NLRB v. Ironworkers Local 433 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS Nos. 88-07283
BOARD, 89-70522
Petitioner, 90-70053
98-70929
v.
NLRB Nos.
INTERNATIONAL ASSOCIATION OF 31-CC-1761
BRIDGE, STRUCTURAL, 31-CC-1777
ORNAMENTAL AND REINFORCING 31-CC-1770
IRONWORKERS UNION, LOCAL 433, 31-CC-1801-1
Respondent. 31-CC-2076
ORDER
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted January 9, 2018
San Francisco, California
Filed June 8, 2018
Before: J. Clifford Wallace, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
2 N.L.R.B. V. IRONWORKERS
Order;
Separate Statement by Judge Wallace
SUMMARY*
Consent Decree
The panel denied the International Association of Bridge,
Structural, Ornamental and Reinforcing Ironworkers Union,
Local 43’s motion to modify extant consent decrees arising
from a series of disputes between the Union and the National
Labor Relations Board regarding the Union’s right to engage
in secondary picketing of government facilities under Section
8(b)(4)(ii)(B) of the National Labor Relations Act.
Between 1988 and 1989, the Board issued three orders
finding that the Union engaged in impermissible secondary
boycotts in violation of the NLRA. The Union entered into
a consent decree. Almost twenty years later, the Union filed
a motion under Fed. R. Civ. P. 60(b) seeking to modify
language contained in 1991 and 1999 consent contempt
adjudications prohibiting secondary picketing.
The U.S. Supreme Court upheld a First Amendment
challenge to the constitutionality of § 8(b)(4)(ii)(B) in
National Labor Relations Bd. v. Retail Store Employees
Union, Local 1001 (Safeco), 447 U.S. 607 (1980).
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NLRB V. IRONWORKERS 3
The panel held that the Union failed to meet its burden of
showing that Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015),
changed the legal landscape in the significant way required to
modify a consent decree. Specifically, the panel held that the
restrictions on speech addressed by Reed were not implicated
by compliance with § 8(b)(4)(ii)(B). In addition, the plain
reading of § 8(b)(4)(ii)(B) reflected that the statute regulated
conduct rather than content. The panel concluded that the
Union could not establish that continuing to apply the consent
judgments prospectively would be inequitable, as required for
relief under Rule 60(b)(5).
Judge Wallace wrote separately because although he
agreed with the result, he disagreed with the decision to reach
the merits. Judge Wallace would instead dismiss the Union’s
petition as nonjusticiable because the constitutional challenge
was not ripe for judicial review and not a proper case or
controversy.
COUNSEL
Kevin J. Hobson (argued), Trial Attorney; Kevin P. Flanagan,
Supervisory Attorney; Contempt, Compliance and Special
Litigation Branch, National Labor Relations Board,
Washington, D.C.; for Petitioner.
David A. Rosenfeld (argued), Weinberg Roger & Rosenfeld,
Alameda, California, for Respondent.
4 N.L.R.B. V. IRONWORKERS
ORDER
This appeal is the latest in a series of disputes between the
National Labor Relations Board (NLRB) and the
International Association of Bridge, Structural, Ornamental
and Reinforcing Ironworkers Union Local 433 (Ironworkers)
regarding Ironworkers’ right to engage in secondary picketing
of government entities under Section 8(b)(4)(ii)(B)1 of the
National Labor Relations Act (NLRA).2 Because the
constitutionality of the challenged statute is not affected by
the decision of the United States Supreme Court in Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015), we deny
Ironworkers’ motion to modify the extant consent decree.
I. Statutory Background
Section 8(b)(4)(ii)(B) describes as an unfair labor practice
any action to “threaten, coerce, or restrain any person
engaged in commerce . . . where . . . an object thereof is . . .
forcing or requiring any person . . . to cease doing business
with any other person.” 29 U.S.C. § 158(b)(4)(ii)(B). Such
conduct is regarded as impermissible secondary boycotting,
being “directed at parties who are not involved in the labor
dispute.” See Retail Property Trust v. United Bhd. of
Carpenters & Joiners of Am., 768 F.3d 938, 943 (9th Cir.
2014). Section 8(b)(4)(ii)(B) proscribes the creation of “a
separate dispute with the secondary employer” in order to
coerce the primary employer. National Labor Relations Bd.
v. Fruit & Vegetable Packers & Warehousemen, Local 760,
377 U.S. 58, 72 (1964); see also Constar, Inc. v. Plumbers
1
29 U.S.C. § 158(b)(4)(ii)(B).
2
29 U.S.C § 151 et seq.
NLRB V. IRONWORKERS 5
Local 447, 748 F.2d 520, 521 (9th Cir. 1984). Section
8(b)(4)(ii)(B) does not preclude picketing that results in an
“incidental injury to the neutral [parties],” so long as the
picketing was not “reasonably calculated to induce customers
not to patronize the neutral parties at all.” National Labor
Relations Bd. v. Retail Store Employees Union, Local 1001
(Safeco), 447 U.S. 607, 614 (1980) (citation omitted).
II. Factual Background
Before us is a consolidated motion filed by Ironworkers
seeking to modify under Rule 60(b)(5) of the Federal Rules
of Civil Procedure a prior contempt adjudication. Between
1988 and 1989 the Board issued three orders finding that
Ironworkers engaged in impermissible secondary boycotts in
violation of the NLRA. See Ironworkers Local 433 (Chris
Crane), 288 N.L.R.B. 717 (1988); Ironworkers Local 433
(Chris Crane), 294 N.L.R.B. 182 (1989); Ironworkers Local
433(United Steel), 293 N.L.R.B. 621 (1989). In 1991,
Ironworkers entered into a consent decree after we upheld the
Board’s orders. See National Labor Relations Bd. v.
Ironworkers Local 433, 169 F.3d 1217, 1218 (9th Cir. 1999).
As to each of the Board’s orders, Ironworkers agreed to
refrain from engaging in further “secondary boycott
activities.” Id.
In 1999, the Board issued a contempt order against
Ironworkers after finding that Ironworkers engaged in
secondary picketing similar to the conduct addressed by the
1991 consent contempt adjudication. See id. We upheld the
Board’s order and, consistent with Ironworkers’ settlement,
entered a new consent contempt adjudication enforcing the
same prohibitions on secondary picketing as articulated in the
prior adjudication. Almost two decades later, Ironworkers
6 N.L.R.B. V. IRONWORKERS
filed four separate motions under Rule 60(b)(5) seeking to
modify the language contained in the 1991 and 1999 consent
contempt adjudications prohibiting secondary picketing under
Section 8(b)(4)(ii)(B). In each, Ironworkers argued that in
light of the Supreme Court’s decision in Reed, Section
8(b)(4)(ii)(B) should be analyzed as a content-based
restriction on speech that could not survive strict scrutiny
review.
We consolidated these four actions and stayed
proceedings pending the outcome of National Labor
Relations Board v. Teamsters Union Local No. 70, Int’l Bhd.
of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
668 F. App’x 283 (9th Cir. 2016), which presented a
substantively similar challenge to the NLRA. In Teamsters,
we held that Reed did not undermine the Supreme Court
precedent upholding Section 8(b)(4)(ii)(B), and that the
Union failed to demonstrate a significant change in the law,
as required under Rufo v. Inmates of Suffolk Cty. Jail,
502 U.S. 367 (1992). See Teamsters, 668 Fed. App’x. at 284.
The stay on this consolidated action was lifted in light of the
Supreme Court’s denial of the petition for a writ of certiorari.
See Teamsters Union Local No. 70, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America v. N.L.R.B, 137 S. Ct. 2214 (2017).
Ironworkers subsequently filed a motion that “modifie[d] and
substantially narrow[ed] its request” for Rule 60 relief. The
modified motion challenges the application of Section
8(b)(4)(ii)(B) to public entities, and requests deletion of the
reference to Section 8(b)(4)(ii)(B) from the consent contempt
adjudication.
NLRB V. IRONWORKERS 7
Ironworkers focuses on the following portions of the
statute:
“(b) It shall be an unfair labor practice for a
labor organization or its agents . . .
(4) . . . (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is
...
B. Forcing or requiring any person to cease
using, selling, handling, transporting, or
otherwise dealing in the products of any other
producer, processor or manufacturer, or to
cease doing business with any other person,
. . . Provided, that nothing in this clause (B)
shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or
primary picketing.”
29 U.S.C. § 158(b)(4)(ii)(B) (emphases added). The plain
wording of the statement evinces a focus on secondary
picketing activity. See id. Ironworkers contends that the
“constitutional infirmity” in the statute arises from the use of
the word “person” in the statute that has been interpreted too
broadly by encompassing secondary picketing of public
entities as “persons.” Ironworkers asserts that this specific
argument has never been addressed by the Supreme Court or
by this court. This “constitutional infirmity” forms the
“narrowed” basis upon which Ironworkers seeks to modify
the consent decree.
8 N.L.R.B. V. IRONWORKERS
III. Standards of Review
Rule 60(b)(5) provides that “[o]n motion . . . the court
may relieve a party or its legal representative from a final
judgment, order, or proceeding . . . [when] the judgment has
been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable. . .” In this case,
Ironworkers seek to establish that prospective application of
the consent decree is no longer equitable. The movant bears
the burden of proving that it is entitled to relief under the rule.
See Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011).
We apply the two-part test established in Rufo, 502 U.S.
at 383–84, when determining whether to modify a consent
decree under Rule 60(b)(5). A party seeking to modify a
consent decree must initially establish that a “significant
change in circumstances” justifies modification of the decree.
Id. at 383. The “significant change in circumstances” may be
legal or factual. Id. at 384. A change in the law may warrant
modification of a consent decree when the change “make[s]
legal what the decree was designed to prevent.” Id. at 388.
Whether a factual or legal change is asserted, once the
party seeking modification has met its initial burden, the
party must then propose a modification that is “suitably
tailored to the changed circumstance.” Id. at 383 (footnote
reference omitted); see also United States v. Asarco Inc.,
430 F.3d 972, 979 (9th Cir. 2005).
IV. Discussion
The Supreme Court addressed the constitutionality of
§ 8(b)(4)(ii)(B) under the First Amendment in Safeco. The
NLRB V. IRONWORKERS 9
Supreme Court upheld § 8(b)(4)(ii)(B) against a
constitutionality challenge. See Safeco, 447 U.S. at 616.
Nevertheless, Ironworkers contends that Safeco did not
address whether the restraint is applicable to government
entities because that case concerned a labor union’s picketing
of a private enterprise. However, it has long been held that
public entities are “persons” for purposes of the NLRA, see,
e.g., Plumbers, Steamfitters, Refrigeration, Petroleum Fitters,
& Apprentices of Local 298, American Federation of Labor
v. Door Cty., 359 U.S. 354, 358–59 (1959). As Ironworkers
acknowledges, there has been no change in the statute that
would affect the Supreme Court’s decision.
Ironworkers relies heavily on Reed to suggest that its right
to peacefully picket the government is impermissibly
infringed upon if Section 8(b)(4)(ii)(B) applies to government
entities. Ironworkers argues that secondary picketing of the
government is no different than any other governmental
protest, and that Section 8(b)(4)(ii)(B)’s prohibition against
such picketing is tantamount to content-based viewpoint
discrimination under Reed. However, Ironworkers’ reading
of Reed grossly expands its holding. In Reed, the Supreme
Court held that strict scrutiny applied to a township’s
permitting ordinance that classified outdoor signs based upon
the information conveyed. See 135 S. Ct. at 2224. The Court
explained that laws restricting speech are subject to strict
scrutiny if the restriction is “content based.” Id. at 2227
(citation omitted). “Government regulation of speech is
content based if a law applies to particular speech because of
the topic discussed or the idea or message expressed. . .” Id.
(citations omitted). The township’s ordinance could not
survive strict scrutiny because the ordinance restricted the
conveyance of messages based solely upon content, and the
township failed to meet its burden of showing that the law
10 N.L.R.B. V. IRONWORKERS
served “a compelling governmental interest and [was]
narrowly tailored to that end.” Id. at 2231.
The restrictions on speech addressed by Reed are not
implicated by compliance with § 8(b)(4)(ii)(B). At the outset,
not all forms of secondary protest are impermissible under the
Section. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 578,
(1988) (holding that peaceful distribution of handbills is not
proscribed under Section 8(b)(4)(ii)(B)). Indeed,
conventional avenues of government protest remain available
for Ironworkers, just as they exist for any protestor seeking to
express dissatisfaction with the State. See, e.g. Fogel v.
Collins, 531 F.3d 824, 832 (9th Cir. 2008) (noting that the
First Amendment “welcomes and protects” verbal protests
against government policy). More importantly, a plain
reading of § 8(b)(4)(ii)(B) reflects that the statute regulates
conduct rather than content. Section 8(b)(4)(ii)(B)
specifically prohibits “threatening, coercing, or restraining
any person engaged in commerce.” Retail Prop. Tr.,
768 F.3d at 943 (citations, alterations and internal quotation
marks omitted). The First Amendment does not afford
unbridled protection to these forms of harassing and
intimidating conduct. See O’Brien v. Welty, 818 F.3d 920,
930 (9th Cir. 2016). In sum, Ironworkers failed to meet its
burden of showing that Reed changed the legal landscape in
the significant way required to modify a consent decree. See
Rufo, 502 U.S. at 383–84. Consequently, Ironworkers cannot
establish that continuing to apply the consent judgments
prospectively would be inequitable, as required for relief
under Rule 60(b)(5). See Otter, 643 F.3d at 283.
NLRB V. IRONWORKERS 11
V. Conclusion
Ironworkers failed to demonstrate a change in the
applicable law or in the factual circumstances of this case, as
required to merit relief from the prior consent judgments and
contempt adjudications entered in this case. See Rufo,
502 U.S. at 383–84. Accordingly, we DENY Ironworkers’
consolidated motions for relief.3
MOTIONS DENIED.
WALLACE, Circuit Judge, writing separately:
I agree with the result reached by my colleagues.
However, I disagree with their decision to reach the merits
and would have instead dismissed Ironworkers’ petition as
nonjusticiable. In my view, Ironworkers’ constitutional
challenge to section 8(b)(4)(ii)(B), cloaked in the guise of a
Rule 60(b)(5) motion, is not a proper case or controversy
because it is not ripe for judicial review.
I.
Article III of the Constitution limits the jurisdiction of
federal courts to actual “cases” and “controversies.” Clapper
v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). One element
of the case-or-controversy requirement is that a legal claim
must be “ripe” before it can be subject to judicial review.
3
Ironworkers requested that we take judicial notice of additional
documents related to its claims, and moved for a stay of a related
proceeding in the trial court. We DENY these matters as moot.
12 N.L.R.B. V. IRONWORKERS
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
The ripeness doctrine is primarily “a question of timing”
designed “to separate matters that are premature for review
because the injury is speculative and may never occur from
those cases that are appropriate for federal court action.”
Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010)
(citations omitted).
Where, as here, the claim involves a pre-enforcement
challenge to a statute, ripeness requires the plaintiff to show
a “genuine threat of imminent prosecution.” Id. at 1058
(quoting San Diego County Gun Rights Comm. v. Reno,
98 F.3d 1121, 1126 (9th Cir. 1996)). We typically look to
three factors to determine whether a claimed threat of
prosecution is genuine: (1) whether the plaintiff has
articulated a “concrete plan” to violate the law in question;
(2) whether the prosecuting authorities have communicated
a specific warning or threat to initiate proceedings; and
(3) the history of past prosecution or enforcement under the
challenged statute. Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (citation
omitted). Neither the “mere existence of a proscriptive
statute” nor a “generalized threat of prosecution” satisfies the
ripeness requirement. Id.
II.
Ironworkers contends its challenge to section
8(b)(4)(ii)(B)’s prohibition on secondary picketing is ripe on
the ground that it “would like to” picket the William S. Hart
Union High School District (District) over the District’s use
of a non-union subcontractor, RND, for a high-school
construction project. Ironworkers explains that it wants to
bring to the District’s attention RND’s alleged safety and
NLRB V. IRONWORKERS 13
wage payment issues in hopes that the District chooses a
different subcontractor.
Having considered the relevant Thomas factors, I am not
convinced Ironworkers’ challenge presents a concrete dispute
ripe for court review. As to the first part of the ripeness
inquiry, Ironworkers has not articulated a “concrete plan” to
violate section 8(b)(4)(ii)(B). Thomas, 220 F.3d at 1139. The
declarations by Michael Silvey, Ironworkers’ Business
Manager, are curiously (and perhaps deliberately) vague on
what exactly the union plans to do. Silvey’s initial declaration
states that the union “would like to picket the District
including its administrators and Board members to bring to
their attention the fact that RND has had safety issues and
other issues on prior jobs.” I have no reason to doubt
Ironworkers’ desire to picket the District, but that desire,
without more, is far from a “concrete plan” to do so. See San
Diego County, 98 F.3d at 1127 (concluding that plaintiffs’
assertion that they “wish and intend to engage in activities”
prohibited by the challenged statute did not establish a
concrete plan to violate the law).
Silvey’s supplemental declaration, filed after RND began
work on the construction project, is no more definite. Silvey
states that “if [the Union] would picket the [District] to
bring to the attention of the [District] and the public the
Union’s concerns with RND, it could do so.” This statement
is unclear as a matter of syntax, but in any event, it is not a
concrete plan to violate the law. Ironworkers does not explain
where it will engage in picketing, what type of conduct the
picketing will entail, or even assert that relevant union
officers have, in fact, discussed a potential picket of the
District. See Thomas, 220 F.3d at 1139. On this record, the
most that can be said is that Ironworkers has a motive to
14 N.L.R.B. V. IRONWORKERS
picket the District, not that it has a concrete plan to violate
section 8(b)(4)(ii)(B)’s secondary picketing prohibition.
Turning to the second part of the test, there is no
indication in the record that the Board has issued a “specific
warning or threat” to initiate enforcement proceedings against
Ironworkers. Id. The mere fact that Ironworkers is subject to
consent judgments prohibiting secondary picketing under
section 8(b)(4)(ii)(B) does not indicate a specific threat of
enforcement because section 8(b)(4)(ii)(B) applies to all labor
organizations, whether subject to a consent judgment or not.
Here, the threat of enforcement, if any, is a general one,
which is “not enough” to render a pre-enforcement statutory
challenge ripe for review. San Diego County, 98 F.3d at 1127.
The third and final part of the ripeness test—the history
of enforcement under the statute—may weigh in favor of
Ironworkers, but only slightly. Although the Board has
certainly enforced section 8(b)(4)(ii)(B) in the past, including
against Ironworkers, those proceedings overwhelmingly have
involved secondary picketing of private, rather than
governmental, entities. Ironworkers does not allege it has ever
been subject to an enforcement action for engaging in
secondary picketing of a governmental entity, and identifies
only three cases since Congress passed the current secondary
boycott provision in 1959 where the Board has held that a
union’s secondary picketing of a governmental entity violated
section 8(b)(4)(ii)(B). Therefore, while it is true the Board
enforces section 8(b)(4)(ii)(B) as a general matter, the
apparently limited history of enforcement in cases involving
picketing of governmental entities limits the extent to which
this factor indicates a “genuine threat of imminent
prosecution.” Wolfson, 616 F.3d at 1058; cf. Thomas,
220 F.3d at 1140–41 (concluding, in a case involving a pre-
NLRB V. IRONWORKERS 15
enforcement challenge to an Alaska housing discrimination
law, that the “past prosecution” factor was “neutral” where
“the record of past enforcement [was] limited, was civil only,
not criminal, and in any event was in each case precipitated
by the filing of complaints by potential tenants”). On balance,
then, I would conclude that considering all of the relevant
factors demonstrates Ironworkers’ claim is not ripe for
judicial review.
III.
Counsel for Ironworkers suggested at oral argument that
because the union’s desire to picket the District implicates
free speech concerns, we should evaluate ripeness under the
“less stringent” ripeness inquiry applicable to First
Amendment claims. Wolfson, 616 F.3d at 1058. Our
precedent recognizes that “where protected speech may be at
stake, a plaintiff need not risk prosecution in order to
challenge a statute.” Id. at 1060. Rather, in the free speech
context, “the plaintiff need only demonstrate that a threat of
potential enforcement will cause him to self-censor, and not
follow through with his concrete plan to engage in protected
conduct.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d
827, 839 (9th Cir. 2014).
I am unpersuaded that this case calls for the relaxation of
ripeness requirements applicable to cases involving protected
speech. Ironworkers asserts that picketing the District in
violation of section 8(b)(4)(ii)(B) involves First Amendment
conduct—but it is well-established that secondary picketing
in violation of section 8(b)(4)(ii)(B) is not protected activity
under the First Amendment. See, e.g., Int’l Longshoremen’s
Ass’n AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 226 (1982)
(“We have consistently rejected the claim that secondary
16 N.L.R.B. V. IRONWORKERS
picketing by labor unions in violation of § 8(b)(4) is protected
activity under the First Amendment.”). This is because
secondary picketing typically involves not merely speech
intended to communicate, but conduct designed to coerce. See
NLRB v. Retail Store Employees Union, Local 1001, 447 U.S.
607, 618–19 (1980) (Stevens, J., concurring). Section
8(b)(4)(ii)(B), as a regulation of coercive conduct designed to
protect neutral employers from being drawn into labor
disputes, “carries no unconstitutional abridgement of free
speech.” Int’l Brotherhood of Elec. Workers, Local 501 v.
NLRB, 341 U.S. 694, 705 (1951). Therefore, a relaxation of
the ripeness inquiry on the ground that Ironworkers’
challenge to section 8(b)(4)(ii)(B) implicates protected
speech is unwarranted.
IV.
I can appreciate Ironworkers’ attempt to leverage new
developments in case law and legal scholarship to challenge
the constitutionality of section 8(b)(4)(ii)(B). But we must
take seriously the principle that federal courts “cannot decide
constitutional questions in a vacuum.” Alaska Right to Life
Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th
Cir. 2007). Without a “concrete factual situation” before us,
id., we have “no business” deciding Ironworkers’ petition, “or
expounding the law in the course of doing so,” Cuno,
547 U.S. at 341. Nor can we assume away the jurisdictional
question on the basis that the merits are more readily
resolved. See Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 93–94 (1998). Constitutional ripeness is a
jurisdictional prerequisite, not a doctrine of convenience.
Here, Ironworkers has not shown a threat of enforcement
of sufficient immediacy to satisfy ripeness. I would join my
NLRB V. IRONWORKERS 17
colleagues’ order if I thought this case were ripe for review.
But because I am convinced Ironworkers’ challenge to
section 8(b)(4)(ii)(B) is not a proper case or controversy, I
conclude we do not have the power to decide the issue.