Second Rate Reasoning | U.S. Chamber of Commerce

Second Rate Reasoning

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Construction

In a case currently before the National Labor Relations Board (NLRB), an Iron Workers local is challenging the National Labor Relations Act’s (NLRA) prohibition against secondary boycotts under the dubious premise that it violates the U.S. Constitution.  While the argument should face an uphill legal battle, it could offer insight into how organized labor might attempt to advance its agenda.

The case involves the construction of a four-story parking structure at a resort in California that involved at least two different subcontractors.  One of the subcontractors, Western Concrete Pumping (WCP), was responsible for performing concrete work at the job site while it was engaged in a labor dispute with Iron Workers Local 229 and Operating Engineers Local 12 for not paying so-called ‘area standard’ wages. 

Another subcontractor on the jobsite, Commercial Metals Co. (CMC), was responsible for installing reinforcing steel.  Unlike WCP, however, CMC had no labor dispute with either union. Even if it had, CMC was signatory to the Iron Workers’ Master Labor Agreement, which applied to the project in question and contained a provision that generally prohibited strikes by the union.

In August 2016, the Operating Engineers began picketing at the construction site as part of its labor dispute with WCP, with picketers carrying signs reading, “Not Paying Area Standard Wages – Western Pumping.”  Around the same time, a business agent of the Iron Workers’ local sent a text message to employees of CMC requesting that they strike or stop working at the jobsite to support the two unions’ labor dispute with WCP.  The same business agent subsequently distributed copies of a flyer titled “Picket Line Etiquette” and personally appealed to CMC employees to engage in a strike or work stoppage.

That behavior prompted an unfair labor practice charge against the Iron Workers’ local for violating Section 8(b)(4)(i)(B) of the NLRA, which states that it is unlawful “to induce or encourage any individual . . . to engage in a strike or a refusal . . . to perform any services” in order to pressure a neutral employer into not doing business with another business.

The prohibition against such secondary boycotts is long-established, but before an administrative law judge (ALJ) the Iron Workers argued that it violates the First and Thirteenth Amendments as well as the federal Religious Freedom Restoration Act (RFRA). 

For her part, the ALJ declined to adopt the Iron Workers’ reasoning, saying “[t]hese arguments, although eloquently presented, are rejected.”  Citing the longstanding Supreme Court precedent in IBEW Local 501 v. NLRB, which was decided in 1951, the ALJ noted “that outlawing inducement or encouragement of ‘secondary pressure’ does not violate the First Amendment,” and concluded that decision “remains binding law.”

Following the ALJ’s adverse decision in May, the Iron Workers filed exceptions with the Board, which will consider the issues involved after briefs are filed in July.  One hopes that the NLRB will concur with the ALJ and not engage in the type of legal chicanery that has characterized the Board for the last several years.