Opinion
19685.
ARGUED MAY 13, 1957.
DECIDED JUNE 10, 1957.
Petition for injunction. Before Judge Long. Bibb Superior Court. February 4, 1957.
T. Arnold Jacobs, Gambrell, Harlan, Russell, Moye Richardson, W. Glen Harlan, Chas. A. Moye, Jr., John W. Chambers, for plaintiffs in error.
David L. Mincey, Bloch, Hall, Groover Hawkins, Harris, Russell, Weaver Watkins, Schoene Kramer, M. Kramer, contra.
1. Where pursuant to terms of the employment contract petitioners were notified that unless they became members of a labor union within 60 days their employment would be terminated, the suit to enjoin such action and to decree the contract void was not prematurely filed.
2. While we must follow the holding of the Supreme Court of the United States, that closed shop employment contracts under § 2, Eleventh, of the Railway Labor Act, are valid, yet since that court has not held that an employee can by such contract be required as an alternative to losing his job to join a union which will use contributions he makes to it to promote ideological and political issues and candidates he opposes, we hold that the petition of these employees seeking to enjoin the enforcement of the employment contract and decree it void because of such uses of their contributions alleges a cause of action and it was error to dismiss the same.
ARGUED MAY 13, 1957 — DECIDED JUNE 10, 1957.
This is an action for injunctive relief to prevent the defendants, composed of a number of railroad companies and various labor organizations which are the bargaining agents of the employees of such railroad carriers, from enforcing a closed or union shop agreement entered into by the defendants and discharging the petitioners who are named employees of said railroad carriers unless they join or remain members of a union. The petitioners also pray that the so-called "union shop agreement" be declared void. The petitioners allege that the agreement requires the employees to join or remain members of the various labor organizations applicable to their craft or trade as a condition precedent to the continued employment with the various carriers by whom the petitioners are now employed, and are threatened with discharge unless the actions of the defendants in enforcing such contract are enjoined. The contract is set out as an exhibit attached to the petition and requires all employees to become members of the labor organization party to this agreement representing their craft or class within 60 days after the effective date of the agreement. The contract is attacked as being illegal, unconstitutional and void, and in direct violation of the Georgia right to work laws (Code, Ann. Supp., §§ 54-801 through 54-908; Ga. L. 1947, pp. 616-620), the Fifth and Fourteenth Amendments of the Federal Constitution, and certain named sections of the Georgia Constitution.
By amendment petitioners further allege that the initiation fees, periodic dues and assessments which they would be required to pay under the closed shop agreement will be used in substantial part for purposes not germane to collective bargaining but to support ideological and political doctrines and candidates which they are not willing to support and can not lawfully be forced to support, thus violating their constitutionally guaranteed rights of freedom of association, thought, liberty and property; and the contract and § 2, Eleventh, of the Railway Labor Act (45 U.S.C.A. 481, § 152, Eleventh), to the extent that it authorizes such union shop agreement, are violative of the First, Fifth and Ninth Amendments of the Constitution of the United States.
After consideration of a written motion to dismiss, brought by counsel for the labor union defendants which states that petitioners fail to state a claim against any defendants upon which relief can be granted, citing decisions of the Federal Supreme Court in support thereof, the lower court sustained the motion, dissolved a temporary injunction previously granted, and dismissed the action as to all defendants. The exception here is to this final judgment.
1. The contract complained of was effective April 15, 1953. These petitioners were notified that unless they became members of the union within 60 days from the effective date of the contract their employment would be terminated. This notice accords with a clause in the contract. Thus is alleged and shown by the petitioners definite impending danger of losing their jobs unless this procedure which conforms to the alleged void contract is halted. While a mere apprehension will not authorize resort to equity (Railway Emp. Dept. v. Hanson, 351 U.S. 225, 76 Sup. Ct. 714, 100 L. ed. 1112; Mayor c. of Athens v. Co-Op Cab Co., 207 Ga. 505 (2), 62 S.E.2d 906; Nottingham v. Elliott, 209 Ga. 481 (3), 74 S.E.2d 93; Armed Forces Service Co. v. Petree, 211 Ga. 867 (1), 89 S.E.2d 486), yet one is not required to await the infliction of the injury before seeking to prevent it by injunction. Indeed these petitioners would have appealed to equity too late if they had awaited the completion of the 60-days-notice period and the overt act of discharging them. Mount v. The Grand International Brotherhood of Locomotive Engineers, 226 F.2d 604; Sandt v. Mason, 208 Ga. 541 ( 67 S.E.2d 767).
While, as indicated above, this appeal to equity for injunctive relief is based upon facts and not mere apprehension and is therefore not premature, there is an additional reason why the judgment dismissing the amended petition can not be sustained upon the ground that it is premature, and that is the prayer that the contract be decreed illegal and void.
2. Section 2, Eleventh, of the Railway Labor Act (45 U.S.C.A. 481, § 152) plainly authorizes the embodiment of a "closed shop" clause in contracts of employment, and in sweeping terms, nullifies all State laws in conflict therewith. The Supreme Court upheld the constitutionality of such a contract under the act in Railway Emp. Dept. v. Hanson, 351 U.S. 225, supra. To uphold a closed shop contract the court necessarily approved a denial of one's right to work because he is not a member of a labor union. We do not see a possibility of reconciling that ruling which is based solely upon the status of the individual which is that of non-union and is entirely lawful, with the following chain of decisions of the same court holding that one could not be lawfully denied the right to work because of his status as indicated therein — because he was a Roman Catholic priest, Cummings v. State of Missouri, 71 U.S. 277, 4 Wall. 277, 18 L.ed. 356; a Chinese immigrant, Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup. Ct. 1064, 30 L. ed. 220; a teacher of German, Meyer v. Nebraska, 262 U.S. 390, 43 Sup. Ct. 625, 67 L. ed. 1042; a freight train conductor, Smith v. Texas, 233 U.S. 630, 34 Sup. Ct. 681, 58 L. ed. 1129; a State employee, Wieman v. Updegraff, 344 U.S. 183, 73 Sup. Ct. 215, 97 L. ed. 216; a negro, Steele v. Louisville N. R. Co., 323 U.S. 192, 65 Sup. Ct. 226, 89 L. ed. 173; a teacher in a municipally supported school, Slochower v. Bd. of Higher Ed. of New York City, 350 U.S. 551, 76 Sup. Ct. 637, 100 L. ed. 692. It strikes us as being a futile gesture to solemnly declare the sacred and indestructible constitutional right of one to freedom of speech and freedom of worship, and then sanction a denial of that same one's right to work which is the indispensable economic support without which neither freedom could endure. One could not for long enjoy speaking and worshiping freely if he was hungry and was denied bread or the means of obtaining it.
Anyone familiar with the experiences of the thirteen original colonies under the dictatorial powers of the King as expressed in the Declaration of Independence, the reluctance of the States to surrender or delegate any powers to a general government as evidenced by the Articles of Confederation, and the demonstrated need for more powers in the area where jurisdiction was given the general government, will have no difficulty in clearly understanding the meaning of the Constitution when it defines those powers and by the Ninth and Tenth Amendments removes all doubt but that powers not expressly conferred were retained by the States. Even the school children in these original States know that solely because of the erection by individual States of trade barriers inimical to other States, and the inability to remove this evil by State action, the commerce clause, art. 1, see. 8, par. 3 (Code § 1-125), invested the general government with exclusive jurisdiction of interstate commerce to insure the free flow of commerce across State lines. But claiming authority under this clause the Congress, with the sanction of the Supreme Court, has projected the jurisdiction of the general government into every precinct of the States and assumed Federal jurisdiction over countless matters, including the right to work, which are remotely, if at all, related to interstate commerce. By this unilateral determination of its own powers the general government has at the same time and in the same manner deprived its creators, the States, of powers they thought and now believe they retained. But State courts, irrespective of contrary opinions held by their own judges who by law are required to have had experience as practicing attorneys before they can become judges of the law, must obey and accept the decisions of the Supreme Court of the United States pertaining to interstate commerce. We believe that a single person armed with right, the right to work, should in all courts of justice be able to defeat the selfish demands of multitudes though they be members of a labor union who seek to deprive him of that right. We would so rule in any case where we are allowed jurisdiction. When the Supreme Court has, as seen above, held the closed shop labor contract act valid we must likewise hold, not upon our own judgment, but solely because we are required to follow the Supreme Court ruling. We have made these observations to indicate our deep distress over the utter helplessness of a free American under this law, and our inability to judge his cause according to our understanding of the Constitution.
We go now to the single point raised which the Supreme Court has, we believe, clearly indicated is still open for decision. The petition of these non-union employees alleges that they have been notified in accordance with the law and the contract of employment that unless they become members of a union within 60 days their employment will be terminated. It is alleged that the union dues and other payments they will be required to make to the union will be used to "support ideological and political doctrines and candidates" which they are unwilling to support and in which they do not believe, and that this will violate the First, Fifth and Ninth Amendments of the Constitution. While Railway Emp. Dept. v. Hanson, 351 U.S. 225, supra, upheld the validity of a closed shop contract executed under § 2, Eleventh, that opinion clearly indicates that that court would not approve a requirement that one join the union if his contributions thereto were used as this petition alleges. It is there said (headnote 3c): "Judgment is reserved [italics ours] as to the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment." We must render judgment now upon this precise question. We do not believe one can constitutionally be compelled to contribute money to support ideas, politics and candidates which he opposes. We believe his right to immunity from such exactions is superior to any claim the union can make upon him.
Accordingly, the trial court erred in dismissing the amended petition which alleges that such uses will be made of dues and other money which as members of the union petitioners would be required to contribute to the union.
Judgment reversed. All the Justices concur.