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...