The Umpire Strikes Back

Epic's Judy Faulkner threw a high hard one. Behind the plate, UW's Howard Schweber ruled it a brushback pitch and issued a stern warning. No one from Epic's dugout came out to protest, but I shouted from the stands that Schweber was out of his mind.

The ump wasn't taking it lying down. He removed his mask and hollered back, not only at me but also others in the cheap seats who didn't agree with his call.

In a Wisconsin State Journal column, Professor Schweber accused Epic of bullying "small businesses," using its "economic power to coerce vendors." Sorry, doc, but the targets of Epic's boycott are hardly small businesses. They are huge corporations that have a seat on the Wisconsin Manufacturers and Commerce board of directors. Companies like J.P. Cullen, one of the nation's 400 largest construction companies. And M&I Corporation, one of the 50 biggest bank holding companies in the entire U.S.

In his column in The Capital Times, Dr. Schweber concentrated on making a distinction between primary and secondary boycotts and called the type of action Epic is engaging in an example of a secondary boycott that "may be illegal."

There are two problems with this argument. First, the term secondary boycott has a very specific legal meaning in a labor relations context and such an action can indeed be illegal under U.S. law. So why is Professor Schweber using such a loaded term out of context? Is he accusing Epic of breaking the law, or isn't he? After a prolonged e-mail exchange with Dr. Schweber, I am still not completely sure but I am inclined to believe he is not. He has publicly called Epic's action unethical and even told The Associated Press that it "is perilously close to a type of illegal boycott that typically arises in labor disputes." That is perilously close to defamation in light of his answer when I directly asked him if Epic's action is illegal. He declined to give a straight answer but rather would only say "whether Congress has gotten around to criminalizing something does not usually determine whether I consider it to be ethical."

I take that to mean that Professor Schweber is using the term secondary boycott loosely, applying a more generic meaning rather than a strict legal one. The Law Encyclopedia offers such a generic definition: "A group's refusal to work for, purchase from, or handle the products of a business with which the group has no dispute." Done, presumably, in an "an attempt to influence the actions of one business by exerting pressure on another business."

If this definition is valid, then this raises the second problem with Schweber's argument. Epic is not refusing to deal with companies with which it has no dispute. Epic has a very real bone to pick with companies like J.P. Cullen and M&I because their leaders sit on WMC's board and set policy for the organization. And as board members these companies' leaders ultimately authorized the election campaign tactics that Epic's leadership team finds so repugnant.

After further review, I still think the umpire blew the call.