Evening star. [volume] (Washington, D.C.) 1854-1972, 1949-01-09
Opposes Repeal Of U.S..
Ban on Closed Shop
Court Ruling Cited to Show Union
Gains Without Monopoly
By Gerard p. Reilly

So~SS oS~S~" ~SA
! bidding closed shop and union shop contracts
came as no surprise to the bar, the thorough
going analysis which the problem received in
the opinion of Mr.. Justice Black and the con-
curing opinion of Mr.. Justice Frankfurter
makes the holding an important landmark in
the field of labor law. 1t may also have far
reaching effect in shaping congressional attl-
tudes on the revision of the Taft-Hartley Act.
The unanimity of these two justices, who
are frequently at odds on constitutional ques-
tons, reveals that the court today, having
thrown away such past obstacles to social
reform as the Lochner and Adkins cases, IN
which the old" court struck down legislation
regulating hours of employment and fixing
minimum wages as repugnant to the due
process clause, is prepared to take consistent
hands-of policy on attempts by the States to
regulate the excuses of labor unions. This
means that the States will continue as i'm
portant laboratories for experiment in the
explosive area Of industrial relations
The test cases presented to the court were
concerned with the North Carolina, Nebraska
and Arizona statutes. Twelve other States.
however, also prohibit any form OF compulsory
union membership contracts. 1t is clear from
the reasoning of the court that the validity OF
all these statutes has been lifted from the
realm of debate
At the recent interstate conference on labor
legislation sponsored by the Labor Department
shortly after the election union delegates an
nounced drive to induce the Legislatures OF
these Is States to repeal such enactments.
The success of this campaign is dubious, how
ever, as most of these States are predominantly
agricultural Moreover, the disputed laws in
many instances were adopted pursuant to
If he tat
Legislatures can hardly disregard
The real hope of the unions, therefore, Is in
limiting the application Of these laws to
purely local industries by persuading Congress
to pre-empt the field of legislation In fac
tories, mines and transportation companies,
the operation of which affects interstate COM
merce Under the Taft-Hartley Act the States
are given free hand even in these industries
on the question of placing restraints on COM
pulsory union membership Although the Fed
eral law permits the union shop with certain
restrictions, 1t contains provision authorizing
States and territories TO prohibit the enforce
ment Of agreements which require member
ship in labor organization as q condition Of
employment
OF course, II unions are able to put over the
extreme program Of repeating the Taft-Hartley
law and restoring the Wagner Act in advance
Of substitute legislation, this provision also
will fall. There is a real question however, a.
to whether such action by Congress standing
alone would narrow the breadth of the State
statutes.
The Senate committee which reported the
Wagner Act in 1885 disclaimed any intent to
legalize extend the closed shop In jurs-
dctions in which 1t was illegal. And it would
hot ~ i,,
tent would govern judicial Interpretation Of
any revived Wagner Act should the application
of these State laws again be drawn into ques-
ton.
This would indicate that union officials
would have to secure special legislation which
would give greater legal standing to closed
shop agreements than the Wagner Act did in
order to attain their objective. Members Of
Congress who retain some independence Of
thought on labor matters, however may well
question the fairness or wisdom of any such
proposal in the light Of certain comments Of
the court
The main theme Of both the Black and
Frankfurter opinions was that the considera-
tons urged against the anticlosed-shop laws
were matters which lay within the discretion
of the legislators rather than the judges. But
because the organizations challenging the
statutes had invoked the eoual-protection and
e-process clauses, the court found it neces-
sary to point out the justification for the policy
of the legislation.
Mr.. Justice Black in his opinion remarked:
Because the outlawed contracts are
useful incentive to the growth of union
membership, it is said that these laws
weaken the bargaining power OF unions and
correspondingly strengthen the power of
employers. This may be true, but there are
fnorv ORG to n nf1ciH rod CfotA
also make it impossible for an employer to
make contracts with company unions which
obligate the employer to refuse jobs to union
members. =" This circumstance alone -
is sufficient to support the State laws against
the charge that they deny equal protection
to unions as against employees and nonunion
workers"
He then went on to point out that at one
time many companies required employees to
sign agreements stating that they would not
become labor union members and that such
ant-union practices became so obnoxious that
State and Federal laws were passed to ban
discrimination against union members and to
outlaw yellow-dog contracts. Recting the
Supreme Court cases which had held the legis-
lative attempts to curb such practices uncon-
stltutonal. he emphasized that in recent years
those cases had been overruled, thus releasing
Congress and State Legislatures from judi
cal strait jacket.
Appellants now ask us to return at least
in part, to the duel process philosophy that
has been deliberately discarded. Claiming
that the Federal Constitution itself affords
protection for union members against dis
elimination, they nevertheless assert that
the same Constitution forbds State from
providing the same protection for nonunion
members. Just as we have held that the
due process clause erects no obstacle TO
block legislative protection of union nem-
bers, we now held that legislative protection
can be afforded nouunion workers"
In his concurrence, Mr. Justice Frankfurter
quoted statistics to show that total union
membership in this country is now 80 times