The Law on Secondary Strikes
Following on the other thread, I wanted to clarify some of the case law that bans free speech by unions talking to employees of anyone other than their own direct employer.
There was a Supreme Court case, DeBartolo v. Fla. Gulf Coast Trades Council, which found that unions could appeal for CONSUMER boycotts of companies other than their direct employer, but it made clear that such appeals to CONSUMERS was different from appeals to other WORKERS to strike against other employers.
As the DC Circuit said in Warshawsky v. NLRB in 1999 in a case involving handbilling that led to a walkout by such secondary employees:
The Supreme Court has emphatically said that "the prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)[i] carries no unconstitutional abridgment of free speech"...It follows that the First Amendment does not protect communications directed at--and only at--the neutral employees merely because the form of communications is handbilling and conversations.You don't get clearer statements then this that the First Amendment does not apply to any appeal to labor solidarity, whether its posted on a picket sign or on a handbill. Workers live in a world exempt from the First Amendment where all of their communication to one another can be tightly regulated by the government-- and the courts have zero constitutional problem with that.
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Comments (15)
Now that's revealing!
Courts' message to would-be labor organizers: you can be illegal or ineffective. Take your pick!
October 16, 2005 7:55 AM | Reply | Permalink
paradigm shift:
back to victorian era status  
; &nbs
p; &nb
sp; &n
bsp; when unions were quasi legal protean beings
like guerrilla armies
defying wall street courts is no big deal
if like say ....gene debsa klass rithgeous cell in jail
 
; is the grail
October 16, 2005 8:17 AM | Reply | Permalink
The majority jumps from the Supreme Court's holding that the prohibition under section 8(b)(4) of the inducement or encouragement of a secondary work stoppage does not constitute an unconstitutional abridgement of free speech, see International Bhd. of Elec. Workers v. NLRB , 341 U.S. 694, 705 (1951), to its conclusion that any kind of union speech directed to neutral employees carries no First Amendment protection.
Unfortunately, that's pretty much the logicical conclusion you must reach if you assume that Electrical Workers was correctly decided.
The Electrical Workers court said Congress did not intend to create "an asylum of immunity" in 8(c) to the proscription in 8 (b) (4) (A). Well, perhaps not. But what Congress undoubtedly did hope for in including 8(c) was that it would preserve the proscription in a constitutional challenge. To construe it more broadly, as Electrical Workers petitioners asked, would have been to apply the principle that you must construe a statute to preserve its constitutionality. But for the very reason the court asserts, this construction is impossible. To honor the exception cancels out the effect of the law. The logical conclusion then is that the proscription itself must fail. Instead the court engages in a tautology: the exception to the law does not apply to speech that might encourage others to engage in activity proscribed by that same law! Right.
It looks to me like the decision in Electrical Workers made Waushawsky outcome completely predictable. We've been hosed for a long time. But I guess that was your point, Nathan.
thanks again...
October 16, 2005 11:18 AM | Reply | Permalink
The key to the analysis of this issue is the fact that secondary boycotts --- that is, conduct rather than speech --- are illegal, as they have been for almost all of our nation's history. Speech that is intended to induce illegal conduct can thus be prohibited in this context as in others without violating the First Amendment. If that were not the case, Martha Stewart's broker couldn't be prosecuted for giving her inside information, crooked CEOs couldn't be prosecuted by conspiring through their telephone calls, and so on, ad infinitum. The courts have never interpreted the First Amendment as absolute, and the law on secondary boycotts is not out of line with the law on most other aspects of speech. When Congress changes the law to allow secondary boycotts, speech and picketing to cause them will also be protected.
In contrast, unions in these cases are free to engage in all the speech they want in support of their primary conduct, including asking people not to work for the picketed employer, not to cross primary picket lines, and not to buy the products produced by the struck employer.
October 16, 2005 6:37 PM | Reply | Permalink
Dennis- Here's the problem with your formulation.
When a union asked other workers to join them on strike, it's not illegal for those other workers to refuse to go to work. So the union is not inducing other people to commit a crime. So your argument analogizing this to other speech inducing illegal activity fails.
No, the only illegal act in the cases cited is the SPEECH itself. The actions requested are legal for the workers who choose to refuse to work, but it is illegal for the union to make the request.
This is a critical point, since much litigation against unions turn on the intent of the union speech, since the actual individual workers have not by themselves committed a crime.
In reality, most prosecutions of unions are about speech crimes and nothing else, since absent the illegal speech, there is no illegal act.
October 16, 2005 6:49 PM | Reply | Permalink
Close but not quite. Martha's broker is guilty even if she doesn't act on his inside information, and a CEO who uses speech to fix prices is guilty even if no one follows his suggestion. In other words, the speech itself can be prohibited. The analogy works even if it's not exact, because the act sought in the union's request, a strike by the other employees, IS illegal even if the remedies would lie only against the initiating union. I suspect that was part of the 1947 compromise --- forbidding a union to cause a secondary boycott but not trying to punish the employees who actually struck the secondary employer. That's consistent with other parts of the Act that allow unfair labor practice actions only against the union as an entity rather than against the individuals who perform the acts. Perhaps Congress assumed that the neutral employer could protect itself through self-help.
On the other point, I think you're way off empirically. My reading of the secondary boycott cases suggests that most of them involve picketing to cause a secondary strike (an act), not just verbal requests. If the Supreme Court had somehow exempted purely verbal requests from Sec. 8(b)(4) on First Amendment grounds, I imagine Congress would closed that loophole in 1959 when it closed several others.
October 16, 2005 7:38 PM | Reply | Permalink
Yes, speech encouraging illegal acts by others is itself illegal, but as you acknowledge, workers in a secondary boycott themselves commit no illegal act.
You can't get around the fact that union speech in this case is punished where the actions they request are not themselves punished.
I'm not arguing that Congress didn't mean for this result to exist. Taft-Hartley and other anti-union laws were viciously anti-labor and meant to destroy labor solidarity and largely succeeded.
My point is that most Americans don't understand that union speech was criminalized in a way that almost no other democratic speech is treated.
October 16, 2005 7:55 PM | Reply | Permalink
If I may also point out another part of the first ammendment...the right to peaceably assemble. I do believe that although a secondary strike maybe a free speech, I also think has a lot to do with peaceably assemble. Any protest for that matter should be protected under this clause. However, as our conservative courts first relied on common law to strike down union activity, it only makes sense that they continue their pattern. The more I read about the lack of labor law in the US the more I wish the constitution placed the congress as the bookend instead of the courts.
October 16, 2005 10:16 PM | Reply | Permalink
nnewman - Yes, speech encouraging illegal acts by others is itself illegal, but as you acknowledge, workers in a secondary boycott themselves commit no illegal act. ... You can't get around the fact that union speech in this case is punished where the actions they request are not themselves punished.
Dennis already said that explicitly:
the act sought in the union's request, a strike by the other employees, IS illegal even if the remedies would lie only against the initiating union.
Newman explicitly stated in one of his threads that he seeks the eventual abolition of national borders for the purpose of restricting workers free travel, globally. So, is it any surprise he dislikes any and all limitations on labor generally? Well that’s his opinion formed on his activists experience. Fine.
What's not ok though is Newman’s consistently incompetent reading of the law. This is the problem with an ideologue, no matter how smart or well educated, they only see what they want to see. Take the Neocons for example. Plenty of bright and well educated men, utterly blinded by their vision, and terribly surprised when all they’ve built comes crashing down.
Newman and those in his self described activist movement weasel interpretations with absurd hack arguments that don’t fool anyone for long. He’s part of a whole movement of hacks who are continually trying to bend the rules and sneak things through in a friendly political climate, and then cry foul when it comes back to bite them. Take for example trying to regulate rape and sexual offenses under the commerce clause. What a surprise that failed.
* This is why we need less hacks and ideologues on the left, and more realists and pragmatists who will accomplish lasting victories.
Those in Newman’s ideologue movement are getting defeated repeatedly and are of no help to the left, only wasting energy and political capital.
October 17, 2005 1:57 PM | Reply | Permalink
mahoodlum - I do believe that although a secondary strike maybe a free speech, I also think has a lot to do with peaceably assemble.
As Denis pointed out, such questions are not absolute:
The courts have never interpreted the First Amendment as absolute, and the law on secondary boycotts is not out of line with the law on most other aspects of speech.
He correct in that. So, agreeing with you about what right they should have isn't enough.
Any protest for that matter should be protected under this clause.
Unfortunately it's not that simple. There are plenty of examples of how that would fail, for it to essentially become coercive mob rule.
The problem with people like Newman is they don’t work within existing law, because they just don’t like them, and they’re too impatient to change them. They try to circumvent rather than change laws, and cry foul when they’re caught. Take his movement’s attempt to place rape under the Commerce Clause. Worked briefly, then failed ultimately for obvious reasons. Whether or not one agrees with it’s intent, it was a real hack job in implementation. That accomplishes nothing except the promotion of reactionary politics.
It’s like the foolish zeal of the counter culture movement and stems directly from that ideology. Lots of exuberant activism, few lasting accomplishments, and tremendous blowback.
Speaking of blowback, I consider people like Newman the ideological equivalents of 60-70’s CIA hawks, zealots who do everything the wrong way and produce more blowback than anything else. Basically, f-ups. I oppose them for the same reason I oppose foolish, short sighted militarism generally. All they ever do is sabotage their allies and the country generally.
We’d be better off changing one issue in a lasting and meaningful way, than attempting to sneak through ten actions that will ultimately collapse, yielding nothing but reactionary empowerment.
October 17, 2005 2:29 PM | Reply | Permalink
Nathan, don't be so contradictory in your position on judicial rulings. Hasn't congress through Taft-Hartley and Landrum-Griffin criminalized most secondary strikes and many forms of boycott? If the effect of union speech and writings is to encourage other workers with other employers to quit work--that is what a sympathy, or secondary strike is--is that not a violation of a statute? To find such speech action legitimate, would not courts have to declare parts of congressional legislation unconstitutional, i.e. engage in judicial review, thus aborting the democratic process? Moreover, if workers bound by a no-strike contract (and, as you know, courts have interepreted nearly all labor-management contracts that include due process grievance procedures to be non-strike instruments) quit work collectively, is that not a breach of contract? Hence any speech seeking that result becomes an inducement to violate contract? Yes, among advanced industrial nations, we may have the most restrictive and suppressive rules concerning workers' speech rights, but much of that, perhaps most, is a result of statutory law not judicial rulings. I would, like you, prefer a more liberal regime of worker/union speech rights but that requires political power and new legislation.
October 17, 2005 3:53 PM | Reply | Permalink
Mel-- I'm not advocating that judges strike down the law as unconstitutional.
I'm noting the hypocrisy of courts that give corporations a free amendment right to propagandize against workers rights and spend endlessly on politics, yet turns a blind eye to restrictions of union free speech.
The argument here is for legislative change of Taft-Hartley, but the first step is for progressives to understand the restrictions on free speech involved in the law.
October 17, 2005 5:37 PM | Reply | Permalink
Newman - I'm noting the hypocrisy of courts that give corporations a free amendment right to propagandize against workers rights and spend endlessly on politics, yet turns a blind eye to restrictions of union free speech.
It's not just a speech issue, we're talking about the call for secondary strikes. Your repeating that it's simply a speech issue, is idiotic.
Your opinion is your own, but at least try and understand the basic premise of the law. Nobody else has difficulty understanding this.
How can Newman argue against laws he apparently can't even understand? This shows why activists like Newman don't accomplish anything except wasting energy and resources on the left.
I wonder when the last time Newman was in court actually winning an argument towards a lasting and meaningful change. Most of his resume looks like questionable academia, activist fluff, and punditry.
October 17, 2005 8:47 PM | Reply | Permalink
Nathan, but you know that prior to Taft-Hartley the Supreme Court and several circuits had promulgated principles that provided workers with greater free speech righs than their employers. In essence, such judges, most notably Frankfuter and Murphy on the SC, declared much employer speech to be, by definition, coercive, while worker and union specch operated in the Brandeisian model of free competition among ideas in the ideological markeplace. Taft-Hartley and what followed changed all that. The problem is not judicial hypocrsy; it is politics and legislation; corporations and union have the political power today, unions and workers lack it.
October 17, 2005 8:52 PM | Reply | Permalink
It's both an issue of political power and judicial hypocrisy. Before Taft-Hartley, the Supreme Court had overturned NLRB interpretations of the Wagner Act to protect coercive employer propaganda in the workplace, which was then legislatively embodied in the employer 8(c) speech provisions of Taft-Hartley.
When the NLRB decided that employee rights, as a counterbalance, required that unions have the right to distribute pro-union literature on company property such as parking lots, the Supreme Court overturned that interpretation of the law and barred them from the property.
So the bias against union speech has been a constant theme. Yes, the lack of union political power matters, but even when unions have had the power to get a pro-union NLRB decision, the courts have overturned that political power.
October 18, 2005 2:32 AM | Reply | Permalink