Boycott
Author | Theodore J. St. Antoine |
Pages | 214-215 |
Page 214
A boycott is a group refusal to deal. Such concerted action is an effective way for society's less powerful members, such as unorganized workers or racial minorities, to seek fair treatment in employment, public accommodations, and public services. But as the Supreme Court recognized in Eastern States Retail Lumber Dealers' Association v. United States (1914): "An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy."
Boycotts by private entrepreneurs were illegal at common law as unreasonable restraints on commercial competition. The Sherman Act of 1890 made it a federal offense to form a "combination ? in restraint of trade."
Page 215
The Supreme Court has interpreted that prohibition as covering almost every type of concerted refusal by business people to trade with others. The constitutionality of outlawing commercial boycotts has never seriously been questioned.
Employee boycotts may be either "primary" or "secondary." A primary boycott involves direct action against a principal party to a dispute. A union seeking to organize a company's work force may call for a strike, a concerted refusal to work, by the company's employees. A secondary boycott involves action against a so-called neutral or secondary party that is doing business with the primary party. The union seeking to organize a manufacturing company might appeal to the employees of a retailer to strike the retailer in order to force the retailer to stop handling the manufacturer's products.
Although early American law regarded most strikes as criminal conspiracies, modern statutes like the WAGNER NATIONAL LABOR RELATIONS ACT (NLRA) treat primary strikes in the private sector as "protected" activity, immune from employer reprisals. Even so, the Supreme Court has never held there is a constitutional right to strike. Furthermore, the Court sustained the constitutionality of statutory bans on secondary boycott strikes or related picketing in Electrical Workers Local 501 v. NLRB (1951). The use of group pressure to enmesh neutrals in the disputes of others was sufficient to enable government to declare such activity illegal.
Consumer boycotts present the hardest constitutional questions. Here group pressure may not operate directly, as in the case of a strike. Instead, the union or other protest group asks individual customers, typically acting on their own, not to...
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