I never understood this. How can boycotts be banned? Seems inherently unconstitutional to me.
Not that it really matters to me in the sense that it's definitely an area where I'd do as I pleased regardless of the law. But I've always found the headlines that I see from time to time odd.
> Section 8(b)(4)(ii)(B) of the National Labor Relations Act
(NLRA)¹ makes it an unfair labor practice for a union to
"threaten, coerce, or restrain any person" with the object of requiring that person to cease dealing with another.² In NLRB v. Retail
Store Employees Union Local 1001 (Safeco),³ the Supreme Court
held that this section proscribes union picketing designed to influence consumers to boycott a struck product whenever such picketing "reasonably can be expected to threaten [the picketed retailer]
with ruin or substantial loss."'⁴ Although the Court noted in passing that peaceful picketing is entitled to some first amendment
protection, the Court found it "well-established" that Congress
had constitutional power to prohibit "picketing that predictably
encourages consumers to boycott a secondary business."⁵
I'm not sure whether NLRB v. Retail Store Employees is still valid law. But "secondary boycotts" are often understood as something much more coercive as simply "union picketing designed to influence consumers to boycott a struck product" (https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=46..., "Secondary Boycotts Under the
Taft–Hartley Act"
Philip Hornbein, Jr., 01953):
> The distinctive feature of a secondary boycott is that it is
directed against a neutral party rather than against the employer
directly involved in the labor dispute. The target of the secondary
boycott is a third party who is engaged in business dealings with
the employer as a customer, supplier, or otherwise. The object
of the secondary boycott is to cause the boycottee to cease doing
business with the employer.
Consider disputes other than labor disputes. Suppose Phyllis believes that, because you are gay, you are so immoral that she won't sell groceries to you in her grocery store. This is deplorable but not really threatening and coercive; you can still buy groceries from Chad's grocery store down the street. But suppose Phyllis convinces Chad's employees to strike unless Chad refuses you service as well. Suddenly the situation has taken on a much darker cast; Chad may have nothing against gay people, but he may start refusing you service simply as a matter of self-preservation. If this goes on, you may rapidly find yourself without sources of food or employment unless you recant your homosexuality.
That's interesting. A quick note. It's probably useful to distinguish "secondary boycott" and "secondary strike" here. The cited material sometimes interchanges those, seemingly due to the fact that the former has historically encompassed the latter. It seems plausible to me that someone might have differing views of those two things so they probably ought to be distinguished.
I guess a lot of meaning rests on the use of "coercive" here. What immediately comes to my mind when I see that term is violent threats directed towards someone so it's worth noting that isn't what's being described here. Rather it's being used to describe the effect of a boycott (in this case the secondary one) on the targeted (third party) business. That seems tautological to me because what is the point of a boycott if not to nonviolently coerce the targeted business?
So the court seems to be saying that if you view businesses as individuals then it is illegal to organize with the aim of coercing one person not to associate with another. The indirection (going via the consumer) doesn't seem to be the issue here. Your second link cites an electrical workers case where picketing with the express goal that the employer should terminate a subcontractor was deemed illegal.
Certainly I would agree if the coercive measure was violent, but is that really the case if it is exclusionary in nature? Would the court find the same way if I told my neighbors that they must not hang out with some guy who lives down the street or else they won't be welcome at my pool parties anymore? I certainly don't think that's a good way to conduct oneself but it seems inconsistent that somehow upon adding economic activity into the mix my speech can suddenly be restricted in ways it couldn't before.
To me it seems to fundamentally be a matter of free speech - engaging with other people and managing to bring them around to your way of thinking on the matter. If you hadn't managed to convince a large group of consumers (or non-unionized laborers) of the merit of both your position and your proposed course of action then they wouldn't be participating in the first place. It seems to me that the court is ignoring the part where your ideas won out as well as ignoring the individual agency of the consumers (or other laborers) and treating this as nothing more than direct action on the part of the organizing union when it is clearly much more than that.
To your example, I don't see any issue with Phyllis advocating and would note that she isn't going to get very far (sans coercion) unless Chad's employees, and by implication the community at large, generally agree with her. That is, Chad has to be the odd one out for this to work. That's not a pretty situation but I certainly don't want the government hamstringing community organization either. Free speech and freedom of (non)association can't only apply when it's convenient for those currently in power.
To my mind the issue with your example is the ability of a public facing business to discriminate along class boundaries (ex homosexuals) as opposed to on a purely individual basis (ex person who previously shoplifted). That would be in keeping with how other public areas are treated.
> Would the court find the same way if I told my neighbors that they must not hang out with some guy who lives down the street or else they won't be welcome at my pool parties anymore? (...) somehow upon adding economic activity into the mix my speech can suddenly be restricted in ways it couldn't before.
I think the issue is that, upon adding economic activity to the mix, your exercise of freedom of speech threatens every freedom of the guy down the street, because it threatens his survival. I don't think this is dependent on whether the community shunning is on a purely individual basis or along class boundaries. (I also don't think actively gay people are a "class" in any sense that shoplifters aren't.)
I agree that this reasoning is incompatible with a strong understanding of freedom of speech; it could be applied very broadly to restrict political activity.
Not shoplifters on a class basis "person who has shoplifted anywhere" but rather on an individual relation basis "person who has shoplifted from my business in the past".
Upon further thought my pool party example has a serious flaw that the instigator is coercing the actors to in turn coerce the third party. In a secondary boycott the instigators merely present their case along with proposed action and the consumers voluntarily coerce the third party if they are convinced. To fix my example then, I have an ongoing dispute, I inform my neighbors of this fact, I suggest (but certainly don't demand) that my neighbors might shun him if they feel similarly to myself, and the court then finds me to have violated the law.
"Vote with your wallet" is such a popular refrain when people advocate for regulation yet somehow the advocacy to organize that is what's being restricted by the courts here.
Consider an alternative example where activists call to boycott a large retailer because they have a subcontractor whose operations are acutely damaging the environment. Is that an illegal attempt to coerce market participants or is it protected speech (by the activists) followed by the freedom not to do business (by the consumer)? A union advocated secondary boycott seems substantially similar to me. (Is my example even legal in the US?)
> threatens every freedom of the guy down the street, because it threatens his survival.
That does seem like a reasonable principle to me but it appears inconsistent with how things currently work. Generalizing, it becomes the principle that market participants can only ever discriminate in directly relevant ways on the basis that survival in the modern world depends on the market. Thus advocacy to do otherwise is clearly illegal. Effectively it would be outlawing political activity carried out via market forces. In the environmental example above the activists would need to instead lobby to pass relevant regulations.
That said, I think a relevant analysis needs to account for the various examples of chickenization from the linked article. When laborers become supposed arms-length subcontractors (of subcontractors, of ...) in name only it seems apparent that capital is also coercing market participants in ways it should not be allowed to.
I never understood this. How can boycotts be banned? Seems inherently unconstitutional to me.
Not that it really matters to me in the sense that it's definitely an area where I'd do as I pleased regardless of the law. But I've always found the headlines that I see from time to time odd.