economic health as well as the physi-cal health of the citizenry. The Court further determinedthat the statute conferred a judicial task of finding whetherthe conditions required for granting an injunction werepresent, and not a legislative or executive one, since Con-gress had predetermined what the injunctive conditionswere to be.Judge Hastie's dissent in the Court of Appeals had beenpredicated upon the view that an injunction should notissue unless the government made a positive showing thatthe injunction would facilitate a settlement of the dispute."The Supreme Court denied the validity of this reasoning,emphatically stating that the "basic purpose" of Section208 was "to see that vital production should be resumed orcontinued for a time while further efforts were made tosettle the dispute."' 2 The Court further stated that Con-gress did not intend the issuance of a Section 208 injunc-tion to depend upon inquiries into such matters as theavailability of other remedies, the effect of an injunction onthe collective bargaining process, the merits of the parties'positions, or the conduct of the parties in their negotia-tions. It would seem that the removal of the above-mentioned factors for equitable consideration has severelymodified or entirely eliminated any equitable discretionwith respect to the propriety of granting an injunction,once the statutory bases for the injunction have beenfound. Hence, by inference from the majority opinion andas clearly stated by the concurring opinion, 3 Congress has10United Steelworkers of America v. United States, 361 U.S. 39, 80S.Ct. 177 (1959).SSupra, n. 7, 960.'361 U.S. 39, 80 S.Ct. 1 (1959).Supra, n. 10. The opinion states, at p. 183:"* * * We conclude that under the national emergency provisions ofthe Labor Management Relations Act it is not for the judiciary toexercise conventional 'discretion' to withhold an 'eighty-day' Injunc-tion upon a balancing of conveniences."'Discretionary' jurisdiction is exercised when a given injunctiveremedy is not commanded as a matter of policy by Congress, but is,as a presupposition of judge-made law, left to judicial discretion.Such is not the case under this statute. The purpose of Congressexpressed by the scheme of this statute precludes ordinary equitablediscretion. * * *"[VOL. XXUNITED STEELWORKERS v. U. S.made it mandatory that an injunction be granted after therequisite fact-findings are made.Section 208 says, that if the district court finds thestatutory requisites, "it shall have jurisdiction to enjoinsuch strikes. . . ." It does not say, "it shall enjoin suchstrikes ... ." This language of the Act could reasonably beconstrued as permissive rather than mandatory. If Con-gress had meant to deviate from the traditional principleregarding equity, that the chancellor has discretion to actrather than an absolute duty to act, it seems appropriatethat it would have used words expressly conferring such aduty. 4 It is submitted that perhaps Congress did intendto give the district court only a narrow discretion to declineto grant the injunction if the statutory bases for it werepresent, but did not intend to completely abolish thecourt's equitable discretion. 5 This contention stems fromthe fact that Section 208 was intended, when the Act waspassed, to apply mainly to the bituminous coal industryrather than to the basic steel industry. 6 Indeed, the firstuse of the Section 208 injunction was against the Interna-tional Union, United Mine Workers." Strikes in thebituminous coal industry had long threatened the physical14 Cf. Hecht Co. v. Bowles, 321 U.S. 321 (1944), which was distinguishedfrom the noted case in the concurring opinion, supra, n. 10, 184-185. Seealso Alabama v. United States, 279 U.S. 229 (1929), where the SupremeCourt held an act of Congress requiring the consideration of applicationsfor interlocutory injunctions in certain cases by three judges and allowingappeal to the Supreme Court, had in no way modified the well-establisheddoctrine that such applications are addressed to the sound discretion ofthe trial court. The Court reasoned, 230, that traditional equitable princi-ples were applicable since "there was nothing in the legislation to sug-gest that in the exercise of judicial power In respect of such writspertinent principles of equity as heretofore understood, are to be disre-garded or modified." Beach, Extent of Discretion Exercised by DistrictCourts in Issuing Temporary Injunctions Against Alleged Unfair LaborPractices, 56 Mich. L. Rev. 102 (1958), provides an excellent comment onthe same problem within a labor area closely related to the Sec. 208 In-junction."Equity courts often narrow their discretion where a public interestis involved. See Virginian Ry. v. System Federation, 300 U.S. 515, 552(1937), where the Supreme Court said, "Courts of equity may, and fre-quently do, go much farther both to give and withhold relief In furtheranceof the public interest than they are accustomed to go when only privateinterests are involved.""e Cox, Some Aspects of the Labor Management Relations Act, 61 Harv.L. Rev. 274, 286 (1948), citing Senate Report No. 105, 80th Congress.1st Session, 14 (1947), as relevant to this opinion. Note, The InjunctionUnder the Labor Management Relations Act of 1947, 2 Rutgers L. Rev.240 (1948), emphasizes the litigation regarding bituminous coal strikeswhich immediately preceded the passage of the Labor Management Re-lations Act. Teller, The Taft-Hartley Act and "Government by Injunction,"35 Va. L. Rev. 50 (1949), discusses in detail the labor cases and legislationwhich led up to the Labor Management Relations Act."United States v. International Union, United Mine Workers, 77 F.Supp. 563 (D.C.D.C., 1948).19601MARYLAND LAW REVIEWhealth of a large segment of the nation's citizenry; but asdangerous as these strike conditions were, the remedynecessary to abate them would not seem to require thesame degree of emergency as the remedy required to main-tain defense production essential to the country's survivalin today's rocket age. But, although historically the aboveapproach may be correct, it could very plausibly be arguedthat the Supreme Court has ruled otherwise - and aninjunction will accordingly issue henceforth whenever thestatutory requisites are met, without regard for the effectsuch an injunction will have on the collective bargainingbetween the union and industry involved.Justice Douglas' dissent was founded on the ground thatless than 1% of the nation's steel production was neededfor defense; therefore a selective reopening of the plantsmight be had upon remand to the District Court."8 Sucha result would have avoided sending the entire Union backto work and would in part have retained the efficacious-ness of the strike as a coercive weapon against the basicsteel industry. The majority opinion looked upon Section208, however, as "a public remedy in times of emergency"and refused to find any Congressional intent for "reor-ganization of the affected industry" in such times. 9As of today, it is entirely foreseeable that the factualsituation present in the instant case, or an equivalentfactual situation, will also occur in any future steel strike,due to the Cold War and the nation's attendant demandupon the steel industry for defense production. Therefore,the practical effect of the dominant opinion, although notmentioned by the Court, will be to give the President thepower to use the Section 208 injunction shortly after theonset of any steel strike, if not before its inception.Those companies in the basic steel industry either hav-ing defense contracts or supplying steel to related indus-tries with defense contracts, could avoid the Section 208injunction for a time at least by stockpiling large steel re-serves so that defense production would not be immedi-ately curtailed by a strike. This seems unlikely. In thefirst place, the related industries are the more logicalchoice to stockpile steel rather than the steel producersthemselves. Secondly, the creation of such reserves ineither the basic steel industry or related industries wouldseem prohibitive from an economic standpoint because ofthe large storage cost of the reserves and the taxation"United Steelworkers of America v. United States, 361 U.S. 39, 80S.Ct. 1, 5 (1959).19 Ibid., 3.[VOL. XXUNITED STEELWORKERS v. U. S.which would be levied upon them in many cases. Finally,so far as the Union is concerned, an injunctive delay causedby stockpiling is fortuitous since it depends upon the actof management; and it is the Union, not industry, which isreally harmed by the injunction.One of the principal criticisms of the Section 208 in-junction is that it forces the Union involved back to workunder pre-strike conditions.2 0 President Harry S. Truman,in his message to Congress vetoing the Labor ManagementRelations Act, stated:"Furthermore, a fundamental inequity runs throughthese provisions. The bill provides for injunctions toprohibit workers from striking, even against termsdictated by employers after contracts have expired.There is no provision assuring the protection of therights of the employees during the period they aredeprived of the right to protect themselves by eco-nomic action."'21The injunction, being against the Union, also tends to throwpublic opinion toward industry and away from the Union.22Moreover, Section 209 of the Act expresses the undesirableCongressional recognition of a dichotomy between theUnion leadership and the striking workers by providingthe workers with an opportunity to vote against a strike'sinception or continuance, as the case may be, before theend of the injunctive period. The threat of such a vote isquite likely to make the Union leadership more amenableto settlement: a result adverse to their strike order couldmean the virtual end of power for the leadership, and forthe Union itself. 4The writers believe that the inequities of the Section208 injunction could be substantially decreased by theadoption of flexible federal controls, as opposed to the0 See law review articles, supra, n. 16.mU.S.C. Cong. Svc., 80th Oongress, 1st 'Session, 1851, 1857 (1947).2Note, The Labor Management Relations Act and the Revivai of theLabor Injunction, 48 Col. L. Rev. 759, 772 (1948), says, ". . . as in thecase of injunctions generally, the labor injunction tends to throw publicopinion on the side of management, the strikers being regarded as lawbreakers."'61 STAT. 155, Ch. 120, § 209 (1947), 29 U.S.C.A. 179, states:. . . the National Labor Relations Board, within the succeedingfifteen days [after the injunction has been in effect 0 daysi, shalltake a secret ballot of the employees of each employer involved inthe dispute on the question of whether they wish to accept the finaloffer of settlement made by their employer as stated by him and shallcertify the results thereof to the Attorney General within five daysthereafter."Cox. op. cit., supra, n. 16, stresses this point.1960]MARYLAND LAW REVIEWsingle remedy of injunction. Federal seizure of the af-fected industry seems a proper alternative to the injunc-tion, seizure being somewhat detrimental to industry justas the injunction is somewhat detrimental to labor, in sofar as ultimate settlement is concerned as well as the con-ditions of the temporary strike cessation. Changes inwages and working conditions of the workers could, ifappropriate, be effected through seizure. More impor-tantly, the choice of alternative remedies in the President'spower would evoke an apprehension in both parties tothe dispute, rather than in the Union alone, as to theremedy which would be used, and would therefore tendto encourage an early settlement on fair terms.ROBERT J. CARSONHOWARD S. CHASANOWGovernmental Records Of Investigatory NatureNot Open To Public InspectionWhittle v. Munshower'Petitioner's decedent had been employed at an aircraftfactory in Baltimore County for about three months priorto his death on July 7, 1942. Although the cause of deathwas officially listed as accidental drowning by the Mary-land State Police, petitioner alleged that fellow employeesat the aircraft factory had conspired against the deceasedby claiming he "made a defective piece of material,"thereby causing false charges of sabotage to be filed bythe FBI and Army Intelligence Personnel, and that suchcharges "led to" the death of the deceased. In a writ ofmandamus filed against the Maryland State Police, thepetitioner alleged that the state police possessed informa-tion showing that the deceased had been officially chargedwith making this "material"; but that, in addition, they pos-sessed information which tended to clear the deceased ofthis charge. Petitioner, therefore, sought the release of allsuch information.The lower court sustained a demurrer to the petitionwithout leave to amend. On appeal, the Court of Appealsheld that, since the record showed no entry of a final judg-ment, the appeal must be dismissed as being premature,but took occasion, nevertheless, to express an opinion on1221 Md. 258, 155 A. 2d 670 (1959).292 [VOL. XX

Scope of the President\u27s Power to Secure 80-Day Injunction Against Continuation of Steel Strike under Labor Management Relations Act, Section 208 - United Steelworkers of America v. United States

Scope of the President\u27s Power to Secure 80-Day Injunction Against Continuation of Steel Strike under Labor Management Relations Act, Section 208 - United Steelworkers of America v. United States

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