National Labor Relations Board

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.

No. 04-14126


418 F.3d 1259; 2005 U.S. App. LEXIS 16461; 177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524; 18 Fla. L. Weekly Fed. C 788

August 8, 2005, Decided August 8, 2005, Filed

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 04-01730-CV-JDW-TBM.


COUNSEL: For Sheet Metal Workers’ International Association Loc, Appellant: Michael T. Anderson, Arlus Jeremhiah Stephens, Davis, Cowell & Bowe, LLP, Washington, DC; Richard P. Siwica, Egan, Lev & Siwica, Orlando, FL.

For Rochelle Kentov, Appellee: Judith I. Katz, Margaret E. Luke, Esq., National Labor Relations Board, Wwashington, DC; Steven Sokolow, NLRB, Deputy Assistant General Counsel, Washington, DC.

Amicus for Greenpeace USA: Jamin B. Raskin, American University, Washington College of Law, Washington, DC.

Amicus for Associated Builders and Contractors, Inc.: Maurice Baskin, Venable, LLP, Washington, DC.

Amicus for Galencare, Inc.: Tammie Leigh Rattray, Ford & Harrison, LLP, Tampa, FL.

JUDGES: Before TJOFLAT and KRAVITCH, Circuit Judges and LIMBAUGH, District Judge.*

* Honorable Stephen Limbaugh, United States District Judge for the Eastern District of Missouri, sitting by designation.



[*1261] KRAVITCH, Circuit Judge:

Sheet Metal Workers’ International Association Local 15, AFL-CIO (“the Union”), appeals the district [**2] 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

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Medical Center (“the hospital”). 1 Massey is a sheet metal fabrication and installation contractor and WTS is a staffing agency that supplies labor employees to Massey.

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

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 [**3] sidewalk along Oakfield Drive, crossing South Moon Avenue which leads directly into the hospital’s main entrance and intersects with Oakfield Drive. 2 Oakfield Drive and South Moon 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.”

2 The event was documented by a videotape which is part of the record. The parties agree that the video fairly depicts what occurred.

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 [**4] four recent patient deaths at the hospital. 3 They were entitled: “Going to Brandon Regional Hospital Should Not be a Grave Decision.” Each handbill contained the statement: “A public service message from the Sheet Metal Workers’ International Association.”

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

The mock funeral procession was orderly. Traffic was not blocked and pedestrians [*1262] 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 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 [**5] 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.

the Board’s Regional Director

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 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 [**6] 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. 4 The Union now appeals, 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.

4 In pertinent part, the injunction “enjoined and restrained [the union] from threatening, 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

Page 2 418 F.3d 1259, *1261; 2005 U.S. App. LEXIS 16461, **2;

177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524



handbilling without picketing, patrolling, or procession.

II. Standard of Review

[**7] 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., 952 F.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 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 [*1263] 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 [**8] 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:

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