Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes v. Allen/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

373 U.S. 113

Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes  v.  Allen

 Argued: March 25, 1963. --- Decided: May 13, 1963

Mr. Justice HARLAN, concurring in part and dissenting in part.

I agree with the reversal of the interim and qualified permanent relief that was granted by the state courts respecting the obligation to pay union dues. But I disagree with what in effect amounts to an affirmance of the state judgment in other respects. I believe that dismissal of this action in its entirety is called for.

International Assn. of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, decided only two years ago, stated in unmistakable terms that a plaintiff claiming relief in an action of this kind must show two things: (1) that he had made known to the union the particular political candidates or causes for whose support he did not wish his union dues used; (2) that membership dues had been used for such purposes.

The statement of these principles was reinforced on the very same day in Lathrop v. Donohue, 367 U.S. 820, at 845-846, 81 S.Ct. 1826, 1839, 6 L.Ed.2d 1191, the Wisconsin integrated bar case, where a plurality of the Court said:

'Even if the demurrer is taken as admitting all the factual allegations of the complaint, even if these allegations are construed most expansively, and even if, like the Wisconsin Supreme Court, we take judicial notice of the political activities of the State Bar, still we think that the issue of impingement upon rights of free speech through the use of exacted dues is no more concretely presented for adjudication than it was in (Railway Employes' Dept. v.) Hanson (351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112). Compare International Association of Machinists v. Street, (ante), 367 U.S., (p.) 740, at pages 747-749, 81 S.Ct., (p.) 1784, at pages 1788 1790, 6 L.Ed.2d 1141. Nowhere are we clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities.' See also what follows 367 U.S., at pp. 846-848, 81 S.Ct., at p. 1839, 6 L.Ed.2d 1191.

These requirements have not been met in this case. At best all that has been alleged or proved is that the union will expend a part of each respondent's still-unpaid membership dues for so-called political or other purposes not connected with collective bargaining, and that each respondent would object to the use of any part of his dues for matters other than those relating to collective bargaining. None of the respondents who testified could specify any particular expenditure, or even class of expenditure, to which he objected.

I do not understand how, consistently with Street, the Court can now hold that 'it is enough that * * * (a union member) manifests his opposition to any political expenditures by the union' (ante, p. 118), or how it can say that in so holding 'we are not inconsistent with' what the plurality was at such pains to point out in Lathrop (albeit in a constitutional context), id., note 5. The truth of the matter is that the Court has departed from the strict substantive limitations of Street and has given them (and, as I see it, also that case's remedial limitations, compare 367 U.S., at 772-775, 778-779, 779-780, 796-797, 81 S.Ct., at 1801-1803, 1805, 1813-1814, 6 L.Ed.2d 1141, with ante, p. 122-123 and Appendix) an expansive thrust which can hardly fail to increase the volume of this sort of litigation in the future.

Believing that our decisions should have more lasting power than has been accorded Street, I must respectfully dissent. I would reverse the judgment and remand the case for dismissal of the complaint.

Notes