*3 practices, their labor by influencing the BERZON, Circuit Judge: contracting practices of companies some The (“the National Labor Retailers”1) Relations Board that do business with (“NLRB” Board”) or “the Regional Di- Retailers, Carpenters them. The sent the rector, Overstreet, Cornele enjoin seeks to Phoenix, also located in or around Los companies gen- 1. These include retailers tent with the tradition in labor law of so Precision, Brady, eral contractors who hired referring employers other than those whose or & K on projects. E various construction policies own labor relations a union seeks retailers, majority The companies of these Lesnick, change. See Howard The Gravamen we will refer to them that shorthand. Secondary Boycott, 62 Colum. L. Rev. (1962) (noting parties The Retailers are so common under- situated that the 8(b)(4) standing governs and the district court refer to them as "sec- of the NLRA businesses,” "secondary or "secondary” ondaries” consis- union actions related but not the banners on placed Carpenters The promising Diego, letters Angeles, and San sidewalks, away from the Re- facing cam- public information “aggressive Precision, cases, E & [Brady, majority vast tailers. paign against dis- signifi- visible banner K],” including “highly the banners at a placed Carpenters of business. places Retailers’ plays” at the if hundreds of cant distance —scores “to not the Retailers urged letters The Retailers’ entrances. away from the feet— Precision, E toK] & [Brady, allow the ban- generally placed your projects perform any work passing possible visible as ners to be as meets area generally unless and until public. members of the and other motorists step, the Taking this standards.” the banners is no indication There *4 said, greatest “provide the would letters the Retail- employees at were directed becoming firm your protection against work ers, any employee declined to or that dispute.” in this involved publicly point At no did account of the banners. on respond, not the Retailers did to the When the block the entrances Carpenters the site of protest to the Carpenters decided directly individual or confront Retailers to con- that continued eighteen Retailers through of those businesses customers Precision, E K. Brady, tract with & chants, shouts, other means. one,2 Carpen- the Retailer Near each but instead, generally remained Carpenters, foot foot fifteen up set a four ters ban- stationary quiet throughout their ON [NAME that read “SHAME banner activity. nering letters, large in red RETAILER]” OF Retailers, Homes, the Artisan One of in “LABOR DISPUTE” with the words Inc., banner responded letters on either smaller black somewhat work site posted on their with a banner or im- No other words side of that text. Support Our Subcontrac- that read: “We Individual ages appeared on the banners. ... Right It’s a to Work State tors! anywhere held the banners union members 1506.” Carpenters on Local Union Shame hundred feet from twenty from to several (Ellipsis original). members entrances. The the Retailers’ E K and two of the Retailers —Associ- & passing pedes- also distributed handbills America ated General Contractors trians, nature of the “labor explaining the (“AGC”) Bonaventure Hotel and Westin specified that dispute.” The handbills (“Westin”) charges with the NLRB —filed Bra- underlying complaint was with their Carpenters, alleging the against the K, Pecision, dy, and E & bannering activities3 constituted union’s by using the ser- believed that Carpenters practices in violation of unfair labor the Retail- vice of those three contractors 8(b)(4)(ii)(B) Act, § of the 29 U.S.C. undermining aiding them in re- ers were 158(b)(4)(ii)(B).4 Gen- § After the NLRB gional labor standards. specified only businesses). complaints 3. & K and AGC’s "primary” The term "second- E Carpenters’ bannering, Act, union's ary” see 29 U.S.C. appear does not in the handbilling. complaint specified Westin's 151-169, §§ and has taken on talismanic activities, parties subsequently all both but significance obscures rather that sometimes exclusively bannering. focused legal analysis. We than advances useful sparingly. the term therefore use NLRA, § 29 U.S.C. 4. Section 8 of the reads, part: relevant Retailer, restaurant, the ban- 2.Outside one (b) practice for a be an unfair labor It shall read, ATANTHONY’SFISH ner "DON’TEAT organization agents ... ... or its labor GROTTO.” threaten, coerce, (ii) any per- or restrain trances, complaint against eral Counsel issued do nor the union members patrol 10(b) Act, areas near places § the Retailers’ under business with, or initiate verbal 160(b), interactions peti- U.S.C. Overstreet filed a public. The court concluded that “[t]he tion in the United States District Court for bannering activity lacks the confrontation- California, pursu- the Southern District of al, sometimes intimidating conduct associ- 100) Act,5 ant 29 U.S.C. ated Further, with traditional picketing.” 160(J), injunctive seeking barring relief ruled, the district court because the Car- Carpenters’ bannering activity pending penters believes that the Retailers’ deci- the NLRB’s final resolution of com- Precision, sion to do Brady, business with plaint.6 argued Overstreet the ban- E and & K contributes to the erosion of 8(b)(4)(ii)(B) nering violates of the Act standards, does, fact, the union visibility because the of the banners have a dispute” Retailers, “labor with the customers —even those placed banners so the banners are not fraudulent or mis- several hundred feet from the entrances of leading. “pick- Retailers' —makes the bannering The NLRB consolidated the Gener and, alternative, eting,” because the al Counsel’s’ complaint administrative banners include a fraudulent claim —that *5 against Carpenters complaints with re there is a dispute” “labor with the Retail- garding similar activities involving other er —and therefore constitute economic Carpenters locals. The matter was tried coercion. an before Administrative Law Judge The district court petition denied the in (“ALJ”) in January 2003. The ALJ issued 7,May a decision issued on 2003. The 9, 2003, her May decision on ruling in the district court Carpenters noted that the do complainants’ favor.7 The ALJ- asserted not block access to the Retailers’ en- “[ajctivity that short of a traditional picket engaged industry son or commerce in an whom the matter be referred has rea- commerce, affecting where in either case charge sonable cause to believe such is true (B) object forcing thereof is ... or re- issue, shall, complaint and that a should he quiring any person using, selling, to cease Board, petition any on behalf of the United handling, transporting, or otherwise deal- any States district court within district ing any products producer, in the other practice question where the unfair labor manufacturer, processor, or or to cease do- occurred, occurred, alleged has is to have ing any person, business with other or forc- person or wherein such resides or transacts ing requiring any employer or other to rec- business, appropriate injunctive relief ognize bargain organization or with a-labor pending adjudication the final of the Board representative employees as the of his un- respect Upon with to such matter. the fil- organization less such labor has been certi- ing petition such the district court representative employees fied as the of such jurisdiction grant injunc- shall have such provisions under the of section 159 of this temporary restraining tive relief or order as Provided, nothing title: That contained in just proper, notwithstanding it deems (B) this clause shall be construed to make provision other of law.... unlawful, unlawful, where not otherwise any primary primary picketing. strike or petition 6. Overstreet’s does mention- the 158(b)(4)(ii)(B). 29 U.S.C. Carpenters’ handbills and did not seek an injunction 10(7) NLRA, against activity. that 5.Section 29 U.S.C. reads, 160(7), part: in relevant just 7. The charged ALJ issued after the any person Whenever it is that her decision has order, engaged district court entered deci- practice in an its so her unfair labor within (4)(A),(B), (C) meaning part paragraph sion is not of the record before us. The however, fact, 158(b) ruling, adjudicative ALJ’s prelim- section of this title ... is an inary investigation charge of such shall be existence nor its contents are neither its If, investiga- disputed. judicial made forthwith.... after such We therefore take notice of tion, regional attorney pursuant the officer or it to Federal Rule of Evidence 201. the ALJ’s rul- appealed Carpenters The sympathetic neutrals that signals that line by the union On June Over- is desired to the NLRB. part on their action and con- picketing,” regarded signal appeal as of the district filed this street con- bannering that the cluded ruling. court’s ALJ further “picketing.” stituted (1) intended this Carpenters ruled 10(Z) injunction standards II. Section Retailers to coerce the as a means picket of a grant or denial We review Brady, Preci- doing business with to cease of discretion. injunction for abuse § 10 sion, K; the words “labor E and & if discretion court abuses its The district naming the conjunction dispute” finding of fact clearly on a erroneous relies “conveyed to only have could Retailers Miller v. legal standard. an erroneous
viewers, suppli- including customers (9th Ctr., 449, 455 19 F.3d Pac. Med. Cal. ers, primary had Carpenters] ... that [the Cir.1994) banc). (en legal review the We named disputes with the [Retailers] de by the district court applied standards concluded, fi- the banners.” The ALJ novo. Id. hand- distributing explanatory nally, message of the mitigate did not bills court, relying on Nelson v. The district banners, were direct- because the banners Electrical International Brotherhood of motorists passing measure at some ed Workers, F.2d No. Local Union handbills. only pedestrians received while (9th Cir.1990), asked whether Over- found that the Car- Accordingly, the ALJ “reasonable cause” believe street had violated bannering activities penters’ Carpenters had violated 8(b)(4)(ii)(B) that the and recommended 8(b)(4)(ii)(B). Nelson, a “district Under to cease and order the NLRB *6 ‘reasonable cause’ where court find bannering. its desist propositions of allegations and the factual argued had to the ALJ Carpenters The pe underlying Regional Director’s law “pure bannering its constituted that and frivolous.” tition are not insubstantial could not be speech,” which constitutional- and citations omit (quotation Id. at 1560 enjoined not within the ly and does fall ted). argues that the district Overstreet The ALJ did not re- prohibitions. Act’s by failing to find reasonable court erred say arguments, except to spond to these standard. generous cause this under bannering “picket- was that because arguing, Overstreet assumes so the boundaries of the ing,” it fell outside stan- governing remains the cases. that Nelson Supreme Court’s First Amendment 12, 2671638, (Nov. Lexis 660 WL 2004 NLRB Agency v. Pac. Power See Transmission Sierra 918, Cir.2002). (Covi (9th 2004); Co., S.W. Reg’l Carpenters 295 F.3d 924 n. 3 Council of Constr., Inc.), WL 2004 2004 Concrete decision four Since the ALJ 18, 2004); (Feb. 8(b)(4)(ii)(B) 74 S.W. NLRB Lexis § does have concluded ALJs Inc.), (Held activities, Reg’l Caipenters Props., bannering prohibit Council similar of (Apr. 159 WL 2004 NLRB Lexis 2004 agreed in this case one has with the ALJ while 2, 2004). have 8(b)(4)(ii)(B) Two district courts followed § Compare does do so. refusing Re- Am., this case in court in district Carpenters & United Bhd. Joiners of of Dev., Inc.), gional requests injunctive relief for Directors' (Grayhawk 184 & 1498 Locals (Jan. Bhd. 17 in similar cases. See Benson v. United WL 2005 NLRB Lexis of Am., 13, 2005); Carpenters Locals & & Joiners Carpenters Bhd. & Join- United of (D.Utah 2004); F.Supp.2d 1275 Am., (Sunstone Locat Union No. 1506 ers of Carpenters, Investors), 2005 NLRB S.W. Reg’l Council 2005 WL Kohn Hotel (C.D.Cal.2003). (Jan. 2005); F.Supp.2d NLRB S.W. Reg’l Lexis 5 Council yet Contractors), rule in of the cases. (New has Star Gen. Miller, however, leged 8(b)(4)(A), (B), §§ decided-few banc dard. violations of 8(e). Nelson, (C), 8(b)(7), later than concluded that ordi- and See 29 U.S.C. 160(1)- Also, §§ 160(j) nary governing standards the issuance of & Board officials 10(0 § injunctions, special highly petition injunction not a must for a standard “ Director, whenever it Regional gov- to the has ‘reasonable cause’ deferential specific § believe that petitions injunctions 10(j) ern under violations of the (such Act, NLRA as secondary boycotts § 160(j), of the 29 U.S.C. another certain types illegal picketing) have oc- provision permitting preliminary NLRA Miller, curred.” at (quoting F.3d injunctive alleged relief for violations of 160(0)- § 29 U.S.C. mandatory No such decide, consequent- the Act. first We must obligation § 10(j) injunctions; exists for ly, effectively whether Miller overruled instead, the Board has. 10(0 discretion as to § Evaluating the Nelson standard. whether to pre-decision injunctive seek re- injunction an granting standards for us, lief. Id. at 456. No 10(Z) reason occurs to under of the Act for the first time however, why the distinction between a Miller, since we decided we hold that Mil- mandatory discretionary application Nelson, ler overruled and that we should injunction for an should affect the courts’ apply the standard Miller here.8 standard for determining whether A. Miller & “reasonable cause” for, an grant injunction applied and the parties suggested have none. Act,9 § 10(j)
Miller involved
injunctive provision many respects
There is one additional difference be-
10(0,
§to
and noted that both
similar
10(i)
§ 10(j)
tween
to which Over-
designed
sections are
“to alleviate the
significance:
street would have us accord
delay
process
threat
the Board’s
10(Z)
Section
has “reasonable cause” lan-
unfair
practice complaints
labor
guage,
10(j)
while
does not. This dis-
pose
would otherwise
to the NLRA’s re
tinction, however,
Miller,
was noted
Miller,
goals.”
medial
10. Overstreet’s See, against applying e.g., Kinney argument standard. v. Int’l Union of 150, AFL-CIO, 10(l) pre-Miller Eng’rs, § Operating relies on or out- Local 994 Miller Miller, (7th Cir.1993) (applying cases. Since we of-circuit decided F.2d appears inquiry). an one circuit to have issued As Mil "narrow” reasonable cause 10(1) here, opinion regarding injunction §a inapplicable in line makes Nelson it also ler frivolous” test ap with the "not insubstantial and consistent with Nelson’s makes cases Pye See v. Teamsters Local Union of Nelson. proach inapplicable. (1st Cir.1995) 61 F.3d No. holding rejected argu- expressly an (instructing courts to if NLRB Re- 11. This determine contrary that the NLRB made in gional Director has met "modest” burden im- ment the 10(Z), 10(j) § § posed by provision). both see Mil- "reasonable reference to cause” ler, confirming that other were also further earlier cases in circuits F.3d Some holding applies in this case. consistent with Nelson’s cause Miller's reasonable minimum,” as “an to requests courts exercise discre irreducible
District 10(i) § injunctions. for by injunctions regarding preliminary tion - equitable say To that focusing applies a familiar set of four Miller to this case on not, however, fully ap- does delineate the movant’s likelihood of success factors: the plicable judging propri- standards for the merits; irrepara of possibility on ety requested of the interim relief in this extent injury moving party; ble when, Miller stated that case. as is usual- hardships of favors to which the balance ly the the NLRB’s ultimate “determi- and whether the inter party; each nation given on the merits will be consider- by pre granting est will be advanced deference,” able court in a district id. at 456. Under our liminary relief. See 10(j) § proceeding “should evaluate the injunction a mov preliminary precedents, probabilities of the pre- [General Counsel] either “a combination ing party must show in vailing light ultimately, of the fact that Board’s determination the merits success on the merits and the probable given will be considerable deference.” Id. irreparable harm” or “serious possibility of On basis Miller concluded “the merits, questions going to the the balance showing Board can make a threshold favor, tipping sharply its hardships by producing likelihood of success some a fair of success on the and at least chance support evidence to unfair prac- (citing v. Mos merits.” Id. Senate Cal. charge, together arguable tice le- Cir.1992)). (9th bacher, 968 F.2d and, gal theory,” if likelihood of success minimum, moving At “an irreducible established, “presume irreparable thus in- must demonstrate a fair chance of party jury” to the Board. Id. at 460 (quota success on the merits.” Id. later, however, explain weAs be omitted).
tion and citation As Miller holds backdrop cause of the First Amendment 10(j) § apply these standards under case, ordinary principles of deference governs and we have concluded that Miller interpretation Board of the Act do not here, general apply, apply logical of the these same standards here.12 derivative noted, 2010(J)% Carpenters appealed 12. As the ALJ 20re- dacted% 20Manual% 205.0% (noting-that duced.pdf NLRB staff file a ruling against them to the NLRB. We have no 10(j) petition § the Board authorizes "[i]f determining what the Board will means of (last § 10(j) proceedings”) Apr. visited decide in this case. That the General Counsel 2005). might presume from the Board’s One complaint a ruled in favor issued an ALJ § petition a that if the decision to file Counsel no means foreor- General projected facts are found to be as in the B. dains the Board's decision. See Richard petition, the Board will decide the case con- Lapp, Approach: Simpler A Call Examin- for contrast, sistently petition. with the nei- Standard, 10(j) the NLRA’sSection 3 U.Pa. ther own internal the statute nor Board’s (noting J. Lab. & L. that in cases Emp. guidance specifies a for the Board role itself involving petitions injunctions, "it is not 10(Z) deciding petition. § whether to file a ALJ uncommon for the Board to overturn an Instead, regional determine whether officers that found decision in favor General §'10(Z) petition "on behalf of the file a Counsel”) omitted). (quotation and citation 160(Z); § 29 U.S.C. see also Office board.” incorporation It is unclear whether Miller’s Counsel, National Labor Relations of General 10(1) principle applies of a deference case, Statutory Priority: Sec- 10200-10248 Board, between because of further difference CD, CE, 10(Z) 10(k) CC, and CP tions — The Board itself deter- 10(1). 10(j) Cases, .gov/nlrb/legal http://www.nlrb /manu- 10(j) petition, to file a in its mines whether 20L% 2010200% 2010% als/SECTION% *9 29 U.S.C. to, discretion. See 160(j); § 2010248.pdf (instructing regional offices Office Of (Z) § guidance, file Counsel, with General Counsel General National Labor Relations cause is 10(J) petitions as soon as reasonable Board, Manual Electric Redacted Section found, Board) (last reference to the without (2002), User's Guide 10(Z) 2005). filing § Apr. The of a http://www.nlrb .gov/nlrb/legal visited /manuals/Re- standard, of street failed to meet the Nelson that likelihood success principle Miller necessarily found that failed adjudged with deference it Overstreet should be will of likelihood of suc- NLRB in mind where such deference to meet the standard if ultimately applicable upshot be on the merits is here. The is that applicable cess that, where, here, as principle agree the converse we with the district court’s assess- final judicial of the NLRB’s deci- we review ment of the merits —as we do—then ordinary incorporate sion will not level must affirm. deference, the district court should de- III. Likelihood of success issues as legal cide likelihood of success on the merits in a non-NLRB without would any in NLRB deference.13
factoring special that its maintains ban- minimum,” then, re- While the “irreducible nering fully protected by is the First mains that Overstreet must establish Amendment, any injunction requir- so that merits,” on the “fair chance of success signs them to take down the would be Miller, 19 F.3d at the likelihood of unconstitutional. If this contention is col- is applicable success standard this case orable—and we conclude that it is—then Miller, higher somewhat than in as we do the deference courts owe to the Board not assume deference to the Board’s ulti- regard interpretation mate conclusion. begin at NLRA is its nadir. We therefore by explaining why that is so. next We
Although the district court erred ask- inquire strength Carpen- into the ing whether had “reasonable Overstreet arguments. ters’ First Amendment With than petition cause” to file his rather necessity for constitutional caution es- granting injunction whether would be tablished, why we then consider detail “just and not remand for proper,” we need Overstreet has little likelihood—not even a under correct standard. consideration succeeding showing “fair chance”—of The “not and frivolous” Nel- insubstantial 8(b)(4)(ii)(B) § standard, prohibits Carpen- signifi- son F.2d at activity. cantly bannering ters’ lower bar Overstreet to meet for than minimum” showing the “irreducible Bishop, A. DeBartolo & Catholic merits,” a “fair chance of success on the constitutional avoidance Miller, as evalu- especially F.3d NLRA, interpreting ated without deference to the Board. as in statutes, interpreting Because the district court found that Over- other we con- must success, petition, filing 10(j) petition, strong showing likely unlike the of a and of harm therefore, well, suggests nothing about how the to the defendant as could suffice. See Court, ultimately Board will resolve the case. Sammartano First Judicial Dist. (9th Cir.2002) (noting "sig- As we hold that this case’s First Amend- F.3d upholding nificant interest backdrop prevents taking ment us First from into principles,” requiring Amendment thus an es- account ultimate deference to the Board pecially strong showing preliminaiy on other reviewing application Overstreet’s relief, injunction prongs); Cmty. 10(Z) San Antonio need determine we whether cf. Hosp. Carpenters, v. S. Cal. Dist. Council generally apply, we would how under (9th Cir.1997) (re- 10(Z), 125 F.3d 1233-34 regarding sig- Miller’s comment quiring particularly prelimi- close review of proceedings nificance in of future def- 10® nary injunction implicating cases the First position. erence to the Board's ultimate Amendment "so as to assure ourselves that 13. Further, where, here, judgment as there is at least does not constitute a forbidden constitutionally protected expression”) some risk that intrusion on the field of free omitted). (internal speech particularly quotation enjoined, will be and citation
1209
(refusing
a
1392
to accord deference to
proposed
at the outset whether
S.Ct.
sider
8(b)(4)
rise to
give
interpretation
the Act “would
the NLRB’s
be-
construction of
NLRB
questions.”
constitutional
cause of need to avoid First Amendment
serious
440
Bishop
Chicago,
U.S.
v. Catholic
in-
congressional
concerns absent clear
1313,
490, 501,
tent).
Our need
avoid
concerns,
may
serious constitutional
“significant risk” to the First Amendment
8(b)(4)(ii)(B).”
fairly be ascribed to
Id.
interpret
proceed
affects both how we
added).
577,
(emphasis
at
Court
boycott
policies.
to
those
urging
no
customers
legislative history indicate[ ]
and their
609,
Id. at
Amendment
added,
(emphasis
quotation and citation
omitted).
Supreme
The
has
Court
addressed
interaction between the First Amendment
adopted
The DeBartolo
and elabo-
Court
8(b)(4)(ii)(B)
directly
most
in two
upon
explanation.
rated
Justice Stevens’
cases,
Employees
NLRB v. Retail Store
“picketing
qualita-
that
DeBartolo noted
Union,
Local
U.S.
100 S.Ct.
tively different from other
of com-
modes
(“Safeco”), munications,”
patrolling,”
DeBartolo,
in
the Carpenters’
As
ban-
575-76,
1392, the
id. at
also
nering does not involve
in front
patrolling
distributing
concluded that because
Court
way
of an
and therefore erects no
entrance
not “in-
persuasion,”
handbills was “mere
symbolic barrier in front of the Retailers’
prohib-
picketers,”
a line of
timidat[ion]
doorways.
Carpenters place
Nor did the
iting handbilling would raise constitutional
any physical
their banners so as to create
considerably
gravity
greater
concerns of
blocking
barrier
the entrances to the Re-
Id. at
limiting picket
than
lines.
108
walkways approaching
or the
tailers
those
S.Ct.
anything
entrances.
is there
Nor
about
DeBartolo,
in
like
The handbills
members’ behavior
here,
com
contained more
the handbills
regarded
threatening
could be
as
or coer-
posi
argument favoring the union’s
plete
taunting,
massing
large
cive—no
no
of a
in this
than do banners. The banners
tion
of the Re-
people,
following
number of
no
signage,
of
example
is true
patrons.
tailers’
—as
billboards, generally'
including
—contain
physically
That the union members are
shorthand,
only catchy
not discursive
banner,
present, holding up the
does not
however, does not
pithiness,
This
speech.
in
affect this
The handbillers
conclusion.
scope
of
the banners from
remove
scene,
also on the
able to
DeBartolo were
as cases re
protections,
First Amendment
by their
some
presence
communicate
slogans demon
garding well known short
suasion, perhaps,
moral
greater degree of
See,
California,
v.
e.g.,
strate.
Cohen
pamphlets stand-
than the words on their
15, 25-26, 91
29 L.Ed.2d
U.S.
S.Ct.
approach of
ing alone. The one-on-one
ordinary First
(applying
indeed,
handbillers,
provided
opportuni-
slogan
principles
Amendment
to t-shirt
interchange concerning the
ty for verbal
draft”);
Cochran v.
reading “Fuck
fervency of the union members’ belief
(3d Cir.2004)
Veneman,
(ap-
Senator
members.
course,
legislative
last word on the
not the
statutory provision,
of the relevant
intent
the absence of
clear basis
Conference Committee
his role as
but
8(b)(4)(ii)(B)
covering
construing
as
DeBartolo,
Chairman,
485 U.S. at
see
bannering generally,
pre
Overstreet can
sufficiently
important
is
108 S.Ct.
if
par
vail
actions
that his un
provision
of this
passage
sufficiently “intimidating],”
ticular were
Senate,
derstanding, explained
DeBartolo,
485 U.S.
what the Senate
’
determining
tool in
useful
“threaten,
potential
or restrain”
coerce
*14
passed
provision.
it
intended when
of the Retailers. That
there
customers
Co.,
v. Inv.
450 U.S.
Bd.
See
Governors
of
threats,
have been no
and no
bar
physical
973,
46, 74-75,
vant committee “coerce,” Carpenters’ for two rea banners also, floor); Conroy Aniskoff, see Senate first, they equivalent sons: because 521-22, 1562, 511, 113 S.Ct. 507 U.S. viewers, and, picketing impact their on (1993) (Scalia, J., concurring) L.Ed.2d 229 second, they contain fraudulent because weight by to statements (according special language public that misleads the into analyz committee chairmen when relevant pri thinking Carpenters that has history). ing legislative Given Senator mary dispute with the Retailers. We ad Kennedy’s understanding that “ambu turn, concluding dress each contention latory picketing” prohibited, would be that does have a fair chance Overstreet not history “falls far short of reveal legislative arguments. of with these success bannering activity ing a clear intent” 8(b)(4)(ii)(B). always prohibited by Picketing 1. 588, 108 at S.Ct. 1392.17 See 485 U.S. on Carpenters placed The their banners Kennedy’s “ambulatory Senator focus sidewalks, both public at locations which the traditional identifi
picketing” reflects
passing
provided
greatest exposure
distinguish pick
of the factors
cation
physical
motorists and ensured that little
eting
protest
from other
actions: Classical
occurred between customers
interaction
and, in
doing,
in a line
so
ly, picketers walk
holding up the
and the union members
See,
symbolic
e.g.,
barrier.
Hono
create
as
The banners are so situated
banners.
No. 37 v.
Union
Typographical
lulu
(D.C.Cir.
to Retailers’
NLRB,
blocking
to avoid
entrances
F.2d
953-54
1392;
584-85,
tolo,
see
suggest
ture
understanding among
mutual
It is the
employees
meaning
union
of these
signal picketing
“signal”
bonds,
affinity
on either
signals
other union mem
based
instruction to
implicit
retribution,
bers,
of second
employees
union
for
that makes
including
potential
or the
businesses,
eliminating the need
ary
fall
“signals” sufficiently
these
coercive to
8(b)(4)(ii).
officials to make their
signaling union
meaning
To
within
speech protec
Free
explicit.19
direction
“signal picketing”
broaden the definition
by a
signal
to a mere
apply
do “not
tions
“signals”
any passerby
to include
would
members, or to the
organization to its
specialized concept
“signal
turn the
in an
affiliates,
engage
its
members
category synonymous
into a
picketing”
pro
as a strike
practice
unfair labor
such
requesting sup-
communication
8(b)(4)(A).”
NLRB v. Den
by
scribed
dispute.
“signal picket-
If
port
a labor
Council, 341
Bldg. & Constr. Trades
ver
broadly,
ing” were defined so
then the
Overstreet’s second submission is Contrary to Overstreet’s assertion that aside, “picketing” phrase “labor dis- “it actually is irrelevant the Union pute,” placed on a banner with may secondary dispute” have had a labor “fraudulent,” name of a Retailer on it is employers, presence with bannered suggests that the because dispute labor is determinative of the primary dispute has labor question whether the asser- Brady, the Retailers rather than with tion of a dispute” misleading “labor was Precision, E and & K. The district court otherwise, public. Disputes, labor and disagreed, ruling that Carpen- because the commonly spill secondary over affect ters union believes that the Retailers’ deci- institutions, strong as individuals with Precision, Brady, sion to do business with opinions concerning dispute seek to and E K& contributes to the erosion of prospect convince those with some of in- standards, does, labor the union in fact fluencing dispute the outcome of the to do have a “labor dispute” with the Retailers. so. Clothing allegedly op- manufacturers Whatever difference there inbe sweatshops, protest erate and activists in- primary secondary law between a and a buy clothing stitutions that from those difference, labor dispute, the the district See, e.g., manufacturers. United Students *17 concluded, court would not mean much to Us, Against Sweat-shops: About http:// Consequently, most consumers. of the use www.studentsagainstsweatshops.org/about dispute” term “labor was not a false state- (last 2005) (as- /about.php Apr. visited 25 ment, Carpenters and the had no obli- serting goal changing universities’ stan- gation to on their specify banners that in dards for labor conditions which univer- they secondary referred to a labor made). sity clothing is A nation takes dispute. actions, political military controversial or agree We with the district court for pressure and activists universities and oth- three reasons. er institutions to divest or endowment oth- First, er from although supporting funds businesses those argues Overstreet See, reading” e.g., “the most natural actions. Divest from Carpen- Israel pri- Campaign, http://www.dive ters’ banners is that the union has a st-from-israel- (last 2005) Retailers, mary dispute labor with the campaign.org Apr. visited 25 in a “la- engaged “dispute” certain were about to divest from institutions (urging state of business with the companies doing bor” issue. to do so that failure suggesting Israel understanding This of the term “labor wrongs in “complieit” alleged
makes one
dispute” distinguishes this case from San
Israel).
committed
Cmty. Hosp. v. S. Cal. Dist.
Antonio
think
might
one
about
Whatever
(9th
Carpenters,
ployment, regardless of whether the dis-
issued
relation
putants
proximate
stand
unprotected
termination that it is
employee.
employer
presents
“special
First Amendment”
Pittsburgh
prior
vice of a
restraint.”
152(9).
§
This definition does
29 U.S.C.
Pittsburgh
v.
Comm’n on Hu-
Press Co.
specify
employment
whose
be the
Relations,
376,
Rather,
390,
subject
dispute.
it uses man
413 U.S.
of a labor
(1973);
phrases, encompassing any
2553,
dis-
broader
This an judicial prior to be unconstitutional restraint accords with dispute” tion of “labor enjoined interpretations of the Norris-LaGuardia once is determined that beyond Act’s definition of the same term. The speech is libelous and the First Act, 10(i) 101 et Norris-LaGuardia U.S.C. protections). Amendment’s Section seq., dispute” defines “labor with terms definition, injunctions, by are issued before respects identical in all relevant either the Board or federal court has Act’s Compare definition.21 U.S.C. determination,” “adequate made' such 113(c) 152(9). previous with haveWe a preliminary prior and so amount to re- ly secondary boycott held that a “involves A Carpenters’ speech. straint on the Act dispute” Norris-LaGuardia “heavy presumption” against finding exists purposes. Mgmt. Corp. v. Int’l Smith’s constitutionally prior per- such restraints Workers, Bhd. Elec. Local Union No. Books, Sullivan, Bantam Inc. missible. (9th Cir.1984); 737 F.2d see 58, 70, S.Ct. U.S. L.Ed.2d 584 N. Burlington Ry. also Santa Fe Co. v. (1961). Against background, if we did Int’l Bhd. Teamsters Local concerning harbor doubts whether the (9th Cir.2000) (en banc). F.3d Carpenters’ banners fraudulent— this believes which we do not—those doubts would have that the to work Retailers’ decision against finding to be resolved such a Precision, E K Brady, and & interfered preliminary stage. “arrange with their efforts to terms or Carpenters’ conclude that the We ban- employment” conditions of with those and, ners did not contain false assertions dispute three contractors. Their with the therefore, were not fraudulent. squarely Retailers fits within the therefore NLRA’s, Act’s, and the Norris-LaGuardia CONCLUSION definition of “labor dispute.” “just Applying proper” the Miller
Third, issuing injunction a preliminary test, we conclude Overstreet did not against speech falsity based on its would a fair establish chance of success on the particularly significant create risks to the weak, legal theory merits. Overstreet’s First Amendment. While First “[t]he fraud,” given stationary, protect Amendment does not non-interactive and San Cmty. Hosp., Antonio 125 F.3d at an truthful nature of the banner- ing, seeking arrange 21. The Norris-LaGuardia Act defines a “labor terms or condi- dispute” to regardless employment, tions of of whether any controversy concerning disputants proximate include[ ] terms or not the stand in the employment, concerning or conditions of employer employee. relation of representation persons 113(c). association or 29 U.S.C. negotiating, fixing, maintaining, chang- *19 lost a Teamsters’ Convention be- of the First Amend- banner activity. light high- find banners in front. When in this we cause present ment concerns not show a fair chance er officials of the Teamsters arrived before did that Overstreet bannering group, they quite aggra- entire “were proving that “threaten, scope upset,” of the and their convention within the vated and coerce, convention, language planner day or restrain” cancelled the a 8(b)(4)(h). supposed to start. after was huge displayed peo-
AFFIRMED. banners are to by. readers that ple driving Handbills tell KLEINFELD, Judge, Circuit E & K Arizona was a subcontractor for a dissenting. firm contractor hired to do work respectfully I dissent. a displayed, per- where the banner is but approach representative son had to a union has a suffi- regional The NLRB director that. Evi- and ask for handbill learn on the “fraud- prevailing likelihood of cient dently subjected firms to the banners claim, under our decision speech” ulent K did not even hire E & Arizona. No one Community Hospital v. Antonio San get explanatory driving by would District Council Southern California handbill, anything explaining see been Carpenters,1 so that he should have firm dispute the union’s was with another injunction preliminary based granted entirely upon firm and not the whom Judge’s findings Law the Administrative invoked “shame.” The union con- banner and decision. post long tinued to its banners after of the ban- photographs The record has E K Arizona firms that contracted with & says one “LABOR typical at issue. A ners left, so the had finished their work letters, twice, huge red DISPUTE” message and their were banners “shame” ON THE WESTIN BONA- “SHAME was no work present even when there Anthony’s got Fish Grotto VENTURE.” going on at the sites to which the union banner, “LA- which had special its own objection. had twice, then printed BOR DISPUTE” EAT message individualized “DON’T Judge Law made The Administrative AT ANTHONY’S FISH GROTTO.” only message the of fact that finding “[t]he conveyed to reasonably could have banners sympa- of their Many people, because viewers, customers, suppliers, including as union mem- obligations thies or their targeted employers and visitors bers, patronize will not firms whose em- had Respondent Unions persons, was disputes over union engaged ployees with the neutrals primary disputes employment. or terms of Such recognition union “must banners.” The named on the individuals, ON THE seeing the “SHAME misconceptions would have foreseen banner, for BONAVENTURE” WESTIN bannering,” consequence of their be the would be inclined schedule example, not, did banner viewers and “most conventions, dinners, weddings and other handbills,” to, read the were not intended They hotel. would events at a different on the street were distributed which likely staying at the Westin. also avoid repre- approached the union people who in the According deposition evidence The union and asked for them. record, subjected to the sentatives of the hotels one 1997). Cir. Cmty. Hosp. Dist. 1. San Antonio v. S. Cal. (9th 125 F.3d Carpenters, Council of *20 position dispute in a with a purpose,” the Adminis- to advance its “had the intent found, causing company working construction that was Judge trative Law “of project.2 or so The union targeted employers persons hospital expansion neutral customer, through sup- explanation much discomfiture had an innocent “rats” —that rodents, complaints, inquiries, means, criti- plier, parlance or visitor but labor cism, that the neutral prevail or withheld business than pay contractors who less employers persons or would either cease ing wage, which was true. But we held primary employers doing business with the separat that the banner “crossed the line employers other neutral influence ing protected hyperbole rhetorical from doing to cease business with the persons unprotected misrepresentations fraudulent primary employers.” display of fact” because the manner of “could cause most—if not all—readers to majority court’s adopts The the district believing” be into what we called misled reasoning that the union had sort that reading,” hospi “the most natural philosophical dispute companies with that tal had a rodent problem.3 companies did business with other yet companies then did business with other significant The most distinction between actually with which the had a dis- union Community Hospital San Antonio argument public The is that pute. this case is that at least the banners in , expected cannot be to understand the fine Community Hospital San Antonio said primary distinctions and second- between was, dispute really whom the union’s with true, I ary disputes. think that is in much albeit smaller letters. our way. but it cuts the other The case, way passersby there is no to have expected imagine cannot be what the impressions their false corrected unless is, dispute real when it invokes union’s they place park, find a walk over to a “SHAME” because of a “LABOR DIS- representative, union and ask for a hand- companies PUTE” on who are contractual- bill. We considered same First ly steps company two removed from the San Antonio Com- Amendment issues actually seeking from which the union is munity Hospital presented are for its members. A reasonable benefits case, dissent, despite vigorous we person driving by the Bonaventure Westin held that the speech because was “fraudu- subjected or the other firms to the ban- lent,” unprotected.4 “deep it was his- think ners would “that must not company meaning” torical claimed for the word treating employees right,” be its not “that the union in San Antonio Com- “rats” company dealing must be with other com- munity Hospital5 is no different from the panies yet companies that deal with other metaphysical parsing of the term “labor employees right.” that don’t treat their dispute” by the union in this case. The dispute secondary union’s was question need not even reach the
We tertiary employers, but the “most natural whether the are “picketing,” banners be reading,” the one that the obligated cause banners would we follow our deci Community Hospital. San Antonio sion in cause “most—if not all—readers to be mis- believing” In that led into was that carpenters union dis union played a hospital thought employees banner front of a that the of the firms— rats,” saying hospital was “full of in front of which the banners were dis- 2. Id. at 1233. at 1237. Id.
3. Id. at 1236-37. 5. Id. at 1235. *21 being shamefully. treated
played —were
And that was not so. in San Antonio Communi- hospital Hospital got an injunction and the Re-
ty get should Director of the NLRB
gional be in this case. Like cases should
one alike.
treated America,
UNITED STATES
Plaintiff-Appellant, JARVISON, Defendant-Appellee.
Ben
No. 04-2093. Appeals,
United States Court
Tenth Circuit.
May