"they Outlawed Solidarity!"

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

"They Outlawed Solidarity!"(fn*)

Richard Blum(fn**)

Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.(fn1)

CONTENTS

INTRODUCTION ..................................................................................... 984

I. LABOR RIGHTS AND THE PROHIBITION AGAINST INVOLUNTARY SERVITUDE ......................................................................987

II. SECONDARY STRIKES AND NLRA ANTISTRIKE INJUNCTIONS......... 989

A. Statutory Law ............................................................................... 989

B. Scenarios ...................................................................................... 991

C. Remedies ...................................................................................... 994

III. NLRB CEASE AND DESIST ORDERS AGAINST UNIONS AND THEIR MEMBERS .............................................................................................. 994

IV. ANTISTRIKE INJUNCTIONS IMPLICATE THE THIRTEENTH AND FIRST AMENDMENTS EVEN IF WORKERS CAN PERMANENTLY QUIT THEIR JOBS .............................................................................................................. 998

A. Quitting Individually v. Quitting Collectively .............................. 998

B. Quitting En Masse v. Striking ....................................................... 999

C. Secondary Strikes and the Pollock Principle ............................. 1003

D. Secondary Strikes and the First Amendment ............................. 1005

E. Inducing or Encouraging Secondary Strikes, the NLRA's Gag Rule,and the First Amendment ................................................................ 1007

CONCLUSION ....................................................................................... 1007

INTRODUCTION

My active interest in the Thirteenth Amendment began several years ago when I assisted in the representation of ten Filipino nurses being prosecuted, along with their lawyer, for conspiring to endanger residents of the nursing home where the nurses had worked. My colleague and I, both staff attorneys in the Employment Law Unit of The Legal Aid Society in New York, assisted a pair of criminal defense attorneys who had taken on the nurses' and the lawyer's cases. The nurses were being prosecuted because they had collectively quit their jobs at the nursing home after being advised of their right to do so by their lawyer (all were off duty at the time they stopped working). 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 were successful in persuading the Suffolk County district attorney to prosecute both the nurses and their lawyer 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; that the lawyer had subsequently filed a discrimination complaint on their behalf with the Department of Justice; and that the nurses had quit their jobs.

One of the most interesting developments in the case came well before I got involved, when the trial court denied the nurses' motion to dismiss the indictment. The judge rejected the nurses' argument that the District Attorney, in prosecuting them for quitting, sought to compel their continued employment in violation of the Thirteenth Amendment. 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.(fn2)The judge 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.(fn3) 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 as well.

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.(fn4)

More recently, I turned again to Thirteenth Amendment questions as a result of writing a First Amendment critique of the National Labor Relations Act's (NLRA) ban on secondary labor picketing in support of consumer boycotts under NLRA § 8(b)(4)(ii)(B).(fn5) 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 § 8(b)(4)(i)(B),(fn6) even though the latter ban is both more sweeping and consequential for unions than the former.

Striking-that is, the withholding of labor-is the ultimate weapon of unions, both because it is often an effective tool against employers and because there exists a solidaristic tradition of honoring picketing lines. Section 8(b)(4)(i)(B)'s strike ban not only prohibits labor organizations from engaging in certain secondary strikes, it even prohibits them from "induc[ing]" or "encourag[ing]" such strikes.(fn7) Clearly, in trying to clip labor's wings, the 1947 and 1959 Congresses which adopted these statutes wanted to make sure that unions could not deploy their most important source of power. Thus, Congress basically placed a gag order on unions as a sweeping prophylactic to prevent them from collaborating and initiating joint work stoppages that go beyond the immediate employer. In effect, this greatly inhibited the overall potency of unions in the United States.

In attacking § 8(b)(4)(ii)(B)'s ban on secondary labor picketing in support of a consumer boycott as a violation of the First Amendment, critics have repeatedly condemned the Supreme Court's reliance on a supposed distinction between "pure speech" and "speech plus conduct," such as a picket.(fn8) The Court's invocation of an "unlawful objectives" doctrine to defend banning speech contrary to public policy has also been repeatedly criticized.(fn9) After all, picketing has been recognized as protected expressive activity(fn10) and it is entirely lawful for consumers to choose to boycott the target of a picket.(fn11) However, commentators have not sought to argue that striking is protected under the First Amendment.(fn12) If striking can be deemed an unlawful objective, 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, 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's prohibition against involuntary servitude.

Building primarily on James Gray Pope's work on the Thirteenth Amendment and strikes,(fn13) in particular, his discussion of the significance of the right to quit in evaluating a Thirteenth Amendment critique of antistrike 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. Specifically, I scrutinize antistrike injunctions under the NLRA to consider how, in application, antistrike injunctions directly or indirectly coerce workers into servitude, regardless of the ability of workers to quit their jobs rather than return to work. I also look critically at the distinction that has been made between mass quits and strikes, as well as the reality of both an employer's goals in seeking government intervention against a strike and the government's role in aiding employers. In doing so, I argue that § 8(b)(4)(i)(B)'s prohibition on secondary strikes is enforced in a way that implicates the Thirteenth Amendment prohibition against involuntary servitude, and also the strikers' and the picketers' First Amendment rights to express and seek solidarity, respectively.

I. LABOR RIGHTS AND THE PROHIBITION AGAINST INVOLUNTARY SERVITUDE

Over one hundred years ago, in Bailey v. Alabama,(fn14) the Supreme Court relied on the Thirteenth Amendment-and the federal Antipeonage Act implementing it-to strike down an Alabama statute aimed at keeping poor workers from quitting their jobs if they were unhappy with their working conditions.(fn15) The case arose after 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...