Section 8 of the New York Waterfront Commission Act of 1953 in
effect disqualifies from holding office in any waterfront labor
organization any person who has been convicted of a felony and has
not subsequently been pardoned or had his disability removed by a
certificate of good conduct from the Board of Parole.
Held: this section does not violate the Supremacy
Clause of the Constitution by conflicting invalidly with the
National Labor Relations Act or the Labor-Management Reporting and
Disclosure Act of 1959; it does not violate the Due Process Clause
of the Fourteenth Amendment; and it is not an
ex post
facto law or bill of attainder forbidden by Article I, § 10 of
the Constitution. Pp.
363 U. S.
144-161.
5 N.Y.2d 236, 157 N.E.2d 165, affirmed.
MR. JUSTICE FRANKFURTER announced the judgment of the Court and
delivered an opinion in which MR. JUSTICE CLARK, MR. JUSTICE
WHITTAKER and MR. JUSTICE STEWART joined.
This is an action brought in the Supreme Court of Richmond
County, New York, for a declaratory judgment regarding the
constitutional validity of § 8 of the New York Waterfront
Commission Act of 1953 (N.Y.Laws
Page 363 U. S. 145
1953, cc. 882, 883; McK.Unconsol.Laws, § 6700aa
et
seq.), and for an injunction restraining its operation. The
section is claimed to be in conflict with the Supremacy Clause of
the United States Constitution; it is also challenged under the Due
Process Clause of the Fourteenth Amendment, and as an
ex post
facto law and bill of attainder forbidden by Art. I, § 10, of
the Constitution.
The Waterfront Commission Act formulates a detailed scheme for
governmental supervision of employment on the waterfront in the
Port of New York. The relevant part of the specific provision, § 8,
under attack follows:
"No person shall solicit, collect or receive any dues,
assessments, levies, fines or contributions within the state from
employees registered or licensed pursuant to the provisions of this
act [pier superintendents, hiring agents, longshoremen and port
watchmen] for or on behalf of any labor organization representing
any such employees, if any officer or agent of such organization
has been convicted by a court of the United States, or any state or
territory thereof, of a felony unless he has been subsequently
pardoned therefor by the governor or other appropriate authority of
the state or jurisdiction in which such conviction was had or has
received a certificate of good conduct from the board of parole
pursuant to the provisions of the executive law to remove the
disability."
The compliant upon which this action is based makes the
following allegations. Appellant was a member, and, beginning in
1950, had been Secretary-Treasurer, of Local 1346, International
Longshoremen's Association, a labor organization with offices in
Richmond County, New York, representing "employees registered or
licensed pursuant to" the Waterfront Commission Act. As
Secretary-Treasurer, appellant had control of the Local's funds,
and also served as a bargaining representative. In 1920,
appellant
Page 363 U. S. 146
had pleaded guilty to a charge of grand larceny in New York, and
had received a suspended sentence. It is not alleged that appellant
has ever applied for or received a pardon or a "certificate of good
conduct." Three years after the enactment of the Waterfront
Commission Act, in 1956, the President of the International
Longshoremen's Association was informed by the appellee, who was
and is the District Attorney of Richmond County, New York, that,
because of appellant's conviction, § 8 of the Act prohibited any
person from collecting dues on behalf of Local 1346 so long as
appellant remained its officer or agent. Appellee threatened to
prosecute anyone collecting dues for the Local while appellant
remained its officer. By reason of § 8 and this threat, appellant
was suspended as an officer of Local 1346, whereupon he brought
this action.
The appellee moved to dismiss the complaint, and for judgment on
the pleadings in his favor. This motion was granted. The court,
holding that appellant's 1920 conviction was a conviction for a
felony within the meaning of § 8, sustained the validity of that
section. 11 Misc.2d 661, 166 N.Y.S.2d 751. This judgment was
affirmed by the Appellate Division of the Supreme Court, 5 A.D.2d
603, 174 N.Y.S.2d 596, and by the Court of Appeals of New York, 5
N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165.
See also Hazelton
v. Murray, 21 N.J. 115,
121 A.2d
1. Since a statute of a State has been upheld by the highest
court of the State against a federal constitutional attack, the
case is properly here on appeal. 361 U.S. 806. [
Footnote 1]
Page 363 U. S. 147
Due consideration of the constitutional claims that are made
requires that § 8 be placed in the context of the structure and
history of the legislation of which it is a part. The New York
Waterfront Commission Act was an endeavor by New York and New
Jersey to cope with longstanding evils on their joint waterfront in
the Port of New York. The solution which was evolved between the
two States embodies not only legislation by each, but also joint
action by way of a constitutional compact between them, approved by
Congress, including the establishment of a bi-state Waterfront
Commission.
For years, the New York waterfront presented a notoriously
serious situation. Urgent need for drastic reform was generally
recognized. Thoroughgoing investigations of the mounting abuses
were begun in 1951 by the New York State Crime Commission and the
Law Enforcement Council of New Jersey. After extensive hearings,
the New York Crime Commission, in May, 1953, published a detailed
report (4th Report of the New York State Crime Commission, New York
State Leg.Doc.No.70 (1953)) on the evils its investigation
disclosed and the legislative remedies these were thought to
require. The Commission reported that the skulduggeries on the
waterfront were largely due to the domination over waterfront
employment gained by the International Longshoremen's Association,
as then conducted. Its employment practices easily led to
corruption, and many of its officials participated in dishonesties.
The presence on the waterfront of convicted felons in many
influential positions was an important causative factor in this
appalling situation. It was thus described to Congress in the
compact submitted by New York and New Jersey for its consent:
". . . the conditions under which waterfront labor is employed
within the Port of New York district are depressing and degrading
to such labor, resulting
Page 363 U. S. 148
from the lack of any systematic method of hiring, the lack of
adequate information as to the availability of employment, corrupt
hiring practices, and the fact that persons conducting such hiring
are frequently criminals and persons notoriously lacking in moral
character and integrity, and neither responsive or responsible to
the employers nor to the uncoerced will of the majority of the
members of the labor organizations of the employees; that, as a
result, waterfront laborers suffer from irregularity of employment,
fear and insecurity, inadequate earnings, an unduly high accident
rate, subjection to borrowing at usurious rates of interest,
exploitation and extortion as the price of securing employment and
a loss of respect for the law; that not only does there result a
destruction of the dignity of an important segment of American
labor, but a direct encouragement of crime which imposes a levy of
greatly increased costs on food, fuel, and other necessaries
handled in and through the Port of New York district."
". . . many of the evils above described result not only from
the causes above described, but from the practices of public
loaders at piers and other waterfront terminals; that such public
loaders serve no valid economic purpose, and operate as parasites,
exacting a high and unwarranted toll on the flow of commerce in and
through the Port of New York district, and have used force and
engaged in discriminatory and coercive practices including
extortion against persons not desiring to employ them; . . ."
". . . stevedores have engaged in corrupt practices to induce
their hire by carriers of freight by water and to induce officers
and representatives of labor organizations to betray their trust to
the members of such labor organizations."
67 Stat. 541-542.
Page 363 U. S. 149
Shortly after the Crime Commission submitted its report, the
Governor of New York conducted hearings based upon the Crime
Commission report. As a result, a Waterfront Commission Act was
introduced into and passed by the Legislatures of both States in
June, 1953. N.Y.Laws 1953, cc. 882, 883; N.J.Laws 1953, cc. 202,
203, N.J.S.A. 32:23-1
et seq.
Part I of both Acts constitutes what became the compact between
the two States. This is the heart of the legislation. It
establishes as a bi-state agency a Waterfront Commission of New
York Harbor with power to license, register and regulate the
waterfront employment of pier superintendents, hiring agents,
longshoremen, and port watchmen, and to license and regulate
stevedores. It entirely prohibits one class of waterfront
employment, public loading, found to be unnecessary and
particularly infested with corruption. Manifestly, one of the main
aims of the compact is to keep criminals away from the waterfront.
The issue of licenses to engage in waterfront occupations, or the
right to be registered, depends upon findings by the Commission of
good character. In particular, past convictions for certain
felonies constitute specific disabilities for each occupation, with
discretion in the Commission to lift the disability, except in the
case of port watchmen, where it constitutes an absolute bar to
waterfront employment. A new procedure for the employment of
longshoremen is also provided under the supervision of the
Commission, replacing the archaic, corrupt "shape-up."
Under the requirement of Art. I, § 10, of the Constitution, the
compact was submitted to the Congress for its consent, and it was
approved. This was no perfunctory consent. Congress had
independently investigated the evils that gave rise to the
Waterfront Commission Acts, and the Subcommittee of the Senate
Committee on Interstate
Page 363 U. S. 150
and Foreign Commerce had, in a Report, endorsed the state
legislative solution embodied in these Acts.
See
S.Rep.No.653, 83d Cong., 1st Sess., pp. 49-50. After the compact's
submission to Congress, hearings were held upon it by the Committee
on the Judiciary of the House of Representatives at which arguments
were made by interested parties for and against the compact.
Approval was recommended by both the House Judiciary Committee and
the Senate Committee on Interstate and Foreign Commerce. The House
Committee concluded that
"[t]he extensive evidence of crime, corruption, and racketeering
on the waterfront of the port of New York, as disclosed by the
State investigations reported to this committee at its hearings and
by the recent report of the Senate Committee on Interstate and
Foreign Commerce [S.Rep.No. 653,
supra], has made it clear
beyond all question that the plan proposed by the States of New
York and New Jersey to eradicate those public evils is urgently
needed."
H.R.Rep.No.998, 83d Cong., 1st Sess., p. 1. The Senate Committee
Report stated its conclusion in similar terms. S.Rep.No.583, 83d
Cong., 1st Sess., p. 1. The compact was approved by Congress in
August, 1953. Act of Aug. 12, 1953, 67 Stat. 541, c. 427.
In addition to the compact, New York enacted, as Parts II and
III of its 1953 Waterfront Commission Act, supplementary
legislation dealing, in most part, with the administration of New
York's responsibility under the compact. This supplementary
legislation also contains two substantive provisions in furtherance
of the objectives of the compact, but not calling for bi-state
enforcement, and thus not included in the compact. These are § 8,
which is here challenged, and a prohibition against loitering on
the waterfront. New Jersey enacted a supplementary provision
essentially similar to § 8. N.J.Laws 1953, c. 202, § 8. Although §
8 does not require enforcement by the bi-state Waterfront
Commission, and was
Page 363 U. S. 151
therefore not formally submitted as part of the compact to
Congress, in giving its approval to the compact, Congress
explicitly gave its authority to such supplementary legislation in
accord with the objectives of the compact by providing in the
clause granting consent
"[t]hat the consent of Congress is hereby given to the compact
set forth . . . and to the carrying out and effectuation of said
compact, and enactments in furtherance thereof."
In giving this authorization, Congress was fully mindful of the
specific provisions of § 8. Not only had § 8 already been enacted
by the States as part of the Waterfront Commission Acts when the
compact was submitted to Congress, but, in the hearings held before
the House Committee on the Judiciary, it was specifically urged by
counsel for the International Longshoremen's Association, as a
ground of opposition to congressional consent, that approval of the
compact by Congress would carry with it sanction of § 8.
See Hearing before Subcommittee No. 3 of the Committee on
the Judiciary, House of Representatives, 83d Cong., 1st Sess., on
H.R.6286, H.R. 6321, H.R.6343, and S.2383, p. 136. The ground of
objection to the section which is appellant's primary reliance
here, namely, that it conflicts with existing federal labor policy,
was urged as ground for rejecting the compact. It is in light of
this legislative history that the compact was approved, and that
congressional consent was given to "enactments in furtherance
thereof."
With this background in mind, we come to consider appellant's
objection that § 8 is in conflict with, and therefore preempted by,
the National Labor Relations Act, specifically §§ 1 and 7 of that
Act, 29 U.S.C. §§ 151, 157. The argument takes this course. Section
1 of the National Labor Relations Act declares a congressional
purpose to protect
"the exercise by workers of full freedom of association,
self-organization, and designation of representatives
Page 363 U. S. 152
of their own choosing for the purpose of negotiating the terms
and conditions of their employment or other mutual aid or
protection."
Section 7 grants employees "the right . . . to bargain
collectively through representatives of their own choosing." Under
§ 8 of the Waterfront Commission Act, waterfront employees do not
have complete freedom of choice in the selection of their
representatives, for, if they choose a convicted felon, the union
is disabled from collecting dues. Thus, it is said, with reliance
on
Hill v. Florida, 325 U. S. 538,
there is a conflict, and the state legislation must fall.
This is not a situation where the operation of a state statute
so obviously contradicts a federal enactment that it would preclude
both from functioning together, or, at least, would impede the
effectiveness of the federal measure. Section 8 of the Waterfront
Commission Act does not operate to deprive waterfront employees of
opportunity to choose bargaining representatives. It does disable
them from choosing as their representatives ex-felons who have
neither been pardoned nor received "good conduct" certificates. The
fact that there is some restriction due to the operation of state
law does not settle the issue of preemption. The doctrine of
preemption does not present a problem in physics, but one of
adjustment because of the interdependence of federal and state
interests and of the interaction of federal and state powers.
Obviously, the National Labor Relations Act does not exclude every
state policy that may, in fact, restrict the complete freedom of a
group of employees to designate "representatives of their own
choosing." For example, by reason of the National Labor Relations
Act, a State surely is not forbidden to convict and imprison a
defendant in a criminal case merely because he is a union official,
and therefore could not serve as a bargaining representative.
Page 363 U. S. 153
It would misconceive the constitutional doctrine of preemption
-- of the exclusion because of federal regulation of what otherwise
is conceded state power -- to decide this case mechanically on an
absolute concept of free choice of representatives on the part of
employees, heedless of the light that Congress has shed for our
guidance. The relevant question is whether we may fairly infer a
congressional purpose incompatible with the very narrow and
historically explained restrictions upon the choice of a bargaining
representative embodied in § 8 of the New York Waterfront
Commission Act. Would Congress, with a lively regard for its own
federal labor policy, find in this state enactment a true, real
frustration, however dialectically plausible, of that policy?
In light of the purpose, scope and background of this New York
legislation and Congress' relation to it, such an inference of
incompatibility has no foundation. In this case, we need not
imaginatively summon the likely reaction of Congress to the state
legislation as a basis for ascertaining whether due regard for
congressional purpose bars the state regulation. Here, the States
presented their legislative program to cope with an urgent local
problem to the Congress, and the Congress unambiguously supported
what is at the core of this reform. Had § 8 been written into the
compact, even the most subtle casuistry could not conjure up a
claim of preemption.
Here, the challenged state legislation was not in terms approved
by Congress, but was part of the legislative history and of the
revealed purpose of the compact which was approved. Formal
inclusion of § 8 in the compact was not called for, since its
enforcement was to be unilateral on the part of each State. Both
New York and New Jersey enacted § 8 at the time they enacted the
proposed compact. Section 8 is the same kind of regulation as is
contained in the compact: it effectively disqualifies
Page 363 U. S. 154
ex-felons from waterfront union office, just as the compact
makes prior conviction of certain felonies a bar to waterfront
employment unless there is a favorable exercise of executive
discretion. The total state legislative program represents a
drastic effort to rid the waterfront of criminal elements by
generally excluding ex-felons. What sensible reason is there to
suppose that Congress would approve the major part of this local
effort, as it has expressly done through its approval of the
compact, and disapprove its application to union officials who, as
history proved, had emerged as a powerful and corrupting influence
on the waterfront second to none?
This is not all. As we have seen, § 8 was brought to the
attention of Congress as part of the legislation which would come
into effect as an adjunct to the compact, and the objection was
raised at that time, and not heeded, that § 8 unduly interfered
with federal labor policy. Finally, it is of great significance
that, in approving the compact, Congress did not merely remain
silent regarding supplementary legislation by the States. Congress
expressly gave its consent to such implementing legislation not
formally part of the compact. This provision in the consent by
Congress to a compact is so extraordinary as to be unique in the
history of compacts. Of all the instances of congressional approval
of state compacts -- the process began in 1791, Act of Feb. 4,
1791, 1 Stat. 189, with more than one hundred compacts approved
since -- we have found no other in which Congress expressly gave
its consent to implementing legislation. It is instructive that
this unique provision has occurred in connection with approval of a
compact dealing with the prevention of crime where, because of the
peculiarly local nature of the problem, the inference is strongest
that local policies are not to be thwarted.
The sum of these considerations is that it would offend reason
to attribute to Congress a purpose to preempt the
Page 363 U. S. 155
state regulation contained in § 8. The decision in
Hill v.
Florida, 325 U. S. 538, in
no wise obstructs this conclusion. An element most persuasive here,
congressional approval of the heart of the state legislative
program explicitly brought to its attention, was not present in
that case. Nor was it true of
Hill v. Florida, as it is
here, that the challenged state legislation was part of a program,
fully canvassed by Congress through its own investigations, to
vindicate a legitimate and compelling state interest, namely, the
interest in combatting local crime infesting a particular
industry.
Appellant also asks us to find evidence of federal preemption of
§ 8 of the Waterfront Commission Act in the enactment by Congress
of the Labor-Management Reporting and Disclosure Act of 1959, 73
Stat. 519. Title V of the 1959 Act imposes restrictions upon union
officers, and defines qualifications for such officers.
Specifically, § 504(a) provides that
"[n]o person . . . who has been convicted of, or served any part
of a prison term resulting from his conviction of [a group of
serious felonies] . . . shall serve -- (1) as an officer, director,
trustee, member of any executive board or similar governing body,
business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties)
of any labor organization . . . for five years after . . . such
conviction or after the end of such imprisonment, unless, prior to
the end of such five-year period, in the case of a person so
convicted or imprisoned, (A) his citizenship rights, having been
revoked as a result of such conviction, have been fully restored,
or (B) the Board of Parole of the United States Department of
Justice determines that such person's service in any capacity
referred to in clause (1) . . . would not be contrary to the
purposes of this Act. "
Page 363 U. S. 156
The fact that Congress itself has thus imposed the same type of
restriction upon employees' freedom to choose bargaining
representatives as New York seeks to impose through § 8, namely,
disqualification of ex-felons for union office, is surely evidence
that Congress does not view such a restriction as incompatible with
its labor policies. Appellant, however, argues that any state
disablement from holding union office on account of a prior felony
conviction, such as § 8, which has terms at variance with § 504(a),
is impliedly barred by it. Just the opposite conclusion is
indicated by the 1959 Act, which reflects congressional awareness
of the problems of preemption in the area of labor legislation, and
which did not leave the solution of questions of preemption to
inference. When Congress meant preemption to flow from the 1959
Act, it expressly so provided. Sections 205(c) and 403, set out in
the margin, [
Footnote 2] are
express provisions excluding the operation of state law,
supplementing provisions for new federal regulation. No such
preemption provision was provided in connection with § 504(a). That
alone is sufficient reason for not deciding that § 504(a) preempts
§ 8 of the Waterfront Commission Act. In addition, two sections of
the 1959 Act, both relevant to this case, affirmatively preserve
the operation of state laws.
Page 363 U. S. 157
That § 504(a) was not to restrict state criminal law enforcement
regarding the felonies there enumerated as federal bars to union
office is provided by § 604 of the 1959 Act:
"Nothing in this Act shall be construed to impair or diminish
the authority of any State to enact and enforce general criminal
laws with respect to [the same group of serious felonies, with the
exception of exclusively federal violations, which are listed in §
504(a)]."
And, to make the matter conclusive, § 603(a) is an express
disclaimer of preemption of state laws regulating the
responsibilities of union officials, except where such preemption
is expressly provided in the 1959 Act. Section 603(a) provides:
"Except as explicitly provided to the contrary, nothing in this
Act shall reduce or limit the responsibilities of any labor
organization or any officer, agent, shop steward, or other
representative of a labor organization . . . under the laws of any
State. . . ."
In view of this explicit and elaborate treatment of preemption
in the 1959 Act, no inference can possibly arise that § 8 is
impliedly preempted by § 504(a).
Appellant's argument that § 8 of the Waterfront Commission Act
is contrary to the Due Process Clause of the Fourteenth Amendment
depends, as it must, upon the proposition that barring convicted
felons from waterfront union office, unless they are pardoned, or
receive a "good conduct" certificate, is not, in the context of the
particular circumstances which gave rise to the legislation, a
reasonable means for achieving a legitimate state aim, namely,
eliminating corruption on the waterfront.
In disqualifying all convicted felons from union office unless
executive discretion is exercised in their favor, § 8 may well be
deemed drastic legislation. But, in the view of Congress and the
two States involved, the situation on the New York waterfront
regarding the presence and influence of ex-convicts called for
drastic action. Legislative investigation had established that the
presence of
Page 363 U. S. 158
ex-convicts on the waterfront was not a minor episode, but
constituted a principal corrupting influence. The Senate
Subcommittee which investigated for Congress conditions on the New
York waterfront found that
"[c]riminals whose long records belie any suggestion that they
can be reformed have been monopolizing controlling positions in the
International Longshoremen's Association and in local unions. Under
their regimes, gambling, the narcotics traffic, loansharking,
shortganging, payroll 'phantoms,' the 'shakedown' in all its forms
-- and the brutal ultimate of murder -- have flourished, often
virtually unchecked."
S.Rep. No. 653, 83d Cong., 1st Sess. (1953), p. 7.
In light of these findings, and other evidence to the same
effect, [
Footnote 3] the
Congress approved as appropriate, if indeed not necessary, a
compact one of the central devices of which was to bar convicted
felons from waterfront employment and from acting as stevedores
employing others, either absolutely or in the Waterfront
Commission's discretion. No positions on the waterfront were more
conducive to its criminal past than those of union officials, and
none, if left unregulated, were felt to be more able to impede the
waterfront's reform. Duly mindful as we are of the promising record
of rehabilitation by ex-felons, and of the emphasis on
rehabilitation by modern penological efforts, it is not for this
Court to substitute its judgment for that of Congress and the
Legislatures of New York and New Jersey regarding the social
surgery required by a situation as gangrenous as exposure of the
New York waterfront had revealed.
Barring convicted felons from certain employments is a familiar
legislative device to insure against corruption in
Page 363 U. S. 159
specified vital areas. Federal law has frequently and of old
utilized this type of disqualification. Convicted felons are not
entitled to be enlisted or mustered into the United States Army, or
into the Air Force, but "the Secretary . . . may authorize
exceptions, in meritorious cases." 10 U.S.C. §§ 3253, 8253. This
statute dates from 1833. A citizen is not competent to serve on
federal grand or petit juries if he has been
"convicted in a state or federal court of record of a crime
punishable by imprisonment for more than one year and and
[
sic] his civil rights have not been restored by pardon or
amnesty."
28 U.S.C. § 1861. In addition, a large group of federal statutes
disqualify persons "from holding any office of honor, trust, or
profit under the United States" because of their conviction of
certain crimes, generally involving official misconduct. 18 U.S.C.
§§ 202, 205, 206, 207, 216, 281, 282, 592, 1901, 2071, 2381. For
other examples in the federal statutes,
see 18 U.S.C. §
2387; 5 U.S.C. § 2282; 8 U.S.C. § 1481. State provisions
disqualifying convicted felons from certain employments important
to the public interest also have a long history.
See, e.g.,
Hawker v. New York, 170 U. S. 189. And
it is to be noted that, in § 504(a) of the 1959 Federal Labor Act,
quoted earlier in this opinion, Congress adopted this same solution
in its attempt to rid all unions of criminal elements. Just as New
York and New Jersey have done, the 1959 Federal Act makes a prior
felony conviction a bar to union office unless there is a favorable
exercise of executive discretion. In the face of this wide
utilization of disqualification of convicted felons for certain
employments closely touching the public interest, remitting them to
executive discretion to have the bar removed, we cannot say that it
was not open to New York to clean up its waterfront in the way it
has. New York was not guessing or indulging in airy assumptions
that convicted felons constituted a deleterious influence on the
waterfront. It was acting on impressive,
Page 363 U. S. 160
if mortifying, evidence that the presence on the waterfront of
ex-convicts was an important contributing factor to the corrupt
waterfront situation.
Finally, § 8 of the Waterfront Commission Act is neither a bill
of attainder nor an
ex post facto law. The distinguishing
feature of a bill of attainder is the substitution of a legislative
for a judicial determination of guilt.
See United States v.
Lovett, 328 U. S. 303.
Clearly, § 8 embodies no further implications of appellant's guilt
than are contained in his 1920 judicial conviction; and so it
manifestly is not a bill of attainder. The mark of an
ex post
facto law is the imposition of what can fairly be designated
punishment for past acts. The question in each case where
unpleasant consequences are brought to bear upon an individual for
prior conduct is whether the legislative aim was to punish that
individual for past activity, or whether the restriction of the
individual comes about as a relevant incident to a regulation of a
present situation, such as the proper qualifications for a
profession.
See Hawker v. New York, 170 U.
S. 189. No doubt is justified regarding the legislative
purpose of § 8. The proof is overwhelming that New York sought not
to punish ex-felons, but to devise what was felt to be a
much-needed scheme of regulation of the waterfront, and, for the
effectuation of that scheme, it became important whether
individuals had previously been convicted of a felony.
Affirmed.
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
MR. JUSTICE BRENNAN is of opinion that Congress has demonstrated
its intent that § 8 of the New York Waterfront Commission Act
should stand despite the provisions of the National Labor Relations
Act, and that the Labor-Management Reporting and Disclosure Act
of
Page 363 U. S. 161
1959 explicitly provides that it shall not displace such
legislation of the States. He believes that New York's
disqualification of ex-felons from waterfront union office, on all
the circumstances, and as applied to this specific area, is a
reasonable means for achieving a legitimate state aim, and does not
deny due process or otherwise violate the Federal Constitution.
Accordingly, he agrees that the judgment should be affirmed.
[
Footnote 1]
Appellee's claim that the cause is moot, since, after the
commencement of this action, Local 1346 was disbanded and all
employees under its jurisdiction came under the jurisdiction of a
new local, Local 1, with offices in New York County, must fail. On
the basis of what has been submitted to us, the new local is, in
part, simply the old in a new dress.
[
Footnote 2]
Section 205(c) provides:
". . . No person shall be required by reason of any law of any
State to furnish to any officer or agency of such State any
information included in a report filed by such person with the
Secretary pursuant to the provisions of this title, if a copy of
such report, or of the portion thereof containing such information,
is furnished to such officer or agency. . . ."
Section 403 provides:
"No labor organization shall be required by law to conduct
elections of officers with greater frequency or in a different form
or manner than is required by its own constitution or bylaws,
except as otherwise provided by this title. . . . The remedy
provided by this title for challenging an election already
conducted shall be exclusive."
[
Footnote 3]
See, e.g., Hearings before Subcommittee No. 3 of the
Committee on the Judiciary, House of Representatives, on H.R. 6286,
H.R. 6321, H.R. 6346, and S. 2383, 83d Cong., 1st Sess. (1953), pp.
88, 97.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK concur, dissenting.
I could more nearly comprehend the thrust of the Court's ruling
in this case if it overruled
Hill v. Florida, 325 U.
S. 538, and adopted the dissenting opinion in that case
written by my Brother FRANKFURTER. But to sustain this New York law
when we struck down the Florida law in the
Hill case is to
make constitutional adjudications turn on whimsical
circumstances
The New York law makes a person ineligible to solicit funds on
behalf of a labor union if he has been convicted of a felony. The
Florida law made it unlawful for one to be a business agent for a
union if he had been convicted of a felony. 325 U.S. at
325 U. S. 540.
In each, the question is whether such a state restriction is
compatible with the federal guarantee contained in § 7 of the
National Labor Relations Act, [
Footnote
2/1] which reads as follows:
"Employees shall have the right to self-organization, to form
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining or
other mutual aid or protection. . . . "
Page 363 U. S. 162
The answer we gave in
Hill v. Florida, supra, at
325 U. S. 541,
was as follows:
"It is apparent that the Florida statute has been so construed
and applied that the union and its selected representative are
prohibited from functioning as collective bargaining agents, or in
any other capacity, except upon conditions fixed by Florida. The
declared purpose of the Wagner Act, as shown in its first section,
is to encourage collective bargaining, and to protect the 'full
freedom' of workers in the selection of bargaining representatives
of their own choice. To this end, Congress made it illegal for an
employer to interfere with, restrain, or coerce employees in
selecting their representatives. Congress attached no conditions
whatsoever to their freedom of choice in this respect. Their own
best judgment, not that of someone else, was to be their guide.
'Full freedom' to choose an agent means freedom to pass upon that
agent's qualifications."
"Section 4 of the Florida Act circumscribes the 'full freedom'
of choice which Congress said employees should possess. It does
this by requiring a 'business agent' to prove to the satisfaction
of a Florida Board that he measures up to standards set by the
State of Florida as one who, among other things, performs the exact
function of a collective bargaining representative. To the extent
that Section 4 limits a union's choice of such an 'agent' or
bargaining representative, it substitutes Florida's judgment for
the workers' judgment."
Nothing has been done to change, in relevant part, the language
of § 7 of the National Labor Relations Act since
Hill v.
Florida, supra. If § 7 foreclosed Florida from prescribing
standards for union officials, I fail to see why
Page 363 U. S. 163
it does not foreclose New York. Much is made of the fact that
Congress, when it approved the Waterfront Commission Compact
[
Footnote 2/2] between New York and
New Jersey, 67 Stat. 541, knew of the restrictions contained in § 8
of the New York Waterfront Commission Act [
Footnote 2/3] now in litigation. But that is an argument
that comes to naught when Art. XV, § 1 of the Compact is read:
"
This compact is not designed and shall not be construed to
limit in any way any rights granted or
Page 363 U. S. 164
derived from any other statute or any rule of law
for
employees to organize in labor organizations, to
bargain
collectively and to act in any other way individually,
collectively, and through labor organizations or other
representatives of their own choosing. Without limiting the
generality of the foregoing, nothing contained in this compact
shall be construed to limit in any way the right of employees to
strike."
(Italics added.)
Yet how can employees maintain their right to act through
"representatives of their own choosing" if New York can tell them
whom they may not choose?
Moreover, the Labor-Management Reporting and Disclosure Act of
1959, 73 Stat. 519, 29 U.S.C. (1958 ed., Supp. I) § 401, shows
unmistakably that Congress has kept unto itself control over the
qualifications of officers of labor unions. Section 2(a) of that
Act provides in part:
"The Congress finds that, in the public interest, it continues
to be the responsibility of the Federal Government to protect
employees' rights to organize, choose their own representatives,
bargain collectively, and otherwise engage in concerted activities
for their mutual aid or protection. . . ."
Congress, by § 504 of that Act, has barred enumerated felons
from holding union office "during or for five years after" the
conviction or end of imprisonment. That federal, not state,
qualifications for union offices now obtain is made plain by § 604
of that Act. [
Footnote 2/4] It
provides as follows:
"Nothing in this Act shall be construed to impair or diminish
the authority of any State
to enact and
Page 363 U. S. 165
enforce general criminal laws with respect to robbery,
bribery, extortion, embezzlement, grand larceny, burglary, arson,
violation of narcotics laws, murder, rape, assault with intent to
kill, or assault which inflicts grievous bodily injury, or
conspiracy to commit any of such crimes."
(Italics added.)
I do not know how Congress could make clear its two-fold
purpose:
first, that federal standards are to determine
the qualifications for holding union offices; and
second,
that enforcement of "general criminal laws" by the States remains
unimpaired.
What Congress did in approving the Waterfront Commission Compact
and in adopting the Labor-Management Reporting and Disclosure Act
of 1959 respected the integrity of
Hill v. Florida, supra.
We seem now to forsake it, and, in effect, adopt the dissent in
Hill v. Florida. That I cannot do. For the federal
legislative record makes plain to me beyond doubt that Congress has
left the qualifications for union offices to be determined by
federal, not state, law. The Supremacy Clause of Article VI of the
Constitution calls for a reversal of the judgment of the New York
Court of Appeals. Hence, I do not reach the other questions
presented.
[
Footnote 2/1]
Section 1 of the Act declared as its purpose encouraging
collective bargaining and protecting "the exercise by workers of
full freedom of association, self-organization, and designation of
representatives of their own choosing."
[
Footnote 2/2]
The Waterfront Commission Compact, which Congress approved, set
up qualifications and licensing requirements for certain types of
waterfront employment. It also called for the creation of
employment information centers, to be administered by the bi-state
regulatory agency, the purpose of which was to eliminate
extortionate hiring practices and regularize employment by
eliminating casual laborers from the registration rolls. It did not
purport to regulate or set up qualifications for labor unions or
labor representatives.
[
Footnote 2/3]
Section 8 of Part III of the Waterfront Commission Act of the
State of New York, New York Laws 1953, c. 882, provides as
follows:
"No person shall solicit, collect or receive any dues,
assessments, levies, fines or contributions within the state from
employees registered or licensed pursuant to the provisions of this
act for or on behalf of any labor organization representing any
such employees if any officer or agent of such organization has
been convicted by a court of the United States, or any state or
territory thereof, of a felony unless he has been subsequently
pardoned therefor by the governor or other appropriate authority of
the state or jurisdiction in which such conviction was had or has
received a certificate of good conduct from the board of parole
pursuant to the provisions of the executive law to remove the
disability."
"As used in this section, the term 'labor organization' shall
mean and include any organization which exists and is constituted
for the purpose in whole or in part of collective bargaining, or of
dealing with employers concerning grievances, terms and conditions
of employment, or of other mutual aid or protection; but it shall
not include a federation or congress of labor organizations
organized on a national or international basis even though one of
its constituent labor organizations may represent persons so
registered or licensed."
[
Footnote 2/4]
Section 603(a) of the 1959 Act provides in relevant part
that
"Except as explicitly provided to the contrary, nothing in this
Act shall reduce or limit the responsibilities of any labor
organization or any officer, agent, shop steward, or other
representative of a labor organization . . . under any other
Federal law or under the laws of any State, and, except as
explicitly provided to the contrary, nothing in this Act shall take
away any right or bar any remedy to which members of a labor
organization are entitled under such other Federal law or law of
any State."
This has reference to the fiduciary responsibilities created by
§ 501 of the Act, and makes clear that these provisions of federal
law do not preempt state law. As stated in S.Rep. No. 187, 86th
Cong., 1st Sess., p. 19,
"Individual union members will therefore have a choice between
suing in the State courts under the common law or invoking the
provisions of the federal statute."
There is no like provision which saves § 504 (the section that
bars felons from holding union office) from preempting state
law.