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Do Workers Have a Fundamental Right to Bargain Collectively?

by Professor Will Huhn on February 26, 2011

in Constitutional Law,Wilson Huhn

A previous post by Lynn Lenart Ohio Senate Bill 5 abolishing state collective bargaining rights implicitly raises a compelling question: does the Constitution protect the right of workers to bargain collectively?  Two decisions of the United States Supreme Court that were handed down within two weeks of each other in 1937 other bear upon this question.

At first thought it would seem that there is no constitutional right to bargain collectively.  Economic rights were seemingly read out of the Constitution on March 29, 1937 when the Supreme Court ruled in West Coast Hotel v. Parrish that the government has the power to establish minimum wages.  Speaking for the majority in that case, Chief Justice Charles Evans Hughes stated:

the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

However, a mere two weeks later on April 12, 1937, in the case of N.L.R.B. v. Jones & Laughlin Steel upholding the constitutionality of the National Labor Relations Act, the Court referred to the right of workers to organize and bargain collectively as a "fundamental right."  Again writing for the majority, Chief Justice Hughes first quotes Section 7 of the N.L.R.A. and then describes its meaning:

"Section 7. 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.

That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority.

In light of constitutional history and the specific facts of these cases the best reading of this language is that the right to bargain collectively is a statutory right or perhaps a common law right that is being recognized by statute, not a constitutional right.  Nevertheless, the Supreme Court invariably uses the term "fundamental right" to mean "constitutional right,"  and term "free exercise" also connotes a constitutional basis for the right to organize.  The foregoing passage from the Jones & Laughlin Steel case provides some authority for the proposition that the state may not unreasonably interfere with the right of workers to bargain collectively.

{ 8 comments }

larry d. February 26, 2011 at 9:02 am

Would public sector workers fall in the same category? Should members of the U.S. military be allowed to unionize?

Dan S. February 26, 2011 at 1:44 pm

RE:"Section 7. Employees shall have the right to self-organization…"

Perhaps this will boil down to determining the differences between 'employees' and 'contractors'. Larry d. asks about public sector workers and members of the military. The former group (in general) works on a continuing basis with no finite term of service. The other group works (in general) for specified lengths of time that do not guarantee extensions or obligations by either party. The most obvious gray area in this scenario is teachers/professors. Are they employees or contractors? Should they be treated as general production workers whose livelihoods depend on the overall performance of the company; or should they be treated as independent professional contractors whose livelihoods are dependent upon attainment of performance levels predetermined by individualized contracts?

P.O.L. February 26, 2011 at 3:04 pm

The National Labor Relations Act doesn’t apply to governmental employers, so whether public workers qualify as “employees” doesn’t matter. I don’t think a single member of the current Supreme Court would recognize a fundamental right to collectively bargain because the liberal members would not reopen the door to economic fundamental rights and the conservative members would not legitimize unenumerated fundamental rights.

The Court would likely recognize employees “right to organize and select their representatives for lawful purposes” as part of the so-called Freedom of Association. But, that right is not infringed by the proposed laws because state employees remain free to form unions or other organizations to advance their interests. What the state employees lack is a fundamental right to force another contracting party to bargain with them collectively, and what the states have been proposing is to effectively refuse to negotiate collectively. As one of the parties to the contract negotiations, a state can simply refuse to negotiate collectively, just as any other party, public or private, can set the terms upon which they will participate or not participate in contract negotiations.

Dan S. February 27, 2011 at 4:14 pm

RE:"What the state employees lack is a fundamental right to force another contracting party to bargain with them collectively….a state can simply refuse to negotiate collectively".

If this is the current law, why is there such a push for SB5? At the conclusion of existing contracts the public employers could just tell their employees "this is the way it is from now on….if you don't like it, find another job". Or am I missing something?

P.O.L. February 27, 2011 at 8:18 pm

At present, state employers are required by statute to collectively bargain with state employees. So, state employees have a statutory right, but not a "fundamental" (i.e. constitutional) right, to collective bargaining. Public employers can't just tell their employees "take it or leave it" right now because the existing statutes say otherwise. SB5 eliminates the statutory right for certain state employees.

Professor Will Huhn March 4, 2011 at 12:36 pm

P.O.L. – once again, I think you are correct in your analysis. But I have two questions for all of you: (1) How much money will the State of Ohio or the State of Wisconsin save by refusing to collectively bargain with public employees; (2) What is the likely political impact of these developments?

larry d. March 4, 2011 at 3:00 pm

Hopefully the political impact will be the destruction of corrupt union/democrat political machine, professor. I'd think anyone who believes in democracy would hope for as much.

There's no telling how much money that would save taxpayers in the long run, either.

Dan S. March 4, 2011 at 8:56 pm

1) Nobody can realistically predict that amount for either the short or long term. They are gambling on 'futures' the same way that investors hedge on commodities. If the economy improves and revenues increase the states will have more money for everything, including wages and benefits. If the economy continues to falter the states will not be bound to contracts that make guarantees in spite of non-increasing revenue. Non-economic issues will unfortunately be resolved through trial and error. Work rules will be stretched until the taxpayers refuse to accept declining levels of service. The next generation of public workers will accept that because they can't miss what they never had.

2) The political impact is a direct correlation to the above. The short term election results will hinge on emotion and fear of the unknown. The long term impact is probably not an issue to most politicians. The voters can only see today. Tomorrow will probably bring a new set of unrelated gripes and new promises from new politicians.

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