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Iron Workers Lose Free Speech Challenge to Secondary Boycott Ban (1)

Oct. 28, 2019, 8:21 PM

The Ninth Circuit Oct. 28 upheld an NLRB order blocking California-based Iron Workers from encouraging employees of a neutral employer to strike or stop work to gain leverage over the principal employer the Iron Workers had a labor dispute with. It rejected free speech and other arguments against the order.

The union tactic, known as a secondary boycott, puts pressure on neutral employers to cease doing business with the primary employer, and is banned by Section 8(b)(4)(i)(B) of the National Labor Relations Act. Workers and unions may lawfully engage in secondary picketing and other kinds of demonstrations and speech aimed at a neutral, but they can’t try to coerce the public or neutral businesses to cease doing business with the primary employer.

Another recent National Labor Relations Board decision that’s currently on appeal, also before the Ninth Circuit, could result in new legal precedent about when and how unions cross the line from lawful secondary picketing and speech to unlawful and coercive secondary boycotts.

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 229 and Operating Engineers Local 12 had a wage dispute with Western Concrete Pumping over a parking lot construction in Southern California, which triggered a strike against WCP. Local 229 then encouraged employees of Commercial Metals Co., which worked with WCP, to also strike or stop working on the construction.

The NLRB found that the union’s conduct violated the secondary boycott ban, and subsequently entered a cease and desist order against Local 229.

Local 229 has since admitted that its actions violated the ban and conceded substantial evidence supports that conclusion, but said the ban violates the First Amendment, the Religious Freedom Restoration Act, and the Thirteenth Amendment.

A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit upheld the NLRB’s enforcement order. David Rosenfeld, Local 229’s attorney, told Bloomberg Law Oct. 28 that he will likely petition for a rehearing before all the judges of the Ninth Circuit.

The current interpretation of the NLRA—which permits the government to regulate speech in the area of labor relations more strictly than in others—presents a serious First Amendment issue that needs to be resolved, Rosenfeld said.

The NLRB didn’t immediately respond to a request for comment. Rosenfeld is a shareholder at Weinberg, Roger & Rosenfeld.

No Free Speech Issue?

The NLRB’s application of the secondary boycott ban didn’t punish the union’s expressive activity, the panel said, relying on the U.S. Supreme Court’s holding in International Brotherhood of Electrical Workers v. NLRB that the ban “carries no unconstitutional abridgment of free speech” and that even peaceful picketing can violate it.

The panel cited IBEW in finding that the NLRA’s Section 8(c) didn’t protect Local 229’s communications, because it doesn’t immunize activities that violate Section 8(b)(4).

The panel wouldn’t extend the Supreme Court’s Reed v. Town of Gilbert application of strict scrutiny review. Reed was about content-based restrictions on signs directed at the public, the panel said, but the NLRA ban only applies to communications addressed to neutral employees within the tightly regulated contours of labor negotiations.

In addition, the panel rejected Local 229’s RFRA and Thirteenth Amendment arguments, noting no evidence supported that the NLRA’s ban on secondary boycotts substantially burdened its exercise of religion or resulted in involuntary servitude.

NLRB attorney Linda Dreeben represented the National Labor Relations Board.

The case is NLRB v. IAB, Local 229, 9th Cir., No. 17-73210, 10/28/19.

To contact the reporters on this story: Kathleen Dailey at kdailey@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com