Secondary Boycotts and Ally Doctrine in the U.S. Law of Strikes

By Ravenna, Jacopo Busnach | New Zealand Journal of Employment Relations (Online), September 1, 2009 | Go to article overview

Secondary Boycotts and Ally Doctrine in the U.S. Law of Strikes


Ravenna, Jacopo Busnach, New Zealand Journal of Employment Relations (Online)


Abstract

The paper aims to schematically illustrate the legal genesis of the concept of secondary boycott in U.S. statutory law and its application in the relevant case law. For this purpose, a brief overview of the historical origin of the right to strike is provided, along with the analysis of the evolutionary process which led to its inclusion in the Constitutional Charts of many European countries. This introduction is followed by a description of the legislative steps towards the enactment of the Wagner Act (1935), as amended by the Taft-Hartley Act (1947), and of the Landrum-Griffin Act (1959), especially focusing on the different sanctions which may spring from group ostracism against neutral employers. The distinctiveness of the so-called "ally doctrine" as regards the labour unions' liability for instigating secondary boycotts is further portrayed, as an exception to the guarantee of free speech contained in the First Amendment to the U.S. Constitution.

Introduction

When employers undergo trade unions' collective actions such as strikes or boycotts, they always strive to reduce, as much as possible, the impact that the work stoppage can provoke on the going concern. In fact, one of the most critical issues arising from a strike lies in the fact that work stoppages may permanently affect the firm's productivity (Bock, 2005).

Concerned about the risk that such collective actions could affect national security, legislators throughout the ages have been adopting measures aimed at restricting strikes, ranging from civil sanctions to total ban (Chepaitis , 1997). All the same, the constant tendency for almost all legal systems is by now to grant workers valuable tools in order to counterbalance the inescapable disproportion in bargaining power between the two negotiating parties in employment contracts. This trend has been translated into regulations which have increasingly equipped workers and their representatives, namely trade unions, with appropriate legal protection against employers' retaliatory conducts. This development has been suddenly boosted by the drafting of constitutional principles protecting the right to strike (Pope, 1999). However, it should be noted that almost all subsequent, both legislative and regulatory, interventions have been aimed at limiting the sphere of application of such right.

Deprived of workers, the employer is likely to hunt for other sources in order to replace the striking labour force. If these attempts succeed, the effect of the strike is likely to fade away and thus the very significance of the striking workers' grievances - which originally prompted the strike - tends to blur. Meanwhile, on the other side of the river, unions calling a strike strive to make it successful and do their best to prevent employers from getting outside workers. This mostly defensive counter-activity, which targets the secondary means used by the primary employer, is often referred to as a "secondary boycott". Its essence was defined as "a combination to influence A by exerting some sort of economic or social pressure against persons who deal with A" (Frankfurter and Green, 1930 as cited in Dereshinsky, Berkowitz and Miscimarra, 1981).

Generally speaking, these kinds of activities are deemed to be unlawful under U.S. law, the system with which this article is chiefly concerned. In particular, such practices are normally outlawed to the extent to which they follow the notion of "unfair labour practice" set forth on a statutory basis, although this notion is often construed differently by the courts. Both aspects of the issue, and the peculiar tenets of the "ally doctrine", will be analysed in the following paragraphs.

This paper starts with describing, in unbiased terms, the legislative process which led to the recognition of the right to strike by the major legal systems worldwide. In particular, within the U.S. framework, the legislator had to cope with such recognition in order to make it consistent with the privileges traditionally claimed by the powerful industrial lobbies. …

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