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Richard Blum

Abstract

In attacking § 8(b)(4)(ii)(B)’s ban on secondary labor picketing in support of a consumer boycott as a violation of the First Amendment, critics have repeatedly condemned the Supreme Court’s reliance on a supposed distinction between “pure speech” and “speech plus conduct,” such as a picket. The Court’s invocation of an “unlawful objectives” doctrine to defend banning speech contrary to public policy has also been repeatedly criticized. After all, picketing has been recognized as protected expressive activity and it is entirely lawful for consumers to choose to boycott the target of a picket. However, commentators have not sought to argue that striking is protected under the First Amendment. If striking can be deemed an unlawful objective, it is harder to argue against a ban on inducing or encouraging a strike, particularly by picketing. While I understood that the First Amendment arguments concerning appeals for a public boycott did not translate simply to the strike ban, it seemed to me that such a fundamental ban on the most basic aspect of collective power and expression called out for constitutional scrutiny, in particular, under the Thirteenth Amendment’s prohibition against involuntary servitude. Building primarily on James Gray Pope’s work on the Thirteenth Amendment and strikes, in particular, his discussion of the significance of the right to quit in evaluating a Thirteenth Amendment critique of antistrike prohibitions, I am seeking to demonstrate that the Thirteenth Amendment, buttressed by the First Amendment, calls into question the NLRA’s sweeping ban on secondary strikes, as well as on union communications to induce or encourage such strikes. Specifically, I scrutinize antistrike injunctions under the NLRA to consider how, in application, antistrike injunctions directly or indirectly coerce workers into servitude, regardless of the ability of workers to quit their jobs rather than return to work. I also look critically at the distinction that has been made between mass quits and strikes, as well as the reality of both an employer’s goals in seeking government intervention against a strike and the government’s role in aiding employers. In doing so, I argue that § 8(b)(4)(i)(B)’s prohibition on secondary strikes is enforced in a way that implicates the Thirteenth Amendment prohibition against involuntary servitude, and also the strikers’ and the picketers’ First Amendment rights to express and seek solidarity, respectively.

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