Secondary Boycott

SECONDARY BOYCOTT

A group's refusal to work for, purchase from, or handle the products of a business with which the group has no dispute.

A secondary boycott is an attempt to influence the actions of one business by exerting pressure on another business. For example, assume that a group has a complaint against the Acme Company. Assume further that the Widget Company is the major supplier to the Acme Company. If the complaining group informs the Widget Company that it will persuade the public to stop doing business with the company unless it stops doing business with Acme Company, such a boycott of the Widget Company would be a secondary boycott. The intended effect of such a boycott would be to influence the actions of Acme Company by organizing against its major supplier.

labor unions are the most common practitioners of secondary boycotts. Typically a labor union involved in a dispute with an employer will arrange a secondary boycott if less drastic measures to reach a satisfactory accord with the employer have been ineffective. Secondary boycotts have two main forms: a secondary consumer boycott, in which the union appeals to consumers to withhold patronage of a business, and a secondary employee boycott, in which the union dissuades employees from working for a particular business.

Generally a secondary boycott is considered an unfair labor practice when it is organized by a labor union. Congress first acted to prohibit secondary boycotts in the labor-management relations act of 1947 (29 U.S.C.A. § 141 et seq.), also called the taft-hartley act. The Taft-Hartley Act was a set of amendments to the National Labor Relations Act, also known as the wagner act of 1935 (29 U.S.C.A. § 151 et seq.). Congress limits the right of labor unions to conduct secondary boycotts because such activity is considered basically unfair and because it can have a devastating effect on intrastate and interstate commerce and the general state of the economy.

On the federal level, the right of a labor union to arrange a secondary boycott is limited by section 8(b)(4) of the National Labor Relations Act. Under the act, no labor union may threaten, coerce, or restrain any person engaged in commerce in order to force that person to cease doing business with any other person (29 U.S.C.A. § 158(b)(4)(ii)(B)). Secondary boycotts may be enjoined, or stopped, by order of a federal court, and an aggrieved business may file suit in court against the party initiating the secondary boycott to recover any monetary damages that resulted. If the federal act somehow does not cover the actions of a labor union in a particular case, an aggrieved business may seek relief under state laws.

The statutory limitation on the right of labor unions to instigate a secondary boycott is an exception to the guarantee of free speech contained in the first amendment to the U.S. Constitution. But in balancing free speech rights against the rights of secondary employers and the right of Congress to manage interstate commerce, Congress has carved out an important exception to the ban on secondary boycotts by labor unions. Under this section of the act, a labor union may induce a secondary boycott if the information dispensed by the labor union is truthful, does not cause a work stoppage, and has the purpose of informing the general public that the secondary neutral employer distributes a product that is produced by the primary employer. This exception is called the publicity exception to the ban on secondary boycotts by labor unions.

The publicity proviso does not cover picketing. Picketing is a physical presence at a business to publicize a labor dispute, influence customers and employees, or show a union's desire to represent employees. The U.S. Supreme Court has held that Congress may prohibit a union from picketing against a secondary employer if the picketing would predictably result in financial ruin for the picketed secondary employer (National Labor Relations Board v. Retail Store Employees, Local 1001 [Safeco], 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377 [1980]). The Supreme Court also has ruled that the publicity exception does not apply to the distribution of handbills that encourage a boycott of a shopping mall department store if the dispute is with the company constructing the department store and the boycott includes cotenants of the shopping mall who had no relationship with the construction company (Edward J. DeBartolo Corp. v. National Labor Relations Board, 463 U.S. 147, 103 S. Ct. 2926, 77 L. Ed. 2d 535 [1983]). In 1988 the High Court held that section 158(b)(4)(ii)(B) of 29 U.S.C.A. did not prohibit the peaceful distribution of handbills at a shopping mall urging consumers not to shop at the mall until the mall's owner promised that all mall construction would be done by contractors paying fair wages (Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 108 S. Ct. 1392, 99 L. Ed. 2d 645 [1988]). According to the Court, such activity did not constitute threats, coercion, or restraint and therefore did not fall within the prohibition of the National Labor Relations Act.

further readings

Beard, Brian K. 1989. "Secondary Boycotts After DeBartolo : Has the Supreme Court Handed Unions a Powerful New Weapon?" Iowa Law Review 75 (October).

Brown, Steven L. 1989. "Nonpicketing Labor Publicity Not Within the Secondary-Boycott Prohibition of Section 8(b)(4) of the National Labor Relations Act: Edward J. Debartolo Corporation v. Florida Gulf Coast Building and Construction Trades Council. " Boston College Law Review 31 (December).

Goldman, Lee. 1983. "The First Amendment and Nonpicketing Labor Publicity under Section 8(b)(4)(ii)(B) of the National Labor Relations Act." Vanderbilt Law Review 36 (November).

Pettibone, Jon E. 2003. "Bannering Neutrals—Coercive Secondary Boycott or Free Speech?" The Labor Lawyer 18 (winter-spring).

cross-references

Labor Law; Strike.