Cafeteria and Restaurant Workers Union v Neil
McElroy
367 US 886
June 19, 1961
FACTS:
 This is an action by the union and its
employee against the Secretary of Defense,
McElroy, to compel the return of the
identification badge so that she might be
permitted to enter a military installation
and resume her former employment.
 Petitioner Brawner is a short-order cook at
a cafeteria operated by her employer,
M&M Restaurant, on the premises of the
Naval Gun Factory.
 She had worked there for more than six
years and her record was entirely
satisfactory.
 Access to the Gun Factory was highly
restricted due to the nature of its
operations and identification badges were
issued to persons authorized to enter the
premises. Brawner was issued such badge.
 The cafeteria was engaged under a contract
with the Gun Factory, which stated that its
personnel must not fail to meet the security
requirements of the facility.
 Eventually, Brawner was required to turn in
her identification badge due to the order of
Lt. Cmd. Williams for the reason that she
had failed to meet the security requirement
of the installation. The contract was the
basis of the action.
 The union of the cafeteria then arranged a
meeting with the officials for the purpose of
a hearing regarding the denial of Brawner’s
admittance to the facility. However, such
meeting was denied on the ground that
such meeting would serve no useful
purpose.
 During this time, Brawner was unable to
enter the facility and work. M&M offered
her a new position in another restaurant
but she declined due to the inconvenience
of the location.
 Hence, the case of compelling the
defendants to return Brawner’s badge and
allow her to resume work.
 TC: Denied petitioner.
 CA: Affirmed TC. Certiorari granted due to
CA’s decision in Greene v McElroy.
ISSUE:
W/N the commanding officer of the Gun Factory
deprived Brawner her constitutional right under Art.
V of the US Constitution, which is the protects the
right to due process?
RULING:
NO - The Supreme Court held that respondent
commanding officer was authorized to deny civilian
petitioner access to the installation under Article
0734 of the Navy Regulations and in light of the
historically unquestioned power of a commanding
officer summarily to exclude civilians from the area of
his command. This power has been recognized many
times.
Additionally, Brawner had no right to be there in the
first place and she was not deprived of her liberty or
property by the military action. The procedure
enshrined in the constitution is not required. The Fifth
Amendment does no require a trial-type hearing in
every case of government impairment of private
interest. All that was denied was her opportunity to
work at one isolated and specific military installation
and not the right to follow a chosen trade.
Furthermore, what was discussed here is the
managing of the internal operations of an important
federal military establishment. For that reason alone,
the government has traditionally exercised unfettered
control.
The court also held that the Due Process Clause of
U.S. Const. amendment V was not violated. Due
Process is not a technical conception with a fixed
content.
Due process did not require that civilian petitioner be
advised of the specific grounds for her exclusion and
be accorded a hearing, because government
employment, in the absence of legislation, could be
summarily denied.
The judgment was affirmed because a naval
regulation authorized a commanding officer
summarily to exclude tradesmen or their agents from
a military installation. Moreover, civilian petitioner's
summary exclusion without being advised of the
specific grounds for her exclusion and a hearing did
not violate the Due Process Clause of U.S. Const.
amendment V.
Dissenting by Justice Brennan and Justice Black – If
Brawner’s dismissal was due to the reason of race,
religion, or political opinion, there is doubt that the
constitution must protect her right to due process.
But as the court says, there’s no such discrimination
in this case. This case deprived Brawner the chance to
be heard what she has done wrong since she was
entitled to no process at all; nor is she given a chance
to defend herself. The right to be heard before being
condemned to suffer grievous loss is a basic principle
to society.
In short, the Court says that Brawner has a right not
to have her identification badge taken away for an
arbitrary reason by she has no right to be told what
the reason is for her barring or to defend herself. This
is a contradiction I cannot subscribe.

Additionally, she is labeled as a security risk, which

connotes a meaning that states her identity as one
that is of a communist. Such label is a badge of
infamy putting an individual at risk of harm and loss.

In my view, this is fundamentally unfair and violative

of the due process clause; to deprive her of a valuable
relationship so summarily.