760 F.3d 708
7th Cir.2014Background
- Unite Here Local 1 conducted a long-running strike (beginning 2003) against the Congress Plaza Hotel and, from c.2008, escalated tactics by sending delegations to neutral third parties who had reserved blocks at the Hotel. Delegations ranged from 2–10 people and used letters, emails, repeated phone calls, visits, leaflets, signs, and threats to attend or picket events.
- The Hotel sued under federal secondary labor-activity law (29 U.S.C. § 158(b)(4)(ii)(B) / § 187), alleging the Union coerced neutrals to cancel business and seeking damages; the district court granted summary judgment for the Union.
- Key alleged incidents involved nine targets (prominently American Tango Institute (ATI), International Housewares Association (IHA), Reed Exhibitions/Comic Expo), plus others (NeoCon, WordCamp, Midwest Clinic, ANTM, Chicago Film Festival, AgLab cow-pie valentine).
- The Seventh Circuit framed the central legal question as whether the Union’s conduct was coercive (unlawful secondary activity akin to picketing/boycotts) or persuasive/protected speech (handbilling, leafleting). The court emphasized trespass, repeated intrusion, and harassment as potential markers of coercion.
- The court reversed summary judgment in part and remanded for trial as to ATI, IHA, and Reed Exhibitions (Comic Expo) claims, finding sufficient evidence to create genuine issues of coercion, causation, intent, and damages; it affirmed summary judgment for other claims (AgLab cow pie, Film Festival, Midwest Clinic, NeoCon, WordCamp, ANTM) for various reasons (statute of limitations, insufficient evidence of coercion, or protected speech).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Union conduct toward neutrals violated §158(b)(4)(ii)(B) as coercive secondary activity | Union delegations trespassed, repeatedly intruded, harassed and threatened neutrals to force cancellations, causing damages | Activities were persuasion/handbilling or protected speech; occasional entry or visits are permitted to communicate | Reversed summary judgment for ATI, IHA, Reed — jury issues exist; plaintiff failed on several other targets so summary judgment stands there |
| Whether repeated trespass/harassment can constitute coercion under secondary boycott law | Trespass and sustained harassment can be as coercive as picketing and thus unlawful | First Amendment and DeBartolo protect handbilling and in-person persuasion; minor intrusions are protected | Court: repeated trespass/harassment may be coercive; such conduct is not categorically protected and can support §158 liability |
| Free speech defense: do First Amendment protections bar liability for the Union’s conduct? | Hotel: content-neutral harassment/trespass regulation is permissible and does not impermissibly chill speech | Union: much conduct is core political speech or truthful handbilling protected by DeBartolo and other precedents | Court: First Amendment does not shield trespassous or harassing conduct directed at unwilling/captive audiences; content-neutral limits permissible; free-speech canon of avoidance not dispositive here |
| Appropriateness of summary judgment on specific incidents (ATI, IHA, Reed; others) | Hotel: factual record shows coercion, causation, and damages for ATI, IHA, Reed; other incidents either timely or show coercion | Union: district court correctly found persuasion/protected speech or insufficient evidence; some claims time-barred | Court: affirmed summary judgment for AgLab (damages/timeliness), Film Festival (speculation re: bullhorns), Midwest Clinic, NeoCon, WordCamp, ANTM; reversed for ATI, IHA, Reed and remanded for trial |
Key Cases Cited
- DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) (distinguishes protected handbilling from prohibited secondary picketing; applies constitutional avoidance to protect speech)
- NLRB v. Retail Store Employees Union, Local 1001 (Safeco), 447 U.S. 607 (1980) (discusses balance between union speech and protection of neutrals; picketing that threatens ruin is coercive)
- NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58 (1964) (distinguishes persuasion from coercive picketing; unlawful activity is coercive threat of substantial loss)
- Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180 (1978) (recognizes trespassory union activity may be unprotected)
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (nonemployee union organizers’ trespasses are less likely to be protected)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (secondary boycotts/picketing may be regulated despite expressive elements)
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (private property owner may exclude handbilling on its property)
- Hudgens v. NLRB, 424 U.S. 507 (1976) (First Amendment limits are different on private property; no constitutional right to enter shopping center to advertise)
- NLRB v. Servette, Inc., 377 U.S. 46 (1964) (union delegations may approach and inform neutral managers; entry once for persuasion may be permissible)