The Radicalism of Jennifer Abruzzo’s Free Speech Doctrine
The new NLRB General Counsel is trying to overthrow decades of precedent and expand secondary boycotts under a First Amendment pretext. The NLRB will probably let her. Will the courts?
|Topics:||First Amendment • Labor & Employment Law • Supreme Court|
|Sponsors:||Labor & Employment Law Practice Group|
Do unions have a First Amendment right to drag third parties into their labor disputes? New NLRB General Counsel Jennifer Abruzzo seems to think so. She’s trying to use a case she inherited from the Trump administration to peel back restrictions on union tactics aimed at neutral companies. Her theory defies decades of precedent, and her position would give unions a free hand to disrupt local economies. But she might succeed anyway.
The case grew out of a protest by a few janitors. The janitors worked in a building with multiple tenants, including a radio station, KGO Radio. A separate company, Harvest Properties, managed the building. Harvest contracted with a third company, Preferred Building Services, for janitorial work. Preferred then subcontracted with a fourth company, Ortiz Janitorial Services. Ortiz directly employed the janitors.
Unhappy with their working conditions—and egged on by a local chapter of the SEIU—the janitors set up picket lines outside the building. They patrolled back and forth, carried signs, and handed out leaflets. The signs mentioned only Preferred, which the janitors considered their joint employer (along with Ortiz). But the leaflets also targeted KGO Radio. They called on KGO Radio to accept its “corporate responsibility” for their working conditions. Afterward, the local SEIU president met with Harvest’s building manager. The president told the manager that the janitors would “keep showing up” until Harvest did something about their working conditions.
Ortiz later fired two of the protesting janitors. These two then filed an unfair-labor-practice charge with the National Labor Relations Board. But the Board rejected their charge because, it concluded, their picketing was an illegal secondary boycott. Secondary boycotts fall under section 8(b)(4)(ii)(B) of the National Labor Relations Act. That section makes it illegal for a union to “threaten, restrain, or coerce” a neutral third party to “cease doing business” with an employer. The Board has long recognized that this rule covers picketing with a secondary motive—i.e., picketing designed to pressure a neutral party. Citing the leaflets and the meeting with Harvest’s manager, the Board concluded that the janitors aimed their picketing not only at their employers, Preferred and Ortiz, but also at Harvest and KGO Radio. And because the picketing had an unlawful secondary motive, it was unprotected. The janitors could not claim they were fired for protected activity.
On review, the Ninth Circuit reversed. It disagreed that the picketing had a secondary motive. While the leaflets mentioned KGO Radio, the signs made clear that the janitors’ dispute was with Preferred. And while the union president did tell Harvest’s building manager that the janitors would “keep coming back,” he meant only that they would continue doing what they had a right to do—picketing to pressure their employer to improve their working conditions.
The janitors also pressed the court to rule for them on constitutional grounds. They argued that the Board’s rule against secondary picketing was overbroad because it burdened protected speech. But the court declined to address that issue. It saw no reason to reach any constitutional issues since it resolved the case on other grounds.
But on remand to the Board, the NLRB and Abruzzo revived the constitutional argument. In a position statement, Abruzzo argued that the Board should no longer consider picketing automatically “coercive.” That approach, she wrote, suppresses expression protected by the First Amendment. Instead, the Board should ban secondary picketing only when it confronts a third party with “ruin or substantial loss.”
From a historical perspective, that argument is constitutionally incoherent. Secondary boycotts—including secondary picketing—have been considered restraints on trade for more than 100 years. Restraints on trade were unlawful under the common law in both England and the United States, and Congress cemented their illegality into statute with the Sherman Act of 1890. Through the Sherman Act’s first thirty years, the Court continued treating secondary picketing as an unlawful restraint on trade. And while Congress eventually carved out most labor disputes from antitrust coverage, secondary boycotts remained unlawful under federal labor law. They were explicitly banned in the 1947 Taft-Hartley Act, and they have never been considered a legitimate, lawful way for unions to gain leverage. It therefore borders on the absurd to say that, as a historical matter, the First Amendment protects the right to engage in secondary boycotts.
These points likely carry no water with Abruzzo, who is no originalist. But her arguments fare no better even under the Court’s modern jurisprudence. In her memo, she relies on cases like NAACP v. Claiborne Hardware Co., Snyder v. Phelps, and McCullen v. Coakley, all of which involved picketing to publicize political viewpoints. She suggests that these decisions show that picketing itself is constitutionally protected, regardless of its effect on trade.
The Court, however, has consistently rejected that kind of argument. For example, in FTC v. Superior Court Trial Lawyers Association, the Court held that a group of lawyers violated section 5 of the FTC Act when they boycotted the District of Columbia’s indigent-defense program. The lawyers were unhappy with the program’s low rates and so struck to extract higher pay. When the FTC sued them, they argued that they were merely protecting indigents’ constitutional right to representation. Their strike, they said, grew out of their desire to secure better representation for poor defendants. They were therefore engaged in political activism, not trade restraint. In response, the Court agreed that their strike was in some sense expressive. They were protesting a government policy in part to advance an ideological viewpoint. But that expressive element did not insulate them from antitrust law. The government had a strong interest in clearing the market of restraints on trade. And that interest justified a ban on coordinated boycotts—even when those boycotts grew out of a political viewpoint.
Like Abruzzo, the lawyers relied in part on Claiborne. Claiborne held that certain coordinated boycotts were constitutionally protected. But Claiborne, the Court explained, was different from the lawyers’ case. The protestors in Claiborne had only political goals; they were trying to end racially discriminatory practices in the local market. They were community outsiders. And as such, they stood to gain no immediate economic benefit from their protests. The lawyers, by contrast, were trying to increase their own pay by restricting competition in the market for legal services. That kind of coordination was illegal even if it also carried a whiff of political speech.
The same is true of union-backed secondary boycotts. When unions stage secondary boycotts, they restrain trade. They cow employers into submission by dragging third parties into the dispute. In the past, they have even used secondary boycotts to extend their demands across whole markets. They have effectively forced all employers in the market to pay union rates, thus eliminating competition over wages. But even when they conduct boycotts on a smaller scale, they still stand to gain directly. They protect their financial interests by either insulating themselves from competition or forcing an employer to accede to their demands. Either way, secondary boycotts are different from the political protests blessed in Claiborne, Snyder, and Coakley. They are more like the economic protectionism condemned in Trial Lawyers Association.
Abruzzo would sweep these distinctions aside and replace them with a “ruin or substantial loss” standard. But we should keep in mind where that standard comes from. In NLRB v. Fruit & Vegetable Packers & Warehousemen (Tree Fruits), the Court held that section 8(b)(4)(ii)(B) did not apply to certain peaceful handbilling. Handbilling was outside the section’s scope, the Court said, when the protestors merely urged consumers not to buy an employer’s products. That was true even when the employer’s products were sold in a third party’s store. The Court later clarified that product picketing could violate the secondary-boycott rule, but only when it confronted the third party with ruin or substantial loss.
In her memo, Abruzzo relies heavily on these decisions. But she fails to mention that they involved only product protests. And properly understood, product protests aren’t secondary boycotts at all. When a union protests a product, it merely persuades consumers not to buy the employer’s goods. It affects the third party only incidentally. The third party may sell less of a single product, but the rest of its business remains unscathed. It feels no real pressure unless the employer’s product makes up a large part of its business. Of course, when the third party depends on the employer’s products, it feels a great deal of pressure. But in that case, the Court has made clear that product protests are unlawful secondary boycotts—precisely because the third party feels pressure.
In short, Abruzzo’s memo plays fast and loose with precedent. It tries to stretch a narrow exception for peaceful product handbilling to cover a broad range of union trade restraints. That should not surprise us: unions and their political allies have long chafed against the limits on secondary boycotts. And though Abruzzo has been in office for only a few short months, she has already shown a willingness to depart from precedent in the name of pushing a pro-union agenda. So it was only a matter of time before she started testing the limits on secondary boycotts.
The Board, now stocked with Joe Biden appointees, may even agree with her. But no court should fail to recognize the artifice in her argument. The idea that secondary boycotts amount to protected speech is constitutionally illiterate. It is ends-based advocacy parading as legal reasoning. It beggars credulity and cheapens the First Amendment. Everyone who cares about free markets and respect for precedent should hope that courts reject it.
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Related CasesSnyder v Phelps
McCullen v. Coakley