American Federation of Labor v. American Sash & Door Company/Concurrence Rutledge

Mr. Justice RUTLEDGE, concurring.

I concur in the Court's judgment in No. 34, Whitaker v. North Carolina. The appellants were convicted under a warrant which charged only, in effect, that they had violated the statute 'by executing a written agreement or contract' for a closed or union shop. There was neither charge nor evidence that the employer, after the statute became effective, had refused employment to any person because he was not a member of a union. The charge, therefore, and the conviction were limited to the making of the contract. No other provision of the statute is now involved, as the state's attorney general conceded, indeed as he strongly urged, in the argument here. As against the constitutional objections raised to this application of the statute, I agree that the legislature has power to proscribe the making of such contracts, and accordingly join in the judgment affirming the convictions.

In No. 27, American Federation of Labor v. American Sash & Door Company, and in No. 47, Lincoln Federal Labor Union v. Northwestern Iron & Metal Company, as against the constitutional questions now raised, I am also in agreement with the Court's decision, but subject to the following reservation. Because no strike has been involved in any of the states of fact, no question has been presented in any of these cases immediately involving the right to strike or concerning the effect of the Thirteenth Amendment. Yet the issues so closely approach touching that right as it exists or may exist under that Amendment that the possible effect of the decisions upon it hardly can be ignored. Strikes have been called throughout union history in defense of the right of union members not to work with nonunion men. If today's decision should be construed to permit a state to foreclose that right by making illegal the concerted refusal of union members to work with nonunion workers, and more especially if the decision should be taken as going so far as to permit a state to enjoin such a strike, I should want a complete and thorough reargument of these cases before deciding so momentous a question.

But the right to prohibit contracts for union security is one thing. The right to force union members to work with nonunion workers is entirely another. Because of this difference, I expressly reserve judgment upon the latter question until it is squarely and inescapably presented. Although this reservation is not made expressly by the Court, I do not understand its opinion to foreclose this question.