1. The amendment to the Arizona Constitution which provides that
no person shall be denied the opportunity to obtain or retain
employment because of nonmembership in a labor organization and
forbids anyone to enter into an agreement to do so does not deny
employers, labor unions or members of labor unions freedom of
speech, assembly or petition, or impair the obligation of their
contracts, or deprive them of due process of law, contrary to the
Constitution of the United States.
Lincoln Federal Labor Union
v. Northwestern Iron & Metal Co., ante, p.
335 U. S. 525. Pp.
335 U. S.
539-540.
2. Nor does its failure to forbid like discrimination against
union members deny them equal protection of the laws contrary to
the Fourteenth Amendment -- especially in view of the fact that
certain Arizona statutes make it a misdemeanor for any person to
coerce a worker to make a contract "not to join or become a member
of a labor organization" as a condition of employment in Arizona,
and make such contracts void and unenforceable.
Labor Board v.
Jones & Laughlin Corp., 301 U. S. 1. Pp.
335 U. S.
540-542.
67 Ariz. 20, 189 P.2d 912, affirmed.
In a suit by certain labor unions, an officer of one of them,
and an employer for a declaratory judgment and equitable relief
against enforcement of the "Right to Work Amendment" to the Arizona
Constitution, an Arizona trial court dismissed the complaint on the
ground that the amendment did not violate the Constitution of the
United States. The Supreme Court of Arizona affirmed. 67 Ariz. 20,
189 P.2d 912. On appeal to this Court,
affirmed, p.
335 U. S.
542.
Page 335 U. S. 539
MR. JUSTICE BLACK delivered the opinion of the Court.
This case is here on appeal from the Supreme Court of Arizona
under § 237 of the Judicial Code as amended, 28 U.S.C. 344 (now §
1257). It involves the constitutional validity of the following
amendment to the Arizona Constitution, adopted at the 1946 general
election:
"No person shall be denied the opportunity to obtain or retain
employment because of nonmembership in a labor organization, nor
shall the State or any subdivision thereof, or any corporation,
individual or association of any kind enter into any agreement,
written or oral, which excludes any person from employment or
continuation of employment because of nonmembership in a labor
organization."
Laws Ariz.1947, p. 399.
The Supreme Court of Arizona sustained the amendment as
constitutional against the contentions that it
"deprived the union appellants of rights guaranteed under the
First Amendment and protected against invasion by the states under
the Fourteenth Amendment to the
Page 335 U. S. 540
United States Constitution;"
that it impaired the obligations of existing contracts in
violation of Art. I, § 10, of the United States Constitution, and
that it deprived appellants of due process of law and denied them
equal protection of the laws contrary to the Fourteenth Amendment.
All of these questions, properly reserved in the state court, were
decided against the appellants by the State Supreme Court.
[
Footnote 1] The same questions
raised in the state court are presented here.
For reasons given in two other cases decided today, we reject
the appellants' contentions that the Arizona amendment denies them
freedom of speech, assembly or petition, impairs the obligation of
their contracts, or deprives them of due process of law.
Lincoln Federal Labor Union No.19129, American Federation of
Labor v. Northwestern Iron & Metal Co., and
Whitaker
v. North Carolina, ante, p.
335 U. S. 525. A
difference between the Arizona amendment and the amendment and
statute considered in the Nebraska and North Carolina cases has
made it necessary for us to give separate consideration to the
contention in this case that the Arizona amendment denies
appellants equal protection of the laws.
The language of the Arizona amendment prohibits employment
discrimination against nonunion workers, but it does not prohibit
discrimination against union workers. It is argued that a failure
to provide the same protection for union workers as that provided
for nonunion workers places the union workers at a disadvantage,
thus denying unions and their members the equal protection of
Arizona's laws.
Although the Arizona amendment does not itself expressly
prohibit discrimination against union workers, that state has not
left unions and union members without protection from
discrimination on account of union membership.
Page 335 U. S. 541
Prior to passage of this constitutional amendment, Arizona made
it a misdemeanor for any person to coerce a worker to make a
contract "not to join or become a member of any labor organization"
as a condition of getting or holding a job in Arizona. A section of
the Arizona code made every such contract (generally known as a
"yellow dog contract") void and unenforceable. [
Footnote 2] Similarly, the Arizona constitutional
amendment makes void and unenforceable contracts under which an
employer agrees to discriminate against nonunion workers. Statutes
implementing the amendment have provided as sanctions for its
enforcement relief by injunction and suits for damages for
discrimination practiced in violation of the amendment. [
Footnote 3] Whether the same kind of
sanctions would be afforded a union worker against whom an employer
discriminated is not made clear by the opinion of the State Supreme
Court in this case. But, assuming that Arizona courts would not
afford a remedy by injunction or suit for damages, we are unable to
find any indication that Arizona's amendment and statutes are
weighted on the side of nonunion as against union workers. We are
satisfied that Arizona has attempted both in the anti-yellow dog
contract law and in the antidiscrimination constitutional amendment
to strike at what were considered evils, to strike where those
evils were most felt, and to strike in a manner that would
effectively suppress the evils.
In
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1, this
Court considered a challenge to the National Labor Relations Act on
the ground that it applied restraints against employers, but did
not apply similar restraints against wrongful conduct by employees.
We there pointed out, at p.
301 U. S. 46, the
general rule that "legislative
Page 335 U. S. 542
authority, exerted within its proper field, need not embrace all
the evils within its reach." And, concerning state laws, we have
said that the existence of evils against which the law should
afford protection and the relative need of different groups for
that protection "is a matter for the legislative judgment."
West Coast Hotel Co. v. Parrish, 300 U.
S. 379,
300 U. S. 400.
We cannot say that the Arizona amendment has denied appellants
equal protection of the laws.
Affirmed.
MR. JUSTICE MURPHY, dissents.
[
Footnote 1]
American Federation of Labor v. American Sash & Door
Co., 67 Ariz. 20, 189 P.2d 912.
[
Footnote 2]
Ariz.Code Ann. § 56-120 (1939).
[
Footnote 3]
Ariz.Sess.Laws 1947, ch. 81, p. 173.
MR. JUSTICE FRANKFURTER, concurring.
*
Arizona, Nebraska, and North Carolina have passed laws
forbidding agreements to employ only union members. The United
States Constitution is invoked against these laws. Since the cases
bring into question the judicial process in its application to the
Due Process Clause, explicit avowal of individual attitudes towards
that process may elucidate, and thereby strengthen, adjudication.
Accordingly, I set forth the steps by which I have reached
concurrence with my brethren on what I deem the only substantial
issue here, on all other issues joining the Court's opinion.
The coming of the machine age tended to despoil human
personality. It turned men and women into "hands." The industrial
history of the early Nineteenth Century demonstrated the
helplessness of the individual employee to achieve human dignity in
a society so largely affected by technological advances. Hence, the
trade union made itself increasingly felt, not only as an
indispensable weapon of self-defense on the part of workers,
Page 335 U. S. 543
but as an aid to the wellbeing of a society in which work is an
expression of life, and not merely the means of earning
subsistence. But unionization encountered the shibboleths of a
pre-machine age, and these were reflected in juridical assumptions
that survived the facts on which they were based. Adam Smith was
treated as though his generalizations had been imparted to him on
Sinai, and not as a thinker who addressed himself to the
elimination of restrictions which had become fetters upon
initiative and enterprise in his day. Basic human rights expressed
by the constitutional conception of "liberty" were equated with
theories of
laissez faire. [
Footnote 2/1] The result was that economic views of
confined validity were treated by lawyers and judges as though the
Framers had enshrined them in the Constitution. This misapplication
of the notions of the classic economists and resulting disregard of
the perduring reach of the Constitution led to Mr. Justice Holmes'
famous protest in the
Lochner case against measuring the
Fourteenth Amendment by Mr. Herbert Spencer's Social Statics.
198 U. S. 198 U.S.
45,
198 U. S. 75.
Had not Mr. Justice Holmes' awareness of the impermanence of
legislation as against the permanence of the Constitution gradually
prevailed, there might indeed have been "hardly any limit but the
sky" to the embodiment of "our economic or moral beliefs" in that
Amendment's "prohibitions."
Baldwin v. Missouri,
281 U. S. 586,
281 U. S.
595.
The attitude which regarded any legislative encroachment upon
the existing economic order as infected with unconstitutionality
led to disrespect for legislative attempts to strengthen the
wage-earner's bargaining power.
Page 335 U. S. 544
With that attitude as a premise,
Adair v. United
States, 208 U. S. 161, and
Coppage v. Kansas, 236 U. S. 1,
followed logically enough; not even
Truax v. Corrigan,
257 U. S. 312,
could be considered unexpected. But when the tide turned, it was
not merely because circumstances had changed and there had arisen a
new order with new claims to divine origin. The opinion of Mr.
Justice Brandeis in
Senn v. Tile Layers Union,
301 U. S. 468,
shows the current running strongly in the new direction -- the
direction not of social dogma, but of increased deference to the
legislative judgment. "Whether it was wise," he said, now speaking
for the Court and not in dissent, "for the state to permit the
unions to [picket] is a question of its public policy -- not our
concern." 301 U.S. at
301 U. S. 481.
Long before that, in
Duplex Printing Press Co. v. Deering,
254 U. S. 443,
254 U. S. 488,
he had warned:
"All rights are derived from the purposes of the society in
which they exist; above all rights rises duty to the community. The
conditions developed in industry may be such that those engaged in
it cannot continue their struggle without danger to the community.
But it is not for judges to determine whether such conditions
exist, nor is it their function to set the limits of permissible
contest and to declare the duties which the new situation demands.
This is the function of the legislature, which, while limiting
individual and group rights of aggression and defense, may
substitute processes of justice for the more primitive method of
trial by combat."
Unions are powers within the State. Like the power of industrial
and financial aggregations, the power of organized labor springs
from a group which is only a fraction of the whole that Mr. Justice
Holmes referred to as "the one club to which we all belong." The
power of the former is subject to control, though, of course,
the
Page 335 U. S. 545
particular incidence of control may be brought to test at the
bar of this Court.
E.g., Northern Securities Co. v. United
States, 193 U. S. 197;
North American Co. v. SEC, 327 U.
S. 686,
327 U. S. 708.
Neither can the latter claim constitutional exemption. Even the
Government -- the organ of the whole people -- is restricted by the
system of checks and balances established by our Constitution. The
designers of that system distributed authority among the three
branches "not to promote efficiency, but to preclude the exercise
of arbitrary power." Mr. Justice Brandeis, dissenting in
Myers
v. United States, 272 U. S. 52,
272 U. S. 293.
Their concern for individual members of society, for whose
wellbeing government is instituted, gave urgency to the fear that
concentrated power would become arbitrary. It is a fear that the
history of such power, even when professedly employed for
democratic purposes, has hardly rendered unfounded.
If concern for the individual justifies incorporating in the
Constitution itself devices to curb public authority, a legislative
judgment that his protection requires the regulation of the private
power of unions cannot be dismissed as insupportable. A union is no
more than a medium through which individuals are able to act
together; union power was begotten of individual helplessness. But
that power can come into being only when, and continue to exist
only so long as, individual aims are seen to be shared in common
with the other members of the group. There is a natural emphasis,
however, on what is shared, and a resulting tendency to subordinate
the inconsistent interests and impulses of individuals. From this,
it is an easy transition to thinking of the union as an entity
having rights and purposes of its own. An ardent supporter of trade
unions who is also no less a disinterested student of society has
pointed out that,
"As soon as we personify the idea, whether it is a country or a
church, a trade union, or an employers' association, we obscure
Page 335 U. S. 546
individual responsibility by transferring emotional loyalties to
a fictitious creation which then acts upon us psychologically as an
obstruction, especially in times of crisis, to the critical
exercise of a reasoned judgment."
Laski, Morris Cohen's Approach to Legal Philosophy, 15 U. of
Chi.L.Rev. 575, 581 (1948).
The right of association, like any other right carried to its
extreme, encounters limiting principles.
See Hudson County
Water Co. v. McCarter, 209 U. S. 349,
209 U. S. 355.
At the point where the mutual a vantage of association demands too
much individual disadvantage, a compromise must be struck.
See Dicey, Law and Public Opinion in England 465-66
(1905). When that point has been reached -- where the intersection
should fall -- is plainly a question within the special province of
the legislature. This Court has given effect to such a compromise
in sustaining a legislative purpose to protect individual employees
against the exclusionary practices of unions.
Steele v.
Louisville & N. R. Co., 323 U. S. 192;
Wallace Corp. v. Labor Board, 323 U.
S. 248;
Railway Mail Assn. v. Corsi,
326 U. S. 88;
cf. Elgin, Joliet & Eastern R. Co. v. Burley,
325 U. S. 711,
325 U. S.
733-734. The rationale of the Arizona, Nebraska, and
North Carolina legislation prohibiting union security agreements is
founded on a similar resolution of conflicting interests. [
Footnote 2/2] Unless we are to treat
Page 335 U. S. 547
as unconstitutional what goes against the grain because it
offends what we may strongly believe to be socially desirable, that
resolution must be given respect.
It is urged that the compromise which this legislation embodies
is no compromise at all, because fatal to the survival of organized
labor. But can it be said that the legislators and the people of
Arizona, Nebraska, and North Carolina could not, in reason, be
skeptical of organized labor's insistence upon the necessity to its
strength of power to compel, rather than to persuade, the
allegiance of its reluctant members? In the past fifty years, the
total number of employed, counting salaried workers and the
self-employed but not farmers or farm laborers, has not quite
trebled, while total union membership has increased more than
thirty-three times; at the time of the open shop drive following
the First World War, the ratio of organized to unorganized
nonagricultural workers was about one to nine, and now it is almost
one to three. [
Footnote 2/3]
However necessitous may have been the circumstances of unionism in
1898 or even in 1923, its status in 1948 precludes constitutional
condemnation of a legislative judgment, whatever we may think of
it, that the need of this type of regulation outweighs its
detriments. It would be arbitrary for this Court to deny the States
the right to experiment with such laws, especially in view of the
fact that the Railroad Brotherhoods have held their own despite
Page 335 U. S. 548
congressional prohibition of union security [
Footnote 2/4] and in the light of the experience of
countries advanced in industrial democracy, such as Great Britain
and Sweden, where deeply rooted acceptance of the principles of
collective
Page 335 U. S. 549
bargaining is not reflected in uncompromising demands for
contractually guaranteed security. [
Footnote 2/5] Whether it is preferable in the public
interest that trade unions should be subjected to State
intervention or left to the free play of social forces, whether
experience has disclosed "union unfair labor practices," and, if
so, whether legislative correction is more appropriate than
self-discipline and the
Page 335 U. S. 550
pressure of public opinion -- these are questions on which it is
not for us to express views. The very limited function of this
Court is discharged when we recognize that these issues are not so
unrelated to the experience and feelings of the community as to
render legislation addressing itself to them willfully destructive
of cherished rights. For these are not matters, like censorship of
the press or separation of Church and State, on which history,
through the Constitution, speaks so decisively as to forbid
legislative experimentation.
But the policy which finds expression in the prohibition of
union security agreements need nor rest solely on a legislative
conception of the public interest which includes, but transcends,
the special claims of trade unions. The States are entitled to give
weight to views combining opposition to the "closed shop" with long
range concern for the welfare of trade unions. Mr. Justice
Brandeis, for example, before he came to this Court, had been a
staunch promoter of unionism. In testifying before the Commission
on Industrial Relations, he said:
"I should say to those employers who stand for the open shop
that they ought to recognize that it is for their interests, as
well as that of the community, that unions should be powerful and
responsible; that it is to their interests to build up the union;
to aid as far as they can in making them stronger, and to create
conditions under which the unions shall be led by the ablest and
most experienced men. [
Footnote
2/6] "
Page 335 U. S. 551
Yet, at the same time, he believed that
"The objections, legal, economic, and social, against the closed
shop are so strong, and the ideas of the closed shop so
antagonistic to the American spirit, that the insistence upon it
has been a serious obstacle to union progress."
Letter of Sept. 6, 1910, to Lawrence F. Abbott of the Outlook.
[
Footnote 2/7] On another occasion,
he wrote,
"But the American people should not and will not accept unionism
if it involves the closed shop. They will not consent to the
exchange of the tyranny of the employer for the tyranny of the
employees."
Letter of Feb. 26, 1912, to Lincoln Steffens. [
Footnote 2/8] In summing up his views on unionism,
he said:
"It is not true that the 'success of a labor union' necessarily
means a 'perfect monopoly.' The union, in order to attain and
preserve for its members industrial liberty, must be strong and
stable. It need not include every member of the trade. Indeed, it
is desirable for both the employer and the union that it should
not. Absolute power leads to excesses and to weakness: neither our
character nor our intelligence can long bear the strain of
unrestricted power. The union attains success when it reaches
Page 335 U. S. 552
the ideal condition, and the ideal condition for a union is to
be strong and stable, and yet to have, in the trade outside its own
ranks, an appreciable number of men who are nonunionist. In any
free community, the diversity of character, of beliefs, of taste --
indeed, mere selfishness -- will insure such a supply if the
enjoyment of this privilege of individualism is protected by law.
Such a nucleus of unorganized labor will check oppression by the
union as the union checks oppression by the employer."
Quoted from Louis D. Brandeis' contribution to a discussion
entitled Peace with Liberty and Justice in 2 Nat.Civic Federation
Rev. No. 2, pp. 1, 16 (May 15, 1905).
Mr. Brandeis, on the long view, deemed the preferential shop a
more reliable form of security both for unions and for society than
the closed shop; that he did so only serves to prove that these are
pragmatic issues not appropriate for dogmatic solution.
Whatever one may think of Mr. Brandeis' views, they have been
reinforced by the adoption of laws insuring against that
undercutting of union standards, which was one of the most serious
effects of a dissident minority in a union shop. Under
interpretations of the National Labor Relations Act, undisturbed by
the Taft-Hartley Act, [
Footnote
2/9] and of the Railway Labor Act, the bargaining
representative designated by a majority of employees has exclusive
power to deal with the employer on matters of wages and working
conditions. Individual contracts, whether on more or less favorable
terms than those obtained by the union, are barred.
J. I. Case
Co. v. Labor Board, 321 U. S. 332;
Order of R.R. Telegraphers v. Railway Express Agency,
321 U. S. 342;
Medo Photo Supply Corp. v. Labor Board, 321 U.
S. 678;
see Elgin,
Page 335 U. S. 553
J. & E. R. Co. v. Burley, 325 U.
S. 711,
325 U. S. 737.
Under these laws, a nonunion bidder for a job in a union shop
cannot, if he would, undercut the union standards.
Even where the social undesirability of a law may be
convincingly urged, invalidation of the law by a court debilitates
popular democratic government. Most laws dealing with economic and
social problems are matters of trial and error. [
Footnote 2/10] That which, before trial, appears
to be demonstrably bad may belie prophecy in actual operation. It
may not prove good, but it may prove innocuous. But even if a law
is found wanting on trial, it is better that its defects should be
demonstrated and removed than that the law should be aborted by
judicial fiat. Such an assertion of judicial power deflects
responsibility from those on whom in a democratic society it
ultimately rests -- the people. If the proponents of union security
agreements have confidence in the arguments addressed to the Court
in their "economic brief," they should address those arguments to
the electorate. Its endorsement would be a vindication that the
mandate of this Court could never give. That such vindication
Page 335 U. S. 554
is not a vain hope has been recently demonstrated by the voters
of Maine, Massachusetts, and New Mexico. [
Footnote 2/11] And although several States in addition
to those at bar now have such laws, [
Footnote 2/12] the legislatures of as many other States
have, sometimes repeatedly, rejected them. [
Footnote 2/13] What one State can refuse to do, another
can undo.
Page 335 U. S. 555
But there is reason for judicial restraint in matters of policy
deeper than the value of experiment: it is founded on a recognition
of the gulf of difference between sustaining and nullifying
legislation. This difference is theoretical in that the function of
legislating is for legislatures who have also taken oaths to
support the Constitution, while the function of courts, when
legislation is challenged, is merely to make sure that the
legislature has exercised an allowable judgment, and not to
exercise their own judgment, whether a policy is within or without
"the vague contours" of due process. Theory is reinforced by the
notorious fact that lawyers predominate in American legislatures.
[
Footnote 2/14] In practice,
also, the difference is wide. In the day-to-day working of our
democracy, it is vital that the power of the nondemocratic organ of
our Government be exercised with rigorous self-restraint. Because
the powers exercised by this Court are inherently oligarchic,
Jefferson all of his life thought of the Court as "an irresponsible
body," [
Footnote 2/15] and
"independent of the nation itself." [
Footnote 2/16] The Court is not saved from being
oligarchic
Page 335 U. S. 556
because it professes to act in the service of humane ends. As
history amply proves, the judiciary is prone to misconceive the
public good by confounding private notions with constitutional
requirements, and such misconceptions are not subject to legitimate
displacement by the will of the people, except at too slow a pace.
[
Footnote 2/17] Judges appointed
for life whose decisions run counter to prevailing opinion cannot
be voted out of office and supplanted by men of views more
consonant with it. They are even farther removed from democratic
pressures by the fact that their deliberations are in secret, and
remain beyond disclosure either by periodic reports or by such a
modern device for securing responsibility to the electorate as the
"press conference." But a democracy need not rely on the courts to
save it from its own unwisdom. If it is alert -- and, without
alertness by the people, there can be no enduring democracy --
unwise or unfair legislation can readily be removed from the
statute books. It is by such vigilance over its representatives
that democracy proves itself.
Our right to pass on the validity of legislation is now too much
part of our constitutional system to be brought
Page 335 U. S. 557
into question. But the implications of that right and the
conditions for its exercise must constantly be kept in mind and
vigorously observed. Because the Court is without power to shape
measures for dealing with the problems of society, but has merely
the power of negation over measures shaped by others, the
indispensable judicial requisite is intellectual humility, and such
humility presupposes complete disinterestedness. And so, in the
end, it is right that the Court should be indifferent to public
temper and popular wishes. Mr. Dooley's "th' Supreme Court follows
th' iliction returns" expressed the wit of cynicism, not the demand
of principle. A court which yields to the popular will thereby
licenses itself to practice despotism, for there can be no
assurance that it will not, on another occasion, indulge its own
will. Courts can fulfill their responsibility in a democratic
society only to the extent that they succeed in shaping their
judgments by rational standards, and rational standards are both
impersonal and communicable. Matters of policy, however, are, by
definition, matters which demand the resolution of conflicts of
value, and the elements of conflicting values are largely
imponderable. Assessment of their competing worth involves
differences of feeling; it is also an exercise in prophecy.
Obviously the proper forum for mediating a clash of feelings and
rendering a prophetic judgment is the body chosen for those
purposes by the people. Its functions can be assumed by this Court
only in disregard of the historic limits of the Constitution.
* [This is also a concurrence in No. 47,
Lincoln Federal
Labor Union v. Northwestern Iron & Metal Co., and No. 34,
Whitaker v. North Carolina, decided together,
ante, p.
335 U. S.
525.]
[
Footnote 2/1]
Of course, theory never wholly squared with the facts. Even
while
laissez faire doctrines were dominant, State
activity in economic affairs was considerable.
See
Handlin, Commonwealth: A Study of the Role of Government in the
American Economy: Massachusetts, 1774-1861 (1947); Hartz, Economic
Policy and Democratic Thought: Pennsylvania, 1776-1860 (1948).
[
Footnote 2/2]
See, e.g., Arizona Initiative and Referendum Publicity
Pamphlet, 1946 (Compiled and Issued by the Secretary of State);
Testimony before the Nebraska State Legislative Committee on Labor
and Public Welfare, March 21, 1947 (transcript of the Committee's
record of the substance of the testimony kindly furnished by the
Department of Justice of Nebraska); The Case against the Closed
Shop in Nebraska, a pamphlet published by the "Right-to-Work
Committee;" N.C.Laws 1947, c. 328, § 1 (preamble). As to the
similar purpose of similar legislation in other States,
see,
e.g., The Open Shop in Virginia, Report of the Virginia
Advisory Legislative Council to the Governor of Virginia, House
Doc. No. 2, p. 7 (1947); Address of Wm. M. Tuck to the General
Assembly and Virginia, Extra Session, House Doc. No. 1, pp. 8-9
(1947); Tucumcari (N.M.) Daily News, Oct. 6, 1948, p. 3, col. 3
(report of radio addresses by sponsors of proposed "Right to Work
amendment").
[
Footnote 2/3]
In the following table, "union membership" includes all members
of AFL, CIO, and independent or unaffiliated unions, including
Canadian members of international unions with headquarters in the
United States; the "employment" figures include all nonagricultural
employees (
i.e., wage and salary workers), nonagricultural
self-employed, unpaid family workers, and domestic service
workers.
Union
Year Membership Employment
(thousands) (thousands)
1898 467 ------
1900 791 17,826
1903 1,824 20,202
1908 2,092 22,871
1913 2,661 27,031
1918 3,368 33,456
1923 3,629 32,314
1928 3,567 35,505
1933 2,857 28,670
1938 8,265 34,530
1943 13,642 45,390
1948 15,600 50,400
The "union membership" totals, except for 1948, are taken from
Membership of Labor Unions in the United States, U.S. Dept. of
Labor, Bureau of Labor Statistics (mimeographed pamphlet); the
"union membership" and "employment" totals for 1948 are preliminary
estimates by the Bureau of Labor Statistics. The "employment"
figures for years up to 1928 are taken from Employment and
Unemployment of the Labor Force, 1900-1940, 2 Conference Board
Economic Record, 77, 80 (1940); "employment" figures for years
since 1929, except 1948, and the basis upon which they are
estimated may be found in Technical Note, 67 Monthly Labor Rev. No.
1, p. 50 (1948).
[
Footnote 2/4]
Section 2, Fourth, of the 1934 Amendment, 48 Stat. 1187, of the
Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 152, Fourth,
appears on its face to bar union shop agreements, and it has been
so interpreted. 40 Op.Atty.Gen., No. 59 (Dec. 29, 1942). The wisdom
of such a legislative policy is, of course, not for us to
judge.
In the following table, "Membership of Brotherhoods" includes
the Brotherhood of Locomotive Engineers, the Brotherhood of
Locomotive Enginemen and Firemen, the Order of Railway Conductors,
and the Brotherhood of Railroad Trainmen, with the Canadian
membership of each, but not railroad employees who are members of
CIO or independent unions. The 1919 figure for "Employment Class I
Railroads" includes all, not merely Class I, operating
carriers.
Membership of Employment
Brotherhoods Class I Railroads
Year (thousands) (thousands)
1919 456 1,908
1924 434 1,774
1929 423 1,661
1934 268 1,008
1939 303 988
1944 442 1,415
1947 450 1,352
The "Membership of Brotherhoods" figures are estimates made
available through the kindness of the Bureau of Labor Statistics.
Those for 1924-1934 are based on Wolman, Ebb and Flow in Trade
Unionism 230-31 (1936). The figures for "Employment Class I
Railroads" have been obtained from the ICC annual reports entitled
Statistics of Railways in the United States, that for 1919 from the
33d Ann.Rep. at 21 (1922); that for 1924 from 38th Ann.Rep. at 25
(1926); those for 1929, 1934, and 1939 from 54th Ann.Rep. at 59
(1942); that for 1944 from 60th Ann.Rep. at 55 (1948); that for
1947 from ICC Bureau of Transport Economics and Statistics,
Statement No. M-300, Wage Statistics of Class I Steam Railways in
the United States (1947).
[
Footnote 2/5]
See U.S. Dept. Labor, Report of the Commission on
Industrial Relations in Great Britain 23 (1938); U.S. Dept. Labor,
Report of the Commission on Industrial Relations in Sweden 9
(1938).
Cf. The Universal Declaration of Human Rights,
Art. 20, cl. 2, adopted by the General Assembly of the United
Nations, Dec. 11, 1948, declaring that "No one shall be compelled
to belong to an association."
[
Footnote 2/6]
Sen.Doc.No.415, 64th Cong., 1st Sess. 7681. For other
expressions of Mr. Justice Brandeis' sympathy for the cause of
trade unions,
see id. at 7659-60, 7662, 7667; Brandeis,
The Employer and Trades Unions in Business -- a Profession 13
(1914); Industrial Cooperation, 3 Filene Cooperative Association
Echo, No. 3, p. 1 (May, 1905), reprinted in The Curse of Bigness 35
(Fraenkel ed.1935); Big Business and Industrial Liberty, reprinted
in
id. at 38.
[
Footnote 2/7]
Copy obtained from the collection of Brandeis papers at the Law
Library of the University of Louisville, to which I am indebted.
The latter is quoted in part in Mason, Brandeis: A Free Man's Life
301 (1946).
See also testimony before the Commission on
Industrial Relations,
op. cit. supra, 335
U.S. 538fn2/6|>note 6, at 7680-81. As an alternative to the
closed or union shop, Mr. Brandeis advocated the "preferential
union shop," which, apparently, is also barred by the Arizona,
Nebraska, and North Carolina laws. For accounts of the working of
the "preferential union shop,"
see Moskowitz, The Power
for Constructive Reform in the Trade Union Movement, 2 Life and
Labor 10 (1912); Winslow, Conciliation, Arbitration, and Sanitation
in the Cloak, Suit, and Skirt Industry in New York City, 24
Bulletin of the Bureau of Labor, No. 98, Jan., 1912,
H.R.Doc.No.166, 62d Cong., 2d Sess. 203, 215.
[
Footnote 2/8]
Copy obtained from the University of Louisville; quoted in part
in Mason,
op. cit. supra, 335
U.S. 538fn2/7|>note 7, at 303-304.
[
Footnote 2/9]
See H.R.Rep. No.245, 80th Cong., 1st Sess. 17; 93 Daily
Cong.Rec. 4491 (May 1, 1947).
[
Footnote 2/10]
Examples of legislative experimentation undertaken to meet a
recognized need were the bank deposit guaranty laws passed in the
wake of the panic of 1907 by Kansas, Nebraska, and Oklahoma.
Despite serious doubts of their wisdom, the laws were sustained
against due process attack in
Noble State Bank v. Haskell,
219 U. S. 104 and
219 U. S. 575;
Shallenberger v. First State Bank, 219 U.
S. 114;
Assaria State Bank v. Dolley,
219 U. S. 121.
Experience proved the laws to be unworkable,
see Robb,
Guaranty of Bank Deposits in 2 Encyc.Soc.Sciences 417 (1930). But
since no due process obstacle stood in the way, it remained
possible to profit by past errors and attempt a more mature
solution of the problem on a national scale.
See Sen.Rep.
No.77, 73d Cong., 1st Sess. 9-13; H.R.Rep. No.150, 73d Cong., 1st
Sess. 5-7. The result was establishment of the Federal Deposit
Insurance Corporation by the Banking Act of 1933, 48 Stat. 168, 12
U.S.C. § 264. If that expedient should prove inadequate, the way is
open for further experimentation.
See Note, The
Glass-Steagall Banking Act of 1933, 47 Harv.L.Rev. 325, 330-32
(1933).
[
Footnote 2/11]
On Sept. 13, 1948, the voters of Maine rejected "An Act to
Protect the Right to Work and to Prohibit Secondary Boycotts,
Sympathetic Strikes and Jurisdictional Strikes" and "An Act
Protecting the Right of Members and Nonmembers of Labor
Organizations to the Opportunity to Work." The vote in favor of the
first bill was 46,809; for the second, 13,676; against both bills,
126,285. These figures were kindly furnished by the Deputy
Secretary of the Maine.
On Nov. 2, 1948, the voters of Massachusetts rejected a measure
prohibiting "the denial of the opportunity to obtain or retain
employment because of membership or nonmembership in a labor
organization" by a vote of 1,290,310 to 505,575. Report of the
Executive Department of the Massachusetts, Nov. 24, 1948, p.
60.
On the same day, the voters of New Mexico rejected a similar
bill by a vote of 60,118 to 41,387 (incomplete returns).
See Clovis (N.M.) News Journal, Nov. 5, 1948, p. 1, col.
3.
[
Footnote 2/12]
Ark.Const. Amend. No. 34, Nov. 7, 1944, and Acts of Ark.1947,
Act 101; Del.Laws 1947, c.196, § 30; Fla.Const.Decl. of Rights §
12, as amended Nov. 7, 1944; Ga.Laws 1947, No. 140, p. 616; Iowa
Laws 1947, c. 296; La.Gen.Stat. § 4381.2, Dart.1939, Act No. 202 of
1934, § 2; Md.Ann.Code Gen.Laws 1939, art. 100, § 65; Nev.Comp.Laws
1929, § 10473; N.D.Laws 1947, c. 243; S.D.Const. art. 6, § 2, as
amended Nov. 1, 1946, and Laws 1947, c. 92; Tenn.Public Acts 1947,
c. 36; Texas Laws 1947, c. 74, Vernon's Ann.Civ.St. art. 5207a; Va.
Acts of Assembly 1947, c. 2.
For a valuable digest of State laws regulating labor activity,
see Killingsworth, State Labor Relations Acts, Appendix A,
by Beverley Kritzman Killingsworth at 267 (1948). It shows the
variety and empiric character of such legislation for a single
decade (1937-47).
[
Footnote 2/13]
The following list of rejected anti-closed shop laws has been
compiled from U.S. Dept. Labor, Division of Labor Standards,
Legislative Reports, 1939 to date.
Calif.: A.B.1560, 1941; S.B.974, 1941;
Conn.:
H.B.557, S.B.823, 1939; H.B.302, 1947;
Kans.: H.B.256,
S.B.410, 1939, S.C.Res.No.10, 1945;
Ky.: S.B.231, 1946;
Mass.: H.B.864, 1947;
Minn.: S.B.102, 1947;
Miss.: H.B.714, 1942; H.C.R.21, 1944 (
semble);
H.B.171, 1946; H.B.328, 1948; H.B.1000, 1948;
Mo.:
S.B.144, 1945;
N.H.: H.B.225, 1945;
Ohio: H.B.49,
1947;
Utah: S.J.R.15, H.J.R.15, 1947.
[
Footnote 2/14]
See, e.g., 25 U.S.News, No. 22, p. 11 (Nov. 26,
1948).
[
Footnote 2/15]
Letter to Charles Hammond, Aug. 18, 1821, 15 Writings of Thomas
Jefferson 330, 331 (Memorial ed., 1904).
[
Footnote 2/16]
Letter to Samuel Kercheval, July 12, 1816, 15
id. at
32, 34. For similar expressions of Jefferson's alarm at what he
felt to be the dangerous encroachment of the judiciary upon the
other functions of government,
see his letters to William
B. Giles, April 20, 1807, 11
id. at 187, 191; to Caesar
Rodney, Sept. 25, 1810, 12
id. at 424, 425; to John
Taylor, May 28, 1816, 15
id. at 17, 21; to Spencer Roane,
Sept. 6, 1819, 15
id. at 212; to Thomas Ritchie, Dec. 25,
1820, 15
id. at 297; to James Pleasants, Dec. 26, 1821, 12
Works of Thomas Jefferson, 213, 214 (Federal ed., 1905); to William
T. Barry, July 2, 1822, 15 Writings,
supra at 388; to A.
Coray, Oct. 31, 1823, 15
id. at 480, 487; to Edward
Livingston, March 25, 1825, 16
id. at 112.
See
also the passage of Jefferson's Autobiography reprinted in 1
Writings,
supra at 120-22.
And see Commager,
Majority Rule or Minority Rights 28-38 (1943).
[
Footnote 2/17]
In time, of course, constitutional obstacles may disappear or be
removed. Yet almost twenty years elapsed between invalidation of
the income tax in
Pollock v. Farmers' Loan & Trust
Co., 158 U. S. 601, and
adoption of the Sixteenth Amendment. And it took twenty years to
establish the constitutionality of a minimum wage for women: it was
put in jeopardy by an equally divided Court in
Stettler v.
O'Hara, 243 U.S. 629, and found unconstitutional in
Adkins
v. Children's hospital, 261 U. S. 525,
which was not overruled until
West Coast Hotel Co. v.
Parrish, 300 U. S. 379,
300 U. S. 400.
The frustration of popular government, moreover, is not confined to
the specific law struck down; its backwash drowns unnumbered
projects that might otherwise be put to trial.
MR. JUSTICE RUTLEDGE, concurring.
I concur in the Court's judgment in No. 34,
Whitaker v.
North Carolina. The appellants were convicted under
Page 335 U. S. 558
a warrant which charged only, in effect, that they had violated
the statute "by executing a written agreement or contract" for a
closed or union shop. [
Footnote
3/1] There was neither charge nor evidence that the employer,
after the statute became effective, had refused employment to any
person because he was not a member of a union. The charge,
therefore, and the conviction were limited to the making of the
contract. No other provision of the statute is now involved, as the
state's attorney general conceded, indeed as he strongly urged, in
the argument here. As against the constitutional objections raised
to this application of the statute, I agree that the legislature
has power to proscribe the making of such contracts, and
accordingly join in the judgment affirming the convictions.
In No. 27,
American Federation of Labor v. American Sash
& Door Company, and in No. 47,
Lincoln Federal Labor
Union v. Northwestern Iron & Metal Company, as against the
constitutional questions now raised,
Page 335 U. S. 559
I am also in agreement with the Court's decision, but subject to
the following reservation. Because no strike has been involved in
any of the states of fact, no question has been presented in any of
these cases immediately involving the right to strike or concerning
the effect of the Thirteenth Amendment. Yet the issues so closely
approach touching that right as it exists or may exist under that
Amendment that the possible effect of the decisions upon it hardly
can be ignored. [
Footnote 3/2]
Strikes have been called throughout union history in defense of the
right of union members not to work with nonunion men. If today's
decision should be construed to permit a state to foreclose that
right by making illegal the concerted refusal of union members to
work with nonunion workers, and more especially if the decision
should be taken as going so far as to permit a state to enjoin such
a strike, [
Footnote 3/3] I should
want a complete and thorough reargument of these cases before
deciding so momentous a question.
But the right to prohibit contracts for union security is one
thing. The right to force union members to work with nonunion
workers is entirely another. Because of this difference, I
expressly reserve judgment upon the latter question until it is
squarely and inescapably presented. Although this reservation is
not made expressly by the Court, I do not understand its opinion to
foreclose this question.
MR. JUSTICE MURPHY concurs in this opinion insofar as it applies
to Nos. 34 and 47.
[
Footnote 3/1]
The warrant, insofar as is material, charged that the appellants
had entered into
". . . an illegal combination or conspiracy in restraint of the
right to work and of trade or commerce in the North Carolina and
against the public policy of the North Carolina by executing a
written agreement or contract by and between said employer and said
Labor Unions and Organizations or combinations whereby persons not
members of said unions or organizations are denied the right to
work for said employer, or whereby membership is made a condition
of employment or continuation of said employment by said employer,
and whereby said named unions acquired an employment monopoly in
any and all enterprises which may be undertaken by said employer
are required to become or remain a member of a labor union or labor
organization as a condition of employment or continuation of
employment by said employer whereby said unions acquire an
employment monopoly in any and all enterprises entered into by said
employer in violation of House Bill #229, Session 1947, General
Assembly of North Carolina, Chapter 328, 1947 Session Laws of North
Carolina, and particularly sections 2-3 & 5 thereof, and
Chapter 75 of the General Statutes of N.C. . . . ."
[
Footnote 3/2]
See 335
U.S. 538fn2/3|>note 3.
[
Footnote 3/3]
The syllogism might well be: the decisions in the present cases
permit a state to make "illegal" any discrimination against
nonunion workers on account of that status in relation to securing
or retaining employment; strikes for "illegal objects" are
"unlawful;" "unlawful" strikes may be enjoined; a strike by union
members against working with nonunion employees is a strike for an
"illegal object;" therefore, such a strike may be enjoined.