William J. Brennan, Jr.

“ The union receiving money exacted from an employee under a union-shop agreement should not in fairness be subjected to sanctions in favor of an employee who makes no complaint of the use of his money for such activities. From these considerations, it follows that the present action is not a true class action, for there is no attempt to prove the existence of a class of workers who had specifically objected to the exaction of dues for political purposes. ”

“ As to such expenditures an injunction would work a restraint on the expression of political ideas which might be offensive to the First Amendment. For the majority also has an interest in stating its views without being silenced by the dissenters. To attain the appropriate reconciliation between majority and dissenting interests in the area of political expression, we think the courts in administering the Act should select remedies which protect both interests to the maximum extent possible without undue impingement of one on the other. ”

“ Unless a labor organization were obliged to participate in the judgment board machinery before it could qualify for the union shop exception, it would place the bargaining representative in an unfair competitive position with respect to a rival union. Employees would be tempted to desert the organization of a bargaining representative which was assuming its responsibilities under the Act in favor of another union which was not contributing to its operation and which could thereby offer cheaper dues. ”

“ A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It is true that opponents of the union shop urged that Congress should not allow it without explicitly regulating the amount of dues which might be exacted or prescribing the uses for which the dues might be expended. ”

“ However, the restraints against unnecessary constitutional decisions counsel against their determination unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh, also meant that the labor organization receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes. Federal statutes are to be so construed as to avoid serious doubt of their constitutionality. ”

“ Benefits resulting from collective bargaining may not be withheld from employees because they are not members of the union.' H.R.Rep. No. 2811, 81st Cong., 2d Sess., p. 4. Observing that about 75% or 80% of all railroad employees were believed to belong to a union, the report continued: 'Nonunion members, nevertheless, share in the benefits derived from collective agreements negotiated by the railway labor unions but bear no share of the cost of obtaining such benefits.' Ibid. ”

“ Any remedies, however, would properly be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. The safeguards of § 2, Eleventh were added for the protection of dissenters' interest, but dissent is not to be presumed-it must affirmatively be made known to the union by the dissenting employee. ”

“ It was made explicit that the representative selected by a majority of any class or craft of employees should be the exclusive bargaining representative of all the employees of that craft or class. 'The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining.' Steele v. ”

“ The labor relations of interstate carriers have been a subject of congressional enactments since 1888. [11] For a time, after World War I, Congress experimented with a form of compulsory arbitration. [12] The experiment was unsuccessful. Congress has since that time consistently adhered to a regulatory policy which places the responsibility squarely upon the carriers and the unions mutually to work out settlements of all aspects of the labor relationship. That policy was embodied in the Railway Labor Act of 1926, 44 Stat. 577, which remains the basic regulatory enactment. ”

“ The Nebraska court's reference to the support of political ideas, candidates, and economic concepts 'which may or may not be of an employee's choice' indicates that it was considering at most the question of compelled membership in an organization with political facets. In their brief in this Court the appellees in Hanson argued that First Amendment rights would be infringed by the enforcement of an agreement which would enable compulsorily collected funds to be used for political purposes. ”

“ The administrative machinery is more complete and more complex. The mediation, arbitration, and Presidential Emergency Board provisions of the act, while greatly in the public interest, are very costly to the unions. The handling of agreement disputes through the National Railroad Adjustment Board also requires expense which is not known to unions in outside industry.' Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. ”

“ It is argued that our disposition of the First Amendment claims in Hanson disposes of appellees' constitutional claims in this case adversely to their contentions. We disagree. As appears from its history, that case decided only that § 2, Eleventh, in authorizing collective agreements conditioning employees' continued employment on payment of union dues, initiation fees and assessments, did not on its face impinge upon protected rights of association. ”

“ By providing that a worker should not be discharged if he was denied or if he lost his union membership for any reason other than nonpayment of dues, initiation fees or assessments, Congress definitely indicated that it had weighed carefully and given effect to the policy of the arguments against the union shop.' Report of Presidential Emergency Board No. ”

“ And many of our union people believe they would rather have members that belong because they want to, rather than because they have to.' P. 3732.↑ The Act of 1888, 25 Stat. 501, authorized the creation of boards of voluntary arbitration to settle controversies between carriers and their employees which threatened to disrupt transportation. ”

“ See testimony of Joseph B. Eastman, Federal Coordinator of Transportation, House Hearings on H.R. 7650, 73d Cong., 2d Sess., pp. 22-23, and his official interpretation of this legislation, 7 Interstate Commerce Acts Ann., 1934 Supp., pp. 5972-5973.↑ Eastman further emphasized that only the Trainmen were immediately affected by the broader prohibition he supported. 'I am confident that the only real support for the proposed amendments is from a single organization. None of the other standard organizations has anything to gain from such changes in the bill.' Eastman letter, supra, p. 16. ”

“ We do not think it is necessary.' P. 3724. In response to the query, 'By the services you have performed for your members you have attracted people voluntarily to join. Is that not correct?' Lyon replied: 'I think that is true. ”