FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS 

BOARD,

Petitioner,

v.

INTERNATIONAL ASSOCIATION OF 

BRIDGE, STRUCTURAL,

ORNAMENTAL, AND REINFORCING 

IRON WORKERS, LOCAL 229, AFLCIO,

Respondent.

No. 17-73210

NLRB No.

21-CC-183510

ORDER

Filed September 11, 2020

Before: Mary M. Schroeder and Johnnie B. Rawlinson, 

Circuit Judges, and Robert S. Lasnik,

* District Judge.

Order;

Dissent by Judge Berzon;

Dissent by Judge Bumatay

* The Honorable Robert S. Lasnik, United States District Judge for 

the Western District of Washington, sitting by designation.
2 NLRB V. IAB LOCAL 229

SUMMARY**

Labor Law

The panel denied a petition for panel rehearing and 

denied on behalf of the court a petition for rehearing en banc.

In its opinion, filed October 28, 2019, the panel granted 

the National Labor Relations Board’s petition for 

enforcement of its order entered against International 

Association of Bridge, Structural, Ornamental and 

Reinforcing Iron Workers, Local 229, enjoining Local 229 

from committing violations of the National Labor Relations 

Act (“NLRA”). The Board affirmed the administrative law 

judge’s finding that Local 229 had violated Section 

8(b)(4)(i)(B) of the NLRA by inducing or encouraging 

Commercial Metals Company’s neutral employees to strike 

or stop work for the unlawful secondary purpose of 

furthering Local 229’s primary labor dispute with Western 

Concrete Pumping. The panel rejected Local 229’s 

contention that the Board’s application of the NLRA to its 

conduct punished expressive activity protected by the First 

Amendment. Specifically, the panel refused to extend the 

Supreme Court’s decision in Reed v. Town of Gilbert, 135 

S. Ct. 2218 (2015), and refused to apply strict scrutiny to the 

analysis of Section 8(b)(4)(i)(B). The panel explained that 

Reed involved content-based restrictions in a municipal 

ordinance regulating signs directed toward the general 

public, whereas this case involved communications 

addressed to neutral employees within the tightly regulated 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
NLRB V. IAB LOCAL 229 3

contours of labor negotiations. The panel held that the Board 

reasonably rejected Local 229’s contention that Section 8(c) 

of the NLRA protected its communications because the 

Supreme Court has concluded that Section 8(c) does not 

immunize activities that violate Section 8(b)(4). The panel 

held that the Board properly rejected the challenges asserted 

by Local 229 under the Religious Freedom Restoration Act 

and under the Thirteenth Amendment to the United States 

Constitution. Finally, the panel held that the language of the 

Board’s order adequately apprised Local 229 of its notice 

obligations.

Judge Berzon, joined by Judges Graber, Wardlaw, 

W. Fletcher, Paez, and Bumatay, dissented from the denial 

of rehearing en banc because she would hold that the pure 

speech enjoined in this case was entitled to full First 

Amendment protection. By declining to undertake any 

identity-, content-, or viewpoint-based analysis – including 

the strict scrutiny inquiry those features should have 

triggered – and instead relying on an inapposite Supreme 

Court opinion, International Brotherhood of Electrical 

Workers v. NLRB, 341 U.S. 694 (1951), the panel in this case 

relegated to second-class constitutional status the right of 

labor organizations to speak on matters that may concern 

them greatly.

Judge Bumatay dissented from the denial of rehearing en 

banc. He agreed with Judge Berzon that the case should 

have been taken en banc, and wrote separately to emphasize 

his views on why the Supreme Court’s decision in 

International Brotherhood of Electrical Workers v. NLRB, 

341 U.S. 694 (1951), was not binding in this case.
4 NLRB V. IAB LOCAL 229

COUNSEL

Greg P. Lauro (argued), Attorney; Elizabeth A. Heaney, 

Supervisory Attorney; David Habenstreit, Assistant General 

Counsel; Meredith Jason, Acting Deputy Associate General 

Counsel; John W. Kyle and Alice B. Stock, Deputy General 

Counsel; Peter B. Robb, General Counsel; National Labor 

Relations Board, Washington, D.C.; for Petitioner.

David A. Rosenfeld (argued) and Caitlin E. Gray, Weinberg 

Roger & Rosenfeld, Alameda, California, for Respondent.

ORDER

The panel has unanimously voted to deny the 

Respondent’s Petition for Panel Rehearing. Judge 

Rawlinson voted, and Judges Schroeder and Lasnik 

recommended, to deny the Petition for Rehearing En Banc.

The full court has been advised of the Petition for 

Rehearing En Banc. A judge of the court called for a vote 

on the Petition for Rehearing En Banc. A vote was taken, 

and a majority of the active judges of the court failed to vote 

for an en banc rehearing.

The Respondent’s Petition for Panel Rehearing and 

Rehearing En Banc, filed December 12, 2019, is DENIED. 

No future petitions for rehearing or rehearing en banc will 

be entertained.
NLRB V. IAB LOCAL 229 5

BERZON, Circuit Judge, joined by GRABER, 

WARDLAW, FLETCHER, PAEZ, and BUMATAY, 

Circuit Judges, dissenting from the denial of rehearing en 

banc:

Suppose that a devoted member of the American 

Vegetarian Society chooses to exercise her First Amendment 

right to the freedom of speech. Standing on a public sidewalk 

outside a McDonald’s, she distributes to McDonald’s 

employees pamphlets declaring that “Meat is Murder,” 

detailing various criticisms of the meat industry, and asking 

them to stop working for McDonald’s. Suppose, further, that 

a federal statute prohibits those affiliated with “anti-meat 

organizations” from “inducing or encouraging” employees 

of businesses that traffic in meat to “cease participation in 

the meat market,” and that, pursuant to that statute, a federal 

court enjoins our vegetarian’s peaceful distribution of 

pamphlets. Our vegetarian challenges the injunction as 

forbidden by the First Amendment.

The case presented by this challenge would be an easy 

one under current First Amendment doctrine. The imagined 

statute unconstitutionally discriminates on identity, content, 

and viewpoint bases. The statute unconstitutionally 

discriminates on the basis of the speaker’s identity, because 

by its terms it prohibits the distribution of these pamphlets 

by those affiliated with “anti-meat organizations,” whereas 

those not so affiliated could distribute them unimpeded. See, 

e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 

340 (2010). It unconstitutionally discriminates on the basis 

of content, because an affiliate of an anti-meat organization 

is left free to take to the sidewalk outside McDonald’s to 

express her views on, say, the wages that McDonald’s pays 

its workers—it is only meat-related speech that is 

proscribed. See, e.g., Boos v. Barry, 485 U.S. 312, 317–22 
6 NLRB V. IAB LOCAL 229

(1988). And the statute unconstitutionally discriminates on 

the basis of viewpoint, because while pamphlets 

encouraging people to “cease participation in the meat 

market” are prohibited, a pamphlet discouraging such 

cessation—say, “Increase Meat Sales, Work for 

McDonald’s”—remains permissible. See, e.g., R.A.V. v. City 

of St. Paul, 505 U.S. 377, 388–92 (1992). The district court’s

injunction would be unlawful in each of these respects.

The facts and the statute at issue in this case mirror those 

in the hypothetical. Nat’l Labor Relations Bd. v. 

International Ass’n of Bridge, Structural, Ornamental, & 

Reinforcing Iron Workers, Local 229, 941 F.3d 902, 904 

(2019) (“Local 229”). An agent of Local 229—a union 

concerned that an employer with which Commercial Metals 

Company (CMC) contracted was paying wages lower than 

the area standard—encouraged employees of CMC to cease 

work by circulating to employees via text message a link to 

a webpage, distributing flyers at the CMC worksite, 

speaking on two occasions with CMC employees at the 

worksite, and placing a phone call to one CMC employee. 

Id. The parties and the panel agreed that this activity was 

“pure speech”; it was peaceful, non-coercive, and did not 

include any picketing by the union.1 Id. at 904–05. 

Moreover, the conduct peaceably encouraged by the union—

the voluntary cessation of work by individual employees—

was lawful. 29 U.S.C. § 163; see also, e.g., Am. Ship Bldg. 

Co. v. NLRB, 380 U.S. 300, 310 (1965). The National Labor 

1 Another union, Operating Engineers Local 12, was picketing 

outside the jobsite at the time Local 229 engaged in these activities. 

Local 12’s primary picketing over compliance with area standards was 

lawful. See United Steelworkers of America, AFL-CIO v. NLRB, 

376 U.S. 492, 501–02 (1964). Neither the parties nor the panel asserted 

that Local 12’s lawful picketing activity bears on the legality of Local 

229’s speech. Local 229, 941 F.3d at 904–05.
NLRB V. IAB LOCAL 229 7

Relations Board nonetheless enjoined this speech pursuant 

to Section 8(b)(4)(i)(B) of the National Labor Relations Act, 

which prohibits unions from “inducing or encouraging” 

employees neutral to a labor dispute to cease work in support 

of the union’s dispute with a separate contractor. 29 U.S.C. 

§ 158(b)(4)(i)(B).

The NLRB’s injunction would seem to pose the very 

same identity-, content-, and viewpoint-based discrimination 

problems as would be posed by the case of our imagined 

vegetarian: identity-based, because the speech could not 

have been enjoined if not for the fact that the speaker is a 

union; content-based, because the union would be free to 

distribute pamphlets bearing subject matter unrelated to 

employee relations; and viewpoint-based, because the union 

would be free to speak on the subject matter of CMC 

management-employee relations if the union were inducing 

and encouraging CMC employees to continue work rather 

than to cease it.

Why, then, has this Court denied to the union the First 

Amendment protection that it would surely have extended to 

our imagined vegetarian? One could be forgiven for 

answering: Because unions seem to operate under a different 

First Amendment than the one that protects the rest of us.

Much has been written about the apparently anomalous 

First Amendment status of unions. See, e.g., Cynthia 

Estlund, Are Unions a Constitutional Anomaly?, 114 Mich. 

L. Rev. 169, 193–211 (2015); Catherine L. Fisk, Is It Time 

for a New Free Speech Fight? Thoughts on Whether the First 

Amendment is a Friend or Foe of Labor, 39 Berkeley J. Emp. 

& Lab. L. 253, 258–67 (2018); see also Case Comment, 

NLRB v. International Ass’n of Bridge, Structural, 

Ornamental, & Reinforcing Iron Workers, Local 229, 

133 Harv. L. Rev. 2619, 2620–26 (2020). But the scholarly 
8 NLRB V. IAB LOCAL 229

engagement with that anomaly, as well as the development 

of labor doctrine in our courts, has always focused on the 

reasons why, and the particular contexts where, labor speech 

receives less constitutional protection than non-labor speech 

would. The panel opinion, by contrast, elides these difficult 

labor law questions and the rich history from which they 

spring. Instead, it treats this difficult case as squarely settled 

by a single 1951 Supreme Court precedent, International 

Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694 

(1951) (“IBEW”), which it treats as having held that even the 

“pure speech” here at issue may be enjoined without 

offending the First Amendment, because the words “induce 

or encourage” as used in Section 8(b)(4)(i)(B) are “broad 

enough to include in them every form of influence and 

persuasion.” Local 229, 941 F.3d at 905–06 (quoting IBEW, 

341 U.S. at 701–02).

As I shall show, IBEW does not compel, or even support, 

the result reached in the panel’s decision. The only unlawful 

conduct at issue in IBEW consisted in the union’s picketing

activity directed at neutral employees, considered together 

with a subsequent phone call emphasizing the purpose of the 

picketing. Id. at 705. Those facts are critically different from 

those in this case, where the speech enjoined was not 

picketing. That difference is made all the more critical by the 

transformative developments in First Amendment doctrine 

that unfolded in the decades that followed IBEW, and, in 

particular, by the picketing-based theory that the Supreme 

Court adopted as its rationale for differential treatment of 

labor speech in the First Amendment context.

When contemporary doctrine is applied, there can be 

little doubt that the pure speech here enjoined is entitled to 

full First Amendment protection. By declining to undertake 

any identity-, content-, or viewpoint-based analysis—
NLRB V. IAB LOCAL 229 9

including the strict scrutiny inquiry those features should 

have triggered—and instead relying on an inapposite,

seventy-year-old Supreme Court opinion, the panel here has 

needlessly relegated to second-class constitutional status the 

right of labor organizations to speak peacefully and noncoercively on matters that may concern them greatly. And 

by refusing to hear this case en banc, our Court has 

acquiesced in a significant curtailment of the liberty secured 

by the First Amendment. I respectfully dissent.

I.

In IBEW, the “principal question” was whether a union 

violated a prior version of Section 8(b)(4)(i)(B)’s prohibition 

on inducing or encouraging cessation of work for a 

secondary contractor “when, by peaceful picketing, the 

[union’s] agent induced employees of a subcontractor on a 

construction project to engage in a strike in the course of 

their employment.” 341 U.S. at 695–96 (emphasis added). 

Much of the opinion is devoted to the question whether the 

peaceful picketing there at issue fell within the statutory 

prohibition that is now Section 8(b)(4)(i)(B). See generally 

id.

Section 8(b)(4)(i)(B) makes it an unfair labor practice for 

a union to “induce or encourage any individuals employed 

by any person” to refuse “to perform any services” where the 

objective of such inducement or encouragement is “forcing 

or requiring any person . . . to cease doing business with any 

other person.” 29 U.S.C. § 158(b)(4)(i)(B).2 Interpreting the 

“intended breadth” of that statute, the Court remarked that 

“[t]he words ‘induce or encourage’ [as used in section 

2 When IBEW was decided, this provision was instead codified at 

29 U.S.C. § 158(b)(4)(A).
10 NLRB V. IAB LOCAL 229

8(b)(4)(i)(B)] are broad enough to include in them every 

form of influence and persuasion.” IBEW, 341 U.S. at 701–

02. Separately, in a single paragraph, the Court rejected a 

First Amendment challenge to the statute’s proscription of 

the union’s conduct. I quote that paragraph in its entirety:

The prohibition of inducement or 

encouragement of secondary pressure by 

§ 8(b)(4)(A) carries no unconstitutional 

abridgment of free speech. The inducement 

or encouragement in the instant case took the 

form of picketing followed by a telephone 

call emphasizing its purpose. The 

constitutionality of § 8(b)(4)(A) is here 

questioned only as to its possible relation to 

the freedom of speech guaranteed by the First 

Amendment. This provision has been 

sustained by several Courts of Appeals. The 

substantive evil condemned by Congress in 

§ 8(b)(4) is the secondary boycott and we 

recently have recognized the constitutional 

right of states to proscribe picketing in 

furtherance of comparably unlawful 

objectives. There is no reason why Congress 

may not do likewise.

Id. at 705.

Although it begins with broad language, the quoted 

paragraph as a whole focuses on the particular type of speech 

at issue before the Court—“picketing followed by a 

telephone call emphasizing its purpose,” id., which is all that 

the National Labor Relations Board’s order covered. Before 

the NLRB, the charging party argued only that the union’s 

“picketing” had induced the cessation of work, Int’l Bhd. of 
NLRB V. IAB LOCAL 229 11

Elec. Workers, Local 501, 82 N.L.R.B 1028, 1042 (1949) 

(emphasis added), and the Board concluded accordingly that 

the union, “by picketing,” had induced such cessation, id. at 

1029 (emphasis added). The Second Circuit similarly 

understood that only picketing was at issue, holding that “the 

First Amendment does not excuse picketing to compel an 

employer . . . even though the pickets carry placards which 

bear statements of the grievances involved.” IBEW, Local 

501 v. NLRB, 181. F.2d 34, 40 (2nd Cir. 1950) (emphasis 

added).

Faced with that context, the Court reasoned that, given 

its recognition of “the constitutional right of states to 

proscribe picketing in furtherance of comparably unlawful 

objectives[, t]here is no reason why Congress may not do 

likewise.” Id. (emphases added). There was not at the time, 

and there is not now, any comparable recognized 

constitutional right of states to proscribe peaceful, nonpicketing speech. So the actual holding in IBEW was limited 

to picketing; it cannot be extended to the speech at issue 

here, which undisputedly was not picketing.

That IBEW’s constitutional reasoning extends only to 

picketing is confirmed by the Supreme Court precedents 

upon which it relied, each of which conditioned its holding 

on the unique First Amendment status of picketing. In 

Giboney v. Empire Storage & Ice Co., the Supreme Court 

explained that “[p]icketing by an organized group is more 

than free speech, since it involves patrol of a particular 

locality and since the very presence of a picket line may 

induce action of one kind or another, quite irrespective of the 

nature of the ideas which are being disseminated.” 336 U.S. 

490, 503 n.6 (1949) (citation omitted). The Court 

accordingly concluded that “the state is not required to 

tolerate in all places . . . even peaceful picketing by an 
12 NLRB V. IAB LOCAL 229

individual.” Id. at 501 (citation omitted). In Building Service 

Employees International Union v. Gazzam, the Supreme 

Court stated that, because “picketing is more than speech[,] 

. . . this Court has not hesitated to uphold a state’s restraint 

of acts and conduct which are an abuse of the right to picket.” 

339 U.S. 532, 537 (1950) (emphasis added). International 

Brotherhood of Teamsters v. Hanke again emphasized that 

“while picketing has an ingredient of communication it 

cannot dogmatically be equated with the constitutionally 

protected freedom of speech,” and went on to uphold yet 

another injunction against picketing. 339 U.S. 470, 474, 481 

(1950). And in Hughes v. Superior Court, the Supreme Court 

summarized: “[W]hile picketing is a mode of 

communication it is inseparably something more and 

different.” 339 U.S. 460, 464–65 (1950).3

In the decades that followed IBEW, two circuit courts 

ignored its picketing-specific context and reasoning, 

extending it to uphold against First Amendment challenge 

applications of Section 8(b)(4)(i)(B) to pure speech. 

Warshawsky & Co. v. NLRB, 182 F.3d 948, 952 (D.C. Cir. 

1999); NLRB v. Local Union No. 3, Int’l Bhd. of Elec. 

Workers, 477 F.2d 260, 266 (2d Cir. 1973). In so holding, 

these opinions treated the opening sentence of the quoted 

3 Some of the circuit court decisions cited in IBEW’s brief 

constitutional section did not involve any picketing. See IBEW, 341 U.S. 

at 705 n.9. But to assess the significance of such citations, we must take 

note of the proposition in support of which they were cited: namely, that 

Section 8(b)(4)(i)(B) “has been sustained by several Courts of Appeals.” 

Id. at 705. That proposition contains no reasoning whatsoever; it is 

entirely empirical. The actual holding unfolds in the subsequent two 

sentences. And for those propositions, the only citations are to Supreme 

Court precedents which, as I have demonstrated, explicitly condition 

their constitutional analyses on the unique First Amendment status of 

labor picketing.
NLRB V. IAB LOCAL 229 13

paragraph as foreclosing any constitutional challenge to any

application of Section 8(b)(4)(i)(B), disregarding the 

picketing context of the opinion and the picketing-specific 

reasoning of the paragraph as a whole. And the opinions did 

so without regard for any subsequent developments in First 

Amendment doctrine. Warshasky, 182 F.3d at 952; Local 

Union No. 3, 477 F.2d at 266; see also Case Comment, 

NLRB v. IAB, Local 229, 133 Harv. L. Rev. at 2621–23.

Relying on these unreasoned and nonbinding opinions, 

the panel here repeated their mistake, again relying on 

IBEW’s broad language while ignoring both the picketingspecific context of the case and the limited actual holding set 

forth later in the paragraph. Local 229, 941 F.3d at 905. 

From there, the panel invoked IBEW’s language interpreting 

the “intended breadth” of the statute to extend the picketingspecific constitutional holding to “every form of influence or 

persuasion”—erroneously transforming an interpretation of 

a statute into a sweeping constitutional holding. IBEW, 

341 U.S. at 701–03; Local 229, 941 F.3d at 905.

II.

The panel’s uncritical extension of IBEW is particularly 

troubling in view of the seismic changes in First Amendment 

jurisprudence since IBEW was decided. The panel invoked 

the fact that IBEW’s brief constitutional analysis was 

conducted “[w]ithout applying strict scrutiny” as a reason to 

ignore all subsequent legal developments. Id. at 905 (citing 

IBEW, 341 U.S. at 699–700, 705). But IBEW was decided 

long before the Supreme Court articulated its First 

Amendment doctrines as to content-, viewpoint-, and 

identity-based discrimination in anything like their current 

form. The strict scrutiny standard applicable to such 

discrimination was at best in a nascent state; its application 

in the First Amendment context developed only gradually. 
14 NLRB V. IAB LOCAL 229

See Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 

95 (1972) (collecting cases).

A few examples of the doctrinal developments that 

unfolded after IBEW was decided demonstrate the 

significance of this transformation. Take content 

discrimination: In Boos v. Barry, the District of Columbia 

had prohibited, within 500 feet of a foreign embassy, any 

sign tending to bring that foreign government into “public 

odium” or “disrepute.” 485 U.S. 312, 315 (1988). The 

Supreme Court determined that the restriction was contentbased because it proscribed “an entire category of speech—

signs or displays critical of foreign governments.” Id. 

at 319–21. Because the restriction was content-based, the 

Court applied strict scrutiny and concluded that, even 

assuming that the law furthered a compelling interest in 

protecting the “dignity” of foreign diplomats, it was not 

narrowly tailored to serve that interest in view of the less 

restrictive protections for embassies that prevailed across the 

rest of the country. Id. at 321–27. And although some 

language in the Boos Court’s opinion suggests that the need 

to apply strict scrutiny depended upon the political nature of 

the speech prohibited and the public nature of the forum to 

which the prohibition applied, id. at 321, the Supreme Court 

has more recently backed away from any such limitations, 

repeatedly declaring that “content-based regulations of 

speech are subject to strict scrutiny” without regard to 

whether the speech is political or the forum public. Nat’l 

Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 

2371 (2018); see also, e.g., Reed v. Town of Gilbert, 

576 U.S. 155, 163–64 (2015).

Or consider viewpoint discrimination: In R.A.V. v. City 

of St. Paul, a municipal ordinance made it a misdemeanor to 

place on public or private property any “symbol, object, 
NLRB V. IAB LOCAL 229 15

appellation, characterization or graffiti . . . which one knows 

or has reasonable grounds to know arouses anger, alarm, or 

resentment in others on the basis of race, color, creed, 

religion or gender.” 505 U.S. 377, 380 (1992). A state high 

court had interpreted the phrase “arouses anger, alarm or 

resentment in others” to limit the reach of the ordinance to 

“fighting words,” which are generally denied First 

Amendment protection on account of the conduct element 

that they involve. Id. at 381. The Supreme Court determined 

that, even as applied to “fighting words,” the ordinance went 

“beyond mere content discrimination[] to actual viewpoint 

discrimination” in that only fighting words which aroused 

“anger, alarm and resentment” in others were prohibited, 

while fighting words used “in favor of racial, color, etc., 

tolerance and equality” remained permissible. Id. at 391–92 

(emphasis in original). Recognizing that viewpoint 

discrimination is even more offensive to First Amendment 

values than is content discrimination, the Court struck down 

the ordinance, declining to apply even the strict scrutiny 

standard that “mere content discrimination” would demand. 

Id. at 391–93. Thus, as to speech that involves a conduct 

element, as picketing does, the application of the unforgiving 

viewpoint discrimination doctrine is required by R.A.V.

Where, as here, only “pure speech” is implicated, the 

doctrine’s application should be even more uncontroversial. 

Local 229, 941 F.3d at 904–05.

Finally, consider the First Amendment doctrine 

concerning identity-based discrimination. In Citizens United 

v. Federal Election Commission, the Court confronted a 

federal statute which prohibited only corporations and 

unions from making, within 30 days of a primary or 60 days 

of a general election, “any broadcast, cable, or satellite 

communication” that “refers to a clearly identified candidate 

for Federal office.” 558 U.S. 310, 320–21 (2010). The Court 
16 NLRB V. IAB LOCAL 229

explained the First Amendment problems posed when 

government “identifies certain preferred speakers” by law, 

writing that government may not “deprive the public of the 

right to determine for itself what speech and speakers are 

worthy of consideration. The First Amendment protects 

speech and speaker, and the ideas that flow from each.” Id. 

at 340–41. Applying strict scrutiny and acknowledging that 

some identity-based restrictions may be justified when 

necessary to prevent interference with “certain government 

functions,” the Court concluded that no such interest 

justified the statute’s identity-based discrimination against 

corporations and unions, and accordingly held that the 

statute violated the First Amendment. Id at 341.

None of these now well-developed doctrines had yet 

been crystalized when the Supreme Court decided IBEW. 

Given such a sea change in First Amendment jurisprudence, 

a case that predates it would need to be quite directly on 

point to be controlling today. IBEW, with its picketingspecific reasoning, does not fit that bill.

It is not enough to assert flatly, as the panel did, that these 

First Amendment doctrines do not apply “within the highly 

regulated contours of labor negotiations,” as though the fact 

that union activity is highly regulated permanently siloes it 

from otherwise generally applicable developments in 

constitutional law. Local 229, 941 F.3d at 906. The Supreme 

Court has recently applied these very doctrines in other 

highly regulated contexts, including those involving 

regulations of the pharmaceutical industry, see Sorrell v. 

IMS Health, Inc., 564 U.S. 552, 563–66 (2011), and of 

licensed reproductive healthcare providers, see Becerra, 

138 S. Ct. at 2371.
NLRB V. IAB LOCAL 229 17

III.

Post-IBEW developments in the labor context 

specifically affirm that the “highly regulated” rationale 

cannot fly, and that it is instead the distinction between 

picketing and “pure speech” that has constitutional salience 

in the labor context.

After IBEW was decided, the Supreme Court made clear 

that although certain forms of labor picketing do not receive 

the full First Amendment protection that courts extend to 

other forms of speech, other labor speech does. As explained 

already, IBEW’s focus on secondary picketing in the First 

Amendment part of the opinion reflects that distinction. But 

it does so incompletely, for the Court had not yet decided 

any of the major cases concerning the First Amendment 

protection that political picketing enjoys, and so there was 

no need to explain why labor picketing should be treated 

differently.

Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 

92 (1972), brought the problem into view. There, peaceful 

picketing on the subject of a labor dispute was the only type 

of picketing the City of Chicago permitted. Id. at 94–95. The 

Supreme Court held that Chicago’s regime violated the First 

Amendment because it made the legality of peaceful 

picketing depend upon the subject matter of the message that 

such picketing advanced: “[A]bove all else, the First 

Amendment means that government has no power to restrict 

expression because of its message, its ideas, its subject 

matter, or its content.” Id. at 95. If the content-discrimination 

doctrine precludes government from singling out picketing 

on the subject of a labor dispute as the only type of picketing 

permitted, it would seem straightforwardly to follow that a 

regime which singled out picketing on the subject of a labor 
18 NLRB V. IAB LOCAL 229

dispute as the only type of picketing prohibited would 

violate the First Amendment as well.

But the Supreme Court did not take that path. In NLRB 

v. Retail Store Employees Union, Local 1001 (“Safeco”), 

unions embroiled in a labor dispute with an insurance 

company picketed outside agencies that sold the company’s 

insurance policies, urging customers to boycott those 

policies. 447 U.S. 607, 609 (1980). The Court held that 

Section 8(b)(4)(ii)(B) lawfully prohibited this secondary 

consumer picketing, but the majority could not agree on an 

explanation for why the prohibition was permitted by the 

First Amendment.

Justice Powell, in a plurality opinion, treated the case as 

squarely controlled by IBEW’s picketing-specific reasoning. 

He wrote:

Congress may prohibit secondary picketing 

calculated to persuade the customers of the 

secondary employer to cease trading with 

him in order to force him to cease dealing 

with, or to put pressure upon, the primary 

employer. Such picketing spreads labor 

discord by coercing a neutral party to join the 

fray. In Electrical Workers v. NLRB, 

341 U.S. 694, 705 (1951) [(“IBEW”)], this 

Court expressly held that a prohibition on 

“picketing in furtherance of [such] unlawful 

objectives” did not offend the First 

Amendment. We perceive no reason to depart 

from that well-established understanding. As 

applied to picketing that predictably 

encourages consumers to boycott a secondary 

business, § 8(b)(4)(ii)(B) imposes no 
NLRB V. IAB LOCAL 229 19

impermissible restrictions upon 

constitutionally protected speech.

Id. at 616 (some internal quotation marks and citations 

omitted) (emphasis added).

In a concurrence, Justice Stevens wrote that the First 

Amendment issue “is not quite as easy as the plurality would 

make it seem,” offering an alternative rationale for 

upholding the prohibition on secondary labor picketing as 

consistent with the First Amendment. Id. at 618 (Stevens, J., 

concurring). Such picketing may be regulated without 

violating the constitution, he wrote, because it “is a mixture 

of conduct and communication. In the labor context, it is the 

conduct element rather than the particular idea being 

expressed that often provides the most persuasive deterrent 

to third persons about to enter a business establishment.” Id. 

at 619.

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & 

Constr. Trades Council (“DeBartolo”) emphasized, as 

Justice Stevens had in Safeco, that non-picketing labor 

speech is more protected by the First Amendment than is 

labor picketing. 485 U.S. 568, 575 (1988). The Court 

observed that “picketing is qualitatively different from other 

modes of communication” and cited Justice Stevens’s 

Safeco concurrence for the proposition that the persuasive 

force of labor picketing draws its strength from such 

picketing’s conduct element rather than from the force of the 

ideas expressed. Id. at 580 (internal quotation marks and 

citation omitted). Applying this distinction to the facts of the 

case—which involved union members distributing handbills 

“without any accompanying picketing or patrolling,” id. 

at 571—the Court concluded that because the distribution of 

handbills constituted “mere persuasion,” involving no 
20 NLRB V. IAB LOCAL 229

“intimidat[ion] by a line of picketers,” construing the NLRA 

to prohibit secondary handbilling would raise “serious 

questions” about its compatibility with the First Amendment 

that prohibiting secondary picketing does not. Id. at 575–76, 

580.

DeBartolo thus rejected the Safeco plurality’s bare 

reliance on IBEW as the basis for upholding restrictions on 

labor picketing against First Amendment challenge. After 

DeBartolo, First Amendment challenges to restrictions on a 

union’s expressive activity must be evaluated under the 

rationale that a majority of the Court there endorsed. If the 

expressive activity, like handbilling, lacks the conduct 

element that distinguishes labor picketing, the 

communication falls on the speech side of the DeBartolo 

line, and a serious First Amendment problem is posed.

Until now, our circuit has been faithful to the inquiry 

DeBartolo requires in such cases. In Overstreet v. United 

Brotherhood of Carpenters and Joiners of America, Local 

Union 1506, union members had held aloft large banners 

announcing a “labor dispute” and declaring “SHAME ON” 

certain (secondary) retailers. 409 F.3d 1199, 1201–02 (9th 

Cir. 2005). The union argued that its bannering activity was 

protected by the First Amendment, so this Court considered 

whether such bannering was more like the “mere 

persuasion” in DeBartolo, and therefore potentially entitled 

to full First Amendment protection, or more like the 

“intimidation by a line of picketers” in Safeco, and therefore 

unprotected. Id. at 1210–11 (citations omitted). Given the 

stationary nature of the bannering activity and the absence 

of any physical or symbolic barrier blocking the entrances to 

the retailers’ establishments, this Court concluded that the 

handbilling in DeBartolo was more suitably analogous. Id. 

at 1211–16.
NLRB V. IAB LOCAL 229 21

In this case, I note, DeBartolo’s speech-conduct 

distinction is more easily applied than in Overstreet. Sending 

text messages containing a link to a website and distributing 

flyers is manifestly more analogous to handbilling than it is 

to picketing: it is the content of the website and the flyer, 

rather than any intimidating conduct, that does the 

persuasive work. But the panel refused to undertake this 

simple analysis. Instead, without engaging at all with the 

reasoning of Safeco, DeBartolo, or Overstreet, the panel 

dismissed DeBartolo as inapposite because it concerned 

peaceful, non-picketing, non-coercive speech directed at 

consumers, whereas here the peaceful, non-picketing, noncoercive speech was directed at secondary employees. 

Local 229, 941 F.3d at 906. The opinion makes no attempt 

to explain why, as a First Amendment matter, the audience 

of the peaceful, non-picketing, non-coercive speech should 

make any difference. See id.

DeBartolo and Overstreet involved applications of 

Section 8(b)(4)(ii)(B), whereas this case concerns the 

application of Section 8(b)(4)(i)(B). But developments in 

First Amendment doctrine are not confined to the particular 

statutory context in which they arise. There is no principled 

reason why the First Amendment rationale developed by 

Justice Stevens in Safeco and subsequently incorporated by 

a majority of the Court in DeBartolo would be any less 

applicable to one statutory subsection than to the other.

Indeed, the difference in the underlying statutory 

subsections at issue undermines rather than strengthens the 

panel’s reasoning. Section 8(b)(4)(ii)(B), at issue in 

DeBartolo and Overstreet, by its terms applies only when a 

labor organization “threaten[s], coerce[s], or restrain[s] any 

person engaged in commerce,” such as a customer of a 

secondary business who is intimidated by picketing. 
22 NLRB V. IAB LOCAL 229

29 U.S.C. § 158(b)(4)(ii). In DeBartolo, as in Overstreet, 

our courts avoided the First Amendment problems that they 

explicitly acknowledged would be posed by applying 

Section 8 to peaceful, non-picketing, non-coercive speech by 

adopting a saving construction of Section 8(b)(4)(ii)(B). 

DeBartolo, 485 U.S. at 575–76, 580; Overstreet, 409 F.3d 

at 1211–12. In both cases, our courts interpreted “threaten, 

coerce, or restrain” in such a way that the statute did not 

reach the speech for which a prohibition would potentially 

violate the First Amendment. Section 8(b)(4)(i)(B), by 

contrast, frames its prohibition under the broader “induce or 

encourage” language as interpreted in IBEW, which, as the 

parties and the panel in this case agreed, admits of no such 

saving construction. 941 F.3d at 905; see also 29 U.S.C. 

§ 158(b)(4)(i)(B). That difference in statutory language in no 

way mitigates the First Amendment problems acknowledged 

in DeBartolo and Overstreet; to the contrary, it requires us 

to confront head-on the serious but long-avoided First 

Amendment problems with identity-, content-, and 

viewpoint-based discrimination against non-picketing labor 

speech.

IV.

Nothing in IBEW excuses the panel’s avoidance of these 

problems. We cannot faithfully interpret any utterance of the 

Supreme Court in isolation from the context in which it 

arises, so we are frequently confronted with the question of 

just how broadly to interpret language which, taken out of 

context, may appear quite sweeping. By ignoring IBEW’s 

picketing-specific context, and refusing to consider the 

relevance of that context to the doctrine as it currently 

stands, the panel here adopted a disturbing approach to the 

application of precedents.
NLRB V. IAB LOCAL 229 23

Consider Mosley once again. 408 U.S. 92 (1972). There, 

the Court stated, in sweeping terms and without 

qualification: “[A]bove all else, the First Amendment means 

that government has no power to restrict expression because 

of its message, its ideas, its subject matter, or its content.” 

Id. at 95. This language, if taken on its face and treated with 

as little regard for modern doctrine as the panel here treated 

isolated sentences in IBEW, would squarely compel a victory 

for the union in this case, as there is no question that the 

injunction here at issue is content-discriminatory. What is 

more, this sweeping utterance in Mosley post-dates the 

sweeping utterance in IBEW that Section 8(b)(4)(i)(B) 

“carries no unconstitutional abridgment of free speech.” 

341 U.S. at 705. But the present state of the doctrine makes 

clear that we cannot take this sentence to have the farreaching implications it may seem to have: we know that the 

government does sometimes have power to restrict speech 

on a content-discriminatory basis in a number of contexts—

say, where a labor organization engages in secondary 

picketing, or, more generally, where a content 

discriminatory restriction on speech is narrowly tailored in 

service of a compelling state interest. See, e.g., DeBartolo, 

485 U.S. at 575; Burson v. Freeman, 504 U.S. 191, 198, 211 

(1992). It does not follow from those nuances of modern 

doctrine that Mosley has been overruled; certainly no 

Supreme Court opinion has said so. Rather, we must view 

that isolated language from Mosley in the context of First 

Amendment jurisprudence as a whole. When we do, we see 

that Mosley’s holding—that the government may not 

constitutionally forbid peaceful non-labor picketing while 

permitting only labor picketing—remains intact.

My reading of IBEW as limited to picketing is no more 

or less an artificial narrowing of Supreme Court precedent 

than that uncontroversial gloss on Mosley would be. IBEW’s 
24 NLRB V. IAB LOCAL 229

holding—that because states may constitutionally proscribe 

picketing in furtherance of unlawful objectives, they may 

constitutionally proscribe “peaceful picketing” in service of 

a secondary boycott, 341 U.S. at 694, 703–05—similarly

remains intact.

The possibility of en banc consideration accordingly 

presented this Court with a choice: to treat IBEW the same 

way we would treat Mosley, as appropriately limited to its 

actual holding, or instead to acquiesce in a new and needless 

constitutional anomaly—such that our generally applicable 

content-, viewpoint-, and identity-based discrimination First 

Amendment doctrines inexplicably exclude Section 

8(b)(4)(i)(B) from their reach, and the explanation for 

differential treatment of picketing from other forms of labor 

speech for First Amendment purposes, adopted in 

DeBartolo, is inexplicably confined to Section 8(b)(4)(ii)(B) 

only. I submit that we should not accept such an anomaly 

unless there is clear Supreme Court precedent which requires 

us to accept it. As there is not, this Court’s choice to 

acquiesce is an abdication of its responsibilities.

I respectfully dissent from the denial of rehearing en 

banc.

BUMATAY, Circuit Judge, dissenting from the denial of 

rehearing en banc.

I agree with Judge Berzon that this case should have been 

taken up en banc. I write separately to emphasize my views 

on why the Supreme Court’s decision in International 

Brotherhood of Electrical Workers, Local 501, A.F. of L. v. 

NLRB, 341 U.S. 694 (1951) (“IBEW”), is not binding in this 
NLRB V. IAB LOCAL 229 25

case and why it is our duty to apply the Constitution—not 

extend precedent—here.

I.

As inferior court judges, we are bound to follow 

Supreme Court precedent. Hart v. Massanari, 266 F.3d 

1155, 1170–71 (9th Cir. 2001). After all, “[f]idelity to 

precedent—the policy of stare decisis—is vital to the proper 

exercise of the judicial function.” Citizens United v. Fed. 

Election Comm’n, 558 U.S. 310, 377 (2010) (Roberts, C.J., 

concurring). But our fidelity is not blind. We always have 

a “duty to interpret the Constitution in light of its text, 

structure, and original understanding.” NLRB v. Noel 

Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). 

The same could be said of precedent that has been eroded by 

more recent jurisprudence.

This doesn’t mean that lower court judges can refuse to 

follow precedent—even if subsequent caselaw or the 

original meaning cast it into doubt. See Rodriguez de Quijas 

v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). 

Lower court judges don’t have license to adopt “a cramped 

reading” of a case in order to “functionally overrule” it. 

Thompson v. Marietta Educ. Ass’n, No. 19-4217, 2020 WL 

5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we

permitted to create “razor-thin distinctions” to evade 

precedent’s grasp. Josh Blackman, Originalism and Stare 

Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 

(2019).

But, where precedent is seriously questioned “as an 

original matter” or under current Supreme Court doctrine, 

courts “should tread carefully before extending” it. Garza v. 

Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). 

We can take care not to unduly expand precedents by reading 
26 NLRB V. IAB LOCAL 229

them “in light of and in the direction of the constitutional 

text and constitutional history.” Edmo v. Corizon, Inc., 

949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). 

So too with intervening Supreme Court decisions. And if a 

faithful reading of precedent shows it is not directly 

controlling, the rule of law may dictate confining the 

precedent, rather than extending it further. Cf. Citizens 

United, 558 U.S. at 378 (“[S]tare decisis is not an end in 

itself. . . . Its greatest purpose is to serve a constitutional 

ideal—the rule of law. It follows that in the unusual 

circumstance when fidelity to any particular precedent does 

more to damage this constitutional ideal than to advance it, 

we must be more willing to depart from that precedent.”).

II.

At issue here are four forms of speech: (1) sending text 

messages; (2) making phone calls; (3) talking to others; and 

(4) delivering flyers. NLRB v. Int’l Ass’n of Bridge, 

Structural, Ornamental, & Reinforcing Iron Workers, Local 

229, AFL-CIO, 941 F.3d 902, 904 (9th Cir. 2019). None 

these encompass the form of communication at issue in 

IBEW: picketing.

At the time of IBEW, “picketing” was considered sui 

generis under Supreme Court doctrine. “Picketing by an 

organized group is more than free speech[.]” Bakery & 

Pastry Drivers & Helpers Local 802 of Int’l Brotherhood of 

Teamsters v. Wohl, 315 U.S. 769, 776 (1942) (Douglas, J., 

concurring) (emphasis added). Picketing is distinct from 

other forms of speech, such as “distribution of circulars,” 

because “it involves patrol of a particular locality and since 

the very presence of a picket line may induce action of one 

kind or another, quite irrespective of the nature of the ideas 

which are being disseminated.” Hughes v. Superior Court, 

339 U.S. 460, 464–65 (1950). Accordingly, IBEW made 
NLRB V. IAB LOCAL 229 27

clear that limitations on this form of communication pass 

constitutional muster. See IBEW, 341 U.S. at 705 (“[W]e . . .

have recognized the constitutional right of states to proscribe 

picketing in furtherance of comparably unlawful objectives. 

There is no reason why Congress may not do likewise.”) 

(footnote omitted). IBEW’s reach is therefore limited to 

picketing.

On the other hand, the forms of speech involved in this 

case go to the heart of protected speech activity. For 

example, the Court has singled out leafletting, at least in the 

political realm, as “the essence of First Amendment 

expression.” McCullen v. Coakley, 573 U.S. 464, 488–89 

(2014) (quoting McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334, 347 (1995)). Indeed, “no form of speech is 

entitled to greater constitutional protection.” Id. Likewise, 

the Court has extolled “one-on-one communication,” like 

text messaging or calling someone, as perhaps “the most 

effective” and “[most] fundamental” speech. Meyer v. 

Grant, 486 U.S. 414, 424 (1988). Thus, under binding 

precedent, calling, texting, and leafleting are constitutionally 

distinct from picketing a business.

Given this backdrop, nothing in Supreme Court doctrine 

or principles of stare decisis require the extension of IBEW

here. IBEW deals with picketing and this case does not. As 

the cases above show, this is not a “razor-thin” distinction. 

And as Judge Berzon ably demonstrates, IBEW cannot be 

squared with modern First Amendment law. See Dissent 

at 16 (Berzon, J., dissenting) (“Given such a sea change in 

First Amendment jurisprudence,” IBEW “would need to be 

quite directly on point to be controlling today.”). Indeed, it 

is impossible to escape the conclusion that Section 

8(b)(4)(i)(B) of the National Labor Relations Act, 29 U.S.C. 

§ 158(b)(4)(i)(B), constitutes an impermissible content-
28 NLRB V. IAB LOCAL 229

based and viewpoint-based restriction on speech. See Reed 

v. Town of Gilbert, Ariz., 576 U.S. 155, 163, 168 (2015) 

(“Content-based laws—those that target speech based on its 

communicative content—are presumptively unconstitutional”

and “[g]overnment discrimination among viewpoints—or 

the regulation of speech based on the specific motivating 

ideology or the opinion or perspective of the speaker—is a 

more blatant and egregious form of content discrimination”) 

(simplified).

Also, I have doubts that § 158(b)(4)(i)(B), as applied 

here, would be consistent with the original meaning of the 

First Amendment. That Amendment pronounces that 

“Congress shall make no law . . . abridging the freedom of 

speech.” U.S. Const. amend I. While the contours of this 

language need further explication, and there is ongoing 

debate about its meaning among scholars, Justice Scalia 

articulated the convincing view that the First Amendment 

generally prevents government from proscribing speech on 

the basis of content, subject to “traditional categorical 

exceptions.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 

382–83 (1992) (identifying obscenity, defamation, and 

fighting words as examples of such exceptions). Another

persuasive view is that the First Amendment cemented the 

natural right to freely express one’s thoughts, spoken or 

written, subject to restrictions for the common good. See Jud 

Campbell, Natural Rights and the First Amendment, 

127 Yale L.J. 246, 304–07 (2017). But, under this view, “the 

Founders widely thought that the freedom to make wellintentioned statements of one’s views belonged to a subset 

of natural rights . . . that could not be restricted in promotion

of the public good and thus fell outside legislative authority 

to curtail.” Id. at 255–56. As James Madison said, 

“[o]pinions are not the objects of legislation.” 4 Annals of 

Cong. 934 (1794); see also Thomas Jefferson, A Bill for 
NLRB V. IAB LOCAL 229 29

Establishing Religious Freedom (1779) (“[T]he opinions of 

men are not the object of civil government, nor under its 

jurisdiction[.]”).

Considering our growing understanding of the First 

Amendment’s original meaning, I question whether 

Congress can abridge the type of expression at issue here, 

especially the common catchphrase, “friends don’t let 

friends cross.” NLRB, 941 F.3d at 904. Such an expression 

seems precisely like the type of “well-intentioned 

statement[] of opinion” that the Founders would have 

thought inalienable. See Campbell, supra, at 255–56, 284. 

By denying rehearing en banc, we’ve passed on a valuable 

opportunity to examine First Amendment history and further 

ground our own jurisprudence in the original meaning of the 

Constitution.

Because IBEW doesn’t directly control our decision here, 

I respectfully dissent from the denial of rehearing en banc.