American Federation of Labor, Arizona State Federation of Labor v. American Sash Door Company Lincoln Federal Labor Union No 19129, American Federation of Labor v. Northwestern Iron Metal Company Whitaker v. State of North Carolina 1949 Black 167 237 28 344, 28 167 344 167 1257 1946 1947 399 167 10

• Decision Date: 06 September 1910
• Docket Number: No. 19129,A,Nos. 27,47 and 34,s. 27,19129
• Parties: AMERICAN FEDERATION OF LABOR, ARIZONA STATE FEDERATION OF LABOR, et al. v. AMERICAN SASH & DOOR COMPANY et al. LINCOLN FEDERAL LABOR UNION NO. 19129, AMERICAN FEDERATION OF LABOR et al. v. NORTHWESTERN IRON & METAL COMPANY et al. George WHITAKER, A. M. DeBruhl, T. G. Embler, et al. v. STATE OF NORTH CAROLINA. Decided Jan. , 1949. . Appeal from the Supreme Court of the State of Arizona. Mr. H. S. McCluskey, of Phoenix, Ariz., for appellants. Mr. Donald R. Richberg, of Washington, D.C., for appellees. Mr. Justice BLACK delivered the opinion of the Court. This case is here on appeal from the Supreme Court of Arizona under § 237 of the Judicial Code as amended, 28 U.S.C. 344, 28 U.S.C.A. § 344 (now § 1257). It involves the constitutional validity of the following amendment to the Arizona Constitution, adopted at the 1946 general election: 'No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.' Laws Ariz.1947, p. 399. The Supreme Court of Arizona sustained the amendment as constitutional against the contentions that it 'deprived the union appellants of rights guaranteed under the First Amendment and protected against invasion by the states under the Fourteenth Amendment to the United States Constitution'; that it impaired the obligations of existing contracts in violation of Art. I, § 10, of the United States Constitution; and that it deprived appellants of due process of law, and denied them equal protection of the laws contrary to the Fourteenth Amendment. All of these questions properly reserved in the state court, were decided against the appellants by the State Supreme Court. 1 The same questions raised in the
• Court: U.S. Supreme Court

335 U.S. 538

69 S.Ct. 260

93 L.Ed. 222

AMERICAN FEDERATION OF LABOR, ARIZONA STATE FEDERATION OF LABOR, et al.

v AMERICAN SASH & DOOR COMPANY et al.

LINCOLN FEDERAL LABOR UNION NO. 19129, AMERICAN

FEDERATION OF LABOR et al.

v. NORTHWESTERN IRON & METAL COMPANY et al.

George WHITAKER, A. M. DeBruhl, T. G. Embler, et al.

v. STATE OF NORTH CAROLINA.

Nos. 27, 47 and 34.

Decided Jan. , 1949.

On Appeal From the Supreme Courts of Arizona, Nebraska, and North carolina.

Appeal from the Supreme Court of the State of Arizona.

Mr. H. S. McCluskey, of Phoenix, Ariz., for appellants.

Mr. Donald R. Richberg, of Washington, D.C., for appellees.

Mr. Justice BLACK delivered the opinion of the Court.

This case is here on appeal from the Supreme Court of Arizona under § 237 of the Judicial Code as amended, 28 U.S.C. 344, 28 U.S.C.A. § 344 (now § 1257). It involves the constitutional validity of the following amendment to the Arizona Constitution, adopted at the 1946 general election:

'No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.' Laws Ariz.1947, p. 399.

The Supreme Court of Arizona sustained the amendment as constitutional against the contentions that it 'deprived the union appellants of rights guaranteed under the First Amendment and protected against invasion by the states under the Fourteenth Amendment to the United States Constitution'; that it impaired the obligations of existing contracts in violation of Art. I, § 10, of the United States Constitution; and that it deprived appellants of due process of law, and denied them equal protection of the laws contrary to the Fourteenth Amendment. All of these questions properly reserved in the state court, were decided against the appellants by the State Supreme Court.¹ The same questions raised in the state court are presented here.

For reasons given in two other cases decided today we reject the appellants' contentions that the Arizona amendment denies them freedom of speech, assembly or petition, impairs the obligation of their contracts, or deprives them of due process of law. Lincoln Federal Labor Union No. 19129, American Federation of Labor v. Northwestern Iron & Metal Co., and Whitaker v. State of North Car lina, 335 U.S. 525, 69 S.Ct. 251. A difference between the Arizona amendment and the amendment and statute considered in the Nebraska and North Carolina cases has made it necessary for us to give separate consideration to the contention in this case that the Arizona amendment denies appellants equal protection of the laws.

The language of the Arizona amendment prohibits employment discrimination against non-union workers, but it does not prohibit discrimination against union workers. It is argued that a failure to provide the same protection for union workers as that provided for non-union workers places the union workers at a disadvantage, thus denying unions and their members the equal protection of Arizona's laws.

Although the Arizona amendment does not itself expressly prohibit discrimination against union workers, that state has not left unions and union members without protection from discrimination on account of union mem- bership. Prior to passage of this constitutional amendment, Arizona made it a misdemeanor for any person to coerce a worker to make a contract 'not to join or become a member of any labor organization' as a condition of getting or holding a job in Arizona. A.C.A.1939, § 43-1608. A section of the Arizona code made every such contract (generally known as a 'yellow dog contract') void and unenforceable.² Similarly, the Arizona constitutional amendment makes void and unenforceable contracts under which an employer agrees to discriminate against non-union workers. Statutes implementing the amendment have provided as sanctions for its enforcement relief by injunction and suits for damages for discrimination practiced in violation of the amendment.³ Whether the same kind of snactions would be afforded a union worker against whom an employer discriminated is not made clear by the opinion of the State Supreme Court in this case. But assuming that Arizona courts would not afford a remedy by injunction or suit for damages, we are unable to find any indication that Arizona's amendment and statutes are weighted on the side of non-union as against union workers. We are satisfied that Arizona has attempted both in the anti-yellow-dog-contract law and in the anti-discrimination constitutional amendment to strike at what were considered evils, to strike where those evils were most felt, and to strike in a manner that would effectively suppress the evils.

In National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, this Court considered a challenge to the National Labor Relations Act on the ground that it applied restraints against employers but did not apply similar restraints against wrongful conduct by employees. We there pointed out, 301 U.S. at page 46, 57 S.Ct. at page 628, the general rule that 'legislative authority, exerted within its proper field, need not embrace all the evils within its reach.' And concerning state laws we have said that the existence of evils against which the law should afford protection and the relative need of different groups for that protection 'is a matter for the legislative judgment.' West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S.Ct. 578, 586, 81 L.Ed. 703, 108 A.L.R. 1330. We cannot say that the Arizona amendment has denied appellants equal protection of the laws.

Affirmed.

Mr. Justice MURPHY, dissents.

For concurring opinions of Mr. Justice FRANKFURTER and Mr. Justice RUTLEDGE, see 335 U.S. 538, 69 S.Ct. 260.

Mr. Justice FRANKFURTER, concurring.

Arizona, Nebraska, and North Carolina have passed laws forbidding agreements to employ only union members. The United States Constitution is invoked against these laws. Since the cases bring into question the judicial process in its application to the Due Process Clause, explicit avowal of individual attitudes towards that process may elucidate and thereby strengthen adjudication. Accordingly, I set forth the steps by which I have reached concurrence with my brethren on what I deem the only substantial issue here, on all other issues joining the Court's opinion.

The coming of the machine age tended to despoil human personality. It turned men and women into 'hands.' The industrial history of the early Nineteenth Century demonstrated the helplessness of the individual employee to achieve human dignity in a society so largely affected by technological advances. Hence the trade union made itself increasingly felt, not only as an indispensable weapon of self-defense on the part of work- ers but as an aid to the well-being of a society in which work is an expression of life and not merely the means of earning subsistence. But unionization encountered the shibboleths of a premachine age and these were reflected in juridical assumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the constitutional conception of 'liberty' were equated with theories of laissez faire.¹ The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution. This misapplication of the notions of the classic economists and resulting disregard of the perduring reach of the Constitution led to Mr. Justice Holmes' famous protest in the Lochner case against measuring the Fourteenth Amendment by Mr. Herbert Spencer's Social Statics. 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937. Had not Mr. Justice Holmes' awareness of the impermanence of legislation as against the permanence of the Constitution gradually prevailed, there might indeed have been 'hardly any limit but the sky' to the embodiment of 'our economic or moral beliefs' in that Amendment's 'prohibitions.' Baldwin v. State of Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056.

The attitude which regarded any legislative encroachment upon the existing economic order as infected with unconstitutionality led to disrespect for legislative attempts to strengthen the wage-earner's bargaining power. With that attitude as a premise, Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 736, and Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960, followed logically enough; not even Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375, could be considered unexpected. But when the tide turned, it was not merely because circumstances had changed and there had arisen a new order with new claims to divine origin. The opinion of Mr. Justice Brandeis in Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 863, 81 L.Ed. 1229, shows the current running strongly in the new direction—the direction not of social dogma but of increased deference to the l gislative judgment. 'Whether it was wise,' he said, now speaking for the Court and not in dissent 'for the state to permit the unions to (picket) is a question of its public policy—not our concern.' 301 U.S. at page 481, 57 S.Ct. at page 863, 81 L.Ed. 1229. Long before that, in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349, 16 A.L.R. 196, he had warned:

'All rights are derived from the purposes of the...