International Association of Machinists v. Street

PETITIONER:International Association of Machinists, et al.
RESPONDENT:S. B. Street, et al.
LOCATION:Superior Court of Bibb County

DOCKET NO.: 4
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: Supreme Court of Georgia

CITATION: 367 US 740 (1961)
ARGUED: Apr 21, 1960
REARGUED: Jan 17, 1961 / Jan 18, 1961
DECIDED: Jun 19, 1961
GRANTED: Oct 12, 1959

ADVOCATES:
E. Smythe Gambrell – for the appellees
J. Lee Rankin – Solicitor General, Department of Justice, for the United States as intervenor
Lester P. Schoene – for the appellants
Milton Kramer – for the appellants

Facts of the case

Several labor unions entered into a union shop agreement that authorized spending union funds to support political causes. Many union employees opposed those causes and sued to enjoin enforcement of the union shop agreement. The employees argued that forcing union members to fund political activities they disagree with unconstitutionally restrained free speech. The Superior Court of Bibb County granted the injunction and the Supreme Court of Georgia affirmed.

Question

Does the union shop agreement authorizing the spending of union funds on political causes, regardless of the objections of its members, violate the First Amendment?

Media for 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 Argument – April 21, 1960 in International Association of Machinists v. Street
Audio Transcription for Oral Reargument – January 17, 1961 (Part 2) in International Association of Machinists v. Street

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

Earl Warren:

Number 4 on the docket, International Association of Machinists, et al, Appellants, versus S. B. Street et al.

Mr. Schoene.

Lester P. Schoene:

Mr. Chief Justice, may the Court please.

In view of the extensive consideration that this case has already received at the last term, I will not burden the Court with any detail recital of its prior procedural history.

Case is here on appeal from a final judgment of the Supreme Court of Georgia.

The Court’s opinion is found in the record at page 249 and the judgment it entered at page 270 of the record.

That judgment affirmed the final judgment of the Superior Court of Bibb County, Georgia, which is found at page 101 of the record.

The Superior Court found that Section 2, (eleventh) of the Railway Labor Act, that is the statute of 19 — January, 1951, which authorized union shop agreements to be made or permitted union shop agreements to be made between railroad subject to that Act and labor unions subject to that Act.

The Superior Court found that section of the law to be unconstitutional.

It therefore enjoined the enforcement of two union shop agreements on the rail — on the Southern Railroad, each embracing some eleven, twelve different organizations, enjoined their enforcement permanently.

Those agreements are identical in terminology except for reference to parties with the union shop agreement that was before this Court in Railway Employes’ Department against Hanson, 351 U.S. 225 in which this Court unanimously sustained the validity of Section 2, Eleventh of the Railway Labor Act and upheld the validity of the agreements made pursuant to them.

And which, as I say, was identical to the agreements here involved.

Now, I would like first to address myself in summary form to the facts that were developed in this very exhaustive and voluminous record.

The evidence in the trial court shows, and these facts are stated a little more at length in our original brief at pages 11 to 15.

Felix Frankfurter:

Have you got a new brief, Mr. Shcoene?

Lester P. Schoene:

We filed a response to the Solicitor General’s brief and a further replied to the brief on reargument filed by the appellees.

The evidence in the case shows that these unions, who are defendants in the case, in addition, to their normal and predominant function on activities of negotiating rates of pay, rules, working conditions, collective bargaining agreements of various sorts, administering such agreements, policing them, handling grievances under them.

In addition to that, they do engage in certain other activities through such institutions as the American Federation of Labor-CIO, the Railway Labor Executives Association, Railway Labor’s Political League.

They engage in various legislative and political activities, educational activities, and some of the individual unions support from time, legislative representatives at both state and national levels, whose function is to promote or oppose legislation pending before Congress or the state legislatures.

Collectively, they participate in the publication of the newspaper labor which advocates various ideas and promotes various processes and publishes news selectively addressed to people interested in labor.

The individual organizations also —

Potter Stewart:

A daily newspaper?

Lester P. Schoene:

I beg your pardon, sir.

Potter Stewart:

Is that a daily newspaper?

Lester P. Schoene:

No, it’s a weekly.

Potter Stewart:

Weekly newspaper.

Lester P. Schoene:

And in addition, these organizations have their own individual magazine, generally published monthly.

In those magazines, they publish news of interest to their membership and advocate various political and educational objectives.

The funds that are used for these purposes, subscriptions to newspaper labor sometimes which were bought by the unions, derived from the general dues, initiation fees and — of the unions.

Insofar as assessments are concerned, although the union shop agreement and Section 2, Eleventh of the Railway Labor Act, both refer to membership being conditioned only upon the payment of the uniform, fees, dues, and assessments, regularly required as a condition of membership.

Lester P. Schoene:

There is no evidence in this case that any assessments have ever been levied by any of these unions for any purpose.

Further, there is no evidence in this case that anybody — that anybody’s thinking, anybody’s expression has been, in any way, controlled or coerced.

There’s no evidence that anybody has been required to attend any meetings.

There’s no captive audience involved.

There’s no evidence that anybody has been required to read anything or to listen to anything or to refrain in any way from expressing himself on any subject with complete freedom in writing or orally, or any place that he may want to express himself.

There’s no evidence that anyone has been required to conform to any of that similar idea.

There’s no evidence that anybody has been required to profess as his, the views expressed by the individual unions.

Further, there is no claim that any of the expenditures made by the unions for any of these purposes are ultra vires the Constitution and bylaws of the union.

Or that they are illegal under any state or federal law.

In other words, there is no claim that the Corrupt Practices Act has been violated in any of the political activities.

Insofar as contributions to candidates for federal office are concerned, those are made not from union funds as the record shows.

They are made from funds voluntarily contributed by individual members.

So, insofar as claims under the First Amendment are concerned —

Earl Warren:

May I interrupt just a moment please?

Lester P. Schoene:

Certainly, Mr. Chief Justice.

Earl Warren:

Did I understand, you say there’s no question of the use of money for candidacies for public office here?

That’s done by assessment.

Did you say private —

Lester P. Schoene:

No, not by assessment but by voluntary contributions, insofar as candidates for federal office is concerned —

Earl Warren:

Federal office.

Lester P. Schoene:

— which is what is governed by the Federal Corrupt Practices Act.

Union dues are used for – or union funds are used, occasionally at state and local levels where it’s permissible under state and federal law to use the union funds for that purpose.

But so far as the contributions to which the Federal Corrupt Practices Act is addressed, is concerned, that is handled entirely by a voluntary contribution of individuals.

Potter Stewart:

Otherwise, there would be a violation of that Act.

Lester P. Schoene:

That’s right.

Otherwise what they — and the point I was making Mr. Justice Stewart is that there is no claim here –

Potter Stewart:

— of the violation of the Act.

Lester P. Schoene:

— of a violation of the Act or ultra vires expenditures.

So, insofar as any claim of violation of First Amendment rights is concerned, necessarily the case comes down to the question of whether the mere expenditure of union funds.

Legally expended for promoting ideas with which a contributor, under union shop agreement, disagrees, whether that violates his freedom of expression under the First Amendment.

Felix Frankfurter:

Before you get to expend — before you get to the expenditure Mr. Schoene, you have to — you have acquisition of that which you propose to expend.

Lester P. Schoene:

That is correct Mr. Justice Frankfurter and that is what you held was constitutional in the Hanson case.

And I want now to address myself to the applicability of the Hanson case to the issues that are here before the Court now.

Felix Frankfurter:

Well, argumentatively we may have decided this case, but expressly we did not decide this case, did we?

I’m not saying argumentatively we haven’t, all I’m saying is could you — if so your — all you agree, needed to do is to cite Hanson against whatever the other side of the case was.

Lester P. Schoene:

I got it at some length last spring, Mr. Justice that the Hanson case did decide this case.

The fact that the Court ordered reargument —

Felix Frankfurter:

What I mean, by argumentatively, but you spent a (Inaudible).

Lester P. Schoene:

Well, obvious — obviously the fact that the Court set the case for reargument indicates that I was not wholly successful in persuading the Court to that effect last spring.

But I do want to discuss the extent to which the Hanson case is applicable here.

Now prior to the decision of the Hanson case, I argued in that case that union shop agreements notwithstanding Section 2, Eleventh of the Railway Labor Act are simply private agreements between private institutions, the railroad and the union.

And that the Government is not involved in their execution, they have simply that permitted them.

The Court didn’t agree with me on that.

And the Court held in the Hanson case that the union shop agreement has the imprimatur of federal law upon it, particularly because it overrides state law to the contrary, because the Section 2, Eleventh overrides state law to the contrary.

Accordingly, we naturally must now proceed on the premise that the making of the union shop agreement and the requirement that dues and initiation fees be paid pursuant to such agreement involves governmental action upon which constitutional limitations must bear.

Still, I think —

Felix Frankfurter:

You don’t have to argue — you don’t — for me at least, you have to argue more than, I think, the word governmental action, and so well defined a concept or a phrase with complete and comprehensive and exclusive content that everybody would give at the same content, the same meaning and the same scope in the prima facie.

Lester P. Schoene:

I do not have any such conception, Mr. Justice Frankfurter.

I think it’s one of the vaguest terms that has entered this kind of litigation.

And that brings me to exactly the next point that I want to make.

It’s assuming as we must that there is this concept of governmental action involved.

We set — in appraising it, we certainly cannot assume that the compulsion is of the same character as a statutory mandate.

The — there is no law that says, you must belong to a union.

There is no law that says, you must belong to a union if you want to work for the railroad.

This is still a contract even though subject, as this Court has held, to certain constitutional limitations.

Analytically, nevertheless, it is a condition of employment negotiated by a collective bargaining agent for the entire craft or class.

Now, we have people who would prefer to work seven days a week at straight time or 10 or 12 hours a day at straight time.

If they want to work for a railroad that has the 40-hour a week agreement, five-day a week agreement, they can’t do that.

One of the conditions of employment is that the basic day of eight hours applies.

And according to this, they have to work at overtime after that.

Lester P. Schoene:

And if the carrier doesn’t want to work them at overtime, they don’t work.

Same is true if they’re working on their rest days.

Potter Stewart:

On their what?

Lester P. Schoene:

On their rest days.

If they want to work on their rest day, the railroad has to pay him time and the half, and the chances are they won’t work, although they might want to work.

In this —

Felix Frankfurter:

This — the so called 8-hour a day, everybody who knows anything about this knows that that’s a euphemistic term, didn’t they?

Well as much vagueness involved in it as much as ours — I mean what’s the new, wasn’t just the flat 8-hour a day, you can’t work any more than eight hours.

Lester P. Schoene:

I’m not speaking of the result of Wilson against New, Mr. Justice Frankfurter; I’m speaking of a national agreement that was made among the nonoperating union and the railroads in 1949.

Felix Frankfurter:

Yes, but I am talking about the law there had held back.

Lester P. Schoene:

Well that’s — that’s a different matter.

The 8-hour a day I’m talking about is the result.

Felix Frankfurter:

It is the agreement of eight hours?

Lester P. Schoene:

That’s right.

Now similarly, if an individual wants to work for a railroad that has a union shop agreement, one of the conditions of his employment is that he joins the union within the time specified by the — by the agreement.

But that is the only compulsion.

He has a choice not to work there if he doesn’t want to.

Just as he has a choice to work seven days a week, some place where they don’t have a 5-day a week agreement.

Further, I think we should keep in mind in appraising the effect of federal law in this situation that the Georgia Right to Work Law does not apply to railroads.

So that the situation that existed in Nebraska where the possibility of applying the — or making the union shop agreement was dependent upon overriding state law does not exist in Georgia.

Now I make no particular point of that but I bring it to your attention for what it may be.

Hugo L. Black:

What did the Supreme Court hold about it?

Lester P. Schoene:

The Supreme Court held that it would be illegal in Georgia without the federal statute.

Hugo L. Black:

We have to accept that, don’t we?

Lester P. Schoene:

I think you probably do, Mr. Justice Black, although, the statute is pretty plain on its face, and the Georgia’s Court did not, as I recall, hold that the Georgia statute applied.

Hugo L. Black:

But does that make any difference?

Do we or not in your judgment have to accept the statement of the Supreme Court of Georgia with all the states, so long this is all they announced.

This doesn’t violate the federal —

Lester P. Schoene:

Well, Mr. Justice Black I don’t want to take the time to pursue it.

We have an argument in our brief that holding by the Supreme Court of Georgia under these circumstances is a denial of equal protection.

Lester P. Schoene:

Now, the —

Hugo L. Black:

Well I — I didn’t know you had that argument, then we will find out by your —

Lester P. Schoene:

I don’t say I — we are on limited time and I don’t want to pursue it.

It’s in the brief and –

Felix Frankfurter:

What’s the relevance of this question anyhow to our problem?

Lester P. Schoene:

I mentioned it only because of the reliance in Hanson —

Felix Frankfurter:

I don’t mean — I don’t mean your view of what is controlling on us on what Georgia has decided, but assume we all agree that it has decided without qualifications and that your equal protection argument is in tenures for considerations, what’s the relevance of that to our problem that if this statute — if this nullify the right to work?

Lester P. Schoene:

Well, I mentioned it Mr. Justice —

Felix Frankfurter:

In other words, whether or not Georgia’s illegalizing your — nullifying Georgia’s Law on that point matters as whether or not the Federal Government can pass any enactment which sidetracks or displaces that allowance by the State, does it?

Lester P. Schoene:

I mentioned it only because in Hanson, the opinion does direct to the fact that the federal law overrides the laws of the various states.

And therefore, the union shop agreement has the imprimatur of federal law upon it.

Now, I don’t think that was necessary to the —

Felix Frankfurter:

Well, that thing —

Lester P. Schoene:

— to the holding, but in any event to that degree in my view, the Georgia, statute having excepted railroad, is different from the situation in Nebraska.

Now, that’s as far as I care to pursue it.

Felix Frankfurter:

Did you — has that any bearing on the First Amendment problem?

Lester P. Schoene:

I don’t think so.

Felix Frankfurter:

I can’t collectively see it.

Lester P. Schoene:

Now, I want to come to a further aspect in the case.

We have assumed that the making of the union shop agreement and the requirement that dues and initiation fees be paid is subject to constitutional limitations.

But the Court certainly decided in Hanson, at least that that activity, that the requirement of membership in the organizations, payment of dues and initiation fees, was a valid activity.

Now, does it follow that because that valid activity is subject to constitutional limitations, that the expenditure of the funds, after they have been acquired, after they have become the property of the union, that that too is subject to constitutional limitations?

It does not seem to me to follow.

The unions remain private institutions.

The Government didn’t create unions.

These unions were in existence even long before there was a Railway Labor Act to protect them in certain respects against the employer interference and things of that sort.

The Government doesn’t authorize them to spend the money.

To be sure, in certain respects such as the Corrupt Practices Act, the Government has limited the way they can spend their money.

But so far as the basic authority to make expenditures is concerned, that derives from the constitution and bylaws which are controlled by the majority of the membership.

The Government isn’t the one who says for what they may spend their money except just the Government has seen fit to limit.

Lester P. Schoene:

So I would urge for your consideration that the mere expenditure of money, even though acquired as a result of the union shop agreement does not have the imprimatur of federal law upon it, and that the line should be drawn as between the making of the agreement which you’ve held to be valid, although subject to constitutional limitations, and the expenditures of funds which does not involved the —

Felix Frankfurter:

Well this — you are not suggesting or are you suggesting that because you can now have a collective agreement whereby you have a union shop, whereby John Doe, if he wants to work on that railroad, must he belong or join that union and pay assessments, union assessments, but since they’re now authorized to make such an agreement, at least the Federal Government has removed the bar against making them, that the Congress of the United States has removed the bar against making them, it doesn’t forbid it.

Therefore any expenditure for any purpose, for any purpose is not challengeable by a member of the union?

It’s not properly within the purview of what fund could be expended?

Can they therefore — can they therefore make a contribution to some outlaw — legally outlawed organization?

And a member of the union can’t come in and say this is — to put in the most neutral terms, as you said, the ultra vires expenditure?

Lester P. Schoene:

I’m suggesting nothing of this sort Mr. Justice Frankfurter, certainly.

Felix Frankfurter:

Well, in the abstract way to which you put it, because the Government allowed them to make a contract, therefore, future expenditures are not subject to scrutiny.

Lester P. Schoene:

All what I said was they are not subject to constitutional limitation as governmental action.

Felix Frankfurter:

I don’t know what that means.

Lester P. Schoene:

And that’s a different thing.

Certainly there’s a —

Hugo L. Black:

Well, as I understand it, the Court — the Supreme Court of Georgia said this, “We do not believe one in constitution, to be compelled to contribute money, to support ideas, politics and candidates, which he opposes.”

They then said, in (Inaudible) that the union while expending money for political candidates, politics, they are saying that the people have voted.

They then said that, “But far this federal law, that couldn’t be done because Georgia forbade it.

That seems to me your issues is, which I think you will get to.

Further, “It does violate the constitution to — for the Government to pass a law which prevents a state protecting a man from joining some organization whereby they collect his money and use it for candidacies against it.”

Lester P. Schoene:

Mr. Justice Black, my Associate Mr. Kramer is going to discuss the issue on the assumption that constitutional limitations do apply to the expenditures.

I have —

Felix Frankfurter:

Why do we — why do we have to think out and imagine all the conceivable constitutional — when you say constitutional limitations, do I have to decide — I only have to worry about my own views about this thing.

Do I have to decide, yes or no that constitutional limitations do apply or they don’t?

Is that the question before us?

Lester P. Schoene:

That is not, certainly not the question before you Mr. Justice.

Felix Frankfurter:

Well is there any question before?

I mean that I have to search all the possibilities within the Constitution to find out whether something maybe done under such an agreement, which may bring into play something which is — which, when they conclude is not authorized or whatever it is, is not permitted for the union — the railroad union, by virtue of the Labor Act.

I don’t know why you argue this all in this abstract way, I really don’t.

Lester P. Schoene:

Mr. Justice Frankfurter if you were to agree with me, which you quite obviously do not, that the —

Felix Frankfurter:

You haven’t any idea of what I think about this case from anything that I’ve said.

You couldn’t possibly —

Lester P. Schoene:

Let me finish my sentence please.

Lester P. Schoene:

If you were to agree with me that the expenditure of money by unions in no way involves the Government.

And therefore, constitutional limitations do not apply to the mere expenditure of money.

Never mind now what rights the union member may have, he has plenty of them to challenge the most ultra vires.

But as I said at the outset there’s no ultra vires question in this case.

But if you would agree with me that the constitutional limitations do not apply to the mere expenditure of money, that would be in and of itself a sufficient ground on which to reverse the judgment below.

Felix Frankfurter:

But I’d never put — I wouldn’t agree with putting the question in this case in those terms.

Lester P. Schoene:

What you had —

Felix Frankfurter:

Therefore, I couldn’t agree with you, and neither disagree, and since it’s very important what question is put in order to decide what answers is there.

I don’t start up with that problem, to tell you frankly.

In other words, you’re making the argument —

Lester P. Schoene:

That’s right.

Felix Frankfurter:

— I’m just telling you my difficulty.

Lester P. Schoene:

I will conclude my remarks at this time.

Mr. Kramer will continue.

Earl Warren:

Mr. Kramer.

Milton Kramer:

Mr. Chief Justice, may it please the Court.

I will not repeat the arguments we made at the first hearing on this case last spring.

They are all contained in the briefs that were filed last year and in our reply brief.

Before I begin with the argument I attended to make, I would like to answer further, the comment of Mr. Justice Black.

Hugo L. Black:

I didn’t say it was a comment.

I thought it was a question, to see if I —

Milton Kramer:

No, I —

Hugo L. Black:

— I can get the question that we have before us.

That’s what this is —

Milton Kramer:

With respect to whether the Federal Government can pass a law saying that, state law shall no longer protect a citizen in a certain respect, that is being required to join the union.

I argued that fully last year.

It is discussed fully in our brief filed last year.

I would like to say at this time just this.

To me, it is incomprehensible that a statute becomes unconstitutional because Congress preempts a field in which it may legislate.

Now, this discussed fully in our brief but that basically is it.

Milton Kramer:

If Congress may legislate, it can preempt.

The preemption comes about, not by act of Congress, but by Article 6 of the Constitution to say that the statute is therefore becomes unconstitutional in a field where Congress may legislate because Congress has preempted.

It’s in effect to say that Article 6 was unconstitutional.

It’s the Constitution that preempts, not Congress.

Congress merely indicates what it intends to do.

Hugo L. Black:

I don’t quite understand it, but to get this concrete, as it can be more concrete than the Supreme Court of Georgia made it.

Suppose the unions after a man — he had to join the union to get a job by reason of the law protecting it, by Congress, will decide to contribute, to have their fund to a particular change.

What would you say?

Milton Kramer:

I would say that that does not make the act of Congress unconstitutional, because the only thing that the government has done up to that point is supersede state law.

And I don’t see how superseding state law can ever be unconstitutional so long that is in a field where Congress may legislate.

Felix Frankfurter:

But if it’s unconstitutional on this abstract mode of the argument that seemed to (Inaudible), then it hasn’t superseded because Congress has done something that’s unconstitutional.

Milton Kramer:

Oh! That’s right.

That’s right.

Now, I want to take up now the proposition that even if we assume that the expenditure of money by a union, although it does not derive the power to spend money from Congress.

But even if we assume that somehow that has the imprimatur of Government, that nevertheless, such expenditures, the ones here involved, violate the First Amendment rights of no one.

The contention here is basically almost exclusively that their First Amendment rights, freedom of speech, freedom of press and so on.

First, nothing that the union publishes or espouses, or otherwise supports, prevents anybody from doing anything.

Everybody, the plaintiffs, the appellees, here included, has just as much right to publish, to print, to speak or to do anything else that the First Amendment guarantees against Government impingements.

Potter Stewart:

Well, it does do this much, doesn’t it?

If a union member is required to give $5.00 to the union, which $5.00 — or make it easy, let’s say $1.00, that is spent to support a certain candidate.

That takes — that prevents him from spending that dollar for the candidate’s opponent.

Milton Kramer:

Well, I am talking about the expenditure.

Potter Stewart:

So am I.

Milton Kramer:

Not the collecting of the money from the individual.

Potter Stewart:

I’m talking about the expenditure by the union, of that member’s dollar for Mr. Smith.

Milton Kramer:

No.

Potter Stewart:

That prevents that member for spending that dollar against Mr. Smith.

Milton Kramer:

No, it does not because if the union did not spend it for Mr. Smith, the individual still could not spend it against him.

It isn’t his anymore.

Potter Stewart:

Well, that’s questionably —

Hugo L. Black:

Would he have had to pay that dollar —

Potter Stewart:

That presents the issue.

Hugo L. Black:

Would he have had to pay that dollar to get a job but for federal law?

Milton Kramer:

That we don’t know.

There’s nothing in the record to indicate that these activities are of greater by reason of the union shop or less by reason of the union shop or what the union does with the extra money they are getting collected under the —

Hugo L. Black:

You know, do you not to get — maybe I’m wrong about the issue.

You do know did you not that the reason — that the union could make this closed shop agreement whereby this man, these people, could not get a job unless they pay dues, but because the federal government has passed an act?

Milton Kramer:

That’s the reason they could make the agreement, yes.

Hugo L. Black:

That’s the reason they could make the agreement and that’s the reason, but for that, he would have been compelled by law, would he to pay dues to the union in order to get a job.

Milton Kramer:

That’s right, to hold the job, I guess.

Hugo L. Black:

That seems to be the issue, isn’t it?

Milton Kramer:

No, I thought, Mr. Justice Stewart’s question was with the expected — the contribution of a dollar in favor of Mr. Smith, a candidate.

I say that even if the union did not make that expenditure, the individual employee still couldn’t get that dollar back.

Hugo L. Black:

Well, maybe he couldn’t get the dollar back but would you have to pay it out of his pocket?

Milton Kramer:

That’s what I said we don’t know.

There was nothing in the record to indicate what the union does with the additional income it gets by reason of the union-shop.

Potter Stewart:

Well, it was simply addressed to the statements you were making to us at the time that there was nothing in this to prevent a member from supporting or failing to support or refusing to support somebody else.

Milton Kramer:

I think that nothing that the union said is understood as expressing the views of every single member of the union.

Now, this view was stated very clearly by the Supreme Court of Wisconsin in the case that has to be argued immediately after this one, and I wouldn’t take up your time by quoting them.

We did quote it last year.

I think the view is expressed most clearly by the Supreme Court of California in the celebrated DeMille case in which — which was very similar to this one in which this Court denied certiorari some three or four years ago.

But in DeMille case, the Supreme Court of California said with respect to the contention that the expenditure of money to espouse a view with which the individual disagreed was compelling him to espouse that view.

They said similarly to the Supreme Court of Wisconsin, “Payment by the plaintiff of the assessment would not stamp his act as a personal endorsement of the declared view of the majority.

Majority rule necessarily prevailed in all constitutional government.

Else payment of a tax levied for a duly authorized and proper objective could be avoided by the mere assertion of beliefs and sentiments opposed to the accomplishment thereof.

In a government based on democratic principles, the benefit as perceived by the majority prevails.”

Now, I think that is the approach here.

This is just like in the case following this one.

Nobody is compelled to say anything and the fact that an organization to which he is compelled to belong says something does not mean that he is saying it.

I submit that what the — what the appellees are arguing here in substance is that it is unconstitutional for unions to do what I think most of this Court has indicated.

Milton Kramer:

They not only made properly do but have a constitutional right to do.

And I’m referring to the CIO and UAW cases, that is United States against CIO in 135 — 335 U.S., and United States against United Automobile Workers in 352 U.S.

The majority of the union has constitutional rights too.

They have the right to speak and they have the right to speak collectively.

In the first of those cases, four justices of this Court would have held it unconstitutional to prohibit a union from printing matters in their union publications that did not pertain to collective bargaining.

In that case it was —

Hugo L. Black:

Did those four members base that on a record which showed that the union — and the raised a question that whether a union could constitutionally talk of using funds that it had gotten from people who compelled to join the union, even though they didn’t want to?

Milton Kramer:

Oh, there was no union shop issue in that case.

No.

But I submit with respect to that Mr. Justice Black, that there are other inducements than the union shop to get people — to persuade people to join the union, for example, it is thoroughly established —

Hugo L. Black:

Well you didn’t’ have any trouble with that so long as the government didn’t have this law, did you?

Milton Kramer:

Oh, you have the same kind of trouble, yes, with respect to a different aspect of the same law like Section 2, Eleventh.

For example, the union is the exclusive bargaining representative.

A man cannot make — he cannot settle the terms of his employment, the union does it.

I submit it maybe just as much of an inducement to join the union, to have a direct voice in determining what wage policies and hours policies and other conditions — other objectives should be sought.

That’s quite an inducement to join the union too, because you’re — you want to get in on the exclusive collective bargaining representatives.

And yet, there appears to be no question —

Hugo L. Black:

Do you present here to say so?

I am using Mr. Justice Frankfurter’s statement on that abstract.

I think that is abstract in this case, going this case raises the question to whether when a man has to join the union to get a job, and he has to join because the Federal Government has passed the law.

Whether they can take the money that he has to pay in for dues and use it to support candidacies he is against?

It’s not a question that you put.

Of course, there are many inducements to join unions, which most of us realize and appreciate and most of us perhaps believe they are good, but that’s not the question here.

Milton Kramer:

But in those two —

Hugo L. Black:

I don’t think.

Milton Kramer:

No, that — that is not the question, Your Honor.

Just indicating there are other inducements which are perhaps too many people, more persuasive than the union thought.

Those two cases did indicate that the activities under attack, that is espousing political objectives in the union publication.

In the other case, the UAW case, it was buying TV time to espouse the virtues of a political candidate.

That the unions were engaging in activities they had a constitutional right to engage in.

Milton Kramer:

The appellees must be saying here that it is unconstitutional, as to them, for the unions to engage in activities they have a constitutional right to engage in.

I suggest also that if these expenditures violate the First Amendment rights of the appellees, then many heretofore unquestioned activities of the government would also violate the First Amendment rights of various groups of taxpayers.

Now, I made this point in our brief last year.

I made it in oral argument.

Neither the Solicitor General nor the appellees have seen fit to try to answer it.

I would like to make it again.

The coercive power of taxation certainly is at least as great as the union shop.

In the case of the union shop, the sanction is losing a particular job with the Southern Railway.

In the case of taxation, you have to pay taxes wherever you earn money, and if you don’t earn it, if you get it some place else, so long as it is income, or if you buy certain items, you pay.

In some jurisdictions if you buy food, you have to pay taxes.

Now what —

Earl Warren:

We’ll recess now Mr. Kramer.