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Vol. III, No. 2
February, 1958

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"I Have Never Been a Member"

The yellow dog contract is a "written promise in which a workman as a condition of employment obligates himself not to join a labor union * * * or go on strike * * * not to do anything which will interfere with the employer's conduct of a non-union shop or open shop. * * * The employers, on their part, usually make no promise other than employment, and reserve the right of discharge at any time." In 1930, approximately 1,125,000 workers were covered by such contracts. They were outlawed by the Norris-LaGuardia Act. (Witte, 6 Wis. L. Rev. 21, 22, 27, 1930).

Yellow dog contracts involved promises by job applicants not to join or be active in organizations in the future. The most common "loyalty-security" promise exacted of job applicants today is past and present non-membership in any of the 300 organizations on the Attorney General's list. The most common "loyalty-security" cause for discharge is refusal to answer questions about past and present political activities and affiliations before Congressional Committees and employers (and unions). It has been suggested that an oath of non-membership in the past can be as strong a deterrent to future membership and activity as any old-fashioned yellow dog contract.

Such oaths now cover virtually all applicants for employment by federal, state, county and city governmental units, all inductees into the U. S. Armed Forces, all applicants for employment in "sensitive" industries, all applicants for passports, and many others. The number of Americans who have been given such oaths to fill out in the past ten years is probably well over 15,000,000.

For cases brought by organizations testing the power of the Attorney General to list them as "subversive" or to require them to submit lists of members and contributors to federal and state officials, see pending cases reported in this issue of the DOCKET at 221., 222., 223., and 211., 204., 227. (And see 344.1.)

Can Government, as Employer, Require Oath?

Seven cases have been brought by individuals who refused to answer questions asked by the government, as their employer, in order to get or hold their jobs, thus challenging directly the power of the government to require an oath of non-membership in organizations on the Attorney General's list. 3 cases were won: Savelle, 280.1, Leff, 251.1,* Bryan, 261.8.* Parker v. Lester, 268.1, won in part, is still pending in part. Pickus, 280.2,* was lost. Wilkins and Crowe, 261.1, .7, pending.

Many individuals are suing for reinstatement to government and non-government jobs after refusals to answer questions before Congressional and state investigating committees:

Teachers and college professors: Bailan case (from Philadelphia) will soon be heard by U. S. S. C., 342.9. In New York, Slochower* won his case, but did not keep his job, 342.1; Daniman, et al.* lost on both counts, 342.2. The Laba case in New Jersey resulted in partial victory, still pending in part, 342.3. There have been no victories for California teachers, though several cases are still pending testing Dilworth Act: see Mass, Schuyten, St. John Weiss, Hanchett, 342.4, .5, .6, .7, .10.

Other government employees, from transit workers to park wardens and librarians, have suits pending. March 4, U. S. S. C. will hear Lerner, 343.1, testing NY Security Risk Law. (Nagin and Hehir involve same issues, 261.2, .3.) California's Luckel Act being tested in Wolstenholme, 261.9. And see Gottlieb, 344.5, Callender, 343.4, Watterman, 344.8, Hancock and Globe, 343.2, .3.

Two applicants for admission, not to a particular job, but to a profession, are testing validity of "no past membership" requirements: Anstaplo, 265.23 and Konigsberg, 265.21 (whose case was decided by U. S. S. C. in 1957 but is still not over). And see Sheiner, 265.3, attempted disbarment for refusal to answer before Congressional Committee and Court.

Lafferty is seeking renewal of FCC license without signing such an oath, see 257.2.

Can Private Employer Fire for Use of Fifth?

U. S. S. C. has heard argument this Term in Wilson, 344.2, suit by actors discharged by movie companies for refusal to answer before Congressional committees. (And see Ind. Prod. Corp., 30.1, Wilson, 344.3.)

In four reported arbitration cases, unions have sought reinstatement of members fired by employers for refusal to answer before Congressional committees. 2 have been successful: UE, 280.6* ; Re RCA, 280.10. 2 are pending in Court against Westinghouse and GE, 344.6, .7.

One union member, expelled from Union for refusal to answer, then fired by Company at Union's insistence, is now suing Union: Allen, 280.8. And see Friedman, 269.3.

Only one case involved employee fired solely for refusal to answer such questions when asked by employer: Gottlieb. 280.8.

Syrek refused to sign loyalty questionnaire, fired, denied unemployment compensation; pending, 263.1. Others fired and denied compensation for refusal to answer before Congressional committees: Kilpatrick, Ostrofsky, Fino, Hallengren, Lee, 346.1-.5.

Other Loyalty-Security Dismissal Cases

This list does not include workers testing their dismissals from government employment on "loyalty-security" grounds other than refusal to take oath or answer questions before Congressional committees: see cases at 251, 261.4 and .5, and 280.3, .4, .5, 280.7. Nor does it include workers testing constitutionality of private employers' "loyalty-security" programs: see cases at 268. (And see non-classifiable cases at 269.1, .1a, .2, .3.)

Two other classes of cases involve loyalty-security issues and refusals to answer political questions affecting employment indirectly. Cases involving denials of passports (frequently needed for professional work), will be heard by U. S. S. C. this Term: see cases at 252. Unfavorable discharges from Armed Forces can seriously impair employability of veterans. U. S. S. C. heard argument on two such cases this Term: see cases at 253. (And see denials of veterans' disability payments, at 254.)

One criminal case brought for making false denial of non-membership in organizations on Attorney General's list resulted in acquittal, see McDaniel, 292.1.*