Iron Workers Local 229 is asking the U.S. Supreme Court to reconsider a ruling from 1951 stating that a provision under the National Labor Relations Act (NLRA) can bar unions from inviting neutral employees to join protests. In its petition, filed February 8, the Iron Workers argue that the provision infringes upon the First Amendment right to free speech.
“Only a labor organization within the meaning of the NLRA and no other entity can be found to have engaged in unlawful secondary boycotting by making this request to the employees,” reads the petition. “The employees themselves have the right to leave the job. Any other person could have made the same request. This case is about whether the Court’s current First Amendment jurisprudence applies to the content of labor speech.”
In the petition, the union argues points out that the First Amendment to the U.S. Constitution states that “Congress shall make no law abridging the freedom of speech.” However, U.S.C. 158(b) of the NLRA states that “It shall be an unfair labor practice for a labor organization or its agents to induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of his employment to perform any services forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person.”
The petition follows a decision by the U.S. Court of Appeals for the Ninth Circuit entered on October 28, 2019. A petition for rehearing was denied on September 11, 2020. Iron Workers Local 229 admits that amid a labor dispute between it and another union and a contractor on a jobsite in Southern California, a business agent asked employees working for a different contractor to leave work using “peaceful and non-coercive communication.” However, the attempt at a secondary boycott was unsuccessful and no one from the company stopped working.
The National Labor Relations Board (NLRB) issued a complaint alleging the communication was unlawful secondary boycotting and an administrative law judge issued a decision finding that the conduct violated the NLRA. A Court enforced the decision, rejected the First Amendment argument by relying upon an earlier Supreme Court decision, International Brotherhood of Electrical Workers, Local 501 v. NLRB, 341 U.S. 694 (1951) (IBEW).
The Iron Workers were denied a rehearing on the matter, but six judges joined in a “lengthy and vigorous” dissent pointing out that the NLRB’s order violated the First Amendment because it was entirely content-based and there was no scrutiny analysis.
“If this Court allows this opinion to stand, it will have carved out an exception from the strict scrutiny standard for content-based regulation only in the area of labor speech, a remarkable content-based decision,” reads the petition.