941 F.3d 902
9th Cir.2019Background
- McCarthy contracted a parking-structure job; McCarthy subcontracted Western Concrete Pumping (WCP) and Commercial Metals Company (CMC).
- Local 12 picketed lawfully against WCP; Local 229 sought to induce CMC (a neutral) employees to stop work to pressure CMC to cease doing business with WCP.
- Local 229’s agent Alvernaz texted CMC employees a “Picket Line Etiquette” link, called and spoke with CMC employees at the site, and placed flyers in lunchboxes urging solidarity.
- CMC filed an unfair labor charge; an ALJ found Local 229 violated § 8(b)(4)(i)(B); the NLRB affirmed and issued a cease-and-desist order; Local 229 conceded the factual violation but raised constitutional and statutory defenses.
- Local 229 argued First Amendment, § 8(c), RFRA, and Thirteenth Amendment defenses and sought clarification of the Board’s notice language.
- The Ninth Circuit held that substantial evidence supported the § 8(b)(4)(i)(B) violation and enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Local 229’s inducement of neutral employees violated § 8(b)(4)(i)(B) | Local 229 largely conceded facts but challenged legal application on constitutional/statutory grounds | Board: evidence shows inducement of neutrals to strike for secondary purpose; violates § 8(b)(4)(i)(B) | Substantial evidence supports violation; enforcement granted |
| First Amendment challenge: does Reed require strict scrutiny? | Reed requires content-based scrutiny; speech inducing action is protected | IBEW controls: § 8(b)(4) targets objective (secondary boycott) not protected by First Amendment; Reed inapplicable here | Court rejected Reed extension; IBEW forecloses the First Amendment challenge |
| Section 8(c) defense (free-speech safety valve) | § 8(c) protects expression; shields Local 229’s communications | IBEW: § 8(c) does not immunize activity in furtherance of § 8(b)(4) unfair labor practices | § 8(c) does not protect prohibited inducements to secondary boycott |
| RFRA claim (substantial burden on religion) | Prohibiting inducement substantially burdens union’s religious exercise | No evidence of a substantial burden; RFRA inapplicable here | RFRA claim rejected for lack of substantial-burden evidence |
| Thirteenth Amendment (involuntary servitude) | Prohibition coerces employees, amounting to involuntary servitude | Employees remain free to leave; claim baseless | Rejected as patently groundless |
| Notice language in Board order | Sought clarification of notice obligations | Board’s language is standard and has been used for years | Notice adequate; judicial-notice motion denied |
Key Cases Cited
- Int’l Brotherhood of Elec. Workers v. NLRB, 341 U.S. 694 (Supreme Court upholding § 8(b)(4) prohibition on secondary activities and rejecting § 8(c) escape)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (Supreme Court on content-based restrictions; Court declined to extend Reed to this labor context)
- DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (distinguished; addressed different § 8(b)(4) provision re: consumer handbills)
- Int’l Longshoremen’s Ass’n v. Allied Int’l, Inc., 456 U.S. 212 (defining/confirming scope and harm of secondary boycotts)
- Warshawsky & Co. v. NLRB, 182 F.3d 948 (D.C. Cir. applying IBEW to pure speech directed at neutrals)
- NLRB v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 477 F.2d 260 (2d Cir. applying IBEW to reject First Amendment challenge to communications directed at neutrals)