Labor and the Constitution

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An important aspect of constitutional law has been the connection between individual rights and state or national power to regulate economic affairs. The constitutional treatment of employment is a paradigmatic example: what is the status of the relationship between employer and employee? What power does government have to change it? Of course, the answers to these questions depend on whether they are asked about the pre-or post-new deal era.

Before the mid-1930s, labor legislation was subjected to searching judicial review by a Supreme Court committed to a laissez-faire treatment of economic issues under the due process clauses and a limited conception of federal authority under the commerce clause. Since the New Deal, constitutional questions involving labor have been dominated by issues of expression and association, and the classification of labor activity as "economic" or "political."

The constitutional treatment of employment prior to the New Deal is best understood against the background of the common law, a law dominated by concepts of freedom of contract and employment at will. The employer had the right to discharge an employee at any time, and the employee had supposedly equivalent right to quit at any time.

At an early stage, concerted actions by workers to affect contractual relations sometimes were treated as criminal conspiracies. Thus, in the Philadelphia Cordwainers' Case (1806), a strike for higher wages by a group of shoemakers was held to be illegal. "A combination of workmen to raise their wages may be considered in a twofold view: one is to benefit themselves, the other is to injure those who do not join their society. The rule of law condemns both."

Later in the nineteenth century, the courts recognized the right of workers to join together. Commonwealth v.Hunt (1842) is the landmark. Chief Justice lemuel shaw, for the Supreme Judicial Court of Massachusetts, held that, for a combination of workers to constitute a criminal conspiracy, the state must prove that the workers had specific criminal objectives or used specific criminal methods. Thereafter, the common law treatment of labor focused on the limits of legitimate labor activity—whether combinations of workers had illegal purposes or used illegal methods.

But many courts at common law continued to take a restrictive view of legal labor activity. In Vegelahn v. Gunter (1869), for example, the Massachusetts Court found that strikers had used "intimidation" to interfere with the contractual relationship of the employer and strikebreakers. The "coercive" methods ranged from threats of personal injury to simple "persuasion and social pressure." Similarly, in Plant v. Woods (1900), the same court found that a threat by strikers that the employer could "expect trouble in his business" indicated that the strike was "only the preliminary skirmish" in violent industrial warfare; the workers had given "the signal, and in doing so must be held to avail themselves of the degree of fear and dread which the knowledge of such consequences will cause in the minds of those … against whom the strike is directed." Thus, in measuring "illegal" objectives and methods, common law courts often assumed that even a low level of labor activity constituted a "signal" that was inherently coercive.

This common law view of the permissible limits of labor activity was read into the Constitution by the Supreme Court in the late nineteenth century, as it interpreted substantive due process and elaborated a restrictive conception of the federal commerce power.

The Supreme Court constitutionalized the common law of employment by placing "freedom of contract" within the liberty protected by the fifth and fourteenth amendments, Many important cases concerned legislation designed to regulate the labor market as to hours, wages, and working conditions. This type of legislation—such as the wages and hours law in the leading case of lochner v. new york (1905)—was invalidated if, in the Court's view, it unreasonably interfered with the contractual freedom of employer and employee. Even when such legislation was upheld, as in muller v. oregon (1908), the Court made a detailed inquiry into the substantive reasonableness of the law.

Notions of freedom of contract were also applied to the activities of labor unions. In 1898, in the aftermath of a violent Pullman strike, Congress passed the erdman act, outlawing yellow dog contracts—contracts by which employees agreed not to join labor unions. In Adair v. United States (1908) the Supreme Court held that the act violated the due process clause of the Fifth Amendment: "the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.…" The Court struck down a similar state statute in coppage v. kansas (1915), and, in the 1917 case of hitchman coal v. mitchell, relied on the constitutional protection of yellow dog contracts in holding that federal courts could prevent unions from organizing at plants they knew to be covered by such contracts. And in truax v. corrigan (1921) the Court held that an Arizona statute forbidding injunctions against picketing was unconstitutional, since it protected an activity (picketing) that wrongfully interfered with employers' property rights, in violation of due process.

The Supreme Court narrowly interpreted the commerce power at the beginning of the New Deal, striking down measures such as "Hot Oil" Codes, the agricultural adjustment act, and the national industrial recovery act. This development was nothing new. Although there had been swings in doctrine, the Court had generally viewed congressional power under the commerce clause with suspicion in the area of employment relations. In hammer v. dagenhart (1918), for example, the Court struck down an act banning commerce in goods produced by child labor, and twenty years later, in carter v. carter coal co. (1936), it struck down an act regulating hours and wages in the coal industry.

The constitutional treatment of employment was changed radically by the watershed events of the New Deal. This period saw the Supreme Court reject its earlier laissez-faire interpretations of due process and its narrow vision of federal commerce power.

During the New Deal the Court abandoned its view of freedom of contract in employment relations. In west coast hotel v. parrish (1937) the Court sustained a state minimum wage law for women, holding that contractual freedom could be limited by a reasonable exercise of state police powers : "Even if the wisdom of the policy be regarded as debatable and its effect uncertain, still the legislature is entitled to its judgment."

National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) upheld the wagner national labor relations act (NLRA), which entitled workers to organize and required employers to bargain with their employees' chosen representatives. The Court found that the act did not invade freedom of contract: an employer was not compelled to make any agreement, but only to bargain with the employees' representatives in recognition of the "fundamental right" of workers to organize. The Court distinguished the "yellow dog" contract cases on the grounds that the NLRA did not interfere with an employer's right to discharge employees, but only prohibited coercion of employees in the guise of discharge. Despite this disclaimer, it is clear that the Court was departing radically from the rule of its prior cases: the employer was prohibited from discharging employees for union activities, and was required to bargain in good faith with its employees' unions. (See wagner act cases.) This new treatment of labor activity was reinforced the same year in Senn v. Tile Layers Union, in which the Court upheld a state law permitting peaceful picketing in conjunction with a labor dispute; although the Court distinguished cases such as Truax, the picketing involved was neither more peaceful nor less coercive than in prior cases.

The new approach to due process was exemplified by Justice felix frankfurter, writing for the Court in Osborn v. Ozlin (1940), in an opinion reminiscent of Justice oliver wendell holmes's classic dissent in Lochner: "It is immaterial that state action may run counter to the economic wisdom either of Adam Smith or of J. Maynard Keynes, or may be ultimately mischievous even from the point of view of avowed state policy. Our inquiry must be much narrower. It is whether [the state] has taken hold of a matter within her power, or has reached beyond her borders to regulate a subject which was none of her concern.…"

In the 1937 Jones & Laughlin case, the Court upheld the NLRA under the commerce clause. The act regulated industrial strife, which had a "close and substantial relation" to commerce, and which was therefore within Congress's "plenary" power to regulate commerce.

The Court also upheld the national police power in the field of employment relations. united states v. darby (1941) sustained the constitutionality of the fair labor standards act, which prohibited the interstate shipment of goods not meeting wage and hour requirements. Overruling the Hammer and Carter Coal cases, the Court confined its inquiry to the question whether the activity regulated had substantial effects on commerce."The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon which the Constitution places no restriction and over which the courts are given no control.…"

In sum, the New Deal saw the Supreme Court abandon its protection of the common law of employment in the name of the Constitution. The Court dropped its laissezfaire reading of due process and its restrictive interpretation of the commerce power. Employers are no longer apt to be successful if they claim that their constitutional rights to liberty or property are invaded by economic regulation, or by state protection of union activity. They have little chance should they claim that congressional regulation of employment exceeds the commerce power.

While the Court has never explicitly revived the due process protection for freedom of contrast or similar economic rights in the context of labor relations, it has continued to see a residuum of inherent employer economic freedom that has a quasi-constitutional dimension manifested in statutory interpretation. This residuum has emerged around the issues of the right of an employer to subcontract work formerly done by its employees, or to close down all or part of its operations. Two questions have presented themselves: whether the employer may be required to bargain with its employees' union about such a decision, and whether such a decision would constitute discriminatory discharge of employees if motivated by antiunion animus.

The NLRA requires an employer to bargain over wages, hours, and working conditions; as to subjects not affecting these areas, an employer may act unilaterally. In Fibreboard Paper Products v. NLRB (1964) the Supreme Court held that an employer is required to bargain over a decision to subcontract work, where such subcontracting would simply replace employees with nonemployees doing the same work, and where the employer's motive is to cut costs by reducing the work force. Justice potter stewart, in a concurring opinion, argued that an employer could not be compelled to bargain over managerial decisions "which lie at the core of entrepreneurial control," "those management decisions which are fundamental to the basic direction of a corporate enterprise.…"

The Court adopted Justice Stewart's position in First National Maintenance v. NLRB (1981), holding that the employer may unilaterally "shut down part of its business purely for economic reasons.…" The Court, as if this were a constitutional holding, read Congress's intent narrowly to avoid interference with entrepreneurial freedom: "Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise.… Management must be free from the restraints of the bargaining process to the extent essential for the running of a profitable business."

The NLRA also prohibits an employer from discharging employees in retaliation for union activities. In Textile Workers Union v. Darlington Manufacturing Co. (1965) the Court held that it was not a discriminatory discharge for an employer to close his entire operation and discharge his entire work force, even if motivated by antiunion animus, because the employer would derive no "future benefit" from such a decision. As for a partial shutdown, this would constitute a discriminatory discharge only if it served to discourage union activity in the remainder of the employer's enterprise. Again, the Court construed congressional intent narrowly, as if it were avoiding a constitutional issue: the proposition that a single businessman cannot choose to go out of business if he wants to would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act. These cases were decided on statutory grounds, but they have clear constitutional emanations. The decisions are couched in terms of an inherent, absolute economic liberty untouched by regulatory statutes that look in a contrary direction.

For four decades after the New Deal, no congressional enactment was declared to have exceeded the limits of the commerce power. Congress was allowed virtually unlimited discretion. The consensus was that, as the Supreme Court stated in wickard v. filburn (1942), "effective restraints on its exercise must proceed from political rather than judicial processes"—anything Congress passed was within the commerce power.

In 1976, in national league of cities v. usery, however, the Court invalidated the application of the Fair Labor Standards Act to public employees, holding that the tenth amendment prevents Congress from exercising its commerce power with respect to "functions essential to [the] separate and independent existence" of states and their subdivisions. Nevertheless, it does not seem likely in the labor field that Congress will lose much power to regulate by further restriction of the commerce power or the rebirth of economic due process. Indeed, early in 1985 in garcia v. san antonio metropolitan transit authority, the Court explicitly overruled National League of Cities.

With the proposition established during the New Deal that government support of organized labor does not threaten the constitutional freedom of employers, the fundamental issues shifted to problems of association and expression. These problems arise in the framework of a constitutional jurisprudence which generally distinguishes sharply, for purposes of legislative authority and judicial review, between issues of economic regulation (narrow judicial review) and of the regulation of political activity (substantial review).

In this jurisprudence a key question becomes the classification of activity as "economic" or "political." With a few early exceptions, labor activity generally has been viewed, by both Congress and the Supreme Court, as economic. The "proper" role of unions has been confined to "economic" issues surrounding the collective bargaining process, with the consequence that labor's rights of expression are narrower than those attaching to organizations classified as political, and that Congress has a broader power to regulate association and expression in the labor context.

Prior to the New Deal, the right to organize a union was constitutionally unprotected. Since the New Deal, however, it has become well established (for example, in naacp v. alabama, 1958) that the protection of the first amendment encompasses a right of association. But in the labor context it has not been necessary for the Supreme Court explicitly to find that the right to join a union is protected by freedom of assembly and association. The right is protected by statute, most prominently Section 7 of the National Labor Relations Act: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.…"

What the Supreme Court has held is that peaceful organizing activities are constitutionally protected. In hague v. congress of industrial organizations (1939) the Court held that freedom of speech and assembly attached to the dissemination of information regarding the NLRA, as well as peaceful assembly "for the discussion of the Act, and of the opportunities and advantages offered by it.…"And in Thomas v. Collins (1945) the Court held that freedom of speech and assembly were violated by a statute requiring union organizers to register prior to engaging in any organizing activities, including giving speeches to groups of workers. Although the Court characterized the union activity as economic, it rejected the proposition that "the First Amendment's safeguards are wholly inapplicable to business or economic activity." The case was therefore treated under the First Amendment's requirement that a restriction on speech or assembly be justified by clear public interest, threatened not doubtfully or remotely but by clear and present danger.

Most lower courts have interpreted the Hague and Thomas cases to establish a constitutional right to join a labor union. Thus, despite being clearly classified as economic activity, joining a union is protected by the First Amendment. However, the classification of labor activity as economic has consequences for the constitutional treatment of strikes and picketing.

the thirteenth amendment, prohibiting involuntary servitude, probably protects the right of an individual employee to withhold his or her services. The constitutional status of strikes, however, is unclear. One reason for this is that strikes are "concerted activity" protected by the NLRA; it is therefore usually possible to decide strike questions without facing the constitutional question. However, extensive regulation and limitation of the right to strike has been permitted ever since the New Deal; it thus seems that, at most, the right has a low level of constitutional protection.

Legal limitations on strikes have been based on both their objectives and their methods. Prior to the NLRA, strikes were treated under the "illegal objectives" test of the common law; work stoppages with purposes held by courts to be illegal were prohibited. And today, strikes with certain objectives are unprotected under Section 7 of the NLRA. Thus, for example, a strike loses its protection if its purpose is to compel the employer to commit an unfair labor practice or violate other laws.

Section 7 also withholds protection from strikes that use illegal methods. For example, in NLRB v. Fansteel Metallurgical Corp. (1939) the Supreme Court declared unprotected a sitdown strike involving trespass, destruction of property, and violation of state court injunctions. In Mastro Plastics v. NLRB (1956) the strike violated the NLRA's requirement of notice to the employer; in Local 174 v. Lucas Flour (1962) the strike violated a "no-strike" clause in the union's contract with the employer.

Prior to the New Deal, labor picketing was readily enjoined, either because the ends sought were disapproved or because it was assumed to be intrinsically coercive. The Supreme Court turned this law around in the leading case of thornhill v. alabama (1940). That case held unconstitutional a state statute banning all picketing near a business where the purpose of the picketing was to hinder the business. The Court adopted the "clear and present danger" test, treating labor activity as political activity: "The freedom of speech and of the press guaranteed by the constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.…In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution." The Court explicitly rejected the assumption that all labor picketing is inherently coercive; it also stated that some "coercion" is permitted by the First Amendment: "Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the Group in power at any moment may not impose penal sanctions on peaceful and truthful discussions of matters of public interest merely on showing that others might thereby be persuaded to take action inconsistent with their interests." The Court thus treated labor picketing as full-fledged political activity.

But the Court quickly retreated from this position. Since Thornhill, it has become well accepted that labor picketing may be regulated, without violating freedom of speech and assembly, if the picketing is found to be illegal in method or objective.

While violence is an easy case, the Court has—to some extent—returned implicitly to the old assumption that labor picketing is an inherently coercive "signal." This means that picketing can be extensively regulated. Justice william o. douglas, concurring in Bakery Drivers v. Wohl (1942), put it this way: "Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated."

The Court has also, as with other types of labor activity, maintained an "illegal objectives" limitation on picketing. The limitation has been most visible in two areas. The first is picketing with an objective to compel violation of state law or policy. This limitation was first articulated in Carpenters' & Joiners Union v. Ritter's Cafe (1942), where the Court held that the First Amendment did not protect picketing that urged an employer to act contrary to a state antitrust statute. By 1950, in Hughes v. Superior Court, the Court found a sufficient basis for prohibition in a purpose to violate a state "policy" announced by its courts.

The second visible category of picketing for an improper purpose is picketing for an object outlawed by the NLRA as "union unfair labor practices." For instance, the act explicitly prohibits some types of picketing designed to persuade an employer to recognize and bargain with the picketing union. But it is the secondary boycott that is the union unfair labor practice that is constitutionally most troublesome.

The act forbids a union to "threaten, coerce, or restrain" any person—usually a business—with the object of "forcing or requiring" that person to stop dealing with an employer with whom the union has a labor dispute.

The Supreme Court has recognized the potential conflict between such a prohibition and the First Amendment. In the Tree Fruits case, NLRB v. Fruit & Vegetable Packers (1964), the Court announced that it would construe the statute narrowly to avoid this constitutional difficulty: "Congress has consistently refused to prohibit peaceful picketing except where used as a means to achieve specific ends which experience has shown are undesirable." The Court therefore distinguished between picketing that attempted to persuade persons not to deal with the secondary employer (which was prohibited), and picketing attempting to persuade people not to buy products made by the primary employer (which was outside the act's prohibition). The Court thus permitted secondary picketing that was narrowly confined to the labor dispute with the primary employer. Subsequently, it limited even this narrow protection. In Safeco NLRB v. Retail Store Employees Union (1980), the Court held that the NLRA prohibits picketing confined to the primary employer's products, if those products constitute most of the secondary employer's business. In such a situation, boycotting the struck product is the same as boycotting the secondary employer.

Comparisons of the constitutional treatment of picketing with the treatment of other uses of the public forum show that labor picketing is treated under standards different from other, similar activities. Consider two cases decided in 1982 by the Supreme Court, both decided without dissent. The cases had one thing in common: each involved a boycott and picketing by a group. The first, Longshoremen's Association v. Allied International, Inc., was a suit for damages arising out of the refusal of the Longshoremen's Union to unload cargo shipped from the Soviet Union, in protest against the Russian invasion of Afghanistan. The boycott was entirely peaceful, it was totally effective, and it was unanimously held to be illegal. The boycott violated the labor statute, and that statute, as applied to this situation, did not infringe anyone's First Amendment rights.

Two months later the Court handed down its opinion in NAACP v. Claiborne Hardware. That case involved a suit for damages brought by white merchants in Claiborne County, Mississippi. Their businesses had been disrupted by a boycott, organized by the NAACP in protest against the failure of public officials in the county to desegregate public schools and facilities, hire black policemen, select blacks for jury duty, and end verbal abuse of blacks by law enforcement officers. The boycott, which was held by the Mississippi courts to violate state law, was executed in a less than peaceful, if considerably effective fashion. And it was—in most respects—found by the Supreme Court to be protected by the First Amendment.

Although there are a number of nice legal distinctions that might be noted between these cases and although it may be that the NAACP could not have survived if the Mississippi courts had been affirmed, one is forced to conclude that the two decisions are deeply inconsistent with one another. Of course, there is considerable inconsistency in our decisional law. The trouble here is that the inconsistency grows out of stereotypical thinking. Although labor unions ordinarily are organizations dedicated to economic activity and although economic activity is subject to substantial governmental regulation, sometimes unions engage in political action. The NAACP is often, but perhaps not always, a political action organization and political activity is rightly subject to substantial government protection.

The distinction between economic and political activity is difficult to maintain. At the margin it is difficult to designate conduct as economic and not political, or as political and not economic. But maintenance of the distinction is necessary unless we are prepared either to reduce substantially our political freedom or to reestablish substantive judicial review of economic regulation. (See commercial speech.)

Nor is the difficulty of sustaining the distinction in these cases really the problem. All legal distinctions, after all, give actors and decision makers trouble at the margin. The real problem is that even as it is wrong to stereotype individuals, so too is it wrong to stereotype the organizations through which individuals seek to achieve their economic and political goals. In deciding what is protected and what may be regulated, legislatures and courts should look at the organizations' specific conduct, not their general characteristics.

Employer speech—communications by employers with their employees during union organization campaigns—is given significantly lower protection than is the political speech often said to be at the core of the First Amendment. During the early post-New Deal period, the National Labor Relations Board viewed any antiunion speeches or literature from the employer as "interference, restraint or coercion," in violation of the NLRA. This position was rejected in NLRB v. Virginia Electric & Power Co. (1941). The Supreme Court held that the act could not, within the First Amendment, prohibit employer speech unless it could be demonstrated, from a total course of conduct, that the speech was coercive. This view was codified in 1947, when the NLRA was amended to provide that speech may be used as evidence of an unfair labor practice only if it contains a "threat of reprisal or force or promise of benefit." In NLRB v. Gissel Packing (1969), the Supreme Court made clear that employer speech is entitled to some First Amendment protection, and that the 1947 amendment to the NLRA simply "implements the First Amendment.…"

But the actual treatment of employer speech in union organization campaigns makes clear the low level of First Amendment protection that speech enjoys. The NLRB announced as long ago as 1948 that it would regulate union certification elections under a "laboratory conditions" standard: "it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees." This approach has entailed extensive restriction and regulation of employer speech, on several grounds. For example, implied threats of harm to employees for unionization have been held to be illegal except where the consequences are beyond the employer's control and are based on demonstrable probabilities. And under NLRB rulings racial appeals are prohibited unless the party making the appeal proves "that it was truthful and germane.…"

As with employee speech and association, this framework differs significantly from mainstream First Amendment doctrine. First, this framework suffers from a vagueness problem; the NLRB and the courts regulate, on an ad hoc basis, speech that in the political arena could be regulated, if at all, only under narrow and precise statutes. Second, with respect to employer threats, labor law turns the First Amendment on its head: an employer may not threaten to close its operation if a union wins an election despite the fact that it would be legal for the employer to close. Thus, the employer is prohibited from advocating or predicting legal activity.

Finally, employer speech that appeals to racial prejudice is severely restricted, even though the First Amendment protects such speech in the political arena. Indeed, Nazis may march down the streets in a predominantly Jewish community, but an employer may not state that a union advocates "race-mixing."

The rights of public employees, and the relationships of such employees to their employers, raise constitutional questions different from those in private employment. Initially one might think that the major reason for treating public employees differently is that the public employer is a governmental body, and thus that state action is involved. This distinction, however, is far less important than the differing economic and political relationships between the union and employer in the two sectors. These differences were summarized by the Supreme Court in abood v. detroit board of education (1977):

A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense "essential" and therefore are often price-inelastic.… The government officials making decisions as the public "employer" are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority … are involved, and in part because each official may respond to a distinctive political constituency.… Finally, decisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate.… Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table.… [P]ermitting public employees to unionize … gives the employees more influence in the decision making process than is possessed by employees similarly organized in the private sector.

These differences have justified differences in the constitutional treatment of the rights of public employees to join unions and to strike.

As with private employees, the Supreme Court has never explicitly held that public employees have a constitutional right to join a labor union. The Court has, however, found that public employees do not sacrifice their freedoms of association and expression by accepting positions with government. In keyishian v. board of regents (1967), for example, the Court specifically rejected the premise that "public employment … may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action." Based on this principle and on the implicit constitutional protection of private union membership under the right of association, the prevailing authority in the lower courts is that public employees have a constitutional right to join a labor union. This right, however, appears to be subject to greater restriction than is the similar right of private employees. Some state courts have held that certain employees, such as police officers or fire-fighters, may be prohibited from joining unions on the grounds that membership in a union would be inconsistent with the performance of their important governmental functions.

The authority is virtually unanimous that public employees do not have a constitutional right to strike. Nor does the statutory protection of strikes by private employees raise a serious question of equal protection. The test here is whether the distinction between public and private employment is rational; it plainly is.

The other side of the expression and association issue is whether employees—in the private or public sector—have the right not to associate. In other words, does the Constitution permit employees to be compelled to support a union against their wishes and beliefs? In this area the economic view of labor activity is prominent: compulsion has been permitted, but only for the economic purposes of collective bargaining.

The issue has arisen primarily with regard to agreements between unions and employers to require all employees to pay dues or "agency shop fees" to the union. Most labor statutes, including the NLRA, explicitly permit unions and employers to agree to these requirements. The Supreme Court has found such statutes to be consistent with the First Amendment. In Railway Employees Department v. Hanson (1956) and Machinists v. Street (1961) the Supreme Court upheld the relevant provision of the Railway Labor Act. In the Abood case, the Court upheld a similar state statute that applied to public employees. The Court reasoned that the "free rider" problem (employees who would benefit from, but not pay for, representation) was sufficient justification for Congress and states to permit these agreements.

The courts have, however, consistently emphasized the constitutional limits of this doctrine: dues collected under compulsion may be used only for collective bargaining, and not for political or ideological ends. In both Street and Abood, the Supreme Court held that, were statutes to permit political use of these funds, the statutes would violate the employees' freedom of association.

Over the years major labor issues have presented themselves as important constitutional problems. Lochner v. New York (1905), for example—a case involving labor legislation—is perhaps the best known substantive due process decision of the pre-New Deal period. And the downfall of that doctrine in the economic area can be observed in Court decisions upholding labor legislation; so too can the expansion of federal power under the commerce clause. Moreover, labor issues have influenced the development of the constitutional rights of speech and association.

In the future, the Supreme Court is apt to render fewer constitutional decisions involving labor. Regulation dominates the field and its constitutionality is seldom in doubt. But it can be predicted with considerable confidence that statutory interpretation of labor statutes will reflect any changes in constitutional law that may occur.

Harry H. Wellington


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