Section 8(a)(3) of the National Labor Relations Act permits
union- or agency shop agreements between employers and unions, but
§ 14(b) authorizes States to exempt themselves from § 8(a)(3) and
to enact "right-to-work" laws prohibiting union or agency shops.
About two years after petitioner unions and respondent employer had
entered into an agency shop agreement covering seamen employed on
respondent's oil tankers, respondent brought suit claiming that the
agreement was invalid and unenforceable because it violated Texas'
right-to-work laws. Since,
inter alia, all final decisions
for hiring the seamen are made in Texas, the majority of the then
employed seamen reside in Texas, and respondent's personnel records
are maintained and payroll checks are written there, the District
Court held that Texas had an "intimate concern" with the agreement,
notwithstanding that the seamen spend the vast majority of their
working hours away from Texas on the high seas, and that therefore
Texas' right-to-work laws were applicable under § 14(b) and
rendered the agreement void and unenforceable. The Court of Appeals
affirmed, stressing that Texas was the place of hiring.
Held:
1. lt is the employees' predominant job situs, rather than a
generalized weighing of factors or the place of hiring, that
triggers operation of § 14(b), and, under § 14(b), right-to-work
laws cannot void agreements permitted by § 8(a)(3) when the situs
at which all the employees covered by the agreement perform most of
their work is located outside of a State having such laws. Pp.
426 U. S.
412-419.
(a) Insofar as § 8(a)(3) deals with union and agency shop
agreements, it focuses both in effect and purpose on post-hiring
conditions, conditions that have a major impact on the job situs.
Pp.
426 U. S.
414-416.
Page 426 U. S. 408
(b) Similarly, § 14(b)'s primary concern is with state
regulation of the post-hiring employer employee-union relationship,
the center of which is the job situs,
i.e., the place
where the work that is the very
raison d'etre of the
relationship is performed; and because of this close relationship
between § 14(b) and job situs, § 14(b) does not allow enforcement
of right-to-work laws with regard to an employment relationship
whose principal job situs is outside of a State having such laws.
Pp.
426 U. S.
416-418.
(c) Under the job situs test, as opposed to a "place of hiring"
test, the possibility of patently anomalous extraterritorial
applications of any given State's right-to-work laws will be
minimized, and parties entering a collective bargaining agreement
will easily be able to determine in virtually all situations
whether a union or agency shop provision is valid. Pp.
426 U. S.
418-419.
2. Under the job situs test, Texas' right-to-work laws cannot
govern the validity of the agency shop agreement in question,
because most of the employees' work is done on the high seas,
outside the territorial bounds of Texas. It is immaterial that
Texas may have more contacts than any other State with the
employment relationship involved, since there is no reason to
conclude under § 14(b) that, in every employment situation, some
State's law with respect to union security agreements must apply,
and it is fully consistent with national labor policy to conclude,
if the predominant job situs is outside the boundary of any State,
that no State has a sufficient interest in the employment
relationship, and that, hence, no State's right-to-work laws can
apply. Pp.
426 U. S.
420-421.
504 F.2d 272, reversed.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J.,
filed a concurring statement,
post, p.
426 U. S. 421.
BURGER, C.J., concurred in the judgment. POWELL, J., filed an
opinion concurring in the judgment,
post, p.
426 U. S. 421.
STEWART, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
426 U. S.
422.
Page 426 U. S. 409
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Section 8(a)(3) of the National Labor Relations Act, 49 Stat.
452, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits
employers, as a matter of federal law, to enter into agreements
with unions to establish union or agency shops. [
Footnote 1] Section 14(b) of the Act, 61
Stat. 151, 29 U.S.C. § 164(b), however, allows individual States
and Territories to exempt themselves from § 8(a)(3) and to enact
so-called "right-to-work" laws prohibiting union or agency shops.
[
Footnote 2] We must decide
Page 426 U. S. 410
whether, under § 14(b), Texas' right-to-work laws can void an
agency shop agreement covering unlicensed seamen who, while hired
in Texas and having a number of other contacts with the State,
spend the vast majority of their working hours on the high
seas.
I
Petitioners (hereinafter Union) [
Footnote 3] represent the unlicensed seamen who work on
respondent employer's oil tankers. In November, 1969, the Union and
respondent entered into a collective bargaining agreement which
provided for an agency shop:
"For the duration of the Agreement, all employees hired shall,
as a condition of employment, become members of the Union and/or in
the alternative pay the regular union dues and initiation fees
within 31 days from the employment date."
App. 281. Almost two years after entering into the agreement,
respondent filed suit in the United States District Court for the
Eastern District of Texas under § 301 of the Labor Management
Relations Act, 61 Stat. 156, 29 U.S.C. § 185, claiming that the
agency shop provision was invalid and unenforceable because it
violated Texas' right-to-work laws. [
Footnote 4]
Uncontested evidence was presented at trial concerning the
relevant locations of various aspects of the relationship
Page 426 U. S. 411
between the Union, the respondent, and the seamen. Because this
evidence bears heavily on the contentions of the parties, we shall
summarize it in some detail. Respondent is a division of Mobil Oil
Corp., a New York corporation, and operates a fleet of eight
oceangoing tankers which transport respondent's petroleum products
from Texas to Atlantic coast ports. Respondent is headquartered in
Beaumont, Tex., and maintains its personnel records there. Sixty
percent of the applications to be unlicensed seamen on respondent's
ships are made in Beaumont, and 40% in New York. The final hiring
decisions are made in Beaumont. Of the 289 unlicensed seamen who
are employed to man the tankers, 123 maintain residence in Texas,
and 60 in New York. [
Footnote
5] One hundred and fifty-two of the seamen list Beaumont as
their shipping port -- a designation that determines travel
allowances to and from a seaman's residence -- and the remainder
list either New York or Providence, R.I. Seamen can elect to be
paid their wages aboard ship, to have their paychecks sent from the
Beaumont office to designated recipients, or to use a combination
of these two schemes. The collective bargaining agreement whose
agency shop provision is at issue here was negotiated and executed
in New York. It was reexecuted in Texas.
A typical trip by one of respondent's tankers from Beaumont, the
Texas port, to Providence or New York, the Atlantic ports, takes
from 4 1/2 to 5 days. Loading and unloading in port takes from 18
to 30 hours. No more than 10% to 20% of the seamen's work time is
spent within the territorial bounds of Texas.
Based on the above evidence, fully reflected in its
Page 426 U. S. 412
findings of fact, the District Court concluded that
"[t]he acts performed in the State of Texas in the
administration and performance of the collective bargaining
agreement are such that the State of Texas is intimately concerned
with the collective bargaining agreement and with the employees
working thereunder."
App. 29. Relying on this "intimate concern," the court held that
the Texas right-to-work laws were applicable under § 14(b), and
that the agency shop provision was therefore void and
unenforceable.
A three-member division of the United States Court of Appeals
for the Fifth Circuit, one judge dissenting, reversed. 483 F.2d 603
(1973). The court concluded that the Texas right-to-work laws could
not apply, since the employees' principal job situs is not in
Texas, but rather is on the high seas. On rehearing en banc, the
full court, over the dissent of six of its members, vacated the
division opinion and affirmed the judgment of the District Court.
504 F.2d 272 (1974). The court identified and analyzed the
interests that Texas has in the employment relationship at issue,
placing special stress on the fact that all final hiring decisions
take place in Texas. It held that
"the federal labor legislation, the predominance of Texas
contacts over any other jurisdiction, and the significant interest
which Texas has in applying its right to work law to this
employment relationship warrant application of the Texas law, and,
consequently, invalidation of the agency shop provision."
Id. at 275. We granted certiorari, 423 U.S. 820 (1975),
and we now reverse.
II
All parties are agreed that the central inquiry in this case is
whether § 14(b) permits the application of Texas' right-to-work
laws to the agency shop provision in the collective bargaining
agreement between the
Page 426 U. S. 413
Union and respondent. [
Footnote
6] Only if it is to be so read is the agency shop provision
unenforceable. [
Footnote 7] The
parties are similarly agreed that a State can apply its
right-to-work laws only with respect to employment relationships
with which the State has adequate contact. The crux of the
differences between the parties concerns whether the contacts
between Texas and the employment relationship in this case are
sufficient to come under § 14(b).
The Union, as well as the United States as
amicus
curiae, argues that the nature of the concerns at which §
14(b) is directed mandates that job situs be the controlling factor
in determining the applicability of § 14(b), and that, since, in
this case, the employees' principal job situs is on the high seas
-- outside the territorial bounds of the State -- the agency shop
provision at issue is valid. Respondent contends that "[t]he
sufficiency of a state's interest in applying its law is to be
determined by looking to the whole employment relationship." Brief
for Respondent 15. Giving weight to all the contacts between Texas
and the employment relationship,
see supra at
426 U. S.
410-411, respondent concludes that Texas can validly
apply its right-to-work laws under
Page 426 U. S. 414
§ 14(b). A third approach, the one adopted by the dissenting
opinion in this case, is that the location of the hiring process
should be determinative of the applicability of a State's
right-to-work laws. Under this test, also, Texas' contacts in this
case would be sufficient to apply its laws.
In light of what we understand Congress' concerns in both §
8(a)(3) and § 14(b) to have been, we conclude that it is the
employees' predominant job situs, rather than a generalized
weighing of factors or the place of hiring, that triggers the
operation of § 14(b). We hold that, under § 14(b), right-to-work
laws cannot void agreements permitted by § 8(a)(3) when the situs
at which all the employees covered by the agreement perform most of
their work is located outside of a State having such laws.
Under § 8(3) of the Wagner Act, enacted in 1935, closed shops,
union shops, and agency shops were all permitted. But in 1947, in §
8(a)(3), as added by the Taft-Hartley Act, Congress reacted to
widespread abuses of closed-shop agreements by banning such
arrangements. [
Footnote 8]
Union and agency shops were still permitted, however, by § 8(a)(3).
That provision makes employment discrimination in favor of or
against labor unions an unfair labor practice, but contains the
following proviso, which we have held to apply to agency shops as
well as union shops,
NLRB v. General Motors Corp.,
373 U. S. 734
(1963):
"
Provided, That nothing in this subchapter or in any
other statute of the United States, shall preclude an employer from
making an agreement with
Page 426 U. S. 415
a labor organization . . . to require as a condition of
employment membership therein on or after the thirtieth day
following the beginning of such employment or the effective date of
such agreement, whichever is the later . . ."
While permitting agency and union shop agreements, however,
Congress provided certain safeguards for employees who were subject
to such agreements. Thus, a second proviso to § 8(a)(3) warns:
"[N]o employer shall justify any discrimination against an
employee for nonmembership in a labor organization (A) if he has
reasonable grounds for believing that such membership was not
available to the employee on the same terms and conditions
generally applicable to other members, or (b) if he has reasonable
grounds for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership."
Like its decision to ban closed-shop agreements, Congress'
decision in § 8(a)(3) to provide these safeguards reflects a
concern with compulsory unionism. But, in stark contrast to
closed-shop agreements, these safeguards and the agency or union
shop agreements to which they apply are not focused on the hiring
process. Rather, they are directed at conditions that must be
fulfilled by an employee only after he is already hired, at least
30 days after he is already working at the jobsite. [
Footnote 9] Moreover, quite apart from the
safeguards that it
Page 426 U. S. 416
provided, Congress' decision to allow union security agreements
at all reflects its concern that, at least as a matter of federal
law, the parties to a collective bargaining agreement be allowed to
provide that there be no employees who are getting the benefits of
union representation without paying for them. Again, the focus of
this concern is not the hiring process, but rather the benefits to
be derived from union representation during the period of
employment -- while the employee is on the job. Thus, the Senate
Committee Report on what became the Taft-Hartley Act observed that
§ 8(a)(3) gives
"employers and unions who feel that [union security] agreements
promoted stability by eliminating 'free riders' the right to
continue such arrangements."
S.Rep. No. 105, 80th Cong., 1st Sess., 7 (1947), 1 Leg.Hist.
413.
"Congress recognized that, in the absence of a union security
provision, 'many employees sharing the benefits of what unions are
able to accomplish by collective bargaining will refuse to pay
their share of the cost.' S.Rep. No. 105, 80th Cong., 1st Sess., p.
6, 1 Leg.Hist. L.M.R.A. 412."
NLRB v. General Motors Corp., supra at
373 U. S.
740-741.
In short, insofar as it deals with union security agreements
less onerous than the closed shop agreement, § 8(a)(3) focuses in
both effect and purpose on post-hiring conditions, conditions which
have a major impact on the job situs.
While § 8(a)(3) articulates a national policy that certain union
security agreements are valid as a matter of federal law, § 14(b)
reflects Congress' decision that any
Page 426 U. S. 417
State or Territory that wishes to may exempt itself from that
policy. Section 14(b) allows a State or Territory to ban agreements
"requiring membership in a labor organization as a condition of
employment." [
Footnote 10]
We have recognized that, with respect to those state laws which §
14(b) permits to be exempted from § 8(a)(3)'s national policy,
"[t]here is . . . conflict between state and federal law, but it
is a conflict sanctioned by Congress with directions to give the
right of way to state laws. . . ."
Retail Clerks v. Schermerhorn, 375 U. S.
96,
375 U. S. 103
(1963). The question here, of course, is whether Texas' contacts
with this employment relationship are adequate to call into play §
14(b)'s mandated deference to state law.
Section 14(b) simply mirrors that part of § 8(a)(3) which
focuses on post-hiring conditions of employment. As its language
reflects, § 14(b) was designed to make clear that § 8(a)(3) left
the States free to pursue "their own more restrictive policies in
the matter of union security agreements."
Algoma Plywood Co. v.
Wisconsin Board, 336 U. S. 301,
336 U. S. 314
(1949). Since § 8(a)(3) already prohibits the closed shop, the more
restrictive policies that § 14(b) allows the States to enact relate
not to the hiring process, but rather to conditions that would come
into effect only after an individual is hired. It is evident, then,
that § 14(b)'s primary concern is with state regulation of the
post-hiring "employer employee union" relationship. And the center
of the post-hiring relationship is the job situs, the place where
the work that is the very
raison d'etre of the
relationship is performed.
The centrality of job situs to Congress' concern in § 14(b) is
also suggested by the House Committee Report on the bill that
contained the substance of what was
Page 426 U. S. 418
finally enacted as § 14(b). That report reflects the House's
intent that agreements providing for agency or union shops would be
valid "only if they are valid under the laws of any State in which
they are to be performed." H.R.Rep. No. 245, 80th Cong., 1st Sess.,
34 (1947), 1 Leg.Hist. 325. Where an agreement is "performed" may
be open to some debate, but we think the most reasonable reading of
the phrase is that union security agreements are "performed" on the
job situs. Thus, the import of the House Report is that the
committee viewed what became § 14(b) as allowing a State to ban
agreements calling for work to be performed within the State. While
the Taft-Hartley Act, as finally enacted, does not contain the
precise wording of the House bill, there is no indication that any
language changes were designed to alter this focus on the place of
performance.
Whether taken separately or together, the place of hiring and
the other factors on which respondent relies -- the employees'
place of residence, the locale of personnel records, the place at
which payroll checks are written, etc. -- are not nearly as central
to the concerns of § 14(b) as the employees' job situs. And,
because of this close relationship between § 14(b) and job situs,
we conclude that § 14(b) does not allow enforcement of
right-to-work laws with regard to an employment relationship whose
principal job situs is outside of a State having such laws.
Two practical considerations bolster our conclusion that the
employees' predominant job situs should determine the applicability
of a State's right-to-work laws under § 14(b). First, the use of a
job situs test will minimize the possibility of patently anomalous
extraterritorial applications of any given State's right-to-work
laws. Use of a job situs test will insure that the laws of a State
with a continuing and current relationship
Page 426 U. S. 419
with the employees in question will govern the validity
vel
non of any union shop or agency shop provision. On the other
hand, if place of hiring were to be the determinative factor,
Texas, for instance, could apply its right-to-work laws to
employees who work solely in Connecticut simply because the
relevant hiring decisions were made -- perhaps many years ago -- in
Texas. We cannot believe that it was Congress' purpose in passing §
14(b) to sanction such a result.
A test, such as the one adopted by the Court of Appeals, that
evaluates all of a jurisdiction's employment relationship contacts
in order to determine the applicability of its right-to-work laws
under § 14(b) might not result in irrational extraterritorial
applications. But such a test does suffer the disadvantages of
being both less predictable and more difficult of application than
a job situs test. Under a job situs test, parties entering a
collective bargaining agreement will easily be able to determine in
virtually all situations whether a union or agency shop provision
is valid. By contrast, bargaining parties would often be left in a
state of considerable uncertainty if they were forced to identify
and evaluate all the relevant contacts of a jurisdiction in order
to determine the potential validity of a proposed union security
provision. The unpredictability that such a test would inject into
the bargaining relationship, as well as the burdens of litigation
that would result from it, make us unwilling to impute to Congress
any intent to adopt such a test. [
Footnote 11]
Page 426 U. S. 420
III
Having concluded that predominant job situs is the controlling
factor in determining whether, under § 14(b), a State can apply its
right-to-work laws to a given employment relationship, the
disposition of this case is clear. Because most of the employees'
work is done on the high seas, outside the territorial bounds of
the State of Texas, Texas' right-to-work laws cannot govern the
validity of the agency shop provision at issue here. It is
immaterial that Texas may have more contacts than any other State
with the employment relationship in this case, since there is no
reason to conclude under § 14(b) that, in every employment
situation, some State or Territory's law with respect to union
security agreements must be applicable. [
Footnote 12] Federal policy favors permitting such
agreements unless a State or Territory with a sufficient interest
in the relationship expresses a contrary policy via right-to-work
laws. It is therefore fully consistent with national labor policy
to conclude, if the predominant job situs is outside the boundary
of any State, that no State
Page 426 U. S. 421
has a sufficient interest in the employment relationship, and
that no State's right-to-work laws can apply.
Accordingly, the judgment of the Court of Appeals is
reversed.
So ordered.
MR. CHIEF JUSTICE BURGER concurs in the judgment.
[
Footnote 1]
A "union shop" agreement provides that no one will be employed
who does not join the union within a short time after being hired.
An "agency shop" agreement generally provides that, while employees
do not have to join the union, they are required -- usually after
30 days -- to pay the union a sum equal to the union initiation
fee, and are obligated as well to make periodic payments to the
union equal to the union dues.
See NLRB v. General Motors
Corp., 373 U. S. 734
(1963). The "union shop" and "agency shop" varieties of "union
security" agreements are to be distinguished from the "closed shop"
agreement, barred by § 8(a)(3), which provides that the employer
will hire no one who is not a member of the union at the time of
hiring.
[
Footnote 2]
Section 14(b) provides in full:
"Nothing in this subchapter shall be construed as authorizing
the execution or application of agreements requiring membership in
a labor organization as a condition of employment in any State or
Territory in which such execution or application is prohibited by
State or Territorial law."
It is settled that § 14(b) encompasses the agency shop as well
as the union shop agreement.
Retail Clerks v.
Schermerhorn, 373 U. S. 746
(1963).
[
Footnote 3]
There are two petitioners in this case, Oil, Chemical and Atomic
Workers International Union, AFL-CIO, and its Local 8-801. Both are
parties to the collective bargaining agreement with respondent.
[
Footnote 4]
Texas' right-to-work laws prohibit,
inter alia, the
denial of employment to anyone because of a failure to pay "any
fee, assessment, or sum of money whatsoever" to a union.
Tex.Rev.Civ.Stat.Ann., Art. 5154a, § 8a (1971). The parties are
agreed that the law encompasses agency shop provisions.
See Op.Atty.Gen. Tex. No. WW-1018 (1961).
[
Footnote 5]
The residences of the remainder are spread over 20 other
States.
[
Footnote 6]
The Union does not claim that Texas' contacts are so minimal as
to make the application of the Texas laws in any way
unconstitutional. Nor does respondent argue that Congress lacked
the power, if it wished, to prohibit state right-to-work laws
altogether.
[
Footnote 7]
There is nothing in either § 14(b)'s language or legislative
history to suggest that there may be applications of right-to-work
laws which are not encompassed under § 14(b) but which are
nonetheless permissible. As we recognized in
Retail Clerks v.
Schermerhorn, 375 U.S. at
375 U. S. 103,
it is "§ 14(b) [which] gives the States power to outlaw even a
union security agreement that passes muster by federal standards."
Cf. Kentucky State AFL-CIO v. Puckett, 391
S.W.2d 360 (Ky.1965);
Grimes & Hauer, Inc. v.
Pollock, 163 Ohio St. 372, 127 N.E.2d 203 (1955).
[
Footnote 8]
See NLRB v. General Motors Corp., 373 U.
S. 734 (1963); S.Rep. No. 105, 80th Cong., 1st Sess., 6,
1 Legislative History of the Labor Management Relations Act, 1947
(hereinafter Leg.Hist.), p. 412 (1948).
[
Footnote 9]
In explaining the distinction that § 8(a)(3) draws between
closed shops on the one hand and lesser union security agreements,
on the other, Senator Taft noted:
"The great difference is that, in the first instance, a man can
get a job without joining the union or asking favors of the union,
and, once he has the job, he can continue in it for 30 days, and,
during that time, the employer will have an opportunity to
ascertain whether he is a capable employee. The fact that the
employee will have to pay dues to the union seems to me to be much
less important. The important thing is that the man will have the
job."
93 Cong.Rec. 4886 (1947), 2 Leg.Hist. 1422.
[
Footnote 10]
See n.
2
supra.
[
Footnote 11]
Our use of a job situs test is consistent with the National
Labor Relation Board's application of § 14(b) under the statutory
provision, 29 U.S.C. § 159(e)(1) (1946 ed., Supp. I), requiring the
Board, in certain circumstances, to conduct employee elections to
authorize the negotiation of union security agreements. In
determining the employees who were eligible to vote for and be
covered by a union security agreement, the Board, in both
Giant
Food Shopping Center, Inc., 77 N.L.R.B. 791 (1948), and
Western Electric Co., 84 N.L.R.B. 1019 (1949), indicated
that the laws of one State prohibiting such agreements could not
apply to employees whose job situs was in another State or
Territory.
[
Footnote 12]
The Court of Appeals argued that to refuse to
"allow Texas to apply its law here would create the bizarre
consequence of exempting the maritime industry from the operation
of section 14(b)."
504 F.2d 272, 280-281 (1974). It further observed, pointing to
the 1951 amendment to the Railway Labor Act, 45 U.S.C. § 152
Eleventh, that, "when Congress has decided to supersede section
14(b) and state right to work laws, it has done so expressly." 504
F.2d at 281. In applying a job situs test to this case, we create
no "exemption" from § 14(b) for the maritime industry. Under this
test, a State can still apply its right-to-work laws to maritime
workers, such as longshoremen, whose job situs is within the State.
Moreover, the Railway Labor Act amendments are simply irrelevant to
this case. The issue that we decide here is not whether § 14(b) has
been superseded, but rather whether it applies in the first
instance.
MR. JUSTICE STEVENS, concurring.
As I read § 14(b), the prepositional phrase "in any State or
Territory" modifies the immediately preceding noun "employment."
This reading is consistent with the analysis in the Court's
opinion, which I join except for its suggestion that federal policy
favors permitting union shop and agency shop agreements.
MR. JUSTICE POWELL, concurring in the judgment.
Although I concur in the judgment of the Court, I do not think
it necessary to determine in this case whether a "job situs" test
is appropriate or required generally. The only issue before the
Court is whether federal or state law should apply to the
employment contracts of maritime workers whose job situs is the
high seas, and who thereby enjoy a special status. As noted by
Judge Ainsworth, writing for the six dissenting members of the
Court of Appeals:
"[S]eamen have traditionally maintained an exceptional status in
regard to the regulation and control of their employment, and . . .
section 14(b) cannot reasonably be construed to remove them from
that category. Seamen, particularly the type of blue-water seamen
involved here, as wards of admiralty, have been accorded a special
status and protection under federal maritime law unknown to state
law in the domain of the master-servant relationship. Unlike the
land-based worker, the seaman's employment,
Page 426 U. S. 422
and all of the rights and restrictions flowing therefrom, are
determined by federal statutory and admiralty law, not state law. .
. ."
"
* * * *"
". . . The consistent and traditional control by federal law of
every phase of maritime employment relationships and contracts
refutes the proposition that [respondent's] contacts with Texas
justify injecting state law into federal maritime affairs."
504 F.2d 272, 28286 (CA5 1974) (footnotes omitted).
I join in reversing the judgment of the Court of Appeals, as I
do not believe § 14(b) can be construed reasonably to apply to
these seamen.
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins,
dissenting.
The respondent, Mobil Oil Corp., is a New York corporation with
its home office in New York City. The Gulf-East Coast Operations
Division of Mobil's Marine Transportation Department, located in
Beaumont, Tex., operates eight oceangoing American-flag tankers.
These ships transport petroleum products between Texas and various
ports on the Atlantic coast. Every month, each tanker normally
makes two round-trip voyages. On the average voyage, a ship is at
sea for four or five days, and spends approximately 18 to 30 hours
in port to load or unload its cargo.
The petitioner Maritime Local 8-801 of the Oil, Chemical and
Atomic Workers International Union represents the 289 blue-water
seamen who man the tankers. When this lawsuit began, 123 of these
289 employees claimed Texas as their residence, [
Footnote 2/1] and 152 of them had requested
Page 426 U. S. 423
the company to list Beaumont as their home port. Although 40 of
the seamen had first applied for work in New York, the remainder
had applied for the jobs in Texas, and the final hiring decision
for all of them had been made in Beaumont. Texas has collected
unemployment compensation insurance premiums for all of these
employees, regardless of what State any of them might have
designated as his home address or shipping port.
The seamen perform all of their duties aboard ship. They work
for approximately 85 days, and then receive 37 days of paid shore
leave. Eighty to 90% of their work is performed on the high
seas.
In 1969, Mobil and the Union concluded a collective bargaining
agreement in New York that covered these seagoing employees. Among
other provisions, the agreement contained an agency shop clause
that required all the employees to become "members of the union
and/or, in the alternative, pay the regular union dues and
initiation fees within 31 days from the employment date." App. 281.
In a challenge to this clause, Mobil brought the present suit under
§ 301 of the Labor Management Relations Act, 1947, 29 U.S.C. § 185,
and under 28 U.S.C. § 2201, seeking a declaratory judgment that the
clause is invalid because it violates the "right-to-work" laws of
Texas. [
Footnote 2/2]
The District Court, agreeing with Mobil that Texas was more
intimately involved with the employment relationship than any other
State, held that Texas' right-to-work laws applied to the
agreement. It accordingly declared the agency shop provision
invalid and unenforceable. A divided panel of the Court of Appeals
for the Fifth Circuit initially reversed this judgment, 483 F.2d
603 (1973), but, on rehearing en banc, that court affirmed
Page 426 U. S. 424
the judgment of the District Court. 504 F.2d 272 (1974). The en
banc appellate court analyzed all the relevant contacts that Texas
has with the employees in question, and concluded that
"federal labor legislation, the predominance of Texas contacts
over any other jurisdiction, and the significant interest which
Texas has in applying its right to work law to this employment
relationship warrant application of the Texas law and,
consequently, invalidation of the agency shop provision."
Id. at 275.
I
Sections 8(a)(3) and 14(b) of the National Labor Relations Act,
29 U.S.C. §§ 158(a)(3) and 164(b), delineate the federal interest
in union security arrangements. The first proviso of Section
8(a)(3) [
Footnote 2/3] says
Page 426 U. S. 425
that no law of the United States
"shall preclude an employer from making an agreement with a
labor organization . . . to require as a condition of employment
membership therein on or after the thirtieth day"
of employment. The second proviso qualifies the first:
"[N]o employer shall justify any discrimination against an
employee for nonmembership in a labor organization (A) if he has
reasonable grounds for believing that such membership was not
available to the employee on the same terms and conditions
generally applicable to other members, or (b) if he has reasonable
grounds for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership."
Together, these two provisions sanction a "union shop"
agreement, which, although permitting employment of those who are
not union members, requires employees to join the union (or pay
dues in lieu of membership) 30 days after employment has begun. But
they outlaw a "closed shop" agreement, which requires union
membership as a precondition to both initial and continued
employment.
NLRB v. General Motors Corp., 373 U.
S. 734,
373 U. S.
738-739 (1963).
These provisions modified § 8(3) of the National Labor Relations
Act, 49 Stat. 452, which permitted not only union shops, but closed
shops, as well.
See NLRB v. General Motors Corp., supra at
373 U. S.
739-740; S.Rep.
Page 426 U. S. 426
No. 105, 80th Cong., 1st Sess., 6 (1947); H.R.Conf.Rep. No. 510,
80th Cong., 1st Sess., 41 (1947). Section 8(a)(3) was designed to
curb the abuses of compulsory unionism, which "create[d] too great
a barrier to free employment," S.Rep. No. 105,
supra at 6,
but, at the same time, to continue to afford unions a measure of
security by enabling them to prevent "free riders."
Id. at
7. As the Court stated in the
General Motors case,
supra at
373 U. S.
740-741:
"These additions [to § 8(a)(3)] were intended to accomplish twin
purposes. On the one hand, the most serious abuses of compulsory
unionism were eliminated by abolishing the closed shop. On the
other hand, Congress recognized that, in the absence of a union
security provision, 'many employees sharing the benefits of what
unions are able to accomplish by collective bargaining will refuse
to pay their share of the cost.'"
Section 8(a)(3) thus accommodated the competing interests by
eliminating the union hiring hall while assuring that, "[a]s far as
the federal law was concerned, all employees could be required to
pay their way." 373 U.S. at
373 U. S. 741;
see S.Rep. No. 105,
supra at 6-7.
But Congress chose not to establish a uniform national rule
permitting the union shop. States were to be left free to determine
that security arrangements of any sort were against the public
interest.
Algoma Plywood Co. v. Wisconsin Board,
336 U. S. 301,
336 U. S.
313-314 (1949). This was made clear in § 14(b) of the
National Labor Relations Act, as added by the Labor Management
Relations Act, 29 U.S.C. § 164(b), which states:
"Nothing in this Act shall be construed as authorizing the
execution or application of agreements requiring membership in a
labor organization as a condition of employment in any State or
Territory
Page 426 U. S. 427
in which such execution or application is prohibited by State or
Territorial law."
Congress added this section to the Act "to forestall the
inference that federal policy was to be exclusive."
Algoma
Plywood Co., supra at
336 U. S. 314. Section 14(b)
"was designed to prevent other sections of the Act from
completely extinguishing state power over certain union security
arrangements. . . . It was desired to 'make certain' that § 8(a)(3)
could not 'be said to authorize arrangements of this sort in States
where such arrangements were contrary to the State policy.'"
Retail Clerks v. Schermerhorn, 373 U.
S. 746,
373 U. S. 751
(1963), quoting H.R.Conf.Rep. No. 510,
supra, at 60.
To summarize, §§ 8(a)(3) and 14(b) together exhaust the federal
interest in the types of union security agreements employers and
unions may make. The closed shop is absolutely prohibited. And any
lesser security arrangement, though consistent with the federal
interest, is sanctioned only if it harmonizes with state
policy.
It is undisputed that Texas law forbids union shop agreements.
[
Footnote 2/4] The issue presented
by this case, then, is whether this Texas law may extend to bar the
security provision contained in the collective bargaining agreement
between the petitioners and the respondent. The petitioners contend
that the applicability of state right-to-work laws depends upon
where the work is to be performed. They conclude that, because the
employees in question perform 80% to 90% of their work on the high
seas, the federal policy "favoring" union shop provisions should
prevail. [
Footnote 2/5] The
Government, as
amicus curiae,
Page 426 U. S. 428
agreeing with the petitioners, asserts that Texas does not have
a substantial enough interest to apply its labor policies, since
little work is performed within its borders. The respondent, in
turn, relying upon the decisions of the District Court and the
Court of Appeals, claims that the place of hiring is the key to
analyzing the choice of law problem.
The language of § 14(b) provides no clear guidance for
determining whose law should prevail in a multi-jurisdictional
situation. Section 14(b) does prescribe a threshold: in order to
apply its right-to-work laws, a State must be the place of
"execution" or "application" of the union security agreement.
"Execution" and "application" are, however, broadly inclusive
nouns. It is hardly conceivable that a State would wish to enforce
its right-to-work laws unless the collective bargaining agreement
was in some sense either executed or applied in the State. Yet
clearly each of a number of States in a multistate situation could
plausibly argue that it is the situs of "application" or
"execution." The State
Page 426 U. S. 429
of "execution," for example, could be considered to be either
the State where the contract was signed or the State where the
terms of the contract are to be carried out. "Application" could
refer either to the hiring process or the performance of the work.
In short, there is no intelligent way to infer from § 14(b)'s
expansive language which of a number of arguably relevant aspects
of the employment relationship should be deemed the dispositive
contact for deciding which State's law is to apply.
The specific legislative history of § 14(b) is of no greater aid
in resolving the dilemma. [
Footnote
2/6] Congress simply did not address the choice of law problems
that would inevitably arise in multistate workforce situations. We
are, however, not entirely without signposts. When Congress
legislated with respect to union security agreements in 1947, it
did not write on a clean slate, for few issues in American labor
history had been as controverted as the moral legitimacy, and,
indeed, the legality, of union security agreements. It is
unnecessary for the purpose of this case to review the history of
that long controversy. [
Footnote
2/7] It is sufficient only to realize that Congress
Page 426 U. S. 430
did not resolve it, but instead left each individual State free
to outlaw union security agreements in the interest of a perceived
policy of keeping industrial relations more individualistic, open,
and free.
Although apparently no recorded legislative history exists to
interpret the design of the Texas Legislature, the language of the
statutes suggests that their principal purpose was, indeed, to
democratize the hiring process. The Preamble of Public Policy
contained in Art. 5154a, § 1, Tex.Rev.Civ.Stat.Ann. (1971), states
in part:
"Because of the activities of labor unions affecting the
economic conditions of the country and the State, entering as they
do into practically every business and industrial enterprise, it is
the sense of the Legislature that such organizations affect the
public interest and are charged with a public use.
The working
man, unionist or non-unionist, must be protected. The right to work
is the right to live."
(Emphasis added.) Article 5207a states in part:
"Section 1. The inherent right of a person to work and bargain
freely with his employer, individually or collectively, for terms
and conditions of his employment shall not be denied or infringed
by law, or by any organization of whatever nature."
"Sec. 2. No person shall be denied employment on account of
membership or nonmembership in a labor union."
Finally, Art. 5154g, § 1, states:
"It is hereby declared to be the public policy of the State of
Texas that the right of persons to work shall not be denied or
abridged on account of membership
Page 426 U. S. 431
or nonmembership in any labor union or labor organization, and
that, in the exercise of such rights, all persons shall be free
from threats, force, intimidation or coercion."
Each of these passages bespeaks an interest in a free hiring
process and in preserving the freedom of the working man or woman
to pursue and continue in employment, unhindered by coerced but
unwanted union association. [
Footnote
2/8]
In
Lunsford v. City of Bryan, 297 S.W.2d 115,
117 (1957), the
Supreme Court of Texas interpreted these statutes:
"The intent seems obvious to protect employees in the exercise
of the right of free choice of joining or not joining a union. The
purpose of the statute is to afford equal opportunity to work to
both classes of employees."
This authoritative state judicial interpretation thus confirms
what seems manifest from the language of the statutes: Texas'
right-to-work laws are concerned with the process by which
employees are hired and the conditions which, after their hiring,
may burden their employment.
In the light of these purposes, I agree with the District Court
and the Court of Appeals that the laws of Texas govern the union
security agreement in this case. It is true that a number of States
might legitimately assert an interest in the hiring process. The
State where the employees reside, the State where the conditions of
employment were negotiated, and the State where the hiring decision
actually took place all have their claims. I believe, however, that
the State where
Page 426 U. S. 432
the hiring actually takes place is, so far as the issue now
before us goes, the most relevant jurisdiction for choice of law
purposes, and that State, in this case, is Texas. [
Footnote 2/9]
In the first place, it seems clear that the State where the
hiring actually takes place is the State most deeply concerned with
the conditions of hire. The policy of a State such as Texas, which
favors unrestricted hiring, will be seriously undermined when union
security agreements control the hiring that takes place within its
jurisdiction. Moreover, the State where the hiring actually occurs
normally provides the bulk of the workforce from which the
employees are drawn. And while a rule designating the laws of the
State where the bargaining agreement was negotiated would provide
for ease of application, it would also encourage forum shopping by
both unions and management seeking the sanction of state laws that
would most favor their interests.
Against this analysis, both the Government, as
amicus,
and the petitioners contend that job situs should be the
determining factor in applying right-to-work laws. The parties do
not explain, however, what the relevance of job situs is to laws
that concern themselves exclusively
Page 426 U. S. 433
with the hiring process.
Cf. A. Von Mehren & D.
Trautman, The Law of Multistate Problems 779, 102-105 (1965).
Indeed, the place where work is actually performed is probably the
least relevant factor in the entire employment relationship for
resolving conflicts over the legality of union security agreements.
It is undeniable, as the petitioners point out, that the job situs
is where most of the day-to-day contact between employer and
employees occurs. But right-to-work laws do not reflect a concern
with job safety, or work rules, or hours of employment, or
grievance procedures, or other similar conditions of employment
with which the jurisdiction where the work actually takes place is
legitimately concerned. [
Footnote
2/10]
Page 426 U. S. 434
A job situs test for the resolution of which State's union
security law applies is, therefore, so arbitrary in my view as to
approach irrationality.
II
But even if I could agree with the petitioners that the jobsite
is the critical factor in determining what law should control the
legality of union security agreements, I would still find the laws
of Texas applicable in this case. Quite simply, the employees here
involved clearly perform a larger share of their employment duties
in Texas than in any other State.
By contrast, the petitioners perceive this case as presenting a
vertical conflict between Texas law and "federal law." If the law
of the jurisdiction where the work is performed controls, then,
according to that perception, the "federal" rule
ipso
facto prevails, since 80% to 90% of the work is performed on
the high seas.
The petitioners suggest alternative and somewhat inconsistent
theories to justify the intrusion of "federal law" into this case.
The first is that the high seas are, like the District of Columbia,
a federal territory over which Congress exercises exclusive,
preemptive jurisdiction. [
Footnote
2/11] This theory is untenable. Congress undoubtedly has power
under the Admiralty Clause, Art. III, § 2, to
Page 426 U. S. 435
preempt the entire field of maritime law.
E.g., Panama R.
Co. v. Johnson, 264 U. S. 375,
264 U. S. 386
(1924);
Knickerbocker Ice Co. v. Stewart, 253 U.
S. 149,
253 U. S. 160
(1920);
see G. Gilmore & C. Black, The Law of
Admiralty 4547 (1975); Currie, Federalism and the Admiralty: "The
Devil's Own Mess," 1960 Sup.Ct.Rev. 158, 158-165. It has exercised
this power liberally to regulate, for example, various aspects of
maritime employment.
See 46 U.S.C. §§ 563-568.
Nevertheless, as Mr. Justice Frankfurter stated for the Court in
Romero v. International Terminal Operating Co.,
358 U. S. 354,
358 U. S. 373
(1959):
"Although the corpus of admiralty law is federal in the sense
that it derives from the implications of Article III evolved by the
courts, to claim that all enforced rights pertaining to matters
maritime are rooted in federal law is a destructive
oversimplification of the highly intricate interplay of the States
and the National Government in their regulation of maritime
commerce. It is true that state law must yield to the needs of a
uniform federal maritime law when this Court finds inroads on a
harmonious system. But this limitation still leaves the States a
wide scope."
It is unnecessary here to delineate the "wide scope" within
which the States may legislate about things maritime. To refute the
notion that the high seas are a species of federal enclave, it is
sufficient to point out that the Court has found state legislation
preempted only when the nature of the problem required the
application of a uniform rule or when the state law unduly hampered
maritime commerce.
See, e.g., Askew v. American Waterways
Operators, Inc., 411 U. S. 325,
411 U. S.
337-344 (1973);
Kossick v. United Fruit Co.,
365 U. S. 731,
365 U. S.
738-739 (1961);
Huron Cement Co. v. Detroit,
362 U. S. 440,
362 U. S. 444
(1960). The Court has never struck
Page 426 U. S. 436
down a state law on the ground that the States are
jurisdictionally incompetent to legislate over matters that occur
within the ocean "territory."
The petitioners appear also to argue, however, that, even if the
high seas are not a territory over which Congress exercises
exclusive lawmaking power, the Texas rule outlawing union shops
must fall because the Federal Government has preempted the field of
maritime labor relations.
Cf. Southern Pacific Co. v.
Jensen, 244 U. S. 205,
244 U. S. 216
(1917); Currie,
supra at 165
passim. It is true
that Congress has deeply involved itself in the affairs of seamen.
Federal maritime law covers, among other things, maritime liens for
the collection of wages, 46 U.S.C. § 953, the rights of seamen to
receive at every port half of unpaid wages earned, 46 U.S.C. § 597,
and double payment of wages withheld without sufficient cause, 46
U.S.C. § 596, physical qualifications and requirements for seamen,
46 U.S.C. § 672, and disciplinary problems, 46 U.S.C. §§
701-710.
Despite this manifest federal interest in many aspects of the
maritime employment relationship, I think that Texas law still
controls. Section 14(b), on its face, clearly settles any apparent
conflict between state and federal law in favor of the state rule.
In enacting § 14(b), Congress concluded that diversity in the area
of union security agreements would compromise no federal interest.
"By making the matter one of state law, Congress has not only
authorized multiformity on the subject, but practically guaranteed
it."
Motor Coach Employees v. Lockridge, 403 U.
S. 274,
403 U. S. 317
(1971) (WHITE, J., dissenting).
When Congress has in the past determined that the nature of an
interstate industry requires application of a uniform rule to
govern union security agreements, it has not hesitated to act. For
example, before 1951, the Railway Labor Act, 45 U.S.C. § 152 Fifth,
prohibited the
Page 426 U. S. 437
union shop. Fully aware of § 14(b) of the National Labor
Relations Act, Congress amended the Railway Labor Act in 1951 to
permit railroad carriers and their employees to enter into union
shop agreements
"[n]otwithstanding any other provisions of this [Act], or of any
other statute or law of the United States, or Territory thereof, or
of any State. . . ."
45 U.S.C. § 152 Eleventh.
See Railway Employes' Dept. v.
Hanson, 351 U. S. 225
(1956). That Congress has not similarly legislated for the maritime
industry is compelling evidence that it finds compatible with
federal interests diversity among the States as to permissible
union security agreements.
In conclusion, I believe that the place of hiring is the
critical factor in determining the choice of law for union security
agreements. But even if the place where the work is to be performed
is the criterion, Texas law should still be applied, since, under
this collective bargaining agreement, more work is performed in
that State than in any other, and Congress has refrained from
either establishing or indicating a need for a uniform rule to the
contrary in maritime employment. I would, therefore, affirm the
judgment before us.
[
Footnote 2/1]
Sixty of the employees listed New York as their residence, 21
New Jersey, 16 Florida, 13 Louisiana, 10 Maine, and 10 Rhode
Island. The remainder resided in 16 other States.
[
Footnote 2/2]
It is conceded that these state laws prohibit an agency shop
agreement of the kind here involved.
See 426
U.S. 407fn2/4|>n. 4,
infra.
[
Footnote 2/3]
Section 8(a)(3) reads in full:
"It shall be an unfair labor practice for an employer --"
"
* * * *"
"(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization:
Provided, That
nothing in this subchapter, or in any other statute of the United
States, shall preclude an employer from making an agreement with a
labor organization (not established, maintained, or assisted by any
action defined in this subsection as an unfair labor practice) to
require as a condition of employment membership therein on or after
the thirtieth day following the beginning of such employment or the
effective date of such agreement, whichever is the later, (i) if
such labor organization is the representative of the employees as
provided in section 159(a) of this title, in the appropriate
collective bargaining unit covered by such agreement when made; and
(ii) unless following an election held as provided in section
159(e) of this title within one year preceding the effective date
of such agreement, the Board shall have certified that at least a
majority of the employees eligible to vote in such election have
voted to rescind the authority of such labor organization to make
such an agreement:
Provided further, That no employer
shall justify any discrimination against an employee for
nonmembership in a labor organization (A) if he has reasonable
grounds for believing that such membership was not available to the
employee on the same terms and conditions generally applicable to
other members, or (b) if he has reasonable grounds for believing
that membership was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership. . . ."
[
Footnote 2/4]
In Opinion No. WW-1018 (1961), the Attorney General of Texas
held that union shop agreements violate Art. 5154a, § 8a, Art.
5207a, § 2, and Art. 5154g, § 1, Tex.Rev.Civ.Stat.Ann. (1971).
[
Footnote 2/5]
It is not at all obvious that federal policy favors union shop
agreements. It is true that such agreements are legal in States
that have not passed legislation forbidding them, whereas Congress
might have reversed the burden by making all union security
agreements illegal except in States that choose to permit them.
Burdens in the law, however, are allocated for a variety of
reasons, only one of which is to make more difficult the
achievement of a disfavored result. Another, equally plausible
explanation for the wording of § 14(b) is that Congress might have
determined that less disruption in the state lawmaking process
would result if union shop agreements were permitted absent state
legislation. In 1947, when Congress was considering the Labor
Management Relations Act, only 12 States barred the union shop.
S.Rep. No. 105, 80th Cong., 1st Sess., 6 (1947). Had Congress
placed the burden of legislating on States wishing to legalize the
union shop, three-fourths of the States would have had to enact
legislation. As § 14(b) was in fact worded, no state legislation
was required to preserve the
status quo. In sum, there is
simply no way of deducing from the construction of § 14(b) whether,
despite leaving the issue to the States, Congress preferred or
disfavored the union shop.
[
Footnote 2/6]
The en banc opinion of the Court of Appeals relied upon language
in the House Report that condemned the evils of the union hiring
hall in the maritime industry to support the proposition that the
place of hiring is the critical factor in determining the choice of
law. 504 F.2d 272, 277, and n. 10 (CA5 1974). As the context of the
cited language makes clear, however,
see S.Rep. No. 105,
supra at 6-7, Congress' concern over the hiring hall led
it to outlaw the closed shop. Having forbidden agreements making
union membership a precondition to employment, Congress exhausted
the federal interest in the union hiring hall.
[
Footnote 2/7]
See generally R. Morris, Government and Labor In Early
America, 136-207 (1946); P. Sultan, Right-To-Work Laws: A Study in
Conflict 12-30 (1958); J. Toner, The Closed Shop 1-92 (1942);
Dempsey, The Right-To-Work Controversy, 16 Lab.L.J. 387 (1966);
Warshal, "Right-to-Work," Pro and Con, 17 Lab.L.J. 131 (1966);
Simons, Some Reflections on Syndicalism, 52 J.Pol.Econ. 1
(1944).
[
Footnote 2/8]
For an analysis of the effect of the Texas right-to-work laws,
see Meyers, Effects of "Right-To-Work" Laws: A Study of
the Texas Act, 9 Ind. & Lab.Rel.Rev. 77, 84 (1955) (concluding
that laws had had "little effect" on the rate of union organization
in all but a few selected industries).
[
Footnote 2/9]
The final hiring decision for all of the employees here involved
was made in Beaumont, Tex. It could be argued that the interests of
both Texas and New York, where a minority of the employees applied
for their jobs (and which permits union shops), could be
accommodated through an arrangement by which the union security
laws of each State were applied to those of the workforce who had
applied for work within each jurisdiction.
See Comment, 88
Harv.L.Rev. 1620, 1629-1630 (1975). Such a solution, however, which
would likely place members of the same crew under different
regimes, could easily disrupt the management of labor relations,
and would create unjustifiable uncertainties in the law.
Cf.
Dale System, Inc. v. Time, Inc., 116 F.
Supp. 527 (Conn.1953); A. Von Mehren & D. Trautman, The Law
of Multistate Problems 395 (1965). I would hold, therefore, that a
uniform rule must be applied to all employees who are governed by a
single collective bargaining agreement.
[
Footnote 2/10]
The Court suggests,
ante at
426 U. S. 419,
that adopting a choice of law rule that focuses upon the place of
hiring might result in the extraterritorial application of a
State's laws. This contention begs the question. It is true that
some components of the employment relationship are found outside
Texas. But this is inevitable in a multijurisdictional collective
bargaining agreement. Since the one activity -- hiring -- that is
relevant to the Texas statutes does take place in Texas, not at
sea, their application under the facts of this case does not give
extraterritorial effect to Texas' laws.
The petitioners argue that, if the place of hiring is
dispositive for conflict of laws purposes, § 14(b)'s strictures
will be evaded, since companies will simply relocate in that
minority of States that have enacted right-to-work laws. The answer
to this contention turns upon what is meant by evasion. The rule I
would adopt centers upon where the actual, not some fictional,
hiring decision is made. Thus, a sham relocation in a right-to-work
State would not be sufficient to engage that State's union security
rules if the actual hiring decisions continued to be made in a
jurisdiction that permitted union shop agreements.
If, on the other hand, evasion is used to characterize a genuine
corporate relocation, including hiring, which is motivated by a
quest for more favorable labor laws, then the short answer is that
there is nothing illegitimate or devious about a company's moving
to a new location to take advantage of lower prevailing wage rates,
taxes, raw materials, or production costs, or to operate under more
favorable laws.
[
Footnote 2/11]
It is worth noting that a conflict between the law of a federal
Territory and that of a State is not a vertical conflict at all. A
vertical conflict is characterized by the conflict between a
superior and an inferior lawmaking authority, both of which may
operate within the same territory. A state law legalizing the
closed shop, for example, would conflict, and have to give way to
the federal law outlawing such arrangements. A horizontal conflict,
on the other hand, exists when the laws of two or more equally
competent lawmaking bodies, all of which have plenary jurisdiction
within their respective territories, are in conflict. A conflict
between the laws of two States would properly be characterized as
horizontal, as would that between the laws of the District of
Columbia and a State.