by Doug Bonney

In the Spring of 2000, the hard working members of Teamsters Local 955 in Kansas City faced a perplexing choice in their battle with Associated Wholesale Grocers. AWG told its long term employees that the company could operate much more profitably by contracting out the Union jobs. Rather than bargain in good faith over a new labor agreement that both sides could live with, the company threw
down the gauntlet, proposed drastic wage and benefit cuts amounting to millions of dollars, and said "take it or leave it." When the negotiations predictably went nowhere and the old contract expired, AWG dismissed all of its regular warehouse employees and drivers and brought in the contractors to run the warehouse and distribution system. Shortly after the National Labor Relations Board issued an
unfair labor practice complaint alleging bad faith bargaining by the company, however, AWG settled things so that the Union employees could return to work in the employ of a different contractor. 

Although things worked out for the employees in the AWG case, the ordeal they went through raises important labor law issues. Just what are workers supposed to do when a greedy employer contracts out all of their jobs and tells its loyal workers "get out"? This raises other problems: Is this a strike? Is this a lockout? Or is this something else? 

In the case of AWG, one of the questions was: Where do you picket? The workers and the Union could clearly picket at the AWG property. But, as I understand it, AWG is a cooperative owned by the grocery stores served by AWG. Thus, could the Union workers also picket at the grocery stores? 

This is where Congress dealt a severe blow to unions back in 1947 when it passed the Taft-Hartley Act. One of the provisions of that law outlawed the secondary boycott, which is conduct that encourages so-called neutral individuals or employers (those not directly involved in the underlying labor dispute) to strike against the neutral, to refuse to deliver goods to the main struck employer or to the neutral, or to
cease doing business with the either the neutral or the main struck employer. Congress wanted to ban secondary boycotts because they were considered a dangerous weapon in the hands of unions. In fact, Congress considered them dangerous because they were effective. 

In 1959, finding that unions still had too much power, Congress went even further. At that time, Congress outlawed the so-called "hot cargo clause" common in many collective bargaining agreements of the day. In part, hot cargo clauses provided that union workers at neutral companies, such as warehouses, could refuse to handle goods from a struck employer. Congress nipped that in the bud because it put too much pressure on the struck employers to settle strikes on terms favorable to the workers. 

Although these legal issues are intricate and complicated, the fight between Teamsters 955 and AWG clearly shows that the law has tipped too far in favor of the employers. If a company can contract out all of its union work and fire the union workers, those workers must have effective tools to fight that kind of corporate greed. At the very least, those workers should be able to take their fight to the work sites of the companies that own their employer, in this case the grocery store owners of AWG, and the workers must be able to vigorously exercise their First Amendment rights to picket, to leaflet, and to speak out against such outrageous, greedy tactics. Unfortunately, the secondary boycott and hot cargo laws put a real crimp in free speech and labor activism. 

But unions faced with these mountains can come up with creative strategies to fight Goliath. In the Detroit newspaper strike, the workers engaged in many activities that bordered on the edge of the law without falling on the wrong side of it. For instance, strikers went shopping at stores of advertisers while wearing shirts that said "please do not shop here" on the front and "this store is helping the Detroit
newspapers destroy my family by continuing to advertise in the Detroit News and Free Press" on the back. There were strict rules on what the shoppers could do in the stores, but they were able to wear their shirts and get their message across to some extent. We need more such creative thinking to fight heartless corporations that only care about the bottom line. 

Caveat: The issues raised by secondary boycott and hot cargo disputes are legally complicated, having many rules and exceptions that depend on the precise facts of each situation. This article is only a very general introduction to the problem and does not constitute and should not be relied on as legal advice applicable to any particular labor dispute. Readers faced with a secondary boycott or hot cargo issue should promptly seek competent legal advice about the problem.