FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 8, 2005

THOMAS K. KAHN

CLERK

 Honorable Stephen Limbaugh, United States District Judge for the Eastern District of *

Missouri, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14126

________________________

D. C. Docket No. 04-01730-CV-JDW-TBM

ROCHELLE KENTOV, 

Regional Director of the 12th Region 

of the National Labor Relations Board, 

for and on behalf of the National 

Labor Relations Board, 

Plaintiff-Appellee, 

versus 

SHEET METAL WORKERS' INTERNATIONAL 

ASSOCIATION LOCAL 15, AFL-CIO, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (August 8, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges and LIMBAUGH , District *

Judge.
 The hospital is a 277 bed acute care facility with approximately 1,500 employees. 1

2

KRAVITCH, Circuit Judge:

Sheet Metal Workers’ International Association Local 15, AFL-CIO (“the

Union”), appeals the district court’s grant of a petition for a temporary injunction

under Section 10(l) of the National Labor Relations Act (“NLRA”), filed by

Rochelle Kentov, the Regional Director of the Twelfth Region of the National

Labor Relations Board (“the Board”). 

I. Background

The Union has a labor dispute with Massey Metals, Inc. (“Massey”) and

Workers Temporary Staffing (“WTS”), in connection with their use of non-union

labor for an ongoing construction project at Brandon Regional Medical Center

(“the hospital”). Massey is a sheet metal fabrication and installation contractor 1

and WTS is a staffing agency that supplies labor employees to Massey.

On March 15, 2004, the key event giving rise to the instant case occurred. 

For about two hours, the Union staged a mock funeral procession in front of the

hospital. Specifically, the procession entailed four representatives carrying a large

object resembling a coffin back and forth on a sidewalk along Oakfield Drive,

crossing South Moon Avenue which leads directly into the hospital’s main
 The event was documented by a videotape which is part of the record. The parties 2

agree that the video fairly depicts what occurred. 

 There is no allegation that the handbills were false or misleading. 3

3

entrance and intersects with Oakfield Drive. Oakfield Drive and South Moon 2

Avenue intersect about 100 feet from the hospital’s main entrance. The four

representatives were accompanied by another Union representative, who wore an

oversized grim reaper costume and carried a large sickle. As the procession passed

in front of the hospital, the “grim reaper” marched along with the “pallbearers.” 

As part of the procession, the Union broadcasted somber funereal music

over loud speakers mounted on a flatbed trailer that was positioned nearby. In

addition, four other Union representatives, some wearing t-shirts bearing the Union

logo, distributed handbills to persons entering and leaving the hospital. The

handbills accurately detailed allegations from state court lawsuits concerning four

recent patient deaths at the hospital. They were entitled: “Going to Brandon 3

Regional Hospital Should Not be a Grave Decision.” Each handbill contained the

statement: “A public service message from the Sheet Metal Workers’ International

Association.” 

The mock funeral procession was orderly. Traffic was not blocked and

pedestrians were not obstructed. The individuals handing out leaflets were orderly

and did not interfere or impede with the egress or ingress of any individuals to or
4

from the hospital. No citations or arrests were made. Some passers-by walked up

to the Union representatives to inquire about the purpose of the demonstration. 

One person who received a handbill talked to a Union representative about the

allegedly improper care her husband was receiving as a patient in the hospital. 

A hospital security officer reported that a wife of a patient at the hospital

who had died that morning became upset at seeing the demonstration and would

not walk out to her car because doing so required her to pass by the demonstration. 

Another individual who had a family member being treated inside the hospital

complained to security officers about the demonstration because he did not think it

was appropriate. 

Following the event in question, on March 17, 2004, the hospital filed an

unfair labor practice charge with the Board, alleging, inter alia, that the Union’s

conduct constituted an unlawful secondary boycott, in violation of Section

8(b)(4)(ii)(B) of the NLRA, 29 U.S.C. § 158(b)(4)(ii)(B), in that it coerced or

restrained the neutral secondary employer hospital and its patients and visitors with

an object of forcing or requiring the hospital to cease doing business with Massey

and WTS, with whom the Union has a primary labor dispute. 

On July 27, 2004, the Board’s Regional Director filed a petition in the

United States District Court for the Middle District of Florida, seeking an interim
 In pertinent part, the injunction “enjoined and restrained [the union] from threatening, 4

coercing or restraining [the hospital] by staging street theater, processions, picketing, patrolling

and/or any manner of conduct calculated to induce individuals not to patronize the hospital,

when conducted with an objective of forcing or requiring [the hospital] to cease handling or

otherwise dealing in the products or services of or to cease doing business with [Massey] and/or

[WTS].” The injunction did not prohibit peaceful handbilling without picketing, patrolling, or

procession.

5

injunction under Section 10(l) of the NLRA, 29 U.S.C. § 160(l), pending

completion of the Board’s administrative proceedings against the Union. The

district court granted the petition, finding reasonable cause to believe that the

Union had engaged in unfair labor practices in violation of Section 8(b)(4)(ii)(B) 

and that interim injunctive relief was just and proper. The Union now appeals, 4

raising two issues: (1) whether the district court erred in granting the interim

injunction; and (2) even if an injunction is proper, whether this particular

injunction is overbroad. 

II. Standard of Review

We review the district court’s findings of fact for clear error and its

conclusions of law for error. Arlook v. S. Lichtenberg & Co., Inc., 952F.2d 367,

372 (11th Cir. 1992). Finally, we review the district court’s grant of the requested

relief for abuse of discretion. Id. 

III. Discussion

Section 10(l) of the NLRA authorizes district courts to grant temporary

injunctive relief pending the Board’s resolution of certain unfair labor practice
6

charges, such as secondary boycotts, which are likely to have a disruptive effect

upon the flow of commerce. 29 U.S.C. § 160(l); Dowd v. Int’l Longshoremen’s

Ass’n, 975 F.2d 779, 782-83 (11th Cir. 1992). A Section 10(l) proceeding is

ancillary to the Board’s administrative proceedings, and the ultimate determination

of the merits of the unfair labor practice case is reserved for the Board, subject to

review by the courts of appeals under Sections 10(e) and (f) of the NLRA. See

Dowd, 975 F.2d 779. 

In reviewing the grant of a Section 10(l) injunction, we consider only: (1)

whether the Board has shown “reasonable cause to believe” that a union has

violated the NLRA as alleged, and if so, (2) whether injunctive relief is “just” and

“proper.” See Id. at 783. In Dowd, this court explained:

When confronted with a petition for injunction under section 10(l), the

function of the District Court is not to determine whether an unfair

labor practice has in fact been committed, but simply to determine

whether there is reasonable cause to believe that a violation of the

[National Labor Relations] Act has occurred. The district court’s

inquiry into reasonable cause is limited to evaluating whether the

Board’s theories of law and fact are not insubstantial and frivolous. 

This deferential review is appropriate at the injunction stage even

where the theory underlying the petition is ‘untested’ or ‘novel,’ in

order to preserve the legal issue for Board determination. In addition

to demonstrating reasonable cause to believe that an unfair labor

practice has occurred, the Board must show that equitable relief is

‘just and proper’ under the circumstances.

Id. (internal citations and quotation marks omitted). 
7

Applying this deferential review here, we first examine whether there is

reasonable cause to believe that the Union violated Section 8(b)(4)(ii)(B) of the

NLRA, which prohibits secondary boycotts. Section 8(b)(4)(ii)(B) states that it is

“an unfair labor practice for a labor organization...to threaten, coerce, or restrain

any person engaged in commerce...where...an object thereof is...forcing or

requiring any person to...cease doing business with any other person.” 29 U.S.C. 

§ 158(b)(4)(ii)(B). This provision aims to prohibit a union that has a labor dispute

with one employer (the primary employer) from exerting pressure on another

neutral employer (the secondary employer), where the union’s conduct is

calculated to force the secondary employer to cease doing business with the

primary employer. See National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612,

620-27 (1967). As the Supreme Court has explained, Section 8(b)(4)(ii)(B)

implements “the dual congressional objectives of preserving the right of labor

organizations to bring pressure to bear on offending employers in primary labor

disputes and of shielding unoffending employers and others from pressures in

controversies not their own.” NLRB v. Denver Bldg. & Constr. Trades Council,

341 U.S. 675, 692 (1951). 

A violation of Section 8(b)(4)(ii)(B) consists of two elements: (1) a union

engages in conduct that threatens, coerces, or restrains an employer or other person
 Any other objectives that the Union may have had, such as publicizing allegations of 5

improper patient care, do not control the secondary boycott analysis. See Denver Bldg. &

Constr. Trades Council, 341 U.S. at 689; Pye v. Teamsters Local Union No. 122, 61 F.3d 1013,

1023 (1st Cir. 1995).

 Coercion under Section 8(b)(4)(ii)(B) involves “nonjudicial acts of a compelling or 6

restraining nature, applied by way of concerted self-help consisting of a strike, picketing, or

other economic retaliation and pressure in the background of a labor dispute.” Carpenters

Kentucky State Dist. Council (Wehr Constr., Inc.), 308 NLRB 1129, 1130 n.2 (1992) (quoting

Sheet Metal Workers Local 48 v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964)). 

8

engaged in commerce; and (2) an object of the union’s conduct is to force or

require an employer or person not to handle the products of, or to do business with,

another person. See 29 U.S.C. § 158(b)(4)(ii)(B). The satisfaction of the second

element is not in dispute here, as the Union concedes that at least one of its

objectives in staging the mock funeral procession was to pressure the hospital to

cease doing business with WTS and Massey. Therefore, our focus is on whether 5

the Union threatened, coerced, or restrained the hospital within the meaning of the

NLRA.6

The Union’s principal defense is that the First Amendment protected its

activities. To advance this argument, the Union relies on the Supreme Court’s

decision in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568 (1988). There, a union peacefully distributed truthful

handbills to customers near businesses in a shopping mall which urged customers

not to shop at any of the stores until the mall owner publicly promised that all
9

construction work would be done using contractors who pay their employees fair

wages. DeBartolo, 485 U.S. at 570. The union’s primary labor dispute was with

the construction company, but it sought to exert pressure on the mall owner

through a consumer boycott to cease doing business with the non-union

construction company. Id. at 569. The issue became whether the union’s

handbilling violated Section 8(b)(4)(ii)(B). Id. at 573-74. 

Recognizing the serious First Amendment problems involved in construing

the NLRA to prohibit the union’s handbilling, the Court applied the constitutional

avoidance doctrine, reasoning that interpreting Section 8(b)(4)(ii)(B) to not reach

the handbilling conformed with congressional intent. Id. at 575-76. The Court

never answered the constitutional question of whether the First Amendment

protected the union’s handbilling, but simply held that the handbilling was not

coercive within the meaning of Section 8(b)(4)(ii)(B). Id. at 578, 588. 

DeBartolo dealt only with a union’s peaceful handbilling in the absence of

any accompanying picketing or patrolling. Therefore, the Union’s reliance on that

case is misplaced. Indeed, in DeBartolo, the Court carefully distinguished peaceful

expressive handbilling from picketing and patrolling, which it reasoned are

“qualitatively different from other modes of communication” and more likely to be
 To further support its First Amendment argument, the Union cites to the Ninth 7

Circuit’s recent decision in Overstreet v. United Brotherhood of Carpenters & Joiners of

America, Local Union No. 1506, – F.3d – , 2005 WL 1346720 (9th Cir. June 8, 2005). As with

its citation to DeBartolo, the Union’s reliance on Overstreet is misplaced. Overstreet involved a

union’s use of stationary banners, without any accompanying patrolling or picketing. The

Overstreet court repeatedly noted that the union did not engage in any picketing or patrolling and

acknowledged that picketing and patrolling may be enjoined. Overstreet, 2005 WL at *9-12

(noting that “[a]s in DeBartolo, the Carpenters’ bannering does not involve patrolling...); see also

Benson v. United Brotherhood of Carpenters & Joiners of America, Locals 184 and 1498, 337 F.

Supp.2d 1275, 1278-79 (also involving stationary union bannering and distinguishing it from

union picketing and patrolling). 

10

found coercive under the NLRA. Id. at 580. Citing to Justice Stevens’s 7

concurrence in NLRB v. Retail Store Employees, 447 U.S. 607 (1980) (Safeco),

the Court explained:

[Picketing is] a mixture of conduct and communication and the

conduct element often provides the most persuasive deterrent to third

persons about to enter a business establishment. Handbills containing

the same message...are much less effective than labor picketing

because they depend entirely on the persuasive force of the idea.

Id. (internal quotation marks and citations omitted). Thus, apart from peaceful,

truthful handbilling, the Court recognized that many other forms of union

secondary pressure do not raise First Amendment concerns. 

In doing so, DeBartolo reaffirmed longstanding Supreme Court precedent

that the Board can regulate union secondary picketing under Section 8(b)(4)(ii)(B)

without implicating the First Amendment. E.g., International Longshoremen’s

Ass’n v. Allied Int’l, Inc., 456 U.S. 212, 226 (1982) (“[w]e have consistently
11

rejected the claim that secondary picketing by labor unions in violation of § 8(b)(4)

is protected activity under the First Amendment.”); Safeco, 447 U.S. 607, 616

(1980) (plurality opinion) (“As applied to picketing that predictably encourages

consumers to boycott a secondary business, § 8(b)(4)(ii)(B) imposes no

impermissible restrictions upon constitutionally protected speech”); Int’l

Brotherhood of Electrical Workers, Local 501 v. NLRB, 341 U.S. 694, 705 (1951)

(prohibition against secondary picketing “carries no unconstitutional abridgement

of free speech”). These decisions are grounded in the recognition that the “labor

laws reflect a careful balancing of interests” and under those laws “conduct

designed not to communicate but coerce” merits less protection under the First

Amendment. Allied Int’l, Inc., 456 U.S. at 226. 

 Here, the question is whether the Union’s activity was equivalent to

secondary picketing and patrolling which can be regulated under Section

8(b)(4)(ii)(B), or more like peaceful handbilling, which raises First Amendment

concerns. We readily conclude that there is reasonable cause to believe that the

Union’s conduct falls in the former category as being the functional equivalent of

picketing, and therefore, the First Amendment concerns in DeBartolo are not

present in this case. Although the Union did not carry traditional picket signs, it is

well-settled that the existence of placards on sticks is not a prerequisite to a finding
12

that a union engaged in picketing. E.g., Mine Workers Dist. 2 (Jeddo Coal Co.),

334 NLRB 677, 686 (2001); Service Employees Local 87 (Trinity Building Co.),

312 NLRB 715, 743 (1993). Instead, “[t]he important feature of picketing appears

to be posting by a labor organization...of individuals at the approach to a place of

business to accomplish a purpose which advances the cause of the union, such as

keeping employees away from work or keeping customers away from the

employer’s business.” Lumber & Sawmill Workers Local Union No. 2797 (Stoltze

Land & Lumber Co.), 156 NLRB 388, 394 (1965).

Here, the Union representatives patrolled for approximately two hours near

the entrance of the hospital, carrying a large coffin and accompanied by a Union

representative dressed as the grim reaper complete with a large sickle. During the

procession, the Union played somber funereal music from large speakers. This

activity could reasonably be expected to discourage persons from approaching the

hospital, to the same degree, if not more, as would five union agents carrying

picket signs. Like traditional secondary picketing, the Union’s procession was a

“mixture of conduct and communication” intended to “provide the most persuasive

deterrent to third persons about to enter” the hospital. DeBartolo, 485 U.S. at 582. 

One of the Union’s objectives in staging the procession was to exert pressure on

the hospital to cease doing business with the non-union contractors, with whom the
 Our holding is buttressed by the fact that the Administrative Law Judge (“ALJ”) in the 8

underlying unfair labor practice case recently issued a decision, Sheet Metal Workers’ Int’l

Local 15 (Brandon Regional Medical Center), Case 12-CC-1258 et al. (December 7, 2004), in

which it found that the Union’s activities on March 15, 2004 constituted a secondary boycott. 

See Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 161 (1st Cir. 1995) (district court’s finding of

reasonable cause was “confirmed by the fact that the administrative law judge, who held a

hearing and took evidence of the NLRB’s allegations” concluded that the violations occurred). 

 In January 2003, the Union placed a 12-15 foot inflated rat balloon near the hospital’s 9

main entrance. Concurrently, the Union distributed handbills that proclaimed “There’s a ‘Rat’ at

Brandon Regional Hospital.” The handbills depicted a rat in a patient’s room and complained of

WTS’s allegedly unlawful conduct. Due to this activity, in March 2003, the hospital filed an

unfair labor practice charge against the Union, alleging that the Union had engaged in a unlawful

secondary boycott, in violation of the NLRA. In April 2003, the Board and the Union entered

into a settlement agreement in which the Union agreed not to make false or misleading

statements about the hospital, not to use a large inflated rat to discourage consumers from using

the hospital, and not to in any other manner coerce the hospital with an object of forcing the

hospital to stop doing business with WTS or other persons. The Union’s actions on March 15,

2004 that are at issue in this appeal resulted in a setting aside of the settlement agreement. 

Accordingly, the Regional Director issued an administrative complaint alleging that the Union’s

conduct on March 15, 2004 was unlawful, as well as the earlier conduct in January 2003. On

December 7, 2004, an administrative law judge (“ALJ”) issued a decision in the underlying

unfair labor practice case, finding that the Union had violated the NLRA on both occasions. See

supra, note 8. 

13

Union had a primary labor dispute. Under these facts, we hold that there is

reasonable cause to believe that the Union violated Section 8(b)(4)(ii)(B) of the

NLRA.8

In addition, interim injunctive relief was just and proper. Notably, after the

Board commenced the administrative action, the Union’s counsel notified the

Board that, following a two week hiatus, the Union intended to engage in similar

activities. Furthermore, the Union had a track record of engaging in secondary

pressure against the hospital. Injunctive relief was just and proper to prevent the 9
14

potential adverse impact of secondary boycotts at the hospital and to preserve the

status quo pending the Board’s final action. 

 Finally, we address the Union’s argument that the injunction is 

unconstitutionally overbroad. The Union maintains that even if its mock funeral

procession did not implicate the First Amendment, the breadth of the interim

injunction does. In particular, the Union contends that the injunction forbids any

nonhandbilling activity and does not provide sufficient distance limitations. As a

preliminary matter, the Board concedes that its 10(l) petition did not seek to enjoin

all “street theater” and invites us to modify the injunction to remove that term. In

light of this concession, we remand to the district court to modify the injunction by

deleting the phrase “street theater.” See Schaub v. West Michigan Plumbing &

Heating, Inc., 250 F.3d 962, 971-72 (6th Cir. 2001) (modifying injunction which

exceeded relief sought).

 Even with this modification, the Union argues that the injunction goes too

far. We disagree. After the modification, the injunction provides in pertinent part

that the Union is:

enjoined and restrained from threatening, coercing or restraining [the

hospital] by staging processions, picketing, patrolling and/or any

manner of conduct calculated to induce individuals not to patronize

the hospital, when conducted with an objective of forcing or requiring

[the hospital] to cease handling or otherwise dealing in the products or

services of or to cease doing business with [Massey] and/or [WTS]...
15

Citing to DeBartolo, the injunction specifically excludes from its prohibition

peaceful handbilling without picketing, patrolling, or procession. Contrary to the

Union’s contention, the injunction does not encompass all non-handbilling activity,

but rather encompasses only coercive conduct that has a secondary objective at the

approach to the neutral hospital. The Supreme Court has made it clear that

coercion within the meaning of Section 8(b)(4)(ii)(B) is not protected by the First

Amendment. See, e.g., DeBartolo, 485 U.S. at 579-80. Indeed, the wording of the

injunction is comparable to that of Section 8(b)(4)(ii)(B) orders that courts

routinely enforce. E.g., Pye v. Teamsters Local Union No. 122, 61 F.3d 1013,

1018 n.4 (1st Cir. 1995); Dowd v. Int’l Longshoremen’s Ass’n, 781 F. Supp. 1565,

1575 (M.D. Fla. 1991), aff’d, 975 F.2d 779 (11th Cir. 1992). Furthermore, the

injunction is in accordance with longstanding remedies in this context that do not

contain distance limitations. See Safeco, 447 U.S. at 619 (Stevens, J., concurring);

Jeddo Coal Co., 334 NLRB at 689; Trinity Building Co., 312 NLRB at 756, enf’d,

103 F.3d 139 (9th Cir. 1996). Under these circumstances, the interim injunction,

as modified, is appropriate. 

For the foregoing reasons, we AFFIRM the judgment of the district court but

REMAND for modification of the injunction to delete the phrase “street theater.” 

AFFIRMED and REMANDED.