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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.