Decision: The Constitution in Action; 2; The Constiution and the Labor Union

This story began in Asheville, North Carolina, the place Superior Court, the year 1947. I'm calling the case number 2-7-7-8. The defense charge will criminal offense, contracting that agreeing to maintain a close shot. Will the defense please stand as I call their name? George Winnaker? Yeah.

Throughout the United States, organized labor and management, closely watched this case as it made its way through the lower courts. To the United States Supreme Court, and when the opinion of that court was announced, this case, of Whitaker and others versus North Carolina, became a chapter in the history of the United States Constitution, an interpretation affecting many people, a crucial decision. In July of 1947, to the Asheville Police Station, there came a man with a complaint.

He offered information, which he was willing to swear to. As a result, an investigation was launched by Special Detective Caldwell. Hello, George.

Well, hello, Henry. How's the police department this morning? Just fine, old man, how you coming? Oh, all right. George, we had a complaint this morning. Man City came and asked you for a job. You told him you wasn't union about it, but union made it. Well, I sure don't use anything else for union made. Back to the business, I just signed a contract this morning. Here's where the contract, the employer, agrees to employ none but union members. Affiliated with the building and construction trades council. Composed with the various union here in Maine, such as plumbers, flasks, partners, electricians, brick mazes. Back to the business, I've done that for the last 20 years. That's the only way that I know how to figure my cost. Now, the wage scales are all set, and you go to figure a job, you know what you're doing by employing union men. Mr. Wettaker, do you realize that a contract like this is against the new state law? Oh, calm down. Mr. Caldwell, well, well, I've done that for the last 20 years.

Well, I won't, man, why call in men such as Mr. Setcher? Mr. Henry here, the business representative to furnish him for. Sure, that's right. The following day, on the basis of information and belief, a warrant was sworn for the arrest of the signatories to the contract. Mr. Caldwell, Mr. Wettaker, I want you for a violation of this new law. Right to work law is Mr. Setcher. He's your son, Wettaker, Setcher. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Inler. Mr. Black. Mr. Black. Mr. Setcher is born here for you also for the violation of this new law. Right to work law.

And for you too, Mr. Inler, they do all violation of the right to work law. What's the bond you're going to be in this follow-up? Mr. Wettaker, if officers don't set bonds, we'll have to go up town to see what the bond will be. Yeah, that means it's losing a lot of time. The case first came up in police court. Then a jury trial in superior court. The state versus Wettaker and others. The state was represented by solicitor William McLean, defense counsel, George Pennell. Presiding was Judge Zebulon Nettles. A. M. DeBroule. T. G. Emmer. Yeah. A. G. Setcher. J. E. Rhodes. Roger, yeah. Fred Black.

Yeah. And R. B. Robinson. Yeah. What is your plea, gentlemen? Gilday or not Gilday as Charlie? Each and all of the defendants plead not Gilday. No questions, come down. Not afraid of the state for rest. The defense rest. So you see that this law, gentlemen of jury, half bill number 2.29. For Brett, for Brett and employer in his hurry to discriminate against a worker because he is not a member of the labor union. It also forbids an employer to discriminate against a worker because he is a member of the labor union. But in this case, we are not concerned with that part of the law. You, as you laws, must ignore any offense expressed during the testimony concerning this law. Opinions about the law are not your concern.

Your sole task is to decide whether the defendants in signing this contract that has been introduced in heaven will violate the law. Two hours later, the jury had finished its task. Gentlemen of the jury, have you reached the verdict? We have, sir. You are the judge. You find the defendants in each of them gildiest charged. This is your verdict, so say you all. Yes. The honor, please. The defendants move to set the verdict aside as against the greater weight of the evidence and move for a new child, motion over room, exception.

Each defendant was fined $50 plus a 7th of the costs of the trial. The verdict was appealed. The State Supreme Court upheld the superior court decision. Then came another appeal to the United States Supreme Court. The court indicated it would hear the case. Argument was scheduled for the fall of 1948. Meanwhile, in the law offices of George Pennell in Asheville would come months of work. The brief for Whitaker et al, challenging the state law under which they had been convicted and appealed to the higher law of the Constitution. And this, in fact, had been the purpose from the start.

The contract at issue had been part of a plan encouraged by the Central Labor Union of Asheville and by the State Federation of Labor. The men who months before had signed the contract had acted not merely for themselves but for organized labor in North Carolina. A contractor, friendly to organized labor, had willingly taken part with representatives of the various unions. The fines and court costs would be borne by fellow workers throughout the state. To organize labor, the law that had been passed in North Carolina in 1947 banning the closed shop, the union shop, and similar clauses had seemed a calamity. This lawsuit was their plan to undo it. A plan whose outcome would be decided in a matter of months in the United States Supreme Court. That labor should choose such a procedure toward its ends had some significance. A few years ago, it would not have done so.

A century ago, labor looked on judges and juries as its natural enemies. Early efforts to organize unions were often treated by the courts as criminal conspiracies. Throughout the 19th century, strikes and pickets were stopped by court injunction, sometimes backed by force. The workers' main hope lay not in the processes of justice but elsewhere. Little by little, the unpropertyed worker had been winning the right to vote. Now, gradually, the worker became a force in politics. By the end of the 19th century, in one state and then another, he began to achieve laws favorable to the worker. However, these pro-labor state laws were often wiped out in the courts. There was, for example, the case of Lochner versus New York.

The time, the turn of the century. In 1897, New York State had passed a law limiting work in bakeries to 10 hours a day, 60 hours a week. The law had been advocated as a health measure, but Lochner and his bakery in Utica maintained much longer working hours. In 1897, Lochner and his bakery in Utica had passed a law limiting work in bakeries to 10 hours a week. In 1897, Lochner and his bakery in Utica had passed a law limiting work in bakeries to 10 hours a week. In Utah, the police began to take an interest in the Lochner work week. There was an investigation. Finally, Lochner was arrested, but he claimed infringement of his constitutional rights.

He fought the case to the United States Supreme Court. In 1905, came the decision, a five-to-four decision read by Justice Peckham. He said, This act is an illegal interference with the right of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best. So the New York Law was declared unconstitutional. Then there was the case of Coppage versus Kansas.

This concerned a labor dispute on a Western railway. The time was 1911. The state of Kansas had passed a law banning the so-called yellow dog contract, a device used by some employers to prevent unionization. They would ask each employee to sign a pledge not to belong to a union during his employment. This practice became illegal in Kansas. One day, in 1911, hedges, a switchman on the Frisco railway, came in from a day's work. Presently, he was called over by his superintendent.

He was asked to sign something. He was told he must sign or lose his job. Later, Coppage, the superintendent, was arrested for this, for violating the state law. But he carried an appeal to the United States Supreme Court. In 1915, came the decision, a six-to-three decision, read by Justice Pitney. He said, if freedom of contract is to be preserved, the employer must be left at liberty to decide for himself whether union membership by his employee is consistent with the satisfactory performance of duties. The Kansas Act is repugnant to the due process clause of the 14th Amendment, and therefore void.

So, the Kansas Law, too, was declared unconstitutional. Then there was the case of Truax versus Corrigan. In 1916, at a restaurant in Bizby, Arizona, the cooks and waiters went on strike. Truax, the proprietor, tried to get an injunction to keep them from picketing. But Arizona had adopted a law which forbade the state courts, except in rare cases, to issue injunctions in labor disputes. So Truax was refused an injunction. But claiming infringement of his constitutional rights, he appealed to the United States Supreme Court. In 1921, came the decision, a five-to-four decision, read by Chief Justice Taft. He said, a law which operates to make lawful such a wrong, deprives the owner of his property without due process, and cannot be held valid under the 14th Amendment. So, the Arizona Law, too, was declared unconstitutional. In each of these cases and many others, the pro-labor state laws were ruled out on the basis of the same constitutional clause, the 14th Amendment. It seemed like a barrier across labor's path.

It shut out the labor organizer blocked the picket line, maintained the work week. What was this 14th Amendment? What did it say? Adopted after the Civil War, its immediate aim was to assure the Negro of the rights of citizenship. Thus it began, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Then the amendment imposed on the states, certain restrictions. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law. Liberty, property, due process, somehow those words became a rallying point for employers. In matters of employment said the court, there should be liberty of contract.

But this view was not unanimous. In the Lochner-Bakerie decision, voiding the New York Law, there were four dissenters. In the Coppage decision, voiding the Kansas Law, there were three dissenters. In the True Acts decision, which voided the Arizona Law, there were four dissenters. Here are some of the dissenting opinions. In the matter of the New York State Law, which limited work in bakeries to 10 hours a day and to 60 hours a week, just as Harlan said this. The New York statute cannot be held in conflict with the Fourteenth Amendment without enlarging the scope of that amendment far beyond its original purpose.

In the matter of the Kansas Law forbidding the Yellow Dog contract, Justice Day said this. Liberty of contract is subject to the interest of the public welfare. The legislature is the judge of what is necessary for the public welfare. In the matter of the Arizona Law, restricting the use of injunctions in labor disputes, just as Holmes said this. There is nothing I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires in the insulated chambers afforded by the several states. But the reign of the Fourteenth Amendment continued, misused some said to throttle social experiments on behalf of labor.

Then at last the Fourteenth Amendment began to shrink. The unions began to be helped by federal legislation, especially the National Labor Relations Act of 1935 bringing collective bargaining under federal protection. The law was upheld by the Supreme Court. State laws favorable to labor were likewise upheld. In the following years the membership of organized labor grew by leaps. Labor's power increased rapidly. In many industries it won union securities such as closed shop, union shop or similar clauses. By 1946 three-quarters of organized labor was covered by union security clauses. Wages rose, work weeks were shortened. Labor and its leaders were constantly in the news. But power brings its own problems, its own resistances. To some the power of organized labor began to seem excessive. Congress revised the labor law forbidding the closed shop in interstate commerce.

But various states went further. A member passed laws forbidding all kinds of union security clauses. By 1947 twelve states had such laws. How could labor combat these so-called right-to-work laws? Labor thought it saw an answer. In 1947 in North Carolina, Arizona and Nebraska labor invoked as a barrier against the new laws the 14th Amendment. There was an irony in this but labor asked why not? If the due process clause could years ago save lotter from state interference. If it could protect copage and his yellow dog contract.

If it could save true acts from the picketing of cooks and waiters. Might it not protect George Whitaker's agreement with the building unions of Asheville? A contract made willingly by all its parties? This was the question posed as the briefs were completed and the lawyers converged on Washington. Because of the similarity of the union security cases from North Carolina, Arizona and Nebraska they were scheduled to be heard together. So there was counsel for labor unions of Asheville, Phoenix and Lincoln. There was counsel for employers, the American sash and door company of Phoenix, the northwestern iron and metal company of Lincoln and others. There was counsel for the Nebraska Small Businessmen's Association for the State Federation of Labor and the American Federation of Labor.

There was counsel for the state governments of North Carolina, Arizona, Nebraska and others. In the words of Justice Robert Jackson, struggles which elsewhere might call out regiments of troops in America call out battalions of lawyers. And so the stage was set, November 1948. Two months later, in January 1949 came the decision. A unanimous decision read by Justice Black. He said, there was a period in which labor union members were the victims of widespread employer discrimination. Employers required them to sign agreements stating that the workers were not and would not become labor union members. Such anti-union practices were so obnoxious to workers that they gave these required agreements the name of yellow dog contracts. This court, beginning as early as 1934, has steadily rejected the due process philosophy and unseated in the copage line of cases.

Appellants now ask us to return, at least in part, to the due process philosophy that has been deliberately discarded. But just as we have held that the due process clause erects no obstacle to block legislative protection to union members, we now hold that legislative protection can be afforded non-union members. So now it was over, an episode in a power struggle, a skirmish that had started in the quiet town of Asheville. It had been fought peacefully, according to the rules, under the American system in which laws themselves can be brought to trial and measured against the higher law of the Constitution. The skirmish was over and its outcome clear. The court had held, employer, employee struggles are a proper subject for legislation.

Thus the unions knew that in the matter of union security, they must look not to the courtroom but elsewhere, to the political arena. Justice Frankfurter, in his concurring opinion, put it this way, if the proponents of union security agreements have confidence in the arguments addressed to the court, they should address those arguments to the electorate. The men who wrote this document lived in an agricultural society. It is a measure of their wisdom that their plan of government still provides us with a workable framework for decision. Yet the transition from an agricultural to an industrial nation has subjected the Constitution to countless stresses and problems of interpretation.

This film dealt with one of those many problems. This is national educational television. This is national educational television.