NLRB v. Iab, Local 229 ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 17-73210
BOARD,
Petitioner, NLRB No.
21-CC-183510
v.
INTERNATIONAL ASSOCIATION OF ORDER
BRIDGE, STRUCTURAL,
ORNAMENTAL, AND REINFORCING
IRON WORKERS, LOCAL 229, AFL-
CIO,
Respondent.
Filed September 11, 2020
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
*
The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2 NLRB V. IAB LOCAL 229
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 National Labor Relations
Act (“NLRA”). The Board affirmed the administrative law
judge’s finding that Local 229 had violated Section
8(b)(4)(i)(B) of the NLRA by inducing or encouraging
Commercial Metals Company’s neutral employees to strike
or stop work for the unlawful secondary purpose of
furthering Local 229’s primary labor dispute with Western
Concrete Pumping. The panel rejected Local 229’s
contention that the Board’s application of the NLRA to its
conduct punished expressive activity protected by the First
Amendment. Specifically, the panel refused to extend the
Supreme Court’s decision in Reed v. Town of Gilbert, 135
S. Ct. 2218 (2015), and refused to apply strict scrutiny to the
analysis of Section 8(b)(4)(i)(B). The panel explained that
Reed involved content-based restrictions in a municipal
ordinance regulating signs directed toward the general
public, whereas this case involved communications
addressed to neutral employees within the tightly regulated
**
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. IAB LOCAL 229 3
contours of labor negotiations. The panel held that the Board
reasonably rejected Local 229’s contention that Section 8(c)
of the NLRA protected its communications because the
Supreme Court has concluded that Section 8(c) does not
immunize activities that violate Section 8(b)(4). The panel
held that the Board properly rejected the challenges asserted
by Local 229 under the Religious Freedom Restoration Act
and under the Thirteenth Amendment to the United States
Constitution. Finally, the panel held that the language of the
Board’s order adequately apprised Local 229 of its notice
obligations.
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 First
Amendment protection. By declining to undertake any
identity-, content-, or viewpoint-based analysis – including
the strict scrutiny inquiry those features should have
triggered – and instead relying on an inapposite Supreme
Court opinion, International Brotherhood of Electrical
Workers v. NLRB, 341 U.S. 694 (1951), the panel in this case
relegated to second-class constitutional status the right of
labor organizations to speak on matters that may concern
them greatly.
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.
4 NLRB V. IAB LOCAL 229
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.
NLRB V. IAB LOCAL 229 5
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 First Amendment
right to the freedom of speech. Standing on a public sidewalk
outside a McDonald’s, she distributes to McDonald’s
employees pamphlets declaring that “Meat is Murder,”
detailing various criticisms of the meat industry, and asking
them to stop working for McDonald’s. Suppose, further, that
a federal statute prohibits those affiliated with “anti-meat
organizations” from “inducing or encouraging” employees
of businesses that traffic in meat to “cease participation in
the meat market,” and that, pursuant to that statute, a federal
court enjoins our vegetarian’s peaceful distribution of
pamphlets. Our vegetarian challenges the injunction as
forbidden by the First Amendment.
The case presented by this challenge would be an easy
one under current First Amendment doctrine. The imagined
statute unconstitutionally discriminates on identity, content,
and viewpoint bases. The statute unconstitutionally
discriminates on the basis of the speaker’s identity, because
by its terms it prohibits the distribution of these pamphlets
by those affiliated with “anti-meat organizations,” whereas
those not so affiliated could distribute them unimpeded. See,
e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
340 (2010). It unconstitutionally discriminates on the basis
of content, because an affiliate of an anti-meat organization
is left free to take to the sidewalk outside McDonald’s to
express her views on, say, the wages that McDonald’s pays
its workers—it is only meat-related speech that is
proscribed. See, e.g., Boos v. Barry, 485 U.S. 312, 317–22
6 NLRB V. IAB LOCAL 229
(1988). And the statute unconstitutionally discriminates on
the basis of viewpoint, because while pamphlets
encouraging people to “cease participation in the meat
market” are prohibited, a pamphlet discouraging such
cessation—say, “Increase Meat Sales, Work for
McDonald’s”—remains permissible. See, e.g., R.A.V. v. City
of St. Paul, 505 U.S. 377, 388–92 (1992). The district court’s
injunction would be unlawful in each of these respects.
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. 29 U.S.C. § 163; see also, e.g., Am. Ship Bldg.
Co. v. NLRB, 380 U.S. 300, 310 (1965). The National Labor
1
Another union, Operating Engineers Local 12, was picketing
outside the jobsite at the time Local 229 engaged in these activities.
Local 12’s primary picketing over compliance with area standards was
lawful. See United Steelworkers of America, AFL-CIO v. NLRB,
376 U.S. 492, 501–02 (1964). Neither the parties nor the panel asserted
that Local 12’s lawful picketing activity bears on the legality of Local
229’s speech. Local 229, 941 F.3d at 904–05.
NLRB V. IAB LOCAL 229 7
Relations Board nonetheless enjoined this speech pursuant
to Section 8(b)(4)(i)(B) of the National Labor Relations Act,
which prohibits unions from “inducing or encouraging”
employees neutral to a labor dispute to cease work in support
of the union’s dispute with a separate contractor. 29 U.S.C.
§ 158(b)(4)(i)(B).
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 First
Amendment protection that it would surely have extended to
our imagined vegetarian? One could be forgiven for
answering: Because unions seem to operate under a different
First Amendment than the one that protects the rest of us.
Much has been written about the apparently anomalous
First Amendment status of unions. See, e.g., Cynthia
Estlund, Are Unions a Constitutional Anomaly?, 114 Mich.
L. Rev. 169, 193–211 (2015); Catherine L. Fisk, Is It Time
for a New Free Speech Fight? Thoughts on Whether the First
Amendment is a Friend or Foe of Labor, 39 Berkeley J. Emp.
& Lab. L. 253, 258–67 (2018); see also Case Comment,
NLRB v. International Ass’n of Bridge, Structural,
Ornamental, & Reinforcing Iron Workers, Local 229,
133 Harv. L. Rev. 2619, 2620–26 (2020). But the scholarly
8 NLRB V. IAB LOCAL 229
engagement with that anomaly, as well as the development
of labor doctrine in our courts, has always focused on the
reasons why, and the particular contexts where, labor speech
receives less constitutional protection than non-labor speech
would. The panel opinion, by contrast, elides these difficult
labor law questions and the rich history from which they
spring. Instead, it treats this difficult case as squarely settled
by a single 1951 Supreme Court precedent, International
Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694(1951) (“IBEW”), which it treats as having held that even the
“pure speech” here at issue may be enjoined without
offending the First Amendment, because the words “induce
or encourage” as used in Section 8(b)(4)(i)(B) are “broad
enough to include in them every form of influence and
persuasion.” Local 229, 941 F.3d at 905–06 (quoting IBEW,
341 U.S. at 701–02).
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 First Amendment doctrine
that unfolded in the decades that followed IBEW, and, in
particular, by the picketing-based theory that the Supreme
Court adopted as its rationale for differential treatment of
labor speech in the First Amendment context.
When contemporary doctrine is applied, there can be
little doubt that the pure speech here enjoined is entitled to
full First Amendment protection. By declining to undertake
any identity-, content-, or viewpoint-based analysis—
NLRB V. IAB LOCAL 229 9
including the strict scrutiny inquiry those features should
have triggered—and instead relying on an inapposite,
seventy-year-old Supreme Court opinion, the panel here has
needlessly relegated to second-class constitutional status the
right of labor organizations to speak peacefully and non-
coercively on matters that may concern them greatly. And
by refusing to hear this case en banc, our Court has
acquiesced in a significant curtailment of the liberty secured
by the First Amendment. I respectfully dissent.
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 Section 8(b)(4)(i)(B). See generally
id.Section 8(b)(4)(i)(B) makes it an unfair labor practice for
a union to “induce or encourage any individuals employed
by any person” to refuse “to perform any services” where the
objective of such inducement or encouragement is “forcing
or requiring any person . . . to cease doing business with any
other person.” 29 U.S.C. § 158(b)(4)(i)(B). 2 Interpreting the
“intended breadth” of that statute, the Court remarked that
“[t]he words ‘induce or encourage’ [as used in section
2
When IBEW was decided, this provision was instead codified at
29 U.S.C. § 158(b)(4)(A).
10 NLRB V. IAB LOCAL 229
8(b)(4)(i)(B)] are broad enough to include in them every
form of influence and persuasion.” IBEW, 341 U.S. at 701–
02. Separately, in a single paragraph, the Court rejected a
First Amendment challenge to the statute’s proscription of
the union’s conduct. I quote that paragraph in its entirety:
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 the First
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.
Id. at 705.
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
NLRB V. IAB LOCAL 229 11
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
First Amendment does not excuse picketing to compel an
employer . . . even though the pickets carry placards which
bear statements of the grievances involved.” IBEW, Local
501 v. NLRB, 181. F.2d 34, 40 (2nd Cir. 1950) (emphasis
added).
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 First Amendment status of picketing. In
Giboney v. Empire Storage & Ice Co., the Supreme Court
explained that “[p]icketing by an organized group is more
than free speech, since 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.” 336 U.S.
490, 503 n.6 (1949) (citation omitted). The Court
accordingly concluded that “the state is not required to
tolerate in all places . . . even peaceful picketing by an
12 NLRB V. IAB LOCAL 229
individual.” Id. at 501 (citation omitted). In Building Service
Employees International Union v. Gazzam, the Supreme
Court stated that, because “picketing is more than speech[,]
. . . this Court has not hesitated to uphold a state’s restraint
of acts and conduct which are an abuse of the right to picket.”
339 U.S. 532, 537 (1950) (emphasis added). International
Brotherhood of Teamsters v. Hanke again emphasized that
“while picketing has an ingredient of communication it
cannot dogmatically be equated with the constitutionally
protected freedom of speech,” and went on to uphold yet
another injunction against picketing. 339 U.S. 470, 474, 481
(1950). And in Hughes v. Superior Court, the Supreme Court
summarized: “[W]hile picketing is a mode of
communication it is inseparably something more and
different.” 339 U.S. 460, 464–65 (1950). 3
In the decades that followed IBEW, two circuit courts
ignored its picketing-specific context and reasoning,
extending it to uphold against First Amendment challenge
applications of Section 8(b)(4)(i)(B) to pure speech.
Warshawsky & Co. v. NLRB, 182 F.3d 948, 952 (D.C. Cir.
1999); NLRB v. Local Union No. 3, Int’l Bhd. of Elec.
Workers, 477 F.2d 260, 266 (2d Cir. 1973). In so holding,
these opinions treated the opening sentence of the quoted
3
Some of the circuit court decisions cited in IBEW’s brief
constitutional section did not involve any picketing. See IBEW, 341 U.S.
at 705 n.9. But to assess the significance of such citations, we must take
note of the proposition in support of which they were cited: namely, that
Section 8(b)(4)(i)(B) “has been sustained by several Courts of Appeals.”
Id. at 705. That proposition contains no reasoning whatsoever; it is
entirely empirical. The actual holding unfolds in the subsequent two
sentences. And for those propositions, the only citations are to Supreme
Court precedents which, as I have demonstrated, explicitly condition
their constitutional analyses on the unique First Amendment status of
labor picketing.
NLRB V. IAB LOCAL 229 13
paragraph as foreclosing any constitutional challenge to any
application of Section 8(b)(4)(i)(B), disregarding the
picketing context of the opinion and the picketing-specific
reasoning of the paragraph as a whole. And the opinions did
so without regard for any subsequent developments in First
Amendment doctrine. Warshasky, 182 F.3d at 952; Local
Union No. 3, 477 F.2d at 266; see also Case Comment,
NLRB v. IAB, Local 229, 133 Harv. L. Rev. at 2621–23.
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 First Amendment
jurisprudence since IBEW was decided. The panel invoked
the fact that IBEW’s brief constitutional analysis was
conducted “[w]ithout applying strict scrutiny” as a reason to
ignore all subsequent legal developments. Id. at 905 (citing
IBEW, 341 U.S. at 699–700, 705). But IBEW was decided
long before the Supreme Court articulated its First
Amendment doctrines as to content-, viewpoint-, and
identity-based discrimination in anything like their current
form. The strict scrutiny standard applicable to such
discrimination was at best in a nascent state; its application
in the First Amendment context developed only gradually.
14 NLRB V. IAB LOCAL 229
See Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92,
95 (1972) (collecting cases).
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,
NLRB V. IAB LOCAL 229 15
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 gender.” 505 U.S. 377, 380 (1992). A state high
court had interpreted the phrase “arouses anger, alarm or
resentment in others” to limit the reach of the ordinance to
“fighting words,” which are generally denied First
Amendment protection on account of the conduct element
that they involve. Id. at 381. The Supreme Court determined
that, even as applied to “fighting words,” the ordinance went
“beyond mere content discrimination[] to actual viewpoint
discrimination” in that only fighting words which aroused
“anger, alarm and resentment” in others were prohibited,
while fighting words used “in favor of racial, color, etc.,
tolerance and equality” remained permissible. Id. at 391–92
(emphasis in original). Recognizing that viewpoint
discrimination is even more offensive to First Amendment
values than is content discrimination, the Court struck down
the ordinance, declining to apply even the strict scrutiny
standard that “mere content discrimination” would demand.
Id. at 391–93. Thus, as to speech that involves a conduct
element, as picketing does, the application of the unforgiving
viewpoint discrimination doctrine is required by R.A.V.
Where, as here, only “pure speech” is implicated, the
doctrine’s application should be even more uncontroversial.
Local 229, 941 F.3d at 904–05.
Finally, consider the First Amendment doctrine
concerning identity-based discrimination. In Citizens United
v. Federal Election Commission, the Court confronted a
federal statute which prohibited only corporations and
unions from making, within 30 days of a primary or 60 days
of a general election, “any broadcast, cable, or satellite
communication” that “refers to a clearly identified candidate
for Federal office.” 558 U.S. 310, 320–21 (2010). The Court
16 NLRB V. IAB LOCAL 229
explained the First Amendment problems posed when
government “identifies certain preferred speakers” by law,
writing that government may not “deprive the public of the
right to determine for itself what speech and speakers are
worthy of consideration. The First Amendment protects
speech and speaker, and the ideas that flow from each.” Id.at 340–41. Applying strict scrutiny and acknowledging that
some identity-based restrictions may be justified when
necessary to prevent interference with “certain government
functions,” the Court concluded that no such interest
justified the statute’s identity-based discrimination against
corporations and unions, and accordingly held that the
statute violated the First Amendment. Id at 341.
None of these now well-developed doctrines had yet
been crystalized when the Supreme Court decided IBEW.
Given such a sea change in First Amendment jurisprudence,
a case that predates it would need to be quite directly on
point to be controlling today. IBEW, with its picketing-
specific reasoning, does not fit that bill.
It is not enough to assert flatly, as the panel did, that these
First Amendment doctrines do not apply “within the highly
regulated contours of labor negotiations,” as though the fact
that union activity is highly regulated permanently siloes it
from otherwise generally applicable developments in
constitutional law. Local 229, 941 F.3d at 906. The Supreme
Court has recently applied these very doctrines in other
highly regulated contexts, including those involving
regulations of the pharmaceutical industry, see Sorrell v.
IMS Health, Inc., 564 U.S. 552, 563–66 (2011), and of
licensed reproductive healthcare providers, see Becerra,
138 S. Ct. at 2371.
NLRB V. IAB LOCAL 229 17
III.
Post-IBEW developments in the labor context
specifically affirm that the “highly regulated” rationale
cannot fly, and that it is instead the distinction between
picketing and “pure speech” that has constitutional salience
in the labor context.
After IBEW was decided, the Supreme Court made clear
that although certain forms of labor picketing do not receive
the full First Amendment protection that courts extend to
other forms of speech, other labor speech does. As explained
already, IBEW’s focus on secondary picketing in the First
Amendment part of the opinion reflects that distinction. But
it does so incompletely, for the Court had not yet decided
any of the major cases concerning the First Amendment
protection that political picketing enjoys, and so there was
no need to explain why labor picketing should be treated
differently.
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 First
Amendment because it made the legality of peaceful
picketing depend upon the subject matter of the message that
such picketing advanced: “[A]bove all else, the First
Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content.” Id. at 95. If the content-discrimination
doctrine precludes government from singling out picketing
on the subject of a labor dispute as the only type of picketing
permitted, it would seem straightforwardly to follow that a
regime which singled out picketing on the subject of a labor
18 NLRB V. IAB LOCAL 229
dispute as the only type of picketing prohibited would
violate the First Amendment as well.
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
Section 8(b)(4)(ii)(B) lawfully prohibited this secondary
consumer picketing, but the majority could not agree on an
explanation for why the prohibition was permitted by the
First Amendment.
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
NLRB V. IAB LOCAL 229 19
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 First
Amendment issue “is not quite as easy as the plurality would
make it seem,” offering an alternative rationale for
upholding the prohibition on secondary labor picketing as
consistent with the First Amendment. Id. at 618 (Stevens, J.,
concurring). Such picketing may be regulated without
violating the constitution, he wrote, because it “is a mixture
of conduct and communication. In the labor context, it is the
conduct element rather than the particular idea being
expressed that often provides the most persuasive deterrent
to third persons about to enter a business establishment.” Id.
at 619.
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 First Amendment than is
labor picketing. 485 U.S. 568, 575 (1988). The Court
observed that “picketing is qualitatively different from other
modes of communication” and cited Justice Stevens’s
Safeco concurrence for the proposition that the persuasive
force of labor picketing draws its strength from such
picketing’s conduct element rather than from the force of the
ideas expressed. Id. at 580 (internal quotation marks and
citation omitted). Applying this distinction to the facts of the
case—which involved union members distributing handbills
“without any accompanying picketing or patrolling,” id.at 571—the Court concluded that because the distribution of
handbills constituted “mere persuasion,” involving no
20 NLRB V. IAB LOCAL 229
“intimidat[ion] by a line of picketers,” construing the NLRA
to prohibit secondary handbilling would raise “serious
questions” about its compatibility with the First Amendment
that prohibiting secondary picketing does not. Id. at 575–76,
580.
DeBartolo thus rejected the Safeco plurality’s bare
reliance on IBEW as the basis for upholding restrictions on
labor picketing against First Amendment challenge. After
DeBartolo, First Amendment challenges to restrictions on a
union’s expressive activity must be evaluated under the
rationale that a majority of the Court there endorsed. If the
expressive activity, like handbilling, lacks the conduct
element that distinguishes labor picketing, the
communication falls on the speech side of the DeBartolo
line, and a serious First Amendment problem is posed.
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, union members had held aloft large banners
announcing a “labor dispute” and declaring “SHAME ON”
certain (secondary) retailers. 409 F.3d 1199, 1201–02 (9th
Cir. 2005). The union argued that its bannering activity was
protected by the First Amendment, so this Court considered
whether such bannering was more like the “mere
persuasion” in DeBartolo, and therefore potentially entitled
to full First Amendment protection, or more like the
“intimidation by a line of picketers” in Safeco, and therefore
unprotected. Id. at 1210–11 (citations omitted). Given the
stationary nature of the bannering activity and the absence
of any physical or symbolic barrier blocking the entrances to
the retailers’ establishments, this Court concluded that the
handbilling in DeBartolo was more suitably analogous. Id.at 1211–16.
NLRB V. IAB LOCAL 229 21
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 inapposite because it concerned
peaceful, non-picketing, non-coercive speech directed at
consumers, whereas here the peaceful, non-picketing, non-
coercive speech was directed at secondary employees.
Local 229, 941 F.3d at 906. The opinion makes no attempt
to explain why, as a First Amendment matter, the audience
of the peaceful, non-picketing, non-coercive speech should
make any difference. See id.
DeBartolo and Overstreet involved applications of
Section 8(b)(4)(ii)(B), whereas this case concerns the
application of Section 8(b)(4)(i)(B). But developments in
First Amendment doctrine are not confined to the particular
statutory context in which they arise. There is no principled
reason why the First Amendment rationale developed by
Justice Stevens in Safeco and subsequently incorporated by
a majority of the Court in DeBartolo would be any less
applicable to one statutory subsection than to the other.
Indeed, the difference in the underlying statutory
subsections at issue undermines rather than strengthens the
panel’s reasoning. Section 8(b)(4)(ii)(B), at issue in
DeBartolo and Overstreet, by its terms applies only when a
labor organization “threaten[s], coerce[s], or restrain[s] any
person engaged in commerce,” such as a customer of a
secondary business who is intimidated by picketing.
22 NLRB V. IAB LOCAL 229
29 U.S.C. § 158(b)(4)(ii). In DeBartolo, as in Overstreet,
our courts avoided the First Amendment problems that they
explicitly acknowledged would be posed by applying
Section 8 to peaceful, non-picketing, non-coercive speech by
adopting a saving construction of Section 8(b)(4)(ii)(B).
DeBartolo, 485 U.S. at 575–76, 580; Overstreet, 409 F.3d
at 1211–12. In both cases, our courts interpreted “threaten,
coerce, or restrain” in such a way that the statute did not
reach the speech for which a prohibition would potentially
violate the First Amendment. Section 8(b)(4)(i)(B), by
contrast, frames its prohibition under the broader “induce or
encourage” language as interpreted in IBEW, which, as the
parties and the panel in this case agreed, admits of no such
saving construction. 941 F.3d at 905; see also 29 U.S.C.
§ 158(b)(4)(i)(B). That difference in statutory language in no
way mitigates the First Amendment problems acknowledged
in DeBartolo and Overstreet; to the contrary, it requires us
to confront head-on the serious but long-avoided First
Amendment problems with identity-, content-, and
viewpoint-based discrimination against non-picketing labor
speech.
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.
NLRB V. IAB LOCAL 229 23
Consider Mosley once again. 408 U.S. 92 (1972). There,
the Court stated, in sweeping terms and without
qualification: “[A]bove all else, the First Amendment means
that government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.”
Id. at 95. This language, if taken on its face and treated with
as little regard for modern doctrine as the panel here treated
isolated sentences in IBEW, would squarely compel a victory
for the union in this case, as there is no question that the
injunction here at issue is content-discriminatory. What is
more, this sweeping utterance in Mosley post-dates the
sweeping utterance in IBEW that Section 8(b)(4)(i)(B)
“carries no unconstitutional abridgment of free speech.”
341 U.S. at 705. But the present state of the doctrine makes
clear that we cannot take this sentence to have the far-
reaching implications it may seem to have: we know that the
government does sometimes have power to restrict speech
on a content-discriminatory basis in a number of contexts—
say, where a labor organization engages in secondary
picketing, or, more generally, where a content
discriminatory restriction on speech is narrowly tailored in
service of a compelling state interest. See, e.g., DeBartolo,
485 U.S. at 575; Burson v. Freeman, 504 U.S. 191, 198, 211
(1992). It does not follow from those nuances of modern
doctrine that Mosley has been overruled; certainly no
Supreme Court opinion has said so. Rather, we must view
that isolated language from Mosley in the context of First
Amendment jurisprudence as a whole. When we do, we see
that Mosley’s holding—that the government may not
constitutionally forbid peaceful non-labor picketing while
permitting only labor picketing—remains intact.
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
24 NLRB V. IAB LOCAL 229
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 First
Amendment doctrines inexplicably exclude Section
8(b)(4)(i)(B) from their reach, and the explanation for
differential treatment of picketing from other forms of labor
speech for First Amendment purposes, adopted in
DeBartolo, is inexplicably confined to Section 8(b)(4)(ii)(B)
only. I submit that we should not accept such an anomaly
unless there is clear Supreme Court precedent which requires
us to accept it. As there is not, this Court’s choice to
acquiesce is an abdication of its responsibilities.
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
NLRB V. IAB LOCAL 229 25
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
26 NLRB V. IAB LOCAL 229
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
NLRB V. IAB LOCAL 229 27
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 First Amendment
expression.” McCullen v. Coakley, 573 U.S. 464, 488–89
(2014) (quoting McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 347 (1995)). Indeed, “no form of speech is
entitled to greater constitutional protection.” Id. Likewise,
the Court has extolled “one-on-one communication,” like
text messaging or calling someone, as perhaps “the most
effective” and “[most] fundamental” speech. Meyer v.
Grant, 486 U.S. 414, 424 (1988). Thus, under binding
precedent, calling, texting, and leafleting are constitutionally
distinct from picketing a business.
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 First Amendment law. See Dissent
at 16 (Berzon, J., dissenting) (“Given such a sea change in
First Amendment jurisprudence,” IBEW “would need to be
quite directly on point to be controlling today.”). Indeed, it
is impossible to escape the conclusion that Section
8(b)(4)(i)(B) of the National Labor Relations Act, 29 U.S.C.
§ 158(b)(4)(i)(B), constitutes an impermissible content-
28 NLRB V. IAB LOCAL 229
based and viewpoint-based restriction on speech. See Reed
v. Town of Gilbert, Ariz., 576 U.S. 155, 163, 168 (2015)
(“Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional”
and “[g]overnment discrimination among viewpoints—or
the regulation of speech based on the specific motivating
ideology or the opinion or perspective of the speaker—is a
more blatant and egregious form of content discrimination”)
(simplified).
Also, I have doubts that § 158(b)(4)(i)(B), as applied
here, would be consistent with the original meaning of the
First Amendment. That Amendment pronounces that
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend I. While the contours of this
language need further explication, and there is ongoing
debate about its meaning among scholars, Justice Scalia
articulated the convincing view that the First Amendment
generally prevents government from proscribing speech on
the basis of content, subject to “traditional categorical
exceptions.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,
382–83 (1992) (identifying obscenity, defamation, and
fighting words as examples of such exceptions). Another
persuasive view is that the First Amendment cemented the
natural right to freely express one’s thoughts, spoken or
written, subject to restrictions for the common good. See Jud
Campbell, Natural Rights and the First Amendment,
127 Yale L.J. 246, 304–07 (2017). But, under this view, “the
Founders widely thought that the freedom to make well-
intentioned statements of one’s views belonged to a subset
of natural rights . . . that could not be restricted in promotion
of the public good and thus fell outside legislative authority
to curtail.” Id. at 255–56. As James Madison said,
“[o]pinions are not the objects of legislation.” 4 Annals of
Cong. 934 (1794); see also Thomas Jefferson, A Bill for
NLRB V. IAB LOCAL 229 29
Establishing Religious Freedom (1779) (“[T]he opinions of
men are not the object of civil government, nor under its
jurisdiction[.]”).
Considering our growing understanding of the First
Amendment’s original meaning, I question whether
Congress can abridge the type of expression at issue here,
especially the common catchphrase, “friends don’t let
friends cross.” NLRB, 941 F.3d at 904. Such an expression
seems precisely like the type of “well-intentioned
statement[] of opinion” that the Founders would have
thought inalienable. See Campbell, supra, at 255–56, 284.
By denying rehearing en banc, we’ve passed on a valuable
opportunity to examine First Amendment history and further
ground our own jurisprudence in the original meaning of the
Constitution.
Because IBEW doesn’t directly control our decision here,
I respectfully dissent from the denial of rehearing en banc.