International Association of Machinists v. Street – Oral Argument – April 21, 1960

Media for International Association of Machinists v. Street

Audio Transcription for Oral Reargument – January 17, 1961 (Part 1) in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Earl Warren:

Number 258, International Association of Machinists, Appellants, versus S. B. Street et al.

Mr. Schoene, you may proceed with your argument.

Lester P. Schoene:

And if the Court, please.

This case is here as a result of the refusal of the courts of Georgia, to accept and to apply this Court’s decision in Railway Employes’ Department against Hanson, 351 U.S. 225.

The case is here on appeal from a final judgment of the Supreme Court of Georgia, which appears at the page 249 of the record.

This Court’s jurisdiction is based on Title 28 to the United States Code, Section 1257, paragraphs (1) and (2).

The Court noted probable jurisdiction on October the 12th, 1959.

Now, this action was begun in the Superior Court of Bibb County, Georgia in June of 1953.

It was removed to the federal court and reposed there for about three and a half years while litigation in other similar cases including the Hanson case involving the same issues went forward.

After this Court’s decision in the Hanson case, we consented to it’s remand to the Superior Court of Bibb County, Georgia where a motion to dismiss was filed.

I should say that in — in this case, just as in the Hanson case, the nature of the action was an injunction suit to enjoin the performance of the union-shop agreement made under Section 2, Eleventh, of the Railway Labor Act and the agreements involved are entirely identical except for the name of the carrier to the agreement that was involved in the Hanson case.

A motion to dismiss based on the Hanson case was filed immediately after its remand to the Superior Court of Bibb County.

And on the day of the hearing of that motion to dismiss, the plaintiffs tendered an amendment to the complaint alleging that payments required to be made under the union-shop agreement would be used in substantial part to support ideological and political doctrines and political candidates that the plaintiffs were not willing to support.

The Court allowed the amendment to be made, took the motion to dismiss as being addressed to the amended complaint and on the entirety of the Hanson case, dismissed the complaint.

That decision was appealed to the Supreme Court of Georgia and in an opinion that appears at page 221 of the record, the Supreme Court of Georgia reversed the District Court indicating its complete disapproval of this Court’s decision in the Hanson case, acknowledging that it was bound by it, but that it was willing to take any possible distinction to avoid applying it.

As consequence to that reversal, the case was then tried in the Superior Court.

The facts as developed at the trial to the evidence are summarized, as you have undoubtably noticed, the record is a very voluminous one.

The — the evidence is summarized in our brief at pages 11 to 15.

Very briefly, the evidence showed that the unions, in addition to their normal and predominant activity of negotiating and administering agreements and handling grievances, do engage through such institutions as the AFL-CIO, the Railway Labor Executives’ Association in legislative, political, and educational activities.

And some individual unions have legislative representatives.

They collectively participate in the publication of the Newspaper Labor.

Individual unions publish magazines in the nature of house organs for distribution to their membership, which contained political and educational matter as well as reports concerning the activities and goings-on within the union.

And the evidence shows that the general funds of the unions from which such activities are financed do derive in substantial part from those in the initiation fees that the members pay.

There is no evidence of any assessment having been made by any defendant union for any purpose whatever, nor that any contributions has been required of anyone, for any purpose, other than the regular normal dues and initiation fees.

There is no evidence that anyone’s conduct, or his expression or his belief has been in any way restrained or coerced or that anyone has been required to read anything or to listen to anything or to believe anything.

There is no claim that these expenditures involved are either ultra vires under the union’s constitution or bylaws or unlawful under any federal or state statute.

Now, it is our position and the sole point that I intend to argue that every issue in this case was disposed of by this Court’s opinion and decision in the Hanson case.

That is discussed in our brief at pages 35 and following.

Now, we think in the first place that the Court’s language, although the appellees pick certain language in the Hanson opinion out of context in the side that the issues here arising, were reserved in that opinion, we think the Court made it entirely clear that there was no violation of the constitutional rights through the mere expenditure of —

Felix Frankfurter:

Mr. Schoene, before — may I interrupt you to ask this?

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Felix Frankfurter:

Comparing the pleadings in the Hanson case and the pleadings in this case, what issues, if any, were tendered in this case that by the pleadings were not before the various courts in the Hanson case?

Lester P. Schoene:

I’ve — I have not, I’m sorry to say Mr. Justice, made a detailed comparison of the — of the pleadings themselves.

I think, however, that this — this is a substantially responsive answer to your question.

That the — I do not believe that the Hanson case had a specific allegation in the pleadings that these moneys were expended for political or legislative activities.

Felix Frankfurter:

In part.

Lester P. Schoene:

In part, that’s right.

I think the amendment made in January 1957, when the motion to dismiss came on, was an addition, to substantially the pleadings that were in the Hanson case.

Felix Frankfurter:

And the evidence went to that — to that additional issue?

Lester P. Schoene:

That is correct, but they — the same type of evidence was in the Hanson case and the same contentions were made before this Court.

Now —

William J. Brennan, Jr.:

Mr. Schoene, was that amendment, was it not actually in language taken from the opinion of the Court?

Lester P. Schoene:

No.

No, it was not.

It used such — it — it used words like ideological and term — which words were expected, but not in language from the — from the Hanson opinion.

This Court said in the Hanson case, “The only conditions to union membership authorized by Section 2, Eleventh, of the Railway Labor Act are the payment of periodic dues, initiation fees and assessments.

The assessments that may be lawfully imposed do not include fines and penalties.”

The financial support required relates therefore to the work of the union in the realm of collective bargaining.

No more precise allocation of union overhead to individual members seems to us to be necessary.

The prohibition of fines and penalties precludes the imposition of financial burdens for disciplinary purposes.

If assessments are, in fact, imposed for the purposes not to mind the collective bargaining, a different problem would be presented and it is certainly indicated that the word, “assessments” was used in its precise meaning because the footnote to that sentence refers to constitutional provisions that are described as giving very broad powers of assessment.

Felix Frankfurter:

I ought to know, but I don’t recall.

Is there a provision in the Railway Labor Act comparable to the English legislation whereby an employee can contract himself, out?

Lester P. Schoene:

No, there is none, Mr. Justice.

Felix Frankfurter:

And I think if there’s none in the — in the charter of the union itself?

Lester P. Schoene:

No.

Felix Frankfurter:

Is there in any with your familiarity, is there — that’s not — that’s not unusual in the United States, is it?

Lester P. Schoene:

Not, so far as I know.

I know of no instance in which that occurs in this country.

Now, with respect to the First Amendment rights, this Court said in the Hanson case, “If — if other conditions are in fact imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.”

Now, we submit that there is nothing to show that any imposition has been made or any exaction made other than the requirement for the payment of dues and initiation fees, and there has been no cover for anything, not a bit of evidence to indicate that any requirement of payment was used for anything other than to finance the regular activities of the union.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Felix Frankfurter:

What — what legislation by Congress limit the use of union funds for political purposes?

Lester P. Schoene:

The Corrupt Practices Act as amended by the Taft-Hartley Act.

Felix Frankfurter:

That being as to the amount and is due?

Lester P. Schoene:

It — it limits the purposes for which expenditures can be made or dealt with.

Felix Frankfurter:

And by implication, therefore allows, does not regard the use of union funds within the limited extent as perfectly consonant with union purposes?

Lester P. Schoene:

That — that is correct.

That it — that — that is a very definite implication of the Corrupt Practices Act and as I have stated, there is no claim here that either the Corrupt Practices Act or any other statute was violated.

Now, if the language that I have referred through or to were not in itself determinative of what this Court decided in the Hanson case, it becomes perfectly apparent what this Court was doing in the Hanson case when you refer to this decision of the Supreme Court of Nebraska in that case.

We have quoted on pages 35 to 36 of our brief what the Supreme Court of Nebraska said in that case.

The Supreme Court of Nebraska held the statute unconstitutional precisely for the same reasons that the Supreme Court of Georgia has said it’s unconstitutional.

Namely, they said, that assuming that it is proper to require every individual who gets the benefit of collective bargaining to contribute to the cost of collective bargaining, when you require union membership and require the payment of full dues and initiation fees, you are paying for something other because the union’s engaged in other activities.

And that was the precise holding of the Supreme Court of Nebraska that was reversed by this Court in that case.

Further, if you consult the record and the briefs before this Court in the Hanson case, you will find that the major contention before this Court was precisely the contention that the Supreme Court of Georgia has sustained in this case.

We have set forth at pages 37 and 38 of our brief references to the record and briefs in the Hanson case showing that to be the fact.

Not only, however, was this contention made in the argument before this Court in the Hanson case, after your decision came down, the counsel for the plaintiffs in that case apparently felt that you had overlooked the significance of these contributions or these expenditures for political and legislative purposes.

So, they filed with you a motion to stay a mandate saying, “They were going to file a petition for rehearing,” which could not be heard at that time and since the mandate would otherwise go down during vacation, they asked for a stay of mandate.

Bringing these very arguments to your attention again, that motion to stay a mandate was denied on June 11, 1956.

The counsel for the — for Hanson, nevertheless, filed the motion for rehearing.

At same time, they proceeded in the Supreme Court of Nebraska with a motion to stay or with the motion to enter judgment on the mandate consisting of the retention of a limited injunction prohibiting precisely what the Supreme Court of Georgia has here said, cannot be done.

The Supreme Court of Nebraska received briefs and arguments on that motion and having heard it, determined that the mandate of this Court in the Hanson case required not the retention of a limited injunction, but a dismissal of the case.

And on October, the — on October, the — no, I don’t have the exact date, but it’s in — in October of 1956.

The Supreme Court of Nebraska entered its judgment on the mandate directing dismissal of the case.

In the meantime, on October 8, of that same year, which I believe was the first day the Court was in session in that time you denied the motion for rehearing.

Now, similarly, efforts to construe the Hanson case as the Supreme Court of Georgia had construed it, were made in Moore against the C&O Railroad Company, reported at 198 Virginia 273 where a motion for rehearing based on the motion for rehearing pending in this Court and the Hanson case was made that that was denied by the Supreme Court of Virginia.

In Sandsberry against International Association of Machinists, 295 S.W. 2d 412 in which you denied certiorari 353 U.S. 918, the same matters were brought to the attention of the Supreme Court of Texas and the Supreme Court of Texas concluded that this Court had full cognizance of all of these facts relating to the nature of the activities and the nature of the expenditures that unions make at the time it decided the Hanson case and had authoritatively disposed of it.

Finally, in a more recent case, Allen against Southern Railway Company involving these same agreements on the same railroad, the Supreme Court of North Carolina at 259 N.C. 491 made an analysis of the decision in the Hanson case and we quote at page 42 of our brief from what the Supreme Court of North Carolina concluded.

The Court there said “the very questions now raised by plaintiffs were before the Court and decided in Hanson and that the words upon which plaintiffs rely when read in context do not support their contention.”

Now, I must say that that decision of the Supreme Court of North Carolina was rendered after the first appeal in this case and with knowledge of what the Supreme Court of Georgia had said.

However, following the second appeal, it has granted a motion for reconsideration and has not yet decided on that motion.

It is under consideration by the Supreme Court.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Lester P. Schoene:

Now, that is the only point I’m going to argue when my colleague, Mr. Kramer, will discuss further issues on the assumption that everything I have said is wrong and that the Hanson case has not disposed of the issues here.

Earl Warren:

Mr. Kramer.

Milton Kramer:

Mr. Chief Justice, may it please the Court.

We submit of course that the Court need reach no further issues.

That the Hanson case is fully dispositive of every contention raised by the appellees; that is, the individual appellees.

But if it is not dispositive of the case in its entirety, then what do we have here?

We have an Act of Congress adding Section 2, Eleventh, to the Railway Labor Act which did two things.

First, it repealed in part the congressional prohibition of a union shop in the railroad and airline industries.

Now, I take it there can be no serious question of the power of Congress to repeal its own prohibition.

The second thing that that Act did was expressly to declare the congressional intention to supersede any state laws that might limit or prohibit a union shop in the railroad and airline industries.

Now, the appellees say that somehow that second purpose was not accomplished.

That Congress with Section 2, Eleventh, was ineffective to supersede state law.

Now, let us assume for a moment that that is so.

I will just show next, that it is not so.

But assume for a moment that it is so.

Then what do we have?

We have no federal prohibition of a union shop, and we likewise have no state prohibition of a union shop.

So the union shop would mean we would still be valid.

Now, Georgia has a right to work on.

The Court below, at least the trial court and by implication of the Supreme Court of Georgia held that a union-shop agreement violates state law.

That would appear to be a state question.

The determination of which by the Supreme Court of a State would be taken as conclusive by this Court, but always subject to the requirement of due process and equal protection of the laws.

The Court below said that it violates this — the law of Georgia but they cited nothing, no case, no statute.

Now there was no case squarely in point.

All the Georgia cases that involved the union shop assumed that a union shop was valid, both the Court and the litigants assumed it was valid.

And, of course, basically the union-shop agreement is valid at common law.

The most complete discussion of that that I know of is in Hudson against the Atlantic Coastline Railroad in 242 N.C. Georgia enacted a right to work law in the late 1940s.

If a union shop were invalid there you wouldn’t have needed such an Act.

But suppose we assume that the statute was declaratory of the common law.

If so, it was declaratory of what?

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Milton Kramer:

The statute specifically accepts the railroad industry and the airline industry from its operation.

The statute specifically says, “A union shop or a closed shop is unlawful except when entered into between an employer and an organization subject to the Railway Labor Act, as the Railway Labor Act may be amended from time to time.

Felix Frankfurter:

Mr. Kramer, may I interrupt long enough, to ask what you deemed to be the scope of the decision of the Georgia Court as in this case.

What is it, what is the effect and suppose that decision was to stand, what is the effect of that?

Milton Kramer:

If that decision were to stand, then at the very least, no union that engages in activities other than strictly collective bargaining, no union that belongs to the AFL-CIO, no union that has its legislative representative in Washington or in a State Capital, no union that lends aide to a candidate for political office, were lawful to do so could have union shop.

Felix Frankfurter:

Is that because of the terms used — is that because the association with the AFL-CIO would be political?

Milton Kramer:

The AFL-CIO does engage in legislative activities.

Felix Frankfurter:

Yes.

Milton Kramer:

Some of the money of these plaintiffs go to local lodges and some of that money goes to the national organization and some of the moneys from the national organization goes to the AFL-CIO —

Felix Frankfurter:

Would that be —

Milton Kramer:

— that’s the argument.

Felix Frankfurter:

— would that be true if the money which your union gave was earmarked not to be used for any political purposes?

Milton Kramer:

Well, the AFL —

Felix Frankfurter:

I know is what typical and ideological, I know those are —

Milton Kramer:

The — the AFL-CIO doesn’t take money that way.

If you’re affiliated with the AFL-CIO, you pay 5 cents per capita per month.

Felix Frankfurter:

I understand that but I’m stating whether you could bring yourself within this decision, or you just say none of our money can be used for any legislative purposes are on their heels.

Milton Kramer:

But as the union says that.

Felix Frankfurter:

Yes.

I guess the reason to my question —

Milton Kramer:

You would —

Felix Frankfurter:

— is that you would give me the impression that using — that as the Georgia statute really in effect overruled our decision in Hanson.

Milton Kramer:

It did.

Felix Frankfurter:

They said you can’t have — but it might surprise effective union activities though or what unions can do.

But it didn’t purport to do that, did it?

Milton Kramer:

Oh, no.

They said so long as you do that you can’t have a union shop.

Felix Frankfurter:

And therefore — but you could abstract within yourself, within the Georgia case by cutting out whatever may be political and ideological.

Milton Kramer:

Well, if you can determine what that is, if you had, if you’d never had any of your officers testify before any legislation, before any, before Congress.

If you put out what was in your magazine, if you stop subscribing to the Newspaper Labor for your members, if you stop engaging in educational activities, if you stop having a pension fund for — for — not a pension fund but a death benefit fund for deceased members, or the families of deceased members .

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Felix Frankfurter:

Why do you say that?

Milton Kramer:

Only collective —

Felix Frankfurter:

Why do you say that?

Milton Kramer:

Well, the Court below said that “All that this Court held in the Hanson case, and that’s — that’s as far as they’re going to go, is that you can require the payment of dues to support the cost of collective bargaining and nothing else.

Felix Frankfurter:

Well, but collective bargaining — under collective bargaining we — we make provisions as the United Mine Workers and not for the Georgia Union will we make provisions for a common trust fund to take care of illness and contingency of that sort, may you not?

Do these —

Milton Kramer:

In (Voice Overlap) —

Felix Frankfurter:

Do these circumscribe what collective bargaining may take in?

Milton Kramer:

Well they tell you where it does not take it, yes but that was the arguments in the brief.

Felix Frankfurter:

I don’t care about the arguments for the moment.

I don’t mean to be disrespectful.

But in the opinion, do they circumscribe what collective bargaining can take in?

Milton Kramer:

No, not — not definitively.

They do say this that if money is spent for any purpose with which the involuntary member or the involuntary payor, these are tools.

That is infringing his rights.

Felix Frankfurter:

You mean that he can write in and say, “I disapprove of your making this claim at the next time you meet with the — an employer”?

Milton Kramer:

No, no, outside the field of collective bargaining.

I disapprove —

Felix Frankfurter:

But my — my difficulty in the field of collective bargaining is — is not merely on wages.

Milton Kramer:

It — it is to them, plus grievances.

That is, we — we cannot have anyone go before a congressional committee and testify on such matters as available through the Sherman Act whether they deal with unemployment in the Sherman’s Act.

Felix Frankfurter:

What — what is —

Milton Kramer:

That is legislation.

Felix Frankfurter:

What’s the basis of saying that, Mr. Kramer, in the opinion

Milton Kramer:

Well, in the opinion?

Felix Frankfurter:

Yes.

Milton Kramer:

On page 269 of the record, that’s in the middle of the opinion somewhere.

The Supreme Court of Georgia says — maybe I should read it.

“One who is compelled to contribute the fruits of his labor to support or promote political or economic programs or support candidates for public office is just as much deprived of his freedom of speech as if he were compelled to give vocal support to doctrines he opposes.”

And why is that so?

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Milton Kramer:

Two sentences later, “Because there was an old saying that money talks.”

And this is done indirectly, quite indirectly with his money.

And so it’s just as though you are making him say the things that you say to committees or that the AFL-CIO says, or that Railway Labor Executives’ Association says, or that some state candidate for office who may receive funds indirectly from the union says.

Money talks, that is, making you talk.

Felix Frankfurter:

Was there a — was there a decree which in terms defined what would be prohibited under this decision?

Milton Kramer:

No, the decree which is in the record at page 101, near the end.

Thus says that if the unions will come back and show that they no longer engaged in the aforesaid unlawful activities, we will reconsider the decree and perhaps dissolve it.

But it doesn’t say what aforesaid activities are illegal.

It just says the aforesaid illegal activities.

Now, it does say that the unions published a Newspaper Labor.

It does differ to the magazines that they’re better published.

It does differ to the unions engaging in legislative and political activities.

I assume it meant that all of that was illegal, although obviously, it is not illegal.

No one is asking that the unions be prevented from engaging on those activities, they seek — that they — they seek the sanction.

Not of preventing the unions from doing these things they don’t like.

But they seek the sanction of having a union-shop agreement that the unions have, declared invalid, because they do it.

Felix Frankfurter:

The burden of this opinion is this right, this agreement.

The burden of this opinion is that the Supreme Court of the United States has sustained the compulsory, a closed shop agreement on railroads.

That is that — and it was on railroads, must join a –a union and the burden of this opinion is to circumscribe what union activities legally may be, is that right?

Milton Kramer:

Well, the burden of the opinion is that — is that this Court sustained a union-shop agreement only to the extent that payment could be required for a fair share of the cost of collective bargaining, whatever that is, not including activities in the legislative or political or educational field.

Felix Frankfurter:

It — it says the constitutionally what collective — that the purpose is the subject matters of the collective bargaining are agreements or attempts to the agreements, defining hours, wages and working conditions in the narrow sense of those ends.

Milton Kramer:

And handling grievances, that’s all.

That’s the argument made by the individual appellees.

Now the railroad — it might talk about appellees that talk about the individual appellees.

The railroad appellees take no position.

They say despite between two other people.

Now, the argument that Section 2, Eleventh was invalid to supersede state law is something I don’t quite understand.

It seems to me it is necessarily an argument that the Constitution is unconstitutional or at least that the second clause of Article 6 is unconstitutional.

They say it is ineffective to supersede state law because if it supersedes the state law, assuming they, the right to work or didn’t accept the railroad industry, it deprives them of rights under state law.

It is the existence of state law that strikes down the federal statute.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Milton Kramer:

Now, normally when the question it provides is about whether —

William J. Brennan, Jr.:

Whether the — what — what in the Court’s opinion says anything like that?

I didn’t —

Milton Kramer:

No, that’s the plaintiff’s argument.

I’m just answering one of their arguments.

That’s —

William J. Brennan, Jr.:

This — this is no such thought as that in the — in the opinion below.

Milton Kramer:

Not in the opinion below, no.

William J. Brennan, Jr.:

They — they concede as I read their opinion that the Railway Labor Act as amended is paramount.

Milton Kramer:

Oh, but — but it’s invalid.

William J. Brennan, Jr.:

But then they proceed to hold that as certain aspects as — as here applied, are unconstitutional.

Milton Kramer:

That’s right, they see it’s invalid.

But it’s invalid because of the existence of state law.

William J. Brennan, Jr.:

But not the Supreme Court of Georgia?

Milton Kramer:

Not the Supreme Court of Georgia, no.

It seems to me that heretofore the inquiry has always been what did Congress intend when the question has arisen about whether state law was inconsistent with the federal purpose.

It was always an inquiry of intention, never an inquiry of the power of Congress to supersede where Congress can legislate.

And certainly Congress can legislate in the field of labor relations in the railroad industry.

No one questions that the federal prohibition from 1934 to 1951 that the union shop was valid legislation.

But then the — the question is always what did Congress intend, in fact this Court on numerous occasions, even in the absence of any federal legislation at all, has stricken state legislation because it found the state legislation inconsistent with the requirement of uniformity, of legislative restrictions with respect to interstate commerce.

If we strike down the federal statute because it supersedes a state law, we reach exactly the opposite result of what the Supremacy Clause was intended to achieve.

It isn’t Congress that strikes down the state law.

It’s the Supremacy Clause that says when Congress intends to, state law shall be inapplicable.

That argument necessarily comes down to an argument that Article VI is ineffective and unconstitutional.

Now, there’s been a great deal of talk in this case, reached below, reached n this Court, concerning government action.

And I — and so, the finding of the presence or absence of government action magically somehow makes action valid or invalid.

I think it would be beneficial if we examine a little bit what government action there is and the consequence of the government action.

Now, of course, the enactment of Section 2, Eleventh, was government action.

There was no question to that.

But what did Congress do when it enacted Section 2, Eleventh?

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Milton Kramer:

It repealed its own prohibition and declared its intention to preempt state law.

I submit that presents a different type of question, a different type of government action than if Congress had enacted a statute saying that no one shall work in a railroad unless he belongs to the Brotherhood of Railway Clerks.

That would present a different type of government action.

Here, all that Congress did was not prohibit an agreement, so providing, as saying state law shall not apply to the validity of that agreement, or similarly.

If Congress were to enact a statute, providing that a locomotive engineer, let’s say, shall get paid a stated number of dollars for each 150 miles in passenger service or each of a hundred miles in freight service, or eight hours whichever comes sooner.

With certain differentials in a quite complicated formula depending on differences and waits on drivers and with other differentials for short turnaround service.

If Congress enacted a statute, so providing, such a wage scale, you would have a very different question than you would have, when the issue is the validity of a collective bargaining agreement providing such a wage scale entered into by a union designated as the exclusive bargaining representative.

That’s a very different kind of question.

The government action here was minimal.

Repeal the prohibition and preempt it.

The Government did very little.

Now the plaintiffs, the appellees argue that there’s other kinds of government action here besides legislative but I think we can just go to that quickly.

They say that there was executive government action, because the union-shop agreement came about after mediation and after an emergency board made a report to the President.

And they say that, therefore, the Executive Department influenced the entering into of this contract and therefore you’d have this validity as though the government had ordered it.

Well, I submit but it’s simply nonsense to argue, that a contract which would be valid if entered into without mediation, is tested by a different standard of validity if entered into after mediation.

This just makes no sense.

They also argue that there’s judicial government action.

They tried to rely on Shelley against Kraemer, obviously misplaced because nobody, none of the unions here is asking any court to enforce any agreement.

So if there were anything to Shelley against Kraemer point, it is much too premature even to be considered.

In considering government action also, you must look at what is the complainant’s complaining about.

They rely heavily on two dissenting opinions in this Court, Pollack against the Public Utilities Commission, and the Black against Cutter Laboratories 351 U.S.

Now if we assume those dissenting opinions to express the law, let’s see what happened to the complaining party there and what happened to the complaining party here.

Mr. Pollack could not ride Washington’s buses without listening to the radio.

He was forced to listen.

Well, now, the AFL sponsors two radio programs and this union published magazine.

But nobody has to listen, nobody has to read.

They rely on the Cutter Laboratories’ case.

In that case, what happened to the person who was allegedly mistreated?

Doris Walker was fired because of what she believed.

She was fired because of what she believed.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Milton Kramer:

What happens to the people here?

They have to pay $3.00 a month.

Some of which gets spent for purposes of which they disapprove.

But that’s all they have to do to keep their jobs.

They don’t have to believe or disbelieve.

They don’t have to read, they don’t have to listen.

Just pay on the average, approximately of $3.00 a month.

William J. Brennan, Jr.:

The theory of course is that they’re forced here not to listen but to speak, to speak to — that their money is taken from them, compelled — compulsorily and in order to support speech in which they do not believe.

Milton Kramer:

That is right.

William J. Brennan, Jr.:

(Voice Overlap) in which they disagree —

Milton Kramer:

That’s is right.

William J. Brennan, Jr.:

Certainly it’s, something more than superficial, a comparison between those who are forced to listen and those who were forced to speak.

Milton Kramer:

Well, I — I submit it is not because they don’t have to do anything except pay a little bit of money.

William J. Brennan, Jr.:

It’s a part — it’s a part with their money, part of which is used to promote ideas and — in which they do not believe and with which they do —

Milton Kramer:

There are numerous cases.

Hugo L. Black:

Is that conceded?

Milton Kramer:

Is what — conceded.

Hugo L. Black:

The statement that’s made.

Milton Kramer:

That part of the money is spent —

Hugo L. Black:

That they are forced to pay money to keep that job to advocate ideas that they are against.

Milton Kramer:

Oh, no.

Potter Stewart:

That the money is used isn’t it (Voice Overlap) —

Milton Kramer:

No.

A portion of the money, after it was received by the union —

Potter Stewart:

Yes.

Milton Kramer:

— is used to support or oppose legislation.

Well, to support legislation which they opposed, or to oppose legislation which they support.

Potter Stewart:

That’s it.

Milton Kramer:

A portion of it is, but what kind of legislation?

There would be time to enact the amendments.

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Milton Kramer:

There will be labor act amendments, some other things when it gets to the AFL-CIO.

Hugo L. Black:

Would that make any difference if they are right in their contention as what kind of legislation it is?

Milton Kramer:

Well, my point is that’s the type of legislation.

It’s a type of activity in which unions normally engage, had always have engaged.

It’s the kind of things that I submit unions would be derelict, in their duty if they did not engage in.

Felix Frankfurter:

But — but even some union members have strange notions of liberty, don’t they?

Milton Kramer:

They certainly do.

I — I —

Felix Frankfurter:

They don’t want — they don’t want any restrictive legislation.

Milton Kramer:

Of course.

Felix Frankfurter:

They didn’t.

It’s only yesterday.

Only yesterday in the matter of speaking with the AFL oppose minimum wage laws for women, only yesterday.

Milton Kramer:

As if, well, you mean because limited to women.

Felix Frankfurter:

Pardon me?

Milton Kramer:

Because limited to women.

Felix Frankfurter:

Oh, no, because family introduced in favor of men, too.

Therefore, I’m taking about the course of events.

That there wasn’t — wronged people have got the nerves about such things, they don’t want —

Milton Kramer:

That’s right.

Felix Frankfurter:

— legislation.

Milton Kramer:

But what are these people forced to do, pay $3 —

Felix Frankfurter:

So that the (Inaudible) the answer you gave to Justice Black doesn’t cover those people or those notices, perhaps a chance to have no notions of liberty.

They don’t want any kind of —

Milton Kramer:

That’s right.

Felix Frankfurter:

(Voice Overlap) — any kind of state intervention.

Milton Kramer:

And in very recent, today, there are union members who oppose seniority because the older people get the benefit of that and the younger members would rather not — passing out the provisions in the contract.

There are three cases, very recent ones in which union members sue to attack the validity of a collective bargaining agreement imposing compulsory retirement at age 70.

Felix Frankfurter:

I’m sure there are many union members who would oppose loosening up immigration laws.

Milton Kramer:

That’s right, and there are some who favor it.

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Milton Kramer:

Anything that the union does, will have — well, if it’s a controversial subject at all, will have people on one side, and people on the other.

Now the case —

Hugo L. Black:

Does that — does that answer these questions?

Milton Kramer:

I —

Hugo L. Black:

The question raised is whether you can afford and people to pay money, a part of which will be used to advocate and views that they uphold public views or to oppose public views that they favor.

Milton Kramer:

Yes.

Hugo L. Black:

Is that conceded, is that — that this case does do that?

Milton Kramer:

Well, to —

Hugo L. Black:

And if you win this case, is that your basis?

Milton Kramer:

If we win this case, we’ll keep on doing on the same thing we have been doing.

Hugo L. Black:

Well, does it mean that these people afford to hold a job, in order to hold their job to pay money, which is to be used to advocate public views that they oppose or to favor public views, which they again —

Milton Kramer:

Well, I’m not sure I understand what you mean, by public views.

Hugo L. Black:

Well, I’m forced to leave out the words, public views that have to do with legislation that have — have to do —

Milton Kramer:

Yes.

Hugo L. Black:

— with social policies, it has to do with problems that people are interested in as citizens and as members of society.

Milton Kramer:

Yes.

Hugo L. Black:

Well, suppose you were to use this for some purpose.

Suppose you were taking it and using it for some purpose that the union ought to be again.

Milton Kramer:

Well we have the —

Hugo L. Black:

From your view — from the viewpoint of the union.

Do you — do you take the position that the majority of union members have a right to decide what public — what questions relating to public policy, his money will be used to advocate?

Milton Kramer:

In part, yes.

It will be used in part to advocate.

Hugo L. Black:

Used in part, but it will make no difference, I suppose, as I recall one of the earliest statements was that if even a penny’s worth of something was used that public money to pay a tax and for purpose of that kind, that it would be unconstitutional.

Milton Kramer:

No, Your Honor, the case is directly analogous not in this Court, but the integrated bar cases, a very recent one, who has to come raise exactly that issue.

A man sued to get back his $15.00 in the Wisconsin Integrated Bar on the ground that the Integrated Bar engaged in legislative activities, favoring or apposing, I forget which, legislation with his own views were the other way.

Hugo L. Black:

Well that — that does —

Milton Kramer:

Exactly this case.

Hugo L. Black:

That doesn’t settle it, because that doesn’t settle that he’s right or wrong because of a suit that’s been filed.

That’s not been decided.

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Milton Kramer:

No, he’s — he’s lost the case.

It had —

Hugo L. Black:

Well —

Milton Kramer:

It was decided two weeks ago.

Hugo L. Black:

Did it come up here?

Milton Kramer:

Not here.

Only decided two weeks ago, but prior to that, in — in a decision that was not contested, the Wisconsin Court had said the same thing.

That when the — when the labor — when the — when the bar association expresses views, publicly or anyway, before legislature, everyone knows or should know that is — it’s expressing the organization’s views.

It is not expressing the views of all its members.

It’s expressing the policy of the organization as a whole, and that it may be assumed there were dissidents in the organizations.

William J. Brennan, Jr.:

Well, Mr. Kramer —

Milton Kramer:

That it is desirable.

Pardon me.

William J. Brennan, Jr.:

Is there an element in this case of the use of some of these funds to support candidacies of particular candidates, who some of these plaintiffs might oppose?

Milton Kramer:

Not — not by name, no.

William J. Brennan, Jr.:

But is there such element?

Milton Kramer:

That this evidence that the Newspaper Labor, for which subscriptions are a purchased for some of the members of some of the unions had supported particular candidate.

But that’s the only place particular candidates are named.

That is where union money is used.

Felix Frankfurter:

But if the — if the machinists contribute either per capita or a lump sum to the AFL-CIO, and the AFL-CIO will come out to Mr. Jones in the next presidential election, I think that he’s not yet announced his entry into the primer that Mr. Jones may have in mind.

Earl Warren:

Jones Smith.

Felix Frankfurter:

Jones Smith.

It would be true, would it not?

There’s no use in gainsay that every member of your union wouldn’t be for Jones Smith.

Milton Kramer:

I think it, quite certainly, will not.

They will vote as they please, if the use the money —

Felix Frankfurter:

But that’s of part of his money.

I mean is there any point to denying the fact that some of these, some of them — that the part of the money, a fractional part of the money, that the members of this union must consider in order to become members of the union and therefore in order to be able to get a job, would be used in support of measures and then the ‘X’ number of members of the machinist would be against.

Milton Kramer:

I think that is —

Felix Frankfurter:

All right.

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Milton Kramer:

— almost certainly, so.

I’d like to save some time for rebuttal.

Just one point more I’d like to make in response to Justice Black.

And that this, if the use of money forcibly extracted from an individual to support purposes or activities or views which he opposes, is unlawful, then the voice of America supported by tax funds appropriated by Congress or the salaries paid to chaplains in the Armed Forces, appropriated by Congress on tax moneys, would all be unconstitutional because there are people who are isolationists, who are taxpayers, and there are people who are atheists who are taxpayers, and as an atheist could refuse to pay his taxes because if his money is being spent with much greater compulsion than is here, his money that’s extracted with greater compulsion and used to express views and advocate policies of which he disapproves.

Now, there are other reasons the case should be reversed.

We’d like to save some time for rebuttal.

They’re all discussed in the brief but I submit that the clearest disposition of this case is that, this case is the same as Hanson only the arguments were made up and disposed of there.

Earl Warren:

Mr. Gambrell.

E. Smythe Gambrell:

May it please the Court.

I represent several named workers of the Southern Railway Company, who in turn represent several hundred or thousand members of a class of employees.

I have no connection with the Southern Railway Company or with the unions.

We arrived here six and a half years after the legislation started in the state courts of Georgia.

The trial judge at (Inaudible) as has been said first dismissed our suit against the railroad and the unions ought a general (Inaudible) The Supreme Court of Georgia reversed that dismissal when it discovered that fundamentals rights of men were to speak.

A patient in pain who is taking trial on the merits came five and a half years after our suit was filed.

All parties agreed that the judge might pass on the law and the facts, without a jury.A great mass of evidence was introduced.

The findings and the decree were in favor of my clients.

On the appeal, the Supreme Court affirmed the judgment of the court below.

This obviously, is a case of great moment and my concern has been and is, with the dignity and worth of the individual.

Hugo L. Black:

What’s relief was asked?

E. Smythe Gambrell:

We ask for an injunction to stop the enforcement of Section 2, Eleventh allowing this union shop under the circumstances under which it was administered.

That is, with rampant politics mixed in with it.

Hugo L. Black:

Did you ask for a relief to an injunction to bar the paying and accepting of money to be used for this purpose without attacking the statute?

E. Smythe Gambrell:

We attacked the statute and we sought the refund of the money which we had paid and an injunction against collecting further money.

We asked that the contract the union and agreement be declared unconstitutional, as in violation has administered in violation of the Bill of Rights.

Hugo L. Black:

We’re talking about relief is, it — if anyone decides to renew do they have the hold that whole section allowing a union shop unconstitutional?

E. Smythe Gambrell:

Well, Your Honor, there is the contention on the other side here that the — that very obviously, this Act contemplates what they call the continuation of a free practice of politics which they claim in their briefs they’ve had for 100 years.

Hugo L. Black:

I’m talking about your claim, now.

E. Smythe Gambrell:

Well, if that — if that is the law, if that is what Congress intended, we wish to have the Act declared unconstitutional.

Hugo L. Black:

That’s you’re — that’s your complaint here, and that alone.

I should —

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E. Smythe Gambrell:

We — well, we want it enjoined.

Hugo L. Black:

What enjoined?

E. Smythe Gambrell:

We want the enforcement of that law enjoined.

The enforcement of the contract enjoined.

And we would like to have the law, as administered, declared unconstitutional, as they — as they’re using it as a (Voice Overlap) —

Hugo L. Black:

Suppose you’re right in your contention, do you — do you think it has the — the whole Act has to be declared, that section has to be declared unconstitutional?

E. Smythe Gambrell:

Well, it’s conceivable that some other treatment might be given it but —

Hugo L. Black:

So, what you’re — I understand what are your plans, objective is paying money —

E. Smythe Gambrell:

Yes, sir.

Hugo L. Black:

— that is to be used for political purposes.

E. Smythe Gambrell:

Yes, sir.

Hugo L. Black:

And that’s the relief you have.

But just you’re now arguing that as I understand it —

E. Smythe Gambrell:

Yes, sir.

Hugo L. Black:

— that this entire section would be held unconstitutional.

E. Smythe Gambrell:

That’s Section 2, Eleventh, not the — not the entire section but the section which grants an exception to other parts of Section 2 which would prohibit a union shop.

This is not a repeal.

This is merely an act to grant an exception to a law which has many parts and many ramifications.

Potter Stewart:

Mr. Gambrell, this —

Hugo L. Black:

Would you — would you particularly asked in your — or is there before us any issue that’s been decided or is it raised that you have asked to enjoin the use of money which these people pay for political purposes.

Are you just striking at the whole statute?

E. Smythe Gambrell:

Oh, oh, we are striking to get the statute, Your Honor.

Hugo L. Black:

You do not raise the other question?

E. Smythe Gambrell:

Well, it might be implied as included.

We have not talked about it because nobody has talked on that subject in that way.

The opposition has preferred to talk in terms of the whole hog and nothing as one might say.

Hugo L. Black:

I — I heard that.

E. Smythe Gambrell:

Yes.

We think that if — if there has become a concept encrusted upon this law to the effect that — that full and free lobbying and politicking is a part of their program and if they are permitted to do it, we are meeting them head on because we are sure of our facts and we are sure that it does contravene the fundamental rights.

Potter Stewart:

Is there any showing of the — what fraction of these dues are used for purposes which you would claim are —

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E. Smythe Gambrell:

That the — Justice Stewart, at least 30 or 40 times the word “substantial” is used.

There’s such a variation that we couldn’t get down to details on how many pennies.

Now it seems to me —

Potter Stewart:

This was, of course, the court of equity wasn’t — was not?

E. Smythe Gambrell:

Yes, sir.

Potter Stewart:

And I’d supposed in your State as — in your State as in most states, the chancellor has a good deal with freedom and fashioning —

E. Smythe Gambrell:

That’s right.

Potter Stewart:

— to accomplish equity.

E. Smythe Gambrell:

There were hundreds and hundreds of potential parties that interest in the case and we had to try the basic principles and we tried the accounting in respect to those present, but we have a thing —

Potter Stewart:

And I was wondering if — I was wondering if any consideration at all is given or if the issues were shaped in such a way that any consideration could be given to the transfer is working out by — in terms of a decree, the same kind of a thing that Mr. Justice Frankfurter just referred to early in the argument.

It’s done in England, enabling a — a person to contract away, or contract out of a union-shop to the extent that these funds are used to promote beliefs and ideas in which he does not believe, and — and with which he disagrees.

E. Smythe Gambrell:

That would create, sir a — an intolerable living condition for the men in this industry.He would be known as a scab.

He would be despised.

It certainly couldn’t promote goodwill between working men and industry or between working men themselves.

I would like to move on as quickly as possible to a disclosure of the facts.

There seems to be considerable lack of information, which I’m sorry, the other side has not given regarding the facts in this case.

And I want to move immediately to page 153 of the record.

I wish I had time to go in detail, but you will see that they have 26 depositions taken, 31 additional depositions noticed and under subpoena.

That’s on page 157.

There were some others where commissioners were appointed and that depositions were about to be taken including the president of AFL-CIO, that’s on page 161.

Earl Warren:

Yes.

E. Smythe Gambrell:

Now, someone asked who are the people who get this help politically?

And opposing counsel very quickly said, “They are not named here.

Well, some are named.”

But I would invite you to look at page 162, which says, “Whereas the union defendants have suggested to the plaintiffs and intervening plaintiffs that most of the material facts in this case could be adduced and condensed through a mutual stipulation in writing.

And the plaintiffs and intervening plaintiffs have agreed thereto subject to the approval of the Court.

Then a stipulation is written, about a 55-page stipulation.

And I’m sure that the other side will not question the fact that their request for a stipulation, when we are in the midst of taking these depositions of these leading people here in this city and in other cities across the country.

The Idea was, on their part, to spare the beneficiaries if this lodges, the embarrassment of having their names paraded in an open deposition.

Now, I want to move on rapidly to — to certain parts of this stipulation which are factual and was signed by all the lawyers in this case and which were testified to by leading officials as being correct.

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E. Smythe Gambrell:

This is the most amazing labor document that I have looked at in my entire life where we spent three months hammering it out around the table.

And we have tried to avoid here, mentioning the names of people.

You’ll find on page 166 substantial number of other employees similarly situated.

Paragraph (6), substantial number of employees of the railroad defense whose employment was just terminated and so on, that’s unquestionable.

That plaintiffs and intervening plaintiffs fell and adequately represent the purposes of this litigation, for the purposes of the litigation, the interest of the other employees and so on in detail.

8 and 9 refer to this as being a class action.

They laid a question there.

But I’m coming on to something more interesting than that.

We go on to page 171.

Each of the plaintiffs and intervening plaintiffs was employed for many years by one of the defenders and so on.

The periodic — the 15, the periodic dues currently required to maintain this organization to espouse.

And you will find there on pages 172 and following, a list of fees, initiation fees, reinstatement fees, going on through 175.

But I must move rapidly.

Page 176 has a startling statement, paragraph (19).

The periodic dues, fees and assessments which plaintiffs, intervening plaintiffs and the class they represent have been or and will be required to pay under the terms, the union-shop agreement here and above referred to, have been or being and will be used in substantial part, Mr Justice Stewart, for purposes other than the negotiation, maintenance and administrations of agreements concerning rates of pay, rules and working conditions or hours, or wages, hours, terms and other conditions of employment, or the handling of disputes relative to the above.

But to support ideological and political doctrines and candidates which plaintiffs and intervening plaintiffs and the class they represent by — the class represented by them, will, are and will be opposed to and they’re are not willing to support.

Paragraph (20) describes the mechanism and how the money goes through and that’s undisputed.

Paragraph (22) goes on into detail about the mechanism.

Paragraph (24) then (25) refers to the Railway Labor Executives Association, and talks about that organization and that man named at the bottom of the page CTN is the man whose deposition we were about to take when they decided they wanted this stipulation instead of the deposition.

Page 180, paragraph (27), the activities of the Railway Labor Executives’ Association have been on and will be financed through assessments levied upon the above mentioned organizations and so forth.

And you see the money involved there.

And you go on, on page 182 to the Railway Labor’s Political League and you see the money on subsequent pages involved in that.

And then we see a reference now and then to a so-called free funds, which they claimed was not useful but was what you might call voluntary contributions in addition to this sort of thing, which that these agencies handled or salaried as they are by the money that my clients pay.

Paragraph or page 186 is a very interesting page.

The class represented by plaintiffs and intervening plaintiffs includes members of both major political parties.

The 1956 Railway Labor Political League contribute — in 1956, contributed substantial financial support to the national committee of one major national party, political party and locked to the other.

In 1954, the same thing, in 1956, to eight U.S. Senatorial candidates of one party and none of the other, in 1954, to 13 candidates of one party and none of the other, there’s a stipulation further down that says it always was the same party and the same posture.

In other words, they didn’t alternate.

It was always on the same pattern.

In 1956 to 64 Congressmen of one party, congressional candidates and four of the other.

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E. Smythe Gambrell:

In 1954, to 56 congressional candidates and six of the other — other party and three gubernatorial candidates against none for the other party, I wish time permitted us to go into that.

I — I do want to speak out of turn when I urge you to read this as something that will give you a complete grasp of the horrible situation in which my clients find themselves.

It happens here that the — the swing seems to be in favor of the party that I was born and raised then in South Carolina.

It doesn’t matter which party it belongs to.

I see that if they’re Republicans in organized labor, who are qualified otherwise to do their work, they should not be outlawed and they should not be blackjacked into giving contributions to my party or to any other party, but they should be able to stand up like free men.

Charles E. Whittaker:

Mr. Gambrell —

E. Smythe Gambrell:

Yes.

Charles E. Whittaker:

May I ask you please to make sure I’m following you.

Are you arguing now that the Hanson case was wrongly decided?

E. Smythe Gambrell:

No, sir.

I — I think — I’d like to go on with the rest of this and I think I haven’t time.

I think I’ve given the — the Court enough that they’re going to read on in this because there’s a lot of the same thing here.

I want now — now to go to the Hanson case because you’re entitled to something more than you’ve had about the Hanson case and I want to give it to you.

The Hanson case was decided in 1956.

I had nothing to do with it.

These gentlemen here tried, as they tried most of the cases that are closely related to this subject here.

They are experts, full time experts.

I — I went around the other day to dig up the record in the Hanson case and I have it here.

And I dug up the — the transcripts of the argument right here in 1956.

I found the lawyer, Mr. Edson Smith in Omaha who — who happened to have it, and I’m going to refer to some things that were said in the trial of that case.

I want to tell you without fear of contradiction that there’s not a scintilla of evidence in the Hanson case, evidence of use of political funds compelled from unwilling laborers.

Not one iota, in that case.

Charles E. Whittaker:

I don’t understand the case to mention the subject.

E. Smythe Gambrell:

I — I’ll go on.

I think I can clear, Your Honor, on that.

This case was tried like Justice Frankfurter and I used to try some factitious cases in Harvard Law School.

We just sat up there and — this case was tried on supposition.

I’m — I’m looking at the transcript now by an official Court reporter, page 19.

Here is the argument by Mr. Smith who was standing in my place here.

I — I didn’t know it.

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E. Smythe Gambrell:

Now, in order to make the case clear, I think it’s necessary to go into the legislative history of the statute and get some of the facts.

The only place they got the facts within legislative history.

This statute, he says on page 25, affirmatively authorized a union-shop contract compelling people to become members — a labor union of a — of an association or a union they — that they have to join.

That was made clear by the legislative history.

Now, that’s the proof they had in this case, just a few documents of legislative history, a few copies of charters and bylaws but more of the accounting such as we’ve given here about money extracted.

That case was tried prospectively.

That case was tried in the beginning before anybody had gotten hurt by the Act and it was tried suppositiously.

Charles E. Whittaker:

I’ve just finished rereading it.

Not — I do not see that it mentions the question of the improper or proper — facts.

E. Smythe Gambrell:

I think it gets mentioned.

I think it gets mentioned in the Nebraska decision.

Charles E. Whittaker:

Well.

E. Smythe Gambrell:

I think the Nebraska Court just accepted this supposititious talk and later on and gave a decision without any evidentiary record.

This is typical.

He says, “This is Mr. Smith representing the independence.”

He said in one of the letters which didn’t get before Congress because the congressman had no time to put it in, but he put it in the record by extending his remarks in a letter from a railway telegraph.

He said he quit the union because he found that most of his dues, $28 a year was being spent by the union to oppose such men as Honorable Robert A. Taft and he didn’t like that.

Now, this piece was tried on gossip, good-natured friendly gossip, but no evidence at all, tried it on the — on legislative reports and things of that sort.

It says here, annexed, Mr. Smith on page 31 speaks of an excerpt from the Senatorial committee reporting —

Earl Warren:

What are you reading from?

E. Smythe Gambrell:

I’m reading Mr. Smith’s argument in which he bases his argument here before this Court.

Earl Warren:

What case?

E. Smythe Gambrell:

Hanson case.

Earl Warren:

Is that material and some other things we need to know in this case?

E. Smythe Gambrell:

Well, someone wanted to know how this — how the Hanson decision came up.

Earl Warren:

Well, not that —

E. Smythe Gambrell:

I would say —

Earl Warren:

But how do you distinguish that —

E. Smythe Gambrell:

I would say this, that the Supreme Court of Nebraska accepted a supposititious situation and acted upon it.

And it would — it came here, apparently this Court looked at it and decided that it wouldn’t go on supposititious rectitude.

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E. Smythe Gambrell:

And this Court’s rule, Mr. Justice Douglas said, “The Supreme Court of Nebraska said such action on the part of Congress is a necessary part of every union-shop contract entered into on the railroads as far as these 17 states are concerned.

We will agree with that view.

If private rights are being invaded, it is by force of the agreement and so forth.”

He proceeds and says that on the basis of the present record, he cannot find any basis for constitutional attack, and I can’t either.

There wasn’t any evidence there on which to base the constitutional attack in that case.

So, he looked through what the Nebraska Supreme Court didn’t look through and he saw he had nothing but a stack of — of papers that were not evidence.

He says that he he’s argued that compulsory membership would be used to impair freedom of expression.“But that problem is not presented by this record,” he said.

Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects periodic dues, initiation fees, and assessments.

If other conditions are in fact imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.

Today, we have brought that case here which the Court in the Hanson case reserved judgment upon.

We have here in facts, “too full to handle,” all the evidence that you could possibly read in the next two or three months on that subject if you were disposed to do it.

If Mr. Justice Douglas said, “For we pass narrowly on Section 2, Eleventh of the Railway Labor Act.”

We only hold that the requirement for financial support of the collective bargaining agency by all who receive the benefits of his work is within the power of Congress under the Commerce Clause and does not violate either the First or Fifth Amendment.

We are not here contesting the Hanson decision of this Court.

I — I think there might be some who would say that that goes quite far, to say that an individual with the dignity which attaches to the individual, who should have to give up his right to conduct his own negotiations,” which he does under the Hanson decision as far as his economic arrangements with the company goes, he must give up willingly or unwillingly, he gives that up.

We are not questioning that.

We’ve never questioned that.

What we say is, that the Hanson case goes not beyond collective bargaining, as it plainly says on its, and Mr. Justice Frankfurter limited his concurrence in the same language.

We say that when they go beyond that and they have many paragraphs in that stipulation which I was reading to you, which say plainly that they do go beyond that.

Charles E. Whittaker:

Well, then maybe I don’t understand.

I thought your complaint here sought an injunction against the enforcement of — of 2, Eleventh.

E. Smythe Gambrell:

That’s right.

Charles E. Whittaker:

Not limited to a misuse of funds but the enforcement of 2, Eleventh, is that right?

E. Smythe Gambrell:

Limit — injunction against the — the use of 2, Eleventh as it’s being used now.

The Court said if they withdrew from the abuses, then the Court would reconsider the order.

Charles E. Whittaker:

The Court had held in Hanson that 2, Eleventh was constitutionally —

E. Smythe Gambrell:

Yes.

Charles E. Whittaker:

— valid and preempted state to a legislation, and now you say you don’t challenge Hanson and yet you say that you’re entitled to an injunction against enforcing the 2, Eleventh, is that what you do?

E. Smythe Gambrell:

The Court didn’t have the facts before it in that case.

And on the facts it had, it had to render the decision or at least it — if they were justified in rendering the decision it did because there was not a scintilla of evidence of political use in the Hanson record, not a scintilla of positive evidence.

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E. Smythe Gambrell:

Now, the Court hears from these gentlemen that their regular way to do business is in politics that when they undertake to conduct economic negotiations as a collective bargaining representative, they, at the same, claim other prerogatives and that the majority, can you say, the political rights of the minority in supporting candidates and in supporting legislative measure.

Charles E. Whittaker:

Now, wouldn’t an injunction against that activity on the basis of claim to legality be quite a different thing from an attack upon the constitutionality of 2, Eleventh?

E. Smythe Gambrell:

Well, we’ve sought an injunction and we’ve — we’ve sought an injunction and we’ve sought a declaration of unconstitutionality as the Act is now enforced.

It’s all inclusive.

We want whatever seems to prove it.

We sought an injunction because it’s unconstitutionally applied to us.

We sought in addition to an injunction, a declaration, a declaratory judgment that the law — that the contract is illegal as enforced, and that the Act is unconstitutional as it seems.

We had several prayers.

We want whatever is right to get justice for these working people.

I was interested in the brief which was filed amicus curiae by the AFL-CIO in this case.

They seem to take the bold position that politics is the main business of unionism and that it must continue to be.

We take the position that the rights about saved by the First Amendment and the other amendments of the Bill of Rights are absolute rights.

We further take the position that there is no agonizing alternative confronting this court.

Sometimes, I know two great principles compete with each other for recognition.

We don’t have that situation here.

We are not here fighting in any way trade unionism.

We’re haven’t the slightest quarrel to make with the institution of trade unionism which certainly has been accepted as a part of the American life.

We do say that, in this particular, trade unionism needs some advice to protect it against its own folly.

If this practice which they so boldly admit, is sanctioned here, it would mean that there would be no end to where certain losses might lead labor unions of divided settlement as I mentioned a while ago.

The evidence is undisputed here that they have no referendum that the decisions on candidates, the decisions on measures, on me, by the individuals and the committees at the time.

AFL-CIO says an adverse decision might in effect compel all these unions either to give up the union-shop or to abandon their tradition on ascension activities in the political and legislative views.

I see no reason for that.

They have asked the Government and over a period of years, the Government has made them trustees of government policy.

The Government through a complex of numerous laws including the Railway Labor Act had designated these unions as instruments of government policy, have given them a governmental dignity, have made them trustees of certain rights and obligation not only to themselves but to society at large.

If they desired to at making this contract, to become that trustee, we ask them to discharge their obligations under the trust in accordance with the spirit of the Bill of Rights.

We are not trying to interfere with any voluntary associations whether they would be bar associations or labor organizations.

Somewhere in here, the AFL-CIO makes a remark like this.

They say, “Yes, the Government helped us, the Government forces you to come in and join and pay us this money, but we are a private officer.

There’s no law.

There’s no executive.

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E. Smythe Gambrell:

There’s no anybody who can tell us what we do with this money when we get it.

That’s stated in here two or three times and I won’t have the time to find it.

Now I say that’s a dangerous state of mind to be in for the salvation of labor itself, the Constitution ought to be brought in here.

When — when an agency accepts a governmental status, it accepts the inhibitions of the Constitution.

Here are some words that interested me in the AFL-CIO document page 12.

As was said by a political philosopher whose credentials antedate date even those of this Court, “A state arises out of the needs of mankind.”

Now, he goes on and says, “To determine the proper objects of this “Labor State” or specialized government instrumentality which we are now assuming a union is and to determine what they reasonably be selected to attain these objects, one must look to the needs of the labor in there.”

I want to say here that this Court has never been quick to whittle away the fundamental rights in the First Amendment for every passing breeze.

Could you, at some point, Mr. Gambrell, indicate what you would conceive to be the outside constitutional limits on the use of dues?

E. Smythe Gambrell:

Well, it is not easy to do.

It may be that the — a decree or a judgment would have to outline in principle what it would be and then leave for specific litigation from time to time.

They admit that they had gone further than what germane.

They — they spent money here for the development they’ve held as opinion.

I mean they recommend it.

They — the have a big interest expressed and they support in foreign aid.

They — they deal with many subjects completely apart.

Now, I say regardless of whether one is a democrat or republican or a communist, he shouldn’t be bound by the capricious selection through half a dozen top men in these organizations of certain things which this man has got to support.

Somebody says, “Well, maybe he can take his money and go out and do the way he wants to within outside just so long he pays this.”

Maybe the average working man can’t afford but $60 a year.

Would you go so far as to say that all within the limits of — that that’s in collective bargaining the dues could be used for such purposes?

E. Smythe Gambrell:

So long as the — as it relates to the negotiation between the employee and the employer.

You mean specific bargaining?

E. Smythe Gambrell:

Specific bargaining in relation to wages, hours, working conditions, and things of that nature.

Somewhere in here there’s a statement — here it is at the bottom of page 25.

This is an arrogant document, this is an AFL-CIO.

It says, “Labor generally had — at least they’re giving the history and expressing impatience with anybody who questions their full political rights to operate through a government instrumentality.

“Labor generally had found unsatisfactory the record of the Eisenhower administration on unemployment, taxes, housing, federal aid to education, and physical and monetary measures.

Redress once again was sought and proposed.”

Now, I don’t know just what the bright line is, but I would say that there’s much in that statement that has no relationship to the collective bargaining which Mr. Justice Douglas spoke of in his decision and to the collective bargaining which was contemplated under the Act.

We take no sides in party matters.

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E. Smythe Gambrell:

We are interested in constitutional law.

We are interested in protecting the rights of our client and those they represent here.

Hugo L. Black:

Well, how could you represent anybody that’s applied in this case?

E. Smythe Gambrell:

We represent several people by name.

And there is a stipulation here in the record which says that they represent a class similarly situated.

That’s a stipulation that there’s quite a division between Republicans and Democrats for instance in the constituency of that — of the employees.

Hugo L. Black:

And you don’t — you don’t claim the right to speak for them, do you?

E. Smythe Gambrell:

We speak for those who are like-minded so that when this is over, this issue would not have to tried by every poor laborer who —

Hugo L. Black:

The — the Court —

E. Smythe Gambrell:

— might not believe.

Hugo L. Black:

The Court reserved in a — both the concurring opinion and the Court opinion in the Hanson a question that would come up if someone who is forced pay dues to be used politically of some — something of that kind.

E. Smythe Gambrell:

Yes, sir.

Hugo L. Black:

And they’d bring the case here.

But you are asking not to protect the people who are –are not or willing.

You’re asking not merely to protect your client who doesn’t want to pay but you’re asking to invalidate the law so that people who want to pay, pay voluntarily.

E. Smythe Gambrell:

Well, if the law is —

Hugo L. Black:

(Voice Overlap)

E. Smythe Gambrell:

If the law has setup and — and improperly administered or improperly conceived, Your Honor, we feel that it — it should be stricken regardless of whom it affects.

Hugo L. Black:

Even — even if the people want to pay voluntarily to the fund to —

E. Smythe Gambrell:

I don’t believe that it’s consistent with sound constitutional law, that protection of the fundamental rights to indulge an unconstitutional —

Hugo L. Black:

Whose —

E. Smythe Gambrell:

— practice.

Hugo L. Black:

— whose fundamental rights?

They have a right to their rights, too.

I — I’m — I’m not saying that, but you know where — for your client.

E. Smythe Gambrell:

Well —

Hugo L. Black:

But you are speaking now for people who evidently, do they —

E. Smythe Gambrell:

I’m speaking —

Hugo L. Black:

— want voluntarily to pay?

E. Smythe Gambrell:

I’m speaking for the great number who also object.

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Hugo L. Black:

And you’re not — you have limited your complaint, however, to them.

You haven’t sought to stop these particular people, protect these particular people from paying that particular money on account of the fact that they disagree.

You are seeking to invalidate the whole statute.

E. Smythe Gambrell:

We are seeking several things, Your Honor.

One was to enjoin the enforcement over there since it’s personally being enforced there.

Another was to have it declared unconstitutional here.

And we also are seeking — we’re representing those who are similarly situated in opposition to the law.

And we couldn’t name them all.

They are too many to name.

We got — we got a decree for a refund of the dues which our own immediate clients, name clients —

Hugo L. Black:

Do you have —

E. Smythe Gambrell:

— that paid.

Hugo L. Black:

Do you have that decree now?

E. Smythe Gambrell:

It’s in this case.

Yes, sir, for a refund.

That’s right.

What page is that at?

E. Smythe Gambrell:

I’ll have to find it.

William J. Brennan, Jr.:

Page 106, isn’t it?

E. Smythe Gambrell:

Possibly so.

William J. Brennan, Jr.:

Is it — what’s that?

E. Smythe Gambrell:

101.

William J. Brennan, Jr.:

Yes.

E. Smythe Gambrell:

101.

Hugo L. Black:

If that’s sustained —

William J. Brennan, Jr.:

(Voice Overlap) —

Hugo L. Black:

— that’s sustained for your clients.

How do you know that anybody except them want to attack this law on the ground and how do you know they don’t want pay it voluntarily?

E. Smythe Gambrell:

Well, if they don’t, I suppose that — that’s something for them to decide.

Hugo L. Black:

But if your case should be affirmed — your client — your actual clients, you’d have what you’re after and do what you want is to protect these particular working men whose money has been paid out that they’d spent or might be spent for purposes that they don’t like.

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E. Smythe Gambrell:

If Your Honor, please.

I don’t believe that the test of constitutionality that the object it’d test would — would depend on the– what — whether everyone objects to it or not.

Hugo L. Black:

Well, you wanted — you want to have that whole Act and say it’s unconstitutional even though it’s being used that other people objected.

E. Smythe Gambrell:

I think Your Honor, please, that there is such a solicitude in this country for constitutional law that not one citizen of this country should be sacrificed even —

Hugo L. Black:

But that’s so —

E. Smythe Gambrell:

— though others are not complaining.

Hugo L. Black:

Well, that could happen because every citizen who’s claimed his constitutional right is affected — can protect it if — like your clients have done a decree here assuming that their position should approved.

E. Smythe Gambrell:

All I can say is that — that we are fighting for the principles of freedom.

And we have to make our case on the people who are in here, and we cannot curtail their rights because we may not know what some other people want to do with their freedom.

Some people would like to have the comfort of the yoke.

Hugo L. Black:

It would —

E. Smythe Gambrell:

— my clients don’t want the yoke.

Hugo L. Black:

It wouldn’t — wouldn’t curtail the rights of anybody or your client, would it?

To give them their money back, hold that they are entitled to their money back because we’ve used for purpose not authorized under the law.

That wouldn’t curtail the rights if you —

E. Smythe Gambrell:

It seems to me it would only multiply litigation, Your Honor, and that’s not one of the purposes this Act which ensued.

Earl Warren:

Mr. Gambrell, is — isn’t this getting pretty close to the — the same principle that you have in an integrated bar?

E. Smythe Gambrell:

No, sir.

An inquiry —

Earl Warren:

What is the difference?

E. Smythe Gambrell:

No integrated bar practices politics at its action.

Earl Warren:

Oh, yes you do.

E. Smythe Gambrell:

You have just lots of bar associations who practice it —

Earl Warren:

Yes.

E. Smythe Gambrell:

— but — and if an integrated bar does practice politics, it — it ought to be brought right here.

Earl Warren:

Well, let me — let me say this.

They — they get into the United Nations situation.

They get into the Bricker Amendment, and they get into all kinds of things like the —

E. Smythe Gambrell:

Then there’s the bar association, that’s not an integrated bar.

Earl Warren:

But you don’t think —

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E. Smythe Gambrell:

It is not a government option —

Earl Warren:

Don’t — don’t they spread the gospel to the state bars and don’t the state bars get into it too?

E. Smythe Gambrell:

No, sir.

They —

Earl Warren:

Are you sure of that?

E. Smythe Gambrell:

State bars usually have two organizations.

One is a volunteer that practices the politics.

Mr. Justice Black’s home State I think was the first one.

And that they do not practice politics.

I think they’ve had this integrated bar now for 38 years.

Earl Warren:

Well, it’s a question of what you call politics, but they do discuss public questions.

They do have — they do have representatives at the legislatures that go there and spend the money of the — of the members to — to promote things that some members don’t agree with at all.

E. Smythe Gambrell:

As long as it’s not or an association, it doesn’t matter.

We’re (Voice Overlap) —

Felix Frankfurter:

I beg your pardon?

E. Smythe Gambrell:

— not attacking that at all.

Felix Frankfurter:

What’s that?

E. Smythe Gambrell:

We are not attacking voluntary arrangements in labor or in the bar.

Earl Warren:

Now, Mr. Gambrell, an integrated bar is not a voluntary association.

E. Smythe Gambrell:

No, sir.

Earl Warren:

You belong to it or you don’t practice law.

E. Smythe Gambrell:

That’s right.

In —

Earl Warren:

And — and they do have lobbyists at the — at the legislatures that — that go into public affairs and — and various kinds of legislation.

Now, what — what is the fundamental difference?

I know —

E. Smythe Gambrell:

Well, in very narrow limits, they concern themselves with the administration of justice, the improvement of the law —

Earl Warren:

As they see —

E. Smythe Gambrell:

And they are an arm of the Court and they —

Earl Warren:

No, they’re not.

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Earl Warren:

I — I am sure they’re not an arm of the Court, are they?

E. Smythe Gambrell:

And before him is a member of (Voice Overlap) —

Earl Warren:

Oh —

E. Smythe Gambrell:

— is an officer of the Court —

Earl Warren:

Would that reveal —

E. Smythe Gambrell:

— and — and that virtually every instance that I’m going to think about, the Court has immediate supervision over integrated bars that it has to go over bar association.

Earl Warren:

Do you mean this — the — the courts have a right to them how they could spend their money?

E. Smythe Gambrell:

They can tell them when they get off the track and they do, Your Honor.

And you’ll find in that case and numerous places, Wisconsin and the other places.

They have thought that probably the illusion here on that.

But if they’re misleading things, the cases they signed up mostly on many of them are city bar associations and the others are voluntary associations completely beside the point here.

Earl Warren:

Well I know, I belonged to an integrated bar for 30 years and — and I know that there was great difference of opinion as to some of the things that were advocated in the State Bar, things that I advocated myself were opposed by — by others.

But I know that the State Bar took an interest in those things.

Now when they do, when they go before the legislature and advocate those things, wherein is the fundamental difference between that case and this?

E. Smythe Gambrell:

Well, they don’t — they — they don’t wander us apart as the people here in the — in the building.

I would like — I would to answer that next Monday if Your Honor will allow me.

I think I have a little time left, Your Honor.

Earl Warren:

Well, I think you’d better finish it tonight.

We’re going to finish tonight.

E. Smythe Gambrell:

Well the other — I see.

Well —

Earl Warren:

When you’re finished — when you’re finished, you’re finished, because you don’t get any with the Court, left to that.

E. Smythe Gambrell:

No, I know but I didn’t know my time was out, Your Honor.

Earl Warren:

No, it is not.

E. Smythe Gambrell:

Yes.

Well —

Earl Warren:

It is not.

You have — you have some more time left.

I hope you don’t think I’m against integrated bar.

I’m so very much in favor of it.

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E. Smythe Gambrell:

There’s no doubt in my mind about the integrated bar, Your Honor.

We’ve covered it in our brief.

It’s on the long brief and I apologize, we wanted to make it a short one but unable to do it.

I had intended to talk about the extent of the money paid if you’ll — if you’ll read that — that at the — of the stipulation and the depositions, you’ll see there are hundreds of thousands of dollars that have gone here completely without regard to the feelings of the people who put the money in.

You’ll find that great deal of comment about governmental action.

You’ll find a great deal of comment about the question of germane or what’s germane and what isn’t.

We — we’ve traced in greatest detail the mechanism through which this money comes from the individuals up to these projects.

We described the newspapers, a great mass of papers.

Every union has a paper and every union espouses, expect subjects.

About half of them are labor subjects.

About half of them are held as opinion or foreign aid or something else.

Now somebody says “Why, why can’t this man just ignore that?”

I say when — when people stock their coverage on the compulsion paying ten cents a week or $2.00 a year for that magazine, stock their coverage with bad literature, they are going to eat some of that literature.

Furthermore, they are spending their money under compulsion for that when — that’s perhaps all they can spend for politics and how they’re going to have to enter to spend for the objects that they are really interested in.

I wanted to talk about the various freedoms.

Freedom of political belief and association under the First Amendment, freedom of speech and the press, the compulsion of ideological conformity through this welder of literature.

I have here a list of the — the obligations which a member must commit himself to, in joining these various organizations.

They are all in booklet form in the record, not in the book but in the record which weighs 200 to 300 pounds in which it took a truck to bring it up here from Georgia.

You will find in almost every case a solemn undertaking to subscribe to and comply with all the principles and programs of each one.

Now someone may say, “Well you don’t have to do that seriously you can swear to all of that and then we’ll often do what please.”

I say, if that is the approach that one would say, then in the Jehovah’s Witness cases, you can let the little boy salute the flag and then go on and follow his Jehovah’s Witness principles outside.

I think paying money and taking an oath and assuming membership is more than solemn ceremony, than saluting a flag, that’s my feeling.

I think that this Court on many occasions has said that the rights under the First Amendment, hence, many of the other amendments are absolute because there are — there are those who say as my friends, “You see, give them a little attitude.”

Some say that if my clients are allowed their freedom, they might be apostles of unrest..

They might be not good friends of the labor union just as people who can speak their voice on the streets that might not be good friends of this country.

But I would say that more in point about the freedom of speech is that it is the deadly enemy of everyone who hates this country.

It’s a deadly enemy of tyrants.

What we seek is that every worker and I understand they are about 16 million of them shall have the right to stand up and practice politics as our progenitors came over here for the right to do.

To have not only free religion and I might say then just a word, the statute of Virginia for religious freedom was formulated by James Madison and passed in 1785.

It was the progenitor of the First Amendment.

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E. Smythe Gambrell:

And I think we are all familiar with that language.

I say that it is possible in this case to stand up as this Court has stood up on many occasions in recent years and in times further past, for the oppressed individual.

It’s possible to stand up for the oppressed individual here.

Many cases come from my part of the southland here, and this Court has heard the cry.

I’m bringing here six people who represent or stand in the place of many others who ask that their rights under the First Amendment remain unimpaired.

That whatever declarations by this Court whether unnecessary be made, and that it will be made clear to organize labor which serves a great function in this country.

That if they want to practice politics, they should go outside of the Government to do it.

Certainly the Government has even gone so far as to see that an exemption to a man who would sign a non-communist oath is an unfair advantage compelling him to say something that he might not otherwise want to say but when he wanted to remain silent.

Charles E. Whittaker:

Mr. Gambrell may I ask you this

E. Smythe Gambrell:

Yes.

Charles E. Whittaker:

Suppose I have 100% agreed to what you say here.

Suppose I — that just for example I went with this.

Would I yet be able to sustain this judgment which appears in the record 101 and continues through the other pages of 105 and 106?

E. Smythe Gambrell:

Is Your Honor speaking of the Hanson case?

Charles E. Whittaker:

No, no, I’m speaking of —

E. Smythe Gambrell:

Oh, the Georgia decision.

Charles E. Whittaker:

Of the Georgia decision that read in —

E. Smythe Gambrell:

Well —

Charles E. Whittaker:

— 105 and 106.

Suppose I agree with every word you just said, could I then yet sustain this Georgia judgment which says that the statute 2, Eleventh 11 is unconstitutional and it’s void and it — its operation in effect is enjoined and it’s not limited to an injunction against use of funds or what you say as to proper terms.

Now I wonder what your answer is, could I, if I’m 100% wanted to do so, could I sustain this judgment at your basis?

E. Smythe Gambrell:

I have seen this Court in the Thompson case from Kentucky and now, the case does not hesitate to take a practical stand to get a practical result.

Whatever is needed here to protect my clients is what we want.

We — we had a broad prayer and we had a relief granted in several paragraphs, one of which was to enjoin the enforcement of the — to enjoin the enforcement of this contract against my client.

Another was to give my clients back the money.

Another was for declaratory judgement saying that the contract is illegal.

And another was to declare the Act itself unconstitutional.

We want whatever we can get Your Honor, on the — in this case.

It’s taken us six and a half years to bring it here.

Charles E. Whittaker:

I don’t know what that means, now.

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Charles E. Whittaker:

Would that pleadings that say it’s unconstitutional, now you say we want whatever we can get.

I — I don’t know what that means.

E. Smythe Gambrell:

Well we think it’s unconstitutional.

They say that historically that’s what it is and that the Act has with it, this type of application, this type administration.

If that’s a part of the Act, then the Act would have to be unconstitutional.

Your Honor, please, I want to stress the fact that the words of statute appears in many, many instances.

Some question was raised about the amount of these dues and well this was a big lawsuit about a — a few dollars.

They have alleged at — in the record at page 37 that each of these parties has an interest exceeding $3000 in order to get a removal to the federal court when they filed a petition for removal.

They have stipulated that this is a case for class action.

They did not demur to our bringing it as a class action.

We say they — there is no reason why it shouldn’t be a class action as we have brought it.We come back to the original proposition, Your Honor, that —

Hugo L. Black:

Did you say that was stipulated and each one had an interest of over $3000?

E. Smythe Gambrell:

The petition for removal to the federal court by the other side alleged that each of the plaintiffs, my clients, had an interest in excess of $3000.

Hugo L. Black:

Was — what happened to the motion to remove?

E. Smythe Gambrell:

It went — the — the case was removed and then was remanded by consent later.

Hugo L. Black:

Remanded by consent?

E. Smythe Gambrell:

Yes, sir.

By all parties.

Charles E. Whittaker:

Remanded by the court upon themselves.

E. Smythe Gambrell:

Upon themselves that’s right.

Your Honor —

Earl Warren:

Do you contend that each one of — each of your clients has an interest of $3000 or more?

E. Smythe Gambrell:

We say it would be much more than that.

Earl Warren:

Would you — would you mind telling us how that —

E. Smythe Gambrell:

They have been working anywhere from 20 to 40 years there.

Earl Warren:

Under this kind of an agreement?

E. Smythe Gambrell:

Under — well, under whatever agreement they had to be there.

Some of them have refused to join and they put a bond up so they had to join and paid.

I think the decisions are clear that — that one who is wronged however humbled doesn’t have to put up a bond even a small bond in order to get constitutional rights.

Earl Warren:

No.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Earl Warren:

I — I was just trying to think of how each man would have an interest of $3000 in this litigation.

E. Smythe Gambrell:

The lawyers opposing so alleged in removing —

Earl Warren:

I just —

E. Smythe Gambrell:

— the case.

Earl Warren:

— I just asked you, if you contend that (Voice Overlap) —

E. Smythe Gambrell:

I would think that a right, a lifetime right in a job and a right that comes to men from the First Amendment is worth a lot more than $3000, that’s — that’s my view.

And when they tell him, as they have given him the hard choice here, either you do this, or give up your job.

He has an impossible alternative.

We hope that this Court as it has so often, will hear the cry of these people and will find a way to give them the relief from the intolerable situation in which they find themselves.

The Government can’t tax a man for the benefit of another.

They’ve taken this money without due process of law under the Fifth Amendment.

And it makes it all the more heinous when they tax him and take his money away from him and spend it in support of the candidate that he despises which is what is happening here.

We — we ask Your Honors, to fashion your decision in whatever way Your Honors would conceive that constitutional rights could be protected and respected here.

As I say in the Thompson case where there was not much of a record what this Court saw, a man who needed something and they didn’t have any trouble in writing a judgement that protected it.

Is my time up now, Your Honor?

Earl Warren:

It will be when the red light comes on and I’ll — it’s on.

E. Smythe Gambrell:

(Inaudible)

Earl Warren:

Mr. Schoene.

Lester P. Schoene:

And if the Court please.

I don’t know that it’s actually material but I think Mr. Gambrell is in error when he says that it was alleged in the removal petition that each of the individual plaintiffs had an interest of in excess of $3000.

What was alleged what was — that the total amount in controversy was in excess of $3000 which, of course, involved what the whole state of the union in not having the — the injunction issue.

The motion to remand was consented to because we had lost similar motions and at least a half a dozen federal courts didn’t see any point in litigating it again.

Felix Frankfurter:

Oh no, my question is staggering wasn’t it?

Lester P. Schoene:

I beg your pardon?

Felix Frankfurter:

The question of staggering the individual.

Lester P. Schoene:

No, the — the courts that remanded said that there was no federal question jurisdiction and we didn’t claim diversity.

I still think there was but that’s water over the dam.

That Mr. Gambrell says that I looked in the wrong place but — and perhaps he’s right.

And — now I — I would like for a moment to discuss the Hanson case a little further.

Mr. Gambrell claims that there was no evidence in the Hanson case about the use of moneys for political or legislative purposes.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
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Lester P. Schoene:

It would be strange indeed if the Supreme Court of Nebraska had said what it did if it had no evidence at all.

Now, it is true that that action was brought before the union-shop agreement had actually become effective and consequently an injunction issued in the Nebraska courts before there was any opportunity to show that individual persons had been required to join the union and their particular money had been used for any of these purposes.

But the record in the Hanson case did show the constitutions and bylaws of the unions and showed their authorization for making such expenditures.

It showed the nature of the Newspaper Labor on the extent to which it engages in political activity and it showed the relationship of that newspaper to these organizations.

On the basis of the record as it stood in the Hanson case, the Supreme Court of Nebraska said, this is particularly true as to whether the latter because it is apparent that some of these labor organizations advocate political ideas, support political candidates and advice national economic concepts which may or may not be of an employee’s choice.

It further said a little later on by requiring him to pay initiation fees, dues and assessments, he is required to pay for many things besides the cost of collective bargaining.

To — a little later on to require all employees receiving benefits from collective bargaining agreements to pay the labor organizations obtaining them, initiation fees, dues and assessments is to require them to make contributions to any and all of the varied objects and undertakings in which such labor organizations are or may become engaged and which have no substantial relation to the object here sought to be obtained.

Hugo L. Black:

May I ask if you’re reading that to show us that we decided that question?

I — I’m asking it to argue that we did.

Lester P. Schoene:

Yes, I — I think —

Hugo L. Black:

Well did you —

Lester P. Schoene:

— that you’re trying to say that it was decided.

Hugo L. Black:

Did you think that caveat was put in to both of the court opinion and the concurred opinion?

Lester P. Schoene:

I do not read the caveats to which you refer Mr. Justice as reserving the question of whether the requirement and only the requirement of paying dues, the regular dues and initiation fees and their expenditure by the union as authorized under the union constitution.

I do not read the caveat as saying that any question as to the constitutionality of that action is reserved or maybe I have misread it.

Hugo L. Black:

What do you think — what is the —

Lester P. Schoene:

I think what — well there were two things that were reserved, I mean.

To take the exact language if other conditions are in fact imposed now, that — that perhaps I should go back to the sentence in two parts.

It is argued that compulsory membership will be used to impair freedom of expression, but that problem is not presented by this record.

That problem meant — that Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be required except as respects periodic dues, initiation fees and assessments.

If other conditions are in fact imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.

How I read that domain for example, but if Mr. Gambrell points out, he has copies of oath and obligations that individuals might be required to take in order to join a union, if those are imposed as conditions and addition for the payment of initiation fees, dues and assessments, then a different question is presented.

And we have no instance here, no evidence of anyone being required to take any other any sort of oath, go through any kind of ceremony or express himself in any way.

All that is shown is that they are required to pay the dues, fees and the assessments regularly required as a condition of obtaining or retaining membership.

And that I read the Hanson case, as having held does not give rise to any constitutional infringements under the First or the Fifth Amendment because certainly it was brought to the attention of the Court, not only what the Nebraska Supreme Court had decided but that these moneys were used in these ways.

It was not only — we have included in our brief at page 37 references to the record and to the brief in which those things were presented to this Court, not only in the initial argument, but as I stated earlier in the — in the motion to stay the mandate and again in the petition for rehearing and then the same contention was made to the Supreme Court of Nebraska that these issues had been left open and that therefore a limited injunction should be put into effect.

And you denied them the motion to stay a mandate, you denied the petition for rehearing, and the Supreme Court of Nebraska ordered the case dismissed.

Now, I think the analogy of the integrated bar although Mr. Gambrell has tried to distinguish it, is very close.

And it is not true that members of the integrated bars don’t object to the kinds of activities that the bar association engages in.

They have a case —

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Potter Stewart:

They ever brought their objections here?

Lester P. Schoene:

I beg your pardon?

Potter Stewart:

Have any members of any integrated bars brought any objections they may have to this Court?

Lester P. Schoene:

No, I think not.

There — there was a case in the Supreme Court of Wisconsin decided early this month April 5, 1960 in which the — a — a member of the integrated bar was suing the adviser of the association because an objective to the political activities in which the bar association was engaged.

The Court said the rules and bylaws of the state bar as approved by this Court do not compel the plaintiff to associate with anyone.

He is free to attend or not to attend its meetings or vote in its elections as he chooses.

The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year.

He is as free as he was before.

The voice his views on any subject, in any manner he wishes, even though such views be diametrically opposed to a position taken by the state law.

Now, that is just as true of a member of the union that is required to belong under a union-shop as it is of members of the state bar.

And while the bar may be a different profession from a common calling as I submit that members of the bar of justice, has definite First Amendment rights as railroad employees.

Again in the same decision the — that the Court said the plaintiff balanced his argument that the compulsory dues of the state bar do impinge upon First Amendment freedoms on the fact that the state bar does take a stand on legislation pending before the legislature.

He points out that he personally is opposed to some of the legislations supported by it.

Because of this, he contends his right as guaranteed from the First Amendment, were violated because part of his dues money is used to support causes to which he is opposed.

Whatever activity in the legislative field in which state bar does engage is limited by its rules and bylaws promulgated by the Court to all the standing committees and so on.

The board of governors is directed to establish right before the Committee on Administration of Justice and Committee on Legislation was on to show that the — the processes, the internal processes by which policy is determined or profitable processes.

So, I — I think the — that the exact same arguments that are made here were made in connection with the integrated bar but as was pointed out by Mr. Justice Stewart, that it’s not been decided by this Court.

Potter Stewart:

That — that from what you’ve just been reading is the recent Wisconsin case, is it?

Lester P. Schoene:

Yes, that — that was decided on the fifth of April of this year.

Now with respect to the actual operations and political activities, I think it might be useful to note particularly finding or the stipulation number 29 which appears at page182 of the record.

There, there is a description of how railway labors politically operates and that it describes the two separate funds that are used.

Now, in the — in the so-called educational fund, that is the only place in which any dues moneys are contributed.

Moneys that are used in political campaigns to support political candidates come out of the so called free fund which —

Felix Frankfurter:

So-called what?

Lester P. Schoene:

Free fund —

Felix Frankfurter:

Free fund.

Lester P. Schoene:

— which is derived entirely from voluntary contributions.

Now, that is done because primarily as a means of observing the Corrupt Practices Act because we recognize that under that Act we cannot use any of –any of the funds derived from dues for any candidates for federal office.

Felix Frankfurter:

What about subscriptions to labor?

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
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Lester P. Schoene:

Subscriptions to labor come out of the educational fund and have their origin in the —

Felix Frankfurter:

You —

Lester P. Schoene:

— in the used funds, moneys.

Yes.

Hugo L. Black:

Are you challenging any of the findings of the Court?

Lester P. Schoene:

Oh, not — no, not at all.

I — I simply thought it was desirable that the Court have an understanding of what the operation is.

In other words, an individual is not required simply, has an identified portion of these dues to make any contributions for political purposes.

He pays his dues.

The — the local either retains or gets back from the international a certain portion of it, the international gets a certain portion of it.

The international pays a per capita of five cents per member per month to the AFL-CIO.

Eventually the AFL-CIO engages in some political or legislative activity that — that is financed by the money derived in this way.

Felix Frankfurter:

That the —

Lester P. Schoene:

Several —

Felix Frankfurter:

— machinists have full-time legislative agents?

Lester P. Schoene:

I beg your pardon?

Felix Frankfurter:

Have machinists have a full-time legislative agent around that work?

Lester P. Schoene:

I don’t believe that they have.

Now the machinists operate a — a separate political league and I think they have a full-time employee in charge —

Felix Frankfurter:

And where they are trying to have the political league aren’t they?

Lester P. Schoene:

I beg your pardon?

Felix Frankfurter:

Where does the money — the funds of the political league as (Voice Overlap) —

Lester P. Schoene:

I —

Felix Frankfurter:

— finance.

Lester P. Schoene:

It — it is operated as I understand with Mr. — I guess the record shows the — in same way as Railway Labors Political League they have one fund of — of voluntary contributions and others that are used for educational purposes and —

Felix Frankfurter:

They come out of the general fund.

Lester P. Schoene:

They come out of the general funds.

Felix Frankfurter:

You don’t know — do you happen to know the proportions about the —

Lester P. Schoene:

I think it’s in —

Felix Frankfurter:

— does invest the — what’s the scale of the difference —

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
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Lester P. Schoene:

(Voice Overlap) —

Felix Frankfurter:

— Mr. Schoene?

Well, there’s a substantial amount — there’s a substantial amount of the political branch —

Lester P. Schoene:

Yes.

Felix Frankfurter:

— that was the source in the funds.

And the —

Lester P. Schoene:

Yes.

And in — in — at pages 195 and 196 of the record, the — that the sources are indicated.

It says contributions into the so-called educational fund to the National Machinist Non-Partisan League has been made as follows, they are in — in headquarters in 1937 or 1957 $10,000, district and local lodges the I.A.M. $41,112.

Now, that — that is the educational money which comes from dues.

Earl Warren:

About how many members?

Just, generally if you know.

Lester P. Schoene:

About 900,000.

Earl Warren:

900,000.

Felix Frankfurter:

What — what is the sum total of the dues that come from the international?

Lester P. Schoene:

In — well, in 1957, it was $51,112.

Felix Frankfurter:

The international?

Lester P. Schoene:

I beg your pardon?

Felix Frankfurter:

I guess I misconveyed my — the intent of my question.

I want to know what — what the sum total income of the international through membership unions.

Lester P. Schoene:

Oh, that I do not know.

Felix Frankfurter:

Well, what’s the scale of it?

Lester P. Schoene:

Well it’s in the 900,000 members.

The dues rate is shown in the record.

Felix Frankfurter:

$20?

Earl Warren:

$3.25.

Felix Frankfurter:

$26.

Now —

Earl Warren:

The — the dues rate varies from $2 to $4.50 a month.

So if you’ll take say, an average of $4.00 times 900,000 why, that would give you their monthly income.

Audio Transcription for Oral Reargument – January 18, 1961 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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Earl Warren:

Now, you would ask the proportion of free funds of voluntary money as compared with the worth of money derived from dues and the Machinists’ Non-Partisan League, I’ve given you the figure of — total figure of $51,000.

As derived from dues in 1957, the corresponding figure for the voluntary collections is $35,308.82 roughly, a little over three-fifths.