NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL, AND REINFORCING IRON WORKERS, LOCAL 229, AFL-CIO, Respondent.
No. 17-73210
United States Court of Appeals for the Ninth Circuit
September 11, 2020
FOR PUBLICATION; NLRB No. 21-CC-183510
Before: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and Robert S. Lasnik,* District Judge.
Order; Dissent by Judge Berzon; Dissent by Judge Bumatay
SUMMARY**
Labor Law
The panel denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc.
In its opinion, filed October 28, 2019, the panel granted the National Labor Relations Board‘s petition for enforcement of its order entered against International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229, enjoining Local 229 from committing violations of the
Judge Berzon, joined by Judges Graber, Wardlaw, W. Fletcher, Paez, and Bumatay, dissented from the denial of rehearing en banc because she would hold that the pure speech enjoined in this case was entitled to full
Judge Bumatay dissented from the denial of rehearing en banc. He agreed with Judge Berzon that the case should have been taken en banc, and wrote separately to emphasize his views on why the Supreme Court‘s decision in International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694 (1951), was not binding in this case.
COUNSEL
Greg P. Lauro (argued), Attorney; Elizabeth A. Heaney, Supervisory Attorney; David Habenstreit, Assistant General Counsel; Meredith Jason, Acting Deputy Associate General Counsel; John W. Kyle and Alice B. Stock, Deputy General Counsel; Peter B. Robb, General Counsel; National Labor Relations Board, Washington, D.C.; for Petitioner.
David A. Rosenfeld (argued) and Caitlin E. Gray, Weinberg Roger & Rosenfeld, Alameda, California, for Respondent.
ORDER
The panel has unanimously voted to deny the Respondent‘s Petition for Panel Rehearing. Judge Rawlinson voted, and Judges Schroeder and Lasnik recommended, to deny the Petition for Rehearing En Banc.
The full court has been advised of the Petition for Rehearing En Banc. A judge of the court called for a vote on the Petition for Rehearing En Banc. A vote was taken, and a majority of the active judges of the court failed to vote for an en banc rehearing.
The Respondent‘s Petition for Panel Rehearing and Rehearing En Banc, filed December 12, 2019, is DENIED. No future petitions for rehearing or rehearing en banc will be entertained.
BERZON, Circuit Judge, joined by GRABER, WARDLAW, FLETCHER, PAEZ, and BUMATAY, Circuit Judges, dissenting from the denial of rehearing en banc:
Suppose that a devoted member of the American Vegetarian Society chooses to exercise her
The case presented by this challenge would be an easy one under current
The facts and the statute at issue in this case mirror those in the hypothetical. Nat‘l Labor Relations Bd. v. International Ass‘n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, 941 F.3d 902, 904 (2019) (“Local 229”). An agent of Local 229—a union concerned that an employer with which Commercial Metals Company (CMC) contracted was paying wages lower than the area standard—encouraged employees of CMC to cease work by circulating to employees via text message a link to a webpage, distributing flyers at the CMC worksite, speaking on two occasions with CMC employees at the worksite, and placing a phone call to one CMC employee. Id. The parties and the panel agreed that this activity was “pure speech”; it was peaceful, non-coercive, and did not include any picketing by the union.1 Id. at 904–05. Moreover, the conduct peaceably encouraged by the union—the voluntary cessation of work by individual employees—was lawful.
Relations Board nonetheless enjoined this speech pursuant to
The NLRB‘s injunction would seem to pose the very same identity-, content-, and viewpoint-based discrimination problems as would be posed by the case of our imagined vegetarian: identity-based, because the speech could not have been enjoined if not for the fact that the speaker is a union; content-based, because the union would be free to distribute pamphlets bearing subject matter unrelated to employee relations; and viewpoint-based, because the union would be free to speak on the subject matter of CMC management-employee relations if the union were inducing and encouraging CMC employees to continue work rather than to cease it.
Why, then, has this Court denied to the union the
Much has been written about the apparently anomalous
As I shall show, IBEW does not compel, or even support, the result reached in the panel‘s decision. The only unlawful conduct at issue in IBEW consisted in the union‘s picketing activity directed at neutral employees, considered together with a subsequent phone call emphasizing the purpose of the picketing. Id. at 705. Those facts are critically different from those in this case, where the speech enjoined was not picketing. That difference is made all the more critical by the transformative developments in
When contemporary doctrine is applied, there can be little doubt that the pure speech here enjoined is entitled to full
I.
In IBEW, the “principal question” was whether a union violated a prior version of Section 8(b)(4)(i)(B)‘s prohibition on inducing or encouraging cessation of work for a secondary contractor “when, by peaceful picketing, the [union‘s] agent induced employees of a subcontractor on a construction project to engage in a strike in the course of their employment.” 341 U.S. at 695–96 (emphasis added). Much of the opinion is devoted to the question whether the peaceful picketing there at issue fell within the statutory prohibition that is now
The prohibition of inducement or encouragement of secondary pressure by
§ 8(b)(4)(A) carries no unconstitutional abridgment of free speech. The inducement or encouragement in the instant case took the form of picketing followed by a telephone call emphasizing its purpose. The constitutionality of§ 8(b)(4)(A) is here questioned only as to its possible relation to the freedom of speech guaranteed by theFirst Amendment . This provision has been sustained by several Courts of Appeals. The substantive evil condemned by Congress in§ 8(b)(4) is the secondary boycott and we recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives. There is no reason why Congress may not do likewise.
Although it begins with broad language, the quoted paragraph as a whole focuses on the particular type of speech at issue before the Court—“picketing followed by a telephone call emphasizing its purpose,” id., which is all that the National Labor Relations Board‘s order covered. Before the NLRB, the charging party argued only that the union‘s “picketing” had induced the cessation of work, Int‘l Bhd. of Elec. Workers, Local 501, 82 N.L.R.B 1028, 1042 (1949) (emphasis added), and the Board concluded accordingly that the union, “by picketing,” had induced such cessation, id. at 1029 (emphasis added). The Second Circuit similarly understood that only picketing was at issue, holding that “the
Faced with that context, the Court reasoned that, given its recognition of “the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives[, t]here is no reason why Congress may not do likewise.” Id. (emphases added). There was not at the time, and there is not now, any comparable recognized constitutional right of states to proscribe peaceful, non-picketing speech. So the actual holding in IBEW was limited to picketing; it cannot be extended to the speech at issue here, which undisputedly was not picketing.
That IBEW‘s constitutional reasoning extends only to picketing is confirmed by the Supreme Court precedents upon which it relied, each of which conditioned its holding on the unique
In the decades that followed IBEW, two circuit courts ignored its picketing-specific context and reasoning, extending it to uphold against
paragraph as foreclosing any constitutional challenge to any application of
Relying on these unreasoned and nonbinding opinions, the panel here repeated their mistake, again relying on IBEW‘s broad language while ignoring both the picketing-specific context of the case and the limited actual holding set forth later in the paragraph. Local 229, 941 F.3d at 905. From there, the panel invoked IBEW‘s language interpreting the “intended breadth” of the statute to extend the picketing-specific constitutional holding to “every form of influence or persuasion”—erroneously transforming an interpretation of a statute into a sweeping constitutional holding. IBEW, 341 U.S. at 701–03; Local 229, 941 F.3d at 905.
II.
The panel‘s uncritical extension of IBEW is particularly troubling in view of the seismic changes in
A few examples of the doctrinal developments that unfolded after IBEW was decided demonstrate the significance of this transformation. Take content discrimination: In Boos v. Barry, the District of Columbia had prohibited, within 500 feet of a foreign embassy, any sign tending to bring that foreign government into “public odium” or “disrepute.” 485 U.S. 312, 315 (1988). The Supreme Court determined that the restriction was content-based because it proscribed “an entire category of speech—signs or displays critical of foreign governments.” Id. at 319–21. Because the restriction was content-based, the Court applied strict scrutiny and concluded that, even assuming that the law furthered a compelling interest in protecting the “dignity” of foreign diplomats, it was not narrowly tailored to serve that interest in view of the less restrictive protections for embassies that prevailed across the rest of the country. Id. at 321–27. And although some language in the Boos Court‘s opinion suggests that the need to apply strict scrutiny depended upon the political nature of the speech prohibited and the public nature of the forum to which the prohibition applied, id. at 321, the Supreme Court has more recently backed away from any such limitations, repeatedly declaring that “content-based regulations of speech are subject to strict scrutiny” without regard to whether the speech is political or the forum public. Nat‘l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018); see also, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015).
Or consider viewpoint discrimination: In R.A.V. v. City of St. Paul, a municipal ordinance made it a misdemeanor to place on public or private property any “symbol, object, appellation, characterization or graffiti . . . which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or
Finally, consider the
None of these now well-developed doctrines had yet been crystalized when the Supreme Court decided IBEW. Given such a sea change in
It is not enough to assert flatly, as the panel did, that these
III.
Post-IBEW developments in the labor context specifically affirm that the “highly
After IBEW was decided, the Supreme Court made clear that although certain forms of labor picketing do not receive the full
Police Dep‘t of the City of Chicago v. Mosley, 408 U.S. 92 (1972), brought the problem into view. There, peaceful picketing on the subject of a labor dispute was the only type of picketing the City of Chicago permitted. Id. at 94–95. The Supreme Court held that Chicago‘s regime violated the
But the Supreme Court did not take that path. In NLRB v. Retail Store Employees Union, Local 1001 (“Safeco”), unions embroiled in a labor dispute with an insurance company picketed outside agencies that sold the company‘s insurance policies, urging customers to boycott those policies. 447 U.S. 607, 609 (1980). The Court held that
Justice Powell, in a plurality opinion, treated the case as squarely controlled by IBEW‘s picketing-specific reasoning. He wrote:
Congress may prohibit secondary picketing calculated to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U.S. 694, 705 (1951) [(“IBEW”)], this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the
First Amendment . We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business,§ 8(b)(4)(ii)(B) imposes no
impermissible restrictions upon constitutionally protected speech.
Id. at 616 (some internal quotation marks and citations omitted) (emphasis added).
In a concurrence, Justice Stevens wrote that the
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council (“DeBartolo”) emphasized, as Justice Stevens had in Safeco, that non-picketing labor speech is more protected by the
DeBartolo thus rejected the Safeco plurality‘s bare reliance on IBEW as the basis for upholding restrictions on labor picketing against
Until now, our circuit has been faithful to the inquiry DeBartolo requires in such cases. In Overstreet v. United Brotherhood of Carpenters and Joiners of America, Local Union 1506, 409 F.3d 1199, 1201–02 (9th Cir. 2005), union members had held aloft large banners announcing a “labor dispute” and declaring “SHAME ON” certain (secondary) retailers. The union argued that its bannering activity was protected by the
In this case, I note, DeBartolo‘s speech-conduct distinction is more easily applied than in Overstreet. Sending text messages containing a link to a website and distributing flyers is manifestly more analogous to handbilling than it is to picketing: it is the content of the website and the flyer, rather than any intimidating conduct, that does the persuasive work. But the panel refused to undertake this simple analysis. Instead, without engaging at all with the reasoning of Safeco, DeBartolo, or Overstreet, the panel dismissed DeBartolo as
DeBartolo and Overstreet involved applications of
Indeed, the difference in the underlying statutory subsections at issue undermines rather than strengthens the panel‘s reasoning.
IV.
Nothing in IBEW excuses the panel‘s avoidance of these problems. We cannot faithfully interpret any utterance of the Supreme Court in isolation from the context in which it arises, so we are frequently confronted with the question of just how broadly to interpret language which, taken out of context, may appear quite sweeping. By ignoring IBEW‘s picketing-specific context, and refusing to consider the relevance of that context to the doctrine as it currently stands, the panel here adopted a disturbing approach to the application of precedents.
Consider Mosley once again. 408 U.S. 92 (1972). There, the Court stated, in sweeping terms and without qualification: “[A]bove all else, the
My reading of IBEW as limited to picketing is no more or less an artificial narrowing of Supreme Court precedent than that uncontroversial gloss on Mosley would be. IBEW‘s holding—that because states may constitutionally proscribe picketing in furtherance of unlawful objectives, they may constitutionally proscribe “peaceful picketing” in service of a secondary boycott, 341 U.S. at 694, 703–05—similarly remains intact.
The possibility of en banc consideration accordingly presented this Court with a choice: to treat IBEW the same way we would treat Mosley, as appropriately limited to its actual holding, or instead to acquiesce in a new and needless constitutional anomaly—such that our generally applicable content-, viewpoint-, and identity-based discrimination
I respectfully dissent from the denial of rehearing en banc.
BUMATAY, Circuit Judge, dissenting from the denial of rehearing en banc.
I agree with Judge Berzon that this case should have been taken up en banc. I write separately to emphasize my views on why the Supreme Court‘s decision in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694 (1951) (“IBEW”), is not binding in this case and why it is our duty to apply the Constitution—not extend precedent—here.
I.
As inferior court judges, we are bound to follow Supreme Court precedent. Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). After all, “[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.” Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). But our fidelity is not blind. We always have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). The same could be said of precedent that has been eroded by more recent jurisprudence.
This doesn‘t mean that lower court judges can refuse to follow precedent—even if subsequent caselaw or the original meaning cast it into doubt. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower court judges don‘t have license to adopt “a cramped reading” of a case in order to “functionally overrule” it. Thompson v. Marietta Educ. Ass‘n, No. 19-4217, 2020 WL 5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we permitted to create “razor-thin distinctions” to evade precedent‘s grasp. Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019).
But, where precedent is seriously questioned “as an original matter” or under current Supreme Court doctrine, courts “should tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). We can take care not to unduly expand precedents by reading them “in light of and in the direction of the constitutional text and constitutional history.” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). So too with intervening Supreme Court decisions. And if a faithful reading of precedent shows it is not directly controlling, the rule of law may dictate confining the precedent, rather than extending it further. Cf. Citizens United, 558 U.S. at 378 (“[S]tare decisis is not an end in itself. . . . Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”).
II.
At issue here are four forms of speech: (1) sending text messages; (2) making phone calls; (3) talking to others; and (4) delivering flyers. NLRB v. Int‘l Ass‘n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 941 F.3d 902, 904 (9th Cir. 2019). None these encompass the form of communication at issue in IBEW: picketing.
At the time of IBEW, “picketing” was considered sui generis under Supreme Court doctrine. “Picketing by an organized group is more than free speech[.]” Bakery & Pastry Drivers & Helpers Local 802 of Int‘l Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 776 (1942) (Douglas, J., concurring) (emphasis added). Picketing is distinct from other forms of speech, such as “distribution of circulars,” because “it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.” Hughes v. Superior Court, 339 U.S. 460, 464–65 (1950). Accordingly, IBEW made clear that limitations on this form of communication pass constitutional muster. See IBEW, 341 U.S. at 705 (“[W]e . . . have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives. There is no reason why Congress may not do likewise.”) (footnote omitted). IBEW‘s reach is therefore limited to picketing.
On the other hand, the forms of speech involved in this case go to the heart of protected speech activity. For example, the Court has singled out leafletting, at least in the political realm, as “the essence of
Given this backdrop, nothing in Supreme Court doctrine or principles of stare decisis require the extension of IBEW here. IBEW deals with picketing and this case does not. As the cases above show, this is not a “razor-thin” distinction. And as Judge Berzon ably demonstrates, IBEW cannot be squared with modern
Also, I have doubts that
Considering our growing understanding of the
Because IBEW doesn‘t directly control our decision here, I respectfully dissent from the denial of rehearing en banc.