picketing

For more information on picketing, visit Britannica.com.

Practice, used in labor and political disputes, of patrolling, usually with placards, to publicize a dispute or to secure support for a cause. Picketing is a constitutionally protected exercise of free expression when done in accordance with law.

Picketing, said the U.S. Supreme Court in 1941, is "the workingman's means of communication." The nonviolent competitive tactics of workers in labor disputes with employers have traditionally been limited to the strike, the secondary boycott, and the picket line. To get the employer or other entity being picketed to accede to their demands, picketers seek to impede deliveries and services; to cause employees to refuse to cross the line to work; to muster consumer sympathy to withhold patronage; and to be a "rallyround" symbol for the picketers and other workers. Their objective may be either to get recognition as the bargainers for employees or to gain economic demands.

Picketing has promoted interests other than those of workers, notably in protests against racial discrimination. For instance, African Americans in the first half of the twentieth century launched "Don't Buy Where You Can't Work" pickets against employers who practiced racial discrimination when hiring. But its history is very strongly linked to public policy regulatory of labor-management disputes. Very few states have comprehensive statutes governing labor disputes. At common law, state courts have been divided over the legality of picketing. Most have held it to be an unjustified infliction of economic harm. Some, as in California, in Messner v. Journeymen Barbers (1960), have refused to take sides in these competitive situations. They have reasoned that risks of loss among competitors should not be abated by courts, absent statutory regulation, since hardship does not make less legitimate the objectives of a union seeking organization, or of a nonunion shop resisting it, or of nonunion workers who may either join or resist. A number of courts, without statutory standards, enjoin picketing to forestall economic hardship, even though a decree merely shifts the loss from one competitor (the employer) to another (the union). Federal law is mostly statutory; it regulates picketing in terms of purposes and effects under the National Labor Relations Act of 1935, as amended in 1947 and 1959, and usually preempts state law.

In 1940 the Supreme Court added a constitutional dimension to the existing common law and to statutory law. In Thornhill v. Alabama it declared that picketing is a right of communication under the First and Fourteenth amendments, although regulation is available to curb numbers, threats, obstruction, fraud, misrepresentation, or violence. Still, the Court has had trouble in reconciling the conduct of patrolling with what, rather artificially, it has termed "pure speech"—oral communication, in contrast to overall communicative conduct—and in balancing regulatory policies against the communication values inherent in picketing. Teamsters v. Vogt (1957) seemed to strip constitutional insulation from picketers, leaving them open to sweeping injunctions, excepting only outright prohibition. But Food Employees v. Logan Valley Plaza (1968) cautioned that controls, improper for "pure speech" but proper for picketing because of the intermingling of protected speech and unprotected conduct, must still be applied to avoid impairment of the speech elements.

The conditions under which picketing is judged legally acceptable change according to the composition of judges, and the political bent of the current presidential administration. The National Labor Relations Board in the 1990s and early twenty-first century ruled rather narrowly on which pickets were acceptable. Pickets are best understood in the broader context of labor history (see cross-references).

Bibliography

Brecher, Jeremy. Strike! Revised and updated ed. Boston: South End Press, 1997.

Gould, William B. Labored Relations: Law, Politics, and the NLRB—a Memoir. Cambridge, Mass.: MIT Press, 2000.

Gross, James A. Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994. Philadelphia: Temple University Press, 1995.

The presence at an employer's business of one or more employees and/or other persons who are publicizing a labor dispute, influencing employees or customers to withhold their work or business, respectively, or showing a union's desire to represent employees; picketing is usually accompanied by patrolling with signs.

See: labor law; labor union.