SECTION 8(b)(4) OF THE NLRA IS UNCONSTITUTIONAL: THE NLRB SHOULD FIX IT
Workers organized 85% of the construction industry outside of the deep south between 1925 and 1947. Workers did this by focusing protests on whole companies, not just job sites. For instance, if a grocery store chain built one store non-union, Unions would protest at the job site and at the chain’s other stores. At that time, these protests came in the form of pickets. This tactic was so effective that when the Republicans took over Congress in the 1946 elections, they passed the Taft-Hartley amendments to the NLRA over President Truman’s veto to make it illegal. Section 8(b)(4) of the Act provides that:
It shall be an unfair labor practice for a labor organization or its agents … to threaten, coerce, or restrain any person … or … industry where in either case an object thereof is … requiring any person to cease doing business with any other person … or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees ….
The problem is the word “coerce” does not carry its usual meaning. In normal conversation the word “coerce” means violence or a threat of violence. Here, the word “coerce” means picketing. While it is true that there was and is occasionally violence on picket lines, the overwhelming majority of picket lines are entirely peaceful. When picket lines turn violent, it is usually because of company, police or military authorities. Federal Courts and the National Labor Relations Board (“Board”) have universally accepted the unfair and outdated stereotype that picket lines are violent. The government cannot regulate speech under the First Amendment but it can regulate action. Therefore, the courts and Board simply call picketing “speech plus action” so they can ban picketing. This is unfair, outdated and unconstitutional.
Here is a hypothetical example. Safeway hires a non-union contractor to install a hardwood floor made of endangered Hawaiian Koa in its headquarters office in Pleasanton. Construction Unions can legally picket the jobsite because the primary target, the contractor, is present. However, the Unions cannot picket the Safeway store down the street in Pleasanton. The primary employer, the contractor, is not present and Safeway is an “innocent” secondary party. Unions cannot picket irresponsible corporate behavior.
Even more unfairly, if the Committee to Save the Koa Trees learns of the job, they can picket legally at both the work site and at every other Safeway store in Northern California. This is because the National Labor Relations Act does not apply to environmental organizations.
The Board should fix this. The Obama Board has made great progress in modernizing the interpretation of other parts of the Act. The Board has broadened a Union’s right to information, strengthened enforcement of employers’ obligation to bargain, has established new and better election rules and has even ruled that banners are not picket signs.
It is time for the Board to take the next step in modernizing the Act and rule that a peaceful picket line is not coercion.
By Matt Gauger | June 23, 2015