Edson Smith: Calling the -- the Court's attention to the ways that the union spends the money that it collects under compulsory union membership contracts from unwilling members and I was saying that I had printed in the appendix at the back of my brief, an excerpt from a senatorial committee report showing that the CIO in Michigan that spent hundreds of thousands of dollars of union dues money to help elect democrats to public office in that State. The investigation, by a number of the universities, showed about 40% of these union members were republicans whose dues money was going to elect candidates they personally upholds. Thomas Jefferson wrote a number of things among them, he said this, "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." In Section 211, it qualifies as just that. Now, certainly, Congress couldn't impose a tax and turn the tax money over to one political party but it can do it by -- composed by imposing by Section 211, compulsory union membership. Congress can't impose a tax over religious purposes. This Court is so held on several occasions but unions can take their money and donate it to religious institutions and do, were recently notice in the newspaper an article that the teamsters had given $9000 to a Catholic high school in Tacoma Washington. If it were a voluntary organization, fine. The Protestants have done better. The CIO, Philip Murray fund, which is made up from donations from CIO unions as well as some individual contributions, recently donated $200,000 to the National Counsel of churches. And other unions have made donations, the largest one recently so made by the Ladies' Garment Workers' of $1 million to build a hospital in Beersheba, Israel. That union, it said the new -- the article in Time which I have quoted in the appendix in the brief also said it donated to various or worthy projects, I would say, $25 million. Now, this money is being taken from people on the theory that there are the free writers unless they give them -- turn their money over to the union for these purposes. Now, I'm not going to have time to talk much about the right to work or a certain contractual rights like seniority that are involved here, but I -- I do want to mention one other thing that the union collects money for in the form of dues and fees and assessments and that its life insurance programs. One of them requires $1.30 per month as union dues which goes to life insurance. And this life insurance program collected out of union dues, it gives these unions a little better disciplinary power than the other ways would have because at any time, they want to exercise discipline over these involuntary members. They can suspend them and thereby, the -- by suspending them they cancel their insurance rights or if a man who has been a union member for many, many years and this buildup a substantial value in his insurance program out of union dues should refuse to go out on strike on some occasion taken, expel him or suspend him and thereby cancel his insurance. So that his membership and his requirement of paying dues involves -- it gives the union considerable disciplinary power over the involuntary member. Now, the right to work, freedom of association, as I've said our -- this Court has held in a number of occasions, are fundamental rights. Some of these fundamental rights which cannot be taken away because of protection by the Constitution cannot be taken away by the Government either state or -- or local may be taken away by private action unless they are protected by state law. We have state laws that protect the individual from private aggression, state homicide laws. A man's life is protected from the Federal Government by the Due Process Clause of the Fifth Amendment from State Government by the Due Process Clause of the Fourteenth Amendment but there's no constitutional protection from a -- other individual private action taking his life. Now, I want to put in extreme illustration here and I'm getting the governmental action now, which is the only subject that Mr. Schoene argued. Suppose, and I'll say it can't happen here, I'm just putting it for a drastic illustration, that Congress had said that any man who would refuse to join the -- the union may make a contract requiring that all people in the craft or class joined the union and if they refused to join, they may be executed by agreement between the union and the railroad. Now, Mr. Schoene would say, "That's all right. That's constitutional. It's perfect. It's private action. It's purely permissive of the statute that Congress didn't make it mandatory. The man's life is not being taken away by governmental action, it's purely private action. So, no constitutional right is violated." But it's -- he would say, "The Congress has preempted the field of regulation of the protection of life by homicide laws in this particular connection. And therefore, state law with regard to homicide is set aside but in setting aside the state law is not governmental action," he says. You could do the same thing as reference to kidnapping laws. Let's say that the Congress authorized, permitted the unions to imprison anyone who refused to join.Would his liberty be deprived to taken away by governmental action? Mr. Schoene would say, no, duly private. The statute is merely permissive. And under his theory, if Congress wanted to, Congress could say that not withstanding State, FEPC laws, Congress may enact the statute providing that railroads for any employer and unions may validly contract that no Negro be employed, not withstanding the state law. It merely preempts the field the Negro's rights are not being impaired. There's no governmental action. It's -- it's purely private action. Or if the Congress wanted to turn the other way and say, we will say that yellow-dog contracts may be made legally either by the union members, written association will be taken away but we're not -- we're not saying that employers and employees must execute such contracts. We're not making it mandatory, it's purely permissive. And therefore, no governmental action were merely preempting the field. Well, the cases decided by this Court are so numerous and so clear on this subject of governmental action that I don't -- I know I don't have time to review them, if in the few moments that I have left I would like say this though with regard to Section 211. It has two aspects. One, I've called the passive permission aspect and that it's a mere repeal of the former prohibitions of the Railway Labor Act, former prohibition of the union shop contracts. In that respect, it's similar to the Wagner Act and the Taft-Hartley Act. Those Acts did not authorize in any affirmative sense, union shop contracts. They merely contained the proviso making it clear that they did not prohibit them. In that sense, they were to pass a permission and in that connection because of the citation by Mr. Schoene of the Colgate case and some others. I will say that those cases did not involve any constitutional question because none was raised. It was merely an absence of prohibition that was involved there, merely a matter of statutory interpretation. But here, in Section 211, for the first time, Congress has reached out and affirmatively authorized the unions to impose union shop contracts on an entire industry, notwithstanding state law to the contrary. That's an entirely new -- new situation and --
Stanley Reed: Do you think there's a difference between this Railway Labor Act and the National Labor Relations Board in this respect?
Edson Smith: Oh, very definitely, the National Labor Relations Act which is, of course, the Wagner Act has amended by the Taft-Hartley Act has merely a proviso there in -- Section 8 (a) (3) which makes it clear that Congress did not intend to prohibit union shop contracts of the sort that are there described in -- except for that proviso, the provision of the statute which makes it illegal for an employer to discriminate against an employee by reason of union or nonunion membership, would prohibit union shop contracts. So, it is necessary to put in the proviso to make it clear that they were not being prohibited. But here, in the Railway Labor Act, for the first time in history, Congress has reached out and said we affirmatively authorized the languages. They shall be permitted, notwithstanding state law to the contrary. And so, in two cases, one of which is now before this Court on petition for certiorari, the Weeks and Jensen cases decided by the federal courts out in California, the other, the Otten case decided by the Second Circuit. Those cases coming up from States where the -- there were no right to work acts where under the common law in the state union closed shop contracts were considered permissible. Those courts held that only the -- what I've called the passive permission aspect of Section 211 who was involved, it was a mere repeal pro tanto of the former prohibition and of --
Stanley Reed: Over the action -- permissive act.
Edson Smith: Yes. The -- it was merely permissive and they did --
Stanley Reed: Both -- both the -- both the National Labor Relations Board and (Inaudible) and the Railway Labor Act are merely permissive.
Edson Smith: Well, not -- of course, the railway they're -- they're merely permissive in little sense of the word.
Stanley Reed: So far as Federal Government is concerned.
Edson Smith: So far -- I'm -- I'm not sure what you -- what you have in mind by using merely permissive. I have -- I have been using permissive and passive permission as distinguished from affirmative authorization. Now, they're -- the --
Stanley Reed: Both of these --
Edson Smith: -- the National Labor Relations Act does not affirmatively authorized union shop contracts. It does permit them in the sense of not prohibiting them but the Railway Labor Act goes farther. It affirmatively authorizes them and says they shall be permitted, not withstanding state law to the contrary. Now, that is a -- is a best distinction in the absence of that affirmative language. In the Railway Labor Act, these plaintiffs, my clients in this case would still have their rights. They wouldn't have to join the union because the Nebraska law protects them from being compelled to join the union. But in order -- and the --
Stanley Reed: And they have the same protection against the National Labor Relations Act, do they not, send Constitution protection that you heard?
Edson Smith: That -- that is another question. Now, if -- it depends on what we're looking at with regard to governmental action here. I am saying that in this case, we can rely solely on the affirmative authorization in the -- in Section 211 itself as providing the governmental action necessary to entitle my clients to invoke the protection of the First and Fifth Amendments. In other words, where Congress says union shop contract shall be permitted and thereby, the statute becomes an essential ingredient -- ingredient in the process of taking away my clients rights, then that is governmental action in and of itself. Now, there is no such provision in the Nation Labor Relations Act and of course a union shop contracts in industry covered by the National Labor Relations Act are not lawful in Nebraska. They're not lawful in any of the 18 States having right to work at. But, the Railway Labor Act, because it went farther and affirmatively authorized these contracts and attempted to sweep away the state law, and thereby, preempted the field if it's a constitutional statute, I say that is governmental action. Now, there's another aspect to this thing which will come before the Court.
Earl Warren: I think -- I think your time has expired unless you're answering Mr. Justice Reed's question.
Edson Smith: Well, I thought --
Earl Warren: (Voice Overlap)
Edson Smith: I thought I was, Your Honor.
Earl Warren: If you are, you can proceed.
Edson Smith: I --
Earl Warren: I beg your pardon. I let you said there was another aspect.
Edson Smith: Well, it's another aspect of my answer to his question, if the Court --
Earl Warren: That's all right. You may answer.
Edson Smith: -- please. I was -- I was going to say on this -- the question that you asked about the -- wouldn't the National Labor Relations Act beyond constitutional in this respect is one which I think the Court may have to reach some time. And I think the Court is going to have to come rather close to reaching it in the Weeks and Jensen cases which have been filed here, in petition for certiorari, because there, instead of relying, as I do, in this case for the most part on the affirmative authorization in Section 211, those cases arising from California where there is no -- where union shop contracts under state law are suppose to be illegal, rely on what is described there as the full -- tenably, you might say, of the statutory powers and privileges which are vested in these unions by the entire Railway Labor Act. For instance, the Railway Labor Act gives the labor unions the right to bargain for all of the members of the craft or class.
Stanley Reed: I think you've answered the question that I've asked, Mr. Smith. Thank you.
Earl Warren: Mr. Schoene, do you have any --
Speaker: (Inaudible)
Lester P. Schoene: I -- I had assumed that you would hear the Assistant Attorney General from Nebraska first but --
Earl Warren: Oh, pardon me. If that's the order, that's all right, order approved, (Voice Overlap) --
Lester P. Schoene: Well, that -- that was the order I had --
Earl Warren: Yes.
Lester P. Schoene: -- assumed.
Earl Warren: Yes. That's all right. Mr. Nelson.
Robert A. Nelson: If the Court please. Nebraska has vital interest in this case. It is a law which was written into our Constitution by direct act of the people and without legislative intervention that is under attack here. Consequently, we asked (Inaudible) to appear here in oral argue -- argue orally and greatly appreciate the opportunity that you have given us. There are 17 other States who have industry, constitutional amendment or legislative enactment, task laws which are similar to the Nebraska law here involved. Several of the -- these States have written separate briefs as amicus curiae and some have joined with us and some have joined in other briefs where Mr. Shepperd, the Attorney General of Texas that's had some joinder in his brief. I believe there are total of 10 States now who appear here by brief and I would like to appeal that in presenting this case, I've presented not only in behalf of the State of Nebraska but all other States who have similar laws and even though States who do not, have not as yet, enacted such laws who may wish to do so at some future time and may not wish to be hampered if that time should come. The constitutionality of our Nebraska law has been upheld by this Court in the case of Lincoln Federal Labor Union versus Northwestern Iron and Metal Company, 335 U.S. 525. We feel that the -- the duty that is imposed upon a State here to protect, to preserve the life and liberty of these people and protect their property is a vital importance to us and is a question that is presented here. The first thing, of course, that must be determined is whether or not there is governmental action involved. Supreme Court in Nebraska held that there was and they -- they said that discharge of an employee pursuant to a union shop agreement that's expressly authorized by Section 211 would unconstitutionally deprive him of his right to work, a freedom of association guaranteed by the First and Fifth Amendments. On arriving, its -- its conclusion, the Supreme Court of Nebraska recognized that Section 211 is not a mere repeal of the provisions of the Railway Labor Act which prohibited all forms of compulsory union is, but that the union shop amendment does far more than that. It affirmatively authorizes the union shop and strikes down all present and prospective conflicting federal and state laws. So, in determining whether or not governmental action is involved, we can't consider the -- the amendment law but we must consider it in relation to the entire Railway Labor Act. It's because of congressional action that the unions have gained the power that they have today and have the economic strengths which make it possible for them to impose the union shop. And because of the power that Congress has given to the labor unions, their actions are no longer private but are governmental actions. Now, that was recognized in the Steele case. Mr. Schoene stated that that is not in authority here because the -- the Steele case involved racial discrimination and that is not involved here. But we have discrimination merely upon a different ground, a discrimination against nonunion members against members who do not wish to join. So, we have a government action. Here, of the highest degree, and it's interesting to note that on this question, the amicus brief written here on behalf of the CIAF -- CIO organization, they take the entirely of the opposite stand, page 5 of their brief where they came up and emphatically say that we agree that there is Government action. They go on to say that indeed to find governmental action in the union shop amendment is not necessary to look to its effect in ousting conflicting state laws. The amendment is part of the general regulatory scheme of the Railway Labor Act and it has never been doubted that that statute is governmental action and that its provisions must therefore meet the requirements of due process. Now, we agree with the brief written by that organization. There -- there can be no pretense here that it isn't the Act of Congress that's being placed into effect. In fact, the answer here of the appellant unions expressly states that the agreements are lawfully entered into, pursuant to the prohibitions of Section 211 of the Railway Labor Act. In effect, of course, the union shop -- the amendment repeals certain federal laws including the Sections Fourth and Fifth of the Railway Labor Act which embodied the freedom to join or not to join labor organization. So, Congress here has foreclosed and prevented the States, their legislator, their executives and administrative officers from acting with reference to our own state laws. Now, this is -- that is certainly a mandatory and affirmative action. It's far more than a mere repeal of the federal law. Congress doesn't have the power to repeal a state law. They do, in certain instances, have authority to supersede those laws. But certainly, when we're talking about the question of whether or not Government action exists, when they -- Congress attempts to supersede state laws, it is affirmative action. So, it seems to me that it's -- it's just fantastic to even suggest that Government action is not in -- involved in this case. Congress has given here the unions the help that they requested in order to have a compulsory union shop throughout the entire railway industry. Also, in doing this, Congress purported to act under the Commerce Clause and regulation under the Commerce Clause is certainly Government action and affirmative action. So, with that issue, as appears to me, just conclusively decided, we -- we then have to test this Act with reference to the Bill of Rights. So, it -- it has been mentioned here but briefly, I just wish to point this out here that it's not a mere matter here of coming in and joining a labor organization for the purpose of collecting bargaining that's involved. But all dues, assessments, except fines and penalties, are required to be paid by the individual regardless of whether he desires to do so or not. He's being forced to join into a fraternal order, an insurance society and a political and economic movement. For example, the applications required uniformly provide that the applicant will adhere to and abide by all of the rules and edicts of the order. One of the provisions, which I think you find universally through this application, is that he would not affiliate with any other conflicting order. In other words, any other labor organization. There have been -- Mr. Smith has mentioned here political movements, religious movements and economic movements. Now, what is the non-member required to do? He is required to join and he is required to support these movements whether he believes in them or not. For example, the -- one of the provisions of the International Association of Machinists, which is in this record, provides that no inferior federal judge, so set aside a law of Congress on the ground that it's unconstitutional, and that if this Court decides and enacted Congress is unconstitutional or by interpretation undertakes to assert a public policy at variance with the statutory declaration of Congress, which alone, under our system, is authorized to determine the public policies of Government. The Congress, thereby re-passing that law nullify the action of the Court. Thereafter, the law is to remain enforced and in fact precisely the same as though the Court had never held it to be unconstitutional.
Hugo L. Black: How does it go -- how that these projects raised in the questions about that?
Robert A. Nelson: I didn't get your question.
Hugo L. Black: How have these projects raised any question in a challenge for that? Why or why because they have a right to -- how does that raised here.
Robert A. Nelson: Well, the -- these are merely illustrations that are in the record showing the requirements of many of the unions. They are merely here to illustrate, and of course, are not all inclusive by any means. But we raised them here to show that these are certainly controversial issues. They are issues in which the individual has different opinion but regardless of what his thoughts may be, he is required to pay his dues to support the organization who's advocating these principles even though there -- he's absolutely opposed to it. That's what's required in a compulsory membership.
Hugo L. Black: Is there any charge yet because they've been using the funds to try to persuade him or somebody else to provide to recall of judgment.
Robert A. Nelson: The -- this is what I just read there, that's found in -- in the record and it's part of the platform of the appellant International Association of Machinists, here. And of course, the -- the fees, the dues that are being collected are being used to promote this --
Hugo L. Black: Have they challenged here, the payment of any particular expenditure of any particular views or any particular purpose that will opposing on them or requiring him to do something they don't want done?
Robert A. Nelson: No. That it's actually --
Hugo L. Black: What (Voice Overlap) --
Robert A. Nelson: -- be done in this case. I -- I don't think so, Mr. Justice Black, because I think this is -- this action was brought before there was an opportunity to even put this contract into operation, at least, to any extent. So, I -- I would doubt if that question would be -- could be shown to actually have it happened in this case.
Hugo L. Black: I presume it's not -- won't be adjudicated in this case, does it? How could it be?
Robert A. Nelson: I -- I think it's here. It's in the record here to show that these are some of the programs and policies that the labor unions, certain of them are advocating and that compulsory membership, therefore, compels a man to come in and join in, in support of those movements. And certainly by so doing, you're taking away his -- his freedom of speech. It is the -- the record discloses. Here, some of the -- the Constitutions prohibit a members or group of members from discussing union policies, union officers or anything outside of the union meetings himself. They're not permitted to do anything except or inside the -- the close meetings. Now, this is a private --
Hugo L. Black: But how the -- the problem that I have of -- of that -- a number of the other discussions. How are they raised here? I assume, it may be possible that there are many things that had been suggested, what challenges could be raised if something was done to a union member or maybe he could raise a challenge to the expenditure of fund. But how do we get to here?
Robert A. Nelson: Well, I think the -- the very fact here that the contract was entered into with the Union Pacific Railroad and these unions and the -- the contract for compulsory unionism then requires that they join into this union representing their particular craft. And then that union, we have here their Constitution which makes these requirement, it would seem to me, would make that an issue here that it -- it would have to be considered --
Felix Frankfurter: (Voice Overlap)
Robert A. Nelson: -- in this case.
Felix Frankfurter: -- make a little conflict in the facts of question. Suppose the union had bylaw or some compelling provision and its scheme of Government requiring every member to salute the flag. Suppose that some of the union and the condition that he believes are the -- the whole witnesses despite the (Inaudible) you then say no, you were asking me to do something which has essential to provision of federal law, you're asking me to do something that the violation to pass these laws, therefore, you're asking, meeting your power for the violation of Constitution of United States. Now, that's a very (Inaudible)
Robert A. Nelson: Yes. But here, at the same time, we have a contract now that has been negotiated which requires the individual, either to lose his job, or become a member of the union. A union, which may be advocating the very thoughts and ideas. And while in this -- in this particular case, we don't have the question that's in the Weeks and Jensen cases but there you have your -- your religious issue.
Felix Frankfurter: Well, that was the -- that was the problem that the Court of Appeals of New York have (Inaudible) where the defendant has -- has a member of the (Inaudible) Brothers at religious (Inaudible) against joining an organization, state upon on which I have not (Inaudible) and that was that problem there, wasn't it?
Robert A. Nelson: Yes.
Felix Frankfurter: And again, that's the rule for this Court to ever pressure -- doesn't involve political sanctions. That's one of the prices you pay. What do you do with that case? I think he should say that we ought not to (Inaudible) is wrong so far as this is wrong.
Robert A. Nelson: Well, our -- our whole --
Felix Frankfurter: -- (Voice Overlap) spend try to distinguish it, but I think (Inaudible)
Robert A. Nelson: Well, I noticed here in the -- in the Sandsberry petitioners brief, his amicus curiae on page 29 -- starting on page 29, they have brief in number of cases that we didn't go into -- into the detail that they have on this matter, but I think some of those that are the cases that would distinguish the matter here, your Public Utilities Commission versus Pollak in 343 U.S. 451. There, the Capital Transit Company of the Washington here had a recurring radio programs on their -- their trollies and buses and some of the riders complaint to the Public Utilities Commission about that and said their freedom of privacy here was being impaired. And the -- the Utilities Commission then held a hearing and said no. But if this Court's held here that that mere permissive action on the part of the Utilities Commission was Government action so as to raise the constitutional question there. And there are numerous -- those cases cited here put your Terry versus Adams. I'm sure the Court is familiar with that case where you reviewed the activities of the political association in Texas. Now, he admittedly, a private organization that held elections to select candidates for county office in the official democratic primary. Well, there are Negroes who were excluded from joining in that organization and the result was, that I guess for 50 years is a -- the opinion state, no one else had ever been elected so it was tantamount to election. There was a case of the State's failure to enact laws, to protect these individuals that the Court said was Government action which raised this constitutional question. Now, it is our contention -- it's a contention on the State so that in our right to work laws, all that we are doing there is implemented, the basic liberties and fundamental rights that are guaranteed to the people against state action by the -- the federal Bill of Rights. The freedom of association, the right to work, the taking of due property without due process of law. All are rights that are involved here and all are being assured to the individual through our right to work law. Now, it is always had been the duty of the State to protect its citizens, its life, liberty and pursuit of happiness and to protect them in their property rights. That's what the States are attempting to do. Now, a law, therefore, that does no more than that, that does no more than to assure to the individual the rights which have been guaranteed to him under the Constitution, under the Bill of Rights. How can such an Act be struck down by an Act of Congress? The -- these basic rights which our Court considered as the -- the issue here which made this Act of Congress unconstitutional, I think the -- the statement of Judge Wenke there can't -- I can't state it any better than to just read that quote from him. We also think the right to work is one of the most precious liberties that man possesses. Man has much right to work as he has to live to be free to own property or to join a church of his own choice for without freedom to work, the others would soon disappear. It is a fundamental human right which the Due Process Clause of the Fifth Amendment protects from improper infringement by the Federal Government, to work for a living in occupations available in the community is the very essence of personal freedom, and opportunity that it was one of the purposes of these amendments to make secure. Liberty means more than freedom servitude. The constitutional guarantees are assurance that the citizen will be protected in the right to use his powers of mind and body in any lawful calling." And they went on to consider the purpose, the motive fact of this Act which is admittedly for the purpose of eliminating the free writer. And -- and there, they said, we can find no condition to have existed at the time the amendment was adopted to authorize any restriction of these rights. Consequently, we think Congress was without authority to impose upon employees or railroads in Nebraska contrary to our Constitution and statutory provisions the requirement that they must become members of a union representing their craft or class as a condition for a continued employment. It improperly -- improperly burdens a right to work and infringes upon their freedoms. This is particularly true as to the latter because it is apparent that some of these labor organizations advocate political ideas, support political candidates and advance national ecomanic concepts which may or may not be of an employee's choice. Now, none -- none of the -- those statements have been challenged here by either the appellants or their amici. And I think it's -- it can be conceded here that the purpose, the whole -- whole purpose of this law was to eliminate the free writer. Property rights are guaranteed by the state right to work law. Contract rights, of course, are property right and the statement in Yick Wo versus Hopkins that the very idea that one man may be compelled to hold his life for the means of living or any material right essential to the enjoyment of life at the mere will of another, seems to be intolerable in any country where freedom prevails as being the very essence of slavery itself. Now, we feel that it is the duty of the State to protect these rights. Article I Section 1 of the Constitution of the State of Nebraska provides that all persons are by nature free and independent and have certain inherent and unalienable rights, among these are light liberty and a pursuit of happiness. To secure these rights and the protection of property, Governments are instituted among people to deriving their just power from the consent of the Government. A similar provisions may be found, I think in the Constitutions of all of the other states. Article X of the Bill of Rights, the Federal Constitution provides the powers not delegated to the United States by the Constitution or prohibited by it to the States I reserve to the States respectively or to the people. It's under this reserved power that the people of the State of Nebraska and that these other States have initiated the laws for the purpose of protecting the people. There is nothing here under the Commerce Clause of the Constitution which can possibly justify this congressional action, while under the Commerce Clause, Congress has the power to regulate interstate commerce but is not had unlimited power and must be exercised within the bounds laid out by other provisions of the Constitution and principally, the Bill of Rights. The guarantees of the Bill of Rights, as stated in the case of West Virginia State Board of Education versus Barnette in 319 U.S. 624, these rights should only be susceptible to restriction to prevent grave and immediate danger to interest which the Government is obligated to protect. Therefore, we sincerely feel that Congress here debar exceeded any authority that they had to -- in -- in their attempt here to strike down the laws of the State. There's one other point that I -- I want to mention here, my time is about out, and that is that we do not, the Illinois, when I say "we", I'm speaking for all of the States who have this right to work laws that these laws are anti-union. But on the contrary, I firmly believe that such laws are absolutely essential to the survival of labor unions particularly in lieu of the power given to them by the laws of the nation. Mr. Justice Brandeis, of course he was a supporter of unionism in a letter to Lincoln Steffens which Mr. Justice Frankfurter quoted in the opinion of the American Federation of Labor versus American Sash and Door Company case which is a companion case to the -- to the Nebraska case. It was argued here at the same time in which he stated, “But the American people should not and will not accept unionism if it involves a closed shop. They will not consent to the exchange of the tyranny of the employer for the tyranny of the employees.” And later, on he went out to sum this up. It is not true that the success of the labor union necessarily means perfect monopoly. The Union, in order to obtain and preserve for its members industrial liberty, must be strong and stable. It need not include any member of the trade. Indeed, it is desirable both -- for both the employer and the Union that -- that it should not. Absolute power leads to excesses and to witnesses, either our character nor our intelligence can long bear this grave among restricted power. Now, we -- we believe that that is a correct statement, that is the attitude that people of our states have -- have taken. They have taken the position that union members and union leaders are no different than in any other individual. They're not incapable of -- of making errors. They have the same weaknesses and frailties in everyone else that they're -- they, as well as, officials in government must have some restriction and that voluntary unionism is the most effective means of maintaining this democratic control over our labor unions which have become such a vital part of our lives in this nation.
Earl Warren: Mr. Schoene.
Lester P. Schoene: I think I have only a few minutes left, Mr. Chief Justice, but I have only a few very brief comments to make directed entirely to a matter of clarification as to what has been said regarding my position on the so-called question of governmental action. If you examine my brief, you will find the -- that term not used anywhere because, I think, in reference to this sort of context, it is ambiguous and confusing. Obviously, I have never taken the position and would not be so absurd as to take the position that the enactment of Section 211 to the Railway Labor Act by Congress or the enactment of any other part of the Railway Labor Act by Congress was not governmental action. The problem here is, what does the governmental action consist of and it consists entirely of the enactment of that section of the Railway Labor Act and the other provisions of the Railway Labor Act. Now, to when to strike the significance of that, all the cases that have been cited here by the appellees concerning the depravation of particular rights such as rights to work, rights of freedom to -- to associate, all arise out of situations where the legislative authority, either state or federal, has its self proscribe the right and said, “You shall not work unless you shall -- you could form the certain condition.” So, you shall not associate unless you conformed a certain condition. Now, the relevance of all those cases depends upon the governmental action here, namely, the enactment of permissive authority to make contracts as being the equivalent of prescribing the terms of the contract. And my point is simply that does not follow anymore than you test the validity of negotiated wage rights under the Railway Labor Act in the same way that you would test the validity of prescribed wage rights set forth in a congressional statute. And they're entirely different things --
Felix Frankfurter: (Voice Overlap)
Lester P. Schoene: -- arise entirely different questions.
Felix Frankfurter: -- certain -- certain rights, certain powers glow to the union from the fact that you all might make in such an agreement, is that true?
Lester P. Schoene: That -- that is --
Felix Frankfurter: (Voice Overlap) claims that all the Government, entirely, is -- it gave you freedom to do -- freely do what you please because that analogy would want (Inaudible)
Lester P. Schoene: That's right and I -- that's why I mentioned Steele in my -- in my original discussion, Mr. Justice Frankfurter. I do not claim that there are no constitutional limitations on the kinds of agreements that Congress might permit to be made under the Railway Labor Act. Steele indicates the contrary very definitely even though it was decided -- decided on a statutory ground. But here, we have nothing at all similar to what was involved in Steele. We have on the contrary the type of agreement that has been recognized for generations as a legitimate objective of collective bargaining and for Congress to commit that kind of an agreement, raises no questions comparable to those that were raised in Steele.
Hugo L. Black: May I ask you one question of that Section 4 of the contract?
Lester P. Schoene: Section 4 of the agreement?
Hugo L. Black: On page 9 of the record. I understood you to say something about it at first. Do you construe that its meaning, that the man who wants the job can get it, provided he apply it with Section 4 to this limited extent, he has to do nothing but pay periodic views, initiation fees and assessment?
Lester P. Schoene: I would say it has to do one further thing, Mr. Justice Black, which may not be of any practical significant but which I think is essential to giving meaning to the word "become a member and maintain membership." That is to say, he has to be consensually willing to join with his fellows in an association. Now, what that means is a practical matter, I frankly came (Voice Overlap).
Hugo L. Black: Well, does it mean that -- that they'd given a number of illustrations. Suppose your contract required him to do this and he had to become a member, he had to be a participant even though that union was supporting a party, political party to which he did not agree. Does this relieve him of being compelled to subscribe to such an association as that or if you don't want to say whether it does or not, is that question raised here in this (Voice Overlap) --
Lester P. Schoene: I -- I think -- I think it is definitely not raised in here, Mr. Justice Black, and I will say this that clearly under Section 4, if the union or attainment of membership in the union involves any conditions that are objectionable to him. Let's take Mr. Justice Frankfurter's illustration of the flag salute. He is certainly under Section 4 perfectly free to say, “I will not salute the flag and if you don't want me in as a member when I don't agree to salute the flag, then you'll have to turn me down.”
Hugo L. Black: It seems to me what was done by the union in the Otten case as I read it, they agreed that all he had to do is to pay his dues and initiation.
Lester P. Schoene: He was even relieved of the act of joining.
Hugo L. Black: He didn't have to formally subscribe to any of them.
Lester P. Schoene: He didn't have to subscribe for anything he was --
Hugo L. Black: The question I have in my mind is the question I ask you observe. I do not yet see how this case raises any of those questions of where they are imposition in this particular challenge.
Lester P. Schoene: I'd -- I agree with you, Mr. Justice Black, and I don't think those -- those questions are raised at all. I think, first, you would have to have a specific instance in which the effort has been made to apply to some individual some condition that he finds offensive to his conscience.
Felix Frankfurter: Mr. Schoene, before you sit down, may ask you this. I haven't read this contract but I assume that is not in this context. But do you happen to know whether any of the effective agreements, any of the railroad union, there is in the contract a provision similar, what I believe in the English legislation whereby a member of a union, contracting can by appropriate invitation, notice, see to it that his contribution to his fees, his dues with the union are not used for any political purpose, is there anything like that in any of our railroad or other collective opinion?
Lester P. Schoene: Not to my knowledge, Mr. Justice Frankfurter. Of course, as you undoubtedly know, the -- under the Federal Corrupt Practices legislation, there are severe limitations on the extent to which union funds can be used for political purposes. But to my knowledge, there are no such limitations in any of the Constitutions or contract to the organizations here.