Collective Bargaining and Civil Liberties

Document Date: March 25, 2011

The ACLU has championed the right of workers to organize unions since its inception more than 90 years ago, beginning with efforts to counter the vehement anti-union crusades of the 1920s.

The ACLU continues to support the rights of employees, both public and private, to organize unions and bargain collectively. Collective bargaining statutes provide critical and necessary protection for workers who exercise basic civil rights, in particular, the rights of speech, association, and petition. Efforts to strip workers of these protections have no place in our democracy.

What is the right to collective bargaining?
The right to collective bargaining is the right of individual employees in a workplace to come together and to choose a representative, based on a majority vote, who will then negotiate with their employer over terms and conditions of employment. Because the individual worker typically lacks meaningful bargaining power to negotiate favorable employment terms, designating a representative to negotiate on behalf of a large group of workers can level the playing field between labor and management and give workers a meaningful seat at the bargaining table.

Why are the rights to form a union and engage in collective bargaining civil liberties?
Collective action is often necessary to protect individual rights. Unions by their nature facilitate and enhance the exercise of core civil liberties, such as the right of association, speech, and petition.

  • Collective rights are necessary to protect individual rights. Collective bargaining statutes take into account the economic reality that individual workers typically lack the economic bargaining power to stand up meaningfully for their individual rights. Collective bargaining statutes recognize the principle that collective action is often necessary to protect individual rights.

    The ACLU has consistently stood up for this principle. For example, we recently filed a brief in the Supreme Court in Wal-Mart Stores, Inc. v. Dukes, a case involving the use of class actions to challenge gender discrimination. We argued that the ability of workers to challenge gender discrimination in the workplace through class action litigation is critical to realizing the promise of our nation’s civil rights laws because retaliation and economic barriers to litigation often render individual enforcement efforts impracticable. In both litigation and negotiation, collective action helps to promote robust enforcement of individual rights.

  • Unions facilitate and enhance the ability of their members to exercise core civil liberties, such as the First Amendment rights of association, speech, and petition.

    Association: The First Amendment right of association protects the right of individuals to come together over issues of mutual interest. A union fundamentally is an association of individual workers seeking to address common workplace issues. When workers form a union, they are exercising a basic civil right. But because of anti-trust laws, workers who choose to exercise this right face potential legal liability, absent statutory protections. The statutory right to form a union and engage in collective bargaining is necessary to ensure that workers can continue to exercise their civil right to associate with other workers on issues of mutual concern.

    Speech: The right to communicate with co-workers about workplace concerns comes from the statutory right to join a union and bargain collectively. Absent a statutory right to join a union and engage in collective bargaining, workers could lose the right to talk about the key issues that affect their daily lives, notwithstanding the importance of the issues to the workers, or the benefit to society from learning about those issues. The First Amendment does not protect private sector employees from efforts by their employers to censor speech, and public employees have only very limited protections when discussing workplace issues. The statutory right to join a union and engage in collective bargaining is therefore necessary to protect basic free speech values.

    In addition, unions provide a vehicle for their members to participate meaningfully in the public debates that are critical to a democratic society. By combining their voices with other union members, workers can get heard.

    Petition: Unions exist to defend the rights of their members, including by lobbying the government to defend the interests of the overall membership and by going to court to protect the rights of individual members. These are classic examples of the exercise of the First Amendment right to petition the government, but also activities that individual workers would likely lack the resources to undertake on their own. By combining resources with other union members, workers have the opportunity to exercise the critical right of petition through their unions.

What laws protect the right to collective bargaining?
The National Labor Relations Act (NLRA) is the federal statute that grants most private sector employees the right to join a union and engage in collective bargaining. Employees of state or local governments only have collective bargaining rights if their state legislature has granted them such rights in statute or the governor has done so by executive order. Many states do have such statutes, which are typically modeled on the NLRA.

Public employees’ right to engage in collective bargaining can be taken away by their state governments; the collective bargaining rights of private sector employees lies in Congress’s hands.

What is the ACLU’s history of protecting the right to form unions and collectively bargain?
The ACLU’s very first actions were to counter the virulent anti-union crusades of the 1920’s — protesting the ban on textile workers from meeting in Passaic, New Jersey; demonstrating on behalf of the right of steelworkers to hold union meetings in Duquesne, PA; and defending Upton Sinclair when he was arrested in 1923 in San Pedro, CA for trying to read the First Amendment at an IWW (Industrial Workers of the World) rally.

At the time of the ACLU’s founding, unions were reeling from a well financed attack from a group of industrialists including John D. Rockefeller and J.P. Morgan who, under a patriotic banner, the “National Security League,” led an anti-union campaign that resulted in a decline in union membership from 5,047,800 in 1920 to 3,622,000 in 1923. By 1929 the labor movement was weaker than it had been since the 1890s.

With the Supreme Court’s blessing in 1921, courts routinely granted orders to employers that prohibited “any organized picketing,” and granted employers’ requests for orders that broke strikes before the union could even contest the court order. Even ACLU founder Roger Baldwin was arrested in 1924 and convicted under a 1796 unlawful assembly law for organizing a demonstration in support of the free speech rights of silk workers embroiled in a bitter labor dispute in Paterson, New Jersey. Baldwin ultimately prevailed in court, making his own case one of the most sweeping First Amendment victories of the decade.

The passage of the NLRA, originally enacted as the Wagner Act in 1935, guaranteed the right to organize unions, giving power and dignity to millions of American workers. The Wagner Act was described at the time as the greatest civil rights law in American history. The new law, however, was not always followed, and shortly after its passage the ACLU intervened and persuaded the courts to force Jersey City Mayor Frank Hague to end his campaign to suppress labor unions by denying meeting permits, banning leaflets and violently harassing picketers.

The ACLU’s injunction against Hague was upheld by the U. S. Supreme Court in 1939, bolstering the rights of labor and leading the courts to embrace the notion that the First Amendment provided a meaningful guarantee of free expression.

The ACLU continued to support the democratic rights of workers both inside and outside of unions, and in 1947 urged President Truman to veto the Taft Hartley Act; an amendment to the NLRA designed as a cold war crackdown to control the activities of the stronger post World War II union movement. President Truman vetoed Taft Hartley claiming that it was “designed to interfere with free speech.” His veto was overturned and the ACLU joined an unsuccessful Supreme Court challenge to Taft Hartley urging the court to strike it down on First Amendment grounds.

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