MEMORANDUM AND ORDER RE: PETITION FOR A TEMPORARY INJUNCTION TO RESTRAIN LABOR ACTION

GARY FEESS, District Judge

I. INTRODUCTION

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(1) 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. If1 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. FIa. Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 575 (1988) ("DeBartolo II"). DeBartolo II teaches that the NLRB's proposed M 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 ofDeBartolo II deomonstrates 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.

II. BACKGROUND

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. (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(1) of the2: NLRA, 29 U.S.C. § 160(1), 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.)

III. ANALYSIS

A. THE STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

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.

1. The Traditional Standard

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. CaI. 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(1) proceedings." (Memo at 4.)

2. Section 10(I)'s "Reasonable Cause" Language

The Regional Director correctly observes that "§ 10(1) 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 (citingMiller, 19 F.3d at 456-57).) Section 10(1) 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 . . . within any district where the unfair labor practice in question has occurred . . . for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper , notwithstanding any other provision of law. . . .

3. The Regional Director's "Reasonable Cause" Precedent

The statutory text suggests that the reasonable cause standard establishes the test the Regional Director should apply in determining whether or not to file a petition. Nevertheless, the Regional Director has identified a number of cases that suggest that § 10(I)'S reasonable cause language must guide the Court's decision regarding issuance of the requested preliminary injunction. Foremost among these is Nelson v. International Brotherhood of Electrical Workers, 899 F.2d 1557 (9th Cir. 1990), in which the Ninth Circuit affirmed the district court's grant of a preliminary injunction prohibiting a labor union from enforcing an arbitration ruling, where the court found that enforcement of the ruling would constitute an unfair labor practice in the form of an unlawful collective bargaining agreement. See id. at 1561. The Nelson court did indeed interpret § 10(1) as the Regional Director suggests, finding that the district court should issue an injunction under that section "where there is `reasonable cause to believe' that the violation charged has been committed, and [where] the issuance of an injunction is `just and proper.'" Id. at 1560. Thus, Nelson and similar decisions established an alternate test for assessing applications for preliminary injunctions in NLRA cases. 4. The Ninth Circuit Rejected Nelson's Reasoning in Miller v. California Pacific Medical Center

The Regional Director's reliance on Nelson is misplaced. TheNelson court's reasoning on how district courts should analyze § 10(1) petitions relied principally on an interpretation of NLRA § 10(j) set forth in a line of cases that were squarely addressed and overruled by the Ninth Circuit en bane in Miller v. California Pacific Medical Center 19 F.3d 449 (9th Cir. 1994). The reasoning in Miller controls in this case.

a. Miller's Background — The Nurses' Union Dispute

In Miller, two hospitals merged into a single entity. At one of the predecessor institutions, some 500 nurses were represented by the California Nurse's Association; at the other, some 800 nurses were not unionized. Because the majority of nurses at the combined entity were not members of the union, the merged entity gave notice that it would no longer recognize the union as the nurses' bargaining representative and would terminate its contract with the union when it expired. The NLRB Regional Director sought a preliminary injunction under § 10(j) to require the post-merger hospital to bargain in good faith with the union and to restore the union to its pre-merger status. See id. at 451-52. The District Court granted the preliminary injunction in a published opinion that expressly rejected the defendant's claim that the injunction should issue only upon a finding of likelihood of success on the merits and the possibility of irreparable injury. See Miller ex rel. NLRB v. CaI. Pac. Med. Ctr., 788 F. Supp. 1112 (N.D. CaI. 1992). The reviewing panel reversed, and the Circuit then took the matter en bane "to clarify the standards to be applied in reviewing § 10(j) petitions." Miller, 19 F.3d, at 451.

b. The Incorporation of § 10(I)'S "Reasonable Cause" Language into § 10(j) Jurisprudence

The en bane panel analyzed the similarities and differences in §§ 10(j) and 10(I). The court observed that § 10(j) is broader than § 10(I) in that it is not limited to "[b]oycotts and strikes to force recognition of uncertified labor organizations," 29 U.S.C. § 160(I), and noted that § 10(j) leaves the NLRB with more discretion regarding whether or not to pursue a temporary injunction in district court than does § 10(I). See Miller, 19 F.3d at 455. Section 10(j) does not contain § 10(1)'s "reasonable cause" language, but both contain the same "just and proper" language. Of particular importance to the present case, the Circuit noted that, despite the absence of "reasonable cause" language in § 10(j), a line of cases including Aguayo v. Tomco, 853 F.2d 744 (9th Cir. 1988), and Scott v. El Farra Enters., Inc., 863 F.2d 670 (9th Cir. 1988), had imported § 10(1)'s "reasonable cause" component into Ninth Circuit § 10(j) jurisprudence. See Miller, 19 F.3d at 456. Thus, the scope and meaning of the "reasonable cause" language were squarely before the Miller court.

c. The "Reasonable Cause" Language Places no Limits on the District Court's Traditional Equitable Powers

The Miller court overruled Tomco and El Farra, see id. at 457, and heavily criticized incorporation of § 10(1)'s "reasonable cause" component into any district court analysis regarding the propriety of issuing a preliminary injunction:

Section 10(1), unlike § 10(j), is mandatory in nature: Whenever the Board develops "reasonable cause" to believe that any one of the specified types of labor violations has occurred, it must petition the district court "for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter." 29 U.S.C. § 160(1), Even so, In § 10(I), the "reasonable cause" requirement has to do with the Board's own obligations under the Act — not with a constraint on the equitable powers of the district court once its jurisdiction has been properly invoked .

. . . . [T]he level of belief required to proceed to court cannot equate with the level of proof required to succeed in court; otherwise the court would have;?; no discretion to exercise. That, in turn, would conflict with the plain meaning of the statutory conferral of jurisdiction to grant injunctive relief which the court deems "just and proper."

Rejecting the "reasonable cause" /"just and proper" analysis performed by earlier courts in cases like Nelson, the Miller court ruled that district courts are to apply "traditional equitable criteria" in determining whether to grant preliminary injunctions under § 10(j). Although the Miller court did not explicitly address the standard to be applied in actions brought under § 10(1), the court's reasoning applies with equal force to § 10(1). The Ninth Circuit made clear its intention to reject the "reasonable cause" analysis at the district court level, and this rejection comports with the plain meaning of § 10(1)'s wording: " If . . . the officer or regional attorney to whom the matter may be referred has reasonable cause . . . he shall, on behalf of the Board, petition any district court of the United States. . . ." 29 U.S.C. § 160(1) (emphasis added). d. The Statute's "Just And Proper" Language Encompasses Traditional Equitable Criteria

In order to be found "just and proper," pre-Miller Ninth Circuit cases "require[d] only that the relief be necessary to prevent a frustration of the remedial purposes of the Act." Scott v. El Farra Enters., Inc., 863 F.2d 670, 674 (9th Cir. 1988), overruled and quoted by Miller, 19 F.3d at 456-57. However, theMiller court ruled that "`just and proper' is another way of saying `appropriate' or `equitable.'" Miller, 19 F.3d at 458.

Accordingly, the Court applies traditional equitable criteria in determining whether the requested temporary injunction should issue. TheMiller court described these criteria as follows:

Traditionally we consider (1) the likelihood of the moving party's success on the merits; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by granting the preliminary relief. United States v. Odessa Union Warehouse CO-OP, 833 F.2d 172, 174 (9th Cir. 1987). The moving party must show "either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of success on the merits." [citing Senate of CaI. v. Mosbacher, 968 F.2d 974, 977 (9th Cir. 1992).] "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Odessa Union, 833 F.2d at 174.

B. THE REGIONAL DIRECTOR'S LIKELIHOOD OF SUCCESS ON THE MERITS

The first of the traditional equitable criteria to be evaluated is the petitioner's likelihood of success on the merits. This requires examination of whether the union's bannering conduct might violate § 8(b)(4)(ii)(B) of the NLRA. If so, the Court then must address whether or not the statute, as applied, impermissibly infringes the union's First Amendment rights — because the NLRB would have to clear this hurdle to succeed on the merits. If, however, the statute does not prohibit the union's bannering activity, then the Court need not address whether it would otherwise violate the First Amendment.

1. Secondary Picketing

According to the Regional Director, the banner qualifies as secondary picketing prohibited by § 8(b)(4)(ii)(B) of the NLRA. The relevant portions of that section read:

(b) Unfair labor practices by labor organization. It shall be an unfair labor practice for a labor organization or its agents —

(4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.

The crucial question the Court must answer is whether the union's bannering activity amounts to threatening, coercive, or restraining conduct within the meaning of § 8(b)(4)(ii). A similar question was addressed by the U.S. Supreme Court in DeBartolo Corp. v. FIa. Gulf Coast Bldg. Constr. Co., 485 U.S. 568 (1988) ("DeBartolo II").

In that case, the respondent union had a primary labor dispute with a construction company working in the petitioner's shopping mall. See id. at 570-71. The union distributed leaflets very similar to those distributed by union representatives in the case at hand, which "made clear that the union was seeking only a consumer boycott" against the entire mall in order to pressure the mall owner to use contractors paying "fair wages and fringe benefits." Id. The NLRB had found that the union's leaflets "constitute[d] `economic retaliation' and [were] therefore a form of coercion" prohibited by § 8(b)(4)(ii)(B).Id. at 573. The DeBartolo II Court disagreed, reasoning that "where an otherwise acceptable construction of a statute 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." Id. at 575. The Court then found that "the Board's construction of the statute, as applied in this case, poses serious questions of the validity of § 8(b)(4)[(ii)(B)] under the First Amendment." Id.

The DeBartolo II Court further reasoned:

The case turns on whether handbilling such as involved here must be held to "threaten, coerce, or restrain any person" to cease doing business with another, within the meaning of § 8(b)(4)(ii)(B). We note first that Inducing or encouraging" employees of the secondary employer to strike is proscribed by § 8(b)(4)(i). But more than mere persuasion is necessary to prove a violation of § 8(b)(4)(ii): that section requires a showing of threats, coercion or restraints. Those words, we have said, are "nonspecific, indeed vague," and should be interpreted with "caution" and not given a "broad sweep[.]" . . . There is no suggestion that the leaflets had any coercive effect on customers of the mall. There was no violence, picketing, or patrolling and only an attempt to persuade customers not to shop in the mall.

In this case, as in DeBartolo II, there is no evidence that the union's bannering or handbilling has been accompanied by violence, picketing, or patrolling. No evidence has been presented that the union has posted its banner so as to block any entrance to the Silver Star dealership. (Pet., Exh. 1 at 30.) Moreover, it does not appear that the union representatives have acted aggressively in any way.

Since he can point to no misbehavior at the banner site, the Regional Director concentrates his attention on the "the intent of the banner language" in arguing that the union's banner display violates § 8(b)(4)(ii)(B). (E.g., Memo at 14.) This focus is troubling because it is directed not at the union members' conduct, but necessarily at the content of their message. For that reason, the Regional Director's effort to stifle the message collides head-on with First Amendment principles that preclude prior restraints and content-based limitations on the display of signs, banners, and the like. See Part III.D., infra. Precedent plainly holds that it is not a banner's message or the intent of those displaying it that allows Congress to regulate union activities at secondary sites. Rather, the Supreme Court has focused on the speech/conduct distinction in defining the contours of permissible regulation in the present context. The Supreme Court has explicitly observed that "`picketing is qualitatively "different from other modes of communication,"' "in that it" 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.'" DeBartolo II, 485 U.S. at 580 (quoting NLRB v. Retail Store Employees, 447 U.S. 607, 619 (1980) (Stevens, J., concurring)). Thus, analysis regarding whether the union's activity violates § 8(b)(4)(ii)(B) must focus on the union representatives' conduct, and not on their intent or on the content of their speech.

In addition to focusing on the union's "intent" behind its activities at Silver Star Cadillac, the Regional Director argues that the union's activity in this case "clearly amounts to coercive `economic retaliation' within the meaning of the Act." (Memo at 14 (citations omitted).) Through this argument, the Regional Director implies that, because the bannering may persuade consumers to avoid doing business with Silver Star, and thereby induce Silver Star to sever its business relationship with Carignan, the union's activities are prohibited by the statute. More succinctly, the Regional Director seems to claim that persuasive speech is prohibited speech. But the Supreme Court has made it clear that "economic coercion" in this sense does not rise to a statutory violation, and that some sort of intimidation is required before speech-related activities will transgress the prohibitions of § 8(b)(4)(ii)(B).See Nat'l Labor Relations Bd. v. Fruit Vegetable Packers Warehousemen, 377 U.S. 58, 72 (1964) ("Tree Fruits") ("We disagree . . . that the test of `to threaten, coerce, or restrain' . . . is whether [the secondary disputant] suffered or was likely to suffer economic loss."); DeBartolo II, 485 U.S. at 579 ("Our decision in Tree Fruits . . . makes untenable the notion that any kind of handbilling, picketing, or other appeals to a secondary employer to cease doing business with the [primary] employer . . . is `coercion' within the meaning of § 8(b)(4)(ii)(B) if it has some economic impact on the neutral."). Thus, the union's potential for success is not a measure of the legality of its bannering activities.

Finally, the Regional Director argues that the union's use of "the same colors as Silver Star's `OPEN DURING REMODELING' sign" in its banner should contribute to a finding that the banner violates § 8(b)(4)(ii)(B). (Memo at 7.) However, it appears that this color scheme is the same one the union has used in many similar banners displayed in other similar disputes. Descriptions of approximately twenty-one uses of nearly identical banners utilizing the same "Shame on" language with the white, black, and red color scheme are attached to the Regional Director's petition as part of the record in a similar case before an NLRB Administrative Law Judge. (Pet., Exh. 1 at 45-47, 49-54, 56-61, 63, 66-67.) The Regional Director has made no argument based on trademark rights nor on any other legal principle as to how the similarity in colors between the union's banner and Silver Star's "Open During Remodeling" sign could be found to render the banner illegal.

In sum, the Regional Director does not contend or show that the union representatives holding the banner patrol, shout, block entrances, or otherwise act aggressively, Thus, his attack impermissibly focuses on the presence of the banner and on the message it conveys, not on the only proper subject for regulation — the conduct of the union members at the secondary site. Since the Supreme Court, in DeBartolo II, construed § 8(b)(4)(ii)(B) to exclude from its sweep nonthreatening speech activities conducted at secondary sites like Silver Star Cadillac, the Regional Director's contention that the banner constitutes a threat, restraint, or coercion finds no support in controlling case law. Accordingly, the Court denies the NLRB's petition for a temporary injunction, because the Regional Director has not shown a likelihood that he will be able to prove the union violated § 8(b)(4)(ii)(B), and thus has not shown a likelihood of success on the merits.

2. Fraudulent Speech

Regardless of whether the union's activity constitutes secondary picketing prohibited by § 8(b)(4)(ii)(B), the Regional Director argues that the union's "use of fraudulent language on the banner . . . also constitutes unlawful coercive activity within the meaning of § 8(b)(4)(ii)(B)." (Memo at 9-10 (emphasis in original).) This is an odd argument, considering that § 8(b)(4)(ii)(B) does not specifically prohibit fraudulent speech, but only threatening, coercive, or restraining conduct, as discussed above. The Regional Director's argument on this point is more properly framed as a counterargument to the union's position that the requested injunction would violate its representatives' First Amendment rights.

The Regional Director cites New York Times Co, v. Sullivan, 376 U.S. 254 (1964), for the proposition that "the First Amendment does not protect the making of knowingly false statements, or statements made with reckless disregard of their falsity." (Memo at 15.) That decision, however, supports this proposition in the context of state law defamation proceedings, whereas the present petition is not based on any such cause of action. That the First Amendment does not protect false statements if made with malicious intent, as described by the New York Times Court, does not mean that such statements are prohibited by § 8(b)(4)(ii)(B) even if not otherwise threatening, coercive, or restraining.

Moreover, the Regional Director has failed to show that the union's banner is false in fact. The Regional Director recognizes that the union does have a dispute with the named, secondary entity (the Silver Star Cadillac/SAAB dealer), but he contends that the banner's message is fraudulent because "[t]he natural and foreseeable impression that the public would draw is that Respondents have a primary labor dispute with the named neutral Cadillac/SAAB." (Petitioner's Memo at 14.) On this point, a District Judge in the Southern District of California, who recently denied a nearly identical petition for a preliminary injunction brought by another NLRB Regional Director, astutely observed that

the typical consumer cannot be expected to know the NLRA definition of labor dispute/ nor understand the distinction between primary and secondary labor disputes. Even if the banner[s] were to read `secondary labor dispute' rather than labor dispute,' the effect would be the same as to the general public. The Court finds that the banners are not fraudulent.

(Answer to Pet., Exh.1 at 7.) This Court concurs in this observation and in the conclusion reached in that case.

The union further points out that its banner is not false because, under the NLRA,

The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

In sum, the union's banner, which is plainly designed to get the attention of members of the public in the hope of stimulating further inquiry into the dispute, is not "false" simply because it fails to inform the public as to with whom the union has its "primary," as opposed to "secondary," dispute, as those terms are defined by the NLRA. And because the Regional Director has failed to show that the union has engaged in any threatening, coercive, or restraining conduct, his petition must be denied. See DeBartolo II, 485 U.S. at 575.

C. IRREPARABLE HARM/BALANCE OF HARDSHIPS

Traditional equitable criteria require that, where a petitioner has demonstrated a likelihood of success on the merits, a showing that a possibility of irreparable harm exists is further required before injunctive relief will issue; or, where the petitioner has only been able to show "the existence of serious questions going to the merits," the petitioner is required to show that "the balance of hardships" tips "sharply in its favor." Miller, 19 F.3d at 456. Normally, one is required to show that damages would be an inadequate remedy in order to make the required showing of irreparable harm. See, e.g.,id. at 457. However,

In statutory enforcement cases where the government has met the "probability of success" prong of the preliminary injunction test, we presume it has met the "possibility of irreparable injury" prong because the passage of the statute is itself an implied finding by Congress that violations will harm the public. Therefore, further inquiry into irreparable injury is unnecessary. However, in statutory enforcement cases where the government can make only a "colorable evidentiary showing" of a violation, the court must consider the possibility of irreparable injury.

Because, as discussed above, the Regional Director has failed to meet the probability of success requirement for preliminary injunctive relief, a possibility of irreparable injury should not be presumed. However, the Regional Director has failed to produce any evidence whatsoever regarding a possibility of irreparable injury — or even indicating the existence of any hardships suffered by the secondary disputants.

Examination of the affidavits and other evidence proffered in support of the petition does not indicate that the union's activity has had any negative impact on any of the secondary disputants' business. For instance, Jack Caviness, a Carignan employee, testifies in his affidavit supporting the NLRB's petition:

[D]rive-in customers were not, for the most part, taking the leaflet. I saw about two drive-in customers take a leaflet and the large majority of customers I saw drive in drove right past the leafleters. I saw one person walk onto the lot, it was actor Torn Selleck, and he took a leaflet from the person handing them out.

(Pet., Exh. 1 at 17.)

There is no indication that anyone — not even Tom Selleck — turned around after reading the union's banner or leaflets (which is not to say that the activity would necessarily be prohibited were this the case). Thus, even were the Court to conclude that the Regional Director has made a "colorable evidentiary showing" of a § 8(b)(4)(ii)(B) violation, there is no evidence that the balance of hardships tips in his favor. Miller, 19 F.3d at 459.

D. FlRST AMENDMENT CONCERNS RAISED BY THE NLRB'S CONSTRUCTION OF § 8(b)(4)(ii)(B)

As noted in the discussion of petitioner's likelihood of success on the merits, the Regional Director's proposed interpretation of § 8(b)(4)(ii)(B) — that it prohibits the union's bannering activity based on the intent behind and persuasiveness of the banner — would raise serious First Amendment concerns because of its focus on the banner's content. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) ("The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects."); Hudaens v. NLRB, 424 U.S. 507, 520 (1976) ("while [the government] may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, . . . [it] may not . . . discriminate in the regulation of expression on the basis of the content of that expression."); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. . . . The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.").

Before enjoining the union's bannering activity, the Court would have to fully grapple with the implications of the fact that the union representatives have been displaying their banner on a public sidewalk. "[P]ublic streets and sidewalks, [are] traditional public fora that `time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). "In such places, which occupy a `special position in terms of First Amendment protection,' the government's ability to restrict expressive activity Is very limited.'" Id. (quoting United States v. Grace, 461 U.S. 171, 180, 177(1983)).

Finally, any preliminary injunction issued by this Court, prior to a full adjudication of the union's First Amendment claims on their merits, clearly runs the risk of imposing an impermissible prior restraint on speech. See Alexander v. United States, 509 U.S. 544, 550 (1993) ("Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints."); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390 (1973) ("The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment"); Org. for a Better Austin v. Keefe, 402 U.S. 415, 418-19 (1971) (finding that a temporary "injunction, so far as it impose[d] prior restraint on speech and publication, constitute[d] an impermissible restraint on First Amendment rights," and that "[a]ny prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity");Near v. Minnesota, 283 U.S. 697, 716 (1931) (finding that a statute prohibiting publication of certain newspapers constituted a "previous restraint" on speech, and that such restraints are invalid in all but the most extreme cases, such as when one seeks to publish "the sailing dates of transports or the number and location of troops" during wartime); Latino Officers Ass'n, New York, Inc. v. City of New York, 196 F.3d 458, 465 (2d Cir. 1999) ("The danger of a prior restraint, as opposed to ex post disciplinary action, is precisely that making predictions ex ante as to what restrictions on speech will ultimately be found permissible is hazardous and may chill protected speech.").

Accordingly, the Court rejects the NLRB's proffered interpretation of § 8(b)(4)(ii)(B). See DeBartolo II, 485 U.S. at 575 ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court [should] construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); Boos, 485 U.S. at 333 ("[l]t is well-established that statutes should be construed to avoid constitutional questions if such a construction is fairly possible."). The Court's interpretation of § 8(b)(4)(ii)(B) is a natural one that flows easily from the plain meaning of the statute's wording and is supported by Supreme Court precedent: "[M]ore than mere persuasion is necessary to prove a violation of § 8(b)(4)(ii): that section requires a showing of threats, coercion, or restraints." PeBartolo II, 485 U.S. at 578. And because the Court finds that the union's activity is not threatening, coercive, or restraining within the meaning of § 8(b)(4)(ii)(B), as the Supreme Court has interpreted those words, the First Amendment problems implicated by the NLRB's proffered interpretation need not be addressed.

IV. THE PARTIES' ESTOPPELARGUMENTS

A. ESTOPPEL BASED ON THE NLRB's 1997 ADVICE MEMORANDUM

The union attaches a 1997 NLRB advice memorandum to its opposition, in which the NLRB considered the legality of secondary bannering and handbilling activities very similar to the union activity at issue here. (Opp., Exh. 3 at 45.) At that time, the NLRB reached precisely the same conclusion reached by this Court in this case — that in light of Supreme Court precedent, § 8(b)(4)(ii)(B) does not bar such displays of banners at secondary sites, (Id. at 48, 51.) For reasons not provided to the Court, despite the Court's inquiry on this point, the NLRB has more recently determined that it need not adhere to the ruling in DeBartolo II.

The union contends that, based on this 1997 memo, the NLRB should be estopped from bringing this petition. According to the union, "all of the usual elements of estoppel are present here: a representation, reasonably relied upon to a person's detriment, and damages." (Opp. at 41.) "[T]he prevailing rule is that administrative determinations may be given collateral estoppel effect between the parties and their privies if they are the result of fair adversary hearings and are supported by substantial evidence[,] but that where these elements are lacking no such effect should be accorded them." Atlantic Richfield Co. v. Fed. Energy Admin., 556 F.2d 542, 549-50 (Temp.Emer.Ct.App. 1977).

The union has not shown that the 1997 advice memorandum was the result of fair adversary proceedings and was supported by substantial evidence. Accordingly, the Court declines to find that the NLRB is estopped from bringing this petition for a temporary injunction on the basis of the 1997 advice memorandum. However, in view of the Court's ruling in the union's favor on the merits, this determination ultimately has no impact on the outcome of the present petition.

B. THE SOUTHERN DISTRICT'S OVERSTREET DECISION

On May 7, 2003, Judge Napoleon A. Jones, Jr. of the United States District Court for the Southern District of California issued an order in the case of Overstreet v. United Brotherhood of Carpenters Joiners of America, No. CV 03-0773 J (JFS), denying an NLRB Regional Director's petition for a temporary injunction that would have enjoined bannering and leafleting activities nearly identical to those at issue in this case. (Answer to Pet., Exh. 1.) The union argues that theOverstreet decision precludes the NLRB from relitigating this issue here. (Opp. at 1.) The Regional Director, however, contends thatOverstreet does not bar this action because "neither of the Respondents in this case was a respondent in Overstreet," and "the doctrine of non-mutual defensives [sic] collateral estoppel does not apply to the Board, a federal government agency." (Memo at 24.) The Court agrees that the NLRB is not estopped from bringing this petition.

The Court notes that the Regional Director named Local 1506 of the United Brotherhood of Carpenters and Joiners of America as a respondent in Overstreet but named Local 209 as a respondent here. "[T]he Supreme Court [has] announced a possibly ambiguous but potentially broad rule that has come to leave little room for nonmutual preclusion against the government in civil cases." 18A CHARLES ALAN WRIGHT ETAL., FEDERAL PRACTICE PROCEDURE § 4465.4 at 789 (2d ed. 2002); see also United States v. Mendoza, 464 U.S. 154, 162 (1984); United States v. AMC Entm't. Inc., 232 F. Supp.2d 1092, 1117(C.D. CaI. 2002). In order for Overstreet to control here, the union must "offer evidence to show that there was a mutuality of parties in the previous litigation." AMC Entm't, 232 F. Supp.2d at 1117. Because the union has failed to make this required showing, the Court will not give the Southern District's decision collateral estoppel effect here. Again, however, in view of the Court's ruling in UJ the union's favor on the merits, this determination also has no impact on the outcome of the present petition.

C. DEFERENCE TO THE ADMINISTRATIVE LAW JUDGE'S OPINION

Although the Regional Director argues that this Court should not be persuaded by the Overstreet decision, at several points the Regional Director points to a recent decision by an NLRB Administrative Law Judge ("ALJ ") which he attaches to his petition, and argues that the Court should defer to it. (Pet., Exh. 1 at 38.) In the attached decision,Local Union No. 1827, 2003 WL 21206515 (May 9, 2003), the ALJ considered charges brought by the NLRB, on behalf of a number of businesses not involved in this action, against a number of local branches of the United Brotherhood of Carpenters and Joiners of America, one of which is named as a Respondent here. The ALJ recounted union activity nearly identical to that at issue here, and concluded that "[s]ince the conduct was directed at neutral companies and since it was picketing, it is proscribed by Section 8(b)(4) and unprotected by the First Amendment." (Pet., Exh. 1 at 68.)

Thus, the ALJ reached a conclusion at odds with the conclusion reached by this Court and by the Overstreet court regarding nearly identical conduct. This disparity arises from the ALJ's conclusion that, relying on NLRB precedent, the union's conduct constituted "picketing," and was thus prohibited by § 8(b)(4)(ii)(B). (Pet., Exh. 1 at 71.) By contrast, the Overstreet court prudently relied on Supreme Court precedent to conclude that the union's "bannering activity lacks the confrontational, sometimes intimidating conduct associated with traditional picketing." (Answer to Pet., Exh. 1 at 8.) The ALJ either overlooked or ignored DeBartolo II's determination that "more 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." DeBartolo II, 485 U.S. at 578.

Nonetheless, the Regional Director argues: "Given the labor law expertise of the ALJ, and the lesser exposure of this Court to the Act and its mandates, the Court should rely more heavily on the views of the ALJ than on the contrary views in Oyerstreet." (Memo at 24.) This argument misses the point that Congress empowered the District Court, not an ALJ, to determine whether to grant or deny a Regional Director's request for a temporary injunction. See 29 U.S.C. § 160(1) ("[T]he district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper.");Miller, 19 F.3d at 457-58 ("[J]ust and proper' is another way of saying `appropriate' or `equitable.'"). While the ALJ may have greater substantive labor law expertise than this Court, this Court has substantial experience in the assessment of applications for preliminary injunctions, the art of statutory construction, and the application of federal and Supreme Court precedent to issues of constitutional concern. Because these are the areas of concern raised by this petition, the Regional Director provides no persuasive reason why the Court should abdicate its constitutional duty to independently determine the merits of this case.

Elsewhere the Regional Director argues that the ALJ decision "is indicative of the likelihood of success on merits," and that "[f]rom this showing, the Court then presumes irreparable injury." (Reply at 6 n. 2.) Not so. The NLRA creates a complex administrative framework, with separate prosecutorial and adjudicatory entities. Within this scheme, the ALJs function much like trial court judges; an ALJ's decision is appealed first to the NLRB, whose decisions are in turn subject to review by the U.S. Circuit Courts. See generally II THE DEVELOPING LABOR LAW 2443-47, 2516-17, 2569-73 (Patrick Hardin John E. Higgins, Jr., eds., 4th ed. 2001). While any final determination on the merits by the NLRB "will be given considerable deference" in the federal courts, the Board has not yet ruled on this matter. Miller, 19 F.3d at 460. Moreover, "it is the courts of appeal which are obliged to afford deferential review to final Board determinations, not the district courts in response to preliminary requests." Id, at 458. Finally, neither the NLRB, the ALJ, nor this Court are empowered to violate the First Amendment's commandments. Analysis under DeBartolo II leads to the inevitable conclusion that the Court should avoid the serious First Amendment concerns implicated by the requested injunction, and find that the union's bannering activity does not fall within the sphere of activity prohibited by § 8(b)(4)(ii)(B).

V. CONCLUSION

The Regional Director has failed to show that the union's activity of which he complains is prohibited by § 8(b)(4)(ii)(B). Accordingly, the Regional Director has failed to show a likelihood of success on the merits, or that there is even reasonable cause for the requested temporary injunction to issue. "[T]he Board's construction of the statute, as applied in this case, poses serious questions of the validity of § 8(b)(4)[(ii)(B)] under the First Amendment," and "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court [should] construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo II, 485 U.S. at 575. Because the Regional Director has failed to show that the union's activity is threatening, coercive, or restraining within the meaning of § 8(b)(4)(ii)(B), as those words have been interpreted by the Supreme Court, this petition for a temporary injunction is DENIED.

IT IS SO ORDERED.