Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

JOHN J. WALSH, JR., Regional Director, Region 1, National

Labor Relations Board, for and on Behalf of the NATIONAL
LABOR RELATIONS BOARD, Petitioner
vs.
C.A. No. 1:16-cv-10922
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, SYSTEM COUNCIL T-6, ALONG WITH ITS
CONSTIUENT LOCALS, IBEW LOCALS 2222, 2313, 2320,
2321, 2322, 2323, 2324, 2325, AND 2327, Respondent

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PETITION FOR TEMPORARY RESTRAINING ORDER UNDER SECTION 10(l)
OF THE NATIONAL LABOR RELATIONS ACT

I.

STATEMENT OF THE CASE

Petitioner John J. Walsh, Jr., Regional Director for Region 1 of the National Labor

Relations Board (the Board), for and on behalf of the Board, has petitioned this court for a
temporary restraining order (the Petition) pursuant to Section 10(l) of the National Labor
Relations Act (the Act).1 29 U.S.C. 160(l). The Petitioner seeks to temporarily restrain
International Brotherhood of Electrical Workers, System Council T-6, along with its constituent
Locals, IBEW Locals 2222, 2313, 2320, 2321, 2322, 2323, 2324, 2325, and 2327 (collectively,
Respondent) from engaging in picketing and other activities towards neutral third parties for a
five-day period.2
1

On May 19, 2016, Petitioner notified Respondents Counsel that it intended to file this Petition. On May 20, 2016,
Petitioner confirmed with Respondents Counsel that it would be filed on May 23, 2016.
2
On May 9, 2016, James G. Paulson, Regional Director for Region 29 of the Board, petitioned the United States
District Court for the Eastern District of New York for a temporary restraining order against the Communication

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 2 of 22

Petitioner will very shortly be seeking a preliminary injunction to enjoin Respondent

from engaging in violations of Section 8(b)(4)(i) and (ii)(B) of the Act pending the final
disposition of certain matters pending before the Board. The injunctive relief sought against
Respondent is premised on the unfair labor practice charge 01-CC-176000 filed by Verizon New
England Inc. (Verizon) on May 11, 2016.3 Ex. A.4 On May 20, 2016, based on this charge,
the Regional Director, on behalf of the General Counsel of the Board, issued a Complaint and
Notice of Hearing (the Complaint) against Respondent. Ex. B. The administrative hearing on
that Complaint is scheduled for June 22. Id. The Complaint alleges that Respondent has
engaged in, and continues to engage in, unfair labor practices in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act, 29 U.S.C. 158(b)(4)(i) and (ii)(B).
Petitioner submits that the evidence contained in the affidavits and documents filed in
support of the Petition establishes that there is reasonable cause to believe that Respondent has
engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act,
and it is just and proper for this Court to grant the requested relief. A temporary restraining
order at this juncture, pending the filing of the Petition for Preliminary Injunctive Relief, is
necessary due to the egregiousness of Respondents actions, including the confrontational and
highly disruptive picketing of neutral hotels. These actions have had a substantial impact on
interstate commerce, which is the underpinning of the Act. Respondents unlawful conduct will
unavoidably result in substantial and irreparable injury both to the policies of the Act and to
Workers of America after it engaged in a similar campaign against Verizon, with whom it also has a labor dispute,
by picketing at hotels in New York. Petition for Temporary Restraining Order Pursuant to 10(l) of the Act, Paulsen
v. Communication Workers of America, No. 1:16-cv-02312 (E.D.N.Y. May 9, 2016). On May 9, 2016, the United
States District Court for the Eastern District of New York granted that temporary restraining order. Order on
Motion for TRO, No. 1:16-cv-02312.
3
All dates refer to the year 2016, unless otherwise noted.
4
References to the Appendix of Exhibits are designated as Ex.__. Given the nature of the situation, addresses and
telephone numbers have been redacted from affidavits. However, the information can be provided to the Court upon
request. To the extent Petitioner is not certain that Respondent already has knowledge that a particular hotel is
serving replacement employees, Petitioner redacted the identity of that hotel from the affidavits.

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 3 of 22

Verizon and numerous other neutral employers engaged in commerce. Until the Court can hear
the Petition for Injunctive Relief, these circumstances make a temporary restraining order
appropriate.
II.

STATEMENT OF FACTS
A.

BACKGROUND

Verizon provides telecommunications products and services throughout New England.

Respondent and Verizon have an established collective-bargaining relationship and are currently
negotiating a successor collective-bargaining agreement. On April 13, 2016, Respondent called
a strike against Verizon. Ex. D at 1:23. In response to the strike, Verizon contracted with thirdparty contractors and assigned managers and other employees from out-of-state to act as
replacement employees to perform struck work. Ex. C at 1:23-25; Ex. D at 1:15-24. There are
approximately 120 replacement employees who are staying at about ten different hotels. 5 Id. at
2:12.
B.

SECONDARY PICKETING ACTIVITY

Throughout the strike, Respondent has implemented an organized campaign targeting

several area hotels in an attempt to force the hotels to stop serving Verizon and the
subcontractors. For the last three weeks, Respondent has engaged in mass picketing at the
hotels, and the picketing continues to this day. In addition, Respondent has delivered letters to
several hotels throughout the area directly requesting that they stop doing business with
Verizon.6

The number of hotels fluctuates because hotels may evict Verizon replacement employees or they may voluntarily
leave. Ex. C at 2:14-16.
6
The letters are signed by representatives of different IBEW Locals that are each a part of System Council T-6,
however, the substance of the letters remain the same. Ex. E at 6; Ex. F at 6; Ex. G at 5; Ex. K at 2:18-22, 7. Thus,
the form letters are evidence that this is a coordinated and concerted attempt by the constituent locals of System
Council T-6, the collective-bargaining representative, to put bargaining pressure on Verizon.

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 4 of 22

1.

The Providence Biltmore

On May 5 and 6, Respondent, including IBEW Local 2323 representatives, picketed at

The Providence Biltmore, in Providence, Rhode Island. Ex. D at 2:6-8, 4-5. Beginning at about
6:00 a.m. each day, between ten and twenty picketers gathered outside the hotel yelling, blowing
air horns, and beating drums. Id. at 2:6-9. As the Verizon replacement employees were leaving
to begin work in the field, the picketers yelled at the workers scabs, go home. Id. at 2:14-19.
The picketers carried signs, some of which said This hotel supports replacement workers, and
Verizon informational picketing. Id. at 4.

IBEW Local 2323s leader admitted that

Respondent just want[s] them removed from the hotel and [Respondent] will go away. Id.
2.

Fireside Inn & Suites

On May 7, Respondent gave the Fireside Inn & Suites, in Nashua, New Hampshire (the
Fireside Inn) a letter that is signed by IBEW Local 2321. Ex. F at 6; Ex. E at 6. The letter
asked the hotel to immediately stop giving aid and comfort to Verizons out of town
replacement work force and threatened to conduct a continued campaign aimed exclusively at
your business, its customers, and the general public. Id. On May 9, at about 6:30 a.m.,
Respondent had about forty to fifty picketers at the Fireside Inn. Ex. F at 1:21-23. The picketers
were blocking the entrance and exit to the hotel to guests and hotel employees, which required
the police to take action to allow vehicles to pass. Id. at 1:24-25, 3:22-25, 4:15-20; Ex. E at
2:10-13. The picketers distributed a flier to vehicles entering the hotel and placed fliers on
parked vehicles asking the Fireside Inn to support the Respondent while on strike and asking the
hotel to have the strike breakers find other accommodations. Ex. F at 2:1-7; 4:13-14; 11. On
the other side of the flier was a photograph of an unidentified man and a message that guests at
the hotel stay with scabs and pedophiles. Id. at 12. The President of IBEW Local 2321 told

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 5 of 22

the Fireside Inn that it would not be leaving until [the hotel] kicked [the Verizon replacement
employees] out. Id. at 3:6. Picketers also yelled at guests and hotel employees while carrying
placards and signs and pacing back and forth in front of the hotel. Id. at 3:19-20, 7. Picketers
shouted to guests that they were staying with scabs and it was a bed-bug infested hotel. Id. at
3:12-16. Picketers also told a hotel manager that he was a fat pork-chop and threatened well
get you. Id. at 3:17-18. Moreover, a Verizon contractor reported being slapped in the face,
kneed, shoulder checked, and chest bumped by a picketer. Ex. E at 3:1-4, 3:11-13. On the same
morning as the picketing, the Verizon contractors learned that their vehicles had a total of four
flat tires between them. Id. at 3:5-10. Photographic evidence shows the tires with bubbles
because the contractors sprayed soap water on the tires to show the air coming out with the
bubbles. Id. at 3:7-10, 9-12.
3.

The Days Inn

From May 3 through May 13, beginning at about 6:00 a.m. each morning, Respondent
picketed at the Days Inn in Middleboro, Massachusetts with at least fifty individuals. Ex. H. at
1:23-25, 3:24-25. The picketers used loud air horns, and guests reported that it woke them up.
Id. at 1:22-24, 2:2-4; Ex. G at 2:16-19. The picketers blocked traffic, and even caused a tour bus
to park at another business, requiring the guests to walk from the bus to the hotel. Ex. I at 2.
Likewise, the picketers blocked a vehicle with an elderly couple inside and yelled scabs at the
couple. Ex. G at 2:20-23. In addition to blocking traffic, the picketers banged on the vehicles,
used an air horn, and yelled scab. Ex. H at 2:9-12; Ex. J at 2:19-26. Picketers yelled at a hotel
employee as she was getting through the blocked entrance that she was a scab, a shit bag,
and to throw them out. Ex. G at 2:7-11. Picketers shouted to a manager that he was a scab
and This is America. Ex. I at 3; Ex. H at 2:10. About thirty picketers surrounded a hotel

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 6 of 22

employees car when he had his young daughter inside and yelled profanities and called him a
scab. Ex. H. at 2:9-13. Picketers also yelled that they were not going anywhere and would be
there as long as the replacement workers were at the hotel. Ex. J at 2:17-18. The picketers
carried signs that said scabs go home and also listed IBEW Local 2222, Local 2325, and Local
2322.7 Ex. I at 1, 2; Ex. G at 3:7-8; Ex. J at 2:14-15. The picketers also put a banner near the
hotels property that states the hotel does not support good jobs and to send replacement
workers home. Ex. H at 2:14-16, 6. The banner specifically has IBEW Local 2322 on it. Id.
On May 9, there were more than two hundred picketers who went on the private property of the
hotel and the police did not move them off the property. Ex. I at 3; Ex. H at 2:19-25; Ex. G at
2:1-3. Photographic evidence shows that picketers covered the hotels property and surrounded
and blocked vehicles, including vehicles not affiliated with Verizon or the subcontractors. Ex. J
at 7, 8, and 10; Ex. N. On May 9, the picketing continued even after the Verizon replacement
workers left for their work in the field. Ex. J at 2:11-13. Respondent also gave the Days Inn one
of its signature letters, signed by IBEW Local 2322, and requesting that the hotel stop doing
business with Verizon.8 Ex. G 3:13-15, 5.
4.

Motel 6

On May 2, Respondent gave Motel 6 in Danvers, Massachusetts one of its signature

letters, signed by IBEW Local 2322, requesting that the hotel stop doing business with Verizon.
Ex. K at 2:8-12. On May 3, at approximately 6:00 a.m., about fifty picketers gathered at the
hotel in a line holding signs and shouting obscenities while making obscene hand gestures. Id. at
2:15-16; Ex. L at 2:10-17. Picketers stopped vehicles from entering and leaving the hotel even if
7

The fact that there were at least four IBEW Locals at the Days InnLocal 2222, Local 2322, Local 2323,
and Local 2325is further evidence of a coordinated campaign by the constituent locals of System Council T6. Ex. J at 2:14-15, 6; Ex. N.
8
Respondents representatives were present at the Days Inn picket, including the president and vice president of
Local 2222 and two business managers from Local 2322. Ex. J at 4:18-25.

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 7 of 22

they did not belong to Verizon or the subcontractors. Ex. K at 2:16-18; Ex. L at 2:12-13.
Picketers banged on the sides of Verizon replacement workers trucks that were leaving the hotel
while shouting obscenities and police officers actually had to clear a path for the drivers to exit.
Ex. K at 2:23-26. As a result, the hotel informed the Verizon subcontractors that they had to
immediately vacate the premises because of the picketing. Id. at 3:1-6.9
5.

Extended Stay America

On May 11, Respondent gave Extended Stay America one of its signature letters, signed
by IBEW Local 2322, and requested that the hotel stop doing business with Verizon. Ex. K at
3:24-25, 7. On May 12, Respondent, at about 4:00 a.m., began picketing at the Extended Stay
America. Ex. L at 3:26. There were more than fifty picketers carrying signs, yelling, blowing a
loud horn, and blaring sirens. Ex. K at 4:8-9; Ex. L at 3:25-26. Guests reported that the noise of
the picketers awoke them, and hotel representatives reported that guests were facing difficulty
entering and exiting the hotel. Ex. C at 4:3-7. Picketers blocked the entrance and exit to the
hotel so that guests and others not affiliated with Verizon were unable to get access. Ex. K at
4:9-11; Ex. L at 3:23-24; Ex. C at 3:24-26. Photographic evidence shows that the picketers
physically surrounded the subcontractors trucks to block their exit from the hotel. Ex. K at 8, 9.
Picketers yelled at the subcontractors in their trucks, spit on the trucks, banged on their trucks,
and tried to open the doors of a truck. Ex. L at 4:15-22. Picketers entered the lobby and yelled
at hotel employees that they were letting scabs stay at the hotel and needed to kick them out and
said fuck you to employees. Ex. K at 4:14-16; Ex. L at 4:8-13. Picketers remained at the hotel
even after the replacement workers left. Ex. K at 5:17.

After their eviction from Motel 6, the replacement employees sought accommodations at the Comfort Inn in
Rockland. Ex. K at 3:8-12. After less than one day, Comfort Inn management informed them that they were no
longer welcome at the hotel so they left. Id. at 3:15-23; Ex. L at 3:10-12. Hotel management stated that it received
a threatening letter from Respondent. Ex. K at 3:17-18.

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 8 of 22

6.

La Quinta Inn & Suites

On May 13, at approximately 6:00 a.m., Respondent had well over one hundred picketers
gathered at the La Quinta Inn & Suites in Salem, New Hampshire. 10 Ex. M at 2:14-16. The
picketers were screaming, yelling, and making noise that could be heard in a hotel room on the
fourth floor with a closed window. Id. at 2:16-17. The picketing has continued since May 13,
however, the number of picketers has fluctuated from as little as three to as many as forty
picketers. Id. at 2:17-20. The picketing generally begins at about 5:30 to 6:00 a.m. in the
morning. Id. at 2:19-20. The picketers continuously walk back and forth in front of the hotel
driveway to block traffic entering and exiting the hotel. Id. at 3:9-10. The picketers blocked
vehicles driven by elderly couples and even a minivan with a family inside. Id. at 3:17-19.
Photographs show the picketers surrounding and blocking a vehicle driven by a contracted
security guard. Id. at 5-8. The picketers yell at hotel employees that they are scabs and pieces
of shit. Id. at 3:6-7. The picketers specifically asked a female hotel employee how much she
charges? and told a female hotel guest that she was fat. Id. at 2:25-27, 3:1-2. The picketers also
directed statements to an elderly couple and told them that the hotel had bed bugs. Id. at 3:3-5.
The picketers hold signs or have signs around their necks that refer to IBEW Locals 2321 and
2222. Id. at 3:23-24. The picketers also put a sign at the corner of the hotels property that
states: Do not stay here. Id. at 4:5-7.

10

Petitioner issued the Complaint on May 20. Petitioner obtained testimonial evidence concerning the picketing La
Quinta Suites on May 20. For that reason, the Complaint does not yet allege any unlawful conduct at the La Quinta
Suites.

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III.

ARGUMENT
A.

THE STATUTORY SCHEME PURSUANT TO WHICH RELIEF IS

SOUGHT

Section 10(l) of the Act11 requires a Regional Director to seek appropriate injunctive
relief in a United States district court upon a reasonable belief that certain unfair labor practices
have occurred and empowers the court petitioned to grant the injunctive relief deemed just and
proper. The mandatory nature of this requirement demonstrates Congress determination that
certain unfair labor practices pose such a serious threat to the free flow of commerce that they
should be enjoined pending final adjudication by the Board. See Union De Tronquistas De P.R.,
Local 901 v. Arlook, 586 F.2d 872, 876 (1st Cir. 1978) (citing S. REP. NO. 80-105, at 8, 27
(1947)). Thus, Section 10(l) of the Act is intended to preserve the status quo in order to ensure
that the ultimate decision of the Board will not be rendered moot by intervening events while
also preventing disruptions in the flow of commerce and further unfair labor practices. See
Compton v. Natl Mar. Union, 533 F.2d 1270, 1276 (1st Cir. 1976).
To resolve a Section 10(l) petition, a district court in the First Circuit considers three
prongs: (1) the court must determine whether the Regional Director has reasonable cause to
11

Section 10(l) (29 U.S.C. 160(l)) provides:

Whenever it is charged that any person has engaged in an unfair labor practice within the meaning
of Section 8(b)(4) . . . (B) . . . , the preliminary investigation of such charge shall be made
forthwith and given priority over all other cases except cases of like character in the office where
it is filed or to which it is referred. 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 United States district court
within any district where the unfair labor practice in question has occurred, is alleged to have
occurred, or wherein such person resides or transacts business, 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: Provided
further, That no temporary restraining order shall be issued without notice unless a petition alleges
that substantial and irreparable injury to the charging party will be unavoidable and such
temporary restraining order shall be effective for no longer than five days and will become void at
the expiration of such period. . . .

Case 1:16-cv-10922-GAO Document 2 Filed 05/23/16 Page 10 of 22

believe that the elements of an unfair labor practice occurred; (2) the court must conclude that
the legal theories relied upon by the Regional Director are not without substance; and (3) it must
find that temporary injunctive relief is just and proper in terms of effectuating the purposes of
the Act. Local 901, 586 F.2d at 876.
B.

PETITIONER HAS REASONABLE CAUSE TO BELIEVE THAT

RESPONDENT VIOLATED SECTION 8(b)(4)(i) AND (ii)(B) OF THE ACT

It is well settled that in a proceeding under Section 10(l) of the Act, a district court is not
called upon to decide the merits of the unfair labor practice case, i.e., whether in fact, a violation
has occurred, because the ultimate decision on the merits of the case is left for the Board.
N.L.R.B. v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 681-83 (1951). For this
reason, the Regional Directors evidentiary burden is modest because he only needs to make a
minimal evidentiary showing of an unfair labor practice, rather than conclusively show that the
respondent has in fact violated the Act. See Pye v. Teamsters Local Union No. 122, 61 F.3d
1013, 1020 (1st Cir. 1995) (explaining that a district court should resolve any disputed issues of
material fact in favor of the Regional Director and the Regional Directors version of the facts
should be given the benefit of the doubt). Thus, the Regional Director only needs to show the
existence of credible evidence, even if disputed, together with reasonable inferences, which
supports his conclusions. Local 901, 586 F.2d at 876; see also Fuchs v. Jet Spray Corp., 560 F.
Supp. 1147, 1150-51 n.2 (D. Mass. 1983), affd per curium, 725 F.2d 664 (1st Cir. 1983)
(explaining that the district court should not attempt to resolve issues of credibility of witnesses
in injunctive proceedings). Here, there is reasonable cause to believe that Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by engaging in picketing at several hotels.12

12

Respondent is collectively the System Council T-6 and its constituent locals because the campaign is
a coordinated and concerted attempt to put bargaining pressure on Verizon. Counsel for System Council T-6, the
collective-bargaining agent, issued a letter to the members that are picketing at the hotels. Ex. O. Although

10

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1.

Applicable Principles of Section 8(b)(4)(B) of the Act

Section 8(b)(4)(i)(B) of the Act forbids a union to induce or encourage any individual
employed by any person to refuse to perform services with an object of forcing or requiring any
person to cease doing business with any other person. Conduct that falls within this subsection
includes every form of influence or persuasion. Intl Bhd. of Elec. Workers, Local 501 v.
N.L.R.B., 341 U.S. 694, 701-02 (1951). Section 8(b)(4)(ii)(B) of the Act forbids a union to
threaten, coerce, or restrain any person in commerce with an object of forcing or requiring any
person to cease doing business with any other person. Although both (i) and (ii) require the same
object, subsection (i) prohibits a subset of conduct that is directed toward individuals employed
by the neutral employer, whereas subsection (ii) prohibits conduct that is directed toward the
employer. This prohibits a union that has a direct dispute with one employer (the primary)
from pressuring other unconcerned (secondary or neutral) employers who deal or do
business with the primary, where an object of the unions conduct is calculated to force or
require the secondary, or neutral, person to cease dealing with the primary and thus increase the
unions leverage in its dispute with the primary. Natl Woodwork Mfgs. Assn v. N.L.R.B., 386
U.S. 612, 632-34 (1967). These provisions implement the dual congressional objectives of
preserving the right of labor organizations to bring pressure to bear on offending employers in
primary labor disputes and of shielding unoffending employers and other forms of pressures in
controversies not their own. Denver Bldg. & Constr. Trades Council, 341 U.S. at 692. Here,
Verizon and its subcontractors are the primary employers and the hotels are the neutral

Petitioner does not attach this exhibit for the truth of any statements made in the letter, Petitioner submits the letter
to show that Counsel for System Council T-6 is directing the picketers conduct by signing the letter and leaving her
telephone number for them to contact with any questions. Ex. O. As discussed above, Respondent distributes its
signature letter to hotels that are signed by different IBEW Locals and multiple IBEW Locals have picketers present
at the same hotels. Any claim by Respondents Counsel that the System Council T-6 is not the proper Respondent is
undermined by evidence showing otherwise.

11

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employers.13 Respondents picketing at the hotels violates the Act because it is coercive conduct
that has an unlawful secondary object to force hotels to stop doing business with Verizon and its
subcontractors.
2.

Respondents Conduct Constitutes Unlawful Activity

Respondents organized campaign of picketing constitutes unlawful conduct that is

highly confrontational. Although there is no statutory definition of picketing, the element of
confrontation has long been central to [the Boards] conception of picketing for purposes of the
Acts prohibitions. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 355
NLRB 797 (2010) (explaining that unlawful conduct can be a physical, or at least symbolic,
confrontation between the picketers and the site). In a very comparable situation, the Board held
that mass activity of about 50 to 140 participants in the parking lot of a neutral hotel lodging
employees of a primary employer had all the attributes of unlawful picketing in violation of the
Act.14 Intl Union, United Mine Workers of Am. & Dist. 29, 304 NLRB 71, 72 (1991). The

13

Under the ally doctrine, if the primary contracts with another employer to perform bargaining unit work
formerly done by the striking employees, that employer becomes an ally of the primary employer and loses its
neutral status. See Newspaper & Mail Deliverers Union of N.Y. & Vicinity, 271 NLRB 60, 67 (1984). Here,
Verizons subcontractors are also treated as primary employers because they are performing the struck work of
Verizon.
14
Although the Board only found a violation of Section 8(b)(4)(ii)(B) and not also 8(b)(4)(i)(B) of the Act in the
United Mine Workers decision, the facts here are distinguishable. See 304 NLRB at 73. In United Mine Workers,
the Board found that it was ambiguous as to whether th[e] activity was [] directed at any individual employed by
the hotel. See id. The Board specifically found that there was no evidence to show the union initiated any
communication with a hotel employee or made any statement directed to a hotel employee. See id. In fact, the only
hotel employee present during the mass activity was the night auditor and there was no indication that she had any
contact with the union. See id. at 74. Here, there is overwhelming evidence showing that the picketers have directed
their behavior, including the blocking of vehicles, and statements toward multiple hotel employees that have been
present during the picketing. At the La Quinta Inn, Respondents picketers yelled at hotel employees calling them
scabs, pieces of shit, and asking a female employee how much she charges?. Ex. M at 2:25-27, 3:6-7. At the
Fireside Inn, picketers threatened a hotel manager by stating well get you and called him a fat pork-chop. Ex.
F at 3:17-18. At the Days Inn, picketers yelled at hotel employees calling them scabs, a shit bag, and yelling for
them to throw them out. Ex. G at 2:7-11; Ex. I at 3; Ex. H at 2:9-13. At the Extended Stay America,
Respondents picketers yelled at hotel employees saying they let scabs stay at the hotel and they needed to kick them
out and said fuck you to the employees. Ex. K at 4:14-16; Ex. L at 4:8-13. Thus, Respondents behavior and
statements have been directly targeting hotel employees in violation of Section 8(b)(4)(i)(B) of the Act. See, e.g.,
Teamsters Local Union No. 122, Intl Bhd. of Teamsters, 334 NLRB 1190, 1214 (2001) (holding that a union
violated 8(b)(4)(i)(B) of the Act by blocking neutral employees vehicles and booing and saying scab to the

12

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Board relied on elements usually found in picketing, including the size of the crowd, the fact
that the participants were milling around in the parking lot, and the shouts of scabs and why
dont you go home. Id. The Board specifically noted that it had all the attributes of mass
picketing and was accentuated by the timing of the crowds arrival at the inn in the predawn,
when the latters guests likely were sleeping and the general public was not astir. Id.
Similar to the facts in the United Mine Workers decision, Respondent has engaged in
mass picketing at multiple hotels on several occasions. Respondent typically dispatches at least
fifty picketers at each hotel and the number has even reached two hundred picketers at one
location. The picketers have regularly carried picket signs and placards and patrolled in the
parking lots at the hotels. The picketers have also yelled obscenities and chanted at hotel
employees and guests. No hotel guests are immune from the picketers behavioreven an
elderly couple and a family with young children have been victimized, clearly conduct not direct
at Verizon employees. Respondent has deliberately organized the picketing in the early morning
hours to ensure that it disrupts the sleeping of the hotel guests. Moreover, Respondents conduct
has included loud noises from yelling, air horns, and the beating of drums. See Metro. Regl
Council of Philadelphia & Vicinity, United Bhd. of Carpenters & Joiners of Am., 335 NLRB
814, 815 (2001) (holding that broadcasting a message at extremely high volume through
loudspeakers at condominium building was coercive conduct).

Another frequent tactic by

Respondent is the blocking of access for vehicles of hotel employees and guests trying to enter
and leave the hotels, which has put countless individuals in dangerous situations. See Serv.
Maintenance Employees Union, Local 399, 136 NLRB 431, 436 (1962) (holding that a union

employees); Serv. Employees Intl Union, Local 525, 329 NLRB 638, 639 n.10 (1999) (finding an express
inducement of employees [of the neutral] to strike is not a necessary predicate to a finding of a violation of Section
8(b)(4)(i)(B) because a unions conduct directed at neutrals and customers was open and notorious so the
foreseeable consequence was to appeal to employees to cease services for the employer).

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engaged in unlawful conduct by having seventy members parade in a circle impeding access to
an arena and engaging in some element of physical restraint on patrons).
Thus, it is evident that the character of Respondents overall conduct is highly
confrontational and coercive. The First Circuit has explained that the language of [S]ection
8(b)(4)(ii)(B) [of the Act] is pragmatic in its application, looking to the coercive nature of the
conduct, not to the label which it bears. Pye, 61 F.3d at 1024. In affirming the entry of an
injunction against a union for affinity group shopping as non-traditional secondary boycotting,
the First Circuit held that it had little difficulty in finding that the shop-ins were coercionbased secondary boycotting. Id. at 1021, 1024 (holding that the organized shopping trips were
coercive because they involved using all of the parking lot, occupying much of the interior of the
retail stores, long checkout lines, and an exodus of regular customers).15 A comparison of the
current situation and the shop-ins that the First Circuit found to be unlawful conduct shows that
Respondents activity here is far more disruptive and coercive.
3.

Respondents Conduct Has an Unlawful Object

Respondents conduct clearly has an unlawful object, which is to force the neutral hotels
to cease doing business with Verizon and its subcontractors.16 It is well settled that the forbidden
object need not be the unions sole object; the unions conduct is proscribed so long as the
forbidden object is an object of the conduct. Denver Bldg. & Constr. Trades Council, 341 U.S.

15

Likewise, the Board had held that non-picketing conduct can still be unlawful when the conduct directly caused,
or could reasonably be expected to directly cause, disruption of the secondarys operations. United Bhd. of
Carpenters & Joiners of Am., Local Union No. 1506, 355 NLRB at 806 (noting that the blocking of egress or ingress
is an obvious example of coercive activity). Even though Respondent clearly engaged in picketing, the technical
definition of its activity is less important than its flagrant coerciveness.
16
The cessation of business contemplated by the statute includes disruptions and changes in the neutrals business
relationship that fall short of a total cessation of business. N.L.R.B. v. Local 825, Intl Union of Operating Engrs,
400 U.S. 297, 304-05 (1971). Even though a complete cessation of business is not necessary, the investigative
record shows that Respondents conduct resulted in several hotels ceasing business with Verizon and the
subcontractors. Furthermore, the evidence shows that Respondents conduct resulted in severe disruptions at all of
the hotels.

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at 688-89 (emphasis added). In determining whether a union has an unlawful object, the inquiry
is often an inferential and fact-based one, at times requiring the drawing of lines more nice
than obvious. N.L.R.B. v. Intl Longshoremens Assn, 473 U.S. 61, 81 (1985). The First
Circuit has held that if an unwholesome object can logically be inferred from the nature of the
conduct, evaluated in light of the practical realities of a given situation, then direct evidence of
the object need not be produced. Pye, 61 F.3d at 1022.
Here, there is direct evidence of a secondary objective because Respondent has
repeatedly admitted that it has an object of causing the neutral hotels to eject the individuals
employed by Verizon and the subcontractors. See United Mine Workers, 304 NLRB at 72
(holding a unions picketing at a hotel had an unlawful object of having the hotel oust the
primarys employees as guests). For example, Respondent distributed its signature letter to the
hotels threatening them with a continuous campaign aimed exclusively at [their] business. In
the letters, Respondent asked the hotels to immediately stop giving aid and comfort to
Verizons out of town replacement work force. Respondent has repeatedly admitted that it just
wants the replacement workers to go away and then the picketers will leave the hotels. In
addition, the conduct on the picket lines affirms this objective because testimony shows that
Respondents agents yelled that they would not leave until the hotel kicked [the replacements]
out. The Board has consistently held that an unlawful objective is established when a union
makes statements to a neutral employer to take specific affirmative action as a condition for
the union not engaging in the threatened activity. Local 560, Intl Bhd. of Teamsters, 360 NLRB
No. 125, slip op. at 2 (May 30, 2014).
Moreover, the manner and time at which the picketing and activity took place is further
evidence of an unlawful object. See United Mine Workers, 304 NLRB at 73 (relying on the fact

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that picketing began at dawn and was directed toward the hotel and guests to find an unlawful
object). Respondents conduct was clearly undertaken in such a manner and time to maximize
its obstructiveness. Pye, 61 F.3d at 1022. A majority of Respondents attention was directed
toward hotel guests and hotel employees. Whether it was blocking the vehicles of innocent
third-parties or shouting obscenities toward guests and hotel employees, Respondent has directed
much of its negative energy toward individuals who are only affiliated with the hotels. Thus,
Respondent sent a clear message to the hotels that it had the ability to interfere with their
business operations at any time and that the hotels should not do business with Verizon and its
subcontractors. See id. (holding that a union had an unlawful object of forcing a neutral to stop
purchasing products from a primary based on a similar message sent to neutral employers). Any
claim by Respondent that the campaign is solely targeting Verizon is disingenuous because
Respondent has openly advertised its objective of forcing hotels to stop serving Verizon and its
subcontractors.
4.

Respondents Conduct is Not Insulated By Any Claim That The

Hotels are Common Situses

It is anticipated that Respondent will attempt to argue that its conduct is insulated from
the Act because Verizon and the subcontractors performed work at the hotels. As a result,
Respondent will incorrectly claim that the hotels have become common situses and the picketing
is lawful primary activity. Respondents argument fails for three primary reasons: the hotels are
not common situses because Verizon replacements are not performing work there, Respondent
has not complied with the Moore Dry Dock standards required at a common situs, and the
picketing still remains unlawful because of the secondary objective.
First, the investigative record shows that the work performed by Verizon and the
subcontractors is installation and maintenance work that is done out in the field at residential and
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commercial properties. Ex. D at 1:23-25. The situation is not a typical common situs case in
which the primary employees are working all day at the same location such as a shopping mall or
construction site.

Instead, the employees are using the hotels for rest and lodging. The

replacement workers leave the hotels in their vehicles in the morning and drive to an open lot
where materials are kept to load up their equipment and go out to their work assignments. Ex. M
at 2:3-9. The fact that they park vehicles at the hotel at the conclusion of their workday does not
make it a common situs. Although there is evidence to show that a subcontractors supervisors
perform some of their work at the Extended Stay America, their work is not struck work and thus
not sufficient to make even that single hotel a common situs. Ex. K at 1:2-24; Ex. L at 1:25.
Second, Respondent has not complied with the Boards following set of evidentiary
standards to assess whether picketing at a common situs is lawful primary picketing or unlawful
picketing with a proscribed secondary object: (1) the picketing is strictly limited to times when
the situs of the dispute is located on the secondarys premises; (2) at the time of the picketing the
primary employer is engaged in its normal business at the situs; (3) the picketing is limited to
places reasonably close to the location of the situs; and (4) the picketing discloses clearly that the
dispute is with the employer. See Sailors Union of the Pacific (Moore Dry Dock Co.), 92
NLRB 547, 549 (1950).

If a union complies with all four of the Moore Dry Dock factors, the

picketing is presumed lawful, whereas a unions failure to comply with any of the four factors
creates a rebuttable presumption that picketing had a secondary unlawful object. Intl Bhd. of
Elec. Workers, Local No. 970, 306 NLRB 54, 58 (1992). At the very least, Respondents
picketing is not limited to the time that the Verizon workers are present at the hotels nor is it
limited to the times that Verizon workers are engaged in struck work. Respondent has initiated
mass picketing early in the morning while Verizon replacement workers are still sleeping and

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remained at the hotels to picket after the contractors have left for their workday. Furthermore,
Respondent has not made it clear that the dispute is with Verizon rather than the hotels because
the fliers, signs, and statements target the hotels.
Regardless of the fact that the hotels are not common situses and that Respondent has not
complied with the Moore Dry Dock factors, Respondents picketing is nevertheless unlawful
because it has a secondary objective. Even at a common situs, and even when complying with
the Moore Dry Dock standards, a union may not picket with the objective to enmesh the neutral
employer in the primary dispute. Local 560, Intl Bhd. of Teamsters, 360 NLRB No. 125, slip
op. at *1. Thus, if there is direct evidence of an unlawful objective that the neutral cease doing
business with the primary, a violation will be found even if the Moore Dry Dock standards are
followed. See Intl Bhd. of Elec. Workers, Local Union No. 11, 154 NLRB 766, 767-68 (1965).
This reflects the Boards recognition that the controlling consideration has been to require that
the picketing be conducted so as to minimize its impact on neutral employees insofar as this can
be done without substantial impairment of the effectiveness of picketing in reaching the primary
employees. Intl Bhd. of Elec. Workers, Local No. 970, 306 NLRB at 58. As discussed above in
Section III.B.3., there is overwhelming direct evidence to establish that Respondent had the
objective of enmeshing the hotels in its labor dispute with Verizon.
Thus, there is reasonable cause to believe that Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act because Respondent engaged in picketing that had an unlawful secondary
objective.
C.

THE REGIONAL DIRECTORS LEGAL THEORY IS SUFFICIENTLY

SUSTAINABLE

The second step in the analysis for 10(l) injunctive relief is the requirement that the
Regional Directors theory is not irreproachable or without merit. Pye, 61 F.3d at 1020. To
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meet this requirement, the Regional Director need not prove that the theory is ultimately valid,
but must only show that the theory is presentable. See id. The second prong in the analysis is
largely subsumed by the first prong because a determination of reasonable cause to believe an
unfair labor practice occurred inherently involves consideration of the Regional Directors legal
theory. Pye v. Teamsters Local Union No. 122, 875 F.Supp. 921, 923 (D. Mass.), affd, 61 F.3d
1013 (1st Cir. 1995). Thus, for the reasons discussed above in Section III.B., the Regional
Directors theory fits precisely into the contours of Section 8(b)(4)(i) and (ii)(B) of the Act.
Respondents conduct constitutes classic unfair labor practices under well-established Board
precedent. Even if the Court were to consider any of the Regional Directors theory as somehow
novel, the novelty would not foreclose the opportunity for injunctive relief under Section 10(l) of
the Act. See Pye, 61 F.3d at 1020; see also E.E.O.C. v. Steamship Clerks Union, Local 1066, 48
F.3d 594, 607 n.13 (1st Cir. 1995) (pointing out that [i]t would be a peculiar rule of construction
if a statute could not be applied in a certain manner unless it had already been applied in that
manner in a previous case).
D.

THE TEMPORARY RESTRAINING ORDER IS JUST AND PROPER

Under the final prong of the test, the traditional requirements for injunctive relief do not
apply to courts in the First Circuit in Section 10(l) proceedings and are at most of secondary
interest. Pye, 61 F.3d at 1019 (explaining instead that the judicial inquiry is only, or at least
primarily, whether there is reasonable cause to believe a section 10(l) offense has been
committed). The First Circuit explained that the special importance that Congress attaches to
Section 10(l) offenses indicates . . . a strong presumption of irreparable harm, with the balance in
favor of the charging party, and that the public interest favors the injunction. Maram v.
Universidad Interamericana De P.R., Inc., 722 F.2d 953, 958 (1st Cir. 1983); see also Local 901,

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586 F.2d at 877-78 (explaining that the claim that the evidence would not support a finding of
irreparable harm are largely beside the point); Local 346 Intl Leather Goods Union v.
Compton, 292 F.2d 313, 317 (1st Cir. 1961) (holding an injunction was warranted because there
was reasonable cause to believe the respondent engaged in unfair labor practices with absolutely
no discussion of any just and proper analysis). For this reason, injunctive relief is just and
proper so long as it comprises a reasonable means of ensuring the efficacy of the Boards final
order, or preserving the status quo, or permitting administrative proceedings to go forward
without undue hindrance, or preserving unjustified interruption of the free flow of commerce, or
forestalling the repetition of unfair labor practices. Pye, 61 F.3d at 1021 (emphasis added).
Here, injunctive relief and particularly the temporary restraining order are necessary to
stop the irreparable harm resulting from Respondents relentless campaign of confrontational and
highly disruptive picketing at neutral employers. The First Circuit has affirmed the issuance of a
Section 10(l) injunction against a union that engaged in secondary boycotting by participating in
shop-ins on three distinct occasions at neutral retailers. See id. at 1026. In doing so, the First
Circuit explained that it was necessary to enjoin the union from engaging in secondary
boycotting to shield secondary businesses from unlawful intrusions. See id. at 1024. Here,
Respondents organized picketing campaign extends far beyond three occasions at three
locations and is significantly more confrontational, so the pressure and harm on the neutral
employers is even greater. Respondents picketing also puts unlawful pressure on Verizon to
yield to its demands in the current labor dispute.
Moreover, Respondent continues to this day to attempt to force neutral employers to stop
doing business with Verizon and its subcontractors. The continued nature of Respondents
conduct and the repeated unfair labor practices heighten the need for injunctive relief to prevent

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future violations of the Act. Respondent has stated its intention to continue these practices in the
letters written to hotel management and its conduct shows that they will continue the unlawful
activity by literally chasing the individuals to their next hotel. In addition to the fact that
Respondent shows no signs of relenting, Respondents attempts have been remarkably successful
in enmeshing several hotels, all neutral parties, in a labor dispute to which they are not a party.
The very fact that several hotels requested or required Verizon and its subcontractors to leave
shows that the neutral parties are succumbing to the pressures of Respondents unlawful activity.
Moreover, Respondents coercion and unlawful activity have disrupted and will continue
to interfere with the free flow of commerce, including the hotels business operations. In finding
injunctive relief is just and proper, the First Circuit has relied on the fact that it is necessary to
enjoin secondary boycotting to maintain the unhindered stream of commerce. See id. at 1024.
Respondents actions disrupt the hotels essential services and the actions are timed so as to
create the greatest disturbance to the hotels and their guests. In turn, Respondents actions
interfere with the hotels ability to conduct their business with their guests, including Verizon and
the subcontractors.

Thus, the temporary restraining order is necessary to prevent further

irreparable harm, stop future violations of the Act, and ensure the free flow of commerce.
IV.

CONCLUSION
Based on the foregoing, Petitioner contends both that there is reasonable cause to believe

that Respondent has violated the Act and that the temporary restraining order requested in the
Petition is just and proper.

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Dated at Boston, Massachusetts,

May 23, 2016

Respectfully submitted,
__/s/ Colleen M. Fleming _____________
Colleen M. Fleming
Lorenzo R. Cabantog
National Labor Relations Board, Region 1
10 Causeway Street, 6th Floor
Boston, Massachusetts 02222
(617) 565-6775
Attorneys for Petitioner

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