Labor Protest Under the New First Amendment

55 Pages Posted: 10 May 2015 Last revised: 25 Sep 2015

See all articles by Catherine Fisk

Catherine Fisk

University of California, Berkeley - School of Law

Jessica Rutter

National Labor Relations Board

Date Written: May 8, 2015

Abstract

Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

Suggested Citation

Fisk, Catherine L. and Rutter, Jessica, Labor Protest Under the New First Amendment (May 8, 2015). Berkeley Journal of Employment and Labor Law, Vol. 36, No. 2, 2015; UC Irvine School of Law Research Paper No. 2015-53. Available at SSRN: https://ssrn.com/abstract=2604226

Catherine L. Fisk (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-2098 (Phone)

Jessica Rutter

National Labor Relations Board ( email )

1099 14th St. N.W.
Washington, DC 20570-0001
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
171
Abstract Views
892
rank
175,101
PlumX Metrics