Dudek v. Pittsburgh City Fire Fighters, Local No. 1

Concurring Opinion by

Mr. Justice Roberts:

This case requires our Court to resolve a conflict between the individual’s right of free expression1 and *245right of individuals to associate effectively for the furtherance of a common purpose.2 The untrammeled exercise of each of these rights is of fundamental significance to the functioning of any complex society which aspires to be a free one.

For individuals to exercise their right to unite effectively for a common purpose the voluntary groups which they form must be able to discipline and expel members whose conduct obstructs the realization of the common purpose. The rights of discipline and expulsion are not, of course, absolute; instances arise in which exercise of such rights affront other legal principles of equal or greater importance. Yet the constitutional importance of a group’s right to discipline members in furtherance of its common purpose makes it incumbent on courts to minimize judicial interference with such rights. And the ability of a member to resign from such an association at will insures that such restrictions on his freedoms as are imposed by his membership are freely undertaken.

On the other hand, the principle of free speech is deeply rooted in our law and in our vision of a free society. That principle is as much violated by requiring a man to speak what he does not believe, as it is by prohibiting him from expressing what he does believe. The picketing duties sought to be imposed on appellees in this case certainly constitute speech within the meaning of constitutional guarantees.3 Finally, it should be noted that the language of our Constitution prohibits not only state interference with free expression but also coercion of speech from sources other than the state.4 “The free communication of thoughts *246and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Pa. Const., Art. I, §7.

The opinion of the Court in this case appears to rest on two approaches which I think we would do well to avoid. First the Court appears to say that the fines (backed by a threat of expulsion) imposed on appellees may not be enforced because of appellees’ vested property rights in various union funds. Quite correctly the Court relies on Spayd v. Ringing Rock Lodge, 270 Pa. 67, 113 Atl. 70 (1921) for this view. In light of the constitutional importance with which I view the right of a voluntary association to promote its legitimate common purpose, by determining its own membership, however, I believe it would be unnecessary and unwise in most cases to enjoin the imposition of discipline or expulsion merely to protect vested property rights. Such rights can be equally well protected by simply requiring the group to compensate the disciplined member for those losses incurred which courts feel are in violation of proprietal or contractual rights. Compensatory rather than injunctive relief will avoid in large part any interference with a group’s right to exclude from its ranks members who obstruct its legitimate common purposes. Moreover, such an approach is far more consistent with the practice of equity in declining to afford injunctive relief unless relief in damages would not remedy asserted injury.5

The second approach by the Court in which I find myself unable to join, is its conclusion that picketing of the ward meetings was unreasonable. Putting aside *247completely the question of whether any meaningful distinction can be drawn between union “political” and “economic” activities, see International Ass’n of Machinists v. Street, 367 U.S. 740, 797-819, 81 S. Ct. 1784, 1814-25 (1961) (Frankfurter, J., dissenting), it seems to me that picketing here was reasonably related to the union’s economic objectives. After all, the employers whose conduct the union were seeking to affect were the mayor and members of city council. The power of these individuals to affect appellees’ terms of employment ultimately flows from the electorate and more immediately from those bodies, such as ward committees, which organize the diffuse wishes of the electorate into an articulate message understandable by its elected representatives. To say, therefore, that it was unreasonably outside the union’s central purpose for appellees, after trying and failing to secure their demands at the offices of the mayor and city council, to carry their picketed message to the source of the mayor and city councilmen’s power in the wards strikes me as distinctly unsound. As well, one might find unreasonable the picketing of a stockholders meeting by a union whose picketing of the management offices of a private business had failed to induce the management to negotiate.

The basis for my concurrence in the majority’s result is my belief that a realistic appraisal of -modern social conditions shows that labor unions are associations to which the adjectives voluntary and private may only be applied with certain qualifications. That this is so where a union is designated as an exclusive bargaining agent by virtue of a statutorily authorized process seems clear. But even where a union is not so vested with power by government, it is not realistic to view it as voluntary and private in the same sense as other groups are. Mitchell v. International Ass’n of Machinists, 196 Cal. App. 2d 796, 799, 16 Cal. Rptr. 813, *248814 (2d Dist. Ct. App. 1961); Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1050 (1951); cf. Cox, Internal Affairs of Labor Unions Under tbe Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 830, 837 (1960).6 Thus I believe that just because a court should not enjoin the discipline or expulsion of a member of a voluntary and private association for failure to comply with a certain policy imposed by the membership does not mean an injunctive remedy would not necessarily be appropriate where the association involved is a labor union.

Courts have been confronted before with a union’s claim to discipline members whose exercise of the right of free speech violated union policies. Unfortunately most of the earlier cases have been resolved on the basis of contractual fictions, the “reasonableness” of the union’s policy in light of what the courts believe should be the union’s “economic” objective7 or on statutory grounds.8 Such resolutions are not overly helpful in the task, as I conceive it, of reconciling the individual union member’s right to free speech with the union’s right to determine its membership.

In Mitchell v. International Ass’n of Machinists, supra, however, the court did resort to such a balancing test.9 The issue in Mitchell was the union’s right to expel two members who had violated union rules by advocating, in their individual capacities, passage of a right to work law. The court upheld an injunction barring expulsion on the ground that the breach *249of union discipline was not so inimical to the broad range of objectives espoused by the union as to warrant the imposition of a restraint of free speech. While it may be contended that the breach of union discipline here was more inimical to the union’s purposes than in the Mitchell case, I believe that the Mitchell analysis sustains the result reached by the Court here. Indeed the appellees’ conduct, while arguably decreasing the effectiveness of the union’s campaign of bringing pressure to bear on the mayor and city council, was not the least inimical to the broader purpose of the union’s endeavor. By contrast, the ability of the union to require its members to express themselves in a way in which they do not believe is to my mind even more offensive to constitutional protection of freedom of speech than would be a prohibition on their ability to express what they believed. It is by taking this into consideration with the fact that a member’s relation to his union is not of the same voluntary nature as that of a member to other private associations that I come to the conclusion that we must affirm the decision of the court below.

U. S. Const. Amend. I; Pa. Const., Art. I, §7.

Pa. Const., Art. I, §7.

See Pennsylvania Labor Relations Bd. v. Chester & Delaware Counties Bartenders Union, 361 Pa. 246, 64 A. 2d 834 (1949).

See, e.g., Spayd v. Ringing Rock Lodge, 270 Pa. 67, 113 Atl. 70 (1921).

See the excellent discussion in Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049, 1054, n.21 (1951). See generally id. at 1050-74.

See also Allis-Chalmers Mfg. Co. v. NLRB, 358 F. 2d 656 (7th Cir. 1966), cert. granted, 87 S. Ct. 54 (1966).

See Summers, supra note 5, at 1050-74.

See, e.g., the opinion of the Court in International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784 (1961).

This is also the approach of Mr. Justice Frankfurter dissenting in International Ass’n of Machinists v. Street, supra note 8.