520 South Michigan Avenue Associates, Ltd. v. Unite Here Local 1 , 760 F.3d 708 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1938
520 SOUTH MICHIGAN AVENUE ASSOCIATES,
LIMITED, d/b/a The Congress Plaza Hotel &
Convention Center, and Congress Plaza Hotel LLC,
Plaintiff-Appellant,
v.
UNITE HERE LOCAL 1,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cv-01422 — John J. Tharp, Jr., Judge.
____________________
ARGUED APRIL 17, 2014 — DECIDED JULY 29, 2014
____________________
Before MANION, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. The Congress Plaza Hotel appeals
the dismissal of its lawsuit, on summary judgment, alleging
that the Unite Here Local 1 Union has engaged in unfair la-
bor practices during its historically long-running strike
2 No. 13-1938
against the Hotel. 1 The strike began back in 2003, but appar-
ently escalated in 2008, when the Union pursued a new and
more aggressive strategy. It began engaging in secondary
activity—i.e., targeting organizations that had made ar-
rangements to reserve large blocks of rooms or space at the
Hotel, in the hopes that they would cancel their plans and
thus pressure the Hotel to end the strike. The Union would
send delegations, consisting of striking Hotel workers and
Union staff in groups of between two and ten people, to the
stores and offices of these potential Hotel patrons. Delegates
were instructed to impress upon the decision-makers of
these organizations, both orally and through written materi-
als, the Union’s position in the strike and its disapproval of
the target organization’s plans to use the Hotel. The conduct
of these delegates is the focal point of this case.
The Hotel claims that the Union delegations crossed the
line into unlawful secondary labor activity, in violation of 29
U.S.C. § 187(a) and 29 U.S.C. § 158(b)(4)(ii)(B). It claims that,
instead of utilizing persuasion, the Union coerced the Ho-
tel’s customers into cancelling their agreements to book
rooms at the Congress. Although the strike eventually ended
on May 29, 2013, the Hotel seeks damages for past activity
under Section 187(b). At the close of discovery, the district
court granted the Union summary judgment, on the ground
1 This is the third appeal to this court that has originated from the dis-
pute between the Congress Hotel and its striking employees. See 520 S.
Mich. Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119 (7th Cir. 2008); 520 S.
Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961 (7th Cir. 2006). However,
this case presents an entirely separate set of legal and factual issues.
No. 13-1938 3
that the Union’s conduct was not coercive, and that barring
it as a matter of federal labor law would raise important free
speech concerns. We now reverse the district court’s decision
in part, and remand for a trial regarding whether certain of
the defendant’s actions were coercive, whether any such co-
ercive conduct damaged the Hotel, and if so, to what extent.
I. Background
Because this case comes to us on summary judgment, we
will recite the facts the Hotel has put into the record, resolv-
ing every reasonable factual dispute between the parties in
its favor. See Griffin v. City of Milwaukee, 74 F.3d 824, 826–27
(7th Cir. 1996). We do not vouch for their ultimate truth or
accuracy.
A. The Alleged Secondary Activity
The Hotel has accused the Union of unfair labor practices
with regards to the following potential customers. We begin
with the allegations we consider most likely to be actionable:
1. American Tango Institute (ATI)
ATI contracted with the Hotel in 2010 to host its tango
festival that August. According to ATI president Netza Rol-
dan, the organization is a “very small, nonprofit organiza-
tion” that uses the tango festival as its “annual fundraiser
event.” Union officials responded to ATI’s plans by sending
Roldan a letter on May 7 requesting that he cancel ATI’s
plans with the Hotel. It also began contacting him by fax,
mail, and telephone. According to Roldan’s testimony, the
Union left telephone messages and sent emails every ten
minutes for one hour on the morning of May 11, 2010, and
also made three or four calls to his personal phone. Roldan
soon learned that the Union had called and emailed ATI’s
4 No. 13-1938
artistic director, Jorge Torres, to inform him of the Union’s
opposition to ATI’s booking, even though Torres played no
part in that decision. Roldan sent contemporaneous emails
to the Hotel complaining about the Union’s repeated con-
tacts.
Although Roldan initially called Union officials and told
them he did not want to communicate with them any fur-
ther, the delegations persisted in setting up a meeting at
ATI’s headquarters in Chicago. The delegation, consisting of
between seven and nine people, had notified Roldan in ad-
vance that it was coming. Roldan testified that at this meet-
ing Union delegates threatened to visit ATI affiliates “and go
to their houses or companies” in order to add pressure. They
also allegedly threatened to picket the tango festival itself.
Roldan earlier noted that Union boycott coordinator Jessica
Lawlor had registered to attend the festival on the ATI web
site, and he had no reason to think she intended to be a
good-faith participant. Roldan further testified that this first
meeting was sufficiently heated that he told his assistant to
be prepared to call the police. The Union members then left
and the police were not called. 2
After this first meeting, Union delegates entered ATI’s of-
fice, which was located on the third floor of an office build-
ing that was secured by electronic lock, and left literature
behind on two occasions. On a third occasion they left litera-
ture in the lobby of the building. Roldan testified that no Un-
2A few weeks after the first meeting with the Union delegation, ATI’s
web site was hacked and infected with a virus of unknown origin. How-
ever, Roldan did not assert that he suspected the Union of a cyber attack.
No. 13-1938 5
ion representative was given permission to enter the build-
ing to drop literature. Union members also apparently post-
ed a letter on Roldan’s office door demanding that ATI can-
cel its reservations with the Hotel.
About two weeks after the first meeting, Roldan ar-
ranged a second face-to-face discussion with a Union delega-
tion, but he remained firm that he did not want to change
ATI’s room reservations. He testified that the delegation
threatened to “have people in [the festival] and talking to
our guests” about the strike. Even after this second meeting,
the Union continued to contact ATI. Roldan testified that he
felt “harassed” and “pressed” to cancel the arrangements
with the Hotel, and that he was concerned that the Union
would picket the festival and harass its participants, along
with ATI’s members, clients, sponsors and employees, such
as Jorge Torres.
Roldan and ATI’s board thereafter decided to cancel the
contract with the Hotel, even though the organization did
not have an alternate site ready. ATI eventually moved the
festival to a smaller venue in a different part of the city on
short notice. Roldan testified that ATI “had to change the
whole concept of the event” due to the change. The new
venue was not a hotel, which meant that participants had to
lodge away from the festival. This inconvenience allegedly
harmed the event’s attendance. As a result, ATI lost approx-
imately $20,000 and had to revise its marketing materials to
reflect the change in hotels. Roldan estimated that ATI also
lost about $40,000 in expected revenue due to a decrease in
participation. The organization also reportedly suffered a
60% drop in membership following the incident.
6 No. 13-1938
2. International Housewares Association (IHA)
IHA contracted with the Hotel for four years’ worth of
room blocks, from 2008 to 2011, for its annual trade show. In
early 2009, Union representative Jessica Lawlor phoned IHA
vice president Mia Rampersad to tell her that the IHA
should not book rooms at the Hotel. Rampersad testified
that Union delegations entered IHA’s offices in Illinois and
threatened to picket the IHA trade show, although the word
“picket” may not have been used. Union phone bankers also
began calling affiliated retailers and prospective attendees of
the trade show, asking them to put pressure on IHA to can-
cel its plans with the Hotel.
Lawlor testified that, during one visit to IHA offices, one
Union delegate walked past IHA security to tell IHA presi-
dent Phil Brandl “shame on you” while he was in a meeting.
IHA officials advised its security not to let in the Union del-
egations. Rampersad and IHA vice president of finance
Dean Kurtis both testified that they were concerned that the
Union might attempt to picket the trade show or even board
IHA busses used to take attendees to the event. However,
they could not recall any Union member making a specific
threat to target the busses or the trade show.
In February of 2009, a Union delegation, numbering three
or four members, went to IHA’s offices without an appoint-
ment. The delegates were asked to leave when they reached
the reception area, but refused to do so. Kurtis then called
the police. Although the delegation eventually left, a smaller
delegation of “one or two” Union representatives returned
No. 13-1938 7
later that day. IHA’s president, Phil Brandl, decided to meet
them in the basement cafeteria of the building.
IHA soon became aware of reports that the Union was
contacting and visiting IHA’s board members, retailers, and
exhibitors’ offices in Chicago; exhibitors complained that
they were being harassed. Rampersad testified that she
likewise felt harassed into cancelling IHA’s plans with the
Hotel, rather than persuaded to adopt the Union’s position.
On February 10 she sent an email to other decision-makers at
IHA stating that the Union’s conduct was “bordering on
harassment.” According to Rampersad, the Union soon
opened up two additional fronts in its battle to have IHA
cancel its patronage of the Hotel.
a) Rick Bayless, Celebrity Chef
As part of its efforts, the Union contacted Rick Bayless, a
famous chef and owner of two Chicago restaurants, the
Frontera Grill and Topolobampo. Bayless was scheduled to
conduct a cooking demonstration at the IHA trade show.
Rampersad was informed that the Union was leafleting in
front of one of Bayless’s restaurants. The manager of the
Frontera Grill, Jennifer Fite, testified that she saw two people
handing out fliers inside the restaurant. Lawlor testified that
the Union delegated at the restaurants three times, attempt-
ing to meet with Bayless directly, before sending a fourth
delegation to distribute the fliers.
The fliers contained four bullet points of information
quoting apparent citations from government health inspec-
tions of the two restaurants. The quotes were accurate and
were found in publicly available reports, but the fliers did
not note that the restaurants passed the inspections despite
8 No. 13-1938
the quoted observations. The fliers also did not reference the
labor dispute, except by including the address of a Union-
sponsored web site, www.PresidentPicketsCongress.org.
b) IHA Affiliates and RSNA
The Union also allegedly visited several IHA affiliates,
including Walgreens, Macy’s, and Ace Hardware stores, all
located in Chicago. IHA also learned that the Union visited
the headquarters of the Radiological Society of North Amer-
ica (RSNA), an unrelated group that was also a prospective
customer of the Hotel. One Union delegate, Jennifer Blatz,
testified that a delegation boarded RSNA busses to distrib-
ute leaflets about the strike. She also testified that a delega-
tion entered a Macy’s store attempting to see the General
Manager; she conceded that management “may” have
threatened to have the delegation arrested for trespassing.
Rampersad was informed by an RSNA official that six Union
officials entered its offices and walked into department
meetings shouting an RSNA’s official’s name. Rampersad
testified that she was aware of the Union’s activities at an
Ace Hardware and RSNA by the time IHA decided to switch
hotels, but she and Kurtis conceded that they were not
aware of activities at Macy’s, Walgreens, or other affiliates at
that time.
By February 18, IHA decided to cancel its pending block
reservations with the Hotel. That still left 100 rooms already
reserved by individuals in advance of the 2009 trade show.
Jessica Lawlor advised Rampersad by phone that the Un-
ion’s activities “would not stop” until IHA completely disas-
sociated itself from the Hotel.
No. 13-1938 9
3. Reed Exhibitions/Chicago Comic and Entertainment Expo
Reed Exhibitions reserved a block of rooms with the Ho-
tel for the April 2010 Chicago Comic and Entertainment Ex-
po. Ron Zobel and Lance Fensterman were responsible for
obtaining lodging for the event. Fensterman testified that the
Hotel’s low rate was a central motivating factor in the deci-
sion to book there, because many of the Expo’s attendees
would be paying out of pocket, rather than having their ex-
penses covered by an employer. Two months after making
the reservation, the Expo’s organizers were told that affiliat-
ed retailers were being picketed at their places of business—
i.e., comic book stores.
In late 2009, the Union sent delegations to nine comic
book stores, according to the testimony of Union organizer
Jessica Lawlor. The Union apparently was following Fen-
sterman’s own visits to the stores and confronting him at
each stop. Fensterman testified that he specifically remem-
bered the Union’s activities at two comic book stores: Chal-
lengers Comics and Graham Crackers Comics, both in Chi-
cago. At one store Fensterman noticed as many as ten Union
members, four or five of whom were carrying two-foot by
one-foot signs. Fensterman testified that the Union members
were polite and non-disruptive, and the comic book stores
were open to the public. But he also characterized their visits
as “incredibly uncomfortable,” and sent an email to Zobel in
December of 2009, stating, “I want to drop this contract
[with the Hotel]. I had strikers at all of my retail visits in
Chicago this week.” The delegations made clear that they
would continue following Fensterman until he canceled the
Hotel reservation. Fensterman testified that the delegations
10 No. 13-1938
to the comic book stores “sen[d] a message that doing busi-
ness with [Reed Exhibitions] can be damaging to your busi-
ness.”
Zobel wrote to the Hotel management in February of
2010 to explain the decision to cancel the block reservation,
noting that the Expo’s attendees and exhibitors were subject
to “physical[] target[ing] and picket[ing].” The letter cited
the strike as one of two reasons that Reed Exhibitions termi-
nated the contract (the other being a lack of expected guest
room usage).
4. NeoCon/Merchandise Mart Properties (MMP)
MMP reserved room blocks with the Hotel for its 2009
and 2010 NeoCon trade show. Chris Kennedy is the presi-
dent of MMP and was allegedly considering a run for the
United States Senate at the time. Union delegations visited
NeoCon exhibitors with leaflets urging them to call Kennedy
through the main number at MMP, even though, aside from
being president, he had no role in contracting with the Ho-
tel. Union delegations met once with Kari O’Shea, who was
in charge of the Hotel reservation, without an appointment
and visited numerous exhibitors. They may also have inad-
vertently visited the homes (rather than the business ad-
dresses) of certain targets. Kennedy at one point allegedly
engaged in a screaming match with a Union official over the
phone. Eventually MMP canceled its reservation.
5. America’s Next Top Model (ANTM)
Ansia Production contracted with the Hotel for meeting
space to conduct a casting call in September 2008 for its reali-
ty show, America’s Next Top Model. The Union soon sent
out emails to sympathetic recipients asking them to call and
No. 13-1938 11
email one of the show’s corporate sponsors. At one point a
Union organizer sent an email to supporters observing that
one of their targets had a full voicemail, but he nevertheless
urged that the email’s recipients continue to call the number.
According to Lawlor’s testimony, the Union’s policy was for
members to call a target only once. Two days before the
scheduled casting call, ANTM canceled its arrangement with
the Hotel.
6. WordCamp Chicago
In February of 2010, WordCamp Chicago, a non-profit,
scheduled its bloggers conference at the Hotel for that June.
Within a week the room block reservation was canceled, al-
legedly because its lead organizer, Lisa Sabin-Wilson, was
“email-bombed” by Union activists. However, during her
testimony Ms. Sabin-Wilson was able to discuss only one or
two emails from the Union, along with numerous Twitter
messages and social media postings. She also alleged that
the Union had obtained WordCamp’s registrant and sponsor
lists and had begun emailing individuals and threatening
protests and bad publicity if the event were held as sched-
uled. Ms. Sabin-Wilson stated in her cancellation email to the
Hotel that the conference location would have to change so
that “our attendees and sponsors stop being harassed.” She
complained that her organization was “not comfortable with
the union pressure” and that such pressure “persisted all
week long” prior to her decision to move the conference.
7. Midwest Clinic
The Midwest Clinic is a nonprofit organization that had
contracted with the Hotel from 1995 to 2008 to provide over-
flow housing and meeting space for its annual conference of
12 No. 13-1938
school band and orchestra directors. Kelly Jocius became the
Clinic’s executive director in 1997. In 2003, at the beginning
of the strike, Jocius met with a Union representative at his
office. The meeting was “confrontational,” but Jocius re-
mained committed to staying with the Hotel.
Sometime between 2004 and 2006, Jocius met Teran
Loeppke, a boycott coordinator for the Union, in a social ca-
pacity. Jocius testified that, once Loeppke learned that he
was associated with the Clinic, the two “spoke on the phone
and after that he came to the office maybe three times. I
don't know.” He testified that he and Loeppke “rais[ed] our
voices” in disagreement during one such phone conversa-
tion. When Loeppke visited the Clinic’s office, Jocius in-
formed him that he was not welcome there: “[a]t that point I
refused to meet with him and my coworkers would stop him
at the door." It is not clear from the record how Loeppke re-
sponded to Jocius’s refusal to meet with him. Jocius added
that Loeppke’s visits were "unannounced" and that this "of-
fended" him because they occurred during the Clinic’s “bus-
iest time of the year.”
In 2008, the Union began contacting the Clinic’s board
members, clinicians, directors, trustees, and staffers, includ-
ing some at their home phones. Jocius testified that these
contacts came “in waves.” But he went on to explain, “I
don't think any board member heard from [the Union] more
than twice, maybe three times at the most." Jocius testified
that he was not surprised by the calls because the board
members "are public figures." He further stated that board
members "didn't complain [about the Union contacts]. They
just called to let me know” they were occurring. Jocius also
No. 13-1938 13
received three separate letters from the Union, each request-
ing that the Clinic cease doing business with the Hotel.
The Clinic cancelled its arrangement with the Hotel in
2009. Jocius could not positively identify why the change
was made, but observed that the Union’s activities “might
have been a concern.” He also stated that decision-makers at
the Clinic wondered whether “we want[ed] to continue us-
ing a hotel that has a strike taking place.”
8. Chicago Film Festival
On June 6, 2005, at least a few years before the Union be-
gan delegating at neutral businesses, the Hotel offered Cin-
ema/Chicago approximately 100 room nights (eight rooms a
night for approximately two weeks) free of charge, in ex-
change for advertising during the organization’s main event,
the 41st Chicago International Film Festival. Shortly thereaf-
ter “The Alliance for Justice at the Congress Hotel,” an um-
brella group of organizations that included the Union, sent a
letter to the management of the film festival stating that “[i]t
is not unlikely that strikers and supporters might be present
outside the Chicago Theater on Oct. 6 during the opening
gala in order to publicize this injustice with leaflets and
bullhorns.” Similar letters were sent to actress Susan Saran-
don and the late film critic Roger Ebert, who were expected
to attend the event. The festival canceled its reservations. It
informed the Alliance in a September 29, 2005, letter that
“[b]ased on your letter and our concern for the Festival, we
are canceling our reservations at the Congress Plaza Hotel.”
The letter noted the “great expens[e]” the festival endured in
declining to take advantage of rooms it did not have to pay
for.
14 No. 13-1938
The Managing Director of Cinema/Chicago, Sophia
Wang Boccio, testified that the decision to reject the 100
room nights was “totally a reaction to something that might
be bad happening to the opening night.” She also offered
that the Union’s actions could bring “embarrassment to the
Film Festival” during its opening gala. But Boccio later spec-
ulated that any protest would be “more embarrassing to the
star[s]” appearing at the gala than for regular attendees, who
would spend most of their time in the theater.
9. The National Center for Agricultural Utilization Research
(AgLab)
The National Center for Agricultural Utilization Research
(AgLab) contracted to hold a conference at the Hotel in April
2005. The subject of the conference was animal gastrointesti-
nal function, and the relevance of that detail will, unfortu-
nately, soon become apparent. The Union responded in Feb-
ruary by sending AgLab a “cow pie valentine”—a heart-
shaped candy box containing cow manure. The poor recep-
tionist at AgLab’s office in Peoria, Illinois, was handed the
box. AgLab employees attempted to return the “valentine,”
but the Union declined to accept it. Although AgLab did not
cancel its block reservation, the Hotel alleges that conference
attendees rented less than approximately 75% of its reserved
rooms for the conference, which represents, again allegedly,
a below-average yield. The Hotel attributes that low rate to
the manure incident. The actual delivery of the box in Feb-
ruary of 2005 occurred more than five years before the Hotel
brought suit in March of 2010, although AgLab’s April 2005
conference at the Hotel occurred less than five years before
the case was brought.
No. 13-1938 15
B. District Court Proceedings
The district court granted summary judgment to the Un-
ion on all issues. 520 S. Mich. Ave. Assocs. Ltd. v. Unite Here
Local 1, 939 F. Supp. 2d 863, 865 (N.D. Ill. 2013). In general, it
held that the Hotel could not show that the Union engaged
in any conduct more coercive than peaceful handbilling and
persuading managers of secondary businesses not to con-
tract with the Hotel. Id. at 875. The Supreme Court has held
that such conduct is not an unfair labor practice and is
squarely protected under the First Amendment. See DeBarto-
lo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568 (1988).
As to America’s Next Top Model, the NeoCon Conven-
tion, WordCamp Chicago, and the Midwest Clinic, the dis-
trict court held that the Union had simply engaged in pro-
tected speech, attempting to persuade the decision-makers
of these groups not to contract with the Hotel. The delega-
tions may have been brusque, or the conversations heated,
the district court reasoned, but all of the conduct alleged
against the Union as to those four entities fell well within the
protections of the First Amendment and federal labor law.
Even taking every fact alleged by the Hotel as true, the Un-
ion’s conduct was not threatening or coercive. 939 F. Supp.
2d at 877–78; 881–83.
The Hotel’s accusations regarding the AgLab “cow pie
valentine” incident had already been dismissed by an earlier
district court ruling that held the conduct underlying the
claim was time-barred. The Union sent the foul package in
February of 2005, which meant that the five-year statute of
limitations had already run by the time the Hotel sued in
March of 2010. The Hotel then amended its complaint to re-
16 No. 13-1938
plead the AgLab allegations, and the district court did not
rule on that issue again until the Union moved for summary
judgment on all counts. The district court then held, for the
second time, that the claim was untimely, for the reasons
stated in the original order to dismiss. Id. at 876.
As to the American Tango Institute, the court discounted
the Hotel’s evidence of the Union’s entrance onto ATI’s
premises, and other allegedly aggressive behavior, because
ATI officials “scheduled a second meeting after [the alleged-
ly hostile behavior], which undermines claims that [ATI]
was coerced or threatened.” Id. at 883. The court went on to
hold that “[t]he Union activity at issue here—its letters,
emails, phone calls, and meetings—themselves had no coer-
cive effect on ATI as far as the evidence shows.” Id. It also
reasoned that ATI’s financial and membership losses alleg-
edly caused by changing its accommodations did not pro-
vide evidence of coercion. “At most,” the district court con-
cluded, “it can be inferred that the Union persuaded ATI to
make the change that led to its financial loss—and thus ATI
lost money not for defying the Union (‘coercion’) but for co-
operating with it.” Id.
With regard to IHA, the district court conceded that the
physical entrance of Union delegates into its office space
without consent rendered the legality of the Union’s conduct
a “closer question.” Id. at 878. But it noted that “the IHA
president subsequently met with the Union delegates volun-
tarily, on IHA property” before cancelling the arrangement
with the Hotel. Id. at 879. The court therefore held that the
Hotel “would be unable to prove … that the potentially
threatening or coercive activity, rather than simply persua-
sion, directed at the IHA caused” it to cancel the booking. Id.
No. 13-1938 17
The court also ruled that, even though the fliers directed
at celebrity chef Rick Bayless did not reference the Union’s
labor dispute with the Hotel, they were nevertheless protect-
ed by the First Amendment as true and accurate information
about his restaurants. The court observed that handing out
the leaflets outside of Bayless’s restaurants was core First
Amendment activity. Id. at 879–80.
As for the Union delegations to IHA’s exhibitors and af-
filiates, the court found that the Hotel’s case suffered from
“a similar lack of evidence of threats or coercion as to most
of the delegations who visited IHA exhibitors or other affili-
ates, to the extent that the IHA decision-makers knew about
these contacts before deciding to cancel the Hotel contract.”
Id. at 879. In other words, because IHA decision-makers at
the time were unaware of the Union’s visits to most of its af-
filiates, those activities could not have coerced the IHA’s de-
cision not to book rooms at the Hotel.
Finally, regarding the Chicago Film Festival, the court
held that the threat to use a bullhorn at the protests was pro-
tected by the First Amendment because any excessive noise
would be subject to the city’s time, place, and manner re-
strictions. The court concluded that “[t]here is no evidence in
the record here as to whether the (hypothetical) bullhorn
would have exceeded permissible levels” of noise. Id. at 877.
II. Discussion
The standard of review plays a particularly crucial role in
this case. “We review the grant of summary judgment de
novo, applying the same standards as the district court and
viewing the record and all reasonable inferences to be drawn
from it in the light most favorable to the non-moving party.”
18 No. 13-1938
Griffin, 74 F.3d at 826–27. “Summary judgment is appropri-
ate only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Id.
at 827; see Fed. R. Civ. P. 56.
To defeat summary judgment, “[t]he nonmovant must
articulate specific facts demonstrating that a genuine issue
exists for trial.” Griffin, 74 F.3d at 826–27. A disputed issue is
“genuine” where a reasonable jury could render a verdict for
the non-moving party “‘if the record at trial were identical to
the record compiled in the summary judgment proceeding.’”
CSX Transp., Inc. v. Chi. and Nw. Transp. Co., Inc., 62 F.3d 185,
188 (7th Cir. 1995) (quoting Russell v. Acme-Evans Co., 51 F.3d
64, 70 (7th Cir. 1995)).
A. The Law of Secondary Labor Activity
The Hotel alleges that the Union engaged in unfair labor
practices prohibited under federal law. See 29 U.S.C. § 187.
Specifically, the Union allegedly violated 29 U.S.C.
§158(b)(4)(ii)(B), which bars certain labor activity against a
secondary target. That provision is part of “Congress’ strik-
ing of the delicate balance between union freedom of expres-
sion and the ability of neutral employers, employees, and
consumers to remain free from coerced participation in in-
dustrial strife.” NLRB v. Retail Store Emp. Union, Local 1001,
447 U.S. 607, 617–18 (1980) (Safeco) (Blackmun, J., concurring
in part). The statute makes it unlawful for a union “to
threaten, coerce, or restrain any person engaged in com-
merce” where “an object thereof is … forcing or requiring
any person to cease … doing business with another person.”
29 U.S.C. §158(b)(4)(ii)(B). The statute explicitly states that
this prohibition does not apply to “any primary strike or
primary picketing.” Id. Section 158(b)(4) contains a proviso
No. 13-1938 19
noting that the above section does not “prohibit publicity,
other than picketing, for the purpose of truthfully advising
the public … that a product or products are produced by an
employer with whom the labor organization has a primary
dispute.” In other words, striking against an employer en-
gaged in a labor dispute with a union is acceptable, as is
publicizing such a strike. But coercion against neutral parties
is forbidden.
The Supreme Court has held that courts should exercise
“caution” in interpreting the phrase “to threaten, coerce, or
restrain,” and not give the phrase a “broad sweep.” NLRB v.
Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274,
290 (1960). In narrowing the text of the statute, the Supreme
Court has held that the primary evils it was meant to target
are secondary boycotts and some forms of picketing. Picket-
ing “that reasonably can be expected to threaten neutral par-
ties with ruin or substantial loss” can constitute an unfair
labor practice because it is coercive. Safeco, 447 U.S. at 614(1980). However, the Court has also held that “picketing
[that] is employed only to persuade customers not to buy [a]
struck product” is permitted. NLRB v. Fruit & Vegetable Pack-
ers & Warehousemen, Local 760, 377 U.S. 58, 72 (1964) (Tree
Fruits). Therefore, to be unlawful, picketing must threaten
neutral parties with substantial loss or ruin, beyond the costs
from customers who are persuaded to side with the union
and avoid a particular product of an employer involved in
the strike.
The Court has contrasted unlawful secondary picketing
with peaceful handbilling at the entrance of a secondary
business, which is lawful. See DeBartolo Corp., 485 U.S. at583–84 (The statute does not “proscribe peaceful handbilling,
20 No. 13-1938
unaccompanied by picketing, urging a consumer boycott of
a neutral employer.”). In so ruling, the Court relied heavily
on the constitutional avoidance canon, holding that the stat-
ute should not be interpreted as to restrict First Amendment
liberties. Id. at 575–88 (interpreting the statute so as to “not
interfere with the constitutional right of free speech”). This
interpretation is particularly important because a strike is
typically a matter of public concern and therefore subject to
a high degree of First Amendment protection.
The DeBartolo Court carefully distinguished between
handbilling and picketing. “The 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.” Id. at 580. The Court noted
that handbilling involves “no violence, picketing, or patrol-
ling and only an attempt to persuade customers not to
shop.” Id. at 578. Such violence, picketing, or patrolling
against neutral actors in a labor dispute is not protected un-
der federal law or the First Amendment.
The Supreme Court has also declined to find an unfair
labor practice in a case in which the National Labor Rela-
tions Board had found that up to five union members visited
managers of various stores in person and informed them of
the union’s plans to handbill outside stores that carried cer-
tain products from an employer subjected to a strike. NLRB
v. Servette, Inc., 377 U.S. 46, 51 (1964); see Teamsters Local 848,
133 NLRB 1501, 1504 (1961), pet. for rev. granted sub nom. Ser-
vette, Inc. v. NLRB, 310 F.2d 659 (9th Cir. 1962), rev’d, 377 U.S.
46. The Supreme Court did not discuss the in-person nature
of the visits in its opinion; but, in any event, we find the
proposition the Union derives from this case to be uncontro-
No. 13-1938 21
versial: that a union delegation generally may enter upon
private property, even without prior permission, at least
once for the purpose of informing and persuading a deci-
sion-maker of a neutral entity not to do business with a
struck employer.
Although broad picketing or boycotting of a neutral enti-
ty is the paradigmatic case of coercive secondary activity, it
is not the only behavior prohibited under the statute. As the
district court in this case observed, “other secondary conduct
can violate the law. The restriction on secondary activity is
‘keyed to the coercive nature of the conduct, whether it be
picketing or otherwise.’” 520 S. Mich. Ave. Assocs., 939 F.
Supp. 2d at 874 (quoting Tree Fruits, 377 U.S. at 68). In a
sense, then, secondary picketing is one end of a spectrum—
the prohibited end—with handbilling on the other, permis-
sible end.
To put the matter simply, and perhaps too simply, the
central question in this case is therefore whether the Union’s
conduct in this case is coercive, as in the sense of a boycott or
picket, or persuasive, as in the case of handbilling outside an
establishment. Of course, reality is not so easily divided into
two neat categories, and we may find that certain aspects of
the Union’s conduct could be persuasive or coercive in ways
that distinguish it from both handbilling and picketing.
Other courts have noted that a defining characteristic of
picketing is that it creates a physical barrier between a busi-
ness and potential customers, thereby “keeping employees
away from work or keeping customers away from the em-
ployer’s business.” Kentov v. Sheet Metal Workers’ Intern.
Ass’n Local 15, 418 F.3d 1259, 1265 (11th Cir. 2005) (quotation
and citation omitted). By contrast, peaceable activity that
22 No. 13-1938
does not create a barrier between customers and the busi-
ness is typically permitted. Sheet Metal Workers’ Intern. Ass’n,
Local 15 v. NLRB, 491 F.3d 429, 438 (D.C. Cir. 2007) (finding a
mock funeral at a hospital was not coercive because the Un-
ion “did not physically or verbally interfere with or confront
Hospital patrons coming and going; nor … did the mock fu-
neral participants ‘patrol’ the area in the sense of creating a
symbolic barrier to those who would enter the Hospital.”).
The conduct alleged in this case is not satisfactorily de-
scribed as either picketing or handbilling. On the one hand,
the delegates often took written materials with them, includ-
ing handbills and leaflets. Then again, some of the conduct
the Hotel describes—drawing every reasonable inference in
its favor—is similar to picketing. For example, the Union fol-
lowed one target, Mr. Fensterman, from one comic book
store to the next, with some of the delegates holding signs as
they stood inside.
Many of the Union’s other activities are disturbingly sim-
ilar to trespass and harassment. According to the Hotel and
deposition testimony, the Union delegates entered business
offices through locked doors, and repeatedly entered office
or store space without permission, in one case even after po-
lice were called. In the case of the IHA, they further threat-
ened that they would trespass onto busses or the trade show.
Jessica Lawlor went so far as to register for ATI’s tango fes-
tival, thus corroborating Roldan’s testimony that the Union
threatened to ruin that event. Union representatives called
targets at home, and repeatedly visited affiliates of targeted
neutrals at their places of businesses even after they were
clearly informed that their targets were unpersuaded.
No. 13-1938 23
We will discuss each particular allegation of coercion in
further detail, but this discussion suffices to explain why we
choose to see the Union’s actions primarily through the lens
of picketing, trespass, and harassment. To be clear, we are
not suggesting that the Union committed trespass, harass-
ment, or any other crime or tort; rather, we are using those
categories as descriptive devices to gauge the level of coer-
cion the Union may have placed upon neutral organizations.
The question then becomes whether trespassing and har-
assment could count as coercive behavior under federal la-
bor law. We concede that the Union is permitted some initial
entry onto private property so it may convey its views to the
decision-makers of a secondary organization. See Servette,
377 U.S. at 51. But, even in the context of primary picketing,
at some point the trespass becomes unprotected. See Sears,
Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters,
436 U.S. 180, 205 (1978) (“[T]here are unquestionably exam-
ples of trespassory union activity in which the question
whether it is protected is fairly debatable.”); Lechmere, Inc. v.
NLRB, 502 U.S. 527, 535 (1992) (“[T]respasses of nonemploy-
ee union organizers are ‘far more likely to be unprotected
than protected.’”) (quoting Sears, 436 U.S. at 205); Cynthia L.
Estlund, The Ossification of American Labor Law, 102 Colum. L.
Rev. 1527, 1573–74 (2002) (“[S]tates are largely free to enforce
general laws against violence, intimidation, and trespass in
the context of labor disputes.”). And the Supreme Court has
made clear that federal labor law “does not require that [an]
employer permit the use of its facilities for organization
when other means are readily available.” NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 114 (1956).
24 No. 13-1938
The same is true of harassment, which relies on the inter-
fering manner of communication, not its content, to accom-
plish its aims. The Union is alleged to have continued con-
tacting targets even after they had made clear that they were
not willing to receive delegations. Some of these contacts
were physical invasions of private property, as discussed
above. But the allegedly frequent and repetitive phone calls
(including some to people’s homes) and the threats to dis-
rupt events, such as the IHA trade show, the ATI tango fes-
tival, or Rick Bayless’s restaurants, also support an inference
that the Union did not intend to persuade but to force neu-
trals to take sides in its dispute with the Hotel. In another
labor context, this court has held that unions are not permit-
ted to employ harassment to achieve their ends. See NLRB v.
Burkart Foam, Inc., 848 F.2d 825, 833 (7th Cir. 1988) (“Unions
may not seek information [from an employer] merely for the
purpose of harassing employees.”). Although it would typi-
cally require significant harassment to coerce an organiza-
tion to make a decision against its better judgment, several
of the Union’s targets, such as ATI, are small, non-profit or-
ganizations that rely heavily on volunteers or donations.
Harassment, if severe enough, could rise to the level of coer-
cive behavior under Section 158(b).
Putting the matter succinctly, we hold that a union may
be liable under § 158(b)(4)(ii)(B) for unlawfully coercing a
secondary to cease doing business with the struck employer
if the union’s conduct amounts to harassment or involves
repeated trespass or both. Granted, trespass and harassment
of a secondary organization’s members differ from picketing
in one central way that supports the Union’s position. They
do not create a symbolic barrier between a business and its
customers in the way a picket line does. But such conduct
No. 13-1938 25
may nevertheless significantly disrupt a business and pose a
substantial threat to an organization’s finances. Indeed, tres-
pass and harassment may be more coercive than picketing in
one important sense. Picketing generally occurs outside a
place of business—perhaps on a sidewalk, or on the periph-
ery of the neutral’s establishment. The Union here is accused
in several instances of barging into offices, bypassing securi-
ty, following certain targets around stores, and shouting at
employees. This is the sort of conduct that can—and did—
get the police called in to intervene. The Union’s alleged
conduct easily could have been as disruptive of a neutral or-
ganization’s property, privacy, and business operations as
any picket line. Instead of creating a barrier between cus-
tomers and the business, the Union infiltrated their neutral
targets and disturbed them from the inside. That behavior, if
proven, can be deemed coercive. It is also important to point
out that Section 158(b) does not merely bar coercion that is
actually exerted; it also does not permit the Union “to
threaten” a neutral with unlawful secondary activity.
Another important point is that the conduct alleged by
the Hotel was generally targeted at employees, not custom-
ers passing by, as in handbilling. A fellow appeals court ap-
proved of a “mock funeral” a union held outside its employ-
er hospital in part because the presentation was “addressed
solely to customers,” not employees of the neutral entity.
Sheet Metal Workers, 491 F.3d at 438. To be clear, the Union’s
actions do not implicate Section 158(b)(4)(i)(B)’s ban on in-
ducing secondary employees to strike. But its alleged deci-
sion to repeatedly target secondary employees indicates an
intent not to persuade, but simply to interfere.
26 No. 13-1938
Certainly, a single trespass or isolated instance of har-
assment likely would not threaten “ruin or substantial loss,”
in much the same way that a picket against one struck good
would likely not coerce a store owner. But repeated, sus-
tained trespass or harassment, when used as a labor tactic,
seeks to compel a certain result instead of fostering persua-
sion or communication. The Supreme Court has clearly indi-
cated that coercive, as opposed to persuasive, conduct is the
hallmark of unlawful labor activity.
Again, we must make clear that the Hotel need not show
that the Union is criminally or civilly liable for trespass or
harassment in order to prevail. The Union’s conduct need
not be illegal outside the secondary boycott context. After
all, primary picketing—against the employer whose em-
ployees are striking—is permitted under federal labor law.
What 29 U.S.C. § 158 makes unlawful is secondary picket-
ing—that is, picketing against neutral organizations. Such
conduct impermissibly widens a labor dispute to the detri-
ment of the entire economy, and coerces uninvolved entities
to take sides. Because the conduct here is concededly di-
rected at secondary actors, it may potentially fall under the
ambit of Section 158(b) if it is substantially similar to picket-
ing and sufficiently coercive. We will later discuss in detail
why at least some of the Union’s conduct meets that test.
B. Free Speech Concerns
Although some of the Union’s conduct may qualify as
secondary picketing, the Supreme Court has cautioned us to
be especially careful not to label expressive union conduct as
coercive if such an interpretation could interfere or limit free
speech. It is undisputed that the Union delegations all at-
tempted to communicate a message on a topic of public con-
No. 13-1938 27
cern. According to the Hotel, however, they went further,
and engaged in conduct that rendered their activities unpro-
tected and illegal. We conclude that prohibiting some of the
Union’s conduct under the federal labor laws would pose no
greater obstacle to free speech than that posed by ordinary
trespass and harassment laws. Our decision breaks no new
ground in First Amendment law, and does not require invo-
cation of the constitutional avoidance canon.
It is important to note that the Supreme Court has al-
ready held that “[s]econdary boycotts and picketing by labor
unions may be prohibited,” because of “the strong govern-
mental interest in certain forms of economic regulation, even
though such regulation may have an incidental effect on
rights of speech and association.” NAACP v. Claiborne Hard-
ware Co., 458 U.S. 886, 912 (1982). This is true even though
the Court has observed that “picketing is a mixture of con-
duct and communication” that contains expressive elements.
DeBartolo Corp., 485 U.S. at 580 (citation and quotation marks
omitted). And, as we have seen, Congress has long prohibit-
ed secondary boycotts and picketing. To the extent that the
Union’s conduct in this case is equivalent to secondary pick-
eting, and inflicts the same type of economic harm, it too
may be prohibited without doing any harm to First
Amendment liberties.
But even aside from the ban on secondary picketing, we
find that some of the Union’s alleged conduct is not protect-
ed speech. The leading case on the clash between the First
Amendment and the property right to exclude trespassers is
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). In Lloyd Corp. the
Supreme Court held that, under the federal constitution, a
private owner of a shopping center could enforce a policy
28 No. 13-1938
against handbilling inside the center even though it was
largely open to public shoppers. The Court has applied that
principle to the labor context, holding that union picketers
“did not have a First Amendment right to enter [a] shopping
center for the purpose of advertising their strike against” one
of the stores contained within it. Hudgens v. NLRB, 424 U.S.
507, 520–21 (1976). In Hudgens the Court emphasized that
“the constitutional guarantee of free expression has no part
to play in a case such as this.” Id. at 521.
The next question is whether the Union’s allegedly har-
assing conduct may reasonably be deemed protected under
the First Amendment. We hold that it is not. Various forms
of harassment are banned under state and federal law. See
Gresham v. Peterson, 225 F.3d 899, 908–09 (7th Cir. 2000) (up-
holding statute banning aggressive panhandling because it
“would prohibit the type of harassing behavior that gov-
ernments routinely outlaw[,]” such as “‘repeated or continu-
ing harassment of another person that would cause a rea-
sonable person to feel terrorized, frightened, intimidated, or
threatened’”) (quoting Ind. Code § 35-45-10-1). Such laws
unquestionably serve important state and public interests.
Important First Amendment interests are not threatened
in this case because the Hotel’s complaint is narrowly tai-
lored to address the Union’s conduct—visiting offices, mak-
ing phone calls to decision-makers (sometimes at home), car-
rying signs—without reference to the content of its message.
The Second Circuit upheld a state telephone harassment
statute on the grounds that it “regulates conduct, not mere
speech. What is proscribed is the making of a telephone call,
with the requisite intent and in the specified manner.” Gorm-
ley v. Dir., Conn. State Dep’t of Prob., 632 F.2d 938, 941–42 (2d
No. 13-1938 29
Cir. 1980). The Ninth Circuit just recently used that same ra-
tionale to uphold the federal anti-stalking statute, 18 U.S.C. §
2261A, against constitutional challenge. The court held that
the statute targeted speech only incidentally, and principally
“proscribes harassing and intimidating conduct.” United
States v. Osinger, 753 F.3d 939, 944 (9th Cir. 2014). The Eighth
Circuit has reached the same conclusion. United States v. Pe-
trovic, 701 F.3d 849, 856 (8th Cir. 2012). Prohibiting the Un-
ion’s conduct here likewise will limit speech only in the most
incidental way, while serving a significant governmental in-
terest in preserving labor peace. See R.A.V. v. City of St. Paul,
Minn., 505 U.S. 377, 390 (1992) (“Where the government does
not target conduct on the basis of its expressive content, acts
are not shielded from regulation merely because they ex-
press a[n] … idea or philosophy.”).
There is another reason why some of the Union’s alleged
harassment merits less First Amendment protection. The
Union is accused of transmitting its messages to an unwill-
ing, captive audience. Even with regards to handbilling, the
Supreme Court has “spoke[n] of a right to distribute litera-
ture only to one willing to receive it.” Frisby v. Schultz, 487
U.S. 474, 485 (1988) (internal quotation marks omitted). Alt-
hough the Supreme Court has expressed greatest concern
with unwanted messages within a listener’s own home, id. at
484 (“the home is different”), it stands to reason that First
Amendment liberties are less fundamental when the speaker
is cornering an unwilling audience in a private office space.
See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 781
(1994) (Stevens, J., concurring in part) (The First Amendment
does not provide “an unqualified constitutional right to fol-
low and harass an unwilling listener.”). It is hard to imagine,
for example, that the publicly observable images of nudity
30 No. 13-1938
permitted in Erznoznik v. City of Jacksonville, 422 U.S. 205(1975), would receive similar protection within a workplace
setting. The freedom of an unwilling listener to avert one’s
eyes or ears is considerably lessened when she is required to
be on the job, or to check her phone messages. First
Amendment freedoms would therefore not be significantly
chilled by a ruling that the Union harassed an essentially
captive audience.
The precedent cited by the Union underscores this point.
In Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Strat-
ton, 536 U.S. 150, 168 (2002), the Court invalidated an ordi-
nance prohibiting canvassing “in and upon” private proper-
ty prior to obtaining a permit, but it based that decision in
part on the fact that the ordinance already provided protec-
tion to unwilling listeners by allowing them to obtain “No
Solicitation” signs that canvassers would be required to re-
spect. The same is true of Martin v. City of Struthers, Ohio, 319
U.S. 141, 148 (1943) (approving of a “regulation … which
would make it an offense for any person to ring the bell of a
householder who has appropriately indicated that he is un-
willing to be disturbed.”). Indeed, the Martin Court recog-
nized that “[t]raditionally the American law punishes per-
sons who enter onto the property of another after having
been warned by the owner to keep off.” Id. at 147. The Union
also cites Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670
(2011), but that decision again reaffirms the principle in-
voked by the Hotel. See id. (striking down ban on pharma-
ceutical marketing in part because “[d]octors who wish to
forgo detailing altogether are free to give ‘No Solicitation’ or
‘No Detailing’ instructions … at their places of work.”). The
Hotel is simply asking that the Union respect its customers’
freedom to be left alone to conduct their business.
No. 13-1938 31
Finally, we think that Servette gives the Union ample
breathing room to express its views by permitting delegates
to approach and talk to decision-makers of neutral business-
es, even if they are initially uninvited. But once that deci-
sion-maker says that she is not interested, and that the Un-
ion delegates are no longer welcome, the Union’s free speech
interests start to wane, and the property and privacy rights
of the neutral target become dispositive. Certainly, when the
police are called to haul the delegates away, it should be
clear that the Union’s attempts to persuade have been re-
buffed. And sneaking past a locked office door without
permission is a sure sign that one is doing more than simply
exercising his First Amendment rights. The constitutional
avoidance canon cannot save the Union here.
In sum, we conclude that, if the Hotel can provide evi-
dence permitting a reasonable inference that the Union es-
sentially committed trespass or harassed secondary organi-
zations, or threatened to do the same, and thereby coerced
them to cease their business with the Hotel, summary judg-
ment would be inappropriate in this case. We now must turn
to whether the Hotel has met that burden.
C. Application to this Case
To defeat summary judgment, the Hotel must create a
reasonable dispute of fact as to each element of their claim. It
must provide evidence, first, that the Union coerced at least
one neutral target. This means that the decision-makers of
the target must have felt that their only choice was to accede
to the Union’s demands or else face substantial loss or ruin.
DeBartolo Corp., 485 U.S. at 580. But it also requires that the
decision maker’s belief be objectively reasonable—i.e., that
an ordinary person in the decision maker’s position would
32 No. 13-1938
have felt coerced. Second, the Hotel must show that the Un-
ion used coercion with the intent of forcing the neutral entity
not to do business with the Hotel. See Int’l Union of Operating
Engineers, Local 150 v. NLRB, 47 F.3d 218, 223 (7th Cir. 1995).
Third, the Hotel must prove that the targeted neutral ceased
or reduced its business with the Hotel. Fourth, that decision
must have been caused by the coercive conduct. And finally,
the Hotel must prove that it was damaged by the neutral’s
decision.
We now examine each of the nine incidents identified by
the Hotel to see if a reasonable jury, drawing every inference
in its favor, could find all of the above elements met.
1. Partial summary judgment is appropriate.
The district court properly granted summary judgment
on claims regarding the “cow pie valentine” allegedly sent to
AgLab. Even if the claim was not untimely—and we do not
decide that question—the Hotel cannot prove damages be-
cause AgLab did not cancel its room block order. It does not
even attempt to establish that the under-75% yield on
AgLab’s room reservation was significantly below normal,
or due to the Union’s cow pie tactic. It points to no testimony
from any person who stayed at a different hotel because of
the incident. Moreover, the cow pie valentine implicates
concerns regarding symbolic speech. See Texas v. Johnson, 491
U.S. 397, 406 (1989). The Supreme Court has already em-
ployed the constitutional avoidance canon to steer a wide
berth away from any First Amendment concerns. DeBartolo
Corp., 485 U.S. at 575-88. We must do the same in this case.
Similarly, no reasonable jury could conclude that the Un-
ion’s threat to demonstrate using “leaflets and bullhorns” at
No. 13-1938 33
the Chicago Film Festival was coercive. The district court
correctly held that “[t]here is no evidence in the record here
as to whether the (hypothetical) bullhorn would have ex-
ceeded permissible levels” of noise under state and local
law. 939 F. Supp. 2d at 877. Although we must make every
reasonable inference in favor of the Hotel, it has pointed to
no evidence by which we may infer that the Union would
have disrupted the film festival. “Speculation is insufficient
to withstand summary judgment.” Ortiz v. John O. Butler Co.,
94 F.3d 1121, 1127 (7th Cir. 1996). The Alliance’s letter to the
film festival’s organizers does not state or imply that any
protestors would violate the applicable time, place, and
manner restrictions. And the Hotel can point to no external
evidence to support that inference. It is important to note
that the incident with the film festival occurred in 2005, be-
fore the Union apparently switched its tactics and began
sending delegations to neutral entities. Thus, we cannot as-
sociate the Union’s threatened protest at the film festival
with any of its later, more aggressive methods. The Hotel
has failed to meet its burden to adduce evidence sufficient to
create a question of material fact as to the potential disrup-
tion the Union might have caused.
It is true that bullhorns and other noise-making instru-
ments can be disruptive in various contexts. If the Union
had, for example, threatened to protest inside the theater
during the opening gala, or if the film festival had been held
outside, so that noise from bullhorns easily could have ru-
ined the experience for moviegoers, those facts would pre-
sent a different, and more compelling, case for the Hotel.
This would be especially true if the Union had threatened
simply to make loud noises during the festival, rather than
to amplify their speech through bullhorns, or if the Hotel
34 No. 13-1938
had documented any past examples of the Union engaging
in disruptive behavior with those devices. But the mere
statement that Union members will appear outside an event
with bullhorns falls short of what is required to defeat sum-
mary judgment.
The Hotel’s claim regarding the film festival must fail for
two additional reasons. The relevant decision-maker for the
film festival, Sophia Wang Boccio, could not affirmatively
state that her organization was coerced by the Union. To be
sure, the decision to pass up free hotel room days (in ex-
change for advertising) supports an inference that the festi-
val did so only under threat of an even greater financial loss.
But Boccio indicated that the decision to abandon the Hotel
was made to avoid embarrassment and bad publicity; she
did not recall that the organizers were concerned about an
out-of-control bullhorn ruining the opening night gala. She
did testify that the change was “totally a reaction to some-
thing that might be bad happening to the opening night.”
But there is no indication that she believed the event would
be illegally disrupted.
Moreover, as with the AgLab incident, we must be wary
of infringing on the Union’s First Amendment rights. Leaf-
lets and bullhorns are classic instruments of speech. See
Stokes v. City of Madison, 930 F.2d 1163, 1169 (7th Cir. 1991)
(holding that “amplified speech is a protected form of ex-
pression”); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.
357, 358 (1997) (“Leafletting and commenting on matters of
public concern are classic forms of speech that lie at the heart
of the First Amendment.”). We hesitate to restrict their use
solely based on the fear that they will be misused. Barring at
least some indication that the Union would exceed applica-
No. 13-1938 35
ble time, place, and manner restrictions, or else would pro-
ject their speech from some place other than a sidewalk or
other public forum, we must affirm the district court’s grant
of summary judgment on this point.
The district court also properly granted summary judg-
ment on allegations regarding the Midwest Clinic, the Neo-
Con Convention, WordCamp, and America’s Next Top
Model. The conduct the Hotel alleges in these instances can-
not amount to coercive pressure on par with picketing. We
can quickly dispose of the Hotel’s specific allegations re-
garding these four targets in turn.
The Union did not trespass on the Midwest Clinic’s
property or picket outside it. Union delegates did visit the
Clinic’s office at least three times during the Clinic’s busiest
season, but the Hotel failed to provide any detail about how
those meetings went. There is no evidence in the record to
suggest that delegates remained on the premises after being
asked to leave. Although repeated incursions inside an office
space could be deemed coercive, the Hotel points to no facts
indicating that these Union delegates ever set foot in the
Clinic’s office, as opposed to waiting outside and then leav-
ing once they were denied entry. More importantly, the
Clinic’s executive director, Kelly Jocius, does not even allege
that the Union’s secondary activity influenced the Clinic’s
decision not to use the Hotel. He testified that its leadership
was hesitant to frequent a hotel that was combatting a strike.
In other words, the Clinic’s decision-makers seem to have
been persuaded by the Union. The Hotel’s position was
therefore fatally deficient both in identifying the alleged co-
ercive behavior and in showing that the Clinic was in fact
motivated by that behavior when it decided to change its
36 No. 13-1938
reservation. Had Jocius’s testimony been clearer and more
supportive of the Hotel on either or both of these points, this
would be a different case.
Likewise, the Union’s conduct with regards to the Neo-
Con convention involved communication, as in peaceful
handbilling, not physical trespass or repeated patrolling or
harassment. Although some exhibitors were apparently
called at their homes, the Hotel has not demonstrated persis-
tent harassment of anyone associated with NeoCon. The del-
egates are not alleged to have overstayed their welcome,
snuck onto private property, or prompted a call to the police.
This conduct cannot reasonably be deemed coercive. Dis-
tributing fliers urging people to call MMP’s president Chris
Kennedy is a protected speech tactic, and is actually less
drastic than the concededly protected activity of distributing
handbills urging customers to boycott the NeoCon conven-
tion entirely.
As to WordCamp, the Union primarily used emails and
social messaging to get its point across. This communication
was much more similar to protected handbilling than picket-
ing. The Hotel alleges WordCamp’s lead organizer was
“email-bombed” by Union activists, but it points primarily
to Twitter messages and social media postings. These writ-
ings are pure, protected speech about a matter of public con-
cern. They also pose very little risk of harming an unwilling
or captive listener; after all, anyone can unsubscribe from
Twitter. Unlike an “email bomb,” which at least plausibly
could be disruptive of WordCamp’s activities, passive social
media postings are not coercive in this context. Although the
Union did allegedly contact WordCamp’s registrants and
sponsors, there is no evidence in the record indicating that
No. 13-1938 37
the Union did anything other than attempt to persuade these
individuals.
Finally, the Union used only phone calls and emails to
persuade a sponsor of America’s Next Top Model. The fact
that one target’s voicemail was full does not by itself create
the inference that the Union’s conduct was coercive or tan-
tamount to picketing. The Hotel does not even point to a
witness statement alleging that the reason the voicemail was
full is that the Union bombarded it with messages. In any
event, there is no reason to think that anyone was so flum-
moxed by the overflowing voicemail box that the show’s or-
ganizers felt coerced to cancel their contract with the Hotel.
2. A trial is necessary to resolve the remaining claims.
This court will reverse summary judgment, however, re-
garding the Union’s behavior toward ATI, IHA, and the
Comic Expo.
a. American Tango Institute (ATI)
Granting all reasonable inferences in favor of the Hotel, it
has demonstrated that the Union coerced ATI into abandon-
ing its business with the Hotel. There are two particularly
objectionable aspects to the Union’s alleged conduct. First,
even after ATI president Roldan had told the Union twice,
once by phone and also in a heated, in-person meeting, that
he was not persuaded to aid their cause, delegates apparent-
ly snuck into ATI’s offices unobserved and dropped litera-
ture in its offices on several occasions. President Netza Rol-
dan testified that the Union was not given permission to en-
ter the office, and would have had to circumvent an elec-
tronic lock in order to enter. The Union has not provided an
innocent alternative explanation as to how its personnel en-
38 No. 13-1938
tered ATI’s offices. 3 Instead of accepting that their attempts
at persuasion had failed, at least for the time being, the Un-
ion arguably trespassed multiple times.
Second, Roldan testified that the Union threatened to at-
tend the tango festival in order to disrupt it. This testimony
is corroborated by the fact that Union organizer Jessica Law-
lor registered to attend the event. Moreover, Union delegates
allegedly threatened to confront ATI affiliates “and go to
their houses or companies.” Even if Roldan’s testimony on
this point turns on his credibility, such determinations are
appropriate only at trial. If his testimony is true, the Union’s
threat could easily be deemed coercive.
Other circumstances support an inference of coercion.
Union representatives allegedly called Roldan frequently;
one morning he was called every ten minutes for an hour.
Although phone calls are rarely coercive by themselves,
their frequency could indicate to a reasonable fact-finder
that the Union was interested in harassing Roldan rather
than communicating with him. Finally, according to Roldan,
his first meeting with a Union delegation was particularly
contentious, and he considered calling the police. Neverthe-
less, the Union persisted in contacting Roldan and threaten-
ing further action until he relented.
3 At oral argument the Union speculated that a delegate may have en-
tered through the secured door as an authorized person was walking in
or out. However, this must have occurred multiple times to account for
each of the literature drops Roldan identifies. Moreover, this explanation
would still not make it reasonable for a delegate to assume she had per-
mission to enter the ATI’s offices, especially after Roldan had already
met with the Union and refused to change his position.
No. 13-1938 39
The district court failed to make all inferences in the Ho-
tel’s favor when it noted that “Roldan scheduled a second
meeting” with the Union, and held that this decision “un-
dermines claims that [ATI] was coerced or threatened.” That
is certainly a permissible inference to draw. But one could
just as easily conclude that Roldan was intimidated into
meeting the Union in order to stop the coercive behavior de-
scribed above.
Also aiding the Hotel’s case is evidence that ATI suffered
a substantial economic blow in changing its venue. Roldan
testified that ATI spent $20,000 in marketing and other ex-
penses relating to the change of venue, and lost as much as
$40,000 in revenue due to a drop in participation. He also
estimated that ATI lost up to 60% of its membership follow-
ing the switch. ATI was a small, non-profit organization, so
it was likely poorly situated to absorb such damage to its fi-
nances and membership. One might therefore infer that ATI
felt its only choice was either to accept that serious penalty
or else face an even more substantial loss—or possibly ru-
in—at the hands of the Union.
The district court disregarded this evidence, reasoning
that “[a]t most, it can be inferred that the Union persuaded
ATI to make the change that led to its financial loss.” 939 F.
Supp. 2d at 883. But there is very little evidence in the record
that ATI was persuaded to make such a costly, last-minute
change in its venue because of its newfound devotion to the
cause of organized labor. There is certainly not enough evi-
dence to preclude a reasonable inference to the contrary.
Roldan testified that he felt “harassed” and “pressed” to
cancel ATI’s arrangements with the Hotel. Those are not the
words of a convert. He also recorded such impressions in
40 No. 13-1938
contemporaneous email exchanges with the Hotel express-
ing concern about the Union’s behavior. A reasonable jury
could conclude that the substantial financial and member-
ship loss ATI suffered was a testament to the level of coer-
cion brought against it.
The Union certainly could dispute Roldan’s account;
perhaps he capitulated where a reasonable person would
have continued to firmly decline the Union’s messaging. But
that determination is a quintessential question of fact that
must be determined at trial. At the very least, the small size
and non-profit nature of the tango festival indicates that
Roldan’s concerns could have been justified.
b. International Housewares Association (IHA)
Likewise, the district court erred in dismissing the claims
regarding IHA. According to the Hotel’s substantiated accu-
sations, the Union made several unwanted appearances at
IHA offices, and at one point IHA called the police. 4 This fi-
nally convinced the delegation to leave, but another one
came back later the same day. Union boycott coordinator
Jessica Lawlor even testified that a delegate walked past se-
curity to shout “shame on you!” to IHA president Phil
Brandl. IHA vice presidents Rampersad and Kurtis both tes-
tified that they were concerned that the Union would picket
4 The Union contends that the Hotel has described the February 2009
visit only through hearsay. But Kurtis was present at the office and ob-
served the delegation at the reception area. He also was the one who
called the police. He was competent to testify about his observations of
the delegation’s conduct and whether the delegates were welcome to
stay.
No. 13-1938 41
the IHA’s trade show and occupy busses running to it. Alt-
hough they did not testify that a delegation explicitly threat-
ened to do this, Union delegate Jennifer Blatz testified that
the Union had boarded RSNA busses in order to leaflet peo-
ple heading to a function. 5 These facts could persuade a rea-
sonable fact-finder that the Union planned to do the same to
IHA.
As with ATI, the district court improperly weighed com-
peting factual inferences on this issue and chose in favor of
the Union. The district court correctly identified the Hotel’s
case on this point to be a “closer question,” but relied on the
fact that Phil Brandl eventually met with the Union “volun-
tarily” to draw the inference that the two sides were reason-
ing with each other. 939 F. Supp. 2d at 878–79. Again, that is
one inference that could be drawn. But these facts could also
support the inference that IHA was desperate for the coer-
cion to stop and tried to negotiate a surrender. Rampersad
herself testified that she felt harassed and pressured by the
Union, not persuaded. And the fact that the eventual meet-
ing with the Union was held in the basement cafeteria, not in
Phil Brandl’s office, could also support the inference that
IHA was eager to keep the Union at bay. The district court
itself observed that “Lawlor told Rampersand [sic] that the
5 The Union notes that the Hotel’s complaint originally included a claim
seeking damages for the Union’s alleged conduct toward RSNA, and
that the Hotel later dropped the claim from its amended complaint. But
the testimony regarding those delegations is surely probative of the Un-
ion’s common plan for pressuring neutral organizations to abandon the
Hotel. A fact-finder might credit Rampersad’s and Kurtis’s fears that the
Union would board IHA busses given that a Union delegate has admit-
ted that the Union did just that to the RSNA.
42 No. 13-1938
Union had gone to the offices of IHA members, retailers, a
trade publication, and a restaurant, and advised her that it
‘would not stop’ as long as the IHA had a contract with the
Hotel.” Id. at 867.
Rampersad’s testimony regarding the Union’s delega-
tions to IHA’s affiliates and RSNA further supports an infer-
ence in the Hotel’s favor. The Union argues that we should
ignore the evidence concerning the affiliates, in part because
IHA decision-makers were not aware of most of those activi-
ties at the time they decided to cancel their arrangements
with the Hotel. But Rampersad testified that she was aware
of two incidents—one at an Ace Hardware store and another
at RSNA—at the relevant time. 6 Moreover, the remaining
incidents may be admissible as evidence of the Union’s
common plan with regard to the neutral site visits. A ration-
al jury could conclude that Union delegates were instructed
to trespass, disrupt business, and harass decision-makers.
Specifically, an RSNA official told Rampersad that six Union
officials entered RSNA’s offices and walked into department
meetings shouting an RSNA’s official’s name. According to a
Union delegate, a delegation sent to Macy’s was threatened
with arrest by the store manager. This is an important point.
The Hotel’s case relies heavily on testimony of its erstwhile
customers; the fact that a Union delegate provided corrobo-
ration as to the Union’s conduct provides significant support
to the Hotel’s case.
6 The Hotel does not have to rely on hearsay to establish these facts.
Rampersad testified that she had heard reports about some of the Un-
ion’s delegations to the affiliates, and Blatz’s testimony supports the in-
ference that those reports were true.
No. 13-1938 43
Even more support for the Hotel comes from the Union’s
leafleting of Rick Bayless’s restaurant. The district court is
correct that the leaflets’ content was literally true and pro-
tected speech. The fliers do not imply that his restaurants
failed inspection, and they accurately quote from publicly
available health reports. The Supreme Court has warned us
to be wary of circumscribing protected speech in an effort to
prevent unlawful labor activity. See DeBartolo Corp., 485 U.S.
at 575–88.
The Hotel responds that the handbills did not reference
the dispute between the Union and the Hotel, and therefore
they had minimal communicative effect. One of the basic
aims of the ban on secondary boycotting is to prevent labor
disputes from spilling over into unrelated disputes, such as
the quality of Rick Bayless’s restaurants. On balance, though,
we agree with the Union that the act of passing out fliers
with truthful content would not in itself constitute an unfair
labor practice.
However, the district court overlooked the testimony of
Jennifer Fite, the manager of the Frontera Grill, who stated
that Union delegates handed out the leaflets inside the res-
taurant after they had made numerous failed attempts to see
Bayless himself. This conduct could support an inference
that the Union committed trespass and harassed him. There-
fore, although the content of the fliers is likely protected, the
alleged means of disseminating them was quite different
from traditional handbilling, which occurs outside the prem-
ises. Handing out leaflets inside a restaurant seems much
more like an attempt to interfere with patrons’ enjoyment of
the establishment than an effort to persuade them of a cause.
When combined with the fact that the fliers contained no in-
44 No. 13-1938
formation regarding the strike, aside from a single web ad-
dress, we conclude that the conduct alleged by the Hotel is
not necessarily protected as a matter of law. 7 Even if IHA
did not know that Fite had allegedly seen handbilling within
the restaurant, as opposed to in front of it, the Union’s al-
leged trespass helped it apply pressure to Bayless, and the
IHA was well aware that he was being pressured. In other
words, if the delegation had stayed outside the restaurant,
perhaps Bayless and his management would have found it
easier to ignore.
It is also important to point out that the Union’s visits to
IHA’s exhibitors and Bayless’s restaurants in a sense consti-
tute tertiary labor activity. That is, the Union allegedly visit-
ed the affiliates and the restaurants to pressure IHA to cease
doing business with the Hotel. The link between those affili-
ates and restaurants, on the one hand, and the actual strike
against the Hotel on the other, is extremely attenuated. The
Union’s strategy essentially widened the labor dispute to in-
clude affiliates of customers of the Hotel. This is exactly the
sort of scorched-earth strategy that Section 158(b)(4)(ii)(B)
7 It is true, as the Union points out, that the Hotel did not suggest, in op-
posing summary judgment, that the problem with the fliers was their
method of distribution. However, the Hotel did mention Fite’s observa-
tion of a delegation “within” the Frontera Grill in its Rule 56.1 statement
of material facts. It also mentioned in its response to summary judgment
that a delegation went to one of the restaurants “at least three times”
demanding to see Bayless, and were rebuffed. We therefore find that the
issue of the Union’s physical presence at the restaurant, despite man-
agement’s stated opposition, was adequately raised before the district
court, even if the Hotel omitted one important detail of its argument.
No. 13-1938 45
was designed to avoid. Neutrals with only the most distant
connection to a struck employer must not be reduced to col-
lateral damage in a bruising labor battle. Congress has de-
cided that the damage to the economy caused by such a
broadened conflict is unacceptable.
The Hotel has not pointed to specific financial damage
IHA suffered in changing its room booking plans. Therefore,
unlike the case of ATI, the Hotel may struggle to prove that
the Union threatened IHA with substantial loss or ruin. But
the trade show was IHA’s signature event, and a reasonable
fact-finder could conclude that its potential disruption, com-
bined with harassment of IHA’s affiliates and repeated in-
cursions into its offices, might have threatened substantial
loss or ruin to the organization. Such an inference may not
be correct, but the Hotel should have the opportunity to
prove this point at trial.
c. Reed Exhibitions/Chicago Comic and Entertain-
ment Expo
A reasonable jury could conclude that the Union har-
assed Lance Fensterman during nine visits to different comic
book stores. He testified that the Union delegates told him
they would continue to follow him from store to store until
he gave in to their demands. Although Fensterman observed
that the delegates were polite, and the comic book stores
were open to the public, the repetitive nature of these visits
could reasonably be considered a form of harassment. We
agree that union delegations may approach management
and decision-makers at secondary businesses, but they can-
not do so nine times, after they have already made their
point. Such conduct arguably crosses the line between com-
munication intended to persuade and picketing.
46 No. 13-1938
Fensterman testified that as many as ten delegates en-
tered the store at one time, and that sometimes they out-
numbered the patrons. Some of them carried small signs of
protest. That behavior appears awfully similar to a picket,
albeit one that travelled with Fensterman and stood inside
the stores. 8 It would be reasonable for a jury to conclude that
the Expo’s business would suffer substantial loss if many of
its affiliated stores were frequented by Union delegations
whenever Fensterman showed up.
It is true that apparently no store owner called the police,
and Fensterman seems to have awkwardly tolerated their
repeated presence, even though he felt “incredibly uncom-
fortable.” But a coercive effect may be inferred by both his
testimony and his contemporaneous email to fellow deci-
sion-maker Ron Zobel: “I want to drop this contract [with
the Hotel]. I had strikers at all of my retail visits in Chicago
this week.” This email causally links the decision to break
with the Hotel to the “strikers” at the comic book retailers.
Fensterman testified that the goal of the delegates was to
“sen[d] a message that doing business with [Reed Exhibi-
tions] can be damaging to your business.” The potential eco-
nomic loss Reed faced is highlighted by the fact that it fa-
vored the Hotel because of its low rates, which was im-
portant to making the Expo attractive to potential customers.
Again, it is plausible that the delegations’ presence was just
a minor annoyance, nothing more. But such theories are best
pursued at trial.
8 For the reasons we have explained, the fact the delegations went inside
the stores distinguishes these activities from bannering, whereby the Un-
ion may set up attended banners outside certain neutral targets.
No. 13-1938 47
We note that, like the IHA affiliates, the comic book re-
tailers visited by the Union were neither the primary em-
ployer (the Hotel), or a secondary organization (Reed Exhibi-
tions). Rather, they were arguably tertiary businesses whose
relationship to the Hotel was extremely attenuated. The Un-
ion put pressure on them so that they would place pressure
on Reed Exhibitions, who would in turn complain to the Ho-
tel. Again, federal labor law is designed to balance the Un-
ion’s legitimate right to publicize a strike with the danger of
economic harm to uninvolved neutrals. The Union’s alleged
conduct threatens that balance.
III. Conclusion
Stepping back from our extended discussion of the facts
of this case, we must note the common theme connecting the
Hotel’s claims regarding ATI, IHA and Reed Exhibitions. In
none of these instances were the relevant decision-makers
persuaded to join the Union’s cause. Each one testified that
he or she felt worried about what would happen to their or-
ganizations if they defied the Union. Federal labor law per-
mits unions to distribute handbills and leaflets at a second-
ary organization, even though that neutral entity may suffer
economic loss, because those efforts depend “entirely on the
persuasive force of the idea.” Safeco, 447 U.S. at 619 (Stevens,
J., concurring); see DeBartolo Corp., 485 U.S. at 580 (“The loss
of customers … is the result of mere persuasion.”). A neutral
suffers only if customers are persuaded. Here, the Union is
alleged to have skipped persuasion and instead simply inter-
fered with the inner workings of three neutral entities. That
is why this case must go to trial.
Having found that at least some of the Hotel’s accusa-
tions can go forward, we emphasize that the Hotel still bears
48 No. 13-1938
the burden of proving every element of its coercion claims. If
the Hotel can prove only that the Union engaged in protect-
ed First Amendment activity—not trespass, harassment, and
the like—the Union would be entitled to a judgment as a
matter of law. Similarly, if the Hotel fails to show that the
Union’s conduct was intentionally coercive, or causally re-
lated to the Hotel’s damages, it will not prevail as a matter of
fact. We do not think deciding factual issues related to coer-
cion will be difficult; trials routinely resolve questions of
whether certain conduct is threatening or extortionate. If this
case goes to a jury, the court may instruct based on the ele-
ments we have discussed. These and all related issues we
leave for the district court to resolve in the first instance. The
order granting the Union summary judgment is REVERSED,
and the case is REMANDED to the district court for further
proceedings consistent with this opinion.