because it was done by motion so i'd like to pick some kind explain why we have such a live dispute and some background about the very near honest of what we're asking this court to do as a way of explaining what the secretary boycott laws are about because  done nine union we have a particular contractor we've identified in our national decoration r and d contractors is doing a lot of public works we have them on a big project in southern california at the christie union high school district and we want to picket these governmental entities that in our view are doing the wrong thing abusing low road contractor doods those events changed the law so that you know there's a different question which is has the law changed since these orders were entered in front of the stake union high school district same unfair low road contractor to stake union high school disrespects workers are using a logo contractor you say in your briefs that the reason this is right is because the federal government is thinking of doing something in the interest structure and you claim that also in california that's happening that seems to be a little speculative if we're going to decide that it seemed to me that in washington nothing is firm how does brief about something that is going to happen in the future because then the federal government now wants to do a lot of work in infrastructure and that then your brief says that california is going to do the same thing that's all political we haven't seen anything that's come out of that that we could say we're going to base our rulings on it that's one on the rightness issue why do you make that jump from what is in political controversy now into something we can handle in the court because not only did i raise that general point i said there is a very specific dispute in front of us to steak union high school district is about to build this big high school and do it with nonunion  contractor low road contractor we want to pick at that high school district when that work starts it's a very specific dispute and we say they'll be other just feels like that that will rise and since we filed our initial motion that work has begun we'd like to put it pick it up there today or tomorrow and advise the public of our dispute because that's a way of bringing pressure on public employers to do the right thing we have a specific dispute and we can't do we have no means otherwise bringing that to the public's attention by a picket because we're subject to contempt we have a prior restraint by these court orders who have to consent content to tick asians and we know the board every time we've isolated the law has gone after us program that you say is in southern california that's in dispute it's what mike silva who is a current business manager says that castaic union high school district is building a high school it's a big high school project where it's  buildings and it's based upon that that you have in your brief about what's going on in the national government in california because one high schools building not not exactly we have two parts to that sylvia's declaration that was initially  there today to make this point with that particular school district which is a union high school district which means it draws from a large community of high school students and to abseil be a very large project that will go on for months at least in terms of the steeler action which is what our and he does so there's a live dispute today right now that we would like to put a pick it up and in the wolfson case you had somebody ranford for court for judgeship and he was concerned about the state bar rules that he be disciplined he wasn't disciplined he lost the election and yet this court said well he may run again again in the future and there's plenty of rightness to that and the same thing is you can tell him colors we have a very specific live dispute to use the words  orders so let me address if i've met the narrowness of what i'm asking for in this case because that explains the secondary boycott laws if you're really two parts of the secondary boycott laws there's eight before single eye that says we can't picket to induce people to stop work to support our dispute of neutrals so for example we can't put a picket up at the castaic union high school district  construction entrance to invite workers to stop work because that's unlawful under section eight b forcing the lie and the broad order prohibited from that conduct and we're not asking the court to touch that so we understand the rules about not inducing people to cease work ajmi formal double line which is the other part of the statute is what's before this court although written broader in this application so any form of picketing of this castaic union high school district which has a purpose and your honor he raises political purpose we can have a political purpose of getting a high school district to do the right thing or to contract in the future but it makes no difference under the statute because as long as any purpose is to restrain of course the district in the not using our indy it's unlawful is subject to contempt so the only thing before this court th that when you picket if we were to picket at the construction entrance and workers were to walk off the job at eight the forcing line we're not asking that be changed but that does have the effect of coercing the school district because all of a sudden the job was shut down so as it turns out the way the statue works if you put a pick it up and stop people from working it's eight before seeing the lie and double lie and worse all the cases that have resulted in these barred orders are eighty four single i case as were local for thirty three picketed because job shutdowns and firstly all of the supreme court cases except safeco entry fruits are constitutional issues that when congress put the word per person in the statute the word employer had been there before and the board realized that that didn't apply to a public entity they put the word person in there but certainly didn't address the first amendment implications of saying you can't pick at the government because plainly i'm can not contesting i'm not conceding the not contesting but why would government entities be treated differently in that respect that's what i still have not figured out from your argument i understand why you brought the argument in the other case read read seem promising but that we shut that down and so i just don't understand now how do you think there's going to carve out this sliver just for public entities why would they be treated well again not asking to be treated differently for eight before single purposes private insurance company selling insurance the government stands in a much different position of being a governmental entity that has to respond to the democratic wishes of the public and there's no more fundamental way to bring to the government's attention a problem in petitioning activity in speech activity and so the issue in this case as narrow as it is is simply if we have the right to engage in petitioning activity to ask the government to act in a different way as a fundamental democratic right don't we have the right to leave with the government we do under the bottle oh we have the right to put up a big banner to ironworkers could stand with the banner castaic union high school district unfair use low road contractor we can go to meetings and ask the school district to do everything and what the bottle says it is perfectly lawful to engage in a secondary boycott by asking the government to do in the first minute as a bundle of rights it's assembly it's petition it's free speech and this is all involved in this we're asking simply the right to bring our message which we have the right to do  many other ways by this one method of having one or two workers peacefully stand with a sign you know madge in the bantering issue which sort of is kind of where voice tested this if i have to i remember her standing with a big and the board itself has actually sort of can generally address this in various cases there's at least one case for example where union picketed a public entity because that public entity wasn't complying with some federal laws or davis making law and although there were some nine year contractors weren't complying the board said in this case is painters local one forty one it's not sign the beast it's ok to picket the government as long as an object is not to have the government stop doing business with a ninety nine contractor so picking the government's ok as far as the board's concerned unless it has this object and i go far beyond read because i think what first  is you can't if you look at the contents you've got to play strict scrutiny and should watch for it i will stand up here and say two things the supreme court has never in an eight before or board case applied strict scrutiny the last case before the court to deal with the first amendment in the act was safeco which doesn't deal with strict scrutiny doesn't address it they've never addressed it and number two  gets up you ask him can he find a case cite a case to this court because i've looked high and low mostly high where the supreme court has ever affirmed or discord an order prohibiting picketing by any entity because of what's on the sign the answer is never the answer is that this court like in the washing metropolit rancid case has always had to face what is a public forum and what you can do in a public forum that's not an issue here the only question is can under read with a content based analysis both restrict the content of what's on the sign and apply it only to a union like a local for thirty three what's even more pernicious every other person could stand in front of the stake high school union school district with a sign unfair to women unfair to dogs peta could be their unfair contracting r and b could stand out there with a picket sign saying we'd like being here a competitor could put a picket sign but citizens united one of my favorite cases makes it clear you cannot discriminate based on the speaker so we have speaker discrimination want given the supreme court cases that are in place now well i but i hear you but i think you're right there is something to your argument i don't i don't dispute that at all but let me just take a minute to adjust and i save my time for we can't get this case in the supreme court except by contempt that's the only direct route you can't you can't fix or from i can take searching this well why don't you that's why i'm saying because then we're going to i'm i'm not hopeful that that w will if you're right if this court decides that remember in the local seventy case the court said assuming without deciding that read change the picture and that's something only cases change the picture here but only if this court says we see the argument here can i get the court's attention i realize that's a problem but let's just go back to the fundamental problem while all this is going on we can't pick this is the worst form i'm not i'm the courts have used most pernicious form worst form of restriction it's a prior restraint it's these court orders that restrain us it's contempt and we want to go picket today not wait for some resolution down the road which morning morning please acourt kevin hobson for the national labor relations board the instant motion for further proceedings in the sparse fact pattern that have been presented are poor vehicles for a constitutional challenge to annul or a section eight before i prohibition on gauging and secondary picketing activity against public entities do you do you think that the only vehicle that would allow them to present i guess a nice right media challenge would be if they actually subject themselves to contempt or is there something short of that that you think would work the lack of a concrete fact pattern here suggests that the only way for an actual fact pattern to present a case in controversy here would be for the union to engage in some sort of activity well but they want they just told you i mean you heard this morning and we saw in the declaration that there is a specific project that they would go out there and picket today if they could i don't know what how how much more concrete do we need in terms of a fact pattern other than them going out there and then you guys pursuing them for and unfortunately the plans at the union has presented here are not specific enough if you look at what the statute actually prohibits it prohibits threats coersion and restraint within on lawful secondary objective and those terms are not defined in the statute so any enforcement is heavily fact specific so just by way of example i'd like to walk you through what the board with look at in trying to decide whether or not to enforce a case in a private ok context please do that but hold on a second they're saying that we are reading of these contempt orders that are in place that our court has issue hit us from doing this and that's what that's the only reason why we're not doing it and the fact that you guys might decide to take this factor in account or not in deciding whether to pursue contempt i don't think that's the determinative factor it's there is a restraint that i feel compelled to to abide by and i don't see anything on a reasonable about the reading of our prior orders so is going to address that i'm not sure what difference it makes how you're going to walk this hypothetical offices because of the open questions that exist here it is heavily debatable whether or not an imminent harm actually exists with regards to content and the reason i say that is it if you look at picketing against for example a private employer where we have much more case law than we do against public entity is that in determining whether or not to go forward first you have to figure out whether the conduct is primary or secondary in nature we're not really sure here then you have to determine whether it's picking activity they may call it take it but picketing has a very specific definition under board law and in the circuit courts so to say that you're going to pick it doesn't necessarily answer the question of whether it's unlawful picketing in the sense it's been established and then you have to determine whether if it is picketing whether it's a threat coercion or restraint which in some instances could be determined based on whether or not there's a confrontation element so for example if they were picketing a hundred yards out in the parking lot across from a building and not necessarily in front of a store front there wouldn't necessarily be coercion and it wouldn't be prohibited so it's questionable whether based off of what they've presented as what they want to do it would actually be prohibited by this yeah sure but but our case law does not require somebody to take the chance by gauging in the conduct that you i mean you're just saying well there's a line and we're you know they're sort of gray area and you get closer and closer but they don't have to take a chance on doing something that might subject him to a penalty in order to challenge this i guess i'm i'm just puzzled as to why you're suggesting that there's not a right dispute here i mean you'd love to hear your game on the merits but i'm i don't understand why you're trying to fan the software you want us to just dive in and resolve the merits what why are we had a disadvantage in terms of addressing the  core first amendment argument the percentage of course is a disadvantage because in part no court or the board has yet decided whether picketing a governmental entity is as a concrete ru threatening coercive or restraining so to decide whether or not the union can engage in this kind of picketing would be jumping the gun and deciding the statutory question before the animal or b which is agency chosen by congress to interpret and enforce the law before the n l r b would be given the first shot at determining how these terms are applied and what they mean it sounds to me like you're just saying go find another union that's not subject to one of these prior adjudications to engage in some conduct that you all can then pursue them for and then water for now due to cation from scraps that's what you're proposing these folks in the meantime just you're sorry you're going to just be sidelined it's too bad that the very fact that it's unclear that that engaging in this type of activity which is ill defined would result in content i'm not sure have this particular union isn't any worse situation than another union which has to obey the same statute it's the law and if you look at the case law at the local two fifty four case that was cited by the union  there are sufficient questions here that even the first circuit said that because there is no definition of coercion or restraint as it pertains to picketing of a public entity that it would be one factor which would not necessarily to be dispositive of whether we want content but it would certainly way into both our determination and the determination of the court as to whether or not there would be contempt it's not a foregone conclusion and  for the union to stay in its motion for a stay but it's subject to automatic fines for contempt is factually inaccurate if you actually look at the language found in the order it says that the union is subject to a fine of up to fifteen thousand dollars for an infraction there's discretion both at the board level of what the board would seek in contempt but there's also discretion in the court as to whether or not based off the conduct it would warrant such a fine in this case that the record actually shows that the union here has not engaged in the kind of picketing activity that they claim to want to engage in and so that would be one of many factors that this court would look at in determining whether or not fines would be appropriate and if content would even have occurred you entertain a question sure we have this thomas case in banking which we talk about weather is there it's right for us to get into the action and we've been rather specific i just wonder how you interpret those factors as to whether or not they've been met if you remember what they were if you need some help the first factor is whether there is a concrete plan to violate what would be your position to position the board as to whether they've established a concrete plan the position of the board as to whether or not a concrete plan has been established is that a concrete plan has not been established because because they've not specified what kind of activity they wish to engage in so it's unclear that it would be picketing for starters secondly by saying in their motion for a stay that they wish to bring to the public's attention certain safety and wage issues surrounding this particular contractor it's unclear that the intent here is actually secondary in the sense that outlawed by the statute and i say that because it stands to reason that by bringing these issues to the attention here to the public it's not that the union is asking the government or in this case the school board to cease doing business with this particular contractor which would violate the statute they could instead be asking for the school district and the government at large to instead and for safety and wage l which wouldn't necessarily have the impact of getting the school district to cease doing business with this particular contractor and it would actually address the union's concerns ok the second factor is whether the process there's a prosecutorial warning has there been one are they warn by the board as to what's going to happen what your position on the two to date there's been no prosecutorial warning there been no charges filed to our knowledge there been no acts of secondary picketing a public entities so there would be no reason for the n l r b to warn the union that it is or would be subject to contempt an investigation and the third thomas factor which we decided in bank by the way so it's not going to be changed she's late is the history of prosecutorial prosecutions under the statute well given the history here there is a very limited case law at the board level of unions being prosecuted for picketing public entities and what case law there is a board level has come down in opposing ways where some certain unions have not been deemed to have picketed unlawfully whereas others have and there's even less case law in the circuit court level finding content for picketing public entities and the one case that i'm aware of the local two fifty four case was a case where the first circuit declined to find content because of the statutory questions that remained open ok that's helpful thank you i suppose your opposition will be able to tell us with specificity how the union feels about these factors which are the basis upon which we have to make a decision and i would also add that even if this court does deem the instant sparse fact pattern to be an appropriate vehicle for mounting this kind of a challenge the union still hasn't met the standards of roof over the inmates of suffolk county jail and that they've raised no new facts or circumstances and they've raised no new case law which would warrant the extraordinary measure of modifying consent orders and as this court has already mentioned these can consent orders have been on the books for well over a decade if you have ok one other thing that i should mention is that there's been a lot of emphasis here on science and whether or not the conduct in question is regulated soley because of what's on a sign and while signage is somewhat important to the activity of picketing and it's what we picture as laypeople in what a picket actually is signs in the context of the secondary picketing prohibition are only a very very small factor and there don't need there doesn't need to be signs for there to be a picket as defined by the  just just to give you an example it would be unlawful picketing if you had a group of union individuals congregating near a storefront who rather than posting on their signs what it is that they're objecting to they provided a letter or a telephone call to the employer in question or in this case the government the day before and then went to picket so the content of the signs is really immaterial here to what is being regulated which is the conduct of secondary picketing activity and as mr rosenfeld pointed out there are a vast number of alternative means available for the union to voice its same message in the same persuasive if you have some more time then maybe you could answer the question we have to look at the read case and to whether or not the case requires us to relook at our ripeness jurisprudence what i don't believe that really does require revisiting of the rightness jurisprudence because read as far as this one indicated in the teamsters local seventy case did not change the first amendment landscape in a way that matters to the regulation of picketing was out of published opinion an unpublished opinion i believe it was an unpublished opinion if if we're going to determine the reach of read but just assuming that it's something we can bring up would you explore a little further why your position is consistent with  position we took our court took in this unpublished memorandum disposition i'm sorry could you repeat that i wish i could i'm wondering if you can tell me why it was a little more detail why you feel that really is it does not necessarily change the ninth circuit law in relationship to the statement that was made in the in unpublished disposition what does that unpublished disposition tell us other than a statement but what was good about that opinion was that the court looked at a great number of cases which were raised to question whether under the first amendment picketing could be constitutionally regulated in my case it was private employers and perhaps i'm reading too much into the opinion but it seems that by stating that reid did not change the first amendment landscape in a way that mattered to the regulator every regulation of picketing there was a sanctioning or sorts by this court that more recent first amendment jurisprudence did not address whether or not picketing itself could be regulated or at least regulated in a manner regulated under section eight before vs felten doctrine which judge watt for for two because it was a case directly on point safeco which dealt with consumer picketing and the court i think felt it couldn't get around safeco and was stuck dumping it in your honour's words in supreme court flap i tried and didn't succeed so that's not helpful at all but you know i want to go back and try to ask your question because  colors case to address this issue last week first amendment challenges present unique stand in considerations because of the chilling effect this isn't just chilling this is contempt in jail and i'm offended by counsel saying that maybe the finally be less than fifteen thousand it could be ten or one dollar because we shouldn't be fined for first amendment conduct and all and then the court went on to say in order to avoid this chilling effect the supreme court has endorsed what might call the that sort of creates a vegan this problem in the whole statute we haven't addressed that but we were very clear because in the initial declaration that might still be gig he expressed the purpose it is an unlawful purpose our purpose in referring to picketing the school district would be to have the public entity choose a different subcontractor that is our lawful cease doing business objectives and one is is there a concrete plan because we're going to put up a picket sign our purpose is to convince you in this public entity to cease doing business now for the difference between talent colors and your case affected the merchants in that case and so i just as judge wollaston indicated iraq talking about some future projects that you might want to picket but i just i don't see the same immediacy that we had in italian callers help me with that you are maybe i've not been clear about this today in castaic union high school district are india's on a project things pursuant to the broader orders that were in force for two things you've got broad orders that say we can't at any place at any time anywhere engage in secondary conduct of any kind including picketing a government agency to me that's what makes this case different from italian callers because there's there is a consent order there are consent orders that prevent you from doing what you now want to do right so that's why i'm struggling with is there a live controversy because to me it's just kind of the back door way of trying to again challenge the consent orders if i have a moment now to try to courtroom before i'm so i've done these we know that if we go on with that picket sign up we're subject to a contempt citation now it is true as counsel says that the board could say we don't care we're not going to do anything but they haven't told us that or you that it is true that we haven't attempted this since the consent contempt adjudication so that kind of raises the rueful problem a fine or jail for you know officers or expensive litigation just to put up a picket sign in this case and so i think rufo is meant both because of the circumstances that allowed this court or should compel this court to modify the order as well as the substantial change in the law that has occurred since these orders were entered read is just part of it citizens united is p it when this court the swisher cases that are restored of the valor and what's interesting and if i can just conclude that this court struggle as i've struggled to describe what is picketing there's some conduct involved but every time the supreme court has communicative conduct and that the subject of first minute activity in we cannot engage in that community could have conduct because of these orders i think what sort of a problem do you have in your case this comes out of a consent decree that is the union agreed that this is what they're going to have this is the game plan for the future now you come back and say no no no i want to change my consent decree we've been a little bit cautious about that doesn't that give you a problem of changing something you already agreed to i think the roof or standard we understand is dealing with consent decrees really apply the same standard i don't think that they have applied different standards whether it's a court order or consent decree right but but it's still it's just a type of a contract sometimes you into a contract you wish and then had entered into but you under didn't do it and are some of our cases sort of take that line that there's a harder burden if you're attacking something you've already agreed to in a consent decree does that give you a little bit of a headwind in this case well yes it does to the extent that we agreed at that time because the law was very much against this at that time and for the future it doesn't say just at that time it was consent to agree for the future or let me respond by saying that's only half the problem because two of the orders we've challenge were not consent contempt adjudications to our orders to discordant force so you can't apply the same logic to those that you could to the consent contempt adjudication and i go back to judge walker's point your point of that at that time nobody i think kind of played in the order that this would apply to picketing a public entity and at that time we'd always picketed every case was picketing a private entity and keep get time in the local suddenly case what happened was we asked the court to rescind the entire broad order the court refused  so now i come back and say the four thirty three let's attack this on the very narrow ground which was not raised in those cases and the brothers are even based in this kind of picketing picking a public entity and i'll conc