Evening star., 1948-11-14
Supreme Court Weighing
Closed Shop Bon Validity
Judges Hear Arguments on Issue
Lons Debated in the States
Bv Gerard D. Reilly

In view of the fact that the closed shop has
been bone of contention in Congress. in State
Legislatures in the courts and in popular
referenda for the past Is years. 1t Is somewhat
surprising that until the past week the United
States Supreme Court has never considered
case which squarely presented the question OF
whether or not laws forbidding compulsory
union membership contracts conflict with the
Constitution.
After declining to pass on the merits Of this
question three years ago upon the ground that
the problem had not been considered by the
highest tribunal in the States which had
closed-shop prohibition (Florda and Alabama,
the court listened to arguments for six hours
in three cases in which the highest courts Of
Arizona, Nebraska and North Carolina had
upheld the validity of statutes forbidding denial
of employment because Of membership or non
membership in union.
During the past five years an increasing
number Of States have passed such laws In
addition to Florida and Alabama and the three
States whose statutes have been drawn into
issue in the current cases. this group includes
Arkansas Georgia, Iowa, Nevada, North Da.
kota, South Dakota, Tennessee, Texas and
Virginia. Proposals for similar laws were voted
down this month in Massachusetts, and New
Mexico, but in Arizona, where an earlier en-.
actment was submitted to the people in q
referendum majority voted to implement the
prohibition by penal legislation.
When the Taft-Hartley Act was under con-
sideration last year, most of the lawyers in
Congress took 1t for granted that any legis-
lation restricting or abolishing the closed shop
was constitutional. This view was largely
based upon Supreme Court decision uphold
Ing legislation directed against the yellow dog
nX -f
variety require the workers to agree not to
join unions, and since the closed shop is an
agreement requiring all employees to join, the
parallel between the two types Of contract Is
obvious.
When this litigation began, AFL lawyers,
who have taken the lead in attacking the
constitutionaity Of anticlosed shop legislation,
were inclined to believe that their best chance
of succeeding was to argue that this was not
a matter within the province of the States,
since Congress by recognizing the closed shop
in the Wagner Act had pre-empted the field
at least as far as industries producing goods
for commerce were concerned. This was an
extremely debatable view Of the Wagner Acts
provisions on the subject.
The Senate committee which reported the
Wagner bill in 1885 diSclaimed any intent to
extend the area of the closed shop. The com.
mittee stated that the original draft of the
Wagner Act placed two restrictions upon 1t, viz,
that an employer could enter into one only
with a union which (a) represented ajority
Of his employees and (b) was unassisted and
undominated
More significantly, the report said that even
then the Act recognized the validity of such
agreements only in States in which they were
already lawful. Any doubts on this score, how
ever. were set to rest by q section adopted when
the Taft Hartley bill was in conference, which
provided that the limited recognition given to
compulsory membership agreements by the new
Federal act would not apply in States which
had more restrictive laws This made it neces.
sary for the AFL to develop a new theory.
Herbert S. Thatcher and Albert Vol, two
able young lawyers who succeeded the late
Joseph Padway as AFL general counsel, never.
theless were able to put together fairly plaus.
ible brief. incorporated with 1t was an eco.
nomic brief prepared by Boris shiskin, AFL
economist.
Their arguments were based on two consti.
tutional provisions: The guarantee OF freedom
Of assembly in the first amendment and the
due process clause in the fourteenth. Accord
ing to their contentious:
l. BY their outright ban on union-security
agreements, the laws deny the right to form
and maintain unions which is a fundamental
right encompassed within the right of assembly
In the first amendment.
O. Even If the laws are regarded as affecting
less fundamental rights, such as property and
contract rights protected by the fourteenth
amendment and the contract clause article
I, Sec. l0), they are invalid because they are
arbitrary, excessive and discriminatory.
The volley of questions propounded from the
bench indicated both to the State attorneys
general who appeared and the union lawyers
that many Of the justices regarded some Of the
questions as novel and that 1t might be some
time before the court hands down q decision.
In the meantime the mild restrictions on the
closed shop and the Taft-Hartley Act will bs
under heavy fire from Congress.
While some commentators have asserted that
an adverse decision by the court on the State
laws would have considerable bearing upon
the constitutionality Of the present Federal
laws, this is extremely unlikely because Of the
way the issues were framed by the briefs. The
AFL lawyers did not attack congressional legis-
lation but distinguished 1t. They said:
IF it is contended that the amended Ma
tionaf Labor Relations Act restricts the power
Va u1oiIS W uldAc ulllo41-ScCuIlIy COAIIdCLS du0
that the Railway Labor Act outlaws union.
security contracts altogether, one answer Is
that both laws protect the right of self-organi-
cation and grant exclusive representation to the
majority union and thus provide unions with
a near equivalent of -union-security agree.
ments. The State statutes before the court
offer no similar protection to unions, however.
and in none Of these States Is there any
statutory protection for union organization or
common rules Of employment"
Morrill,. who succeeded in bringing about the
rr0vision for tha Nafiooel NS,eo,,,,, apa