Lewis v. American Federation of Television and Radio Artists

• Decision Date: 12 June 1974
• Parties: , 313 N.E.2d 735, 86 L.R.R.M. (BNA) 2892, 74 Lab.Cas. P 10,162 Fulton LEWIS, III, Appellant, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 419

357 N.Y.S.2d 419

34 N.Y.2d 265, 313 N.E.2d 735, 86

L.R.R.M. (BNA) 2892,

74 Lab.Cas. P 10,162

Fulton LEWIS, III, Appellant, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Respondent.

Court of Appeals of New York.

June 12, 1974.

C. Dickerman Williams, John L. Kilcullen, Washington, D.C. (of the District of Columbia Bar) and Edith Hakola (of the District of Columbia Bar) for appellant.

Alexander M. Bickel, New Haven, Conn., of the Massachusetts Bar, admitted on motion pro hac vice, Mortimer Becker, Edward Schlesinger and Robert M. Jaffe, New York City, for respondent.

STEVENS, Judge.

Plaintiff, a radio commentator on public affairs, states that he was required by his employer, Mutual Broadcasting System, Inc. (Mutual) to join defendant American Federation of Television and Radio Artists (AFTRA), pay dues, and comply with AFTRA's orders or directives as a condition of employment. Plaintiff asserts such requirement is purportedly authorized by section 8 (subd. (a), par. (3)) of the National Labor Relations Act (U.S.Code, tit. 29, § 158, subd. (a), par. (3)). He seeks a declaratory judgment that such requirement, as a condition of speaking over radio, violates his rights under the First Amendment of the Constitution of the United States.

AFTRA admits that it has a union shop contract with Mutual as exclusive bargaining agent for employees of Mutual in appropriate bargaining units and as exclusive bargaining representative for those employees in various other categories (one of which includes plaintiff, viz. broadcasters); that it 'is the designated, selected or certified bargaining representative pursuant to the provisions of Section 9(a) of NLRA, 29 U.S.C. § 158 (159(a)); admits that AFTRA is empowered to enter into agreements with employers requiring as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, pursuant to the provisions of Section 8(a)(3) of NLRA, 29 U.S.C. § 158'.

After joinder of issue plaintiff moved for summary judgment and such motion was denied. AFTRA's cross motion for summary judgment was granted and the complaint dismissed. The Appellate Division modified to strike the dismissal and to substitute therefor a provision declaring that section 8 (subd. (a), par. (3)), insofar as it authorizes AFTRA to require plaintiff to pay dues as a condition to speaking on radio, does not violate the First Amendment. As so modified the order was otherwise affirmed.

Under AFTRA's Code of Fair Practice, and its agreements with Mutual, Mutual bound itself to 'employ and maintain in our employment only such persons covered by this agreement as are members of the American Federation of Television and Radio Artists in good standing'. Such a provision is expressly permitted by the language of section 8 (subd. (a), par. (3)) of the National Labor Relations Act (U.S.Code, tit. 29, § 158) entitled 'Unfair labor practices'. That section provides, in pertinent part, '(a) It shall be an unfair labor practice for an employer * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title'.

It is undisputed that AFTRA is the designated, exclusive representative in accordance with section 9 (subd. (a)) of the NLRA (U.S.Code, tit. 29, § 159).

Plaintiff is and since 1966 has been a dues paying member of AFTRA and is under contract to Mutual. Plaintiff argues that since section 8 (subd. (a), par. (3)) authorizes the union shop or union security provision heretofore quoted, it violates the First Amendment, particularly the provision that 'Congress shall make no law * * * abridging the freedom of speech or of the press'. While plaintiff's contract with Mutual is a separate agreement, Mutual, respecting its obligations under the Code of Fair Practice, requires by such contract that plaintiff be a member of AFTRA. Plaintiff asserts that AFTRA requires that he remain a member in order to continue broadcasting with Mutual, that in 1967 he was required to interrupt his broadcasting by reason of a strike, and that he has felt intimidated by reason of AFTRA's disciplinary powers.

The question is do the provisions of section 8 (subd. (a), par. (3)), by requiring plaintiff to pay AFTRA dues, unconstitutionally act as a prior restraint on plaintiff's right of free speech? In our view it does not.

Article I (§ 8, par. (3)) of the United States Constitution provides 'The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes'. The regulation of commerce involves not only traffic but commercial intercourse, and the power to regulate commerce is the power 'to prescribe the rule by which commerce is to be governed' (Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 196, 6 L.Ed. 23). This power, including the power to restrain or prohibit and to prescribe rules by which commerce is governed for the general welfare, is complete in itself so long as the specific limitations imposed, by the due process clause of the Fifth Amendment, are not violated (United States v. Carolene Prods. Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234). This power is also a protective power which enables Congress to adopt measures to foster, protect and control commerce, as well as to adopt measures to insure its safety. Acts which impede or burden the free flow of interstate commerce, including acts which grow out of labor disputes are within this protective power.

With the growth and development of this Nation and its commerce it became obvious that industrial peace and stability in labor relations was essential. If such was ever to be achieved, there had to be some governmental guarantees of labor's right to organize and bargain collectively through representatives of their own choosing. Continuing labor disputes, resulting in part in inequalities in the strength of bargaining power, led to abuses, favored contracts and even violence. Naturally, the flow of interstate commerce was seriously affected.

Section 7 (subd. a) of the ill-fated National Industrial Recovery Act of 1933 (NIRA) (48 U.S.Stat. 198) had produced certain real benefits and encouraged labor to press forward. When the NIRA was held unconstitutional on May 27, 1935, it was succeeded, on July 5, 1935, by the National Labor Relations Act (NLRA). This act sought to promote industrial peace by encouraging organization and collective bargaining through representatives of labor's own choosing (NLRA, § 7; U.S.Code, tit. 29, § 157). Majority representation was established as a desirable principle (NLRA, § 9; U.S.Code, tit. 29, § 159). The necessary result was some equalization of bargaining strength between labor unions and employers. As a safeguard against abuses by either, certain acts or conduct were defined as unfair labor practices (NLRA, § 8; U.S.Code, tit. 29, § 158). NLRA specifically forbids 'any unfair labor practice affecting commerce.' Its constitutionality has been upheld as a valid exercise of Congressional power in a case which dealt with manufactured products (Labor Bd. v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893), and later, one involving farm produce (Santa Cruz Co. v. Labor Bd., 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954).

In the Jones & Laughlin case (Supra, 301 U.S. p. 33, 57 S.Ct. p. 622) the Supreme Court spoke of the right of employees to self-organization and to representation of their own choosing, for 'collective bargaining or other mutual protection without restraint or coercion by their employer', as a fundamental right, on a par with the right of an employer 'to organize its business and select its own officers and agents.'

It is clear that AFTRA and Mutual acted within the scope of the law.

Plaintiff has a right to be protected in the exercise of his freedom of speech. However, plaintiff's contention that his right to free speech is affected is totally without merit. The power of Congress to regulate commerce is contained in article I of the Constitution. The guarantee of freedom of speech appears in the Constitution in the First Amendment, which expressly forbids Congress to make any law abridging the freedom of speech. This prohibition similarly affects the States by virtue of the due process clause of the Fourteenth Amendment. (See N.Y.Const., art. I, § 8.)

'The cardinal principle of statutory construction is to save and not to destroy * * * as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.' (Labor Bd. v. Jones & Laughlin, Supra, 301 U.S. p. 30, 57 S.Ct. p. 621.)

Freedom of speech in its essence involves no previous restraint upon utterance or publication. It does not confer immunity, for abuse of the right will subject the offender to legal punishment. (See De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278.) The tests for abuse have been referred to as 'clear and present danger' (Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; see, also, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117), or the common-law test of dangerous tendency (Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (Holmes and...