The Right to Unionize

The Constitution of the United States guarantees its citizens the right to freely associate, and to peacefully assemble for political purposes. However, the modern labor union only dates to the 1930s, with the passage of the National Labor Relations Act (NLRA). Until that point, labor unions were made illegal, and were often broken up by police, or sometimes even by the State or National Guard. Moreover, there are still many people who are not allowed to legally unionize, or who have their right to organize significantly restricted. How can this be true?

As stated above, labor unions are governed federally by the National Labor Relations Act of 1935 (as amended by the Taft-Hartley Act of 1947). The NLRA specifically states what sorts of practices unions are permitted to engage in, how labor unions are organized, what employers can do with their employees, and what happens when there’s a labor dispute between unionized workers and their employer. What might surprise most people is that the NLRA makes striking (one of the most common union tactics) illegal, so long as there is a valid union contract in place. Before a union can legally strike, they must show their employer violated the union contract.

Additionally, the NLRA doesn’t cover every employee. Government employees, ironically enough, aren’t protected by the NLRA, nor are airline or railroad employees. Where there are public unions, or unions for railroad and airline employees, they are governed by the relevant state’s law (such as with the New York State Employment Relations Act, which permits the creation of public unions). Independent contractors, domestic workers, and farm workers are also not covered by the NLRA, and thus do not have a right to unionize under federal law.

The reason unions are not universally legal, even though every American has the constitutional right to freely associate and assemble, is that unions aren’t considered a simple assembly of workers. Instead, a labor union is something akin to a corporation, an entity that is legally separate from the people who constitute its membership. Natural persons (i.e. real, living people) have constitutional rights; labor unions only have those rights conferred to them by statute. Public employees, domestic workers, farm workers, and independent contractors are all free to associate and assemble to fight for their economic betterment, they’re just not allowed to form unions and collectively bargain with their employers.

If you are looking into unionizing, or you already have a union and are in a dispute with your employer, give the Law Offices of Steve Sack a call. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer who has considerable experience in handling the many aspects of labor and employment law. To schedule a consultation with New York City employment lawyer Steve Mitchell Sack, call (917) 371-8000.

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