Railway Employes' Department v. Hanson/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

The provision of law now challenged is the latest exercise by Congress of its power under the Commerce Clause to promote peaceful industrial relations in the functioning of interstate railroads and thereby to further the national well-being. A mere recital of the course of history in this important field goes a long way to indicate that the main point of attack against the Act of January 10, 1951, 64 Stat. 1238, raises questions not of constitutional validity but of policy in a domain of legislation peculiarly open to conflicting views of policy. These efforts constitute a body of empiric responses by Congress to new problems or new insight for dealing with old problems.

The course of legislation affecting industrial controversies on railroads flows through these statutes: the Act of October 1, 1888, 25 Stat. 501; the Erdman Act of June 1, 1898, 30 Stat. 424, growing out of the Pullman strike of 1894, see In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; the Newlands Act of July 15, 1913, 38 Stat. 103; the Adamson Law of September 3, 1916, 39 Stat. 721; Title III of the Transportation Act of 1920, 41 Stat. 456, 469; the Railway Labor Act of May 20, 1926, 44 Stat. 577; the Act of June 21, 1934, 48 Stat. 1185, amending the Railway Labor Act.

Nearly fifty years ago, the railroads successfully attacked the constitutionality of a vital feature of the Act of June 1, 1898, whereby Congress made it a criminal offense to bar employment in interstate railroads merely because of labor union membership. Adair v. United States, 1908, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436. It is fair to say that this decision marks the nadir of denial to Congress of the power to regulate the conditions for assuring the Nation's dependence on the peaceful and effective operation of its railroads. The criticisms that the case aroused, see, e.g., Richard Olney, Discrimination Against Union Labor-Legal?' 42 Amer.L.Rev. 161 (1908), and Roscoe Pound, Liberty of Contract, 18 Yale L.J. 454 (1909), were reflected in later decisions of the Court. Neither the Commerce Clause nor the Due Process Clause was thereafter conceived, at least so far as they restrain railroad labor regulation, to be confined within such doctrinaire and frozen bounds as were confined the assumptions which underlay the decision in the Adair case. Thus, the Court sustained the Adamson Law, which was enacted to avert the threatened nation-wide railroad strike of 1916, Wilson v. New, 1917, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755; Title III of the Transportation Act of 1920, Pennsylvania R. Co. v. United States Railroad Labor Board, 1923, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536, and the Railway Labor Act of 1926, Texas & New Orleans R. Co. v. Brotherhood of Railway & Steamship Clerks, 1930, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; but see Railroad Retirement Board v. Alton R. Co., 1935, 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468.

The change in the Court's understanding of industrial problems, certainly as they affect railroads, in their bearing upon the country's commerce and all that thereby hangs, to no small degree reflected the changed attitude of the railroads towards the role of railroad labor unions in the discharge of the functions of railroads. As striking evidence as any of this important shift in opinion is the fact that the Railway Labor Act of 1926 came on the statute books through agreement between the railroads and the railroad unions on the need for such legislation. It is accurate to say that the railroads and the railroad unions between them wrote the Railway Labor Act of 1926 and Congress formally enacted their agreement. I doubt whether there is another instance in the history of important legislation in which acknowledgment was so candidly made by a President of the United States that agreement reached between industrial disputants regarding legislation appropriate for securing their peaceful relations should become law. 'I am informed,' the President reported to Congress in his annual message of December 8, 1925, 'that the railroad managers and their employees have reached a substantial agreement as to what legislation is necessary to regulate and improve their relationship. Whenever they bring forward such proposals, which seem sufficient also to protect the interests of the public, they should be enacted into law.' H.R.Doc. No. 2, 69th Cong., 1st Sess., p. 18. The President was Calvin Coolidge.

We have come full circle from the point of view in the Adair case. There the railroads, to repeat, successfully resisted an Act of Congress which outlawed what colloquially became known as the 'yellow-dog contract.' We are now asked to declare it beyond the power of Congress to authorize railroads to enter into voluntary agreements with the unions to which the overwhelming proportion of railway employees belong whereby all their workers are required to belong to such unions, provided, of course, that the unions be open unions, i.e., that membership in the unions be available on ordinary, appropriate terms. It seems to me that the constitutional objections to this legislation were conclusively and compendiously answered by Mr. Justice Holmes in his dissent in Adair v. United States, supra:

'Where there is, or generally is believed to be, an important     ground of public policy for restraint, the Constitution does      not forbid it, whether this court agrees or disagrees with      the policy pursued. It cannot be doubted that to prevent     strikes, and, so far as possible, to foster its scheme of      arbitration, might be deemed by Congress an important point      of policy, and I think it impossible to say that Congress      might not reasonably think that the provision in question      would help a great deal to carry its policy along. But     suppose the only effect really were to tend to bring about      the complete unionizing of such railroad laborers as Congress      can deal with, I think that object alone would justify the      act. I quite agree that the question what and how much good     labor unions do, is one on which intelligent people may differ; I think that laboring men sometimes attribute to them      advantages, as many attribute to combinations of capital      disadvantages, that really are due to economic conditions of      a far wider and deeper kind; but I could not pronounce it      unwarranted if Congress should decide that to foster a strong      union was for the best interest, not only of the men, but of      the railroads and the country at large.' 208 U.S. at pages      191-192, 28 S.Ct. at page 287.

The Court has put to one side situations not now before us for which the protection of the First Amendment was earnestly urged at the bar. I, too, leave them to one side.