                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 NATIONAL LABOR RELATIONS                            No. 17-73210
 BOARD,
                      Petitioner,                     NLRB No.
                                                    21-CC-183510
                      v.

 INTERNATIONAL ASSOCIATION OF                          OPINION
 BRIDGE, STRUCTURAL,
 ORNAMENTAL, AND REINFORCING
 IRON WORKERS, LOCAL 229, AFL-
 CIO,
                      Respondent.


           On Petition for Review of an Order of the
               National Labor Relations Board

           Argued and Submitted February 15, 2019
                  San Francisco, California

                      Filed October 28, 2019

  Before: Mary M. Schroeder and Johnnie B. Rawlinson,
   Circuit Judges, and Robert S. Lasnik,* District Judge.

                  Opinion by Judge Rawlinson

   *
     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 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 contours of labor negotiations.


    **
       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

    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.


                        COUNSEL

Greg P. Lauro (argued), Attorney; Elizabeth A. Heaney,
Supervisory Attorney; Linda Dreeben, Deputy Associate
General Counsel; John W. Kyle, Deputy General Counsel;
Peter B. Robb, General Counsel; National Labor Relations
Board, Washington, D.C.; for Petitioner.

David A. Rosenfeld (argued), Weinberg Roger & Rosenfeld,
Alameda, California, for Respondent.
4                NLRB V. IAB LOCAL 229

                         OPINION

RAWLINSON, Circuit Judge:

    The National Labor Relations Board (Board) petitions for
enforcement of an order entered by the Board against the
International Association of Bridge, Structural, Ornamental
and Reinforcing Iron Workers, Local 229 (Local 229) to
“[c]ease and desist from inducing or encouraging” certain
persons “to engage in a strike or a refusal to perform work in
the course of employment,” in order to force various
companies to “cease doing business with Western Concrete
Pumping, Inc.,” in violation of Section 8(b)(4)(i)(B) of the
National Labor Relations Act (NLRA), 29 U.S.C.
§ 158(b)(4)(i)(B).

     Local 229 opposes enforcement of the order, asserting
that the Board’s application of Section 8(b)(4)(i)(B) violates
the First Amendment. Local 229 contends, alternatively, that
its statements are protected under Section 8(c) of the NLRA,
29 U.S.C. § 158(c), the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. §§ 2000bb et seq., and the Thirteenth
Amendment of the United States Constitution. Local 229
also seeks clarification of the notice requirement in the
Board’s order.

    We grant the petition to enforce the Board’s order, which
is supported by substantial evidence that Local 229 violated
Section 8(b)(4)(i)(B).

I. Background

  The underlying facts in this case are undisputed.
McCarthy Building Companies, Inc. (McCarthy), a general
                 NLRB V. IAB LOCAL 229                      5

contractor, subcontracted with Western Concrete Pumping
(WCP) and Commercial Metals Company (CMC) to perform
work in connection with the construction of a parking
structure for a casino in Temecula, California. Local 229 and
Operating Engineers Local 12 (Local 12) engaged in a labor
dispute with WCP over allegedly substandard wages. Local
12 lawfully picketed at the jobsite solely against WCP from
August to November, 2016.

     During the latter half of August, Local 229’s business
agent, James Alvernaz (Alvernaz), appealed to CMC’s
neutral employees specifically to induce or encourage a
secondary boycott of CMC in support of Local 229’s labor
dispute with WCP. Alvernaz texted CMC employees a link
to a webpage titled “Picket Line Etiquette,” with a “No Picket
Lines” symbol encircled by the phrase “FRIENDS DON’T
LET FRIENDS CROSS.” Alvernaz also called a CMC
employee to encourage the employee not to perform work for
CMC in solidarity with Local 229. Finally, Alvernaz spoke
with CMC employees at the jobsite on two occasions, and
placed copies of a flyer entitled “Picket Line Etiquette,” in
their lunchboxes.

    CMC filed a charge against Local 229 for engaging in an
unfair labor practice by inducing or encouraging CMC’s
neutral employees to strike or stop work for the unlawful
secondary purpose of furthering Local 229’s primary labor
dispute with WCP. An Administrative Law Judge (ALJ)
found that Local 229 had violated Section 8(b)(4)(i)(B) of the
NLRA and recommended that the Board enter a cease and
desist order. The Board affirmed the ALJ’s factual findings
and rejection of Local 229’s constitutional and statutory
arguments. The Board adopted a modified version of the
6                NLRB V. IAB LOCAL 229

ALJ’s recommended cease and desist order, which it now
seeks to enforce.

II. Standards of Review

    We uphold a decision of the Board if the findings of fact
are supported by substantial evidence and if the agency
correctly applied the law. See United Nurses Ass’ns of Cal.
v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017).

    Although we defer to the Board’s reasonable
interpretation of the NLRA, see id., we do not defer to the
agency’s interpretation of constitutional provisions, see
Overstreet v. United Bhd. of Carpenters & Joiners of Am.,
Local Union No. 1506, 409 F.3d 1199, 1209 (9th Cir. 2005).
We similarly review de novo an agency’s interpretation of a
statute outside its administration and expertise—in this case,
the RFRA. See Am. Fed’n of Gov’t Emps., AFL-CIO,
Council 147 v. Fed. Labor Relations Auth., 204 F.3d 1272,
1275 (9th Cir. 2000).

    Because “[t]he Board is vested with broad discretion to
devise remedies that effectuate the policies of the [NLRA],”
we review a remedial order only for a “clear abuse of
discretion,” such that the Board’s remedial order should stand
unless “the order is a patent attempt to achieve ends other
than” effectuating the policies of the NLRA. United Nurses,
871 F.3d at 377 (citations and internal quotation marks
omitted).

III.   Discussion

   It is an unfair labor practice under the NLRA for a labor
organization or its agents to “induce or encourage any
                  NLRB V. IAB LOCAL 229                         7

individual employed by any person engaged in commerce . . .
to engage in[] a strike or a refusal . . . to perform any services
. . . [where an] object thereof is . . . forcing or requiring any
person . . . to cease doing business with any other person . . .”
29 U.S.C. § 158(b)(4)(i)(B). Stated differently, a union may
not exert pressure on employees of a neutral employer to
strike against that secondary employer for the purpose of
increasing the union’s leverage in its dispute against the
primary employer. See Int’l Longshoremen’s Ass’n, AFL-
CIO v. Allied Int’l, Inc., 456 U.S. 212, 222–23 & n.20 (1982)
(describing this action as a “secondary boycott”).

    Local 229 concedes that it violated Section 8(b)(4)(i)(B),
and that substantial evidence supports its concession.
Nevertheless, Local 229 asserts a number of constitutional
and statutory challenges to the Board’s application of Section
8(b)(4)(i)(B).

    Initially, Local 229 contends that the Board’s application
of the statute to its conduct punished expressive activity
protected by the First Amendment. Specifically, Local 229
invites us to extend the Supreme Court’s decision in Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015), to apply strict
scrutiny to the analysis of Section 8(b)(4)(i)(B).

    Prior to its decision in Reed, the Supreme Court addressed
the constitutionality of a prior version of Section 8(b)(4)(i)(B)
in International Brotherhood of Electrical Workers v. NLRB
(IBEW), 341 U.S. 694 (1951). Without applying strict
scrutiny, the Supreme Court concluded that even peaceful
picketing violates the NLRA’s prohibition on secondary
boycotts, and held that the prohibition “carries no
unconstitutional abridgment of free speech.” Id. at 699–700,
705. Contrary to Local 229’s contention that IBEW’s holding
8                 NLRB V. IAB LOCAL 229

addresses only picketing, and not speech, the Supreme Court
concluded that “[t]he words ‘induce or encourage’ are broad
enough to include in them every form of influence and
persuasion,” id. at 701–02, in order to prevent the
“substantive evil . . . [of] the secondary boycott.” Id. at 705.
The Court explained that “[i]t was the objective of the unions’
secondary activities and not the quality of the means
employed to accomplish that objective, which was the
dominant factor motivating Congress in enacting that
provision.” Id. at 704 (citation, alteration, and internal
quotation marks omitted). The Court recognized that while
the statute’s remedial provision, Section 8(c), “protect[s]
noncoercive speech by employer and labor organization alike
in furtherance of a lawful object,” such protection does not
extend to “speech or picketing in furtherance of unfair labor
practices such as are defined in § 8(b)(4).” Id. (emphasis
added).

    The two circuits to address the First Amendment
implications of Section 8(b)(4)(i)(B) in the context of pure
speech have applied IBEW to hold that the “First Amendment
is not at all implicated” when activities prohibited by Section
8(b)(4)(i) are proscribed. Warshawsky & Co. v. NLRB,
182 F.3d 948, 952 (D.C. Cir. 1999). The District of
Columbia Circuit expressly held that “the First Amendment
does not protect communications directed at—and only
at—the neutral employees merely because the form of
communications is handbilling and conversations.” Id.
(footnote reference omitted). The Second Circuit rejected the
same First Amendment argument that Local 229 now makes,
holding that “[i]t is thus clear that the [IBEW] Court which
rejected First Amendment objections to § 8(b)(4) had
‘speech’ as well as ‘picketing’ inducements in mind.” NLRB
                  NLRB V. IAB LOCAL 229                      9

v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 477 F.2d
260, 266 (2d Cir. 1973).

      There have been no changes to First Amendment
jurisprudence in the interim that warrant divergence from the
Supreme Court’s analysis in IBEW or the interpretation of
IBEW in the decisions from the District of Columbia and
Second Circuits. We are not persuaded that Reed can carry
the weight that Local 229 ascribes to the decision. Reed
involved content-based restrictions in a municipal ordinance
regulating signs directed toward the general public. See
135 S.Ct. at 2225–26. In contrast, this case involves
communications addressed to neutral employees within the
highly regulated contours of labor negotiations. See IBEW,
341 U.S. at 702–04. Moreover, we think it highly unlikely
that the Supreme Court would have limited or implicitly
overruled the detailed analysis of the NLRA in IBEW without
even mentioning IBEW in its Reed decision. See Agostini v.
Felton, 521 U.S. 203, 237 (1997) (cautioning lower courts
against concluding that its more recent cases implicitly
overruled earlier precedent); see also United States v. Garcia,
768 F.3d 822, 831 (9th Cir. 2014) (“[W]e have expressed a
. . . reluctance to abandon Supreme Court precedent on the
premise that a subsequent case has effected an implicit
overruling of earlier Supreme Court precedent.”).

    Local 229’s reliance on Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building and Construction Trades
Council, 485 U.S. 568 (1988), is misplaced. DeBartolo
addressed the issue of whether a different provision of the
statute, Section 8(b)(4)(ii), protected handbills urging
consumers to lawfully boycott a neutral employer. See id.
at 581–82. DeBartolo did not address speech whose object
was to encourage or induce the “substantive evil [of] the
10               NLRB V. IAB LOCAL 229

secondary boycott” by neutral employees that Section
8(b)(4)(i)(B) prohibits, and therefore did not disturb the
holding of IBEW. 341 U.S. at 705.

    Alternatively, Local 229 asserts that Section 8(c) of the
NLRA protects its communications. Section 8(c) provides
that “[t]he expressing of any views, argument, or opinion, or
the dissemination thereof . . . shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression contains no
threat of reprisal or force or promise of benefit.” 29 U.S.C.
§ 158(c).

    The Board reasonably rejected Local 229’s contention
because the Supreme Court has concluded that Section 8(c)
does not immunize activities that violate Section 8(b)(4). In
IBEW, the Court definitively and undeniably rejected the
notion that activities proscribed by Section 8(b)(4) could
escape prohibition through application of Section 8(c),
including the following reasoning:

       There is nothing in the language or legislative
       history of section 8(c) which indicates
       persuasively a Congressional intent to create
       an asylum of immunity from the proscription
       of section 8(b)(4)[] for secondary boycotts.
       341 U.S. at 701 n.6.

       The legislative history does not sustain a
       congressional purpose to outlaw secondary
       boycotts under [Section] 8(b)(4) and yet in
       effect to sanction them under [Section] 8(c).
       Id. at 704.
                  NLRB V. IAB LOCAL 229                     11

       The remedial function of [Section] 8(c) is to
       protect noncoercive speech by employer and
       labor organization alike in furtherance of a
       lawful object.     It serves that purpose
       adequately without extending its protection to
       speech or picketing in furtherance of unfair
       labor practices such as are defined in
       [Section] 8(b)(4). The general terms of
       [Section] 8(c) appropriately give way to the
       specific provisions of [Section] 8(b)(4). Id.
       at 704–05.

    We similarly conclude that the Board properly rejected
the challenges asserted by Local 229 under the RFRA and
under the Thirteenth Amendment to the United States
Constitution. Local 229’s bald assertion that its rights under
the RFRA were violated, fails to sufficiently demonstrate that
prohibiting the union’s inducement and encouragement of
neutral employees to engage in a secondary boycott
substantially burdened its exercise of religion. See Oklevueha
Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012,
1016–18 (9th Cir. 2016) (affirming summary judgment
against plaintiffs where there was no evidence of a substantial
burden on the exercise of their religious beliefs when they
were denied the use of cannabis).

    Local 229’s contention that Section 8(b)(4)(i)(B) runs
afoul of the Thirteenth Amendment’s prohibition on
involuntary servitude, is “patently groundless,” particularly
in light of Local 229’s concession that “under § 8(b)(4),
employees are free to leave the job.” Printing Specialties &
Paper Converters Union, Local 388 AFL v. LeBaron,
171 F.2d 331, 334 & n.2 (9th Cir. 1948) (rejecting similar
12                  NLRB V. IAB LOCAL 229

argument that the NLRA’s prohibition on secondary boycotts
is tantamount to involuntary servitude).

    Finally, we hold that the language of the order adequately
apprised Local 229 of its notice obligations. As Local 229
conceded, the language used in the Board’s order has been
standard for over fifteen years.

IV.       Conclusion

   Substantial evidence supports the Board’s finding that
Local 229 violated Section 8(b)(4)(i)(B) of the NLRA.
Accordingly, we GRANT the Board’s application for
enforcement of its order.1

      PETITION TO ENFORCE GRANTED.




      1
      We DENY Local 229’s motion for judicial notice. See Escobedo v.
Applebees, 787 F.3d 1226, 1228 n.2 (9th Cir. 2015) (denying request for
judicial notice because, inter alia, documents were immaterial to the
court’s analysis).
