UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1331
ROSEMARY PYE, REGIONAL DIRECTOR, ETC.,
Petitioner, Appellee,
v.
TEAMSTERS LOCAL UNION NO. 122,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya and Cyr, Circuit Judges,
and Schwarzer,* Senior District Judge.
Stephen R. Domesick for appellant
Corinna L. Metcalf, Deputy Assistant General Counsel, with
whom Frederick Feinstein, General Counsel, Ellen A. Farrell,
Assistant General Counsel, and Barry J. Kearney, Acting Assistant
General Counsel, were on brief, for appellee.
August 8, 1995
*Of the Northern District of California, sitting by designation.
SELYA, Circuit Judge. This appeal features an SELYA, Circuit Judge.
interlocutory injunction issued on the authority of section 10(l)
of the National Labor Relations Act (NLRA), barring a labor
union's innovative practice of conducting "group shop-ins" at
secondary businesses (retail liquor outlets) as an outgrowth of
its grievance with a primary employer (a beer distributor).1
After carefully considering the parties' positions in light of
the pertinent authorities, we affirm the district court's order
in all respects.
I. THE FACTS AND THE PROCEEDINGS BELOW I. THE FACTS AND THE PROCEEDINGS BELOW
The facts are set out in the district court's opinion,
see Pye v. Teamsters Local Union No. 122, 875 F. Supp. 921, 923-
24 (D. Mass. 1995), and it would serve no useful purpose to
rehearse them here. We content ourselves with a decurtate
summary, presented in a manner that recognizes the statutory edge
1Section 10(l) provides in relevant part:
Whenever it is charged that any person has engaged in an unfair labor practice [as defined in other sections of the NLRA], the preliminary investigation of such charge shall be made forthwith . . . . If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any [appropriate] United States district court . . . for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.
29 U.S.C. 160(l) (1988). The same statute authorizes the district court to grant such injunctive relief "as it deems just and proper . . . ." Id.
enjoyed by petitioner-appellee, the Regional Director of the
National Labor Relations Board (NLRB or Board), in connection
with the resolution of disputed factual issues and the inferences
that may be drawn therefrom.
In November of 1994, respondent-appellant Teamsters
Local Union No. 122 (the Union), then embroiled in a labor
dispute with August A. Busch & Co. of Massachusetts, Inc.
(Busch), organized three group shopping trips. During each
outing, Union members descended, in droves and in concert, upon a
designated retail establishment and engaged in multiple rounds of
penny-ante purchasing, buying small, inexpensive items such as
packs of chewing gum or bags of potato chips and paying for them
(more often than not) with bills of large denomination. The
sequelae were predictable: overcrowded parking lots, congested
aisles, long checkout lines, and an exodus of regular customers.
Although some of the group shoppers adorned themselves with Union
symbols, the record contains virtually no proof of objectively
expressive activity. More particularly, we can find no evidence
suggesting that the Union, through group shopping, made any
discernible attempt to communicate a defined message to the
public.2
The three shop-ins, each involving a different retailer
engaged in commerce, occurred at different locations in
2During one of the excursions some Union adherents remained outside the store, holding banners aloft. The injunction issued by the lower court does not affect that activity, and we consider it irrelevant for the purpose of determining the issues sub
judice.
Massachusetts. The first incident transpired on November 17,
when a band of approximately 70 Union members invaded the
premises of Kappy's Liquors. The group shopping (which
respondent prefers to call "affinity group shopping" or
"associational shopping") persisted for some 45 minutes. The
record reflects that at least one customer, apparently
discouraged by the crush of Union members, left without
transacting any business. The second shop-in occurred on
November 23 at Wollaston Wine. This event also lasted about 45
minutes. Approximately 125 Union members participated. The
third incident took place on November 25 at the liquor department
of Price Costco, a discount house. It involved 50 or so Union
members. The record does not pinpoint its duration. All three
episodes began late in the afternoon (a prime time in the package
store trade), and the latter two incidents occurred on the days
before and after the Thanksgiving holiday (days that customarily
produce substantial sales for liquor retailers). The record
reveals that on at least two of the occasions store managers
complained to a Union official who was on the premises, deploring
the disruptive effects of the practice on their business. On the
third occasion, the store owner apparently took his concerns
directly to Busch.
Busch displayed little affinity for the Union's newly
contrived stratagem. It complained to the Regional Director who,
in turn, initiated an administrative adjudicatory process to
examine whether the group shopping constituted an unfair labor
practice prohibited by NLRA 8(b)(4)(ii)(B), 29 U.S.C.
158(b)(4)(ii)(B) (1988). The Regional Director theorized that,
because the Union's actual labor dispute was with the primary
employer, Busch, section 8(b)(4)(ii)(B) expressly prohibited it
from trying to impair the relationships of secondary businesses
(the retail stores) with Busch. Resisting this line of reasoning
and denying any wrongdoing, the Union asseverated that these
shop-ins were efforts to publicize its grievance with Busch, and
were thus beyond the statute's proscriptive reach. The Union
also asseverated that, in the end, the group shopping actually
benefitted the retailers by generating hundreds of dollars in
sales.
The Regional Director refused to buy the Union's wares.
On December 1, she invoked section 10(l) and petitioned for
temporary injunctive relief in the federal district court,
asserting that she had reasonable cause to believe that the
associational shopping amounted to an illegal secondary boycott
because its real purpose was to force the retailers to cease
purchasing beverages from Busch. The district court, perceiving
no need for an evidentiary hearing,3 found for the Regional
3Section 10(l) directs that affected parties "shall be given an opportunity to appear by counsel and present any relevant testimony." Here, however, the district court found that the papers were sufficient. See Pye, 875 F. Supp. at 928 ("Based
simply on the affidavits of the Union representative and the admissions made by the Union . . ., all of the relevant facts are admitted."). Although the Union's briefs appear critical of this ruling, the Union has not appealed from it, and we decline to address it further. See Ryan v. Royal Ins. Co. of Am., 916 F.2d
731, 734 (1st Cir. 1990) ("It is settled in this circuit that issues adverted to on appeal in a perfunctory manner,
Director. See Pye, 875 F. Supp. at 925-28. In due course, the
court entered a decree that constitutes the actual injunction.
Its key provisions are set out in the margin.4 This appeal
ensued.
II. THE LAW AND ITS APPLICATION II. THE LAW AND ITS APPLICATION
The so-called labor injunction has been among the most
controversial landmarks dotting the historical landscape of
American labor law. See generally Felix Frankfurter & Nathan
Greene, The Labor Injunction (1930); Clarence E. Bonnet, The
Origin of the Labor Injunction, 5 S. Cal. L. Rev. 105 (1931);
Eileen Silverstein, Collective Action, Property Rights, and Law
unaccompanied by some developed argumentation, are deemed to have been abandoned.").
4The decree prohibits the Union, and various categories of individuals associated with it, from:
(a) organizing and conducting mass demonstrations, including affinity group shopping, store occupations, occupying parking lots, picketing or other mass activity, where an object thereof is to force or require Kappy's Liquors, Wollaston Wine, Price Costco or any other person to cease using, selling, handling, transporting or otherwise dealing in the products of or to cease doing business with August A. Busch & Co. of Massachusetts, Inc. (b) in any manner or by any means, threatening, coercing or restraining Kappy's Liquors, Wollaston Wine, Price Costco or any other person engaged in commerce or in an industry affecting commerce where an object thereof is to force or require Kappy,s Liquors, Wollaston Wine, Price Costco or any other person to cease using, selling, handling, transporting or otherwise dealing in the products of or to cease doing business with August A. Busch & Co. of Massachusetts, Inc.
Reform: The Story of the Labor Injunction, 11 Hofstra Lab. L.J.
97 (1993). The section 10(l) injunction is a special species of
the labor injunction,5 designed to halt, inter alia, secondary
activity that the Regional Director believes is in violation of
NLRA 8(b)(4)(ii)(B) until the NLRB can consider the charges and
reach a decision on the merits. The special nature of the
section 10(l) injunction informs our analysis of the case.
A. Standards of Review. A. Standards of Review.
The standards of review applicable to appeals from
district court decisions arising under section 10(l), whether
granting or denying the requested relief, are extremely
deferential. We review the lower court's factual findings for
clear error; we review its rulings of law de novo; and we review
its ultimate conclusion, authorizing or withholding the
requested relief, for abuse of discretion. See Hoeber v. Local
30, United Slate, Tile & Composition Roofers, Etc., 939 F.2d 118,
123 (3d Cir. 1991); Union de Tronquistas de P.R., Local 901 v.
Arlook, 586 F.2d 872, 876 (1st Cir. 1978); see also Asseo v.
Centro Medico del Turabo, Inc., 900 F.2d 445, 450 (1st Cir. 1990)
(explicating identical standards under a corollary relief
provision, NLRA 10(j), 29 U.S.C. 160(j)); Asseo v. Pan Am.
Grain Co., 805 F.2d 23, 25 (1st Cir. 1986) (same); see generally
George Schatzki, Some Observations About the Standards Applied to
5Inasmuch as section 10(l) is aimed almost exclusively at unions, it represents a marked departure from the anti-injunction ethos embodied in the Norris-LaGuardia Act, Pub. L. No. 72-65, 47 Stat. 70 (1932) (codified as amended and repealed in part at 29 U.S.C. 101-115 (1988)).
Labor Injunction Litigation Under Sections 10(j) and 10(l) of the
National Labor Relations Act, 59 Ind. L.J. 565, 575-76 (1983)
(noting these standards of review and the striking pattern of
appellate deference under section 10(l)).
Our level of deference is heightened because we are
perched on the second tier of review vis-a-vis the Regional
Director's assertion of reasonable cause. The district court
occupies the first tier, and just as that court must itself defer
in significant measure to the evaluative judgments of the
Regional Director, see, e.g., Union de Tronquistas, 586 F.2d at
876, so, too, must we defer to the district court.6 Thus, in
this doubly sheltered enclave, the judicial task is generally
confined to weeding out wholly arbitrary or thoroughly
insupportable petitions for relief. See Squillacote v. Graphic
Arts Int'l Union, 540 F.2d 853, 859 (7th Cir. 1976).
Of course, an important reason undergirding the
6This layered deference district court to Regional Director and appellate court to district court has parallels elsewhere in the law. For example, we have encountered a virtually identical design when reviewing district court assessments of consent decrees under certain environmental statutes. See, e.g., United States v. DiBiase, 45 F.3d 541, 543-
44 (1st Cir. 1995); United States v. Cannons Eng'g Corp., 899
F.2d 79, 84 (1st Cir. 1990). In such circumstances, we have been impelled to note that "by the time [such] consent decrees reach this court, they are encased in a double layer of swaddling," DiBiase, 45 F.3d at 544 (internal quotation marks omitted),
reflecting not only the district court's justifiable mandate to defer to administrative expertise, but also the appellate court's mandate to defer to the trial court's factfinding expertise and its informed discretion. In turn, this "doubly required deference district court to agency and appellate court to district court places a heavy burden on those who purpose to upset a trial judge's approval of a consent decree." Cannons,
899 F.2d at 84. The burden is equally heavy here.
deferential standard of judicial review in section 10(l) cases is
that neither the district court nor the court of appeals is
adjudicating the merits, as such, to determine whether an unfair
labor practice occurred. To the contrary, the courts' role at
this stage is merely to supply a stopgap, that is, to palliate a
likely violation detected by the Regional Director "pending the
final adjudication of the Board with respect to such matter." 29
U.S.C. 160(l). Consequently, a decision in a section 10(l)
proceeding is circumscribed in both time and scope, and any
relief that may be granted is effective only while the related
unfair labor practice charge is pending before the NLRB.7 See
Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile & Resilient
Floor Covering Layers, 397 U.S. 655, 658-59 (1970) (per curiam);
Walsh v. International Longshoremen's Ass'n, 630 F.2d 864, 868
(1st Cir. 1980). Given the design of the statute, the agency
expertise involved, and the two-tiered structure of review, a
party appealing from an order granting or refusing a temporary
injunction pursuant to section 10(l) confronts the sobering
prospect that most battles over the appropriateness of such
7Still another reason to accord a significant degree of deference to the claims of the Regional Director is the strength of the congressional mandate. See Union de Tronquistas, 586 F.2d
at 876. Under the law, once the Regional Director has reasonable cause to believe that a Union's activity falls within the proscription of section 10(l), she "shall . . . petition . . .
for appropriate injunctive relief . . . ." 29 U.S.C. 160(l) (emphasis supplied). This is in stark contrast to section 10(j), which grants discretion to pursue injunctions against employers under specified circumstances. See Miller v. California Pac.
Medical Ctr., 19 F.3d 449, 456 (9th Cir. 1994) (en banc)
(recognizing the dichotomy); see generally Schatzki, supra, at
568-71 (comparing and contrasting the provisions).
redress will be won or lost long before appellate review takes
hold.
B. Standard of Analysis. B. Standard of Analysis.
Congruent with these deferential standards of review,
the analytic path to be traversed in a section 10(l) case is
narrower than that typically travelled in the course of reviewing
the grant or denial of preliminary injunctive relief. Indeed,
"in a section 10(l) case the judicial inquiry is only, or at
least primarily, whether there is reasonable cause to believe a
section 10(l) offense has been committed." Maram v. Universidad
Interamericana de P.R., Inc., 722 F.2d 953, 958 (1st Cir. 1983).
Other factors that ordinarily inform district court actions in
respect to temporary injunctions are, at most, of secondary
interest. See id. (concluding that "the special importance that
Congress attaches to section 10(l) offenses indicates . . . a
strong presumption of irreparable harm, with the balance in favor
of the charging party, and that the public interest favors the
injunction"). Hence, the method of analysis that governs
appellate review of the propriety and scope of a section 10(l)
injunction is best described as follows:
First, the court must determine whether the Regional Director has reasonable cause to believe that the elements of an unfair labor practice are present. In this regard, the Director need only show the existence of credible evidence, even if disputed, together with reasonable inferences, which support [her] conclusions. . . . Second, the court must conclude that the legal theories relied upon by the Director are not without
substance. Finally, it must find that temporary injunctive relief is "just and proper" in terms of effectuating the purposes of the Act.
Union de Tronquistas, 586 F.2d at 876 (citations omitted).
Having stated the bareboned test, we next flesh out its
three constituent parts.
1. Reasonable Cause. The centerpiece of the required 1. Reasonable Cause.
analysis is the supportability vel non of the Regional Director's
determination that there is reasonable cause to believe that an
unfair labor practice has been, or is being, committed. The case
law reveals two principles, in particular, that demarcate the
meaning and the margins of this requirement.
First, the Regional Director's evidentiary burden,
whether measured quantitatively or qualitatively, is modest.
Although courts phrase this principle in different ways,
sometimes speaking in terms of the Regional Director's burden of
proof, see, e.g., Hirsch v. Building & Constr. Trades Council,
530 F.2d 298, 302 (3d Cir. 1976) (characterizing burden as
"relatively insubstantial"), sometimes speaking in terms of the
quantum of proof, see, e.g., Gottfried v. Sheet Metal Workers'
Int'l Ass'n, Etc., 927 F.2d 926, 927 (6th Cir. 1991) (requiring
only that the Regional Director bring forth "some evidence" in
support of her petition), and sometimes speaking in terms of the
probative value of evidence as opposed to its raw quantity, see,
e.g., Union de Tronquistas, 586 F.2d at 876 (requiring that the
Regional Director "show the existence of credible evidence, . . .
together with reasonable inferences," to support her
conclusions), the thrust of the decided cases is uniform: the
Regional Director need not prove that the respondent has in fact
violated the NLRA, but, rather, she need only make a minimal
evidentiary showing of good reason to believe that the essential
elements of an unfair labor practice are in view.
The second principle that is germane to the reasonable
cause inquiry is that genuinely disputed issues of material fact
should be resolved at this early stage in favor of the Regional
Director's exposition. See Maram, 722 F.2d at 958; Union de
Tronquistas, 586 F.2d at 876; Kaynard v. Mego Corp., 633 F.2d
1026, 1031 (2d Cir. 1980). Put another way, in proceedings under
section 10(l) the Regional Director must be given the benefit of
every legitimate fact-based doubt. Thus, a reviewing court "need
not concern itself with resolving conflicting evidence if facts
exist which could support the [Regional Director's] theory of
liability." Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d
26, 29 (6th Cir. 1988).
2. Legal Theory. The next segment of the tripartite 2. Legal Theory.
analysis implicates the legal theory on which the Regional
Director relies. The requirement is straightforward: the
Regional Director's theory need not be irreproachable; it
suffices if it "is not without merit." Union de Tronquistas, 586
F.2d at 877. In other words, the Regional Director need not
persuade the court then and there of her theory's ultimate
validity, but she must show that the theory is presentable. See
Hirsch, 530 F.2d at 302 (explaining that the legal theory upon
which the Regional Director proceeds must be "substantial and not
frivolous"); see also Hoeber, 939 F.2d at 123-24 (quoting Hirsch
with approval); see generally 8 Theodore Kheel, Labor Law
38.01[1], at 38-9 (1995).
3. Just and Proper. Finally, injunctive relief 3. Just and Proper.
granted pursuant to section 10(l) must, by the terms of the
statute itself, be "just and proper." Both the purpose and the
contours of this imperative are relatively well-developed. "The
purpose of the 10(l) injunction is to preserve the status quo
in order that the ultimate decision of the Board would not be
negated or rendered moot by intervening events." Compton v.
National Maritime Union of Am., 533 F.2d 1270, 1276 (1st Cir.
1976). Thus, temporary injunctive relief, if otherwise
warranted, passes the "just and proper" test as long as it
comprises a reasonable means of ensuring the efficacy of the
Board's final order, or preserving the status quo, or permitting
administrative proceedings to go forward without undue hindrance,
or preventing unjustified interruption of the free flow of
commerce, or forestalling the repetition of unfair labor
practices. See, e.g., Hoeber, 939 F.2d at 122; Gottfried, 927
F.2d at 927; Asseo, 900 F.2d at 455; Union de Tronquistas, 586
F.2d at 878. In this sense, the purpose of the section 10(l)
injunction is simply a narrower, more specific expression of the
purpose underlying preliminary injunctions in general. See,
e.g., CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d
618, 620 (1st Cir. 1995) ("The purpose of a preliminary
injunction is to preserve the status quo, freezing an existing
situation so as to permit the [ultimate trier of the issues],
upon full adjudication of the case's merits, more effectively to
remedy discerned wrongs.").
Since a section 10(l) injunction "may enjoin only those
unlawful labor practices specified in the [NLRA]," Hendrix v.
International Union of Operating Eng'rs, Local 571, 592 F.2d 437,
445 (8th Cir. 1979), the form of the injunction must dovetail
with the statutory goals. However, less is often better than
more, and the relief granted should be narrowly tailored to that
which is reasonably necessary to stop mischief, prevent
additional harm, and ensure effective final relief. See
Gottfried, 927 F.2d at 928; Potter v. Houston Gulf Coast Bldg.
Trades Council, 482 F.2d 837, 841 (5th Cir. 1973).
C. Applying the Standards. C. Applying the Standards.
Applying these standards of review and analysis, we
conclude that the instant decree passes muster.
1. Reasonable Cause. The statutory proscription that 1. Reasonable Cause.
triggered section 10(l) in this case, namely, section
8(b)(4)(ii)(B), makes it "an unfair labor practice for a labor
organization or its agents . . . to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting
commerce, where . . . an object thereof is . . . forcing or
requiring any person . . . to cease doing business with any other
person . . . ." The question at this step of the analysis,
therefore, reduces to the supportability of the district court's
finding that the Regional Director had reasonable cause to
believe (1) that the activity of group shopping might somehow
threaten, coerce, or restrain a retail liquor outlet, and (2)
that an object of the group shopping was to force or require such
secondary businesses to sever relations with Busch. We conclude
that this finding is not clearly erroneous.
First and foremost, it is reasonable to regard the
practice of group shopping as potentially coercive. The
character of the conduct including the use of all or virtually
all of a store's parking lot, the occupation of much of the
interior shopping area, the forbidding presence of a throng of
people acting in unison, and the fostering of long checkout lines
through repeated purchases of small items with large bills
tends by its very nature to disrupt normal commercial activity
and, thus, to place economic pressure on a retail establishment
to appease the Union by, say, cutting back on dealings with the
primary employer.8 The Union counters that, even so, the
8The Union's insistence that the shop-ins actually generated sales for the retailers is a red herring empirically erroneous, conceptually incomplete, and legally irrelevant. For one thing, sales limited to snacks and individual drinks during a prime selling period scarcely seem economically beneficial when compared to the retailer's opportunity costs, that is, the displaced sale of liquor, wine, and other more profitable items. See Pye, 875 F. Supp. at 926 ("In the regular course of events,
one would expect eighty customers to spend more than four dollars each."). Similarly, the Union's rodomontade utterly disregards the potential long-term economic consequences of the shop-ins, such as the easily envisionable loss of intimidated or frustrated customers. For another thing, it is the secondary business, not the Union, that should determine what is or is not in the former's best economic interest. Here, the record strongly
evidence falls short. Insofar as this argument presumes that
moderately obstructive conduct by a union is not alone sufficient
either to trigger section 8(b)(4)(ii)(B) or to justify a section
10(l) injunction, we accept the presumption. See National
Maritime Union of Am. v. NLRB, 367 F.2d 171, 176 (8th Cir. 1966),
cert. denied, 386 U.S. 959 (1967). Because section 8(b)(4)
ultimately proscribes objects rather than merely the means
adopted to accomplish them, the record must contain enough
evidence to permit a finding that the Union actually possessed
the statutorily proscribed object of forcing secondary
establishments to cease doing business with the primary employer.
We think that the Regional Director satisfied this
requirement here. To be sure, there is no smoking gun, no direct
evidence of an avowed intention to influence the retailers'
commercial behavior. But a "union's `object' may be inferred
from its acts," New York Mailers' Union No. 6 v. NLRB, 316 F.2d
371, 372 (D.C. Cir. 1963), and particularized evidence of
subjective intent is not essential for proof of a violation. See
NLRB v. Erie Resistor Corp., 373 U.S. 221, 227 (1963); NRLB v.
Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 688-89
(1951); Soft Drink Workers Union Local 812 v. NLRB, 657 F.2d
1252, 1261-62 (D.C. Cir. 1980); Pickens-Bond Constr. Co. v.
United Bhd. of Carpenters & Joiners of Am., Local 690, 586 F.2d
suggests that the retailers themselves did not welcome the Union's custom. Finally, whether or not economic harm actually occurs as a result of a union's secondary activity is, in the circumstances of this case, largely beside the point.
1234, 1241 (8th Cir. 1978); see also International Longshoremen's
Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 224 (1982) (confirming
that a union "must take responsibility for the `foreseeable
consequences' of its conduct") (quoting NLRB v. Retail Store
Employees Union, Local 1001, 447 U.S. 607, 614 n.9 (1980)). It
follows that, if an unwholesome object can logically be inferred
from the nature of the conduct, evaluated in light of the
practical realities of a given situation, then direct evidence of
the object need not be produced. See, e.g., Local 357, Int'l
Bhd. of Teamsters, Etc. v. NLRB, 365 U.S. 667, 675 (1961).
Here, the facts permitted the Regional Director
rationally to infer an unlawful object on the Union's part. The
Union's conduct was undertaken in such a way, and at such times,
as to maximize its obstructiveness. And, moreover, this effect
can easily be viewed as primary and deliberate, not incidental
and accidental. Hence, the Regional Director could reasonably
have believed that the principal object of the shop-ins was to
force the secondary businesses to stop trading with the primary
employer. As the district court perspicaciously observed, the
group shop-ins can reasonably be interpreted as having been
designed to send a dual message to the retailers: first, "that
the Union has the ability to interfere with the working of their
business at any time," and second, that the retailers ought "not
to get involved with Busch" in the ongoing labor dispute by
picking up merchandise directly from Busch's warehouse. Pye, 875
F. Supp. at 926.
The Union has a fallback position. Citing both Edward
J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568 (1988), and the First Amendment, the Union
hawks its right, specifically preserved by section 8(b)(4), to
publicize its grievance with a primary employer.9 Building on
this theme, the Union claims that the injunction is tantamount to
an impermissible content-based regulation because it prevents
activities that could affect the public's marketplace decisions
about what beer to purchase. While the Union's theory might
raise potentially interesting issues if anchored in the record,
see generally Lee Goldman, The First Amendment and Nonpicketing
Labor Publicity Under Section 8(b)(4)(ii)(B) of the National
9Section 8(b)(4) is hedged by two provisos. One declares "[t]hat nothing contained in . . . clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . ." The second proviso, on which the Union relies here, is the so-called "publicity proviso." It stipulates:
That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution . . . .
29 U.S.C. 158(b)(4) (1988).
Labor Relations Act, 36 Vand. L. Rev. 1469 (1983), it floats free
of factual support and, therefore, need not concern us.
In the first place, we like the district court, see
Pye, 875 F. Supp. at 927 remain unconvinced that the Union's
affinity group shopping, under the circumstances recounted in the
record, can be deemed objectively expressive. At any rate, there
is little or no evidence to suggest that the Union's object in
mounting group shop-ins was related to publicity in any
meaningful sense, or that the participating Union members were
actually engaged in expressive activity. In turn, because the
group shopping was not a publicity-based appeal to consumers, the
principal cases cited by the Union which address the
constitutional and statutory status of such activity, DeBartolo
included, are simply not relevant to the disposition of this
case.
In the second place, section 8(b)(4)(ii)(B) is in play
as long as forcing one person to stop doing business with another
is an object of the allegedly unlawful activity; the statute
requires neither that the proscribed object be the exclusive
object nor even the primary object. See Denver Bldg. & Constr.
Trades, 341 U.S. at 689; Local Union No. 25 v. NLRB, 831 F.2d
1149, 1153 (1st Cir. 1987); Carpet, Linoleum, Soft Tile &
Resilient Floor Covering Layers v. NLRB, 467 F.2d 392, 399 n.13
(D.C. Cir. 1972). Thus, whatever mixed motives the Union
harbored are of considerably less import once an unlawful object
is discerned.10 This is especially true in the precincts
patrolled by section 10(l). Even if "[t]he claims of the Union
based on the first amendment to the Constitution and on the
`publicity proviso' . . . are not insubstantial," Solien v.
United Steelworkers of Am., 593 F.2d 82, 88 n.3 (8th Cir.), cert.
denied, 444 U.S. 828 (1979), it is not for this court to pass
upon them during the quintessentially preliminary inquiry that
section 10(l) entails. Rather, "[t]he Board should consider the
claims in question, and its determinations with respect to them
will be subject to review here if any direct proceeding is
commenced in this court . . . ." Id.
To sum up, it is not the responsibility of the courts
to override the Regional Director's interpretation of the facts
when that interpretation is rationally supported by the record.
Applying this generous standard, we approve the lower court's
holding that the Regional Director had reasonable cause to
believe that the Union's practice of group shopping was in
potential violation of section 8(b)(4)(ii)(B).
2. Legal Theory. We turn next to the question of 2. Legal Theory.
whether the instant case fits within the legal contours of
10It is of some significance that we are here not addressing generally nonobstructive activity at the perimeter of an employer's business situs, as in DeBartolo, but, rather,
inherently obstructive activity (even if marginally expressive) conducted inside the establishments of secondary businesses activity which could unduly "bring [these] neutral, secondary employers into a labor dispute in order to apply pressure on the primary employers," Brian K. Beard, Comment, Secondary Boycotts
After DeBartolo: Has the Supreme Court Handed Unions a Powerful
New Weapon?, 75 Iowa L. Rev. 217, 233 (1989), and thereby
undermine the prescriptive purpose of section 8(b)(4)(ii)(B).
section 8(b)(4)(ii)(B). Having mulled the Regional Director's
theory that the Union's group shopping amounted to an
unlawfully coercive secondary boycott we conclude that it is
sufficiently colorable.
The legal significance of the practice of group
shopping is a matter of first impression. But, the novelty of a
Regional Director's legal theory should rarely, in and of itself,
foreclose the availability of injunctive relief under section
10(l). Novelty
does not necessarily signify insubstantiality. See, e.g.,
Hendrix, 592 F.2d at 442-43; Squillacote, 540 F.2d at 858; Boire
v. International Bhd. of Teamsters, Etc., 479 F.2d 778, 790 (5th
Cir. 1973); cf. EEOC v. Steamship Clerks Union, Local 1066, 48
F.3d 594, 607 n.13 (1st Cir. 1995) ("It would be a peculiar rule
of construction if a statute could not be applied in a certain
manner unless it had already been applied in that manner in a
previous case."), petition for cert. filed, 63 U.S.L.W. 3874
(U.S. May 26, 1995) (No. 94-1953). Thus, we hold that a novel
legal theory may, if plausible, provide an appropriate foundation
for a section 10(l) injunction.
We have little difficulty in finding that the Union's
group shopping plausibly could be deemed a coercion-based
secondary boycott under section 8(b)(4)(ii)(B) and, hence, that
there is adequate legal substance behind the issuance of the
injunction. The language of section 8(b)(4)(ii) "is pragmatic in
its application, looking to the coercive nature of the conduct,
not to the label which it bears." Local Union No. 25, 831 F.2d
at 1153 (citation and internal quotation marks omitted).
Although group shopping, as conducted by the Union in this case,
is a new twist and may not fit the traditional conception of a
secondary boycott, see, e.g., Denver Bldg. & Constr. Trades, 341
U.S. at 687 (describing a classic secondary boycott), this
qualification mostly serves to earn the Union high marks for
ingenuity. Coercion under section 8(b)(4)(ii)(B) is a broad
concept, and the NLRB has not hesitated to include varied forms
of economic pressure within the conceptual ambit. See, e.g.,
International Union, United Mine Workers of Am., 304 N.L.R.B. 71,
72-73 (1991) (finding unlawful coercion where union members
caused a disturbance at a motel housing striker replacements,
reasoning that the motel was a neutral employer and the union
activity could pressure it to terminate its relationship with the
labor supply contractor in order to force the latter to cease
doing business with the primary employer), enforced, 977 F.2d
1470 (D.C. Cir. 1992); Local No. 742, United Bhd. of Carpenters &
Joiners of Am., 237 N.L.R.B. 564, 565-66 (1978) (finding that a
union's quid pro quo request for premium pay from a neutral
employer was unlawfully coercive because it was actually an
effort to cause the modification of that employer's relationship
with another employer); Service & Maintenance Employees Union,
Local 399, 136 N.L.R.B. 431, 436-37 (1962) (holding that a
union's generally nonexpressive marching around the main entrance
of a sports arena, impeding public access, constituted unlawful
coercion). Here, though one can imagine more significant forms
of economic pressure than associational shopping, we nonetheless
believe that the Regional Director's legal theory is sufficiently
substantial that the district court's approbatory conclusion must
be left intact.11
3. Just and Proper. We come finally to the question 3. Just and Proper.
of whether the injunctive relief structured below can be deemed
just and proper in light of the relevant factual and legal
circumstances. We conclude that it can.
The district court held that injunctive relief is just
and proper in this case because of its relationship to two
statutory goals: (1) to prevent disruptions in the flow of
commerce, and (2) to protect innocent third parties from becoming
embroiled in a labor dispute. See Pye, 875 F. Supp. at 928.
This threshold determination rests on empirical and legal
bedrock. It is indisputable that the statutory proscription of
secondary boycotts contemplates both the maintenance of an
unhindered stream of commerce, see, e.g., Hoeber, 939 F.2d at
122; Union de Tronquistas, 586 F.2d at 878, and the shielding of
secondary businesses from unlawful intrusions, see, e.g.,
International Longshoremen's Ass'n, 456 U.S. at 223 n.20; Denver
11Of course, this ruling means only what it says, and does not speak to whether the Union's contrary view may prevail in the long run. That question is not before us at this time. See,
e.g., Madden v. International Hod Carriers', Bldg. & Common
Laborers' Union of Am., Local No. 41, 277 F.2d 688, 690 (7th
Cir.) (explaining that "[t]he ultimate determination on the merits as to whether a violation occurred is reserved exclusively for the Board, subject to judicial review" at the appropriate time), cert. denied, 364 U.S. 863 (1960).
Bldg. & Constr. Trades, 341 U.S. at 692. After all, "[a] union
has a right to press a recalcitrant employer within the limits of
the law; but, [a secondary business] has an equal and correlative
right to be protected from becoming a union pawn in an end game
directed at some other employer." Local Union No. 25, 831 F.2d
at 1152. On this basis, then, temporary injunctive relief of
some sort is clearly just and proper.
Starting from this major premise, our focus necessarily
becomes the scope of the decree that the lower court actually
entered. The Union tells us that the decree is vague and
overbroad. We reject this characterization. The injunction's
prohibitory ambit is quite clear and its contours are rather
specific. Short of cataloguing each and every potential
violation, we do not see what further particularization the
district court could reasonably have inserted. The requirement
that temporary injunctions be clear and specific, Fed. R. Civ. P.
65(d), does not mean that they must read like the working plans
for building hydrogen bombs. See Pacific Maritime Ass'n v.
International Longshoremen's & Warehousemen's Union, 517 F.2d
1158, 1162-63 (9th Cir. 1975).
We likewise fail to discern any merit in the Union's
allegation of overbreadth. The injunction carefully proscribes
certain types of activity, aimed at secondary businesses,
undertaken by the Union and other denominated individuals, with a
specific (unlawful) intent. No more is exigible.
The Union's last-ditch argument is that the injunction
should be expressly limited in duration, particularly since it
will remain operative until the Board acts, and that agency may
not reach a decision on the merits for some time. In support of
this argument, the Union cites Eisenberg v. Hartz Mountain Corp.,
519 F.2d 138 (3d Cir. 1975), in which the court held that section
10(j) injunctions, absent extraordinary circumstances, should be
confined to six months in duration. See id. at 144. The Union's
reliance on Eisenberg is unavailing. For one thing, that case
involves section 10(j), not section 10(l), and the differences
between the two provisions are not insignificant. See supra note
7 (contrasting the two provisions); see also Maram, 722 F.2d at
957-58 (explaining why the range of considerations affecting the
propriety of injunctive relief varies between sections 10(j) and
10(l)). For another thing, several other circuits have expressly
declined to adopt the Third Circuit's inelastic six-month rule,
instead leaving the matter of duration to be decided by
individual district courts on a case-by-case basis. See, e.g.,
Sheeran v. American Commercial Lines, Inc., 683 F.2d 970, 980-81
(6th Cir. 1982); Kaynard, 633 F.2d at 1035; Dawidoff v.
Minneapolis Bldg. & Constr. Trades Council, 550 F.2d 407, 414
(8th Cir. 1977); Squillacote, 540 F.2d at 860. Hendrix typifies
the reasoning of those courts. There, the Eighth Circuit stated:
"We find the congressional history indicates that Congress was
aware of the lengthy Board hearing procedures when Section 10(l)
was enacted. Since Congress did not impose a time limit on a
Section 10(l) injunction, we find no reason why this Court should
impose such a limit." Hendrix, 592 F.2d at 446.
A measure of adjudicatory delay is one of the crosses
that contemporary litigants must bear. See, e.g., Maram, 722
F.2d at 960 ("A busy administrative agency cannot operate
overnight. The very fact that it must exercise discretion, and
that its decision is entitled to presumptive weight, indicate
that it should have time to investigate and deliberate.")
(footnote and citation omitted). Thus, we abjure the Third
Circuit's rule and hold, instead, that the question of whether an
injunction issued under section 10(l) should be temporally
limited and, if so, to what extent is a matter within the
sound discretion of the district court.
We add an eschatocol of sorts. By declining the
Union's invitation to sponsor a per se durational rule, we in no
way intend to condone needless delay in the administrative
adjudicatory process. We anticipate that the Board will proceed
with dispatch to decide the merits of all section 10(l) cases.
If this prediction proves to be overly optimistic in a particular
instance, the Union may, if it can make a credible showing that
the Board's delay is genuinely undue, ask the district court to
modify or dissolve the temporary injunction. See, e.g., Asseo,
805 F.2d at 29 (suggesting that the Regional Director's request
for a temporary injunction should be taken as "a promise of a
speedy [administrative] disposition, with the risk of
dissolution, or modification, by the court, on motion . . ., if
the promise is not kept"); Solien, 593 F.2d at 88 (suggesting
that if agency action is unreasonably delayed in a section 10(l)
case, a union may seek a modification or dissolution of the
challenged injunction in the district court).
III. CONCLUSION III. CONCLUSION
We need go no further. The temporary injunction, as
granted, is grounded in the Regional Director's supportable
finding of reasonable cause, rests on a credible legal theory,
and is suitable in both its proscriptive reach and its temporal
scope. Accordingly, we uphold it in all respects.
Affirmed. Affirmed.