organizations from exercising rights guaranteed their members under Federal law, especially with regard to primary picketing and primary strikes. There is enclosed in this communication a list of six cases in Iowa and Nebraska, where injunctions were granted ex parte restraining peaceful picketing; after hearing motions and answers, all of these cases were dismissed by the court. One of the main bases for securing the injunction was the right-to-work act in both States. In other words, employers used these laws as a basis for securing redress for themselves, whereas the primary purpose of this type of legislation, as announced to the general public, was to protect individuals in their so-called right to work. These laws are a guise used by employers in restraining lawful activities of labor unions and the enclosed cases are prime examples of the use made of this type of statute. I also wish to direct your attention to De Vries v. Baumgartner's Electric Construction Co. (1959), 359 U.S. 498. That is a case that went to the U.S. Supreme Court from the Supreme Court of South Dakota, wherein the South Dakota right-to-work statute was used as a partial basis for securing damages from a labor organization because of peaceful primary picketing; the Supreme Court of South Dakota denied injunctive relief but granted regular and punitive damages. It is suggested that you secure the South Dakota Supreme Court decision as illustrative of how employers are seeking damages for violation of right-toork statutes. In my opinion, perhaps the most important argument that can be made for the repeal of section 14(b) of the Taft-Hartley Act is the fact that employers, in right-to-work States, have used this section as a basis for denying federally protected rights to individual workers and their representatives. The original intention for this type of legislation was to protect the workers from forced membership and affiliation with a labor organization; however, it is interesting to note that no individual worker to my knowledge has been successful in a suit against a labor organization for violation of rights under the right-to-work statute. Invariably, in almost all cases, it is the employer who has made use of these statutes and not individual workers for whom and in whose benefit such statutes were professedly passed. To illustrate the effect of right-to-work statutes in the State of Nebraska, the case of Construction Laborers Local No. 1140 v. Morrison Quirk Elevator Corporation is very interesting. On August 9, 1962, the National Labor Relations Board, 17th region, in case designated No. 17-RC-3893, conducted an election at the above-mentioned company in Hastings, Nebr. The union was successful in the election by a vote of 21 to 10; subsequently, the union requested collectivebargaining conferences. To this date, even after securing a collective-bargaining agreement from the above employer, no employee of this company has ever joined or affiliated with the union involved in the Board proceedings. I trust that this will be of use to you in presenting this matter to Congress. Sincerely, DAVID D. WEINBERG. Mr. ZAGRI. He cites the case of DeVries v. Baumgartner's Electric Construction Company, wherein the South Dakota "right-to-work" statute was used as a partial basis for securing damages from a labor organization because of peaceful primary picketing; the Supreme Court of South Dakota denied injunctive relief but granted regular and punitive damages. It is significant that employers are seeking damages for violation of "right-to-work" statutes which were enacted presumably for the protection of workers. Let me take you to the State of Arkansas; I have a letter from James Youngdahl. I would like to offer for the record a law review article, "Thirteen Years of the Right-to-Work Law in Arkansas", which was published in volume 14, No. 4, of the Arkansas Law Review. Senator PELL. That will be put in the record. (The information requested follows:) [Arkansas Law Review and Bar Association Journal, Fall 1960] THIRTEEN YEARS OF THE "RIGHT TO WORK" IN ARKANSAS 1. INTRODUCTION In 1947 Dean Joe E. Covington concluded a Legislative Note on Arkansas Act 101 of 1947 with the following language: A strong argument favoring the validity of the legislation is found in the idea of permitting legislatures to experiment in social control and by such experimentation finally to achieve ends that will be for the good of all. If the legislation proves unfortunate, this will manifest itself in a relatively short time and the error can be corrected in the same manner, by legislation. One of the latest authoritative books on labor law . . . advocates the view of permitting the states to regulate labor by legislation and thus by the trial and error method search for a solution to one of the most perplexing problems of the modern age.1 Thirteen years later the question arises as to whether the Arkansas Freedom to Work Act 2 has proven unfortunate or has served as a solution to one of the most perplexing problems of the modern age. The ordinary answer to this question is today as dependent on economic bias as it was in 1947.3 The purpose of the instant discussion, however, is to survey the recorded results of the "right to work" principle in Arkansas, thereby to gather together raw data for a judgment on whether or not this legislative experiment has been successful. II. DEVELOPMENT OF THE LAW The concept of union security, achieved by restricting employment in a given economic unit to members of a labor organization, has a genesis in this country predating the founding revolution.5 Individual employer resistance to this concept has corresponding origins. The first statutory provision for the right to work principle was enacted in an amendment to the Florida Constitution in 1944. Arkansas was a close second in the trend which now affects labor-management relations in nineteen states. On November 4, 1944, 54.6 per cent of the ballots on the issue were cast for Amendment 34 to the Arkansas Constitution. tion 1 of the Amendment prohibits membership or non-membership in a labor organization or the payment of union dues as a condition of employment, and bans contracts with such provisions. Section 2 authorizes the legislature to enforce the Amendment with appropriate statutes. Sec Pursuant to the popular mandate, the legislature adopted Act 101 of 1947, the Freedeom to Work Act.10 The first section of the new legislation outlines the public policy of the state in terms of Amendment 34. The second forbids denial of employment because of membership or non-membership in a labor organization, or making the payment of money to a union a condition of employment. Contracts which exclude from employment members, non-members, *Attorney at Law, MeMath, Leatherman, Woods & Youngdahl, Little Rock, Arkansas. 1 Covington," Freedom lo Work" Act, 1 ARK. L. REV. 204, 209 (1947). 2 ARK. STAT. ANN. §§ 81-201 to 205 (Repl. Vol. 1960). 3 Compare NATIONAL RIGHT TO WORK COMMITTEE, DO RIGHT TO WORK LAWS HURT OR HELP THE ECONOMY? (1952) with AFL-CIO, UNION SECURITY: THE CASE AGAINST THE RIGHT TO WORK LAWS (1958). A vexing preliminary problem is in the use of the term "right to work," unquestionably the acceptable public denomination for laws which forbid making union membership a condition of employment. Despite the use of the term for the sake of convenience, it must be remembered that it is not a careful expression of the legal or economic principle involved. See Idaho State Federation of Labor (AFL) v. Smylie, 272 P.2d 707 (Ida. 1954), where the Supreme Court of Idaho refused to allow the ballot title of "right to work initiative proposal" to be submitted to the voters; and Moore v. Hall, 316 S. W.2d 207 (Ark. 1958), where the popular name "Freedom to Hire" was held to be misleading and partisan on a proposal which would have restricted the subject matter of bargaining. An arbitrator has commented, in Cutler-Hammer, Inc., 17 LRRM 2769 (Meyer 1946): "It is our opinion that the freedom to work, like all freedoms, may properly be qualified to the extent necessary for the welfare of the greatest number and we believe that when a union represents a large majority of the employees within the bargaining unit, when it is democratic in its practices, and when its history is one of stability and responsibility, if the representatives of the majority of the employees request it, it is fair to both the employer and the employees that the employees' freedom to work be qualified to the extent of requiring them to belong to a union." Skinner, Legal and Historical Background of the Right-to-work Dispute, 9 LAR. L. JOUR. 411 (1958); Pollitt, Right to Work Law Issues: An Evidentiary Approach, 37 No. CAR. L. REV. 233 (1959). • Ibid. 7 FLORIDA CONSTITUTION, DECLARATION OF RIGHTS § 12 (1959). Note. 81 MON. LAB. REV. 1380, 1381 (1958); Pollitt, supra note 5, at 233. See also MILLIS & BROWN, FROM THE WAGNER ACT TO TAFT-HARTLEY, 326–39 (1950). For 105,300; against 87652. See also Withee v. Hall, 217 Ark. 644, 232 S.W.2d 827 (1950). 10 Supra, note 2. The act was approved on February 19, 1947. Note, 19 LRRM 3029 (1947). or persons resigned or expelled from labor organizations are made illegal by Section 3. The fourth section of the act establishes the penalties for violations of a particular interdiction: entering into forbidden contracts. A fine ranging between $100.00 and $5,000.00 is established, and applicable separately to each day the contract is in effect. Provision is made for venue in criminal prosecutions. The final section makes the act inapplicable to contracts existing at the time of its passage." The effects of the right to work amendment and statute have been evidenced in ten cases in the Arkansas Supreme Court, three actions in Arkansas federal district courts, one published opinion of an Attorney General, and apparently no prosecutions under the criminal sanctions of the law. The first mention of the new Arkansas restrictions on collective bargaining was made in a 1949 decision.12 The suit was for the enforcement of a union shop agreement by two officers of a local union for the benefit of the membership. After a demurrer had been sustained by the trial judge on the ground of incapacity of the plaintiffs, the Supreme Court reversed, finding no defect in the capacity of the parties. In dissenting opinions, two judges commented that since the contract sought to be enforced was itself illegal under Amendment 34 and Act 101 of 1947, it was an idle gesture to remand a case with no cause of action to try.13 The next eight Arkansas Supreme Court decisions in the field concerned the effect of the right to work law on picketing. A hint of what was to come was included in dicta in Local No. 802 v. Asimos.14 A sweeping injunction issued by a lower court was modified to restrain only violent and obstructive picketing. The Court commented that since a closed shop had never been mentioned by the union negotiators, a basis for the broad restraint could not be found in Amendment 34.15 In the same term, the court showed what its Asimos suggestion could mean. In Self v. Taylor 16 an electrical contractor brought suit to enjoin picketing. A prior collective bargaining agreement had included a union security provision, entered into before the adoption of Act 101 of 1947. In 1949 negotiations, the union demanded the same clause, apparently in violation of the new statute. After some initial bargaining skirmishes, the union withdrew its demand for the inclusion of a union shop in the express contract. In its stead, a proposal was submitted allowing either party to cancel the contract within sixty days. It was testified that the union informed the employer that it would exercise the right of cancellation unless nonunion workers were discharged. Judge Dunaway, for the majority, held that the injunction should be maintained. Pointing out that the contract demanded through picketing was designed indirectly to achieve an illegal result, the court refused to "blind itself to reality." 17 Judge Leflar, dissenting, expressed a belief that the inferences adopted in the majority opinion were both tenuous and dangerous." Five years later the Self v. Taylor case was reopened.18 Again, the majority refused to allow the union to picket, in view of a finding that no lawful contract had yet been proposed by the union to the employer. On this occasion, three judges dissented. In protesting the unequal bargaining position in which the union was placed by the majority decision, Judge George Rose Smith remarked on Amendment 34: "I am unable to believe that a constitutional provision which was meant to encourage and to protect diversity of belief can properly be used as a means of compelling uniformity of thought." 19 In the interim between the two Self v. Taylor decisions, two cases involving the right to work laws were decided by the Arkansas tribunal. In one,20 an allegation of an Amendment 34 violation was not passed on by the Supreme Court; an injunction issued by a Chancellor was reversed solely because of a defect of parties defendant. In the other,21 however, a major decision again stopped picketing found to be illegal under the union security restrictions. "See Covington, supra, note 1 for more detailed analysis of the specific statutory language. 12 Smith v. Arkansas Motor Freight Lines, Inc., 214 Ark. 553, 217 S. W.2d 249 (1949). 13 214 Ark. at 553, 217 S. W.2d at 250 (1949). 14 216 Ark. 694, 227 S. W.2d 154 (1950). 13 216 Ark. at 702, 227 S. W.2d at 158 (1950). 16 217 Ark. 953, 235 S. W.2d 45 (1950). 17 217 Ark. at 963. 235 S.W.2d at 50 (1950). Compare Lion Oil Co. v. Marsh, 220 Ark. 678, 685, 249 S. W.2d 569, 572 (1952). 19 224 Ark. 524, 275 S. W.2d 21 (1955). 19 224 Ark. at 528, 275 S. W.2d at 23 (1955). 29 Bunch v. Launius, 222 Ark. 760, 262 S. W.2d 461 (1953). International Association of Machinists, AFL v. Goff-McNair Motor Co., 223 Ark. 30, 264 S. W.2d 48 (1954). In negotiations between an automobile distributor and the authorized representative of its employees, the union proposed a contract article that "the refusal of any or all employees who are members of the union to work with an employee who is not a member will not be considered as a violation of this agree ment." In return, the employer demanded an article embodying the concepts of Amendment 34, Act 101 of 1947, and Act 193 of 1943.22 Negotiations subsequently broke down, and the union began a strike. Prior to the strike it contended, the employees abandoned their demand for a closed shop contract. The Chancellor found that such demand actually had not been withdrawn; he enjoined all picketing because of this illegal purpose. In International Association of Machinists, AFL v. Goff-McNair Motor Co.23 the state Supreme Court affirmed the injunction. In answer to the contention of the union that only picketing for a closed shop should be enjoined, the Court stated that reapplication to the Chancellor for appropriate modification may be made when subsequent legitimate differences do not involve the closed shop demand, a questionable observation in view of the second Self v. Taylor holding several months later. The right to work law issue was not reached by the court in the next picketing decision, although it had been a ground for the complaint and decree in the lower court. The complaining employer had alleged that the union was attempting to force subletting of construction jobs to contractors employing union labor, contrary to the law and public policy of the state as expressed in Amendment 34 and Act 101 of 1947. The court upheld the injunction on the simple ground that the picketing was too broad and in too general a locality 25 expressly avoiding the question whether or not the right to work restrictions were violated. Amendment 34 again was squarely involved in Burgess v. Daniel Plumbing Co.* Among several reasons attributed to picketing of a building construction_contractor was a refusal by the employer to hire union labor. The Supreme Court upheld an injunction. It concluded that the weight of the evidence sustained the view of the Chancellor that the purpose of the picketing was for union security violative of Amendment 34. For the majority, Judge Ward commented that since no other reasons for the picketing had been established, he could not believe that the activity under the direction of able and experienced union representatives could have been senseless. Speaking for two dissenters, Judge Robinson found the conclusion that the picketing was for a closed shop to be pure speculation, and an insufficient ground for interfering with constitutionally protected free speech.27 In contrast to the trend since 1950, the Arkansas court upheld the right of a union to picket in Self v. Wisener, decided in 1956.28 The Chancellor had enjoined all picketing on the grounds that its purpose had been a contract in violation of Amendment 34, but the high court concluded that the weight of the evidence did not support this charge. On the contrary, a unanimous court found picketing in protest against the payment of substandard wages permissible under Arkansas law. Similarly, in the 1958 decision of McDaniel v. Tolbert," the Supreme Court rejected a rationale which had been basic to Self v. Taylor and Burgess v. Daniel Plumbing Co. by declining to infer a closed shop purpose in order to stop all picketing. The complaint had alleged both picketing in an unlawful manner and for the purpose made unlawful by the anti-closed shop restrictions. The Chancellor was affirmed in his decision to reject these allegations and allow some picketing to continue. At the end of 1958 the last and one of the most interesting decisions of the Arkansas court concerning the right to work law was handed down. In Potts v. Hay 30 a labor organization took advantage of Amendment 34 for the first time. By Arkansas Act 30 of 1957, the legislature had provided that any person on the police force of a municipality must be dismissed unless that person severs connections with a labor union. In an action to enjoin enforcement of the statute 22 The Anti-Violence Law, ARK. STAT. ANN. §§ 81-206 to 209 (Repl. Vol. 1960). 23 Supra, note 21. 24 International Brotherhood of Electrical Workers v. Broadmoor Builders, Inc., 225 Ark. 260, 280 S. W.2d 898 (1955). 25 A very questionable basis for state court jurisdiction. See discussion infra, at notes 43, 57: Comment, Federal Limitations on State Jurisdiction over Labor-Management Relations, 12 ÅRK. L. REV. 354, 375–76 (1958). 26 225 Ark. 792, 285 S. W.2d 517 (1956). 27 Compare Thornhill v. Alabama, 310 U.S. 88 (1940); Chauffeurs Local 795 v. Newell, 356 U.S. 341 (1958). Bul see International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284 (1957); Local 10, United Assn. of Plumbers v. Graham, 345 U.S. 192 (1953). 28 226 Ark. 58, 287 S. W.2d 899 (1956). 29 228 Ark. 555, 309 S. W.2d 326 (1958). 30 318 S.W.2d 826 (Ark. 1958). because of inconsistency with the right to work amendment, the Supreme Court affirmed a declaration of unconstitutionality by the Chancellor. It was coneluded, without dissent: We perceive no compelling reason to believe that the people intended to exclude public employment from the positive, unequivocal command of Amendment 34. . . . The suggestion made by the appellants, that the public interest will suffer if policemen are allowed to exert "union pressure" upon the city, fails to take into account the relatively slight extent to which Amendment 34 restricts the power of the legislature. The pertinent clause of the amendment deals only with the denial of employment on the basis of union membership. Nothing is said one way or the other on the subject of union pressure. Left untouched, for example, is the matter of striking against the government We are not convinced that the bare fact of union membership on the part of police officers presents such a threat to the public welfare that an implied exception must be written into the unqualised language of Amendment 34.31 In approximately the same decade, three cases involving the Arkansas union security restrictions were decided by federal district courts sitting in the State. In Lewis v. Jackson & Squires, Inc." the trustees of a Mine Workers Union welfare fund sued to recover unpaid sums from certain coal mine operators in the State. The welfare fund agreement was included in a national settlement of a coal labor dispute. But the settlement also required all employees of the employers to become and remain members of the union. Judge Miller dismissed the suit, pointing out that Arkansas law forbids recover on invalid contracts. The welfare fund obligation was not severable, he held, as the instrument described itself as "integrated," and part of the consideration for the promise sued on was held illegal under the Arkansas right to work provisions. Ten years later the Jackson & Squires situation was presented to Judge Miller again, but with one important variation. A national coal agreement including a union security provision was again the basis of contractual rights alleged by welfare fund trustees in Lewis v. Hixon Coal Co.33 But the contract required membership in the union only "to the extent and in the manner permitted by law." This saving clause was sufficient to preserve the right of the trustees to recover on the contract. The court commented, however, that if extrinsic activities showed a violation of the right to work principle, an appropriate remedy might lie through actions for injunctions or damages. The invalidity of a labor management agreement under Amendment 34 was also asserted as a defense in 1953 in Ketcher v. Sheet Metal Workers Intl. Assn.34 But Judge Lemley found no such invalidity on the face of the contract and nothing in the record before him to suggest the Self v. Taylor inferences. The union had agreed to furnish qualified workers at the request of the employer, and the employer promised to cover all of his employees with the wages and working conditions negotiated. The first element is not per se a violation of the right to work principle, the judge ruled, and the second is actually obligatory under the terms of the National Labor Relations Act.35 A further recorded legal interpretation of the Arkansas right to work provisions was given in 1950 by Attorney General Ike Murry.36 A request had been made for an opinion on the validity of an agreement between an employer and a union to put strike replacements at the bottom of a seniority list. No inconsistency with Amendment 34 or Act 101 of 1947 was found. The opinion stated that strikers return as old employees, not new ones; they merely are having their old service recognized by a favorded position on the seniority list. A striking aspect of this review of cases involving the two right to work provisions is that no decision involves the penalties provided by the act itself. The question arises whether or not any attempt has been made to impose the fines which the 1947 legislation allows. The answer seems to be that no cases on the penalties set out in the legislation have ever reached the case reports because no such action has been taken by the Prosecuting Attorneys in the eighteen Judicial Districts of the State. During the summer of 1960, this writer addressed an inquiry to each Prosecutor for information on the enforcement of the right to work law in his district. Replies were received from seventeen of the eighteen district officials, who would be in charge of such enforcement. The answers ranged from absolute assurances 21 318 S.W.2d at 829. 32 89 F. Supp. 354 (W.D.Ark. 1949). 174 F. Supp. 241 (W.D.Ark. 1959). 24 115 F. Supp. 802 (E.D.Ark. 1953). 25 See Sections 8(b)(2) and 9(a) of the amended Act, 29 U.S.C. (141-187 (Supp. 1959). * Arkansas Dept. of Labor File No. 104, 28 LRRM 88 (1950). |