LABOR AND THE CONSTITUTION (Update)

Labor relations present three principal kinds of constitutional issues. First, to what extent does the first amendment protect employees' efforts to organize labor unions and solicit support, and to what extent does it limit the power of unions over their members? Second, how does the doctrine of federal preemption restrict the states in regulating union and management activities? Third, what due process guarantees may employers and employees invoke in response to federal and state laws establishing new substantive rules and remedies in employment?

Although the Supreme Court has never squarely determined whether there is a constitutional right to form a labor organization, the existence of such a right has generally been assumed since the decision of the Seventh Circuit in McLaughlin v. Tilendis (1968), dealing with public school teachers. Many Supreme Court cases have considered the validity of restrictions on unions' collective action, including attempts to enlist the aid of fellow employees or the public. In Dorchy v. Kansas (1926) the Court declared that there is no "absolute right to strike" under the Constitution and held that a state could prohibit a strike or group work stoppage for an illegal purpose, such as extortion. The Court also sustained, in Steelworkers v. United States (1959), the constitutionality of the provisions in the taft-hartley labor relations act authorizing an eighty-day injunction against a strike that "imperil[s] the national health or safety." Finally, summary affirmance in Postal Clerks v. Blount (1971) of a three-judge federal district court decision seems to confirm that government employees have no constitutional right to strike. But the Court has never ruled whether there are any circumstances that would give rise to such a right on the part of private employees.

Separate articles in the main volumes of this encyclopedia cover the constitutionality of restraints on boycotts and picketing by labor unions. In DeBartolo Corp. v. Florida Gulf Coast Building Trades (1988), the Supreme Court engaged in some rather strained statutory interpretation to avoid "serious constitutional concerns" and held that a union's handbilling, as distinguished from picketing, did not "coerce" a shopping mall's tenants within the meaning of the National Labor Relations Act. (The handbills asked customers not to deal with any of the neutral or "secondary" retailers in the mall.) The Court pinpointed the critical distinction between handbilling and picketing: "The loss of customers because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of picketers, is the result of mere persuasion." This emphasis on the means of communication does not fully explain why the same message, if delivered by a solitary picket wearing a large placard, should necessarily be intimidating and not persuasive.

Federal laws governing private employment and many state laws governing public employment authorize "union security" agreements. Such an agreement requires financial support of the union that acts as collective bargaining agent by all employees benefiting from its representation. The Supreme Court sustained these provisions against First Amendment claims of freedom of association in Railway Employees' Department v. Hanson (1956) and abood v. detroit board of education (1977). But to counter constitutional free speech issues, the Court also held in Machinists v. Street (1961) and Abood that a union could use compulsory financial contributions only for collective bargaining activities and not for political or ideological purposes opposed by an employee. The Court recognized there would be "difficult problems in drawing lines" in this area.

the wagner act enacted in 1935 and substantially revised in 1947 and 1959, forbids both employers and unions in interstate commerce from coercing employees in their right to join, or not join, a labor organization. In addition, the 1947 Taft-Hartley Act amendments made the contracts of such employers and unions enforceable in the courts under federal law. Previously, state law generally applied to all these matters. In San Diego Building Trades v. Garmon (1959), the Supreme Court held that if activity in the labor field is "arguably subject" to federal protection or prohibition, the states must ordinarily yield jurisdiction. The Court added in Machinists Lodge 76 v. Wisconsin Employment Relations Commission (1976) that the states also cannot regulate conduct that Congress intended to leave unregulated.

There are several exceptions to this doctrine of federal preemption. Compelling local interests in the maintenance of domestic peace or minimum labor standards enable the states to deal with violence, malicious libel, or trespass to private property, and to prescribe requirements for job safety and insured health care plans. Even if conduct is arguably protected by federal law such as union access to employer premises during an organizing campaign—thus implicating federal supremacy most acutely—preemption does not follow invariably. In Sears, Roebuck and Co. v. San Diego Carpenters (1978), the Court concluded that a state court could determine whether a union's trespassory picketing was actually protected by federal law when the union had declined to seek a federal ruling on the issue, the employer had no way of obtaining one, and the trespass was "far more likely to be unprotected than protected." Finally, although federal substantive law is now applicable to union-employer contracts, the Supreme Court held in Dowd Box Co. v. Courtney (1962) that state courts retain concurrent jurisdiction over suits for their violation.

Federal and state labor legislation enacted during the twentieth century has often abrogated common law claims, created new statutory rights and obligations, and substituted administrative proceedings for trial by jury. These laws have posed due process and other constitutional questions. After some initial opposition, the courts have tended to sustain these innovations. The Supreme Court upheld the constitutionality of a state workers ' compensation law in new york central railroad company v. white (1917), of the federal unemployment tax in steward machine company v. davis (1937), and of the National Labor Relations Act in NLRB v. Jones and Laughlin Steel Corp. (1937). But to avoid constitutional problems, the Court declared in Steele v. Louisville & Nashville Railroad Co. (1944) that the federal labor laws, in granting majority unions the power of exclusive representation, also implied a duty to represent all the members of a bargaining unit fairly and nondiscriminatorily. A new round of battles over due process may have opened when the Montana Supreme Court ruled 4–3 in Meech v. Hillhaven West, Inc. (1989) that the state's pioneering "wrongful discharge" statute, which displaced common law claims for dismissal, did not violate the Montana Constitution's guarantee of "full legal redress."

Theodore J. St. antoine
(1992)

(see also: Freedom of Assembly and Association; Freedom of Speech.)

Bibliography

Gorman, Robert A. 1976 Basic Text on Labor Law: Unionization and Collective Bargaining. Pages 209–215, 257–262, 655–661, 695–728. St. Paul, Minn.: West Publishing Co.

Wellington, Harry H. 1968 Labor and the Legal Process. Pages 145–184, 223–266. New Haven, Conn.: Yale University Press.