Evening star., 1949-03-09
Upho|ding Of Rights
OF States 10 Legislate
On Labor Is Seen
High Courts Decision
On Closed Shops Cited
As Affirming Principle
Bv David Laurence

~ cumming
By David Laurence
The Supreme Court Of the
United States, for the third time
since the beginning of the year.
has afirmed the principle that the
States have not lost their power to
ban or regulate closed shops or
union shops or maintenance of
membership arrangements or any
other forms of compulsory union
ization.
1t is clear from a reading of
three separate decisions that the
Supreme Court does not accept
the argument that Congress is
supreme and final in the regula-
ton of employer -employe rela-
tionships. There are some aspects
in which the States can legislate
and some in which it may develop
that neither the States nor Con-
gress can take away certain con-
stitutional rights that may become
the subject of labor disputes.
While there have been some dis
senting and some concurring opin-
ions on special phases of the three
cases which have revealed differ
ences of approach inside the
court, it Is evident a majority
feels that when a State inserts
either in it's constitution or in its
State laws a provision declaring
that membership or nonmember-
ship in a labor union cannot be
made a condition of employment.
this is within the police power Of
q State to regulate. .fE
Precedence Still Stands. Ii
It is plainly intimated, however.
that Congress may legislate also
and that where parallel power is
exercised. the Federal authority
takes precedence. But this is a
far different thing from assuming
that a State which bars a closed
shop must give way to any Federal
law on that subject.
Thus the Wagner Act permitted
employers and unions voluntarily
to make closed-shop contracts.
The Supreme Court holds that
this merely meant that employers
were not forbidden by Federal
law to make closed-shop con-
tracts. The court now has ruled
this week that it certainly didn't
mean that such a permissive step
indicated a desire by Congress to
legalize closed shops where States
forbade them altogether or made
certain regulations concerning
their use in labor-management
contracts.
Justice Frankfurter. in speaking
for the Supreme Court in the de-
cision rendered this week. goes to
great lengths to point out that
the trainers and supporters of the
Wagner Act in 1885 did not intend
In any way to legalize the closed
shop or to interfere with States
which had declared a closed shop
illegal.
Connery Quoted.
The justice quoted pertinently
the, almost forgotten legislative
history of the Wagner Act, when
both Senator Wagner and Chair
man Connery of the House Labor
Committee assured their COL
leagues that the law would not
sanction legally any, closed shop
where 1t had been declared un-
lawful. Mr.. Connery is quoted as
having said:
The closed-shop proposition in
this bill does not refer to any
State which has any law forbid
ding the closed shop. 1t does
not interfere with that in any
way"
Propaganda since the passage
of the Taft Hartley Act emanating
from union sources has sought
to give the impression that the
1947 law for the first time per-
mitted States to handle the
closed shop problem independ-
emily of the Federal statutes. Ac-
tually, as Justice Frankfurter in
his lucid and splendidly argued
opinion shows, the States retain
their independent powers to leg
islate on the closed shop under
both the original Wagner Act and
the Taft-Hartley law.
This does not mean that Con-
gress could not attempt to super
sede State laws and constitutional
provisions by legislating that
closed shop contracts are legal
lied no matter what the States
may claim. But such Federal
law would be subject to challenge
in the courts, and it is probable
that the opinions handed down
by the Supreme Court this year
would be invoked to declare such
q law invalid. especially If it were
written in such a way as to de-
prive citizens of their right to
work.
Novel Questions Posed.
A Federal law could legalize a
form of contract whereby en-
ployes themselves voted for a
closed shop after all employees
had been given an opportunity to
join or to assist in paying the
expenses of collective bargaining
negotiations, from which all the
employees benefited. But here
again the requirement that an
employe must be discharged if
a union insists upon it would be
subject to scrutiny and might be
held unconstitutional. The only
kind of closed-shop arrangement
which it appears now could be
sanctioned by valid Federal law
is the type which bars some other
union from interfering with an
established collective bargaining
right.