Petition for Rehearing — Railway Employes' Department v. Hanson

2

. Court of the United States =

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n

October Term, 1955:

No. 451

'.

oe ore ae

_RAILWAY EMPLOYES? * DEPARTMENT, oe

„ A. P. of L., Er AL, as

. 4 elan.

. 55

‘ROBERT L HANSON, et al, ‘ead UNION, PACIFIC

2 RAILROAD COMPANY,

= 5 Appellees.

+

- Bs — ene Get Maat ä 75

5 . ra’

A

ee * _

PETITION. rok REHEARING OF sonake 1. HAN.

SON, HORACE A, CAMERON, HAROLD J. GRAU, |

LEONARD W. KOOE, and WILLIAM A. CORNELL

1

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55 Notar K. Axbrnszx, 5

_ Epson Surru, b

1705 Keeline Building, — Ses

Omaha Nebraska, , * 3

Attormeys for Robert I. Hasso. “A

5 . et al., Individual —

eal Max, antes Ba Surrit & — 5 ä

Of Counsel. „ 8 =

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COCKLE PRINTING COMPANY, LAW BRIEFS, OMAHA

or

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could deprive these appellees and others simi-

larly situated of their most precious liberties N

without violating the requirements of due

nee process, it Congress could believe that“ the

long range interests of workers would be bet-

—

Vill.

: ter served’? by such deprivation of rights... *

The Court erroneously concluded that „Con-

gress might well believe” that union shop

contracts would help insure . right to

work in and along the. arteries 0 =

commerce” 8 —

rules of due process heretofore’ announced

and applied by this Court in similar cases

The Court erred in finding th. “The: only

conditions to union membership authorized

by Section 2 Eleventh of the Railway Labor

- Act are the ‘payment of ‘periodic. dines, initia- 5

tion fees, and assessments’ ”

.. The Court erréd in construing the statute to

permit only the collection of dues, fees and

assessments for the work of the union in the

realm of collective bargaining... be

The Court erred in overlooking the faet that

the injunction in this case runs, not against

a statute, but against carrying into effect ae

contract

The Court 1 85 in ‘comparing the compel:

sory union membership requirement of the

nnion shop contract’ in the ‘instant case with

i the integrated bar

—

; ; 3 F ese Pages

The oo 3 held that Congress

5 The Court erroneously failed to apply the

15

18

22

The Court erred ii holding in effect that Con- a

gress may delegate to a private organization

the power to tax B 5

*

ac 0 INDEX—Continued =

5 . The Court erred in placing upon 8 ue:

the burden of showing that the money they

— „ required to pay under the union shop

„ Contract as union fees, dues and assessments :

will be used for purposes not germane to col

lective bargaining, and in finding that that 7

burden of proof had not been satisfied 26

X. The Court erred in holding that Section 2

Me Eléventh was within the commerce power of .

Congress, that the objective of the statute -

was industrial peace along the arteries: of

‘commerce, and that Congress chose. the union =

= shop as a stabilizing force.........: : a ee

Bc i The Court erred in reversing the decisiow of

8 the Supreme Court of Nebraska —— — 34 —

Conclusion 2 — —r; alain + OO

' Certificate of Counsel — — 38

- CASES CITED

ue Adair v. United States, 208 U. S. 161 (1909) .

Barsky v. Board of Regents, 347 U. S. 442. 472, 473

([.̃0ꝛ.954) 7 2 66

Citizens Savings & Loan 1 v. 10 21 Wall. ne

3 655, 87 U. 8 686, 22 L. Ed. 455 (1874) 25,

Cole v. LaGrange, 119. U. 8. , 5 8. Ct. 416, 28 1.

n National Bank v. lola City, 154 U. S. 617. i

14 8. Ot. 1199, 22 L. Ed. 463 (1874)... 3 =.

Eubank v. Richmond, 226 U. S. 137, 144 28

House v. Mayes, 219 . 8. 270, 285 de — 10

iii

. i 3 > =

| = e 8 =:

0 5 : 7 8 ee 2 2

Hunt v. Cramboch, 325 Ay. S. 821, 830, 831 (1945)... |

= Re Integration of Nebraska State Bar. ‘halle

133 Neb, 283, ate N. W. — 114 A. L. R. 151

(947) 5 — *

N Linehan v. Waterfront 8 347 v. 8. 439, ee:

440, 441 (1954) = : 6

Meyer v. Nebraska, 262 U. 8. 390, 399 (492305 — 6, 9 =

Montana Co. v. St. Louis ng ie © Co., 152 ——

e 170, 38 L. Ed. 39871893) 5 5

Nebbia v. New Vork, 291. U. S. 502, 525 (934) 10; 7

Parkersburg v. Brewn, 106 U. 8. 4057. 1 8. Ct. =,

27. L. Ed. 238. 25 5

Teen t, Integration of le en Minnesota, 26.

Minn. 195, 12 N. W. 2d 515, 518 4943) — 2 A:

Re Scott, 53 Nev. 24. 292 P. 291 (4930), rehearing N

denied, 53 Nev. 48, 296 P. 1113 (1931) — 23

Secretary - of Agriculture v. Central Roig Refining

Co., et ale, 2 5 U. S. 604, 616 (1950) 10

Slochower v. Bord of Higher Education of City of

New Tork, U. S., 100 L. Ed. (Adv. 9.449, — —

(April 9, 1956) — oy

Smith v. Texas, 233 U. S. 630, 636, 638 (7914)... — 6

State Bar v: 3 Court, 207 Cal. 323, 278 P, 2% NN

434 (1929) : „

Takahashi v. Fish and Game Comminsion, 334 v. 8.

410 (1948) , — — 6

Truax v. Raich, 239 U. S. 33, 41 (1915) sia 6

: United States ve. I. O., 335 U. 8. 106, 140 (1948). ‘aid 10, 11

Weiman v. d. 344 U. 8. 183) a N ö

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8 as .

2 :

"Supreme Court of the ‘United States

i —— — Se = = —— 5 5

* October Term, 1985 oe eae

— s : eo é

— No. 1

_ RATLWAY EMPLOYES’ DEPARTMENT, -

: oS A. F. of L., ET AE, 8 5

eae ae — 7 Appellants, =

= ee a a

"ROBERT L. HANSON, et al. and UNION ‘PACIFIC

5 ~-RATLROAD ‘C ‘COMPANY, — ee

5 aa ae 555 ; Appellees, Be

; ie aes sae — —_ of Nebraska :

0 —— See

‘PETITION FOR REHEARING OF ROBERT * HAN. a

§$ON, HORACE A. CAMERON, -HAROLD J, GRAU, |

LEONARD W. eer and WHLLIAN * ORNELL :

PETITION FOR REHEARING © 3

| Robert L. Hanson, Horace A. Cameron, Harold 4 ö Deb fe

Grau, Leonard W. Koch, and William A. Cornell, indi- .

vidual appellees, for themselves and others similarly situ

: ated, respectfully’ pray ‘for a rehearing, o and in support

of their Petition kor Balears show the Court as fol-

lows: | — „„

—

9

%

of due process, if Congress could believe that the long

„„ eee eee Seven.

such deprivation of richts. .

After it reaffipms the right to work. as being included

in the concept of Mberty within the meaning of the due

process clauses, the opinion of this Court reads: rst

“The question remains however, whether the Sites =

_ range interests of workers would be better served, by 7

z one type of union’ agreement or another. eed :

The opinion then proceeds to state that Congress might

well believe that the long range interests of the workers

would be served by union shop contracts. Thus this Court

announces as the criterion upon which this decision turns .

A rule that if the legislative authority could believe that

the questioned legislation serves the long range interests f

of the publie, then it is valid regardless of ‘the fact that 2

it deprives individuals, of their liberty and property.

. The opinion does not find that Congress did so believe,

or that Congress claimed to 80 believe, or that there 5

was evidence before Congress from which it could come

to such a belief. The opinion sustains the legislation be-

cause Congress, 8 believe it would serve * range

interests. .

The adoption of this criterion is the. more Abe

= in : that it is announced ter the Court by the J ustice who :

only recently. wrote: |. =

The right to, ere. I had 9 was the

most precious liberty that man possesses. Man has in-

deed as. much richt to work as he- has to live? =

— 1 i Barsky v. ‘Board of Regents, 247 U. 8. 442, 472, 473 (1954).

a

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= “The argument that any legislation is justiſiable if

it might be- belfeved to, serve ‘the long range publie in-

“terest is alien to our Bill of Rights. ‘It has been used -

by” foreign governments to justify their depriving indi-

viduals of life, liberty and property. It has been used to

support practically every act of tyranny in history. It could *

be said that Hitler might well believe“ that the je slaughter :

of three million Jews was for the e long range good of Ger-

many. He seems to have been capable of believing any-

thing he was determined to believe. It could de said

that Stalin “might well believe’? that the extermination

of eicht million Kulaks was for the long range good af

Russia- And the rulers’ ef Red China might well be⸗

lieve that a bullet in the back of the head of each of

twenty million landlords was for “the long range good

of China. These governments were not operating under

a Bill of Rights similar to that in our Congtitution. But

in view of the language used by this Court in announcing

„the criterion upon. which this case seems to turn, the

auestion may well be asked; „What difference does it

y “make?” The rule announced and applied by this Court

in this case subjects ‘the. life, liberty and ‘property of 5

the citizens. to the whim of Congress. It is a shocking

departure from: the rules. of due process e ap- 8

plied by this Court. 5 7

Qe

3 555 . 1

i well believe” that umon shop contracts would help in-

sure the tight to work in and along the arteries. of inter. 22 55

‘state commerce.” 1

The Cott does not elucidate this 1 in its

_ opinion. But ‘preliminary to it is . mason. that

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ioe —taining legislation, outlawing yellow dog contracts and ®

_. outlawing employer discrimination against employees on

account of their union getivitios. But it: in nowise fol-

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_trade unionism has enhanced ond — the richt

to work. The Court does not say how, but perhaps the

Court had in ming seniority clauses in collective bar-

gaining agreements, or the influence of unions- in ob-

lows from that, that depriving nonunionists of. their

right to work enhances and strengthens the right to

to work of its members, we wish to remind the Court

that the spokesman for the Railway Labor Executives

Association, Mr. George Harrison, told Congress that : |

o

oo —

0

the union shop would not affeot the power of bargain-

ing one way or another. (See our brief, p. 06, Ex. 29;

tion 2 Eleventh. That the Railway Labor Act with its

prohibition of union shop contracts had been more ef-

; work of workers generally. The legislative history of 8

Section 2 Eleventh does not indicate that it was intended

or expected to enhance and” strengthen the right to work

in any respect. . And if the Court infers tuat strength ·

ening the union’s bargaining g position enhances the. right.

„R. 215.) Or if the Court infers: that peace on the rails

would enhance the right to work, we would remind the

Court that industrial peace was not an objective of Séc- we

. fective in bringing about ‘industrial peace than other

= statutes lacking such prohibition was demonstrated. The

statement of .the: Executive Secretary, of the ‘Railway ‘

Labor Executives Association in 1948, that the statu -

tory system governing railway labor relations on the

whole, has operated to preserve the railroad industry

from serious fabor controversies to. an extent not as vet

3 by any other” Ex. at; R. 194), was not

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> ; dapeted. — 3 to. athe Reftiway - .

Labor Act were pending before Congress: at. the same

time as were the bills which became Section 2 Eleventh. :

In testifying with regard to — on Sten 5, 1950, Georsé

; Harrie said:? |

The. railway ieee 4 is the résult of over

O0

a half century of ‘experience with labor legislation,

a representatives, this law has accomplished its pu

„and contrary to what has been said by the Railways’ ae

pose of promoting industrial peace in athe railroad :

industry.. 0

if ing further he said ee 85 5 e

alleged agreement violations.“ We are all gware of:

a the fact that work stoppages of many -4fousands, of

men do occur in outside industry because of an al-

leged éontract violation which affects only a few em-

- ployees. It is a remar kable tribute to the success

of the Railway Babor Act that work stoppages, in in

atter of common 1 that in

outsſde industry there are many strikes caused by

cases involving the interpretation or application of 2

"agreements, have been very few in view of the vio-

e~ lations which the foregoing. cated indicate: have bag

curred.” — 8

In the same hearings if D. H. Noba Presi- |

‘dent, Brotherhood of Locomotive Firemen and Engine- =

men, dn June 6, 1950, e,, a

77

2

_ Sastry nas been a 2 8 85 of 0 peace.“

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„ Actually’ and relatively the’ railway Istior. i in- 2

: <r ee 0

<n sate ee err nu Labor Act Amend-

m F felfare, United States

Senate, Eighty-first Congress, Second Session, on 8. 3463, at p. 174.

3 ‘Idem p. 177. vs

4 Idem p. 208. =

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5 And Fred U. Nemits ‘President; Oran. of Railway.

Conduetors of America, on Supe +. 1950, testified : ee 5

. We have had far fewer strikes with as less

* drastie conséquences to the carriers, the employees

and the public than was the ease in industry, gen-

"erally. ‘Upon such a relative basis, the Railway La-

bor Act has accomplished g thoroughly -eommend-

‘able result and should be the eee of commenda- e

tion rather than of censure.”’ ae

How this Court manages to come up with the theory

= that Congresseat she time it enacted Section 2 Eleventh

‘‘might well believe that it would help: insure the right

to work in and along the arteries of interstate com-

„ merce’? remains to us a mystery: Is the writer of, this.

opinion OW using the expression, ‘right to work, with.

some undefined but different meaning from that för

which he used it in his opinions in Barsky. v. Board of

Regents, 347 U. S. 442, 473 (1950), and Linehan v. Wa-

bie terfront Commission, 347 U. S. 439, 440, 441, (1954),

5 ie or in 57 88 this Cost used it in Treas v. Raich, 239

638 (044% 75 v. Nebraska, 262. U. S. 390, 399 .

(923), and Takahashi v. Fish and Gone Commietion,

334 U. 8. 410 (1948)! a

= ‘

„The right-to-work - involved in the forsgoing cases

f 5 is an individual right, a personal liberty. In Truaæ v.

Naich, supra, the personal, individual right to work of

the alien was upheld by striking down a statute which

was ‘enacted for the protection. of the employment op-

3 = portunities of the mass of the citizens of the state. The

*

ce

Af HG Passe 7 2 :

3

statute was entitled: An act to protect the citizens

of the United States in their employment against non-

citizens. of the United States, in Arizona.“ (239 U. S. 40, at

41.) But in the instant' case · the attitude of the Court

seems to he reversed. -The gindividual’s Tight-to-work,

the personal liberty of these appellees is subordinated to

some vague, undefined mass interest to which for the’ .

—_ time this Court applies the term right: to-work. oy ä

Whose ‘so-called right-to-wgrk is it that “Congress 5 5

might well believe“ Section 2 Eleventh would help in-

sure? And why i is it that Congress might well believe“

such a thing when the frrst suggestion of . such a notion 7

comes, not from counsel for the Railway Labor Unions,

nor from Congress in the statute or committee reports

3 otherwise, nor from the sponsors of the bills before

Congress, but from this Court in its opinion in this

case! To justify a statute under whose authority the

right to work of nonunionists is taken away, by suggest - —

ing that Congress miglſt have believed that in some un-

identified way the statute might help insure some other -

unidentified right to work is a vast departure from the

rules heretofore applied by this Court in determining

whether individuals have been deprived of their most

precious rights and liberties without due process of law.

m. f i a 2 i a ss ° 5 5

8 ‘The-Court erroneously failed to apply the rules of due |

Process heretofore announced and l by ‘this Court

* 3 v. Board of ‘Education of City of New- -

York, U. S. , 100 L. Ed. (Adv.) 44 (April 9,

1980), the majority « ape this Court found the. dismissal of 8

.

2

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if ;

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a 8

a Brooklyn College 3 to violate due process of law

a 2 his employment: was. terminated pursuant to a

ea York City Charter provision conditioning the right

to

| ork of city employees on their not utilizing the privi- : 7

Ae lege against self. inerimination to avoid answering a ques- 94

tion related to their official conduet. Slochower had re-

‘fused. to answer certain questions regarding his mem- eo

5 bership in the Communist Party. This Court referred +

to the case as being one involving „the problem of bal-

aneing the state’s interest in the loyalty of those 1

en its service with the traditional safeguards of individual = 4

rights.“ This Court protected the right to work of the

echer although recognizing the importance of the .

. state’s Interest in the loyalty of its employees. But in

te case at bar, this Court, if .it recognized the ‘‘prob-

2 lem of balancing” at all, balanced the right to work of

several hundred thousand nonu ion railway employees

ie against some ‘other unitlentified and undefined right to

work so obscure that until this Court, discovered it no

one else knew it was involved, and this-Court found

ee that the nonunionists’ right to work was not, entitled to

constitutional protection. In the Slochower ease this

Court cited Meiman y. Updegraff, 344 U. S. 188 (1952),

where this Court struck down a so-called loyalty oath

because it based employability solely on the fact of mem-

1 5 berchip in certain organizations. But in the case at bar

where employability in the railroads is based on mem- :

n. in labor organizations, this Court says: 2

The. task of the judiciary ends once it appears

that the legislative’ measure adopted is relevant or

appropriate to the constitutional power — Con-

gress exercises. aie |

- This, sentence says that all that is required of a edel

statute to make it constitutional is that. it be relevant

to the “commerce power of Congress. But railway em-

ployees, ke c ollege professors, have convictions with re-

ard to. what organizations · they. should or should not f

join, and resent arbitrary interference with their free- aha

dom. The opinion in this case fails to make clear why...

the rights: of railway workers involved. in this case turn

Don a mere question of poliey to be decided by the legis-.

lative branch, While comparable rights of teachers sus-

pected of being Communists are protected by this Court.

in spite of the fact that the poliey question in their cases

had been determined by the legislatures. x D

N At page 8 of the opinion the power of Congress un-

der the Commerce Clause: is compared to the police

power of the states. In Meyer v. Nebraska, 262 U. 8.

2390 (1923), another case in which this. Court upheld the

right to work of. a school teacher, this Court i in referring

to the right to wok, at 262 U. S. 399, 400, said: a

: “The established doctrine is that this liberty

may not be interfered with, under the guise of pro-

8 tecting the public interest, by legislative action which

is arbitrary or without. reasonable relation to some

purpose within the competency of the state to ¢f-

fect. Determination by the legislature of what con-

_ stitutes proper exercise of police power is nt finql

or — but is * to supervision ey tite

-courtse ö : oc:

Does this Court ‘now — that statement?

Does this Court intend to. repudiate its former state-

ment that “not even resort. to the commerce. 3 can

Ps

> defy the d of in 8 a utatelisent whieh |

has heretofore been accepted as axiomatic?

Does wis Court intend to ‘repudiate its former state- ö

ment that a requirement of due process is that the

means selected shall have a real and substantial rela-

tion to the object sought to be attained’’?’ Even assum- :

ing that an object of Congress was as this Court says—

industrial peace along the arteries of commerce,” can.

thetrelation of the statute to such objective be real and :

subgtantial when it was 80 obscure that-neither Congress

nor union counsel saw fit to claim that it existed?

Does this Court mean to repudiate its. former. ruling

that statutes which go beyond the necessities of the case

in infringing individual rights of aaah and property

are ee 28 :

Does this - Court n its real pa 3 dan-

ger rule which it has long applied in cases involving

the individual’ ~ most precious“ liberties? In United

States v. C. I. O., 335 U. S. 106, 140 (94% a dase in-

volving the right of a labor leader and a union t@ spend

its money to help elagt a candidate for Congress, the

members of this Court who were unwilling to go so far :

as to give the Federal Corrupt Practices Act a eonstruc- |

tion contrary o its plain language, said.

\ “But when regulation or prohibition touches

them [First Amendment Freedoms], this Court is

O duty bound to examine the restrietions and to de:

— of Auris v. Central Retining Co, da, ae

vs. 6 (1960).

1 Nebbia v. New York, 291 U. 8. 502, 545 (1984).

8 House v. Mayes, 219 U 8. 20, 285 (1911). a

—

11

cide in its own babs judgment whether ae

are abridged within the Amendment’s meaning. That

office cannot be surrendered to legislative judgment,

however weighty, 1 duch n is always

entitled to respect. 5

3 * 898 -#® 5

= “For, while not absolute, the enforced surrender

of those rights must be justified by the existence and

immediate impendency of dangers to the public inter-

est which clearly-and not dubiously outweigh those in-

volved in the restrictions upon the very foundation

by of ‘democratic institutions, Mer . ;

Are not the richts of the workers entitled to the same

: consideration given to labor leaders and to unions?

Dioes the Court now substitute its statement, for

we pass narrowly on’’ the statute, whatever. that may.

mean, and broad though the statute may be, for its former

clear requirement that ‘‘statutes restrictive of or pur-

porting. to place limits to thase [First Amendment] free-

doms must be narrowly drawn to meet “the precise evil

8 Legislature seeks to curb?

We submit that if this Court were to 8 the rules

ae due process as it has heretofore announced them, it

| i co be impelled to a different result i in the instep case.

f i i IV. a 25 | 8 2

„ e e n thet: “The only Gontitions

to union membership authorised by Section 2 Eleventh of

"the Railway Labor Act are the payment of ‘periodic dues,

initiation fees, and assessmen Pee |

a If the Court means what the sentence quoted above |

8 trom page 9 of its opinion says, it is construing the stat-

9 U. 7 v oro. * 8. 106, 141, 142 (1948), and cases there

a2

ae 15 in a way not permitted by the n of the stat-

Nute or by its legislative history. The Court uses the same

kind of language on page 12 of its opinion. where it says,

“No conditions to membership may be imposed except as

respeets ‘periodic dues, initiation fees, and assessments. 5

| But conditions to union membership and conditions

to employment are two different things. The only condi-

tioff to employment authorized by Section 2 Eleventh is

that all employees shall become members of the: labor —

| organization,“ provided that that condition is not valid

with respeet to employees go whom membership is not

available upon the same terms and conditions as are gen-

erally applicable,” or “to whom membership was denied

or terminated for any reason other than the failure of

the employee to tender the periodic. dues; initiation fees,

and assessments.“ Section 2 Eleventh:does not prevent

the railway labor unions krom making any conditions to

union membership they may take a notion to make. Rep-. 1

resentativés of N egrdes asked Congress to prohibit the

8 railway unions from excluding Negroes from member-

ship, but their efforts were opposed by the white labor

oe. leaders, and the effort: to amend. the bill that became Sec-

tion 2 Eleventh to that end failed. (Congressional Rec-

‘ ord, Ex. 31, p. 16,538.) The position of the Negroes was

presented to the congressional committees by Clarence

Mitchell (Ex. 29, p. 285; Ex. 27, p. 242), Theodore E.

Brown (Ex. 29, p. 273; Ex. 27, p. 230) and Joseph C.

0

Waddy (Ex. 29, p. 285; Ex. 27, p. 242). In his testimony .

at Exhibit 29, page 302, Mr. Waddy said that withunt

the requirement that the union: must accept Negroes into

full membership, a statute authorizing union shop con-

2 traets would: be * to the Negroes because it would

13

bring about an intensification of the effort to separate

the Negro firemen from their jobs, so that the union could -

have 100 per cent union * without accepting

2 Negro members. :

There is nothing in Section 2 ‘Eleventh * 3 ee

the union from expelling a member for any reason or for

no reason at all. Under. Section 2 Eleventh a railway em-

ployee may be compelled to become a member of a union

and be compelled to pay life insurance premiums as part

of his. union dues, but after he has paid on this insur-

5 ance in this manner for many. years so that it has a sub-

stantial value to him, he may be arbitrarily deprived. of

its benefits by being expelled or suspended from the f

union, and Section 2 Eleventh gives. him no protection

against such union action. If this Court really thought

that the only conditions to union membership authorized

by Section 2 Eleventh are the payment of dues, fees and

assessments, the Court should have another look at the

statute and its legislative history. a

g The Senate Committee Report. on Section 2 Eleventh

* 28; 3, 66) states (at p. 2):

: “The bill attaches two conditions to ‘de execu-

tion of union- shop agreements :

“First, the agreement may not require member- :

ship-in the labor organization as a condition of em-

Do saath . F

ployment. with respect, to employees to whom mem

bership is. not available on the same terms and con-

ditions as are generally applicable to any other mem

bers. Under this provision a labor organization ean-

not require union membership as a condition of em-

ploy t if it refuses to accept the membership of —

wks of certain classes or offers them only ‘limited :

14

ä „The — condition set up is that the agree- ;

„ ment may not. require membership in the labor or-

ganization as a condition of employment with respect

to employees to whom membership was denied or ter-

minated for any reason other, than the failure of the

employee to tender the periodic dues, initiation fees,

and assessments uniformly required as a condition

of acquiring or retaining membership. The effect of

this condition is to remove from the requirements of

any union-shop agreement those employees to whom

membership has been denied or who have been ex-

pelled from membership for any cause except non-

payment of dues, fees, and assessments. In such cases,

nonmembership in the labor: organization ‘could not

be used as the basis-for the dismissal of the e

by the carrier.“

See also pages 3 and 4 of the adore report and page 5

of the House Committee Report (Ex. 30; 8, $6). ä

Section 2 Eleventh ‘does not amend the unions’ on- |

stitutions and by-laws. And although the. unions had

plenty of time between the enactment of Section 2 Elev-

enth and the commencement of this suit to amend their

constitutions and by-laws. to confine their functions to. col-

8 leetive bargaining and make membership less objection- ,

able to many railway employees, they have not done so,

and they remain private social, f raternal, insurance, and

political organizations, as well as collective bargaining

representatives of railway employees. VF

From the statute itself and its legislative history,

it is clear that ‘Congress intended to leave with the unions

3 the full power to make their own conditions of member-

„ by the language we have quoted from the opinion ef hi

Court to the contrary, the Court is giving the statute a

* . 5 2 ; 5 . . : ;

*

*

| ae

different. interpretation in an effort to so construe it a8

to avoid holding it unconstitutional: If it is, then we

would like to remind the Court that it has stated the rule

to be that if the statute be- reasonably susceptible. of two

interpretations, by one of which it would be unconsti-

tutional and ‘by the other valid, the construction which ©

will save the statute from constitutional infirmity will be

adopted. We submit that this statute is not reasonably

5 susceptible to the „ the Court Appears

to be e upon it. ra

v.

The Court erred in construing the statute to 3

only the collection of dueg, fees and assessments for the

? wk of the union in t of collective ne

=

——

At page 9 of the opinion the, Court says: )

The financial support required relates, 1

fore, to the work of the union in the realm of collec- .

tive bargaining. 0 .

At page. 12 of the opinion the Court says:

: “We only. hold that the requirement for financial

support of the collective bargaining agency by all

who receive the benefits’ of its work is within the

power of Congress under the Commerce Clause and

does. not violate either the First or r Fifth Amend-

ment. et tae : 5

If this Court by these statements is ‘construing Sec- o

tion 2.Eleventh only to authorize the collection of d ies,

fees and assessments for the support of the collective bar-

gaining process, then we submit that the statute is not

| reasonably susceptible to any such interpretation.

5 ae

: G knew that union on were used to sup: :

port the life insurance programs of the unions. Congress

knew that union dues, fees and assessments were used to ;

support. the unions’ activities in tobbying before Congress 2

and state legislatures. Congress knew that the union dues -, N

were used to pay for the political and economic prop -

ganda of the unions. Congréss knew that union dues were

used to pay the expense of the social and fraternal affairs

of the unions. And yet, knowing all these things, Con-

gress put no restrictions on the purposes for which the

dues, fees e and assessments might be collected and spent,

and no restriction. on their amount except that 78 be

e Uniformly required. 3

— —

There is nothing in the record to show an intention

on the part of Congress to limit the purposes for which

- the unions could use the money. To be sure, the argu- 5

ment that was presented to Congress was the free rider

argument, and the pur ported purpose -of the statute was

the elimination of free riders. But, had Congress in⸗

tended to limit the statute to the justification claimed for

it, the statute could have been narrowly drawn to accom-

Fy that purpose. (See pp. 93, 100, our brief.) But it

was not so narrowly drawn. The unions really wanted

more than a contribution from each railway employee

ok his share of the expense’ of collective bargaining. They

ae the money for all these other purposes. They

77 wanted Section 2 Eleventh as an opening wedge to the

5 removal of more statutory protection of working people

from the tyranny of unions. The unions’ future plans in

8 this respect are indicated * Mr. Harrison’s testimony se

R. = where he says: =

a

Wnile we firmly: believe that there should be no

statutory. prohibition against union shop agreements

which permit the exercise of union discipline even to

the extent of requiring the. discharge of an. expelled

‘union member, we do not at this _: seek such au-

thority. 95 _ (Emphasis | ours.)

That the unions wanted more than a contribution. to

the expense of collective bargaining is further indieated

. by their stress. of the requirement of joining the union.

This is emphasized. by their. spokesman in his testimony

(R. 221) as follows: * 1 Sf

Mr. Silla: So the important thing in this

bill is the check-off. Is that a fair statement or not?

Mr. Harrison: No Ol think the first thing is

the requirement that all of the employees subject to

the collective bargaining agreement must join the la-

bor union making the collective-labor agreement, and

then the second thing is _— they must pay their dues

„ the union:

The unions drafted the legtblation and Congress en-

acted it into law. ‘The very idea of being prevented from

using dues geolleeted under compulsory membership con-

traets for political and other purposes not germane to

collective bargaining representation is anathema to the

unions. On January 30, 1956 (Congressional Record, p.

1309) Senator Curtis (R., Neb.) and Senator Goldwater

(R., Ariz.) introduced a bill (S. 3074) which would amend —

the National. Labor Relations Act to provide that no union

could have a union shop contract unless it filed an affi-

davit that it had not within the preceding two-year period .

made political expenditures or contributions in a federal

election. In his syndicated newspaper column. of Febru-

ary 20, 1956, Victor Riesel reported as follows:

o

* ll iia in Florida, oe AFL-CIO’ President :

George Meany almost chew his traditional cigar in

half when he talked of the Curtis-Goldwater bill.

: „ | * Meany said this would wipe out the labor ;

movement and he had no intention of sitting by and

— letting this get any place i in the Senate.“

“Why would this Court assume that labor leaders ‘with :

ayes this attitude toward the use of union dues for political

purposes would draft and lobby through Congress a bill

which yould limit their use of union. dues money to finan-

- gial support of the work of the union in the realm of col-

lective bargaining? The statute is not reasonably sus-

i ceptible to such an Sterpretation-—~ 3

8 The Court and in evecdooking the fact. that the in-

junction in this case runs, not n a statute, but un

carrying into effect a contract. g . |

While’ there is precedent for construing a statiite ae

avoid finding it unconstitutional (but only when the stat- Ey

„ute is reasonably susceptible to such an interpretation), 8

‘> . the Court apparentiy is here likewise interpreting this

union shop contract to require nothing .more than a con-

_ tribution of financial support of the collective bargaining

4 agency for its work in the realm of collective bargaining.

„But the contract (R. 6ff) requires that the employees

| ‘shall, as a condition of their continued employment

Lo become meuibers * * * and maintain membership“

in the union provided he shall not be required to be-

come or remain a member if the membership of such ©

employee is denied or terminated for any reason other

than the failure of the employee to tender the periodic.

dues, initiation fees and assessments.’ see

: = 8

Whsteter the meaning of ‘‘shall become siete’? 8

may be in the statute, for the contract that expression oF

must be construed together with the supplemental agree-

ment (R. 17) which exempts from the requirement of join-

ing the union certain members of. religious groups if they

nevertheless agree to and do pay all the initiation fees,

nt wk assessments that others are. required to pay.

The

requirement of membership was something additional to

; : the requirement of a tender of dues, fees and assessments.

a

That the parties understood that the contrast re- i

arties to the contract obviously thought that the N

quired more than payment of dues, fees afid assessments

is further evidenced by the correspondence between them.

Exhibit D (R. 92) shows that the unions were insisting ae

on a full union shop'“ and ‘‘were interested in nothing

3 len’: than a complete union shop agreement which would

‘eompel all railroad employees to join a union,“ while

the western railroads wanted to discuss other possible

forms of a union seeurity agreement, ‘but reiterated that

they were not willing to make an agreement Fhich com-

pels a man to join a union against his will in order to

‘earn a. living.“ Under threat of strike the Union Pacifie

capitulated ‘and signed the ‘full union shop agreement“ i

demanded by the union. Under this type ef contract the

unions have succeeded in obtaining the discharge of : an

: employee who tendered the initiation fees, dues and as-

sessments, but failed to join the union, Pan American

World Airways, Inc., and Brotherhood of Railway

Steamship Clerks, ete., 20 Labor Arbitration Reports. 31

(1933). While this Court at page 9 of its opinion says: |

* = 89 2

8 . 3 . S

— : . 4 : = a 8

8 Tage . = er ; . 4 5

N “To require, rather than to. nai the 5 8

ſiciaries of trade unionism to contribute to its costs

may not bé the wisest course, 3 more has been i

attempted here.. 7 — 2

and in saying 80 4 0 climinating the Thion :

membership requirement. from Section 2 Eleventh by con-

struction in order to preserve its constitutionality from :

attack on the ground that it violates freedonr of associa-

tion, this Court has not specifically 80 construed the con-

tract. Is not the contract then, in this respect, ‘outside ©

the protection of Section. 2 Eleventh, and was not the in-

junction against carrying it into effect. correctly issued

even though Section 2 Eleventh be construed as this Court

ee ee has e. it! 5 :

Furthermore, this contract says aithine about the

fees, dues and assessments being limited to “support. of

the work of the union in the realm of collective bargain-

ing.“ The record in this case shows that the dues the

- contract requires to be paid inelude life insurance prez”

miums, which run as high as “$1.30 per month per em-

von

ployee (See recerd references at p. 14 of our brief).

These premiums are not germane to collective bargaining.

And the employee has no assurance. 3 he will ever get

9 the benefits of the ‘insurance he is “thus forced to pay

kor. For his i insurance may be forfeited if the union takes

disciplinary action against him on account of his inde-

. pendent thinking or the 2 e of What we had supposed

was his right of free bpeech. pets of union consti-

tutions under which such action can be taken are set out

in feotnote 9B of this Court’s opinion i in the instant case.

3 The record in this case 3 that wader. this con-

traet and the union constitutions a a d by-laws, railway

> See ; 5 8

\

ad 8 4 r 8 , : é \

1 * 0

3 ‘ 2 . . . tek

— — eeEEeEeEeeEeEeeEeEeEeEeEeeEeEeeeeeeeeaeEeEeerrerrererererre

(our brief, pp. 71 to 75).

.

ze employees are a ede to pay. money Ge unjons for

charitable purposes, which is a purpose not germane to

2 collective bargaining: It shows that one unigh takes 20

cents per year from each union member’s dues for charity

(Ex. 11, R. 146). If the Court were willing to take ju-

dieial notice of the facts of general knowledge, as it usu-

ally seems willing to do in. considering such cases as this,

the’ Court would know that unions make donations to re-

ligious and charitable organizations in very substantial

amounts which are not germane to colleetive bargaining ö

S

The record in this case shows that a this con-

tract and the union: constitutions and by-laws, railway

. employees are required to pay money to the unions for

political purposes. Union constitutions Provide for po-

litical education of the members (Ex. 10, R. 142). Union

dues : are used to pay for publications such as the weekly

paper „Labor (Ex. 10, R. 143), and 4ach union has its

oven official publication (Ex. 11, R. 142; Ex. 9, R. 135)

„for the propaganda of the organization” (Ex. 15, R=

151). These publications are paid for by the union mem-

bers' dues, and mailed to the members, Thus the forced .

union member is required to pay for his own political

and econdinic indoctrination. Lobbying is to be paid for

out of union dues: by the locals sending to the interna-

tional such an amount as 10 cents per member per quar-

| ter (Ex. 10, R. 144). The record shows that union dues

have been used by railway labor ‘uniong to elect or op-.

pose candidates for * office such’ as United States =

Senators (Ex. 31, R. 255). :

Under this contract, this 1 shows that: workers

are ‘required to contribute. dues to * union for pur-+ .

a

4 5 i g

2...

' O

22

poses which do not relate to the work of the union in

the realm of collective bargaining,’? but which are pur-

poses not germane to collective bargaining,“ to quote

. the expressions used on page 9 of this Court’s opinion.

~ Therefore, if this Court has sustained Section 2 Eleventn

on the theory that the financial support required by it

5 relates to the work of the union in the realm of collec-

tive bargaining, as this Court appears to have done, then 5

appellees should: be entitled to an affirmance of the in-

junction against carrying this contract into effect since

the record. shows that the dues, initiation fees. and assess-

a ments required by it will be used for purposes not ger-

mane. to collective MEER, 0

Cc

9

The Court erred in comparing the compulsory union

membership, requirement of the union shop contract in thé

instant case with the integrated bar?

At page 11 of the opinion the Court says: N ‘

On the present record, there is ng, more an in-

fringement or impairment of First Amendment rights

than there would che in the case of a lawyer who by

state law is required to be a member of an integrated

bar.” - ee

Here, the Court lost sight of the distir tion between :

being compelled to take affirmative action o become a

: member of a private organization on the one Saad and on 5

the other hand- being automatically -included as a part of

an arm of the government itself. The Court also overloaked |

tze distinction between the right to work for a living in

common occupations of the community, and the. privilege

of being an officer of the court—a member of the. bar.

8 7 2

leas

3

23 |

The Bar of ‘Whine was integrated 1 * of eo

: Supreme Court of Nebraska. The opinion ‘of the court

and the rules creating, controlling and regulating the Ne-

brakes State Bar Association are set forth in Re Inte-

gration of Nebraska State. Bar Association, 133 Neb. 283,

275 N. W. 265, 114 A. E. R. 151 (1937). All lawyers

resident in and licensed to practice in Nebraska were

made members; not by any affirmative act of their own,

but by the rules establishing the integrated bar. It is a

part of the judicial branch of the government of Nebraska, 2

and is subject to the and of the Supreme Court of Ne-

brasky In the annothtion, 114 A. L. R. 161, a mumber

of similar decisions with régard to- integrated bar aaso-

ciations of other states xre discussed. ‘One case quite per-

tinent to this discussion is Re Scott, 53 Nev. 24, 292 Pae.

291 (1930), rehearing denied, 53 Nev. 48, 296 P. 1113

(1931). There the court. rejected a e e “that an

act providing for the integration of the bar violated. the

® fundamental principles of government in that those en-

gaged in the practice gf law were compelled to accept 5

membership in a corporation in order to practice their

1 profession. The court said: This contention furnishes

the most popular criticism of the members of the profes-

sion ‘opposed to the law. As hereinabove stated, the mem-

: bership, character, and conduct of those entering and en-

gaging in the legal. profession has, since the inceptioncpf

our state government, been regarded as the proper sub-

ject of legislative regulation and control; the right to

follow any of the common industrial ooeupations of lite

does not extend to the pursuit of professions or vocations _

of such a nature. as to require peculiar skill or supervi-

sion for the public welfare. In the e and 8

of the legislation under review, the legislature evidently

: considered that the time had come in the administration

of the law that attorneys and counselors at law, ‘who con-

‘stitute an integral and indispensable unit in the adminis-

tration of. justice, should be organised as a body politic, .

with delegated police power subject to the control of Ahe

supreme court and the legislature in a matter of great

public concern. * .

The practice of ie is a a privilege. Petition for Tn-

tegration of Bar of Minnesota, 216 Minn. 195, 12 N. W.

2d 515, 518 (1943). “The integrated bar is not a private |

association but an official_governmental body. State Bar

v. Superior Court, 207 Cal. 323, 278 N 432, 434 (1929). =

But Congress did not make the railway labor unions.

into governmental. subdivisions or agents. It delegated to

them the power of compulsion, the power of taxation. But

they remain private: associations, not governmental bodies.

i “

The Court erred in holding in effect that Congress

may e to a private organization the power to tax.

e page 12 of its opinion, this Court said, We only

_ hold that-the requirement for financial support of the col-

ive bargaining ageney by all who reeeive the benefits» )

| of its work is within the power of Congress 8

But the opinion did not consider the point we made

at page 100 of our brief that an attempt to impose a tax f

for the benefit of a private organization is an unconsti- -

tutional deprivation of sia property without due Proc- .

. —

— 8

N *

. .

oy . *

8

ess of law. We there cited The Citizens Savings & Loan

Assn. v. Topeka, 21 Wall. 655, 87 U. S. 686, 22 L. Ed. 455

(ere), where this Court said at 20 Wall. 6652

N In the case. before us, in whick the towns are

authorized to contribute aid by way of taxation to

any class of manufacturers, there is no difficulty in.

holding that this is not such a public purpose as we

have been considering. If it be said that a benefit

results to the local public of a town by establishing

| manufactures, the same may be said of any other

business or pursuit which employs capital or labor.

The merchant, the mechanic, the inn-keeper, the bank-

er, the ‘builder, the steamboat owner are equally pro

oe _ ghoters of the public good, and equally deserving fhe

aid of the citizens by forced contributions. No line

can be drawn in favor yot the manufacturer which

would not open the coffers of the publie treasury to

the importunities of two-thirds of the business men

of the city or town.“

Similar. eases are Commercial National 8 v. lola ‘

2 City, 154 U. S. 617, 14 S. Ct. 1199, 22 L. Ed. 463 (1874);

3 Parkersburg v. Brown, 106 U. S. 487, 1 S. Ct. 442, 27 L.

_ Ed. 238; and Cole v. LaGrange, 113 U. 8. 1, 5 S. Ct. 416, ;

28 L. Ed. 896.

In the instant case Congress bal Fone even one step . 2

farther than imposing a tax for the support of a private

organization. It has. delegated to the private or

the power to — a tax. ö

If Chitin can do this, then Congress can delegate °

to business men's organizations the power by restraint

of trade or other coercive measures to enforce financial

contributions to trade associations from those who are

- presumably benefited by their activities but who would |

eg ie

prefer to have no part of such associations. Indeed it

would seem to follow that Congress can authorize the use

of all kinds of coercion by private organizations to com-

pel contributions from those they elaim to be benefiting.

There is nothing in the opinion of this Court in the 2

o stant case to indicate that this anpeet of its holding was

given any consideration.

*

The Court erred in acl upon 3 the burden

of showing that the money they are required to pay under

the union shop contract as union fees, dues and assess-

ments will be used for purposes not germane to collective

. bargaining, and in finding that that burden of proof had

not been satisfied. 3

On page 9 of the opinion this Court said

1 „The financial support required relates, tos.

fore, to the work of the union. in the realm of collec-

tive bargaining. No. mare precise allocation of union

"overhead to individual members seems. to us to be

necessary. The prohibition of ‘fines and penalties’

precludes the imposition of financial burdens for dis-

ciplinary purposes. If ‘assessments’ are. in fact im-

posed for purposes not gerinane to collective bar-

gaining, a different problem would be presented. *

The Court's opinion does not inform counsel as to ;

what purposes would be not germane to collective bar-

gaining. But we think it is clear that the record in this

case testimony and documents which have beef received

in evidence—shows that the union dues will be used for

a number of purposes not germane to collective hargain-

ing. The record shows that union dues will be used to

pay for insurance benefits of Which the union may de-

Drive the individual worker through disciplinary proced- ,

S

a.

ure, to pay for charitable detations, to pay for. the dis-

sident individual's own politieal and economic indoctrina- 5

tion through union ‘publications, to pay the salaries and

expenses of lobbyists before state legislatures and before

Congress. We have pointed out that the record shows

that the railway labor union dues in the past have been

used to support or oppose candidates for public office.

This evidence in the record is supplemented by matter of.

of common knowledge with regard ‘to. political activities

and charitable donations of unions out of union dues. All

this the opinion of the Court seems to overlook.

The oo e to deny appellees relief because they

have not proved that the union intends to use the specific

funds appelleés will be required to pay as union fees,

dues and assessments for a purpose not germane to col-

lective bargaining. Assuming that paying. out union dues

money to defray the expense, of ‘electing a candidate to :

publie office would be: „not germane. to collective bar

gaining.“ this. Court seems to put the burden on appel-

lees to prove that their dues 12 oney will be so used.

This, we. submit, makes a mockery of justice. These

funds collect as dues today, may be placed on deposit

by the union and mingled with other millions of dollars

the unions now have on hand. Yeate hence they may be

transferred from the union to some. other organization

such as the Railway Labor Executives Association. Later

that organization may spend the money for such palitical — a

purposes. The Railway: Labor Act does not 3 the

unions or their transferees to account to their members

or to the government or to anyone else for the expendi- 5

ture of these dues funds. The member is not given the

. *

i

right to know how his dues money is spent or how it will

be spent. He would be able to find out, if at all, only”

through litigation and accounting and discovery procedure

which would iiwolve pronibitive expense.

What the Court appears to be doing is to recognize

that the dues of union members will probably be spent

tive bargaining, but to N the worker any ‘effective

remedy. . | :

‘The statute literally interpreted wuthorines the nnion

to collect dues, fees and assessments without restriction

as to purpose and without limitation. as to amouft. With-

out say ing so the Court seems to be paneling the rule

that

“the question [of the constitutionality of a n ö

A

is to be determined’ by what may be done under and

by virtue of its authority, not by what has been done

under an act in any particular instance.“ 11 Am.

Jur. 737, Constitutional Law Sec. 102.

by ſthe unions in part for purposes not germdne to collee-

This textbook rule is supported by the citation of many.

cases, including two. from this Court. In Montana Co. v.

St. Louis Mining d& Milling Co., 152 U. 8 J60, 170, 38 L.

Ed. 398 (1893), this Court approved the test laid down

by the Cagrt' of Appeals of New York as follows: c

ze constitutional validity of law is to be

tested. not by what has been done under it, but by

what may, by its authority, be done. “és

And in Eubank v. Richmond, 226 v. 8. 137, 144, this 5

: Comms said:

We are “testing the ordinanee by its extreme

2 to show how i in its s tendency and instance a

0

it enables”

deprivation of property without due process.

„ devision of this Court ‘departs from the rule of |

‘the above cases. It is little protection to the constitu-

tional rights of the railway worker ‘to tell him that the”.

_ statute really ‘only authorizes the union to force him to

pay fees, dues: and assessments for the suppört of the

collective bargaining process, while at the same time re-

quiring him to pay all that the union demands because

he cannot predict with’ absolute certainty what use the

union will eventually make of the money. :

The Gourt ecred. in holding that, Section 2 Eleventh |

was within the commerce power of Congress, that the

objective of the statute was industrial peace along the

arteries of commerce, and that Congress chose the union

shop as a stabilizing force.

On page 8 of the opinion the Court says:

„The ‘ingredients of industgl peace and stabil- 3

ized Iabor- management relations are numerous and

omplex. They may well vary from age to age and

ohe decade might be anathema the next.“

The legislative history: of Section 2: Eleventh .

it clear that the union shop was not anathema to Con-

a gress, ht it makes it equally clear that Congress did

not consider it needful to industrial peace. e evidence

from industry to industry. What would ebe N oo

was undisputed that under a statute prohibiting union

shop contracts the record of the railroad industry for

industrial peace and stabilized labor-management rela-

tions was much better than that. of other industry under

a statute permitting union shop contracts“

De

30

n in Section 2 2 Eleventh or in the Congres-

sional ‘committee reports was there any claim made that

Section 2 Eleventh would tend fo bring about or pre-

serve industrial peace, or would stabilize labor-manage- :

ment relations in the railway industry. Nor did this

Court get the notion that the Congressional objective in

Secfion 2 Eleventh was industrial peace in the railway .

industry from union counsel. Their argument on the com-

merce power was that the subject of union shop agree-

ments had been % prolific source of labor disputes’? (P.

19, Railway Labor Executives Assn. brief); that it was

d within the Commerce Power to eliminate that prolific |

source of labor disputes by prohibiting union shop con-

tracts; and that if Congress could ban that source of dis-

putes, Congress. could also bring back that source of dis-

putes. We answered that eliminating a prolific source of

labor disputes was within the Commerce Power as being

‘‘reasonably. caleulated to prevent the interruption of in-

terstate commerce by strikes and their attendant disor-

ders, „ quoting the rule laid down by this Court, but that

bringing back into the area of labor-management conflict

a prolifie source of labor disputes could not so qualify

as an exercise of the Commerce Power. We pointed out

that the natural operation and effect, indeed the actual 3

operation and effect of Section 2 Eleventh. was to bring |

about the danger of strikes and their attendant disorders,

so much so that in the judgment of the National Media-

ti tion Board they threatened. substantially to interrupt i

interstate commerce to a degree such as to deprive this

country of essential transportation services” * E, R.

95).

; 31

This court rejected the arguments of union osunedl 7

and adheréd to its established rule that the authority of

Congress in labor relations under the Commerce Power

is to adopt appropriate measures to „facilitate the ami-

cable settlement of disputes which threaten the servi

i necessary agencies of interstate > transportation.””

Then this Court proceeds to discover a fact. which

- neither Congress nor union counsel were able to discover,

namely, that bringing back into the area of labor-man-

‘agement conflict a. ‘prolific source of labor disputes

which had been previously eliminated was intended by

Congress to promote industrial peace in the railway in-

dustry. Previously this Court had taught Congress to tie

degislation to the Commerce Clause by legislative findings.

Is the teaching of this decision that this Court will supply stats

the essential findings which neither Congress nor counsel

defending the statute were willing to suggest?

The concurring opinion assumes that Seetion 2 Elev-

enth $s an exereise by Congress of its power under the

Commerce Clause to promote peaceful. industrial rela-

tions” and seems to argue that after that assumption is

made anything further that can be said would raise „ques-

| tions not of constitutional validity but of policy.”

The opinion cites Adair v. United States, 208 U. 8.

161 (1908), which found the railroads’ liberty of eontract poets

to overbalance the workers’ freedom of association which

the Congressional enactment there questioned sought to

protect by outlawing yellow dog contracts. The opinion

seems to argue that since this decision is no longer lap.

and statutes protecting the workers’ freedom of associa -

tion are now upheld, | Section 2 Eleventh, which infringes

„

—

. 8

5 5 29

un

| the nonunion workers’ freedom of assoctation and right

to work should ‘also be upheld. It argues that sinee Mr

Justice Holmes in his dissent in Adair asserted the va-

lidity of a statute which fostered union membership by

protecting the employees“ ‘freedom to join or not to join,

the instant statute under which workers are deprived of

their freedom not to join is also valid. This concurring ©

opinion seems to further demonstrate that in eonsidering |

this case this Court lost sight of the line that divides 5

freedom from compulsion, and forgot that even an exer-

eise of the ‘commerce power is subject to the requirements

of due process. „

„We have come ‘full circle en the point of view in

the Adair ease, says the concurring opinion. This is

_ reminiscent of the similar remark made by Mr. Justice

Jackson, dis in Hunt v. Crumboch, 325 U. 8. 821,

830, 831 (1945), where he said: ie

. With this decision the bor movement has come

full circle. * * This Court now sustains the claim

of a union to the right to deny participation in the

economie world to an employer simply because the

union ‘dislikes him. This Court permits to employees

the same arbitrary dominance over the economic

sphere which they. control that labor, so long, so bit-

terly and 80 e asserted — belong 40 no

man.“

Ves, we 8 come full Wrede from thie Adair holding :

that railroads could deprive. workers of f reedom of as-

"sociation by yellow dog contracts. “This Court now per-

- mits to unions that same ‘arbitrary dominance over the 4

. workers’ rights, and sustains the union counterpart of the

yellow dog contract—the union shop: contract by which

0 : 8 8 : ne 7

0 5 .

—

33

7 s 2 : * Ox ; i 2 3 8 7

those workers who are unwilling or unable to join unions

are deprived of -their-freedomof _asasteiation: and right to

—— —ę— yng ;

work.

‘The concurring opinion further. recites that the rail-

roads, subsequent to che Adair. ease, changed their atti-

tude toward railway labor unions and have cooperated

with the unions, even to the extent of joining with the

unions in 1926 in writing the Railway Labor Act and

asking Congress to enact. it. This is quite true. But it

is equally true that ‘all of the railroads vigorously op-

posed the enactment. of Section 2 Eleventh, and told Con-

gress that it was not needed, and that it would not be

heneficial to labor- management. relations in the railway 7

industry. Railways were no less anxious ‘to.preserve in- |

dustrial peace in 1950 than they were in 1926, but with

_ reference to the 1950 statute it would seem that the 1950

attitude of the: tailways which this Court ignores would

de of more significance than their 1926 5 attitede which the

eoneurring opinion stresses, bear

The concurring opinion b with „e are now

asked to declare it beyond the power of Congress to au-

thorize railroads to enter into voluntary agreements with

the unions 0 em „ The use of the word ‘‘voluntary””

here may indicate that the writer of the opinion, and

perhaps other members of the Court, failed to under-

stand that no railroad wanted the union shop, that all

railroads opposed | the enactment of Section 2 Eleventh,

but their representatives testiſied Ne fore Congress that

if. Section 2 Eleventh were enacted they would probably

be forced to sign (see p. 18 ff our brief). Section 2 Elev-

enth, superimposed, as it was, upon other sections of the

th 5 E ; 2 b : 4

. i . 5 | 34

: Railway Labor, Act and the. general law. on the subject,

gave the unions the right to “strike to enforce their de-

i mands for compulsory unionism. It gave them the right

to bludgeon the railroads into submission on this point.

The use of the word voluntary“ in connection with a

‘anion shop contract is not only obsolete, it has become

ludicrous. The appellants have conceded that the Union

Paeiſie did not want a union shop contract (p. 20, our

brief). To quote from a brief filed by the Union Pacific

in this case in the District Court,

these union shop agreements were not sought by the

Union Pacific, but were entered into enly after the

ere ultimate in pressure short of an actual ‘strike had

— bern exerted by the nN unions 1 88 the Union

ieee. g

Perhaps our discussion of the: concurring opinion whee:

not tie in too well with the eaption of this subdivision.

We have discussed here because, like the majority opin-

ion, it. seems to assume a set of facts other than the facts f

in the case as a basis for assuming that the statute is a

valid exercise of the commerce power, and for assuming

that the only question involved was the policy question

far Congress to decide as to whether it should ‘‘regulate

oe commerce * legalizing compulsory unionism in the rail

road. . 5

i The Court erred in inate the decision of the Bu-

preme Court of Nebraska.

The Supreme Court of Nebraska decided this: case on

the basis of the statute as written and the record in this

case. The statute 2 to legalize- contracts condi- 7

35 Se

thei railway employment on the employee’ . becoming |

a member of a union and paying initiation fees, duesand

assessments Nithout limitation as to amount or restric-

tion as to the purpose for which the union ny spend

the money. The Supreme Court of Nebraska held that f 2

Pe

:

:

:

:

:

5 may be abhorrent to him is clearly a taking of his prop-- :

& statute to be unconstitutional because it \violated the re-

quirements of due process in depriving workers of their

freedom of association, the freedom to join or not to join

an assoeiation with others, a freedom granted by. the First

Amendment, in depriving workers of their right to work,

and in depriving them of their money in the form n of ini-

tiation fees, dues and assessments which money the union

ean and does use for purposes other than. the cost of 3

collective bargaining—for purposes that inelude life in- f

surance, welfare funds, strike funds, and propaganda for

economic and political, principles which may be anathema |

to the worker. The Nebraska Court said that forcing an

employee to join a union and compelling him to finan-

a. support principles, projects, policies, or programs

in which he does not believe and does not want, and which

ay without due process. The Court said:

att + Assuming it would be e for er

to require all employees receiving benefits from col-

leetive bargaining agreements to contribute their pro-

Portionate share of the cost thereof, à question not

before us and one which we do not decide, we gre

nevertheless of the opinion that it can not be done in

the manner in which it was here attempted.” eee

But the Supreme Court of the United States seems ee

to attempt to torture this statute and this record into the

case and the question which the Supreme Court of Ne- zy

~

ee Me ae ts Nee

® \

braska specifically recognized as a 8 not beide ee

us and one which we do not decide.” We submit that this,

Court should grant a rehearing and should proceed to an

‘decide this case, the case the Supreme Court of Nebraska.

decided, instead of the ease which this Court Fee

decided the case of the supposititious statute Phich calls

only for financial om. of thé collective ba: gaining

process. | | oto

< 2 7

22

a a

oo sl.on \

The individual appellees submit that unless a re- : 7

hearing of this case is granted, their case will not have :

nad the cénsideration from this Court to which it ist en-.

titled. Section 2 Eleventh was designed to force some

300,000 nonunion railway, ‘employees into union member- .

ship or ‘out of their jobs. Many union members “also op-

pose compulsory unionism because it deprives them of

their most effective means of making union’ leadership

Tesponsive to the membership their right to protest by

nene their support. The only opportunity these

people have had to be heard in this Court is through this,

case. ie: ae a 5

Although this case was an appeal from the unanimous 75

- decision of the Supreme Court of Nebraska holding a

federal statute unconstitutional, this Court put the case

on the summary docket thereby reducing, the time allowed

_ appellees’ counsel for oral argument to one-half hour. i in⸗

- stead of one hour. ‘Appellees’ counsel filed a motion to

remove the case from the summary calendar and to place

. it upon the — — 2 and 0 i

«

37

that motion with a showing that one-half hour on a side

0 entirely. inadequate for asproper presentation of the

factual background “and the legal propositions involved

in this case. In an effort to prevent appellees’ counsel

from making an adequate oral presentation of the case,

the han e counsel fied an — to en :

\ ee counsel was “permitted only one-half 3 tor oral

argument. a fie 8 a

\. In its opinion in this case ‘this Court found no merit |

in- any of the arguments made by appellants’ counsel,

but pr ded to decide the case in favor of appellants 7

on theories and arguments raised by this Court itself.

Since these arguments were made for the first time in

this Court by the Court itself, appellees’ counsel have .

had no opportunity to meet them by brief of oral argu- 8

ment, and. their first opportunity 98 do so has been i in this

— for rehéaring. . .

Furthermore, the decision of this 1. Cont is 80 Leveln

2 onary, and its. implications as to lack of protection af-

forded by the Bill of Rights to personal freedom are so

foreboding, that the opinion shotlid not be permitted to

stand except after gareful re-examination by the Court

after consideration of — briefs and oral argu-

ment of counsel. Se N

53 + The individual appellees gone

— Ke — N

et al., Individual 1

7 Swans, May, Royce, Surrn &. Srory, age = AEN

' „ Counsel. sires a po 8

2E

. - — +

+ A . . eo 2 - 5

— Fs | . 5

I : ‘ :

= - 5 TE . .

8 ‘,

7 _ 8

| ‘CERTIFICATE or COUNSEL

: L Edson Smith, counsel for the |

, tioners, do hereby. certify that the foregoing petition for

— a rehearing of this cause. is-

5 for delay. alee

8 f .

5 . N f „ . rer „

Be Counsel for Petitioners

ae 5

Fs 9

3 2

— 2 4