A Nebraska constitutional amendment and a North Carolina statute
provide, in effect, that no person in those States shall be denied
an opportunity to obtain or retain employment because he is or is
not a member of a labor organization. They also forbid employers to
enter into contracts or agreements obligating themselves to exclude
persons from employment because they are or are not members of
they do not violate rights guaranteed to
employers, unions, or members of unions by the Constitution of the
United States. Pp. 335 U. S.
1. These state laws do not abridge the freedom of speech and the
right of unions and their members "peaceably to assemble, and to
petition the Government for a redress of grievances," which are
guaranteed by the First Amendment and made applicable to the States
by the Fourteenth Amendment. Pp. 335 U. S.
2. Nor do they conflict with Article I, § 10, of the
Constitution, insofar as they impair the obligation of contracts
made prior to their enactment. Pp. 335 U. S.
3. Nor do they deny unions and their members equal protection of
the laws contrary to the Fourteenth Amendment. Pp. 335 U. S.
4. Nor do they deprive employers, unions or members of unions of
their liberty without due process of law in violation of the
Fourteenth Amendment. Pp. 335 U. S.
149 Neb. 507, 31 N.W.2d 477, affirmed. 228 N.C. 352, 45 S.E.2d
No. 47. In a suit brought by certain labor organizations and the
president of one of them for a declaratory judgment and equitable
relief, a Nebraska trial court sustained the validity of the
so-called "Right-to-Work Amendment" to the Nebraska Constitution,
now designated as Art. XV, § 13, 14 and 15, and sustained a
Page 335 U. S. 526
to the petition. The Supreme Court of Nebraska affirmed. 149
Neb. 507, 31 N.W.2d 477. On appeal to this Court,
p. 335 U. S.
No. 34. An employer and certain officers and agents of certain
labor unions were convicted in a North Carolina state court of
violations of N.C.Acts, 1947, ch. 328, N.C.Gen.Stat., ch. 95, Art.
10, for entering into a "closed shop agreement." The Supreme Court
of North Carolina affirmed, and sustained the validity of the
statute under the Constitution of the United States. 228 N.C. 352,
45 S.E.2d 860. On appeal to this Court, affirmed,
335 U. S.
Page 335 U. S. 527
MR. JUSTICE BLACK delivered the opinion of the Court.
Under employment practices in the United States, employers have
sometimes limited work opportunities to members of unions,
sometimes to nonunion members, and at other times have employed and
kept their workers without regard to whether they were or were not
members of a union. Employers are commanded to follow this latter
employment practice in the states of North Carolina and Nebraska. A
North Carolina statute and a Nebraska constitutional amendment
] provide that
Page 335 U. S. 528
person in those states shall be denied an opportunity to obtain
or retain employment because he is or is not a member of a labor
organization. To enforce this policy, North Carolina and Nebraska
employers are also forbidden to enter into contracts or agreements
obligating themselves to exclude persons from employment because
they are or are not labor union members. [Footnote 2
These state laws were given timely challenge in North Carolina
and Nebraska courts on the ground that, insofar as they attempt to
protect nonunion members from discrimination, the laws are in
violation of rights guaranteed employers, unions, and their members
by the United States Constitution. [Footnote 3
] The state laws were challenged as violations
of the right of freedom of speech, of assembly
Page 335 U. S. 529
and of petition guaranteed unions and their members by "the
First Amendment and protected against invasion by the state under
the Fourteenth Amendment." It was further contended that the state
laws impaired the obligations of existing contracts in violation of
Art. I, § 10, of the United States Constitution and deprived the
appellant unions and employers of equal protection and due process
of law guaranteed against state invasion by the Fourteenth
Amendment. All of these contentions were rejected by the State
Supreme Courts, [Footnote 4
and the cases are here on appeal under § 237 of the Judicial Code,
28 U.S.C. § 344 (now § 1257). The substantial identity of the
questions raised in the two cases prompted us to set them for
argument together, and, for the same reason, we now consider the
cases in a single opinion.
It is contended that these state laws abridge
the freedom of speech and the opportunities of unions and their
members "peaceably to assemble and to petition the Government for a
redress of grievances." [Footnote
] Under the state policy adopted by these laws, employers
must, other considerations being equal, give equal opportunities
Page 335 U. S. 530
remunerative work to union and nonunion members without
discrimination against either. In order to achieve this objective
of equal opportunity for the two groups, employers are forbidden to
make contracts which would obligate them to hire to keep none but
union members. Nothing in the language of the laws indicates a
purpose to prohibit speech, assembly, or petition. Precisely what
these state laws do is to forbid employers, acting alone or in
concert with labor organizations, deliberately to restrict
employment to none but union members.
It is difficult to see how enforcement of this state policy
could infringe the freedom of speech of anyone, or deny to anyone
the right to assemble or to petition for a redress of grievances.
And appellants do not contend that the laws expressly forbid the
full exercise of those rights by unions or union members. Their
contention is that these state laws indirectly infringe their
constitutional rights of speech, assembly, and petition. While the
basis of this contention is not entirely clear, it seems to rest on
this line of reasoning: the right of unions and union members to
demand that no nonunion members work along with union members is
"indispensable to the right of self-organization and the
association of workers into unions;" without a right of union
members to refuse to work with nonunion members, there are "no
means of eliminating the competition of the nonunion worker;"
since, the reasoning continues, a "closed shop" is indispensable to
achievement of sufficient union membership to put unions and
employers on a full equality for collective bargaining, a closed
shop is consequently "an indispensable concomitant" of "the right
of employees to assemble into and associate together through labor
organizations. . . ." Justification for such an expansive
construction of the right to speak, assemble and petition is
Page 335 U. S. 531
then rested in part on appellants' assertion
"that the right to work as a nonunionist is in no way equivalent
to or the parallel of the right to work as a union member; that
there exists no constitutional right to work as a nonunionist, on
the one hand, while the right to maintain employment free from
discrimination because of union membership is constitutionally
Cf. Wallace Corporation v. Labor Board, 323 U.
We deem it unnecessary to elaborate the numerous reasons for our
rejection of this contention of appellants. Nor need we appraise or
analyze with particularity the rather startling ideas suggested to
support some of the premises on which appellants' conclusions rest.
There cannot be wrung from a constitutional right of workers to
assemble to discuss improvement of their own working standards a
further constitutional right to drive from remunerative employment
all other persons who will not or cannot participate in union
assemblies. The constitutional right of workers to assemble to
discuss and formulate plans for furthering their own self interest
in jobs cannot be construed as a constitutional guarantee that none
shall get and hold jobs except those who will join in the assembly
or will agree to abide by the assembly's plans. For, where conduct
affects the interests of other individuals and the general public,
the legality of that conduct must be measured by whether the
conduct conforms to valid law, even though the conduct is engaged
in pursuant to plans of an assembly.
There is a suggestion, though not elaborated in
briefs, that these state laws conflict with Art. I, § 10, of the
United States Constitution, insofar as they impair the obligation
of contracts made prior to their enactment. That this contention is
without merit is now too clearly established to require discussion.
See Home Bldg. & Loan Assn. v. Blaisdell, 290 U.
, 290 U. S.
-439, and cases
Page 335 U. S. 532
there cited. And also Veix v. Sixth Ward Building & Loan
Assn., 310 U. S. 32
310 U. S. 38
East New York Savings Bank v. Hahn, 326 U.
, 326 U. S.
It is contended that the North Carolina and
Nebraska laws deny unions and their members equal protection of the
laws, and thus offend the equal protection clause of the Fourteenth
Amendment. Because the outlawed contracts are a useful incentive to
the growth of union membership, it is said that these laws weaken
the bargaining power of unions, and correspondingly strengthen the
power of employers. This may be true. But there are other matters
to be considered. The state laws also make it impossible for an
employer to make contracts with company unions which obligate the
employer to refuse jobs to union members. In this respect, these
state laws protect the employment opportunities of members of
independent unions. See Wallace Corporation v. Labor Board,
This circumstance alone, without regard to others that
need not be mentioned, is sufficient to support the state laws
against a charge that they deny equal protection to unions as
against employers and nonunion workers.
It is also argued that the state laws do not provide protection
for union members equal to that provided for nonunion members. But
in identical language these state laws forbid employers to
discriminate against union and nonunion members. Nebraska and North
Carolina thus command equal employment opportunities for both
groups of workers. It is precisely because these state laws command
equal opportunities for both groups that appellants argue that the
constitutionally protected rights of assembly and due process have
been violated. For the constitutional protections surrounding these
rights are relied on by appellants to support a contention that the
Federal Constitution guarantees greater employment
Page 335 U. S. 533
rights to union members than to nonunion members. This claim of
appellants is itself a refutation of the contention that the
Nebraska and North Carolina laws fail to afford protection to union
members equal to the protection afforded nonunion workers.
It is contended that these state laws deprive
appellants of their liberty without due process of law in violation
of the Fourteenth Amendment. Appellants argue that the laws are
specifically designed to deprive all persons within the two states
of "liberty" (1) to refuse to hire or retain any person in
employment because he is or is not a union member, and (2) to make
a contract or agreement to engage in such employment discrimination
against union or nonunion members.
Much of appellants' argument here seeks to establish that due
process of law is denied employees and union men by that part of
these state laws that forbids them to make contracts with the
employer obligating him to refuse to hire or retain nonunion
workers. But that part of these laws does no more than provide a
method to aid enforcement of the heart of the laws -- namely, their
command that employers must not discriminate against either union
or nonunion members because they are such. If the states have
constitutional power to ban such discrimination by law, they also
have power to ban contracts which if performed would bring about
the prohibited discrimination. Chicago, B. & Q. R. Co. v.
McGuire, 219 U. S. 549
219 U. S.
Many cases are cited by appellants in which this Court has said
that, in some instances, the due process clause protects the
liberty of persons to make contracts. But none of these cases, even
those according the broadest constitutional protection to the
making of contracts, ever went so far as to indicate that the due
process clause bars a state from prohibiting contracts to engage in
Page 335 U. S. 534
banned by a valid state law. So here, if the provisions in the
state laws against employer discrimination are valid, it follows
that the contract prohibition also is valid. Bayside Fish Flour
Co. v. Gentry, 297 U. S. 422
297 U. S. 427
And see Sage v. Hampe, 235 U. S. 99
235 U. S.
-105. We therefore turn to the decisive question
under the due process contention, which is: does the due process
clause forbid a state to pass laws clearly designed to safeguard
the opportunity of nonunion members to get and hold jobs, free from
discrimination against them because they are nonunion workers?
There was a period in which labor union members who wanted to
get and hold jobs were the victims of widespread employer
discrimination practices. Contracts between employers and their
employees were used by employers to accomplish this anti-union
employment discrimination. Before hiring workers, employers
required them to sign agreements stating that the workers were not
and would not become labor union members. Such anti-union practices
were so obnoxious to workers that they gave these required
agreements the name of "yellow dog contracts." This hostility of
workers also prompted passage of state and federal laws to ban
employer discrimination against union members and to outlaw yellow
In 1907, this Court, in Adair v. United States,
208 U. S. 161
considered the federal law which prohibited discrimination against
union workers. Adair, an agent of the Louisville & Nashville
Railroad Company, had been indicted and convicted for having
discharged Coppage, an employee of the railroad, because Coppage
was a member of the Order of Locomotive Firemen. This Court there
held, over the dissents of Justices McKenna and Holmes, that the
railroad, because of the due process clause of the Fifth Amendment,
had a constitutional right to discriminate
Page 335 U. S. 535
against union members, and could therefore do so through use of
yellow dog contracts. The chief reliance for this holding was
Lochner v. New York, 198 U. S. 45
had invalidated a New York law prescribing maximum hours for work
in bakeries. This Court had found support for its Lochner
holding in what had been said in Allgeyer v. Louisiana,
165 U. S. 578
case on which appellants here strongly rely. There were strong
dissents in the Adair
In 1914, this Court reaffirmed the principles of the
case in Coppage v. Kansas, 236 U. S.
, again over strong dissents, and held that a Kansas
statute outlawing yellow dog contracts denied employers and
employees a liberty to fix terms of employment. For this reason,
the law was held invalid under the due process clause.
doctrine was for some years followed by this Court. It was used to
strike down laws fixing minimum wages and maximum hours in
employment, laws fixing prices, and laws regulating business
cases cited in Olsen v. Nebraska,
313 U. S. 236
313 U. S.
-246, and Osborn v. Ozlin, 310 U. S.
, 310 U. S. 66
And the same constitutional philosophy was faithfully adhered to in
Adams v. Tanner, 244 U. S. 590
case strongly pressed upon us by appellants. In Adams v.
this Court with four justices dissenting struck
down a state law absolutely prohibiting maintenance of private
employment agencies. The majority found that such businesses were
highly beneficial to the public, and upon, this conclusion, held
that the state was without power to proscribe them. Our holding and
opinion in Olsen v. Nebraska, supra,
Adams v. Tanner.
Appellants also rely heavily on certain language used in this
Court's opinion in Wolff Packing Co. v. Court of Industrial
Relations, 262 U. S. 522
that case, the
Page 335 U. S. 536
Court invalidated a state law which in part provided a method
for a state agency to fix wages and hours. [Footnote 6
] Wolff Packing Co. v. Industrial
Court, 267 U. S. 552
267 U. S. 565
In invalidating this part of the state act, this Court construed
the due process clause as forbidding legislation to fix hours and
wages or to fix prices of products. The Court also relied on a
distinction between businesses according to whether they were or
were not "clothed with a public interest." This latter distinction
was rejected in Nebbia v. New York, 291 U.
. That the due process clause does not ban
legislative power to fix prices, wages, and hours, as was assumed
in the Wolff
case, was settled as to price-fixing in the
cases. That wages and hours can
be fixed by law is no longer doubted since West Coast Hotel Co.
v. Parrish, 300 U. S. 379
United States v. Darby, 312 U. S. 100
312 U. S. 125
Phelps Dodge Corp. v. Labor Board, 313 U.
, 313 U. S.
This Court, beginning at least as early as 1934, when the
case was decided, has steadily rejected the due
process philosophy enunciated in the Adair-Coppage
cases. In doing so, it has consciously returned closer and closer
to the earlier constitutional principle that states have power to
legislate against what are found to be injurious practices in their
internal commercial and business affairs so long as their laws do
not run afoul of some specific federal constitutional prohibition
or of some valid federal law. See Nebbia v. New York,
at 291 U. S.
-524, and West Coast Hotel Co. v. Parrish,
at 300 U. S.
-395, and cases cited. Under this constitutional
doctrine, the due process clause is no longer to be so broadly
construed that the Congress and state legislatures are put in
Page 335 U. S. 537
a strait jacket when they attempt to suppress business and
industrial conditions which they regard as offensive to the public
Appellants now ask us to return, at least in part, to the due
process philosophy that has been deliberately discarded. Claiming
that the Federal Constitution itself affords protection for union
members against discrimination, they nevertheless assert that the
same Constitution forbids a state from providing the same
protection for nonunion members. Just as we have held that the due
process clause erects no obstacle to block legislative protection
of union members, we now hold that legislative protection can be
afforded nonunion workers.
[For concurring opinions of MR. JUSTICE FRANKFURTER, see
p. 335 U. S.
[For concurring opinion of MR. JUSTICE RUTLEDGE, joined by MR.
JUSTICE MURPHY insofar as it applies to Nos. 34 and 47, see
p. 335 U. S.
* Together with No. 34, Whitaker et al. v. North
on appeal from the Supreme Court of North
Section 2 of Chapter 328 of the North Carolina Session Laws,
enacted in 1947, reads as follows:
"Any agreement or combination between any employer and any labor
union or labor organization whereby persons not members of such
union or organization shall be denied the right to work for said
employer, or whereby such membership is made a condition of
employment or continuation of employment by such employer, or
whereby any such union or organization acquires an employment
monopoly in any enterprise, is hereby declared to be against the
public policy and an illegal combination or conspiracy in restraint
of trade or commerce in the North Carolina."
Nebraska in 1946 adopted a constitutional amendment, § 13 of
which reads as follows:
"No person shall be denied employment because of membership in
or affiliation with, or resignation or expulsion from a labor
organization or because of refusal to join or affiliate with a
labor organization; nor shall any individual or corporation or
association of any kind enter into any contract, written or oral,
to exclude persons from employment because of membership in or
nonmembership in a labor organization."
Shops that refuse to employ any but union members are sometimes
designated as "closed shops," sometimes as "union shops." Contracts
which obligate an employer to employ none but union members are
sometimes designated as union security agreements, closed shop
contracts or union shop contracts. There is also much dispute as to
the exact meaning of the term "open shop." See
Encyclopedia of Social Sciences, Vol. 3 (1930), pp. 568-569. There
is such an important difference in emphasis between these different
labels that we think it better to avoid use of any of them in this
The Nebraska constitutional amendment was challenged in an
action for equitable relief and for a declaratory judgment. A
substantial basis of the complaint was that employers had refused
to comply with the request of unions to discharge certain employees
who had failed to retain union membership. In North Carolina,
criminal proceedings were instituted against the appellants
charging that an agreement made unlawful by the statute had been
entered into by the appellant employer and the other appellants,
who are officers and agents of labor unions affiliated with the
American Federation of Labor.
State v. Whitaker,
228 N.C. 352, 45 S.E.2d 860;
Lincoln Federal Labor Union No.19129 v. Northwestern Iron &
149 Neb. 507, 31 N.W.2d 477. See also American
Federation of Labor v. American Sash & Door Co.,
20, 189 P.2d 912. An appeal in this latter case was also argued
along with the two cases considered in this opinion. We have
treated the Arizona case in a separate opinion, post,
335 U. S. 538
because the challenged Arizona amendment presents a question not
raised in the Nebraska or North Carolina laws.
This contention rests on the premise that the Fourteenth
Amendment makes the prohibitions and guarantees of the First
Amendment applicable to state action. See West Virginia v.
Barnette, 319 U. S. 624
319 U. S. 639
The pertinent language of the First Amendment is
"Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
Other parts of the state statute related to matters other than
wages, prices, and the making of contracts of employment.
Considerations involved in the constitutional validity of those
other parts of the statute are not relevant here.