Rhodes, Roy T.

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Labor Law: Constitutionality of Anti-Closed Shop Amendment

University of Florida Levin College of Law

Florida Law Review Volume 2 Issue 2 Article 14 January 1949 Labor Law: Constitutionality of Anti-Closed Shop Amendment Roy T. Rhodes Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Roy T. Rhodes, Labor Law: Constitutionality of Anti-Closed Shop Amendment, 2 Fla. L. Rev. 298 (1949). Available at: https://scholarship.law.ufl.edu/flr/vol2/iss2/14 This Case Comment is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. UNIVERSITY OF FLORIDA LAW REVIEWLABOR LAW: CONSTITUTIONALITY OF ANTI-CLOSED SHOP AMENDMENTLincoln Federal Labor Union v. Northwestern Iron & Metal Co.,69 Sup. Ct. 251 (1949)Plaintiff labor union brought suit for a declaratory judgment testingthe constitutionality of a Nebraska constitutional amendment prohibitingthe closed shop. 1 The plaintiff contended that this law violated the dueprocess clause of the Fourteenth Amendment of the United States Con-stitution in that it was designed to deprive all persons of "liberty" (1)to refuse to hire or retain any person in employment because he was orwas not a union member, and (2) to make a contract or agreement toengage in such discrimination against union or non-union workers. TheSupreme Court of Nebraska upheld the constitutionality of the amend-ment, and the plaintiff appealed. HELD, the due process clause of theFederal Constitution2 does not forbid a state to pass laws clearly designedto safeguard the opportunities of all persons, union and non-union, inobtaining employment free from discrimination because they are union ornon-union workers. Judgment affirmed.From early times a shop closed to workers who refused to join theunion has been one of the first objectives of organized labor; 3 yet itsachievement has been slow and tortuous in an industrial society, as hasbeen that of all rights of labor unions. Even when the rights of laborbegan to gain recognition, the dominant forces of a laissez-faire economyand the prevailing attitude of individualism resulted in a largely unre-stricted right of formulating contracts as between employer and employee;this was considered a matter of individual liberty and property preservedinviolate by the Federal Constitution.4In 1907 the United States Supreme Court held unconstitutional Con-'NEB. CoNsT. Art XV, §13:"No person shall be denied employment because of membership in or affiliationwith or resignation or explusion from a labor organization or because of refusalto join or affiliate with a labor organization; nor shall any individual or corpor-ation or association of any kind enter into any contract, written or oral, to excludepersons from employment because of membership in or nonmembership in a labororganization.""U. S. CONST. AMEND. XIV, §1.ToNER, TB C.osED SHOP 22 (1942).'DAuOEERTY, LABOR PROBLEMS iN AmECAN INxsTRY 429 (3d. ed. 1936); Abelow,The Closed Shop in New York, 7 BROOxLyx L. REv. 464 (1938).1Rhodes: Labor Law: Constitutionality of Anti-Closed Shop AmendmentPublished by UF Law Scholarship Repository, 1949CASE COMMENTSgressional legislation making it a criminal offense to discharge an employeebecause of his membership in a labor organization. 5 This, in effect,legitimatized one of the employer's most vicious weapons -the "yellowdog" contract. A few years later the Court, following its earlier man-date, invalidated a Kansas statute outlawing the "yellow dog" contractas a denial of the liberty of the parties, guaranteed by the due processclause, to fix their own terms of employment.6During the next few years labor received some encouragement fromdecisions upholding state regulation of working hours as a reasonableexercise of the police power for the health of its citizens, 7 but this trendwas temporarily checked by the Adkins decision s in 1923 that state leg-islation providing for minimum wages for women and children was invalid,even though the cases were argued on the same basis.The decision that manifested the change in the viewpoint did notinvolve a labor issue.. The United States Supreme Court held in 1933that a state could by appropriate measures set a minimum price in busi-nesses affected with a public interest even though not utilities, and thatit might adopt any economic policy reasonably deemed to promote thepublic welfare and might enforce it by legislation adapted to the purposeselected without violating the due process clause of the FourteenthAmendment. 9 Decisions following soon afterward conclusively establishedthis liberal due process theory,' 0 adding the obvious factor that thevarious legislatures must have the power to make use of this "trial anderror" method of social reform without the former amount of judicialinterference." This is typified by the 1935 decision in West Coast HotelCo. v. Parrish,'2 which specifically overruled the Adkins case and heldthat a minimum-wage law for women was valid. Speaking broadly, itrested on the power to restrict freedom of contract between employersand employees in the public interest. All contracts, therefore, are subjectto the paramount authority of the state by means of its police power tosafeguard not only the health, morals and safety of its citizens but like-wise their economic needs, provided the economic scope of the businessinvolved is quantitatively broad enough to be capable of disturbing the5Adair v. United States, 208 U. S. 161 (1908).'Coppage v. Kansas, 236 U. S. 1 (1915).'Bunting v. Oregon, 243 U. S. 426 (1917); Muller v. Oregon, 208 U. S. 412 (1908).'Adkins v. Children's Hospital, 261 U. S. 525 (1923).0Nebbia v. New York, 291 U. S. 502 (1934)."0See note 7 supra."1See note 8 suPra.1300 U. S. 379 (1937).2Florida Law Review, Vol. 2, Iss. 2 [1949], Art. 14https://scholarship.law.ufl.edu/flr/vol2/iss2/14

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Labor Law: Constitutionality of Anti-Closed Shop Amendment

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