Labor & Employment Law Daily Union’s constitutional challenge to NLRB finding of unlawful secondary activity fails
Wednesday, October 30, 2019

Union’s constitutional challenge to NLRB finding of unlawful secondary activity fails

By Ronald Miller, J.D.

The First Amendment, the appeal court observed, does not protect communications directed at neutral employees merely because the form of communications is handbilling and conversations.

Substantial evidence supported the NLRB’s finding that the Iron Workers union violated NLRA Section 8(b)(4)(i)(B) by inducing or encouraging neutral employees of Commercial Metals Company to strike or stop work for the unlawful secondary purpose of furthering its primary labor dispute with Western Concrete Pumping, ruled the Ninth Circuit. In rejecting the union’s constitutional challenge to the Board’s finding that it violated the Act, the appeals court concluded that the words “induce and encourage” are broad enough to include every form of influence and persuasion in order to prevent secondary boycotts. Thus, the appeals court granted the Board’s application for enforcement of its order (NLRB v. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, October 28, 2019, Rawlinson, J.).

McCarthy Building Companies, a general contractor, subcontracted with Western Concrete Pumping (WCP) and Commercial Metals Company (CMC) to perform work in connection with the construction of a parking garage for a casino. The Iron Workers and Operating Engineers Local 12 engaged in a labor dispute with WCP over allegedly substandard wages. The Operating Engineers lawfully picketed at the jobsite against WCP.

Secondary boycott encouraged. In August 2016, an Iron Workers’ business agent appealed to CMC’s neutral employees specifically to induce or encourage a secondary boycott of CMC in support of the Iron Workers’ labor dispute with WCP. The business agent texted CMC employees a link to a webpage encouraging them not to cross the Iron Workers’ picket line. He also spoke to CMC employees at the jobsite on two occasions, and placed copies of a flyer entitled “Picket Line Etiquette” in their lunchboxes.

CMC filed a charge against the Iron Workers for encouraging CMC’s neutral employees to strike or stop work for the unlawful secondary purpose to further its primary dispute with WCP. An administrative law judge found that the Iron Workers had violated Section 8(b)(4)(i)(B), and recommended that the Board enter a cease and desist order. The Board affirmed the ALJ’s factual findings and rejected the union’s constitutional and statutory arguments. The Board sought enforcement if its order enjoining the Iron Workers from violating the NLRA while the union opposed enforcement of the Board’s order.

Constitutional challenge. A union may not exert pressure on employees of a neutral employer to strike against that secondary employer for the purpose of increasing the union’s leverage in its dispute against the primary employer. Here, the union conceded that it violated Section 8(b)(4)(i)(B). However, it asserted a number of constitutional and statutory challenges to the Board’s application of Section 8(b)(4)(i)(B).

As an initial matter, the union contended that the Board’s application of the statute to its conduct punished expressive activity protected by the First Amendment. Specifically, the union sought to extend the Supreme Court’s decision in Reed v. Town of Gilbert, to apply strict scrutiny to the analysis of Section 8(b)(4)(i)(B). Contrary to the union’s contention that the Supreme Court’s 1951 decision in International Brotherhood of Electrical Workers v. NLRB (IBEW), addressed only picketing, and not speech, the Court has concluded that “[t]he words ‘induce and encourage’ are broad enough to include every form of influence and persuasion,” in order to prevent the “substantive evil [of] secondary boycott.”

The two circuits that have addressed the First Amendment implications of Section 8(b)(4)(i)(B) in the context of pure speech have applied IBEW to hold that the “First Amendment is not at all implicated” when activities prohibited by Section 8(b)(4)(i) are proscribed. The D.C. Circuit expressly held in Warshawsky & Co. v. NLRB, that the First Amendment does not protect communications directed at the neutral employees merely because the form of communications is handbilling and conversations. In NLRB v. Local Union 3, Int’l Bhd. of Elec. Workers, the Second Circuit rejected the same arguments that the Iron Workers now made.

In contrast to Reed, which involved content-based restrictions in a municipal ordinance regulating signs, this case involves communications addressed to neutral employees within the highly regulated contours of labor negotiations.

Statutory challenge. Moreover, the appeals court found that the Board reasonably rejected the union’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). In IBEW, the Court definitely and undeniably rejected the notion that activities proscribed by Section 8(b)(4) could escape prohibition through application of Section 8(c), reasoning that nothing in the language or legislative history of Section 8(c) indicates a congressional intent to create an asylum of immunity from the proscription of Section 8(b)(4).

Similarly, the appeals court concluded that the Board properly rejected the challenges asserted by the union under the Religious Freedom Restoration Act and the Thirteenth Amendment. Moreover, the appeals court found that the language of the Board’s order adequately apprised the union of its notice obligations. Consequently, the Board’s petition to enforce its order was granted.

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