State Constitutions, Text, and Implicit Repeal

An interesting New York constitutional interpretation case, involving a state constitutional right to collective bargaining.

|The Volokh Conspiracy |

From Hernandez v. State, decided earlier this year by a New York appellate court:

In 1937, through the enactment of the State Labor Relations Act—later renamed the New York State Employment Relations Act (hereinafter SERA)—the Legislature granted employees a statutory right to organize and collectively bargain and established a comprehensive administrative framework that protects those rights, regulates the collective bargaining process and provides a forum in which employers and employees can resolve labor disputes. However, SERA's rights and protections extend to only those persons who fit within SERA's definition of "employees." Excluded from that definition are, among others, "any individuals employed as farm laborers" (hereinafter referred to as the farm laborer exclusion).

The New York Constitution's article I, § 17 reads (emphasis added):

Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.

No laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, shall be permitted to work more than eight hours in any day or more than five days in any week, except in cases of extraordinary emergency; nor shall he or she be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.

Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.

The court concluded that the agricultural labor exclusion violated § 17:

It is a well-settled and basic tenet of constitutional and statutory interpretation that the clearest and "most compelling" indicator of the drafters' intent is the language itself. "[R]esort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction, and courts have no right to add to or take away from that meaning." In other words, "[w]hen th[e] language is clear and leads to no absurd conclusion," the words must be accorded their plain and ordinary meaning.

Application of these longstanding principles here leads us to the inescapable conclusion that the choice to use the broad and expansive word "employees" in NY Constitution, article I, § 17, without qualification or restriction, was a deliberate one that was meant to afford the constitutional right to organize and collectively bargain to any person who fits within the plain and ordinary meaning of that word. Indeed, there is nothing in the language of the constitutional provision to support the suggestion that the drafters intended for the term "employees" to be narrowed or limited in any way. Accordingly, when the term "employees" is given its natural and ordinary meaning, we think it clear that the constitutional right to organize and collectively bargain extends to individuals employed as farm laborers.

Given the clarity of the provision's language, we need not look any further than the text to reject the Farm Bureau's argument that the constitutional provision should be read in conjunction with Labor Law § 701 (3) (a). However, were the provision's wording unclear, a review of the relevant historical material would lead us to the same conclusion.

It is evident from the revised record of the Constitutional Convention of 1938 that the drafters of NY Constitution, article I, § 17 were eminently aware of the statutory right to organize and collectively bargain created by SERA and the limited definition ascribed to "employees" under that statutory framework. By extension, the drafters are presumed to have also been aware that SERA's definitions were "special definitions of limited application," expressly intended to apply only "when used in th[at] article" (Labor Law § 701). Thus, if the drafters had wished to adopt SERA's special definition of "employees," they would have had to incorporate it explicitly into the constitutional amendment. The drafters did not do so, thereby giving rise to the inference that its omission was intentional. Rather, they chose to employ the general and unqualified word "employees." Given the language specifically used, there is simply no basis to read Labor Law § 701's limited definition of "employees" into NY Constitution, article I, § 17.

Justice Stan L. Pritzker dissented:

[The majority's conclusion] is tantamount to a finding that the delegates at the Constitutional Convention of 1938 intended to impliedly or explicitly repeal the farm laborer exclusion, which was enacted only a year prior. Such construction "ignore[s] the fundamental tenet of statutory construction that implied repeal or modification of a preexisting law is distinctly disfavored." [Footnote: Although a constitutional convention presents a different political setting compared to typical legislative action, the rules disfavoring implied repeal still apply.] "If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction should be adopted."

Here, both the NY Constitution and the Labor Law can be given operation by construing the constitutional amendment as "accord[ing] recognition to the right of labor to organize and bargain collectively" within the limitations set forth in the Labor Law. The First Department, when considering the effect of the 1938 constitutional amendment on a similar Labor Law provision, held that NY Constitution, article I, § 17 "was not intended to invalidate existing legislation which imposed a duty on employers to bargain collectively with employees even though that obligation by reason of certain exemptions or exceptions was not in all respects coextensive with the rights of labor."

Mindful that the "Legislature is hardly reticent to repeal statutes when it means to do so," to effect repeal, there must be "an express manifestation of intent by the Legislature—either in the statute or the legislative history." …

Nor do I agree with the majority to the extent that it asserts that the relevant historical material of the Constitutional Convention of 1938 supports repeal. First, statements that were made by delegates at the Constitutional Convention evince an intention to preserve—rather than expand—the protections afforded by existing legislation. For example, after the language that ultimately became NY Constitution, article 1, § 17 was read aloud, a delegate who was commenting on the efficacy of the amendment stated that "there may be no opportunity in the future as a result of an amendment or repeal of the existing legislation to raise such an issue in this [s]tate." Moreover, another delegate recognized that, "organized labor asserted its advocacy of preserving, by constitutional amendment, contemporary recognition of its rights—achieved after years of struggle." Notably, one delegate proposed an amendment that addressed the right to organize and bargain collectively to specifically include "farmers," but this amendment was not adopted….

NEXT: Recommendations to Improve the Supreme Court Bar Line

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.”

    Except the vast majority of unionized employees have no choice in who is representing them.

    Some employees, once upon a time, made a choice. All future employees are stuck with that choice.

    That provision could quite easily be read as barring exclusive representation deals.

    1. Sure. If the purpose of it hadn’t been exactly to permit, indeed compel, exclusive representation deals, it could be read that way.

    2. Union reps are voted on; what are you talking about?

      1. Union reps are voted on, and like any election, only the winning side got a choice, the losing side got the winning side’s choice imposed on them.

        1. the vast majority of unionized employees have no choice in who is representing them
          Do you know what a vast majority is?

          Sorry you hate representative governance, but that’s how both our republic and collective bargaining works.

  2. Seems straightforward enough.

    “Employees” in the State Constitution is not qualified, so it applies to agricultual employees. But in the prior statute “employees” is qualified – it excludes agricultural workers. Hence agricultural workers are covered by the Constitution but not the Statute. Hence they must enforce their constitutional rights directy, not by recourse to the mechanisms of the Statute.

    Quite what “equal protection” has to do with anything I have no idea, since there is no suggestion that either the Statute or the Constitution can be applied differently to different people.

  3. Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.

    A peculiar notion, since humans have been surviving by working for other humans for a very long time, and still do. Most people have nothing else to sell but their labor. And surviving by working for other humans in the way of commerce is much more dignified than working for other humans in the way of slavery.

    Still, I suppose this idea would narrow the scope of the federal Commerce clause a bit, excluding labor from its clutches. Good to know.

    1. Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.

      Well, there goes the commerce clause to help labor.

      “We’re offended at that notion at the state level, therefore we can control labor. But not at the federal level, thereforore we can control labor.”

Please to post comments