“They Outlawed Solidarity!” Part 22...“They Outlawed Solidarity!”1 Part 22 My active interest in the Thirteenth Amendment began several years ago when a ... the actions of

Richard Blum, Thirteenth Amendment Conference, Spring 2015

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“They Outlawed Solidarity!”1 Part 22

My active interest in the Thirteenth Amendment began several years ago when a

colleague and I, staff attorneys in the Employment Law Unit of The Legal Aid Society in

New York, assisted a pair of criminal defense attorneys who were representing a lawyer and

his clients, ten nurses from the Philippines, who were being prosecuted for conspiracy to

endanger the well-being of the residents of the nursing home where the nurses had worked.

Specifically, they were being prosecuted because the nurses had quit their jobs at the nursing

home all together (while off duty) after being advised of their right to do so by the lawyer.

Prior to quitting, the nurses had repeatedly and unsuccessfully complained about a variety of

labor abuses and unconscionable working conditions at the nursing home and felt they had

run out of options. In response to their quitting, the nursing home owners failed to convince

the state licensing authorities that the nurses were guilty of misconduct and failed to obtain a

civil injunction against the nurses. However, the owners managed to convince the Suffolk

County district attorney to prosecute both the lawyer and the nurses for conspiracy. The

overt acts alleged in the indictment were that the nurses had met with the lawyer and on his

advice had agreed to file a discrimination complaint against the nursing home; the lawyer

subsequently filed a discrimination complaint on their behalf with the Department of Justice;

and the nurses quit their jobs.

1 Frances Fox Piven, on many occasions, referring to the Taft-Hartley Act

2 This paper picks up where a previous paper of mine left off. The first (unpublished) paper addressed First

Amendment critiques of the restrictions on secondary picketing under Section 8(b)(4)(ii)(B) of the NLRA, that is, picketing in support of a secondary consumer boycott.


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In the end, we were able to obtain a writ of prohibition from a state appellate court

enjoining the trial judge and prosecutor from proceeding with the prosecution on the grounds

that it violated the Thirteenth Amendment rights of the nurses and the First Amendment

rights of both the nurses and their lawyer. See Vinluan v. Doyle, 60 A.D.3d 237 (2d Dep’t

2009).3

One of the most interesting developments in the case came well before I got involved,

in the trial judge’s denial of a motion to dismiss the indictment on Thirteenth Amendment

grounds. The judge ruled that the district attorney, in prosecuting the nurses for quitting, was

not seeking to compel defendants’ continued employment by any entity. He also ruled that

“[w]hile a nurse may, often times, have a right to unilaterally resign from his or her position

of employment, the actions of these defendants, acting together with forethought and

planning, was not a simple resignation from a nursing position. The consequences of their

mass resignation could have had disastrous consequences for the very patients with whose

care they were entrusted.”4 He repeatedly stated that it was precisely because the nurses had

acted “en masse” that there was sufficient evidence that the nurses had committed a crime. I

found this decision very troubling. It struck me intuitively that if one person has the right to

withhold her labor, then acting in concert to withhold labor, whether as a quit or a strike,

should be constitutionally and statutorily protected.

3 I would be remiss if I did not mention the centrality of Robert Steinfeld’s work in the papers that we filed. At our

request, Professor Steinfeld even wrote to the Governor to request the appointment of a special prosecutor to take over the case because of its Thirteenth Amendment implications. 4 Unpublished decision of Judge Doyle, dated September 28, 2007. The State Education Department, the agency

responsible for investigating and adjudicating allegations of nurse misconduct, had already cleared all of the defendants of wrongdoing.


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More recently, in writing a constitutional critique of the NLRA’s ban on secondary

labor picketing in support of consumer boycotts under NLRA Section 8(b)(4)(ii)(B), I came

to see that most writers on this issue limited their critique to that ban and chose not to address

the ban on secondary strikes in the companion Section 8(b)(4)(i)(B), even though the latter

ban is both more sweeping and consequential for unions than the former. The strike ban not

only prohibits labor organizations from engaging in secondary strikes, it even prohibits them

from inducing or encouraging such strikes.5 Clearly, in trying to clip labor’s wings, the 1947

and 1959 Congresses wanted to make sure that unions could not deploy their ultimate

weapon, the withholding of labor, in solidarity with one another, both because it is often

labor’s most effective tool and because there exists a solidaristic tradition of honoring

picketing lines. Thus, Congress basically placed on gag order on unions as a sweeping

prophylactic to prevent any communication to other unions seeking solidarity in the most

basic way a union can deliver it, a work stoppage.

In attacking Section 8(b)(4)(ii)(B)’s ban on secondary labor picketing in support of a

consumer boycott, critics have repeatedly criticized the Court’s reliance on a supposed

distinction between “pure speech” and “speech plus conduct,” such as a picket, as well as the

Court’s invocation of an “unlawful objectives” doctrine to defend banning speech contrary to

public policy.6 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.7 However,

5 Section 8(b)(4)(ii)(B), in contrast, bans unions from actions that “threaten, coerce, or restrain” others from

engaging in a boycott. 6 See, e.g., Cynthia Estlund, “Labor Picketing and Commercial Speech: Free Enterprise Values in the Doctrine of

Free Speech,” 91 Yale L. J. 938 (1982); Mark Schneider, “Peaceful Labor Picketing and the First Amendment,” 82 Colum. L. Rev. 1469 (1982). 7 See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council and NLRB

(DeBartolo II), 485 U.S. 568 (1988); NAACP v. Claiborne Hardware Company, 458 U.S. 886 (1982); Thornhill v.


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commentators have not sought to argue that striking is protected under the First Amendment.

And if striking can be deemed an unlawful objective, then 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, at the same time, 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.

Building primarily on the work of James Gray Pope on the Thirteenth Amendment

and strikes,8 in particular, his discussion of the significance of the right to quit in evaluating a

Thirteenth Amendment critique of anti-strike 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. In particular, I scrutinize anti-strike injunctions under the NLRA

and one under New York State’s Civil Service Law to consider how, in application, anti-

strike injunctions directly or indirectly coerce workers into servitude, regardless of the ability

of workers to quit their jobs rather than return to work. Looking critically at the distinction

that has been made between mass quits and strikes, as well as the reality of both the

secondary employer’s goals in seeking government intervention against a strike and the

government’s role in coercing accomplishment of those goals, I argue that Section

8(b)(4)(i)(B)’s prohibition on secondary strikes is enforced in a way that implicates the

Alabama, 310 U.S. 88 (1940); see also United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, (Eliason & Knuth), 355 NLRB No. 159 (2010). 8 James Gray Pope, “Contract, Race, and Freedom of Labor in the Constitutional Law of ‘Involuntary Servitude,’”

Yale L. J., Vol. 119:1474 (2010).


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Thirteenth Amendment prohibition against involuntary servitude and the strikers’ and the

picketers’ First Amendment rights to express and seek solidarity respectively.

In the first section, I briefly review Pope’s arguments concerning labor rights under

the Thirteenth Amendment. I focus on Pope’s analysis of the role of the ability to quit in

evaluating a possible Thirteenth Amendment right to strike. In the following section, I look

critically at actual anti-strike injunctions to see whom they enjoined and what they enjoined

them from doing. Finally, in light of that analysis, I offer a Thirteenth and First Amendment

critique of broadly prohibiting secondary strikes and prohibiting communication appealing

for solidaristic strikes.

Labor Rights and the Prohibition Against Involuntary Servitude

Over one hundred years ago, in Bailey v. Alabama,9 the Supreme Court struck down

under the Thirteenth Amendment – and the federal Anti-peonage Act implementing it – a

Florida statute that made it a crime to “fraudulently induce” receipt of an advance payment

for a contract of service without then performing the work or repaying the advance and that

treated the refusal to perform the work or repay as prima facie evidence of intent to defraud.

In short, the law treated quitting by poor workers as presumptively criminal. Bailey was

prosecuted because he had worked just over a month under a contract of service when he quit

and he had not repaid the advance he had received.

In reaching its holding, the Bailey Court declared that

9 219 U.S. 219 (1911).


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The plain intention [of the Thirteenth Amendment] was to abolish slavery of

whatever name and form and all its badges and incidents; to render impossible any

state of bondage; to make labor free, by prohibiting that control by which the personal

service of one man is disposed of or coerced for another's benefit, which is the

essence of involuntary servitude.10

The Court also declared that “[w]hile the immediate concern [of those who enacted the

Thirteenth Amendment] was with African slavery, the Amendment was not limited to that. It

was a charter of universal civil freedom for all persons, of whatever race, color, or estate,

under the flag.11

Three decades later, in Pollock v. Williams,12

the Supreme Court struck down a

similar criminal statute under the Thirteenth Amendment, reiterating that the aim of the

Thirteenth Amendment and the federal Anti-peonage Act “was not merely to end slavery but

to maintain a system of completely free and voluntary labor throughout the United States.”13

In a critical passage, the Court declared that

in general the defense against oppressive hours, pay, working conditions, or treatment is

the right to change employers. When the master can compel and the laborer cannot

escape the obligation to go on, there is no power below to redress and no incentive above

to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression

of working conditions and living standards affects not only the laborer under the system,

but every other with whom his labor comes in competition.14

In keeping with these principles, the Court held the type of statute before it to be invalid not

only because of the presumption of intent, but because a statute “may not make failure to

10

219 U.S. at 241. 11

Id. at 240-41. 12

322 U.S. 4 (1944). 13

Id. at 17. 14

Id. at 18.


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labor in discharge of a debt any part of a crime. It may not directly or indirectly command

involuntary servitude, even if it was voluntarily contracted for.”15

Interpreting the principles embedded in the above passages from Bailey and Pollock,

James Pope argues for a broad reading of the Thirteenth Amendment’s prohibition against

“involuntary servitude.”16

Looking at the Court’s language, particularly the Pollock Court’s

explanation of the significance of the right to change employers, Pope identifies domination

and exploitation as the twin evils that the Supreme Court found that the Thirteenth

Amendment sought to end. Unchecked employer control makes for unfree labor and

servitude, consisting of a “harsh overlordship” with “unwholesome conditions,” in particular,

where one’s labor is “disposed of” for the benefit of another.17

Pope observes that labor does not constitute “involuntary servitude” if it is either

voluntary or not servitude. He argues that Pollock, by concerning itself with domination and

exploitation, goes beyond the question of escaping servitude to addressing what constitutes

servitude.18

Therefore, Pope sets out to discern what labor conditions would constitute

servitude or, on the flip side of the coin, what conditions are necessary to create a system of

genuinely free labor. Pope sees in the Thirteenth Amendment, as characterized in Bailey and

Pollock, not simply an admonition to eliminate any specific instances of unfree labor, for

example, where a worker is punished for trying to quit or change employers, but also a

mandate to create an aggregate system of free labor relations, a system without the

domination and exploitation addressed by the Court in both Bailey and Pollock.

15

Id. at 24. 16

James Gray Pope, “Contract, Race, and Freedom of Labor in the Constitutional Law of ‘Involuntary Servitude,’” The Yale Law Journal, Vol. 119:1474 (2010). 17

Pope, supra note 8, at 1502-03. 18

Id. at 1503.


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Drawing on the work of Lea VanderVelde and Robert Steinfeld, Pope reviews the

history of the Thirteenth Amendment and its implementation to identify arrangements that

failed the test of free labor.19

On the one hand, VanderVelde has detailed the broader labor

vision articulated by various supporters of the Thirteenth Amendment.20

On the other hand,

Steinfeld has demonstrated that the question of what economic pressure against employees

changing employers is acceptable under the Thirteenth Amendment and what forms of

pressure are too coercive has been hotly contested. While penal sanctions for breaches of

labor contracts came to be prohibited while ordinary damages for breach of labor contracts

has remained available, there has been much room for debate about remedies in between, for

example, negative injunctions prohibiting work for others,21

payment in the entirety at the

end of a term of service, and contractual forfeiture provisions, some of which have been

resolved by courts and others by statute.22

Going forward, in looking for guidance on how to determine what constitutes

“servitude,” Pope draws again on VanderVelde, in arguing for what he calls a “functional

approach,” the approach he ascribes to Pollock. Contrasted with a narrow “definitional

approach” that provides “the irreducible minimum of constitutional protection,” such as the

right to quit, to negate elements of unfree labor when they present themselves, the functional

approach looks to determine the rights necessary to creating a system of free labor. “The

19

Id. at 1507-09 (citing Lea VanderVelde, “The Labor Vision of the Thirteenth Amendment,” 138 U. Pa. L. Rev. 437 (1989); Robert J. Steinfeld, Coercion Contract and Free Labor in the Nineteenth Century, Cambridge Historical Studies in American Law and Society: New York (2001)). 20

VanderVelde, supra note 19. 21

See, e.g., Shaw v. Fisher, 113 S.C. 287 (1920) (reversing under the Thirteenth Amendment an award of damages to one employer by another for hiring the first employer’s worker); see also Thompson v. Box, 147 Miss. 1 (1927) (same). 22

Steinfeld, supra note 19, at 285-89, 291-308. Even the prohibition on specific performance, inherited from the British, developed with different rationales over time, eventually adding the prevention of contractual slavery to the list. Id. at 55-57.


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workers’ power and the employers’ incentive are generated not at the individual level,

between a particular laborer and employer, but in the aggregate, through the workings of the

free labor system.”23

After all, unlike the Fourteenth Amendment, the Thirteenth

Amendment is not written in terms of the rights of individuals, e.g., to equal protection of the

laws or due process of law, but rather declares that the institutions of slavery and involuntary

servitude shall not exist.

After a detailed discussion of the history and case law concerning the Thirteenth

Amendment, Pope reaches the question that is key to the discussion below of anti-strike

injunctions: whether the right to quit, without more, provides workers with the power below

and employers the incentive above to provide employment that rises above servitude.24

He

argues that the answers depends on the alternatives available to the quitting worker, in

particular, whether either self-employment, no employment, or other employment are

available.25

The first two he dismisses as unrealistic and insufficient respectively for most

people,26

but he takes a different approach with the third that proves critical to my analysis of

anti-strike prohibitions and injunctions.

23

Pope, supra note 8, at 1517. 24

Id. at 1527. 25

See also Steinfeld, supra note 19, at 284, commenting on Pollock: “A right of exit may indeed represent a formidable check on the abuse of power, as long as the extra-contractual alternatives to continuing in the job are better than the terms under which the work is offered. However, if those alternatives are worse than the conditions of work, then the absence of formal legal remedies to strictly enforce a contract may make no difference in the real power of a worker to leave.” 26

Pope, supra note 8, at 1528-33. It might be noted that employers are increasingly trying to blur the line between employees and “independent contractors,” treating workers who might think of themselves as employees as if they were in business for themselves. This issue of reclassification and misclassification is a highly contested area of legal practice these days, but it should not affect Pope’s analysis. Even if workers are being lawfully reclassified as independent contractors, their bargaining power with respect to the businesses for which they perform work is almost exactly like that of an employee, so the alternative employment analysis should apply. As a long-time welfare rights litigator and unemployment insurance practitioner, I can attest to the unavailability of a guaranteed public safety net for those who quit without other employment.


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In keeping with his functional approach, on the issue of changing employers, Pope

insists that the Thirteenth Amendment, as interpreted in Bailey and Pollock, goes beyond a

specific employer-employee relationship, but looks at the entire system of labor. As noted

above, the text of the amendment declares that slavery and involuntary servitude “shall not

exist,” and not simply that any given individual has the right not be enslaved or subjected to

involuntary servitude. After all, he argues, if the only other employment options available

also present conditions of servitude, the right to change employers would be insufficient to

prevent involuntary servitude.27

Most important, in assessing the necessary conditions of a free labor system, Pope

looks beyond market rights, that is, the right and power of workers to affect employers’

practices by exercising their ability to exit, to quit a job and change employers within the

existing labor market. Pope identifies two examples of government, i.e., nonmarket,

interventions that have built the necessary kinds of labor rights: 1) legislating standards, as

in the Fair Labor Standards Act, and 2) protecting nonmarket procedural rights, such as the

right to organize and strike.28

Given that context, Pope insists that strict scrutiny should be

applied to laws that limit those procedural rights.29

Having argued that the ability to quit and change employers may not be sufficient to

provide the power below and the incentive above to prevent a harsh overlordship or

unwholesome conditions systemically, and that nonmarket procedural rights of labor may be

necessary to meet that standard, Pope specifically addresses whether the Thirteenth

Amendment provides a basis for a right to strike. He reviews the limited case law on strikes

27

Id. at 1534. 28

Id. at 1539. 29

Id. at 1541.


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and the Thirteenth Amendment, finding it inconclusive. On the one hand, the Supreme Court

found a right to strike in Charles Wolff Packing Co. v. Court of Indus. Relations,30

even

though the workers in that case had had a right to quit. But on the other hand, its ruling was

based on now-rejected substantive due process grounds, rather than on the Thirteenth

Amendment. At the same time, Pope points out that the reasoning of the Court, under

whatever doctrinal label, sounds more like that of Bailey than substantive due process,

emphasizing the workers’ need to counter the domination of the employer, not the supposed

freedom of workers to contract.31

Pope also notes that the Court in UAW v. Wisconsin Employment Relations Bd.

(WERB),32

held that the Thirteenth Amendment did not prohibit states from outlawing

intermittent, unannounced strikes. However, as Pope also notes, in approving the state law,

the WERB Court also commented that nothing in the statute or order at issue made it a crime

“to abandon work individually (compare Pollock v. Williams, 322 U.S. 4) or collectively.”33

Thus, the Court did not take on the key question of whether a prohibition on “abandoning

work” collectively would survive Thirteenth Amendment scrutiny or what would constitute

“abandonment” for these purposes.34

In looking at lower federal court and state court decisions, Pope finds conflicted

trends over time. He cites several cases that found either no right to cease work

collectively,35

or no right to quit temporarily, rather than permanently,36

though none of the

30

262 U.S. 522 (1923). 31

Pope, supra note 8, at 1543. 32

336 U.S. 245 (1949, overruled on other grounds, Lodge 76, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976). 33

Id. at 251. 34

Pope, supra note 8, at 1544-45. 35

Id. at 1546, n.285.


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cases actually offers much reasoning to defend those conclusions. These two axes, quitting

individually versus collectively, and ceasing to work for an employer permanently versus

temporarily in order to apply pressure become the focus of Pope’s remaining analysis and

become central in the analysis of anti-strike prohibitions and injunctions below.

The point that Pope makes here is that whether the right of an individual to quit a job

permanently is all that is required under the Thirteenth Amendment hinges on whether one

believes that the Bailey and Pollock principles only protect market exit or whether they also

reach nonmarket political mechanisms of expression by workers, such as a strike. Strikers

seek to retain their status as employees. They seek to establish power below and to provide

an incentive above to prevent a harsh overlordship not by walking away forever one by one,

leaving the employer to find workers willing to put up with what it offers or forcing it to

offer better conditions. To the contrary, strikers seek to assert power by standing in

solidarity and using picketing and other means of expression to build and enforce that

solidarity.37

So Pope poses the question whether such measures are necessary to prevent the

conditions that Bailey and Pollock describe as involuntary servitude. He invokes the right of

freedom of association (usually grounded in the First Amendment) to counter individualistic

judicial prejudices that would keep Bailey and Pollock from protecting nonmarket solidaristic

activity, such as strikes. If someone has a right to do something as an individual and it

cannot be done effectively except in combination, for example, a boycott, then there is an

argument for the right to do it in combination under the right to associate freely.38

Thus,

Pope argues that since quitting individually and permanently is inadequate to establish the

36

Id., n.286. 37

Id. at 1548. 38

Id. at 1549-50.


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power below and the incentive above to prevent conditions of servitude, there is a plausible

argument that the Thirteenth Amendment protects a right to strike.39

In sum then, Pope presents a compelling argument that the Thirteenth Amendment

should be read to require systems of labor relations that provide workers with enough power

to prevent socially unacceptable levels of domination and exploitation; that the right of an

individual to quit and change employers permanently is insufficient to accomplish that task;

and that the ability of workers to act collectively to withhold their labor in order to apply

pressure on an employer is necessary to preventing unacceptable domination and exploitation

and should therefore fall within the protections of the Thirteenth Amendment. Examining

sample anti-strike injunctions buttresses those arguments.

Anti-Strike Injunctions

Background Statutory Law

Section 8(b)(4)(i)(B) of the NLRA makes it an unfair labor practice for a labor

organization (generally a union)

“to engage in, or to induce or encourage any individual employed by any person engaged

in commerce . . . to engage in, a strike or a refusal in the course of his employment to use,

manufacture, process, transport, or otherwise handle or work on any good, articles,

materials, or commodities or to perform any services . . . where . . . an object thereof is . .

. (B) forcing or requiring any person to cease using, selling, handling, transporting, or

otherwise dealing in the products of any other producer, processor, or manufacturer, or to

cease doing business with any other person . . . .” This sweeping prohibition is followed

by the proviso that “nothing contained in this clause (B) shall be construed to make

unlawful, where not otherwise unlawful, any primary strike or primary picketing.”

39

Id. at 1551.


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In short, it is an unfair labor practice for a union to picket or strike a “secondary” employer,

that is, a business other than that of the primary employer of its members.40

The statute does

not prohibit conduct by an individual that is not authorized by a union, although the National

Labor Relations Board (“NLRB” or “the Board”) and the courts can hold a union responsible

for the conduct of its agents, or even the conduct of its members if the union has not taken

sufficient steps to prevent them. The union is prohibited from inducing or encouraging “any

individual” from engaging in a secondary strike.

There are two types of remedies for violations of Section 8(b)(4)(i)(B): 1) an

employer may file an unfair labor practice charge with the NLRB and ask the Board to seek

immediate temporary injunctive relief under Section 10(l)41

; and 2) an aggrieved party may

sue for damages under Section 303 without involving the Board.42

If the employer files an

unfair labor practice charge, the statute requires that the “preliminary investigation of such

charge shall be made forthwith and given priority over all other cases . . .”43

Moreover, if the

regional Board office determines after investigation that it has “reasonable cause” to believe

the charge is true and that a complaint should issue, it “shall” petition a federal district court

40

There is a whole body of law on what union conduct is permitted in common situs situations, particularly common in construction, where the primary target is performing work at the premises of a secondary business, based on the NLRB’s decision in Moore Dry Dock, 92 N.L.R.B. 547 (1950). There is also a body of law concerning the “ally doctrine,” under which an employer other than the primary is not treated as secondary because of its close relationship with the primary employer. See Richard A. Bock, “Secondary Boycotts: Understanding NLRB Interpretation of Section 8(b)()(B) of the National Labor Relations Act,” 7 U. Pa. J. Lab. & Emp. L. 905, 957-61 (2005). Recently, the NLRB General Counsel has been seeking to expand the standard for “joint employment” under the NLRA and if successful, some employers that have been treated as secondary will be treated as primary. See http://www.nlrb.gov/news-outreach/news-story/nlrb-invites-briefs-joint-employment-standard and http://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-issues-consolidated-complaints-against, both accessed May 14, 2015. However, under any scenario, conflicts over secondary picketing and striking will remain. 41

29 U.S.C. § 160(l). 42

29 U.S.C. § 187. A Section 303 action can be brought by “whoever shall be injured in his business or property by a union’s violation of Section 8(b)(4). Recovery is limited to damages sustained by the party suing and costs of the suit. 43

29 U.S.C. § 160(l).

http://www.nlrb.gov/news-outreach/news-story/nlrb-invites-briefs-joint-employment-standard

http://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-issues-consolidated-complaints-against

http://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-issues-consolidated-complaints-against


15

for injunctive relief pending the Board’s final adjudication of the matter. If the Board

ultimately finds that the union has committed an unfair labor practice, it may, among other

things, issue a cease and desist order and seek enforcement in a circuit court of appeals to

which the union can also appeal.44

Of course, if the union violates a court order, it is subject

to civil and, ultimately, criminal contempt penalties. This paper will focus on these

injunctive remedies.45

The typical fact patterns in secondary strike cases46

are either that the union at issue is

picketing, threatening to picket, or otherwise protesting at a secondary site where other

unions work so that those other unions will strike the secondary target47

or, particularly in the

case of construction unions,48

the union at issue is engaging in both picketing and striking a

secondary target at a site where the union’s members would otherwise perform work

themselves, often along with members of other unions.49

In either case, the union is applying

pressure beyond its immediate target and it is often doing so by appealing to other unions to

support it.

44

29 U.S.C. § 160(e). 45

This paper will not address Boys Markets injunctions, in which a strike is enjoined where the subject of the strike is to be arbitrated under the collective bargaining agreement. 46

From my preliminary research, it appears that there are far fewer secondary strike cases nowadays than in the era around the enactment of the Taft-Hartley Act, most likely because unions are aware of the high likelihood of swift and potentially expensive enforcement of Section 8(b)(4)(i)(B). There are more cases about picketing in support of consumer boycotts, because the rules under Section 8(b)(4)(ii)(B) are much less clear. See, e.g., Catherine Fisk and Jessica Rutter, “Labor Protest Under the New First Amendment,” U.S. Constitutional Law: Rights and Liberties eJournal, May 19, 2015 at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2604226. 47

See, e.g., Warshawsky & Company v. NLRB, 182 F.2d 948 (D.C. Cir. 1999). 48

Many, if not most, of the secondary activity cases I encountered involved unions in the construction trades, not surprising, given both the traditions of the trades unions and the structure of their industry. Since construction workers are generally working for a contractor or sub-contractor at a site with numerous primary employers, their dispute is often with a general contractor (a secondary target) for bringing in a non-union employer (the primary target). 49

See, e.g., Local 74, United Brotherhood of Carpenters and Joiners of America v. NLRB, 341 U.S. 707 (1951).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2604226


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Case Examples

1. NLRB Cease and Desist Orders Against Unions and their Implicit Injunctions

Against Workers Striking

Since the NLRA’s secondary strike prohibition runs against unions, it is to be

expected that the Board’s cease and desist orders also run against unions and their

representatives. The question this approach to enforcement raises is whether such orders in

any way implicate the rights of members. There are cases which have interpreted Pollock or

WERB to mean that any order that does not prohibit workers themselves from quitting, either

individually or collectively, does not run afoul of the Thirteenth Amendment, as applied in

Pollock.50

As we shall see, that claim does not bear out under scrutiny.

NLRB v. Wine, Liquor & Distillery Workers Union, Local 1, Distillery, Rectifying and

Wine Workers International Union of America, A.F. of L., (Local 1),51

presents an early and

classic secondary strike and anti-strike injunction under the first version of the Section

8(b)(4) prohibition against secondary strikes. The unions at issue were engaging in work

stoppages at the warehouses of independent liquor distributors of whiskey to pressure

Schenley, the producer of the whiskey which was being struck by a sister local. The Board

found a violation of the then new secondary strike prohibition and issued a cease and desist

order requiring the unions and their agents to:

Cease and desist from engaging in, or inducing the members of Local 1 to engage in,

a strike or concerted refusal in the course of their employment to perform services for

50

See, e.g., NLRB v. National Maritime Union of America, 175 F.2d 686, 692 (2d Cir. 1949) (“We think that, under Supreme Court decisions, the ‘involuntary servitude’ provision of the Thirteenth Amendment is inapplicable here. For the Board's order does not expressly forbid employees to leave their jobs, individually or in concert. It is directed only against the Union and its agents.”) (citing Pollock). 51

178 F.2d 584 (2d Cir. 1949).


17

any employer, where an object thereof is to require any employer or other person to

cease doing business with Schenley Distillers Corporation.52

The Second Circuit upheld the injunction and dismissed Thirteenth Amendment arguments

by citing to the WERB decision without further comment.53

This type of cease and desist order is typical of Board orders in secondary strike cases

and appears as innocuous as any I have found to date. Following the prohibition in the

statute, the order runs only against the union and its agents, not the members. It orders the

union not to engage in or induce its members to engage in strikes against secondary targets

but does not appear to coerce any given worker to provide labor against her will. Indeed, the

point of the Second Circuit’s cite to WERB is presumably to say that the order not to strike

does not offend the Thirteenth Amendment because the workers themselves are still free to

“abandon” their work individually or collectively. But that reading of WERB itself is highly

problematic as is the blithe assumption that the order does not in any way coerce the workers.

First, it is not at all clear that the WERB decision supports the Local 1 court’s implicit

interpretation of it. The WERB Court found intermittent and unannounced strikes to be

unprotected, but did not address full-on strikes. That very distinction has become critical to

the question of whether primary strikes are protected or not, and should not be treated as

trivial in this context either.54

It should require more than an assumption to establish that the

52

78 NLRB 504 (1948). 53

178 F.2d at 587. The Second Circuit also dismissed First Amendment arguments, citing Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949), for the proposition that otherwise unlawful conduct is not protected because it is executed using speech. For a critique of Giboney’s application with respect to labor picketing, see Estlund, supra note 6, at 943; Schneider, supra note 6, at 1476-77. I will return at the end to the question of whether inducing or encouraging a secondary strike by picketing is protected activity under the First Amendment if the strike itself is constitutionally protected and not properly unlawful. 54

See, e.g., Henricks Realty, 119 LRRM 1308, 1309 (Advice Memorandum, May 31, 1985) ("[TIhe Board has consistently held that a work stoppage that is intermittent or recurrent constitutes an unprotected partial strike."); see also Craig Becker, “Better than a Strike,” U. Chic. L. Rev. Vol. 61, No. 2, Spring 1994.


18

WERB holding applies to a full-on strike in which workers “abandon” their work for the

duration of the strike.55

Second, for a variety of reasons, it is simply inaccurate for courts to assert that

injunctions against unions do not implicate the rights of their members. First, members have

deep associational interests in the union and its activities, particularly strikes in which they

participate.56

Ordering workers’ representatives to rescind decisions made and actions taken

on their behalf implicates their own freedom to act. In addition, members have a direct

financial stake in whether their unions, which are funded by their dues, are fined.

Perhaps even more important, the union must comply with the cease and desist order,

not only by rescinding picketing or strike orders. It must act as an enforcer for the Board and

the court, making sure that workers do not engage in a strike if it wishes to avoid a contempt

finding and the penalties that attach to it.57

So the Board and the courts are just kicking the

worker coercion ball down the road when they order the union not to engage in a strike or

55

My own view is that the Thirteenth Amendment (and the NLRA) should be read to protect intermittent strikes, but I do not believe that the Court’s position to the contrary in WERB necessitates a holding that no collective work stoppages short of mass quits have constitutional protection. By its own terms, WERB stands at most for the proposition that even after Pollock, the right to “abandon work” is not absolute, leaving the question of its precise contours for another day. See Pope, supra note 8, at 1545 (interpreting WERB’s use of “abandon work” as more ambiguous and possibly broader than just quitting, whether individually or collectively). 56

Even while taking the position that an injunction against the union and not workers themselves did not implicate “involuntary servitude,” the court in Dayton Co. v. Carpet, Linoleum & Resilient Floor Decorators’ Union, 39 N.W.2d 183, 197 (Minn. 1949), app. dismissed, 339 U.S. 906 (1950), recognized that “consideration of the question of involuntary servitude can relate only to those defendants who might be affected by having to work alongside nonunion men if they choose to remain in the employ of plaintiff.” The court thereby acknowledged the associational interests of workers with respect to their union. It is interesting that the court’s position raises questions about the constitutionality of banning the closed shop. 57

The Supreme Court has articulated a very broad standard for determining when a union has induced or encouraged a strike, even outside of the context of contempt proceedings. “The words ‘induce or encourage’ are broad enough to include in them every form of influence and persuasion.” International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694, 701-02, (1951). See also NLRB v. Local 3, International Brotherhood of Electrical Workers, 477 F.2d 260 (2d Cir. 1973) (citing with approval, United States v. United Mine Workers, 77 F. Supp. 563, 56 (D.D.C. 1948), aff’d 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871 (1949) (“If a nod or a wink or a code was used in place of the word ‘strike,’ there was just as much a strike called as if the word ‘strike’ had been used.”)).


19

induce or encourage one. And this enforcement role is not simply theoretical. If a strike

continues, with or without union compliance with an order to rescind the strike order and

picketing, not only could the union, supported by the dues of its members, find itself in

contempt proceedings facing harsh penalties, but a contempt order could be issued against

members themselves not to engage in a strike.

In Roth v. United Union of Roofers, Waterproofers and Allied Workers, Local No. 11,

AFL–CIO (“Local 11”),58

for example, the court’s contempt order provided that the union

its officers, agents, representatives, servants, employees, attorneys and all members

and persons acting in concert or participating with it, be and hereby are enjoined and

restrained from in any manner picketing, causing to picket, threatening to cause a

work stoppage, causing a work stoppage, or otherwise inducing or encouraging any

individual employed by any person engaged in commerce or in industry affecting

commerce, to refuse to handle or work on goods or perform services where an object

of such activity is to remove or exclude [the employer at issue] from the construction

site . . . .59

In short, while the Board and courts may couch their initial orders as not implicating the right

of workers to abandon their work, the courts’ enforcement power implicates those workers’

rights very directly.

In reality, therefore, the cease and desist order against the union in the case of a

secondary strike presents union members with the option of returning to work or quitting

their jobs permanently. The Fifth Circuit was explicit about this coercive choice under

public sector federal labor law in United States v. Martinez.60

In affirming criminal contempt

58

1995 WL 12259 (N.D.Ill.). This case was brought under Section 8(b)(7) of the NLRA, but the subject matter is

irrelevant to the point about the relief available. 59

Id. at *9 (emphasis added). 60

686 F.2d 334 (5th

Cir. 1982).


20

rulings against officers of the benighted PATCO union for failing to report to work in

violation of an injunction against the union, the court stated:

As appellants emphasize, the district court's restraining orders did not, indeed could

not, order these individuals to return to their jobs. The court could and did order

them, however, to choose between returning to work and quitting their employment.

We have observed before that this “work or quit” option is a permissible means of

enjoining illegal strikes without offending the Thirteenth Amendment's protection

against involuntary servitude.61

Thus, when evaluating their Thirteenth Amendment implications of anti-strike injunctions

against unions under the NLRA, we must look beyond their face to the implicit injunctions

against workers striking.

2. Explicit Injunctions Against Workers Striking

Although the NLRA does not cover public employee labor relations, it is still

instructive to look at an anti-strike injunction concerning public employees under state law in

order to see just how far an anti-strike injunction can go when it explicitly orders workers not

to strike.62

We have already seen that PATCO workers were subjected to criminal penalties

for failing to comply with an order to return to work. Another example of that degree of

coercion can be found in the injunction issued against the Transport Workers Union of

America (“TWU”) and TWU Local 100 immediately prior to the December 2005 strike by

transit workers in New York City. Under New York Civil Service Law § 210(1), “No public

employee or employee organization shall engage in a strike, and no public employee or

61

Id. at 345 (emphasis added) (citing to New Orleans Steamship Ass’n v. General Longshore Workers, 626 F.2d 455, 463 (5

th Cir. 1980), aff'd sub nom, Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S.

702 (1982), in turn citing the WERB decision. The defendants in the PATCO case were officers of the union, but the action for which they were cited for contempt was failing to report to work. Id. at 337-38. 62

In this paper, I do not address whether the Thirteenth Amendment should be applied any differently with respect to strikes by civilian public employees. It is my view that such strikes should be just as protected as strikes in the private sector, but additional exploration on that issue would be necessary. I am only using the TWU injunction for the breadth of its language.


21

employee organization shall cause, instigate, encourage, or condone a strike.” As a result,

the TWU injunction enjoined not only the unions and their leaders, but also “members,” and

“employees” of the Transit Authority from violating the Civil Service Law “by conducting,

engaging or participating in, through any manner or any means a strike, work stoppage, sick-

out, slowdown or any other concerted activity with the intent of interrupting the normal and

regular operations of the New York City Transit Authority63

. . . . (¶ 1) Only the unions and

leaders were enjoined from causing, instigating, or inciting a strike. (¶ 2)

This injunction demonstrates that, as a society, we have not yet ruled out direct orders

to workers, punishable by severe penalties,64

that require them to continue working and

prohibit them from withholding their labor “through any manner or means,” including “any

concerted activity.” We will never know how the judge would have treated mass

resignations under that order, but it appears that they would have violated the order. Surely,

such a drastic order would raise questions under the Thirteenth Amendment. Even the Fifth

Circuit’s decision in the PATCO case would suggest that it would. Although it is unlikely

that the NLRB or a court would issue such an order under the NLRA, at least initially, for the

reasons set forth above, a Board cease and desist order against a union could lead eventually

to an enforcement order in a contempt proceeding that might look very similar to the one in

the TWU case.

63

New Yorkers might have a lot to say about whether there ever is “normal” or “regular” service in their transit system, but I leave that discussion for another forum. 64

See N.Y. Civil Service Law ¶ 210(2).


22

Anti-Strike Injunctions Implicate the Thirteenth Amendment Even If

Workers Can Permanently Quit their Jobs

Even if one accepts that NLRB anti-strike injunctions under Sections 8(b)(4) and

10(l) may coerce workers not to strike, either implicitly or, under some circumstances,

explicitly, there remains the fundamental question whether state coercion of workers not to

strike violates the Thirteenth Amendment, or, at least, invites strict scrutiny under the

Thirteenth Amendment. As Pope explains, the key challenge presented by the case law is

whether the availability of the right to quit a job and change employers is sufficient to

provide the “power below” and the incentive above” to prevent a “harsh overlordship” or

“unwholesome conditions.”

The WERB decision strongly implies that the Thirteenth Amendment protects the

right to quit both individually and collectively. The Vinluan court implicitly adopted that

view by not following the trial judge’s reasoning that the nurses’ resignations lost Thirteenth

Amendment protection because they were undertaken collectively. And the preambles to

both the Fair Labor Standards Act65

and the National Labor Relations Act66

reveal that

Congress did not believe that the ability of individual’s to express their voice through the

market mechanism of exit was sufficient to prevent a “harsh overlordship” or “unwholesome

conditions.” As Pope observes, both laws involve state interventions in the labor market, the

former to set minimum standards for those who lack the bargaining power to do so

themselves and the latter to grant workers procedural protections to enable them to gain

necessary bargaining power through concerted action. For these reasons and for those set

65

29 U.S.C. § 301. 66

29 U.S.C. §§ 151-169.


23

forth by Pope, the ability of individuals to quit their jobs and to change employers cannot be

sufficient to satisfy the Thirteenth Amendment. At a minimum, the ability to quit

collectively must be available.67

The other key distinction made in the case law is between quitting permanently and

quitting temporarily to apply specific targeted pressure to the employer to change its conduct.

In several cases, courts have declared, without explanation, that the ability to exercise power

through the market mechanism of exit is sufficient to satisfy the Thirteenth Amendment and

that the Amendment does not protect collective withholding of labor on a temporary basis.68

But it is not obvious why the distinction between being able to quit permanently and being

able to withholding labor temporarily and strategically is relevant to a Thirteenth

Amendment analysis.69

Given the history of the Amendment, as detailed by VanderVelde,

67

See Pope, supra note 8, at 1546, n. 286 and accompanying text. 68

See, e.g., France Packing co. v. Dailey, 166 F.2d 751, 753 (3d Cir. 1948) (“The contention that a limitation of the right to strike under the specified narrow conditions of Section 8 partakes of involuntary servitude is not substantiated by the cases. To the contrary, there is a wide distinction between a worker quitting his job, for any reason or no reason, on the one hand, and a cessation of production by workers who seek to win a point from management, on the other hand.”); see also Dayton, 39 N.W.2d at 198 (“The principal distinction between the conception of a strike and the right of an individual to work for whom he chooses is that in a strike the employe does not sever his relationship with his employer, but merely suspends his services for the purpose of putting pressure upon the employer, hoping thereby to induce him to accede to the demands of the employe.”) 69

The distinction between striking and quitting takes on significance under labor statutes in ways that are not

relevant to this discussion. See, e.g., NLRB v. KSM Industries, Inc., 682 F.3d 537, 545-46 (7th

Cir. 2012) (striking

employees, who resigned because they needed to access their 401(k) accounts during unfair labor practice strike,

did not intend to permanently abandon their employment and were therefore entitled to remedial backpay);

Limbach Company v. Sheet Metal Workers International Ass’n, 949 F.2d 1211, 1217-18 (3rd

Cir. 1991) (“secondary

boycott provisions prohibit a union from inducing employees to refuse to perform services during the course of

employment but do not preclude inducements to quit, as quitting is not a refusal to perform services during the

course of employment”); Board of Trustees, Packinghouse Workers and Meat Cutters, Local 630 v. Crown Packing

Company, 1978 WL 1751 (E.D. Mich.) (approving differentiation in treatment of pension benefit contributions for

employees who quit and those who strike). Whether or not labor law prohibit unions from inducing workers to

quit, for example, does not determine whether or not the law can constitutionally preclude them from inducing

workers to strike or to engage in a strike.


24

and given the language of the text, as Pope argues, it is not at all a foregone conclusion that

the Amendment does not protect at least some strike activity.

Before turning to reasons why the Thirteenth Amendment may protect at least some

strikes, it is important to look critically at the Supreme Court’s analysis of the distinction

between quitting and striking in Textile Workers Union of America v. Darlington.70

In

Darlington, the Court held that an employer has an absolute right under the NLRA to close a

business entirely for any reason, including anti-union motives, but that the same unfettered

right does not apply to closing part of the business. In reaching this conclusion, the Court

analogized the difference between a total closing and a partial closing to that between a quit

en masse and a strike. The Court stated:

One of the purposes of the Labor Relations Act is to prohibit the discriminatory use

of economic weapons in an effort to obtain future benefits. . . . Although employees

may be prohibited from engaging in a strike under certain conditions, no one would

consider it a violation of the Act for the same employees to quit their employment en

masse, even if motivated by a desire to ruin the employer. The very permanence of

such action would negate any future economic benefit to the employees. The

employer's right to go out of business is no different.71

This analogy does not hold for a variety of reasons,72

including that the Thirteenth

Amendment right to quit is not equally applicable to employers and employees. Unlike the

First Amendment, the Thirteenth Amendment is not neutral as to parties, but rather protects

workers and limits the power of bosses.

But the most significant problem with the Darlington Court’s argument lies in the

Pollock Court’s recognition that quitting does have an impact on an employer. It is precisely

70

380 U.S. 263 (1965). 71

Id. at 272. 72

Most basic, it treats business assets and human labor as equivalent, which is morally and politically problematic.


25

because of that potential impact that the Pollock Court found constitutional significance in

the ability to quit. In the view of the Pollock Court, voting by exit gives an incentive above

to prevent a “harsh overlordship” and “unwholesome conditions.” Thus, the right to quit en

masse lies not in the fact of separation, but, perhaps paradoxically, in the ongoing

relationship between workers and bosses and the effect of the right to exit on creating or

protecting a system of free labor.73

At the same time, as a general matter, the Darlington Court was right to observe that

there is a difference between severing a relationship permanently and not doing so. In

theory, for the specific workers involved, striking should be better suited than mass quitting

to securing better working conditions with the employer being struck, because they hope to

have an ongoing relationship with that employer.74

But that fact militates toward the need for

greater constitutional protection of the strike as a weapon against conditions of servitude, and

not, as the Darlington Court seems to imply, a reason to limit it.

Turning to the question of whether the Thirteenth Amendment should be understood

to protect strikes, the answer lies in Pope’s “functional approach” to the Amendment or what

I would call a systemic approach. As discussed above, the text of the Thirteenth Amendment

is not articulated as a guarantee that individuals or groups of individuals have certain rights,

in contrast to the Fourteenth Amendment. Rather, it mandates systemic elimination of

slavery and involuntary servitude. Involuntary servitude cannot play a role in our system of

73

Of course, a business closing has an ongoing impact on workers, particularly in a community that depended heavily on the business. I therefore believe that Darlington was incorrectly decided. But the issue I am concerned with is whether the Darlington Court identified a constitutionally significant distinction between permanently quitting, even en masse, and striking. I do not believe that it did. 74

Of course, the right to hire permanent replacement workers in response to an economic strike severely undermines the efficacy of the strike as a tool for improving the working conditions of the strikers. And as discussed below, where the strike is unprotected and the workers can be fired, the ongoing relationship depends on their ability to apply pressure but not on any legal status of the workers.


26

labor relations. Therefore, as Pope argues, the question is whether protecting strikes is

necessary to providing the “power below” and the “incentive above” to prevent a “harsh

overlordship” and “unwholesome conditions.” With that in mind, let us examine what is

really going on when an employer applies for injunctive relief from the Board and, through

it, the courts.

When an employer faces an unprotected secondary strike, it has the option of firing

the striking workers. If the employer turns to the government, specifically, the NLRB, for

assistance, it does so in order to coerce the workers to return to work. The argument that the

workers have the right to quit, either individually or collectively, misses the point that the

goal of the employer and the government in such cases is to force the strikers back to work

and for production of goods or services to continue. As demonstrated above, the anti-strike

order has the power to accomplish just that, and judging from the dearth of examples of

recent secondary strike court cases, it would seem that the employer and government’s power

to wield such injunctions has proved highly successful.

Returning to the supposedly key distinction between mass quitting and striking, in the

case of an unprotected strike, anti-strike injunctions are both coercive in ways that implicate

the Thirteenth Amendment and suppressive of expression in ways that implicate the First

Amendment. With unprotected strikes, the striking employee’s only legal and material

connection to the place of employment lies in the possibility that the employer will, in the

end, choose unequivocally to condone the strike and grant the workers the right to return with

whatever stake in the company (e.g., seniority, credit toward vesting of a pension) intact.75

75

See, e.g., Exum v. NLRB, 546 F.3d 719 (6th

Cir. 2008) (upholding a Board finding that the employer did not condone the strike).


27

In other words, the workers potentially do have something to lose if they quit instead of

striking, but what they have is highly dependent on the employer in the end, and during the

strike, they have no legal claim on anything from the employer that has not already vested

anyway. This leaves them subject to coercion by the government on the hand, because they

still have something to lose by quitting. However, it also means that from a legal point of

view, their action, in striking rather than quitting, is largely expressive.

To the extent a Board or court order against striking relies on the workers’ stake in

the possibility of regaining their status due to employer condoning of the strike, the order is

highly coercive by design. That coercion undermines the “power below” and “incentive

above” that the workers have to pressure their bosses, whether on their own behalf or on

behalf of other workers.

The coercion not only affects the particular workers in any given dispute. Taking a

“functional” or systemic approach to the issue, the vulnerability of all union members to

being coerced back to work by the government, whether implicitly or explicitly, undermines

the system of free labor. It is one thing for an individual employer, with the possible

exception of a giant like Wal-Mart, to fire or otherwise punish workers for engaging in an

unprotected strike, it is quite another for the state, through legislation and its enforcement, to

stop or prevent such strikes systemically. Although the Thirteenth Amendment applies

equally to private and government conduct – neither can participate in or facilitate slavery or

involuntary servitude – the impact of a generally applicable, enforceable, and enforced

government rule on the bargaining power of workers is far greater than the decisions of any

given employer in any given dispute. For that reason, the availability and use of anti-strike

injunctions in the NLRA deals a serious blow to the power of workers to prevent conditions


28

of servitude, and because the results of the government’s actions are system-wide, the

government tools make any resulting servitude anything but voluntary. As Pope argues,

without viable options, servitude becomes involuntary.

Returning to the dynamics of the scenario in which workers are engaging in or

threatening to engage in an unprotected strike, the unprotected nature of the strike points to

First Amendment problems with anti-strike injunctions. To the extent that the workers have

no legal claim on their jobs unless or until the employer condones the strike, the difference

between a mass quitting and a strike is fundamentally expressive. The workers are taking a

stand, a solidaristic stand, against the power of the employer, rather than walking away

permanently. The difference between declaring themselves strikers rather than quitting, if

any at all, is purely in the expression of that claim, not in any enforceable right. Therefore,

by deploying the anti-strike injunction, rather than letting the employer sort out the situation

on its own, the government is suppressing expressive activity, precisely because of its

viewpoint, raising significant First Amendment problems.

This argument has even greater force in the construction cases, which are prevalent in

the case law. Construction workers generally have no lasting relationship with a specific

employer. Their relationship is with the union and the type of work. Their pensions and

benefits and seniority are not bound to a particular job. So the difference between mass

quitting and striking cannot be characterized easily as a material one. It is true, as some of

the courts cited above complained, that even construction workers’ strikes are temporary in

that the workers return when their demands are satisfied or they are replaced. But legally

they have no more stake in the job they have left than someone who has left it permanently.

They have only the possibility of returning if the dispute is settled. Someone who “quit” to


29

honor a picket line might also return once the dispute is over. The difference between

quitting and striking, and in particular, honoring a picket line, in this context is truly one of

expression.

As I mentioned at the beginning, commentators on the fallacy of the speech-conduct

distinction in pure Section 8(b)(4)(ii)(B) secondary picketing cases have not explored

whether their critique is just as available in the context of secondary strikes and Section

8(b)(4)(i)(B). One concern of critics may be that striking goes beyond expressive activity to

acts of economic coercion. But if the legal difference between the permitted behavior of

permanently quitting and the prohibited behavior of temporarily striking is fundamentally

expressive, the critiques of the speech-conduct distinction with regard to the ban on

secondary labor picketing can and should be applied to secondary strikes as well.

One might object that the difference between secondary strikes on the one hand and

secondary picketing in support of a boycott on the other that secondary boycotts are lawful,

whereas secondary strikes are unlawful. Therefore, Giboney v. Empire Storage Company,76

and its progeny77

justify outlawing the strikes, as well as picketing or other activities to

induce or encourage the strikes.78

But the argument is somewhat circular: the First

Amendment does not protect this expressive conduct from being made unlawful, because it is

already unlawful. And as long as the objective of the strike itself is lawful, for example,

76

336 U.S. 490 (1949). 77

See International Brotherhood of Teamsters, Local 695, AFL, et al. v. Vogt, 354 U.S. 284 (1957); Local Union No. 10, United Assn. of Journeymen Plumbers and Steamfitters of United States and Canada of AFL, et al. v. Graham, 345 U.S. 192 (1953); Building Service Employees International Union, Local 262, et al. v. Gazzam, 339 U.S. 532 (1950); International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers Union Local 309, et al. v. Hanke, 339 U.S. 470 (1950). For a critique of these cases and the unlawful objectives doctrine, see Estlund, supra note 6, at 943; Schneider, supra note 6, at 1476-77. 78

See, e.g., Local 1, 178 F.2d at 587.


30

raising an employer’s labor standards or settling a primary strike, the unlawful objectives

argument does not defeat the argument for First Amendment protection.

Thus, to the extent that the difference between mass quitting and striking in an

unprotected strike79

is fundamentally expressive, the government should have to show that its

actions are necessitated by a substantial and legitimate state interest, not related to

suppression of expression, and that they are narrowly tailored to address those interests.80

It

is difficult to see how an outright ban on expressive activity could satisfy that level of

scrutiny.

Finally, if these arguments are correct, then the gag rule imposed on unions under

Section 8(b)(4)(i)(B) looks suspect under the First Amendment as well. If striking enjoys a

measure of constitutional protection, then so should inducing or encouraging a strike. The

unlawful objectives argument, for example, is unavailable, unless the strike itself has an

independently unlawful objective. The broad standard for inducing or encouraging a strike

that includes a “nod or a wink” should be subjected to stricter scrutiny. It is difficult to

imagine such an extreme suppression of speech surviving that scrutiny.

79

It is important to note the difference between a strike or any other activity being unprotected and being unlawful. Lawful activity may still be unprotected. My argument is that this activity should not be subject to state sanction, not that employers are constitutionally prohibited from responding with self-help. I leave that argument to someone else. 80

See, e.g., U.S. v. O’Brien, 391 U.S. 367, 376-77 (1968) (“when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms,” and the governmental interest involved must be “unrelated to the suppression of free expression” and the “incidental restriction” on First Amendment freedom must be “no greater than is essential to the furtherance of that interest.”)


31

Conclusion

Employment relations in our society are becoming increasingly fragmented.

81 With

that fragmentation, labor standards abuses are increasingly pervasive.82

Unions’ ability to

use secondary picketing and strikes to support each other and to target vulnerable points in a

supply or distribution or other commercial chain would be critical to rebuilding labor’s

power below in order to overhaul incentives above. In this context, that any given striker or

groups of strikers has the option of quitting permanently instead of obeying an injunction and

returning to work – whether the injunction is against their union or them directly – does not

sufficiently remove the coercive aspects of such an order to satisfy the Thirteenth

Amendment. Moreover, unprotected strikes, in particular, when examined carefully, have a

largely expressive content when contrasted with mass quitting and should enjoy First

Amendment protections as well. Therefore, there should be a strong constitutional

presumption against enjoining strikes and coercing workers back to work. And to the extent

that strikes have the protection of the Thirteenth and First Amendments, the prohibitions

against inducing or encouraging them also implicates the First Amendment and should be

subjected to strict scrutiny.

In short, when “they outlawed solidarity,” they broke the law. It is high time, even

terribly late, that we invoke the “labor vision” of the Thirteenth Amendment, as well as the

promise of the First Amendment the strike and the solidarity it both realizes and expresses.

81

See David Weil, “Improving Workplace Conditions through Strategic Enforcement, A Report to the Wage and Hour Division,” 2010, found at http://www.dol.gov/whd/resources/strategicEnforcement.pdf, accessed May 27, 2015, at 9-10. 82

Id.; see also Annette Bernhardt, et al., “Broken Laws, Unprotected Workers,” found at https://www.nelp.org/content/uploads/2015/03/BrokenLawsReport2009.pdf?nocdn=1, accessed May 27, 2015.

http://www.dol.gov/whd/resources/strategicEnforcement.pdf

https://www.nelp.org/content/uploads/2015/03/BrokenLawsReport2009.pdf?nocdn=1

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