Labor law holds a precarious place within First Amendment jurisprudence. Since the 1930s, unions have enjoyed both protections and constraints that appear to push the boundaries of constitutionality. Recently, cases like Janus v. AFSCME have threatened labor law’s uneasy equilibrium of worker power and individual rights. With union-protective legislation falling under First Amendment challenge, scholars and practitioners have wondered whether statutory constraints on unions may likewise be vulnerable. In a recent decision, NLRB v. International Ass’n of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229 (Local 229), the Ninth Circuit held that the answer is no—at least with respect to § 8(b)(4)(i)(B) of the National Labor Relations Act (the Act). But the court’s reasoning does little to fortify the Act’s constitutional underpinnings, leaving major questions unresolved and leaving restrictions on union speech open to future challenge.
Section 8(b)(4) of the National Labor Relations Act makes it unlawful for a labor organization to engage in collective action that targets an employer otherthan the one with whom the labor organization has a grievance. While labor unions may strike and picket any “primary” employer with whom they are directly in dispute, the Act prohibits unions from taking “secondary” action to force a neutral employer to cease doing business with, or otherwise exert pressure on, the primary employer. This prohibition is twofold: First, under § 8(b)(4)(i)(B) of the Act, labor unions may not “engage in, or . . . induce or encourage any individual . . . to engage in” a strike or partial work stoppage targeting the neutral employer. Second, under § 8(b)(4)(ii)(B), a labor union may not “threaten, coerce, or restrain” any neutral employer in order to force that employer to weigh in on the primary dispute.
In 2016, general contractor McCarthy Building Companies was contracted to build a parking garage at a California casino. McCarthy entered into sub-contracts with Commercial Metals Company (CMC) and Western Concrete Pumping (WCP). While the job was ongoing, the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229 (Local 229), determined that WCP was not paying area standard wages, and commenced a lawful picket of the jobsite. While the picket was ongoing, members of Local 229 also contacted CMC employees, asking them to strike or picket in solidarity with the union.
Shortly thereafter, CMC filed an unfair labor practice charge against Local 229, alleging that the union’s actions violated the Act. An Administrative Law judge ruled for CMC, finding that Local 229 violated § 8(b)(4)(i)(B) by encouraging CMC employees to strike “for the unlawful secondary purpose of furthering Local 229’s primary labor dispute with Western Concrete,” and the National Labor Relations Board affirmed. The union appealed to the Ninth Circuit, arguing that, although the facts present a relatively cut-and-dried case of unlawful secondary action, § 8(b)(4)(i)(B) is presumptively unconstitutional as a content-based restriction on speech and therefore subject to strict scrutiny.
The Ninth Circuit affirmed. Writing for the panel, Judge Rawlinson pointed to the 1951 Supreme Court decision International Brotherhood of Electrical Workers v. NLRB(IBEW), in which the Court held that “[t]he prohibition of inducement or encouragement of secondary pressure . . . carries no unconstitutional abridgment of free speech.” Noting a presumption against implicit overruling of Supreme Court precedent, Judge Rawlinson rejected the union’s argument that the Supreme Court’s decision in Reed v. Town of Gilbertchanged the analysis. Reed applied strict scrutiny to content-based restrictions on expression directed toward the “general public.” Local 229, by contrast, engaged in communication “addressed to neutral employees within the highly regulated contours of labor negotiations.”
The panel also rejected Local 229’s reliance on Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Councilto support the union’s claim that its speech was unlawfully burdened. In DeBartolo, the Supreme Court found that peaceful handbilling of consumers in order to induce a secondary boycott was not prohibited under § 8(b)(4)(ii)(B) of the Act. But as DeBartolo concerned a different section of the Act—§ 8(b)(4)(ii)(B)—and did not address speech directed at neutral employees, the Ninth Circuit found that the case had no relevance.
Local 229 manages to uphold § 8(b)(4) without providing it much of a constitutional defense. First, distinguishing Reed on the grounds that that casedid not involve “communications . . . within the highly regulated contours of labor negotiations” is frankly circular. It is true that § 8(b)(4) constrains speech only within the “regulated contours” of labor law—those regulations are, in fact, what Local 229’s appeal challenged. While the details of the related regulatory scheme are certainly relevant to the constitutionality of statutory speech restrictions, the existence of such a scheme does not preclude any scrutiny of those restrictions. After all, the agency-fee scheme struck down in Janus existed within the “highly regulated contours of labor negotiations,” but the Supreme Court nonetheless found that requiring public-sector workers to pay agency fees violates the First Amendment.
Second, the court’s opinion leaves unanswered many serious questions about the constitutionality of § 8(b)(4). In distinguishing Reed and DeBartolo, the panel declined to articulate why communication addressed to “the general public” should be legally distinguishable from communication addressed to workers. Predicating this distinction on the implicit assumption that speech restrictions may discriminate based on the identity of the listener is doctrinally shaky, to say the least. And contrary to the panel’s assertion, First Amendment jurisprudence has changed substantially in the decades since the Supreme Court decided IBEW. In NAACP v. Claiborne Hardware, the Court held that secondary picketing for political ends is protected under the First and Fourteenth Amendments. While the Claiborne Court took pains to carve out picketing by unions from this category of protected activity, First National Bank of Boston v. Bellotti and Citizens United v. FEC, introduced and refined the doctrine that speech restrictions that discriminate based on speaker identity trigger heightened scrutiny. Despite these developments, lower courts continue to dodge serious inquiry into the constitutionality of restrictions on union speech.
Finally, by distinguishing Local 229 from DeBartolo, the court upheld the constitutionality of § 8(b)(4)(i)(B) of the National Labor Relations Act without touching on the validity of § 8(b)(4)(ii)(B). That provision is the subject of a separate action currently before the Ninth Circuit. While the court has curtailed First Amendment challenges to § 8(b)(4)(i)(B), Local 229 provides few clues as to how the court will engage with that and other potential First Amendment challenges to federal labor law.