Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.)

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 797 (N.L.R.B. 2010)

CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA)

355 NLRB No. 159
797
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1506 and Eliason &
Knuth of Arizona, Inc.

United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1506 and Northwest
Medical Center

United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1506 and Ra Tempe
Corporation. Cases 28–CC–955, 28–CC–956,
and 28–CC–957
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER,
BECKER, PEARCE, AND HAYES
Introduction
This case presents an issue of first impression for the
Board: does a union violate Section 8(b)(4)(ii)(B) of the
National Labor Relations Act when, at a secondary em-
ployer’s business, its agents display a large stationary
banner announcing a “labor dispute” and seeking to elicit
“shame on” the employer or persuade customers not to
patronize the employer. Here, the Union peaceably dis-
played banners bearing a message directed to the public.
The banners were held stationary on a public sidewalk or
right-of-way, no one patrolled or carried picket signs,
and no one interfered with persons seeking to enter or
exit from any workplace or business. On those undis-
puted facts, we find that the Union’s conduct did not
violate the Act.
The language of the Act and its legislative history do
not suggest that Congress intended Section 8(b)(4)(ii)(B)
to prohibit the peaceful stationary display of a banner.
Furthermore, a review of Board and court precedent
demonstrates that the nonconfrontational display of sta-
tionary banners at issue here is not comparable to the
types of conduct found to “threaten, coerce, or restrain” a
neutral employer under Section 8(b)(4)(ii)(B)—picketing
and disruptive or otherwise coercive nonpicketing con-
duct.
Our conclusion about the reach of the prohibition con-
tained in Section 8(b)(4)(ii)(B) is strongly supported, if
not compelled, by our obligation to seek to avoid con-
struing the Act in a manner that would create a serious
constitutional question.1 Governmental regulation of
nonviolent speech—such as the display of stationary
banners—implicates the core protections of the First

1 See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Build-
ing Trades Council, 485 U.S. 568, 575, 577 (1988); NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 500 (1979).
Amendment. The crucial question here, therefore, is
whether the display of a stationary banner must be held
to violate Section 8(b)(4)(ii)(B) or, instead, “whether
there is another interpretation, not raising these serious
constitutional concerns, that may fairly be ascribed to”
the statutory provision. Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building Trades Council, supra.
As we indicated above, the answer to the question
posed by the Supreme Court in DeBartolo is clear in this
case. Nothing in the language of the Act or its legislative
history requires the Board to find a violation and thus
present for judicial review the constitutionality of Sec-
tion 8(b)(4)(ii)(B) as applied to the peaceful display of a
stationary banner. Rather, the display of a stationary
banner, like handbilling and even certain types of picket-
ing,2 is noncoercive conduct falling outside the proscrip-
tion in Section 8(b)(4)(ii)(B).3
For both of those reasons, we dismiss the allegations.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION4

2 See NLRB v. Fruit & Vegetable Packers Local 760, 377 U.S. 58
(1964) (Tree Fruits) (applying canon of constitutional avoidance to
hold that Sec. 8(b)(4)(ii)(B) does not bar all forms of peaceful con-
sumer picketing); NLRB v. Drivers Local Union No. 639, 362 U.S. 274
(1960) (Curtis Bros.) (applying canon to hold that peaceful picketing
for recognition by minority union did not violate the pre-Landrum-
Griffin Sec. 8(b)(1)(A)). In both Tree Fruits and Curtis Bros., as well
as in DeBartolo, supra, the Supreme Court rejected the Board’s view
that unions had committed unfair labor practices.
3 The General Counsel has sought injunctive relief in Federal district
court under Sec. 10(l) of the Act in four cases involving display of
banners. Despite the deferential standard applied to applications for
such relief, the district court in each of those cases rejected the conten-
tion that display of banners violated the Act. In the one case where the
decision was tested on appeal, the United States Court of Appeals for
the Ninth Circuit affirmed the district court’s decision. See Overstreet
v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005), affirming
Overstreet v. Carpenters Local 1506, 2003 WL 23845186, U.S. Dist.
Lexis 19854 (S.D. Cal. 2003); Gold v. Mid-Atlantic Regional Council
of Carpenters, 407 F.Supp.2d 719 (D. Md. 2005); Benson v. Carpenters
Locals 184 & 1498, 337 F.Supp.2d 1275 (D. Utah 2004); Kohn v. Car-
penters Southwest Regional Council, 289 F.Supp.2d 1155 (C.D. Cal.
2003).
4 On November 12, 2003, Eliason & Knuth of Arizona, Inc. filed a
charge in Case 28-CC-955. On December 3, 2003, Northwest Hospital,
LLC filed a charge in Case 28–CC–956. On December 17, 2003, RA
Tempe Corporation filed a charge in Case 28–CC–957. Pursuant to
these charges, the General Counsel of the National Labor Relations
Board issued an order consolidating cases, a consolidated complaint,
and a notice of hearing on January 23, 2004. The consolidated com-
plaint alleges that the Respondent-Union, the United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1506 (the Union),
engaged in and was engaging in unfair labor practices in violation of
Sec. 8(b)(4)(ii)(B) of the Act. Copies of the charges, the consolidated
complaint and notice of hearing were served on the Union. Thereafter,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
The parties have stipulated to the status of all relevant
companies as persons and/or employers engaged in
commerce and in industries affecting commerce within
the meaning of Sections 2(1), (2), (6), and (7) and 8(b)(4)
of the Act.5 The parties also stipulated that the Union is
a labor organization within the meaning of Section 2(5)
of the Act. Based on these stipulations, we find that the
Board possesses jurisdiction over this matter.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all material times, the Union has been involved in
primary labor disputes with four employers engaged in
construction: Eliason & Knuth (E&K), Delta/United
Specialties (Delta), Enterprise Interiors, Inc. (Enterprise),
and Hardrock Concrete Placement Co. Inc. (Hardrock).
The Union asserts that those companies (the primary
employers or “primaries”) do not pay their employees
wages and benefits that accord with area standards.
In furtherance of its labor disputes with the primary
employers, the Union engaged in peaceful protest activi-
ties at three locations: the Thunderbird Medical Center in
Phoenix, Arizona; the Northwest Medical Center in Tuc-
son, Arizona; and the RA Tempe restaurant in Tempe,
Arizona. The stipulation does not indicate whether the
Union also had labor disputes with Banner Medical,
Northwest Hospital, or RA Tempe (the companies oper-
ating at the sites of the union activities and to which the
primaries were providing services) regarding the treat-
ment of their employees or with Bovis Lend Lease,
Layton Construction Company of Arizona, or R.D. Olsen
Construction (the general contractors who directly re-
tained the primaries to perform work for the seconda-
ries). For purposes of this opinion, therefore, we assume

the Union filed a timely answer denying the commission of any unfair
labor practices.
On March 1, 2004, the parties filed with the Board a joint motion to
transfer the proceeding to the Board and for approval of the parties’
stipulation of facts. The joint motion stated in relevant part that the
parties agreed that the unfair labor practice charge, the complaint and
consolidated complaint, the answer, the statement of issues presented,
the stipulation of facts, and the parties’ position statements constituted
the entire record in the case. The parties further stipulated that they
waived a hearing before an administrative law judge and the issuance
of findings of fact, conclusions of law, and recommended order by an
administrative law judge and that they desired to submit the case for
findings of fact, conclusions of law, and recommended Order by the
Board. On June 30, 2004, the Board approved the stipulation and trans-
ferred the proceeding to the Board for issuance of a decision and order.
Thereafter, the General Counsel, the Union, and Charging Parties Eli-
ason & Knuth and RA Tempe Corporation filed briefs. (Charging Party
Northwest Hospital, LLC did not file a brief, but stated in the stipula-
tion of facts that it adopts the position taken by the General Counsel).
5 Appendix A provides the relevant locations and incorporations of
the companies at issue.
that no such disputes existed.6 These companies (the
secondary employers or “secondaries”) had no collec-
tive-bargaining relationship with the Union, and the Un-
ion was not seeking to organize their employees. As
described in Appendix B, one location of the protest ac-
tivities was the facility of a secondary employer where a
primary was performing construction work (Banner
Medical). Another location was the facility of secondary
employer Northwest Medical Center. The primary em-
ployer was not present when the banner was displayed
there, but was performing work at a facility owned by
Northwest’s parent company. The third location was a
restaurant operated by secondary employer RA Tempe.
As at Northwest, the primary employer was not present
when the banner was displayed, but was performing
work at a facility owned by RA Tempe’s parent com-
pany.
At each of those locations, as described in detail in ap-
pendix B, the Union placed and maintained a banner on a
public sidewalk or public right-of-way outside of the
secondary Employer’s facility, facing away from the
facility such that the banner’s message could be seen by
passing motorists. The banners were held parallel to the
sidewalk at the edge of the street so they in no way
blocked the sidewalks. The banners were 3 or 4 feet high
and from 15 to 20 feet long and, at the Thunderbird and
Northwest Medical Centers, read: “SHAME ON [secon-
dary employer]” in large letters, flanked on either side by
“Labor Dispute” in smaller letters. At RA Tempe, the
middle section of the banner read, “DON’T EAT ‘RA’
SUSHI.” The banners were placed between 15 and
1,050 feet from the nearest entrance to the secondaries’
establishments.7 At each location, several union repre-
sentatives (normally two or three) held the banner in
place. The parties stipulated that the number of union
representatives accompanying the banner (a maximum of
four) was limited to the number needed to hold it up with
staggered breaks. The parties also stipulated that at all
material times the banners were held stationary.
In addition to displaying the banners at those locations,
the union representatives offered flyers to interested
members of the public. The handbills explained the na-

6 The relationships between the facilities’ owners and their general
contractors are set out in appendix A.
7 At the Thunderbird Medical Center, the banner was 80 feet from an
entrance to a parking lot and 510 feet from an entrance to the facility.
At Northwest Medical Center, the banners were 1550 and 450 feet from
roads entering the facility. At Northwest, the banners were 1550 and
450 feet from roads entering the facility. In light of these stipulated
facts, it is misleading for the dissent to state that the banners were “in
close proximity to main entrances” to these facilities and “at the en-
trance to the neutral premises.” Finally, at RA Tempe restaurant, the
banner was 15 feet from the door of the restaurant.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 799
ture of the labor dispute referred to on the banners. Spe-
cifically, the handbills explained that the Union’s under-
lying complaint was with (depending upon the location)
E&K, Delta, Hardrock, or Enterprise, and that the Union
believed that, by using the services of one of those con-
tractors, Banner Medical, Northwest Hospital, or RA
Tempe was contributing to the undermining of area labor
standards.8
The parties stipulated that the union representatives did
not chant, yell, march, or engage in any “similar con-
duct.” The parties stipulated that the representatives did
not block persons seeking to enter or exit any of the sec-
ondaries’ facilities. The parties stipulated that the repre-
sentatives “did no more than hold up the banner and give
flyers to any interested member of the public” and, apart
from the unresolved question of whether the display of a
banner is confrontational, “did not engage in any other
activity that is considered confrontational within the con-
text of this matter.”9
B. Contentions of the Parties
The General Counsel and Charging Parties argue that
the Union’s banner displays violated Section
8(b)(4)(ii)(B) because they constituted coercive conduct
that had an object of forcing the neutral employers to
cease doing business with the primary employers. They
contend, first, that posting individuals at or near the en-
trances of the secondaries’ facilities to hold banners de-
claring a labor dispute constituted picketing, and was
therefore coercive. Second, the General Counsel and
Charging Parties contend that the banners were coercive
because they contained “fraudulent” wording that misled
the public into believing that the Union had a primary
labor dispute with the secondaries regarding the treat-
ment of their employees and that the secondaries should
be boycotted. This alleged deception purportedly consti-
tuted “economic retaliation” against the secondaries,
which the General Counsel asks us to deem coercive and
proscribed.
The Union argues that the secondary boycott provi-
sions of Section 8(b)(4) are not intended to reach the
display of a stationary banner. Relying on the Supreme
Court’s decision in DeBartolo, the Union argues that the
Court has instructed the Board to avoid, if possible, con-
struing 8(b)(4)’s statutory language, “threaten, coerce, or

8 The text of the handbill distributed by the Union’s representatives
at the RA Tempe restaurant is attached as appendix C. The handbills
distributed at the facilities of other secondaries named other primary
and secondary employers, but otherwise varied only minimally in their
wording.
9 The dissent asserts facts not in the record when it states that the ac-
tivity at issue was part of the Union’s “long-running campaign to en-
mesh property owners in its labor dispute.”
restrain,” in a manner that would raise serious questions
under the First Amendment. The Union argues that al-
though picketing has been found to constitute unlawful
coercive conduct under Section 8(b)(4), the banner dis-
plays here did not constitute picketing, because there was
no patrolling or confrontational conduct. To the con-
trary, the Union argues that the banner displays were
peaceful at all times and should be considered a form of
pure “speech” similar to handbilling, which the Court in
DeBartolo found lawful. Accordingly, the Union argues
that the complaint should be dismissed.
Discussion
Absent any binding precedent directly on point, analy-
sis of whether Section 8(b)(4)(ii)(B) prohibits the activity
involved here must begin with the text of the statute and
must consider its legislative history, the policies underly-
ing the prohibition, and cases involving other types of
secondary protest activity, i.e., picketing, handbilling,
and similar expressive activity. As explained below,
none of the foregoing authority leads to the conclusion
that the holding of a stationary banner “threaten[s], co-
erce[s], or restrain[s]” and that conclusion is reinforced
by our duty to avoid creating serious constitutional ques-
tions.
A. Application of Section 8(b)(4)(ii)(B) to the
Present Case
Section 8(b)(4)(ii)(B) of the Act states, in pertinent
part, that it shall be an unfair labor practice for a labor
organization or its agents:

(ii) to threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting
commerce, where . . . an object thereof is—

(B) forcing or requiring any person to . . . cease
doing business with any other person.

Congress adopted this provision and the other provisions of
Section 8(b)(4) with the objective of “shielding unoffending
employers” from improper pressure intended to induce them
to stop doing business with another employer with which a
union has a dispute. NLRB v. Denver Building Trades
Council, 341 U.S. 675, 692 (1951). Congress did not, how-
ever, intend to prohibit all conduct of labor organizations
that might influence or persuade such “unoffending em-
ployers” to support the unions’ cause. The Supreme Court
explained:

Whatever may have been said in Congress preceding
the passage of the Taft-Hartley Act concerning the evil
of all forms of ‘secondary boycotts’ and the desirability
of outlawing them, it is clear that no such sweeping
prohibition was in fact enacted in § 8 (b)(4)(A). The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
section does not speak generally of secondary boycotts.
It describes and condemns specific union conduct di-
rected to specific objectives.

Carpenters Local 1976 v. NLRB (Sand Door), 357 U.S. 93,
98 (1958).10 Thus, the Court made clear that “a union is
free to approach an employer to persuade him to engage in a
boycott, so long as it refrains from the specifically prohib-
ited means of coercion” specified in Section 8(b)(4). Id. at
99. Congress did not go so far as to “protect these other
persons or the general public by any wholesale condemna-
tion of secondary boycotts,” the Court continued, “since if
the secondary employer agrees to the boycott, or it is
brought about by means other than those proscribed in § 8
(b)(4)(A), there is no unfair labor practice.” Id.
Since the recodification of Section 8(b)(4) and the ad-
dition of Subsection 8(b)(4)(ii) in 1959, the Supreme
Court has continued to construe the scope of the ex-
panded statutory prohibition in a manner consistent with
its approach in Sand Door.11 Most importantly for our
purposes here, the Supreme Court has held that Congress
did not intend to bar all forms of union protest activity
directed at a secondary employer even when the object of
the activity is to induce the secondary to cease doing
business with a primary employer. In DeBartolo, the
Supreme Court held that “more than mere persuasion is
necessary to prove a violation of § 8 (b)(4)(ii).” DeBar-
tolo, supra, at 578. Specifically, the Supreme Court held
that distribution of handbills urging consumers not to
patronize a secondary employer with the object of induc-
ing the secondary to cease doing business with a primary

10 The Court’s opinion refers to Sec. 8(b)(4)(A), not 8(b)(4)(B), be-
cause in 1958 the former paragraph was the location of the statutory
language addressed by the Court. The language was moved, with modi-
fications immaterial to this discussion, to Sec. 8(b)(4)(B) as part of the
Landrum-Griffin amendments of 1959. Labor-Management Reporting
and Disclosure Act of 1959, Pub. L. No. 86-257, § 704(a), 73 Stat. 519,
543 (hereinafter cited as LMRDA), reprinted in 1 NLRB, LEGISLATIVE
HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE
ACT OF 1959, at 1, 24–25.
11 Thus, while the dissent is correct that Congress overturned the
precise holding in Sand Door in the Landrum-Griffin amendments by
making the execution of “hot cargo” agreements (agreements between a
union and an employer not to handle nonunion goods) unlawful, Con-
gress did not in any way reject the Court’s logic. Congress outlawed
the specific practice found lawful in Sand Door, but it did not adopt a
sweeping prohibition of all secondary boycotts in 1959 any more than it
had in 1947. If that is what Congress had intended, as the dissent sug-
gests, Congress would have so provided in either 1947 or 1959, but it
did not do so. In subsequent cases, therefore, the Supreme Court con-
tinues to follow the logic of Sand Door by holding that Sec. 8(b)(4)
does not bar actions that fall outside its precise prohibitions even if they
aim to induce a secondary employer to cease doing business with a
primary employer. See, e.g., Bhd. of R.R. Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 385–390 (1969);Tree Fruits, supra, 377
U.S. at 62–63, 71–73; NLRB v. Servette, Inc., 377 U.S. 46, 55–57
(1964).
employer is not unlawful. “The loss of customers be-
cause they read a handbill urging them not to patronize a
business, and not because they are intimidated by a line
of picketers, is the result of mere persuasion, and the
neutral who reacts is doing no more than what its cus-
tomers honestly want it to do.” Id. at 579. Thus, the
Supreme Court’s construction of Section 8(b)(4) gener-
ally, and Section 8(b)(4)(ii)(B) in particular, leaves us to
determine whether the display of stationary banners on
public sidewalks or rights of way is intimidation or per-
suasion.
1. The text of the Act and its legislative history
establish that Congress did not intend to bar display
of stationary banners
In answering the question before us, we turn first to the
text of the Act. In order for conduct to violate Section
8(b)(4)(ii)(B), the conduct must “threaten, coerce, or
restrain.”12 There is no contention that the Respondent
threatened the secondary employers or anyone else. Nor
is there any contention that the Respondent coerced or
restrained the secondaries as those words are ordinarily
understood, i.e., through violence, intimidation, blocking
ingress and egress, or similar direct disruption of the sec-
ondaries’ business. A reading of the statutory words
“coerce” or “restrain” to require “more than mere persua-
sion” of consumers is compelled by the Supreme Court’s
holding in DeBartolo. 485 U.S. at 578. Here, however,
there is nothing more.
Turning to the legislative history, we find no indication
that Congress intended to give the words of the Act any-
thing but their ordinary meaning. Nothing in the legisla-
tive history suggests that Congress intended to prohibit
the peaceful, stationary display of a banner on a public
sidewalk. Had Congress intended the prohibition to ap-
ply so broadly—”to bar any and all nonpicketing ap-
peals, through newspapers, radio, television, handbills, or
otherwise,” the Supreme Court reasoned in DeBartolo—
“the debates and discussions would surely have reflected
this intention.” Id. at 584. Yet not only do the debates
not reflect such an intention, the indications of congres-
sional intent that exist in the legislative history suggest
the opposite. The Supreme Court found no “clear indica-

12 An 8(b)(4)(ii)(B) violation has two elements. First, a labor or-
ganization must “threaten, coerce, or restrain” a person engaged in
commerce. Second, the labor organization must do so with “an object”
of “forcing or requiring any person to . . . cease doing business with
any other person.” NLRB v. Retail Store Employees, 447 U.S. 607, 611
(1980) (Safeco). Both elements must be proven to establish a violation.
For the reasons discussed below, we find that the peaceful display of a
stationary banner does not threaten, coerce, or restrain a secondary
employer within the meaning of Sec. 8(b)(4)(ii), and therefore does not
violate that section of the Act. Accordingly, we need not decide
whether the Union’s banner displays had an unlawful object.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 801
tion . . . that Congress intended . . . to proscribe peaceful
handbilling, unaccompanied by picketing, urging a con-
sumer boycott of a neutral employer.” Id. at 583–584.
The focus of Congress was picketing, not “peaceful per-
suasion of customers by means other than picketing,” the
Court found. Id. at 584. The Court cited the explanation
of the cosponsor of the House bill, Representative Grif-
fin, “that the bill covered boycotts carried out by picket-
ing [the premises of] neutrals but would not interfere
with the constitutional right of free speech. 105 Cong.
Rec. 15673, 2 Leg. Hist. 1615.” Id. Indeed, in 1959, as
part of the Landrum-Griffin amendments to the Act,
Congress adopted the so-called publicity proviso to Sec-
tion 8(b)(4), which (as explained by Senator John Ken-
nedy, the chairman of the conference committee) author-
ized unions to “carry on all publicity short of having am-
bulatory picketing in front of a secondary site.” Id. at
587, quoting 105 Cong. Rec. 17898–17899 (Sept. 3,
1959) (reprinted in II Legislative History of the Labor-
Management Reporting and Disclosure Act of 1959 1432
(1959) (Leg. Hist.)).13 The DeBartolo Court specifically
cited Senator Kennedy’s remark as an important indica-
tion of the meaning of Section 8(b)(4)(ii)(B). Id. at 587.
Equally important is an analysis of the language in the
conference bill presented to the House by Representative
Griffin and in the Senate by Senator Goldwater which
explained that the conference had adopted the House
version of the provision at issue “prohibiting secondary
consumer picketing . . . ‘with clarification that other
forms of publicity are not prohibited.’” Id. at 586.14
The terms of the Act and its legislative history thus
make clear that Congress did not generally intend to bar
display of a stationary banner. We could reach a differ-
ent conclusion in this case only if we were to determine
that the banner displays here were picketing of the form
Congress intended to bar through Section 8(b)(4)(ii)(B)

13 The publicity proviso of Sec. 8(b)(4) states in relevant part that
nothing contained in [Sec. 8(b)] shall be construed to prohibit pub-
licity, other than picketing, for the purpose of truthfully advising the
public . . . that a product or products are produced by an employer
with whom the labor organization has a primary dispute and are dis-
tributed by another employer. . . .
29 U.S.C. §158(b)(4) (emphasis added). In DeBartolo, following the
principles set forth in earlier decisions, the Court explained that the
proviso did not create an exception to the prohibition in Sec. 8(b)(4)
that would otherwise have proscribed non-picketing forms of persua-
sion, but rather added an interpretive gloss to ensure that it was read as
“not covering nonpicketing publicity.” 485 U.S. at 582–583.
14 In contrast to the authoritative constructions cited by the Supreme
Court, the dissent cites selected comments on the floor, a form of legis-
lative history that the Supreme Court has found to be a highly unreli-
able indicator of congressional intent. Zuber v. Allen, 396 U.S. 168,
186 (1969) (“Floor debates reflect at best the understanding of individ-
ual Congressmen.”)
or were otherwise directly disruptive of the secondary
employers’ operations in a manner that should be classi-
fied as coercion. As discussed below, the display of sta-
tionary banners was neither proscribed picketing nor was
it otherwise coercive.15
2. Holding a stationary banner is not
proscribed picketing
The General Counsel argues that the display of the sta-
tionary banners is equivalent to conduct that the Board
has found to constitute unlawful picketing. We disagree.
The Act does not define “picketing,”16 and the legisla-
tive history does not suggest that Congress understood
the term to encompass the mere display of a stationary
banner. Further, we must evaluate the sweep of the sug-
gestion in the legislative history that Congress intended
to bar picketing in light of both the express statutory
terms that bar only actions that “threaten, coerce, or re-
strain”17 and, as we discuss below, the protections of the
First Amendment. Under our jurisprudence, categorizing
peaceful, expressive activity at a purely secondary site as
picketing renders it unlawful without any showing of
actual threats, coercion or restraint, unless it falls into the
narrow exception for consumer product picketing defined
in Tree Fruits. Moreover, the consequences of categoriz-
ing peaceful expressive activity as proscribed picketing
are severe. The activity is stripped of protection and
employees participating in it can be fired. See, e.g., Mo-
tor Freight Drivers Local 707 (Claremont Polychem.
Corp.), 196 NLRB 613, 614 (1972) (strikers who pick-
eted in violation of Sec. 8(b)(7)(B) not entitled to rein-
statement); Hardee’s Food Systems, Inc., 294 NLRB
642, 646 (1989) (“Actions that violate Section 8(b) are
not protected by the Act even if those actions would oth-
erwise be protected by Sections 7 and 8(a).”), review
denied sub nom. Laborers Local 204 v. NLRB, 904 F.2d
715 (D.C. Cir. 1990). The activity becomes an unfair
labor practice and the Board is required, upon a finding
of “reasonable cause” to believe such activity has oc-
curred, to go into Federal district court and seek a prior

15 Our finding that no picketing occurred makes it unnecessary to
address Charging Party Eliason & Knuth’s argument that the banner
displays constituted unlawful secondary activity, even though it oc-
curred on a common situs under the criteria set out by the Board in
Sailor’s Union (Moore Dry Dock), 92 NLRB 547 (1950).
16 Sec. 8(b)(4) does not use the term picket or picketing. As the Sec-
ond Circuit observed in NLRB v. United Furniture Workers of America,
337 F.2d 936, 939 (2d Cir. 1964), “[t]he term ‘to picket’ made its first
appearance in the national labor relations act in the 1959 amendments.
Although Sec. 8(b)(7)(B) can be invoked only when ‘picketing’ is
present, the legislative history indicates no awareness that the new
section presents a threshold definitional problem.”
17 Indeed, in Tree Fruits, the Supreme Court made clear that “the
prohibition of §8(b)(4) is keyed to the coercive nature of the conduct,
whether it be picketing or otherwise.” 377 U.S. at 68.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
restraint against the continuation of the activity. See 29
U.S.C. §10(l). And, finally, a labor organization engaged
in such activity is subject to suit in Federal court where
damages can be awarded. See 29 U.S.C. §187. For each
of these reasons, we must take care not to define the
category of proscribed picketing more broadly than
clearly intended by Congress.18
The Supreme Court has made clear that “picketing is
qualitatively ‘different from other modes of communica-
tion.’” Babbit v. Farm Workers, 442 U.S. 289, 311 fn.
17 (1979) (quoting Hughes v. Superior Court, 339 U.S.
460, 465 (1950). Thus, expressive activity that bears
some resemblance to picketing should not be classified
as picketing unless it is qualitatively different from other
nonproscribed means of expression and the qualitative
differences suggest that the activity’s impact owes more
to intimidation than persuasion. Precisely for this reason,
the term picketing has developed a core meaning in the
labor context. The Board and courts have made clear
that picketing generally involves persons carrying picket
signs and patrolling back and forth before an entrance to
a business or worksite. See, e.g., Mine Workers District
2 (Jeddo Coal Co.), 334 NLRB 677, 686 (2001); Service
Employees Local 87 (Trinity Building Maintenance), 312
NLRB 715, 743 (1993), enfd. 103 F.3d 139 (9th Cir.
1996); see also NLRB v. Retail Store Union Local 1001,
447 U.S. 607 (1980) (Safeco) (Justice Stevens, concur-
ring) (picketing “involves patrol of a particular locality”)
(quoting Bakery Drivers v. Wohl, 315 U.S. 769, 776–777
(1942) (Justice Douglas, concurring)); Overstreet v. Car-
penters Local 1506, 409 F.3d 1199, 1213 (9th Cir. 2005)
(“Classically, picketers walk in a line and, in so doing,
create a symbolic barrier.”) (Emphasis supplied.)
The core conduct that renders picketing coercive under
Section 8(b)(4)(ii)(B) is not simply the holding of signs
(in contrast to the distribution of handbills), but the com-
bination of carrying of picket signs and persistent patrol-
ling of the picketers back and forth in front of an en-
trance to a work site, creating a physical or, at least, a
symbolic confrontation between the picketers and those
entering the worksite. This element of confrontation has

18 The dissent’s suggestion that we are “motivated in part by the con-
sequences of finding an 8(b)(4) violation, which [we] view as too ‘se-
vere,’” is a distortion of our reasoning. In construing ambiguous terms
in a statute proscribing a category of activity, it is entirely appropriate
for an administrative agency or court to consider the sanctions that
Congress has attached to the proscribed conduct to be relevant to the
breadth of the proscription intended by Congress. See, e.g., U. S. v.
221 Dana Avenue, 261 F.3d 65, 74 (1st Cir. 2001) (“federal forfeiture
statutes must be narrowly construed because of their potentially draco-
nian effect”); Martin’s Herend Imports v. Diamond & Gem Trading
USA, 112 F.3d 1296 (5th Cir. 1997) (“Given the draconian nature of
this ex parte remedy, . . . we believe that it should be narrowly con-
strued.”) We suggest no more above.
long been central to our conception of picketing for pur-
poses of the Act’s prohibitions. In NLRB v. Furniture
Workers, 337 F.2d 936 (2d Cir. 1964), the Board had
found that the union had engaged in unlawful recogni-
tional picketing by affixing picket signs to poles and
trees in front of the plant, while designated union mem-
bers sat in their cars nearby. The court remanded, find-
ing it unclear whether the Board had “considered the
extent of confrontation necessary to constitute picket-
ing.” Id. at 940. A year later, in Alden Press, Inc., 151
NLRB 1666, 1668 (1965), the Board adopted the Second
Circuit’s view in Furniture Workers that “[o]ne of the
necessary conditions of ‘picketing’ is a confrontation in
some form between union members and employees, cus-
tomers, or suppliers who are trying to enter the em-
ployer’s premises.” (Quoting 337 F.2d at 940). See also
Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429,
438 (D.C. Cir. 2007) (“mock funeral” procession outside
a hospital did not constitute picketing, because the par-
ticipants did not “physically or verbally interfere with or
confront Hospital patrons” or create a “symbolic bar-
rier”). To fall within the prohibition of Section
8(b)(4)(ii)(B), picketing must entail an element of con-
frontation.
The banner displays here did not constitute such pro-
scribed picketing because they did not create a confronta-
tion. Banners are not picket signs. Furthermore, the un-
ion representatives held the banners stationary, without
any form of patrolling. Nor did the union representatives
hold the banner in front of any entrance to a secondary
site in a manner such that anyone entering the site had to
pass between the union representatives. The banners
were located at a sufficient distance from the entrances
so that anyone wishing to enter or exit the sites could to
do so without confronting the banner holders in any
way.19 Nor can it be said that the Union “posted” the
individuals holding the banners at the “approach” to a
secondary’s place of business in a manner that could
have been perceived as threatening to those entering the
sites. The message side of the banner was directed at
passing vehicular traffic, rather than at persons entering
or leaving the secondaries’ premises, and the union rep-
resentatives faced in the same direction. There is no evi-

19 The RA Tempe banner, while closer to the secondary’s entrance
than the other banners, was nevertheless placed on the sidewalk, facing
the street, i.e., parallel to the sidewalk rather than running across the
sidewalk, and as close to the street as possible without being in it. The
sidewalk remained completely clear for anyone wishing to enter the
restaurant, which could be done without ever seeing the front of the
banner or confronting the union agents, who were facing the street and
separated from the portion of the sidewalk that would be used to enter
the restaurant by a bench, several trees, a street light, or newspaper
dispensers (depending on the precise placement of the banner that day).
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 803
dence that the banner holders kept any form of lists of
employees or others entering the site or even interacted
with passersby, other than to offer a handbill—an undis-
putably noncoercive act. Thus, members of the public
and employees wishing to enter the secondaries’ sites did
not confront any actual or symbolic barrier and, “[j]ust as
members of the public [and employees] can ‘avert [their]
eyes’ from billboards or movie screen visible from a
public street, they could ignore the [union representa-
tives] and the union’s banners.” Overstreet, 409 F.3d at
1214. Like the mock funeral at issue in Sheet Metal
Workers, the display of stationary banners here “was not
the functional equivalent of picketing as a means of per-
suasion because it had none of the coercive character of
picketing.” Sheet Metal Workers, supra at 438. In short,
the holding of stationary banners lacked the confronta-
tional aspect necessary to a finding of picketing pro-
scribed as coercion or restraint within the meaning of
Section 8(b)(4)(ii)(B).
In order to sweep the display of stationary banners into
the prohibition contained in Section 8(b)(4)(ii)(B), the
General Counsel proposes a broad definition of picketing
that strips it of its unique character and is at odds with
the Supreme Court’s decision in DeBartolo. The Gen-
eral Counsel argues that “picketing exists where a union
posts individuals at or near the entrance to a place of
business for the purpose of influencing customers, sup-
pliers, and employees to support the union’s position in a
labor dispute.” The General Counsel adds, “the posting
of individuals in this fashion is inherently confrontational
within the meaning of the Act.” Yet shortly after DeBar-
tolo was decided, the Board explained that the decision
held “that Section 8(b)(4)(ii)(B) of the Act does not pro-
scribe peaceful handbilling and other nonpicketing pub-
licity urging a total consumer boycott of neutral employ-
ers.” Service Employees (Delta Air Lines), 293 NLRB
602, 602 (1989). The Board has thus already rejected the
General Counsel’s overbroad definition of picketing.
Accepting the General Counsel’s broad definitions of
picketing and confrontation, as not requiring either the
use of traditional picket signs or any form of patrolling,20

20 The dissent incorrectly suggests that our holding is inconsistent
with those in Mine Workers District 2 (Jeddo Coal), 334 NLRB 677
(2001), and Sheet Metal Workers Local 15 (Brandon Regional Medical
Center), 346 NLRB 199 (2006), enf. denied 491 F.3d 429 (D.C. Cir.
2007), but concedes that the activity in the former case involved carry-
ing traditional picket signs and in the latter, patrolling (although the
D.C. Circuit disagreed with the latter finding). In response to the dis-
sent’s arguments about the Board’s “recent unanimous holding” in
Brandon, Chairman Liebman points out that she joined that decision in
a separate concurrence, emphasizing that she found the mock funeral
procession to be unlawful expressly because it involved ambulatory
patrolling.
would bar distribution of handbills to consumers and
would thus defy the holding in DeBartolo. In proposing
this clearly overbroad definition of picketing, the General
Counsel ignores the imperative, created by the words of
the Act as well as the principle of constitutional avoid-
ance, to distinguish between actions the impact of which
rests on persuasion and actions whose influence depend
on coercion. The General Counsel argues that the hold-
ing of stationary banners “amounts to a call to action on
the part of the public against the neutral entities named
on the banners, sufficient to trigger the type of response
by the public that is typically elicited by traditional
picket signs.” But DeBartolo and the Board’s decision in
Delta Air Lines permit just such a call to action so long
as it is not reinforced with intimidation. The stipulated
facts in this case suggest no such intimidation.21
We acknowledge that prior Board decisions have used
broader language to define picketing. In Lumber & Saw-
mill Workers Local 2797 (Stoltze Land & Lumber Co.),
156 NLRB 388, 394 (1965), cited prominently by the
dissent, the Trial Examiner, in a decision affirmed by the
Board, stated, “The important feature of picketing ap-
pears to be the posting by a labor organization . . . of
individuals at the approach to a place of business to ac-
complish a purpose which advances the cause of the un-
ion, such as keeping employees away from work or keep-
ing customers away from the employer’s business.” De-
spite that broad language, however, in Stoltze Land, the
activity in question was immediately preceded at the
same location by traditional, ambulatory picketing
(which was lawful prior to the union being decertified);22

21 Our rejection of the General Counsel’s argument that the conduct
at issue here constituted picketing makes it unnecessary for us to reach
one of his two arguments concerning the truthfulness of the words
“LABOR DISPUTE” on the banners. The General Counsel argues that
those words, combined with the location of the banners at the secon-
dary sites, misleadingly suggested to consumers that the Union had a
primary labor dispute with the secondaries and thus called on consum-
ers to boycott the secondaries entirely. But the General Counsel makes
this argument only to demonstrate that the conduct did not fit within the
product picketing exception to the prohibition of secondary picketing
created by Tree Fruits. Because we hold that the conduct was not
picketing, this argument is inapposite. Moreover, the General Coun-
sel’s citation of pre-DeBartolo cases to suggest that this alleged misrep-
resentation took the banner displays outside the safe haven created by
the publicity proviso is beside the point after DeBartolo, which made
clear that conduct falling outside the proviso is not therefore pro-
scribed. Even assuming the phrase was misleading (incorrectly, for
reasons explained below), the General Counsel presents no colorable
argument that misleading speech is coercive.
22 The case was decided under Sec. 8(b)(7)(B), which proscribes
recognitional picketing by a union which has lost a valid election in the
preceding 12 months. Contrary to the dissent’s suggestion, we do not
propose that a different definition of picketing be used under Sec.
8(b)(4) and (7). Rather, we point out that many of the cases cited in the
dissent were decided under Sec. 8(b)(7) in order to explain how the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
union representatives continued the practice they had
begun during the traditional picketing of taking down the
license numbers of vehicles entering the premises even
after the picketing ended and was replaced with distribu-
tion of handbills; and the union disciplined members who
worked for Stoltze for “crossing a picket line” even after
the traditional picketing had been ostensibly replaced by
distribution of handbills. See id. at 389–392. Moreover,
Stoltze preceded DeBartolo and, taken literally and out of
context, its definition of picketing, as well as its holding
that “handbilling . . . was . . . picketing” is flatly incon-
sistent with the Supreme Court’s later holding. 156
NLRB at 393.23
We also acknowledge that there are prior Board deci-
sions finding picketing during periods when there was no
patrolling or other ambulation. However, each of the
prior cases is distinguishable from the banner displays at
issue here. In many of the prior cases, the display of
stationary signs or distribution of handbills was preceded
at the same location or accompanied at other locations by
traditional, ambulatory picketing. See, e.g., Woodward
Motors, 135 NLRB 851, 856 (1962) (an 8(b)(7) case
where traditional picketing ended 2 weeks before station-
ary display of picket signs began); Lawrence Typo-
graphical Union 570 (Kansas Color Press), 169 NLRB
279, 282 (1968) (an 8(b)(7) case where strikers ceased
traditional picketing and immediately began distributing
handbills bearing the same message as prior picket
signs); Laborers Local 304 (Athejen Corp.), 260 NLRB
1311 (1982) (picketers would “drift” from gate to gate
and sometimes place signs they had previously carried on
cones, barricades or fence); Mine Workers Local 1329
(Alpine Construction), 276 NLRB 415, 431 (1985) (Sec.
8(b)(7) case where, after traditional picketing ceased,
union assigned “security guards” to picket shacks outside
entrances to mines); Iron Workers Pacific Northwest
Council (Hoffman Construction), 292 NLRB 562 fn. 2
(1989), enfd. 913 F.2d 1470 (9th Cir. 1990) (group of
union members “gathered around a [picket] sign” near a
neutral gate while ambulatory picketing took place si-
multaneously at the primary gate); United Mine Workers

activity at issue in those cases could have been preceded at the same
location (as it was in many of them) by lawful primary picketing as we
describe further below.
23 Other Board decisions (many of which are relied on by the dis-
sent) have cited the Stoltze “posting” definition. See, e.g., Kansas
Color Press, 169 NLRB 279, 283 (1968); Teamsters Local 282 (Gen-
eral Contractors Assn. of New York), 262 NLRB 528, 540 (1982);
Laborers (Calcon Constuction Co.), 287 NLRB 570, 573 (1987); Mine
Workers District 2 (Jeddo Coal), 334 NLRB 677, 686 (2001). Those
decisions, however, either preceded DeBartolo or made no attempt to
reconcile the “posting” definition with DeBartolo. Furthermore, the
cases, like Stoltze itself, are factually distinguishable, as we explain
above.
District 2 (Jeddo Coal), 334 NLRB 677, 679–681 (2001)
(traditional picketing at other sites and picket signs re-
ferred to crossing “picket lines”); cf. NLRB v. Furniture
Workers, 337 F.2d 936, 937 (2d Cir. 1964) (8(b)(7) case
where fixed picket signs were preceded by traditional
picketing). The Board pointed out the relevance of this
distinguishing fact in Kansas City Color Press, supra,
169 NLRB at 284, observing: “[f]ollowing in the foot-
steps of the conventional picketing which had preceded
it, this conduct was intended to have, and could reasona-
bly be regarded as having had, substantially the same
significance for persons entering the Company’s prem-
ises.”24 In many of the prior cases, the display was of
traditional picket signs of the same type used in ambula-
tory picketing. Athejen, supra at 1316, 1319; Woodward,
supra at 851 fn. 1, 856; Jeddo, supra at 679; Hoffman,
supra at 571, 583 fn. 18; Calcon, supra at 570–571. And
in many of the prior cases, union representatives were
stationed near the stationary picket signs conspicuously
to observe and, in some cases, record who entered the
facility. Teamster Local 282 (General Contractors Assn.
of New York), 262 NLRB 528, 530, 541 (1982); Kansas
Color Press, supra at 282.25 Finally, in many of the prior
cases, there was evidence that the stationary signs or
posted union representatives had the effect of inducing
employees to refuse to make deliveries to the target site.
See, e.g., Woodward, 135 NLRB at 857. The prior cases
are thus distinguishable.26
The General Counsel nevertheless contends that, even
if the banners did not constitute proscribed picketing,
they constituted “signal picketing,” that is, “activity short
of a true picket line, which acts as a signal that sympa-
thetic action” should be taken by unionized employees of

24 Significantly, many of these cases, like Stoltze, were brought un-
der Sec. 8(b)(7) rather than 8(b)(4) and thus the unions were attempting
to continue the intended effects of their prior, lawful, primary picket-
ing—inducing members working inside the subject establishment to
cease work—by other means. Thus, these cases are properly under-
stood as involving signal picketing, which we discuss below.
25 Here, in contrast, the orientation of both the banners and the union
representatives toward busy streets, rendered such observation highly
impractical.
26 In Mine Workers (New Beckley Mining), 304 NLRB 71, 71 (1991),
enfd. 977 F.2d 1470 (D.C. Cir. 1992), the Board found that a mass
early morning gathering of 50–140 people at a motel housing an agent
retained to supply striker replacements and the replacements them-
selves, accompanied by shouting and name calling, constituted “a form
of picketing” and therefore violated Sec. 8(b)(4)(ii)(B). We question
whether that activity was properly characterized as “picketing.” Re-
gardless, as observed in sec. A.3 below, the sheer number of partici-
pants, together with the confrontational nature of their conduct, ren-
dered it coercive, and therefore unlawful, when coupled with a forbid-
den objective. Service Employees Local 525 (General Maintenance
Co.), 329 NLRB 638 (1999), enfd. 52 Fed.Appx. 357 (9th Cir. 2002)
(unpub.), cited by the dissent, also involved a massed assembly of 40 to
50 individuals and is similarly inapposite.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 805
the secondary or its business partners. Electrical Work-
ers Local 98 (Telephone Man), 327 NLRB 593 fn. 3
(1999).
Signal picketing is activity short of picketing through
which a union intentionally, if implicitly, directs mem-
bers not to work at the targeted premises.27 “It is the
mutual understanding among union employees of the
meaning of these signals and bonds, based on either af-
finity or the potential for retribution, that makes these
signals” potentially unlawful. Overstreet, supra at 1215.
Thus, “[t]he entire concept of signal picketing . . . de-
pends on union employees talking to each other, not to
the public.” Id. (emphasis in the original); see also Kohn
v. Carpenters Southwest Regional Council, 289
F.Supp.2d 1155, 1165 fn. 5 (C.D. Cal. 2003) (“‘signal
picketing’ generally refers to activity designed to induce
employees to strike, not activity designed to inspire a
consumer boycott”).
Here, nothing about the banner displays themselves or
any extrinsic evidence indicates any prearranged or gen-
erally understood signal by union representatives to em-
ployees of the secondary employers or any other em-
ployees to cease work. The only banner that was held
within 75 feet of any form of entrance to a facility or to a
facility parking lot bore a message clearly directed only
to the public: “DON”T EAT ‘RA’ SUSHI.” None of the
banners called for or declared any form of job action (in
contrast to typical picket signs declaring “on strike”). In
addition, the handbills distributed by the union represen-
tatives holding the banners expressly stated, “WE ARE
NOT URGING ANY WORKER TO REFUSE TO
WORK NOR ARE WE URGING ANY SUPPLIER TO
REFUSE TO DELIVER GOODS.”
Signal picketing does not and cannot include all activ-
ity conveying a “do not patronize” message directed at
the public simply because the message might reach, and
send a signal to, unionized employees. Such a broad
definition of the proscribed category of nonpicketing
activity would be inconsistent with DeBartolo, Tree
Fruits, and many other prior decisions. As the Ninth
Circuit observed in Overstreet, “To broaden the defini-
tion of ‘signal picketing’ to include ‘signals’ to any pas-
serby would turn the specialized concept of ‘signal pick-
eting’ into a category synonymous with any communica-
tion requesting support in a labor dispute.” Oversteet,
supra at 1215.

27 Consistent with the core danger of signal picketing, the typical
signal picketing case includes an allegation that the union violated Sec.
8(b)(4)(i)(B), which prohibits a union from inducing or encouraging
employees of a neutral employer to engage in a refusal to work. See,
e.g., Jeddo Coal, Telephone Man, Hoffman, and Calcon, supra. There
is no 8(b)(4)(i) allegation here.
Moreover, the notion that the banners operated not as
ordinary speech, but rather as a signal automatically
obeyed by union members must be subject to a dose of
reality. The General Counsel asks us to simply and cate-
gorically assume, even in the absence of additional evi-
dence of intent or effect, that when agents of a labor or-
ganization display the term “labor dispute” on a banner
proximate to a workplace, it operates as such a signal.
Our experience with labor relations in the early 21st cen-
tury does not suggest such a categorical assumption is
warranted. Here, moreover, the record is devoid even of
evidence that any union members worked for any of the
secondary employers or otherwise regularly entered the
premises in the course of their employment. In these
circumstances, we decline to place labor organizations’
speech into such a special and disfavored category.
In the absence of evidence that the Union did anything
other than seek to communicate the existence of its labor
dispute to members of the general public28—which
could, of course, as in DeBartolo and Tree Fruits, in-
clude employees of the secondaries and of others doing
business with them—we find that the expressive activity
did not constitute proscribed signal picketing merely
because it involved the use of banners.
3. The banner displays were not disruptive or
otherwise coercive
The Board has found nonpicketing conduct to be coer-
cive only when the conduct directly caused, or could
reasonably be expected to directly cause, disruption of
the secondary’s operations. Blocking ingress or egress is

28 The Board’s prior decisions finding signal picketing each involved
such additional evidence of the union’s effort to induce or encourage a
work stoppage or refusal to handle goods or perform services. See,
e.g., Hoffman Construction, supra at 562 fn. 2 (agents posted around a
stationary sign near a neutral gate while ambulatory picketing occurred
at the primary gate “constitute[d] a ‘signal’ to the employees of secon-
dary and neutral employers;” at some locations, union representatives
talked to employees approaching the gates, and employees turned
around and left); Teamsters Local 182 (Woodward Motors), 135 NLRB
851 fn. 1, 857 (1962), enfd. 314 F.2d 53 (2d Cir. 1963) (8(b)(7)(B)
violation found where, following an extended period of ambulatory
picketing, the union placed picket signs in a snow bank while union
representatives sat in nearby cars; the representatives stopped approach-
ing delivery trucks to speak to the drivers, after which the drivers left
without making deliveries); Teamsters Local 282 (General Contractors
Assn.. of New York), 262 NLRB 528, 530, 541 (1982) (union represen-
tatives stationed themselves at the delivery entrances to construction
sites and approached trucks making deliveries and explained that union
was engaged in a job action and trucks turned back); Calcon Construc-
tion, 287 NLRB 570, 572–574 (1987) (picket signs laid on the ground
“at or near” jobsite entrances were designed “to induce employees of
[secondary] subcontractors . . . to withhold their labor from the site,”
because the alleged “pickets” were present at the commencement of the
workday); Jeddo Coal, supra at 686–687 (conduct was part of a mul-
tisite campaign that included ambulatory picketing and the use of tradi-
tional picket signs at other sites).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
one obvious example of such coercive conduct. In a va-
riety of other instances, the Board and the courts have
recognized that disruptive, non-picketing activity di-
rected against secondaries can constitute coercion. For
example, a union that engaged in otherwise lawful area-
standards publicity violated Section 8(b)(4)(ii)(B) by
broadcasting its message at extremely high volume
through loudspeakers facing a condominium building
that had hired the primary employer as a subcontractor.
Carpenters (Society Hill Towers Owners’ Assn.), 335
NLRB 814, 820–823 (2001), enfd. mem. 50 Fed.Appx.
88 (3d Cir. 2002).29 The common link among all of
these cases is that the union’s conduct was or threatened
to be the direct cause of disruption to the secondary’s
operations. There was no such disruption or threatened
disruption here. The banner holders did not move, shout,
impede access, or otherwise interfere with the secon-
dary’s operations.30

29 See also General Maintenance, supra, 329 NLRB at 664–665, 680
(hurling filled trash bags into the building’s lobby); Service Employees
Local 87 (Trinity Maintenance), 312 NLRB 715, 746–748 (1993), enfd.
mem. 103 F.3d 139 (9th Cir. 1996) (use of bullhorns directed at build-
ing’s tenants); Mine Workers (New Beckley Mining), 304 NLRB 71,
71–72 (1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992) (mass early morn-
ing gathering of 50–140 people at motel housing agent providing striker
replacements, with shouting and namecalling); Service Employees
Local 399 (William J. Burns Agency), 136 NLRB 431, 436–437 (1962)
(mass gathering and marching without signs at entrance to exhibit hall
impeded access and was therefore coercive, whether or not it consti-
tuted “picketing”).
30 Our colleagues knock down a strawman when they suggest that in
cases not involving picketing we would require the General Counsel to
prove that conduct “directly caused, or could reasonably be expected to
cause, significant disruption of the secondary’s operations” before we
would find it coercive within the meaning of Sec. 8(b)(4)(ii)(B). Of
course, the General Counsel need not wait for harm to be inflicted. The
Act clearly proscribes forms of coercion other than picketing that
threaten such harm. But the common thread running through the Board
cases finding such coercion is that it is exerted directly against the
secondary employer or its agents. In other words, if union agents block
ingress or egress, they directly interfere with the employer’s operations.
Unless the direct interference is not significant, i.e., it is de minimis, the
Board will find it coercive. Cf. Carpenters Metropolitan Regional
Council (Society Hill Towers Owners’ Assn.), 335 NLRB 814 fn. 1
(2001) (brief picketing at reserve gate not unlawful). Similarly, mass
assemblies accompanied by shouting and name calling around the
home or other lodging of employer agents that cause the agents to fear
for their safety directly exert a coercive force against the employer. As
Senator Dirksen, a member of the Conference Committee that approved
the language in Sec. 8(b)(4)(ii)(B) explained the distinction, the
amendment “makes it an unfair labor practice for a union to try to co-
erce or threaten an employer directly (but not to ask him) in order . . .
[t]o get him to stop doing business with another firm.” 105 Cong. Rec.
19849 (Sept. 14, 1959), II Leg. Hist 1823 (quoted in NLRB v. Servette,
Inc., supra, 377 U.S. at 54 fn. 12). Our point above is merely that the
peaceful, stationary holding of banners announcing a labor dispute,
even if such conduct is intended to and does in fact cause consumers
freely to choose not to patronize the secondary employer, does not
In sum, we find that the peaceful, stationary holding of
banners announcing a “labor dispute” fell far short of
“threatening, coercing, or restraining” the secondary em-
loyers.

4. The dissent’s position is untenable
Our colleagues’ position rests on three clearly errone-
ous foundations. First, the dissent suggests that all “sec-
ondary boycotts” are unlawful. But the plain text of Sec-
tion 8(b)(4) says nothing of the kind and the Supreme
Court as well as the Board have repeatedly held to the
contrary.31 Most clearly, in DeBartolo, the Court held
that the Act did not bar the distribution of handbills urg-
ing a consumer boycott of a secondary employer. Had
Congress intended the broad prohibition suggested in the
dissent—“to bar any and all non-picketing appeals,
through newspapers, radio, television, handbills, or oth-
erwise,” the Supreme Court reasoned in DeBartolo—
“the debates and discussions would surely have reflected
this intention.” 485 U.S. at 584. Yet the Court found no
“clear indication . . . that Congress intended . . . to pro-
scribe peaceful handbilling, unaccompanied by picket-
ing, urging a consumer boycott of a neutral employer,”
i.e., a secondary boycott. Id. at 583–584. See also Delta
Air Lines, supra. Thus, as we explained above, a con-
sumer boycott of a secondary employer is unlawful only
if it is induced by picketing or coercion.
Second, the dissent asserts that the banner displays
were coercive, but one searches the dissent in vain for
any explanation of why American consumers would be
coerced by this common form of expressive activity.
The dissent asserts that the banners “sought to invoke
‘convictions or emotions sympathetic to the union activ-
ity.’” But that is persuasion, not coercion. The dissent
further asserts that the banner “sought to invoke . . . ‘fear
or retaliation if the picket is defied,’” but can point to no
evidence whatsoever suggesting such a coercive intent or
effect.32 The dissent cites the size of the banners and the
presence of union agents. Union agents, of course, are
also present during what the Supreme Court has held to
be the noncoercive distribution of handbills. Thus, the
dissent’s finding of coercion is based solely on the size
of the message. But the banners were no larger than nec-
essary to be seen by passing motorists and, in any event,
there is no reason why a large banner would intimidate
anyone passing by in a car or even on foot.

constitute such direct, coercive interference with the employer’s opera-
tions or a threat thereof.
31 See sec. A, supra.
32 Indeed, the dissent here quotes language in United Furniture
Workers, supra, 337 F.2d at 940, from a passage in which the court is
not stating its holding, but rather describing a party’s contention that
picketing necessarily involves an element of confrontation.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 807
Display of banners is not a novel form of public ex-
pression. See cases cited below, sec. B. Anyone who
walks down the sidewalks of our cities, opens a newspa-
per, watches the news, or surfs the web is likely to have
encountered this form of public expression.33 Indeed,
banners are a commonplace at Fourth of July parades and
ordinarily precede high school marching bands. The
very ordinariness of banners in our open society under-
mines the dissent’s contention that they are coercive.
Finally, unable to advance any reason why the peace-
ful display of stationary banners would coerce consum-
ers, the dissent posits that holding a stationary banner is
picketing, but does so only by expanding the category of
picketing far beyond its ordinary meaning and existing
precedent and in a manner sharply at odds with DeBar-
tolo. While the dissent quotes bits and pieces from our
prior precedents, often from dicta,34 it does not establish
that the Board has adopted a clear and consistent defini-
tion of picketing that encompasses the peaceful display
of stationary banners and, certainly, not the definition
proposed in his dissent today. We address and distin-
guish each of the prior precedents cited by the dissent
above.
Resting on these erroneous foundations, the proposi-
tion advanced in the dissent could not be more stark or
more in tension with the express terms and fundamental
purposes of the Act, Supreme Court precedent, and the
core protections of the First Amendment. In the dissent’s
view, it would be unlawful for a single union supporter
to stand alone outside a store, restaurant, or other estab-
lishment that the union seeks to encourage to cease doing
business with a business that the union believes is un-
dermining labor standards and politely ask consumers,

33 See,,e.g., http://www.umc.org/atf/cf/%7BDB6A45E4-C446-4248-
82C8-E131B6424741%7D/umns_237_080516_468.jpg, retrieved 05-
17-10; http://farm4.static.flickr.com/3572/3362798476_dffd19e0ae.jpg,
retrieved05-17-10; http://www.electjarrod.com/sitebuildercontent/
sitebuilderpictures/Tea-PartyBanner_0026.jpg, retrieved 05/17/10.
34 To support their overbroad construction, our colleagues repeatedly
cite broad language, but from cases whose actual holdings applied only
to picketing or forms of coercion not at issue here. See, e.g., infra at
sec. I.B.1. (quoting Soft Drink Workers Local 812 v. NLRB, 657 F.2d
1252, 1267 fn. 27 (D.C. Cir. 1980) (picketing), and Kentucky Carpen-
ters District Council (Wehr Constructors), 308 NLRB 1129, 1130 fn. 2
(1992) (disciplinary charges against union member); sec. I.B.2. (citing
Laborers Eastern Regional Organizing Fund (Ranches at Mt. Sinai),
346 NLRB 1251, 1253 fn. 5 (2006) (patrolling back and forth in front
of entrances)); sec. II.A. (citing Mine Workers District 2 (Jeddo Coal
Co.), 334 NLRB 667, 686 (2001) (“six individuals stood at the entrance
to the . . . facility, three of them carrying picket signs”); secs. I.B.2, and
II.A. (citing Service Employees Local 87 (Trinity Maintenance), 312
NLRB 715, 746–753 (1993) (multiple instance of traditional picketing
combined with large groups of people marching in circular motion at
entrances, blocking doors, making excessive noise, and entering the
secondaries’ buildings).
“Please don’t shop here.” The dissent posits that “the
posting of union agents at the site of a neutral employer
is coercive within the meaning of Section 8(b)(4)(ii)(B).”
There is no basis for concluding that the United States
Congress intended such a broad reading of Section
8(b)(4). Indeed, the dissent’s position flies in the face of
any reasonable understanding of the term “coercion,” is
at war with the Supreme Court’s holdings in DeBartolo,
and would cut to the heart of the First Amendment in a
manner that we believe it is our constitutional duty as
members of the Executive Branch to avoid, as we now
explain.
B. Application of the “Constitutiona
Avoidance” Doctrine
Our conclusion that the holding of a stationary banner
does not violate Section 8(b)(4)(ii)(B) is supported, if not
mandated, by the constitutional concerns that animated
the Supreme Court’s decision in DeBartolo and its pre-
cursors. To prohibit the holding of a stationary banner
would raise serious constitutional questions under the
First Amendment, as the Federal courts (notably, the
Ninth Circuit in Overstreet, supra) have concluded. Un-
der the framework established in the series of decisions
culminating in DeBartolo, supra, we cannot so hold
unless it is unavoidable, which it clearly is not in this
case.35
In DeBartolo, the primary labor dispute was between
an alliance of construction unions and a builder engaged
in the construction of a new store at an existing shopping
mall; the mall itself and the other mall stores were sec-
ondaries. The unions distributed handbills at each of the
mall’s entrances calling for a consumer boycott of the
entire mall. The Board construed Section 8(b)(4)(ii)(B)
to prohibit that conduct, holding that the unions’ hand-
billing was coercion or restraint within the meaning of
that provision.36 The Supreme Court rejected that inter-
pretation, applying the canon of constitutional avoidance,
in which the Court will construe a statute in order to
avoid constitutional questions arising from an otherwise
acceptable construction of the statute, if an alternative

35 Member Schaumber suggests that as members of the Executive
Branch, state actors bound to uphold and abide by the Constitution, it is
not our duty to avoid trenching on the First Amendment by defining
peaceful, expressive activity to be unlawful. We disagree and believe
that the Board has the authority, indeed, that the Board has a duty, to
construe the Act, if possible, so as not to violate the Constitution. How-
ever, inasmuch as both the majority and the dissent analyze the consti-
tutional implications of our respective positions, as was also the case in
Handy Andy, Inc., 228 NLRB 447 (1977) (cited by Member Schaum-
ber), we need not address the specifics of Member Schaumber’s argu-
ment against application of the constitutional avoidance doctrine.
36 Florida Building Trades Council, 273 NLRB 1431 (1985), enf.
denied 796 F.2d 1328 (11th Cir. 1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
interpretation is possible and not contrary to the intent of
Congress.37
The Court began by explaining why the canon of con-
stitutional avoidance came into play:

[T]he Board’s construction of the statute . . . poses seri-
ous questions of the validity of §8(b)(4) under the First
Amendment. The handbills involved here truthfully
revealed the existence of a labor dispute and urged po-
tential customers of the mall to follow a wholly legal
course of action, namely, not to patronize the retailers
doing business in the mall. The handbilling was peace-
ful. No picketing or patrolling was involved. On its
face, this was expressive activity.

DeBartolo, supra, 485 U.S. at 575–576. The Court then
went on to examine the language of Section 8(b)(4)(ii)(B),
describing the key terms of the provision—“threaten, co-
erce, or restrain”—as “nonspecific, indeed vague” and ob-
serving that they “should be interpreted with ‘caution’ and
not given a ‘broad sweep.’” 485 U.S. at 578, quoting Curtis
Bros., supra, 362 U.S. at 290. The Court found no “neces-
sity to construe such language to reach the handbills in-
volved.” Id. Because neither the language of Section
8(b)(4) nor its legislative history “foreclosed” an interpreta-
tion of the statute as not reaching the handbilling at issue,
the DeBartolo Court rejected the Board’s contrary construc-
tion and so avoided the “serious constitutional questions” it
raised. 485 U.S. at 588.
Even in the application of the prohibition of Section
8(b)(4)(ii)(B) to picketing, the Court stated in its earlier
Tree Fruits decision, it has “not ascribed to Congress a
purpose to outlaw peaceful picketing unless ‘there is the
clearest indication in the legislative history’ . . . that
Congress intended to do so.” Tree Fruits, supra at 63
(quoting Curtis Bros., supra, 362 U.S. at 284). The
Court explained that its “adherence to this principle of
interpretation reflect[s] concern that a broad ban against
peaceful picketing might collide with the guarantees of
the First Amendment.” Id.38

37 See also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979) (holding that Board lacked jurisdiction over lay faculty mem-
bers at Catholic high school).
38 In Tree Fruits, supra, the court reached the conclusion that Sec.
8(b)(4) did not reach “product picketing,” i.e., picketing directed at
consumers with the ultimate aim of persuading secondary merchants
not to sell the product of an employer with whom the union has a pri-
mary dispute. In order to avoid the constitutional question presented by
the Board’s interpretation of Sec. 8(b)(4), the Court declined to read the
publicity proviso to imply that, because it expressly protected “public-
ity[] other than picketing,” Congress intended that all consumer picket-
ing at a secondary site was unprotected. Tree Fruits, 377 U.S. at 71–
72. The Court rejected the idea “that such picketing necessarily threat-
ened, coerced or restrained the secondary employer.” Id. at 71 (empha-
sis added); see also Servette, supra, 377 U.S. at 554 (“The publicity
1. Holding a banner is speech
The banners in this case conveyed the message that the
named entities merited “shame” or should be shunned
because of their connection to a labor dispute. Thus, the
banners plainly constituted actual speech or, at the very
least, symbolic or expressive conduct. The First
Amendment protects both. See Virginia v. Black, 538
U.S. 343, 358 (2003) (holding that cross-burning was
symbolic expression protected by the First Amend-
ment).39
There is no basis for treating a banner display differ-
ently from the other forms of expressive activity that the
Supreme Court has concluded implicate the First
Amendment. In upholding the freedom of unions to en-
gage in picketing asking consumers not to purchase a
particular product from a secondary, the Tree Fruits
Court, for example, observed that a “broad ban against
peaceful picketing might collide with the guarantees of
the First Amendment.” 377 U.S. at 63. The Court ex-
pressly rejected the argument that no type of picketing
could be permitted under Section 8(b)(4) “because, it is
urged, all picketing automatically provokes the public to
stay away from the picketed establishment” and mem-
bers of the public will not “read the [picket] signs and
handbills.” Id. at 71.40
It is beyond dispute that media such as signs and ban-
ners are forms of speech. See, e.g., City of Ladue v.
Gilleo, 512 U.S. 43, 48 (1994) (striking down municipal
ban on residential signs and observing that “signs are a
form of expression protected by the Free Speech Clause”

proviso was the outgrowth of a profound Senate concern that the un-
ions’ freedom to appeal to the public for support of their case be ade-
quately safeguarded.”).
39 See also Texas v. Johnson, 491 U.S. 397, 404 (1989) (holding that
flag burning is protected by First Amendment, and observing that
“conduct may be ‘sufficiently imbued with elements of communication
to fall within the scope of the First and Fourteenth Amendments’”);
Tinker v. Des Moines Independent Community School District, 393
U.S. 503 (1969) (students wearing black armbands to protest Vietnam
War were engaged in protected symbolic speech). Although the Su-
preme Court has held that “[t]he government generally has a freer hand
in restricting expressive conduct than it has in restricting the written or
spoken word,” it may not “proscribe particular conduct because it has
expressive elements . . . . A law directed at the communicative nature
of conduct must, like a law directed at speech itself, be justified by the
substantial showing of need that the First Amendment requires.” Texas
v. Johnson, supra, 491 U.S. at 406 (internal citation omitted, emphasis
in the original).
40 In Curtis Bros., similarly, the Court pointed to the “sensitive area
of peaceful picketing” in which Congress carefully targeted “isolated
evils.” 362 U.S. at 284. Upholding the right of unions to engage in
peaceful recognitional picketing, the Court recognized such picketing
as a legitimate method of persuasion. Id. at 287 (legislative history of
pre-Landrum-Griffin Sec. 8(b)(1)(A) “negat[es] an intention to restrict
the use by unions of methods of peaceful persuasion, including peace-
ful picketing”).
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 809
of the First Amendment); Brown v. California Dep’t of
Transp, 321 F.3d 1217, 1226 (9th Cir. 2003) (prelimi-
nary injunction granted on First Amendment grounds
against policy prohibiting anti-war “expressive banners”
on highway overpasses); Stewart v. District of Columbia
Armory Bd., 863 F.2d 1013, 1019 (D.C. Cir. 1988) (dis-
trict court erred in dismissing First Amendment com-
plaint alleging the removal of a 3-by-15 foot religious
banner displayed by football patrons during a game).
Here, therefore, neither the character nor size of the ban-
ners stripped them of their status as speech or expression.
Similarly, the spareness of the message conveyed by
the banners in no way removed them from the First
Amendment’s protection. Although the banners in this
case may have conveyed less information than a typical
handbill, they clearly communicated ideas.41 Here,
moreover, union representatives also distributed hand-
bills while displaying the banners.42 In any event, as the
Ninth Circuit pointed out in Overstreet, on essentially
identical facts, the use of “catchy shorthand, not discur-
sive speech does not remove the banners from the scope
of First Amendment protections, as cases regarding well
known short slogans demonstrate.” 409 F.3d at 1211,
citing Cohen v. California, 403 U.S. 15, 25–26 (1971)
(applying ordinary First Amendment principles to the
slogan “F— the draft” on a jacket), and Cochran v. Ve-
neman, 359 F.3d 263 (3d Cir. 2004), vacated and re-
manded on other grounds sub nom. Johanns v. Cochran,
544 U.S. 1058 (2005) (applying same principles to bill-
board phrase “Got Milk?”).43
In short, the Court has found that the First Amendment
protects conduct or statements as repugnant as cross-
burning and as crude as “F— the draft.” Surely a union
banner bearing the message “Shame on [ ]” or “Don’t
Eat” implicates similar constitutional concerns.
Yet our dissenting colleagues assert that prohibiting
banner displays would raise no First Amendment con-
cerns for two reasons. First, observing that the Supreme

41 See City of Ladue, supra at 55 (“They may not afford the same
opportunities for conveying complex ideas as do other media, but resi-
dential signs have long been an important and distinct medium of ex-
pression.”). In the present case, insofar as the banners were large
enough to be read by persons not entering the employer facilities (pass-
ing drivers, for example), they functioned as billboards, obviously a
form of protected speech. Metromedia, Inc. v. San Diego, 453 U.S. 490
(1981).
42 At the very least, therefore, the banners served as a means of at-
tracting attention to the handbillers and to their effort to communicate
the Union’s message in more detail.
43 In Cohen, supra, the Supreme Court rejected the view that “the
Constitution, while solicitous of the cognitive content of individual
speech has little or no regard for that emotive function which practi-
cally speaking, may often be the more important element of the overall
message sought to be communicated.” 403 U.S. at 26.
Court has upheld proscriptions on traditional secondary
picketing, they assert that the differences between a ban-
ner display and traditional picketing are “legally insig-
nificant.” We disagree for the reason explained above––
picketing involves conduct that creates a confrontation.
The Supreme Court has recognized that that distinction
between picketing and other forms of communication is
indeed significant under the First Amendment:

While picketing is a mode of communication it is in-
separably something more and different. Industrial
picketing “is more than free speech, since it involves
patrol of a particular locality and since the very pres-
ence of a picket line may induce action of one kind or
another, quite irrespective of the nature of the ideas
which are being disseminated.”

Hughes v. Superior Ct. of Cal., 339 U.S. 460, 464–465
(1950) (quoting Bakery & Pastry Drivers Local 802 v.
Wohl, 315 U.S. 769, 775, 776 (1943) (Douglas, J., concur-
ring); see also Food Employees Local 590 v. Logan Valley
Plaza, 391 U.S. 308, 326 (1968) (Douglas, J., concurring)
(“Picketing is free speech plus, the plus being physical ac-
tivity that may implicate traffic and related matters. Hence
the latter aspects of picketing may be regulated.”), overruled
on other grounds, Hudgens v. NLRB, 424 U.S. 507 (1976).
Like the distribution of handbills at issue in DeBartolo,
therefore, the stationary display of a banner is different from
picketing and its prohibition would raise serious constitu-
tional questions.
Second, citing NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 912 (1982), our colleagues contend that a
substantial governmental interest in “economic regula-
tion” justifies the “incidental” constraint on First
Amendment freedoms that would result from reading
Section 8(b)(4) to prohibit stationary banner displays.
While overturning a State court verdict against the organ-
izers of a consumer boycott involving picketing in Clai-
borne, the Court, in dictum, cited as an example of per-
mitted constraints those on “[s]econdary boycotts and
picketing by labor unions.” As we have demonstrated,
however, the banner displays here were not picketing.
And read in isolation and too broadly, the reference to
“[s]econdary boycotts” in the Claiborne dictum would
remove the foundation from the Court’s subsequent deci-
sion in DeBartolo. In any event, Claiborne also cau-
tioned that “the incidental restriction on alleged First
Amendment freedoms [must be] no greater than is essen-
tial to the furtherance” of the government’s interest. Id.
at 912 fn. 47 (quoting U.S. v. O’Brien, 391 U.S. 367
(1965)). Thus, the Claiborne dictum cannot be read to
suggest that a prohibition of the peaceful display of sta-
tionary banners would not “pose . . . serious questions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
under the First Amendment” when Congress did not
clearly state that it is “essential to the furtherance” of the
purpose of Section 8(b)(4)(ii)(B) and we therefore follow
the Court’s approach in DeBartolo. Id., 485 U.S. at 575;
Claiborne, 458 U.S. at 912 fn. 47.
2. Section 8(b)(4)(ii)(B) need not be read to
prohibit banners
Because the Union’s display of banners was expressive
activity, the canon of constitutional avoidance applies
here in interpreting Section 8(b)(4)(ii)(B). The question,
then, is whether that section “is open to a construction
that obviates deciding whether a congressional prohibi-
tion on [banners] on the facts of this case would violate
the First Amendment.” DeBartolo, supra, 485 U.S. at
578. Such a construction is possible, just as it was possi-
ble in DeBartolo to construe the Act as permitting hand-
billing and in Tree Fruits to construe it as permitting
product picketing. Nothing in the crucial words of Sec-
tion 8(b)(4)(ii)(B)—“threaten, coerce, or restrain”—
compels the conclusion that they reach the display of a
banner, either as picketing or as otherwise coercive con-
duct.
In the absence of textual support, Section
8(b)(4)(ii)(B) can be read as necessarily prohibiting the
display of a stationary banner only if the legislative his-
tory indicates a clear intention by Congress to do so. But
the legislative history indicates no such intention. As we
have shown, the object of Congress’ concern was con-
frontational, “ambulatory picketing”—in Senator Ken-
nedy’s phrase—not the stationary display of banners.
The Ninth Circuit’s decision in Overstreet explains the
obvious difference:

Classically, picketers walk in a line and, in so doing,
create a symbolic barrier. . . . In contrast, bannering in-
volves no walking, in line or otherwise, of union mem-
bers.

409 F.3d at 1213 (emphasis in original).
The Federal courts have explained persuasively why it
is reasonable to construe Section 8(b)(4)(ii)(B) as not
reaching the display of a stationary banner. The Ninth
Circuit in Overstreet, citing DeBartolo and emphasizing
“the need to avoid creating a ‘significant risk’ to the First
Amendment,” considered whether the conduct involved
any of the following: (1) the creation of “a symbolic bar-
rier” through patrolling or other conduct in front of the
entrances to the neutrals’ premises; (2) the creation of a
“physical barrier” blocking those entrances; or (3) other
behavior that was threatening or coercive, such as taunt-
ing of passersby, the massing of a large group of people,
or following patrons or would-be patrons away from a
neutral’s premises. 409 F.3d at 1209, 1211. Similarly,
the court in Kohn noted that the individuals holding the
banner did not “patrol, shout, block entrances, or other-
wise act aggressively.” 289 F. Supp.2d at 1168; see also
Benson, 337 F. Supp.2d at 1278 fn. 16 (same). Each of
the actions cited by the Ninth Circuit might well consti-
tute coercion and thereby trigger the statutory prohibi-
tion, but none of them occurred here.44
In addition to the Ninth Circuit’s decision in
Overstreet, the decision of the United States Court of
Appeals for the District of Columbia Circuit in Sheet
Metal Workers’ Local 15, supra, strongly supports our
construing Section 8(b)(4)(ii)(B) in order to avoid seri-
ous constitutional questions. In that case, the court—
applying the doctrine of constitutional avoidance, pursu-
ant to DeBartolo–held that a union’s mock funeral pro-
cession did not violate Sec. 8(b)(4)(ii)(B). Citing the
Ninth Circuit’s Overstreet decision with approval, the
court explained that the funeral was “not the functional
equivalent of picketing . . . because it had none of the
coercive character of picketing.” 491 F.3d at 438. Un-
ion members “did not physically or verbally interfere
with or confront . . . patrons coming and going,” nor did
they “‘patrol’ the area in the sense of creating a symbolic
barrier.” Id.45
Finally, we find no merit in the General Counsel’s and
Member Schaumber’s contention that the Union, by
naming only the secondary Employers on the banners
proclaiming a “labor dispute,” fraudulently misrepre-
sented to the public that it had a primary labor dispute

44 Compare Laborers Eastern Regional Organizing Fund (Ranches
at Mt. Sinai), 346 NLRB 1251 (2006) (demonstrators walking back and
forth in front of entrance were engaged in picketing).
45 In reversing the Board’s finding of a violation, the court noted
that the mock funeral did not take place in front of hospital entrances or
even “immediately adjacent” to them, but rather 100 feet away from the
main entrance. Id.
To support their argument that the display of banners was coercive
and outside the First Amendment’s protection, our colleagues cite the
11th Circuit’s “obvious disagreement” with the D.C. Circuit in Kentov
v. Sheet Metal Workers Local 15, 418 F.3d 1259 (11th Cir. 2005),
which affirmed a district court’s 10(l) injunction against the same
“mock funeral procession” involved in Sheet Metal Workers, supra.
Contrary to the D.C. Circuit, the 11th Circuit found reasonable cause to
believe that the mock funeral was “the functional equivalent of picket-
ing.” Id. at 1265 (reasonable cause being the less demanding standard
applicable under Sec. 10(l)). The dissent’s reliance on Kentov is mis-
placed. The court in Kentov found that the union “patrolled” for 2
hours accompanied by somber funeral music, and that the procession
was a mixture of conduct and communication “like traditional secon-
dary picketing.” Id. The court specifically distinguished Overstreet,
supra, on the basis that it involved stationary banners “without any
accompanying patrolling or picketing.” Id. at 1264 fn. 7 (emphasis
added). The court similarly distinguished DeBartolo. Id. at 1264 (not-
ing that DeBartolo involved “peaceful handbilling in the absence of any
accompanying picketing or patrolling”).
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 811
with the neutral employers. By making this allegedly
false claim, the General Counsel asserts the Union for-
feited any First Amendment protection and coerced the
secondary employers in violation of Section
8(b)(4)(ii)(B).
We reject the predicate of the argument for two rea-
sons. First, by using the phrase “labor dispute,” the Un-
ion’s banners (and its handbills) did not in any way spec-
ify the nature of the labor dispute at issue. The expan-
sive definition of “labor dispute” contained in Section
2(9) of the Act easily encompasses both primary and
secondary disputes.46 Cf. Burlington Northern R.R. Co.
v. Brotherhood of Maint. of Way Employees, 481 U.S.
429, 443 (1987) (the Norris-LaGuardia Act’s nearly
identical definition of “labor dispute” covers disputes
with secondaries); Jacksonville Bulk Terminals v. Inter-
national Longshoremen’s Assn., 457 U.S. 702, 712
(1982) (the Norris-LaGuardia Act’s definition “must not
be narrowly construed”). The banners did not state or
imply that the “labor dispute” was a primary labor dis-
pute. Thus, the Union banners correctly used a statutory
term. Cf. Marquez v. Screen Actors Guild, 525 U.S. 33,
46–48 (1998) (union did not breach duty of fair represen-
tation by negotiating union-security clause that tracked
statutory language). Moreover, as the Ninth Circuit
pointed out in Overstreet, supra, 409 F.3d at 1217, mem-
bers of the public viewing the banners were unlikely to
be familiar with the technical distinction in labor law
between a primary and secondary dispute—and would
likely have read the term “labor dispute” as indicating,
correctly, that the Union had a dispute with the entity
named that related to labor. In other words, the banners
did not communicate a false message whether read by a
trained labor lawyer or an ordinary member of the public.
There is a second shortcoming in the argument. A
false statement does not lose the protection of the First
Amendment. Young v. American Mini Theatres, Inc.,
427 U.S. 50, 67 fn. 26 (1976) (“The mere fact that an
alleged defamatory statement is false does not, of course,
place it completely beyond the protection of the First
Amendment.”); Gertz v. Robert Welch, Inc., 418 U.S.
323, 341 (1974) (“The First Amendment requires that we
protect some falsehood in order to protect speech that
matters.”). Member Schaumber strains to characterize
the banners as fraud. But fraud requires a subjective

46 Sec. 2(9) reads: “The term “labor dispute” includes any
controversy concerning terms, tenure or conditions of employment, or
concerning the association or representation of persons in negotiating,
fixing, maintaining, changing, or seeking to arrange terms or conditions
of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.”
intent to deceive,47 and here there is no evidence in the
stipulated record that the union agents responsible for
creating and displaying the banners had any such intent.
For each of these reasons, a holding that the banner dis-
plays violated Section 8(b)(4)(ii)(B) because of their
purported falsity would raise serious constitutional ques-
tions of its own.
Conclusion
The Union’s display of stationary banners did not
“threaten, coerce, or restrain” the secondary employers.
Accordingly, we find that the Union did not violate Sec-
tion 8(b)(4)(ii)(B) of the Act.
ORDER
The complaint is dismissed.

MEMBER SCHAUMBER and MEMBER HAYES, dissenting.
Introduction
The National Labor Relations Act protects the right of
employees to invoke economic weaponry, including
strikes and picketing, to bring pressure to bear on em-
ployers with whom they have a primary labor dispute.
However, the Act also recognizes the significant disrup-
tion and economic harm that can follow when labor dis-
putes embroil neutral parties. Congress addressed these
competing interests by enacting and subsequently
amending the provisions of Section 8(b)(4),1 which pro-
hibit a range of coercive secondary boycott activity.2
The Board has hewed over the years to the legislative
purpose underpinning Section 8(b)(4) by applying the
statutory language flexibly and pragmatically to prevent
often creative attempts to circumvent the scope of the
Act’s prohibitions.
The Respondent Union in this case, as part of its long-
running campaign to enmesh property owners in its labor
dispute with certain nonunion contractors, employed a
creative variation on classic picketing: the display of
large, stationary banners at the premises of the neutrals.

47 See, e.g., Fleet National Bank v. Anchor Media Television, 45
F.3d 546, 554 (1st Cir. 1995); Brown v. Forest Oil Corp., 29 F.3d 966,
969 (5th Cir. 1994).
1 Sec. 8(b)(4)(ii)(B) states, in pertinent part, that it shall be an unfair
labor practice for a labor organization or its agents—
(ii) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where . . . an ob-
ject thereof is—
(B) forcing or requiring any person to . . . cease doing busi-
ness with any other person.
2 See NLRB v. Denver Building & Construction Trades Council, 341
U.S. 675, 692 (1951) (Sec. 8(b)(4) was adopted to serve “the dual con-
gressional 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 others from pressures in
controversies not their own.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
These banners, held aloft by union agents, misleadingly
accuse the neutral employer of having a labor dispute
with the union. Whether labeled “stationary picketing,”
“bannering,” or something else, the express terms of the
statute and its legislative history, as well as decades of
Board precedent, demonstrate that the conduct in this
case is a form of secondary coercion that Congress in-
tended to outlaw by its adoption of Section 8(b)(4)(ii).
Settled precedent plainly would prohibit the display by
the Respondent of signs affixed to pickets bearing ex-
actly the same message as the banners at the premises of
the neutral employers. However, because the Respon-
dent’s agents remained stationary and held a banner
rather than pickets, our colleagues conclude that the Re-
spondent’s conduct was lawful. In so holding, our col-
leagues rely on a strained definition of statutory lan-
guage, and selective and ambiguous excerpts from the
legislative history. They also unpersuasively attempt to
distinguish a substantial body of Board and court prece-
dent defining conduct proscribed by Section 8(b)(4)(ii)
as including activity other than traditional ambulatory
picketing. Our colleagues admit to being motivated in
part by the consequences of finding an 8(b)(4) violation,
which they view as too “severe.” However, when Con-
gress has determined that certain conduct in support of
secondary boycotts should be constrained because it con-
stitutes a threat to the economy and national interest, it is
not our role to second guess the means Congress chose to
implement that policy determination.
The majority does not limit its holding to the facts of
this case, which were submitted on a stipulated record.
Instead, our colleagues capitalize on the opportunity to
narrowly circumscribe the Board’s historically expansive
definition of “picketing.” Further, in assessing whether
any conduct that does not involve traditional picketing is
proscribed by Section 8(b)(4)(ii), the majority will now
require a showing that the Union’s conduct “directly
caused, or could reasonably be expected to directly
cause, disruption of the secondary’s operations.” This
new standard substantially augments union power, upsets
the balance Congress sought to achieve, and, at a time of
enormous economic distress and uncertainty, invites a
dramatic increase in secondary boycott activity.
To justify its new and narrow construction of Section 8
(b)(4), the majority also relies on the Supreme Court’s
admonition to avoid an interpretation that would raise
serious constitutional questions under the First Amend-
ment. However, even assuming arguendo that the Board,
as an administrative agency, may engage in a constitu-
tional analysis of the Act it administers, the prohibition
of the coercive secondary conduct at issue here, like the
prohibition against traditional secondary picketing, sim-
ply does not implicate constitutional concerns.
Therefore, we respectfully dissent.
Facts
Bannering can be, and frequently is, accompanied by
other coercive “corporate campaign” activity away from
or at the premises of the neutral employer. Since the
parties did not stipulate to any such conduct in this case,
we assume none occurred. Most of the undisputed facts
are otherwise fully set forth in the majority decision.
Briefly, the Respondent displayed large banners held by
three or four union agents at the premises of neutrals
Banner Medical, Northwest Hospital, and RA Tempe.
These banners all proclaimed the existence of a “LABOR
DISPUTE” and identified the neutral employer as the
disputant in the following terms: “SHAME ON
BANNER THUNDERBIRD MEDICAL CENTER,”
“SHAME ON NORTHWEST MEDICAL CENTER,”
and “DON’T EAT RA SUSHI.”
In fact, the Respondent’s dispute was with primary
employers Eliason & Knuth, Delta, Enterprise, and
Hardrock, nonunion construction contractors that the
Respondent alleges do not pay their employees wages
and benefits that accord with local standards. The only
“dispute” between the Respondent and the neutral em-
ployers was that the primary employers at times per-
formed work at facilities owned by the neutrals, although
no such work was ever performed at the Northwest Hos-
pital or RA Tempe sites.
At Banner Medical Center, the Respondent’s agents
were stationed on the public sidewalk just off the hospi-
tal’s lawn and about 80 feet, or 5 car lengths, from the
driveway entrance into the Medical Center’s main park-
ing lot. They held a banner measuring 16-feet long by 4-
feet high. It is clear from photographs in the record and
aerial photographs on public internet map sites that the
banner was positioned as close as possible to private
property at a point where it would be seen by most peo-
ple entering onto the hospital’s premises.
At Northwest Hospital, union agents held up two ban-
ners measuring 20 feet long by 3 feet high on public
rights of way immediately adjacent to the Hospital’s
premises. The banners faced vehicular traffic and were
clearly visible to employees, patients, and visitors to the
Hospital, and to contractors working there. As with the
banner at Banner Medical Center, many persons would
confront the banners and posted union agents immedi-
ately prior to entering onto the Hospital’s property.
At RA Tempe restaurant, the banner measured 15 feet
long by 3 feet high and was held by two or more union
agents posted at the sidewalk curb approximately 15 feet
from the front door and large windowed facade of the
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 813
restaurant. The banner faced the street. Individuals go-
ing to the restaurant would be confronted by the sign and
posted agents from the sidewalk across the street and
from their cars as they drove by just prior to parking.
Individuals parking curbside adjacent to the banner
would have to walk around or duck under the banner in
order to enter the restaurant.
Analysis
I. Both the Text of the Act and Well-Established
Board Precedent Prohibit Bannering as a Means of Pro-
moting a Secondary Boycott.
An 8(b)(4)(ii)(B) violation consists of two elements.
First, a labor organization must “threaten, coerce, or re-
strain” a person engaged in commerce. Second, the labor
organization must do so with “an object” of “forcing or
requiring any person to . . . cease doing business with
any other person.” San Francisco Building Trades
Council (Goold Electric), 297 NLRB 1050, 1055 (1991).
Both elements are satisfied in this case.
A. The Respondent Engaged in the Bannering to Compel
Neutral Employers to Cease Doing Business with the
Primary Employers with Whom it had a Labor Dispute
In reverse order of the statutory language, we first
briefly address whether the Union’s bannering had a sec-
ondary objective, an issue the majority does not reach.
An unlawful “cease doing business” object is demon-
strated by conduct that is intended to or is likely to dis-
rupt or alter the business dealings between the primary
employer and a neutral.3 A union violates Section
8(b)(4)(B) if “any object of [its coercive activity] is to
exert improper influence on secondary or neutral par-
ties.”4
Here, the Respondent does not seriously dispute that
an object of its bannering was to force or require the neu-
tral employers to cease doing business with the primary
employers. In any event, there is overwhelming evi-
dence of a cease doing business object in this case. First,
letters sent by the Respondent to neutrals Banner Medi-
cal and Northwest Hospital prior to the bannering threat-
ened protest activity at their facilities if the primary em-
ployers performed work for them. Second, the banners
displayed at each of the neutral employers’ locations
broadly proclaimed a “labor dispute” without identifying
the primary employers. Third, the bannering at times
took place when the primary employers were not per-

3 NLRB v. Operating Engineers Local 825, 400 U.S. 297, 304–305
(1971); Iron Workers Local 272 (Miller & Solomon), 195 NLRB 1063
(1972).
4 Electrical Workers Local 501 v. NLRB, 756 F.2d 888, 892 (D.C.
Cir. 1985); NLRB v. Denver Building Trades Council, 341 U.S. 675,
689 (1951).
forming work at the site of the protest. Finally, the
handbills distributed in conjunction with the bannering
solicited the public to request the neutral employers to
“change this situation” of substandard wages and bene-
fits for the primary employers’ employees. In order to
“change this situation,” the neutral employers would be
required to sever their relationship with the primaries. In
sum, the prebannering letters, the banners themselves,
and the handbills all manifest the Respondent’s objective
of promoting a total customer boycott of the neutral em-
ployers in order to force them to “cease doing business”
with the targeted primary employers.5
B. The Bannering Threatened, Coerced, or Restrained
the Neutral Employers Within the Meaning of The Act
1. The statutory language and legislative history demon-
strate a congressional intent to shield neutral employers
from coercive secondary activity beyond traditional am-
bulatory picketing
The dispositive issue in this case is whether the Re-
spondents’ bannering activity threatened, coerced, or
restrained persons within the meaning of Section
8(b)(4)(ii). In interpreting that statutory text, courts have
made clear that the terms threaten, restrain or coerce
“[do] not describe any sort of measurable physical con-
duct suggested by the ordinary meaning of those words,
but [are] rather . . . term[s] of legislative art designed to
capture certain types of boycotts deemed harmful by
Congress.”6 Accordingly, Section 8(b)(4)(ii)’s proscrip-
tion “broadly includes nonjudicial acts of a compelling or
restraining nature, applied by way of concerted self-help
consisting of a strike, picketing, or other economic re-
taliation or pressure in the background of a labor dis-
pute.’”7
Moreover, the legislative history of Section 8(b)(4)
demonstrates both that Congress intended the Section to

5 NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 614 fn.
9 (1980) (Safeco) (appeal for total boycott of a neutral employer is
evidence of unlawful cease doing business object); see also Long-
shoremen ILA Local 799 (Allied International), 257 NLRB 1075,
1084–1085 (1981), enfd. 702 F.2d 1205 (D.C. Cir. 1983) (unlawful
object may be inferred from the necessary and foreseeable conse-
quences of exclusively secondary activity).
6 Soft Drink Workers Local 812 v. NLRB, 657 F.2d 1252, 1267 fn. 27
(D.C. Cir. 1980) (citing NLRB v. Fruit & Vegetable Packers & Ware-
housemen Local 760 (Tree Fruits), 377 US 58, 71 (1964)).
7 Carpenters Kentucky District Council (Wehr Constructors), 308
NLRB 1129, 1130 fn. 2 (1992) (quoting Sheet Metal Workers Local 48
v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964) (emphasis sup-
plied)), cited with approval in Kentov v. Sheet Metal Workers Local 15,
418 F.3d 1259, 1264 fn. 6. (11th Cir. 2005); Laborers Local 1140
(Gilmore Construction), 127 NLRB 541, 545 fn. 6 (1960), enf. as
modified 285 F.2d 397 (8th Cir. 1960), cert. denied 366 U.S. 903
(1961) (prohibition reaches not only picketing but also strikes and
“other economic retaliation”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
be applied flexibly and sensibly, drawing upon the
Board’s unique expertise, to protect neutrals from a
broad range of coercive secondary activity, and that the
Section’s prohibitions were not limited to secondary ac-
tivity that involved violence, intimidation, blocking in-
gress and egress, or similar direct disruption of the sec-
ondaries’ business.8 As Senator Taft, the Senate sponsor
of the Taft-Hartley amendments and Chairman of the
Senate Committee on Labor and Public Welfare, ex-
plained:

It has been set forth that there are good secondary boy-
cotts and bad secondary boycotts. Our committee heard
evidence for weeks and never succeeded in having
anyone tell us any difference between different kinds of
secondary boycotts. So we have so broadened the pro-
vision dealing with secondary boycotts as to make
them an unfair labor practice.9

The resulting secondary boycott provision, former Section
8(b)(4)(A), was understood by both its proponents and its
opponents to “prohibit[] peaceful picketing, persuasion, and
encouragement, as well as non-peaceful economic action, in
aid of the forbidden objective”10 because “Congress thought
that [secondary boycotts] were unmitigated evils and bur-
densome to commerce.” Wadsworth Building, supra.11

8 See, e.g., Teamsters Local 25 v. NLRB, 831 F.2d 1149, 1153 (1st
Cir. 1987) (Sec. 8(b)(4)(ii)(B) is “broad and sweeping,” and “pragmatic
in its application, looking to the coercive nature of the conduct, not to
the label which it bears.”); accord: Pye v. Teamsters Local 122, 61 F.3d
1013, 1024 (1st Cir. 1995) (“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.”) (upholding 10(l)
injunction against union mass shopping at neutral retail stores).
9 2 Leg. History Labor Management Relations Act of 1947 (LMRA)
1106 (93 Cong. Rec. 4323).
10 Carpenters (Wadsworth Building), 81 NLRB 802, 812 (1949),
enfd. 184 F.2d 60 (10th Cir. 1950), cert. denied 341 U.S. 947 (1951)
(cited with approval in Electrical Workers v. NLRB, 341 U.S. 694, 704
(1951)).
11 The Supreme Court’s decision in Tree Fruits, supra, is not to the
contrary. The Court held in that case that Sec. 8(b)(4)(ii)(B) did not
prohibit picketing at the site of a neutral employer against a struck
product of the primary employer. Such picketing normally is “confined
to [the union’s] dispute with the primary employer, since the public is
not asked to withhold its patronage from the secondary employer, but
only to boycott the primary employer’s goods.” Id. at 63. But there is
no claim that the Respondent’s bannering was struck product picketing
under Tree Fruits. Rather, the banners sought to cause a total consumer
boycott of the neutrals, and “a union appeal to the public at the secon-
dary site not to trade at all with the secondary employer goes beyond
the goods of the primary employer, and seeks the public’s assistance in
forcing the secondary employer to cooperate with the union in its pri-
mary dispute.” Tree Fruits, supra at 63–64. Such “appeals” are pro-
hibited by Sec. 8(b)(4)(ii)(B). Id. Moreover, the Tree Fruits doctrine
has limited application in cases, such as this, involving construction
industry employers: “Unlike the products at a grocery store, the work
of a subcontractor merges with the work of the general contractor and
Moreover, when unions found and exploited limita-
tions in the coverage of former Section 8(b)(4)(A), Con-
gress closed the loopholes through amendments broaden-
ing the scope of the secondary boycott prohibition.12
These included the addition in 1959 of Section
8(b)(4)(ii)(B), proscribing “direct pressures” on neutral
employers like those used in this case. The legislative
history discloses that this amendment simply perfected
“the intention of Congress as far back as 1947 to outlaw
all forms of the secondary boycott” and to protect “the
rights of the innocent third parties who have no dispute
with either the union or the primary employer, but who
are subjected to coercion, threats, picketing and possible
loss of jobs simply because the union bosses are permit-
ted to use them as a lever in the quest for greater power
. . . . [No organization] can be allowed to deprive other
individuals of freedom from coercion, economic or oth-
erwise.” 13 Accordingly, the legislative history supports
finding that Congress intended various means of promot-
ing secondary boycotts, including outwardly peaceful
picketing akin to the bannering activity here, to be cov-
ered by the definition of proscribed activity.14
2. Consistent with the legislative history and statutory
text, the Board and courts have developed a broad and
flexible definition of proscribed secondary picketing
The Board has long held that the use of traditional
picket signs and/or patrolling is not a prerequisite for
finding that a union’s conduct is the equivalent of tradi-
tional picketing. The coercion element is satisfied when
a union posts its agents “at the approach to a place of
business to accomplish a purpose which advances the
cause of the union, such as keeping employees away
from work or keeping customers away from the em-
ployer’s business.” 15 The posting of union agents at the

the developer. Consequently, publicity directed against a subcontractor
embroils the general contractor and developer in the labor dispute.”
Solien v. Carpenters District Council of Greater St. Louis, supra, 623 F.
Supp. at 601.
12 2 Leg. History Labor-Management Reporting and Disclosure Act
of 1959 (LMRDA) 1079 (Cong. Rec. (Senate) April 21, 1959, remarks
of Sen. Goldwater).
13 2 Leg. History LMRDA 1630 (Cong. Rec. (House) 14354 (Aug.
12, 1959, remarks of Rep. Riehlman).
14 While the legislative history does not specifically mention banner-
ing, this is hardly surprising given that unions’ widespread use of ban-
nering to promote secondary boycotts substantially postdates the pas-
sage and amendment of that statutory provision. For that same reason,
the Supreme Court’s interpretation of this legislative history in Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction
Trades Council, 485 U.S. 568 (1988) (DeBartolo II) to distinguish
between proscribed picketing and permitted handbilling cannot be
regarded as conclusive of whether bannering should be proscribed to
the same extent as picketing.
15 Lumber & Sawmill Workers Local Union No. 2797 (Stoltze Land
& Lumber), 156 NLRB 388, 394 (1965). See also Laborers Eastern
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 815
site of a neutral employer is coercive within the meaning
of Section 8(b)(4)(ii)(B) because it creates “a confronta-
tion in some form between union members and the em-
ployees, customers, or suppliers who are trying to enter
the employer’s premises.”16
Thus, traditional picketing, where union agents patrol
in an elliptical pattern while carrying placards affixed to
sticks, is but one example of the type of coercive union
activity covered by Section 8(b)(4)(ii). 17 The prohibition
against coercive secondary activity sweeps more broadly
and has been held to encompass patrolling without
signs,18 placing picket signs in a snowbank and then
watching them from a parked car, 19 visibly posting union
agents near signs affixed to poles and trees in front of an
employer’s premises,20 posting banners on a fence or
stake in the back of a truck with union agents standing
nearby21 and, as mentioned above, simply posting agents
without signs at the entrance to a neutral’s facility.22
Further, “movement . . . [is] not a sine qua non of
picketing,” nor is the “carrying of placards” a necessary
element.23 Instead, the essential elements of picketing
are: (1) the posting of union agents reasonably identifi-
able as such; and (2) placement of the union agents
within the immediate vicinity of the employer’s prem-
ises. Accord: NLRB v. Teamsters Local 182, supra, 314
F.2d at 57–58 (to “picket in the labor sense means to
walk or stand in front of a place of employment as a

Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB 1251,
1253 fn. 5 (2006), and cases cited therein.
16 NLRB v. United Furniture Workers, 337 F.2d 936, 940 (2d. Cir.
1964).
17 See generally Service Employees Local 87 (Trinity Maintenance),
312 NLRB 715, 743 (1993), enfd. mem. 103 F.3d 139 (9th Cir. 1996).
18 Service Employees Local 399 (Burns Detective Agency), 136
NLRB 431, 436–437 (1962).
19 NLRB v. Teamsters Local 182 (Woodward Motors), 314 F.2d 53
(2d Cir. 1963), enfg. 135 NLRB 851 (1962).
20 NLRB v. United Furniture Workers, supra. The court remanded
the case to the Board to consider whether “the extent of confrontation
necessary to constitute picketing” was present. Significantly, the court
did not question the Board’s determination that movement is not re-
quired to establish picketing and specifically agreed that “a picket may
simply stand rather than walk.” Id. at 939. Rather, the court was con-
cerned that there was no indication that the union agents who sat in
their cars after affixing the signs were visible to employees and cus-
tomers entering the plant or clearly identifiable as union representa-
tives. Those concerns are not present in this case.
21 Mine Workers Local 1329 (Alpine Construction), 276 NLRB 415,
431 (1985), remanded on other grounds 812 F.2d 741 (D.C. Cir. 1987)
22 Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 686
(2001).
23 Lawrence Typographical Union 570 (Kansas Color Press), 169
NLRB 279, 283 (1968), enfd. 402 F.2d 452 (10th Cir. 1968). The
Board there recognized that it would “exalt form over substance” to
limit the definition of picketing to situations where the union patrols
with placards—precisely the error the majority commits.
picket” and a “picket” is “a person posted by a labor or-
ganization at an approach to the place of work.”) (inter-
nal quotations omitted).
3. Bannering has the same coercive impact as
traditional picketing
Here, the Respondent sought to bring about a con-
sumer boycott of the neutrals through the posting of its
agents, with massive banners, adjacent to the entrance of
the neutrals’ premises. This conduct was the confronta-
tional equivalent of picketing, and thus proscribed by
Section 8(b)(4)(ii) within the meaning of the statute, leg-
islative history, and precedent discussed above. Custom-
ers about to enter the neutral premises encountered union
agents, readily identifiable as such, posted by the Re-
spondent and holding large signs, albeit ones stretched
between two poles rather than affixed to a single picket,
misleadingly claiming the existence of a “labor dispute”
with the neutral employers. The banners sought to in-
voke “convictions or emotions sympathetic to the union
activity” as well as “fear of retaliation if the picket is
defied,” NLRB v. United Furniture Workers, supra, 337
F.2d at 940 (internal quotation omitted). The display in
front of the neutral’s premises called for the same “auto-
matic response to a signal” that traditional labor picket-
ing evokes, and as such it is proscribed by Section
8(b)(4).24
Admittedly, there are differences between picket signs
and banners, but those differences do not suggest the
latter are any less likely to threaten, restrain, or coerce.
On the contrary, banners are much larger and contain less
speech. They are held by union agents, just as picket
signs often are, but their imposing mass and length obvi-
ate the need for any patrolling to create a physical or, at
the very least, symbolic confrontational barrier to those
seeking access to the neutral employer’s premises.
Those agents holding the banners are not, as the Ninth
Circuit has suggested, “human signposts.”25 They are
sentient, watchful supporters of the boycott campaign,
whose presence will provoke a far different reaction from
passersby than the stanchions on a billboard. Oddly, the

24 Safeco, supra, 447 U.S. at 619 (concurring opinion of Justice Ste-
vens). Justice Stevens distinguished picketing—where the mere pres-
ence of the picketers sends an intimidating “signal” to those about to
enter an establishment—from handbilling, which depends entirely on
the persuasive force of the ideas expressed therein to produce a re-
sponse. This concept is analytically distinct from the concept of signal
picketing, where a union’s conduct is directed at employees of a neutral
employer urging them to strike, rather than at customers of the neutral
urging a boycott. Service Employees Local 254 (Women’s & Infants
Hospital), 324 NLRB 743 (1997). The General Counsel did not allege
signal picketing directed at employees in this case.
25 Overstreet v. Carpenters Local 1506, 409 F.3d 1199, 1214 (9th
Cir. 2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
Ninth Circuit itself admits to this reaction when rational-
izing that members of the public can “avert [their] eyes”
from the banner and agents.26 Aversion and avoidance
are characteristic behaviors of persons being threatened,
restrained, or coerced. Indeed, it is clearly the intent of
the agents engaged in bannering activity to have mem-
bers of the public avoid them by avoiding the premises of
the neutral employers, thus facilitating the secondary
boycott objective.27
In sum, the size and placement of the banners, the sta-
tioning of union agents to hold them, and other direct
similarities to picketing are all factors contributing to the
confrontational impact of bannering, sharply distinguish-
ing that conduct from handbilling’s mere persuasion.
The coercive impact was further heightened by the mis-
leading message the banners conveyed. By naming only
the neutral employers, the banners naturally and forseea-
bly created the impression that the Respondent had a
primary labor dispute with the neutral employers over the
employment terms and conditions of the neutral’s em-
ployees. In fact, however, the Respondent did not have a
labor dispute with the neutral employers. See San Anto-
nio Community Hospital v. Carpenters Southern Califor-
nia District Council, 125 F.3d 1230, 1235 (9th Cir. 1997)
(hospital did not have labor dispute with union where
union’s primary labor dispute was with subcontractor
working on hospital expansion project).
Having been misled into believing that the neutrals
were unfair to their employees, potential customers
would be more likely to support the union’s boycott than
they would if the banners truthfully indicated that the
neutrals “must be dealing with other companies that deal
with yet other companies that don’t treat their employees
right.” Overstreet v. Carpenters Local 1506, 409 F.3d
1199, 1220 (9th Cir. 2005) (dissenting opinion). The

26 Id.
27 The majority seems to suggest that the distance of the bannering
activity from the building entrances for Banner Medical and Northwest
Hospital has some relevance to the confrontational nature of this con-
duct. Of course, the union agents in those situations could get no closer
to the buildings without trespassing on private property. They dis-
played their banners in close proximity to main entrances to the neutral
Employer’s premises, at which point they would confront many or most
persons who would ultimately enter the buildings in question.
The majority asserts that it was “highly impractical” for these union
agents to observe customers as they entered the neutral premises due to
the placement of the banners. At least as to Banner Medical Center and
RA Tempe, we respectfully disagree. Union agents at those locations
were stationed 80 feet from the parking lot entrance road and 15 feet
from the restaurant’s front door, respectively. Even if those agents
normally faced the street (an issue the stipulation does not explicitly
address), they could easily observe persons entering and leaving the
neutral premises simply by turning their heads. Indeed, their attempt to
confront and deter persons from entering onto the premises was logi-
cally directed towards those about to enter the premises.
result, of course, would be to increase pressure on the
neutral employers to cease doing business with the uni-
dentified primary employer targets.28
II. THE MAJORITY ABANDONS PRECEDENT AND REWRITES
SECTION 8(B)(4), OPENING THE DOOR TO A SUBSTANTIAL
EXPANSION OF SECONDARY ACTIVITY THAT CONGRESS
INTENDED TO LIMIT
Rather than apply the settled understanding of
“threaten, coerce, or restrain” established by decades of
Board and court precedent, much of which is discussed
above, the majority either ignores that precedent or
claims it has been invalidated by the Supreme Court’s
decision in DeBartolo II, supra. Our colleagues are un-
deterred in their assertions by the fact that the Board has
steadfastly adhered to its precedent after DeBartolo II
and by the fact that nothing in the high court’s decision
negates the Board’s historic definition of coercive picket-
ing. The majority then fashions out of whole cloth a new
definition of coercive picketing that effectively guts the
protections afforded neutrals by Section 8(b)(4)(ii)(B).
The standard they adopt today simply cannot be squared
with the language or purpose of that statutory provision.
A. The Majority Ignores or Misapplies Precedent
Governing Coercive Picketing
The majority begins its analysis by citing Carpenters
Local 1976 v. NLRB (Sand Door), 357 U.S. 93, 99
(1958), for the proposition that Section 8(b)(4) did not
enact a “wholesale condemnation of secondary boy-
cotts,” but instead allows such boycotts if the employer
agrees to it or if it is brought about by means other than
those proscribed by” that provision of the Act. We read-
ily accept the notion that Section 8(b)(4) did not outlaw
all union activity with a secondary objective. However,
the holding of Sand Door–that Section 8(b)(4) did not
prohibit boycotts with the employer’s agreement–was
legislatively overruled only a year later by the enactment
of Section 8(e) in the Landrum-Griffin Act of 1959. See
National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612,
634 (1967). Thus, while the Court’s observation that
Section 8(b)(4) did not outlaw all secondary activity re-

28 Member Schaumber observes that Board law requires unions to
clearly identify the dispute with the primary employer and the neutral
employer’s relationship to the primary. See Solien v. Carpenters of
Greater St. Louis District Council, 623 F.Supp. 597, 603–604 (E.D.
Mo. 1985) (union cannot benefit from “publicity proviso” to Sec.
8(b)(4) if it misleadingly identifies neutral as disputant); Sailors Union
(Moore Dry Dock), 92 NLRB 547, 549 (1950) (common situs picketing
unlawful unless picketing clearly discloses that dispute is with pri-
mary). The Respondent’s failure to comply with these well-settled
standards supports an inference that it intended to mislead readers of
the banners by creating the false impression that it had a primary labor
dispute with them.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 817
mains valid, the scope of the proscription intended by
Congress was clearly broader than the Court in Sand
Door foresaw.
The majority then asserts that the terms “threaten, co-
erce, or restrain” must be given their “ordinary mean-
ing,” which in their view requires proof of “violence,
intimidation, blocking ingress or egress, or similar direct
disruption of the secondaries’ business.” While as a mat-
ter of statutory construction, the plain and ordinary
meaning of words generally controls in this context, we
have been instructed that these terms do not “describe
any sort of measurable physical conduct suggested by the
ordinary meaning of those words,” but are rather “legis-
lative terms of art designed to capture certain types of
boycotts deemed harmful by Congress.” Soft Drink
Workers Local 812 v. NLRB, supra. Further, as previ-
ously stated, it is beyond peradventure that peaceful
picketing to promote a total secondary boycott is pro-
scribed by Section 8(b)(4)(ii)(B).
Our precedent makes clear that the peaceful display of
stationary signs by union agents posted at a neutral’s
premises, in support of a secondary object, is among the
class of confrontational actions Congress condemned.
Nevertheless, the majority now holds that both patrolling
and the carrying of traditional picket signs are essential
elements for a finding that coercive picketing occurred.
That precise argument has been repeatedly and consis-
tently rejected by the Board and reviewing courts. See,
e.g., Stolze, supra (patrolling not essential); Mine Work-
ers (New Beckley Mining), 304 NLRB 71 (1991), enfd.
977 F.2d 1470 (D.C. Cir. 1992) (picket signs or placards
not essential). While the majority makes an unpersua-
sive attempt to distinguish cases such as Stolze, New
Beckley, and Kansas Color Press, supra, on their facts,
our colleagues effectively concede that the Respondent’s
bannering would meet the definition of coercive picket-
ing set forth in those cases. In each, the Board found that
the posting of stationary union agents was coercive and
violated Section 8(b)(4)(ii)(B). While its true that the
unions in those cases also engaged in other coercive con-
duct, the Board did not rely on that conduct in its deter-
mination that the posting was unlawful.29

29 For example, in Woodward Motors, supra, the majority claims that
the fact that “traditional” picketing (i.e., patrolling with signs on sticks)
ended 2 weeks before the stationary display of signs began somehow
distinguishes that case from the bannering at issue here. But the ambu-
latory picketing played no part in the Board’s analysis of whether the
stationary display of signs also constituted picketing. Further, in en-
forcing the Board’s Order, the Second Circuit rejected the union’s
contention that the stationary display of signs was not picketing, and
found instead that movement was not a “requisite” of picketing. NLRB
v. Local 182, supra, 314 F.2d at 58.
Unable to distinguish away precedent, the majority at-
tempts a different tack and argues, in effect, that the
Stolze standard is no longer good law because it was
overruled in DeBartolo II. Unfortunately for our col-
leagues, history demonstrates otherwise. The Board has
adhered to the Stolze standard in decisions issued both
before and after DeBartolo II.30 In Jeddo Coal, for ex-
ample, union agents holding picket signs stood at the
entrance to a neutral facility. The respondent union de-
fended its actions on the grounds that there could be no
8(b)(4)(ii)(B) violation because there was no evidence of
patrolling—precisely the reasoning advanced by the ma-
jority. But the Board rejected that position in a unani-
mous opinion that specifically relied upon the fact that
“neither patrolling nor patrolling combined with the car-
rying of placards are essential elements to a finding of
picketing; rather, the essential feature of picketing is the
posting of individuals at entrances to a place of work.”
334 NLRB at 686. It cannot be gainsaid: the majority’s
decision flatly contravenes post-De Bartolo II precedent.
Nor is the majority’s decision consistent with the
Board’s recent unanimous holding in Brandon Regional
Medical Center31 that a union “mock funeral procession”
at a neutral hospital to pressure the hospital to cease do-
ing business with a nonunion contractor violated Section
8(b)(4)(ii)(B). The procession involved union agents
walking back and forth on the public sidewalks in front
of the hospital’s main entrance while carrying a “faux
casket and accompanied by a [union] member dressed as
the Grim Reaper.” The union agents also distributed
leaflets that detailed several malpractice lawsuits that had
been filed against the hospital. Although the marchers
did not carry any picket signs, the Board held that the
funeral procession was picketing all the same. The ma-
jority fails to explain why picket signs were not neces-
sary to establish picketing in Brandon, but are necessary
now.32

30 See, e.g., Service Employees Local 87 (Trinity Maintenance), su-
pra, 312 NLRB at 743 (post-DeBartolo II case recognizing that posting
is sufficient to find picketing and that patrolling or carrying signs not
required); Jeddo Coal), supra (same).
While Stolze involved unlawful recognitional picketing in violation
of Sec. 8(b)(7), the Board has repeatedly relied upon its definition of
picketing in deciding. 8(b)(4) cases. See, e.g., Ranches at Mt. Sinai,
supra, and cases cited therein. Any suggestion by the majority that
Stolze and its progeny should be confined to 8(b)(7) cases—or that the
same conduct could be picketing in that context but not under Sec.
8(b)(4)—cannot be reconciled with existing precedent.
31 Sheet Metal Workers Local 15 (Brandon Regional Medical Cen-
ter), 346 NLRB 199 (2006), enf. denied 491 F.3d 429 (D.C. Cir. 2007).
32 Far from reconciling their views on Sec. 8(b)(4) with Brandon,
our colleagues rely only on the court of appeals decision denying en-
forcement. The court viewed the procession as a combination of non-
coercive street theater and handbilling, in that the union members did
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
Our colleagues posit that these post-De Bartolo II
Board decisions are entitled to no precedential deference
because the Board in those cases “made no attempt to
reconcile the ‘posting’ definition with DeBartolo.” With
all due respect, there was no need for such reconciliation.
The Board was well aware of DeBartolo II when it de-
cided these cases in 1993, 2001, and 2006. The DeBar-
tolo II Court held that peaceful handbilling, not accom-
panied by picketing, urging a consumer boycott of a neu-
tral employer did not violate Section 8(b)(4)(ii)(B). The
Court reasoned that such handbilling is not coercive be-
cause it depends entirely on the persuasive force of the
idea, and is thus distinguishable from picketing, which
depends on intimidation to achieve its purpose.
There is no suggestion that the handbilling that oc-
curred in this case violated the Act. Rather, the question
presented is whether Respondent’s bannering was unlaw-
ful. Nothing in DeBartolo II even hints that the Supreme
Court intended to change the Board’s longstanding and
flexible definition of picketing, or the well-established
understanding that posting an individual at a neutral’s
premises is sufficient to establish 8(b)(4)(ii)(B) coercion.
Indeed, the court specifically endorsed the view that Sec-
tion 8(b)(4)(ii)(B) proscribed stationary as well as ambu-
latory activity by its emphasizing that “[n]o picketing or
patrolling was involved” in that case (emphasis added).
See 485 U.S. at 575–576.
Our position finds further support in the 11th Circuit’s
2005 decision in Kentov v. Sheet Metal Workers Local
15, 418 F.3d 1259 (11th Cir. 2005) (DeBartolo II “dealt
only with a union’s peaceful handbilling in the absence
of any accompanying patrolling or picketing”) (emphasis
added). In obvious disagreement with the subsequent

not physically or verbally interfere with or confront hospital patrons
and did not “creat[e] a symbolic barrier” by patrolling. In so finding,
the court reasoned that the mock funeral procession took place 100 feet
away from the hospital entrance, and thus satisfied the time, place, and
manner requirements for limits on the abortion protests upheld by the
Supreme Court in Hill v. Colorado, 530 U.S. 703, 734 (2000), and
Masden v. Women’s Health Center, 512 U.S. 753 (1994). As such, the
court concluded that the funeral procession was protected by the First
Amendment from regulation under Sec. 8(b)(4)(ii)(B).
We respectfully disagree with the opinion of the Brandon court and
with our colleagues’ summary reliance upon it rather than longstanding
extant Board precedent. First, the standards applicable in an abortion
protest context are obviously different from those where the conduct in
question constitutes secondary activity subject to regulation by the
Board. Second, the mock funeral procession constituted coercive pick-
eting because the participants patrolled on the public right of way
immediately adjacent to the hospital’s property, and crossed the drive-
ways and sidewalks commonly used by customers to enter the prem-
ises. Brandon, 346 NLRB at 203. As with the bannering activity in the
present case, while the procession took place at a distance from the
hospital building entrance, it was conducted at the entrance to the neu-
tral premises.
decision of the D.C. Circuit in Brandon, the court of ap-
peals affirmed a lower court’s issuance of a Section 10(l)
injunction against the union’s mock funeral protest, find-
ing reasonable cause to believe that this conduct violated
Section 8(b)(4)(ii)(B). Specifically relying on Jeddo
Coal, Trinity Building, and Stoltze, the court “readily”
concluded that the mock funeral was “the functional
equivalent of picketing, and therefore, the First Amend-
ment concerns in DeBartolo are not present in this case.”
Id. at 1265.
Indeed, the Supreme Court has endorsed the Board’s
broader and flexible view of picketing in a line of cases
dating back many decades. See Tree Fruits, supra, 377
U.S. at 76 (Black, J., concurring) (emphasis added)
(“‘Picketing,’ in common parlance and in §
8(b)(4)(ii)(B),” includes the concept of “patrolling, that
is, standing or marching back and forth or round and
round on the streets, sidewalks, private property, or
elsewhere, generally adjacent to someone else’s prem-
ises[.]”); Thornhill v. State of Alabama, 310 U.S. 88, 101
fn. 18 (1940) (picketing includes merely observing
workers or customers, persuading “employees or cus-
tomers not to engage in relations with the employer. . .
through the use of banners” and may include threatening
employees or customers . . . by the mere presence of the
picketer” which “may be a threat of, (i) physical vio-
lence, [or] (ii) social ostracism, being branded in the
community as a ‘scab’”) (emphasis added). There is no
indication that the DeBartolo II Court thought it was
overturning these principles, and there is no justification
for the majority to do so now.33
B. The Majority’s New Standard Undercuts 8(b)(4)
Protections
The majority requires proof that union agents patrol
the neutral’s premises with traditional picket signs before
they will find that proscribed peaceful picketing has oc-
curred. Absent such conduct, they will find an
8(b)(4)(ii)(B) violation only if the union engages in con-
duct that “directly caused, or could reasonably be ex-
pected to directly cause, disruption of the secondary’s
operations.” This new standard lacks any support in,
indeed, it is controverted by, the statutory text and Board
precedent. The statutory text requires only that the union

33 Service Employees Local 399 (Delta Airlines), 293 NLRB 602
(1989), a case on which the majority relies, is not to the contrary.
There too, the disputed union conduct was limited to handbilling and
nonpicketing publicity in the form of newspaper advertisements, both
urging the public to boycott a neutral. “There was no violence, picket-
ing, patrolling, or work stoppage.” Id. at 603 (emphasis added). The
Board’s determination that this conduct was lawful, consistent with
DeBartolo II, does not even question, much less overturn, the estab-
lished principle that the posting of union agents at the premises of a
neutral can constitute prohibited picketing under Sec. 8(b)(4)(ii)(B).
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 819
activity “restrain, coerce, or threaten”; no proof of actual
or potential loss or damage is necessary to find that the
means used to promote a secondary boycott is pro-
scribed. And Board law, which, until today, encom-
passed a broad range of coercive activity beyond tradi-
tional picketing, was faithful to that statutory text. It
required no specific, much less objectifiable, quantum of
disruption to establish a violation.
Indeed, the Board has found violations of Section
8(b)(4)(ii)(B) where there was no evidence of picketing
or proof of loss or damage to the neutral’s operations
whatsoever. For example, in General Maintenance Co.,
supra, 329 NLRB at 664–665, 680, the Board held that
the union violated Section 8(b)(4) by, among other
things, a mass assembly of 40-60 union agents at the
home of the owner of a neutral entity.34 The owner was
away, but his 9 year old son and housekeeper were pre-
sent. The Board found that this conduct, which was not
accompanied by any shouting or name calling, violated
Section 8(b)(4)(ii)(B) because the union “reasonably
could foresee that the visit would harass and embarrass
[the owner] in front of his neighbors and, thus, would
have a coercive effect.” Id. at 682. There was no evi-
dence of picketing and the employer’s operations were
entirely unaffected, but the Board found a violation all
the same.35
Cases such as General Maintenance Co. demonstrate
the folly of imposing a new requirement of proof of dis-
ruption of operations to establish an 8(b)(4) violation in
the absence of traditional picketing, and of attempting to
delimit coercive conduct to a narrow class of secondary
activity. And, as discussed above, consistent with the
statutory text, the Board has never required a showing of
specific or likely damage for secondary boycott activity
to be deemed unlawful. See, e.g., New Beckley Mining,
supra, 304 NLRB 71 (mass gathering at motel of shout-
ing strikers seeking to oust replacement employees was a
form of coercive picketing; sufficient that crowd was
gathered in furtherance of labor dispute and its shouted
messages were directed to removal of replacements from
motel); Carpenters (Society Hill Towers Owner’s Assn.),

34 The many other violations found by the Board in that case in-
cluded hurling trash bags into the lobby of a neutral office building.
The majority appears to concede that such tactics violate Sec.
8(b)(4)(ii)(B).
35 The majority allows that a mass assembly of this type would “ex-
ert a coercive force against the employer” – but only if it was accompa-
nied by shouting and name calling that caused “employer agents” to
fear for their safety. The majority never explains how this conduct fits
within their “disruption of operations” standard. Moreover, our col-
leagues apparently would allow such mass assemblies if unaccompa-
nied by shouting and name calling, or if aimed not at an agent, but his
or her family. There is no justification for restricting Sec. 8(b)(4) in this
manner.
335 NLRB 814, 820–823 (2001), enfd. 50 Fed. Appx. 88
(3d. Cir. 2002) (broadcasting union message at excessive
volume at condominium unlawful; “the Board has found
violations of Section 8(b)(4)(ii)(B) where unions’ secon-
dary activities, short of picketing, have interfered with
the use of private facilities by patrons and tenants of neu-
trals) (emphasis added). The majority’s newly fash-
ioned standard cannot be reconciled with this precedent.
The primary justifications offered by our colleagues
for refuting the Congressional imperatives underpinning
Section 8(b)(4) and rejecting the Board’s heretofore
broad and flexible definition of coercive conduct are
newly divined policy considerations at odds with our
statutory mandate. Thus, our colleagues observe that the
consequences of an 8(b)(4) violation are “severe,” as the
conduct “becomes” an unfair labor practice and is subject
to injunctive relief and a suit for damages, while employ-
ees who participate are not protected by the Act from
discipline or discharge.
These considerations have no place in the Board’s de-
cisionmaking unless the general language in the Act’s
Preamble “to promote collective bargaining” is to be
construed so broadly as to swallow enforcement of the
specific provisions of the Act. Congress struck the sec-
ondary boycott weapon from the hands of organized la-
bor in 1947 because it determined that the cost to society
was too high. That decision was bitterly contested at the
time, but it is settled law now. The fact that Congress
imposed severe sanctions for violations of Section
8(b)(4) only reinforces the significance of the harm it
perceived to flow from the untrammeled spread of labor
disputes into interstate commerce. It is our duty to carry
out that Congressional objective, not to second-guess the
severity of the remedies Congress imposed. We have no
authority to constrain the reach of Section 8(b)(4) to
shield one of our stakeholders from the Act’s proscrip-
tions.
Our colleagues’ new narrow definition of picketing
and their new requirement for a showing of actual or
threatened disruption before other secondary activity will
be found unlawful unquestionably augments union
power. Unless the General Counsel can prove that dis-
ruption could be expected to occur in the neutral’s busi-
ness directly as a result of the union’s secondary boycott
activity or that such a disruption has, in fact, occurred,
the Board will no longer authorize the General Counsel
to seek injunctive relief or subsequently find a violation.
However, the majority fails to adequately explain the
contours of their new standard, and their efforts to do so
raise more questions than they answer. Is proof of dis-
ruption alone sufficient, or must the General Counsel
also establish that actual “harm” to the neutral’s opera-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
tions was threatened or inflicted, as the majority appears
to suggest at one point? Will disruption of other busi-
nesses owned by the neutral count? What form of proof
will the majority require to establish the requisite likeli-
hood of future harm? Our colleagues leave these and a
host of other questions to another day, jeopardizing not
just the existence of numerous vulnerable small busi-
nesses already battered by the economy, but also the live-
lihoods of their many employees
The standard adopted by the majority substantially in-
creases the leverage of unions that may be tempted to
exploit the threat of coercive secondary activity, and cre-
ates new incentives to utilize such tactics. Communica-
tions, such as the letters that were sent by the Respon-
dent, routinely will be sent to neutral Employers warning
of “vigorous” public protests unless the neutral ceases
doing business with a primary employer. Neutral em-
ployers will be understandably reluctant, given the vague
but heightened burden of proof imposed by my col-
leagues, to invoke the Board’s processes, and will instead
simply cease doing business with the primary employer
before bannering commences.
In short, the majority’s decision is inconsistent with
the text of the statute, its legislative history, decades of
precedent, and sound and well-established policy. There
is simply no reasoned basis for their constrained reading
of 8(b)(4), which will have a lasting and significant eco-
nomic impact on scores of businesses across the country.
C. A Finding That Bannering To Promote A Secondary
Boycott Violates Section 8(b)(4)(ii)(B) Does Not Raise
Constitutional Concerns
The majority invokes the judicial doctrine of constitu-
tional avoidance to conclude that the Board may not in-
terpret Section 8(b)(4) to prohibit bannering. This argua-
bly requires consideration of whether a finding that union
bannering violates Section 8(b)(4)(ii)(B) would poten-
tially conflict with the free speech clause of the First
Amendment and, if so, “whether there is another inter-
pretation, not raising these serious constitutional con-
cerns, that may fairly be ascribed to” the statutory provi-
sion.36 In DeBartolo II, the Court applied this rule of

36 DeBartolo II, supra, 485 U.S. at 577. Member Schaumber notes
that the Board has stated that reliance on constitutional avoidance prin-
ciples improperly “arrogate[s] to this [agency] the power to determine
the constitutionality of mandatory language in the Act we administer
. . . [A] power that the Supreme Court has indicated we do not have.”
Handy Andy, Inc., 228 NLRB 447, 452 (1977); see also Hudgens v.
NLRB, 424 U.S. 507 (1976) (in which the Supreme Court castigated the
Board for venturing into a First Amendment analysis, rather than apply-
ing the terms of the Act). While the Board’s statement in Handy Andy
may be interpreted as too categorical, in Member Schaumber’s view,
the majority’s analysis demonstrates all too clearly the danger of an
administrative agency invoking constitutional avoidance principles.
construction in holding that peaceful secondary handbill-
ing is not coercive and therefore does not violate Section
8(b)(4)(ii)(B). In earlier cases, the Court found that no
constitutional concerns were raised by holding that sec-
ondary picketing was violative of Section 8(b)(4).37 De-
Bartolo II did not disturb these findings. Thus, even as-
suming arguendo that the Board, as an administrative
agency, must engage in the same constitutional analysis
used in DeBartolo II by the high court, no constitutional
issue is raised by barring secondary bannering to the
same extent as traditional secondary picketing because
the differences between the two activities are legally in-
significant, as we have explained.38
Furthermore, we disagree with our colleagues’ inter-
pretation of the Supreme Court’s rulings about the
breadth of First Amendment protections involved here.
For instance, while they correctly state that the Supreme
Court struck down the particular cross-burning law at
issue in Virginia v. Black, 538 U.S. 343 (2003), the Court
also held that states could constitutionally ban cross-
burning when done with the intent to intimidate. Section
8(b)(4)(ii)(B) is addressed to confrontational union con-
duct that “threatens, coerces, or restrains,” i.e., obviously
including conduct that intimidates. More importantly,
none of the individual free speech cases cited by our col-
leagues involves economic regulation, in which the Court
has recognized a substantial governmental interest justi-
fying some constraints on First Amendment freedoms,

Rather than construe the text as written and impart the Board’s exper-
tise and experience in assessing the coercive impact of secondary activ-
ity, the majority is able, under the guise of constitutional avoidance
principles, to effectively reverse decades of Board precedent and nar-
rowly construe statutory text to permit coercive secondary conduct
Congress sought to outlaw.
37 Safeco, supra at 616; Electrical Workers v. NLRB, 341 U.S. 694,
705 (1951).
38 Member Schaumber observes that the First Amendment does not
shield the coercive bannering in this case for the further reason that it
falsely and fraudulently claimed that the Respondent had a labor dis-
pute with the neutral employers. By displaying the banners in a manner
that would cause most, if not all, readers to be misled into believing
that the Respondent had a primary labor dispute with the neutrals, the
Respondent crossed the line separating protected hyperbole from
fraudulent misrepresentation. San Antonio Community Hospital v.
Carpenters Southern California District Council, supra, 125 F.3d at
1236–1237. As such, the fraudulent nature of the banners’ messages
remove them from any First Amendment protection. Id.; see also
Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003)
(“the First Amendment does not shield fraud”); Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)
(“fraudulent misrepresentations can be prohibited”). This is especially
true in the labor context, where as noted above, Board law consistently
requires unions to carefully distinguish between the primary employer
and neutrals in their communications.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 821
particularly in the “special context of labor disputes.”39
In this respect,

[G]overnmental regulation that has an incidental effect
on First Amendment freedoms may be justified in cer-
tain narrowly defined instances. See United States v.
O’Brien, 391 U.S. 367. A nonviolent and totally vol-
untary boycott may have a disruptive effect on local
economic conditions. This Court has recognized the
strong governmental interest in certain forms of eco-
nomic regulation, even though such regulation may
have an incidental effect on rights of speech and asso-
ciation. See Giboney v. Empire Storage & Ice Co., 336
U.S. 490; NLRB v. Retail Store Employees, 447 U.S.
607. . . . Secondary boycotts and picketing by labor un-
ions may be prohibited, as part of “Congress’ striking
of the delicate balance between union freedom of ex-
pression and the ability of neutral employers, employ-
ees, and consumers to remain free from coerced par-
ticipation in industrial strife.” NLRB v. Retail Store
Employees, supra, at 617-618 (BLACKMUN, J., con-
curring in part). See Longshoremen v. Allied Interna-
tional, Inc., 456 U.S. 212, 222–223, and n. 20.40

Clearly, both bannering and picketing involve ele-
ments of speech. However, the expressive element rep-
resented by the brief, obtuse, and misleading written
message on a union banner–such as “Don’t Eat RA
Sushi” in one of the cases before us–is less than the ex-
pressive element in picket signs, usually accompanied by
vocal protests, and it is certainly less than in handbills.
Even if the banner’s message is entitled to some weight
under the First Amendment’s protections for free speech,
it does not warrant greater weight than in traditional sec-
ondary picketing situations. Because the confrontational
conduct element in secondary bannering predominates
over the speech element, we may find it unlawful under
Section 8(b)(4) without raising any serious concern for
impairment of the freedom of speech.

39 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 763 fn. 17 (1976).
40 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912 (1982).
The majority characterizes the Court’s description of the scope of con-
stitutional protection for boycott activity in the labor context as “dic-
tum” and demands that it be read narrowly. We believe the Court’s
discussion of its own precedent is entitled to greater weight than the
majority acknowledges. And while our colleagues also note the
Court’s caution that governmental regulation that has an “incidental
effect on First Amendment freedoms” must restrict those freedoms no
more than is essential to the furtherance of the Government’s interest in
imposing such regulation, id. at 912 fn. 47, prohibiting secondary ban-
nering plainly furthers the important governmental interest in protecting
neutrals from “coerced participation in industrial strife.” Id. at 912.
Conclusion
Section 1 of the Act declares the national labor policy
of eliminating obstructions to commerce caused by labor
disputes. The Wagner Act sought to achieve that pur-
pose without imposing any restraint on unions’ use of
economic pressure to achieve secondary objectives. This
arrangement proved unworkable, and so Congress added
the Taft-Hartley amendments in 1947. Those amend-
ments, which were a response, in part, to abuses of union
power, brought needed balance to American labor rela-
tions and needed protection to neutral employers, their
employees, and customers.
Section 8(b)(4)(ii)(B) deprived unions of a substantial
weapon. No longer could they further their cause in a
dispute with a primary employer by picketing “‘to per-
suade customers of a secondary employer to cease trad-
ing with him in order to force him to cease dealing with,
or to put pressure upon the primary employer.’ Such
picketing spreads labor discord by coercing a neutral
party to join the fray.”41
Today, the majority puts that neutral party right back
into the fray. Ignoring decades of precedent establishing
that bannering is coercive, our colleagues hold that it is
mere persuasion and thus lawful. In the process, the ma-
jority reaches out to narrow the protection established by
Section 8(B)(4) through a new and narrow definition of
picketing and a startling new standard that exempts other
types of secondary activity from the Act’s reach unless it
causes or can be expected to cause some unknown quan-
tum of “disruption of the secondary’s operation.” Their
holding is not compelled by any construction of Section
8(b)(4) and its legislative history, nor by any valid con-
cerns about a conflict with First Amendment protections.
Our dissent is compelled by a serious concern that their
standard will assuredly foster precisely the evil of sec-
ondary boycott activity and expanded industrial conflict
that Congress intended to restrict by enacting Section
8(b)(4)(ii)(B). We will not be alone in finding this deci-
sion to be most troubling and ill-advised.
For all the foregoing reasons, we respectfully dissent.
APPENDIX A
The following companies are persons and/or employ-
ers engaged in commerce and in industries affecting
commerce within the meaning of the Act. They are
grouped by the location of the relevant bannering.
BANNER THUNDERBIRD MEDICAL CENTER
—Banner Health System (Banner Health), an Arizona
nonprofit corporation, with an office and place of business
in Phoenix, Arizona, has been engaged in the hospi-

41 Safeco, supra at 616 (internal citations omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
tal/health care business and owns and operates the Banner
Thunderbird Medical Center in Glendale, Arizona.

—Eliason & Knuth (E&K), a Nebraska corporation,
with an office and place of business in Phoenix, Arizona,
has been engaged as a contractor installing drywall, metal
studs and interior finishes in commercial and residential
construction projects at various job sites located through-
out Maricopa County, Arizona.

—Layton Construction Company of Arizona (Layton)
is an Arizona corporation with an office and place of busi-
ness in Phoenix. Banner Health engaged Layton to be the
general contractor on the remodeling of a building at its
Thunderbird Medical Center. Layton subcontracted with
E&K to perform construction work on this building.
NORTHWEST HOSPITAL
—Triad Hospitals, Inc. (Triad), a Delaware limited li-
ability corporation, owns and operates medical facilities in
17 states, including Northwest Hospital, LLC (Northwest
Hospital) in Tucson, Arizona and the Oro Valley Hospital
that was under construction in Oro Valley, Arizona.

—Delta/United Specialties (Delta), a Tennessee corpo-
ration, with an office and place of business in Memphis,
Tennessee, has been engaged as a contractor performing
interior finish work.

—Hardrock Concrete Placement Co. Inc. (Hardrock),
an Arizona corporation, with an office and place of busi-
ness in Phoenix, Arizona, has been engaged as a contractor
performing concrete work.

—Bovis Lend Lease, Inc. (Bovis), a Florida corpora-
tion has an office and place of business in Charlotte, North
Carolina. Triad engaged Bovis to be the general contrac-
tor for the constriction of its Oro Valley Hospital. Bovis
subcontracted with Delta and Hardrock to perform con-
struction work on this hospital.
RA TEMPE
—RA Sushi Holding Corporation (RA Sushi), a
Delaware corporation, is a wholly owned subsidiary
of Benihana National Corporation (Benihana), also a
Delaware corporation. RA Sushi owns RA San
Diego Corporation, a Delaware corporation, which is
engaged in the restaurant business and was con-
structing the RA San Diego restaurant in San Diego,
California. RA Sushi also owns RA Tempe Corpo-
ration (RA Tempe), a Delaware corporation, which
operated a restaurant in Tempe, Arizona.

—Enterprise Interiors, Inc. (Enterprise), a California
corporation, with an office and place of business in Or-
ange, California, has been engaged as a contractor per-
forming interior finish work.

—R.D. Olsen Construction (R.D. Olsen) is a Califor-
nia limited partnership with an office and place of business
in Irvine, California. Benihana, the parent of RA Sushi
Holding, engaged R.D. Olsen to be the general contractor
for the construction of the RA San Diego restaurant. R.D.
Olsen subcontracted with Enterprise to perform construc-
tion work on this restaurant.
APPENDIX B
The specific circumstances of the bannering at each location
were as follows:
(1) Banner Medical
At the Thunderbird Medical Center, where primary employer
E&K was engaged as a construction subcontractor in a building
remodeling project, the Union displayed a banner measuring 16
feet by 3 feet with the inscription “SHAME ON BANNER
THUNDERBIRD MEDICAL CENTER” in large letters in the
center of the banner, flanked on the left and right sides with the
words “LABOR DISPUTE” in smaller letters. Two to three
union representatives held the banner and distributed handbills
to pedestrians who asked about the banner. The banner was
erected on a public sidewalk in front of Banner Medical’s park-
ing lot, approximately 80 feet from the entrance to the parking
lot and 510 feet from the front door of the Thunderbird Medical
Center, facing automobile traffic on a public street.
Banner Health owns and operates the Thunderbird Medical
Center.
(2) Northwest Hospital
At the location of neutral Northwest Hospital, the Union dis-
played two banners with the inscription “SHAME ON
NORTHWEST MEDICAL CENTER” in large letters in the
center of the banner, flanked on the left and right sides with the
words “LABOR DISPUTE” in smaller letters. Both banners
measured 20 feet by 3 feet and were placed on public rights of
way facing automobile traffic on public streets. Two to three
union representatives held each banner and had handbills avail-
able to distribute to pedestrians who inquired about the banner.
One of the banners was displayed 1,050 feet from a vehicle
entrance to Northwest Hospital and the other banner was dis-
played 450 feet from a vehicle entrance to the facility and 300
feet from its front door entrance. The primary employers, Delta
and Hardrock, were never present at Northwest Hospital during
the bannering. They were working 11 miles away at the Oro
Valley Hospital construction project, which was owned by
Northwest Hospital’s parent corporation, Triad.
(3) RA Tempe
The bannering in the third case took place at the RA Tempe
restaurant in Tempe, Arizona. The banner displayed at this
neutral site measured 15 feet by 3 feet. It was set up on the
curb side of a public sidewalk - i.e., immediately adjacent to the
street - 15 feet from the restaurant’s front door entrance, facing
away from the entrance and towards the street. Two to three
union representatives held the banner and distributed handbills
to interested passersby. Rather than declaring shame on this
neutral employer, the banner stated “DON’T EAT RA SUSHI”
with the “LABOR DISPUTE” wording on both sides. The
primary employer, Enterprise, was never present while the
bannering took place at RA Tempe. Rather, Enterprise was
performing construction work at the RA San Diego restaurant,
which was owned by RA Sushi, the entity that also owned RA
Tempe.
CARPENTERS LOCAL 1506 (ELIASON & KNUTH OF ARIZONA) 823
APPENDIX C
The text of the handbills distributed at the RA Sushi restau-
rant:
SHAME ON R A SUSHI
FOR DESECRATION OF THE AMERICAN
WAY OF LIFE

A rat is a contractor that does not pay all of its employees pre-
vailing wages, including either providing or making payments
for health care and pension benefits.

Shame on R A Sushi for contributing to erosion of area stan-
dards for San Diego carpenter craft workers. Carpenters Lo-
cal 1506 has a labor dispute with Enterprise that is a subcon-
tractor for R D Olsen on R A Sushi’s newest restaurant. En-
terprise does not meet area labor standards, including provid-
ing or paying for health care and pension to all its carpenter
craft employees.

Carpenters Local 1506 objects to substandard wage employ-
ers like Enterprise working in the community. In our opin-
ion the community ends up paying the tab for employee
health care and because low wages tend to lower general
community standards, thereby encouraging crime and other
social ills.

Carpenters Local 1506 believes that the R A Sushi has
an obligation to the community to see that area labor
standards are met when doing their construction work.
They should not be allowed to insulate themselves be-
hind “independent” contractors.
PLEASE CALL R A SUSHI AT [phone number] AND
TELL THEM THAT YOU WANT THEM TO DO ALL
THEY CAN TO CHANGE THIS SITUATION AND
SEE THAT AREA LABOR STANDARDS ARE MET
FOR CONSTRUCTION WORK DONE AT THEIR
FACILITIES.

The members and families of Carpenters Local 1506
thank you for your support. Call [phone number] for fur-
ther information.

WE ARE NOT URGING ANY WORKER TO
REFUSE TO WORK NOR ARE WE URGING ANY
SUPPLIER TO REFUSE TO DELIVER GOODS.