become or remain a member. This
proviso the Court held not to be a regulation of commerce, there being
no connection between an employee's membership in a labor organization
and the carrying on of interstate commerce. Twenty-two years later,
however, in 1930, the Court conceded that the connection between
interstate commerce and union membership was a real and substantial one,
and on that ground sustained the power of Congress in the Railway Labor
Act of 1926[409] to prevent employers from interfering with the right of
employees to select freely their own collective bargaining
representatives.[410]

The Railroad Retirement Act

Still pursuing the idea of protecting commerce and the labor engaged in
it concurrently, Congress, by the Railroad Retirement Act of June 27,
1934,[411] ordered the compulsory retirement of superannuated employees
of interstate carriers, and provided that they be paid pensions out of a
fund comprising compulsory contributions from the carriers and their
present and future employees. In Railroad Retirement Board _v._ Alton
R.R. Company,[412] however, a closely divided Court held this
legislation to be in excess of Congress's power to regulate commerce and
contrary to the due process clause of Amendment V. Said Justice Roberts
for the majority: "We feel bound to hold that a pension plan thus
imposed is in no proper sense a regulation of the activity of interstate
transportation. It is an attempt for social ends to impose by sheer fiat
noncontractual incidents upon the relation of employer and employee, not
as a rule or regulation of commerce and transportation between the
States, but as a means of assuring a particular class of employees
against old age dependency. This is neither a necessary nor an
appropriate rule or regulation affecting the due fulfillment of the
railroads' duty to serve the public in interstate transportation."[413]
Chief Justice Hughes, speaking for the dissenters, contended, on the
contrary, that "the morale of the employees [had] an important bearing
upon the efficiency of the transportation service." He added: "The
fundamental consideration which supports this type of legislation is
that industry should take care of its human wastage, whether that is due
to accident or age. That view cannot be dismissed as arbitrary or
capricious. It is a reasoned conviction based upon abundant experience.
The expression of that conviction in law is regulation. When expressed
in the go