974 F.3d 1106
9th Cir.2020Background
- Local 229 (a labor union) circulated texts, handed out flyers, spoke to, and called neutral employees of Commercial Metals Company (CMC) asking them to stop work to pressure CMC’s contractor (Western Concrete Pumping) over alleged substandard wages. The communications were peaceful, non‑coercive, and did not include picketing.
- The NLRB found these acts violated Section 8(b)(4)(i)(B) of the NLRA (prohibiting inducing/encouraging neutral employees to cease work for a secondary purpose) and ordered injunctive relief.
- The Ninth Circuit panel enforced the NLRB order, rejecting Local 229’s First Amendment challenge and other statutory/constitutional defenses.
- The panel declined to apply Reed v. Town of Gilbert or strict scrutiny, treating the case as within labor’s heavily regulated sphere and relying on International Brotherhood of Electrical Workers v. NLRB (IBEW).
- Judges Berzon and Bumatay dissented from the denial of rehearing en banc, arguing IBEW is limited to picketing and modern First Amendment doctrine (content/viewpoint/identity rules and DeBartolo’s speech/conduct distinction) requires greater protection for non‑picketing, pure speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying § 8(b)(4)(i)(B) to peaceful, non‑picketing communications violates the First Amendment | Local 229: injunction is content-, viewpoint-, and speaker‑identity‑based restraint on pure speech and triggers strict scrutiny | NLRB: Reed and strict scrutiny inapplicable in labor context; IBEW and labor regulation permit proscription of secondary inducement | Panel upheld enforcement; rejected First Amendment challenge and refused to apply Reed/strict scrutiny |
| Whether IBEW controls and extends beyond picketing to pure speech | Local 229: IBEW concerned picketing; post‑IBEW doctrine (DeBartolo, Mosley) limits IBEW’s reach to picketing only | NLRB: IBEW’s broad language supports enforcement of § 8(b)(4)(i)(B) against inducement/encouragement generally | Panel accepted IBEW’s reasoning as applicable; dissenters argued IBEW is not controlling for non‑picketing speech |
| Whether Section 8(c) (protection for expression of views) immunizes the union’s communications | Local 229: § 8(c) protects its statements about labor conditions and tactics | NLRB: § 8(c) does not immunize activity that violates § 8(b)(4) | Panel agreed with NLRB: § 8(c) does not shield speech that unlawfully induces secondary action |
| RFRA, Thirteenth Amendment, and notice challenges to the Board’s order | Local 229: asserted RFRA and Thirteenth Amendment objections and claimed inadequate notice of obligations | NLRB: statutory/regulatory framework and order adequate; constitutional claims fail | Panel rejected RFRA and Thirteenth Amendment claims and held the order gave adequate notice |
Key Cases Cited
- International Bhd. of Elec. Workers v. NLRB, 341 U.S. 694 (1951) (upholding proscription of secondary picketing; panel relied on its broad language)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based speech restrictions are presumptively subject to strict scrutiny; panel declined to apply it)
- Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) (distinguishes picketing from ‘‘pure’’ handbilling; non‑picketing speech raises serious First Amendment concerns)
- Boos v. Barry, 485 U.S. 312 (1988) (content‑based restrictions require strict scrutiny)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (viewpoint discrimination is especially forbidden)
- Citizens United v. FEC, 558 U.S. 310 (2010) (government may not favor or disfavor speakers; identity‑based speaker restrictions raise First Amendment problems)
- Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) (government may not selectively permit or prohibit speech based on subject matter)
- NLRB v. Retail Store Employees Union, Local 1001 (Safeco), 447 U.S. 607 (1980) (plurality upholding limits on secondary picketing; opinions emphasize picketing’s conduct element)
- McCullen v. Coakley, 573 U.S. 464 (2014) (leafleting one‑on‑one communication afforded high protection)
- Meyer v. Grant, 486 U.S. 414 (1988) (one‑on‑one solicitation and direct communications are core First Amendment activity)
- Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005) (applies DeBartolo line to distinguish bannering/handbilling from intimidating picketing)