# De Veau v. Braisted/Dissent Douglas

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United States Supreme Court
363 U.S. 144
George DE VEAU, Appellant, v. John M. BRAISTED, Jr., as District Attorney of Richmond County.
Argued: March 1, 1960. --- Decided: June 6, 1960
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
I could more nearly comprehend the thrust of the Court's ruling in this case if it overruled Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, and adopted the dissenting opinion in that case written by my Brother Frankfurter. But to sustain this New York law when we struck down the Florida law in the Hill case is to make constitutional adjudications turn on whimsical circumstances
The New York law makes a person ineligible to solicit funds on behalf of a labor union if he has been convicted of a felony. The Florida law made it unlawful for one to be a business agent for a union if he had been convicted of a felony. 325 U.S., at page 540, 65 S.Ct. at page 1374. In each the question is whether such a state restriction is compatible with the federal guarantee contained in § 7 of the National Labor Relations Act which reads as follows:
'Employees shall have the right to self-organization, to form join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection * * *.' The answer we gave in Hill v. State of Florida, supra, 325 U.S. at page 541, 65 S.Ct. at page 1374, was as follows:
'It is apparent that the Florida statute has been so construed and applied that the union and its selected representative are prohibited from functioning as collective bargaining agents, or in any other capacity, except upon conditions fixed by Florida. The declared purpose of the Wagner Act, as shown in its first section, is to encourage collective bargaining, and to protect the 'full freedom' of workers in the selection of bargaining representatives of their own choice. To this end Congress made it illegal for an employer to interfere with, restrain or coerce employees in selecting their representatives. Congress attached no conditions whatsoever to their freedom of choice in this respect. Their own best judgment, not that of someone else, was to be their guide. 'Full freedom' to choose an agent means freedom to pass upon that agent's qualifications.
'Section 4 of the Florida Act circumscribes the 'full freedom' of choice which Congress said employees should possess. It does this by requiring a 'business agent' to prove to the satisfaction of a Florida Board that he measures up to standards set by the State of Florida as one who, among other things, performs the exact function of a collective bargaining representative. To the extent that Section 4 limits a union's choice of such an 'agent' or bargaining representative, it substitutes Florida's judgment for the workers' judgment.'
Nothing has been done to change, in relevant part, the language of § 7 of the National Labor Relations Act since Hill v. State of Florida, supra. If § 7 foreclosed Florida from prescribing standards for union officials, I fail to see why it does not foreclose New York. Much is made of the fact that Congress, when it approved the Waterfront Commission Compact between New York and New Jersey, 67 Stat. 541, knew of the restrictions contained in § 8 of the New York Waterfront Commission Act now in litigation. But that is an argument that comes to naught when Art. XV, § 1 of the Compact is read:
'This compact is not designed and shall not be construed to limit in any way any rights granted or derived from any other statute or any rule of law for employees to organize in labor organizations, to bargain collectively and to act in any other way individually, collectively, and through labor organizations or other representatives of their own choosing. Without limiting the generality of the foregoing, nothing contained in this compact shall be construed to limit in any way the right of employees to strike.' (Italics added.)
Yet how can employees maintain their right to act through (representatives of their own choosing' if New York can tell them whom they may not choose?
Moreover the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. (1958 ed., Supp. I) § 401, 29 U.S.C.A. § 401, shows unmistakably that Congress has kept unto itself control over the qualifications of officers of labor unions. Section 2(a) of that Act provides in part:
'The Congress finds that, in the public interest, it continues to be the responsibility of the Federal Government to protect employees' rights to organize, choose their own representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection * * *.'
Congress by § 504 of that Act has barred enumerated felons from holding union office 'during or for five years after' the conviction or end of imprisonment. That federal, not state, qualifications for union offices now obtain is made plain by § 604 of that Act. It provides as follows:
'Nothing in this Act shall be construed to impair or diminish the authority of any State to enact and enforce general criminal laws with respect to robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or assault which inflicts grievous bodily injury, or conspiracy to commit any of such crimes.' (Italics added.)
I do not know how Congress could make clear its twofold purpose: first, that federal standards are to determine the qualifications for holding union offices; and second, that enforcement of 'general criminal laws' by the States remains unimpaired.
What Congress did in approving the Waterfront Commission Compact and in adopting the Labor-Management Reporting and Disclosure Act of 1959 respected the integrity of Hill v. State of Florida, supra. We seem now to forsake it and in effect adopt the dissent in Hill v. State of Florida. That I cannot do. For the federal legislative record makes plain to me beyond doubt that Congress has left the qualifications for union offices to be determined by federal not state law. The Supremacy Clause of Article VI of the Constitution calls for a reversal of the judgment of the New York Court of Appeals. Hence I do not reach the other questions presented.

## Notes

* ↑ Section 1 of the Act declared as its purpose encouraging collective bargaining and protecting 'the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.'
* ↑ The Waterfront Commission Compact, which Congress approved, set up qualifications and licensing requirements for certain types of waterfront employment. It also called for the creation of employment information centers, to be administered by the bi-state regulatory agency, the purpose of which was to eliminate extortionate hiring practices and regularize employment by eliminating casual laborers from the registration rolls. It did not purport to regulate or set up qualifications for labor unions or labor representatives.
* ↑ Section 8 of Part III of the Waterfront Commission Act of the State of New York, New York Laws 1953, c. 882, provides as follows:
* ↑ Section 603(a) of the 1959 Act provides in relevant part that 'Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization * * * under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.'
This has reference to the fiduciary responsibilities created by § 501 of the Act and makes clear that these provisions of federal law do not pre-empt state law. As stated in S.Rep. No. 187, 86th Cong., 1st Sess., p. 19, 'Individual union members will therefore have a choice between suing in the State courts under the common law or invoking the provisions of the federal statute.'
There is no like provision which saves § 504 (the section that bars felons from holding union office) from pre-empting state law.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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