The National Labor Relations Act and the Forgotten First Amendment

Abstract

In this article Professor Bond discusses several points. First, the freedom of association principle, whatever its constitutional paternity, is now treated by the Court as one among first amendment equals. It is thus a fundamental right which the government may limit only for the most compelling reasons and then only in that way which least intrudes upon its exercise. Second, the relationship of an employee both to his employer and to his fellow employees involves associational rights of the kind guaranteed and protected by the first amendment. Third, the exclusive representation rule\u27 of the National Labor Relations Act seriously interferes with those associational rights for reasons that cannot be fairly characterized as compelling. Moreover, the exclusive representation rule, hardly the least intrusive means by which the government might solve the problems allegedly mitigated by its observance, may in fact exacerbate those very problems. Consequently, fourth, the Court should strike down the exclusive representation rule as an abridgement of both employees\u27 and employers\u27 freedom of association rights under the first amendment. The freedom of association principle at full tide will thus sweep legal doctrine back to the high water mark reached before the freedom of contract principle began to ebb