Retail Clerks International Association, Local 1625 v. Schermerhorn

• Decision Date: 02 December 1963
• Docket Number: No. 13,AFL-CIO,13
• Citation: 84 S.Ct. 219,11 L.Ed.2d 179,375 U.S. 96
• Parties: RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625,et al., Petitioners, v. Alberta SCHERMERHORN et al. Re
• Court: U.S. Supreme Court

375 U.S. 96

84 S.Ct. 219

11 L.Ed.2d 179

RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO et al., Petitioners,

v Alberta SCHERMERHORN et al.

No. 13.

Reargued Oct. 16, 17, 1963.

Decided Dec. 2, 1963.

[Syllabus from 96 intentionally omitted]

S. G. Lippman, Washington, D.C., for petitioners.

Bernard B. Weksler, Miami, Fla., for respondents.

Archibald Cox, Sol. Gen., for the United States, as amicus curiae, by special leave of Court.

Mr. Justice DOUGLAS delivered the opinion of the Court.

The sole question in the case is the one we set down for reargument in 373 U.S. 746, 747—748, 83 S.Ct. 1461, 10 L.Ed. 678: 'whether the Florida courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce

[Amicus Curiae intentionally omitted] the State's prohibition' against an 'agency shop' clause in a collective bargaining agreement.

In this case the union and the employer negotiated a collective bargaining agreement that contained an 'agency shop' clause providing that the employees covered by the contract who chose not to join the union were required 'to pay as a condition of employment, an initial service fee and monthly service fees' to the union. Nonunion employees brought suit in a Florida court to have the agency shop clause declared illegal, for an injunction against enforcement of it, and for an accounting. The Florida Supreme Court held that this negotiated and executed union-security agreement violates the 'right to work' provision of the Florida Constitution and that the state courts have jurisdiction to afford a remedy. Fla., 141 So.2d 269.

We agree with that view.

While § 8(a)(3) of the Taft-Hartley Act provides¹ that it is not an unfair labor practice for an employer and a union to require membership in a union as a condition of employment provided the specified conditions are met, § 14(b) (61 Stat. 151, 29 U.S.C. § 164(b)) provides:

'Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.'

We start from the premise that, while Congress could preempt as much or as little of this interstate field as it chose, it would be odd to construe § 14(b) as permitting a State to prohibit the agency clause but barring it from implementing its own law with sanctions of the kind involved here.

Section 14(b) came into the law in 1947, some years after the Wagner Act. The latter did not bar as a matter of federal law an agency-shop agreement.² Section 8 (a)(3) of the Taft-Hartley Act also allowed it, saying that 'nothing in this Act, or in any other statute of the United States, shall preclude' one. ³

By the time § 14(b) was written into the Act, twelve States had statutes or constitutional provisions outlawing or restricting the closed shop and related devices⁴—a state power which we sustained in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212. These laws about which Congress seems to have been well informed during the 1947 debates⁵—had a wide variety of sanctions, including injunctions, damage suits, and criminal penalties. In 1947 Congress did not outlaw union-security agreements per se; but it did add new conditions, which, as presently provided in § 8(a)(3),⁶ require that there be a 30-day waiting period before any employee is forced into a union, that the union in question is the appropriate representative of the employees, and that an employer not discriminate against an employee if he has reasonable grounds for believing that membership in the union was not available to the employee on a nondiscriminatory basis or that the employee's membership was denied or terminated for reasons other than failure to meet union-shop requirements as to dues and fees. In other words, Congress undertook pervasive regulation of union-security agreements, raising in the minds of many whether it thereby preempted the field under the decision in Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, and put such agreements beyond state control. That is one reason why a section, which later became § 14(b), appeared in the House bill⁷—a provision described in the House Report⁸ as making clear and unambiguous the purpose of Congress not to preempt the field. That purpose was restated by the House Conference Report in explaining § 14(b).⁹ Sen- ator Taft in the Senate deates stated that § 14(b) was to continue the policy of the Wagner Act and avoid federal interference with state laws in this field. As to the Wagner Act he stated, 'But that did not in any way prohibit the enforcement of State laws which already prohibited closed shops.'¹⁰ (Italics added.) He went on to say, 'That has been the law ever since that time. It was the law of the Senate bill; and in putting in this express prov sion from the House bill, (§ 14(b)) we in no way change the bill as passed by the Senate of the United States.¹¹

In light of the wording of § 14(b) and this legislative history, we conclude that Congress in 1947 did not deprive the States of any and all power to enforce their laws restricting the execution and enforcement of union-security agreements. Since it is plain that Congress left the States free to legislate in that field, we can only assume that it intended to leave unaffected the power to enforce those laws. Otherwise the reservation which Senator Taft felt to be so critical would become empty and largely meaningless.

As already noted, under § 8(a)(3) a union-security agreement is permissible, for example, if the union represents the employees as provided in § 9(a) (subject to rescission of the authority to make the agreement as provided in § 8(a)(3)). Those are federal standards entrusted by Congress to the Labor Board. Yet even if the union-security agreement clears all federal hurdles, the States by reason of § 14(b) have the final say and may outlaw i . There is thus conflict between state and federal law; but it is a conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements. It is argued that if there is a violation of a state union-security law authorized by § 14(b), it is a federal unfair labor practice and that the federal remedy is the exclusive one. It is urged that that course is necessary if uniformity is to be achieved. But § 14(b) gives the States power to outlaw even a union-security agreement that passes muster by federal standards. Where Congress gives state policy that degree of overriding authority, we are reluctant to conclude that it is nonetheless enforceable by the federal agency in Washington.

This result on its face may seem to be at war with San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, decided in 1959, and holding that where action is 'arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board.' 359 U.S. at 245, 79 S.Ct. at 780, 3 L.Ed.2d 775. In Garmon a state court was held precluded by the Taft-Hartley Act from awarding damages under state law for economic injuries resulting from peaceful picketing of a plant by labor unions that had not been selected by a majority of the employees as their bargaining agents.

Garmon, however, does not state a constitutional principle; it merely rationalizes the problems of coexistence between federal and state regulatory schemes in the field of labor relations; and it did not present the problems posed by § 14(b), viz., whether the Congress had precluded state enforcement of select state laws adopted pursuant to its authority. The purpose of Congress is the ultimate touchstone. Congress under the Commerce Clause may displace state power (Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 234—236, 67 S.Ct. 1146, 91 L.Ed. 1447; San Diego Bldg. Trades Council v Garmon, supra) or it may even by silence indicate a purpose to let state regulation be imposed on the federal regime. See Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 141—143, 83 S.Ct. 1210, 10 L.Ed.2d 248.

The Court in Algoma Plywood & Veneer Co. v. Wisconsin Emp. Relations Board, 336 U.S. 301, 314, 69 S.Ct. 584, 591, 93 L.Ed. 691 stated that '§ 14(b) was included to forestall the inference that federal policy was to be exclusive' on this matter of union-security agreements. In that case a state agency issued a cease-and-desist order against an employer from giving effect to a maintenance of membership agreement and ordered an employee reinstated and made whole for any loss of pay suffered. It was urged that since § 10(a) of the Wagner Act gives the Federal Board 'exclusive' power to prevent 'any unfair labor practice,' state power in the federal commerce field was displaced. 336 U.S. at 305, 69 S.Ct. at 587, 93 L.Ed. 691. State power, however, was held to exist alongside of federal power because of the special legislative history of the union-security provisions of the Act. The dissent did not deny that; rather it proceeded on the ground that, since the dispute arose prior to the 1947 Act, the case was to be judged by the pre-1947 construction of § 8(a)(3), as to which the majority and minority of the Court were in disagreement.

It also was argued in Algoma Plywood & Veneer Co. that § 14(b) displaced state law that 'regulates' the union shop. The Court said:

'But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any 'application' of a union-security contract, such as discharging an employee, which under the circumstances 'is prohibited' by the State, the legislative history of the section would dispel it.' 336 U.S., at 314, 69 S.Ct. at 591, 93 L.Ed. 691.

Congress, in...