Union Raises Free Speech Defense to Boycott Charge

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By Lawrence E. Dubé

An Iron Workers local plans to continue challenging the constitutionality of the National Labor Relations Act’s ban on secondary boycotts after an NLRB administrative law judge ruled the union illegally urged employees to go on strike at a California construction site ( Int’l Ass’n of Bridge, Structural and Reinforcing Iron Workers Local 229 (Commercial Metals Co.) , 2017 BL 149187, NLRB ALJ, No. 21-CC-183510, 5/4/17 ).

ALJ Mary Miller Cracraft held May 4 that Bridge, Structural, Ornamental & Reinforcing Iron Workers Local 229 encouraged employees of Commercial Metals Co. to stop work to pressure CMC or its general contractor to stop doing business with a concrete company that was engaged in its own labor dispute with Local 229 and an International Union of Operating Engineers local.

Local 229’s conduct violated Section 8(b)(4)(i)(B) of the NLRA, which forbids secondary boycotts that enmesh neutral employers in labor disputes, Cracraft said. The statutory provision prohibits a union from inducing employees to engage in strikes or job actions with an object of pressuring a neutral organization to cease doing business with an employer that has a labor dispute with a union.

Union attorney David A. Rosenfeld argued earlier that a recent U.S. Supreme Court decision in a First Amendment case shows the NLRB provision is unconstitutional. “Whatever the Board decides, the case will go to the Court of Appeals,” Rosenfeld wrote in a brief to Cracraft.

Union Appealed to Neutral’s Workers

CMC installed reinforcing steel on a parking structure. McCarthy Building Cos. was general contractor and Western Concrete Pumping Inc. was a subcontractor.

IUOE Local 12 established a picket line directed at WCP, while Local 229’s business agent James Alvernaz used text messages and phone calls to urge CMC employees to strike or refuse to perform work.

The ALJ said Local 229 didn’t deny that it was appealing to the CMC workers in order to pressure CMC or McCarthy to cease doing business with WCP. Such conduct violated the NLRA, Cracraft found.

Union Challenges NLRA Provision

The Iron Workers local argued Section 8(b)(4)(i)(B) is presumptively unconstitutional. The provision is “content based” and applying it to “pure speech” like Alvernaz’s messages violates the First Amendment, the union contended.

However, Cracraft said the Supreme Court “answered the free speech argument” when it ruled in 1951 that an NLRA prohibition on inducement or encouragement of “secondary pressure” in labor disputes was constitutionally permissible.

Cracraft also declined to find that the business agent’s communications were protected by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, which restricts government burdens on the free exercise of religion.

Local 229 didn’t show that the NLRA’s ban on secondary boycotts would burden the union’s exercise of any rights, she said.

The ALJ recommended the union be ordered to post a notice informing employees and union members that it won’t engage in unlawful conduct,

However, Rosenfeld, a partner in Weinberg, Roger & Rosenfeld in Alameda, Calif., told Bloomberg BNA May 5, “I plan to take exception and challenge this in the court of appeals.”

CMC counsel didn’t respond to a May 5 request for comment on the decision.

NLRB attorney Lisa McNeill represented the National Labor Relations Board. L. Brent Garrett of Atkinson, Andelson, Loya, Ruud & Romo in Cerritos and Irvine, Calif., represented Commercial Metals Co.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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