Rehearing Denied Feb. 24, 1975.
See 420 U.S. 956.
On petition for writ of certiorari to the Court of Appeals of
New York.
On petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice DOUGLAS with whom THE CHIEF JUSTICE joins,
dissenting.
These cases, as I view them, present the issue of whether a
person suffers an infringement of his First Amend-
Page 419 U.S.
1093 , 1094
ment rights when he is compelled to pay union dues (or their
equivalent) as a precondition to expressing his ideas through a
public broadcasting medium. [
Footnote 1]
In Railway Employes' Dept. v. Hanson,
351 U.S. 225 (1956), a
union shop agreement authorized under the Railway Labor Act was
challenged under the First and Fifth Amendments. While holding on
the merits that a union shop requirement does not violate those
Amendments, we held that the Railway Labor Act provision governing
union shop agreements constitute sufficient governmental action to
require consideration of the constitutional issues: '[T]he federal
statute is the source of power and authority by which any private
rights are lost or sacrificed.' Id., at 232. We left open the
possibility that a membership or dues requirement might, in some
circumstances, be imposed in contravention of the First Amendment,
though no such problem was presented on the record in that
case.
In Hanson, governmental action was based on the Railway Labor
Act, which provided that state 'right to work' laws were superseded
and that a union shop agreement was permissible notwithstanding
such laws. Id., at 231-232. Thus that federal Act placed 'the
imprimatur of the federal law' upon union shop agreements. The
Taft-Hartley Act (in contrast) authorizes union shop agreements
only in the absence of contrary state law. 29 U.S.C. 164(b). Yet
there still is a substantial argument in favor of a holding that a
union shop agreement under the NLRA bears the imprimatur of federal
law.
The fact that 8(a)(3)2 is phrased in permissive rather than
mandatory terms would not, in and of itself,
Page 419 U.S.
1093 , 1095
prevent a finding of governmental action. The Federal Government
has undertaken extensive regulation of the field of
labor-management relations, and by its approval and enforcement of
union shop agreements, may be said to 'encourage' and foster such
agreements. Linscott v. Millers Falls Co.,
440
F.2d 14 (CA1 1971); cf. Reitman v. Mulkey,
387 U.S. 369 (1967).
It is significant that congressional permissiveness towards
union shop agreements is coupled with the NLRA's 'exclusivity'
principle, whereby a majority vote of the employees in a particular
category is sufficient to designate an exclusive bargaining
representative whose actions bind majority and minority alike. When
Congress authorizes an employer and union to enter into union shop
agreements and makes such agreements binding and enforceable over
the dissents of a monority of employees or union members, it has
cast the weight of the Federal Government behind the agreements
just as surely as if it had imposed them by statute.
There is a substantial question whether the union dues
requirement imposed upon these petitioners should be characterized
as a prior restraint or inhibition upon their free speech rights.
In some respects, the requirement to pay dues under compulsion can
be viewed as the functional equivalent of a 'license' to speak. In
several related decisions, we have left open the possibility that
First Amendment associational freedoms would be infringed by a
requirement that a union member subject to a union shop agreement
pay dues to support union political activities with which he
disagrees. International Assn. of Machinists v. Street,
367 U.S. 740 (1961);
Railway Employes' Dept. v. Hanson, supra. Cf. Lathrop v. Donohue,
367 U.S. 820
(1961). We held in Street that the Railway Labor Act should be
construed to deny unions the power to compel a union member to pay
dues in support of union political causes of which he disapproves;
we indicated that some
Page 419 U.S.
1093 , 1096
suitable formula of apportionment could be worked out, so that
the union member would bear his share of the cost of
collective-bargaining activities from which he benefited, but would
not be forced to contribute to political activities if he did not
wish to do so. Whether a similar accommodation could be worked out
in the present case, I do not know. Our cases dealing with flat
license fees or registration requirements, such as Thomas v.
Collins,
323 U.S.
516 (1945), and Murdock v. Pennsylvania,
319 U.S. 105 (1943), tend
to suggest that even a minimal payment designed solely to cover
administrative costs may be impermissible in a First Amendment
context. There remains a question of whether an accommodation
respecting dues could be worked out in the present case. Whatever
the outcome, I believe that the issues are sufficiently substantial
to call for plenary consideration.
Footnotes
Footnote 1 I agree with the
courts of appeals that issues concerning union disciplinary
sanctions (or threats of such sanctions) are not properly before
us.
Footnote 2 Title 29 U.S.C.
158(a)(3).
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