Kohn v. Southwest Regional Council of Carpenters
| Decision Date | 27 October 2003 |
| Docket Number | No. CV 03-5806GAF(SHX).,CV 03-5806GAF(SHX). |
| Citation | 289 F.Supp.2d 1155 |
| Parties | Byron B. KOHN, Acting Regional Director of Region 31 of the National Labor Relations Board, on behalf of the National Labor Relations Board, Petitioner, v. SOUTHWEST REGIONAL COUNCIL OF CARPENTERS and Carpenters Local Union No. 209, United Brotherhood of Carpenters and Joiners of America, Respondents. |
| Court | U.S. District Court — Central District of California |
Lavrel Spillane, Anne Pomerantz, Katherine Braun Mankin NLRB, Los Angeles, CA, for plaintiff.
Gerald V. Selvo, DeCarlo, Connor & Selvo, Los Angeles, CA, for defendant.
MEMORANDUM AND ORDER RE: PETITION FOR A TEMPORARY INJUNCTION TO RESTRAIN LABOR ACTION
The Southwest Regional Council of Carpenters, Local 209 ("the union") has been engaged in a lengthy labor dispute with M & M Interiors, Inc., a building trades company that allegedly pays its carpenters substandard wages and benefits. To publicize its dispute with M & M, union members have been displaying a banner and handing out leaflets at Silver Star Cadillac, a work site where M & M has been employed as a subcontractor by Carignan Construction Company ("Carignan"), the prime contractor on a remodeling project. The union's banner reads "Labor Dispute: Shame on Cadillac/SAAB: Labor Dispute." The leaflets provide a more detailed description of the union's dispute with M & M.
Carignan filed a complaint with the National Labor Relations Board ("NLRB") to force the union to cease these activities, and the NLRB filed this petition. Petitioner Kohn, the Acting Regional Director of the NLRB, concedes the right of the union members to hand out leaflets at the construction site, but asserts that the union's "bannering" activity violates § 8(b)(4)(ii)(B) of the National Labor Relations Act ("NLRA"), which declares it to be an unfair labor practice to "threaten, coerce, or restrain any person engaged in commerce ... where ... an object thereof is ... forcing ... any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ...." In short, the NLRB takes the position that the display of the banner constitutes an illegal attempt to coerce secondary parties — Silver Star Cadillac and Carignan — into ceasing to do business with M & M. Through this petition, the Regional Director seeks a preliminary injunction under § 10(l) of the NLRA to force the union to cease displaying the banner during the pendency of this lawsuit before the NLRB.
Because the Regional Director has clearly established that the banner has been displayed (a fact the union does not dispute), the principle issue before the Court is whether the display of the banner constitutes a "threat, coercion or restraint" within the meaning of the statute. If the Court answers that question in favor of the NLRB, the Court must then address whether or not the statute, as applied, impermissibly infringes on protected First Amendment rights. If, on the other hand, the statute does not reach the challenged activity, then the petition should be denied and the First Amendment issues need not be addressed.
The Regional Director has failed to persuade the Court that he has any reasonable prospect of proving at trial that the display of the banner violates the statute. On the contrary, this Court concludes that, under controlling Supreme Court precedent, the conduct of the union members in displaying the banner falls outside the scope of § 8(b)(4)(ii)(B)'s prohibition against activities that threaten, coerce, or restrain. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ("DeBartolo II"). DeBartolo II teaches that the NLRB's proposed construction, which would outlaw the union's mere display of the banner at the work site, raises serious First Amendment issues that need not be confronted because of the availability of a reasonable, alternative construction that conforms to congressional intent and the legislation's purposes. In short, the reasoning of DeBartolo II demonstrates that the Regional Director's petition for a temporary injunction, based on a discredited construction of the statute, is meritless. Accordingly, the petition is DENIED.
Sometime in October 2002, Silver Star Cadillac, an auto dealership in Thousand Oaks, California, commenced a remodeling project and engaged Carignan as the general contractor. Carignan, in turn, engaged M & M as a subcontractor to perform steel stud and drywall services at the jobsite. (Pet. at 4.) The present dispute arises out of the union's grievances with M & M, whom the union claims provides substandard wages and benefits to its employees.
Since approximately June 2, 2003, three to four union representatives have displayed a banner outside the premises of Silver Star Cadillac, on a public sidewalk.1 (Memo at 6; Opp. at 14; Pet., Exh. 1 at 30.) The Banner is approximately four feet tall and twenty feet long. (Id.) In large, red letters on a white background, the banner reads "Shame on Cadillac/SAAB," while the words "Labor Dispute" flank this declaration on either side in smaller, pitched, black font. (Id.)
The union representatives holding this banner also pass out leaflets to those passing by. (Memo at 7; Opp. at 14; Pet. at 4-5.) These leaflets feature an illustration of a grungy, bedraggled rat gnawing on an American flag, bordered by the outline of a house. (Pet., Exh. 1 at 15.) The leaflets read, in full:
SHAME ON
Cadillac SAAB
For Desecration of the American Way of Life
[Rat illustration]
A rat is a contractor that does not pay all of its employees prevailing wages, including either providing or making payments for health care and pension benefits.
Shame on Cadillac SAAB for contributing to erosion of area standards for carpenter craft workers. M & M Interiors is a sub contractor for Carignan Construction on Cadillac SAAB's dealership project located in the city of Thousand Oaks. M & M Interiors does not meet area labor standards for all its carpenter craft workers, including fully paying for family health benefits and pension.
Carpenters Local 209 objects to substandard wage employers like M & M Interiors working in the community. In our opinion the community ends up paying the tab for employee health care and low wages tend to lower general community standards, thereby encouraging crime and other social ills.
Carpenters Local 209 believes that Cadillac SAAB has an obligation to the community to see that area labor standards are met for construction work at all their projects, including any future work. They should not be allowed to insulate themselves behind "independent" contractors. For this reason Local 209 has a labor dispute with all the companies named here.
PLEASE TELL CADILLAC SAAB THAT YOU WANT THEM TO DO ALL THEY CAN TO CHANGE THIS SITUATION AND SEE THAT AREA LABOR STANDARDS ARE MET FOR CONSTRUCTION WORK ON THEIR DEALERSHIPS.
The members and families of Carpenters Local 209 thank you for your support. Call (818) 364-9303 for further information.
WE ARE NOT URGING ANY WORKER TO REFUSE TO WORK NOR ARE WE URGING ANY SUPPLIER TO REFUSE TO DELIVER GOODS.
(Id. (emphasis in original).)
On June 16, 2003, Carignan filed a charge with the NLRB, alleging that the union is engaging in unfair labor practices within the meaning of NLRA § 8(b)(4)(ii)(B). (Pet. at 2.) The Regional Director concluded that he was required, under § 10(l) of the NLRA, 29 U.S.C. § 160(l), to petition this Court for the requested temporary injunction pending final disposition of this matter in proceedings now pending before the NLRB. (Pet. at 2, 7.) However, he concedes that the leaflets are lawful and seeks only to enjoin the union's bannering activities. (Memo at 7.)
This case presents a threshold question regarding the proper standard to be applied in assessing the Regional Director's petition for a preliminary injunction. The union argues that the Court should apply the traditional balancing test generally applied to applications for preliminary injunctions; the Regional Director disputes this and contends that he need only show "reasonable cause" for seeking the petition in order to obtain a preliminary injunction.
The traditional standard would require the Regional Director to demonstrate a combination of probable success on the merits and a possibility of irreparable harm. See, e.g., A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001); Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir.1994). As the likelihood of success decreases, the obligation of the moving party to show the probability and seriousness of irreparable harm increases. See id. The Regional Director contends that this analytic framework does "not apply to § 10(l) proceedings." (Memo at 4.)
The Regional Director correctly observes that "§ 10(l) is `mandatory in nature' and expressly requires the Board to seek an injunction whenever it has `reasonable cause' to believe that any of the listed unfair labor practices have occurred." (Memo at 4 (citing Miller, 19 F.3d at 456-57).) Section 10(l) reads, in pertinent part:
Boycotts and strikes to force recognition of uncertified labor organizations; injunctions; notice; service of process. Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of [§ 8(b)(4)(ii)(B)] ..., the preliminary investigation of such charge shall be made forthwith .... If, after such investigation, 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 district court of the United States...
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