as to when or whether such measures were to be invoked was committed to the President's discretion."

45

Of even greater present significance is the fact that, in the years since enactment of the Labor Management Relations Act, Congress, in facing the special and acute problems posed by national defense needs, has explicitly directed the President to devise additional means of coping with labor disputes affecting defense production. Title V, Section 501 of the Defense Production Act of 1950 (64 Stat. 812, 50 U. S. C. App. (Supp. IV) Sec. 2121) provides:

46

It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted production, that there be effective procedures for the settlement of labor disputes affecting national defense. [Emphasis added.]

Section 503 of the same Act " goes on to declare that—

No action inconsistent with the provisions of *** the Labor Management Relations Act, 1947, *** or with other applicable laws shall be taken under this title.

As we show below (pp. 160-165), the procedure the President followed in this case was in no meaningful sense "inconsistent" with the provisions of the Labor Management Relations Act. What we would emphasize here is the unmistakable fact that, in calling for “effective procedures for the settlement of labor disputes," and in providing for action not "inconsistent" with the Labor Management Relations Act, Congress anticipated and intended the use of methods "other than" those created by that Act.

The need for such additional and supplemental methods was clear. Geared to a peacetime economy, framed at a time when relaxation of recent wartime controls was the order of the day, the Labor Management Relations Act was not designed to deal fully with the problems of labor relations posed by the special circumstances of a huge new defense effort and of an integrated stabilization program designed to prevent inflation. And so Title V of the Defense Production Act was enacted.

to strengthen the national defense effort by giving the President the necessary authority to prevent interruption of production by labor disputes which affect the national defense. In an emergency period we can ill afford to permit labor disputes to follow their normal course to eventual settlement. The institution of price and wage stabilization provided for under title IV of this bill would add to the strain upon normal collective bargaining. We therefore need a peaceful means of setting labor disputes which may threaten national defense or economic stabilization. [S. Rep. No. 2250, 81st Cong., 2d Sess., pp. 40-41.]

The Senate Committee reporting the provisions which became Title V contemplated

that the President, in taking action in a labor dispute affecting national defense will have available to him the procedures provided by existing statutes, as well as those authorized by this title. For instance, if a dispute came within the terms of the national emergency provisions of the LaborManagement Relations Act, action might be taken under that act. [Id. at 41-42, emphasis added.]

But, once again, there was no thought that the President must use the Labor Management Relations Act provisions and no others.

2. Title V of the Defense Production Act was broad enough to authorize the President, after consultation with labor and management, to create a body like

45 The House version of the bill which became the Labor Management Relations Act was phrased in mandatory terms ("the President shall direct the Attorney General to" seek an injunction-H. R. 3020, 80th Cong., 1st Sess., Sec. 203 (a), as reported in H. Rep. No. 245). The Senate version, which gave the powers to the Attorney General rather than to the President, used the word "may" (S. 1126, 80th Cong., 1st Sess., Secs. 206, 208, as reported in S. Rep. No. 105), the permissive significance of which was noted in the Senate debates. 93 Cong. Rec. 4594, 5012, 5115. In conference, the House provision for action by the President rather than the Attorney General and the Senate's permissive language were adopted, and the bill was thus enacted. H. Conf. Rep. No. 510, 80th Cong., 1st Sess., pp. 63-65.

Section 501 was continued unchanged when the Act of July 31, 1951 (Pub. L. 96, 82d Cong., 1st Sess.) amended the Defense Production Act in various respects.

47 As amended in a presently immaterial respect by Section 105 (c) of Pub. L. 96, 82d Cong., 1st Sess.

the War Labor Board of World War II-with power to decide disputes and nonjudicial sanctions for enforcement of its decisions. S. Rep. 2250, 81st Cong., 2d Sess., p. 41; S. Rep. 1037, 82d Cong., 1st Sess., pp. 4, 5-6.

Under Executive Order 10233 (16 F. R. 3503), the President has taken the moderate course of assigning to the Wage Stabilization Board authority to hear labor disputes affecting national defense where (a) the parties voluntarily submit them or (b) the President, regarding a dispute as a substantial threat to the progress of national defense, refers it to the Board. After investigation and inquiry, the Board is to make "recommendations to the parties as to fair and equitable terms of settlement" which are binding only where the parties have agreed that they should be. Where, as in the present case, the dispute is one referred to it by the President, the Board reports to him the results of its inquiry and its recommendations.

51

Within a month after this disputes procedure was placed in operation, a subcommittee of the House Committee on Education and Labor considered it in hearings preparatory to possible amendments of the Defense Production Act." Similar hearings by a subcommittee of the Senate Committee on Labor and Public Welfare led to a report approving the machinery the President had established. S. Rep. No. 1037, 82nd Cong., 1st Sess. When it came to act on the extension of the Defense Production Act, Congress was thus fully apprised of the fact that the Wage Stabilization Board had been armed "with power to make recommendations for the settlement of labor disputes under specified conditions *". H. Rep. No. 639, 82nd Cong., 1st Sess., p. 17. With this fact clearly before it, Congress acted on the recommendations of both committees considering the extension bills 50 and extended the Defense Production Act of 1950 with no change affecting the disputes functions of the Wage Stabilization Board. Bills designed specifically to eliminate these functions were defeated. These briefly summarized developments leave no doubt that the re-enactment without change of Title V of the Defense Production Act must be viewed as specifically approving the disputes procedures the President invoked in this case. Cf. United States v. South Buffalo R. Co., 333 U. S. 771, 775–783. Congress was clearly persuaded by the view of its spokesmen who concluded that "Executive Order No. 10233 does not in any way run counter to the Defense Production Act or the Taft-Hartley Act." S. Rep. No. 1037, 82nd Cong., 1st Sess., p. 10. Fully aware that the Defense Production Act "was designed to be broad and flexible enough to give the President the powers necessary to adapt the complex and intricate economy of the country to the demands of the heavy defense program" (H. Rep. No. 639, 82nd Cong., 1st Sess., p. 15), Congress deliberately rejected proposals designed to prevent the President from choosing among complementary alternatives in dealing with the particular facts of particular labor disputes.

The President thus had the full consent of Congress when he referred to the Wage Stabilization Board disputes to which the emergency provisions of the Labor Management Relations Act were literally applicable. As the matter was put by a subcommittee of the Senate Committee on Labor and Public Welfare, reporting on its study of the disputes functions assigned by Executive Order 10233 to the Wage Stabilization Board (S. Rep. No. 1037, 82nd Cong., 1st Sess., p. 4):

It is conceivable that the same dispute will meet the requirements of the emergency disputes provisions of both the Taft-Hartley law and of the Executive Order. [Should such a situation] arise, the President is the initiating factor in both procedures, and he will have the responsibility for deciding which route will dispose of the dispute most effectively-or he may use both routes depending upon the circumstances. [Emphasis added.] Against this background, we think it clear that in the 99 days between December 31, 1951, and the seizure on April 8, 1952, the President acted properly in exhausting a wholly sufficient alternative to the procedures under the Labor Management Relations Act.

3. By referring the dispute to the Wage Stabilization Board on December 22, 1951, the President achieved everything that he could have achieved under the Labor Management Relations Act. In addition, he invoked a procedure designed

49 Hearings before a Subcommittee of H. R. Committee on Education and Labor on Disputes Functions of the Wage Stabilization Board, 82nd Cong., 1st Sess.

50 S. Rep. No. 470, 82nd Cong., 1st Sess., p. 15; H. Rep. No. 639, 82nd Cong., 1st Sess., pp. 29, 41.

51 Pub. L. 96, 82nd Cong.. 1st Sess.

52 97 Cong. Rec. 8390-8415.

to ensure that any resolution of the wage dispute was geared to the over-all requirements of the stabilization program.

It is undisputed that the union, having failed to reach an agreement with the companies, was prepared to strike on December 31, 1951 (R. 59). On this date, or in advance thereof, the President might have convened a board of injuiry under Section 206 of the Labor Management Relations Act. Upon receipt of the board's report, the President might have directed the Attorney General to seek a court order enjoining the strike. Section 208. This order would have been effective for a maximum of 80 days. Sections 209 (b) and 210.

This compulsory 80-day postponement of a strike or lockout is the heart of the benefit sought by the Act. During this period, the Act (Section 209 (a)) directs the parties, with the assistance of the Federal Mediation and Conciliation Service, "to make every effort to adjust and settle their differences ***" Addressing himself to these provisions, Senator Taft said (93 Cong. Rec. 4262):

The second part of that title provides that if mediation is not successful and a strike occurs in a Nation-wide industry, an injunction may be obtained for 60 days-for what purpose? In order to permit the Mediation Service to make further efforts to obtain a collective bargaining agreement between the employers and the employees.

It was contemplated that the period of delay would in most instance sbe sufficient to bring about a settlement through continued bargaining under the pressure of public opinion. See S. Rept. No. 105, 80th Cong., 1st Sess., p. 15. The 80 days would also provide time, in the event conciliation and bargaining failed, for consideration and formulation of special emergency action by Congress. See 93 Cong. Rec. 3836 (Senator Taft). As far as the Act itself was concerned, however, the parties would be free after 80 days to engage in a strike or lockout. The conclusion of this postponement, important and efficacious as it might be in some cases, would mark the exhaustion of the Act's utility.

The significant fact here is that a delay longer than 80 days, coupled with the employment of settlement efforts which the President reasonably deemed more appropriate and more promising than those contemplated by the LaborManagement Relations Act, was achieved in this case. Called upon by the President to remain at work and strive for a settlement without an interruption of production, the union postponed its strike scheduled for December 31, 1951, four times-ultimately through April 8, 1952-a total of 99 days (R. 59-60). And these postponements, just like the 80-day delay provided by the Labor Management Relations Act, constituted an essential feature of the procedure the President employed. The simple reality, known to both the companies and the union, was that the inquiry, report, and recommendations of the Wage Stabilization Board were being used as an alternative to the inquiry ånd report, without recommendations, of a board under the Labor Management Relations Act-an alternative rendered appropriate by the fact that a "unified labor policy for the emergency makes it desirable that the disputes function be administered by the Wage Stabilization Board and not by a separate agency." S. Rep. No. 1037, 82nd Cong., 1st Sess., p. 10. The parties knew that an injunction against a strike was available under the Labor Management Relations Act, that the Wage Stabilization Board would probably not consider their dispute if a strike were called, and that the President's demand for continued produtcion, backed by his powers of compulsion under the Labor Management Relations Act, was not lightly to be unheeded or ignored.

53

These thoroughly understood realities had been illustrated by events shortly preceding those involved here. On August 27, 1951, widespread strikes of workers in the nonferrous metals industry were called. The President referred the disputes to the Wage Stabilization Board for settlement efforts similar to those employed in the instant case. Despite the declaration by the Wage Stabilization Board that it would not consider the disputes unless work was resumed, the strikes continued. On August 29, 1951, the Board referred the disputes back to the President with no report or recommendations, pointing out in its letter that, as it understood its responsibilities under Executive Order 10233, "it would not be appropriate for it to consider the merits of the dispute prior to the resumption of work." Accordingly, on the following day, the President created a board of

The account which follows of the nonferrous metals industry dispute is taken from the President's report to Congress contained in H. Doc. No. 354, 82nd Cong., 2d Sess., February 14, 1952.

inquiry under the Labor Management Relations Act, and on September 5, 1951, following receipt of the Board's report by the President, the Attorney General obtained an order enjoining the strikes pursuant to Section 208 of that Act.

In the present case, the occasion for such an injunction was obviated by the union's voluntary postponement of its strike for more than the 80-day injunction period of the Labor Management Relations Act. The substance of that Act's objectives has been more than achieved. Collective bargaining, mediation, and the recommendations of a board responsible for adapting particular labor arrangements to the broad needs of an economy controlled for a huge defense effort and stabilized to prevent inflation have all been tried at length in an effort to reach a settlement. Subject of newspaper headlines for weeks, the steel dispute has been discussed repeatedly in Congress, both before and since the seizure," and that body has had ample time to consider whatever action it might choose to take. The President, driven finally to a temporary taking of the steel mills in order to prevent the unquestioned crisis which a cessation of steel production would entail, has made it clear that he is fully prepared to execute any action Congress may direct. See communications to the President of the Senate, cited supra, pp. 19-20 (dated April 9 and April 21, 1952). To date, Congress has not acted.

In determining whether to use the Labor Management Relations Act procedure, instead of the Wage Stabilization Board, the President was compelled to take into consideration the fact that, since January 1, 1952 (when the old contract was no longer in effect), the probabilities were that, until a board under the Labor Management Relations Act could report, a crippling strike would have been in existence, and, after the expiration of the 80-day period of the injunction, the President, the public and the parties to the dispute would have been back where they started. Based on what actually happened, if the President had used the Labor Management Relations Act at the outset, the seizure would have taken place 19 days earlier than it did.

4. Now, having rejected the Wage Stabilization Board recommendations which the union was prepared to accept, and having failed to achieve a settlement through collective bargaining both before and after Government seizure, the last meeting being held in the White House on request by the President, the companies contend that the President was and is required to create a new board to find the facts again; and that an attempt should have been or should be made to compel the union by injunction to remain at work with unchanged terms for another 80 days. In substance, this contention, so patently devoid of equity, amounts to a claim that the companies are entitled to have their employees compelled to work for a total of six months with unsatisfied demands for changes in their terms of employment. But such compulsion was not contemplated by the Labor Management Relations Act and was plainly inappropriate to the circumstances of this case.

Not only would invocation of the Labor Management Relations Act have been inequitable, but there is no reason to suppose that it would have prevented an interruption of steel production. Under the Labor Management Relations Act, an injunction may be sought only after a board of inquiry has investigated and reported to the President. With the complex facts of the present dispute, which occupied the Wage Stabilization Board for three months, there was no assurance that a report reflecting in any way the impartial study contemplated by the Act could have been prepared within any reasonable short space of time. Unless the report was to be an empty formality, there was danger that a strike during its preparation would cost precious and irreplaceable steel tonnage. And if it be suggested that the facts had already been found and needed no further study, this is merely another way of saying that the ends of the Labor Management Relations Act had already been fulfilled. Summarizing these considerations, the President declared (Letter to the President of the Senate, 98 Cong. Rec. (unbound) 4192, April 21, 1952):

It appears to me that another fact-finding board and more delays would be futile. There is nothing in the situation to suggest that further fact finding and further delay would bring about a settlement. And it is by no means certain that the Taft-Hartley procedures would actually prevent a shut-down.

In the circumstances of this case, it is at least highly questionable whether a court of equity would be prepared to enjoin the union from striking after the

See, e. g., 98 Cong. Rec. (unbound) 3225-26, 3418-19, 3461, and pp. 18–22, supra.

voluntary 99-day postponement. In Hecht Co. v. Bowles, 321 U. S. 321, where the statute provided that upon an administrative official's showing of certain facts "a permanent or temporary injunction, restraining order, or other order shall be granted without bond", this Court rejected the contention that injunctive relief was mandatory despite Congress' use of the word "shall." Section 208 of the Labor Management Relations Act, merely providing that the district courts "shall have jurisdiction" to issue injunctions or other orders, falls far shorter of the "unequivocal statement" of Congressional purpose which would be required to establish that the courts were placed under an "absolute duty" to issue injunctions "under any and all circumstances." Hecht Co. v. Bowles, supra, at 329.

But apart from the legal situation which might exist if the President had deemed the Labor Management Relations Act procedure appropriate and permissible, we submit the President's judgment that this procedure was futile, unfair, and improper was clearly a reasonable one.

In addition to the considerations of fairness which might move a court of equity, and which the President was certainly not required to disregard, is the practical fact that an effort to secure an injunction in this case would probably have ended the effectiveness of the disputes functions the President had assigned to the Wage Stabilization Board in cases involving national emergencies. These functions are exercised, and can be effective, only where the parties voluntarily continue production. Such voluntary restraint is promoted by the likelihood that an injunction will be used as an alternative. It is extremely unlikely that the "voluntary" method would ever be acceptable again if the alternatives turned out to be cumulative.

Charged with responsibility to weigh the considerations we have summarized, the President, after the union had voluntarily accepted restraints greater than those of the Labor Management Relations Act, could reasonably adopt the view that the invocation of that Act would have been an unjustified repudiation of the assumption on which the union had voluntarily refrained from striking, and would not have been effective to insure the uninterrupted steel production which was and is so critically important. These wholly reasonable conclusions dispose of the contention that there was really no emergency because a Labor Management Relations Act injunction was not sought. The emergency in hard fact was the threatened stoppage of steel production. The President could properly conclude that the emergency should no more be cured by attempting to utilize the Labor Management Relations Act than by sacrificing the stabilization program to the price demands of the companies. Cf. pp. 47-49, supra. Because his rejection of these alternatives was proper, their existence is no basis for attack on the legality of the taking of the steel mills.

B. THE LABOR MANAGEMENT RELATIONS ACT DID NOT PRECLUDE EXECUTIVE SEIZURE

In the district court the companies argued that because Congress omitted any seizure provision when it wrote the Labor Management Relations Act, the action of the President in this case was precluded. But this argument, resting on the fallacious premise that Congress passed a law by not passing a law, misreads both the language and history of the Labor Management Relations Act, misconceives the nature of the President's constitutional powers, and ignores the critical history and legislation that have followed the Labor Management Relations Act.

Apart from the problem of the provision for an injunction delaying a strike or lockout, discussed above (pp. 160-162), there is nothing in the LMRA itself to show that Congress intended to deny the President a power of seizure. Congress recognized that where a dispute was not settled during the period of delay, further action, not specified by the Act, might be required. It is true, as the companies have argued, that Congress foresaw and considered with favor the possibility that it might itself take action to handle a specific emergency. But there was, nevertheless, no suggestion that, in the absence of a settlement during postponement of a strike or lockout and in the absence of action by Congress, seizure by the President was intended to be precluded.

Congress did consider and omit a specific seizure provision. But the announced reasons for this negative action make it clear that it was not intended as an affirmative proscription of seizure. Explaining, Senator Taft said (93 Cong. Rec. 3835-3836):

We did not feel that we should put into the law, as a part of the collectivebargaining machinery, an ultimate resort to compulsory arbitration, or to