Are unions a constitutional anomaly?

• Author: Estlund, Cynthia
• Position: II. The Anomalous Quid Pro Quo at the Heart of Labor Law A. The Quid and the Quo in the NLRA's Treatment of Labor Unions 2. The Unusual Restrictions on Unions through Conclusion, with footnotes, p. 199-234

2. The Unusual Restrictions on Unions

   The sui generis powers of unions coexist with a set of extraordinary restrictions and obligations imposed on unions--extraordinary as compared to both a regime of collective liberty of contract and the ordinary freedom and autonomy of voluntary membership organizations. This was not a bargain in the normal sense; unions neither negotiated for nor accepted these restrictions and obligations in exchange for the special powers they had gained in 1935. Rather, Congress and the Supreme Court imposed those burdens on unions and justified them, sometimes explicitly, by reference to the extraordinary powers previously granted to them. (159) Part III evaluates whether those justifications hold up to close scrutiny; but there is a strong logic in judging the benefits and the burdens of the labor law framework in relation to each other.

   Some of the extraordinary duties and restrictions on unions directly constrain their power vis-a-vis employers. Others constrain unions in relation to workers and indirectly reduce unions' power vis-a-vis employers. The first of those, as a matter of federal law, came with the Supreme Court's derivation of a statutory duty of fair representation, first under the RLA in Steele and later imported into the NLRA. (160) The duty of fair representation serves as another preliminary illustration of why and how the quid and the quo of labor law relate to each other. To require a voluntary membership organization to represent nonmembers--at some cost in resources and bargaining priorities--is one of the law's extraordinary impositions on unions relative to other voluntary associations; standing alone, it might even raise a constitutional question. But it does not stand alone. It was explicitly justified by the extraordinary legal powers of unions--in particular, the exclusivity doctrine--and their impact on workers' livelihoods. (161) Conversely, the union's duty of fair representation helps justify the extraordinary power that the exclusivity doctrine confers on unions--power that might otherwise raise serious constitutional questions.

   The chief statutory restrictions on unions were embodied in the Taft-Hartley amendments of (1947) though one major set of statutory restrictions on unions' autonomy was yet to come). Again, Congress did not create those restrictions out of whole cloth in 1947; it codified restraints on union activity that were located in a patchwork of state laws and doctrines, some of which were more tolerant and some more restrictive than those adopted by Congress. Once amended in 1947, the NLRA itself embodied a quid pro quo in its treatment of unions. (162)

   The NLRA's deviation from the baseline constitutional entitlements of voluntary associations is perhaps most striking in its treatment of peaceful picketing. A key aim of the Taft-Hartley Act was to curb some of the tactics that unions had used to expand their memberships and leverage in organizing and bargaining contests, including unions' ability to appeal for support from members and sympathizers through peaceful picketing. (163) A peaceful picket line constructs not a physical barrier to entry but a symbolic barrier, the efficacy of which depends on the audience's response to its message. The message, in the case of labor picketing, consists of an appeal to workers, customers, or both to support the union in a labor dispute by not patronizing or working at the picketed site. (164)

   The NLRA as amended restricts two kinds of union picketing: "Recognitional picketing" seeks to induce an employer to recognize and bargain with a union. (165) "Secondary picketing" seeks to induce one employer (a "secondary") to support the union in its dispute with another employer (the "primary"), for example, by declining to supply the primary employer or to sell its products during a strike. (166) The secondary boycott ban in particular provoked furious union opposition. (167) For union adversaries, unions' ability to tap into a reservoir of broader support in particular labor disputes had made them too powerful and led to the spread of disruptive labor strife. (168) But for organized labor and its allies, the law condemned solidarity itself. (169) Some observers regard the ban on secondary activity as a major culprit in unions' subsequent decline. (170)

   The restrictions on picketing also raised a serious and much-mooted First Amendment question, for such restrictions bar unions from peacefully communicating the facts of a labor dispute and appealing to individuals to support the union by withholding their patronage or their labor, as they are normally free to do. (171) The Supreme Court had declared in Thornhill v. Alabama that peaceful communication of the facts of labor disputes, including by peaceful picketing, was within the protection of the First Amendment. (172) But the Court soon set about carving out exceptions to that protection, and later upheld the constitutionality of the Taft-Hartley restrictions on grounds that raised more questions than they answered. (173) Those questions grew sharper in the 1960s and 1970s as the Court expanded the rights of non-labor protesters, (174) and especially with its 1982 ruling that picketing by a civil rights group in support of a secondary boycott is protected by the First Amendment as long as it is peaceful. (175) Under the Court's normal First Amendment analysis, the speaker-specific and content-based nature of the NLRA's restrictions would seem to doom them. (176) For now it is enough to recognize that unions are subject to restrictions on expression that would be unconstitutional if applied to other voluntary associations. We will return in Part III to the First Amendment puzzle posed by the Taft-Hartley restrictions on picketing, and whether those restrictions can be justified, in part or in whole, based on the other side of the labor law quid pro quo.

   Another set of legal restrictions on unions, often neglected by labor law scholars, (177) is similarly extraordinary when judged against the baseline constitutional entitlements of voluntary associations. The Landrum-Griffin Act, or Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), imposed extensive reporting and disclosure obligations on union finances and administration, detailed regulation of union elections, (178) and included a union members' bill of rights to protect their freedom of expression and ensure due process in internal union discipline. (179) Although internal union affairs had previously been subject to a patchwork of state laws and doctrines, the LMRDA went further in pursuit of democracy, fairness, and freedom of expression within unions, and intruded more deeply into union autonomy, than state law had done. (180)

   Democracy, free speech, and due process are all good principles, and their imposition by the LMRDA surely helped to clean up some autocratic, arbitrary, and corrupt practices in some unions. (181) But the law does not normally impose those good principles on voluntary advocacy groups, for to do so intrudes on the organizational autonomy that is an aspect of the constitutional freedom of association. (182) The LMRDA's intrusion into internal union affairs was controversial at the time, and was excoriated by most unions. (183) Its strongest justification lies in unions' regulatory role and the extraordinary legal privileges and powers granted to unions in accordance with that role. (184)

   One more intrusion on union autonomy came from outside the labor laws. After decades of controversy over exclusionary union membership practices, the Civil Rights Act of 1964 finally prohibited union (and employer) discrimination because of race, as well as color, religion, sex, or national origin. (185) For decades after the Wagner Act, many civil rights and labor movement activists--even those devoted to racial equality--questioned the legitimacy and constitutionality of legal interference with union membership policies. (186) Today it may be hard to reconstruct their mindset. Given the broad reach of antidiscrimination law, it might not count as an extraordinary restriction on unions; it is surely less extraordinary--less of a departure from how other associations are regulated--than the LRMDA's regulations of internal union affairs. (187) Still, subjecting unions to antidiscrimination law--like employers but unlike many voluntary associations--is justified by, and helps to legitimize, their public regulatory role.

3. Union Autonomy, Freedom of Association, and State Action

   Under the federal labor laws, unions in some ways are "clothed with power not unlike that of a legislature," as the Court said in Steele. (188) At the same time, unions are subject to some constraints not unlike those that the Constitution imposes on the legislature and the rest of government--not just equal protection of those it represents, but also democracy, free speech, and due process in relation to its members. The government-like features of unions might seem to break down the constitutional barriers to imposing additional restrictions on unions and might seem to invite courts to impose additional constitutional constraints on unions vis-a-vis individuals. (189)

   Having dwelt thus far, however, on the exceptional deductions from and accretions to unions' basic entitlements as a voluntary association, it is crucial to return to a bedrock principle: unions are still voluntary, self-governed, independent associations of workers--collective voices and fighting forces for their members. This is not just a formal or theoretical point. The "freedom of association," a lodestar of international labor law, is defined as the right of workers to form independent trade unions. (190) That is a lodestar of American labor law as well. (191) Moreover, individuals' constitutional freedom of association is largely realized through the freedom to engage in peaceful expression within and through...