statutory procedures, permitted the payment of just compensation and otherwise respected the constitutional framework.

With regard to presidential power in industrial relations, the general lesson which can be drawn from the preceding analysis is that the will of Congress is regularly decisive for the exercise of emergency powers. Congress can, and therefore should, normally prescribe the procedures to be followed by the president in emergencies; only timely congressional action can obviate exaggerated or autocratic claims on the part of the executive. Statutory procedures prescribed by Congress must be respected by the president both in peacetime conditions and in "less-than-catastrophic" emergencies or in the absence of a state of war. Where no statutory procedures are stipulated, there is at least a strong presumption that the president can act to meet an immediate emergency provided that constitutional safeguards, such as compensation for seizure, and general congressional policies are respected." The president's authority to exercise independent powers has more solid support in case of declared war, in the theatre of military operations or possibly in modern-type catastrophic emergencies resulting from an intense warming-up of the cold war, although general constitutional provisions and principles would have to be preserved. It must be added, however, that in every instance of an exercise of emergency powers by the president the finding or declaration of emergency remains subject to judicial review by the courts. The latter principle is manifested in all opinions in the Youngstown case and expressly conceded by the dissent, 100

6. EMERGENCY POWERS ON THE STATE LEVEL

The outlined contours of presidential authority find their parallel, at least to a degree, in executive emergency powers on the state level. Obviously the situation on the state level is com

* Schechter Poultry Corp. v. United States, 295 U.S. 495, 528 (1935). 100 Chief Justice Vinson: "We also assume without deciding that the courts may go behind a President's finding of fact that an emergency exists." 343 U.S. 579, 678 (1952). Although the Assistant Attorney General had argued before Judge Pine that executive emergency actions were not reviewable, the Solicitor General clearly admitted before the Supreme Court that exercise of emergency powers was subject to judicial review; Kauper, op. cit., pp. 155-156; Westin, op. cit., pp. 62, 120. See also Duncan v. Kahanamoku, 327 U.S. 304, 329 (1946); Sterling v. Constantin, 287 U.S. 378, 397, 400 (1932).

78-505 0-67-pt. 2-14

VIII-i. (Source: W. Willard Wirtz, Secretary of Labor. In Labor Arbitration and Industrial Change, Proceedings of the Sixteenth Annual Meeting, National Academy of Arbitrators, Chicago, Ill., January 23-25, 1963. Washington, D.C. BNA, Inc., 1963, pp. 297-309)

THE CHALLENGE TO FREE COLLECTIVE

BARGAINING

THE HON. W. WILLARD WIRTZ *

Two years ago, at the meeting of this august Academy at Santa Monica, I reported on some research in the area of combinations and permutations of the English language as revealed in the course of arbitration hearings I had attended.

You received that report-of the Odd Hawk Grievance, or Who Put the Liquor in Larry Little's Locker?-with what I found to be intoxicacious approbation.

So encouraged, I have carried forward this scholarly, if sly, pursuit.

I am now in a position to report, at the risk of undutible social and political exile, that arbitration's advocates are no more prone to metaphoric mutation than are United States Senators, Congressmen, Ambassadors, leaders of American labor and management, and Cabinet members (including both the previous Secretary of Labor and his successor).

I have exercised editorial licentiousness only to the extent of assembling these germs of wisdom--all of which can be authoritively authenticipated in terms of time, place, and propounderin the form of an apocraphytic report of a recent meeting of a tri-party group of consultants in Washington.

The agendum item was Natural Emergency Disputes, or Around an Injunction in Eighty Days.

One of the public members opened the discussion. “I know,” he said, "that this is an acamadician's point of view. But I've had Secretary of Labor.

873

it in the back of my craw a long time. When an unmovable force meets an irreducible minimum the only answer is fault finding under a statute or compulsive arbitration."

Everybody immediately picked up his ears.

There was some agreement. "A very infirmitive idea," one of his colleagues vouchsaid. And another: "You hit the nose right on the head."

But the general reaction was strongly negative:

"What are you trying to do, make us all sacrificial goats? I am unutterly opposed to it."

"You're talking through the skin of your teeth. Why that kind of idea would percolate like wildfire."

"You sure laid a lemon that time."

"The fat has really hit the fan now.”

The Chairman tried to calm things down. "Wait a minute. There's no reason for getting into a high state of dungeon. There's a lot of semitics mixed up in this. Let's wipe the coast clear and start again. This thing has got to stand on its own bottom."

"Oh, no!" someone else insisted. "None of this balking and filling. Let's put our sholder to the bit. We've got to get our teeth into the guts of this."

Finally the original proponent got another turn. "All right. All right," he said: "You've really put me through the griddle. But don't you realize that a lot of water has gone over the bridge? This problem has a lot of faucets to it."

After another long go-around, the meeting finally broke up. There was one charitable word for the disconsultant heretic as he left the room. "You're all right, fellow. Keep a stiff upper chin." And one note of sympathetic counsel: "You've got to stop being so forthrighteous about this. You're getting yourself right across a box."

But the ultimate comment was in a whispered conversation off in a corner of the room. "That man," one of the tri-party advisors said to another, "is way out on the end of a limbo."

A letter last week from one of the nation's most respected citizens, Bernard M. Baruch, expresses a concern which is today

much in people's minds, and very close to the center of this Academy's interests.

Referring to what he identified-with the pleasantry of understatement-as a recent "succession of labor-management quarrels," Mr. Baruch observes that "while the rights and interests of labor and of business must be respected, the rights and interests of the public deserve at least equal consideration. . . . Both labor and business have sufficient power . . . to pursue courses which too often are at variance with the public interest. Too many of the struggles between these two are not only waged at the public's expense but are settled at it."

Recalling his recommendation after World War I that there be established a High Court of Commerce, which would "have jurisdiction over labor-management issues which the parties themselves could not resolve," Mr. Baruch concludes: I think such a body a Court of Labor-Management Relations is even more necessary today."

In speaking of this proposal, I want first to set it entirely aside from that body of current reaction to what is typically identifiedin a phrase which signals its predilection and prejudice—as “the labor problem."

That reaction fixes on the image of one notorious union official-despite the evidence from three and a half years now of active administration of the Labor-Management Reporting and Disclosure Act of 1959 that a high level of integrity and democracy obtains in organized labor as a whole.

That general reaction typically expresses a fear of excessive labor pressures in terms of alarm about inflation-despite the fact that this is the fourth year now of almost unprecedented price stability and that the rate of advance in wages has been steadily diminishing.

Or there is professed outrage about labor's broad combinations— ignoring the implications of the illustrative fact that New York City's being virtually without newspapers today results from five publications being shut down by the publishers when four others were struck by the printers.

Even the concern about economy-crippling strikes-which underlies the current alarm-must be set in context.