Schermerhorn v. Local 1625 of Retail Clerks Intern. Ass'n, AFL-CIO, AFL-CIO

Decision Date25 April 1962
Docket NumberAFL-CIO,No. 31465,31465
Citation141 So.2d 269
Parties50 L.R.R.M. (BNA) 2055, 45 Lab.Cas. P 50,523 Alberta SCHERMERHORN, Lois Devita, Joyce E. Thuro, and Larry Stark, Appellants, v. LOCAL 1625 OF the RETAIL CLERKS INTERNATIONAL ASSOCIATION,; William Travis, President of Local 1625 of the Retail Clerks International Association,; and Food Fair Stores, Inc., Southern Division, a Pennsylvania corporation, authorized to do business in Florida, Appellees.
CourtFlorida Supreme Court

Bernard B. Weksler, Miami, for appellants.

Claude Pepper Law Offices, Miami, S. G. Lippman, Washington, D. C., Tim L. Bornstein, Washington, D. C., and Kaplan, Ser & Abrams, Miami, for Local 1625 of Retail Clerks International Ass'n, AFL-CIO, et al.

Aronovitz, Aronovitz & Haverfield and Robert M. Haverfield, Miami, for Food Fair Stores, Inc., Southern Division.

Bolles & Prunty, Miami, for John Hancock Mut. Life Ins. Co.

Allen Clements, Miami, J. Albert Woll, Washington, D. C., and Theodore J. St. Antoine, Washington, D. C., for American Federation of Labor and Congress of Industrial Organizations and Florida State Federated Labor Council.

John L. Kilcullen, Washington, D. C., and T. David Burns, Tallahassee, for Florida Right to Work Committee, amicus curiae.

HOBSON, Justice.

The appellants, plaintiffs in the action below, sought by an action in equity to enjoin the appellee labor union and Food Fair Stores from enforcing the provisions of an 'Agency Shop' clause contained in a collective bargaining contract between the union and Food Fair. The contract provision under attack provides that employees who are not union members 'shall be required to pay as a condition of employment, an initiation service fee and monthly service fees to the union,' such amounts being equal to the initiation fees and monthly dues for union members. The appellants are nonunion employees of Food Fair. It is their contention that the agency shop provision of the contract violates the 'right to work' provision of the Declaration of Rights of the Florida Constitution, Section 12, F.S.A.

A motion to dismiss the complaint was filed on the grounds, first, that the matter was one within the exclusive jurisdiction of the National Labor Relations Board by virtue of the provisions of 29 U.S.C.A. §§ 141-188, and also that the contract provision does not violate Section 12 of the Declaration of Rights.

The trial court granted the motion to dismiss and entered a final order wherein it was stated in part:

'* * * the Complaint * * * is hereby dismissed for the reason that the court finds that the agency shop clause, Section 2, Article 19 of the contract between the defendant Union and defendant Food Fair is not violative of the Florida 'right to work law' as contained in Section 12 of the Declaration of Rights of the Constitution of Florida * * *.'

The cause was appealed to the District Court of Appeal, Third District. The District Court heard arguments and filed an opinion in which the decree of the chancellor was reversed and the cause remanded. Before that decision became final the appellees filed a motion to the court to withdraw its opinion and transfer the appeal to this court, asserting that the appeal should have been made directly to this court because the decision was one 'construing a controlling provision of the Florida Constitution.' Article V, Section 4, Florida Constitution. The District Court granted the motion and transferred the cause to this court, and entered an order withdrawing its opinion, conditional upon this court's accepting jurisdiction. The initial question with which we are faced is whether we have jurisdiction to determine this cause on a direct appeal.

In our judgment, the chancellor's order quoted above clearly and unquestionably construes Section 12, Declaration of Rights. Unlike in Milligan v. Wilson, Fla., 104 So.2d 35, and Carmazi v. Board of County Commissioners, Fla., 104 So.2d 727, the issues in the instant case required the trial court to rule directly on a constitutional provision. Moreover, the fact that there was such a direct ruling appears from the face of the lower court's order. The question is whether the ruling amounts to a construction of Section 12, Declaration of Rights. As stated in Armstrong v. City of Tampa, Fla., 106 So.2d 407, and in Cohen v. State, Fla., 121 So.2d 155, the trial court will be held to have construed a controlling provision of the constitution if the court undertakes to 'eliminate existing doubts arising from the language or terms of the constitutional provision.' In the instant case, there were 'existing doubts,' inasmuch as it has never before been determined by an appellate court in this State whether an agency shop clause contravenes the 'right to work' amendment of our Constitution. The trial court undertook to eliminate these doubts by squarely holding that the contract clause was valid.

The Chancellor did not merely apply the facts 'to a recognized clear-cut provision of the Constitution,' as in Page v. State, Fla., 113 So.2d 557, because the right to work clause is not 'clear-cut' when considered in connection with the facts presented in the instant case. On the contrary, the trial court was confronted with, and decided, a legitimate constitutional question of first impression.

In Boyd v. Dade County, Fla., 123 So.2d 323, we recognized that it was the plain constitutional plan of Article V, Section 4, 'that judgments construing controlling provisions of the Florida Constitution, being of such great importance to all the people, should be decided by direct appeals to the one court beyond which there can be no further appeal.' (Emphasis supplied.) Certainly, the constitutional question decided in the instant case is of no less importance to the general public merely because the chancellor did not see fit to launch into an extended dissertation giving his reasons for construing the constitutional provision as he did. Moreover, since the order on its face shows that the constitution was construed, this is not a case where it is necessary that we return the cause to the chancellor for a determination as to the basis of his ruling.

In the case of Boyd v. County of Dade, Fla., 123 So.2d 323, we held that we had jurisdiction on direct appeal because the trial court had construed a controlling provision of the Florida Constitution in its order denying a motion for a jury trial in the Metropolitan Court of Dade County. The pertinent portion of the trial court's order was as follows:

"* * * after hearing argument of counsel and carefully considering each of the constitutional rights raised by the defendant for trial by jury and being otherwise fully advised in the premises finds that the grounds given by the defendant in his request for a jury trial are not applicable to this Court. * * *."

Since, by virtue of the above quoted order, it was held that this court had jurisdiction on direct appeal, it is equally clear in the instant case that the trial court construed a controlling provision of the Florida Constitution within the meaning of Article V, Section 4, and that we therefore possess jurisdiction to determine this cause on direct appeal.

Upon full consideration of the arguments and briefs of the parties, as well as the briefs of the various amici curiae, we are of the opinion that the judgment of the trial court must be reversed for the reasons set forth herein and in the excellent and learned opinion prepared for the District Court of Appeal, Third District, by Judge CARROLL, which is hereinafter set out in haec verba.

The portion of Section 12 of the Declaration of Rights which is in issue, reads as follows:

'The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union, or labor organization; provided, that this clause shall not be construed to deny or abridge the right of employees by and through a labor organization or labor union to bargain collectively with their employer.'

This section clearly bestows on the workingman a right to join or not to join a labor union, as he sees fit, without jeopardizing his job. Inasmuch as the Constitution has granted this right, the agency shop clause is repugnant to the Constitution in that it requires the nonunion employee to purchase from the labor union a right which the Constitution has given him. The Constitution grants a free choice in the matter of belonging to a labor union. The agency shop clause contained in the contract under consideration purports to acknowledge that right, but in fact, abrogates it by requiring the non-union worker to pay the union for the exercise of the right or, in the alternative, to be discharged from his employment. Such an arrangement is palpably and totally inconsistent with the freedom of choice contemplated by our Declaration of Rights, Section 12.

The appellees contend that, except for the 'agency-shop' provision, the non-union employees of the appellant Food Fair would be 'free riders,' that is, they would reap the benefits of union representation without having to bear any of the cost thereof. This argument is grounded on the fact that the union is, by law, the bargaining agent for all employees--those who do not belong to the union as well as those who do. 29 U.S.C.A. § 159. This argument may be answered by reference to the section of the Constitution under consideration. Clearly, it is the intent of this section to leave as a matter for individual determination and preference the question of whether the worker will derive any benefit from association with a labor union. The choice is his to make. Presumably, the appellants in the instant case have decided that union membership is not an overall benefit to them personally, else they would have joined.

The appellees further assert that our state courts are without jurisdiction to determine this matter, because of the pre-emption by the federal government of the...

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