De Veau v. Braisted/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

I could more nearly comprehend the thrust of the Court's ruling in this case if it overruled Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, and adopted the dissenting opinion in that case written by my Brother Frankfurter. But to sustain this New York law when we struck down the Florida law in the Hill case is to make constitutional adjudications turn on whimsical circumstances

The New York law makes a person ineligible to solicit funds on behalf of a labor union if he has been convicted of a felony. The Florida law made it unlawful for one to be a business agent for a union if he had been convicted of a felony. 325 U.S., at page 540, 65 S.Ct. at page 1374. In each the question is whether such a state restriction is compatible with the federal guarantee contained in § 7 of the National Labor Relations Act which reads as follows:

'Employees shall have the right to self-organization, to form     join, or assist labor organizations, to bargain collectively      through representatives of their own choosing, and to engage      in concerted activities, for the purpose of collective      bargaining or other mutual aid or protection *  *  * .' The answer we gave in Hill v. State of Florida, supra, 325 U.S. at page 541, 65 S.Ct. at page 1374, was as follows:

'It is apparent that the Florida statute has been so     construed and applied that the union and its selected      representative are prohibited from functioning as collective      bargaining agents, or in any other capacity, except upon      conditions fixed by Florida. The declared purpose of the     Wagner Act, as shown in its first section, is to encourage      collective bargaining, and to protect the 'full freedom' of      workers in the selection of bargaining representatives of      their own choice. To this end Congress made it illegal for an     employer to interfere with, restrain or coerce employees in      selecting their representatives. Congress attached no     conditions whatsoever to their freedom of choice in this      respect. Their own best judgment, not that of someone else,     was to be their guide. 'Full freedom' to choose an agent     means freedom to pass upon that agent's qualifications.

'Section 4 of the Florida Act circumscribes the 'full     freedom' of choice which Congress said employees should      possess. It does this by requiring a 'business agent' to     prove to the satisfaction of a Florida Board that he measures      up to standards set by the State of Florida as one who, among      other things, performs the exact function of a collective      bargaining representative. To the extent that Section 4     limits a union's choice of such an 'agent' or bargaining      representative, it substitutes Florida's judgment for the      workers' judgment.'

Nothing has been done to change, in relevant part, the language of § 7 of the National Labor Relations Act since Hill v. State of Florida, supra. If § 7 foreclosed Florida from prescribing standards for union officials, I fail to see why it does not foreclose New York. Much is made of the fact that Congress, when it approved the Waterfront Commission Compact between New York and New Jersey, 67 Stat. 541, knew of the restrictions contained in § 8 of the New York Waterfront Commission Act now in litigation. But that is an argument that comes to naught when Art. XV, § 1 of the Compact is read:

'This compact is not designed and shall not be construed to     limit in any way any rights granted or derived from any other statute or any rule of law for      employees to organize in labor organizations, to bargain      collectively and to act in any other way individually,      collectively, and through labor organizations or other      representatives of their own choosing. Without limiting the     generality of the foregoing, nothing contained in this      compact shall be construed to limit in any way the right of      employees to strike.' (Italics added.)

Yet how can employees maintain their right to act through (representatives of their own choosing' if New York can tell them whom they may not choose?

Moreover the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. (1958 ed., Supp. I) § 401, 29 U.S.C.A. § 401, shows unmistakably that Congress has kept unto itself control over the qualifications of officers of labor unions. Section 2(a) of that Act provides in part:

'The Congress finds that, in the public interest, it     continues to be the responsibility of the Federal Government      to protect employees' rights to organize, choose their own      representatives, bargain collectively, and otherwise engage      in concerted activities for their mutual aid or protection *      *  * .'

Congress by § 504 of that Act has barred enumerated felons from holding union office 'during or for five years after' the conviction or end of imprisonment. That federal, not state, qualifications for union offices now obtain is made plain by § 604 of that Act. It provides as follows:

'Nothing in this Act shall be construed to impair or diminish     the authority of any State to enact and enforce general criminal laws with respect to robbery,      bribery, extortion, embezzlement, grand larceny, burglary,      arson, violation of narcotics laws, murder, rape, assault      with intent to kill, or assault which inflicts grievous      bodily injury, or conspiracy to commit any of such crimes.'      (Italics added.)

I do not know how Congress could make clear its twofold purpose: first, that federal standards are to determine the qualifications for holding union offices; and second, that enforcement of 'general criminal laws' by the States remains unimpaired.

What Congress did in approving the Waterfront Commission Compact and in adopting the Labor-Management Reporting and Disclosure Act of 1959 respected the integrity of Hill v. State of Florida, supra. We seem now to forsake it and in effect adopt the dissent in Hill v. State of Florida. That I cannot do. For the federal legislative record makes plain to me beyond doubt that Congress has left the qualifications for union offices to be determined by federal not state law. The Supremacy Clause of Article VI of the Constitution calls for a reversal of the judgment of the New York Court of Appeals. Hence I do not reach the other questions presented.