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JULY 1994

Article 22 - Freedom of Association

U.S. Constitution.  Although the freedom of 
association is not specifically mentioned in the 
U.S. Constitution, it has been found to be implicit 
in the rights of assembly, speech, and expression.  
See NAACP v. Claiborne Hardware Co., 458 U.S. 898 
(1982); Healey v. James, 408 U.S. 169 (1972).  Taken 
together, these provisions of the First, Fifth and 
Fourteenth Amendments guarantee freedom of assembly 
in all contexts, including the right of workers to 
establish and join organizations of their own 
choosing, without previous authorization by or 
interference from either the federal government or 
the state governments.  See Brotherhood of Railroad 
Trainmen v. Virginia, 377 U.S. 1 (1964); United Mine 
Workers v. Illinois State Bar Assn., 389 U.S. 217 

Accordingly, attempts to subject association 
membership to undue burdens have been strictly 
reviewed, at least where the association's function 
is related to other fundamental rights.  In Scales 
v. United States, 367 U.S. 203 (1961), for example, 
the U.S. Supreme Court held that membership in a 
political association could be criminally punished 
only if the state was required to show active 
membership, knowledge of the association's illegal 
objectives, and specific intent to further those 
objectives.  This requirement has likely been 
heightened by subsequent developments in the "clear 
and present danger" doctrine, discussed under 
Article 19.  

Lesser impositions, such as attempts to compel the 
disclosure of membership in such associations, are 
also subjected to heightened review, and will 
ordinarily not survive review where there is a 
reasonable probability that disclosure will subject 
those identified to threats, harassment, or 
reprisals.  Brown v. Socialist Workers '74 Campaign 
Committee, 459 U.S. 87 (1982).  Similarly, 
constraints on the organization of political parties 
must be narrowly tailored and serve compelling state 
interests.  Eu v. San Francisco County Democratic 
Central Comm., 489 U.S. 214 (1989).  The right of 
association members to engage in protected 
activities is also secured, and may not generally be 
subjected to the risk of liability for the actions 
of other group members.  NAACP v. Claiborne Hardware 
Corp., 458 U.S. 886 (1982).  At the same time, the 
right to associate (and the corollary right to be 
free from association) may be subject to narrow 
regulation justified by a substantial public 
interest.  Thus, in Roberts v. United States 
Jaycees, 468 U.S. 609 (1984), the U.S. Supreme Court 
held that a private organization engaged in 
expressive activities might nevertheless be subject 
to state laws prohibiting discrimination in its 

Associations less clearly dedicated to protected 
activities, such as those that are commercial in 
nature, will typically enjoy less freedom from 
regulation.  Roberts, supra.  The distinction 
between expressive and commercial activities of 
associations is an important one, and explains how 
the states are permitted to regulate the membership 
of labor unions in their representation of the 
business interests of employees, but not to compel 
the association with unions engaged in ideological 
or expressive activities.  Roberts, supra (O'Connor, 
J., concurring).    Labor Associations.  The rights 
of association and organization are supplemented by 
legislation, including the Railway Labor Act (1926), 
the Norris-LaGuardia Act (1932), the National Labor 
Relations Act (1935), the Labor-Management Relations 
Act (1947), the Labor-Management Reporting and 
Disclosure Act (1959), the Postal Reorganization Act 
(1970), and the Civil Service Reform Act (1978), as 
well as state and local legislation.  The National 
Labor Relations Act, 29 U.S.C.    151 et seq. 
(NLRA), which enunciates U.S. national labor 
relations policy, governs the relationship between 
most private employers and their nonsupervisory 

The NLRA guarantees the right of covered employees 
to organize and bargain collectively with their 
employers or to refrain from such activity.  Section 
7 of the NLRA guarantees that "employees shall have 
the right to self-organization, to form, join or 
assist labor organizations, to bargain collectively 
through representatives of their own choosing and to 
engage in concerted activities for the purpose of 
collective bargaining or other mutual aid or 
protection. . . ." 29 U.S.C.   157.  Examples of 
rights protected by Section 7 are:  forming or 
attempting to form a union among the employees of a 
company; joining a union whether the union is 
recognized by the employer or not; assisting a union 
to organize the employees of an employer; and 
refraining from activity on behalf of a union.    

The NLRA expressly protects covered employees 
against acts of anti-union discrimination.  Section 
8(a)(3), 29 U.S.C.   158(a)(3), makes it an unfair 
labor practice for an employer "by discrimination in 
regard to hire or tenure of employment or any term 
or condition of employment to encourage or 
discourage membership in a labor organization . . . 
."  Section 8(a)(4), 29 U.S.C.   158(a)(4), makes it 
an unfair labor practice for an employer to 
"discharge or otherwise discriminate against an 
employee because he has filed charges or given 
testimony under [the NLRA]."

The NLRA protects workers' and employers' 
organizations from interference by each other.  
Section 8(a)(1), 29 U.S.C.   158 (a)(1), provides 
that it is an unfair labor practice for an employer 
to "interfere with, restrain, or coerce employees in 
the exercise of the rights guaranteed" by the NLRA.  
It is also an unfair labor practice for an employer 
to "dominate or interfere with the formation or 
administration of any labor organization or 
contribute financial support to it . . . ."  29 
U.S.C.   158(a)(2).  

The NLRA also protects labor organizations from 
employer interference by generally prohibiting the 
payment of anything of value by an employer to any 
worker representative, to any labor organization, or 
to any labor organization officer or agent.  In 
addition, no payments may be made to a group of 
employees in excess of their normal wages and 
compensation, for the purpose of causing the group 
to influence other employees in the exercise of 
their right to bargain collectively through 
representatives of their own choosing.  These 
provisions carry criminal penalties and are enforced 
by the U.S. Department of Justice.  29 U.S.C.   186.

The provisions of the NLRA generally apply to all 
employers engaged in an industry affecting 
interstate commerce (the vast majority of 
employers), and thus, to their employees.  As with 
U.S. labor laws generally, it applies to employees 
regardless of their nationality or legal status in 
the U.S.  However, the NLRA excludes from coverage 
railway and airline workers, and government 
employees; as well as agricultural, domestic and 
supervisory employees, employees of entirely 
nonprofit hospitals, independent contractors, and 
individuals employed by a spouse or a parent.  29 
U.S.C.   152(3).

Railway and airline employees are covered by the 
Railway Labor Act (RLA), 45 U.S.C.    151-88, and 
are provided protections against anti-union 
discrimination similar to those contained in the 
NLRA.  The RLA expressly recognizes that employees 
"have the right to organize and bargain collectively 
through representatives of their own choosing," 
prohibits a carrier from denying "the right of its 
employees to join, organize, or assist in organizing 
the labor organization of their choice," and makes 
it unlawful for an employer to "interfere in any way 
with the organization of its employees . . . or to 
influence or coerce employees in an effort to induce 
them to join or remain or not to join or remain 
members of any labor organization . . . ."  45 
U.S.C.   152.

The right of employees of the U.S. Government to 
organize is governed by the Civil Service Reform Act 
of 1978 (CSRA), 5 U.S.C.    7101-35.  The CSRA 
applies to almost all federal civilian employees, 
and provides that "[e]ach employee shall have the 
right to form, join, or assist any labor 
organization, or to refrain from any such activity, 
freely and without fear of penalty or reprisal, and 
each employee shall be protected in the exercise of 
such right."  Id. at   7102.  State and local 
governments have a diverse variety of legislation 
covering collective bargaining by state and local 
employees; however, those laws must be consistent 
with the fundamental Constitutional guarantees of 
freedom of association.

Private-sector employees who are not covered by the 
NLRA or the RLA (primarily agricultural, domestic, 
and supervisory employees who are excluded from NLRA 
coverage under 29 U.S.C.   152(3)), are nonetheless 
protected by the Constitution of the United States.  
As noted above, the First, Fifth and Fourteenth 
Amendments of the Constitution guarantee that 
workers are entitled to establish and join 
organizations of their own choosing, without 
previous authorization by or interference from 
either the federal government or the state 
governments.  The exclusion of these categories of 
employees from coverage means only that they do not 
have access to the specific provisions of the NLRA 
or RLA for enforcing their rights to organize and 
bargain collectively.

In addition to the NLRA and RLA, the Norris 
LaGuardia Act protects employees in the exercise of 
their right to organize and bargain collectively by 
limiting federal court jurisdiction to grant 
injunctive relief in labor disputes.  The policy of 
the Act expressly recognizes that it is necessary 
for an employee to "have full freedom of 
association, self-organization, and designation of 
representatives of his own choosing, to negotiate 
the terms and conditions of his employment, and that 
he shall be free from the interference, restraint, 
or coercion of employers of labor, or their agents, 
in the designation of such representatives or in 
self-organization or in other concerted activities 
for the purpose of collective bargaining or other 
mutual aid or protection . . ."  29 U.S.C.   102.  
Employees such as agricultural and supervisory 
workers who are not covered by the NLRA are 
nonetheless covered by the Norris LaGuardia Act.

In addition to federal legislation, most states have 
constitutional provisions or legislation that 
expressly guarantee the right to organize and 
bargain collectively.  Thus, state laws frequently 
provide coverage for employees who are not within 
the jurisdiction of the NLRA.  These state laws are 
in most cases patterned on the NLRA or the Norris-
LaGuardia Act, or provide other similar provisions.  
As noted above, even in the absence of State law, 
the fundamental right of association is guaranteed 
by the First and Fourteenth Amendments of the United 
States Constitution.

The National Labor Relations Board (NLRB) is an 
independent federal agency that administers, 
interprets, and enforces the NLRA.  The NLRB 
consists of five board members (the Board) appointed 
by the President with the approval of the Senate for 
five-year staggered terms; the General Counsel, an 
independent officer appointed by the President with 
the approval of the Senate for a four-year term; and 
the regional offices.

An unfair labor practice case is initiated by an 
individual, union, or employer by filing a charge 
with an NLRB regional office alleging a violation of 
the NLRA by an employer or labor organization.  The 
charge is investigated by the regional office on 
behalf of the General Counsel to determine whether 
there is reasonable cause to believe that the NLRA 
has been violated.  If the Regional Director 
concludes that the charge has merit, the Regional 
Director will seek to remedy the apparent violation 
by encouraging a voluntary settlement by the 
parties.  Most cases are settled voluntarily.

If a case is not settled, a formal complaint is 
issued and a hearing is held before an 
Administrative Law Judge (ALJ).  At the hearing, the 
parties are entitled to appear; to call, subpoena, 
examine and cross-examine witnesses; and to 
introduce evidence.  The case is prosecuted by an 
attorney from the regional office on behalf of the 
General Counsel.   After the hearing and after the 
parties have briefed the issues, the ALJ issues a 
decision containing proposed findings of fact and a 
recommended order.

Any party may appeal the ALJ's decision to the 
Board, which may adopt, modify or reject the 
findings and recommendations of the ALJ.  If no 
exceptions are filed to the ALJ's decision, that 
decision and recommended order automatically become 
the decision and order of the Board.

If a party fails to comply with the Board's order 
voluntarily, the office of the General Counsel files 
an enforcement petition in the United States Court 
of Appeals.  Similarly, any "person aggrieved" 
(which includes both the respondent and the charging 
party) by a final order of the Board may seek to 
have the order reviewed and set aside by filing a 
petition with the United States Court of Appeals.

The Federal Labor Relations Authority performs 
functions for federal employee labor organizations 
similar to those performed by the NLRB for private- 
sector employees, including resolution of complaints 
of unfair labor practices and disputes over the 
scope of collective bargaining negotiations.  5 
U.S.C.    7104-05.  In addition, the Federal 
Mediation and Conciliation Service (FMCS) (which is 
responsible for assisting parties to labor disputes, 
at their request, to settle such disputes through 
conciliation and mediation) has authority to help 
resolve bargaining disputes between federal agencies 
and labor organizations.  

Machinery for ensuring protection of freedom of 
association is also provided under the RLA and state 
laws.  The RLA establishes the National Mediation 
Board which performs for the railway and airline 
industries functions similar to those performed for 
other industries by the National Labor Relations 
Board and the Federal Mediation and Conciliation 
Service.  However, the RLA's provisions are enforced 
by civil suit, and are subject to criminal penalties 
for willful failure or refusal of a carrier to 
comply.  45 U.S.C.   152.  State law machinery 
varies, with some states providing administrative 
procedures similar to the NLRA, and other states 
relying on enforcement by private actions in the 
judicial system.

Trade Union Structure and Membership.  The American 
Federation of Labor-Congress of Industrial 
Organizations (AFL-CIO), which comprised 85 national 
union affiliates as of August 1993, is the largest 
federation of trade unions in the United States.  
Another 82 national unions, are independent.  These 
include the National Education Association, with 
some 2 million members, and the United Electrical 
Workers, with 80,000 members.

The AFL-CIO network comprises its national 
headquarters, which houses the various trade and 
industrial departments, and eight regional 
divisions.  The regions include 50 state federations 
and one commonwealth central body at the state 
level, and hundreds  of central councils at the 
local level.  The AFL-CIO lobbies for labor's 
interests before Congress and state legislatures, 
monitors state and federal regulatory activities, 
and represents labor in various national and 
international fora.  It disseminates labor policy 
developed by its affiliates, provides research and 
other assistance through its various departments, 
and assists in coordinating organizing among its 
affiliates.  Member unions pay dues to support the 
activities of the federation and its various trade 
and industrial departments.  Affiliated unions 
usually belong to a number of trade and industrial 
departments that represent their interests before 
the government and elsewhere.  

Unaffiliated unions operate much like those 
affiliated with the AFL-CIO.  On legislation and in 
election campaigns, they often coordinate with the 
AFL-CIO to present a common front.

According to the Department of Labor's Bureau of 
Labor Statistics (BLS), in 1992, an estimated 
16,390,000 employed wage and salary workers in the 
United States (15.8 percent of all employed wage and 
salary workers) belonged to labor unions.  Of those, 
6,650,000 were employed in government, and 9,740,000 
were employed in private industry.

Among the private industry groups, manufacturing had 
the largest number of union members (3,749,000), 
followed by transportation and public utilities 
(1,922,000); services (1,487,000); wholesale and 
retail trade (1,402,000); construction (906,000); 
finance, insurance and real estate (144,000); mining 
(94,000); and agriculture (37,000).

Nearly 37 percent of government (federal, state and 
local) employees were union members, as compared to 
some 11 percent of wage and salary workers in 
private industry.  Although, as seen above, the 
manufacturing industry accounted for the largest 
number of union members, transportation and public 
works had the highest percentage of union employees 
(nearly 31 percent), followed by construction and 
manufacturing (20 percent each), and mining (15.1 
percent).  Percentages for the other private 
industry groups ranged from two to seven percent.     

The percentage of union members was greater among 
full-time workers (nearly 18 percent) than part-time 
workers (some seven percent), and among men (19 
percent) than women (nearly 13 percent).  African 
Americans (21 percent) were more likely than either 
whites or Hispanics (both 15 percent) to belong to 

In addition to the estimated 16.4 million wage and 
salary employees who belonged to unions in 1992, 
there were more than 2 million workers whose jobs 
were covered by a union (or employee association) 
contract, but who were not union members.

Political Parties and Political Activities of Tax-
Exempt Organizations.  Political parties were 
somewhat disdained by many of the founding fathers 
and are not mentioned in the U.S. Constitution.  
Nevertheless, political parties soon became an 
integral part of the American system and, reflecting 
the federal structure, have functioned at both the 
state and national level. Even today, political 
parties are seldom mentioned in federal law and 
regulations.  Nonetheless, political parties are 
protected through the constitutionally guaranteed 
freedom of association.

A fundamental purpose of political parties is the 
selection and promotion of candidates for elected 
office who can advance that party's platform.  Since 
the states, not the federal government, are the 
locus of ballot formulation, the registration of 
political parties is a matter of state jurisdiction, 
generally under the purview of each state's 
Secretary of State or equivalent chief electoral 
official.  The primary benefit of a party attaining 
recognition by the state government is that its 
nominees usually are automatically placed on the 
general election ballot without the petition 
requirement required for individuals running as 
independents.  In most of the states in which the 
party's nominees are selected through a primary 
election, obtaining recognition also affords a 
government-financed and -administered election.  To 
qualify as a party, an association generally has to 
demonstrate some measure of popular support within 
the state, either by petition or by securing a 
percentage of the vote in the previous election.  
This threshold can be as low as 500 signatures (New 
Mexico) or as high as 20 percent of the vote in the 
last state-wide election (Georgia). 

Since ballot access is secured at the state level, 
the importance of a political party obtaining 
recognition at the national level is not as great in 
the United States as in countries that administer 
elections at the national level.  There is no 
federal ballot; all federal candidates, even those 
for the President, must share placement with state 
and local candidates on a state ballot.

There are, however, certain financial benefits for a 
federal political committee qualifying as a 
"national political party."  It may receive 
contributions from individual supporters up to 
$20,000 a year, rather than the $5,000 annual limit 
applied to other noncandidate federal political 

Moreover, the "national committee" of a political 
party engaged in the presidential election may 
qualify for government payments to conduct a 
nominating convention.  The nominee of a national 
political party for the presidential general 
election can also qualify for a public subsidy for 
his or her campaign expenses.  Candidates seeking 
the presidential nomination of a national political 
party are also entitled to a measure of public 
matching funds for their state primary campaigns if 
they can demonstrate a relatively small, but broad, 
financial base ($5,000 comprising individual 
donations of $250 or less in each of 20 states -- 
for a total of $100,000).   At present, the public 
subsidies to parties and candidates extend only to 
expenses in connection with campaigns for the office 
of President; there are no public subsidies for 
candidates for the U.S. Senate or House of 
Representatives for either primary or general 

To attain national party committee status under the 
Federal Election Campaign Act, a prospective party 
organization need only demonstrate that it is an 
ongoing political association with the traditional 
organizational attributes and objectives of a 
political party and place candidates for federal 
office on the ballot in several states.  If a new or 
minor party's presidential general election 
candidate secures at least 5 percent of the popular 
vote in a general election, the candidate may 
qualify for government reimbursement for part of the 
general election expenses and the party will be 
entitled to partial public funding for its next 
general election nominee.  Major party nominees 
(those securing 25 percent or more of the vote in 
the last election) are entitled to full, advance 
public funding of their general election campaigns.  
Any candidate that accepts public funds must abide 
by the expenditure limits and conditions that 
accompany that grant.

Although the national committees of political 
parties supporting presidential candidates enjoy 
certain financial benefits, there are regulatory 
costs associated with being recognized as a federal 
political committee.  Any local party organization 
or group of any kind spending more than $1,000 to 
influence a federal election must register as a 
political committee with the Federal Election 
Commission (FEC); restrict its sources of revenue 
according to the law; report its financial activity 
to the FEC; and abide by the limitations on 
contributions to, and spending on behalf of, 
candidates.  At the local level, political party 
committees who wish only to support state and local 
candidates may seek to avoid this obligation. 

Because of the reporting requirements and 
restrictions on fundraising, some national nonprofit 
organizations that address political issues also try 
to avoid characterization as a political party or 
political committee.  In addition to being subject 
to the FEC requirements noted above, such 
organizations would lose a federal tax benefit if 
they became political committees.  While the federal 
tax code exempts both charitable organizations and 
political parties from taxation, a contribution from 
an individual to a political party is not tax 
deductible for the donor whereas a donation to a 
public charitable organization is tax deductible.  
In sum, a nonprofit, public charity can offer its 
donors a tax deduction and can spend unlimited 
amounts of money speaking publicly on issues, even 
political issues, without incurring legal 
obligations under the Federal Election Campaign Act.

In some situations, organizations that are exempt 
from federal income tax under section 501(a) of the 
Internal Revenue Code as organizations described in 
Section 501(c) may engage in activities that relate 
directly or indirectly to the political process.  In 
particular, charitable organizations described in 
section 501(c)(3) that are eligible to receive tax-
deductible contributions may conduct nonpartisan 
voter education activities or advocate positions on 
issues that are also being addressed by candidates 
for public office.  However, section 501(c)(3) 
organizations are prohibited from participating in, 
or intervening in (including the publishing or 
distributing of statements) any political campaign 
for or against any candidate for public office.  The 
courts have confirmed that this prohibition is 
absolute.  Thus, any political activity by a section 
501(c)(3) organization may jeopardize its exempt 
status. Other section 501(c) organizations are 
similarly precluded from political activities 
because the subparagraph in which they are described 
limits them to an exclusive purpose (for example, 
section 501(c)(2) title holding companies and 
section 501(c)(20) group legal services plans).

On the other hand, some organizations that are 
exempt from federal income tax, pursuant to other 
provisions of section 501(c) of the code, may engage 
in a certain amount of political activity without 
jeopardizing their exempt status.  A section 501(c) 
organization (other than those such as section 
501(c)(3) organizations that are specifically 
prohibited from engaging in political activities) 
may generally make expenditures for political 
activities if such activities (and other activities 
not furthering its exempt purposes) do not 
constitute the organization's primary activity.  
Some of the section 501(c) organizations that have 
been held to be able to engage in political 
activities are social welfare organizations 
described in section 501(c)(4), labor organizations 
described in section 501(c)(5), business leagues 
described in section 501(c)(6), and fraternal 
beneficiary societies described in section 
501(c)(8).  Generally, these organizations are not 
eligible to receive tax- deductible contributions.

Political organizations under section 527 of the 
Code include organizations that operate primarily 
for the purpose of accepting contributions, or 
making expenditures, or both, in order to influence 
or attempt to influence the selection, nomination, 
election or appointment of an individual to a 
federal, state or local public office or office in a 
political organization.  These organizations are not 
required to pay federal income tax on contributions 
and other fundraising income, but are required to 
pay federal income tax on their investment income.  
Contributions to political organizations are not 
tax- deductible.  

A proliferation of small political parties, focusing 
on narrow issues, is structurally discouraged by the 
majoritarian nature of the United States electoral 
process, which provides for single member districts 
with a plurality victor. This system of 
representation tends to encourage the establishment 
and maintenance of a two-party system with both 
parties appealing to a broad cross section of the 
population.  Attractive new political parties and 
issues tend to be absorbed over time within one or 
the other mainstream party.
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