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.

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.

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