The court ruled that on the basis of the current Federal law with respect to union representation the language of the Wyoming act providing that: "No person is required to have any connection with or be recommended or approved by or be cleared through any labor organization as a condition of employment or continuation of employment"-was in conflict with Federal law.

The reasoning of that decision shows that under existing legal conditions the union has no alternative but to serve the nonmember with respect to general bargaining negotiations and also with respect to specific individual grievances. It is our position that this is a basic justification for the proposal to repeal section 14(b) which would validate agreements under which all employees who benefit from the union services could be required on the basis of a bona fide agreement between the union and the employer, to pay the same share of the cost for rendering this service.

The question of religious conscience has also been raised. I think that the discussion of the limited scope of section 8(a)(3) indicates that the Congress is not faced with the issue of compelling association of individuals in violation of religious conscience. The issue has been adjudicated by the courts. The IBEW was involved in the case of Otten v. Baltimore & Ohio Railroad Company. In this case a member of Plymouth Brethren No. 4 raised the question of the applicability of the first amendment of the U.S. Constitution to the union shop provisions of the Railway Labor Act in the Federal courts. The case went to the U.S. Court of Appeals for the Second Circuit and was decided adversely to Otten in decisions rendered by Judge Learned Hand and by Judge Medina. The case was litigated further and in 1956 the Supreme Court denied the petition for the writ of certiorari. The legal citations are 205 F. (2d) 58; 229 F. (2d) 919; 351 U.S. 983. Copies of the decisions of the U.S. Court of Appeals for the Second Circuit are attached to this statement.

We are sure that the Congress is well aware of the outstanding positions enjoyed by the late Learned Hand and Judge Medina in the Federal judiciary. Judge Learned Hand, in particular, was a leading spokesman for human rights and civil liberties. Nevertheless, in the unanimous opinion he rendered for the Court he stated:

"The first amendment * * * gives no one the right to insist that in the pursuit of their own interests others must conform their conduct to his own religious necessities."

No one questions the sincerity of the religious position which is taken by Plymouth Brethren No. 4. On the other hand, it should be noted that these decisions were rendered about 10 years ago, and apparently the religious issue did not seem to be sufficiently compelling to require legislative action at the time the decisions were rendered.

In conclusion, I would like to suggest that if the practical and actual effect of the repeal of 14 (b) is taken into account, it will be seen that many of the objections to the repeal of 14(b) are quite extravagant.

Electrical Workers (IBEW), Local 415 v. Hansen

[ 51,301] Local Union No. 415. International Brotherhood of Electrical Workers, et al., Plaintiffs v. Clifford P. Hansen, Individually and as Governor of State of Wyoming, et al., Defendants.

Wyoming Supreme Court. No. 3350. April 7, 1965.

On Transfer of Reserved Constitutional Questions from District Court of Laramie County.

Wyoming-Labor Relations Employee

Right-to-Work Law-Provision Barring Connection with Union-Constitutionality-Effect of Federal Law. The provision in the state right-to-work law which states that no person may be required to have any connection with a labor union as a condition of employment is void and unenforceable as contrary to the federal Constitution when applied to an employer and employees whose activities affect interstate commerce. Since the federal Constitution and all federal laws enacted pursuant to it represent the supreme law of the land, the statutory restriction on requiring any connection with a labor union runs counter to the provisions of the National Labor Relations Act which bind all employees to an exclusive representative when chosen by a majority of their group, and to federal labor policy which forbids employees to lay a claim against their employer for

job rights without exhausting the grievance machinery provided in the union contract. By setting apart from the processes of collective bargaining those employees who were not members of a union as to matters which are protected by the NLRA, the legislative enactment impinged on an area that is not open to the states. Wyo. S.L. 1963, Ch. 39, Section 5; NLRA, Sections 9(1) and 14(b). Back references.-¶ 3190, 4540; Wyo. ¶ 41,025.

Right-to-Work Law-Invalidity of Provision-Effect on Statute Separaability. The invalidity of a statutory provision barring any requirement that a person have any connection with a labor union as a condition of employment does not have the effect of rendering the entire statute invalid, even though the statute does not contain a separability clause. Since the invalid provision is distinct and not inseparably entangled with the provisions of the statute and it could reasonably be seen that the legislature would have passed the act without the invalid provision, the valid provisions must be left standing, as they are sufficiently complete to accomplish the purpose of the act to provide that employment shall not be conditioned upon membership or non-membership in, or upon the payment or non-payment of fees to, a labor union. Wyo. S.L. 1963, Ch. 39, Sections 2, 3, and 4.

Back reference.-Wyo. ¶ 41,015.

Deciding question reserved in, and remanding to, (Wyo. 1964) District Court, Laramie County, 50 LC ¶ 51,159.

John J. Rooney, Hickey, Rooney & Walton, Cheyenne, Wyoming, Louis Sherman and Thomas X. Dunn, Sherman, Dunn & Sickles, Washington, D.C., for Plaintiffs.

John L. Milcullen (John F. Raper, Attorney General, Dean W. Borthwick, Deputy Attorney General and McNutt, Dudley & Easterwood, Washington, D.C., on brief), for Defendants.

Before PARKER, C.J., HArnsberger, GRAY and MCINTYRE, JJ.

[Statement of Case]

GRAY, J. This matter is before us on reserved constitutional questions pursuant to the procedure contemplated by §§ 1-191-1-193, W.S. 1957, and Rule 52 (c), Wyoming Rules of Civil Procedure. It involves Ch. 39, S.L. of Wyoming, 1963, commonly known as the right-to-work law.

Plaintiffs' comenced an action below seeking a declaration that the law in question is unconstitutional on the sole ground that in certain respects the act is in conflict with and repugnant to the provisions of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. (1958), § 141, et sequitur. Plaintiffs also seek to enjoin defendants' from enforcing the act.

[Provisions of Statute Challenged]

The portions of Ch. 39, supra, with which we are primarily concerned are as follows:

"AN ACT to provide that employment shall not be conditional upon membership or non-membership in, nor upon the payment or non-payment of money to, a labor organization, * *

"Section 2. No person is required to become or remain a member of any labor organization as a condition of employment or continuation of employment. "Section 3. No person is required to abstain or refrain from membership in any labor organization as a condition of employment or continuation of employment.

"Section 4. No person is required to pay or refrain from paying any dues, fees, or other charges of any kind to any labor organization as a condition of employment or continuation of employment.

"Section 5. No person is required to have any connection with, or be recommended or approved by, or be cleared through, any labor organization as a condition of employment or continuation of employment."

Other sections provide civil and criminal penalties for violations.

1 Three labor organizations, hereinafter called "unions," and two employer representative associations, hereinafter called the "employers." joined as plaintiffs in the action.

2 The governor. the attorney general, and the prosecuting attorneys of the several counties of the state directly charged with enforcement are named as parties defendants.

[Stipulated Facts]

From the pleadings and the admissions made at the pre-trial conference certain facts that we regard as important and necessary to disposition of the controversy were agreed upon. For example, it is established that the unions are labor organizations as defined in § 1(a), Ch. 39, S. L. of Wyoming, 1963, and as defined in § 152(5), 29 U.S.C. (1958), Also, that the employers are subject to the provisions of Ch. 39, and are engaged in an industry affecting commerce as defined in § 142 (1), 29 U.S.C. (1958). For many years the unions were and are now the collective bargaining representatives of the employees of plaintiff employers and were so recognized by the employers in keeping with the provisions of § 158 (a) (5) and § 158 (d), 29 U.S.C. (1958). During this time the unions and the employers entered into many collective bargaining agreements establishing wages, hours of employment, and working conditions; and several such agreements were in effect at the time Ch. 39 was enacted. It is also shown that the unions and the employers were desirous of continuing the relationship, but being fearful that in so doing each might be subjected to the rather severe penalties imposed by Ch. 39 the within action was commenced for the purposes above stated.

By the foregoing we do not want to leave the impression that the action was entirely devoid of factual dispute. Among other things, the agreements provided that the unions would act as exclusive referral agencies for employment with the employers, an arrangement now comonly known as an exclusive "hiring hall." In the trial court defendants vigorously assailed the provisions relating to such matter, asserting, as they do here, that the provisions were discriminatory upon their face. Furthermore, the provisions were administered by the unions in such a fashion as to discriminate against nonunion applicants and, upon a ruling of the trial court that these contentions were immaterial, made offers of proof to sustain their position. With respect to this phase of the case much more could be set forth. However, inasmuch as the trial court has ruled that the matter of discrimination is not an issue in the case necessary for decision and we have concluded that the controlling constitutional questions can be answered without regard to the contentions, it would seem that further elaboration of the point would serve no useful purpose.

[Questions Presented]

Following pretrial the court entered an order for the purpose of reserving the questions submitted and, among other things, therein stated that no dispute exists as to any of the material facts in the case. As a conclusion of law the court further stated that if Ch. 39 is constitutional then it is necessary for the court to declare that the contracts mentioned are void. On the other hand, if Ch. 39 is declared to be unconstitutional then plaintiffs are entitled to restrain defendants from commencing or prosecuting any criminal actions against the plaintiffs for continuing to observe the terms of the said agreements. The court also concluded that the constitutional questions presented were important and difficult and on its own motion ordered the questions reserved for decision by this court. The questions so ordered were as follows:

"a. Is Chapter 39 of the Session Laws of Wyoming of 1963 unconstitutional in that it prevents plaintiff labor organizations, as representatives of the majority of employees of plaintiff employers, from serving as exclusive bargaining agent for all of said employees, and in that prevents plaintiffs from so contracting? "b. Is Section 5 of Chapter 39 of the Session Laws of Wyoming of 1963 unconstitutional in that it prevents plaintiffs from using a non-discriminatory exclusive referral system administered by plaintiff labor organizations whereby plaintiff labor organizations refer employees to plaintiff employers and in that it prevents plaintiffs from so contracting?

"c. If Section 5 of Chapter 39 of the Session Laws of Wyoming of 1963 is unconstitutional, is the entire Act unconstitutional?"

Before proceeding further, we must confess that we have been somewhat bothered with the wording of the questions. It is difficult to determine just what the questions encompass and whether the questions are so stated as to be susceptible of categorical answers. In fact, it is rather forcefully argued by defendants that we are not free to answer the questions because unauthorized assumptions and conclusions on the record made form the basis for the questions propounded. We are reminded of cases in which we declined to reach a decision because of apparent deficiencies in the record before us. White v. Board of

48-225-65-pt. 2--19

County Commissioners of Albany County, 77 Wyo. 246, 313 P. 2d 484; State ex rel. Keefe v. Jones, 62 Wyo. 61, 161 P. 2d 135. Certainly we are cognizant of the pronouncements made in those cases and the reasons underlying the decisions. And we are also inclined to agree with defendants' contentions that the questions are not stated with the clarity and preciseness desired. Nevertheless, we are not inclined to agree that what we have said previously sustains the defendants' premise that the record here is such that we are without jurisdiction. We purposefully set forth above the facts established as the result of the pretrial conference. Those facts were as binding upon the trial court as they are here and, as we view it, sufficiently disposed of the necessary and controlling factual questions. Rule 52(c), W.R.C.P.

When we add to those facts the conclusion of the trial court that those facts made necessary a decision on constitutional questions and a statement by the court of what it perceived those questions to be, there is present all of the essentials necessary to support the order reserving the questions. True, we may not be able to answer the questions as propounded, but that is not fatal. This court is free within the four corners of the record to restate the questions deemed to have been raised in order to achieve a proper and beneficial result. Board of Com'rs of Carbon County v. Rollins, 9 Wyo. 281, 62 P. 351, 352. Under the circumstances, we are persuaded that we should follow that course. The matter is of great public interest throughout the state. Decision thereon unfortunately has been delayed and we think we ought not, if it can be prevented, cause further delay by remanding the case without answers to constitutional questions that seem clearly to control disposition of the case. In thus proceeding we do no injustice to either party inasmuch as the essential underlying facts have been agreed upon.

ever,

[Restatement of Questions]

Consequently we shall proceed to restate the questions. Before doing so, howit is well to point out that the focal point of this controversy centers around § 5 of Ch. 39. It is not argued by plaintiffs that the legislature was without power to determine local policy with respect to "the execution or application of agreements requiring membership in a labor organization as a condition of employment." Section 14(b), Labor Management Relations Act (1947), § 164(b), 29 U.S.C. (1958). That is understandable in view of the several holdings of state courts and the United States Supreme Court recognizing the right. Retail Clerks Intl. Assoc. Local 1625, AFL-CIO v. Schermerhorn, [48 LC ¶ 50,957] 375 U.S. 96, 84 S. Ct. 219, 11 L. Ed. 2d 179; Annotation 92 A.L.R. 2d 598. The real contention of plaintiffs is that § 5 set forth above goes beyond those limits and is in direct contravention of the provisions of § 9(a) of the Labor Management Relations Act (1947), § 159(a). 29 U.S.C. (1958). The contention poses difficult and important questions for the reason that so far as we can find no court has been confronted with a case containing provisions similar to § 5 set forth above. Under those circumstances it appears proper specifically to limit the questions to the basic questions presented, and we perceive those to be as follows:

1. Is 5 of Ch. 39, S.L. of Wyoming, 1963, in contraventions of Art. VI of the Constitution of the United States?

2. If question number one is answered in the affirmative, is Ch. 39, S.L. of Wyoming, 1963, unconstitutional in its entirety?

[Reference to Federal Constitution]

Directing our attention to question number one it is first necessary to refer to certain constitutional provisions and valid laws of the United States.

Section 8 of Art. I, U.S. Const., provides at clause 3, "The Congress shall have Power *** To regulate Commerce *** among the several States * Art. VI, at clause 2, provides, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof *** shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It follows that insofar as activities of an employer and employees affect interstate commerce they are subject to the federal law. Defendants' counsel concede this, citing Mill v. State of Florida ex rel. Watson, [9 LC ¶ 51,208] 325 U.S. 538, 65 S. Ct. 1373, 89 L. Ed. 1782, rehearing denied 326 U.S. 804, 66 S. Ct. 11, 90 L. Ed. 489; Buckman v. United Mine Workers of America, 80 Wyo., 216 [37 LC ¶ 65,625] 342 P.2d 236.

[Federal Statute]

Section 9(a) of the Labor Management Relations Act (1947), § 159(a), 29 U.S.C. (1958), states:

"Representatives dsignated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment *

Defendants' counsel also agree and admit that under the foregoing provisions of § 9(a) plaintiff employers are obligated to recognize a properly designated majority union as the bargaining representative for all employees union members as well as nonunion, in the bargaining unit. McQuay-Norris Mfg. Co. v. National Labor Relations Board, 7 Cir. [3 LC ¶ 60,205] 116 F. 2d 748, 751, modified 7 Cir., [4 LC ¶ 60,507] 119 F. 2d 1009, certiorari denied 313 U.S. 565, 61 S. Ct. 843, 85 L. Ed. 1524; Bethlehem Shipbuilding Corporation Limited v. National Labor Relations Board, 1 Cir., [3 LC. ¶ 60,091] 114 F. 2d 930, 941, ceritiorari dismissed 312 U.S. 710, 61 S. Ct. 448, 85 L. Ed. 1141.

[Analysis of State Law]

Thus, we need only to inquire whether or not § 5 is in conflict with the above provisions of § 9(a). In order more precisely to point up our problem we turn to the language of § 5 which, among other things, says that no person is required to have "any connection with" a labor organization in his employment. Such a phrase is usually given a broad interpretation. Kokusai Kisen Kabushiki Kaisha v. Columbia Stevedoring Co., D.C.N.Y., 23 F. Supp. 403, 405, 406, affirmed 2 Cir., 100 F. 2d 1016. It can mean a relationship that is either proximate or remote. S. P. Dunham & Co. v. 26 East State Street Realty Co., 134 N.J. Eq. 237 35 A. 2d 40, 45. As used here we observe that it sets aside, as a class, persons who are not members of a union, and undertakes complete divorcement of members of that class from any relationship with a union. We say this because the phrase clearly goes beyond the conditions imposed by §§ 2 and 4 of Ch. 39. Consequently we have no difficulty in concluding that the prase was used, and intended to be used, in its broadest sense when applied to a "condition of employment or a continuation of employment." With that premise we relate it to the matter of collective bargaining.

[Collective Bargaining—Union Connection with Employees]

When that is done we fail to see now a labor organization could possibly serve as bargaining agent or representative for all employees without a nonunion employee having a connection with such organization. In the first place the definition of agency itself includes a fiduciary relationship between a principal and his agent. The principal is the person whom the agent represents and from whom he derives his authority; the agent is one who acts for another by authority from him. See 2 C.J.S. Agency § 1, pp. 1023-1025, and 3 Am. Jur. 2d, Agency § 1, p. 419. Application of the principle to the field of labor management is succinctly described in Donnelly v. United Fruit Co. [47 LC ¶ 50,851] 40 N.J. 61, 190 A. 2d 825, 832-833, as follows:

"A union selected as a bargaining agent by a majority of employees (in an appropriate unit) of an employer, in an industry affecting commerce, becomes the exclusive representative of all the employees in the unit for the purpose of collective bargaining with respect to wages, hours and conditions of employment. Labor Management Relations Act, § 159 (a). The exclusiveness of the agency exists whether the relations between the employer and union are conducted on an open, agency or union shop basis. The powerful role carries with it the responsibility of exercising the utmost good faith toward all employees represented, union and non-union, in negotiating a collective bargaining agreement with the employer, and in administering the agreement during its lifetime. The unionmanagement compact becomes the code of the plant, and in policing it the union has the duty of treating all employees fairly, particularly with respect to employment of procedures established therein to adjust and settle their individual grievances."

Thus, it is apparent, in the light of the relationship itself, that a labor union could not act as bargaining agent for all employees without going to all employees (union and nonunion) for instructions and advise. Who else, except all employees, can tell the union what wages to demand; what working hours and gen