미국헌법상 단결권 제한의 법리와 실제

This study deals with the possibility of constraint on right to organize labor union in the United States Constitution, in order to get some hints for reviewing the unconstitutionality of limiting the right to organize labor union in Korean Constitution, on the historical background of introducing the multiple labor unions system from July 1, 2011. Under the American Constitution, the right to organize labor union is not explicitly enumerated, but based on the freedom of association which is a constitutional right integrated within the “penumbra” of the First Amendment. Since NAACP v. Alabama ex rel. Patterson, the U.S. Supreme Court has examined three separate types of the right to associate. First, individuals might associate to accomplish economic goals that are not squarely connected to any fundamental constitutional right. Second, the freedom of association is connected to the fundamental right to privacy and protected by the notion of liberty in the Due Process clauses. Third, the right to associate is related with many types of activity expressly protected by the First Amendment. The right to join together in labor unions may belong to first type because it is related with achieving economic purposes, like a trade association. So, the Supreme Court has applied the rational basis test to reviewing the constitutionality of law constraining this type of right. Therefore, so long as the legislature is rationally promoting an arguably legitimate government goal by restricting the activities of a business association, the Supreme Court will not invalidate this legislation. This means that the right to organize labor unions might be limited by law for promoting a legitimate public good. Nevertheless, the legitimate public goal to restrict the right to organize labor union is not found nowadays in United States.