Overstreet v. United Brotherhood of Carpenters & Joiners, Local Union No. 1506

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNELE A. OVERSTREET, Regional 
Director for Region 28 of the
National Labor Relations Board,
for and on behalf of the National
No. 03-56135
Labor Relations Board,
Petitioner-Appellant,
 D.C. No.
CV-03-00773-NAJ
v.
OPINION
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF
AMERICA, LOCAL UNION NO. 1506,
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
March 2, 2004—Pasadena, California
Filed June 8, 2005
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Kleinfeld
6547
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6551
COUNSEL
Robert Oddis (argued), Arthur F. Rosenfeld, John E. Higgins,
Jr., Barry J. Kearney, Judith I. Katz, Aaron N. Karsh, and
Robert N. Oddis (on the briefs), National Labor Relations
Board, Washington, D.C., for the petitioner-appellant.
Gerald V. Selvo, DeCarlo, Connor & Selvo, Los Angeles,
California, for the respondent-appellee.
OPINION
BERZON, Circuit Judge:
The National Labor Relations Board (“NLRB” or “the
Board”) Regional Director, Cornele Overstreet, seeks to
enjoin members of a building trades union from holding aloft
large banners announcing a “labor dispute.” The banners are
located so that they are visible to customers of businesses that
deal with certain contractors who do not have union contracts.
While the banners are displayed, other union members distrib-
ute handbills that explain the “labor dispute.” The questions
before us involve interpretation of the National Labor Rela-
tions Act (“the NLRA” or “the Act”), 29 U.S.C. § 151 et seq.,
set against the backdrop of First Amendment concerns raised
by the request to enjoin peaceful speech activity. We conclude
6552 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
that the district court correctly declined to issue the injunc-
tion.
I. Background
For several years, the United Brotherhood of Carpenters
and Joiners of America, Local Union Number 1506 (“the Car-
penters”) have had a labor dispute with three contracting com-
panies — Brady Company/San Diego (“Brady”), Precision
Hotel Interiors (“Precision”), and E&K Arizona (“E&K”).
The Carpenters object to those companies’ employment of
non-union employees and their alleged failure to meet local
labor standards — especially wage standards — on construc-
tion projects in the Phoenix, Los Angeles, and San Diego met-
ropolitan areas.
The Carpenters decided to try to induce Brady, Precision,
and E&K to change their labor practices, by influencing the
contracting practices of some companies (“the Retailers”1)
that do business with them. The Carpenters sent the Retailers,
also located in or around Phoenix, Los Angeles, and San
Diego, letters promising an “aggressive public information
campaign against [Brady, Precision, or E&K],” including
“highly visible banner displays” at the Retailers’ places of
1
These companies include retailers and general contractors who hired
Brady, Precision, or E&K on various construction projects. The majority
of these companies are retailers, and we will refer to them by that short-
hand.
The Retailers are so situated that the parties and the district court refer
to them as “secondaries” or “secondary businesses,” consistent with the
tradition in labor law of so referring to employers other than those whose
own labor relations policies a union seeks to change. See Howard Lesnick,
The Gravamen of the Secondary Boycott, 62 COLUM. L. REV. 1363, 1364
(1962) (noting common understanding that § 8(b)(4) of the NLRA governs
union actions related to “secondary” but not “primary” businesses). The
term “secondary” does not appear in the Act, see 29 U.S.C. §§ 151-169,
and has taken on a talismanic significance that sometimes obscures rather
than advances useful legal analysis. We therefore use the term sparingly.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6553
business. The letters urged the Retailers “to not allow [Brady,
Precision, or E&K] to perform any work on any of your proj-
ects unless and until it generally meets area labor standards.”
Taking this step, the letters said, would “provide the greatest
protection against your firm becoming publicly involved in
this dispute.”
When the Retailers did not respond, the Carpenters decided
to protest at the site of eighteen Retailers that continued to
contract with Brady, Precision, or E&K. Near each Retailer
but one,2 the Carpenters set up a four foot by fifteen foot ban-
ner that read “SHAME ON [NAME OF RETAILER]” in
large red letters, with the words “LABOR DISPUTE” in
somewhat smaller black letters on either side of that text. No
other words or images appeared on the banners. Individual
union members held the banners anywhere from twenty to
several hundred feet from the Retailers’ entrances. The mem-
bers also distributed handbills to passing pedestrians, explain-
ing the nature of the “labor dispute.” The handbills specified
that their underlying complaint was with Brady, Pecision, and
E&K, and that the Carpenters believed that by using the ser-
vice of those three contractors the Retailers were aiding them
in undermining regional labor standards.
The Carpenters placed the banners on public sidewalks,
facing away from the Retailers. In the vast majority of cases,
the Carpenters placed the banners at a significant distance —
scores if not hundreds of feet — away from the Retailers’
entrances. The Carpenters generally placed the banners to be
as visible as possible to passing motorists and other members
of the public. There is no indication that the banners were
directed at employees of the Retailers, or that any employee
declined to work on account of the banners. At no point did
the Carpenters block the entrances to the Retailers or directly
confront individual customers of those businesses through
2
Outside one Retailer, a restaurant, the banner read, “DON’T EAT AT
ANTHONY’S FISH GROTTO.”
6554 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
chants, shouts, or any other means. The Carpenters, instead,
remained generally stationary and quiet throughout their ban-
nering activity.
One of the Retailers, Artisan Homes, Inc., responded to the
Carpenters’ banner with a banner posted on their work site
that read: “We Support Our Subcontractors! It’s a Right to
Work State . . . Shame on Carpenters Local Union 1506.”
(Ellipsis in original).
E&K and two of the Retailers — Associated General Con-
tractors of America (“AGC”) and Westin Bonaventure Hotel
(“Westin”) — filed charges with the NLRB against the Car-
penters, alleging that the union’s bannering activities3 consti-
tuted unfair labor practices in violation of § 8(b)(4)(ii)(B) of
the Act, 29 U.S.C. § 158(b)(4)(ii)(B).4 After the NLRB Gen-
eral Counsel issued a complaint against the Carpenters under
§ 10(b) of the Act, 29 U.S.C. § 160(b), Overstreet filed a peti-
tion in the United States District Court for the Southern Dis-
3
E&K and AGC’s complaints specified only the Carpenters’ bannering,
not the union’s handbilling. Westin’s complaint specified both activities,
but all parties subsequently focused exclusively on the bannering.
4
Section 8 of the NLRA, 29 U.S.C. § 158, reads, in relevant part:
(b) It shall be an unfair labor practice for a labor organization or
its agents . . . (4) . . . (ii) to threaten, coerce, or restrain any per-
son engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is . . . (B) forcing or requir-
ing any person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, proces-
sor, or manufacturer, or to cease doing business with any other
person, or forcing or requiring any other employer to recognize
or bargain with a labor organization as the representative of his
employees unless such labor organization has been certified as
the representative of such employees under the provisions of sec-
tion 159 of this title: Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where not other-
wise unlawful, any primary strike or primary picketing.
29 U.S.C. § 158(b)(4)(ii)(B).
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6555
trict of California, pursuant to § 10(l) of the Act,5 29 U.S.C.
§ 160(l), seeking injunctive relief barring the Carpenters’ ban-
nering activity pending the NLRB’s final resolution of the com-
plaint.6 Overstreet argued that the bannering violates
§ 8(b)(4)(ii)(B) of the Act because the visibility of the banners
to customers — even those banners placed several hundred
feet from the entrances of the Retailers — makes the banner-
ing “picketing,” and, in the alternative, because the banners
include a fraudulent claim — that there is a “labor dispute”
with the Retailer — and therefore constitute economic coer-
cion.
The district court denied the petition in a decision issued on
May 7, 2003. The district court noted that the Carpenters do
not block access to the Retailers’ entrances, nor do the union
members patrol areas near the Retailers’ places of business or
initiate any verbal interactions with the public. The court con-
cluded that “[t]he bannering activity lacks the confrontational,
sometimes intimidating conduct associated with traditional
picketing.” Further, the district court ruled, because the Car-
penters believes that the Retailers’ decision to do business
5
Section 10(l) of the NLRA, 29 U.S.C. § 160(l), reads, in relevant part:
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(A), (B), or (C)
of section 158(b) of this title . . . the preliminary investigation of
such charge shall be made forthwith . . . . If, after such investiga-
tion, 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 United States district court within any district where
the unfair labor practice in question has occurred, is alleged to
have occurred, or wherein such person resides or transacts busi-
ness, for appropriate injunctive relief pending the final adjudica-
tion of the Board with respect to such matter. Upon the filing of
any such petition the district court shall have jurisdiction to grant
such injunctive relief or temporary restraining order as it deems
just and proper, notwithstanding any other provision of law . . . .
6
Overstreet’s petition does not mention the Carpenters’ handbills and
did not seek an injunction against that activity.
6556 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
with Brady, Precision, and E&K contributes to the erosion of
labor standards, the union does, in fact, have a “labor dispute”
with the Retailers, so the banners are not fraudulent or mis-
leading.
The NLRB consolidated the General Counsel’s administra-
tive complaint against the Carpenters with complaints regard-
ing similar activities involving other Carpenters locals. The
matter was tried before an Administrative Law Judge (“ALJ”)
in January 2003. The ALJ issued her decision on May 9,
2003, ruling in the complainants’ favor.7 The ALJ asserted
that “[a]ctivity short of a traditional picket line that signals
neutrals that sympathetic action on their part is desired by the
union is regarded as signal picketing,” and concluded that the
Carpenters’ bannering constituted “picketing.” The ALJ fur-
ther ruled that (1) the Carpenters intended this picket as a
means to coerce the Retailers to cease doing business with
7
The ALJ issued her decision just after the district court entered its
order, so her decision is not part of the record before us. The ALJ’s ruling,
however, is an adjudicative fact, and neither its existence nor its contents
are disputed. We therefore take judicial notice of it pursuant to Federal
Rule of Evidence 201. See Transmission Agency v. Sierra Pac. Agency
Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002).
Since the ALJ decision in this case, four ALJs have concluded that
§ 8(b)(4)(ii)(B) does not prohibit similar bannering activities, while one
has agreed with the ALJ in this case that § 8(b)(4)(ii)(B) does do so. Com-
pare United Bhd. of Carpenters & Joiners of Am., Locals 184 & 1498
(Grayhawk Dev., Inc.), 2005 NLRB Lexis 17 (Jan. 13, 2005); United Bhd.
of Carpenters & Joiners of Am., Local Union No. 1506 (Sunstone Hotel
Investors), 2005 NLRB Lexis 5 (Jan. 6, 2005); S.W. Reg’l Council of Car-
penters (New Star Gen. Contractors) 2004 NLRB Lexis 660 (Nov. 12,
2004); S.W. Reg’l Council of Carpenters (Covi Concrete Constr., Inc.),
2004 NLRB Lexis 74 (Feb. 18, 2004); with S.W. Reg’l Council of Carpen-
ters (Held Props., Inc.), 2004 NLRB Lexis 159 (Apr. 2, 2004). Two dis-
trict courts have followed the district court in this case in refusing
Regional Directors’ requests for injunctive relief in similar cases. See Ben-
son v. United Bhd. of Carpenters & Joiners of Am., Locals 184 & 1498,
337 F. Supp. 2d 1275 (D. Utah 2004); Kohn v. S.W. Reg’l Council of Car-
penters, 289 F. Supp. 2d 1155 (C.D. Cal. 2003). The NLRB has yet to rule
in any of the cases.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6557
Brady, Precision, and E&K; and (2) the words “labor dispute”
in conjunction with naming the Retailers could only have
“conveyed to viewers, including customers and suppliers, . . .
that [the Carpenters] had primary labor disputes with the
[Retailers] named on the banners.” The ALJ concluded,
finally, that distributing explanatory handbills did not mitigate
the message of the banners, because the banners were directed
in some measure at passing motorists while only pedestrians
received handbills. Accordingly, the ALJ found that the Car-
penters’ bannering activities violated § 8(b)(4)(ii)(B) and rec-
ommended that the NLRB order the Carpenters to cease and
desist its bannering.
The Carpenters had argued to the ALJ that its bannering
constituted “pure speech,” which could not be constitutionally
enjoined and does not fall within the Act’s prohibitions. The
ALJ did not respond to these arguments, except to say that
because the bannering was “picketing,” it fell outside the
boundaries of the Supreme Court’s First Amendment cases.
The Carpenters appealed the ALJ’s ruling to the NLRB. On
June 27, 2003, Overstreet filed this appeal of the district
court’s ruling.
II. Section 10(l) injunction standards
We review a grant or denial of a § 10 injunction for abuse
of discretion. The district court abuses its discretion if it relies
on a clearly erroneous finding of fact or an erroneous legal
standard. Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 455 (9th
Cir. 1994) (en banc). We review the legal standards applied
by the district court de novo. Id.
[1] The district court, relying on Nelson v. International
Brotherhood of Electrical Workers, Local Union No. 46, 899
F.2d 1557 (9th Cir. 1990), asked whether Overstreet had “rea-
sonable cause” to believe that the Carpenters had violated
§ 8(b)(4)(ii)(B). Under Nelson, a “district court may find ‘rea-
6558 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
sonable cause’ where the factual allegations and propositions
of law underlying the Regional Director’s petition are not
insubstantial and frivolous.” Id. at 1560 (quotation and cita-
tions omitted). Overstreet argues that the district court erred
by failing to find reasonable cause under this generous stan-
dard.
[2] In so arguing, Overstreet assumes that Nelson remains
the governing standard. Miller, however, decided en banc and
later than Nelson, concluded that ordinary standards govern-
ing the issuance of injunctions, not a special standard highly
deferential to the Regional Director, govern petitions for
injunctions under § 10(j) of the Act, 29 U.S.C. § 160(j),
another NLRA provision permitting preliminary injunctive
relief for alleged violations of the Act. We must first decide,
consequently, whether Miller effectively overruled the Nelson
§ 10(l) standard. Evaluating the standards for granting an
injunction under § 10(l) of the Act for the first time since we
decided Miller, we hold that Miller overruled Nelson, and that
we should apply the Miller standard here.8
A. Miller & “reasonable cause”
Miller involved § 10(j) of the Act,9 an injunctive provision
8
Ordinarily, a three-judge panel “may not overrule a prior decision of
the court.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
When “intervening higher authority” is irreconcilable with a prior decision
of this court, however, “a three-judge panel of this court . . . should . . .
reject the prior opinion of this court as having been effectively overruled.”
Id. at 900. “Intervening higher authority” includes intervening en banc
decisions. See Cerrato v. San Francisco Cmty. College Dist., 26 F.3d 968,
972 n.15 (9th Cir. 1994) (intervening “en banc reversal” requires rejection
of past decision); United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001)
(same). As we explain, we reject Nelson for precisely this reason.
9
Section 10(j) of the Act provides:
The Board shall have power, upon issuance of a complaint as
provided in subsection (b) of this section charging that any per-
son has engaged in or is engaging in an unfair labor practice, to
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6559
in many respects similar to § 10(l), and noted that both sec-
tions are designed “to alleviate the threat that delay in the
Board’s processing of unfair labor practice complaints would
otherwise pose to the NLRA’s remedial goals.” Miller, 19
F.3d at 455. Section 10(j), however, applies to any alleged
unfair labor practice as to which the NLRB General Counsel
has issued a complaint, while § 10(l) applies only to alleged
violations of §§ 8(b)(4)(A), (B), or (C), 8(b)(7), or 8(e). See
29 U.S.C. §§ 160(j) & 160(l). Also, Board officials must peti-
tion for a § 10(l) injunction whenever it has “ ‘reasonable
cause’ to believe that specific violations of the NLRA (such
as secondary boycotts and certain types of illegal picketing)
have occurred.” Miller, 19 F.3d at 455. (quoting 29 U.S.C.
§ 160(l)). No such mandatory obligation exists for § 10(j)
injunctions; instead, the Board has discretion as to whether to
seek pre-decision injunctive relief. Id. at 456. No reason
occurs to us, however, why the distinction between a manda-
tory and discretionary application for an injunction should
affect the courts’ standard for determining whether to grant an
injunction applied for, and the parties have suggested none.
There is one additional difference between § 10(j) and
§ 10(l) to which Overstreet would have us accord signifi-
cance: Section 10(l) has “reasonable cause” language, while
§ 10(j) does not. This distinction, however, was noted in Mil-
ler, and its significance to the question at hand discounted. As
Miller explained, § 10(l)’s “reasonable cause” language,
which gave rise to the Nelson test, “has to do with the Board’s
petition any United States district court, within any district
wherein the unfair labor practice in question is alleged to have
occurred or wherein such person resides or transacts business, for
appropriate temporary relief or restraining order. Upon the filing
of any such petition the court shall cause notice thereof to be
served upon such person, and thereupon shall have jurisdiction to
grant to the Board such temporary relief or restraining order as
it deems just and proper.
29 U.S.C. § 160(j).
6560 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
own obligations under the Act — not with a constraint on the
equitable powers of the district court [to grant or deny an
injunction] once its jurisdiction has been properly invoked.”
Miller, 19 F.3d at 456. In other words, the “reasonable cause”
language is simply a “hurdle for the Board to jump over
before petitioning the court for interim relief.” Id.
Miller’s description of “reasonable cause” as governing the
administrative decision to petition for injunctive relief, not the
judicial decision whether to grant it, reflects the plain lan-
guage of § 10(l). That statute refers to “reasonable cause” as
a consideration that an NLRB official must make: “If, after
such [preliminary] investigation, the officer or regional attor-
ney to whom the matter may be referred has reasonable cause
to believe such charge is true and that a complaint should
issue, he shall” file a petition seeking an injunction against the
suspected unfair labor practice. 29 U.S.C. § 160(l) (emphasis
added). This language says nothing about how a district court
should evaluate the petition once filed. Regarding judicial
consideration of such petitions, §§ 10(j) and 10(l) are identi-
cal: Both state that a district court “shall have jurisdiction to
grant” injunctive relief “as it deems just and proper.”
§§ 160(j) & (l).10
[3] Accordingly, we hold that after Miller, the Nelson “rea-
sonable cause” test no longer applies. Rather, the “reasonable
10
Overstreet’s argument against applying Miller to § 10(l) relies on pre-
Miller or out-of-circuit cases. Since we decided Miller, only one circuit
appears to have issued an opinion regarding a § 10(l) injunction in line
with the “not insubstantial and frivolous” test of Nelson. See Pye v. Team-
sters Local Union 122, 61 F.3d 1013, 1020 (1st Cir. 1995) (instructing
courts to determine if NLRB Regional Director has met “modest” burden
imposed by “reasonable cause” provision). Some earlier cases in other cir-
cuits were also consistent with Nelson’s reasonable cause standard. See,
e.g., Kinney v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO, 994
F.2d 1271, 1278 (7th Cir. 1993) (applying “narrow” reasonable cause
inquiry). As Miller makes Nelson inapplicable here, it also makes cases
consistent with Nelson’s approach inapplicable.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6561
cause” language sets a standard Board officials must meet
before petitioning courts for an injunction. Courts, in contrast,
are to evaluate those petitions using the “just and proper”
standard.
B. Miller and “just and proper”
As noted, § 10(j), the statute at issue in Miller, and § 10(l),
the statute at issue here, include the same “just and proper”
language governing a district court’s determination whether to
issue an injunction. When the same language occurs in two
closely related sections of a single statute, it strongly suggests
that the language has the same meaning in both sections. See
Mertens v. Hewitt Assocs., 508 U.S. 248, 260 (1993). Addi-
tionally, Miller’s description of the two provisions’ similar
purpose, see 19 F.3d at 455, suggests that “just and proper”
has the same meaning in both provisions. We see no reason
why Miller should not govern with regard to the application
of the “just and proper” standard under § 10(l), just as it does
under § 10(j), and conclude that it does.
Under Miller, the “just and proper” standard invokes the
same “equitable” standards “conventional[ly]” applied in pre-
liminary injunction cases generally. Id. at 458 (“ ‘[J]ust and
proper’ is another way of saying ‘appropriate’ or ‘equita-
ble.’ ”). As such, the “just and proper” standard “reflects an
intention that the district court will exercise judgment rather
than simply sign off on Board requests.”11 Id.
[4] District courts exercise discretion regarding preliminary
injunctions by focusing on a familiar set of four equitable fac-
tors: the movant’s likelihood of success on the merits; the
possibility of irreparable injury to the moving party; the
extent to which the balance of hardships favors each party;
11
This holding expressly rejected an argument to the contrary that the
NLRB made in reference to both § 10(j) and § 10(l), see Miller, 19 F.3d
at 458, further confirming that Miller’s holding applies in this case.
6562 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
and whether the public interest will be advanced by granting
the preliminary relief. See id. at 456. Under our preliminary
injunction precedents, a moving party must show either “a
combination of probable success on the merits and the possi-
bility of irreparable harm” or “serious questions going to the
merits, the balance of hardships tipping sharply in its favor,
and at least a fair chance of success on the merits.” Id. (citing
Senate of Cal. v. Mosbacher, 968 F.2d 974, 977 (9th Cir.
1992)). At “an irreducible minimum, the moving party must
demonstrate a fair chance of success on the merits.” Id. at 460
(quotation and citation omitted). As Miller holds that these
standards apply under § 10(j) and we have concluded that
Miller governs here, these same general standards apply, as
“an irreducible minimum,” to requests for § 10(l) injunctions.
To say that Miller applies to this case does not, however,
fully delineate the applicable standards for judging the propri-
ety of the requested interim relief in this case. Miller stated
that when, as is usually the case, the NLRB’s ultimate “deter-
mination on the merits will be given considerable deference,”
the district court in a § 10(j) proceeding “should evaluate the
probabilities of the [General Counsel] prevailing in light of
the fact that ultimately, the Board’s determination on the mer-
its will be given considerable deference.” Id. On that basis
Miller concluded that “the Board can make a threshold show-
ing of likelihood of success by producing some evidence to
support the unfair labor practice charge, together with an
arguable legal theory,” and, if likelihood of success is thus
established, “presume irreparable injury” to the Board. Id.
As we explain later, however, because of the First Amend-
ment backdrop in this case, ordinary principles of deference
to Board interpretation of the Act do not apply here.12 The
12
As noted, the Carpenters appealed the ALJ ruling against them to the
NLRB. We have no means of determining what the Board will decide in
this case. That the General Counsel issued a complaint and an ALJ ruled
in favor of the General Counsel by no means foreordains the Board’s deci-
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6563
logical derivative of the Miller principle that likelihood of
success should be adjudged with deference to the NLRB in
mind where such deference will ultimately be applicable on
the merits is the converse principle that, where, as here, judi-
cial review of the NLRB’s final decision will not incorporate
the ordinary level of deference, the district court should
sion. See Richard B. Lapp, A Call for a Simpler Approach: Examining the
NLRA’s Section 10(j) Standard, 3 U.PA. J. LAB. & EMP. L. 251, 291 (not-
ing that in cases involving petitions for injunctions, “it is not uncommon
for the Board to overturn an ALJ decision that found in favor of the Gen-
eral Counsel”) (quotation and citation omitted).
It is unclear whether Miller’s incorporation of a deference principle
applies in a § 10(l) case, because of a further difference between § 10(j)
and § 10(l). The Board itself determines whether to file a § 10(j) petition,
in its discretion. See 29 U.S.C. § 160(j); OFFICE OF GENERAL COUNSEL,
NATIONAL LABOR RELATIONS BOARD, ELECTRIC REDACTED SECTION 10(J)
MANUAL USER’S GUIDE 14 (2002), http://www.nlrb.gov/nlrb/legal/manuals/
Redacted%2010(J)%20Manual%205.0%20reduced.pdf (noting that NLRB
staff may file a § 10(j) petition “[i]f the Board authorizes § 10(j) proceed-
ings”) (last visited 24 Apr. 2005). One might presume from the Board’s
decision to file a § 10(j) petition that if the facts are found to be as pro-
jected in the petition, the Board will decide the case consistently with the
petition. In contrast, neither the statute nor the Board’s own internal guid-
ance specifies a role for the Board itself in deciding whether to file a
§ 10(l) petition. Instead, regional officers determine whether to file a
§ 10(l) petition “on behalf of the board.” 29 U.S.C. § 160(l); see also OFFICE
OF GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, 10200-10248
Statutory Priority: Sections 10(l) and 10(k)—CC, CD, CE, and CP Cases,
http://www.nlrb.gov/nlrb/legal/manuals/SECTION%2010%20L%20
10200%2010248.pdf (instructing regional offices to, with General Coun-
sel guidance, file § 10 (l) petitions as soon as reasonable cause is found,
without reference to the Board) (last visited 24 Apr. 2005). The filing of
a § 10(l) petition, unlike the filing of a § 10(j) petition, therefore, suggests
nothing about how the Board will ultimately resolve the case.
As we hold that this case’s First Amendment backdrop prevents us from
taking into account any ultimate deference to the Board in reviewing
Overstreet’s application for § 10(l) relief, we need not determine whether
or how we would generally apply, under § 10(l), Miller’s comment regard-
ing the significance in § 10(j) proceedings of future deference to the
Board’s ultimate position.
6564 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
decide likelihood of success on legal issues as it would in a
non-NLRB case, without factoring in any special NLRB defer-
ence.13 While the “irreducible minimum,” then, remains that
Overstreet must establish a “fair chance of success on the
merits,” Miller, 19 F.3d at 460, the likelihood of success stan-
dard applicable to this case is somewhat higher than in Miller,
as we do not assume deference to the Board’s ultimate con-
clusion.
Although the district court erred by asking whether Over-
street had “reasonable cause” to file his petition rather than
whether granting an injunction would be “just and proper,”
we need not remand for consideration under the correct stan-
dard. The “not insubstantial and frivolous” Nelson standard,
899 F.2d at 1560, is a significantly lower bar for Overstreet
to meet than the “irreducible minimum” showing of a “fair
chance of success on the merits,” Miller, 19 F.3d at 460, espe-
cially as evaluated without any deference to the Board.
Because the district court found that Overstreet failed to meet
the Nelson standard, it necessarily found that Overstreet failed
to meet the standard of likelihood of success applicable here.
The upshot is that if we agree with the district court’s assess-
ment of the merits — as we do — then we must affirm.
13
Further, where, as here, there is at least some risk that constitutionally
protected speech will be enjoined, only a particularly strong showing of
likely success, and of harm to the defendant as well, could suffice. See
Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir.
2002) (noting the “significant public interest in upholding First Amend-
ment principles,” thus requiring an especially strong showing on other pre-
liminary injunction prongs); cf. San Antonio Cmty. Hosp. v. S. Cal. Dist.
Council of Carpenters, 125 F.3d 1230, 1233-34 (9th Cir. 1997) (requiring
particularly close review of preliminary injunction cases implicating the
First Amendment “so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression”) (internal
quotation and citation omitted).
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6565
III. Likelihood of success on the merits
The Carpenters maintains that its bannering is fully pro-
tected by the First Amendment, so that any injunction requir-
ing them to take down the signs would be unconstitutional. If
this contention is colorable — and we conclude that it is —
then the deference courts owe to the Board with regard to the
interpretation of the NLRA is at its nadir. We therefore begin
by explaining why that is so. We next inquire into the strength
of the Carpenters’ First Amendment arguments. With the
necessity for constitutional caution established, we then con-
sider in detail why Overstreet has little likelihood — not even
a “fair chance” — of succeeding in showing that
§ 8(b)(4)(ii)(B) prohibits the Carpenters’ bannering activity.
A. Catholic Bishop, DeBartolo & constitutional
avoidance
[5] In interpreting the NLRA, as in interpreting other stat-
utes, we must consider at the outset whether a proposed con-
struction of the Act “would give rise to serious constitutional
questions.” NLRB v. Catholic Bishop of Chicago, 440 U.S.
490, 501 (1979). “If so, we must first identify the affirmative
intention of the Congress clearly expressed before concluding
that the Act” creates a constitutional quandary. Id. (quotation
omitted). It bears emphasis that in making this inquiry, we
need not decide whether the First Amendment does protect
the Carpenters’ bannering, or even whether it probably does.
Rather, “we make a narrow inquiry whether [granting Over-
street’s request for an injunction] presents a significant risk
that the First Amendment will be infringed.” Id. at 502.
Our need to avoid creating a “significant risk” to the First
Amendment affects both how we proceed to interpret the stat-
ute at issue and the degree to which we take into account
Overstreet’s view of the statute. “[W]here an otherwise
acceptable construction of a statute would raise serious consti-
tutional problems, the Court will construe the statute to avoid
6566 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
such problems unless such construction is plainly contrary to
the intent of Congress.” Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) (“DeBartolo”).14 Moreover, because constitutional
decisions are not the province of the NLRB (or the NLRB’s
Regional Director or General Counsel), the tasks of evaluat-
ing the constitutional pitfalls of potential interpretations of the
Act and of interpreting the Act to avoid those dangers are
committed de novo to the courts. Cf. id. at 574-75 (refusing
to accord deference to the NLRB’s interpretation of § 8(b)(4)
because of need to avoid First Amendment concerns absent
clear congressional intent).
In DeBartolo, the NLRB had interpreted the Act to prohibit
union handbills urging customers to avoid patronizing a mall,
because one of the mall’s tenants was using a non-union con-
tractor to build its store. Id. at 570. After considering at some
length, but not deciding, the union’s free speech arguments,
the Court concluded that adjudicating the assertions “would
require deciding serious constitutional issues.” Id. at 576. The
Court therefore went on to “independently inquire whether
there is another interpretation, not raising these serious consti-
tutional concerns, that may fairly be ascribed to
§ 8(b)(4)(ii)(B).” Id. at 577 (emphasis added).
In addition to affecting the degree of deference accorded
the Board, the underlying free speech issues influenced the
Court’s decision in DeBartolo in a second way: Because of
the constitutional concerns, the Court went on to interpret
§ 8(b)(4)(ii)(B) narrowly, holding that the statute’s “ ‘nonspe-
cific, indeed vague’ ” terms — providing that unions may not
“threaten, coerce, or restrain any person,” 29 U.S.C.
14
DeBartolo reached the Supreme Court twice. See Edward J. DeBar-
tolo Crop. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568 (1988); Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147 (1983).
Because we refer only to the Court’s second opinion in this case, we do
not differentiate between the Court’s first and second opinions.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6567
§ 158(b)(4)(ii)(B) — “should be interpreted with ‘caution’
and not given a ‘broad sweep.’ ” DeBartolo, 485 U.S. at 578
(quoting NLRB v. Drivers, 362 U.S. 274, 290 (1960)); see
also BE&K Constr. Co. v. NLRB, 536 U.S. 516, 535-36
(2002) (describing DeBartolo as case in which Court found
that “the statutory provisions and their legislative history indi-
cate[ ] no clear intent to reach” the asserted unfair labor prac-
tice and so “simply read the statute not to cover it, thereby
avoiding the First Amendment question altogether”) (citing
DeBartolo, 485 U.S. at 578-88).15
Applying these precepts, we turn first to the question
whether interpreting the Act to prohibit the Carpenters’ ban-
nering activity would pose a “significant risk” of sanctioning
a violation of the First Amendment. Catholic Bishop, 440
U.S. at 502. If so, then the position of the NLRB is not enti-
tled to special consideration. DeBartolo, 485 U.S. at 574-75.
Instead, in that circumstance, the Carpenters could be held to
have committed an unfair labor practice only if the statute
clearly prohibits the union’s conduct. BE&K Constr., 536
U.S. at 535-36. Overstreet has no “fair chance” of so demon-
strating. Miller, 19 F.3d at 456.
B. Secondary picketing and the First Amendment
The Supreme Court has addressed the interaction between
the First Amendment and § 8(b)(4)(ii)(B) most directly in two
cases, NLRB v. Retail Store Employees Union, Local 101, 447
U.S. 607 (1980) (“Safeco”), and DeBartolo.16 In Safeco,
15
BE&K applied this rule to another portion of the statute, refusing to
read § 8(a)(1) so broadly as to create constitutional questions about its
application to the pursuit of non-frivolous lawsuits. Nothing in the statute
suggested that it “must be read” to reach such actions, the Court con-
cluded. 485 U.S. at 536.
16
The Supreme Court’s approach to the interaction between the First
Amendment and 8(b)(4)(ii)(B) accords with its treatment of the Amend-
ment’s interaction with other portions of the Act. See BE&K, 536 U.S. at
535-36 (considering impact on the First Amendment’s right to petition in
rejecting an interpretation of § 8(a)(1) that would have prohibited pursuit
of non-frivolous lawsuits as retaliation for union organizing efforts).
6568 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
unions having a labor dispute with an insurance company
picketed outside insurance agencies that sold that company’s
insurance policies, urging customers to boycott those policies.
Id. at 609. The Court held that § 8(b)(4)(ii)(B) prohibited the
union’s picketing, but gave varying explanations for why this
prohibition did not infringe on the union’s free speech rights.
Justice Stevens’ Safeco concurrence, rather than Justice
Powell’s plurality opinion, provided the rationale for prohibit-
ing secondary picketing consistent with the First Amendment
that a majority of the Court eventually adopted. Picketing is
susceptible to constitutional regulation, Justice Stevens wrote,
because it “is a mixture of conduct and communication. In the
labor context, it is the conduct element rather than the particu-
lar idea being expressed that often provides the most persua-
sive deterrent to third persons about to enter a business
establishment.” Safeco, 447 U.S. at 619 (Stevens, J., concur-
ring). The physical conduct of picketing “involves patrol of
a particular locality” and the mere “presence of a picket line”
induces certain actions — namely, refusing to cross that line.
Id. (emphasis added, quotation and citation omitted).
[6] The DeBartolo Court adopted and elaborated upon Jus-
tice Stevens’ explanation. DeBartolo noted that “picketing is
qualitatively different from other modes of communications,”
485 U.S. at 580 (quotation and citation omitted); stated that
the picketing in Safeco “actually threatened the neutral with
ruin or substantial loss,” id.; and cited Justice Stevens’
conduct/communication distinction. Id. Applying Justice Ste-
vens’ explanation to the facts of DeBartolo, which involved
union members distributing handbills “without any accompa-
nying picketing or patrolling,” id. at 571; see also id. at 575-
76, the Court concluded that because distributing handbills
was “mere persuasion,” not “intimidat[ion] by a line of pick-
eters,” prohibiting handbilling would raise constitutional con-
cerns of considerably greater gravity than limiting picket
lines. Id. at 580.
 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6569
The handbills in DeBartolo, like the handbills here, con-
tained a more complete argument favoring the union’s posi-
tion than do banners. The banners in this case, for example —
as is true of signage, including billboards, generally — con-
tain only catchy shorthand, not discursive speech. This pithi-
ness, however, does not remove the banners from the scope
of First Amendment protections, as cases regarding well-
known short slogans demonstrate. See, e.g., Cohen v. Califor-
nia, 403 U.S. 15, 25-26 (1971) (applying ordinary First
Amendment principles to t-shirt slogan reading “Fuck the
draft”); Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004)
(applying ordinary First Amendment principles to two-word
billboards: “got milk?”).
[7] Recognizing that billboards and signs are generally
accorded full First Amendment protection, the Carpenters’
argument is that a few union members holding a banner visi-
ble from a store’s entrance is far more like the “mere persua-
sion” of DeBartolo than the “intimidation by a line of
picketers” in Safeco, and is therefore constitutionally pro-
tected. Just as DeBartolo did not rule on the constitutional
question raised there, see 485 U.S. at 576-78 (discussing con-
stitutional issues raised and noting statutory interpretations
that avoided the need to decide those issues), we do not rule
on the Carpenters’ First Amendment argument. Instead, it is
sufficient to recognize that the argument is a plausible, and
quite possibly meritorious, one.
As in DeBartolo, the Carpenters’ bannering does not
involve patrolling in front of an entrance way and therefore
erects no symbolic barrier in front of the Retailers’ doorways.
Nor did the Carpenters place their banners so as to create any
physical barrier blocking the entrances to the Retailers or the
walkways approaching those entrances. Nor is there anything
about the Carpenters’ members’ behavior that could be
regarded as threatening or coercive — no taunting, no mass-
ing of a large number of people, no following of the Retailers’
patrons.
6570 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
That the union members are physically present, holding up
the banner, does not affect this conclusion. The handbillers in
DeBartolo were also on the scene, able to communicate by
their presence some greater degree of moral suasion, perhaps,
than the words on their pamphlets standing alone. The one-
on-one approach of handbillers, indeed, provided an opportu-
nity for verbal interchange concerning the fervency of the
union members’ belief and may have generated some degree
of reluctance by prospective customers to defy their requests,
for fear of moral disapproval.
More generally, First Amendment jurisprudence establishes
that individuals ordinarily have the constitutional right to
communicate their views in the presence of individuals they
believe are engaging in immoral or hurtful behavior.
“[P]eaceful and truthful discussion” designed to convince oth-
ers not to engage in behavior regarded as detrimental to one’s
own interest, or to the public interest, is fully protected
speech. Thornhill v. Alabama, 310 U.S. 88, 104 (1940); see
also City of Houston v. Hill, 482 U.S. 451, 461 (1987) (hold-
ing that “the First Amendment protects a significant amount
of verbal criticism and challenge” in speech aimed at physi-
cally present public officials about to engage in challenged
behavior). The protection of on-site speech extends to the
“emotive impact of speech on its audience,” Boos v. Barry,
485 U.S. 312, 321 (1988) (opinion of O’Connor, J.), including
the Carpenters’ invocation of “shame” on the protested retail-
ers and, by extension, on members of the public who patron-
ize them. See also Cohen, 403 U.S. at 26 (noting that “words
are often chosen as much for their emotive as their cognitive
force,” and that such language choices do not diminish First
Amendment protections).
[8] We conclude that interpreting § 8(b)(4)(ii)(B) to pro-
hibit the Carpenters’ activity would pose a “significant risk”
of infringing on First Amendment rights. We will analyze the
statutory question accordingly, without deference to the
Regional Director’s position.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6571
C. Section 8(b)(4)(ii)(B) and the Carpenters’
bannering
[9] A § 8(b)(4)(ii)(B) violation has two elements. First, a
labor organization must “threaten, coerce, or restrain” a per-
son engaged in commerce (such as a customer walking into
one of the secondary businesses). 29 U.S.C. § 158(b)(4)(ii).
Second, the labor organization must do so with “an object” of
“forcing or requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the produces of
any other producer, processor, or manufacturer, or to cease
doing business with any other person.” 29 U.S.C.
§ 158(b)(4)(ii)(B). As the district court noted, the Carpenters
conceded “that the goal of its activities is to dissuade consum-
ers from patronizing the [Retailers],” which necessarily had
the goal of encouraging the Retailers to “cease doing busi-
ness” with Brady, Precision, and E&K. We therefore focus on
the “threaten, coerce, or restrain” portion of § 8(b)(4)(ii).
The legislative text, as DeBartolo noted, is vague. It is far
from self-evident that “to threaten, coerce, or restrain” encom-
passes the bannering activity at issue here. Nor does the legis-
lative history of the relevant amendment to this text, passed
in 1959, indicate a “clear intent,” BE&K Constr. Co., 536
U.S. at 535, to bar this activity. The only activity that appears
to be clearly proscribed by the statute is “ambulatory picket-
ing” of secondary businesses. DeBartolo, 485 U.S. at 587
(emphasis added).
Senator John F. Kennedy, the Chairman of the House-
Senate Conference Committee debating the 1959 NLRA
amendments at issue in this case, explained the conference
agreement:
We were not able to persuade the House conferees
to permit picketing in front of that secondary shop,
but we were able to persuade them to agree that the
union shall be free to conduct informational activi-
6572 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
ties short of picketing. In other words, the union can
hand out handbills at the shop, can place advertise-
ments in the newspapers, can make announcements
over the radio, and can carry on all publicity short of
having ambulatory picketing in front of a secondary
site.
105 Cong. Rec. 17,898-99 (1959) (emphasis added) (cited in
DeBartolo, 485 U.S. at 586-87). Senator Kennedy spoke in
reference to the proviso added to § 8(b)(4) in 1959, but the
Supreme Court has held that the proviso and its legislative
history is “a clarification of the meaning of § 8(b)(4)” as a
whole. DeBartolo, 485 U.S. at 586; see also NLRB v. Servette,
Inc., 377 U.S. 46, 53 n.9 (1964) (relying on Senate colloquy
involving Kennedy as illustrative of legislative history of
1959 amendments).
Senator Kennedy’s understanding is, of course, not the last
word on the legislative intent of the relevant statutory provi-
sion, but his role as Conference Committee Chairman, see
DeBartolo, 485 U.S. at 586, is sufficiently important to the
passage of this provision that his understanding, explained to
the Senate, is a useful tool in determining what the Senate
intended when it passed this provision. See Bd. of Governors
v. Inv. Co., 450 U.S. 46, 74-75 (1981) (according special
weight to relevant committee chairman’s statements on Sen-
ate floor); see also, Conroy v. Aniskoff, 507 U.S. 511, 521-22
(1993) (Scalia, J., concurring) (according special weight to
statements by relevant committee chairmen when analyzing
legislative history). Given Senator Kennedy’s understanding
that only “ambulatory picketing” would be prohibited, the leg-
islative history “falls far short of revealing a clear intent” that
bannering activity is always prohibited by § 8(b)(4)(ii)(B).
See 485 U.S. at 588.17
17
Opponents of the amendment did suggest that it would have a broader
scope, prohibiting “not only picketing but leaflets, radio broadcasts, and
newspaper advertisements.” 105 Cong. Rec. 15,540 (1959). The Supreme
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6573
Senator Kennedy’s focus on “ambulatory picketing”
reflects the traditional identification of the factors that distin-
guish picketing from other protest actions: Classically, picket-
ers walk in a line and, in so doing, create a symbolic barrier.
See, e.g., Honolulu Typographical Union No. 37 v. NLRB,
401 F.2d 952, 953-54 (D.C. Cir. 1968) (Hawaii Press News-
papers, Inc.) (describing how thirty to sixty union members
walked “shoulder to shoulder” in an oval in front of picketed
businesses’ entrances). In contrast, bannering involves no
walking, in line or otherwise, of union members.
[10] In the absence of any clear basis for construing
§ 8(b)(4)(ii)(B) as covering bannering generally, Overstreet
can prevail only if the Carpenters’ actions in particular were
sufficiently “intimidat[ing],” DeBartolo, 485 U.S. at 580, to
“threaten, coerce or restrain” potential customers of the
Retailers. That there have been no threats, and no physical
barriers or other “restraints” is not in dispute. Overstreet con-
tends, however, that the Carpenters’ banners “coerce,” for two
reasons: first, because they are equivalent to picketing in their
impact on viewers, and, second, because they contain fraudu-
lent language that misleads the public into thinking that the
Carpenters has a primary dispute with the Retailers. We
address each contention in turn, concluding that Overstreet
does not have a fair chance of success with these arguments.
1. Picketing
The Carpenters placed their banners on public sidewalks, at
locations which both provided the greatest exposure to pass-
Court, however, expressly rejected this interpretation of § 8(b)(4)(ii), not-
ing that the views of opponents to a statute “are not persuasive” indica-
tions of the statute’s meaning. DeBartolo, 485 U.S. at 584-85; see also
NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 65-67 (1964)
(noting that proponents of 1959 amendments did not “refer[ ] to consumer
picketing as making the amendments necessary” and finding “[t]he silence
of the sponsors . . . pregnant with significance”).
6574 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
ing motorists and ensured that little physical interaction
occurred between customers and the union members holding
up the banners. The banners are so situated as to avoid block-
ing entrances to Retailers’ places of business or otherwise
promoting physical confrontations between union members
and individuals seeking to enter those places of business. The
Carpenters do not patrol the area around their banners; their
activity is thus not “ambulatory,” but stationary. See DeBar-
tolo, 485 U.S. at 587. Nor do the union members standing by
the banners initiate any verbal or physical interactions with
the public.
Overstreet argues that the Carpenters’ conduct, peaceful
and passive though it is, “intimidate[s]” individuals from
entering the Retailers, see id. at 580, and therefore “coerces”
within the meaning of the statute. He cites NLRB cases for
the proposition that “the posting of one or more individuals at
entrances to a place of business” is the key criterion in deter-
mining whether union members are picketing rather than
engaging in protected speech, thereby “coercing” within the
meaning of § 8(b)(4)(B).
Overstreet, however, only cites NLRB cases, not court
cases. See, e.g., Mine Workers Dist. 2 (Jeddo Coal Co.), 334
N.L.R.B. 677 (2001). As DeBartolo indicates, the NLRB’s
determination of the reach of § 8(b)(4) is not entitled to the
usual deference accorded the agency, because the statutory
question must be answered with awareness of the line
between constitutionally-protected speech and unprotected
activity. See 485 U.S. at 574-75. The cases cited by Overstreet
never analyze the First Amendment implications of their stat-
utory analyses. See Jeddo Coal Co. In particular, the reliance
on the physical presence of speakers in the vicinity of the
individuals they seek to persuade, as we have discussed, is a
consideration that, standing alone, is no basis for lowering the
shield of the First Amendment or turning communication into
statutory “coercion.” DeBartolo so confirms: The handbillers
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6575
in DeBartolo were very much on the scene, “[a]t all four
entrances” to the shopping center. DeBartolo, 485 U.S. at 571.18
[11] Nor are the union members’ activities “coercive” for
any reason other than their physical presence. The union
members simply stood by their banners, acting as human sign-
posts. Just as members of the public can “avert [their] eyes”
from billboards or movie screens visible from a public street,
they could ignore the Carpenters and the union’s banners. See
Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 (1975)
(quoting Cohen, 403 U.S. at 21). If anything, the Carpenters’
behavior involved less potential for “coerc[ing]” the public
than the handbilling in DeBartolo, as there was no one-on-one
physical interaction or communication. In short, the Carpen-
ters’ activity cannot be described as “ambulatory picketing,”
DeBartolo, 485 U.S. at 587 (emphasis added), nor does it, any
more than handbilling, have any other characteristic that
clearly “threatens, restrains, or coerces” those who see the
communication.
Overstreet alternatively argues that the Carpenters’ conduct
amounts to “signal picketing,” and is thus both barred by the
Act and not protected by the First Amendment. Overstreet
misunderstands the nature and significance of “signal picket-
ing.”
18
Overstreet cites, in addition to the NLRB “posting” cases, court cases
that are not helpful. Some of those cases involve either more traditional
ambulatory picketing activities, see, e.g., Hawaii Press Newspapers, Inc.,
401 F.2d 952 (D.C. Cir. 1968), or other activities that were deemed picket-
ing only in conjunction with more traditional ambulatory picketing. See,
e.g., Laborers Local 389 (Calcon Construction), 287 N.L.R.B. 570 (1987).
Others are pre-DeBartolo and Catholic Bishop decisions that assert with-
out explanation that certain activities were “more than speech” and defer
to NLRB interpretations despite the First Amendment vacuum in the
NLRB analysis. See, e.g., NLRB v. Local 182, Int’l Bhd. of Teamsters, 314
F.2d 53, 58 (2d Cir. 1963). For the reasons indicated, none of these cases
are in conflict with our analysis.
6576 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
The “signal” in signal picketing is an implicit instruction to
other union members, including union employees of second-
ary businesses, eliminating the need for the signaling union
officials to make their direction explicit.19 Free speech protec-
tions do “not apply to a mere signal by a labor organization
to its members, or to the members of its affiliates, to engage
in an unfair labor practice such as a strike proscribed by
§ 8(b)(4)(A).” NLRB v. Denver Bldg. & Constr. Trades Coun-
cil, 341 U.S. 675, 690 (1951) (“Denver Bldg. Trades”)
(emphasis added); see also Local No. 274, United Assoc. of
Journeymen. (Indus. Prods. Group, Stokely-Van Camp, Inc.),
267 N.L.R.B. 1111, 1114 (1983) (describing a “signal” to
employees of secondary business). The reason is that the
implicit direction is understood by union employees to be
embedded in a context involving more than mere speech. The
failure of a union member to comply could lead to formal
union discipline or informal sanctions by other union mem-
bers. See San Francisco Local Joint Exec. Bd. of Culinary
Workers (McDonald’s Sys.), 203 N.L.R.B. 719, 728 (1973)
(describing signal picketing as “backed by group discipline”).
The entire concept of signal picketing thus depends on union
employees talking to each other, not to the public. In other
words, “signals,” in this context, are “official directions or
instructions to a union’s own members,” implicitly backed up
by sanctions. Denver Bldg. Trades, 341 U.S. at 691 (emphasis
added, quotation and citation omitted).
It is the mutual understanding among union employees of
the meaning of these signals and bonds, based on either affin-
ity or the potential for retribution, that makes these “signals”
19
We once, in passing, described “signal picketing” in broader terms —
as “activity . . . which acts as a signal to neutrals that sympathetic action
on their part is desired by the Union.” Int’l Assoc. of Bridge, Structural
& Ornamental Iron Workers v. NLRB, 598 F.2d 1154, 1158 n.6 (9th Cir.
1979). In context, however, the “neutrals” were not just any members of
the public but “employees of neutral employers. Id. at 1160 (emphasis
added). Int’l Assoc. had no reason to address picketing addressed to the
public or to consumers, and we do not understand it to have done so.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6577
sufficiently coercive to fall within the meaning of
§ 8(b)(4)(ii). To broaden the definition of “signal picketing”
to include “signals” to any passerby would turn the special-
ized concept of “signal picketing” into a category synony-
mous with any communication requesting support in a labor
dispute. If “signal picketing” were defined so broadly, then
the handbilling in DeBartolo would have been deemed signal
picketing. The one-on-one interaction of handbilling could
communicate more easily than the presence of union members
holding a banner at some distance from passing pedestrians
the union’s do-not-patronize request. Indeed, in DeBartolo,
the union did more than implicitly signal a request that the
consumers not deal with the offending shopping center; the
union’s handbills made that request explicitly.
In short, like other words and phrases developed in the
world of labor relations, see, e.g., Old Dominion Branch No.
496, Nat’l Assoc. of Letter Carriers v. Austin, 418 U.S. 264,
283 (1974) (observing how “scab” has become “common par-
lance in labor disputes”), “signal picketing” is a term of art
with a specific meaning in a labor relations context. The term
has no useful application here, as the banners were placed so
a wide segment of the public — especially passing motorists
— would see them, and were not directed at employees.
Attaching the term “signal picketing” to the union’s behavior
in this case is inaccurate and, as such, not pertinent to the
legal analysis.
[12] In sum, we hold that Overstreet does not have a “fair
chance” of establishing that the Carpenters’ bannering activity
is traditional picketing or “signal picketing,” and therefore a
“threat,” “restraint,” or “coercion” within the meaning of
§ 8(b)(4)(ii)(B).
2. Fraudulent language
Overstreet’s second submission is that, “picketing” aside,
the phrase “labor dispute,” placed on a banner with only the
6578 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
name of a Retailer on it is “fraudulent,” because it suggests
to the public that the Carpenters has a primary labor dispute
with the Retailers rather than with Brady, Precision, and
E&K. The district court disagreed, ruling that because the
Carpenters union believes that the Retailers’ decision to do
business with Brady, Precision, and E&K contributes to the
erosion of labor standards, the union does, in fact have a
“labor dispute” with the Retailers. Whatever difference there
may be in labor law between a primary and a secondary labor
dispute, the difference, the district court concluded, would not
mean much to most consumers. Consequently, use of the term
“labor dispute” was not a false statement, and the Carpenters
had no obligation to specify on their banners that they referred
only to a secondary labor dispute.
We agree with the district court for three reasons.
First, although Overstreet argues that “the most natural
reading” of the Carpenters’ banners is that the union has a pri-
mary labor dispute with the Retailers, the primary/secondary
distinction is the stuff of labor law treatises, not of common
parlance. Telling in this regard is the language Overstreet
uses: He asserts in his petition that the Carpenters posted the
banners “in the absence of any bona fide primary labor dis-
pute,” (emphasis added), and goes on to repeat this locution,
stating, for instance, that “the Union did not have a primary
labor dispute with [the Retailers].” (emphasis added). That the
Regional Director needs to use the term “primary labor dis-
pute,” (emphasis added), to make his point illustrates well
that, even to labor law aficionados, the term “labor dispute,”
standing alone, is not limited to primary disputes.
[13] Contrary to Overstreet’s assertion that “it is irrelevant
that the Union actually may have had a secondary labor dis-
pute” with bannered employers, the presence of any labor dis-
pute is determinative of the question whether the Carpenters’
assertion of a “labor dispute” was misleading to the public.
Disputes, labor and otherwise, commonly spill over to affect
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6579
secondary institutions, as individuals with strong opinions
concerning the dispute seek to convince those with some
prospect of influencing the outcome of the dispute to do so.
Clothing manufacturers allegedly operate sweatshops, and
activists protest institutions that buy clothing from those
manufacturers. See, e.g., United Students Against Sweat-
shops: About Us, http://www.studentsagainstsweatshops.org/
about/about.php (last visited 25 Apr. 2005) (asserting goal of
changing universities’ standards for labor conditions in which
university clothing is made). A nation takes controversial
political or military actions, and activists pressure universities
and other institutions to divest endowment or other funds
from businesses supporting those actions. See, e.g., Divest
from Israel Campaign, http://www.divest-from-israel-
campaign.org (last visited 25 Apr. 2005) (urging institutions
to divest from certain companies doing business with the state
of Israel and suggesting that failure to do so makes one “com-
plicit” in alleged wrongs committed by Israel).
Whatever one might think about the merits of these dis-
putes, all parties involved understand that a dispute does exist
between activists and the “secondary” institutions. There is
likely to be disagreement, true, over whether the secondary is
contributing to the primary’s actions in any significant way,
or whether the primary’s actions are objectionable at all. But
any such disagreement does not affect whether, in common
parlance, a “dispute” exists concerning maintaining ties with
an individual or institution taking controversial action. And,
when the specific dispute is whether the secondary institution
should sever ties with another company so that the secondary
institution does not undermine regional labor standards,
“labor dispute” is a perfectly apt description.
The response of one of the Retailers — Artisan Homes,
Inc., a Phoenix-area real estate developer — confirms that it
did, in fact, have a labor dispute with the Carpenters. In
response to the Carpenters’ “SHAME ON ARTISAN
HOMES, INC.” sign near their work site, Artisan put up its
6580 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
own banner at that same site, less than 100 feet away from the
Carpenters’ banner, reading “We Support Our Subcontrac-
tors! It’s a Right to Work State . . . Shame on Carpenters
Local Union 1506.” Quite clearly, Artisan disagreed with the
Carpenters concerning whether a non-union subcontractor
deserved “support.” In other words, Artisan and the Carpen-
ters were engaged in a “dispute” about a “labor” issue.
[14] This understanding of the term “labor dispute” distin-
guishes this case from San Antonio Cmty. Hosp. v. S. Cal.
Dist. Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997),
in which we affirmed the grant of an injunction preventing
union members from holding signs outside of a hospital that
read “THIS MEDICAL FACILITY IS FULL OF RATS.”
Members of the public, we held, would “natural[ly] read[ ]”
those signs to assert, falsely, “that the Hospital has a rodent
problem,” Id. at 1236, not with the specialized meaning “rat”
has in the context of a labor dispute. Id. In the present context,
precisely because members of the public are not familiar with
the specialized use of language in the labor context, they
would naturally read “labor dispute” as meaning simply that
a union had a dispute with the Retailer, which is perfectly true.20
Second, if one were uncertain about the meaning of the
term “labor dispute” in the labor context, one would most
likely turn to federal labor statutes for illumination. And the
NLRA itself confirms that, even to those in the know, “prima-
ry” labor disputes are a subset of “labor disputes,” not the
entire category.
20
Although the dissent rests its argument on San Antonio Community
Hospital, it fails to note that the injunctive relief in that case was based
solely on defamation causes of action. 125 F.3d at 1235. We therefore had
no occasion to consider whether fraudulent speech, without more, can
amount to a “threat,” “restraint” or “coercion” within the meaning of
§ 8(b)(4)(ii) of the NLRA. Although the concepts of fraud and misrepre-
sentation, on the one hand, and threats, restraints, and coercion, on the
other, appear quite separate, we have no occasion in this case either to
decide whether false speech, without more, can violate § 8(b)(4)(ii)(B), as
we conclude that no such speech occurred here.
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6581
The Act defines a “labor dispute” to
include[ ] any controversy concerning terms, tenure
or conditions of employment, or concerning the
association or representation of persons in negotiat-
ing, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment, regard-
less of whether the disputants stand in the proximate
relation of employer and employee.
29 U.S.C. § 152(9). This definition does not specify whose
employment may the subject of a labor dispute. Rather, it uses
broader phrases, encompassing any dispute about the union
status of any set of employees.
This understanding of the Act’s definition of “labor dis-
pute” accords with judicial interpretations of the Norris-
LaGuardia Act’s definition of the same term. The Norris-
LaGuardia Act, 29 U.S.C. § 101 et seq., defines “labor dis-
pute” with terms identical in all relevant respects to the Act’s
definition.21 Compare 29 U.S.C. § 113(c) with § 152(9). We
have previously held that a secondary boycott “involves a
labor dispute” for Norris-LaGuardia Act purposes. Smith’s
Mgmt. Corp. v. Int’l Bhd. of Elec. Workers, Local Union No.
357, 737 F.2d 788, 790 (9th Cir. 1984); see also Burlington
N. Santa Fe Ry. Co. v. Int’l Bhd. of Teamsters, Local 174, 203
F.3d 703, 711 (9th Cir. 2000) (en banc).
[15] In this case, the Carpenters believes that the Retailers’
21
The Norris-LaGuardia Act defines a “labor dispute” to
include[ ] any controversy concerning terms or conditions of
employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seeking
to arrange terms or conditions of employment, regardless of
whether or not the disputants stand in the proximate relation of
employer and employee.
29 U.S.C. § 113(c).
6582 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
decision to work with Brady, Precision, and E&K interfered
with their efforts to “arrange terms or conditions of employ-
ment” with those three contractors. Their dispute with the
Retailers therefore fits squarely within the NLRA’s, and the
Norris-LaGuardia Act’s, definition of “labor dispute.”
[16] Third, issuing a preliminary injunction against speech
based on its falsity would create particularly significant risks
to the First Amendment. While “[t]he First Amendment does
not protect fraud,” San Antonio Cmty. Hosp., 125 F.3d at
1239, an injunction issued “before an adequate determination
that it is unprotected by the First Amendment” presents the
“special vice of a prior restraint.” Pittsburgh Press Co. v.
Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390
(1973); see also Kramer v. Thompson, 947 F.2d 666, 675-76
(3d Cir. 1991) (en banc) (concluding that an injunction
against future speech ceases to be an unconstitutional prior
restraint once it is determined that the enjoined speech is
libelous and beyond the First Amendment’s protections). Sec-
tion 10(l) injunctions, by definition, are issued before either
the Board or any federal court has made such an “adequate
determination,” and so amount to a preliminary prior restraint
on the Carpenters’ speech. A “heavy presumption” exists
against finding such prior restraints constitutionally permissi-
ble. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1961).
Against that background, if we did harbor any doubts con-
cerning whether the Carpenters’ banners are fraudulent —
which we do not — those doubts would have to be resolved
against such a finding at this preliminary stage.
[17] We conclude that the Carpenters’ banners did not con-
tain false assertions and, therefore, were not fraudulent.
CONCLUSION
Applying the Miller “just and proper” test, we conclude
that Overstreet did not establish a fair chance of success on
the merits. Overstreet’s legal theory is weak, given the sta-
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6583
tionary, non-interactive and truthful nature of the Carpenters’
bannering activity. In light of the First Amendment concerns
present in this case, we find that Overstreet did not show a
fair chance of proving that the Carpenters’ bannering is within
the scope of the “threaten, coerce, or restrain” language of
§ 8(b)(4)(ii).
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent.
The NLRB regional director has a sufficient likelihood of
prevailing on the “fraudulent speech” claim, under our deci-
sion in San Antonio Community Hospital v. Southern Califor-
nia District Council of Carpenters,1 so that he should have
been granted a preliminary injunction based on the Adminis-
trative Law Judge’s findings and decision.
The record has photographs of the banners at issue. A typi-
cal one says “LABOR DISPUTE” twice, and in huge red let-
ters, “SHAME ON THE WESTIN BONAVENTURE.”
Anthony’s Fish Grotto got its own special banner, which had
“LABOR DISPUTE” printed twice, and then the individual-
ized message “DON’T EAT AT ANTHONY’S FISH GROT-
TO.”
Many people, because of their sympathies or their obliga-
tions as union members, will not patronize firms whose
employees are engaged in disputes over union recognition or
terms of employment. Such individuals, seeing the “SHAME
ON THE WESTIN BONAVENTURE” banner, for example,
1
San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125
F.3d 1230 (9th Cir. 1997).
6584 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
would be inclined to schedule conventions, dinners, weddings
and other events at a different hotel. They would also likely
avoid staying at the Westin. According to deposition evidence
in the record, one of the hotels subjected to the banner lost a
Teamsters’ Convention because of the banners in front. When
higher officials of the Teamsters arrived before the entire
group, they “were quite aggravated and upset,” and their con-
vention planner cancelled the convention, a day after it was
supposed to start.
The huge banners are displayed to people driving by. Hand-
bills tell readers that E & K Arizona was a subcontractor for
a contractor hired to do work by the firm where the banner is
displayed, but a person had to approach a union representative
and ask for a handbill to learn that. Evidently the firms sub-
jected to the banners did not even hire E & K Arizona. No one
driving by would get the explanatory handbill, or see anything
explaining that the union’s dispute was with another firm
entirely and not the firm upon whom the banner invoked
“shame.” The union continued to post its banners long after
the firms that contracted with E & K Arizona had finished
their work and left, so the banners and their “shame” message
were present even when there was no work going on at the
sites to which the union had any objection.
The Administrative Law Judge made a finding of fact that
“[t]he only message the banners could reasonably have con-
veyed to viewers, including customers, suppliers, and visitors
of the targeted employers or persons, was that Respondent
Unions had primary labor disputes with the neutrals named on
the banners.” The union “must have foreseen that misconcep-
tions would be the consequence of their bannering,” and
“most banner viewers did not, and were not intended to, read
the handbills,” which were distributed on the street only to
people who approached the union representatives and asked
for them. The union “had the intent and purpose,” the Admin-
istrative Law Judge found, “of causing the targeted neutral
employers or persons so much discomfiture through customer,
OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS 6585
supplier, or visitor complaints, inquiries, criticism, or with-
held business that the neutral employers or persons would
either cease doing business with the primary employers or
influence other neutral employers or persons to cease doing
business with the primary employers.”
The majority adopts the district court’s reasoning that the
union had a sort of philosophical dispute with companies that
did business with other companies that then did business with
yet other companies with which the union actually had a dis-
pute. The argument is that the public cannot be expected to
understand the fine distinctions between primary and second-
ary labor disputes. I think that is true, but it cuts the other
way. The public cannot be expected to imagine what the
union’s real dispute is, when it invokes “SHAME” because of
a “LABOR DISPUTE” on companies who are contractually
two steps removed from the company from which the union
is actually seeking benefits for its members. A reasonable per-
son driving by the Westin Bonaventure or the other firms sub-
jected to the banners would think “that company must not be
treating its employees right,” not “that company must be deal-
ing with other companies that deal with yet other companies
that don’t treat their employees right.”
We need not even reach the question whether the banners
are “picketing,” because we are obligated to follow our deci-
sion in San Antonio Community Hospital. In that case, the car-
penters union displayed a banner in front of a hospital saying
that the hospital was “full of rats,” to advance its position in
a dispute with a construction company that was working on
a hospital expansion project.2 The union had an innocent
explanation — that “rats” in labor parlance means, not
rodents, but contractors who pay less than the prevailing
wage, which was true. But we held that the banner “crossed
the line separating protected rhetorical hyperbole from unpro-
tected fraudulent misrepresentations of fact” because the man-
2
Id. at 1233.
6586 OVERSTREET v. UNITED BROTHERHOOD OF CARPENTERS
ner of display “could cause most — if not all — readers to be
misled into believing” what we called “the most natural read-
ing,” that the hospital had a rodent problem.3
The most significant distinction between San Antonio Com-
munity Hospital and this case is that at least the banners in
San Antonio Community Hospital said with whom the union’s
dispute really was, albeit in much smaller letters. In our case,
there is no way for passersby to have their false impressions
corrected unless they find a place to park, walk over to a
union representative, and ask for a handbill. We considered
the same First Amendment issues in San Antonio Community
Hospital that are presented in this case, and despite a vigorous
dissent, we held that because the speech was “fraudulent,” it
was unprotected.4 The “deep historical meaning” claimed for
the word “rats” by the union in San Antonio Community
Hospital5 is no different from the metaphysical parsing of the
term “labor dispute” by the union in this case. The union’s
dispute was with secondary and tertiary employers, but the
“most natural reading,” the one that the banners would cause
“most — if not all — readers to be misled into believing” was
that the union thought that the employees of the firms — in
front of which the banners were displayed — were being
treated shamefully. And that was not so.
The hospital in San Antonio Community Hospital got an
injunction and the Regional Director of the NLRB should get
one in this case. Like cases should be treated alike.
3
Id. at 1236-37.
4
Id. at 1237.
5
Id. at 1235.