Article Title
On Mock Funerals, Banners, and Giant Rat Balloons: Why Current Interpretation of Section 8(b)(4)(ii)(B) of the National Labor Relations Act Unconstitutionality Burdens Union Speech
Abstract
This Comment discusses whether the government may prohibit unions from engaging in types of secondary protest like mock funerals. Since 1959, § 8(b)(4)(ii)(B) of the National Labor Relations Act (“NLRA” or “the Act”) has made it illegal for unions to “threaten, coerce, or restrain” secondary employers into severing their business ties with primary employers. Precisely what forms of protest this provision outlaws, however, is unclear. On one end of the spectrum, courts almost always find that picketing secondary employers constitutes illegal coercion, for courts see pickets as having a unique power to induce automatic action. On the other end, the Supreme Court has declared that handing out fliers, a tactic commonly referred to as “handbilling,” is not coercive and is, therefore, legal. There is no easy way to judge the legality of secondary protest activity that falls between these two extremes, because courts and the National Labor Relations Board (“NLRB”) have consistently failed to articulate the key elements of coercion. Instead, they judge the legality of union secondary protests on a caseby- case basis, typically by seeing if the protest activity can be analogized to picketing
