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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date

Summer 2012




University of Wisconsin Law School




This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The article presents a compelling argument for first amendment protection of a union’s appeals to consumers to shun businesses because of their relations with employers with union-criticized labor policies. This argument is founded on a consumer right to engage in concerted boycotts.


Boston University School of Law, Public Law Research Paper No. 12-56

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