Finney v. Hawkins

• Decision Date: 07 September 1949
• Court: Virginia Supreme Court
• Parties: FINNEY et al. v. HAWKINS.

189 Va. 878

54 S.E.2d 872

FINNEY et al.

v.HAWKINS.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

Action by Harley A. Hawkins against Claude F. Finney and others to recover damages for loss of employment because of refusal to join a union.

The Circuit Court of Elizabeth City County, Frank A. Kearney, J., entered judgment for plaintiff and defendants bring error challenging the constitutionality of Acts 1947, Ex.Sess., c. 2, §§ 1-8, "the right to work statute, " under which action was brought.

The Supreme Court of Appeals, Buchanan, J., held that the statute is a valid exercise of police power and does not violate constitutional guarantees of life and liberty, due process of law and freedom of speech and affirmed the judgment.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN and MILLER, JJ.

Beecher E. Stallard, Richmond, J. Albert Woll, Herbert S. Thatcher, James A. Glenn, Washington, D. C, for plaintiffs in error.

F. Lee Ford, Newport News, for defendant in error.

BUCHANAN, Justice.

This writ of error challenges the constitutional validity of chapter 2, Acts of Assembly, Extra Session, 1947, page 12, ¹ com-monly called the "Right to Work Statute, " which became effective April 30, 1947. It provides in substance that neither membership nor non-membership in a labor union shall be made a condition of employment; that a contract limiting employment to union members is against public policy; and that a person denied employment because he is either a member of a union or not a member of a union shall have a right of action for damages.

This action was brought pursuant to the provisions of this statute. The facts are not in dispute. Hawkins had been employed as a pressman in Brickey Print Shop, a partnership, in January, 1947. On July 31, 1947, after the effective date of the act, the partnership entered into a contract with Newport News Building and Construction Trades Council to print and publish a labor journal. One of the provisions of the contract was that the partnership would employ only union labor in its shop. In September, 1947, Finney, one of the partners, inquired of Hawkins whether he was a member of a labor union. Hawkins replied that he was not, whereupon Finney told him he would have to join a union because his printing contract required employment of union labor only. Hawkins refused to do so, stating that he had never belonged to a union and did not think it was necessary. For this refusal he was discharged and refused further employment until he joined a union. It is admitted that he was skillful in his trade and that his work was very satisfactory. Finney told him that he needed him but would not allow him to work unless he joined a union. He did join later and was given back his job. Afterwards he went to work for another employer and then brought this action in which he has recovered a judgment against the partnership and the Trades Council for $330 for damages sustained by reason of being out of employment for a period of about four weeks.

The defense made to the action in the trial court was, and the reason assigned for reversal of the judgment here is, that the statute is unconstitutional because it violates the First and Fourteenth Amend ments of the Federal Constitution, as well as sections 1, 11 and 12 of the Virginia Constitution, guaranteeing to the defendants and others freedom of assembly and speech, freedom of contract, equal protection of the law and due process of law.

Since this writ of error was granted, the Supreme Court of the United States has rejected as invalid the contention that laws having the purpose and effect of this statute infringe any provision of the Federal Constitution, admittedly settling that question in this case. Lincoln Federal Labor Union No. 19129, A. F. of L. v. Northwestern Iron & Metal Co. and Whitaker v. North Carolina, (1 opinion), 335 U.S. 525, 69 S.Ct. 251; American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258.

In the first-named case, as the court stated, a North Carolina statute and a Nebraska constitutional amendment provided that no person in those States should be denied an opportunity to obtain or retain employment because he is or is not a member of a labor organization, and forbade employers to enter into contracts excluding persons from employment on either of those grounds. The North Carolina statute attacked in the Whitaker case, supra, is practically identical with the Virginia statute. See State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860.

In rejecting the claim that the North Carolina statute and the Nebraska constitutional amendment violated the First Amendment the Supreme Court said: "Nothing in the language of the laws indicates a purpose to prohibit speech, assembly, or petition. Precisely what these state laws do is to forbid employers acting alone or in concert with labor organizations deliberately to restrict employment to none but union members.

"It is difficult to see how enforcement of this state policy could infringe the freedom of speech of anyone, or deny to anyone the right to assemble or to petition for a redress of grievances. * * * There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their own work-ing standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not, participate in union assemblies. * * * " 69 S.Ct. at page 254.

In sustaining the said statute and constitutional amendment against the charge that they violated the equal protection clause of the Fourteenth Amendment, the court pointed out that these laws in fact command equal employment opportunities for both union and non-union workers, and that it was precisely for that reason that the appellants argued that their constitutional rights of assembly and due process had been infringed, because they claimed the Federal Constitution guarantees greater employment rights to union than to nonunion members, --doubtless one of the "rather startling ideas" referred to by that court as having been advanced to support some of appellants' contentions.

In holding that these State laws do not violate the due process clause of the Fourteenth Amendment by forbidding contracts obligating the employer to refuse to hire or retain non-union workers, the court said that such laws in fact do no more than provide a method to aid the enforcement of the heart of the laws, which was their command that employers must not discriminate against either union or non-union members because they are such; and that "if the states have constitutional power to ban such discrimination by law, they also have power to ban contracts which if performed would bring about the prohibited discrimination." 69 S.Ct. at page 255.

The court then reviewed its former decisions to establish that it had consciously returned closer to the earlier constitutional principle "that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law"; and that "under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare." 69 S.Ct. at page 257.

Answering the claim of appellants that while the Constitution affords protection for union members against discrimination, nevertheless the same Constitution forbids a state from providing the same protection for non-union members, the court concluded: "Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers." 69 S.Ct. at page 257.

The same arguments that were made against the North Carolina statute and the Nebraska constitutional amendment are made against the Virginia statute in the briefs for appellants filed before us. The answers to these arguments given by the Supreme Court with respect to the Federal Constitution are equally clear answers with respect to the Virginia Constitution. As we said in Reynolds v. Milk Commission, 163 Va. 957, 963, 179 S.E. 507, 509, "The challenged provisions of the Virginia and Federal Constitutions are quite similar. Both guarantee to the citizens certain inherent rights, and, in my opinion, if the act * * * does not offend the Federal Constitution then it will not offend the Virginia Constitution."

Clearly the statute does not in any manner violate section 1 of the Virginia Constitution, which asserts the inherent right of all men to enjoy life and liberty, to acquire property and to pursue and obtain happiness and safety. In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327, it was said that the liberty so referred to includes the right of the citizen to be free in the enjoyment of all his faculties and to use them in all lawful ways, to live and work where he will, and to earn his livelihood by any lawful calling. So far from violating this section, which is the first section of our Bill of Rights, the statute here called in question is in keeping with and in aid of both the letter and the spirit of that section, preserving the liberty of mento work and earn their living without having that inherent right limited or destroyed by the condition of belonging or not belonging to some particular labor organization.

Neither section 11 of the Constitution, which contains our State due process of law provision, nor section 12, protecting free speech, is infringed by the statute in question, for the same reasons that it does not collide with the similar provisions of the Federal Constitution.

In their oral argument before us, appellants urged that correction of...