MR. JUSTICE BRENNAN delivered the opinion of the Court.
A group of labor organizations, appellants here, and the carriers comprising the Southern Railway System, entered into a union-shop agreement pursuant to the authority of § 2, Eleventh of the Railway Labor Act.
THE HANSON DECISION.
We held in Railway Employes' Dept. v. Hanson, 351 U.S. 225, that enactment of the provision of § 2, Eleventh authorizing union-shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause and did not violate the First Amendment or the Due Process Clause of the Fifth Amendment. It is argued that our disposition of the First Amendment claims in Hanson disposes of appellees' constitutional claims in this case adversely to their contentions. We disagree. As appears from its history, that case decided only that § 2, Eleventh, in authorizing collective agreements conditioning employees'
The record in this case is adequate squarely to present the constitutional questions reserved in Hanson. These are questions of the utmost gravity. However, the restraints against unnecessary constitutional decisions counsel against their determination unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh, also meant that the labor organization receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes. Federal statutes are to be so construed as to avoid serious doubt of their constitutionality. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell
THE RAIL UNIONS AND UNION SECURITY.
The history of union security in the railway industry is marked first, by a strong and long-standing tradition of voluntary unionism on the part of the standard rail unions;
When the question of union security in the rail industry was first given detailed consideration by Congress in 1934
The unions succeeded in having the House incorporate such a limitation in the bill it passed. See H. R. Rep. No. 1944, 73d Cong., 2d Sess. 2, 6; 78 Cong. Rec. 11710-11720. But the Senate did not acquiesce. Eastman, a firm believer in complete freedom of employees in their choice of representatives, strongly opposed the limitation. He characterized it as "vicious, because it strikes at the principle of freedom of choice which the bill is designed to protect. The prohibited practices acquire no virtue by being confined to so-called `standard union.' . . . Within recent years, the practice of tying up men's jobs with labor-union membership has crept into the railroad industry which theretofore was singularly clean in this respect. The practice has been largely in connection with company unions but not entirely. If genuine freedom of choice is to be the basis of labor relations under the Railway Labor Act, as it should be, then the yellow-dog contract, and its corollary, the closed shop, and the so-called `percentage contract' have no place in the picture." Hearings on S. 3266, Senate Committee on Interstate
During World War II, the nonoperating unions made an unsuccessful attempt to obtain union security, incidental to an effort to secure a wage increase. Following the failure of negotiations and mediation, a Presidential Emergency Board was appointed. Two principal reasons were advanced by the unions. They urged that in view of their pledge not to strike for the duration and their responsibilities to assure uninterrupted operation of the railroads, they were justified in seeking to maintain their positions by union security arrangements. They also maintained that since they secured benefits through collective bargaining for all employees they represented, it was fair that the costs of their operations be
The question of union security was reopened in 1950.
"All through the  act is the theory that the agreement is the vital thing in life." Statement of Donald R. Richberg, Hearings on H. R. 7180, House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., pp. 15-16. The Act created affirmative legal duties on the part of the carriers and their employees "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise . . . ." § 2, First. See Texas & N. O. R. Co. v. Brotherhood of
A primary purpose of the major revisions made in 1934 was to strengthen the position of the labor organizations vis-a-vis the carriers, to the end of furthering the success of the basic congressional policy of self-adjustment of the industry's labor problems between carrier organizations and effective labor organizations. The unions claimed that the carriers interfered with the employees' freedom of choice of representatives by creating company unions, and otherwise attempting to undermine the employees' participation in the process of collective bargaining. Congress amended § 2, Third to reinforce the prohibitions against interference with the choice of representatives, and to permit the employees to select nonemployee representatives. A new § 2, Fourth was added guaranteeing employees the right to organize and bargain collectively, and Congress made it the enforceable duty of the carriers "to treat with" the representatives of the employees, § 2, Ninth. See Virginian R. Co. v. System Federation, 300 U.S. 515. It was made explicit that the representative selected by a majority of any class or craft of employees should be the exclusive bargaining representative of all the employees of that craft or class. "The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining." Steele v. Louisville
In sum, in prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in the negotiation and administration of collective agreements, and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations in the industry. "It is fair to say that every stage in the evolution of this railroad labor code was progressively infused with the purpose of securing self-adjustment between the effectively organized railroads and the equally effective railroad unions and, to that end, of establishing facilities for such self-adjustment by the railroad community of its own industrial controversies. . . . The assumption as well as the aim of that Act [of 1934] is a process of permanent conference and negotiation between the carriers on the one hand and the employees through their unions on the other." Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 752-753 (dissenting opinion).
Performance of these functions entails the expenditure of considerable funds. Moreover, this Court has
George M. Harrison, spokesman for the Railway Labor Executives' Association, stated the unions' case in this fashion:
This argument was decisive with Congress. The House Committee Report traced the history of previous legislation in the industry and pointed out the duty of the union acting as exclusive bargaining representative to represent equally all members of the class. "Under the act, the collective-bargaining representative is required to represent the entire membership of the craft or class, including non-union members, fairly, equitably, and in good faith. Benefits resulting from collective bargaining may not be withheld from employees because they are not members of the union." H. R. Rep. No. 2811, 81st Cong., 2d Sess., p. 4. Observing that about 75% or 80% of all railroad employees were believed to belong to a union, the report continued: "Nonunion members, nevertheless, share in the benefits derived from collective agreements negotiated by the railway labor unions but bear no share of the cost of obtaining such benefits." Ibid.
THE SAFEGUARDING OF RIGHTS OF DISSENT.
To the contrary, Congress incorporated safeguards in the statute to protect dissenters' interests. Congress became concerned during the hearings and debates that the union shop might be used to abridge freedom of speech and beliefs. The original proposal for authorization of the union shop was qualified in only one respect. It provided "That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member. . . ." This was primarily designed to prevent discharge of employees for nonmembership where the union did not admit the employee to membership on racial grounds. See House Hearings, p. 68; Senate Hearings, pp. 22-25. But it was strenuously protested that the proposal provided no protection for an employee who disagreed with union policies or leadership. It was argued, for example, that "the right of free speech is at stake. . . . A man could feel that he was no longer able freely to express himself because he could be dismissed on account of criticism of the union . . . ." House Hearings, p. 115; see also Senate Hearings, pp. 167-169, 320. Objections of this kind led the rail unions to propose an addition to the proviso to § 2, Eleventh to prevent loss of job for lack of union membership "with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, fees, and assessments uniformly required as a condition of acquiring or retaining membership." House Hearings, p. 247. Mr. Harrison presented this text and stated, "It is submitted that this bill with the amendment as suggested in this statement
A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It is true that opponents of the union shop urged that Congress should not allow it without explicitly regulating the amount of dues which might be exacted or prescribing the uses for
We respect this congressional purpose when we construe § 2, Eleventh as not vesting the unions with unlimited power to spend exacted money. We are not called upon to delineate the precise limits of that power in this case. We have before us only the question whether the power is restricted to the extent of denying the unions the right, over the employee's objection, to use his money to support political causes which he opposes. Its use to support candidates for public office, and advance political programs, is not a use which helps defray the expenses of the negotiation or administration of collective agreements, or the expenses entailed in the adjustment of grievances and disputes. In other words, it is a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements was justified. On the other hand, it is equally clear that it is a use to support activities within the area of dissenters' interests which Congress enacted the proviso to protect. We give § 2, Eleventh the construction which achieves both congressional purposes when we hold, as we do, that § 2, Eleventh is to be construed to deny the unions, over an
We express no view as to other union expenditures objected to by an employee and not made to meet the costs of negotiation and administration of collective agreements, or the adjustment and settlement of grievances and disputes. We do not understand, in view of the findings of the Georgia courts and the question decided by the Georgia Supreme Court, that there is before us the matter of expenditures for activities in the area between the costs which led directly to the complaint as to "free riders," and the expenditures to support
THE APPROPRIATE REMEDY.
Under our view of the statute, however, the decision of the court below was erroneous and cannot stand. The appellees who have participated in this action have in the course of it made known to their respective unions their objection to the use of their money for the support of political causes. In that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes. However, the union-shop agreement itself is not unlawful. Railway Employes' Dept. v. Hanson, supra. The appellees therefore remain obliged, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. Their right of action stems not from constitutional limitations on Congress' power to authorize the union shop, but from § 2, Eleventh itself. In other words, appellees' grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcement of the union-shop agreement by the mere collection of funds. If their money were used for purposes contemplated by § 2, Eleventh, the appellees would have no grievance at all. We think that an injunction restraining enforcement of the union-shop agreement is therefore plainly not a remedy appropriate to the violation of the Act's restriction on expenditures. Restraining the collection of all funds from the appellees sweeps too broadly, since their objection is only to the uses to which some of their money is put. Moreover, restraining collection of the funds as the Georgia courts have done might well interfere with the appellant unions' performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. Even though the lower court decree is subject to modification
Since the case must therefore be remanded to the court below for consideration of a proper remedy, we think that it is appropriate to suggest the limits within which remedial discretion may be exercised consistently with the Railway Labor Act and other relevant public policies. As indicated, an injunction against enforcement of the union shop itself through the collection of funds is unwarranted. We also think that a blanket injunction against all expenditures of funds for the disputed purposes, even one conditioned on cessation of improper expenditures, would not be a proper exercise of equitable discretion. Nor would it be proper to issue an interim or temporary blanket injunction of this character pending a final adjudication. The Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U.S. 515; Graham v. Brotherhood of Locomotive
One remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the
The judgment is reversed and the case is remanded to the court below for proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE DOUGLAS, concurring.
Some forced associations are inevitable in an industrial society. One who of necessity rides busses and street cars does not have the freedom that John Muir and Walt Whitman extolled. The very existence of a factory brings into being human colonies. Public housing in some areas may of necessity take the form of apartment buildings which to some may be as repulsive as ant hills. Yet people in teeming communities often have no other choice.
Collective bargaining is a remedy for some of the problems created by modern factory conditions. The beneficiaries are all the members of the laboring force. We therefore concluded in Railway Employes' Dept. v. Hanson, 351 U.S. 225, that it was permissible for the legislature to require all who gain from collective bargaining to contribute to its cost.
Once an association with others is compelled by the facts of life, special safeguards are necessary lest the spirit of the First, Fourth, and Fifth Amendments be lost and we all succumb to regimentation. I expressed this concern in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467 (dissenting opinion), where a "captive audience" was forced to listen to special radio broadcasts. If an association is compelled, the individual should not be forced to surrender any matters of conscience, belief, or expression. He should be allowed to enter the group with his own flag flying, whether it be religious, political, or philosophical; nothing that the group does should deprive him of the privilege of preserving and expressing his agreement, disagreement, or dissent, whether it coincides with the view of the group, or conflicts with it in minor or major ways; and he should not be required to finance the promotion of causes with which he disagrees.
In a debate on the Universal Declaration of Human Rights, later adopted by the General Assembly of the United Nations on December 10, 1948, Mr. Malik of
This means that membership in a group cannot be conditioned on the individual's acceptance of the group's philosophy.
The collection of dues for paying the costs of collective bargaining of which each member is a beneficiary is one thing. If, however, dues are used, or assessments are made, to promote or oppose birth control, to repeal or increase the taxes on cosmetics, to promote or oppose the admission of Red China into the United Nations, and the like, then the group compels an individual to support with his money causes beyond what gave rise to the need for group action.
MR. JUSTICE WHITTAKER, concurring in part and dissenting in part.
Understanding the Court's opinion to hold—put in my own words—that, in enacting § 2, Eleventh of the Railway Labor Act, Congress intended to, and impliedly did, limit the use that railway labor unions may make of dues, fees and assessments, collected from those of its members who were or are required to become or remain its members by force of union shop contracts negotiated as permitted by that section, only to defray the costs of negotiating and administering collective bargaining agreements —including the adjustment and settlement of disputes—and that the Hanson case, rightly construed, upholds no more than that, I join Points I, II and III of the Court's opinion.
But I dissent from Point IV of the Court's opinion. In respect to that point, it seems appropriate to make the following observations. When many members pay the same amount of monthly dues into the treasury of the union which dispenses the fund for what are, under the Court's opinion, both permitted and proscribed activities, how can it be told whose dues paid for what? Let us suppose a union with two members, each paying monthly dues of three dollars, and that one does but the other does not object to his dues being expended for "proscribed
The Court suggests that a proper decree might require "restitution" to the objector of that part of his dues that is equal to the ratio of dues spent for "proscribed activity" to total dues collected by the union. But even if the Court could draw a clear line between what is and what is not "proscribed activity," the accounting and proof problems involved would make the remedy most onerous and impractical. But when there is added to this a full recognition of the practical impossibility of judicially drawing the clear line mentioned and also of the fact that the local unions which collect the dues promptly pay a part of them to the national union which, in turn, also engages in "proscribed activity," it becomes plain that the suggested restitution remedy is impossible of practical performance.
It would seem to follow that the only practical remedy possible is the one formulated by the Georgia courts, and I would approve it.
MR. JUSTICE BLACK, dissenting.
This action was brought in a Georgia state court by six railroad employees
On remand, testimony, admissions and stipulations showed without dispute that union funds collected from dues, fees and assessments were regularly used to support and oppose various political and economic programs, candidates, parties and ideological causes, and that the complaining employees were opposed to many of the positions the unions took in these matters. The trial court made lengthy findings, one crucial here being:
The trial court then found and declared § 2, Eleventh "unconstitutional to the extent that it permits, or is applied to permit, the exaction of funds from plaintiffs and the class they represent for the complained of purposes and activities set forth above." Compulsory membership under these circumstances was held to abridge First Amendment freedoms of association, thought, speech, press and political expression.
The Supreme Court of Georgia affirmed, holding that "[o]ne who is compelled to contribute the fruits of his
Section 2, Eleventh of the Railway Labor Act authorizes unions and railroads to make union-shop agreements notwithstanding any other provision of state or federal law. Such a contract simply means that no person can keep a job with the contracting railroad unless he becomes a member of and pays dues to the contracting union. Neither § 2, Eleventh nor any other part of the Act contains any implication or even a hint that Congress wanted to limit the purposes for which a contracting union's dues should or could be spent. All the parties to this litigation have agreed from its beginning, and still agree, that there is no such limitation in the Act. The Court nevertheless, in order to avoid constitutional questions, interprets the Act itself as barring use of dues for political purposes. In doing this I think the Court is once more "carrying the doctine of avoiding constitutional questions to a wholly unjustifiable extreme."
The end result of what the Court is doing is to distort this statute so as to deprive unions of rights I think Congress tried to give them and at the same time, in the companion case of Lathrop v. Donohue, decided today, post, p. 820, leave itself free later to hold that integrated bar associations can constitutionally exercise the powers now denied to labor unions for fear of unconstitutionality. The constitutional question raised alike in this case and in Lathrop is bound to come back here soon with a record so meticulously perfect that the Court cannot escape deciding it. Should the Court then hold that lawyers and workers can constitutionally be compelled to pay for the support of views they are against, the result would be that the labor unions would have lost their case this
It is contended by the unions that precisely the same First Amendment question presented here was considered and decided in Railway Employes' Dept. v. Hanson, 351 U.S. 225. I agree that it clearly was not. Section 2, Eleventh was challenged there before it became effective and the main grounds of attack, as our opinion noted, were that the union-shop agreement would deprive employees of their freedom of association under the First Amendment and of their property rights under the Fifth. There were not in the Hanson case, as there are here, allegations, proof and findings that union funds regularly were being used to support political parties, candidates and economic and ideological causes to which the complaining employees were hostile. Our opinion in Hanson carefully pointed to the fact that only general "[w]ideranged problems" were tendered under the First Amendment and that imposition of "assessments . . . not germane to collective bargaining" would present "a different problem." The Court went on further to emphasize
Thus the Hanson case held only that workers could be required to pay their part of the cost of actual bargaining carried on by a union selected as bargaining agent under authority of Congress, just as Congress doubtless could have required workers to pay the cost of such bargaining had it chosen to have the bargaining carried on by the Secretary of Labor or any other appropriately selected bargaining agent. The Hanson case did not hold that railroad workers could be compelled by law to forego their constitutionally protected freedom of association by participating as union "members" against their will. That case cannot, therefore, properly be read to rest on a principle which would permit government—in furtherance of some public interest, be that interest actual or imaginary—to compel membership in Rotary Clubs, fraternal organizations, religious groups, chambers of commerce, bar associations, labor unions, or any other private organizations Government may decide it wants to subsidize, support or control. In a word, the Hanson case did not hold that the existence of union-shop contracts could be used as an excuse to force workers to associate with people they do not want to associate with, or to pay their money to support causes they detest.
The First Amendment provides:
Probably no one would suggest that Congress could, without violating this Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes. Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.
There is, of course, no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it.
There can be no doubt that the federally sanctioned union-shop contract here, as it actually works, takes a part of the earnings of some men and turns it over to others, who spend a substantial part of the funds so received in efforts to thwart the political, economic and ideological hopes of those whose money has been forced from them under authority of law. This injects federal compulsion into the political and ideological processes, a result which I have supposed everyone would agree the First Amendment was particularly intended to prevent. And it makes no difference if, as is urged, political and legislative activities are helpful adjuncts of collective bargaining. Doubtless employers could make the same
The Court holds that § 2, Eleventh denies "unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes." While I do not so construe § 2, Eleventh, I want to make clear that I believe the First Amendment bars use of dues extorted from an employee by law for the promotion of causes, doctrines and laws that unions generally favor to
I would therefore hold that § 2, Eleventh of the Railway Labor Act, in authorizing application of the unionshop contract to the named protesting employees who are appellees here, violates the freedom of speech guarantee of the First Amendment.
The Georgia court enjoined the unions and the railroads from certain future activities under the contract and also required repayment of dues paid by three employees who had protested use of union funds to support
I am not so sure as the Court that the injunction bars "the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves." So construed the injunction would take away the First Amendment right of employees to contribute their money voluntarily to a collective fund to be used to support and oppose candidates and causes even though individual contributors might disagree with particular choices of the group. So far as it may be ambiguous in this respect, I think the injunction should be modified to make sure that it does not interfere with the valuable rights of citizens to make their individual voices heard through voluntary collective action.
For much the same basic reasons I think the injunction is too broad in that it runs not only in favor of the six protesting employees but also in favor of the "class they represent." No one of that "class" is shown to have protested at all. The State Supreme Court nevertheless rejected the unions' contention that the so-called class was so indefinite, and its members so lacking in common, identifiable interests and mental attitudes, that a decree purporting to bind all of them, the railroads, the individual defendants and the unions, would not comport with the due process requirements of the Fifth and Fourteenth Amendments. For reasons to be stated, I agree with this contention of the unions and consequently would hold that the judgment here cannot stand insofar as it purports finally to adjudicate rights as between the party defendants and railroad employees who were neither named party plaintiffs nor intervenors in the suit.
The trial court defined the "class" as composed of "all non-operating employees of the railroad defendants affected by, and opposed to, the . . . union shop agreements,
The decree, modified to eliminate its class aspect, does not unconditionally forbid the application of the contract to all people under all circumstances, as did the one we struck down in the Hanson case. The decree so modified would simply forbid use of the union-shop contract to bar employment of the six protesting employees so long as the unions do not discontinue the practice of spending union funds to support any causes or doctrines, political, economic or other, over the expressed objection of the six particular employees. Other employees who have not
The decree requires the union to refund dues, fees and assessments paid under protest by three of the complaining employees and exempts the six complaining employees from the payment of any union dues, fees or assessments so long as funds so received are used by the union to promote causes they are against. The state court found that these payments had been and would be made by these employees only because they had been compelled to join the union to save their jobs, despite their objections to paying the union so long as it used its funds for candidates, parties and ideologies contrary to these employees' wishes. The Court does not challenge this finding but nevertheless holds that relieving protesting workers of all payment of dues would somehow interfere with the union's statutory duty to act as a bargaining agent. In the first place, this would interfere with the union's activities only to the extent that it bars compulsion of dues payments from protesting workers to be used in some unknown part for unconstitutional purposes, and I think it perfectly proper to hold that such payments cannot be compelled. Furthermore, I think the remedy suggested by the Court will work a far greater interference with the union's bargaining activities because it will impose much greater trial and accounting burdens on both unions and workers. The Court's remedy is to give the wronged employees a right to a refund limited either to "the proportion of the union's total expenditures made for such political activities" or to the "proportion . . . [of] expenditures for political purposes which he had advised the union he disapproved." It may be that courts and lawyers with
I cannot agree to treat so lightly the value of a man's constitutional right to be wholly free from any sort of governmental compulsion in the expression of opinions. It should not be forgotten that many men have left their native lands, languished in prison, and even lost their lives, rather than give support to ideas they were conscientiously against. The three workers who paid under protest here were forced under authority of a federal statute to pay all current dues or lose their jobs. They should get back all they paid with interest.
Unions composed of a voluntary membership, like all other voluntary groups, should be free in this country to fight in the public forum to advance their own causes, to promote their choice of candidates and parties and to work for the doctrines or the laws they favor. But to the extent that Government steps in to force people to help espouse the particular causes of a group, that group— whether composed of railroad workers or lawyers—loses its status as a voluntary group. The reason our Constitution endowed individuals with freedom to think and speak and advocate was to free people from the blighting effect of either a partial or a complete governmental
I would affirm the judgment of the Georgia Supreme Court, with the modifications I have suggested.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.
Appellant unions were the collective bargaining representatives of the "non-operating" employees of the Southern Railway. Appellees, six individual railway employees, commenced this action in the Superior Court of Bibb County, Georgia, seeking a declaration of invalidity and an injunction to prevent enforcement of a union-shop agreement, made under the authority of § 2, Eleventh of the Railway Labor Act, as amended in 1951, on the ground that the contract was in violation of Georgia law and rights secured by the First, Fifth, Ninth, and Tenth Amendments of the United States Constitution. The suit was brought as a class action on behalf of "all those employees or former employees of the railroad defendants affected by and opposed to the union-shop agreement who are also opposed to the use of the periodic dues, fees and assessments which they have been, are and will be required to pay to support ideological and political doctrines and candidates and legislative programs.. . ." The monthly dues ranged from $2.25 to
The Georgia trial court's decision dismissing the complaint for failure to state a cause of action was reversed by the Supreme Court of Georgia. 213 Ga. 279, 99 S.E.2d 101. Upon remand, the parties stipulated the above allegations, and the plaintiffs offered proof of the amount of union funds which went to the legislative, political, and educational departments of the unions and the controlling organs of the AFL-CIO. The trial court made, inter alia, the following findings: the unions' funds had been expended in "substantial amounts" to promote political doctrines and legislative programs which the plaintiffs opposed; these funds had been used in "substantial amounts to impose upon plaintiffs . . . conformity to those doctrines"; such use of funds was "not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents." The need of unions to engage in what are loosely described as political activities as means of promoting—if not to achieving—the purposes of their existence, the extent to which this practice has become an essential part of the American labor movement and more particularly of railroad labor unions, the relation of these means to the ends of collective bargaining, were matters not canvassed at trial nor judicially noticed. Nor was it claimed that the slightest barrier had been interposed against the fullest exercise by the plaintiffs of their freedom of speech in any form or in any forum. Since these matters were not canvassed, no findings upon them were made.
I completely defer to the guiding principle that this Court will abstain from entertaining a serious constitutional question when a statute may fairly be construed so as to avoid the issue, but am unable to accept the restrictive interpretation that the Court gives to § 2, Eleventh of the Railway Labor Act. After quoting the relevant canon for constitutional adjudication from United States v. Jin Fuey Moy, 241 U.S. 394, 401,
The Court-devised precept against avoidable conflict with Congress through unnecessary constitutional adjudication
And so the question before us is whether § 2, Eleventh of the Railway Labor Act can untorturingly be read to bar activities of railway unions, which have bargained in accordance with federal law for a union shop, whereby they are forbidden to spend union dues for purposes that have uniformly and extensively been so long pursued as to have become commonplace, settled, conventional trade-union practices. No consideration relevant to construction sustains such a restrictive reading.
The statutory provision cannot be meaningfully construed except against the background and presupposition of what is loosely called political activity of American trade unions in general and railroad unions in particular— activity indissolubly relating to the immediate economic and social concerns that are the raison d'etre of unions. It would be pedantic heavily to document this familiar truth of industrial history and commonplace of trade-union life. To write the history of the Brotherhoods, the United Mine Workers, the Steel Workers, the Amalgamated Clothing Workers, the International Ladies Garment Workers, the United Auto Workers, and leave out their so-called political activities and expenditures for them, would be sheer mutilation. Suffice it to recall a few illustrative manifestations. The AFL, surely the conservative labor group, sponsored as early as 1893 an extensive program of political demands calling for compulsory education, an eight-hour day, employer tort liability, and other social reforms.
Viewed in this light, there is a total absence in the text, the context, the history and the purpose of the legislation under review of any indication that Congress, in authorizing union-shop agreements, attributed to unions and restricted them to an artificial, non-prevalent scope of activities in the expenditure of their funds. An inference that Congress legislated regarding expenditure control in contradiction to prevailing practices ought to be better founded than on complete silence. The aim of the 1951 legislation, clearly stated in the congressional reports, was to eliminate "free riders" in the industry
There were specific safeguards protective of minority rights. These safeguards were directed solely toward the protection of those who might otherwise find themselves barred from union membership—viz., Negroes and those who had been long-time opponents of the unions. The only reference to free speech in the record of the enactment was made by the President of the Norfolk & Western Railroad Company during the hearings before the House Subcommittee. His remarks were related to restrictive provisions in some union constitutions which suppressed the right of a dissatisfied member to voice his criticism upon pain of expulsion.
None of the parties in interest at any time suggested the possibility that the statute be construed in the manner now suggested. Neither the United States, the individual dissident members, the railroad unions, the railroads, the AFL-CIO, the Railway Labor Executives' Association, nor any other amicus curiae suggested that the statute could be emasculated in the manner now proposed. Of course we are not confined by the absence of such a claim, but it is significant that a construction now found to be reasonable never occurred to the litigants in the two arguments here.
I cannot attribute to Congress that sub silentio it meant to bar railway unions under a union-shop agreement from expending their funds in their traditional manner. How easy it would have been to give at least a hint that such was its purpose. The claim that these expenditures infringe the appellees' constitutional rights under the First Amendment must therefore be faced.
In Railway Employes' Dept. v. Hanson, 351 U.S. 225, this Court had to pass on the validity of § 2, Eleventh of the Railway Labor Act, which provided that union-shop agreements entered into between a carrier and a duly designated labor organization shall be valid notwithstanding any other "statute or law of the United States, or
The record before the Court in Hanson clearly indicated that dues would be used to further what are normally described as political and legislative ends. And it surely can be said that the Court was not ignorant of a fact that everyone else knew. Union constitutions were in evidence which authorized the use of union funds for political magazines, for support of lobbying groups, and for urging union members to vote for union-approved candidates.
One would suppose that Hanson's reasoning disposed of the present suit. The Georgia Supreme Court, however, in reversing the initial dismissal of the action by the lower court, relied upon the following reservation in our opinion: "if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case." 351 U. S., at 238. The use of union dues to promote relevant and effective means of realizing the purposes for which unions exist does not constitute a utilization of dues "as a cover for forcing ideological conformity" in any fair reading of those words. It will come as startling and fanciful news to the railroad unions and the whole labor movement that in using union funds for promoting and opposing legislative measures of concern to their members they were engaged in under-cover operations. "Cover" implies a disguise, some sham; "forcing . . . conformity" means coercing avowal of a belief not entertained. Plaintiffs here are in no way subjected to such suppression of their true beliefs or sponsorship of views they do not hold. Nor are they forced to join a sham organization which does not participate in collective bargaining functions, but only serves as a conduit of funds for ideological propaganda. A totally different problem than the one before the Court would be presented by provisions of union constitutions which in fact prohibited
Nevertheless, we unanimously held that the plaintiffs in Hanson had not been denied any right protected by the First Amendment. Despite our holding, the gist of the complaint here is that the expenditure of a portion of mandatory funds for political objectives denies free speech—the right to speak or to remain silent—to members who oppose, against the constituted authority of union desires, this use of their union dues. No one's desire or power to speak his mind is checked or curbed. The individual member may express his views in any public or private forum as freely as he could before the union collected his dues. Federal taxes also may diminish the vigor with which a citizen can give partisan support to a political belief, but as yet no one would place such an impediment to making one's views effective within the reach of constitutionally protected "free speech."
This is too fine-spun a claim for constitutional recognition. The framers of the Bill of Rights lived in an era when overhanging threats to conduct deemed "seditious" and letters de cachet were current issues. Their concern was in protecting the right of the individual freely to express himself—especially his political beliefs— in a public forum, untrammeled by fear of punishment or of governmental censure.
But were we to assume, arguendo, that the plaintiffs have alleged a valid constitutional objection if Congress had specifically ordered the result, we must consider
Nothing was further from congressional purpose than to be concerned with restrictions upon the right to speak. Its purpose was to eliminate "free riders" in the bargaining unit. Inroads on free speech were not remotely involved in the legislative process. They were in nobody's mind. Congress legislated to correct what it found to be abuses in the domain of promoting industrial peace. This Court would stray beyond its powers were it to erect a far-fetched claim, derived from some ultimate relation between an obviously valid aim of legislation and an abstract conception of freedom, into a constitutional right.
For us to hold that these defendant unions may not expend their moneys for political and legislative purposes would be completely to ignore the long history of union conduct and its pervasive acceptance in our political life. American labor's initial role in shaping legislation dates back 130 years.
The expenditures revealed by the AFL-CIO Executive Council Reports emphasize that labor's participation in urging legislation and candidacies is a major one. In the last three fiscal years, the Committee on Political Education (COPE) expended a total of $1,681,990.42; the AFL-CIO News cost $756,591.99; the Legislative Department reported total expenses of $741,918.24.
When one runs down the detailed list of national and international problems on which the AFL-CIO speaks, it seems rather naive for a court to conclude—as did the trial court—that the union expenditures were "not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents." The notion that economic and political concerns are separable is pre-Victorian. Presidents of the United States and Committees of Congress invite views of labor on matters not immediately concerned with wages, hours, and conditions of employment.
Congress was not unaware that railroad unions might use these mandatory contributions for furthering their economic interests through political channels. See 96 Cong. Rec. 17049-17050. That such consequences from authorizing compulsory union membership were to be foreseen had been indicated to committees of Congress less than four years earlier when the union-shop provisions of the Taft-Hartley Act were being debated. Hearings, Senate Committee on Labor and Public Welfare on S. 55, 80th Cong., 1st Sess., pp. 726, 1452, 1455-1456, 1687, 2065, 2146, 2150; Hearings, House Committee on Education and Labor on H. R. 8, 80th Cong., 1st Sess., pp. 350, 2260. The failure of the Railway Labor Act amendments to exempt the member who did not choose to have his contributions put to such uses may have reflected difficulties in drafting an exempting clause. See Hearings, Sub-committee of the Senate Committee on Labor and Public Welfare on S. 3295, 81st Cong., 2d Sess., pp. 173-174. But in 1958, the Senate voted down a proposal to enable an
Congress is, of course, free to enact legislation along lines adopted in Great Britain, whereby dissenting members may contract out of any levies to be used for political purposes.
In conclusion, then, we are asked by union members who oppose these expenditures to protect their right to free speech—although they are as free to speak as ever— against governmental action which has permitted a union elected by democratic process to bargain for a union shop and to expend the funds thereby collected for purposes which are controlled by internal union choice. To do so would be to mutilate a scheme designed by Congress for the purpose of equitably sharing the cost of securing the benefits of union exertions; it would greatly embarrass if not frustrate conventional labor activities which have become institutionalized through time. To do so is to give constitutional sanction to doctrinaire views and to grant a miniscule claim constitutional recognition.
In Everson v. Board of Education, 330 U.S. 1, the legislative power of a State to subsidize bus service to parochial schools was sustained, although the Court recognized that because of the subsidy some parents were undoubtedly enabled to send their children to church schools who otherwise would not. It makes little difference whether the conclusion is phrased so that no establishment of religion was found, or whether it be more forthrightly stated that the merely incidental "establishment" was too insignificant. Figures of the Department of Health, Education and Welfare show that the yearly cost of transportation to non-public schools in Massachusetts totals approximately $659,749; in Illinois $1,807,740.
The words of Mr. Justice Cardozo, used in a different context, are applicable here: "[C]ountless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by." Gully v. First National Bank, 299 U.S. 109, 118.
I would reverse and remand the case for dismissal in the Georgia courts.
"Eleventh. Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted—
"(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees 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 (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.
"(b) to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership: Provided, That no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees, and assessments, which shall be revocable in writing after the expiration of one year or upon the termination date of the applicable collective agreement, whichever occurs sooner.
"(c) The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service, that is, an employee engaged in any of the services or capacities covered in the First Division of paragraph (h) of section 153 of this title, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services; and no agreement made pursuant to subparagraph (b) of this paragraph shall provide for deductions from his wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership: Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.
"(d) Any provisions in paragraphs Fourth and Fifth of this section in conflict herewith are to the extent of such conflict amended."
"(5) The funds so exacted from plaintiffs and the class they represent by the labor union defendants have been, and are being, used in substantial amounts by the latter to support the political campaigns of candidates for the offices of President and Vice President of the United States, and for the Senate and House of Representatives of the United States, opposed by plaintiffs and the class they represent, and also to support by direct and indirect financial contributions and expenditures the political campaigns of candidates for State and local public offices, opposed by plaintiffs and the class they represent. The said funds are so used both by each of the labor union defendants separately and by all of the labor union defendants collectively and in concert among themselves and with other organizations not parties to this action through associations, leagues, or committees formed for that purpose.
"(6) Those funds have been and are being used in substantial amounts to propagate political and economic doctrines, concepts and ideologies and to promote legislative programs opposed by plaintiffs and the class they represent. Those funds have also been and are being used in substantial amounts to impose upon plaintiffs and the class they represent, as well as upon the general public, conformity to those doctrines, concepts, ideologies and programs.
"(7) The exaction of moneys from plaintiffs and the class they represent for the purposes and activities described above is not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents or to inform the employees whom said defendants represent of developments of mutual interest.
"(8) The exaction of said money from plaintiffs and the class they represent, in the fashion set forth above by the labor union defendants, is pursuant to the union shop agreements and in accordance with the terms and conditions of those agreements."
"Said exaction and use of money, said union shop agreements and Section 2 (eleventh) of the Railway Labor Act and their enforcement violate the United States Constitution which in the First, Fifth, Ninth and Tenth Amendments thereto guarantees to individuals protection from such unwarranted invasion of their personal and property rights, (including freedom of association, freedom of thought, freedom of speech, freedom of press, freedom to work and their political freedom and rights) under the cloak of federal authority."
The judgment and decree provided that the appellants and the carriers "be and they hereby are perpetually enjoined from enforcing the said union shop agreements . . . and from discharging petitioners, or any member of the class they represent, for refusing to become or remain members of, or pay periodic dues, fees, or assessments to, any of the labor union defendants, provided, however, that said defendants may at any time petition the court to dissolve said injunction upon a showing that they no longer are engaging in the improper and unlawful activities described above." Judgment was also entered in favor of three of the named appellees for the amounts of dues, initiation fees and assessments paid by them.
"The fundamental constitutional question is: Does the contract between the employers of the plaintiffs and the union defendants, which compels these plaintiffs, if they continue to work for the employers, to join the unions of their respective crafts, and pay dues, fees, and assessments to the unions, where a part of the same will be used to support political and economic programs and candidates for public office, which the plaintiffs not only do not approve but oppose, violate their rights of freedom of speech and deprive them of their property without due process of law under the First and Fifth Amendments to the Federal Constitution?" 215 Ga., at 43-44, 108 S. E. 2d, at 807.
In 1898 Congress repealed the Act of 1888 and passed the Erdman Act, 30 Stat. 424, providing that "whenever a controversy concerning wages, hours of labor, or conditions of employment shall arise between a carrier subject to this Act and the employees of such carrier, seriously interrupting or threatening to interrupt the business of said carrier," the Chairman of the Interstate Commerce Commission and the Commissioner of Labor should attempt to resolve the dispute, at the request of either party, by conciliation and mediation. § 2. If these methods failed, aboard of voluntary arbitration could be set up with representatives on it of the carrier and the "labor organization to which the employees directly interested belong . . . ." § 3. Section 10 of the Act also made it criminal for an employer to require an employee to promise not to become or remain a member of a labor organization or to discriminate against an employee for such membership, a provision which was held unconstitutional in Adair v. United States, 208 U.S. 161.
The Erdman Act was superseded in 1913 by the passage of the Newlands Act, 38 Stat. 103. It created a Board of Mediation and Conciliation to which either party to a controversy could refer the dispute and which could proffer its services even without request if an interruption of traffic was imminent and seriously jeopardized the public interest. The Board also was authorized to give opinions as to the meaning or application of agreements reached through mediation. § 2. The arbitration procedures set up by the Erdman Act were further elaborated. §§ 3-8.
In 1916 Congress imposed the 8-hour day on the railroads, 39 Stat. 721. During the period of federal operation of the railroads in World War I and afterwards the Federal Government executed agreements with many of the national labor organizations as representatives of the railroad employees. Boards of adjustment were also set up to handle disputes concerning the interpretation and application of agreements. See Hearings on S. 3295, Subcommittee of Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 216, 305. By the Transportation Act of 1920, 41 Stat. 456, Congress terminated federal control and established an extensive new regulatory scheme. See n. 12, infra. See generally Hearings on S. 3463, Subcommittee of the Senate Committee on Labor and Public Welfare, 81st Cong., 2d Sess., pp. 124-131.
Mr. Harrison expressly disclaimed that the union shop was sought in order to strengthen the bargaining power of the unions. He said:
"I do not think it would affect the power of bargaining one way or the other . . . . If I get a majority of the employees to vote for my union as the bargaining agent, I have got as much economic power at that stage of development as I will ever have. The man that is going to scab—he will scab whether he is in or out of the union, and it does not make any difference." House Hearings, supra, pp. 20-21.
Nor was any claim seriously advanced that the union shop was necessary to hold or increase union membership. The prohibition against union security in the 1934 Act had not interfered with the growth of union membership or caused the unions to lose their positions as exclusive bargaining agents. See A. F. of L. v. American Sash Co., 335 U.S. 538, 548-549, n. 4 (concurring opinion); see also Transcript of Proceedings, Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, Carriers' Exhibits W-23, W-28, pp. 38-51.
"Dues and other payments to an organization, such as a labor union or a trade association, which otherwise meet the requirements of the regulations under section 162, are deductible in full unless a substantial part of the organization's activities consists of [expenditures for lobbying purposes, for the promotion or defeat of legislation, for political campaign purposes (including the support of or opposition to any candidate for public office), or for carrying on propaganda (including advertising) related to any of the foregoing purposes]. . . . If a substantial part of the activities of the organization consists of one or more of those specified, deduction will be allowed only for such portion of such dues and other payments as the taxpayer can clearly establish is attributable to activities other than those so specified. The determination as to whether such specified activities constitute a substantial part of an organization's activities shall be based on all the facts and circumstances. In no event shall special assessments or similar payments (including an increase in dues) made to any organization for any of such specified purposes be deductible." 26 CFR § 1.162-15 (c) (2); see also Rev. Proc. 61-10, 1961-16 Int. Rev. Bull. 49, April 17, 1961. Cf. Cammarano v. United States, 358 U.S. 498.
Some restrained members from certain kinds of speech or activity. Certainly government could not impose these restraints.
Some required the use of portions of union funds for purposes other than collective bargaining. Plainly those conditions could not be imposed by the state or federal government or enforced by the judicial branch of government. See Shelley v. Kraemer, 334 U.S. 1; Barrows v. Jackson, 346 U.S. 249.
Jefferson in his 1779 Bill for Religious Liberty wrote "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." See 12 Hening's Va. Stat. 85; Brant, Madison, The Nationalist (1948), p. 354.
Again, in 1958, when Senator Potter introduced his amendment to limit the use of compelled dues to collective bargaining and related purposes, he pointed out on the floor of the Senate that "the fact is that under current practices in some of our labor organizations, dissenters are being denied the freedom not to support financially political or ideological or other activities which they may oppose." 104 Cong. Rec. 11214. It could hardly be contended that the debate on his proposal, which was defeated, indicated any generally held belief that such use of compelled dues was already proscribed under § 2, Eleventh or any other existing statute. See 104 Cong. Rec. 11214-11224, 11330-11347.
"Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted—
"(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees 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 (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership." 64 Stat. 1238, 45 U. S. C. § 152, Eleventh.
For an analysis of the 1951 Amendment leading to a narrow scope of its constitutional implications, see Wellington, The Constitution, the Labor Union, and "Governmental Action," 70 Yale L. J. 345, 352-360, 363-371.
A recent leader of the London Times which reviewed the annual report of the British Trade Unions Council noted that the document concerned itself with "Few . . . political subjects . . . which have not their industrial sides." The London Times, Aug. 23, 1960, p. 9, col. 2.