# Petition for Rehearing — Railway Employes' Department v. Hanson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0205%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Rehearing - **Published:** January 1, 1956 - **Citation:** 351 U.S. 225 ## Text 2 . Court of the United States = ** 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 n „„ S „ 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 = \ Pee COCKLE PRINTING COMPANY, LAW BRIEFS, OMAHA or ‘ . ‘ — L. — — . = | = 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 A qe 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 * = = “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 © 2 = — €= ioe —taining legislation, outlawing yellow dog contracts and ® _. outlawing employer discrimination against employees on account of their union getivitios. But it: in nowise fol- ; 7 — P - 4 — 1. = 5 ; 3 * : Fi he . a 5 5 0 : 7 a 4 5 4 es 0 > — 0 Pe j = 5 ae | _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 * 0 0 8 8 5 , . 0 a . „ 5 P 2 _ oF Qt * — * 2 > ; 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.“ — — „ Actually’ and relatively the’ railway Istior. i in- 2 : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0205%3A1. Public record. Not legal advice.