United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2007 Decided June 19, 2007
No. 06-1028
SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION,
LOCAL 15, AFL-CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
ENERGY AIR, INC. AND
GALENCARE, INC., D/B/A BRANDON REGIONAL MEDICAL
CENTER,
INTERVENORS
Consolidated with
06-1072
On Petition for Review and
Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Michael T. Anderson argued the cause for petitioner. With
him on the briefs was Arlus J. Stephens.
Jamin B. Raskin was on the brief for amicus curiae
2
Greenpeace USA in support of petitioner.
Kira Dellinger Vol, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Julie B. Broido, Senior
Attorney.
Tammie L. Rattray and Patrick Muldowney were on the
brief for intervenors Energy Air, Inc. and Galencare, Inc., d/b/a
Brandon Regional Medical Center. David A. Grant entered an
appearance.
Maurice Baskin was on the brief for amicus curiae
Associated Builders and Contractors, Inc. in support of
respondent.
Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: In the course of a labor dispute
with Energy Air, a heating, ventilation, and air conditioning
contractor, Sheet Metal Workers’ Local 15, AFL-CIO notified
Beall’s, Inc. — a department store for which Energy Air was
performing mechanical work — that the Union “will be
compelled” to publicize its dispute with Energy Air at two of
Beall’s department store construction sites. The Union’s letter
to Beall’s did not contain the assurance required by the National
Labor Relations Board that the Union’s picketing would
conform to the Board’s standards for picketing a neutral
employer, as laid out in Moore Dry Dock and its sequelae.
3
The Union also staged a “mock funeral” at the Brandon
Regional Medical Center (the Hospital), which was using non-
union workers supplied by a temporary employment agency and
another mechanical contractor, with both of which the Union
had an unrelated dispute. Energy Air and the Hospital each filed
charges with the Board, which concluded the Union in each
instance had violated the National Labor Relations Act.
The Board issued a Decision and Order barring the Union
from picketing the Hospital and from “unqualifiedly
threatening” to picket Beall’s. The Union petitions for review,
which we grant, and the Board cross-applies for enforcement of
the Order, which we deny.
I. Background
A. The Threat to Picket Beall’s
In September 2003 a Union representative wrote the
president of Beall’s a letter stating:
Our organization has an ongoing labor dispute with Energy
Air, Inc. This contractor has been charged with serious
Federal Law Violations and is currently being investigated
by the Federal Government.
We understand that Energy Air is performing HVAC
mechanical work on [two] Beall’s Department Store
construction projects ....
The union will be compelled to publicize our dispute with
Energy Air by the way of leafleting, protesting and the
possibility of picketing at the sites.
If you have any questions I can be contacted at ....
4
Based upon this letter alone, an Administrative Law Judge
(ALJ) concluded the Union had violated Section 8(b)(4)(ii)(B)
of the National Labor Relations Act (the Act), 29 U.S.C.
§ 158(b)(4)(ii)(B), which makes it an unfair labor practice for a
union to “threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce [viz., Beall’s]
where ... an object thereof is ... forcing or requiring any person
[viz., Beall’s] ... to cease doing business with any other person
[viz., Energy Air].” Id.
Under the longstanding rule of Sailors’ Union of the Pacific
(Moore Dry Dock), 92 NLRB 547 (1950), the proprietor of a so-
called common situs — a job site at which the employees of
multiple employers are working — may create a “reserved gate”
or entrance for use solely by the employees of any employer that
is then the target of union picketing; if a reserved gate is set up,
the union may picket only there. Id. at 549-50. In this case the
ALJ concluded the Union’s threat to picket Beall’s violated
§ 8(b)(4)(ii)(B) because it was not “qualified” by an assurance
the Union would limit its picketing to a reserved gate, as
required under Moore Dry Dock, citing Teamsters Local 456
(Peckham Materials), 307 NLRB 612, 619 (1992) (where union
threatens neutral contractor with picketing of job site at which
primary employer is working, union has “affirmative obligation
to qualify its threat by clearly indicating that the picketing would
conform to Moore Dry Dock ... or otherwise be in uniformity
[sic] with Board law”).
Although the Ninth Circuit has expressly rejected the
proposition that a union must affirmatively declare its intention
to conform with Moore Dry Dock, see United Ass’n of
Journeymen, Local 32 v. NLRB (Local 32), 912 F.2d 1108, 1110
(9th Cir. 1990), the ALJ noted “the Board continues to require
a union to indicate that its picketing will conform to Moore Dry
Dock” and cited a recent Board decision to that effect, Electrical
5
Workers, Local 98 (MCF Services), 342 NLRB 740 (2004). The
ALJ accordingly held the Union had violated § 8(b)(4)(ii)(B) by
uttering a proscribed threat but dismissed the complaint insofar
as it pertained to leafleting and protests at the Beall’s job site
because such activities were not coercive and therefore did not
violate the Act. In its Decision and Order the Board affirmed
these decisions of the ALJ.
B. The Curious Case of the Rat and the Placard at the Hospital
In January and February of 2003 the Union distributed
leaflets outside the Hospital protesting the presence of non-
union workers employed either by Workers Temporary Staffing,
Inc. (WTS) or by Massey Metals, Inc., which was using workers
supplied by WTS. The handbills stated, “There’s a ‘Rat’ at
Brandon Regional Hospital” and showed a cartoon of a rat near
the bed of a sick patient. The Union also inflated a balloon,
some 16-feet tall and 12-feet wide, in the shape of the cartoon
rat, about 100 feet from the main entrance to the hospital. The
ALJ concluded the leafleting, one union member’s holding the
leaflet chest-high as a “placard,” and the inflation of the rat each
violated § 8(b)(4)(ii)(B).
The Board reversed the ALJ as to the leafleting because the
General Counsel had disavowed that finding. The Board “found
it unnecessary to pass on” whether the inflation of the rat or
using the leaflet as a placard violated § 8(b)(4)(ii)(B) the Act
because, in view of the unfair labor practices found in
connection with the mock funeral described below, “[a] finding
of such a violation as to these matters would be cumulative and
would not affect the order.”
C. The Mock Funeral at the Hospital
On March 15, 2004 the Union staged a “mock funeral”
6
outside the Hospital and distributed leaflets headed “Going to
Brandon Hospital Should Not Be a Grave Decision”; the leaflets
detailed several malpractice suits against the Hospital — the
implication being the alleged malpractice was linked to the
Hospital’s use of non-union labor. The “mock funeral”
comprised one person in a “Grim Reaper” costume carrying a
“plastic sickle” and four other people, dressed in street clothes,
carrying a prop coffin and occasionally handing out leaflets.
These dramatis personae walked back and forth over a
distance of about 400 feet on a sidewalk parallel to the front of
the Hospital but apparently, from the Union’s videotape of the
event, some 100 feet from the entrance and separated from it by
a street, a strip of grass, a short hedge, and a parking lot,
crossing at a cross-walk every three to five minutes a street
running perpendicular to the Hospital. They were accompanied
by various somber tunes emanating from a portable audio
system, including Siegfried’s Funeral March by Wagner, O
Fortuna from Carl Orff’s Carmina Burana, and the third
movement from Chopin’s Piano Sonata No. 2. The mock
funeral lasted about two hours but, according to the testimony of
one of the participants, because the Union members frequently
“took breaks,” this bit of “street theater” was ongoing for only
“45 minutes to an hour ...[,] about half the time.”
In July 2004, while the unfair labor practice complaint
arising out of the mock funeral was pending before the ALJ, the
Regional Director of the NLRB asked the U.S. District Court for
the Middle District of Florida to enjoin the Union, pursuant to
Section 10(l) of the Act, from restaging the mock theater or
otherwise picketing or patrolling at the Hospital on the ground
those activities would violate § 8(b)(4)(ii)(B). See 29 U.S.C.
§ 160(l). The district court, after reviewing a Union-made
videotape of the event, found the mock funeral had been
“orderly” and that “[n]o traffic was blocked, pedestrians were
7
not obstructed or challenged and there appeared to be no eye
contact or verbal contact [between] any participant” [and any
Hospital patron]. Likewise, “[t]he leafleters [at the mock
funeral] were orderly, non-confrontational and did not interfere
[with] or impede ... the egress or ingress of any individuals to or
from the hospital.” Nonetheless, the district court enjoined the
Union from “threatening, coercing or restraining [the Hospital]
by staging street theater ... [or] processions” or by “picketing,
patrolling and/or any manner of conduct calculated to induce
individuals not to patronize the hospital.”
While review of the injunction was pending before the
Eleventh Circuit,* the ALJ concluded the Union had violated
Section 8(b)(4)(ii)(B) because the mock funeral constituted
“picketing” and people “were forced to view and cross a death
march in order to patronize the Hospital.” In its Decision and
Order the Board agreed with the ALJ that the mock funeral in
this case was unlawful picketing, though the members of the
panel aired somewhat different views on the general subject.**
*
The Eleventh Circuit, giving “deferential review” to the
position of the Board, held the mock funeral was the “functional
equivalent of picketing,” Kentov v. Sheet Metal Workers’ Int’l Ass’n
Local 15, 418 F.3d 1259, 1265 (11th Cir. 2005), and affirmed the
injunction except as to the prohibition of “street theater,” id. at 1267,
because the Board conceded its request for an injunction was not a
request to enjoin all “street theater” but only repetition of the mock
funeral, id. at 1266.
**
Member Liebman contended that “ambulatory picketing
or patrolling classically involves more than the ‘mere persuasion’ of
a banner, it also involves the intimidation of a physical or symbolic
barrier to the entrance way,” so that in this case it was “the patrolling,”
not the use of a plastic sickle or the message conveyed by the mock
funeral, that erected a barrier to the Hospital. For support she pointed
to the Supreme Court’s “embrace” in Edward J. DeBartolo Corp. v.
8
The Board therefore ordered the Union to cease and desist from
“[p]icketing [the Hospital] with the object of forcing it to cease
doing business with Massey Metals ... and Workers Temporary
Staffing.”
II. Analysis
The Union argues its letter to Beall’s did not violate
Section 8(b)(4)(ii)(B) of the Act, first, because the Union has no
obligation to assure a neutral employer that its picketing will be
limited to a reserved gate as required by law and, at any rate,
because Beall’s did not establish a reserved gate. With respect
to the Hospital, the Union argues the mock funeral was
protected by the First Amendment to the Constitution of the
United States and points out that even offensive expressions are
protected by Section 8(c) of the Act itself.*
Florida Gulf Coast Building & Construction Trades Council, 485 U.S.
568, 580 (1988), of Justice Stevens’s concurrence in NLRB v. Retail
Store Employees Union, Local 1001 (Safeco), 447 U.S. 607 (1980), in
which the Justice characterized picketing as “a mixture of conduct and
communication. In the labor context,” he continued, “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.
Chairman Battista and Member Schaumber agreed with
Member Liebman “as to the reasons why [sic] this conduct was
picketing,” but noted “to the extent [Member Liebman] implies that
picketing requires a physical or symbolic barrier, we do not
necessarily agree. ... It may be that other conduct, short of a barrier,
can be ‘conduct’ that is picketing or at least ‘restraint or coercion’
within the meaning of Section 8(b)(4)(ii)(B).”
*
Section 8(c) provides express statutory protection for
speech that is not threatening or coercive. See 29 U.S.C. § 158(c)
9
We review an order of the Board deferentially insofar as we
must determine whether the Board “acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Stanford Hosp. & Clinics v. NLRB, 370 F.3d 1210, 1212
(D.C. Cir. 2004). The Board receives no deference, however,
insofar as we review an order for consistency with the
Constitution. See DeBartolo, 485 U.S. at 574-76; Univ. of Great
Falls v. NLRB, 278 F.3d 1335, 1340-41 (D.C. Cir. 2002); cf.
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 567 (1995) (reviewing claim to protection
of the First Amendment by “independent examination of the
record as a whole, without deference to the trial court”).
A. The Threat to Beall’s
The Union argues that because Beall’s neither established
a reserved gate nor notified the Union that it intended to do so,
“the Union ha[d] no duty to assume that such a system would be
in place, and no duty to propose a reserved gate system on its
own.” Moreover, the Union cannot have broken the law, it
maintains, by failing to promise it would not break the law. The
Board responds that its rule requiring a union to indicate it will
abide by Moore Dry Dock is consistent with its own precedents,
that is, “Board law,” see, e.g., State Elec., 342 NLRB No. 74 (2004).
(“expressing of any views, argument, or opinion ... 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 ...”). We do not analyze the Union’s argument separately under
the statute and the Constitution because the Supreme Court has
explained that Section 8(c) “merely implements the First
Amendment,” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
and the relevant case law arises under the Constitution, not under the
statute.
10
The Union relies upon three propositions, all of which we
find persuasive: (1) the Ninth Circuit in Local 32 has squarely
rejected the Board’s rule in a reasoned opinion; (2) though we
have not ruled upon the issue, this circuit’s precedents are
consistent with the reasoning of the Ninth Circuit; and (3) the
Board’s rule violates what the Union calls “the canon of federal
labor law that if a course of action is lawful, advance notice of
it is also lawful,” for which it refers us to NLRB v. Servette, Inc.,
377 U.S. 46, 57 (1964), where the Court stated that protection of
lawful conduct “would be undermined if a threat to engage in
protected conduct were not itself protected.”
The Board’s failure even to mention Local 32 in its brief is
of a piece with its apparent refusal generally to recognize the
existence of that case, in which the Ninth Circuit held the Board
“could not presume that a union’s threat to picket the job was a
threat to picket contrary to the law, when picketing at the job
could be done in a lawful manner,” and said “such a
presumption is without foundation in the Act, relevant case law
or any general legal principles.” 912 F.2d at 1110. The ALJ
acknowledged Local 32, but noted that the Board “accepted [it]
only as the law of the case” and “continues to require a union to
indicate that its picketing will conform to Moore Dry Dock
standards.” In short, the Board continued to adhere to its
preferred rule, see generally Samuel Estreicher & Richard L.
Revesz, Nonacquiescence by Federal Administrative Agencies,
98 Yale L.J. 679 (1989), and in its decision did not deign to
acknowledge the contrary holding of the Ninth Circuit.
The Ninth Circuit’s decision is not binding upon this court,
of course, but it is considerably more persuasive than the
Board’s conclusory claim that its rule is a “reasonable
interpretation” of § 8(b)(4)(ii)(B). The Board offers us no
reason to believe it can make an unfair labor practice out of a
union’s failure to assure an employer the union will abide by the
11
law.
In addition to Local 32 the Union points to this court’s
decision in J.F. Hoff Electric Co. v. NLRB, 642 F.2d 1266
(1980). There we explained that under Moore Dry Dock
“neutral employers may insulate themselves from ... picketing
only if the reserved gate practice is faithfully observed.” Id. at
1271. This proposition, the Union reasons, necessarily implies
that “[w]here a site owner like Beall’s fails to set up a reserved
gate at all ... the Union cannot be held liable for threatening
primary picketing at the site.” This is also consistent, the Union
argues, with our decision suggesting it is an employer’s role to
inform a union of, and not the union’s obligation to ferret out,
business information relevant to the lawfulness of any self-help
in which the union might engage, see, e.g., United Scenic
Artists, Local 829 v. NLRB, 762 F.2d 1027, 1031 (1985) (burden
on employer to inform union about its business plans regarding
use of non-union labor or control of materials); by parity of
reasoning, the burden of informing a union about the existence
of or plan to erect a reserved gate should be on the neutral
employer.
The Board’s response is that J.F. Hoff merely affirmed that
the Union must target the primary employer “as exclusively as
possible,” and that unlike the business information at issue in
United Scenic Artists and J.F. Hoff itself, “the existence or lack
of a reserved gate ... is apparent to the casual observer.” True
enough if the observer, including a would-be picket, shows up
at a common situs with a proper reserved gate in place. See,
e.g., Local Union No. 501, Int’l Bhd. of Elec. Workers v. NLRB,
756 F.2d 888, 890 n.1 (D.C. Cir. 1985) (detailing signs that
adequately identify a reserved gate). The Board does not,
however, explain why this distinction between what is and what
is not apparent at the job site should turn a letter about picketing
a site that lacks a reserved gate into a threat to picket that site in
12
a manner that would violate the rules of engagement applicable
if it did have a reserved gate.
We therefore adopt the Ninth Circuit’s straightforward
reasoning that the Board “could not presume that a union’s
threat to picket the job was a threat to picket contrary to the law,
when picketing at the job could be done in a lawful manner”; we
agree that “such a presumption is without foundation in the Act,
relevant case law or any general legal principles,” Local 32, 912
F.2d at 1110. Because the Union’s letter to Beall’s made no
suggestion it intended to do anything that would violate the Act
and the Board may not presume the letter was a “threat to picket
contrary to the law, when picketing ... could be done in a lawful
manner,” id., we vacate the Board’s Decision and Order to the
extent it holds the Union’s letter violated the Act and orders the
Union to cease “unqualifiedly threatening to picket.”
B. The Mock Funeral at the Hospital
The Union argues the mock funeral “could never have been
prohibited if it had expressed opposition to the Hospital’s
practices, environmental policy, or any other grievance.” More
specifically, under the Supreme Court’s abortion protest cases
the Union’s activities were constitutionally protected and cannot
be considered coercive or intimidating; different rules for labor
protests would be unconstitutional viewpoint discrimination.
The Union points out that Madsen v. Women’s Health Center,
Inc., 512 U.S. 753 (1994), and Hill v. Colorado, 530 U.S. 703
(2000), provide specific guidance as to what kinds of protest
activities government may and may not proscribe. In Madsen,
the Supreme Court held that a state-court injunction creating a
300-foot buffer zone around an abortion clinic, within which
protesters were prohibited from “physically approaching any
person seeking services” at the clinic, was an unconstitutional
burden upon the protesters’ right of free speech, 512 U.S. at 773;
13
id. at 776; at the same time the Court upheld the injunction’s 36-
foot buffer zone around the clinic’s entrances and driveways, id.
at 770. In Hill, the Court upheld as constitutional a state statute
making it unlawful, within 100 feet of the entrance to an
abortion clinic, to make an unwanted physical approach to
within eight feet of another person for the purpose of passing out
a leaflet, handbilling, displaying signs, or engaging in oral
protest, education, or counseling, 530 U.S. at 707 n.1, 714.
In this case, as the record and particularly the videotape
therein reveal, the Union’s conduct was fully consistent with
Madsen and Hill. The Board would have us distinguish those
cases on the ground that here there is a strong governmental
interest in regulating picketing the objective of which — “to
pressure the Hospital, a neutral entity, to stop doing business
with certain non-union contractors” — is proscribed by statute;
so it is that the Eleventh Circuit, in the related injunction
proceeding, “rejected the Union’s constitutional defense.” See
Kentov, 418 F.3d at 1264-65. But in that case, which arose
under Section 10(l) of the Act, the court of appeals’ review was
“limited to evaluating whether the Board’s theories of law and
fact are not insubstantial and frivolous,” Dowd v. Int’l
Longshoremen’s Ass’n, 975 F.2d 779, 783 (11th Cir. 1992)
(internal quotation marks omitted). See Kentov, 418 F.3d at
1263. The court did not fully address the merits of the Union’s
constitutional argument because it was enough, in that
procedural context, for the court to conclude “there [was]
reasonable cause to believe that the Union’s conduct ... [was] the
functional equivalent of picketing, and therefore, the First
Amendment concerns in DeBartolo [were] not present,” id. at 1265.
Before this court the Board generally ignores the Union’s
“content-based” argument but does point us to the Supreme
Court’s observation in NAACP v. Claiborne Hardware Co., 458
U.S. 886 (1982), that “[s]econdary boycotts and picketing by
14
labor unions may be prohibited, as part of Congress’ striking of
the delicate balance between union freedom of expression and
the ability of neutral employers, employees, and consumers to
remain free from coerced participation in industrial strife,” id.
at 912 (internal quotation marks omitted). That statement,
however, leaves open the question what constitutes “coerced
participation” in a labor dispute and, of course, does nothing to
suggest coercion may be defined so broadly as to crimp the free
speech guarantee of the First Amendment. Moreover, as the
Union points out, the Court has since rejected the claim that
labor picketing is necessarily “commercial speech ... and thereby
entitled to a lesser degree of constitutional protection.”
DeBartolo, 485 U.S. at 576. The Court also has confirmed that
the canon of constitutional avoidance is not suspended merely
because a secondary boycott is at issue. See id. at 575 (“where
an otherwise acceptable construction of [the Act] would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress”). We therefore
review the Board’s application of the Act to the facts of this case
mindful that the National Labor Relations Act “ought not be
construed to violate the Constitution if any other possible
construction remains available,” NLRB v. Catholic Bishop of
Chi., 440 U.S. 490, 500 (1979).
The Supreme Court’s opinion in DeBartolo also makes
clear that, in contrast to Section 8(b)(4)(i)(B), under which it is
illegal per se to “induce or encourage” employees of a secondary
employer to strike, not every effort to convince consumers to
boycott a secondary employer is illegal under Section
8(b)(4)(ii)(B): “[M]ore than mere persuasion is necessary to
prove a violation of § 8(b)(4)(ii)(B): that section requires a
showing of threats, coercion, or restraints.” 485 U.S. at 578.
Before DeBartolo, the Court had “left no doubt that Congress
may prohibit secondary picketing” directed to “‘the customers
15
of the secondary employer,’” Safeco, 447 U.S. at 616 (quoting
NLRB v. Fruit and Vegetable Packers, Local 760 (Tree Fruits),
377 U.S. 58, 63 (1964)), but the Court had not spoken to the
question whether the Congress had — or for that matter,
whether it could have — prohibited other means of appealing to
the customers of the secondary employer, such as the
handbilling and the mock funeral in this case, the latter of which
is neither picketing nor handbilling but has elements of each.
After DeBartolo, it is clear that unlike picketing or
patrolling, handbilling directed at secondary consumers is
ordinarily not coercive and therefore does not run afoul of
§ 8(b)(4)(ii)(B). See 485 U.S. at 578. At the very least,
therefore, the Union is correct that after DeBartolo its
“objective” in conducting the mock funeral — to persuade
consumers not to patronize the Hospital, the secondary
employer, so the Hospital would not deal with Energy Air, the
primary employer — was not proscribed by § 8(b)(4)(ii)(B).
As for the means the Union used to appeal to customers of
the secondary employer, the mock funeral was a combination of
street theater and handbilling. The Eleventh Circuit and the
Board deemed this the “functional equivalent of picketing,”
Kentov, 418 F.3d at 1265, but did not distinguish ends from
means. Clearly, the Union’s end in conducting the mock funeral
was to dissuade consumers from patronizing the secondary
employer, and in that sense the funeral was the functional
equivalent of picketing. Just as clearly, however, the mock
funeral was not the functional equivalent of picketing as a means
of persuasion because it had none of the coercive character of
picketing, as the Eleventh Circuit itself found: Union members
did not physically or verbally interfere with or confront Hospital
patrons coming and going; nor, contrary to Member Liebman’s
description, did the mock funeral participants “patrol” the area
in the sense of creating a symbolic barrier to those who would
16
enter the Hospital.* Had they done so, or in any other way
interfered with or confronted patrons entering or leaving the
Hospital, we would agree with the Board that the Union’s
conduct was the “functional equivalent of picketing,” and
therefore coercive and unlawful. See, e.g., Overstreet v. United
Bhd. of Carpenters, Local No. 1506, 409 F.3d 1199, 1213, 1213-
15 (9th Cir. 2005) (concluding, in preliminary injunction case,
banner protest was not picketing where it did not include
ambulatory picketing, signal picketing, or interference with or
likelihood of confrontation with customers entering or exiting
business); Prod. Workers Union of Chi. & Vicinity v. NLRB, 793
F.2d 323, 328 n.4 (D.C. Cir. 1986) (“picketing is ordinarily an
attempt, by means of patrolling at a site with a message of some
kind on the picket sign, to instigate a boycott” (quoting Howard
Lesnick, The Gravamen of the Secondary Boycott, 62 Colum. L.
Rev. 1363, 1364 n.5 (1962)) (internal quotation marks omitted)).
Nor was there, in this case, any “signal picketing,” which entails
“an implicit instruction to other union members, including union
employees of secondary businesses,” to stop work. Overstreet,
409 F.3d at 1215. The mock funeral and handbilling were
addressed solely to customers; the Board does not suggest the
Union in any way signaled union employees of the Hospital.
We therefore conclude the mock funeral was not the functional
equivalent of picketing.
Having determined the mock funeral lies somewhere
between the lawful handbilling in DeBartolo and unlawful
picketing or patrolling, we reach the ultimate question whether
*
Member Liebman described the funeral as a “procession in
which four persons went back and forth on the public sidewalk in front
of the hospital’s main entrance,” thereby creating a “symbolic barrier,
a line ... not to be crossed,” which conveys the erroneous impression
that the funeral was immediately adjacent to, rather than 100 feet away
from, the entrance.
17
the means by which the Union delivered its message was
coercive, threatening, restraining, or “intimidating.” See
DeBartolo, 485 U.S. at 580 (“loss of customers because they
read a handbill urging them not to patronize a business, and not
because they are intimidated by a line of picketers, is the result
of mere persuasion, and the neutral who reacts is doing no more
than what its customers honestly want it to do”). That question
must be answered consistent with developments in the Supreme
Court’s first amendment jurisprudence.
No court has yet determined how the Supreme Court cases
dealing with protests at abortion clinics apply to the question
whether a particular labor protest is coercive. Hence, we revisit
the abortion protest cases themselves for such light as they shed
upon the kinds of union conduct to be deemed intimidation and
therefore unprotected by the First Amendment. Recall the
Board described the mock funeral as “patrolling,” and
DeBartolo suggests patrolling is per se coercive and therefore a
violation of the Act. As stated earlier, we disagree with the
Board that the conduct was “picketing,” and so the question for
us is whether the activity was coercive. The abortion cases tell
us that “coercion” must be understood in a manner consistent
with the First Amendment.
Here the Union’s protest was consistent with the limitations
upheld as constitutional — the buffer zones and the ban on
confrontational conduct — in Madsen and Hill. The mock
funeral occurred about 100 feet from the Hospital and the Board
does not claim the participants approached patrons any closer to
the Hospital. Indeed, the Union’s protest operated well within
those limitations, for the videotape shows the mock funeral was
a quiet affair, not at all like the charged atmosphere surrounding
the abortion protests in Madsen, see 512 U.S. at 758 (“The
number of people congregating [at abortion protests] varied
from a handful to 400, and the noise varied from singing and
18
chanting to the use of loudspeakers and bullhorns”); the Union
protesters came nowhere near blocking anyone’s ingress or
egress and did not even make eye contact with Hospital patrons.
Their behavior was orderly, disciplined, even somber, as befits
a funeral; nothing they did can realistically be deemed coercive,
threatening, restraining, or intimidating as those terms are
ordinarily understood — quite apart, that is, from any special
understanding necessary to avoid infringing upon the Union
members’ right of free speech.
Nor was their “message” — invoking the iconography of
the funeral rite and stating that “Going to Brandon Hospital
Should Not Be a Grave Decision” — one by which a person of
ordinary fortitude would be intimidated. The Board would have
us believe, in the words of the ALJ, the mock funeral “forced”
patrons to “cross a death march” in order to get to the Hospital,
as if the horrors of Bataan in 1942 were being reenacted in front
of the Hospital. The procession was not only orderly, the
protesters went out of their way to convey a law-abiding, and
therefore nonthreatening, attitude; as the district court in Kentov
observed, “The participants politely pressed a ‘walk’ button and
waited for a ‘walk’ signal at the crosswalk before crossing.”
Their message may have been unsettling or even offensive to
someone visiting a dying relative, see Kentov, 418 F.3d at 1262,
but unsettling and even offensive speech is not without the
protection of the First Amendment. See, e.g., Hill, 530 U.S. at
716 (“[t]he right to free speech ... may not be curtailed simply
because the speaker’s message may be offensive to his
audience”); see also McQueary v. Stumbo, 453 F. Supp. 2d 975,
987 (E.D. Ky. 2006) (noting, in granting preliminary injunction
against enforcement of state statute aimed at preventing
antihomosexual picketing at funerals, “individuals have a First
Amendment right to speak ... about a public issue — even where
the speech is distasteful, discomforting, odious or ignorant”).
19
In sum, the Union is correct that, pursuant to DeBartolo, its
attempt to persuade consumers to boycott the Hospital must be
evaluated in a manner consistent with the First Amendment.
Under the Court’s decisions in Hill and Madsen, sources of
constitutional guidance with which the Union quite obviously
complied, the mock funeral was not “threaten[ing], coerc[ive],
or restrain[ing],” in violation of Section 8(b)(4)(ii)(B). It
follows that the Board erred in holding the Union violated that
section of the Act by “picketing” the Hospital.
C. Failure to Provide Notice under Section 8(g)
The Board also held the Union violated Section 8(g) of the
Act because it did not provide written notice to the Hospital at
least 10 days before it conducted the protests there. See 29
U.S.C. § 158(g) (labor organization must give notice at least 10
days before “engaging in any strike, picketing, or other
concerted refusal to work at any health care institution”). The
Union objects that its protest was not a “strike, picket[], or other
concerted refusal to work,” and because it did not appeal to the
Hospital’s employees neither was it an inducement to strike, etc.
That is plainly correct. We therefore hold the Union did not
violate Section 8(g) of the Act.
III. Conclusion
For the forgoing reasons, we grant the Union’s petition for
review of the Board’s Decision and Order and deny the Board’s
cross-application for enforcement. The case is remanded for the
Board to consider the issues it did not reach in the Decision and
Order because they would have been cumulative and would not
have affected the Order had it survived review.
So ordered.