United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2007 Decided June 19, 2007

No. 06-1028

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION,

LOCAL 15, AFL-CIO,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

ENERGY AIR, INC. AND

GALENCARE, INC., D/B/A BRANDON REGIONAL MEDICAL

CENTER,

INTERVENORS

Consolidated with

06-1072

On Petition for Review and 

Cross-Application for Enforcement 

of an Order of the National Labor Relations Board

Michael T. Anderson argued the cause for petitioner. With

him on the briefs was Arlus J. Stephens.

Jamin B. Raskin was on the brief for amicus curiae
2

Greenpeace USA in support of petitioner.

Kira Dellinger Vol, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Ronald E. Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Julie B. Broido, Senior

Attorney.

Tammie L. Rattray and Patrick Muldowney were on the

brief for intervenors Energy Air, Inc. and Galencare, Inc., d/b/a

Brandon Regional Medical Center. David A. Grant entered an

appearance. 

Maurice Baskin was on the brief for amicus curiae

Associated Builders and Contractors, Inc. in support of

respondent.

Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: In the course of a labor dispute

with Energy Air, a heating, ventilation, and air conditioning

contractor, Sheet Metal Workers’ Local 15, AFL-CIO notified

Beall’s, Inc. — a department store for which Energy Air was

performing mechanical work — that the Union “will be

compelled” to publicize its dispute with Energy Air at two of

Beall’s department store construction sites. The Union’s letter

to Beall’s did not contain the assurance required by the National

Labor Relations Board that the Union’s picketing would

conform to the Board’s standards for picketing a neutral

employer, as laid out in Moore Dry Dock and its sequelae.
3

The Union also staged a “mock funeral” at the Brandon

Regional Medical Center (the Hospital), which was using nonunion workers supplied by a temporary employment agency and

another mechanical contractor, with both of which the Union

had an unrelated dispute. Energy Air and the Hospital each filed

charges with the Board, which concluded the Union in each

instance had violated the National Labor Relations Act.

 

The Board issued a Decision and Order barring the Union

from picketing the Hospital and from “unqualifiedly

threatening” to picket Beall’s. The Union petitions for review,

which we grant, and the Board cross-applies for enforcement of

the Order, which we deny.

I. Background

A. The Threat to Picket Beall’s 

In September 2003 a Union representative wrote the

president of Beall’s a letter stating:

Our organization has an ongoing labor dispute with Energy

Air, Inc. This contractor has been charged with serious

Federal Law Violations and is currently being investigated

by the Federal Government.

We understand that Energy Air is performing HVAC

mechanical work on [two] Beall’s Department Store

construction projects ....

The union will be compelled to publicize our dispute with

Energy Air by the way of leafleting, protesting and the

possibility of picketing at the sites.

If you have any questions I can be contacted at ....
4

Based upon this letter alone, an Administrative Law Judge

(ALJ) concluded the Union had violated Section 8(b)(4)(ii)(B)

of the National Labor Relations Act (the Act), 29 U.S.C.

§ 158(b)(4)(ii)(B), which makes it an unfair labor practice for a

union to “threaten, coerce, or restrain any person engaged in

commerce or in an industry affecting commerce [viz., Beall’s]

where ... an object thereof is ... forcing or requiring any person

[viz., Beall’s] ... to cease doing business with any other person

[viz., Energy Air].” Id.

Under the longstanding rule of Sailors’ Union of the Pacific

(Moore Dry Dock), 92 NLRB 547 (1950), the proprietor of a socalled common situs — a job site at which the employees of

multiple employers are working — may create a “reserved gate”

or entrance for use solely by the employees of any employer that

is then the target of union picketing; if a reserved gate is set up,

the union may picket only there. Id. at 549-50. In this case the

ALJ concluded the Union’s threat to picket Beall’s violated

§ 8(b)(4)(ii)(B) because it was not “qualified” by an assurance

the Union would limit its picketing to a reserved gate, as

required under Moore Dry Dock, citing Teamsters Local 456

(Peckham Materials), 307 NLRB 612, 619 (1992) (where union

threatens neutral contractor with picketing of job site at which

primary employer is working, union has “affirmative obligation

to qualify its threat by clearly indicating that the picketing would

conform to Moore Dry Dock ... or otherwise be in uniformity

[sic] with Board law”).

Although the Ninth Circuit has expressly rejected the

proposition that a union must affirmatively declare its intention

to conform with Moore Dry Dock, see United Ass’n of

Journeymen, Local 32 v. NLRB (Local 32), 912 F.2d 1108, 1110

(9th Cir. 1990), the ALJ noted “the Board continues to require

a union to indicate that its picketing will conform to Moore Dry

Dock” and cited a recent Board decision to that effect, Electrical
5

Workers, Local 98 (MCF Services), 342 NLRB 740 (2004). The

ALJ accordingly held the Union had violated § 8(b)(4)(ii)(B) by

uttering a proscribed threat but dismissed the complaint insofar

as it pertained to leafleting and protests at the Beall’s job site

because such activities were not coercive and therefore did not

violate the Act. In its Decision and Order the Board affirmed

these decisions of the ALJ.

B. The Curious Case of the Rat and the Placard at the Hospital

In January and February of 2003 the Union distributed

leaflets outside the Hospital protesting the presence of nonunion workers employed either by Workers Temporary Staffing,

Inc. (WTS) or by Massey Metals, Inc., which was using workers

supplied by WTS. The handbills stated, “There’s a ‘Rat’ at

Brandon Regional Hospital” and showed a cartoon of a rat near

the bed of a sick patient. The Union also inflated a balloon,

some 16-feet tall and 12-feet wide, in the shape of the cartoon

rat, about 100 feet from the main entrance to the hospital. The

ALJ concluded the leafleting, one union member’s holding the

leaflet chest-high as a “placard,” and the inflation of the rat each

violated § 8(b)(4)(ii)(B).

 

The Board reversed the ALJ as to the leafleting because the

General Counsel had disavowed that finding. The Board “found

it unnecessary to pass on” whether the inflation of the rat or

using the leaflet as a placard violated § 8(b)(4)(ii)(B) the Act

because, in view of the unfair labor practices found in

connection with the mock funeral described below, “[a] finding

of such a violation as to these matters would be cumulative and

would not affect the order.”

C. The Mock Funeral at the Hospital

On March 15, 2004 the Union staged a “mock funeral”
6

outside the Hospital and distributed leaflets headed “Going to

Brandon Hospital Should Not Be a Grave Decision”; the leaflets

detailed several malpractice suits against the Hospital — the

implication being the alleged malpractice was linked to the

Hospital’s use of non-union labor. The “mock funeral”

comprised one person in a “Grim Reaper” costume carrying a

“plastic sickle” and four other people, dressed in street clothes,

carrying a prop coffin and occasionally handing out leaflets.

These dramatis personae walked back and forth over a

distance of about 400 feet on a sidewalk parallel to the front of

the Hospital but apparently, from the Union’s videotape of the

event, some 100 feet from the entrance and separated from it by

a street, a strip of grass, a short hedge, and a parking lot,

crossing at a cross-walk every three to five minutes a street

running perpendicular to the Hospital. They were accompanied

by various somber tunes emanating from a portable audio

system, including Siegfried’s Funeral March by Wagner, O

Fortuna from Carl Orff’s Carmina Burana, and the third

movement from Chopin’s Piano Sonata No. 2. The mock

funeral lasted about two hours but, according to the testimony of

one of the participants, because the Union members frequently

“took breaks,” this bit of “street theater” was ongoing for only

“45 minutes to an hour ...[,] about half the time.”

In July 2004, while the unfair labor practice complaint

arising out of the mock funeral was pending before the ALJ, the

Regional Director of the NLRB asked the U.S. District Court for

the Middle District of Florida to enjoin the Union, pursuant to

Section 10(l) of the Act, from restaging the mock theater or

otherwise picketing or patrolling at the Hospital on the ground

those activities would violate § 8(b)(4)(ii)(B). See 29 U.S.C.

§ 160(l). The district court, after reviewing a Union-made

videotape of the event, found the mock funeral had been

“orderly” and that “[n]o traffic was blocked, pedestrians were
7

*

 The Eleventh Circuit, giving “deferential review” to the

position of the Board, held the mock funeral was the “functional

equivalent of picketing,” Kentov v. Sheet Metal Workers’ Int’l Ass’n

Local 15, 418 F.3d 1259, 1265 (11th Cir. 2005), and affirmed the

injunction except as to the prohibition of “street theater,” id. at 1267,

because the Board conceded its request for an injunction was not a

request to enjoin all “street theater” but only repetition of the mock

funeral, id. at 1266.

** Member Liebman contended that “ambulatory picketing

or patrolling classically involves more than the ‘mere persuasion’ of

a banner, it also involves the intimidation of a physical or symbolic

barrier to the entrance way,” so that in this case it was “the patrolling,”

not the use of a plastic sickle or the message conveyed by the mock

funeral, that erected a barrier to the Hospital. For support she pointed

to the Supreme Court’s “embrace” in Edward J. DeBartolo Corp. v.

not obstructed or challenged and there appeared to be no eye

contact or verbal contact [between] any participant” [and any

Hospital patron]. Likewise, “[t]he leafleters [at the mock

funeral] were orderly, non-confrontational and did not interfere

[with] or impede ... the egress or ingress of any individuals to or

from the hospital.” Nonetheless, the district court enjoined the

Union from “threatening, coercing or restraining [the Hospital]

by staging street theater ... [or] processions” or by “picketing,

patrolling and/or any manner of conduct calculated to induce

individuals not to patronize the hospital.”

While review of the injunction was pending before the

Eleventh Circuit,*

 the ALJ concluded the Union had violated

Section 8(b)(4)(ii)(B) because the mock funeral constituted

“picketing” and people “were forced to view and cross a death

march in order to patronize the Hospital.” In its Decision and

Order the Board agreed with the ALJ that the mock funeral in

this case was unlawful picketing, though the members of the

panel aired somewhat different views on the general subject.**
8

Florida Gulf Coast Building & Construction Trades Council, 485 U.S.

568, 580 (1988), of Justice Stevens’s concurrence in NLRB v. Retail

Store Employees Union, Local 1001 (Safeco), 447 U.S. 607 (1980), in

which the Justice characterized picketing as “a mixture of conduct and

communication. In the labor context,” he continued, “it is the conduct

element rather than the particular idea being expressed that often

provides the most persuasive deterrent to third persons about to enter

a business establishment.” Id. at 619.

Chairman Battista and Member Schaumber agreed with

Member Liebman “as to the reasons why [sic] this conduct was

picketing,” but noted “to the extent [Member Liebman] implies that

picketing requires a physical or symbolic barrier, we do not

necessarily agree. ... It may be that other conduct, short of a barrier,

can be ‘conduct’ that is picketing or at least ‘restraint or coercion’

within the meaning of Section 8(b)(4)(ii)(B).”

*

 Section 8(c) provides express statutory protection for

speech that is not threatening or coercive. See 29 U.S.C. § 158(c)

The Board therefore ordered the Union to cease and desist from

“[p]icketing [the Hospital] with the object of forcing it to cease

doing business with Massey Metals ... and Workers Temporary

Staffing.”

 II. Analysis

The Union argues its letter to Beall’s did not violate

Section 8(b)(4)(ii)(B) of the Act, first, because the Union has no

obligation to assure a neutral employer that its picketing will be

limited to a reserved gate as required by law and, at any rate,

because Beall’s did not establish a reserved gate. With respect

to the Hospital, the Union argues the mock funeral was

protected by the First Amendment to the Constitution of the

United States and points out that even offensive expressions are

protected by Section 8(c) of the Act itself.*
9

(“expressing of any views, argument, or opinion ... shall not constitute

or be evidence of an unfair labor practice under any of the provisions

of this subchapter, if such expression contains no threat of reprisal or

force ...”). We do not analyze the Union’s argument separately under

the statute and the Constitution because the Supreme Court has

explained that Section 8(c) “merely implements the First

Amendment,” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),

and the relevant case law arises under the Constitution, not under the

statute.

 

We review an order of the Board deferentially insofar as we

must determine whether the Board “acted arbitrarily or

otherwise erred in applying established law to the facts of the

case.” Stanford Hosp. & Clinics v. NLRB, 370 F.3d 1210, 1212

(D.C. Cir. 2004). The Board receives no deference, however,

insofar as we review an order for consistency with the

Constitution. See DeBartolo, 485 U.S. at 574-76; Univ. of Great

Falls v. NLRB, 278 F.3d 1335, 1340-41 (D.C. Cir. 2002); cf.

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557, 567 (1995) (reviewing claim to protection

of the First Amendment by “independent examination of the

record as a whole, without deference to the trial court”).

A. The Threat to Beall’s

The Union argues that because Beall’s neither established

a reserved gate nor notified the Union that it intended to do so,

“the Union ha[d] no duty to assume that such a system would be

in place, and no duty to propose a reserved gate system on its

own.” Moreover, the Union cannot have broken the law, it

maintains, by failing to promise it would not break the law. The

Board responds that its rule requiring a union to indicate it will

abide by Moore Dry Dock is consistent with its own precedents,

that is, “Board law,” see, e.g., State Elec., 342 NLRB No. 74 (2004).
10

The Union relies upon three propositions, all of which we

find persuasive: (1) the Ninth Circuit in Local 32 has squarely

rejected the Board’s rule in a reasoned opinion; (2) though we

have not ruled upon the issue, this circuit’s precedents are

consistent with the reasoning of the Ninth Circuit; and (3) the

Board’s rule violates what the Union calls “the canon of federal

labor law that if a course of action is lawful, advance notice of

it is also lawful,” for which it refers us to NLRB v. Servette, Inc.,

377 U.S. 46, 57 (1964), where the Court stated that protection of

lawful conduct “would be undermined if a threat to engage in

protected conduct were not itself protected.”

The Board’s failure even to mention Local 32 in its brief is

of a piece with its apparent refusal generally to recognize the

existence of that case, in which the Ninth Circuit held the Board

“could not presume that a union’s threat to picket the job was a

threat to picket contrary to the law, when picketing at the job

could be done in a lawful manner,” and said “such a

presumption is without foundation in the Act, relevant case law

or any general legal principles.” 912 F.2d at 1110. The ALJ

acknowledged Local 32, but noted that the Board “accepted [it]

only as the law of the case” and “continues to require a union to

indicate that its picketing will conform to Moore Dry Dock

standards.” In short, the Board continued to adhere to its

preferred rule, see generally Samuel Estreicher & Richard L.

Revesz, Nonacquiescence by Federal Administrative Agencies,

98 Yale L.J. 679 (1989), and in its decision did not deign to

acknowledge the contrary holding of the Ninth Circuit.

 

The Ninth Circuit’s decision is not binding upon this court,

of course, but it is considerably more persuasive than the

Board’s conclusory claim that its rule is a “reasonable

interpretation” of § 8(b)(4)(ii)(B). The Board offers us no

reason to believe it can make an unfair labor practice out of a

union’s failure to assure an employer the union will abide by the
11

law.

In addition to Local 32 the Union points to this court’s

decision in J.F. Hoff Electric Co. v. NLRB, 642 F.2d 1266

(1980). There we explained that under Moore Dry Dock

“neutral employers may insulate themselves from ... picketing

only if the reserved gate practice is faithfully observed.” Id. at

1271. This proposition, the Union reasons, necessarily implies

that “[w]here a site owner like Beall’s fails to set up a reserved

gate at all ... the Union cannot be held liable for threatening

primary picketing at the site.” This is also consistent, the Union

argues, with our decision suggesting it is an employer’s role to

inform a union of, and not the union’s obligation to ferret out,

business information relevant to the lawfulness of any self-help

in which the union might engage, see, e.g., United Scenic

Artists, Local 829 v. NLRB, 762 F.2d 1027, 1031 (1985) (burden

on employer to inform union about its business plans regarding

use of non-union labor or control of materials); by parity of

reasoning, the burden of informing a union about the existence

of or plan to erect a reserved gate should be on the neutral

employer.

The Board’s response is that J.F. Hoff merely affirmed that

the Union must target the primary employer “as exclusively as

possible,” and that unlike the business information at issue in

United Scenic Artists and J.F. Hoff itself, “the existence or lack

of a reserved gate ... is apparent to the casual observer.” True

enough if the observer, including a would-be picket, shows up

at a common situs with a proper reserved gate in place. See,

e.g., Local Union No. 501, Int’l Bhd. of Elec. Workers v. NLRB,

756 F.2d 888, 890 n.1 (D.C. Cir. 1985) (detailing signs that

adequately identify a reserved gate). The Board does not,

however, explain why this distinction between what is and what

is not apparent at the job site should turn a letter about picketing

a site that lacks a reserved gate into a threat to picket that site in
12

a manner that would violate the rules of engagement applicable

if it did have a reserved gate.

We therefore adopt the Ninth Circuit’s straightforward

reasoning that the Board “could not presume that a union’s

threat to picket the job was a threat to picket contrary to the law,

when picketing at the job could be done in a lawful manner”; we

agree that “such a presumption is without foundation in the Act,

relevant case law or any general legal principles,” Local 32, 912

F.2d at 1110. Because the Union’s letter to Beall’s made no

suggestion it intended to do anything that would violate the Act

and the Board may not presume the letter was a “threat to picket

contrary to the law, when picketing ... could be done in a lawful

manner,” id., we vacate the Board’s Decision and Order to the

extent it holds the Union’s letter violated the Act and orders the

Union to cease “unqualifiedly threatening to picket.”

B. The Mock Funeral at the Hospital

The Union argues the mock funeral “could never have been

prohibited if it had expressed opposition to the Hospital’s

practices, environmental policy, or any other grievance.” More

specifically, under the Supreme Court’s abortion protest cases

the Union’s activities were constitutionally protected and cannot

be considered coercive or intimidating; different rules for labor

protests would be unconstitutional viewpoint discrimination.

The Union points out that Madsen v. Women’s Health Center,

Inc., 512 U.S. 753 (1994), and Hill v. Colorado, 530 U.S. 703

(2000), provide specific guidance as to what kinds of protest

activities government may and may not proscribe. In Madsen,

the Supreme Court held that a state-court injunction creating a

300-foot buffer zone around an abortion clinic, within which

protesters were prohibited from “physically approaching any

person seeking services” at the clinic, was an unconstitutional

burden upon the protesters’ right of free speech, 512 U.S. at 773;
13

id. at 776; at the same time the Court upheld the injunction’s 36-

foot buffer zone around the clinic’s entrances and driveways, id.

at 770. In Hill, the Court upheld as constitutional a state statute

making it unlawful, within 100 feet of the entrance to an

abortion clinic, to make an unwanted physical approach to

within eight feet of another person for the purpose of passing out

a leaflet, handbilling, displaying signs, or engaging in oral

protest, education, or counseling, 530 U.S. at 707 n.1, 714.

In this case, as the record and particularly the videotape

therein reveal, the Union’s conduct was fully consistent with

Madsen and Hill. The Board would have us distinguish those

cases on the ground that here there is a strong governmental

interest in regulating picketing the objective of which — “to

pressure the Hospital, a neutral entity, to stop doing business

with certain non-union contractors” — is proscribed by statute;

so it is that the Eleventh Circuit, in the related injunction

proceeding, “rejected the Union’s constitutional defense.” See

Kentov, 418 F.3d at 1264-65. But in that case, which arose

under Section 10(l) of the Act, the court of appeals’ review was

“limited to evaluating whether the Board’s theories of law and

fact are not insubstantial and frivolous,” Dowd v. Int’l

Longshoremen’s Ass’n, 975 F.2d 779, 783 (11th Cir. 1992)

(internal quotation marks omitted). See Kentov, 418 F.3d at

1263. The court did not fully address the merits of the Union’s

constitutional argument because it was enough, in that

procedural context, for the court to conclude “there [was]

reasonable cause to believe that the Union’s conduct ... [was] the

functional equivalent of picketing, and therefore, the First

Amendment concerns in DeBartolo [were] not present,” id. at 1265.

Before this court the Board generally ignores the Union’s

“content-based” argument but does point us to the Supreme

Court’s observation in NAACP v. Claiborne Hardware Co., 458

U.S. 886 (1982), that “[s]econdary boycotts and picketing by
14

labor unions may be prohibited, as part of Congress’ striking of

the delicate balance between union freedom of expression and

the ability of neutral employers, employees, and consumers to

remain free from coerced participation in industrial strife,” id.

at 912 (internal quotation marks omitted). That statement,

however, leaves open the question what constitutes “coerced

participation” in a labor dispute and, of course, does nothing to

suggest coercion may be defined so broadly as to crimp the free

speech guarantee of the First Amendment. Moreover, as the

Union points out, the Court has since rejected the claim that

labor picketing is necessarily “commercial speech ... and thereby

entitled to a lesser degree of constitutional protection.”

DeBartolo, 485 U.S. at 576. The Court also has confirmed that

the canon of constitutional avoidance is not suspended merely

because a secondary boycott is at issue. See id. at 575 (“where

an otherwise acceptable construction of [the Act] would raise

serious constitutional problems, the Court will construe the

statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress”). We therefore

review the Board’s application of the Act to the facts of this case

mindful that the National Labor Relations Act “ought not be

construed to violate the Constitution if any other possible

construction remains available,” NLRB v. Catholic Bishop of

Chi., 440 U.S. 490, 500 (1979).

The Supreme Court’s opinion in DeBartolo also makes

clear that, in contrast to Section 8(b)(4)(i)(B), under which it is

illegal per se to “induce or encourage” employees of a secondary

employer to strike, not every effort to convince consumers to

boycott a secondary employer is illegal under Section

8(b)(4)(ii)(B): “[M]ore than mere persuasion is necessary to

prove a violation of § 8(b)(4)(ii)(B): that section requires a

showing of threats, coercion, or restraints.” 485 U.S. at 578.

Before DeBartolo, the Court had “left no doubt that Congress

may prohibit secondary picketing” directed to “‘the customers
15

of the secondary employer,’” Safeco, 447 U.S. at 616 (quoting

NLRB v. Fruit and Vegetable Packers, Local 760 (Tree Fruits),

377 U.S. 58, 63 (1964)), but the Court had not spoken to the

question whether the Congress had — or for that matter,

whether it could have — prohibited other means of appealing to

the customers of the secondary employer, such as the

handbilling and the mock funeral in this case, the latter of which

is neither picketing nor handbilling but has elements of each.

 

After DeBartolo, it is clear that unlike picketing or

patrolling, handbilling directed at secondary consumers is

ordinarily not coercive and therefore does not run afoul of

§ 8(b)(4)(ii)(B). See 485 U.S. at 578. At the very least,

therefore, the Union is correct that after DeBartolo its

“objective” in conducting the mock funeral — to persuade

consumers not to patronize the Hospital, the secondary

employer, so the Hospital would not deal with Energy Air, the

primary employer — was not proscribed by § 8(b)(4)(ii)(B).

 

As for the means the Union used to appeal to customers of

the secondary employer, the mock funeral was a combination of

street theater and handbilling. The Eleventh Circuit and the

Board deemed this the “functional equivalent of picketing,”

Kentov, 418 F.3d at 1265, but did not distinguish ends from

means. Clearly, the Union’s end in conducting the mock funeral

was to dissuade consumers from patronizing the secondary

employer, and in that sense the funeral was the functional

equivalent of picketing. Just as clearly, however, the mock

funeral was not the functional equivalent of picketing as a means

of persuasion because it had none of the coercive character of

picketing, as the Eleventh Circuit itself found: Union members

did not physically or verbally interfere with or confront Hospital

patrons coming and going; nor, contrary to Member Liebman’s

description, did the mock funeral participants “patrol” the area

in the sense of creating a symbolic barrier to those who would
16

*

 Member Liebman described the funeral as a “procession in

which four persons went back and forth on the public sidewalk in front

of the hospital’s main entrance,” thereby creating a “symbolic barrier,

a line ... not to be crossed,” which conveys the erroneous impression

that the funeral was immediately adjacent to, rather than 100 feet away

from, the entrance.

enter the Hospital.* Had they done so, or in any other way

interfered with or confronted patrons entering or leaving the

Hospital, we would agree with the Board that the Union’s

conduct was the “functional equivalent of picketing,” and

therefore coercive and unlawful. See, e.g., Overstreet v. United

Bhd. of Carpenters, Local No. 1506, 409 F.3d 1199, 1213, 1213-

15 (9th Cir. 2005) (concluding, in preliminary injunction case,

banner protest was not picketing where it did not include

ambulatory picketing, signal picketing, or interference with or

likelihood of confrontation with customers entering or exiting

business); Prod. Workers Union of Chi. & Vicinity v. NLRB, 793

F.2d 323, 328 n.4 (D.C. Cir. 1986) (“picketing is ordinarily an

attempt, by means of patrolling at a site with a message of some

kind on the picket sign, to instigate a boycott” (quoting Howard

Lesnick, The Gravamen of the Secondary Boycott, 62 Colum. L.

Rev. 1363, 1364 n.5 (1962)) (internal quotation marks omitted)).

Nor was there, in this case, any “signal picketing,” which entails

“an implicit instruction to other union members, including union

employees of secondary businesses,” to stop work. Overstreet,

409 F.3d at 1215. The mock funeral and handbilling were

addressed solely to customers; the Board does not suggest the

Union in any way signaled union employees of the Hospital.

We therefore conclude the mock funeral was not the functional

equivalent of picketing.

Having determined the mock funeral lies somewhere

between the lawful handbilling in DeBartolo and unlawful

picketing or patrolling, we reach the ultimate question whether
17

the means by which the Union delivered its message was

coercive, threatening, restraining, or “intimidating.” See

DeBartolo, 485 U.S. at 580 (“loss of customers because they

read a handbill urging them not to patronize a business, and not

because they are intimidated by a line of picketers, is the result

of mere persuasion, and the neutral who reacts is doing no more

than what its customers honestly want it to do”). That question

must be answered consistent with developments in the Supreme

Court’s first amendment jurisprudence.

No court has yet determined how the Supreme Court cases

dealing with protests at abortion clinics apply to the question

whether a particular labor protest is coercive. Hence, we revisit

the abortion protest cases themselves for such light as they shed

upon the kinds of union conduct to be deemed intimidation and

therefore unprotected by the First Amendment. Recall the

Board described the mock funeral as “patrolling,” and

DeBartolo suggests patrolling is per se coercive and therefore a

violation of the Act. As stated earlier, we disagree with the

Board that the conduct was “picketing,” and so the question for

us is whether the activity was coercive. The abortion cases tell

us that “coercion” must be understood in a manner consistent

with the First Amendment.

 

Here the Union’s protest was consistent with the limitations

upheld as constitutional — the buffer zones and the ban on

confrontational conduct — in Madsen and Hill. The mock

funeral occurred about 100 feet from the Hospital and the Board

does not claim the participants approached patrons any closer to

the Hospital. Indeed, the Union’s protest operated well within

those limitations, for the videotape shows the mock funeral was

a quiet affair, not at all like the charged atmosphere surrounding

the abortion protests in Madsen, see 512 U.S. at 758 (“The

number of people congregating [at abortion protests] varied

from a handful to 400, and the noise varied from singing and
18

chanting to the use of loudspeakers and bullhorns”); the Union

protesters came nowhere near blocking anyone’s ingress or

egress and did not even make eye contact with Hospital patrons.

Their behavior was orderly, disciplined, even somber, as befits

a funeral; nothing they did can realistically be deemed coercive,

threatening, restraining, or intimidating as those terms are

ordinarily understood — quite apart, that is, from any special

understanding necessary to avoid infringing upon the Union

members’ right of free speech.

Nor was their “message” — invoking the iconography of

the funeral rite and stating that “Going to Brandon Hospital

Should Not Be a Grave Decision” — one by which a person of

ordinary fortitude would be intimidated. The Board would have

us believe, in the words of the ALJ, the mock funeral “forced”

patrons to “cross a death march” in order to get to the Hospital,

as if the horrors of Bataan in 1942 were being reenacted in front

of the Hospital. The procession was not only orderly, the

protesters went out of their way to convey a law-abiding, and

therefore nonthreatening, attitude; as the district court in Kentov

observed, “The participants politely pressed a ‘walk’ button and

waited for a ‘walk’ signal at the crosswalk before crossing.”

Their message may have been unsettling or even offensive to

someone visiting a dying relative, see Kentov, 418 F.3d at 1262,

but unsettling and even offensive speech is not without the

protection of the First Amendment. See, e.g., Hill, 530 U.S. at

716 (“[t]he right to free speech ... may not be curtailed simply

because the speaker’s message may be offensive to his

audience”); see also McQueary v. Stumbo, 453 F. Supp. 2d 975,

987 (E.D. Ky. 2006) (noting, in granting preliminary injunction

against enforcement of state statute aimed at preventing

antihomosexual picketing at funerals, “individuals have a First

Amendment right to speak ... about a public issue — even where

the speech is distasteful, discomforting, odious or ignorant”).
19

In sum, the Union is correct that, pursuant to DeBartolo, its

attempt to persuade consumers to boycott the Hospital must be

evaluated in a manner consistent with the First Amendment.

Under the Court’s decisions in Hill and Madsen, sources of

constitutional guidance with which the Union quite obviously

complied, the mock funeral was not “threaten[ing], coerc[ive],

or restrain[ing],” in violation of Section 8(b)(4)(ii)(B). It

follows that the Board erred in holding the Union violated that

section of the Act by “picketing” the Hospital.

C. Failure to Provide Notice under Section 8(g)

The Board also held the Union violated Section 8(g) of the

Act because it did not provide written notice to the Hospital at

least 10 days before it conducted the protests there. See 29

U.S.C. § 158(g) (labor organization must give notice at least 10

days before “engaging in any strike, picketing, or other

concerted refusal to work at any health care institution”). The

Union objects that its protest was not a “strike, picket[], or other

concerted refusal to work,” and because it did not appeal to the

Hospital’s employees neither was it an inducement to strike, etc.

That is plainly correct. We therefore hold the Union did not

violate Section 8(g) of the Act.

III. Conclusion

For the forgoing reasons, we grant the Union’s petition for

review of the Board’s Decision and Order and deny the Board’s

cross-application for enforcement. The case is remanded for the

Board to consider the issues it did not reach in the Decision and

Order because they would have been cumulative and would not

have affected the Order had it survived review.

So ordered.