Who Wants to Chase an Eighteen-Wheeler for a Year?

By AmandaBell - 23 Mar 2010

All labor strikes are difficult in some way. However, American unions sometimes do not take chances that might make certain strikes easier, because we fear liability under the secondary boycott rule. This concern is legitimate, but unions have an obligation to our members to experiment with the “publicity exception” to the secondary boycott rule.

Strike Strategy

Particularly difficult strikes occur in industries where neither picketing nor stopping work can harm employer profits. For example, striking industrial laundry workers who picket outside their plant do not cause clients to cancel their linens contracts. Laundry clients care only that the delivery truck arrives carrying clean linen. Clean linen keeps coming even during a strike because the laundry can easily find scabs to fill its low-skill jobs. And the clients never even see the workers’ picket, so they are not bothered by it.

However, clients become very bothered – and very interested in canceling their contracts – when a picket line shows up at their hotel or restaurant. There’s nothing like a bullhorn, people waving signs, a ten-foot inflatable rat, and earnest conversation with a leafleting laundry lady to make guests go somewhere else. The hotels and restaurants start looking for a different laundry that does not come with noisy picketers attached.

The Problem of Secondary Boycott

Unfortunately, workers rarely actually set up a picket at clients’ businesses. Most such pickets are prohibited by the secondary boycott rule of the Taft-Hartley Act of 1947 and its resulting court decisions. The rule forbids most kinds of action toward “secondaries” – businesses with which the union has no direct dispute, such as a laundry’s clients. When a laundry workers' picket causes a client to lose income, the client can get an injunction to take down the line. The union can be on the hook for three times the amount the client claims to have lost as a result of being picketed. Unions cannot afford those damages. Also, if a client knows it can claim losses from a secondary boycott, then get triple the amount back from the union, the client’s incentive is to side with the laundry.

The Truck-Chasing Loophole

As a result, workers are only safe from damages and injunctions when they picket the laundry – an activity that barely pressures their employer. There is one loophole. Workers may picket outside a client’s business while the laundry’s trucks deliver. This means strikers must set up and take down picket lines across busy driveways in less than ten minutes. They must chase the trucks from client to client for eight to ten hours a day in cars jammed with co-workers and picket signs. The pay-off is that each client gets picketed for ten minutes per day. Unfortunately, ten-minute pickets are ineffective in preventing consumers from spending money. Most consumers never even see the picket. Those that do may see it so briefly that they don’t have enough time to decide to support the workers. Strikes like this can drag on for over a year, and strikers do not always win. By contrast, strikes with no secondary boycott issues can often win within weeks.

The Publicity Exception

In order to avoid putting members through long, low-impact strikes, unions should push the limits of the secondary boycott rule. We should experiment with untried but possibly legal forms of “publicity” at client locations.

Publicity activity outside a secondary business can sometimes be lawful: “Publicity, other than picketing, for the purpose of truthfully advising the public that a product is produced by an employer with whom the union has a primary dispute and that it is distributed by another employer is lawful.” 48A Am. Jur. 2d Labor and Labor Relations § 1788 (2009). Unfortunately, courts traditionally will not permit anything more than handbilling as publicity activity. Trying to hand leaflets to customers as they drive into hotel parking lots has less impact than a picket line. Customers who might care to help the workers mistake the handbills for ads and drive away without reading one.

The Coffin Example

However, unions can do more than just handbill. In one case, workers were permitted while handbilling also to hold a mock funeral with a large “coffin” 100 feet from the entrance to the secondary. Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429 (D.C. Cir. 2007). Customers are more likely to take a leaflet and have a conversation with a striker when “publicity” like this draws their interest. It was worthwhile for Local 15 to face secondary boycott charges in order to win in court the right to use this strategy.

Overcoming Reluctance to Litigate

Unions’ reluctance to push the publicity picketing envelope is justified. Triple damages are not affordable on the dues of members earning $9 an hour. Courts are often hostile and unlikely to decide in unions’ favor. However, we can develop test cases that push the edges of what the exception allows. The worst that can happen if a union loses a case is that the rest of the labor movement is forbidden a strategy it was too nervous to try anyway. Test cases would have to be chosen carefully, based on individual facts and on the sympathetic qualities of witnesses. Such cases should be filed when the NLRB and the federal benches are not too weighted with right-wing appointees. Costs could be limited by pooling funds among unions and by choosing secondaries that would be unlikely to prove high damages.

Conclusion: Obligation to Members

As democratic organizations, unions cannot ignore that a successful publicity test case will improve our members’ lives. A better strategy in the short term could mean less exhausting strikes. Long term, it will mean bigger victories. Why strike one year for a 74¢ raise when you can strike three months for $1.00? Unions have an obligation to find new winning strategies, including by experimenting with publicity activity.

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Who Wants to Chase an Eighteen-Wheeler for a Year?

By AmandaBell - 21 Feb 2010

All labor strikes are difficult in some way. However, out of fear of liability under the secondary boycott rule, American unions don’t take chances that might make some strikes easier. Unions should instead experiment with the “publicity exception” to the secondary boycott rule.

Strike Strategy Unusually difficult strikes occur in industries where neither work stoppage nor picketing can harm employer profits. For example, an industrial laundry can easily find dozens of scabs for its low-skill jobs. The laundry’s clients care only that the delivery truck arrives carrying clean linen. A picket line outside the plant does not cause clients to cancel their contracts with the laundry.

However, clients become very interested in canceling their contracts when a picket line shows up at their hotel or restaurant. There’s nothing like a bullhorn, people waving signs, a ten-foot inflatable rat, and earnest conversation with a leafleting laundry lady to make guests go somewhere else. The hotels and restaurants start looking for a different laundry that does not come with noisy picketers attached.

The Problem of Secondary Boycott In reality though, workers do not use the powerful tool of setting up a full picket line at clients’ businesses. The secondary boycott rule of the Taft-Hartley Act of 1947 and its resulting court decisions forbid a union from conducting most kinds of action toward “secondaries” – businesses with which it has no direct dispute, such as a laundry’s clients. When a picket causes a client to lose income, the client can get an injunction to take down the line. The union can be on the hook for three times the amount the business loses. Unions can’t afford those damages. Also, if a client knows it can claim loss from a secondary boycott, then get triple the amount back from the union, the client’s incentive is to side with the laundry.

The Truck-Chasing Loophole As a result, workers are only safe from damages and injunctions when they picket the laundry – an activity that barely annoys their employer. There is one loophole. Workers may picket outside a client’s hotel or restaurant while the laundry’s trucks deliver. This means strikers must set up and take down picket lines across busy driveways in less than ten minutes. They must chase the trucks for 8-10 hours a day in cars jammed with their co-workers and signs. The pay-off is that each client gets picketed for maximum ten minutes per day. Unfortunately, ten-minute pickets are not very effective in preventing consumers from spending money, because the secondary boycott rule forbids strikers from asking guests not to patronize. Strikers must hope that customers arriving during the ten minutes will understand and act on their conscience.

Strikes like this can drag on for over a year, and strikers do not always win. By contrast, strikes with no secondary boycott issues often win in a matter of weeks. (Every strike has factors other than secondary boycott. However, unions do better picketing where the employer earns money, rather than at the back-of-house operations.)

The Publicity Exception But why say the unions allow this rule to make strikes more difficult than necessary? Of course unions did not encourage Congress and courts to make the secondary boycott rule. But unions can still push the limits of the rule by experimenting with untried but possibly legal forms of “publicity activity” at client’s locations.

Publicity activity outside a secondary business is sometimes lawful: “Publicity, other than picketing, for the purpose of truthfully advising the public that a product is produced by an employer with whom the union has a primary dispute and that it is distributed by another employer is lawful.” 48A Am. Jur. 2d Labor and Labor Relations § 1788 (2009). Unfortunately, publicity traditionally accepted by courts is handbilling only. Trying to hand leaflets to disinterested customers as they drive into hotel parking lots has less impact than a picket line. Customers who might otherwise care to help the workers mistake the handbills for ads and drive away without reading one.

The Coffin Example However, unions can do more than just handbill. In Sheet Metal Workers Local 15 v. NLRB, workers were permitted while they handbilled also to hold a mock funeral with a large “coffin” 100 feet from the entrance to the secondary. Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429 (D.C. Cir. 2007). Customers are more likely to take a leaflet and have a conversation with a worker when an action like this draws their interest.

Indeed, vernacular street theater is a great possibility. Paying performers has always been an obstacle, but there are lots of ways to mix trained and untrained participants. And in the age of YouTube, every video made of such expressive activity is valuable in pressuring the employer not only at its place of business, but at its place of reputation, which is the Web. Companies worry a great deal about bad online publicity, as they should.

Overcoming Fear of Litigation Expense Unions have a legitimate fear of overdoing publicity picketing. Triple damages for the highest amount the secondary can invent are not affordable on the dues of people earning $9 an hour. However, unions can develop test cases that push the edges of what the exception allows. The worst that can happen if the union loses a test case is the rest of the labor movement is forbidden a strategy it was too nervous to try anyway. Costs of test cases could be limited by pooling funds among unions and by choosing secondaries that would be unlikely to prove high damages. Also, paying damages on an unsuccessful lawsuit may be no more costly than paying strikers for nine months.

Conclusion: Obligation to Members As democratic, member-supported organizations, unions cannot ignore that a successful publicity picketing test case will improve members’ lives. A better strategy in the short term could mean safer or less exhausting strikes. Long term, it will mean bigger victories. Why strike nine months for a 74¢ raise when you can strike three months for $1.00? Unions have an obligation to find new winning strategies, including by experimenting with publicity picketing.

Another part of the problem, undiscussed here, is that the employer's place of making money may be inside a mall or other "private property" not owned by the employer. That's why the cases about expression rights in malls began with the labor dispute in Amalgamated Food Employees v. Logan Valley Plaza, a great Thurgood Marshall opinion, in my opinion. The destruction of Logan Valley by Lloyd Corp. v. Tanner took the cover of the controversy over the Vietnam War to make it much harder for workers to use expressive activity, whether or not including picketing, even against their own employers, whether striking or not, by exalting the third-party landlord's "right" to control expression on the basis of his ownership.

This is an effective essay. It seems to me it falls short in one area only: that it has rather too much tendency to imply that the only reason more legal agitation of this boundary doesn't go on is that unions are too conservative in their legal risk-taking. It may also be because union lawyers, faced with a hostile NLRB, Courts of Appeals that have little tendency to overrule the Board on unions' behalf, and a Supreme Court dominated by anti-union justices, do not expect to win in the end. I don't know, and would be very interested in what the AFL-CIO Lawyers Coordinating Committee thinks. When Larry Gold was the AFL's General Counsel he was probably the single most influential lawyer before the Supreme Court who had never been Solicitor General, even with Justices who were not usually on his side. What Bredhoff & Kaiser thinks about these issues is as smart as any lawyer's view on any question anywhere. I think your concluding point, that unions have a responsibility to their membership to try any legal experiments that could result in significant gains, is well appreciated in quarters where labor's large-scale legal strategy is made. But what happens between there and the street is the problem of all organizations: groupthink, inadequate contact between those with broad visions and those with intensive current operational knowledge, intermediation by unimaginative collaborators with narrow agendas, etc.