*1 OF ASSOCIATION INTERNATIONAL MACHINISTS et al.
STREET et al. reargument 20, 1960. Argued April 21, June 4. 1960. Set No. January June Reargued 17-18, 1961. Decided *2 reargued Milton Kramer P. Lester Schoene E. Cleburne appellants. and filed a brief cause state- jurisdictional them on Gregory, Jr. was with ment. appellees. cause for reargued the Smythe
E. Gambrell Harlan, J. Glen Charles him the briefs were W. on With Hall, Ellsworth Jr. Bloch and the cause for the argued Rankin Solicitor General him on the brief were as intervenor. States With United *3 Doub, Morton and Attorney Hollander Assistant General David L. Rose. curiae, by were filed urging reversal, of amici
Briefs Mulholland, Hickey, Edward Jr. and Clarence M. J. Railway Labor Executives’ Highsaw, James L. Jr. for the Woll, Theodore and J. Albert J. St. Association, Antoine E. Harris for the American Federa- and Thomas Organizations. Labor and of Industrial tion of opinion delivered the of the Mr. Brennan Justice Court.
A group organizations, appellants here, of labor and the Railway carriers comprising System, the Southern entered authority union-shop agreement pursuant into a to the 2, Railway agree- § Eleventh of the Labor Act.1 The provides: 64 Stat. 45 U. S. C. Eleventh. section Notwithstanding any provisions chapter,
“Eleventh. other of this Territory any States, or of other of the 'or statute or law United thereof, any any State, or of carrier or carriers as defined in duly desig- chapter organization organizations a labor or labor ment requires employees each of the appellees, as a carriers, employment, pay condition of continued to appellant his representing particular class or craft the dues, initiation fees and assessments uni- represent employees nated and authorized to with the accordance requirements chapter permitted— of this be shall
“(a) agreements, requiring, make as a condition of continued .to employment, sixty following beginning days that within of such employment, agreements, or the date of effective such whichever is later, employees organiza- all shall become members of the labor representing Provided, agree- tion their craft or class: That no such require employment respect ment shall such to condition of with employees membership upon to whom is not available the same generally applicable any terms and conditions other as are member respect employees or membership with to whom was denied or any employee terminated for reason other than the failure of the periodic (not dues, fees, tender the initiation and assessments including penalties) uniformly required fines as a condition acquiring retaining membership. or
“(b) agreements providing to make for the deduction such wages employees carrier or carriers from its or payment organization representing craft or class and to the labor employees, any periodic dues, the craft or class of such initiation uniformly fees, (not including penalties) and assessments fines and required acquiring retaining membership: as a condition of or Provided, agreement respect That no such shall effective with employee employer individual until he shall have furnished assignment organization with a written to the of such member- labor ship dues, fees, assessments, initiation shall be revocable writing expiration year upon after the of one the termination *4 applicable agreement, the sooner. date of collective whichever occurs “(c) requirement membership organization The of in a labor in an agreement pursuant subparagraph (a) paragraph made to of this satisfied, engine, present employee shall be as a or future in to both train, yard, hostling engaged any service, is, employee or in an para- capacities or the First of services covered in Division graph (h) defining scope title, jurisdictional of the section 153 of this Board, Adjustment of the First if Division of the National Railroad employee acquire any membership said in one of the shall hold or organizations, scope, organized with labor national in in accordance retaining or acquiring of as a condition required formly them- in behalf of appellees, The membership. this brought situated, similarly employees and of selves Georgia, County, of Bibb Superior Court in the action pay to compelled thus was money each that the alleging the to finance used part in substantial job his was to hold state offices .federal and for candidates of campaigns of propagation promote and to whom he opposed, ideologies concepts doctrines, and economic political found that Superior The Court disagreed. which he with judg- and entered fully proved2 were allegations employees a craft or admitting membership of chapter to this pursuant sub- agreement to services; made any and no of class in said provide deductions from for (b) paragraph shall paragraph of payable fees, or assessments dues, wages periodic initiation for his he holds mem- in which organization any other than labor any in of said employee Provided, however, as to an bership: That any such of at the effective date particular carrier on a services any one of the labor member of carrier, who is not a agreement on a with this organized scope, in accordance organizations, in national membership employees of a craft or class admitting to chapter and continuing of employee, a condition services, as any such of said organ- may required to become a member employment, his employed on the effective which he is representing craft ization further, Provided, That agreement applicable to him: the first date of agreements prevent agreement shall any nothing such herein or in organization to membership one changing from employee from an membership employees of a craft admitting organization another services. of said or class of this section Fourth and Fifth Any paragraphs “(d) provisions in amended.” of such conflict to the extent are herewith in conflict are: findings court pertinent trial they rep- class plaintiffs and the “(5) The so exacted funds being, been, used have and are by union defendants resent the labor political support cam- the latter substantial amounts President President Vice the offices paigns of candidates Representatives and House of States, the Senate and for United they rep- by plaintiffs and the class opposed States, United financial contribu- and indirect support direct resent, and also for State campaigns of candidates expenditures tions and
745 of the union- the enforcement enjoining decree ment and vio- Eleventh ground on the shop agreement per- it to the extent Federal Constitution lates the funds exacted from of the by appellants mits use such Supreme Georgia affirmed, The Court of employees.3 they repre- by plaintiffs public offices,opposed and class and local by union used both each of labor sent. The said funds are so union defendants col- separately and all of labor defendants organiza- among other lectively themselves and with and in concert leagues, through associations, or com- parties tions not to this action purpose. mittees formed for that being
“(6) used substantial funds have been and are Those doctrines, concepts and propagate political and economic amounts to by plaintiffs legislative programs opposed ideologies promote and to are have also been and they represent. Those funds and the class impose upon plaintiffs and being used in substantial amounts conformity general public, they upon the represent, as well as class ideologies programs. doctrines, concepts, and to those they moneys plaintiffs the class “(7) from and The exaction of rea- above is not represent purposes and activities described for the maintaining bargaining the exist- sonably necessary or to to collective bargaining as effective position of said union defendants ence and represent employees whom said defendants agents or to inform developments of mutual interest. they “(8) money plaintiffs and class from The exaction of said union defend- the labor represent, in set forth above the fashion agreements in accordance shop ants, pursuant to the union agreements.” of those with the terms and conditions judge concluded: The trial agreements shop money, said and use of “Said exaction Railway their enforcement (eleventh) Labor Act and Section Fifth, First, in the States Constitution violate the United pro- guarantees to individuals thereto Ninth and Tenth Amendments prop- personal their from such unwarranted invasion tection thought, association, (including freedom erty rights, freedom of polit- press, freedom to work and speech, freedom of freedom of authority.” rights) federal under the cloak of ical freedom and appellants and the car- judgment provided that the and decree enforcing enjoined they hereby perpetually are riers “be and discharging peti- agreements shop . . . and from the said union refusing they represent, for tioners, of the class member *6 under this Court appeal 2d 796.4 E. On 108 S. Ga. 361 jurisdiction, probable (1), we noted 1257 § S. C. 28 U. S. 807. U.
I. Decision. The Hanson Hanson, 351 Dept. Railway Employes’ heldWe 2, Eleventh §of provision the of 225, that enactment S.U. interstate agreements between union-shop authorizing a valid exer- was employees of their and unions railroads Clause under the Commerce powers itsof by Congress cise Proc- the Due or First Amendment the did not violate and argued that It is Amendment. Fifth Clause ess in Hanson the First Amendment claims disposition our case in this claims constitutional appellees’ disposes appears As disagree. We their contentions. adversely to Eleventh, only case decided history, that from its conditioning em- agreements collective authorizing dues, fees, or assess- periodic of, pay members become or remain however, that defendants, provided, any union to, of the labor ments said dissolve petition the court to may time at said defendants engaging in the they longer showing no are upon injunction Judgment was described above.” activities improper and unlawful appellees amounts named for of three of the entered favor also paid them. dues, fees and assessments initiation question Georgia Supreme viewed constitutional The Court of presented for decision as follows: its question the contract is: Does constitutional “The fundamental defendants, plaintiffs and the union employers of the between for the em- they continue work compels plaintiffs, these if which dues, pay crafts, and respective join unions of their ployers, to will be part of same unions, where a to the fees, and assessments programs candidates and support political and economic used to op- only but approve office, plaintiffs do not public deprive them of speech rights of freedom pose, their violate Fifth under the process of law First due property without 43-44, Ga., at Federal Constitution?” Amendments to 2d, S. E. at 807. union payment on employment continued
ployees’ on its did not assessments, fees initiation dues, of association. rights upon protected impinge face Hanson, upholding Supreme Court Nebraska con- shop could not that the union employees’ contention stated that against them, enforced stitutionally be to work and “improperly right burdens their shop particularly their freedoms. This is true infringes upon that some of these apparent the latter because it is as to political ideas, support polit- labor advocate organizations candidates, concepts ical and advance national economic *7 may may employee’s or not be of an choice.” Neb. 71 N. 2d 546. That statement was 669, 697, W. argument compelling made in the context that an of the an organization individual to become a member of with political aspects infringement is an of the constitutional association, may freedom of whatever be the constitution- ality financial of activities compulsory support group process. outside the court’s refer- political Nebraska support political ideas, ence to the and candidates, concepts may may economic “which or an not be of choice” indicates that it was at employee’s considering most in an question compelled membership organi- zation In in political with facets. their brief this Court in Hanson that appellees argued First Amendment rights infringed by would-be an agree- enforcement of compulsorily ment which would collected funds to efiable political used purposes. nothing for But there was con- in crete the record to show the extent to which the unions actually spending money political purposes were for and purposes what these were, nothing to show the extent to which union funds being collected members were political activity used to meet the costs of and the mecha- nism done, nothing which this was to show that the employees there involved opposed the use of their In con- objective.5 any particular money information on detailed contains record present trast, in the made findings were specific points, all these that it is recalled them. When as to all of courts below union-shop brought before the Hanson was the action appellees never and that the effective became agreement actually engaged unions were that the showed thereafter they disagreed with which causes furthering political such activ- support used to money would be that their merely on passed this that Court it becomes obvious ities, of the Rail- validity Eleventh the constitutional infringe applied and not as face, Act on its way Labor any individual. rights of constitutional particularized more, have done could not record, Court On such in the us govern with the restraints consistently questions against and warn of constitutional adjudication reserved decision decision. therefore premature We appellees pre- which the questions constitutional compulsory argued case. said: “It is sent this We expression. impair used to freedom membership will be ... if presented by is not this record. problem But that assessments is used dues, fees, initiation the exaction of conformity or other forcing ideological as a cover for Amendment, of the First action contravention *8 of one union constitution with a statement The record contained authorizing political objectives and various other constitutions bodies, lobbying legislative political activity, before education that Labor publication of union views. There was an indication There was also material furnished to members of some unions. was hearings 2, statements of on Eleventh which included § taken management were used opponents of the Act that union dues join employees should not be forced to political for activities and would they purposes for which their funds unions if did not like the Michigan by Rep. Hoffman of spent. there were statements be And levy warning during bill, union leaders not the debate on the their members to “political and use the Act to force assessments” meet those assessments. in that case. decision prejudice will not
judgment Railway Eleventh narrowly 2, on § pass For we for requirements hold that only Act. We Labor agency collective-bargaining support financial power is within its work the benefits all who receive and does Clause the Commerce under Congress Id., Amendments.” Fifth First or the violate either all Thus opinion). (concurring p. also p. 238. See was Eleventh that § was held Hanson that was union-shop authorization in its bare constitutional support” “financial give workers requiring contracts collective act as their authorized legally to unions requirement this sustained agents. We bargaining —and author- statutory in the only requirement this —embodied shall employees “all under which agreements ization of representing organization labor members of the become upon neither Clearly passed we or class.” their craft the issue upon nor aspect other association forced causes money political for exacted the use of employees. by the opposed were present squarely to adequate case is The record These in Hanson. reserved questions the constitutional However, gravity. of the Utmost questions are decisions unnecessary constitutional against restraints must con- unless we determination against their counsel under authorizing shop a union Congress, clude that receiving organization labor that the also meant Eleventh, em- despite that free, money should employee's an causes money his spend objection, ployee’s construed are to be so statutes Federal opposes. which he constitutionality. “When of their serious doubt as to avoid in question, is drawn of an act of the validity raised, constitutionality is if a serious doubt of and even first ascer- will this Court principle cardinal it is a fairly pos- of the statute whether a construction tain Crowell may be avoided.” question which the sible *9 Benson, Each in appellee 285 U. S. 62. named representing this action has made known to the union his craft money or class his from the use of his for dissent political causes opposes. which he have therefore ex- We legislative history amined the in 2,§of Eleventh the con- development text of the of unionism the railroad indus- try under the regulatory Railway scheme created “fairly Labor Act to determine whether a construction is possible” authority which denies the a union, to over employee’s spend money his objection, opposes. causes which he We conclude that such con- struction is only “fairly possible” entirely but reason- able, and we therefore find it unnecessary to decide the correctness of the constitutional determinations made the Georgia courts.
II. Security. The Rail Unions and Union The history of union security railway industry first, by marked a strong and long-standing tradition of voluntary unionism on part of the standard rail 6 second, unions; by the declaration 1934 of a congres- sional policy complete freedom of employees choice of join or not join third, a union; by the modification hese organizations railroad labor past in the “[T] have refrained advocating shop agreement, type other of union security. always It has philosophy strongest been our that the most type organization militant of labor was the one whose members carefully were joined selected and who conviction and a desire to assist promoting objects fellows in of labor unionism . . . .” State ment MacGowan, president of Charles J. vice of the International Boilermakers, Transcript Brotherhood of Proceedings, Presidential Board, appointed 20, 1943,p. Feb. Transcript See also of Pro ceedings, Emergency 98, appointed pursuant Presidential Board No. 15, 1951, pp. Exec. Order No. 835-845, Nov. Carriers' Exhibit analysis long-time W-28. For an of the reasons for the absence of pressure security agreements railway for union industry, see Toner, Shop, pp. The Closed 93-114.
751 only but compulsion, against policy legislative firm of expenses of the recognition to the response specific a as administration by the unions burdens incurred Act. Railway Labor of complex scheme of the indus- in the rail security of union question When consideration detailed given first try was security had unions of the standard only one in 19347 of Brotherhood The its contracts. of provisions so-called a number of maintained Trainmen Railroad classes in certain requiring contracts, “percentage” specified Brotherhood, by the represented employees of union. belong to the had to employees of percentage yard conductors, yard only to contracts applied These more than no and covered switchmen, brakemen and let- See employees. rail of all workers, about 10,000 1% of Federal Coordinator Eastman, B. Joseph ter Committee of the House Chairman Transportation, to H. R. 1934, Commerce, June Foreign 7, on Interstate testimony pp. 14^16; Cong., Sess., 73d 2d 1944, No. Rep. representative legislative A. Farquharson, of James on Hearings Trainmen, of Railroad the Brotherhood Foreign Interstate and on House 7650, H. R. Committee pp. 94-105. Sess., 2d Commerce, Cong., 73d 7 incorporated in had been principle of freedom of choice The The Bank legislation governing railroads. pieces earlier two (q), provided 1481, (p) 3,1933,47 77 ruptcy March Act of § Stat. with should interfere trustee, of a carrier judge, no receiver or join a com organization, employees or coerce employee influence joining a join or refrain from union, require employees to pany Transportation Act Emergency organization. Railroad The labor to abide (e), required all carriers 1933, 214, 16, 7 June Stat. § provision was The latter Bankruptcy provisions Act. these testimony years. two See duration of temporary, with a maximum Transportation, House Eastman, Coordinator Joseph B. Federal his official Sess., pp. 22-23, and Cong., 2d Hearings H. 73d on R. Ann., Acts legislation, Interstate Commerce interpretation of this Supp., pp. 5972-5973. legisla- consideration of the 1934 During congressional attempted persuade Congress rail tion, unions arrangements. negotiating security them from preclude By original they sought to the proposal, amendments provision assure that which became Fifth conditioning prevent employ- should the carriers from membership company ment on in a union but should exempt standard from its prohibitions. unions *11 exist- Trainmen, only the union which stood to lose ing company if was contracts the section not limited to unions, especially urged such a limitation. See state- president, Rep. ment of A. F. 73d Whitney, 1065, S. No. 2d Cong., Sess., pt. 2, p. 2; see also Cong. 12372, Rec. The in having unions succeeded incorporate House a in such limitation bill passed. it H. Rep. See R. No. 73d 2d Cong., 2, 6; Sess. Cong. Rec. 11710- 11720. But the Senate did acquiesce. not a Eastman, firm in complete believer freedom of in employees their choice of representatives, strongly opposed the limitation. He characterized it as “vicious, because it at strikes principle of freedom of choice which the bill is designed to protect. prohibited The practices acquire no virtue by being confined to so-called ‘standard unions.' . . . Within recent years, practice tying up jobs men’s with labor-union membership crept has into the railroad industry which theretofore was singularly clean respect. practice has been largely in connection with company unions but not entirely. If genuine free- dom of choice is to be the basis of labor relations under the Railway Labor Act, as it should be, then yellow- dog contract, and its corollary, the shop, closed and the so-called ‘percentage contract’ place have no pic- ture.” Hearings on S. Senate Committee on Inter- Eastman’s p. 157.8 Cong., Sess., 2d Commerce, 73d state concurred and the House Senate, in the prevailed views car- providing Fifth, 2, “[n]o final version of a seeking employment any person require . . shall rier . or join to promising agreement any contract sign to Cong. Rec. organization.” See labor a join not 12400-12402, 12389-12398, 12382-12388, 12369-12376, 12549-12555. made unions nonoperating II,
During War World inci- security, attempt an unsuccessful obtain Following increase. wage to secure to an effort dental a Presidential mediation, negotiations and failure of rea- principal Two appointed. Emergency Board was urged that They by the unions. sons were advanced the duration to strike for their pledge in view of opera- uninterrupted responsibilities assure and their seeking justified they were railroads, tion arrangements. security by union positions maintain benefits they secured also maintained since They they rep- employees for all bargaining through collective operations costs of their fair that it resented, was *12 im only were the Trainmen emphasized that further Eastman “I am supported. by prohibition he mediately the broader affected proposed amendments only support for that real confident organizations other standard single of the organization. None from a letter, changes gain in the bill.” Eastman anything such from has views, see House expressions of Eastman’s p. supra, 16. For other 9861, Rules Hearings R. House supra, 28-29; on Hearings, pp. H. unions That other rail Sess., pp. 22-24. Committee, Cong., 2d 73d voluntarism, principle of time to the at this were still committed by the position, is indicated support of the Trainmen’s despite their Railway Labor representing the George Harrison, H. statement get not hope will “Now, I committee Executives’ Association: I that railroad labor unions thought that from these statements unions, that is not because these men our speak for want force into supra, p. Hearings on H. R. . House purpose; our . . .” shared all workers. The Board recommended with- request, concluding shop drawal of the the union plainly Railway was forbidden Act Labor and that in event the necessity unions had failed to show its utility. Emergency Presidential Board, appointed Feb. 20, 1943, Report May 24, 1943; Supplemental May Report, Report 1943. The said: “[T]he Board is convinced that the essential elements of the shop union as employees’ defined request are prohibited by section of the Railway Labor Act. intent of respect is made evi- dent, clarity.” with unusual Supplemental Report, supra, p. 29.9 On the merits of the issue, expressly the Board rejected the claim that security union was necessary to protect the bargaining position of the unions: “[T]he unions are suffering a falling off in members. On the contrary, . . . membership growing has been present at the appears time largest to be the in railroad history, with less than 10 percent nonmembership among the employees represented.” here Supplemental Report, p. 31. presented evidence with respect “[T]he to danger from predatory rivals seemed to the Board lacking suf- ficiency; especially light so of the evidence concern- ing membership growth.” Ibid. evidence was “[N]o presented indicating that the unions stand in jeopardy by reason of opposition. carrier A few railroads were men- tioned on which some of the unions do not represent a majority of their craft or class, and do not have bargain- ing relationships with the carrier. But the exhibits show these unions are the representatives chosen of the employees on the overwhelming majority of the railroads, 9The Board’s illegality view as to the shop of a sup was ported by opinion Attorney an General, Op. Atty. Gen., No. *13 59, p. (Dec. 1942). The Board general. that the unions is recognition a case has been find therefore that sufficient does not of union necessity protection of additional made for the Id., p. 32. The unions acceded status on the railroads.” recommendation. to the Board’s security reopened of union was 1950.10 question proposal authorizing then evaluated the for its to the shop primarily relationship union terms of financing participation machinery the unions’ in the Act its Railway goals. created Labor to achieve fostering voluntary adjustments The framework for be- employees tween the carriers and their the interest of discharge important efficient the carriers of their disruption functions with minimum from labor strife has statutory parallel industry. no other machinery, That product long legislative evolution, is more com- plex than that of industry. other The labor relations of interstate carriers subject congressional have been a congressional At the preceded time of the deliberations which Management Act, enactment of the Labor 1947, the Relations Trainmen, through president, Whitney, A. F. advocated the shop, urged closed repeal provisions prohibited of the which it. Hearings Act, on Amendments to the National Labor Relations House Labor, Sess., Committee on Cong., pp. Education and 1st 80th 1549- However, Railway 1561. Labor Executives' Association opposed amendment Lyon, secretary of the 1934Act. A. E. executive Association, very said: “We want to make it that clear we are proposing Railway no amendments to the Labor Act. We believe that necessary, none is opposed and we Whitney are to those Mr. suggested.” Hearings, p. Lyon you asking added: are not “We Railway to amend the provide Labor shop Act and a closed as Mr. Whitney necessary.” did. We do not think it P. 3724. In response query, “By you to the performed your services have you members people voluntarily join. have attracted Is that not Lyon replied: many correct?” “I think is true. And of our people they belong believe would rather have members they to, they because want rather than because have to.” P. 3732. *14 756 I, after World War time, For a since 1888.11
enactments arbi- compulsory a form of with Congress experimented boards 501, the creation of 1888, 25 authorized of Stat. The Act and between carriers voluntary to settle controversies arbitration 1. disrupt transportation. employees which threatened to § temporary presidential commission provided The also for a Act controversy the best means investigate and the causes of a report results of its investi the adjusting it; the was to commission Congress. gation 6. to the President and § passed the Erdman Congress repealed of 1888 and the Act In 1898 controversy concern- a Act, 424, providing that “whenever 30 Stat. employment shall arise labor, ing wages, or conditions hours employees of such the subject to this Act and a between carrier threatening interrupt the busi- seriously interrupting carrier, or Interstate Commerce carrier,” of the the Chairman ness of said attempt to resolve of Labor should and the Commissioner Commission by and medi- request party, of either conciliation dispute, at the the voluntary arbitra- failed, board of these methods a ation. If § the and up representatives on it of carrier with tion could be set directly employees interested organization to which “labor for made it criminal belong 10 of the Act also . . . 3. Section promise become or require employee to not to employer to an an against organization or to discriminate a member of a labor remain held uncon- membership, provision which was employee such an States, 208 S. 161. Adair United U. stitutional in passage superseded in 1913 Act was The Erdman of Mediation and Act, It a Board 38 Stat. 103. created Newlands controversy party could refer either to a to which Conciliation request if proffer even without dispute its services and which could seriously jeopardized the interruption of traffic was imminent an give opinions as authorized to The Board also was public interest. through agreements media- meaning application reached to the were up the Erdman Act procedures set 2. The arbitration tion. § 3-8. further elaborated. §§ railroads, day Congress imposed on the 8-hour In 1916 operation of the railroads During period of federal Stat. 721. executed the Federal Government I afterwards World War repre- organizations as labor many of the national agreements with adjustment were also employees. Boards of the railroad sentatives of applica- concerning interpretation disputes up set to handle Congress, was unsuccessful. experiment tration.12 regulatory adhered to a consistently time has since upon squarely responsibility places policy out settlements mutually to work unions and the carriers was policy That relationship. of the labor aspects of all Act of Stat. Railway in the Labor embodied *15 Hearings 3295, on S. Subcommittee agreements. See tion of Sess., Welfare, Cong., 2d 81st Labor and Public Committee on Senate 456, 1920, 41 Stat. By Transportation Act pp. 216, the 305. an extensive and established federal control terminated Hearings generally on 12, regulatory n. See scheme. See new infra. Public on Labor and of the Committee 3463, Senate S. Subcommittee Cong., Sess., pp. 124-131. Welfare, 2d 81st 12 Labor provided for a Railroad Transportation Act 1920 disputes between carriers Board, power to render a decision with working rules, or condi wages, grievances, employees over and adjustment procedures. through conference resolved tions not conditions, working wages or rendering on In a decision § opin wages which in its duty conditions to establish Board had a however, (d). held, It was 307 “just and reasonable.” ion were by legal process. not be enforced of the Board could that the decisions Board, Labor 261 Railroad Pennsylvania United States R. Co. v. See Pennsylvania Co., System R. Pennsylvania 72; R. U. S. of both lost the confidence By the Board had S. 203. U. Commit many Senate of the railroads. Commented unions and Act, “In of the Railway of 1926: view Labor tee considered the absolutely appear before the labor employees refuse fact that the are themselves many important railroads board and that Supreme to have no by the Court it, it has been held opposed to that authority recognized or is not judgments, that its power its to enforce railroads, important employees a number respected to seek a sub suggested it would be wise has that the President that Republican platforms of both the it, party and that stitute clearly dissatisfaction with indicated Parties and Democratic relating labor, the com transportation act provisions of the when the labor board the time had arrived mittee concluded relating in the trans provisions to labor and the be abolished should Rep. repealed.” No. 69th act, 1920, should be S. portation Sess.; pp. 3-4. Cong., 1st
jvhich regulatory remains the basic enactment. As the Report Senate on the bill which became that law stated: question presented “The was . . . whether the substitute the Act of a compulsory sys- consist of [for 1920] .should adequate tem with provided enforcement, means for its public whether it was interest to create the machinery for adjustment disputes amicable of labor agreed upon by parties and to the success of which parties both were committed. . . . The committee opinion it is the public permit interest a fair trial of the method of adjustment amicable agreed upon by the parties, rather than to attempt existing under conditions to use the power entire of the Government deal with these labor disputes.” Rep. S. No. 69th Cong., 1st Sess., p. 4. The plan reference to the “agreed upon by parties” was to “the fact that the Railway Labor Act of 1926 came on the statute books through agreement between the railroads and the railroad unions *16 on the need for legislation. such It is accurate say that the railroads and the railroad unions between them wrote the Railway Labor Act of 1926 and Congress formally enacted agreement.” Railway Employes’ Dept. Hanson, v. supra, p. 240 (concurring opinion). See generally Murphy, Agreement on the Railroads —The Joint Railway Conference of 1926, Lab. L. J. 823.
“All through the [1926] act is the theory the agreement is the thing vital in life.” Statement of Donald R. Richberg, Hearings on H. R. House Com- mittee on Interstate and Foreign 69th Cong., Commerce, 1st Sess., pp. 15-16. The Act created legal affirmative duties on part of the carriers and their employees “to exert every reasonable effort to make and maintain agree- ments concerning rates of pay, rules, and working condi- tions, and to settle all disputes, whether arising out of the application of such agreements or otherwise . . . .” 2,§ First. See Texas & N. O. R. Co. v. Brotherhood of Clerks, Railway Steamship & S. 548. The Act 281 U. administrative comprehensive appa- also established a disputes, conferences be- adjustment ratus for the Third parties, 2, Second, (now tween the and Fourth § and if not in submissions to boards of Sixth), settled, so adjustment, or the National Mediation 4. 3,§ Board, And legislation expanded already existing volun- tary machinery, 7, 8, §§ arbitration
A primary
revisions made in 1934
purpose
major
strengthen
position
organizations
was to
of the labor
vis-a-vis the
to the end
carriers,
furthering
the suc-
congressional policy
cess of the basic
self-adjust-
ment of the industry’s
problems
labor
between carrier
organizations
organizations.
effective labor
unions claimed that
the carriers interfered with the
employees’
representatives
freedom of choice of
by creat-
ing company unions,
attempting
and otherwise
to under-
employees’
mine the
participation
process
bargaining. Congress
collective
amended
2,§ Third to
reinforce the prohibitions against
interference with the
choice of representatives,
permit
employees
and to
to select nonemployee
representatives. A
2,§
new
Fourth was added guaranteeing employees
right
organize
bargain
collectively,
made
it the
duty
enforceable
of the carriers “to treat with”
representatives
of the employees,
2,§ Ninth. See
Virginian
System
R. Co.
Federation,
It
& N. U. S. has seen bargaining representative with com- powers clothe parable possessed by legislative to those body both to rights create and restrict it repre- of those whom Id., p. sents . . . .” 202. In strengthen- addition to thus in ing the unions’ status relation to both the carriers and the employees, the 1934 Act created the National Rail- road Adjustment provided Board and em- the 18 ployee representatives were to be chosen the labor national organizations scope. 3. This Board was given jurisdiction to settle what are termed minor dis- putes in the industry, primarily grievances arising railroad application from the bargaining agreements collective to particular situations. See Union R. Co. v. Pacific Price, 360 S. 601. U.
In sum, prescribing collective bargaining as the method settling railway disputes, in conferring upon the unions the status of representatives exclusive in the negotiation and administration of agreements, collective and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated play role to in effectuating the basic congressional policy of stabilizing labor relations industry. “It is fair say that every stage evolution of this railroad labor code was progressively infused with purpose of securing self-adjustment between effectively organized railroads equally and the effective railroad and, unions to that end, establishing facilities for self-adjustment such by the railroad com- munity of its own industrial controversies. . . . The assumption as well as the aim of that Act is a [of 1934] process permanent conference and negotiation between on carriers the one hand and the employees through their unions on the Elgin, other.” J. & E. R. Co. v. Burley, 325 S. 752-753 U. (dissenting opinion).
Performance of these functions entails the expendi- ture of considerable funds. Moreover, this Court has *18 status statutory scheme, union’s that under the held it the carries with representative bargaining as exclusive employees all represent fairly equitably duty Louis- class, and nonunion. Steele craft or Brotherhood Tunstall v. Co., 192; S. R. 323 U. ville & N. 210. The Enginemen, 323 S. Firemen & U. Locomotive in unions 1950 was based by the argument made principal main- They in framework. regulatory this on their role their expense performing that because of the tained justified the scheme, fairness congressional in the duties who benefited. employees all of the costs to spreading elimination of purpose advanced as They thus obtained the bene- employees who “free riders” —those machinery in the of the participation the unions’ fits of unions. supporting the financially Act without Railway Labor spokesman George M. Harrison, in case the unions’ Association, stated Executives’ fashion: in the resulting organizations labor
“Activities of costly, are employee benefits procurement carry on these of funds with which only source of the is dues received activities members essentially unfair that it is believe organization. We of those the benefits participate for nonmembers to the cost. contributing anything activities without bargaining collective true when the especially This is and activi- whose existence is one from representative and one which important most benefits ties he derives him. advantages to these by law to extend obligated railroad to the bargaining “Furthermore, collective monetary standpoint costly from a industry is more industry. The other that carried on than complete more machinery is more administrative and Presiden- mediation, arbitration, The complex. while act, provisions Board Emergency tial very costly are to the interest, public greatly through disputes handling agreement unions. Board also Adjustment the National Railroad to unions which is not known requires expense H. House industry.” Hearings on R. outside *19 Foreign Commerce, on Interstate and Committee Sess., p. 2d 10. Cong., 81st Congress. The House This was decisive with argument history previous legisla- the of Report traced Committee duty the of the union industry pointed in the and out tion representative represent to acting bargaining as exclusive act, class. the the col- equally all members of the “Under represent is to representative required lective-bargaining non- membership including of the craft or class, the entire in good faith. members, fairly, equitably, bargaining may not resulting Benefits from collective they are not mem- employees because withheld Rep. 2811, Cong., H. No. 81st bers of the union.” R. all Sess., p. Observing 2d 4. that about of 75% 80% union, a employees belong railroad were believed to to members, continued: “Nonunion neverthe- report agree- in the derived from collective less, share benefits railway labor negotiated by ments unions but bear such Ibid.13 obtaining no share of the cost of benefits.” by spokesmen purpose For reiteration various union of this of eliminating problems rider,” Hearings created the “free see 236-237; Hearings 3296, supra, pp. 6, 32-33, 36, 40, 66, 130, S. on 85, supra, 9, 25-26, 29, 37-38, 49-50, 79, 81, pp. 19, H. R. on 87, 89, 228, 240-241, 250, 253, 255, For other statements Congress indicating acceptance justification members of their- of this 169-171; Hearings, supra, pp. legislation, for the see Senate House supra, Cong. 16279,17050- Hearings, pp. 25, 87,106,110,139; Rec. 17051, 17055, 17057, 17058. shop sought expressly that the union was
Mr. Harrison disclaimed strengthen bargaining power of the unions. He said: in order to way power bargaining “I not think it would one do affect get majority employees I of the to vote or the other .... If bargaining agent, got my I have as much economic union as in favor arguments overbore considerations These freedom individual complete policy earlier of the Dept. Employes’ Railway said As we choice. of. than rather require, p. Hanson, “[t]o supra, con- to unionism trade the beneficiaries induce, course. wisest not be may costs its tribute help it would believe might well But arteries along the to work right insure the attempted has been more No commerce. interstate . . . relates required support financial . . . here. bar- of collective realm the union the work clearly history The conclusion gaining.” The man have. ever I will development as stage of power at that or out he is in whether scab will going to scab—he supra, Hearings, House any difference.” make does not union, it *20 pp. 20-21. shop union that the seriously any advanced claim Nor was prohibi membership. The union or necessary increase to hold was with interfered had Act security 1934 the in against union tion to lose unions the membership caused growth union the American L. v. F.A. agents. See bargaining as exclusive positions see opinion); also (concurring 4 548-549, n. 538, Co., S. 335 U. Sash 98, No. Emergency Board Proceedings, Presidential Transcript Carriers’ 15,1951, 10306, Nov. Order No. Exec. pursuant to appointed W-28, pp. W-23, 38-51. Exhibits problems 14 of the urge elimination the to continued unions shop in union the for justification the rider” as by “free the created rec Board, which Emergency Presidential before proceedings in this involved agreements make the carriers ommended pur primary unions’ railroad . . the “. said: Mr. Harrison case. Railway Labor to obtaining the amendment seeking and pose in dues, was to payment for the check-off permit to Act in which feet, term drags his guy rider,’ the who the ‘free eliminate to obtain, cost without who to non-members unions applied is through the procured bargaining of collective themselves, benefits Proceedings, Transcript of members.” dues-paying of the efforts to Exec. pursuant appointed 98, Board No. Emergency Presidential Transcript, pp. See also 1951, p. 150. 15, 10306, Nov. No. Order 545, 289, 283-286, 268, 202-203, 186-188, 182-183, 144-156, 40-44, contemplated compulsory-
points is that
Eleventh
2,§
negotiat-
share the costs of
employees
to force
to
unionism
and the costs
agreements,
collective
ing
administering
disputes.15 One looks
and settlement of
adjustment
in
any
in
also meant
suggestion
vain for
a means for
provide
the unions with
2, Eleventh
support politi-
forcing employees,
objection,
over their
they oppose.
cal causes which
2795, 2839, 2930, 3014-3015,
608-611, 1893, 1901, 2136, 2495-2497,
3018-3019.
mobility
gives scope
2,
(c),
for intercraft
Section Eleventh
which
primary union
industry,
with the view that the
in
rail
consistent
congressional
the “free rider”
was with the elimination of
concern
support
representative’s performance of its functions
who did not
his
employee
operating
provides that an
under the Act. The section
repre
required
a member of his craft or class
cannot
to become
any
acquire
employee
membership in
if “said
shall hold or
sentative
organized
organizations,
scope,
in
in accord
one of the labor
national
admitting
membership employees of
chapter
ance with this
held in
of said services . . . .” This Court
a craft or class
Pennsylvania
Rychlik,
“na
that the unions
R. Co. v.
U. S.
scope”
provision
those which have
contemplated
are
tional
participate
already qualified
3 of the Act to
as electors under §
Adjustment
As the
said
in the
Railroad
Board.
court
National
aff’d,
Pigott Detroit,
Co.,
Supp. 949, 955,
T. & I. R.
116 F.
n.
agencies
participating in the
of the Act
To the dissenters’ interests. protect the statute to during hearings and debates that became concerned speech shop might abridge union be used to freedom original proposal and beliefs. The for authorization It only respect. pro- one shop qualified the union was require shall such condi- agreement “That no such vided to whom respect employees with to employment tion of upon the same terms membership not available mem- generally applicable any as to other conditions are . . This was to dis- primarily designed prevejit ber . .” where charge employees nonmembership for membership did admit to on racial employee grounds. Hearings, p. 68; Senate,.Hearings, See House pp. strenuously protested 22-25. But it was that proposal provided protection employee no for an who dis- agreed policies argued, with union It was leadership. example, right speech “the of free is at A longer stake. ... man could feel that he was no freely express able himself because he could be dis- missed on account of criticism of the union . . . .” Hearings, p. 115; Hearings, pp. House see also Senate 167-169, Objections of this kind led the rail unions an propose proviso addition to the Eleventh to prevent job loss of membership for lack of union “with respect employees to whom membership was denied or terminated for reason other than the failure of the employee to tender the periodic dues, fees, and assessments uniformly as a condition of required acquiring or retain- ing membership.” p. House 247. Mr. Harri- Hearings, presented son this text and “It is stated, submitted suggested this bill with the amendment as in this state- *22 compulsory alleged abuses ment remedies witnesses, yet opposing membership as claimed rider’ and the elimination of the ‘free possible makes by all of the bene- of maintenance sharing of the burden 253. Hearings, p. House activity.” of union ficiaries to reassure Committee members sought Mr. Harrison also language of other possible implications as to the meant “initiation explained he that “fees” proposed bill; primarily was intended to cover fees,” and “assessments” only dues, had the situation of union which nominal “an assessment to finance the paid so that its members it negotiating committee ... general activities expenses and vary by month, will month based on the an Or, explained, work of that committee.” P. 257. he might expenses. assessment cover convention “So we had to in addition to dues and use the word ‘assessment’ fees because some of the unions collect a nominal amount of dues and an assessment month after month to finance part of the in total it is no activities, although perhaps paid different than the dues the first instance which comprehended expenses.” all of P. In those re- porting bill, expressly the Senate Committee noted protective proviso, Rep. S. No. 2d Cong., 81st Sess., pp. and affixed the Senate additional limita- 3-4, tions. The words “not including penalties” fines and were make it added, to clear that termination of union membership nonpayment for grounds would not be discharge. It was explicit also made that “fees” meant “initiation Cong. fees.” See 96 Rec. 16267-16268.
A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It oppo- true that nents of the union shop urged should not allow it explicitly without regulating the amount of might dues which be exacted prescribing the uses for might expended.16 may which the dues assume We *23 Congress fully long was also conversant with the history of intensive involvement of the railroad unions in it activities. But does not follow that § places Eleventh no restriction on the use of an em- ployee’s money, over his objection, support political opposes merely Congress causes he because did not enact a comprehensive regulatory governing expendi- scheme abundantly tures. For it is clear that did not completely policy abandon the of full freedom of choice embodied in the 1934 Act, but rather made inroads on it for purpose the limited of eliminating problems created the “free rider.” That policy survives 2, Eleventh safeguards protect intended to free- dom of dissent. Congress was aware of conflicting interests question involved of the union shop sought to achieve their accommodation. As was said the Presidential Emergency Board which recommended the making of the union-shop agreement involved case:
“It is not as though Congress had it believed was merely removing some abstract legal barrier and not passing on the merits. It fully was made aware that it was deciding these critical issues of right individual versus collective interests which have been stressed in this proceeding.
“Indeed, Congress gave very concrete evidence it carefully considered the claims of the indi- vidual to be free of arbitrary or unreasonable restric- tions resulting from compulsory unionism. It did give a blanket approval to union-shop agree- ments. Instead it enacted precise carefully 16See Hearings, pp. Senate 173-174, 316-317; Hearings, House pp. 160, Cong. 172-173. See also 96 Rec. 17049-17050. union-shop agree-
drawn limitation on the kind of might purpose ments which be made. The obvious prescription of this careful was to strike a balance the interests pressed by between the unions and the urged. By considerations which the Carriers have providing that a worker should if he discharged not be was if membership denied or he lost his union reason other than nonpayment of initiation fees dues, or assessments, Congress definitely indicated that it weighed carefully had given policy effect to the arguments against the union shop.” Report Emergency of Presidential 98, appointed Board No. pursuant 15,1951, p. to Exec. Order No. Nov. *24 respect congressional We this purpose when we construe 2, vesting § Eleventh as not the unions with unlimited power spend to exacted money. are upon We not called to precise delineate the limits of that power this case. only We have before us question the whether power the is restricted to the extent of denying the unions right, the over employee’s objection, to use his money to sup- port political causes which he opposes. Its support use to public candidates for office, and advance pro- grams, is not a use which helps defray expenses negotiation of the or administration of agree- collective ments, expenses or the entailed in the adjustment of grievances disputes. In other it words, is a use clearly falls outside the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements justified. was On the other it hand, is equally clear that it is a use support to activities within the area of dissenters’ interests which Congress enacted the proviso protect. to give We § Eleventh the construction which achieves both con- gressional purposes when we hold, as do, we 2,§ Eleventh is to be construed to deny the over an unions, employee’s power to his objection, use exacted funds support political causes which he opposes.17 express
We no view as to other expenditures objected employee an and not made to meet the negotiation costs of and administration of collective agreements, adjustment or the griev- settlement of ances and disputes. We do not view of understand, findings Georgia of the question courts Georgia Supreme decided there is Court, expenditures before us the matter of for activities area directly between the costs which led to the com- plaint riders,” expenditures support as to “free and the political pur A distinction between the use of union funds for poses expenditure nonpolitical purposes implicit and their for congressional Treasury adopted other Thus the has enactments. regulation of the Internal Code of 1954 to under 162 Revenue govern payments by deductibility purposes for income-tax union members to their union: organization, payments and other such as a labor
“Dues an requirements association, union or a trade which otherwise meet the regulations of the are deductible in full unless a under section organization’s [expendi part substantial activities consists lobbying legislation, purposes, promotion or tures for for the defeat (including support opposi political campaign purposes of or carrying propaganda public office), or for on tion to candidate for *25 (including any foregoing pur advertising) related to . organiza poses] part the .... If a substantial of the activities of specified, will be tion consists of one or more of those deduction (cid:127) only payments as portion of such dues and other allowed such taxpayer clearly is attributable to activities other the can establish whether such specified. those so The determination as to than organization’s part of specified activities constitute a substantial an In no shall be based on all the facts and circumstances. activities (including payments an special or similar event shall assessments dues) specified any organization for of such to increase made (e) (2); 1.162-15 see also Rev. purposes be deductible.” 26 CFR § 49, April 17, 1961. Cf. Cam 61-10, Int. Bull. 1961-16 Rev. Proc. States, 358 S. 498. marano v. United U. satisfied, however, are activities.18 We political
union deny the unions interpreted to is to be 2, Eleventh § that unions, appellant case. The claimed this power the their use contemplates insisting Eleventh to objected causes support political funds to of exacted Congress sanc- have us hold that employee, the would by in the practices expansion an of historical tioned by decline to do. Both by rail This we area unions. law, 1934 to force and, tradition upon compulsion rely rail unions did not politi- money support to security to exact agreements construction they engage. Our cal activities politi- traditional curtailment of the therefore involves no only It means of the railroad unions. cal activities activities, against support must not those those unions with his dissenting employee, expressed wishes of money.19 exacted many example, unions maintain death For national labor
benefit funds from the dues of individual members transmitted the locals. proposed pending In labor 1958 Senator Potter an amendment union-shop legislation given employees subject to a that would have agreement right only bar to have their dues used for collective gaining required Secretary purposes and would have and related Labor, expended, if he determined that the dues were not so bring recovery an in behalf of the dissenter for the of all the action agree money paid by during the dissenter to the union the life of the appropriate injunctive ment relief and for other as court such Cong. just proper. 11330. Potter deemed See 104 Rec. Senator principles proposal implement which he believed to advanced already said, implicit in the laws. He “I know that when labor legislation management providing for labor and enacted shops intended, enter into for union it was under the union contracts collective-bargain shop principle, would use the dues for that labor ing Cong. 11215; id., purposes.” p. see Rec. also disagreement adopted in the failure of the amendment to be reflected coverage scope propriety to the Senate over the of its and doubts as remedy. Cong. 11214-11224, of the breadth of the See 104 Rec. 11330-11347.
IV. Appropriate Remedy. The of the decision however, statute, view of the our Under The stand. and cannot below was erroneous the court in the have in this action participated who have appellees their unions respective their it made known to course of of support for the money their the use of objection to circumstance, respective the In that causes. political thereafter payments to use power without unions were the However, causes. them for such by tendered Railway is not unlawful. agreement itself union-shop Hanson, there- supra. appellees Employes’ Dept. employ- a condition of continued obliged, fore remain as respective unions to their ment, payments to make the stems right Their of action agreement. called for Congress’ power limitations on not from constitutional itself. Eleventh shop, the union but to authorize spend- from the grievance stems words, appellees’ In other Act authorized purposes funds for not ing of their from the enforcement their objection, the face of by the mere collection union-shop agreement purposes contem- money If were used funds. their have no would Eleventh, appellees plated by 2,§ restrain- that an injunction all. think grievance at We is therefore union-shop agreement ing enforcement of the violation of remedy appropriate not a plainly the col- Restraining expenditures. on Act’s restriction broadly, sweeps too appellees funds from the lection of all to which some of only to the uses objection their is since restraining collection money put. Moreover, well might courts have done Georgia as the the funds those appellant performance unions’ interfere with Railway places Labor Act duties which the functions and industry. stability upon goal them to attain its modifi- subject decree is court though Even lower *27 im- cessation of appellants cation of upon proof is prohibition in the interim the proper expenditures, anyone collection of all funds against absolute expenditure that to the opposed who can show he money political purposes disapproves. of his which he this source of income defeats the complete shutoff of share congressional plan employees to have all benefited Hanson, bargaining,” “in costs the realm of collective p. 235, congressional U. at threatens the basic S., policy Railway self-adjustments Labor Act for be- organizations tween carrier and effective labor effective organizations.20
Since the case must therefore be remanded to the court
proper remedy,
below for consideration of a
we think that
it is appropriate
suggest
the limits within which reme-
dial
may
consistently
discretion
be exercised
with the
Railway
public
Labor Act and other relevant
policies.
As indicated,
injunction against
an
enforcement
shop
itself through the collection of funds is unwar-
ranted.
injunction
We also think that a
against
blanket
all expenditures
funds
disputed purposes,
for the
even
one conditioned on cessation
improper expenditures,
would
proper
not be a
equitable
exercise of
discretion.
Nor would it be proper to issue an interim temporary
injunction
blanket
of this character pending
adju-
a final
dication. The
Act,
Norris-LaGuardia
47 Stat.
U. S. C.
101-115, expresses
§§
a basic policy against the
injunction of activities of labor unions. We have held
that the Act
deprive
does not
juris-
federal courts of
diction to enjoin compliance with various mandates of the
Railway
Virginian
Labor Act.
System
R. Co. v.
Federa-
tion,
Firemen However, pol- & 338 U. S. icy suggests of the Act that the courts should hesitate to fix upon injunctive remedy duty owing for breaches of under the can remedy labor laws unless alone effec- tively guard the In plaintiff’s right. Graham this Court found an injunction necessary prevent the breach of duty of fair representation, order might petitioners not seem to have held out to the there illusory right “an for which it was denying them a remedy.” S., p. necessity 338 U. at 240. No such for a *28 injunctive remedy blanket because of the absence of rea- appears sonable alternatives here. the fact Moreover, that these expenditures political are made for activities is an additional impose reason for reluctance to such an injunctive remedy. may powers be the Whatever Congress or the altogether States forbid unions to make types political various expenditures, as to which we express opinion here,21 many no of the expenditures present involved case purpose are made for the disseminating information as to and programs candidates and publicizing positions of the unions on them. expenditures As to such an injunction would work a expression restraint on the of political' might ideas which be offensive to the Eirst majority Amendment. For the also has an in stating interest its being views without silenced by the dissenters. To attain the appropriate reconciliation between majority dissenting interests in the political area of expression, we think the courts administering the Act should select remedies which protect both interests to the possible maximum extent without impingement undue of one on the other.
21No any contention was expendi made below or here that tures involved in this case were made in violation of the Federal Corrupt Act, 610, corrupt Practices 18 U. S. C. state practices legislation.
Among possible appear appro- remedies which would priate injury to the complained of, may two be enforced with a minimum of difficulty22 administrative and with danger little of encroachment on the legitimate activities or necessary functions of the Any remedies, unions. however, would properly granted only be to employees who have made known to the they union officials that do not desire their funds to be political used for causes to which they object. The safeguards of § Eleventh were added protection for the of dissenters’ interest, but dis- sent is not to presumed must affirmatively be made —it known to the union dissenting employee. The receiving money exacted from an employee under agreement union-shop should not in fairness be sub- jected to sanctions favor of an employee who makes no complaint of the use of his money for such activities. From these considerations, it follows present action is not a true class action, for there is attempt no prove the existence aof class of workers specifi- who had cally objected to the exaction of dues for pur- poses. Hansberry Lee, See U. S. 44. Thus we think only those who have identified themselves as *29 opposed political to uses of their funds are entitled to relief in this action. remedy
One would be an injunction against expendi- ture political for opposed causes by each complaining employee of a sum, from moneys those spent by to be the Labor-Management We note that the Reporting and Disclosure requires every organization Act of 1959 subject labor to the federal annually labor laws to file Secretary with the of Labor a financial report specified as to certain disbursements and also “other disburse by including ments purposes made it (b) the (6). thereof . .. .” 201 § required Each union is also to maintain records in detail to sufficient supply necessary basic information and data from which report may be verified. required 206. The information be to con tained in report such must be available to all union members. (c). §201 much of is so which purposes, political for of proportion is the him from as
moneys exacted activ- political such made for expenditures total union’s not should The union budget. total the union’s ities to money paid sum such up make position in a be disproportionate shift a for would nondissenter, by a dis- bargaining of collective the costs share of money to his applying of the same effect and have senter remedy A second activities. political support such of that employee individual to each be restitution would despite expended, the union money his which of portion had he causes which political notification, for his no be There should opposed. he was the union advised money his to trace employee for the however, necessity, money goes if the expenditure; its including up to and receipts accounts separate and no into general funds are employees individual funds expenditures would employee money of his maintained, portion proportion in the same to recover would be entitled he had purposes for expenditures that the total union bore to the disapproved he the union advised budget. case is remanded and the is reversed judgment with this inconsistent proceedings
the court below opinion. and remanded.
Reversed Douglas, concurring. Mr. Justice an industrial inevitable in are associations Some forced street rides busses necessity who of society. One and Walt Muir freedom John have the cars does not brings factory very existence of extolled. The Whitman areas some housing colonies. Public being into human buildings apartment take the may necessity form Yet hills. as ant may repulsive be as some which to *30 choice. have other often no teeming communities people leeway dealing prob- some with the Legislatures have phenomena. lems created these modern remedy prob- is a for some of the bargaining Collective factory lems created modern conditions. The bene- laboring ficiaries are all the members of the force. We Railway Employes’ Dept. therefore concluded Hanson, 351 it permissible legis- U. S. that was for the lature all require gain who from collective bargaining to contribute its cost.1 That is the narrow and precise holding of the Hanson as Me. Justice Black case, shows.
Once an compelled by association with others is facts of special safeguards necessary are lest life, spirit of the First, Fourth, and Fifth Amendments be lost and we all regimentation. expressed succumb to I concern Public Pollak, Utilities Comm’n v. U. S. 451, (dissenting opinion), where “captive audience” was forced to special listen to radio broadcasts. If an association is compelled, the individual should not be forced to surrender matters of conscience, belief, expression. or He should be allowed to enter group with his own flag flying, whether it be religious, political, or philosophical; nothing that the group does should deprive him of the privilege of preserving and expressing his agreement, disagreement, or dissent, whether it coin cides with the view of the group, or conflicts with it in minor major ways; and he should not required finance promotion of causes with which he disagrees.
In a debate on the Universal Declaration of Human
Rights,
later adopted by the General Assembly of the
United Nations on December 10, 1948, Mr. Malik of
problem
employees
who receive benefits of
repre
sentation but who are unwilling
give
support
financial
to the
union has received much attention
(see
Rep.
S.
No.
105, 80th Cong.,
Sess.,
1st
pp. 5-7;
Rep.
H. R.
No.
80th
Cong.,
Sess., pp.
1st
42-43) and from the courts. See Radio Officers
v. Labor Board,
777 controlling principle is the stated what I think Lebanon before us: cases of the character now belongs, group “The social to which the individual wrong be or person himself, the human may, like 2 is the right: person judge.” alone con- membership group a cannot be This means acceptance group’s ditioned on the individual’s of. rights First Amendment are philosophy.3 Otherwise, philos- for the required exchanged group’s attitude, to be permissible I not see how that ophy, politics. or do nor the Since neither under the Constitution. cannot rights, they those legislatures abridge state can I them. As private groups abridge to to grant power by Amendment, any abridgment the First it forbids read indirectly. directly whether or government the costs of collective paying The collection of dues for beneficiary is of which each member is a one bargaining thing. If, used, dues are or assessments are however, or promote oppose repeal or birth made, control, oppose the cosmetics, promote increase the taxes on or Nations, into the admission of Red China United support group compels then an individual like, gave rise to the need money beyond with his causes what group for action. Rights, Summary Human Record of the Four Commission on February 4, 1947, p. 4. Meeting,
teenth N. Doc. TJ. E/CN.4/SR.14, case, 236-237, n. various noted in the Hanson 351 U. S. We by-laws placed by on restrictions union constitutions and individual disqualified persons membership members. Some Certainly government could not views or associations. prescribe of that character. standards activity. speech or
Some restrained members from certain kinds of Certainly government impose these could not restraints. required purposes portions of union funds for
Some use of bargaining. Plainly those conditions could other than collective government imposed federal or enforced state or 1; Shelley Kraemer, judicial government. See v. U. S. branch Jackson, Barrows 346 U. S. dues be said when union same must
I think the a Governor, a Con- are used to elect or assessments may a President. It be said Senator, gressman, D. rather than a Franklin Roosevelt the election of possible way to serve might be the best Coolidge a Calvin But even such a selec- bargaining. of collective the cause subordi- political purposes funds for tive use of union *32 rights First Amendment to the the individual’s nates majority. done, I do not see how that can be views of the rights campaign, his to to though objector even the retains as he union funds speak, to vote chooses. For when purpose, required the individual is to are used that in may which he political projects against finance The furtherance of the common cause leaves rebellion.4 leeway some for the As as leadership group. long they act promote justified bringing to the cause which group together, the individual cannot withdraw his finan- support merely cial disagrees group’s because he with the If that strategy. allowed, reversing were we would be case, sub silentio. But since the funds Hanson here in issue are used defraying for causes other than the costs of collective I bargaining, would affirm the judgment below with modifications. I Although recognize the strength of arguments advanced by my Brothers Black and against giving “proportional” Whittaker relief to in appellees case, this practical prob- there
4 Hostility compulsion expressed to early history. such was in our Madison, in his Against Religious Memorial and Remonstrance Assessments, wrote, authority “Who does not see . . . same which can force a citizen pence only to contribute three prop of his erty support any for the establishment, may one force him to any conform to other establishment in all cases II whatsoever?” Writings (Hunt 1901), p. of James Madison ed. 186. in Religious Liberty Jefferson his 1779 Bill for wrote “that to compel money a man to furnish propagation contributions of for the opinions tyrannical.” which he disbelieves is sinful and See 12 Hening’s 85; Brant, Madison, Va. Stat. (1948), p. The Nationalist 354. in case. judgment for a mustering five Justices lem of I 134. So States, 91, 325 U. S. Screws v. United Cf. suggested to the one agree dubitante have concluded Brennan, understanding on the Mr. Justice protesting the six granted will be confined all relief action, a “class” called though employees. suit, This or nonuse as the use requirements does not meet the choice of each depends on dues or assessments Lee, 311 Hansberry v. group. See individual, not U. S. part concurring Whittaker,
Mr. Justice dissenting part. put opinion
Understanding Court’s hold — enacting Eleventh my that, own words— impliedly to, intended Railway Act, Labor make of may labor unions railway limit the use that did, its from those of assessments, collected dues, fees become or remain required were or are members who negotiated contracts shop its members force of *33 defray the costs of only that to permitted by as section, agree- bargaining collective negotiating administering and adjustment and settlement including the ments — construed, rightly Hanson disputes case, that the —and III I II and join I, than Points upholds that, no more opinion. the Court’s opinion.
But I from Point of the Court’s dissent IV make it respect point, appropriate In to that seems pay many members following the observations. When treasury the of the monthly dues into the same amount under the are, the fund for what dispenses union which activities, permitted proscribed both and opinion, Court’s us what? Let paid how can it be told whose dues for monthly members, paying a union with two each suppose and the other does dollars, dues of three that one does but being expended “proscribed his dues for object not may mean. Of activity” phrase —whatever four dollars expends a the union given month, dues for “pro- and two dollars for admittedly proper activity for two objector that the activity,” answering scribed his, not from activity” were spent “proscribed dollars for the result be that dues. not other’s, but from Would required pay not his one-half was thus objector legitimate expenses? Or, but of the union’s three-fourths objector paid part nevertheless a ratable has “proscribed activity”? cost of the proper might require that a decree suggests The Court objector part of that of his dues that “restitution” to equal spent “proscribed activity” is to the ratio of dues if by to total dues collected the union. But even Court a clear could draw line between what is what is not “proscribed activity,” accounting proof problems remedy involved would make the most onerous and impractical. But when is a there added to this full recognition the practical impossibility of judicially drawing the clear line mentioned and also of the fact that the local unions which promptly pay collect the dues part of them to the national in turn, also which, engages “proscribed it activity,” plain becomes the suggested remedy impossible restitution practical performance.
It would seem to follow that only practical remedy possible is the one formulated the Georgia courts, I would approve it. Black,
Mr. Justice dissenting. This action was brought a Georgia state court six railroad employees1 behalf of “and themselves *34 similarly others against situated” making up railroads 1Although complainants there were more when the suit was brought, only there completed. were six when trial was represent- organizations labor Railway System, Southern bargaining, in collective system of that employees ing and enjoin enforcement individuals, number of and a entered union-shop agreement them of application as organizations and the labor the railroads into between Labor Act.2 Railway Eleventh 2,§ authorized in order employees, all required terms agreement’s The the union and remain to join railroad keep jobs, dues, periodic tendering to the extent at least members, fines and including assessments, and initiation fees that the amended, charged complaint, as penalties.3 with the laws it conflicted because was void agreement Ninth First, Fifth, and the Georgia Constitution Constitution. to the Federal Amendments Fourteenth are shops that such provides Eleventh Section “ [notwithstanding law of . . . statute or any other valid Relying on our any State.”' . . . or of States United Hanson, 351 Railway Dept. Employes’ decision to that pursuant made upheld contracts 225, which U. S. complaint dismissed the Georgia trial court section, reversed Supreme Court The State as amended. our Hanson distinguishing trial, the case for remanded as decision follows: pay- dues and other the union alleged
“It the union to make to they required ments will be 152, Eleventh. 64 Stat. 45 U. S. C. § agree statute, requirements of with the In accordance statute, language identical to that provided, almost ment a member required or remain employee to become that no would upon employe membership to such is not available the union “if such any generally applicable as are terms and' conditions the same employe is denied or membership of such member, other or if employe to failure of the other than the terminated for reason (not fees, includ periodic dues, and assessments initiation tender acquiring required uniformly as a condition ing penalties) fines and retaining membership.” *35 ‘support will be used and ideological political doc- trines and they candidates’ which are unwilling to support and in which they believe, do not and that this will violate the Fifth First, and Ninth Amend- ments of Railway the Constitution. Emp. While v. Dept. Hanson, 225, supra, upheld U. S. validity of a closed shop contract executed under 2,§ that Eleventh, opinion clearly indicates that court approve would not a requirement join that one if the union his contributions thereto were used as this petition alleges. It is there said (headnote 3c): ‘Judgment is reserved in Georgia Supreme [italics Court opinion] as to validity or enforceability of a union or closed shop agreement if other condi- tions of union membership imposed if are exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action contravention of the First or the Fifth Amendment.’ must judgment We render upon now this precise question. We do not believe one can constitutionally compelled to contribute money- to support politics ideas, and candidates which he .”4 opposes. . .
On remand, testimony, admissions stipulations and showed without dispute that union funds collected from fees and dues, assessments were regularly used support and oppose various and economic programs, candidates, parties and ideological and causes, complaining employees opposed were to many of the posi- tions the unions took these matters. The trial court made lengthy findings, one crucial being: here
“Those funds have been being and are used in substantial amounts to propagate political and 4 Looper Georgia 279, 284, 213 Ga. Southern Co., & F. R. S. E. 2d 104^105. ideologies concepts doctrines, economic opposed plaintiffs programs legislative promote they represent.” class and the Eleventh 2,§ declared then found court The trial *36 isor it permits, that extent to the “unconstitutional plaintiffs from of funds the exaction permit, to applied pur- of complained the for they represent class and the mem- Compulsory above.” set forth and activities poses abridge to was held circumstances these bership under thought, association, of freedoms Amendment First of the basis On expression.5 political press speech, the defendants enjoined all trial court holding the . . . shop agreements union the enforcing said “from any member or discharging petitioners, from remain or become refusing to represent, for they class to, assessments fees, or dues, periodic of, pay or members however, defendants, provided, labor any of the court petition time may at that said defendants they no showing that a upon injunction dissolve said to activi- and unlawful improper in the engaging are .longer to referred the activities Again, above.” described ties fees, dues collected union funds the use of were ideological, parties, or candidates, support to assessments contrary to the wishes views or economic that also decreed The trial court employees. complaining under compelled been had employees who three because and assessments fees dues, pay protest those to have were entitled union-shop agreement returned. payments holding affirmed, Georgia Court Supreme
The his fruits of to contribute compelled iswho “[o]ne violated as enforced section also held trial court First My as to the view Tenth Fifth, Ninth and Amendments. under unnecessary me the claims to consider it Amendment makes other Amendments. support promote political labor or economic or pro- grams support public candidates for just office is as much deprived of his if speech freedom of as he were compelled give his vocal support doctrines he opposes.” I fully agree holding with this Georgia Supreme Court and would affirm judgment its with certain modifications the relief granted.
I. Section 2, Eleventh of the Railway Labor Act author- izes unions and railroads to make union-shop agreements notwithstanding any other provision of state or federal law. Such a simply contract that no person means can keep job with the contracting railroad unless he becomes a member of and pays dues to the contracting union. Neither § Eleventh nor any part other of the Act con- *37 tains implication or even a.hint Congress wanted limit purposes to for which a contracting union’s dues should or spent. could be All the to parties litiga- this tion agreed have from its and still beginning, agree, that there is no such limitation the Act. The Court never- in order to theless, avoid questions, constitutional inter- prets the Act itself as barring use of political dues for purposes. In doing this I think Court is once more “carrying the doctine of avoiding questions constitutional 7 ato wholly unjustifiable extreme.” In I fact, think the Court actually is rewriting 2,§ Eleventh to make it mean exactly what Congress refused to make it mean. The very legislative history relied on Court appears to me to prove that its interpretation 2, of § Eleventh is without justification. For that history shows that Con- gress with eyes its open wide passed that section, knowing that its broad language would permit the use of union dues 6 27, 46, 215 Ga. 796, 108 S. E. 2d 7 Clay v. Sun Office, Insurance 363 207, U. S. (dissenting opinion). parties, candidates and doctrines, laws, causes, to advocate not.8 objected members Under individual whether right has a Congress I think such circumstances it constitutionality of the statute determination the stat- than have the Court rewrite rather passed, constitutional avoiding decision of in the name of ute questions. doing is is to the Court end result what
The I rights unions of deprive as to statute so distort this the same time, them and at give tried to think Donohue, decided companion Lathrop case of in the to hold that inte- itself free later p. 820, leave today, post, constitutionally exercise can associations grated bar unconstitu- for fear of to labor unions now denied powers alike raised question The constitutional tionality. soon with come back here Lathrop is bound to case and cannot the Court meticulously perfect a record so law- then hold that it. the Court deciding Should escape constitutionally compelled pay can yers and workers the result would they against, are support of views for the case this have lost their labor unions would be that compelled specific problem dues for of use of hearings during the floor debates. purposes both the was raised Hearings Committee on Labor 3295, on of the Senate S. Subcommittee Hearings Sess., 316-317; Welfare, Cong., pp. on 81st 2d and Public Foreign Commerce, Interstate H. R. House Committee on Cong., Sess., p. 160; Cong. 17049-17050. 2d Rec. 81st Again, Potter introduced his amendment when Senator bargaining compelled and related to limit the use of dues collective “the purposes, pointed *38 floor of the Senate that fact he out on the organizations, dis- practices in some of our labor that under current support financially politi- being are denied the freedom not to senters may they oppose.” ideological or other activities which cal hardly on Cong. that the debate 11214. It could be contended Rec. any generally defeated, held belief proposal, indicated his which was 2, already proscribed under compelled was that such use of dues § Cong. 11214— existing Rec. other statute. See Eleventh or 11224, 11330-11347. the inte- basis while statutory-constitutional
year on after on year year or the its case next would win grated bar for the part of the basis that constitutional ground Yet today groundless. was the unions holding against statutory construc- that the Court’s suggested no one has supported with- possibly be 2, tion of Eleventh could § is unconstitutionality. This out the crutch of its fear avoidance of the constitutional why I think the Court’s wholly unfair to the unions today in both cases issue I must consider this case on the Congress. as to as well constitutionality Elev- my belief as to the basis of compulsion of workers interpreted so as to authorize enth, causes advocating for use dues to a union pay protesting workers are candidates against.
II. the same precisely It is the unions that contended here was considered question presented First Amendment Hanson, Railway Employes’ Dept. and decided I agree clearly it was not. Section U. S. there before it became effective challenged Eleventh was opinion noted, main as our grounds attack, deprive em- union-shop agreement were that would First ployees of their freedom of association under the property rights Amendment and of their under the Fifth. There not in the Hanson as there are alle- case, here, were gations, proof findings regularly that union funds being support political parties, were used to candidates ideological and economic and causes to which the com- plaining employees opinion were hostile. Our Hanson carefully pointed only “[wjide- fact that general to the under the First Amend- ranged problems” were tendered . . . imposition ger- ment and that of “assessments bargaining” present mane to collective would “a different problem.” emphasize further The Court went on *39 dues, if at another time “the exaction of initiation forcing ideologi- is used as a cover for fees, or assessments conformity cal or other action contravention of will not judgment prejudice First Amendment, in that case. . . . only require- decision We hold support ment for financial of the collective-bargaining all agency by who receive the benefits of its work is within the power Congress under the Commerce Clause either, and does not violate the First or the Fifth Amendments.” Thus the Hanson only case held that workers could be required pay their part of the cost of actual bargaining- by carried on a union bargaining agent selected as under authority Congress, just as Congress doubtless could have required workers to pay the cost of such bargaining it had chosen to have the bargaining carried on Secretary of Labor or any other appropriately selected bargaining agent. The Hanson case did not hold that railroad compelled could be forego workers law to their constitutionally protected freedom of association by participating as union against “members” their will. That cannot, case therefore, properly be read to rest on principle which would permit government further- —in ance of public some be that interest, interest actual or imaginary compel membership Rotary Clubs, —to fraternal organizations, religious groups, chambers of commerce, bar unions, labor associations, other private organizations Government may decide it wants to subsidize, support or In control. a word, the Hanson case did not hold that the existence of union-shop contracts could be used as an excuse to force workers to associate with people they do not want to associate or to with, pay their money support they causes detest. id., S., 235, 236, 351 U. at (concurring See also at 242
opinion).
III. *40 provides: The First Amendment an estab- respecting make no law “Congress shall free exercise prohibiting or the religion, lishment of speech, or of the freedom of thereof; abridging or people peaceably right or the of press; for a petition and to the Government assemble, grievances.” redress of suggest Congress could, no one would that with-
Probably workers, Amendment, pass taxing out a law violating (even create a any persons lawyers), or for that matter parties in or helping political fund to be used certain their candi- groups by favored the Government to elect promote Compelling dates or their controversial causes. a by pay money man law to his to elect candidates or against only advocate laws or doctrines he is differs if him degree, all, compelling speak at law to a very a a cause is candidate, party, against. or he reason First people for the Amendment is to make the of this country think, speak, worship free to write and as they wish, not as the commands. Government
There is, course, why of no constitutional reason a private may spend union or other group not its funds for ideological voluntarily causes if its members join it and can voluntarily get out of it.10 Labor unions made up voluntary members free to get or out of they unions when please played important have useful in politics roles and economic affairs.11 How to spend money its is question a for each voluntary group to decide for itself the absence of some valid law for- 10See Artists, DeMille v. American Federation Radio 175 P. 2d 851, (Cal. App.), aff’d, 147-149, 854 Dist. Ct. 31 Cal. 2d P. 775-776, denied, 2d cert. S.U. O., 106, 144 United States (concurring opinion). v. C. I. 335 U. S. But money spent.12 activities for bidding steps law a federal when arises situation a different at carry on activities group a such and authorizes to be members choose do not persons who expense a even law, do. Such as those who as well group in a used cannot be Congress, validly passed though freedoms defined specifically abridges way abridg- is such there And whether First Amendment. also but is written the law on only how depends ment it works.13 on how sanctioned federally no doubt can be
There takes actually works, it as here, union-shop contract it over and turns men of some earnings of the part so funds part a substantial spend who others, *41 and political, economic to thwart efforts received forced money been has those whose hopes of ideological injects This federal law. authority of them under a processes, ideological and political compulsion into agree everyone would supposed I have which result prevent. intended particularly was Amendment First and political urged, as is if, it makes no difference And adjuncts collective helpful are legislative activities the same could employers make Doubtless bargaining. 12 Co., Storage 336 S. Giboney Empire & Ice U. g., See, e. 2, very same respect to case, this § Hanson with held We authorizing union statutory provision though Eleventh, that even declares expressly “which only provision, permissive, that shops is power au and source of superseded,” is “the law is that state and or sacrificed” any rights are lost private thority which the Constitution governmental on “the action therefore is per is though 2, Eleventh S., at 232. Even operates.” 351 U. enacting it fully when form, was aware missive shops of union establishment would be the certain result almost testified so industry. after witness throughout Witness railroad seriously testimony never bill, was hearings and during the on the Hearings passim; supra, 8, Hearings note on S. disputed. See 8, passim. note supra, H. R. on arguments in compulsory favor of contributions to an association of for use in employers political and economic programs calculated to help bargaining collective on their side. But argument is equally unappealing whoever makes it. The stark fact is this Act of Congress is being used as a means to exact money from these em- ployees to help get votes to win parties elections for candidates and to support they doctrines against. are If this is constitutional the First Amendment is not the char- ter of religious liberty its sponsors believed it to be. Madison, James who wrote the said Amendment, in arguing for religious liberty that “the same authority contribute, which can force a citizen to pence three only of his property for the support any one establishment, may him force to conform to other establishment all cases whatsoever.” And Thomas Jefferson said that “to compel man to furnish contributions of money for the propagation of opinions which he disbelieves, sinful tyrannical.” These views of Madison and Jefferson authentically represent the philosophy em- bodied in the safeguards of the First Amendment. That Amendment leaves the Federal power Government no whatever to compel one man to expend his energy, his time or his money to advance the fortunes of candidates he would like to see defeated or urge ideologies and causes he believes would be hurtful to the country.
The Court holds that 2,§ Eleventh denies “unions, over an employee’s objection, the power to use his exacted funds to support political causes which opposes.” he While I do not so construe 2,§ I Eleventh, want to make clear I believe the First Amendment bars use of dues extorted from an employee by law for promotion of causes, doctrines and laws that unions generally favor to 141 Stokes, Church and State in the States, (1950). United
15Brant, James The Nationalist, Madison: (1948). purposes. any as other as unions, well help their own views right as much to I workers have think views they have to as affecting unions matters about and economics. politics of in the fields matters other about are strongly held views most some of their Indeed, just as unions, subject of on precisely to be apt of selection reform, procedure, court lawof questions jus- of the “administration of aspects and other judges most irrecon- deepest and of the rise to some give tice” my view, § In among lawyers. differences cilable to than no more constitutionally authorize can Eleventh purpose for the sole to a union pay dues make a worker agent. bargaining his acting as defraying the cost individuals compel power more has no Our Government it than publications union or programs support employer political programs, support compel has Amendment, And the First programs. church programs or power of all deprives the Government construed, fairly his against single penny one out any person pay make or views doctrines way to advocate to be used will scientific, political, economic, whether against, he is any other.16 religious of the Rail- 2,§ hold Eleventh therefore
I would union- of the authorizing application way Act, Labor are who employees protesting named contract to the shop speech guarantee the freedom of here, violates appellees First Amendment. IV. remedy:
The the rail- unions and enjoined the Georgia court the contract activities under from certain future roads by three em- dues paid required repayment also support funds to use of union protested who ployees had 1,S. Education, 330 U. Everson v. Board Cf. *43 792'
candidates or advocate views the protesting employees against. were
I am not so sure as the that injunction Court bars “the collection of all anyone can funds who show that opposed he is to the expenditure of of his money purposes disapproves.” which he con- So injunction strued the away would take the First Amend- right ment of employees to money contribute their volun- tarily to a collective support fund be used to oppose candidates and causes even though individual contributors might disagree with particular choices of the group. So far as may it ambiguous respect, in this I think injunction should be modified to make sure it does not interfere with the rights valuable citizens to make their individual voices heard through voluntary collective action.
For much the same basic reasons I injunc- think the tion is too broad that it runs only in favor of the six protesting employees but also favor of the “class they represent.” No one of that “class” is shown to have protested at all. The State Supreme Court nevertheless rejected the unions’ contention the so-called class was so indefinite, and its members lacking so common, identifiable interests and mental attitudes, that a decree purporting to bind all of them, the railroads, the indi- vidual defendants and unions, would not comport with the process due requirements of the Fifth and Four- teenth Amendments. For reasons to be I agree stated, with this contention of the unions and consequently would hold that the judgment here cannot stand insofar as it purports finally adjudicate rights as between the party defendants and railroad employees who were neither party named plaintiffs nor intervenors the suit.
The trial court defined the “class” as composed of “all non-operating employees of the railroad defendants affected by, opposed to, the . . . union shop agree- *44 collection and use of opposed also are to the ments, who support of ide- dues, fees and assessments periodic legis- candidates and doctrines and ological political here, to the facts programs applied . . . .”17 As lative only employees as could include class, defined, this North Florida, Alabama, but also- from Georgia, from Louisiana, Carolina, Tennessee, Illinois, Carolina, South Mississippi, Kentucky Indiana, Missouri, Virginia, Ohio, class actions and the District of Columbia. Genuine each judgments against either for or binding result a Obviously, judgment of the class.18 to make member operate it is to parties against for or whom binding, is rendered. judgment must be identifiable when the only employees That here since the possible would not be personally included in the class would be those who is their dues oppose they allege using the views the union depend “class” on the promote. to This would make the may member, views entertained each views change day day year year. to to these Under this was rendered neither the circumstances, when decree know, parties anyone court nor the adverse nor else could what unions owed a certainty, with to individuals the Lee, Hansberry In S. duty under the decree. v. U. employees The trial went on to in the class other court include opposed any purposes who the use “other than of union funds for negotiation, agreements and administration of con maintenance cerning working wages, hours, pay, conditions, or rates of rules and employment handling disputes terms or other conditions of or the of relating Georgia opinions to the I read the two Su above.” limiting holding precise question preme Court, however, its to the as legal by the'compulsory re whether the First Amendment is violated partly- quirement employees pay dues and other fees which are propagate ideological used to views obnoxious to employees. consequently I do not reach or consider the different question lurking part in this of the trial court’s definition class. Cauble, See, g., Supreme Ben-Hur e. Tribe 255 U. S. insuperable obstacles pointed this Court out
32, 44, of the same class treat as members attempting the one some of whom here, a contract such as parties enforced and some might to have the contract prefer rights are persons Notice to whose might whom not. system an element of our adjudicated important too action justice Georgia permit holding issues for all the unidentifi- finally has determined the spread terri- plaintiffs able members of this “class” of and from the torially way all the from Florida to Illinois all class suit District of Columbia to Missouri. After *45 exception to only judicially doctrine is a narrow created who controversy litigants the rule that a case or involves duly given opportunity have been notified and an to be I present by in court either or counsel.19 would person among hold that there was no known common interest justified the members of the described class here which very rights this class action. From the nature the of asserted, depended unknown, perhaps which on the fluc- tuating mental attitudes of the employees, rights each employee were the separable basis for which claims, the might vary relief for each as it did as here to the amount damages awarded. these circum- Under stances judgment the class should not stand. decree,
The modified to eliminate its class aspect, does not unconditionally forbid the application of the contract all people to under all as did circumstances, the one we struck down the Hanson case. The decree so modified would simply forbid use of the union-shop contract bar to employment of six protesting employees long so as the unions do not discontinue practice of spending support any union funds to causes or doctrines, political, economic or other, expressed over the objection of the six particular employees. employees Other who have not
19 Hansberry Lee, S., Cf. 311 U. at 41-42. entirely position different course protested are of have they payers, dues acquiescing voluntary have asked for no relief they and since be, every right Thus not affect them. in this case should the decree decree is by afforded I think the relief modified justified. dues, refund fees requires the union to
The decree complain- under three of paid protest assessments complaining employees six exempts ing employees dues, fees or assessments payment from the by the union to funds so received are used long so as court found they against. are The promote causes state made these had been and would be payments these compelled join been only they because had employees despite objections the union to save their jobs, candidates, long so as it used its funds for paying the union wishes. ideologies contrary employees’ to these parties and but neverthe- challenge finding does not this Court payment workers of all relieving protesting less holds statu- the union’s dues somehow interfere with would place, In first bargaining agent. as a tory duty to act only with union’s activities interfere would payments it of dues compulsion extent that bars *46 in part be some unknown for workers to used protesting perfectly proper and I think it purposes, unconstitutional Fur- compelled. cannot be payments to hold that such remedy suggested by I the Court will think the thermore, bargain- interference with the union’s greater work a far trial impose greater because it will much ing activities workers. burdens on both unions and accounting and remedy give wronged employees is to The Court’s of the proportion a refund limited either to "the right to total made for such activ- expenditures union’s expenditures . . . “proportion ities” or to the [of] had the union political purposes which he advised he lawyers that courts and disapproved.” may It with trigo- algebra, geometry, in skill accounting, sufficient proper will be able to extract nometry and calculus complex answer from the voluminous and microscopic local, national and international accounting records that while me, however, unions involved. It seems to prove very special lucrative to remedy may the Court’s with its masters, lawyers, formula, accountants and this hope trial little for financial burdens, promises attendant recompense to the individual workers whose First Amend- flagrantly ment freedoms have been violated. Undoubt- exploration at the conclusion this account- edly, long ing many intricacies, plausibility courts could with dismiss only the workers’ claims as de minimis when measured dollars and cents. agree
I to treat so lightly cannot the value of a man’s right wholly constitutional to be free from sort gov- compulsion ernmental in the expression opinions. It should not be forgotten many men have left their native lands, languished prison, even lost their give support rather than lives, they to ideas were con- scientiously against. The three workers paid who under protest here were forced under authority of a federal pay statute to all current dues or jobs. They lose their get should all they paid back with interest. composed
Unions of a voluntary membership, like all other voluntary groups, should be free in country fight to public forum to causes, advance own promote their choice of candidates parties and to work for the doctrines or the laws they favor. But to the extent that Government steps people help force espouse particular causes of a group, group— composed whether of railroad lawyers workers or —loses its status as a voluntary group. The reason our Consti- tution endowed individuals with freedom think speak and advocate was to free people from the blighting *47 effect of either a partial or a complete governmental monopoly of ideas. Labor unions peculiar have been that salutary beneficiaries of constitutional principle, I lawyers, think, charged peculiar are with a responsibility preserve protect principle of constitutional freedom, even for A it, themselves. violation of however inis, my judgment, prohibited by the First Amend- small, ment and stopped should be dead in its tracks on its first appearance. With so vital a I principle stake, at cannot agree to imposition parsimonious limitations on the kind of decree the courts below can fashion their efforts to afford protection effective to these priceless constitu- rights. tional
I would affirm the judgment Georgia Supreme of the Court, with the modifications I suggested. have whom Mr. Justice
Mr. Har- Frankfurter, Justice joins, dissenting. lan
Appellant unions were bargaining the collective rep- resentatives of the “non-operating” employees of the Southern Railway. Appellees, railway six individual employees, commenced this Superior action Court County, Bibb Georgia, seeking a declaration in- validity and an injunction prevent enforcement aof union-shop agreement, made under the authority of 2,§ Eleventh Railway Labor as Act, amended ground on the that the contract inwas violation of Georgia law and rights secured First, Fifth, Ninth, and Tenth Amendments of the United States Constitu- tion. The suit was brought as a class action on behalf of “all employees those or former employees of the railroad defendants affected by and opposed union-shop to the agreement who opposed are also to the use of periodic fees and dues, assessments which they been, have are and will be required to pay support ideological and political doctrines and candidates and legislative pro- grams. . . .” The monthly dues ranged $2.25 *48 and opposed plaintiffs the alleged petition The
$3. “ideological the support voluntarily to unwilling were for and candidates” doctrines political and union- the under collected were assessments dues “in substantial used and would be shop agreement support.” ... part dismissing the com- decision trial court’s Georgia
The was reversed of action a cause failure to state plaint E. 99 S. 213 Ga. Georgia. Supreme Court by the above stipulated the parties the Upon remand, 2d 101. amount proof of the offered plaintiffs and the allegations, political, legislative, the went to funds which of union and the con- of the unions departments and educational made, The trial court of the AFL-CIO. trolling organs alia, unions’ funds had following findings: inter promote amounts” to in “substantial expended been programs which the legislative political doctrines in “sub- these funds had been used plaintiffs opposed; upon plaintiffs . . . con- impose stantial amounts formity doctrines”; to those such use of funds was “not reasonably necessary bargaining to collective or to main- union defendants taining position existence of said as bargaining agents.” effective The need of unions to engage loosely political what are described as activities pur- as means of promoting achieving not —if —the poses existence, practice the extent to which part has become an essential of the American labor move- particularly ment and more of railroad labor unions, relation of bargain- these means to ends of collective ing, judicially were matters not canvassed at trial nor it slightest noticed. Nor was claimed that barrier had interposed against plain- been the fullest exercise tiffs of their speech any freedom of form or forum. these matters were canvassed, Since no find- ings upon them were made. permanently enjoined
The trial court enforcement engage long so as the unions continued agreement It described.” improper “in and unlawful activities Railway Labor Act uncon- declared Eleventh of the of dues permitted stitutional insofar as it the exaction promoting utilized so-called activities disapproving expenditures. union members such the dues and assess- repay unions were also ordered to *49 plaintiffs. the individual The previously paid by ments affirmed this 215 Ga. Georgia Supreme judgment, Court appeal Court, E. 2d and on to this under 27, 796, 108 S. noted. probable jurisdiction 28 C. 1257 was (1), U. S. S. 807. U. guiding principle I defer the that completely to entertaining abstain from a serious constitu- Court will question may fairly tional when a statute be construed accept am unable to issue, so as to but avoid interpretation gives the Court to § restrictive Railway quoting Labor Act. After Eleventh of adjudication the relevant canon for constitutional Fuey Moy, 394, 401,1 United States v. Jin U. S. the whole Court enunciated Mr. Justice Cardozo for complementary principle: difficulty pressed
“But of a will not be avoidance the inten- point disingenuous evasion. Here distinctly to is revealed too tion of misgivings it mere permit ignore us to because of must be faced power. problem as to The Rose, Moore Ice Cream Co. v. 289 U. S. answered.” against avoidable conflict with precept The Court-devised Congress through unnecessary adjudication constitutional fairly construed, possible, so as to avoid “A statute must be if grave only but also doubts the conclusion that it is unconstitutional upon that score.” in order distort an enactment a requirement
is not for doctrine Respect escape adjudication. such interpreta- extract an that we only permits demands controversy, provided off constitutional shies tion which a reading fair is consonant with interpretation such statute. Eleventh whether 2,§ us is question before
And so the be read untorturingly Act can Railway Labor bargained have railway unions, which bar activities of whereby shop, a union law for with federal accordance purposes union dues spend are forbidden to they as long pursued so extensively been uniformly and have trade- settled, conventional commonplace, to have become to construc- relevant No consideration practices. reading. such a restrictive tion sustains con- meaningfully statutory provision cannot presupposition against background except strued American activity of loosely called of what in particular— unions and railroad general trade unions relating to the immediate economic activity indissolubly *50 unions. that are the raison d’etre of and social concerns familiar heavily to document this pedantic It would trade- commonplace and history industrial truth of Brotherhoods, the history write the union life. To Amal- Workers, Steel the Workers, Mine the United Ladies Workers, the International Gar- gamated Clothing and leave out Workers, Auto Workers, ment the United expenditures and political so-called activities their a it to recall sheer mutilation. Suffice them, would be surely the AFL, few illustrative manifestations. early as as 1893 an group, sponsored conservative labor for com- political calling extensive demands program tort lia- pulsory education, eight-hour day, employer an fiercely contested and other social reforms.2 The bility, 2 (1957). Gompers, p. Taft, The A. of L. in the Time of 71 F. New, S. see Wilson U. Act of Adamson railway pressures result of was a direct President.3 and the Congress upon both exerted “Labor” —an publication weekly specifically, More 1919 been in this case—has since attack expenditure under it. finance brotherhoods which organ of the railroad leg- with years preoccupation show its through Its files interests of labor’s that touch the vitals islative measures This them. effectuate parties with the men and who as inured organic, as side—is aspect it the —call unions as railway practice part philosophy of the concerns. immediate bread-and-butter text, in the absence in there is a total light, this Viewed legislation history purpose and the context, Congress, authoriz- indication that under review of to unions attributed ing union-shop agreements, scope of non-prevalent artificial, an restricted them to An inference their funds. expenditure in the activities control regarding expenditure Congress legislated that ought to be better practices prevailing contradiction the 1951 The aim-of complete than silence. founded on reports, congressional in the stated legislation, clearly make industry4 “free riders” was to eliminate —to all maintenance burden of sharing of the possible “the suggest To activity.” of union of the beneficiaries encompass any less than covertly meant-to language normally engaged activities maintenance of those say and to life fro'm law unions is to withdraw railway and not with dealt with artificialities functioned. they as they as were and unions States, 1896- History the United Taft, of Labor in Perlman and 1932, pp. 380-385. *51 4 Cong., 2262, 2d Sess. 2-3. Rep. S. No. 81st 5 Inter on Harrison, Hearings, House Committee Remarks of Mr. Sess., p. 253. Commerce, Cong., 2d Foreign 81st state and slightest support and debates lend not the hearings which would restrict of the amendment to a construction n time had, union funds at the of uses to which To be amendment, conventionally put. been union-shop spell does not out the obvious. sure, legislative record unions’ any showing of concern about The absence especially when expenditures “political” areas — buttresses the conclusion briefly only issue was raised6 — that Congress that intended to leave unions free to do doing. surely which had and were It unions been fanciful to conclude that this vacuity implies verbal providing meant its amendment to be read as may solely members of the union restrict their dues for financing process the technical bargaining. collective specific safeguards protective
There were minority rights. safeguards These solely were directed toward protection might those who them- otherwise find membership viz., Negroes selves barred from union — long-time those who had been opponents of the only unions. The speech reference to free in the record enactment was made the President of the Nor- folk & Company Western Railroad during the hearings before the House Subcommittee. His remarks were related provisions to restrictive in some union consti- tutions suppressed right of a dissatisfied member to voice his criticism upon pain expulsion.7 No such claim is remotely before us.8 The sole reason for clarifying proviso to the amendment so that payment Cong. 17049-17050; Hearings, Rec. Subcommittee of the Senate Committee on Labor and Public Welfare on S. 81st Cong., Sess., 2d pp. 173-174. Smith, Remarks of Mr. Hearings, House on Interstate Committee Foreign Commerce, Cong., Sess., pp. 81st 2d 115-116. 8 Compare Railway Employes’ Dept. Hanson, 351 U. S. 236- 237, n. 8. *52 legitimate only be the to declared explicitly dues was
of fear of continuing the membership was of union condition nois There minorities. unpopular protection of lack references. the any in of expenditures mention not to find strange it of material wasteland this From impinge- possible over concern congressional “A that only from union dissenters individual interests the ments on a that discernible so but discernible,” is therefore policies neither that statute the upon placed must be construction remotely life of union habits accustomed terms nor the its justify. sug- time at interest parties the
None be construed statute the that possibility the gested States, the United Neither suggested. now manner the the unions, the railroad members, dissident individual the Executives' Railway Labor AFL-CIO, the railroads, that suggested curiae amicus any other nor Association, now manner in the emasculated be could statute absence by the confined we are course Of proposed. construction a that significant it is but claim, a such to occurred never reasonable to found now here. arguments two in the litigants it silentio sub Congress attribute I cannot union-shop agree- a under railway unions to bar meant traditional their funds expending ment least at give been have it would easy How manner. that these claim purpose. its was hint that such a rights constitutional appellees’ infringe expenditures faced. therefore be must Amendment First under Hanson, S. 351 U. Dept. Railway Employes’ In 2, Eleventh validity §of on the pass had Court union-shop provided Act, Railway Labor duly a carrier between into entered agreements notwithstand- be valid shall organization labor designated States, the United or law of “statute any other ing Territory thereof, or of any State.” We held that its exercise of power regulate commerce, “the choice of the union shop as a stabilizing force industrial disputes] [in seems to us to be an allowable one,” and that plaintiffs’ claims under the First and Fifth Amendments were without merit.
The record before the Court Hanson clearly indi- cáted that dues would be used to further what are nor- mally described as legislative ends. And it can surely be said that the Court ignorant not was of a fact that everyone else knew. Union constitutions were in evidence which the authorized use of union funds for political magazines, for of support lobbying groups, and for urging union members to vote for union-approved candidates.10 The contention now by plaintiffs raised
9 pertinent The portion of the section follows: “Notwithstanding any provisions other of chapter, any this or of other statute or law of the States, United Territory thereof, or or of any State, any carrier or carriers as chapter defined this organization a labor organizations or labor duly designated and represent authorized to employees in require- with accordance ments of this chapter permitted— be shall “(a) to make agreements, requiting,'as a of condition continued employment, sixty days within following the beginning of such employment, or the effective of date such agreements, whichever is later, employees all shall become organiza- members of the labor tion representing their craft or class: Provided, That no such agreement require shall such condition of employment respect with to employees to membership whom is not upon available the same terms and generally conditions as are applicable any other member or respect with employees to whom membership was or denied terminated for reason other than the employee failure of the periodic tender the dues, fees, initiation (not and assessments including penalties) fines and uniformly required as a condition of acquiring retaining or membership.” 64 Stat. U. S. C. 152,Eleventh. provisions See the of the constitutions of the Brotherhood of Maintenance of Way Employees, the Railway Brotherhood of Carmen America, and the International Association of Machinists before the Court in the record, Hanson pp. 103-143. in their plaintiffs Hanson stated succinctly
was merits deciding were that we indicated brief.11 We before proof allegations and all the on complaint infringe- more an is no there present record, “On us. than rights First Amendment impairment ment or law by state who lawyer case of in the there would bar.” integrated of an be a member required is at 238. S.,U. reasoning disposed Hanson’s suppose that
One would however, Court, Supreme Georgia suit. present lower by the of the action initial dismissal reversing opinion: in our following reservation upon court, relied assessments fees, or dues, initiation “if the exaction conformity other ideological forcing cover for used as a Amendment, First contravention action in case.” the decision prejudice judgment will promote dues to The use of at 238. S., 351 U. *54 for purposes realizing means and effective relevant a utilization not constitute exist which unions does conformity” ideological forcing “as a cover for dues startling as come It will reading fair of those words. any whole and the railroad unions news to the and fanciful promoting funds for using union that in labor movement of concern to measures legislative opposing operations. in under-cover they engaged were members . . . “forcing sham; some disguise, implies “Cover” enter- of a belief not coercing avowal means conformity” to such way subjected in no are Plaintiffs here tained. views sponsorship or true beliefs of their suppression a sham join they are forced they do not hold. Nor bar- collective participate organization which does funds a conduit serves as only but functions, gaining different totally problem A ideological propaganda. by presented Court would before the than one prohibited in fact constitutions of union provisions 16-17, brief, pp. Appellees’ sponsoring members from views op- which the union or posed,12 sponsor which enabled officers to views not representative of the union.
Nevertheless, unanimously plaintiffs we held Hanson not been protected had denied right First Despite Amendment. holding, gist our the complaint here is that expenditure portion of a of mandatory funds for political objectives denies free speech right speak or to remain silent —to mem- —the constituted, bers who oppose, against authority of desires, this use of their union dues. No one’s desire power speak or his mind is checked or curbed. The may individual express member his in any public views freely private forum as as he could before the union collected his dues. Federal taxes may also diminish the vigor with which a citizen can give partisan support to a political belief, as yet but no one would place such an impediment to making one’s views effective within the reach of constitutionally protected “free speech.”
This is fine-spun too a claim for constitutional recog- nition. The framers of the Bill of Rights lived an era when overhanging threats to conduct deemed “sedi- tious” and lettres de cachet were current issues. Their concern was in protecting the right of the individual freely to express especially his political beliefs— himself — in a public forum, untrammeled punishment fear of or of governmental censure.
But were we to assume, arguendo, plaintiffs have alleged a valid objection constitutional if Con- *55 gress had specifically ordered the result, we must con- 12“B. The Lodge Grand Constitution of the Brotherhood Rail way Carmen of prohibits America ‘interfering members from with legislative affecting matters national, state, territorial, dominion or provincial legislation, adversely affecting the interests of our members.’ 64.” 351 S.,U. 237, at n. 8. and the compulsion such difference between sider the platoni- as Congress acts when compulsion absence Congress way. wholly in a non-coercive did, as it cally only employ railroads shall that the has not commanded of authorized unions. are members those workers who representa- a bargaining leave to only given has Congress workers, by majority democratically elected tive, arrived provision contractual particular into a to enter bargain- duly safeguarded give-and-take at under the distortion of statute forbids procedures. (The ing through racial dis- as, for procedures instance, these Co., 323 Louisville & Nashville R. crimination. Steele v. this vital distinc- 192.) Congress emphasized itself S.U. No. compulsion. Rep. S. tion between authorization And this Court Hanson 2d Cong., 81st Sess. Railway shop provision of the noted that “The union . . Congress has not . only permissive. Act is Labor shop employees to enter into required carriers speak at 231. we agreements.” S.,U. When “acting” permitting shop, the union Government what has done must be scope Congress and force of involved— compulsion a trace of heeded. There the freedom of by Congress no exercise of restriction on Congress contrary, the carriers and the unions. On the lim- lifted expanded their freedom of action. arm’s at upon by parties bargaining itations free action length.13 severely go beyond the ignore this would be far To distinction Butler, States case of United
criticized, discredited, indeed rather processing tax implications in the 297 U. S. which found coercive Agricultural dissenting Mr. Adjustment views of Act. may Cardozo, JJ., Stone, Justice concurred in Brandéis and day: “Although placed surely the farmer is be said to have won the legal compulsion acreage, said that the mere under no to reduce it is doing species compensation for so is a of economic coercion offer legal though the operates effect as with the same force and *56 808 have,
The plaintiffs not been deprived right participate determining policies or to assert respective weight defining purposes for which union may expended. Responsive dues to the actualities of industrial our which society, unions as play such role that they do, the law regards a union as a self-con- tained, legal personality exercising rights and subject to responsibilities wholly distinct from its individual mem- bers. See United Mine Workers America v. Coronado Co., Coal 259 U. It S. is a commonplace of all organizations that a minority legally of a recognized group may at times see an organization’s funds used for promotion of opposed by ideas minority. The analogies are numerous. On the largest the Fed- scale, eral Government expends revenue collected from indi- vidual taxpayers to propagandize many ideas which tax- payers oppose. Or, as this Court in Hanson, noted many state laws compel membership the integrated bar as a prerequisite to practicing law,14 bar association curtailment mandatory were made Congress.” S., Act of 297 U. at 81. analysis For an leading Amendment to a narrow scope of its implications, constitutional see Wellington, Constitution, The Union, the Labor Action,” 345, “Governmental 70 Yale L. J. 352-360, 363-371. following The integrated States (Ala. have Code, bars: Alabama 46, 30); (Alaska Tit. Alaska Laws Ann. § 35-2-77o); 35-2-77a to § § (Ariz. Arizona Code 32-302); Ann. (Cal. California § Bus. & Prof. 6002); (Fla. Code Ann., Florida 31, Stat. pp. (court § Vol. 699-713 rule)); (Idaho Idaho Code 3-417); Kentucky 3-408 (Ky. § § §30.170); Rev. Stat. (La. Louisiana 37:211; Rev. IV, Stat. Art. Incorporation, Articles of La. State Assn., Dart, Bar Annotations 1950,p. to La. Michigan (Mich. Stat. 29); 27-101); Stat. Ann. Mis § sissippi (Miss. 8696); Code (Mo. Supreme Missouri § Court Rule xxix); (Neb. 352 Mo. Supreme Nebraska IV, Court Rule In re Integration Assn., Nebraska State Bar 133 Neb. 275 N. W. 265); (Nev. Nevada Rev. Stat. 7.270-7.600); (N. New Mexico Mex. Stat. Ann. 18-1-24); 18-1-2 to (N. North § Carolina C. § Gen. Stat. 84-16); (N. North D. 27-1202); § Dakota Rev. Code Oklahoma individual legislation urge funds its uses as is, case present disapprove. often members *57 from indistinguishable asserted, in Hanson Court difficulties constitutional find who those raised issues Hanson If our statement bar.15 integrated with recognition an unqualified it was meaning, carried bar, exercis- integrated an for providing legislation derived infirmity no subject to functions, is familiar ing the Securi- under Again, Amendment. the First authorized Congress specifically 1934, Act of Exchange ties mem- associations,” securities “national of formation many brokers necessity to practical is of bership of passage urged has Association The dealers.16 2d Oklahoma, 505, 95 P. Okla. 185 Integration the Bar (In re of of 6, approved October Supreme Court rules by Okla. 113, amended 1, 5, Part, Tit. c. Ann. Pocket Cum. Ann., 1960 1958, Stat. Okla. 9.010-9.210); South Dakota (Ore. Stat. Rev. 1); Oregon App. §§ 3); 320a-l, Stat., Art. (Vern. 32.1114); § Civ. Texas (S. D. Code § (Va. 78-51-25); Virginia Code (Utah Ann. 78-51-1 § Code Utah § Virginia 2.48.020); West Code (Wash. 54-49); Washington Rev. § § 256.31, 5 Wis. (Wis. Stat. 51-l-4a); § Wisconsin (W. Ann. Code Va. §5-22; (Wyo. Stat. 605); Wyoming 601, 2d 618, 627, 93 N. W. 2d 5). Bar, Rule for State Supreme Rules Wyo. Court 15 integrated bar upheld the have decisions reported, all as So far California, Bar Carpenter v. State attack. of against constitutional California, 24 Cal. Bar State Herron 23; 358, P. of 295 211 Cal. v. Assn., 2d Bar 40 So. State Florida 543; Petition 2d 53, 147 P. 2d Hadaway, Ayres 398; v. 2d Mundy, 41, 11 So. La. 902; In re 202 291; Scott, 24, P. 292 re Nev. In 905; 53 589, 2d 6 N. W. 303 Mich. 550, Gibson, N. Mex. In re 858; 35 2d Platz, P. 108 In re 60 Nev. 282, 298 Oklahoma, 148 Okla. Kelley Bar State 643; v. 4 P. 2d 2d 230, 102 W. Donohue, 10 Wis. 2d N. Lathrop 623; P. affirmed, post, p. Exchange the Securities 15A to Maloney of 1938 added § The Act be order to In 78o-3. 1070, S. C. Stat. U. § 1934. 52 Act of be met. must statutory standards registered, number a provide rules requires that an association’s specifically statute be dues membership and that of the representation democratic association, Only (6). (5) one (b) 15A See equitably allocated. applied Inc., ever Dealers, has of Securities Association the National confidently one can legislative several reforms17 which of all members. represent did convictions assume not the heart of the immediate is matter, To come closer to picket go of when to or to out on strike the union’s choice a form Picketing is still also unconstitutional? deemed surely but the union’s decision to strike under speech,18 an statutory aegis bargaining its as a unit unconsti- compulsion upon strongly tutional forced members who oppose strike, infrequently as minorities not do. Indeed, legislative reform intended to insure the fair representation minority workers internal union politics despite all if, precautions, would redundant constitutionally the union were forbidden because minority opposition spend money with accordance *58 majority’s the desires. granted registration.
for or been membership comprises NASD roughly three-quarters registered of all brokers and dealers with the Exchange Loss, Regulation Securities and Commission. Securities 1955). (1951, Supp. 766-67 (i) (n) Sections 15A and of the Act authorize stipulate the NASD to formulate rules which that members immunity refuse shall to deal with non-members with from the anti Rep. 1455, Cong., (1938); trust laws. See S. No. 75th 3d Sess. 8-9 op. cit., Loss, supra, 769-770. The Commission has stated that it is “virtually impossible for a dealer who is not a member of the NASD participate important in a distribution of size.” National Associa Dealers, Inc., 424, tion Securities 19..S. E. C. 441. 17 greatly In 1949 Senator Frear introduced a bill which would have expanded applicability the registration, proxy, of the and insider trading provisions Exchange corpora of the Securities Act to small 2408, Cong., supported tions. S. 81st 1st Sess. The NASD the passage proposed legislation, of the and testified on its behalf before Hearings the Senate subcommittee. Before Subcommittee of Senate Banking Currency Committee on 2408, Cong., on S. 81st 2d (1950); op. cit., supra, Loss, 620, Sess. 53-62 621. Alabama, To this extent 88, 101-106, Thornhill v. 310 U. S. has applied Newell, survived and was in Union v. 356 U. S. Chauffeurs 341. Cox, See Internal Affairs of Labor Unions Under the Labor 1959, 819, Reform Act of L. 58 Mich. Rev. 829-851. becomes are plaintiffs views of the unrealistic
How scheme legislative of the purpose of the light in manifest neces- practical shop union authorizing in matter of in as a what participate for unions sity activ- called may be fragmentation analytical Act, Railway Labor 1951 Amendment ities. in an effort to passed was Eleventh, 2,§ which enacted costs of collective sharing of equitable make more bargaining whom all the workers among bargaining Cong., No. 81st Rep. H. R. represented. agent on Interstate Hearings, House Committee 4; 2d Sess. 2d Sess. Cong., 81st on H. R. 7789, Commerce Foreign Senate Subcommittee 49-50; Hearings, 10, 11, 29, 81st on S. Public Labor and Welfare on Committee passage Prior to the 15-16, 130, 154, Cong., 2d Sess. in the union way which no Amendment, there was of this unit bargaining members non-union compel could seeking con- incurred expenses to the to contribute redound that would carrier provisions tractual reason The main employees. its of all advantage to the railroad shops had union law forbidden why prior to the Report stated the Senate industry is Amendment: all forms against prohibitions present
“The were check-off and the security agreements They Act in 1934. Labor Railway part made *59 background against law enacted into were as devices for estab- agreements use of these employer thus effec- unions, maintaining company lishing and employees number of a substantial tively depriving collectively. It is estimated right bargain of their between agreements were over in 1934 there unions. company to be alleged and unions carriers percent of over 20 represented agreements These industry. in the agreements total number “It was because of this situation organi- that labor agreed zations present statutory prohibitions against union security agreements. An effort was made to limit prohibition to company unions. This, however, proved unsuccessful; and in order to reach problem company control over unions, organizations labor accepted the general more pro- hibitions which deprived also the national organiza- tions of seeking security agreements and provisions. check-off . . .
“Since the enactment of the 1934 amendments, company unions have practically disappeared.” S. Rep. No. 2262, 81st 2d Cong., Sess. 2-3. See also H. R. Rep. No. 2811, 81st Cong., 2d Sess. 3. Nothing was further from congressional purpose than to be concerned with restrictions upon the right speak. Its purpose towas eliminate “free riders” in the bargaining unit. Inroads speech on free were not remotely involved in legislative process. They were in nobody's mind. Congress legislated to correct what it found to be abuses in the domain of promoting industrial peace. This Court would stray beyond its powers were it to erect a far-fetched claim, derived from some ultimate relation between an obviously valid aim of legislation and an abstract conception of freedom, into a constitutional right.
For us to hold that these defendant unions may not expend their moneys for political and legislative purposes would be completely to ignore the long history of union conduct and its pervasive acceptance in our political life. American labor’s initial role in shaping legislation dates back years.20 With the coming of the AFL in 1886, labor on a national scale was committed not to act as a 20 1 Commons, History of Labor in the United States, 318-325 (1918).
813 action political program a to maintain party but class British trade standards.21 its industrial in furtherance of of Com- the House members of supporting unions were Trades The Canadian early as as 1867.22 mons be the should political action in 1894 debated whether in a recent And labor force.23 objective of the main aof right upheld Court High case, Australian political a pay who refused expel a member union to have no Australia and Britain, Canada That levy.24 For one point. is beside First Amendment explicit in the First in terms safeguarded freedoms thing, British in the respected rooted and deeply are Amendment in Canada legal presuppositions part are tradition, and immediate con- to our And in relation Australia. and establishes experience the British Commonwealth cern, basic trade- realizing means for pertinence interests. Executive by the AFL-CIO revealed expenditures The participation labor’s emphasize Reports Council In the major one. is a candidacies and urging legislation Educa- Political on the Committee years, three fiscal last $1,681,990.42; a total of expended (COPE) tion Depart- Legislative $756,591.99; AFL-CIO News cost Yet the expenses $741,918.24.25 reported total ment were these funds has found trial court Georgia as collec- role to the unions’ reasonably related scarcely call this could One bargaining agents. tive even one bound, this Court of fact finding 21 Gompers, (1957); 289-292 Taft, A. F. of L. in the Time of (1948). Public, Management 215 Kerr, Unions, Bakke and 22 Movement, Working History Class Cole, of the British A Short 3 1937). (2d ed. 56 23 (1948). Canada, 59-60 Logan, Trade Unions (1959). Hursey, L. R. 269 33 A. J. William v. 1957, 1958, figures are the totals of These Convention, Proceedings AFL-CIO Constitutional reported in id., (1957). pp. (1959) 17-19 II, pp. 17-19 Vol. *61 in that flies dogmatic assertion
of law. It is baseless expendi- of unions’ listing It rests on a mere face of fact. passage publications. tures and an exhibit of labor eight-hour in 1916, establishing of the Adamson Act26 proof that day industry, positive railroad affords through legislation may labor achieve its desired result New, techniques after fail. See Wilson v. bargaining and hours are higher wages at 340-343. If shorter supra, bargaining collectively, in these prime ends of a union effectively by lobbying goals may often be more achieved sympathetic candidates. In 1960 support and the railway organizations at least labor eighteen there were registered congressional lobby groups.27 as down the list of
When one runs detailed national problems speaks, international on the AFL-CIO it seems rather naive for a court to conclude —as did trial court —that expenditures the union were “not reasonably necessary to bargaining collective or maintaining position the existence and of said union defendants as bargaining agents.” effective The notion political that economic and separable concerns are is pre-Victorian. Presidents of the United States and Committees of Congress invite views of labor on immediately matters not concerned with wages, hours, employment.28 and conditions of accepts And this Court briefs as amici from the AFL-CIO on issues that cannot be called industrial, any circumscribed sense. It is not true in protection life that is irrelevant to, from, insulated economic interests. It is not true for 26 39 Stat. 45 U. S. C. 65-66. §§ Representatives Letters from Clerk of Supreme House of May 5, 1960; Librarian, May 10, Court 1961. example, Stanley For a recent see the statement of H. Rutten- berg, legisla AFL-CIO, pending Director of Research for the tax on Ways Committee, reported part tion before the House and Means Times, May 12, 1961, p. 14, the New York col. It dis- labor. is it true for finance.29 Neither industry or authors men who were wise, hardheaded respects to conclude Rights our Bill of Constitution and of our the facts requires what government scheme that say “To Rutledge stated: As Mr. Justice reject. life con- value to nothing of as have such labor unions no vital process] process electoral tribute to [the facts of ignore the obvious in it interest legitimate inter- increasing of their economic life and political and CIO, States United society.” relationship in modern opinion joined 144 (concurring 106, 129, S.U. *62 ago this Fifty years Murphy, JJ). Black, Douglas, out- between was connection that there no Court held railroads on interstate contracts” “yellow dog lawry of therefore found unconstitu- commerce, and interstate agree- of these the evils against legislation directed tional of life with the facts more consonant Is it ments. States, Adair v. United holding in than was this today, National policies say that the tax 161, to 208 U. S. exemptions— rates and scheme Government —the workers; wages relation to the no close have Valley Tennessee developments like legislative lives of workers intimately Authority do not touch measures national regions; respective their within on directly bear not do education furthering health and sup- who workers; that candidates the lives industrial legitimacy of corporate is the question in the field A contested presents a not dissimilar This corporate contributions. charitable organization to may an authorize problem whether the Government which corporate business to money purpose outside expend for joined prior opposed. is A shareholder who an individual stockholder to have be cannot said and who therefore to the authorization member of directly as is the surely as affected impliedly consented Barlow, Mfg. J. 13 N. 145, Smith Co. v. shop. A. P. a union See a state against upheld constitutional attack federal A. 2d Jersey corporations to contribu make New which authorized statute were substantial. charity. The amounts involved tions port these movements do not stand in different relation to labor’s narrowest economic interests than oppo- avowed nents of these Is it respectful measures? of the modes thought of Madison and projected Jefferson into our day to attribute to them the view that the First Amendment must be construed to bar unions from con- cluding, by due procedural steps, that civil-rights legis- lation conduces to their interest, thereby prohibiting union funds to expended promote passage of such measures? was unaware that might railroad unions use mandatory these contributions furthering economic through political interests channels. See 96 Cong. Rec. 17049-17050. That consequences such authorizing compulsory union membership were to be foreseen had been indicated to committees of Congress less than four years earlier when the union-shop provisions of the Taf t-Hartley Act were being debated. Hearings, Sen- ate Committee on Labor and Public Welfare on S. 80th Cong., pp. 1st Sess., 726, 1452, 1455-1456, 1687, 2065, 2146, 2150; Hearings, House Committee on Education and Labor on H. 8,R. 80th Cong., Sess., pp. 1st 350, 2260. The failure of the Railway Labor Act amendments to exempt the member who did not choose to have his con- *63 put tributions to such uses may have reflected difficulties in drafting an exempting clause. See Hearings, Sub- committee of the Senate Committee on Labor and Public Welfare on S. 3295,81st Cong., 2d Sess., pp. 173-174. But in 1958, the Senate voted down a proposal to enable an 30 Proceedings See of the AFL-CIO Convention, Constitutional II, pp. (1959). Vol. 183-192
A recent leader of the London Times which reviewed the annual report of the British Trade Unions Council noted that the document concerned itself with political “Few . . subjects . . . . which have industrial sides.” The Times, Aug. 1960, London 23, p. 9, col. 2.
817 his any portion individual union member to recover of expended bargaining purposes.” dues not for “collective Cong. 104 Rec. 11330-11347.
Congress free is, course, legislation along to enact adopted whereby lines Britain, dissenting Great may members contract out of levies to be used political purposes.31 for “At the where the mutual point advantage of association demands too much individual disadvantage, compromise a must be struck. . . . When that point has been reached —where the intersection should plainly question special fall —is a within the province of legislature. . . . Even where the social undesirability may of a convincingly urged, law be invali- dation of by popular the law a court debilitates demo- government. cratic Most dealing laws with economic social problems are matters of trial and error. . . . But even if a law is found it wanting trial, on is better that its defects should demonstrated and removed than that the law by judicial should be aborted fiat. Such an judicial assertion of power responsibility deflects legislation The course Great Britain illustrates the various open exempting methods union members from political consequence interpretation levies. As a of a restrictive A. C. of Lords in 87, Trade Parliament Amalgamated Society Ry. Union Act of in 1876, passed legislation 39 & 40 Servants v. Vict., which allowed a union c. 22, Osborne, the House [1910] exempt member to by giving himself from contributions specific V, notice. Trade Union Act of c. 30. Geo. 1913, & 3 general The fear instilled strike 1926 caused the Conserva “contracting tive Parliament procedure by to amend the out” “contracting scheme, require in” the net effect of which was to give each individual notice of his consent to his contribute before political purposes. Disputes dues could be used for Trade and Trade V, Party Unions Act of & 18 Geo. c. When the Labor power, came Parliament returned to the 1913 method. Trade Disputes VI, and Trade Unions Act 9 & 10 Geo. c. 52. Party, back, legislation Conservative when it came retained the opponents. its
those on whom in a society democratic it ultimately rests —the people.” American Federation Labor American Co., Sash & Door S. 538, U. (concurring opinion).
In conclusion, then, we are by asked union members oppose who expenditures these protect to right to free speech although they are as speak free to as ever— — against governmental action which permitted has a union elected democratic process bargain for a shop expend the funds thereby collected for purposes which are controlled internal union choice. To do só would be to mutilate a scheme designed by Congress for purpose of equitably sharing the cost of securing the benefits of union exertions; it would greatly if embarrass not frustrate conventional labor activities which have become institutionalized through time. To so is do give constitutional sanction doctrinaire and to views grant a miniscule claim recognition. constitutional
In Everson v. Board Education, 330 U. S. the legis- power lative of a State to subsidize bus service to parochial schools was sustained, although the Court recognized that because of the subsidy parents some were undoubt- edly enabled to send their children to church schools who otherwise not. would It makes little difference whether the conclusion phrased so that no establishment of reli- gion was found, or whether it be more forthrightly stated that the merely incidental “establishment” was too insig- nificant. Figures of the Department of Health, Education and Welfare show that yearly cost of transportation to non-public schools Massachusetts totals approxi- mately $659,749; Illinois $1,807,740.32 These are scarcely what would be termed negligible expenditures. Some might consider the resulting “establishment” more
32Statistics of State School Systems, 1955-1956: Organization, Staff, Pupils, and Finances, 2, p. (U. c. Department S. Health, Education, 1959). and Welfare, *65 pay through speech of free loss than the substantial whereby dissident dues, month for per $3of ment the union’s with mind his own identified feels member position. in a different used Cardozo, Mr. Justice
The words right claims here: applicable context, “[C]ountless are operative their source or to have can be discovered in the Con a federal statute provisions limits upon restrictions circumambient its itself with stitution pursuit, bounds to To set power. legislative between contro the distinction formulated have courts between collateral, that are are basic and those that versies merely are that and those necessary are disputes com put if we in a maze be lost shall possible. We Bank, 299 S.U. First National Gully v. by.” pass case for dismissal remand I reverse would courts. Georgia