San Antonio Community Hosp. v. Southern California Dist. Council of Carpenters

• Decision Date: 17 February 1998
• Docket Number: No. 96-56124,96-56124
• Citation: 137 F.3d 1090
• Parties: 157 L.R.R.M. (BNA) 2537, 135 Lab.Cas. P 10,121, 98 Cal. Daily Op. Serv. 1127 SAN ANTONIO COMMUNITY HOSPITAL, Plaintiff-Appellee, v. SOUTHERN CALIFORNIA DISTRICT COUNCIL OF CARPENTERS, an unincorporated association; Carpenters Local 1506, an unincorporated association; Does 1 through 100, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1090

137 F.3d 1090

157 L.R.R.M. (BNA) 2537, 135 Lab.Cas. P 10,121,

98 Cal. Daily Op. Serv. 1127

SAN ANTONIO COMMUNITY HOSPITAL, Plaintiff-Appellee, v. SOUTHERN CALIFORNIA DISTRICT COUNCIL OF CARPENTERS, an unincorporated association; Carpenters Local 1506, an unincorporated association Does 1 through 100 Defendants-Appellants.

No. 96-56124.

United States Court of Appeals Ninth Circuit.

Feb. 17, 1998.

Before: FARRIS, KOZINSKI, and T.G. NELSON, Circuit Judges.

REINHARDT, Circuit Judge, with whom Judges PREGERSON, KOZINSKI, and TASHIMA join, dissenting from the failure to rehear en banc:

Prior report: 125 F.3d 1230.

ORDER

Judges Farris and T.G. Nelson voted to deny the petition for rehearing. Judge Nelson votes to reject the suggestion for rehearing en banc, and Judge Farris so recommends. Judge Kozinski voted to grant the petition for rehearing and votes to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for a rehearing en banc is REJECTED.

REINHARDT, Circuit Judge, with whom Judges PREGERSON, KOZINSKI, and TASHIMA join, dissenting from the failure to rehear en banc:

Once again, I am compelled to express my deep regret that this court has failed to exercise its responsibility to rehear a case en banc. ¹ By refusing to review the divided panel opinion, we become not only the first circuit court in the 66-year history of the Norris-LaGuardia Act to uphold a preliminary injunction against peaceful labor speech on the basis that the content of the message constitutes "fraud," but also the first circuit court in the 34-year history of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to uphold an injunction against speech subject to the First Amendment's "actual malice" standard. I would have thought that such an opinion would have disturbed the "uniformity of our decisions" or "involv[ed] a question of exceptional importance." Fed. R.App. P. 35(a); Ninth Cir. Rule 35(a). Apparently not, in the view of a majority of our active judges. ²

This case required en banc rehearing to overrule two fundamental errors in the majority opinion: (1) its disregard for the previously unchallenged rule that federal judges may not issue injunctions that operate as prior restraints on peaceful labor speech; and (2) its erroneous holding that a "labor dispute" does not exist when a union pickets a "secondary" employer. The second error contravenes the plain language of the Norris-LaGuardia Act, repudiates a determination deliberately made by Congress when enacting that law, and specifically reaffirmed by Congress 15 years later when enacting the Taft-Hartley Act, and, to top it off, creates a direct intra-circuit conflict with Smith's Mgmt. v. IBEW Local 357, 737 F.2d 788 (9th Cir.1984).

I

The majority found, without citing a single case involving free speech in the context of Because the Norris-LaGuardia Act's "fraud" exception is the same as the "actual malice" standard first enunciated in New York Times v. Sullivan, see Linn v. United Plant Guard Workers, 383 U.S. 53, 58, 86 S.Ct. 657, 660-61, 15 L.Ed.2d 582 (1966), the Supreme Court has made it perfectly clear that " 'the most repulsive [labor] speech enjoys immunity provided it falls short of deliberate or reckless untruth' " and, "[b]efore the test of reckless or knowing falsity can be met, there must be a false statement of fact." Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974) (quoting Linn, 383 U.S. at 63, 86 S.Ct. at 663) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974)) (emphasis added). Moreover, since "[l]abor disputes are ordinarily heated affairs, ... frequently characterized by bitter and extreme exchanges, countercharge, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions," Linn, 383 U.S. at 58, 86 S.Ct. at 660-61, "federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint." Letter Carriers, 418 U.S. at 283, 94 S.Ct. at 2781 (emphasis added).

                labor disputes, or a single case involving free speech covered by New York Times v. Sullivan, that because members of the public could misinterpret the Union's banner as stating that the Hospital had a rodent problem, the language on the banner was "so misleading that it falls beyond the First Amendment's protections."  125 F.3d 1230, 1237 (9th Cir.1997) (quotation omitted). 3  On that basis, it upheld an injunction against the union speech.  As Judge Kozinski's dissent convincingly demonstrates, however, this decision is directly contrary to law.  125 F.3d at 1239-40 (Kozinski, J., dissenting).  I briefly add to my able colleague's cogent analysis only in order to highlight the fact that a long line of decisions by the federal courts leaves no doubt that the language on the banner falls well within the protections of the Norris-LaGuardia Act and the First Amendment--and that in no event can such speech be enjoined
                

The Court has been no less emphatic in applying this standard. It stated over 50 years ago, in reversing a state court injunction of union picketing, that "to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies--like 'unfair' or 'fascist '--is not to falsify facts." Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943) (emphasis added). More recently, the Court held that a union's repeated references in newsletters to replacement workers as "scabs" "cannot be the basis of a state libel judgment"--let alone an injunction--because unions must be permitted to employ "rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join." Letter Carriers, 418 U.S. at 282-83, 286, 94 S.Ct. at 2780-81, 2782.

Until the majority's opinion, federal courts had consistently come to the seemingly obvious conclusion that the Court's pronouncements applied equally to the word "rat," another commonplace term in labor disputes--a term that refers to replacement workers and their employers. See BE & K Const. Co. v. NLRB, 23 F.3d 1459, 1463 (8th Cir.1994) (protecting union's right to urge boycott against "rat" contractor); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 840 F.Supp. 697, 705 (E.D.Mo.1993) (holding that handbill outside grocery store entitled "Don't Help Feed the Rat" was protected speech), aff'd, 39 F.3d 191 (8th Cir.1994). This judicial conclusion finds direct support in the dictionary as well. See 2 The New Shorter Oxford English Dictionary 2480 (4th ed.1993) (defining "rat" as "[a] worker who refuses to join a strike or who takes a striker's place"); Webster's Notwithstanding the unequivocal precedent protecting speech like that used in the Union's banner (and even protecting the very term involved), the two-judge majority erroneously concluded that "the Union's banner crossed the line separating protected rhetorical hyperbole from unprotected fraudulent misrepresentations of fact," 125 F.3d at 1237. In holding that the Union's message was so far removed from the type of dialogue properly employed in labor disputes that it could be enjoined by a federal judge, the majority was plainly insensitive to the type of terminology long used in labor disputes and was simply wrong about the injunctive powers of the federal courts in the post Norris-LaGuardia era.

Third New International Dictionary 1884 (1981) (same).

For starters, the banner used a well-established term and it stated the truth. It used the term "rats" in the precise manner the term is traditionally used in labor disputes and in the manner that the dictionary recognizes it is used in such context. "Rats," contractors who are paying less than the prevailing wage and workers who are accepting such a wage, were "literally and factually" prevalent in the Hospital. That alone is enough to protect the speech from ordinary tort liability. See Letter Carriers, 418 U.S. at 283, 94 S.Ct. at 2780-81 (holding that usage of "scab" was protected because, as used in the labor context of the case, it was "literally and factually true"). It is far more than enough to protect it against a post-Norris-LaGuardia-Act injunction by federal judges. Moreover, the union's conduct was hardly recklessly misrepresentative. Lest any readers of the banner be confused by the meaning of the word "rats" in the banner's context, the word was immediately followed by the Union's name and an explanation that a labor dispute was occurring. And, just to be sure, union members were passing out flyers explaining that "[a] rat is a contractor that does not pay all of its employees prevailing wages or provide health and pension benefits to all of its employees." 125 F.3d at 1239 n. 2. To read, as the majority did, the first sentence of the banner entirely out of context and conclude that it was recklessly "false" ignores entirely the context and circumstances in which speech must be understood. See Iron Workers v. Pauly Jail Bldg. Co., 118 F.2d 615 (8th Cir.1941) ("Expressions of opinion, though inaccurate and even misrepresentative in character, obviously cannot be permitted to be made the basis ordinarily for injunctive processes in a labor dispute"). Even worse, it quashes unions' well-established right to use "lusty and imaginative" words in a "loose, figurative," sense. Letter Carriers, 418 U.S. at 284, 94 S.Ct. at 2781. The majority opinion would certainly not permit or encourage ...