Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees v. Allen

PETITIONER:Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees
RESPONDENT:Allen
LOCATION:Clauson’s Inn

DOCKET NO.: 316
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 113 (1963)
ARGUED: Mar 25, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – March 25, 1963 in Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees v. Allen

Earl Warren:

Number 316, Brotherhood of Railway and Steamships Clerks, Freight Handlers, Express and Station Employees, Petitioners versus, Anna Mae Allen et al.

Mr. Kramer.

Milton Kramer:

Mr. Chief Justice, may it please the Court.

This case arises from a number of employees of the Southern Railway, suing that Railway and its non-operating unions to enjoin the enforcement of a union-shop agreement entered into by the railroad and the unions.

The unions that was sued, the railroad and the union-shop agreements are the identical unions, railroad and agreement that were involved in Street — in International Association of Machinists against the Street which this Court decided a year and a half ago.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

The AFL-CIO is asking you to reconsider Street, and I think you might well do so.

We have not asked the Court to reconsider Street because it is not necessary to do so.

The decision below, we say is inconsistent with Street, taking Street as it is.

Although, we concur with the AFL-CIO that the Court might well be considerate and state that no cause of action was shown in this case.

But taking Street as it is, the plaintiffs in this case have not shown a cause of action under the Street case and even if they had, the relief that was given them is inconsistent with the relief that this Court said could be given when there is a cause of action.

In fact, the relief given here is precisely the relief that this Court said could not be given.

William J. Brennan, Jr.:

[Inaudible]

Milton Kramer:

Pardon?

William J. Brennan, Jr.:

The case — only inconsistent?

Milton Kramer:

Well, it is at least inconsistent.

It is in direct violation.

William J. Brennan, Jr.:

The proviso does say, it’s directly to the contrary.

Milton Kramer:

It is directly contrary.

The plaintiffs below chose not to comply with the union-shop agreement.

Instead, they sued to enjoin its enforcement saying that they were not members of the union, did not pay it any money, did not want to pay it any money, and that to enforce the agreement against them would be unlawful.

Now after this Court decided the Hanson case that was a case that came from Nebraska in which this Court upheld the validity of the union-shop agreement and reversed the Supreme Court of Nebraska which had set it aside on the ground that the money might or might not be used in accordance with the individual’s view.

This Court in this Hanson case said that wasn’t enough; might or might not and therefore, reversed.

This is exactly the Hanson case.

The case was tried before a jury.

14 of the plaintiffs testified and their counsel stated that of the others, two were no longer employees, one was in a position exempt from the union-shop agreement, and that the remainder if they testify, would testify the same way that the 14 did.

William J. Brennan, Jr.:

This is not a class action?

Milton Kramer:

And this was brought as a class action but the trial court did not sustain that it’s a class action.

Byron R. White:

[Inaudible]

Milton Kramer:

That is correct Mr. Justice.

Milton Kramer:

Now, all the plaintiffs who testified stated that they were not members of the union and were opposed to union-shop.

Now, we have some — their testimony is summarized on pages 7 to 11 of my brief.

All that they testify to was that they were opposed to a union-shop and that they were opposed to unions engaging in political activities.

Not one of them, although asked, could name a single political cause supported by the unions contrary to their views.

None of them testified that he or she had advised the union of his views or indeed had advised the union of anything.

Potter Stewart:

Was there any showing that the union had publicized the political causes and candidates of — which it had supported?

Milton Kramer:

There was not.

Potter Stewart:

So how did they know?

How could the plaintiffs know?

Milton Kramer:

These plaintiffs aren’t even members of the union.

Now what the union does is not a secret.

They could ask.

The union has publications and under the Street case, this Court held that the individual must let the union know what he opposes.

In this case, he couldn’t even name anything that the union did that it opposed and was asked, name a single candidate that the union supported to whom you’re opposed and none of them could do it.

Name a single piece of legislation that the union supported to which you are opposed and none of them could do it except that two of them said, “He was opposed to the enactment of Section 2 Eleventh of the Railway Labor Act.”

Potter Stewart:

Well, and a couple of others or more referred to the state right to work (Voice Overlap) —

Milton Kramer:

But they didn’t know whether the union supported or opposed it.

Potter Stewart:

Oh, was there any way they could have found out?

Milton Kramer:

They could have asked.

Well first, fundamentally under the Street case, these people haven’t paid any money to the union.

The union wasn’t spending their money whatever it was doing.

And this Court held that it’s the spending of their money for causes they opposed which is unlawful, but they haven’t paid anything.

Hugo L. Black:

[Inaudible]

Milton Kramer:

Pardon?

Hugo L. Black:

They will lose their position if they didn’t know [Inaudible].

Milton Kramer:

Well that’s right.

But until they have paid some money, they have no grievance.

Until the union does something with their money contrary to their views then under the Street case, they have no act — cause of action.

This Court said specifically that the union-shop is lawful and that the plaintiffs in the Street case said, “The plaintiffs therefore remain obliged to pay the sums hold for by the union-shop agreement,” in practically those words, that they remain obliged to pay and the opinion of the Court that was stated that there was nothing unlawful about the union-shop, there was nothing unlawful about collecting the money.

If there is any illegality involved, the illegality would be spending their money contrary to their views.

Milton Kramer:

That was explicit in Mr. Justice Brennan’s opinion.

Well, the other one —

Potter Stewart:

Will they have to wait — they’d — they have to wait until the money has been spent before they can check?

Milton Kramer:

Well I have to wait until they paid it.

And then they may seek to have it spent for purposes which they opposed.

William J. Brennan, Jr.:

No, not to which they opposed.

Milton Kramer:

They may seek to prevent this expenditure for purposes which they opposed.

Now, the other evidence in this case —

Tom C. Clark:

Suppose the evidence [Inaudible]

Milton Kramer:

If they had an agreement?

Tom C. Clark:

No, if when a — the union must — they have an agreement [Inaudible]

Milton Kramer:

Well that, of course, would be illegal that the union gave money to cope.

Tom C. Clark:

But they gave any [Inaudible]

Milton Kramer:

Yes.

Tom C. Clark:

They have to wait before they take the money although the union had that understanding (Inaudible)?

Milton Kramer:

They could say under the Street case — I’m just arguing this under the Street case, not the way I argued the Street case, but assuming the Street case to pronounce the law as it is today, they could either insist — they could insist either on the union not spending a portion of their money force up to contribution, or, I think the alternative was that they could be relieved of a portion of the dues — the Court indicated those two alternatives.

Tom C. Clark:

You’re in effect could object those [Inaudible]

Milton Kramer:

None of these unions have.

I —

William J. Brennan, Jr.:

[Inaudible]

Milton Kramer:

Pardon?

William J. Brennan, Jr.:

Some of the unions have?

Milton Kramer:

In this industry, I think only one union does.

The Brotherhood of Railroad Trainmen, I think, is the only one that had a check off agreement and they’re not in this case.

William J. Brennan, Jr.:

How about [Inaudible]

Milton Kramer:

Oh, very common outside the railroad industry.

It is lawful under the Railway Labor Act but the unions just haven’t been able to get it.

Now the other evidence in this case consists of a showing that the AFL-CIO engages in certain legislative and other activities.

There is no evidence that those activities of the AFL-CIO with which these unions are affiliated and to which it makes payments, there is no evidence that anything the AFL-CIO does is contrary to the views of any plaintiff.

William J. Brennan, Jr.:

Does the — the primary [Inaudible]

Milton Kramer:

Oh, very extensive.

William J. Brennan, Jr.:

It relates to precisely where the money went and how much is spent, was there?

Milton Kramer:

No.

It just says substantial amounts.

The precise amounts were not stipulated.

William J. Brennan, Jr.:

If it was a stipulation, they [Inaudible] —

Milton Kramer:

Yes, that’s right.

William J. Brennan, Jr.:

Is that it?

Milton Kramer:

That’s right.

And it did say there contrary to the views of the plaintiff, there was no evidence of anything that any of the unions do or anything that the AFL-CIO does is contrary to their views.

Potter Stewart:

Well, they testified as I understand it that that was contrary to their views to have the Brotherhood spend any money for political purposes.

Milton Kramer:

That’s right.

One of these —

Potter Stewart:

They — if they wanted their money spent for political purposes, they wanted to spend it themselves for the —

Milton Kramer:

That’s right.

Potter Stewart:

— for the causes in candidates in which they believe.

They didn’t want —

Milton Kramer:

That’s right and under —

Potter Stewart:

— somebody taking their money away from them which is — it was necessary for them to pay out of the statute in order to keep their jobs and then spending that money for causes and candidates of a political nature at all.

That’s what they’re opposed to, isn’t what the record shows?

Milton Kramer:

That’s right.

And under the Street case, and under the Hanson case, both, that is not enough.

That is exactly what was shown in the Hanson case.

That is exactly what was shown in Lathrop against Donohue.

Potter Stewart:

No, no, in the Hanson case, as you told us this morning, it was — the record there was that the money might or might not be spent for political —

Milton Kramer:

Oh no, it would be spent for political purposes which might or might now coincide with their views.

Byron R. White:

[Inaudible]

Milton Kramer:

That’s right.

Byron R. White:

[Inaudible]

Milton Kramer:

That’s right.

Byron R. White:

Because they are saying, “You’re not opposed to any [Inaudible]?”

Milton Kramer:

At all, exactly.

Byron R. White:

[Inaudible]

Milton Kramer:

That’s right.

Byron R. White:

Even if they come in and say, use that 35% of your income [Inaudible]?

Milton Kramer:

Under both the Street case and the Hanson case.

That was exactly what the Hanson case was.

It was shown that they do spend money for political purposes, but all that was shown and all the Supreme Court of Nebraska found was that those purposes might or might not coincide with the plaintiffs’ views.

That was — this is exactly the Street v. Hanson case and this is exactly Lathrop against Donohue which was —

Byron R. White:

So, your position is that the [Inaudible]?

Milton Kramer:

That’s right.

No one has such a cause of action and that’s what this Court held in the Street case and in the Hanson case that they must show support of a specific cause, of a specific candidate which they opposed and off which they notified the union they opposed before they have a cause of action.

And then when they have a cause of action, they cannot get an injunction against the collection of all money which is exactly the relief given in this case.

This union-shop agreement has been in effect with over 10 years now and these people haven’t paid a dime under a preliminary injunction and the permanent injunction.

Now, when this case was appealed to the Supreme Court of North Carolina, first, that court reversed by a 6 to 1 vote.

But after the decision of the trial court and what later became the Street case, they granted a rehearing and our rehearing divided evenly and said the even division does not leave in effect their first opinion but leaves in effect the trial court’s opinion.

Oh, one other thing — one other —

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

It is in effect today.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

Well, I think so.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

Mr. Justice, I don’t have information that remains in effect in the Street case too, today.

Arthur J. Goldberg:

Why do you say that?

Milton Kramer:

I know, I had to locate, it’s in effect today.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

I know.

I asked this Court to a writ of mandamus which the Court denied me, but the Street case today, the injunctions in effect.

Milton Kramer:

That was not the mandate of this Court.

And this injunction is in effect today, although the language is explicit in the Street opinion that an injunction against the collection of all funds is not a proper remedy, — that’s exactly those words.

It’s not a remedy appropriate to.

The — I had the words in the reversed order.

Now, the only other evidence to support their cause of action is that the — is at COPE, The Community on Political Education of the AFL-CIO and railway labors politically makes contributions to campaigns of particular candidates.

The uncontradicted evidence not a word to the contrary is that every cent of that comes from voluntary contributions and not one cent comes from dues.

In addition, there was no evidence that any candidate supported by COPE or RLPL was opposed by any of the plaintiffs.

Potter Stewart:

Well, I’ll ask you first as to your first point that the jury found otherwise.

Milton Kramer:

No.

Potter Stewart:

Looking as page 22, the first — the first [Inaudible] for example.

Milton Kramer:

The jury found — the jury found that the unions contribute —

Potter Stewart:

Dues and fees which they collect from railroad employees —

Milton Kramer:

Yes.

Potter Stewart:

— in support of or opposition to legislation and that’s a — you see — say that there’s —

Milton Kramer:

But they’re not talking about RLPL and COPE.

Potter Stewart:

No, they’re talking about the Union.

Milton Kramer:

That’s right.

And of course, there’s not a word of evidence to that effect.

Potter Stewart:

Well, did you file a motion for judgment notwithstanding the verdict?

Milton Kramer:

No.

Potter Stewart:

Well you do have jury findings contrary to what you’re telling us.

Milton Kramer:

That’s right, there’s not a word in the record to support that because — and there wasn’t any point —

Byron R. White:

[Inaudible]

Milton Kramer:

No.

Byron R. White:

[Inaudible]

Milton Kramer:

Oh, yes.

Byron R. White:

[Inaudible]

Milton Kramer:

Oh, — certainly, because none of the money that is paid to the AFL — AFL-CIO by the unions goes to COPE for political expenditures, none of it.

The evidence is uncontradicted that every cent of the money that they pay comes from voluntary contributions, because it would be a violation of the Corrupt Practices Act or otherwise, in all probability.

COPE and RLPL were established after the Corrupt Practices Act was amended which prevented unions for making contributions to campaigns of candidates for federal office.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

It would not and perhaps the jury had contributions to State candidates in mind.

But more significantly, none of the plaintiffs said that he was opposed to any candidate that COPE or RLPL supported.

Hugo L. Black:

They did say they were opposed to having their money used for political purposes, didn’t they?

Milton Kramer:

For political purposes at all regardless of what they were.

William J. Brennan, Jr.:

But your point is that in any event there was no evidence that anything [Inaudible] where in fact [Inaudible]

Milton Kramer:

No, there is not one word of evidence and indeed with respect to COPE and RLPL there is a stipulation that none of the — none of those contributions came from either of these unions.

Hugo L. Black:

Was there such a stipulation in reference to the finding number two of the jury?

Milton Kramer:

I don’t recall what’s number two —

Hugo L. Black:

Does an independent union used dues and funds which they collect from railroad employees influenced vote in elections to public officers, the answer, “Yes.”

You challenge that —

Milton Kramer:

To influence votes?

No, I would, I would not challenge that they tried to influence votes.

I do challenge that they made contributions to campaigns.

William J. Brennan, Jr.:

Well, what do you mean by that —

Milton Kramer:

Well, they have public —

William J. Brennan, Jr.:

[Inaudible]

Milton Kramer:

That’s what I’m talking about, yes.

That — in their other periodicals, they sometimes announce the candidates they support and urge their members then the —

Byron R. White:

[Inaudible]

Milton Kramer:

Of course, that’s the — dues money is used for that.

Byron R. White:

[Inaudible]

Milton Kramer:

Well, I — Mr. Justice White, many people do.

I distinguish between political and legislative.

Byron R. White:

Don’t you think — you want to call [Inaudible]?

Milton Kramer:

Well, I call it legislative activity.

It can be called political but the unions are —

Byron R. White:

[Inaudible]

Milton Kramer:

No, its legislative when you’re before a legislative body.

Byron R. White:

[Inaudible] submitted this for [Inaudible] candidate?

Milton Kramer:

Yes.

Byron R. White:

Then that’s it.

Milton Kramer:

Oh, yes.

Byron R. White:

So, that is a [Inaudible]

Milton Kramer:

Oh, for political, I haven’t questioned that there was evidence that they used money for political purposes.

I challenge that they contribute money to campaigns.

Hugo L. Black:

Well what about number four?

It says that the defendant unions used dues and fees that they collect from railroad employees to make contributions to the campaigns of candidates for election to public office.

Milton Kramer:

There is not a word of evidence to support that.

But even if there were, Mr. Justice Black —

Hugo L. Black:

But it was that challenge that (Inaudible) —

Milton Kramer:

We asked the judge not to submit such a question.

Hugo L. Black:

Well after he did submit it, did you move to set it aside?

Milton Kramer:

Oh, yes.

Hugo L. Black:

On the ground that was not supported by evidence?

Milton Kramer:

No, we moved to —

Potter Stewart:

So you didn’t?

Milton Kramer:

On the ground that it was not supported by evidence?

All the argument took place before it was submitted.

Before it was submitted the Court — we argued before the judge that there was — there’s no evidence on that.

Potter Stewart:

Well, then you had a finding by the jury that there was — that these facts did occur?

Milton Kramer:

I — yes, but you can’t find a word of evidence in the records to support a contribution to a campaign, except these long lists of contributions by COPE and RLPL —

Byron R. White:

[Inaudible]

Milton Kramer:

What?

I’m sorry.

Byron R. White:

That they paid contributions in the campaign?

Milton Kramer:

Yes.

Byron R. White:

[Inaudible]

Hugo L. Black:

Page 22.

Milton Kramer:

22, item 4.

Hugo L. Black:

[Inaudible] used dues and fees as such?

Milton Kramer:

Yes.

Hugo L. Black:

And you did not present as one of the questions presented that you — the question of whether the findings were supported by evidence?

Milton Kramer:

Not — not in this Court because it isn’t necessary because for two reasons, none of these dues or — no dues or fees came from any of these plaintiffs.

There is no evidence that the plaintiffs object to any of the candidates the union supported if they supported them, whether through contributions or otherwise.

Hugo L. Black:

Well, have they paid any dues and fees?

Milton Kramer:

They have not paid one cent.

Hugo L. Black:

They’ve been going to keep it from — keep you from collecting them —

Milton Kramer:

That’s right, we haven’t —

Hugo L. Black:

That’s the reason.

Milton Kramer:

Pardon?

Hugo L. Black:

That’s the reason there is but that doesn’t — that doesn’t answer the problem, does it?

They enjoined you to keep you from collecting them on the ground that they didn’t want them used for political purposes?

Milton Kramer:

Yes.

Hugo L. Black:

You say they do not have standing to raise that that way?

Milton Kramer:

That’s right.

I say they don’t have no standing until certain things happened.

One, that they have paid some money.

Hugo L. Black:

But they — they come in and say we don’t want to pay it because it’s illegal and we don’t want to pay it and the Court enjoins.

Milton Kramer:

But in Street, this Court specifically —

William J. Brennan, Jr.:

Your point — your point is that Street, we held could not have enjoined the payment of the dues under the union establishment?

Milton Kramer:

If the Court decided anything in that case they certainly decided that.

Hugo L. Black:

Is that the part that you are asking us to overrule?

Milton Kramer:

Oh, no.

I’m asking you to overrule that there was a course of action at all.

Your Honor, even in your opinion, even in, even in your partially dissenting opinion, you repeatedly stated that the objection must be to a specific cause and he must notify the union what it is and because you said —

Hugo L. Black:

Well this — according to this as far as specific cause they don’t want their money used for political purposes.

Milton Kramer:

Well, you spoke about specific candidates —

Hugo L. Black:

I didn’t say that they had to.

I — the idea that I was — I’m sorry of it?

Milton Kramer:

No.

Hugo L. Black:

If I indicated there’s a difference between making a man — freeing a man from having his money extracted from him to support one candidate and extracted from him to support a group of candidates in political causes.

Milton Kramer:

Well, you certainly, repeatedly said a particular candidate or a particular cause and in addition you repeatedly said —

Hugo L. Black:

That wouldn’t be one of the reasons that for a particular candidate or particular cause.

Milton Kramer:

But I — it —

Hugo L. Black:

My thought — my (Inaudible) — my objection was on the ground that the union didn’t have a right have the — half of the law to force people to pay dues to it and it’s going to be used for political purposes —

Milton Kramer:

To which —

Hugo L. Black:

— one way or the other.

Milton Kramer:

Oh, no.

But you specifically said to which they object, the cause to which they object —

Hugo L. Black:

That’s what they object.

Milton Kramer:

And — but a particular cause you said and of which —

Hugo L. Black:

Well, I didn’t mean by that, that they had to go and look at each particular candidate to see whether that was the particular one.

Milton Kramer:

And you also —

Hugo L. Black:

That would put a burden, I never would have thought of putting on you.

Milton Kramer:

You also said they have to notify the union of the cause to which they object.

Hugo L. Black:

Well they did by enjoining them, didn’t they?

Milton Kramer:

Well, they haven’t notified them of any particular cause of any particular candidate.

Hugo L. Black:

You said the objective, their money being used for political purposes.

Milton Kramer:

Yes, and they didn’t say that, Your Honor.

Byron R. White:

And that’s by all political causes, all political causes?

Milton Kramer:

And all legislative activity.

Byron R. White:

They have in every single political cause —

Milton Kramer:

That’s right.

Byron R. White:

[Inaudible]

Milton Kramer:

All.

If they — they couldn’t engage in any political or legislative activity and as Your Honors know, I’m sure.

Byron R. White:

No, it is — there’s no implication they took their money.

Milton Kramer:

But they haven’t given them any money.

Byron R. White:

[Inaudible] you still have to pay [Inaudible]

Milton Kramer:

That’s right.

That it would have to be a particular cause and also that they must notify the union what it is.

Even in your opinion, Mr. Justice Black, you repeatedly said, “Of which they have notified the union.”

Hugo L. Black:

I meant as I gather this, they say they have notified them.

Milton Kramer:

They did not notify —

Hugo L. Black:

They notified them by an injunction and got an injunction to keep them from still using their money for that purpose.

Milton Kramer:

Well, this is an — this is a theory of all law I find difficult to understand.

Hugo L. Black:

Well, I find it difficult to understand why you don’t argue it on the merits.

Milton Kramer:

And you argued to speak —

Hugo L. Black:

There’s a difference — there’s a difference, a vital difference between those who think they have a right to spend their money for political purposes by forcing it from them and those who think if they have all the right in the world if they’ve take up contribution, that’s your issue.

Milton Kramer:

Well —

William J. Brennan, Jr.:

Well this is the difference.

Milton Kramer:

Pardon?

William J. Brennan, Jr.:

I just — I don’t want to —

Milton Kramer:

No, it —

William J. Brennan, Jr.:

I don’t want to get to a controversy with my Brother Black, but if I understand your position you don’t have to reach any of these — any question in this case beyond [Inaudible] of the law they get on to be overruled [Inaudible] still law.

What Street held was that you just can’t bring an action like this into the type of money.

Milton Kramer:

That’s right.

Your —

William J. Brennan, Jr.:

Oh, if that’s so, the case is over.

Milton Kramer:

That’s —

William J. Brennan, Jr.:

[Inaudible] case overruled.

Milton Kramer:

That’s right.

William J. Brennan, Jr.:

Is that right?

Milton Kramer:

That’s right and Mr. Justice Black, Mr. Blakeney is going to make an argument similar to what you’re suggesting and that is that they notified them by suing them.

Well, this isn’t a peculiar —

Hugo L. Black:

I mean, — maybe the Court did hold that, I didn’t so read his opinion.

Milton Kramer:

No, I thought that they —

Hugo L. Black:

You just said that you couldn’t notify him by — and then file a lawsuit, enjoin it and if that would —

Milton Kramer:

But — I find it —

Hugo L. Black:

— keep it from doing anything.

Milton Kramer:

I find it difficult to understand how somebody — let’s say he needs — he has to notify him to have a cause of action.

So somebody who doesn’t have a cause of action against somebody else acquires a cause of action against that somebody else by suing him.

Now that’s a theory for — a document of jurisprudence I can’t grasp.

Byron R. White:

But I suggest — you assume what you’re arguing on the merits [Inaudible]

Milton Kramer:

I have about one minute left, Mr. Justice White.

I think — oh, no, you started five minutes late.

I have about six minutes left.

The merits of course were fully argued in the Street case and the Court divided five ways. Basically, it is if that all — well, there were several propositions.

First, there is no government action here.

All that Congress has done is to repeal its own prohibition against the union-shop, and secondly, to say that state law shall not apply to union-shop agreements in the railroad industry.

And that’s all its — that — that’s all the federal action there is.

Now there were those who say superseding state law makes it federal action and therefore the unions — in getting a union-shop agreement are bound by constitutional limitation.

I think that’s wrong.

I think that repealing your own law, repealing your own prohibition is clearly constitutional and superseding state law and what is the most essential of interstate activities, the railroad industry is not unconstitutional.

And so therefore, it shouldn’t reach any constitutional question but if we do reach the constitutional questions, then I think this act — this conduct is lawful.

There is no right of the plaintiffs that is being in no constitutional right being infringed, I know Mr. Justice Black disagrees with me.

William J. Brennan, Jr.:

[Inaudible]

Milton Kramer:

And Mr. —

William J. Brennan, Jr.:

[Inaudible]

Milton Kramer:

Oh, I certainly do.

I think that was the only fully sound opinion of the five. I think the opinion of Justice Frankfurter in which Mr. Justice Harlan concurred was the sound view and expresses the view that I would now expound that no rights are being infringed because these people are not being prevented from saying anything or writing anything or supporting or opposing anything.

They are not being ordered or made to say anything except in the very indirect sense to which Mr. Justice Black referred in his opinion that using their money to publicize certain ideas this in effect making them say it.

Hugo L. Black:

Isn’t it?

Milton Kramer:

No.

I think not.

I think it is not any more, Your Honor — well, I think — one of the examples I gave in the Street case was that, the Federal Government certainly takes tax money that is exacted and it uses some of that money to employ [Inaudible] of various states which preached their faiths.

Hugo L. Black:

What would you say if the Federal Government took their money to support the Republican Party, your tax money, how do you feel about it?

Milton Kramer:

Well, the suggestion has been made.

Hugo L. Black:

And maybe — maybe I’ll better put in the Democrat.

Milton Kramer:

No.

Yes, in my case make it a Democrat.

I would object, but I don’t think I would have any constitutional right.

The suggestion has seriously been made that the Federal Government financed the presidential campaigns.

Hugo L. Black:

That‘s right, the presidential campaigns but that’s quite human and that’s what — the Federal Government doing something in connection with regulating election.

Milton Kramer:

That‘s right.

But —

Hugo L. Black:

But your argument is that a man who wants a job, the only way he can get it by — a reasonable closed shop is to join the union or pay dues.

They — the union then as to the Federal Governments say, you have to do that and take his money and spend it for political purposes when he is supposed to.

Milton Kramer:

Of course the Federal Government didn’t say he has to join the — it has to join the union.

Hugo L. Black:

No, but they give you — they fix the power that way so that when you come — turns out and spend it he has to if he gets his job.

Milton Kramer:

Well, if the union is successful in negotiating —

Hugo L. Black:

Yes, that’s right.

Milton Kramer:

— union-shop agreement and it doesn’t even have — doesn’t have them all over yet.

So —

Hugo L. Black:

No, it doesn’t have them all.

Potter Stewart:

Does in this case —

Hugo L. Black:

And that’s —

Potter Stewart:

It does in this case.

Milton Kramer:

And does in this case.

Potter Stewart:

That’s what we’re talking about.

Milton Kramer:

But it’s not because of the Federal Government except in the sense that the Federal Government repealed this prohibition.

Byron R. White:

[Inaudible]

Milton Kramer:

And I would submit, Mr. Justice White, that it didn’t have to preempt.

I would suggest that the state laws couldn’t have —

Byron R. White:

[Inaudible] they did have to be [Inaudible] held what it did?

Milton Kramer:

It‘s been held that it preempted in so many words, it has not been held that it had to.

Byron R. White:

[Inaudible]

Milton Kramer:

Well, it’s not a federal contract except —

Byron R. White:

[Inaudible]

Milton Kramer:

No, the fede — the — all that federal law does with effect to that contract has put certain limitations on it.

Byron R. White:

Do you say that — would you say that the union-shop is an agreement [Inaudible]?

Milton Kramer:

The limitations are controlled.

Byron R. White:

[Inaudible]

Milton Kramer:

That’s right and I would suggest the state law couldn’t prevent it anyway because it would interfere with interstate commerce to have a union-shop agreement, say, on the Southern Railroad with subways in 13 states legal in some states and illegal in others.

But the Supremacy Clause of the Constitution is an article of the Constitution.

When Congress exercises a power specifically conferred on it by the Constitution, it cannot be acting unconstitutionally.

Arthur J. Goldberg:

Mr. Kramer, [Inaudible]

Milton Kramer:

That’s right and that was a com — that was very common before we had the federal legislation on the subject, very common.

Arthur J. Goldberg:

[Inaudible]

Milton Kramer:

It does not show up yet —

Byron R. White:

[Inaudible]

Milton Kramer:

Three of them had.

It was a — it’s a silly situation.

The injunction is still in effect as to all six who put up a bond.

Three have always been members; one is retired and one is in an accepted position not subject to the union-shop.

But the injunction is after all six of them, three of them have all — have been members all along.

Arthur J. Goldberg:

[Inaudible] Do you think that an injunction restraining [Inaudible]?

Milton Kramer:

I could stop with that, Mr. Justice Goldberg, so far as the remedy is concerned.

I would not want the Court to stop with that.

I want the Court to say that under Street case, these people have not proven a cause of action so they for — for both reasons.

First, they haven‘t proven a cause of action, and secondly, even if they have, the remedy was the wrong remedy.

Potter Stewart:

Well you, you speak as though the only remedy was that paragraph which appears at the top of page 23 in the record.

Part of the remedy is — and a very important part of it is the following paragraph, is it not?

Street had nothing to do with the — it didn’t concern itself with this kind of a remedy.

Milton Kramer:

That proviso you’re talking about?

Potter Stewart:

Yes.

Milton Kramer:

Provided however as of today, the unions are completely enjoined from collecting anything from these plaintiffs.

They can’t collect anything.

Now there is a proviso that if the unions come back and prove what portion of their dues they spend for collective bargaining, plus collective bargaining, then that portion of their dues with respect to all of them, with collection of that portion would not be enjoined.

Milton Kramer:

Mr. Blakeney will argue that that means they are not enjoined, but they are today enjoined and have been for 10 years enjoined from collecting anything and if only if they come back and make certain showings that injunction may or may not be modified, and that showing is — would excuse these people from paying anything for anything other than collective bargaining.

Potter Stewart:

It’s not a matter of modifying the injunction at the — this is a very term of the decree?

Milton Kramer:

Yes, it was not applied to such portion as they proved to the Court is used only for collective bargaining.

In other words, if the unions go to Congress —

Potter Stewart:

Well, it will be reasonably necessary and related to collective bargaining —

Milton Kramer:

Yes.

Potter Stewart:

— between the defendant unions —

Milton Kramer:

Yes.

Potter Stewart:

— and the plaintiff’s part.

Milton Kramer:

They couldn’t go to Congress under that and as to an increase and the benefits of the — under the Railroad Unemployment Insurance Act or under the Railroad Retirement Act.

Hugo L. Black:

Suppose you’re — suppose you’re going to the Court and say we’ve decided that we’re not going to try to force people to pay dues in the long run which will be used for collect — for supporting candidates or political causes, would this injunction still work against him?

Milton Kramer:

It would.

Hugo L. Black:

Have you asked him to change it on that basis?

Milton Kramer:

I have not asked him to change it, I appealed it.

Hugo L. Black:

But you didn’t want that?

You have — you‘re not ready to say that you will not use money collected from them, force them to pay it and then use it for political purpose.

Milton Kramer:

Because we never could agree on whatever their political purpose is.

No, I’ve — I’ve not asked for that.

Hugo L. Black:

Well, I think both of us could agree that when you spend money to support candidates, political purposes —

Milton Kramer:

Yes.

Hugo L. Black:

— or parties?

Milton Kramer:

I’m not sure we would agree whether seeking an amendment of the Railroad Unemployment Insurance Act is a political purpose.

Hugo L. Black:

Well, that’s not — that — I doubt if you’ve had any trouble with the Court on that.

Milton Kramer:

Well, we certainly have because the Court has said we could claim —

Hugo L. Black:

But your main trouble is, isn’t it — why not face it, that your main trouble is that you think if we were wrong in holding that the union which has a close shop is not free to force its people to pay dues to use for political purposes.

Milton Kramer:

I — I didn’t —

Hugo L. Black:

Ordinary everyday political purposes like supporting parties or candidates.

Milton Kramer:

I think you were wrong in that respect, yes.

I think that the opinion of Mr. Justice Frankfurter, Mr. Justice Harlan was right that that is lawful and that — but the Courts says — I’m not asking the Court now to reconsider it.

I’d be happy to have the Court reconsider it and set a time for argument because I think it was wrong when it went that far, but to decide this case you don’t have to go that far.

Milton Kramer:

In this case, under the Street case, under its unequivocal language, they have not proven a cause of action and the relief granted is expressly contrary to the relief which the Street case said could be given when there is a cause of action.

Potter Stewart:

Just before you sit down, Mr. Kramer, I have a question.

In Great Britain, as I understand it, there is a specific provision that employees who are under like the bargaining agreements like this can “contract out” as they call it there.

Now, they had trouble in defining what is and what is not political activity?

Milton Kramer:

No, the contracting out there — you see in Great Britain, one of the political party is this —

Potter Stewart:

Is the Labor Party.

Milton Kramer:

Is the Labor Party itself.

Potter Stewart:

I understand that.

Milton Kramer:

Now, they use the money to support their own candidates and they have different rates of dues for those who do not want to have their money used for political purposes, but that’s by statute.

Potter Stewart:

I’m just asking you that — how — whether it’s difficult or has been — has proven difficult to do —

Milton Kramer:

Oh, but that’s —

Potter Stewart:

— doing it?

How about the lobbying activities?

Milton Kramer:

I know of no trouble about lobbying activities.

Unions are not restricted to lobbying activities.

Potter Stewart:

In Great Britain —

Milton Kramer:

What —

Potter Stewart:

I’m talking about Great Britain.

Milton Kramer:

Yes, in Great Britain, because they are not restricted because they don’t need lobbyist.

The members of the legislature themselves are their lobbyists.

They don’t have much in the way up lobbying except by the members of the House itself.

And incidentally, Mr. Justice Stewart, it would —

Potter Stewart:

It’s not a comparable situation (Voice Overlap) —

Milton Kramer:

Not a comparable situation.

Potter Stewart:

— your point?

Milton Kramer:

And incidentally, the amount that’s contracted out is about — is usually one shilling per year, sometimes two shillings per year.

John M. Harlan II:

Are you going to say anything about the welfare funds and the insurance funds?

Milton Kramer:

I’d like to but I see two lights here.

I —

Earl Warren:

You have a moment to do it.

Milton Kramer:

Yes.

Another one of the things that you — that that — in other words, the grounds of the injunction is that one of these two unions, all unions but two were dismissed from the case because none of the plaintiffs was represented by any of the others.

One of these unions had a death benefit fund and they are — the unions could not collect anything from the plaintiffs, so long as they have this death benefit fund.

Now, this death benefit fund is a fund that varies in amount depending on how long a person has been a member.

And when he dies, his wife or estate, is given the amount of — it goes up as high as $250.

Now it also — it isn’t just how long you’ve been a member, it’s how long you have continuously been a member and so it serves two functions.

First, it serves a function of having some quick money readily available for the family of a railroad employee who dies and secondly, it reduces the expenses of collecting dues because there’s an inducement for people to keep their dues current because the longer they are continuously been a member, the more their death benefit will be.

Now it is held that this is an improper expenditure of union dues under a union-shop.

These are things that unions have done since time immemorial.

In fact, some of the unions were organized with a very first as paternal beneficial associations to have death benefits for the families of employees who died.

There was a reason that some of the unions were created and they only at later engaged in collective bargaining.

This held that this is not a proper union activity for people who don’t want to belong to the union.

This is something unions have done and since they were established, it is not taking away; it’s not depriving anybody of any constitutional right.

Nobody said he objected to death benefits.

It was put to them in terms of, do you want to be ordered to take insurance with so and so — that company and they said, “No, I’d like to pick my own company to buy insurance.”

That’s the only evidence that this is opposed by any of the plaintiffs.

None of them said they were opposed to union paying death benefits to the families of deceased members.

And if any of them did — if any of them felt that way, none of them advised the union that he didn’t want his money spent that way and he couldn’t advice the union that he doesn’t want his money spent that way because he hasn’t given any — the union any money to spend.

Earl Warren:

Very well.

Whiteford S. Blakeney:

Mr. Chief Justice —

Earl Warren:

Mr. Blakeney.

Whiteford S. Blakeney:

— may it please the Court.

I would first like to summarize briefly, if I may, just what it is that the record in this case establishes.

It’s clear first that these plaintiff employees have been notified by the defendant unions and by their employer, the Railway Company that they will be discharged from their jobs of long standing unless they pay money to the defendant unions.

It’s further established that this money will, in part, be used for political purposes unrelated to collective bargaining.

The plaintiff employees have gone upon the witness stand and have stated that they are deeply opposed to money being taken away from them by compulsion against their will and used for political purposes as to which they have no opportunity of choice or decision.

Now this, we submit to this Court, is a double wrong of major import, the taking of money from people against their will as a condition of working and the using of that money to put men into the offices of Government.

Arthur J. Goldberg:

[Inaudible] is this, one candidate says, “I believe it is compulsory arbitrations upon the railroads, the only way you could [Inaudible] — that have a political interest.

Now, another candidate says, “I believe in free collective bargaining.”

Is that the political purpose under [Inaudible] collective bargaining in that campaign?

Whiteford S. Blakeney:

I must admit, Mr. Justice Goldberg, that there is of course often difficult question as to what is political in nature.

However, this Court in the Street case used the phrase political purposes throughout and certainly to contribute money directly to the campaign of a candidate to get him elected to office is a political purpose and it is established in this case that that is what is done with this money.

Arthur J. Goldberg:

What was your answer be directly to the question that I have put?

Whiteford S. Blakeney:

If one candidate is [Inaudible]

Arthur J. Goldberg:

Let’s assume [Inaudible] campaign was [Inaudible] arbitration was the — voluntary arbitration to your collective bargaining.

Whiteford S. Blakeney:

And one candidate espoused it and —

Arthur J. Goldberg:

One candidate espoused that and [Inaudible]

Whiteford S. Blakeney:

My position, sir, would be that if the unions took money involuntarily from the employees and said, “We are going to put your money on this candidate, not that candidate.”

And the employee has no opportunity to dis — to express or decide which candidate he wants it on and the union officials put it on one, that is an expenditure of political purposes condemned by the Street decision.

Earl Warren:

Supposed I’d say ma — Suppose — oh, pardon me, pardon?

Excuse me.

Earl Warren:

I’m just going to say, suppose that same issue was before the Congress and some money was spent to support the free bargaining, would that be political?

Whiteford S. Blakeney:

Not in electing a Senator or a —

Earl Warren:

No, but no.

Whiteford S. Blakeney:

— or Congressman.

Earl Warren:

Appearing before the Congress and advocating free and collective bargaining as opposed to compulsory arbitration.

Whiteford S. Blakeney:

This would be a closer question, I think, Your Honor.

A closer question and might have to be as Mr. Justice Frankfurter once expressed it, decided by litigated elucidation.

But at any rate sir, there are unquestionably in this case expenditures undeniably political, undeniably so.

The jury —

Hugo L. Black:

But I suppose that this one man — this man who said, I will vote this way on this one issue.

He’s running for an office, there’s many other things, he shouldn’t have — doesn’t express himself on that, the —

Whiteford S. Blakeney:

That’s true, sir.

Hugo L. Black:

And the man might be against — I’ve had that extreme that of myself and realize it, a man might be — for a man’s expression of views on labor one way or the other and yet be against him strongly.

Whiteford S. Blakeney:

Indeed, sir.

John M. Harlan II:

I have the experience that.

Whiteford S. Blakeney:

Indeed, sir, but the point is that the jury found and it is established here that that money was used to elect certain candidates to influence elect — influence elections to public office and also to effect certain legislation and defeat other legislation and at least some of that is political purposes.

That I think it cannot be denied.

Now —

Hugo L. Black:

Well, I always have and I do when I was engaged in political — in a campaign for office, I was engaged in what most people thought about as a political campaign.

Whiteford S. Blakeney:

That certainly the general idea, sir.

Hugo L. Black:

[Inaudible]

Whiteford S. Blakeney:

Yes, sir.

Now, I was saying that to take the money by compulsion, to use it for such purposes, is a major erosion both of individual liberty and a free government, and it is therefore indeed an import of area.

William J. Brennan, Jr.:

Now, you – [Inaudible] the injunction is [Inaudible] an injunction against — based on such a party, an injunction by way of remedy against the payment of dues.

What do you do with what we said in Street about that?

Whiteford S. Blakeney:

I recognize that I must come clearly to that and I will in detail, Your Honor, but at this moment may I simply say there is indeed language in Street that looks in the direction of refusing such injunction as we have here.

There is other language in Street that looks in favor of what we have here and most important of all, Your Honor, each and every defect that you pointed to for reversing the Street judgment is corrected in this judgment, each as I will try to show.

Now, the jury in this case and has already been noted, this case unlike Street, was not litigated upon stipulations of evidence but upon the presentation of evidence and testimonies subject to examination and cross examination in the ordinary manner.

And the issues therefore were decided not by the Court but by a representative jury upon issues submitted to them by ordinary procedure.

I’ve mentioned that merely in passing.

The evidence consisted of both testimony and the exhibits.

The exhibits for example, Your Honors, included many pages setting forth by date, by name, by amounts, hundreds of thousands of dollars contributed by agencies of the unions to political candidates.

And it includes for instance —

Byron R. White:

[Inaudible]

Whiteford S. Blakeney:

By these petitioners directly to the candidates, the evidence does not so show rather it —

Byron R. White:

[Inaudible]

Whiteford S. Blakeney:

For publications, indeed sir for candidates through other agencies and that’s what I was about to call your attention to in response to your question.

Through these unions, put money into the AFL-CIO which in turn put money into COPE, the Committee for Political Education so called.

These unions also put money into —

Byron R. White:

What you’re saying is — are you sure you’re talking about money and either these petitioners or the AFL-CIO is not dues?

Whiteford S. Blakeney:

All through dues I’m talking about, Your Honor, compulsory dues, nothing else.

Arthur J. Goldberg:

Mr. Blakeney, you’re talking right about the capital contributions, these railroad contributions made to the AFL-CIO for their affiliations.

Whiteford S. Blakeney:

I am sir, so far as AFL-CIO is concerned which AFL-CIO in part took and gave to COPE which COPE in turn took and gave to political candidates.

And also to RLPL through RLEA which are railway labor organizations, Railway Labor Executive’s Association, Railway Labor’s Political League, likewise made these contributions these exhibits here in the back of my brief, lists these expenditures by RLPL.

Byron R. White:

[Inaudible]

Whiteford S. Blakeney:

They were except that my adversaries still contend, as Your Honors note, not formally because they are too late to contend it formally.

It’s settled by a jury verdict and by lower court —

Byron R. White:

[Inaudible] that’s direct contribution to a candidate.

Whiteford S. Blakeney:

Yes, sir, pardon?

Byron R. White:

[Inaudible]

Whiteford S. Blakeney:

That’s true, sir, but the jury filed against him on that.

He’s at war with the record.

Yes, sir.

Byron R. White:

Was that [Inaudible]

Whiteford S. Blakeney:

The other admits he did pay money to print its publications for political purposes.

I mean, direct out of his treasury, direct.

But the candidates for political office got it, so the jury found through these other agencies and believe me it was the most difficult matter to trace.

And — but all that is resolved by the trial, if the Court please, he argued to the judge before it went to the jury that the evidence wouldn’t sustain such a finding.

After the jury — he argued to the jury they shouldn’t find it after the jury verdict he contented it should be set aside.

He argued then to the Supreme Court of North Carolina that the evidence didn’t sustain it.

All those courts went against him on that subject.

All those tribunals went against him and that’s settled.

He cannot herein this Court, I take it, argued that the evidence doesn’t sustain the verdict.

Rather we’ve got two questions before us now as I understand.

His first point is that our cause of action is defeated any how, no matter the finding, defeated because we have insufficiently advised the unions as to what causes our candidates they espoused and we opposed.

Now, the first answer to that, Your Honors is that in Street, the plaintiffs were found to have a valid cause of action and they made known their opposition in no different sense than what these plaintiffs here have.

Furthermore, if the Court please as Mr. Justice Stewart mentioned, how can these plaintiffs, how could they have made known their opposition any more specifically because the record is replete that these unions don’t even notify their own local officials as to who they support and what causes they support and these local officials testified.

Again and again, I don’t know what they do with the money, whom they support and whom they oppose, how then could our class, adversary litigants have known?

And what must we do about notifying them other than as this Court said in a Street, through this litigation let them know that we oppose and they went on the stand and they said, “We oppose”, we’ve got their testimony quoted considerably in our brief and I submit it is pointed, positive, repeated and rather eloquent.

They say, when we — when money of ours is used to elect people to government, we think we ought to say, “Do we want our money to go to this man or to that man,” and not somebody else make that decision for us.

Arthur J. Goldberg:

Mr. Blakeney, are you relying solely here to have it on political grounds the abandonment that you present — which you made below unless there are [Inaudible] to the jury findings that upon the — these contributions for legislative purposes [Inaudible] the collective bargain and used the money [Inaudible]?

Whiteford S. Blakeney:

No, sir.

I contend that —

Arthur J. Goldberg:

Could you say a few words about that, in efficient to political matters with justifications.

Whiteford S. Blakeney:

Well, Your Honor, I don’t know that those can be excluded from being political matters.

I don’t know that the — that the pushing for a legislation is not a political matter.

The jury found —

Arthur J. Goldberg:

I thought you [Inaudible]?

Whiteford S. Blakeney:

No sir, no sir.

Whiteford S. Blakeney:

I say that I don’t try to define what all is political matter.

Arthur J. Goldberg:

Under the special powers [Inaudible]?

Whiteford S. Blakeney:

Yes, sir.

Arthur J. Goldberg:

The jury means special findings [Inaudible]

Whiteford S. Blakeney:

Yes, sir.

Arthur J. Goldberg:

And those special findings were made with three or four subjects.

One is the opposition for legislation.

Whiteford S. Blakeney:

Yes, sir.

Arthur J. Goldberg:

Now, you would say that that’s political and unrelated [Inaudible].

Whiteford S. Blakeney:

I do now so contend.

Yes, sir.

Arthur J. Goldberg:

What if the legislation for a full proof [Inaudible] related to collective bargaining in your State?

Whiteford S. Blakeney:

I do not — to seek to pass the law on that it seems to me would not — would be political matters.

Now I can —

Arthur J. Goldberg:

[Inaudible] which is passed on some of them [Inaudible] definitely to collective bargaining?

Whiteford S. Blakeney:

I do not know that that could be said to be unrelated to collective bargaining.

The jury found, Your Honor, not about this and that hypothetical case, they said its been shown in this case to us that this unions take this money and they do seek legislation which is unrelated to collective bargaining and this Court said the same in Street.

Arthur J. Goldberg:

But your position [Inaudible].

Whiteford S. Blakeney:

Yes, sir.

Arthur J. Goldberg:

Your position would be, I take it, the question that I asked you was the — would you [Inaudible]?

Whiteford S. Blakeney:

I do not say that, sir necessarily —

Arthur J. Goldberg:

Do you —

Whiteford S. Blakeney:

I say that —

Arthur J. Goldberg:

[Inaudible]

Whiteford S. Blakeney:

I did not, sir.

That particular legislation was not up in this case.

Arthur J. Goldberg:

Is the [Inaudible]?

Whiteford S. Blakeney:

No, sir.

They use it as an argument just as Your Honor is now suggesting.

The jury said in effect their verdict dismissed certainly it is, whatever may be cases of particular pieces of legislation whether they are political or not at any rate in this case there has been shown matters that are political, that money is being used for and these matters that have been shown to us are unrelated to collective bargaining and —

Hugo L. Black:

Suppose they are related to collective bargaining, are you saying that because political matters’ legislations are related to political — collective bargaining, are you agreeing that that couldn’t be political?

Whiteford S. Blakeney:

No sir, I’m —

Hugo L. Black:

[Inaudible] political part, we’ve had in this country from the beginning have been over that issue.

Whiteford S. Blakeney:

I do not say that, sir.

All I say is what this Court said in Street.

I merely use this, as far as this Court win.

This Court did go so far as to say that political matters that are unrelated to collective bargaining, it cannot take money from a man and spend it on and against his will.

Now, we’re —

Hugo L. Black:

Suppose — suppose this law was one which provided that members of the Chamber of Commerce couldn’t get a job unless he paid dues to the courts of Chamber of Commerce dues, there’s a lot of members of the Chamber of Commerce [Inaudible].

What would you say about that law?

Whiteford S. Blakeney:

I think it’d be political.

Hugo L. Black:

Do you?

Whiteford S. Blakeney:

Now, if the Court please though —

Arthur J. Goldberg:

Exactly what’s political about death benefits?

Whiteford S. Blakeney:

About death benefits?

Death benefit is a corner of this case as a case that has never been much argued or discussed.

Then I rest nothing upon that sir.

Arthur J. Goldberg:

[Inaudible] as the basis to justify the injunction?

Whiteford S. Blakeney:

If this Court should come to the conclusion that that portion of the ca — of the judgment should be eliminated, I say that it can be eliminated without any effect upon the real thrust of this judgment.

Now may I come quickly to the judgment because as Mr. Justice Brennan has suggested, that is what I must meet.

I do say first about this business of notifying the unions.

We did — what was done in Street and they had a valid cause of action and our notification couldn’t go beyond that as a factual matter, but now on the judgment, what does this judgment do?

This judgment does not enjoin the union-shop generally at all.

Here are the defects in the judgment that the Court found in Street, the Court said first it’s defective because it’s a class judgment.

Here, there is no element of class judgment.

It was rigorously eliminated by the trial court.

Nobody purports to benefit from this judgment except people who are active litigants.

What else did the Court say was wrong with the Street judgment?

And I’m quoting now from Mr. Justice Brennan’s opinion, page 18 of my brief, I will read just a sentence, “Restraining the collection of all funds, sweeps too broadly,” that on down, “the prohibition is absolutely against the collection of all funds.

The complete shut off of this source of income defeats the congressional plan and so forth.”

Whiteford S. Blakeney:

We also think that a blanket injunction against all expenditures of funds for the disputed purposes and so forth would not be proper.

Now, Your Honors, the judgment before you does none of those things.

This is not a judgment restraining the collection of all funds from these plaintiffs.

It is not a prohibition absolute against the collection of all funds from these plaintiffs.

There is no complete shut off of union funds from these plaintiffs and there’s no injunction against expenditure of anything.

In other words, under this judgment, the unions are left free to collect any and all amounts authorized by the union-shop agreement from voluntary employees and they are left free to collect any and all sums related to collective bargaining from all employees covered by the contract voluntary and dissenting alike.

William J. Brennan, Jr.:

[Inaudible] — I gather this is before the [Inaudible].

Whiteford S. Blakeney:

Yes, Your Honor.

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

That’s true but the —

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

Surely.

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

That’s right.

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

That’s true, sir.

That’s part of the judgment.

That, Mr. Union, if you will come and show what part is related to collective bargaining, what parts you use for political purposes, and you alone know, you alone have the facts and information necessary to —

William J. Brennan, Jr.:

Now, do you think that is — do you think that – is that [Inaudible]?

Whiteford S. Blakeney:

Your Honor, all the phrases that I just quoted you which this — which Your Honor mentioned as being the vice of the Street judgment, each and everyone is absent in this judgment.

Now the dividing — let me touch this.

The dividing of what’s related to collective bargaining and what’s political, the unions in the first instance must do that.

They only — they alone know what they do with the money, they have the facts and the information as to how they use it, what part they use for political, what part they use for collective bargaining.

They should make a showing on that in the first instance.

As Mr. Justice Brennan writing in the case of United States-Campbell said, it is a general principle based in fairness that the law does not place upon a party the burden to proving facts which are peculiarly within the knowledge of the his adversary and our North Carolina decisions are positively to the same effect.

And this dividing of what is related to bargaining and what isn’t, were suggested by this Court in the United States against CIO which as Your Honors will remember was a case involving union publications for political purposes.

And there, this Court said, if minority or dissent of protection is intended to be sufficient for securing this to permit the dissenting members to carry the burden of making known their position and to relieve them, relieve them of any duty to pay dues or portions of them to be applied to the forbidden uses.

And the United States Government Industry case filed a brief in which it approved the same idea.

Arthur J. Goldberg:

Mr. Blakeney, [Inaudible] it enjoins them on collective bargaining which is [Inaudible], isn’t that the words of the injunction (Voice Overlap) —

Whiteford S. Blakeney:

As (Inaudible) — as defined by the jury issues the judgment says.

Arthur J. Goldberg:

Does the judgment — however does not in its [Inaudible].

Whiteford S. Blakeney:

No, it refers to the issues which do talk in terms of politics.

Arthur J. Goldberg:

Now, looking to the records, I think that issue [Inaudible].

I figured that was [Inaudible] as you often have this problem, [Inaudible] based on contributions involving the party.

And I’d like to ask if you whether — do you regard that as the — involves this injunction.

This public [Inaudible] we’re referring to is broad [Inaudible] —

Whiteford S. Blakeney:

I —

Arthur J. Goldberg:

[Inaudible] under this injunction what have you, enjoining [Inaudible] is unrelated to collective bargaining.

Whiteford S. Blakeney:

I think it must be determined in closed cases, Your Honor.

In difficult cases, it must be determined by a court.

I know no other way to determine it whether that falls within what the jury decided here.

Arthur J. Goldberg:

What would you refer in the cases often [Inaudible]?

Whiteford S. Blakeney:

That some of it was indeed remote from collective bargaining.

They spend it for TVA, juvenile delinquency, Hells Canyon, disclosure of inmate of FBI files, enemy alien assets, and pay television etcetera.

Arthur J. Goldberg:

And this would be if what I think [Inaudible]

Whiteford S. Blakeney:

Yes, sir.

Arthur J. Goldberg:

And would you [Inaudible] general characterization, the expenditures are not based under your [Inaudible]?

Whiteford S. Blakeney:

Some of it certainly would, Your Honor.

But political purposes and whatever is to be comprehended within that has got to be worked out of course in each case.

All I am saying Your Honors is, that money here was used for political purposes undeniably to some degree.

Now let the union show to what degree.

The burden should be on them.

Now, just one more word if the Court please, this Court, of course, has no solicitude or concern for the union-shop agreement insofar as it accomplishes as this Court itself held insofar as it accomplishes an unlawful purpose.

That is the taking of money against an employee’s will and using it for political purposes.

What this Court was concerned about in the Street, as I understand it, and the reason this Court set the Street judgment back as I understand it was this.

That in working the unlawful operation of the union-shop agreement, there must not be interference with the union-shop agreement functioning in its collective bargaining area, in its proper spheres.

There, in other words, the Court considered that the judgment there perpetually enjoining, sweeping broadly, denying all collection of any nature was an interference with the bargaining function of the union.

And therefore, sent that — reversed that judgment and undid it.

And I am saying Your Honor, that the judgment here touches and inhibits the union-shop agreement only in its unlawful sphere, and not at all in its other operations.

Now suppo — our adversaries, Your Honor, would apparently have these plaintiff employees bring suit against these unions, apparently which they term, if the Court please, sometimes, somewhere, someday by protected litigation, any expenditure of a thousand times what’s involved, you may restrain the expenditure of some part of this or you make it restitution, but the compulsion, you must now submit to though it’d be unlawful.

Whiteford S. Blakeney:

It’s held unlawful, nevertheless submit to it.

Pay all, now.

This, I submit to the Court, it should not be.

If a judgment is worked out so that the unlawful part is separated from the lawful part, then the unlawful part can and should be restrained.

And if we have to sue every time Your Honor, that would be perpetual litigation.

Each case would resolve nothing except the amount of money involved in that case only.

And the employee in order to maintain the right of keeping his money from going for political purpose would have to sue again and again renewed, successively, perpetually to maintain that right.

Now, this Court has said that this area is one of the utmost gravity.

The issues underlying here are indeed important ones.

They are vital, not only to individual liberty, if the Court please, they are crucial to the integrity of the Government itself for if arrangements are established by which collective representatives can require employees to pay money as a condition of working and can then take that money and elect whom they wish to public office and enact laws as they will, then we may be on the road toward distinction of important individual liberty and free government as well.

It may — it serves not, if the Court please, to declare this taking and using for political purposes to be unlawful.

It avails not to declare it unlawful, if no meaningful, practical remedy is granted.

And its purpose can still be accomplished and it can be still accomplished and will be accomplished unless injunction avails.

And the injunction here, we do submit to Your Honors, is one that is shaped to avoid the very difficulties that this Court observed and pointed to in the Street case.

Arthur J. Goldberg:

Did the Street say the exemption [Inaudible]

Whiteford S. Blakeney:

No, sir.

Arthur J. Goldberg:

[Inaudible] reconsidered?

Are you asking — are you asking the Court now that we consider opposing about the remedy that should be provided that [Inaudible]?

Would you then on that extreme?

Whiteford S. Blakeney:

I am not, sir.

Arthur J. Goldberg:

How do you read the language [Inaudible] the court has said flatly, “We think that injunction was mainly enforcement [Inaudible] and therefore plainly not [Inaudible] appropriate in violation of the Act expressly on the Government.

There was a [Inaudible] remedy.

Whiteford S. Blakeney:

But here, Your Honor, we are not restraining the collection of all funds.

What the Court was inveighing against was restraining the collection of who owe funds from these appellees.

What the Court was inveighing against is the prohibition absolute against the collection of all funds.

The complete shut off of income from these plaintiffs.

We don’t shut you.

This judgment doesn’t shut off income from these plaintiffs.

Arthur J. Goldberg:

Wasn’t the Court dealing with the — restraining the enforcement of the union-shop agreement with plaintiffs’ [Inaudible]?

Whiteford S. Blakeney:

No, sir.

Whiteford S. Blakeney:

That’s — I wanted to advert to that for just a moment.

Your Honor raised that earlier in Mr. — with Mr. Kramer. Nothing except monetary payment is involved here at all.

The Railway Labor Act, the statute, the union-shop agreement both have to do only with monetary payment compulsion, no other kind of compulsion.

This is treated in a — on the other last of my brief.

They conceded in the Supreme Court of North Carolina in their brief, which I there refer to that they make no complaint about anything here and we make no complaint about anything here except the monetary matters.

That’s only compulsion involved.

Hugo L. Black:

If it — does injunction run against the payment of dues by anyone except this individual people —

Whiteford S. Blakeney:

No.

Hugo L. Black:

— who had expressed the opposition to having their money used for this purpose.

Whiteford S. Blakeney:

Injunction runs in behalf of no one else.

Hugo L. Black:

How many are they?

Whiteford S. Blakeney:

Some 20 odd, sir.

Hugo L. Black:

It doesn’t run against all.

It’s not a blanket running against all.

Whiteford S. Blakeney:

It is not — it is not for all employees nor for a class.

It is only —

Hugo L. Black:

And even — and even as to them, as I understand it, it is provided that if the Court – if the union developed and shows the Court how much they’re spending for political purposes, they let them pay the rest?

Whiteford S. Blakeney:

That is right, sir.

Tom C. Clark:

How much for the dues amount?

Whiteford S. Blakeney:

The dues, sir, have varied.

I do not actually know the amount now but I believe it’s in the neighborhood of $5.

It amounts to $8 million per year, their record shows in the case of one of this union.

Tom C. Clark:

[Inaudible]

Whiteford S. Blakeney:

Months, sir.

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

Yes sir, that’s what (Inaudible).

Byron R. White:

[Inaudible]

Whiteford S. Blakeney:

The injunction here, Your Honor, I’m not sure I understood you; the injunction here does not restrain anything about expenditure or whatever.

The unions are totally free under this order to spend the money they get for any purpose they may see fit to as long as they don’t run afoul of some law like Federal Corrupt Practice Act, not relevant here.

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

Your Honors eliminated the class aspect.

William J. Brennan, Jr.:

Well — no, that is not the sentence, the [Inaudible] to that opinion has to be read in the context [Inaudible] — exactly like this with a few plaintiffs involved and where — what you said that related to the remedies that those few plaintiffs in their individual interest would be entitled.

Whiteford S. Blakeney:

True, Your Honor, that’s one of the defects you find in the judgment, class action.

Then you went on to enumerate the other defects about the injunction sweeping too broadly and (Inaudible) —

William J. Brennan, Jr.:

Well, you dissent — are you suggesting that the opinion [Inaudible] are you suggesting of the opinions are — absolutely reject the class action, aspect of them, that both of the injunctions [Inaudible] class action rather than as individual plaintiffs?

Whiteford S. Blakeney:

Oh, no, sir.

I’m not saying that at all.

I say that you first refer to the class action defect and you send it back, item one on that account.

Then you referred to the aspect that it restrained all collections from the plaintiffs.

William J. Brennan, Jr.:

That’s right, [Inaudible]

Whiteford S. Blakeney:

Yes, sir.

And you send it back for that reason and I’m saying this judgment has none of those defects.

William J. Brennan, Jr.:

Well, except for the injunction, [Inaudible]

Whiteford S. Blakeney:

But the second part —

William J. Brennan, Jr.:

[Inaudible] it does have the state court —

Whiteford S. Blakeney:

Your Honor, the sec —

William J. Brennan, Jr.:

[Inaudible] but nevertheless the practical —

Whiteford S. Blakeney:

Your Honor, the second paragraph is as much a part of the judgment as the first paragraph.

And the second paragraph says that if a union would tell us what parts, the collective bargaining, we must pay it and will pay it.

William J. Brennan, Jr.:

I appreciate that argument but the fact is nonetheless [Inaudible]

Whiteford S. Blakeney:

They have put up bond and have said to the union, “Now, tell us what you want for collective bargaining and we’ll pay it.”

William J. Brennan, Jr.:

[Inaudible]

Whiteford S. Blakeney:

No, sir we’re not paying dues but we’re ready to pay.

Hugo L. Black:

They’re not getting —

Whiteford S. Blakeney:

Collect —

Hugo L. Black:

They are not getting any protection that they would get from having their money used for political purposes they’re against either, are they?

Whiteford S. Blakeney:

No, sir.

Hugo L. Black:

The only way they could get it is the way the Court did it, isn’t it?

Whiteford S. Blakeney:

There is no other way.

As a practical matter, there is no other way.