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August 17, 2005

Where's the ACLU?

Want to know why unions have so much troubling organizing new workers?

Because they have been stripped of free speech rights in ways most progressive people don't even understand.

For example, down in Florida, the Sheet Metal Workers held a protest with a mock funeral procession carrying a coffin back and forth on a public sidewalk in front of a hospital, as members handed out leaflets discussing recent deaths at the institution.  This was tied to the union protesting use by the hospital of non-union labor for ongoing construction.

A federal district court issued an injunction against the protest and any similar ones, and the US Court of Appeals upheld the injunction. Don't even think about some stereotype of nasty or threatening union folks.  This is from the court decision:

The mock funeral procession was orderly. Traffic was not blocked and pedestrians were not obstructed. The individuals handing out leaflets were orderly and did not interfere or impede with the egress or ingress of any individuals to or from the hospital. No citations or arrests were made.
No, the crime of the union was solely that they violated provisions of federal labor law.  Bear with me for some basic labor law, since most progressives don't understand how fundamentally unions have been denied the most basic rights to protest and bring pressure against bad employers under the law.

The provision as stake is one that says it is "an unfair labor practice for a labor organization...to threaten, coerce, or restrain any person engaged in commerce...where...an object thereof is...forcing or requiring any person to...cease doing business with any other person." 29 U.S.C. § 158(b)(4)(ii)(B).

What does that mean?  Basically, the union is not allowed to put pressure on the hospital to stop doing business with the non-union contractor. Said the Appeals Court:

As the Supreme Court has explained, Section 8(b)(4)(ii)(B) implements "the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own."
The joke here is that a big company can deliberately hire a company with rotten labor practices to do their dirty work (literally the case in construction projects), but under the law, they are not an "offending" company against which a union can bring economic pressure or public protest.  

So the union can protest the business practices of the non-union contractor but they can't mount a public protest against the use of that contractor by any other business.  Since the contractor only works at other business premises, that de facto means there is no place where the union can effectively mount a protest.

There's a small provision where the Supreme Court has allowed unions to conduct individual handbilling, unaccompanied by marching or other visual aids, but that doesn't help you much when people are driving by you onto private property.  

And understand-- if the union, even on an innocent handbill, asked workers at the hospital to refuse to work in solidarity with the construction workers, even that handbilling would be illegal as a forbidden "secondary boycott" (i.e. iallegal strike) request.

Creative unions have found the occasional loophole to deliver messages to consumers, but it's a legalistic and draining exercise to potentially litigate every public utterance.  It is a classic case of "chilling speech" yet most progressives don't even recognize this pervasive free speech violation in our society.

You occasionally hear folks say that unions face less repression than back in the "old days", meaning the 1930s, which is just plain ignorant.  Labor law back then didn't have these kinds of anti-speech provisions.  They were only added after World War II in the Taft-Hartley Act and followup legislation, which not coincidentally coincided with the decline in union density in our society.

If all those libertarian-minded liberals out there want a new cause, how about liberty for union protesters?  

(By the way, the ACLU lawyers have supported union free speech cases; it's just the typical ACLU supporters who generally ignore union free speech issues.)

Posted by Nathan at August 17, 2005 11:25 AM