Nat'l Labor Relations Bd. v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers

• Decision Date: 11 September 2020
• Docket Number: No. 17-73210,17-73210
• Citation: 974 F.3d 1106 (Mem)
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL, AND REINFORCING IRON WORKERS, LOCAL 229, AFL-CIO, Respondent.

974 F.3d 1106 (Mem)

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, Ninth Circuit.

Filed September 11, 2020

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 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, 130 S.Ct. 876, 175 L.Ed.2d 753 (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, 108 S.Ct. 1157, 99 L.Ed.2d 333 (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, 112 S.Ct. 2538, 120 L.Ed.2d 305 (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, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). The National Labor 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 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, 71 S.Ct. 954, 95 L.Ed. 1299 (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, 71 S.Ct. 954 ).

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, 71 S.Ct. 954. 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—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 noncoercively 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, 71 S.Ct. 954 (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 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, 71 S.Ct. 954. 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:

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