david rosen pelham behalf of the union we've lost our back i think to some people my office watching so i have to behave because i'm going to concede some issues here that will make this case easier to decide and perhaps more picketing right and you're the panel that ruled against my client expressly said that was a matter of conduct the prior local seventy case which i also argued in this court of i can't remember whether was in this courtroom or not had the same problem it was conduct in this case is not a conduct case so we begin from that premise it's only a speech case and the board in its findings does not refer at all to the picketing by the of the union act as the board presently interprets the words inducement and your courage so if i don't win on the first amendment argument i lose unless the court finds a way to avoid the first moment argument and i were further concede that the board is right it has in a few cases and this court in one case has addressed this issue in one thousand nine hundred five well before i began practice this court heard the pingers case i'm only not knowing that because i went back and look picketing and simply said to the painters who were there this product is unfair which was in the board's you a request that they not handle the product which was second or boycotting and when you go back and look at the cases the weatherstone in the springdale job site so i concede that unless you're willing to apply a strict scrutiny standard to this speech or even an intermediate scrutiny standard to this speech i lose under current board law and i will say that in looking at the one nine hundred sixty five case it's a picking as opposed to the speech as opposed to picotee yes masta barlow which was a pure speech case in which the unions leafleted and did not engage in picketing and the supreme court said th leaflets around a big shopping mall asking patrons not to patronize the mall it was secondary there was no question about it but the court said we're not going to interpret eight before double to prohibit that kind of secondary boycotting no picketing no threat of strike because otherwise it creates a first memory problem which this case squarely presents to dischord you had james alvarez simply asking people to do something which is why when i lawfully talk among themselves the c m c or bargain place and say we don't like the fact that there's a another contractor on the job who doesn't care workers correctly we want to leave that right to leave  protected by the thirteenth amendment is protected by the at will employment doctrine what isn't protected is the union encouraging or appealing to them to do that so it's not the conduct it's restricted by this that if this court wants to treat words as conduct you've expanded what is conduct because all the again it's a question of conduct swisher talks about expressive conduct o'brian cohen these are all cases where this expressive conduct their conduct associated with this speech but this court and the supreme court has made it clear that you look at are you focusing on the conduct meaning holding the sign or is the court focusing on the words did or said of the means employed to accomplish that objective so the motivation it seems to mean that the e w thing that the motivation for an act in the statute was to target the objective of the secondary activities rather than the means employed that's that's that's contrary to the board's assertion and it's brief and board law the board doesn't say it's a matter of means it's a matter of object and the i b e w following case which we've briefed extensively and i'll just again focus on something here that the i b e w represented a man named patterson went to the job site twice and said to the carpenter employees who are members the carpenters union this job is unfair now under current law having said that this job is unfair that would be a violation of beat before as it is in this case but in i v w five a one the board did not assert that those two conversations were unlawful the question presented supreme court the supreme court makes it clear that what they're concerned about is not patterson's appeal or inducement but rather the fact that then paterson one is now a distinguishable it's actually sort of supportive of my position that neither the board know the court found though that speech element to be a violation of the law that is the union represent same to the carpenters it's unfair what it found unlawful because it refers to picketing seven times in the opinion was the union's picket sign followed by the call to the carpenter to the to the general contractor saying if you want to get rid of the picket you got to get rid of the subcontractor and so that that statement evidence is a union's purpose which was secondary boycott right so if you stand outside with the  employer from conduct discouraging employees of other employers to deal with the first and that's the purpose that why doesn't that go in with e mails and  speech because what the congress was focused on was picketing which was the union's weapon number two we're now well beyond that point where now faced with strict scrutiny and if it's merits speech asking people to do something that's legal for them to do there is no doubt grounds to say you can't ask people or appeal to them to do something which is legal and if you look at read this is the worst kind of cont church could make the same appeal a competitor could make disappear so there is no way to survive strict scrutiny or every intermediate scrutiny because in the words of this court and the supreme court this is wildly in an under inclusive that would be lovely of congress to do that but i'll close this parmar by saying we're here today nine hundred forty seven this law was enacted and then didn't fifty nine read citizens united and all the other good morning your honour's may please the court i'm greg lauro for the national labor relations board asking the court to enforce the board's order i will get right to a point you were discussing with opposing counsel just a minute ago it's the board's position that the supreme court addressed the free speech issue in the i b e w case that we've been discussing and my opponent i understand claims that case was limited to pick picketing but that ignores both the broader reasoning in the case which went beyond picketing and how as you were just discussing both courts of appeals to have addressed the issue viewed i b e w more broadly as the board did and we see this in the courts language some of which your honour's noted this morning well the case didn't fall thickening in conversations that's undisputed the supreme court in reviewing the legislative history and purpose of section eighty four it's now  recognized that the words induce and encourage in that section are broad enough to include in them every form of influence and persuasion then in addressing the first amendment issue with that broad definition of inducement in mind held that the prohibition of induce held that the prohibition of inducement or encourage men of secondary pressure which covers every form of influence and persuasion including speech carries with it no unconstitutional abridgement of free speech and one reason we view the supreme court is taking their broader approach and this is something the court noted this morning is that the supreme court thought about it in a broadway and was focusing on the ends that congress was trying to avoid the secondary boycott itself not just the inducement and the court said and i believe your honor supported this it was the objective of the union secondary activities not the quality of the means employed to accomplish that objective which was the dominant factor motivating congress to enact this provision and to exempt certain means achieving that objective would vitiate the statutes underlying purpose so i think it's fair to say the supreme court has addressed the first amendment issue before this court now and it remains the binding a political precedent i appreciate that my opponents are cites a series of contemporary first amendment cases that they get into strict scrutiny and other context but there's two cases that two things those cases don't address they don't address the supreme court's decision i b e w and they don't address the secondary boycott rule therefore they don't undermine that binding supreme court precedent and what we're talking about here is not so speech in the sense of the marketplace of of the blue it would might there might be nothing wrong with it but i would say that this is this is what the secondary boycott who lie is talking about disputes between employers a particular site who have a say in the work that's being done right at the in the it's a kind of a different context than the first amendment marketplace of ideas right the graffman of the concern here is that when unions act to ask what we call neutral employees they work for the employer who's not involved in the dispute say you stop work to help support our dispute with another employer you widening the dispute you're unnecessary it unnecessarily causing further harm to the free flow of farmers creating labor under arrest right and congress came up with a solution to that problem which is the secondary boycott rule before us and in i b e w the supreme court accepted that solution is constitutionally permissible and these other cases my opponent cites i appreciate the effort just don't address i b e w and absen something from the supreme court reversing i b e w or more directly addressing it than what we have that stands i would submit is the binding precedent this court should follow what is the binding precedent it's i b e w i'm getting sorry your honor it's i b e w is holding that what this statute prohibits passes constitutional muster and if i may or on are just a couple quick responses to what my opponent it said this morning because he recognizes he needs strict scrutiny to win and we addressed that we don't have a case addressing i b e w and this particular secretary boycott so again we're left with i b e w as a governing supreme court precedent which the board followed no one's disputing that i understand he mentions the d bartolo case but the thing about tolo like everything else my opponent cites is again it doesn't mention i b e w much less overturn it which is what my opponent really needs that addressed appeal to consumers at a mall not an appeal to neutral workers to stop work which is the graph of end of the secondary boycott we're addressing right so you say well it doesn't make any difference whether you do it by picket or carrying signs or if you do it by e mail according to the supreme court as followed by the d c incisor good yes the supreme court and those other courts understood that inducement encourage meant was that bro covering all forms of persuasion where the intent is to create what congress felt was the substantive evil of a secondary boycott because if it expands the dispute and the harm and so i think that's where we are with that binding precedent and with the understanding that other cases cited likes and ending samantha from saying they're right the twenty eighth a letter just gets us back to the same square one does it address the binding precedent and i b e w no does it address this particular provision which the supreme court approved of and i b e w no and not to be a broken record i just think we're back to that binding supreme court precedent so it less your honour's have further questions for me i inducement the words were unlawful it said it recognized that the case on which the board arm rests entirely was a picketing case that is the almighty debt a case number two i have not conceded that we have to establish scripture scrutiny in are mere scrutiny applies here because speech is involved and because it's widely under inclusive and secondary boycott may be an evil but if this statute the congress wrote sa any boycotting by asking people not to work because you don't want to work alongside a company that does business with russia or israel that boycotting law itself would be unconstitutional so what i'm facing and we're all facing really is the board taking the position that labor speech is not deserving of protection that any other speech is and the supreme court has rejected that in the flood i mean if it was a situation where the court said we don't give a special pass to professional speech why is a labor speech more restricted because the government has to establish a a reason a compelling reason for this kind of limitation on speech which is what it is and the problem is it's widely under inclusive not merely tailored because it allows everyone else to engage in exactly the same kind of effort to ask people not to work and targets only the speech of unions so so that it wouldn't survive any inner meet new scrutiny right and