American Federation of Labor v. American Sash & Door Company/Concurrence Rutledge
United States Supreme Court
AMERICAN FEDERATION OF LABOR, ET AL. v. AMERICAN SASH & DOOR COMPANY, ET AL.
No. 27. Argued: November 8-10, 1948. --- Decided: January 3, 1949.
Mr. Justice RUTLEDGE, concurring.
I concur in the Court's judgment in No. 34, Whitaker v. North Carolina. The appellants were convicted under a warrant which charged only, in effect, that they had violated the statute 'by executing a written agreement or contract' for a closed or union shop.  There was neither charge nor evidence that the employer, after the statute became effective, had refused employment to any person because he was not a member of a union. The charge, therefore, and the conviction were limited to the making of the contract. No other provision of the statute is now involved, as the state's attorney general conceded, indeed as he strongly urged, in the argument here. As against the constitutional objections raised to this application of the statute, I agree that the legislature has power to proscribe the making of such contracts, and accordingly join in the judgment affirming the convictions.
In No. 27, American Federation of Labor v. American Sash & Door Company, and in No. 47, Lincoln Federal Labor Union v. Northwestern Iron & Metal Company, as against the constitutional questions now raised, I am also in agreement with the Court's decision, but subject to the following reservation. Because no strike has been involved in any of the states of fact, no question has been presented in any of these cases immediately involving the right to strike or concerning the effect of the Thirteenth Amendment. Yet the issues so closely approach touching that right as it exists or may exist under that Amendment that the possible effect of the decisions upon it hardly can be ignored.  Strikes have been called throughout union history in defense of the right of union members not to work with nonunion men. If today's decision should be construed to permit a state to foreclose that right by making illegal the concerted refusal of union members to work with nonunion workers, and more especially if the decision should be taken as going so far as to permit a state to enjoin such a strike,  I should want a complete and thorough reargument of these cases before deciding so momentous a question.
But the right to prohibit contracts for union security is one thing. The right to force union members to work with nonunion workers is entirely another. Because of this difference, I expressly reserve judgment upon the latter question until it is squarely and inescapably presented. Although this reservation is not made expressly by the Court, I do not understand its opinion to foreclose this question.
^1 The warrant, insofar as is material, charged that the appellants had entered into '* * * an illegal combination or conspiracy in restraint of the right to work and of trade or commerce in the State of North Carolina and against the public policy of the State of North Carolina, by executing a written agreement or contract by and between said employer and said Labor Unions and Organizations or combinations, whereby persons not members of said unions or organizations are denied the right to work for said employer, or whereby membership is made a condition of employment or continuation of said employment by said employer and whereby said named unions acquired an employment monopoly in any and all enterprises which may be undertaken by said employer are required to become or remain a member of a labor union or labor organization as a condition of employment or continuation of employment by said employer whereby said unions acquire an employment monopoly in any and all enterprises entered into by said employer in violation of House Bill #229, Session 1947, General Assembly of North Carolina, Chapter 328, 1947 Session Laws of North Carolina, and particularly sections 2-3 & 5 thereof, and Chapter 75 of the General Statutes of N.C. * * *.'
^2 See note 3.
^3 The syllogism might well be: The decisions in the present cases permit a state to make 'illegal' any discrimination against nonunion workers on account of that status in relation to securing or retaining employment; strikes for 'illegal objects' are 'unlawful'; 'unlawful' strikes may be enjoined; a strike by union members against working with nonunion employees is a strike for an 'illegal object'; therefore such a strike may be enjoined.