Cafeteria & Restaurant Wkrs. U., Local 473 v. McElroy

• Decision Date: 14 April 1960
• Docket Number: No. 14689.,14689.
• Citation: 284 F.2d 173
• Parties: CAFETERIA AND RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, et al., Appellants, v. Neil H. McELROY, Individually and as Secretary of Defense, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

284 F.2d 173 (1960)

CAFETERIA AND RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, et al., Appellants, v. Neil H. McELROY, Individually and as Secretary of Defense, et al., Appellees.

No. 14689.

United States Court of Appeals District of Columbia Circuit.

Argued November 9, 1959.

Decided April 14, 1960.

COPYRIGHT MATERIAL OMITTED

Mr. Bernard Dunau, Washington, D. C., for appellants.

Asst. Atty. Gen. J. Wattes Yeagley, of the bar of the Supreme Court of Indiana, pro hac vice, by special leave of court, with whom Messrs. Leo J. Michaloski, Jerome L. Avedon, and Justin R. Rockwell, Attys., Dept. of Justice, were on the brief, for appellees. Mr. George B. Searls, Atty., Dept. of Justice, also entered an appearance for appellees.

Before PRETTYMAN, Chief Judge, and EDGERTON, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges.

PRETTYMAN, Chief Judge.

Rachel M. Brawner was a short-order cook — a "breakfast cook". In November, 1956, she worked in a cafeteria. Her duties were to prepare breakfast and lunch, attend the steam table, and wash dishes. She had been so employed for six and a half years. The cafeteria is located on Government property, the premises of the Naval Gun Factory. The land had been purchased by the United States in 1873. It is located in the District of Columbia and became part of the Gun Factory in 1945. The work of the Factory includes, inter alia, design, planning, production and inspection of naval ordnance.

The cafeteria was operated by a private corporation, M & M Restaurants, Inc., under a written contract with the Board of Governors, U. S. Naval Gun Factory Cafeterias. The Board of Governors is composed of seven civilian governmental employees of the Factory and is appointed by the Superintendent. M & M Restaurants, Inc., operates numerous cafeterias and restaurants in several states, including Delaware, Maryland and Virginia. It operates the three main cafeterias at the Gun Factory. In order to enter or leave the premises of the Gun Factory, an identification badge is required. The issuance of this badge is by the Security Officer of the Gun Factory, a subordinate of the Superintendent, both of whom are naval officers. The Gun Factory is a component activity of the Potomac River Naval Command. The Commandant of this Command is directly responsible to the Chief of Naval Operations.

Rachel Brawner was required to have, and did have, an identification badge. On November 15, 1956, she was notified by her supervisor that he had been told to pick up her badge "for security reasons". She surrendered her badge to him. This action of the supervisor was pursuant to a phone call from a representative of the Board of Governors to a representative of M & M Restaurants, Inc. The caller stated that the Board had been notified by the Security Officer of the Naval Gun Factory, a Lieutenant Commander, that Brawner would have to surrender her badge and would not be permitted to enter the Factory "until clearance is certified by the Security Officer."

The President of M & M Restaurants, Inc., offered Brawner employment at the Skylark Motel in nearby Springfield, Virginia, where a restaurant was operated by the company. The representative of the Union, on behalf of Brawner, notified the company that she was not interested in accepting the proffer.

The Chairman of the Board of Governors made a request of the Superintendent of the Factory that a meeting be arranged for the Security Officer, the Board of Governors, representatives of M & M Restaurants, Inc., and agents of the Union to discuss the action relative to Brawner. The Superintendent replied that the agreement between the Board of Governors and M & M Restaurants, Inc., stipulated that the latter should employ only those who met the security requirements for admission to the Factory and that it was considered that Brawner "does not meet these security requirements". The Superintendent added that the proposed meeting was therefore unnecessary.

In the meantime Brawner had called upon the business agent of the local of the Union which was the bargaining representative of the cafeteria workers. This representative discussed the matter with the President of M & M Restaurants, Inc. The contract between the Union and the company provided that the employer would not suspend or discharge any employee without good and sufficient cause.¹ It further provided that in the event of a dispute the matter should be referred to a board of arbitration of three parties, one of whom might be chosen by the American Arbitration Association.² The representative of the Union was informed by the President of the company that he could not supply any information concerning the taking of Brawner's badge. Thereupon the dispute was referred to a board of arbitrators composed of John B. Cullen, Esquire, named by the company, Samuel H. Jaffee, Esquire, named by the Union, and the Honorable Nathan Cayton, named by the American Arbitration Association. These arbitrators, Mr. Jaffee dissenting, found: "The evidence before us does not establish that Rachel Brawner was ever discharged by the Company. There was no evidence from which it can be said that the Company ever indicated any desire or intention to terminate or dispense with her services." The arbitrators further pointed out: "The real grievance of the employee and of her Union has never been against the Company; it has been and is against those who have (wrongfully, she contends) denied her physical access to the place of her employment."

In sum the facts are that Rachel Brawner, a short-order cook employed by the civilian concessionaire operator of a cafeteria located on the premises of the Naval Gun Factory, was denied retention of the identification badge which had permitted her to enter the premises where she worked, the denial being by the authority of the naval officer in command of the Factory. The stated reason was that she failed to meet security requirements. She was not informed as to the factual premises for the conclusion. No charge was made against her.

After the foregoing events the Union and Mrs. Brawner filed a civil action in the District Court against the Secretary of Defense and other Government officials, in their individual and official capacities, and M & M Restaurants, Inc., for a declaratory judgment, injunctive relief, vacation of the arbitration award, and recovery of damages. The District Court granted summary judgment for the Government defendants and dismissed the complaint as to all defendants. This appeal followed.

I. The Problem Stated

The problem to be solved is a narrow one. It concerns the nature and extent of the power of a naval officer in command of a naval installation to control the ingress and egress of civilians to and from the premises. The discussion on the briefs and in argument has gone far afield from this problem. The case does not involve debarment from a chosen occupation. It is not a discharge case. The case does not involve any Personnel Security Program, with its concomitant regulations.

II. Power to Control Access to Naval Gun Factory

Line of Authority.

We first examine the authority of the Navy to prescribe rules for the admission of civilians to Navy installations. The authority begins with the Constitution.

"The Congress shall have power to dispose of and make all needful * * * regulations respecting the territory or other property belonging to the United States; * *."³

"The Congress shall have the power * * *;

* * * * * *

"To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, * * *."⁴

"The Congress shall have the power * * *;

* * * * * *

"To provide and maintain a navy;

"To make rules for the government and regulation of the land and naval forces; * * *."⁵

The line of authority then proceeds by statutes.

"The Secretary of the Navy has custody and charge of all * * * property of the Department."⁶

"The head of each department is authorized to prescribe regulations, not inconsistent with law, for * * the custody, use, and preservation of * * * property appertaining to it."⁷

"United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President."⁸

Next in this line of authority come certain United States Navy Regulations issued pursuant to Section 1547 of the Revised Statutes.⁹ They were issued by the Secretary of the Navy, the Honorable John L. Sullivan, and approved on that same day by the President, the Honorable Harry S. Truman. These Regulations contain the following provisions:

"The responsibility of the commanding officer for his command is absolute, except when, and to the extent, relieved therefrom by competent authority, or as provided otherwise in these regulations."¹⁰

"In general, dealers or tradesmen or their agents shall not be admitted within a command, except as authorized by the commanding officer:

* * * * * *

"3. To furnish services and supplies which are necessary and are not otherwise, or are insufficiently, available to the personnel of the command."¹¹

"The commanding officer shall require that orders and regulations pertaining to the security of * * * classified * * * material * * * are strictly observed."¹²

"Definitions.

"1. `Classified matter.\' — Information or material in any form or of any nature which in the public interest must be safeguarded in the manner and to the extent required by its importance."¹³

"Subject to law and as may be prescribed by the Secretary of the Navy, it shall be the duty of the Chief of Naval Operations to:

* * * * * *

"12. Prepare and issue manuals and other appropriate publications containing orders, instructions, and procedures, conforming to these regulations, and pertaining to matters for which he is responsible."¹⁴

"The Chief of Naval

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