Government & Civic Employees Organizing Committee v. Windsor

PETITIONER:Government & Civic Employees Organizing Committee
RESPONDENT:Windsor
LOCATION:Congress

DOCKET NO.: 423
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 353 US 364 (1957)
ARGUED: Apr 29, 1957 / Apr 30, 1957
DECIDED: May 13, 1957

Facts of the case

Question

  • Oral Argument – April 30, 1957
  • Audio Transcription for Oral Argument – April 30, 1957 in Government & Civic Employees Organizing Committee v. Windsor

    Audio Transcription for Oral Argument – April 29, 1957 in Government & Civic Employees Organizing Committee v. Windsor

    Earl Warren:

    Number 423, Government and Civic Employees Organizing Committee, CIO, an Unincorporated Association, et al., Appellants, versus S. F. Windsor et al.

    Mr. Shadur.

    Milton I. Shadur:

    Mr. Chief Justice, may it please the Court.

    This case is an appeal from a judgment of the three-judge District Court for the Northern District of Alabama, Southern Division.

    That Court refused to enjoin the enforcement of the Alabama Solomon Act against the attack of the appellants here, claiming that that Act violated the Fourteenth Amendment.

    Now, that Act is set out at pages 2 and 3 of our brief.

    And with the Court’s indulgence, I would like to call attention to its most relevant provisions which began with the first section.

    The first section defines a labor union —

    Earl Warren:

    Where is that to be found, please?

    Milton I. Shadur:

    Pardon?

    Earl Warren:

    Where is it —

    Milton I. Shadur:

    At pages 2 and 3 of our brief —

    Earl Warren:

    Of you brief?

    Milton I. Shadur:

    — for convenience.

    A labor organization is defined as any organization of any kind in which employees participate for the purpose of dealing with one or more employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work.

    Then, Section 1, goes on to define public employee briefly as any person who is compensated in whole or in part by the State or by any state agency.

    Now, Section 2, which is the key Section of this statute, provides very simply that any public employee who becomes or remains a member of a labor union or labor organization or who participates in that union automatically forfeits all employment rights, benefits, and privileges which he has as a public employee.

    Section 3, to which I’ll refer a little later, specifically excludes from the operation of the Act, all teachers, all employees of the State Docks Board, those are people who work for the railroad which is owned and operated by the State, and that further excludes all city and county employees.

    Now, the issues in this case, as we have stated them, are whether consistently with the Fourteenth Amendment, a State can constitutionally bar a state employee.

    In this case, a man who is a retail liquor sales man in a state-owned and operated liquor store, from his job and any other public employment solely because he belongs to a labor union, whether the State can compel that employee in order to retain his employment to resign his membership in that organization because one of it’s ultimate purposes is the attainment of collective bargaining relationships with Government, with the people with whom it deals when and only when the State permits such collective bargaining to be carried on.

    Whether the Fourteenth Amendment permits the exercise and protects the exercise by that state employee of his rights of voluntary association, his rights of free speech, when those rights are exercised through his membership in a labor union.

    And finally, if and only if all these questions are determined against us, whether the State can limit that prohibition so that it excludes that prohibition from city employees, county employees, employees who are already organized in the labor unions.

    Now, the defendants don’t join issue with us on these issues.

    They contend that the very nature of this union is such that collective bargaining is an inherent purpose which it says, cannot be abandoned voluntarily except through certain technical procedures which it says have not been followed that a person who belongs to this union can’t give the State of Alabama his undivided allegiance and that the State can prohibit membership in point of union in order to ensure that undivided allegiance.

    Felix Frankfurter:

    Mr. Shadur.

    Milton I. Shadur:

    Yes, sir?

    Felix Frankfurter:

    Sorry to interrupt you very early, but I would be able to follow your argument and meet the argument of this case much more understandingly if you’d be good enough to answer one or two questions as they’re not clear in the –-

    Milton I. Shadur:

    Yes, Your Honor.

    Felix Frankfurter:

    As I understand the decree from which we are appealing in the light of the opinion of the District Court of Judge Reed’s amended rules.

    It didn’t go to the merits.

    Felix Frankfurter:

    It didn’t go to the issues that you’ve just summarized at all, as I understand it.

    It adhered to the earlier decision which came here in which that Court held that it can’t tell what the statute means until the state court has elucidated its quote and meaning that that which the Alabama Supreme Court decided in 262 Alabama, merely said that this is — within the terms of the statute, but it didn’t tell you what the term of the statute — it didn’t — it’s within the range of the statute, but it didn’t tell you what the contents are that brings somebody within.

    Would you please tell me what all that means?

    Milton I. Shadur:

    Well, Your Honor, as I understand the —

    Felix Frankfurter:

    In other words, what they say, is it premature they’re still holding the case?

    You get a constructive statute, non-concept of state — the Supreme Court of Alabama will so construe it that to take away any claim of unconstitutionality?

    Milton I. Shadur:

    No, Your Honor, that’s not the way I read the District Court opinions.

    The first time that the matter came before the District Court, it did not have the benefit of the judgment of the Supreme Court of Alabama.

    At that point, it withheld jurisdiction.

    Now, however, there has been a specific adjudication by the Supreme Court of Alabama, not as a matter — not only as a matter of language, but a specific holding on the identical record which is before this Court which was incorporated by reference before the United States District Court.

    Felix Frankfurter:

    Well, then, tell me what that sentence mean.

    After the federal reading and consideration of the final decree of the Circuit Court of Montgomery County in equity and of the opinion of the Supreme Court of Alabama, here before mentioned, it is clear to us that the Alabama Court says not construed but the — the Solomon has entered in such a manner as the arraignment on constitutional.

    Of course, we cannot assume that the state court will ever so construe such statute.

    What does that mean?

    Milton I. Shadur:

    As I read that, Your Honor, that’s simply saying that we have seen and read the application of the Solomon Act to these people, the plaintiffs in this case.

    But so reading that application, we do not find that to be an unconstitutional application.

    Felix Frankfurter:

    Now, what has the Alabama Supreme Court said the statute means?

    Milton I. Shadur:

    The Alabama Supreme Court has said and its judgment is what speaks for the Alabama Supreme Court.

    It has a firm, a judgment below of the Circuit Court of Montgomery County which held that plaintiff union, its activities and its members all as described in the complaint are subject to the provisions of the Solomon Act.

    Felix Frankfurter:

    But does that tell me what the provisions of Solomon Act are as construable by a court?

    Milton I. Shadur:

    Yes, Your Honor.

    It’s near —

    Felix Frankfurter:

    About this morning, any instance and if you couldn’t tell from a statute what it means, you have to get the court to tell you.

    Milton I. Shadur:

    But we now know, You Honor, exactly what the statute means because we can’t —

    Felix Frankfurter:

    Well, then, you don’t know more than I do, known outside where the Alabama Supreme Court opinion.

    Milton I. Shadur:

    I agree that the Alabama Supreme Court opinion does not tell us, but the Alabama Supreme Court judgment does and it’s the judgment –-

    Felix Frankfurter:

    Where is that judgment?

    Milton I. Shadur:

    — which is determinative here.

    Felix Frankfurter:

    Where is that?

    Milton I. Shadur:

    The judgment is a judgment of affirmance.

    Harold Burton:

    That’s the one on page 30 of your —

    Milton I. Shadur:

    At page —

    Harold Burton:

    Beginning on page 30 of the Appendix B of your statement of jurisdiction?

    Felix Frankfurter:

    No, that thing — (Inaudible)

    That — Mr. Shadur says it doesn’t tell us what the statute means.

    Milton I. Shadur:

    In that paragraph —

    Felix Frankfurter:

    Of the Circuit Court judgment is on page 28 of your —

    Milton I. Shadur:

    Page 144, Your Honor.

    Felix Frankfurter:

    Of the record?

    Milton I. Shadur:

    Of the record.

    Felix Frankfurter:

    144.

    Milton I. Shadur:

    It gives us the judgment of the Circuit Court of Montgomery County.

    That’s a judgment, which in the second paragraph, after holding that the Court had jurisdiction.

    States and holds that the statute of Alabama applies to complainant.

    That’s the plaintiff union in this case, its activities and its members all as described in the complaint.

    We have then a fact situation which has been presented to the Court.

    The Court makes a ruling that under that fact situation, this organization is a union, a labor union, a labor organization within the meaning of that statute.

    The case then comes to the Supreme Court of Alabama and the Supreme Court of Alabama affirms that judgment.

    And that, Your Honor, is — what we say is the binding application of the Solomon Act to our party here.

    Felix Frankfurter:

    I understand that, but I still don’t know what it is that you’re forbidden or not forbidden that you’re required to do or required not to do under the Solomon Act.

    And if the strange thing to have neither the Supreme Court of Alabama tell me that nor the District Court in which Judge Reed is a senior member.

    Milton I. Shadur:

    Your Honor, there is one thing that is clear, the complex of activities that this plaintiff union has engaged in as described in the complaint and as found in the record is in fact prohibited by the Solomon Act because that’s an authoritative construction by the Alabama courts.

    Felix Frankfurter:

    Now, that’s an awful — awful vacation undefined, for me, undefined scope of an injunction.

    Milton I. Shadur:

    Your Honor, I can’t tell you whether I had this organization done two things less.

    It might not had been subject to the Act, but the thing that is certain from this record is that the things which it did have been held subject to this Act and we say that an organization which has done these things cannot be an organization in which membership is prohibited for all state employees as has been done by the Solomon Act.

    Felix Frankfurter:

    And I tell from this record — and I tell from this record what particular thing carved out from your activities if you cease to do would still be allowed in the Solomon Act and what — be held by the Supreme Court of Alabama not to be within it?

    Milton I. Shadur:

    No judge, but that’s not relevant, Your Honor.

    Felix Frankfurter:

    Therefore — therefore, do I understand this then, that it’s your burden to show that no single thing in that — in your activity may be prohibited by the Alabama Legislature, is that right?

    Milton I. Shadur:

    Yes, Your Honor.

    I think that’s correct.

    Felix Frankfurter:

    Your burden then is, you — you say this means to you that everything that you set forth in your complaint seeking to enjoin the Act is not — is non-enjoinable, because if something in it is enjoinable and that hasn’t been carved out, non-concept but that’s enjoinable, and therefore, your complaint is all good.

    I must state, it’s a very — it’s a very obscure basis on which to enjoin the state Act.

    Milton I. Shadur:

    I agree, Your Honor that the —

    Felix Frankfurter:

    I’m not talking about constitutional law.

    I’m talking about the respect due by a District Court in enjoining state legislation.

    And we know very well the law that brought about the three-judge court against the readiness of district judges to declare a state legislation unconstitutional.

    Milton I. Shadur:

    But Your Honor, we have a fixed application of the Act to our party, and that application is the thing which we say is unconstitutional here.

    Felix Frankfurter:

    But — but you agree that you must say that nothing that you do, everything that you do must be — cannot constitutionally be — be touched by — by the — by Alabama, is that right?

    Milton I. Shadur:

    That’s correct, that our activity must be — as it is described in this complaint is constitutionally protected against the state action which the Fourteenth Amendment has been intended.

    Felix Frankfurter:

    Every item, every item.

    Milton I. Shadur:

    Every item as described in the complaint, yes, Your Honor.

    William O. Douglas:

    Now, we have —

    Felix Frankfurter:

    So that —

    William O. Douglas:

    — two types of plaintiffs, one is the union and the other is the members, is that right?

    Milton I. Shadur:

    Yes, Your Honor.

    William O. Douglas:

    So, you had that burden as respects to those two, each of the two.

    Milton I. Shadur:

    Yes, Your Honor.

    Harold Burton:

    And while you’re on that Supreme — Supreme Court of Alabama on which there’s nothing about pulling it constitutional and you — you interpreted as in feasibly holding a constitutional for it is passed on constitutional question itself?

    Milton I. Shadur:

    Yes, Your — yes, Your Honor.

    That was in the argument to the Alabama Supreme Court.

    Felix Frankfurter:

    Well, the – it’s non-concept as Alabama and we know the — the diversity of the state rulings as the implication of Justice Burton’s question.

    When I read that Alabama Supreme Court opinion, I first thought that all they decided and I’m not still clear that it isn’t all they decided.

    We, now telling you’re within it.

    We’re not called upon to tell you whether it’s unconstitutional.

    Harold Burton:

    That’s what they said explicitly, that we tell you within it and said nothing about the constitutionality.

    Milton I. Shadur:

    Yes, Your Honor.

    That’s correct.

    The sole — the sole effect of the judgment was to state that this organization, its activities, its members as described in the complaint is a labor union within the meaning of the Solomon Act and people who belonged to this organization are subject to all the penalties of the Solomon Act.

    Harold Burton:

    And it can’t be subject that it’s constitutional?

    Milton I. Shadur:

    That — that must necessarily follow and that’s why we’re here today, Your Honor.

    Felix Frankfurter:

    Well, I don’t see they necessarily follows.

    It’s maybe merely a declaration that you’re within it.

    Charles E. Whittaker:

    Well, isn’t that all you sought, sir?

    It wasn’t your action one for an injunction upon the ground that you were not involved, a labor union or a labor organization within the meaning of the Solomon Act.

    Milton I. Shadur:

    That is correct, Your Honor.

    Charles E. Whittaker:

    Now, they simply determine that you were a labor union or a labor organization within the meaning of the Solomon Act.

    Milton I. Shadur:

    Yes, Your Honor.

    Charles E. Whittaker:

    That’s — that’s the some total of it, isn’t it?

    Milton I. Shadur:

    Yes.

    Felix Frankfurter:

    Well, but that’s an abstract declaration.

    Milton I. Shadur:

    But it’s not an abstract declaration, Your Honor, because it’s a declaration with respect to facts which are in the record.

    It is not a hypothetical case.

    It is a case dealing with facts.

    Felix Frankfurter:

    You said it’s hypothetical, abstract is something else again.

    I mean by that, they merely say, “We now tell you, you’re within the term of the Act.”

    But whether you — whether you want to contest it, whether you are subject to the penalty, is that another story and come again if you want us to pass on that.

    Milton I. Shadur:

    No, Your Honor.

    Felix Frankfurter:

    The state court might do that if it wanted or couldn’t it?

    That was (Voice Overlap) —

    Milton I. Shadur:

    No, Your Honor, because the judgment not only went to the — being subject to the Act, but in the opinion itself.

    The Court stated that there is no question that a person who is a member of this organization is subject to the penalties of the Solomon Act.

    Felix Frankfurter:

    Well, they gave you notice.

    What are the penalties?

    Are they penal?

    Milton I. Shadur:

    The penalties of the Solomon Act that’s served — stated or — are the forfeiter —

    Felix Frankfurter:

    Any penal provisions?

    Any penal —

    Milton I. Shadur:

    No, Your Honor, lost of employment, lost of all employment rights

    Felix Frankfurter:

    Am I wrong in recalling and — and they will be.

    Isn’t Alabama one of the States that does give advisory opinions?

    Felix Frankfurter:

    I -– not —

    Milton I. Shadur:

    I’m not —

    Felix Frankfurter:

    — the constitution

    Milton I. Shadur:

    I’m sorry —

    Felix Frankfurter:

    — but they can’t be.

    Milton I. Shadur:

    — I can’t answer that question, Your Honor.

    Felix Frankfurter:

    I think —

    Milton I. Shadur:

    I don’t know.

    Felix Frankfurter:

    — well, it’s a very — I tell you at the outset, my prejudice, my personal — not prejudice but bias against declaring a state Act unconstitutional on such a speculative and argumentative record.

    I’m not saying you can’t deal with my advice.

    I’ll just say that I call it a bias out of deference.

    I think the good sound principle not to knock out state legislation revenue.

    Milton I. Shadur:

    Let me see if I can deal with that bias for a moment and see exactly what these activities are which were involved in the — in the record that was before the Alabama Court and on which have nevertheless held that the Solomon Act apply.

    Before the — before the Solomon Act was passed, the plaintiff union had asked the authorities of Alabama for collective bargaining.

    And specifically, the administrators of the Alcoholic Beverage Control Board which I’ll call the ABC Board.

    Now, that right was denied to them and when that denial was made, they, thereafter, exceeded to that denial, and they, thereafter, did not assert either a right to bargain collectively nor a right to strike.

    And I might say that that – their act ceding to do that was in accordance with the objects of this union.

    The objects of this union are stated and the one relevant here to increase the wages and to improve the conditions of employment of our members by legislation, negotiation or other legitimate means.

    In other words, at that point, the union became as described by the only witness on this subject basically a discussion group.

    I’ll get to the other activities which have engaged in just a moment, but it proceeded to discuss with its members privately and at meetings, such things as federal social security legislation, public housing, economic and political issues, civil rights, political candidates.

    Now, defendants have stressed two items of activity which they claim are inconsistent with this characterization, a plaintiff union as a discussion group.

    The first item of activity is — and these are conceded, there is no question about this.

    These are part of the record.

    Plaintiff union and its members discussed the pros and cons of prospective legislation to provide for collective bargaining for state employees, and they thought about sponsoring that legislation.

    Similarly, when the Solomon Act was proposed in the state legislature, plaintiff union and its members contacted their legislators to try to defeat that Bill.

    Now, the other item of activity that defendants urge is that prior to passage of the Solomon Act, a representative of plaintiff union as part of its practice of assisting its members in connection with their individual employment problems appeared before the Alabama Personnel Board with some of those members to help settle the grievances which had arisen.

    Now, promptly after passage of the Solomon Act, the defendant’s predecessors sent copies to the Bill to all the liquor stores and stated that all the employees had to sign those to confirm the fact they had read the Act.

    Plaintiff (Inaudible) and all the other ABC Board employees did in fact initial the Act.

    Immediately after that, the — as the witness — only witness on this subject stated, “The membership simply evaporated from 250 to 300 members.

    The union went down to a point where plaintiff (Inaudible) and perhaps one other member remained.

    Milton I. Shadur:

    Plaintiff (Inaudible) stated that he remained a member because he believed that he had a right to be a member of this organization in the same manner that he had a right to belong to his church.

    Now then, we filed suit in the District Court to which Mr. Justice Frankfurter has referred asking injunctive relief against the enforcement of the Act.

    The Court at that time withheld the exercise of jurisdiction, it abstained.

    That abstention came before this Court and was affirmed by this Court.

    At that time, no construction of the statute had been obtained from the Alabama Courts.

    At that point, suit was filed in the — in the Circuit Court of Montgomery County.

    The judgment in the Circuit Court was that the Act did apply to plaintiff union, its members and activities as I have described those activities.

    There are no other elements which are in the record describing plaintiff’s activities, plaintiff union’s activities as they have been held to be subject to the Solomon Act.

    Felix Frankfurter:

    I’m sorry, I didn’t hear you.

    I may have been not inattentive, but looking at something else, in dealing under to that sense.

    Did you state that this union was — was organically related to the CIO?

    Milton I. Shadur:

    Yes, Your Honor.

    Originally, it was formed by the CIO as an organizing committee.

    An organizing committee is a step prior to the formation of an international union.

    And it has — has been stated in the — in one of the footnotes in our original brief, consequently to the merger between the CIO and the AFL.

    This union has merged with its AFL affiliated counterpart, but under the merger agreement, every member of this union becomes and remains a member of the merged union and all the rights also carry over so that the provisions are applicable to this Court.

    Felix Frankfurter:

    But in — in the burden that is yours, you have to contend that this union merely because it is — it has a — a tie with as part of the merger of — of the CIO union, but that’s the difficulty that if you do everything so far as doing sponsoring them, it could do everything it’s doing, provided it did it on its own.

    Is that in the case for all we know?

    For all we know, the Supreme Court of Alabama might say, “You can carry on all the activities, but you can’t carry it on affiliated with the AFL and CIO.”

    Milton I. Shadur:

    No, Your Honor.

    I don’t believe that is in the case.

    Felix Frankfurter:

    Well, how do you know it isn’t?

    How do I know it isn’t?

    Milton I. Shadur:

    Well, the — there is —

    Felix Frankfurter:

    How do I know it isn’t?

    Milton I. Shadur:

    — there is a specific area of activity which has been held subject to the Solomon Act.

    I think that’s —

    Felix Frankfurter:

    In spite of — the Supreme Court of Alabama refers to this time and for all I know, that’s the difficulty in the eyes of the Supreme Court of Alabama.

    Needless to say, I’m not talking about myself.

    Do you think there might be — for one — for one person, for me, might there be a legal, a different legal question to outlaw these activities as such and to outlaw the collective doing of those activities as part of the AFL-CIO.

    Felix Frankfurter:

    Might there not be a legal difference?

    Milton I. Shadur:

    Your Honor, each of the provisions of the CIO constitution to which they refer in the Alabama Supreme Court opinion as part of the complex of this activity which is subject to the Solomon Act is also part of the organization as it stands there.

    Felix Frankfurter:

    That is not the same thing though.

    It’s one thing for me to do something on my own.

    It’s another thing for me to do something, connects with somebody else.

    I’m not saying that’s a valid distinction.

    All I’m saying, do I know on this record that that is in the sticking point with Supreme Court of Alabama?

    Milton I. Shadur:

    I think that —

    Felix Frankfurter:

    Do I not — am I not entitled to think that it might be the sticking point for it?

    Milton I. Shadur:

    Your Honor —

    Felix Frankfurter:

    It’s the same thinking of which you’ve had in their opinion.

    Milton I. Shadur:

    The sticking point for the State of Alabama as far as this case is concerned is the entire area of activities that’s involved.

    Felix Frankfurter:

    You have no — I don’t think you’re justified in saying that.

    That’s my point that I do not know on what ground the Alabama Supreme Court went.

    Milton I. Shadur:

    Oh, but we must, as Your Honor has correctly pointed out, state that each one of these activities is — is inherent in the holding.

    That we don’t know whether one of these being subtracted would nevertheless result in our being held subject to the Act.

    Felix Frankfurter:

    I don’t make myself clear.

    There are two things for me.

    One, the activity that people in Alabama engages.

    Two, the fact that they engage in — engage in those activities as part of a nationwide, almost an international organization.

    Milton I. Shadur:

    Your Honor, this organization continues to engage in those activities, still as part of a nationwide organization with the same purposes.

    I submit that the record that as before this Court is in no way changed by the fact that it is now part of an AFL-CIO rather than that it is a part of a CIO.

    Felix Frankfurter:

    I’ll ask you one more question and I’ll desist.

    Is it — is it therefore my understanding that one is to pass, one — that the issue before us is whether the State of Alabama may, while allowing membership, while allowing its employees in various branch of its government to organize in and of themselves may prohibit them from being part of the AFL-CIO organization?

    Is that the issue before me?

    Milton I. Shadur:

    No, Your Honor, I don’t think so.

    Felix Frankfurter:

    All right.

    How do I know it isn’t?

    Leave the opinion to the Supreme Court of Alabama.

    Milton I. Shadur:

    I have done so with some difficulty into some way.

    Felix Frankfurter:

    Well, you encourage me, because I have nothing to do with that.

    Milton I. Shadur:

    Now, I submit to the Court that the construction and by construction, I would probably better use the “application” that the application that has been made of the statute by the Alabama Supreme Court, an application which applies to this union and to its members as those activities are described in the complaint and which I have now described is an unconstitutional application.

    And I don’t believe that it requires really a great deal of constitutional citation for that purpose because before and now, the cases to which we have referred in our brief, the Wieman case, the Slochower case, Adler, Garner.

    All those cases have involved a conflict between a state interest and an interest of the government employee.

    I submit, if it pleases the Court, that there is no legitimate state interest which is here involved being protected as a price for taking away the constitutional rights of these individuals.

    There is no reasonable relationship between the fact which is the only fact required for this disqualification for employment that is the fact of union membership.

    There is no reasonable relationship between the fact of union membership and unsuitability for public employment.

    And yet, the Solomon Act specifically states and the Court, I submit, has read it in fact literally that any public employee who is a member of this labor organization loses his rights of employment.

    And labor organization is defined not as an organization in which there is insistence on collective bargaining with the State of Alabama because that’s not in this case nor is that an organization which insist on the right to strike because that’s not in this case either.

    It is only an organization in which employees participate for the purpose of dealing with one or more employers concerning these elements.

    Now, there is no question, but that this organization, the Government and Civic Employees Organizing Committee does deal with one or more employers regarding these things because it is an organization that does not restrict its activities to the ABC Board and where those activities of negotiation and bargaining are permissible under state law, it does engage in them.

    But where those activities are not permissible as they were advised by the defendant’s predecessors in this case, there was no insistence on that so that what we have is the bare activities which are described in this complaint, discussion, the sponsoring of legislation, the opposition to other legislation and the processing of individual grievances.

    Only those activities are involved in this case and those activities have been specifically held to subject this union and the employees who are members of this union to the penalties under the Solomon Act.

    I submit that the due process question in this case virtually answers itself.

    This cannot satisfy the terms of this Court’s statements in the Slochower case, the Wieman case, which require that before there can be restrictions on government employment, those restrictions must be reasonable.

    They must not be arbitrary.

    They must bear a relationship to this valid state purposes sought to be obtained.

    Apparently, the defendants would equate the idea that a government — that a person does not have a right, the constitutional right to be a government employee with the conclusion that a government employee does not have constitutional rights, but of course that is not the case.

    I think that — perhaps the best characterization of the Alabama position with respect to the activities of this organization is found that they’re — at pages 16 and 17 of the appellees’ brief in which they refer to the witnesses — witness battle, the union organizers’ testimony as to sponsoring legislation and say, “This testimony not only tends to show that the union is not a mere discussion group as claimed, but that the union and the state employee members thereof have engaged in sponsoring collective bargaining legislation for state employees and — and have attempted to defeat legislation which prohibits collective bargaining.

    As individuals, the constitutional right is there, but as state employees, it is not.

    Such action is contrary to the declared public policy of the State of Alabama.

    I submit, Your Honors, that the third public policy of the State of Alabama cannot prevail over this Court’s decisions with respect to the scope of due process protection.

    Now, what do defendants fallback on?

    They turned to cases and various State Board cases in which it has been held that policemen and firemen may be prohibited from engaging in union activity and indeed from unionization.

    But each one of those cases was rested specifically on the proposition that there are special problems, special semi-military problems which relates to policemen and firemen.

    They — each one of them has rested on the proposition that the police and fire departments are in a class apart.

    Both are at times charged with the preservation of the public order and for men, of all reasons, they owe to the public their undivided allegiance.

    The power in the state of complete control is imperatively necessary if discipline is to be maintained.

    Now, even if those decisions are available, and that’s a problem that will come before this Court in another case which is now pending on its document.

    That statute, those cases and the statutes and ordinances which relate there would not control this case because there you have the narrowly drawn statutes dealing with perhaps a permissible problem.

    Milton I. Shadur:

    But the same considerations of this public order, safety, unqualified discipline which apply to the policemen and firemen do not apply to permit the prohibition of union organization and participation among all state employee.

    Plaintiff (Inaudible) is certainly not in a class apart.

    He is a liquor store clerk.

    Indeed, the Solomon Act actually accepts from its application, these policemen and firemen as city and county employees indeed in anomalous result if the purpose of this Act, the purpose of a legislation is to ensure the undivided allegiance, the necessary maintenance of complete discipline.

    There is no question that public employment and private employment are different.

    Defendants urged that at length and we certainly agree, but what defendants fail to recognize, or perhaps refused to recognize, is that the basic difference between those two types of employment is what brings us into court today.

    That is that the public action, the public employer when he acts engages in state action which is subject to the requirements of the Fourteenth Amendment and the state action which is represented by the Solomon Act violates the Due Process Clause of that Amendment.

    I might refer just —

    Earl Warren:

    Mr. Shadur, you —

    Milton I. Shadur:

    Yes, Your Honor.

    Earl Warren:

    — you mentioned that it was an anomalous situation that they would — would prohibit the state employees and not city and county employees in joining such organization.

    Do you claim that it’s more than an anomaly or did you —

    Milton I. Shadur:

    Yes, Your Honor, we claim that that — that that and I was about to speak to that, that that in itself is an arbitrary discrimination which does two things.

    First, it breaches the Equal Protection Clause, because the — the exclusion from themselves are arbitrary with respect to the coverage that are brought there.

    And secondly, I think it points up even more sharply the fact that the statute itself is discriminatory because in the absence of those exclusions, they might make an argument.

    I don’t say that it is justified by this record and in fact, it is not, that the purpose of the statute is to guard against the attempt to fix terms and conditions of employment by collective bargaining, but —

    Felix Frankfurter:

    Do we know — do we know what the scope of autonomy or a home rule as the phrase runs gave in Alabama City and county?

    You’ve indicated that the Docks Board has charged in railroad —

    Milton I. Shadur:

    Yes, Your Honor.

    Felix Frankfurter:

    — owned by the State, restitute to that, is it?

    Milton I. Shadur:

    Yes, Your Honor.

    That is —

    Felix Frankfurter:

    It was where —

    Milton I. Shadur:

    Well, it’s not restricted to that but the employees who are referred to here are the railroad employees, yes, Your Honors.

    Felix Frankfurter:

    (Voice Overlap) Are they subject to the Railway Labor Act?

    Milton I. Shadur:

    Yes, Your Honor.

    Felix Frankfurter:

    Are they members of the brotherhood?

    Milton I. Shadur:

    They are members of several Brotherhoods of railroad employees.

    Felix Frankfurter:

    And the classification relating as to that.

    Now, do we know — how do I know what consideration has led the Alabama Legislature?

    Felix Frankfurter:

    I think there’s a difference between employees of cities and counties as against state employees.

    Milton I. Shadur:

    Your Honor, I submit that no consideration can be conceived which would justify the — the exclusion of the city and county employees and the inclusion of the state employees, for this reason.

    When you have is — was the case before this Court in the McAdory case to which defendants refer, when you have a situation in which a State is regulating an area of activity.

    At that point, it may exclude an area of — part of that area which it considers is already ampli-regulated and that was this Court’s holding in McAdory.

    But when the form of the state legislation is to prohibit absolutely an area of activity than to engage in exclusions from that prohibition which have no relationship whatever to any legitimate state interest cannot possibly satisfy the Fourteenth Amendment.

    Felix Frankfurter:

    I — I know that cities or agencies of the State as subject to state constitutional provisions, a State can rearrange, do anything it pleases with its cities.

    But how do I know there isn’t a scope of home rule that leads the legislature of Alabama to say, “We let Birmingham and Mobile take care of that, they have ample power.

    I’m sure in the cities that I know about, city employees are differentiated in all sorts of way from state employees.

    Milton I. Shadur:

    Your Honor, I — the only distinction that exists here, because if you’ll notice, the exclusions do not limit themselves, only to employees of cities or counties, they include the teachers, they include these employees of the state tax board.

    And the only —

    Felix Frankfurter:

    The teachers they might make a distinction again in the case of teachers and against others.

    Milton I. Shadur:

    But what are the distinctions as between them?

    Certainly, if there is any evil and neither defendants nor the state courts in the State of Alabama have ever articulated just what that evil is.

    But if there is any evil in the existence of union organization among state employees, how can it be said that that evil does not extend equally to these areas of completely arbitrary exclusion?

    There is one difference between them and that one difference is shown in Appendix A and that difference is that the people who are excluded are people who are already engaging in negotiation.

    Now, that, Your Honor, is certainly not a suitable distinction to excuse an exclusion from a prohibition against union organization to say, “Well, these people are already within the area of evil.

    They’re already engaging in collective bargaining.

    Therefore, we will exclude them from the provisions of an Act which prohibits collective bargaining and union organization among state employees.”

    Hugo L. Black:

    It is a fact is it that they have unions in all of these — all of these accepted employments?

    Milton I. Shadur:

    There is nothing in the record with respect to teachers.

    There is in the record as plaintiff’s exhibit 12 which we printed as Appendix A to our reply brief, specific affidavit covering the fact that since 1936, the Railroad Brotherhoods have negotiated schedules of wages and rules covering the employees of the State Dock — Docks Board and further that there are municipal and county employees in Alabama who are members of labor organizations that negotiate their wages, hours and working conditions.

    Felix Frankfurter:

    Does it appear to — with what international union, the local union who are affiliated in those domains?

    Milton I. Shadur:

    Only with respect to the State Docks Board employees that refers to the fact that they are affiliated with the Brotherhoods.

    Felix Frankfurter:

    Well, that — that rest on — that may well rest on different situation, namely, that they’re part of a railroad system with relationships with other railroad et cetera.

    Milton I. Shadur:

    But, Your Honor, that is not a matter of construction of the Act by the state court.

    That is a matter of a legislative exclusion and the legislative — if the distinction between them had to do with the degree of affiliation with a union, an international union, then it would not be necessary to exclude them from the operation of the Act.

    That would take the course of the state determination by the Court as to what constitutes a labor organization if the total —

    Felix Frankfurter:

    But what if a legislate — a legislature may say that railroad employees whether on government-owned railroads, or on privately-owned railroads present a different problem from — from all other employees?

    Milton I. Shadur:

    But though, the —

    Felix Frankfurter:

    The legislation of the Commerce of United States has taking note of that fact.

    Felix Frankfurter:

    We’ve taken note of that fact.

    Milton I. Shadur:

    But the legislature has not so said.

    The legislature has said that irrespective of — with whom the employees of cities or counties, with whom the teachers, with whom the employees of the State Docks Board maybe affiliated, we will exclude them from the Act.

    Felix Frankfurter:

    And I’m suggesting that the teachers and the city and counties rest again on a differentiation of which the legislature again be might —

    Earl Warren:

    I suppose in your State Docks Board, you have — you have employees who are — are not affiliated with the Brotherhoods, haven’t you?

    Perhaps you have a great plenty people working around the — the docks for the maintenance of the docks, the buildings and so forth and — and they’re exempted, too, aren’t they?

    Milton I. Shadur:

    Yes, Your Honor.

    That’s — that only appears in the record from inference because the exhibit 12 to which I referred states that substantially all employees belong to these organizations.

    It said it is — it is true that —

    Earl Warren:

    It’s substantially all to the Brotherhood?

    Milton I. Shadur:

    To the Brotherhood, but there are others which may belong to —

    Felix Frankfurter:

    What’s the population of the Dock Board employees?

    About what –- what magnitude?

    Milton I. Shadur:

    I don’t know, Your Honor.

    I don’t know.

    Felix Frankfurter:

    I didn’t know that that Alabama also had a state-owned railroad.

    Milton I. Shadur:

    Well, they seem to distinguish between the state-owned liquor stores and the state-owned railroads, whatever the basis for the distinction.

    I might advert before I close just very briefly to a — an argument as to standing which was made by the appellees in the concluding portion of their brief.

    They state that the appellant union who does not have standing in this Court because this Court held in Hague against the CIO that only natural persons were entitled for the privileges and immunities that Section 1 of the Fourteenth Amendment secured for United States citizens.

    Of course, that has no application here.

    There is no question, although it may well be true that the labor organization is not a citizen for purposes of protection in the Privileges and Immunities Clause that it is most certainly a person within the meaning of the Equal Protection Clause and that is the Clause which we are invoking here.

    I submit, if it please the Court, that the Alabama Courts have construed the Solomon Act in the only matter in which the Court can ever construe an Act, that is by rendering a judgment on a specific record as to the applicability of that Act.

    On that specific record, it was held that the Solomon Act applies to this union and to the members of this union and their activities all as described in the complaint.

    That record is the identical record before this Court.

    I submit that there is no way in which it can be speculated as to the fact that on the record before this Court, the Alabama courts might hold otherwise because the Alabama courts have held specifically on this record that this union is subject to the Act.

    And under those circumstances, the constitutional question is squarely here and I submit there can only be one answer to that constitutional question.

    The Solomon Act, as it has been authoritatively applied by the Alabama Courts, violates the Fourteenth Amendment.

    Earl Warren:

    Mr. Madison.

    Gordon Madison:

    If Your Honor please, I’d like in a short time that remains to see if I can’t — to dispose of the argument that relates to any discrimination.

    When this case first went before the District Court for the first time, that Court took the position that the Act could be construed in a constitutional manner.

    Gordon Madison:

    It said it could have be construed as the prohibiting employees from belonging to the union for collective bargaining purposes.

    And then, it applied to doctrine of abstention which this Court later affirmed.

    Well, I don’t think the Court would apply the doctrine of abstention to — to say we are going to abstain to let the state court construe an unconstitutional statute.

    I think that is a determination in a sense that there is a constitutional way to apply the statute.

    So, that seems to me would get rid of the argument relative to being in any discrimination on faith of the Solomon Act.

    Harold Burton:

    Can you satisfy the Supreme Court of Alabama to pass on constitutionality —

    Gordon Madison:

    No, sir, not the Supreme Court of Alabama.

    I’m satisfied that — that the District Court and this Court has — has taken the position that it could be construed on a constitutional manner.

    They did not raise the question of constitutionality in the state court.

    Harold Burton:

    Well, is it your position that the Supreme Court of Alabama has not passed on the question in the federal constitutionality with that?

    Gordon Madison:

    They did not pass on the constitutionality.

    It was not raised in —

    Harold Burton:

    It was not ready for a federal court to pass something?

    Gordon Madison:

    Well, now, they’d probably like the federal court bend it in our state court so that way I can answer that too.

    As pointed out here, from some of the questions of — from the bench, the legislative Alabama — it prescribed the conditions of employment relative to immediate state agencies while cities, counties, school boards, the teachers there are the most agencies of the state.

    They’re not to immediate agencies.

    And the legislature is leaving it to those different localities to determine for itself or themselves what they will do if anything with reference to public employees joined in labor union.

    Labor — labor conditions in certain parts of State of Alabama and in certain cities and in certain areas may be one thing, and in other areas, it may be different.

    The labor relations may be fine in one area and it may be in certain respects if they would say that it would be objectionable to — to cities and school system or the cities or the counties.

    And I think legislature had a right to — to say, well, we will legislate this time, I guess with reference to the immediate state agencies which involved state employees.

    Now —

    Earl Warren:

    Does it have the right — does it have the right under your state constitution to regulate the conduct of employees in cities and counties?

    Gordon Madison:

    Does the legislature have the right?

    Earl Warren:

    Yes, yes.

    Gordon Madison:

    I should say, sir, they’d have the same right with reference to them as they would with reference with the employees.

    Earl Warren:

    The same with teachers?

    Gordon Madison:

    Yes, sir.

    Earl Warren:

    Yes.

    Gordon Madison:

    Now, with reference to the — the employees that are — that belonged to the — referred to as being employees of the State Docks, Section 3 of the Act, nor shall it apply to the those employees of the State Docks Board referred to in Title 38, Section 17, Court of Alabama 1940.

    Well, they are the railroad workers and it was thought that maybe the Railway Labor Act would have some application, maybe it had preempted the field and maybe legislature couldn’t deal with those employees so it — it left them out for that reason, that’s why I think the legislature recognizes.

    Earl Warren:

    Why they’ll leave the teachers out?

    Gordon Madison:

    I should — my — my idea would be that they — they left the teachers out to enable the local Board of Education to determine, whether or not in that judgment, they want to make any provisions to refer that the teachers belonged with the union.

    Earl Warren:

    How about the teachers in higher education, aren’t they under the State?

    Gordon Madison:

    Yes, sir.

    They get in a high educational system, the University of Alabama.

    I guess you might say they get a little closer to the —

    Earl Warren:

    Why would they — why would they eliminate that one?

    Gordon Madison:

    Well, I can’t direct you why, Your Honor, but — as why do they leave them out, but I guess I — I wouldn’t talk to them, I would answer that question.

    Earl Warren:

    Why would they leave out saying — say policemen and — and say firemen and county sheriffs and so forth?

    Gordon Madison:

    You mean —

    Earl Warren:

    Why would they leave them out when they — when they took a — a liquor sales?

    Gordon Madison:

    Well, I want to — the only the way that I can answer that question is that they leave it to the local unit to determine what they want to do with those people.

    Earl Warren:

    Well, but my point is this, some of those are local and some of them were statewide.

    Now, is there anything to the argument of counsel to the effect that the legislature just said, “Well, those that are argued, we’re not going to fight with.

    We — we’ll let that be a fat accompli, but as to others, we’re going to — we’re going to prohibit it.”

    Is there anything to that argument?

    Gordon Madison:

    Because they –- they gave me a —

    Earl Warren:

    Well, as I understood counsel, there were — there were unions in the cities and in the counties among the employees.

    There were — there were unions in the Docks, the State Docks employees.

    Now, did the legislature just say, as a matter of expediency, that we’ll exempt all those who are organized but we will prevent those that are not organized from ever becoming organized, because that would bear on the question of whether it was a reasonable classification, I suppose.

    Gordon Madison:

    I — I don’t think they did that.

    Earl Warren:

    Well, what — the thing I can’t understand is, what is — why did they eliminate some of these people and the people in higher education?

    Why — why wouldn’t – why wouldn’t they be just as amenable to it as a — as a salesman in the state liquor store?

    Gordon Madison:

    Well, may I say Your Honor, it’s improbably would be less likely to march back to force the liquor stores and it’s unfair to organize labor, they might not insist on union, collecting the dues to check off I might say.

    There may be a number of reasons that I gave you as the legislation, I might say.

    Earl Warren:

    We’ll — we’ll recess now, Mr. Madison.

    Gordon Madison:

    Thank you.