Retail Clerks International Association, Local 1625 v. Schermerhorn, AFL-CIO

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation84 S.Ct. 219,11 L.Ed.2d 179,375 U.S. 96
PartiesRETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625,et al., Petitioners, v. Alberta SCHERMERHORN et al. Re
Docket NumberNo. 13,AFL-CIO
Decision Date02 December 1963

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.

Page 97

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]

Page 98

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

Page 99

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

Page 100

(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

Page 101

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-

Page 102

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

Page 103

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...

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382 practice notes
  • Cipollone v. Liggett Group, Inc, No. 90-1038
    • United States
    • United States Supreme Court
    • October 8, 1991
    ...Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)). Congress' intent may be "explicitly stated in the statute's language or implicitly contained i......
  • GEO Grp., Inc. v. Newsom, Case No.: 19-CV-2491 JLS (WVG)
    • United States
    • U.S. District Court — Southern District of California
    • October 8, 2020
    ...F.Supp.3d 934 Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ) (citing Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963) ). "Second, ‘[i]n all pre-emption cases, and particularly in those in which Congress has ‘leg......
  • Arizona Contractors Ass'n Inc. v. Candelaria, No. CV07-02496-PHX-NVW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 7, 2008
    ...69 (2000). The intent of Congress is the "touchstone" of any preemption analysis. Retail Clerks Inn Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 Page 1045 Federal preemption can be either "explicitly stated in [a] statute's language or implicitly cont......
  • Qwest Corp. v. Minn. Pub. Utilities Comm'n, No. 11–2590.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 12, 2012
    ...case.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 [116 S.Ct. 2240, 135 L.Ed.2d 700] (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 [84 S.Ct. 219, 11 L.Ed.2d 179] (1963)). Congress may indicate pre-emptive intent through a statute's express language or through its structure ......
  • Request a trial to view additional results
382 cases
  • Cipollone v. Liggett Group, Inc, No. 90-1038
    • United States
    • United States Supreme Court
    • October 8, 1991
    ...Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)). Congress' intent may be "explicitly stated in the statute's language or implicitly contained i......
  • GEO Grp., Inc. v. Newsom, Case No.: 19-CV-2491 JLS (WVG)
    • United States
    • U.S. District Court — Southern District of California
    • October 8, 2020
    ...F.Supp.3d 934 Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ) (citing Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963) ). "Second, ‘[i]n all pre-emption cases, and particularly in those in which Congress has ‘leg......
  • Arizona Contractors Ass'n Inc. v. Candelaria, No. CV07-02496-PHX-NVW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 7, 2008
    ...69 (2000). The intent of Congress is the "touchstone" of any preemption analysis. Retail Clerks Inn Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 Page 1045 Federal preemption can be either "explicitly stated in [a] statute's language or implicitly cont......
  • Qwest Corp. v. Minn. Pub. Utilities Comm'n, No. 11–2590.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 12, 2012
    ...case.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 [116 S.Ct. 2240, 135 L.Ed.2d 700] (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 [84 S.Ct. 219, 11 L.Ed.2d 179] (1963)). Congress may indicate pre-emptive intent through a statute's express language or through its structure ......
  • Request a trial to view additional results

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