Secondary Picketing, Trade Restraints, and the First Amendment: A Historical and Practical Case for Legal Stability

Authors

Abstract

Secondary picketing is picketing by a union aimed at someone other than the employer. It aims to coerce the other person to cut ties with the employer to gain leverage in a labor dispute. Today, secondary picketing is usually illegal; it is an unfair labor practice under section 8(b)(4)(ii)(B) of the National Labor Relations Act. If a union pickets a neutral third party, it can be subject to unfair-labor-practice charges, or even an injunction. This article explores why the Court continues to draw that distinction. It surveys the arguments for liberalizing picketing rules, and it places them in historical context. It also shows how a constitutional exemption for secondary picketing could threaten other antitrust rules. No constitutional exemption stays in its box; constitutional rulings are blunt instruments, and this one would be no different. Before courts accept a right to picket, they should consider how such a right would affect other longstanding rules against trade restraints – effects that could be dire, far-reaching, and even inconsistent with the labor movement’s goals.

Recommended Citation

(2022) "Secondary Picketing, Trade Restraints, and the First Amendment: A Historical and Practical Case for Legal Stability," Hofstra Labor & Employment Law Journal: Vol. 40: Iss. 1, Article 2.
Available at: https://scholarlycommons.law.hofstra.edu/hlelj/vol40/iss1/2