Academic journal article Journal of Corporation Law

Hold Up the Sign and Lie like a Rug: How Secondary Boycotts Received Another Lease on Life

Academic journal article Journal of Corporation Law

Hold Up the Sign and Lie like a Rug: How Secondary Boycotts Received Another Lease on Life

Article excerpt

I. INTRODUCTION....................179

II. BACKGROUND....................180

A. The Early Years....................180

B. The New Deal and the NLRA....................182

C. secondary Boycotts Following the NLRA ....................184

d). DeBartolo Changes the Rules, Again....................185

E. Bending the Truth: How Literal Must a Banner Be?....................187

III. ANALYSIS ....................188

A. Weaseling Out the Rat....................188

B. The Dissent Understands....................191

IV. RECOMMENDATION....................193

V. CONCLUSION....................195

I. INTRODUCTION

Since the Industrial Revolution, the labor movement in America has both blossomed and fallen. In the past one hundred years, Congress and the courts have battled over what is considered proper labor practice and organization, and what is deemed unfair in the eyes of the law. By the turn of the 21st century, however, many of the once hotly debated labor issues fizzled and disappeared under the growing use of stock options and employee investment in corporations. Amidst this steady decline, however, one of the more surreptitious labor practices began to rear its head once again: secondary boycotts. These boycotts, which occur when a union puts pressure on a neutral employer with whom it has no labor dispute to affect that neutral employer's relationship with the union's targeted employer,1 can have potentially devastating effects. This Note examines the recent decision in Overstreet v. United Brotherhood of Carpenters,2 and specifically how it further stretches the bounds of what is permissible union activity when attempting a secondary boycott. Part II of this Note summarizes the long and conflicted history of secondary boycotts and their application in union work. Part III focuses on the Ninth Circuit's decision in Overstreet, and how its reasoning about fraudulent wording on banners has further pushed the limits of what is permissible for boycotts. Finally, Part IV looks at how recent recommendations by Administrative Law Judges working for the National Labor Relations Board (NLRB) provide us with a better solution, one that would curtail secondary boycotts, as was intended by Congress when it amended the National Labor Relations Act in the late 1940s.

II. BACKGROUND

A. The Early Years

When beginning a discussion of secondary boycotts, the best place to start is by defining the term itself. As mentioned above, a secondary boycott is union pressure targeted at a neutral business or person with whom the union has no true labor dispute.3 The purpose of this type of action, which can take the form of threats, picketing, and other types of coercion, is to put pressure on the neutral employer to cease doing business with the primary employer or individual with whom the union truly has a labor dispute.4 For example, a union's primary target may be a book bindery without a union, so instead of boycotting the bindery directly, the union instead pickets the warehouse where the bindery's books are held for shipping, or the bookstores that carry the books. Ideally, if the secondary boycott succeeds, the neutral party will encourage the targeted party to negotiate with the union, just so it can resume a normal course of business without the organizers constantly protesting.

Although the concept appears confusing, the damage caused by a secondary boycott can be devastating. Both the neutral business and the primary target of the boycott stand to lose customers, money, and their reputations, due to the union protests.5 This potential danger has not gone unnoticed by Congress or the courts, and thus, the secondary boycott has endured a long and difficult journey through the 20th century.6

Even before the National Labor Relations Act (NLRA) effectively outlawed secondary boycotts in the 1940s, courts found creative methods to ensure that labor activity did not wreak havoc on the burgeoning, post-Industrial Revolution America,7 relying in particular on the Sherman Antitrust Act's definition that any "contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States," was illegal. …

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