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National Labor Relations Board v. International Association of Bridge

United States Court of Appeals, Ninth Circuit

June 8, 2018

National Labor Relations Board, Petitioner,
v.
International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers Union, Local 433, Respondent.

          Argued and Submitted January 9, 2018 San Francisco, California

          On Petition for Review of an Order of the National Labor Relations Board NLRB Nos. 31-CC-1761, 31-CC-1777, 31-CC-1770, 31-CC-1801-1, 31-CC-2076

          Kevin J. Hobson (argued), Trial Attorney; Kevin P. Flanagan, Supervisory Attorney; Contempt, Compliance and Special Litigation Branch, National Labor Relations Board, Washington, D.C.; for Petitioner.

          David A. Rosenfeld (argued), Weinberg Roger & Rosenfeld, Alameda, California, for Respondent.

          Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

         SUMMARY [*]

         Consent Decree

         The panel denied the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers Union, Local 43's motion to modify extant consent decrees arising from a series of disputes between the Union and the National Labor Relations Board regarding the Union's right to engage in secondary picketing of government facilities under Section 8(b)(4)(ii)(B) of the National Labor Relations Act.

         Between 1988 and 1989, the Board issued three orders finding that the Union engaged in impermissible secondary boycotts in violation of the NLRA. The Union entered into a consent decree. Almost twenty years later, the Union filed a motion under Fed.R.Civ.P. 60(b) seeking to modify language contained in 1991 and 1999 consent contempt adjudications prohibiting secondary picketing.

         The U.S. Supreme Court upheld a First Amendment challenge to the constitutionality of § 8(b)(4)(ii)(B) in National Labor Relations Bd. v. Retail Store Employees Union, Local 1001 (Safeco), 447 U.S. 607 (1980).

         The panel held that the Union failed to meet its burden of showing that Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), changed the legal landscape in the significant way required to modify a consent decree. Specifically, the panel held that the restrictions on speech addressed by Reed were not implicated by compliance with § 8(b)(4)(ii)(B). In addition, the plain reading of § 8(b)(4)(ii)(B) reflected that the statute regulated conduct rather than content. The panel concluded that the Union could not establish that continuing to apply the consent judgments prospectively would be inequitable, as required for relief under Rule 60(b)(5).

         Judge Wallace wrote separately because although he agreed with the result, he disagreed with the decision to reach the merits. Judge Wallace would instead dismiss the Union's petition as nonjusticiable because the constitutional challenge was not ripe for judicial review and not a proper case or controversy.

          ORDER

         This appeal is the latest in a series of disputes between the National Labor Relations Board (NLRB) and the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers Union Local 433 (Ironworkers) regarding Ironworkers' right to engage in secondary picketing of government entities under Section 8(b)(4)(ii)(B)[1] of the National Labor Relations Act (NLRA).[2] Because the constitutionality of the challenged statute is not affected by the decision of the United States Supreme Court in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), we deny Ironworkers' motion to modify the extant consent decree.

         I. Statutory Background

         Section 8(b)(4)(ii)(B) describes as an unfair labor practice any action to "threaten, coerce, or restrain any person engaged in commerce . . . where . . . an object thereof is . . . forcing or requiring any person . . . to cease doing business with any other person." 29 U.S.C. § 158(b)(4)(ii)(B). Such conduct is regarded as impermissible secondary boycotting, being "directed at parties who are not involved in the labor dispute." See Retail Property Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 943 (9th Cir. 2014). Section 8(b)(4)(ii)(B) proscribes the creation of "a separate dispute with the secondary employer" in order to coerce the primary employer. National Labor Relations Bd. v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 72 (1964); see also Constar, Inc. v. Plumbers Local 447, 748 F.2d 520, 521 (9th Cir. 1984). Section 8(b)(4)(ii)(B) does not preclude picketing that results in an "incidental injury to the neutral [parties], " so long as the picketing was not "reasonably calculated to induce customers not to patronize the neutral parties at all." National Labor Relations Bd. v. Retail Store Employees Union, Local 1001 (Safeco), 447 U.S. 607, 614 (1980) (citation omitted).

         II. Factual Background

         Before us is a consolidated motion filed by Ironworkers seeking to modify under Rule 60(b)(5) of the Federal Rules of Civil Procedure a prior contempt adjudication. Between 1988 and 1989 the Board issued three orders finding that Ironworkers engaged in impermissible secondary boycotts in violation of the NLRA. See Ironworkers Local 433 (Chris Crane), 288 NLRB 717 (1988); Ironworkers Local 433 (Chris Crane), 294 NLRB 182 (1989); Ironworkers Local 433(United Steel), 293 NLRB 621 (1989). In 1991, Ironworkers entered into a consent decree after we upheld the Board's orders. See National Labor Relations Bd. v. Ironworkers Local 433, 169 ...


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