
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1331                        ROSEMARY PYE, REGIONAL DIRECTOR, ETC.,                                Petitioner, Appellee,                                          v.                            TEAMSTERS LOCAL UNION NO. 122,                                Respondent, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                        and Schwarzer,* Senior District Judge.                                        _____________________                              _________________________               Stephen R. Domesick for appellant               ___________________               Corinna  L. Metcalf, Deputy  Assistant General Counsel, with               ___________________          whom  Frederick Feinstein,  General  Counsel,  Ellen A.  Farrell,                ___________________                      _________________          Assistant General Counsel, and Barry J. Kearney, Acting Assistant                                         ________________          General Counsel, were on brief, for appellee.                              _________________________                                    August 8, 1995                              _________________________          _______________          *Of the Northern District of California, sitting by designation.                    SELYA,  Circuit  Judge.     This  appeal  features   an                    SELYA,  Circuit  Judge.                            ______________          interlocutory injunction issued on the authority of section 10(l)          of  the  National Labor  Relations  Act (NLRA),  barring  a labor          union's  innovative  practice of  conducting "group  shop-ins" at          secondary businesses (retail  liquor outlets) as an  outgrowth of          its  grievance with  a primary  employer  (a beer  distributor).1          After  carefully considering the  parties' positions in  light of          the pertinent authorities,  we affirm the district  court's order          in all respects.          I.  THE FACTS AND THE PROCEEDINGS BELOW          I.  THE FACTS AND THE PROCEEDINGS BELOW                    The facts are set out in the district  court's opinion,          see Pye v. Teamsters Local Union No.  122, 875 F. Supp. 921, 923-          ___ ___    ______________________________          24   (D. Mass.  1995), and it  would serve  no useful  purpose to          rehearse  them  here.   We  content  ourselves  with  a decurtate          summary, presented in a manner that recognizes the statutory edge                                        ____________________               1Section 10(l) provides in relevant part:                    Whenever it is  charged that  any person  has                    engaged  in  an  unfair  labor  practice  [as                    defined  in other sections  of the NLRA], 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                    [appropriate] United States  district court .                    . . for appropriate injunctive relief pending                    the  final  adjudication  of  the Board  with                    respect to such matter.          29  U.S.C.    160(l) (1988).    The same  statute authorizes  the          district court to grant such  injunctive relief "as it deems just          and proper . . . ."  Id.                               ___                                          2          enjoyed  by  petitioner-appellee,  the Regional  Director  of the          National Labor  Relations Board  (NLRB or  Board), in  connection          with the resolution of disputed factual issues and the inferences          that may be drawn therefrom.                    In  November  of 1994,  respondent-appellant  Teamsters          Local  Union No.  122  (the  Union), then  embroiled  in a  labor          dispute with  August  A.  Busch  &  Co.  of  Massachusetts,  Inc.          (Busch),  organized  three  group shopping  trips.    During each          outing, Union members descended, in droves and in concert, upon a          designated retail establishment and engaged in multiple rounds of          penny-ante purchasing, buying  small, inexpensive  items such  as          packs of chewing gum or bags of  potato chips and paying for them          (more  often than  not) with  bills of  large denomination.   The          sequelae were predictable:   overcrowded parking  lots, congested          aisles, long checkout lines, and an  exodus of regular customers.          Although some of the group shoppers adorned themselves with Union          symbols,  the record contains  virtually no proof  of objectively          expressive activity.  More particularly, we can find no  evidence          suggesting  that  the  Union, through  group  shopping,  made any          discernible  attempt  to  communicate a  defined  message  to the          public.2                    The three shop-ins, each involving a different retailer          engaged  in   commerce,  occurred   at  different   locations  in                                        ____________________               2During  one of the excursions some Union adherents remained          outside  the store, holding banners aloft.  The injunction issued          by the lower court does not affect that activity, and we consider          it  irrelevant for  the  purpose of  determining  the issues  sub                                                                        ___          judice.          ______                                          3          Massachusetts.   The first  incident transpired  on November  17,          when  a  band  of  approximately  70  Union  members invaded  the          premises  of  Kappy's   Liquors.    The  group   shopping  (which          respondent  prefers  to   call  "affinity   group  shopping"   or          "associational shopping")  persisted for  some 45  minutes.   The          record   reflects  that   at   least  one   customer,  apparently          discouraged  by  the   crush  of  Union  members,   left  without          transacting  any  business.    The  second  shop-in  occurred  on          November 23 at Wollaston  Wine.  This event also  lasted about 45          minutes.   Approximately  125 Union  members  participated.   The          third incident took place on November 25 at the liquor department          of Price Costco,  a discount house.   It involved 50 or  so Union          members.  The  record does not pinpoint its duration.   All three          episodes began late in the afternoon (a prime time in the package          store trade), and  the latter two incidents occurred  on the days          before  and after the Thanksgiving holiday (days that customarily          produce  substantial sales  for liquor  retailers).   The  record          reveals  that on  at least  two of  the occasions  store managers          complained to a Union official who was on the premises, deploring          the disruptive effects of the practice on their business.  On the          third  occasion, the  store owner  apparently  took his  concerns          directly to Busch.                    Busch displayed  little affinity for the  Union's newly          contrived stratagem.  It complained to the Regional Director who,          in  turn,  initiated an  administrative  adjudicatory  process to          examine  whether the group  shopping constituted an  unfair labor                                          4          practice  prohibited  by  NLRA     8(b)(4)(ii)(B),  29  U.S.C.             158(b)(4)(ii)(B) (1988).   The Regional Director  theorized that,          because the  Union's actual  labor dispute  was with the  primary          employer, Busch,  section 8(b)(4)(ii)(B) expressly  prohibited it          from trying to  impair the relationships of  secondary businesses          (the retail stores) with Busch.  Resisting this line of reasoning          and  denying any  wrongdoing, the  Union  asseverated that  these          shop-ins were efforts to publicize  its grievance with Busch, and          were  thus beyond  the statute's proscriptive  reach.   The Union          also asseverated  that, in the  end, the group  shopping actually          benefitted the  retailers by  generating hundreds  of dollars  in          sales.                    The Regional Director refused to buy the Union's wares.          On  December 1,  she  invoked section  10(l)  and petitioned  for          temporary  injunctive  relief  in  the  federal  district  court,          asserting that  she  had reasonable  cause  to believe  that  the          associational shopping  amounted to an illegal  secondary boycott          because  its real  purpose was  to force  the retailers  to cease          purchasing  beverages from Busch.  The district court, perceiving          no  need for  an  evidentiary hearing,3  found  for the  Regional                                        ____________________               3Section 10(l) directs that affected parties "shall be given          an opportunity  to  appear by  counsel and  present any  relevant          testimony."   Here,  however, the district  court found  that the          papers  were sufficient.   See Pye,  875 F. Supp.  at 928 ("Based                                     ___ ___          simply  on the  affidavits of  the Union  representative and  the          admissions made by the Union . . ., all of the relevant facts are          admitted.").  Although the Union's briefs appear critical of this          ruling, the Union  has not appealed  from it, and  we decline  to          address it  further.  See Ryan v. Royal Ins. Co. of Am., 916 F.2d                                ___ ____    _____________________          731, 734  (1st Cir.  1990) ("It is  settled in this  circuit that          issues  adverted   to  on   appeal  in   a  perfunctory   manner,                                          5          Director.   See Pye, 875 F. Supp.  at 925-28.  In due course, the                      ___ ___          court  entered a decree  that constitutes the  actual injunction.          Its key  provisions are  set  out in  the margin.4   This  appeal          ensued.          II.  THE LAW AND ITS APPLICATION          II.  THE LAW AND ITS APPLICATION                    The  so-called labor injunction has been among the most          controversial  landmarks  dotting  the  historical  landscape  of          American labor  law.   See generally  Felix Frankfurter  & Nathan                                 ___ _________          Greene,  The Labor  Injunction (1930);  Clarence  E. Bonnet,  The                   _____________________                                ___          Origin of  the Labor Injunction,  5 S.  Cal. L. Rev.  105 (1931);          _______________________________          Eileen Silverstein, Collective  Action, Property Rights, and  Law                              _____________________________________________                                        ____________________          unaccompanied by some developed argumentation, are deemed to have          been abandoned.").               4The decree prohibits  the Union, and various  categories of          individuals associated with it, from:                         (a)    organizing  and  conducting  mass                    demonstrations,   including  affinity   group                    shopping,   store   occupations,    occupying                    parking   lots,  picketing   or  other   mass                    activity, where an object thereof is to force                    or require  Kappy's Liquors,  Wollaston Wine,                    Price  Costco or  any other  person  to cease                    using,  selling,  handling,  transporting  or                    otherwise dealing  in the  products of  or to                    cease doing  business with August  A. Busch &                    Co. of Massachusetts, Inc.                         (b)   in  any manner  or  by any  means,                    threatening, coercing or  restraining Kappy's                    Liquors, Wollaston Wine,  Price Costco or any                    other person  engaged  in commerce  or in  an                    industry affecting  commerce where  an object                    thereof  is  to   force  or  require  Kappy,s                    Liquors, Wollaston Wine, Price  Costco or any                    other   person  to   cease  using,   selling,                    handling, transporting  or otherwise  dealing                    in the products of or to cease doing business                    with August A. Busch & Co.  of Massachusetts,                    Inc.                                          6          Reform:   The Story of the Labor Injunction, 11 Hofstra Lab. L.J.          ___________________________________________          97 (1993).  The section 10(l)  injunction is a special species of          the  labor injunction,5 designed  to halt, inter  alia, secondary                                                     _____  ____          activity that the Regional Director  believes is in violation  of          NLRA   8(b)(4)(ii)(B) until the NLRB can consider the charges and          reach a  decision  on the  merits.   The  special  nature of  the          section 10(l) injunction informs our analysis of the case.                               A.  Standards of Review.                               A.  Standards of Review.                                   ___________________                    The  standards of  review  applicable  to appeals  from          district  court decisions  arising under  section 10(l),  whether          granting  or  denying   the  requested   relief,  are   extremely          deferential.  We  review the lower  court's factual findings  for          clear error; we review its rulings of law de novo; and  we review          its  ultimate     conclusion,  authorizing  or   withholding  the          requested relief, for  abuse of discretion.  See  Hoeber v. Local                                                       ___  ______    _____          30, United Slate, Tile & Composition Roofers, Etc., 939 F.2d 118,          __________________________________________________          123 (3d Cir. 1991);  Union de Tronquistas  de P.R., Local 901  v.                               ________________________________________          Arlook, 586  F.2d 872,  876 (1st  Cir. 1978);  see also Asseo  v.          ______                                         ___ ____ _____          Centro Medico del Turabo, Inc., 900 F.2d 445, 450 (1st Cir. 1990)          ______________________________          (explicating  identical   standards  under  a   corollary  relief          provision, NLRA    10(j), 29 U.S.C.    160(j)); Asseo v.  Pan Am.                                                          _____     _______          Grain Co., 805 F.2d 23, 25 (1st Cir. 1986)  (same); see generally          _________                                           ___ _________          George Schatzki, Some Observations About the Standards Applied to                           ________________________________________________                                        ____________________               5Inasmuch  as section 10(l)  is aimed almost  exclusively at          unions, it represents a marked departure from the anti-injunction          ethos embodied in the Norris-LaGuardia Act, Pub. L. No. 72-65, 47          Stat. 70 (1932) (codified as amended  and repealed in part at  29          U.S.C.    101-115 (1988)).                                          7          Labor Injunction Litigation Under Sections 10(j) and 10(l) of the          _________________________________________________________________          National Labor  Relations Act, 59  Ind. L.J.  565, 575-76  (1983)          _____________________________          (noting these  standards of  review and  the striking pattern  of          appellate deference under section 10(l)).                    Our level  of deference  is heightened  because we  are          perched  on  the second  tier  of review  vis-a-vis  the Regional                                                    _________          Director's assertion  of reasonable  cause.   The district  court          occupies the first tier, and just as that court must itself defer          in  significant  measure  to  the  evaluative  judgments  of  the          Regional Director, see,  e.g., Union de Tronquistas,  586 F.2d at                             ___   ____  ____________________          876, so,  too, must we  defer to the  district court.6   Thus, in          this doubly  sheltered enclave,  the judicial  task is  generally          confined   to  weeding   out   wholly  arbitrary   or  thoroughly          insupportable petitions for  relief.  See Squillacote  v. Graphic                                                ___ ___________     _______          Arts Int'l Union, 540 F.2d 853, 859 (7th Cir. 1976).          ________________                    Of  course,   an  important  reason   undergirding  the                                        ____________________               6This   layered  deference     district  court  to  Regional          Director and appellate  court to district  court   has  parallels          elsewhere  in  the law.    For  example,  we have  encountered  a          virtually   identical  design   when  reviewing   district  court          assessments  of  consent  decrees   under  certain  environmental          statutes.  See, e.g., United States v. DiBiase, 45 F.3d 541, 543-                     ___  ____  _____________    _______          44 (1st  Cir. 1995);  United States v.  Cannons Eng'g  Corp., 899                                _____________     ____________________          F.2d 79, 84 (1st Cir. 1990).  In such circumstances, we have been          impelled to note  that "by the time [such]  consent decrees reach          this court,  they are  encased in a  double layer  of swaddling,"          DiBiase,  45  F.3d  at 544  (internal  quotation  marks omitted),          _______          reflecting not only  the district court's justifiable  mandate to          defer to administrative expertise, but also the appellate court's          mandate to defer to  the trial court's factfinding  expertise and          its   informed  discretion.    In  turn,  this  "doubly  required          deference    district  court to  agency  and appellate  court  to          district  court   places a  heavy burden on  those who purpose to          upset a  trial judge's approval  of a consent decree."   Cannons,                                                                   _______          899 F.2d at 84.  The burden is equally heavy here.                                          8          deferential standard of judicial review in section 10(l) cases is          that  neither the  district court  nor  the court  of appeals  is          adjudicating the merits,  as such, to determine whether an unfair          labor practice  occurred.  To  the contrary, the courts'  role at          this stage is  merely to supply a stopgap, that is, to palliate a          likely violation detected  by the Regional Director  "pending the          final adjudication of the Board with respect to such matter."  29          U.S.C.    160(l).   Consequently, a decision  in a  section 10(l)          proceeding  is  circumscribed in  both  time and  scope,  and any          relief that  may be granted  is effective only while  the related          unfair labor  practice charge is  pending before the NLRB.7   See                                                                        ___          Sears, Roebuck &  Co. v. Carpet, Linoleum, Soft  Tile & Resilient          _____________________    ________________________________________          Floor Covering Layers, 397 U.S. 655, 658-59  (1970) (per curiam);          _____________________          Walsh  v. International Longshoremen's  Ass'n, 630 F.2d  864, 868          _____     ___________________________________          (1st Cir.  1980).   Given the design  of the statute,  the agency          expertise involved,  and the  two-tiered structure  of review,  a          party appealing  from an order  granting or refusing  a temporary          injunction  pursuant  to  section  10(l) confronts  the  sobering          prospect  that  most  battles over  the  appropriateness  of such                                        ____________________               7Still  another reason  to accord  a  significant degree  of          deference to the claims of  the Regional Director is the strength          of the congressional mandate.  See Union de Tronquistas, 586 F.2d                                         ___ ____________________          at 876.  Under the law, once the Regional Director has reasonable          cause  to  believe  that  a  Union's  activity  falls  within the          proscription of section  10(l), she "shall .  . . petition .  . .                                               _____          for appropriate injunctive  relief . . .  ."  29 U.S.C.    160(l)          (emphasis supplied).  This is in stark contrast to section 10(j),          which grants discretion  to pursue injunctions  against employers          under specified  circumstances.   See Miller  v. California  Pac.                                            ___ ______     ________________          Medical  Ctr.,  19  F.3d  449,  456 (9th  Cir.  1994)  (en  banc)          _____________          (recognizing  the dichotomy); see  generally Schatzki,  supra, at                                        ___  _________            _____          568-71 (comparing and contrasting the provisions).                                          9          redress will  be won or  lost long before appellate  review takes          hold.                              B.  Standard of Analysis.                              B.  Standard of Analysis.                                  ____________________                    Congruent with  these deferential standards  of review,          the analytic  path to  be traversed in  a section  10(l) case  is          narrower than that typically travelled in the course of reviewing          the grant  or denial of  preliminary injunctive relief.   Indeed,          "in  a section  10(l) case  the judicial inquiry  is only,  or at          least primarily, whether  there is reasonable cause  to believe a          section 10(l) offense has been committed."  Maram  v. Universidad                                                      _____     ___________          Interamericana de P.R., Inc., 722  F.2d 953, 958 (1st Cir. 1983).          ____________________________          Other  factors that ordinarily  inform district court  actions in          respect  to  temporary  injunctions are,  at  most,  of secondary          interest.  See id. (concluding 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").    Hence,  the  method  of  analysis  that  governs          appellate review  of the propriety  and scope of a  section 10(l)          injunction is best described as follows:                    First, the  court must determine  whether the                    Regional  Director  has reasonable  cause  to                    believe that the elements  of an unfair labor                    practice are  present.  In  this regard,  the                    Director  need  only  show  the existence  of                    credible evidence, even if disputed, together                    with  reasonable  inferences,  which  support                    [her] conclusions. .  . .  Second,  the court                    must conclude that the legal theories  relied                    upon   by  the   Director  are   not  without                                          10                    substance.    Finally,   it  must  find  that                    temporary  injunctive  relief  is  "just  and                    proper" in terms of effectuating the purposes                    of the Act.          Union de Tronquistas, 586 F.2d at 876 (citations omitted).          ____________________                    Having stated the bareboned test, we next flesh out its          three constituent parts.                    1.  Reasonable Cause.  The centerpiece of  the required                    1.  Reasonable Cause.                        ________________          analysis is the supportability vel non of the Regional Director's                                         ___ ___          determination that there is reasonable  cause to believe that  an          unfair labor practice has been, or is being, committed.  The case          law reveals  two principles,  in particular,  that demarcate  the          meaning and the margins of this requirement.                    First,  the  Regional  Director's  evidentiary  burden,          whether  measured  quantitatively  or  qualitatively, is  modest.          Although  courts  phrase   this  principle  in  different   ways,          sometimes speaking in terms of the Regional Director's  burden of          proof, see, e.g.,  Hirsch v. Building  & Constr. Trades  Council,                 ___  ____   ______    ___________________________________          530  F.2d  298,  302  (3d Cir.  1976)  (characterizing  burden as          "relatively insubstantial"), sometimes speaking  in terms of  the          quantum of proof,  see, e.g., Gottfried  v. Sheet Metal  Workers'                             ___  ____  _________     _____________________          Int'l Ass'n, Etc.,  927 F.2d 926, 927 (6th  Cir. 1991) (requiring          _________________          only that  the Regional Director  bring forth "some  evidence" in          support of her petition), and  sometimes speaking in terms of the          probative value of evidence as  opposed to its raw quantity, see,                                                                       ___          e.g., Union de  Tronquistas, 586 F.2d at 876  (requiring that the          ____  _____________________          Regional Director "show the existence of credible evidence, . . .          together   with   reasonable    inferences,"   to   support   her                                          11          conclusions), the  thrust of the  decided cases is uniform:   the          Regional Director need not prove  that the respondent has in fact          violated  the NLRA,  but, rather,  she need  only make  a minimal          evidentiary showing of good reason to believe  that the essential          elements of an unfair labor practice are in view.                    The  second principle that is germane to the reasonable          cause  inquiry is that genuinely disputed issues of material fact          should be resolved at this  early stage in favor of the  Regional          Director's  exposition.   See Maram,  722 F.2d  at 958;  Union de                                    ___ _____                      ________          Tronquistas, 586  F.2d at  876; Kaynard v.  Mego Corp.,  633 F.2d          ___________                     _______     __________          1026, 1031 (2d Cir. 1980).  Put another way, in proceedings under          section 10(l) the Regional Director  must be given the benefit of          every legitimate fact-based doubt.  Thus, a reviewing court "need          not concern itself  with resolving conflicting evidence  if facts          exist which  could support  the [Regional  Director's] theory  of          liability."   Fleischut v.  Nixon Detroit Diesel,  Inc., 859 F.2d                        _________     ___________________________          26, 29 (6th Cir. 1988).                    2.  Legal  Theory.  The next segment  of the tripartite                    2.  Legal  Theory.                        _____________          analysis  implicates the  legal  theory  on  which  the  Regional          Director  relies.   The  requirement  is  straightforward:    the          Regional   Director's  theory  need  not  be  irreproachable;  it          suffices if it "is not without merit."  Union de Tronquistas, 586                                                  ____________________          F.2d at  877.   In other  words, the Regional  Director need  not          persuade  the  court  then and  there  of  her theory's  ultimate          validity, but she must show that the theory is presentable.   See                                                                        ___          Hirsch, 530  F.2d at 302  (explaining that the legal  theory upon          ______                                          12          which the Regional Director proceeds must be "substantial and not          frivolous"); see also Hoeber, 939 F.2d at 123-24  (quoting Hirsch                       ___ ____ ______                               ______          with  approval);  see generally  8  Theodore Kheel,  Labor  Law                              ___ _________                      __________          38.01[1], at 38-9 (1995).                    3.   Just  and  Proper.    Finally,  injunctive  relief                    3.   Just  and  Proper.                         _________________          granted  pursuant to  section 10(l)  must,  by the  terms of  the          statute itself, be "just and  proper."  Both the purpose and  the          contours  of this imperative are relatively well-developed.  "The          purpose of the    10(l) injunction is to preserve  the status quo          in order  that the ultimate  decision of the  Board would  not be          negated  or rendered  moot by  intervening events."    Compton v.                                                                 _______          National Maritime  Union of  Am., 533 F.2d  1270, 1276  (1st Cir.          ________________________________          1976).     Thus,   temporary  injunctive  relief,   if  otherwise          warranted,  passes the  "just  and  proper" test  as  long as  it          comprises  a reasonable  means of  ensuring  the efficacy  of the          Board's final order, or preserving  the status quo, or permitting          administrative proceedings to go forward without undue hindrance,          or  preventing unjustified  interruption  of  the  free  flow  of          commerce,  or   forestalling  the  repetition   of  unfair  labor          practices.   See, e.g., Hoeber,  939 F.2d at 122;  Gottfried, 927                       ___  ____  ______                     _________          F.2d at  927; Asseo, 900  F.2d at 455; Union  de Tronquistas, 586                        _____                    _____________________          F.2d at  878.  In  this sense, the  purpose of the  section 10(l)          injunction is simply a narrower, more  specific expression of the          purpose  underlying  preliminary injunctions  in  general.   See,                                                                       ___          e.g., CMM Cable Rep., Inc. v.  Ocean Coast Props., Inc., 48  F.3d          ____  ____________________     ________________________                                          13          618,  620  (1st  Cir.  1995)   ("The  purpose  of  a  preliminary          injunction is  to preserve the  status quo, freezing  an existing          situation so  as to  permit the [ultimate  trier of  the issues],          upon full adjudication of the case's merits,  more effectively to          remedy discerned wrongs.").                    Since a section 10(l) injunction "may enjoin only those          unlawful labor  practices specified  in the  [NLRA]," Hendrix  v.                                                                _______          International Union of Operating Eng'rs, Local 571, 592 F.2d 437,          __________________________________________________          445 (8th  Cir. 1979),  the form of  the injunction  must dovetail          with the  statutory goals.   However, less  is often  better than          more, and the relief granted  should be narrowly tailored to that          which   is  reasonably  necessary   to  stop   mischief,  prevent          additional   harm,  and  ensure  effective  final  relief.    See                                                                        ___          Gottfried, 927  F.2d at 928;  Potter v. Houston Gulf  Coast Bldg.          _________                     ______    _________________________          Trades Council, 482 F.2d 837, 841 (5th Cir. 1973).          ______________                             C.  Applying the Standards.                             C.  Applying the Standards.                                 ______________________                    Applying  these standards  of review  and analysis,  we          conclude that the instant decree passes muster.                    1.   Reasonable Cause.  The statutory proscription that                    1.   Reasonable Cause.                         ________________          triggered   section  10(l)   in   this  case,   namely,   section          8(b)(4)(ii)(B), makes it  "an unfair labor  practice for a  labor          organization or its agents . . . to threaten, coerce, or restrain          any  person  engaged  in commerce  or  in  an  industry affecting          commerce,  where .  . .  an object thereof  is .  . .  forcing or          requiring any person . . . to cease doing business with any other          person .  . .  ."   The question  at this  step of  the analysis,                                          14          therefore,  reduces to the supportability of the district court's          finding  that the  Regional  Director  had  reasonable  cause  to          believe (1)  that the  activity of  group shopping might  somehow          threaten,  coerce, or restrain  a retail  liquor outlet,  and (2)          that an object of the group shopping was to force or require such          secondary businesses to sever relations with  Busch.  We conclude          that this finding is not clearly erroneous.                    First  and foremost,  it is  reasonable  to regard  the          practice   of  group  shopping  as  potentially  coercive.    The          character of the conduct   including  the use of all or virtually          all  of a  store's  parking lot,  the occupation  of much  of the          interior shopping area,  the forbidding presence  of a throng  of          people acting in unison, and the fostering of long checkout lines          through repeated  purchases of  small items  with  large bills             tends by its  very nature to  disrupt normal commercial  activity          and, thus, to  place economic pressure on a  retail establishment          to appease the  Union by, say, cutting back  on dealings with the          primary  employer.8    The  Union  counters  that,  even  so, the                                        ____________________               8The Union's insistence that the shop-ins actually generated          sales for the retailers is a red herring   empirically erroneous,          conceptually  incomplete, and legally irrelevant.  For one thing,          sales  limited to  snacks and  individual drinks  during  a prime          selling  period   scarcely  seem  economically   beneficial  when          compared  to the  retailer's  opportunity  costs,  that  is,  the          displaced sale of liquor, wine, and other more profitable  items.          See Pye, 875 F. Supp. at  926 ("In the regular course of  events,          ___ ___          one would expect eighty customers to spend more than four dollars          each.").   Similarly, the Union's rodomontade  utterly disregards          the  potential long-term  economic consequences of  the shop-ins,          such as the easily envisionable loss of intimidated or frustrated          customers.  For another thing,  it is the secondary business, not          the  Union,  that should  determine  what  is or  is  not in  the          former's  best  economic  interest.   Here,  the  record strongly                                          15          evidence falls  short.   Insofar as  this argument  presumes that          moderately obstructive conduct by a union is not alone sufficient          either to trigger  section 8(b)(4)(ii)(B) or to justify a section          10(l)  injunction, we  accept  the  presumption.    See  National                                                              ___  ________          Maritime Union of Am. v. NLRB, 367 F.2d 171, 176 (8th Cir. 1966),          _____________________    ____          cert.  denied,  386 U.S.  959  (1967).   Because  section 8(b)(4)          _____  ______          ultimately  proscribes  objects  rather  than  merely  the  means          adopted  to accomplish  them,  the  record  must  contain  enough          evidence to permit  a finding that  the Union actually  possessed          the   statutorily   proscribed   object  of   forcing   secondary          establishments to cease doing business with the primary employer.                    We think  that  the Regional  Director  satisfied  this          requirement here.  To be sure, there is no smoking gun, no direct                                                                     ______          evidence  of  an  avowed intention  to  influence  the retailers'          commercial behavior.   But a  "union's `object'  may be  inferred          from its  acts," New York Mailers' Union No.  6 v. NLRB, 316 F.2d                           ______________________________    ____          371,  372  (D.C.  Cir.  1963),  and  particularized  evidence  of          subjective intent is not essential for proof of a violation.  See                                                                        ___          NLRB  v. Erie Resistor  Corp., 373 U.S. 221,  227 (1963); NRLB v.          ____     ____________________                             ____          Denver  Bldg. &  Constr.  Trades Council,  341  U.S. 675,  688-89          ________________________________________          (1951);  Soft Drink  Workers Union  Local 812  v. NLRB,  657 F.2d                   ____________________________________     ____          1252,  1261-62  (D.C.  Cir. 1980);  Pickens-Bond  Constr.  Co. v.                                              __________________________          United Bhd. of Carpenters &  Joiners of Am., Local 690,  586 F.2d          ______________________________________________________                                        ____________________          suggests  that the  retailers  themselves  did  not  welcome  the          Union's custom.   Finally, whether or not economic  harm actually          occurs as  a result of  a union's secondary  activity is, in  the          circumstances of this case, largely beside the point.                                          16          1234, 1241 (8th Cir. 1978); see also International Longshoremen's                                      ___ ____ ____________________________          Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 224 (1982) (confirming          _____    __________________          that  a  union  "must take  responsibility  for  the `foreseeable          consequences'  of its  conduct") (quoting  NLRB  v. Retail  Store                                                     ____     _____________          Employees Union, Local 1001,  447 U.S. 607, 614 n.9 (1980)).   It          ___________________________          follows 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.  See,  e.g., Local 357,  Int'l                                              ___   ____  _________________          Bhd. of Teamsters, Etc. v. NLRB, 365 U.S. 667, 675 (1961).          _______________________    ____                    Here,  the   facts  permitted  the   Regional  Director          rationally to  infer an unlawful object on the Union's part.  The          Union's conduct was undertaken in such  a way, and at such times,          as to maximize its  obstructiveness.  And, moreover, this  effect          can easily be  viewed as primary  and deliberate, not  incidental          and  accidental.  Hence,  the Regional Director  could reasonably          have believed  that the principal  object of the shop-ins  was to          force the  secondary businesses to stop trading  with the primary          employer.   As the  district court perspicaciously  observed, the          group  shop-ins  can  reasonably be  interpreted  as  having been          designed to send  a dual message to the retailers:   first, "that          the Union has the ability to interfere with the  working of their          business at any time," and  second, that the retailers ought "not          to  get involved  with Busch"  in  the ongoing  labor dispute  by          picking up merchandise directly from Busch's warehouse.  Pye, 875                                                                   ___          F. Supp. at 926.                                          17                    The Union has a fallback  position.  Citing both Edward                                                                     ______          J. DeBartolo Corp.  v. Florida Gulf Coast Bldg.  & Constr. Trades          __________________     __________________________________________          Council, 485 U.S. 568 (1988),  and the First Amendment, the Union          _______          hawks  its right, specifically  preserved by section  8(b)(4), to          publicize its  grievance with a  primary employer.9   Building on          this theme, the Union claims that the injunction is tantamount to          an  impermissible content-based  regulation  because it  prevents          activities that could affect  the public's marketplace  decisions          about  what beer  to purchase.   While  the Union's  theory might          raise potentially interesting  issues if anchored in  the record,          see generally Lee  Goldman, The First Amendment  and Nonpicketing          ___ _________               _____________________________________          Labor Publicity  Under  Section 8(b)(4)(ii)(B)  of  the  National          _________________________________________________________________                                        ____________________               9Section 8(b)(4) is  hedged by two  provisos.  One  declares          "[t]hat nothing contained in . . . clause (B) shall  be construed          to  make  unlawful,  where not  otherwise  unlawful,  any primary          strike or primary  picketing .  . .  ."  The  second proviso,  on          which   the  Union  relies  here,  is  the  so-called  "publicity          proviso."  It stipulates:                    That for  the purposes of this  paragraph (4)                    only,  nothing  contained in  such  paragraph                    shall  be  construed to  prohibit  publicity,                    other than  picketing,  for  the  purpose  of                    truthfully  advising  the  public,  including                    consumers    and   members    of   a    labor                    organization, that a product or products  are                    produced by  an employer with whom  the labor                    organization has  a primary  dispute and  are                    distributed by  another employer, as  long as                    such  publicity does  not have  an  effect of                    inducing  any  individual   employed  by  any                    person other than the primary employer in the                    course of  his employment to  refuse to  pick                    up, deliver,  or transport any goods,  or not                    to perform any services, at the establishment                    of the employer  engaged in such distribution                    . . . .           29 U.S.C.   158(b)(4) (1988).                                          18          Labor Relations Act, 36 Vand. L. Rev. 1469 (1983), it floats free          ___________________          of factual support and, therefore, need not concern us.                    In the first  place, we   like the  district court, see                                                                        ___          Pye, 875 F.  Supp. at 927    remain unconvinced that  the Union's          ___          affinity group shopping, under the circumstances recounted in the          record, can be deemed objectively expressive.  At any rate, there          is little or no  evidence to suggest that  the Union's object  in          mounting  group  shop-ins   was  related  to  publicity   in  any          meaningful  sense, or that  the participating Union  members were          actually engaged  in expressive activity.   In turn,  because the          group shopping was not a publicity-based appeal to consumers, the          principal   cases  cited   by  the   Union   which  address   the          constitutional and  statutory status of  such activity, DeBartolo                                                                  _________          included, are  simply not  relevant to  the  disposition of  this          case.                    In  the second place, section 8(b)(4)(ii)(B) is in play          as long as forcing one person to stop doing business with another          is an  object of  the  allegedly unlawful  activity; the  statute             __          requires  neither that  the proscribed  object  be the  exclusive          object nor even the  primary object.  See Denver  Bldg. & Constr.                                                ___ _______________________          Trades, 341 U.S.  at 689; Local  Union No. 25  v. NLRB, 831  F.2d          ______                    ___________________     ____          1149,  1153  (1st  Cir.  1987);  Carpet,  Linoleum, Soft  Tile  &                                           ________________________________          Resilient Floor Covering  Layers v. NLRB, 467 F.2d  392, 399 n.13          ________________________________    ____          (D.C.  Cir.  1972).    Thus,  whatever mixed  motives  the  Union          harbored  are of considerably less import once an unlawful object                                          19          is  discerned.10    This  is especially  true  in  the  precincts          patrolled by section  10(l).  Even if "[t]he claims  of the Union          based  on the  first amendment  to  the Constitution  and on  the          `publicity proviso'  .  . .  are  not insubstantial,"  Solien  v.                                                                 ______          United Steelworkers of Am., 593 F.2d 82, 88 n.3 (8th Cir.), cert.          __________________________                                  _____          denied, 444 U.S.  828 (1979), it  is not for  this court to  pass          ______          upon  them during  the quintessentially preliminary  inquiry that          section 10(l) entails.  Rather,  "[t]he Board should consider the          claims in  question, and its determinations with  respect to them          will  be subject  to  review  here if  any  direct proceeding  is          commenced in this court . . . ."  Id.                                            ___                    To sum up,  it is not the responsibility  of the courts          to override the  Regional Director's interpretation of  the facts          when that interpretation  is rationally supported by  the record.          Applying this  generous standard,  we approve  the lower  court's          holding  that the  Regional  Director  had  reasonable  cause  to          believe  that  the Union's  practice  of  group shopping  was  in          potential violation of section 8(b)(4)(ii)(B).                    2.   Legal Theory.   We  turn next  to the  question of                    2.   Legal Theory.                         ____________          whether the  instant  case  fits  within the  legal  contours  of                                        ____________________               10It is of some significance that we are here not addressing          generally  nonobstructive  activity  at   the  perimeter  of   an          employer's   business  situs,  as   in  DeBartolo,  but,  rather,                                                  _________          inherently obstructive  activity (even if  marginally expressive)          conducted  inside the  establishments  of secondary  businesses            activity  which could  unduly "bring  [these] neutral,  secondary          employers into a labor dispute in order to  apply pressure on the          primary employers," Brian  K. Beard, Comment, Secondary  Boycotts                                                        ___________________          After DeBartolo:  Has the  Supreme Court Handed Unions a Powerful          _______________   _______________________________________________          New  Weapon?,  75 Iowa  L.  Rev.  217,  233 (1989),  and  thereby          ____________          undermine the prescriptive purpose of section 8(b)(4)(ii)(B).                                          20          section 8(b)(4)(ii)(B).   Having  mulled the Regional  Director's          theory     that  the  Union's  group  shopping  amounted   to  an          unlawfully coercive secondary  boycott   we  conclude that it  is          sufficiently colorable.                    The  legal  significance  of  the  practice   of  group          shopping is a matter of first impression.   But, the novelty of a          Regional Director's legal theory should rarely, in and of itself,          foreclose  the availability  of injunctive  relief  under section          10(l).  Novelty          does  not  necessarily  signify  insubstantiality.    See,  e.g.,                                                                ___   ____          Hendrix, 592 F.2d at 442-43;  Squillacote, 540 F.2d at 858; Boire          _______                       ___________                   _____          v. International Bhd. of Teamsters,  Etc., 479 F.2d 778, 790 (5th             ______________________________________          Cir. 1973);  cf. EEOC v.  Steamship Clerks Union, Local  1066, 48                       ___ ____     ___________________________________          F.3d 594, 607  n.13 (1st Cir. 1995) ("It 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."), petition  for cert.  filed,  63 U.S.L.W.  3874                             ________  ___ _____  _____          (U.S. May 26,  1995) (No. 94-1953).   Thus, we hold that  a novel          legal theory may, if plausible, provide an appropriate foundation          for a section 10(l) injunction.                    We have little  difficulty in finding that  the Union's          group  shopping   plausibly  could  be  deemed  a  coercion-based          secondary boycott  under section 8(b)(4)(ii)(B) and,  hence, that          there  is  adequate legal  substance behind  the issuance  of the          injunction.  The language of section 8(b)(4)(ii) "is pragmatic in          its application, looking  to the coercive nature  of the conduct,                                          21          not  to the label which it bears."   Local Union No. 25, 831 F.2d                                               __________________          at  1153   (citation  and  internal  quotation   marks  omitted).          Although group shopping, as conducted  by the Union in this case,          is a new  twist and may not  fit the traditional conception  of a          secondary boycott,  see, e.g., Denver Bldg. & Constr. Trades, 341                              ___  ____  _____________________________          U.S.  at 687  (describing  a  classic  secondary  boycott),  this          qualification mostly  serves to   earn the  Union high  marks for          ingenuity.   Coercion  under section  8(b)(4)(ii)(B)  is a  broad          concept, and the  NLRB has not hesitated to  include varied forms          of economic  pressure within  the conceptual  ambit.   See, e.g.,                                                                 ___  ____          International Union, United Mine Workers of Am., 304 N.L.R.B. 71,          _______________________________________________          72-73  (1991)  (finding  unlawful  coercion  where union  members          caused a  disturbance at  a motel  housing striker  replacements,          reasoning that  the motel  was a neutral  employer and  the union          activity could pressure it to terminate its relationship with the          labor supply  contractor in  order to force  the latter  to cease          doing business  with the  primary employer),  enforced, 977  F.2d                                                        ________          1470 (D.C. Cir. 1992); Local No. 742, United Bhd. of Carpenters &                                 __________________________________________          Joiners of Am.,  237 N.L.R.B. 564, 565-66 (1978)  (finding that a          ______________          union's  quid pro  quo request  for  premium pay  from a  neutral          employer  was  unlawfully  coercive because  it  was  actually an          effort  to cause the modification of that employer's relationship          with another  employer); Service  & Maintenance  Employees Union,                                   ________________________________________          Local  399,  136  N.L.R.B. 431,  436-37  (1962)  (holding that  a          __________          union's generally nonexpressive marching around the main entrance          of a sports  arena, impeding public access,  constituted unlawful                                          22          coercion).  Here,  though one can imagine  more significant forms          of economic pressure than  associational shopping, we nonetheless          believe that the Regional Director's legal theory is sufficiently          substantial that the district court's approbatory conclusion must          be left intact.11                    3.  Just  and Proper.  We come  finally to the question                    3.  Just  and Proper.                        ________________          of whether the  injunctive relief structured below can  be deemed          just  and proper  in  light  of the  relevant  factual and  legal          circumstances.  We conclude that it can.                    The  district court held that injunctive relief is just          and  proper in  this  case  because of  its  relationship to  two          statutory  goals:   (1) to  prevent  disruptions in  the flow  of          commerce, and (2) to protect innocent third parties from becoming          embroiled  in a  labor dispute.   See Pye,  875 F. Supp.  at 928.                                            ___ ___          This  threshold   determination  rests  on  empirical  and  legal          bedrock.  It  is indisputable that the statutory  proscription of          secondary  boycotts  contemplates  both  the  maintenance  of  an          unhindered  stream of  commerce, see, e.g.,  Hoeber, 939  F.2d at                                           ___  ____   ______          122; Union de Tronquistas, 586 F.2d at 878,  and the shielding of               ____________________          secondary  businesses   from  unlawful  intrusions,   see,  e.g.,                                                                ___   ____          International  Longshoremen's Ass'n, 456 U.S. at 223 n.20; Denver          ___________________________________                        ______                                        ____________________               11Of course, this  ruling means only what it  says, and does          not speak to whether the Union's contrary view may prevail in the          long run.   That question is  not before us at  this time.   See,                                                                       ___          e.g.,  Madden  v.  International Hod  Carriers',  Bldg.  & Common          ____   ______      ______________________________________________          Laborers'  Union of Am.,  Local No.  41, 277  F.2d 688,  690 (7th          _______________________________________          Cir.)  (explaining  that  "[t]he  ultimate determination  on  the          merits as to whether a violation occurred is reserved exclusively          for the  Board, subject  to judicial  review" at  the appropriate          time), cert. denied, 364 U.S. 863 (1960).                 _____ ______                                          23          Bldg. &  Constr. Trades, 341 U.S. at 692.   After all, "[a] union          _______________________          has a right to press a recalcitrant employer within the limits of          the law; but, [a secondary business] has an equal and correlative          right to  be protected from becoming a union  pawn in an end game          directed at some other  employer."  Local Union No. 25,  831 F.2d                                              __________________          at 1152.   On  this basis, then,  temporary injunctive  relief of          some sort is clearly just and proper.                    Starting from this major premise, our focus necessarily          becomes the  scope of  the decree that  the lower  court actually          entered.   The  Union  tells  us that  the  decree  is vague  and          overbroad.   We reject  this characterization.   The injunction's          prohibitory  ambit is  quite clear  and its  contours  are rather          specific.     Short  of  cataloguing  each  and  every  potential          violation,  we  do  not see  what  further  particularization the          district court could  reasonably have inserted.   The requirement          that temporary injunctions be clear and specific, Fed. R. Civ. P.          65(d), does not  mean that they must read  like the working plans          for  building  hydrogen bombs.    See Pacific  Maritime  Ass'n v.                                            ___ ________________________          International  Longshoremen's &  Warehousemen's  Union, 517  F.2d          ______________________________________________________          1158, 1162-63 (9th Cir. 1975).                    We likewise fail  to discern any  merit in the  Union's          allegation of overbreadth.   The injunction carefully  proscribes          certain  types  of  activity,   aimed  at  secondary  businesses,          undertaken by the Union and other denominated individuals, with a          specific (unlawful) intent.  No more is exigible.                    The Union's last-ditch argument is that  the injunction                                          24          should  be expressly limited  in duration, particularly  since it          will remain operative  until the Board acts, and  that agency may          not reach a decision on the merits for some time.   In support of          this argument, the Union cites Eisenberg v. Hartz Mountain Corp.,                                         _________    ____________________          519 F.2d 138 (3d Cir. 1975), in which the court held that section          10(j) injunctions, absent extraordinary  circumstances, should be          confined to six months in duration.  See id. at 144.  The Union's                                               ___ ___          reliance on  Eisenberg is unavailing.   For one thing,  that case                       _________          involves  section 10(j), not  section 10(l), and  the differences          between the two provisions are not insignificant.  See supra note                                                             ___ _____          7 (contrasting the  two provisions); see also Maram,  722 F.2d at                                               ___ ____ _____          957-58  (explaining why the range of considerations affecting the          propriety  of injunctive relief varies between sections 10(j) and          10(l)).  For another thing, several other circuits have expressly          declined to adopt  the Third Circuit's inelastic  six-month rule,          instead   leaving  the  matter  of  duration  to  be  decided  by          individual district courts  on a case-by-case basis.   See, e.g.,                                                                 ___  ____          Sheeran v. American Commercial Lines, Inc., 683 F.2d 970,  980-81          _______    _______________________________          (6th  Cir.  1982);  Kaynard,  633   F.2d  at  1035;  Dawidoff  v.                              _______                          ________          Minneapolis Bldg.  & Constr. Trades  Council, 550  F.2d 407,  414          ____________________________________________          (8th Cir. 1977); Squillacote, 540  F.2d at 860.  Hendrix typifies                           ___________                     _______          the reasoning of those courts.  There, the Eighth Circuit stated:          "We  find the congressional  history indicates that  Congress was          aware of the lengthy Board hearing  procedures when Section 10(l)          was  enacted.  Since  Congress did not  impose a time  limit on a          Section 10(l) injunction, we find no reason why this Court should                                          25          impose such a limit."  Hendrix, 592 F.2d at 446.                                 _______                    A  measure of adjudicatory delay is  one of the crosses          that contemporary  litigants must  bear.   See, e.g., Maram,  722                                                     ___  ____  _____          F.2d  at  960  ("A  busy  administrative  agency  cannot  operate          overnight.  The  very fact that it must  exercise discretion, and          that its  decision is  entitled to  presumptive weight,  indicate          that  it  should  have  time  to  investigate  and  deliberate.")          (footnote  and citation  omitted).   Thus,  we  abjure the  Third          Circuit's rule and hold, instead, that the question of whether an          injunction  issued  under  section  10(l)  should  be  temporally          limited    and, if so,  to what extent    is a  matter within the          sound discretion of the district court.                    We  add  an  eschatocol  of sorts.    By  declining the          Union's invitation to sponsor a per se durational rule, we  in no          way  intend to  condone  needless  delay  in  the  administrative          adjudicatory  process.  We anticipate that the Board will proceed          with dispatch  to decide the  merits of all section  10(l) cases.          If this prediction proves to be overly optimistic in a particular          instance, the Union may, if  it can make a credible showing  that          the Board's delay  is genuinely undue, ask the  district court to          modify  or dissolve the temporary  injunction.  See, e.g., Asseo,                                                          ___  ____  _____          805 F.2d at 29 (suggesting  that the Regional Director's  request          for  a temporary  injunction should be  taken as "a  promise of a          speedy   [administrative]   disposition,   with   the   risk   of          dissolution, or  modification, by the court, on  motion . . ., if          the promise  is not  kept"); Solien, 593  F.2d at  88 (suggesting                                       ______                                          26          that if agency action is  unreasonably delayed in a section 10(l)          case,  a union  may seek  a  modification or  dissolution of  the          challenged injunction in the district court).          III.  CONCLUSION          III.  CONCLUSION                    We need go  no further.   The temporary injunction,  as          granted, is  grounded  in  the  Regional  Director's  supportable          finding of  reasonable cause, rests  on a credible  legal theory,          and is suitable  in both its proscriptive reach  and its temporal          scope.  Accordingly, we uphold it in all respects.          Affirmed.          Affirmed.          ________                                          27
