Held Properties, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 5, 2005

31-CC-002126 (N.L.R.B. Apr. 5, 2005)

JD(SF)–29–05
Los Angeles, California

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

SOUTHWEST REGIONAL COUNCIL OF CARPENTERS
AND ITS LOCAL 1506

and Case 31-CC-2126

HELD PROPERTIES, INC.

SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS AND ITS LOCAL 209

and Case 31-CC-2127

HILTON HOTELS CORPORATION

Katherine Braun Mankin, Esq.,
of Los Angeles, California, for the General Counsel.

Daniel M. Shanley, Esq., DeCarlo & Connor,
of Los Angeles, California, for the Respondents.

Charles H. Goldstein, Esq., and Jonathan A. Goldstein, Esq.
Goldstein & Petito,, of Los Angeles, California
for Charging Party Held Properties, Inc.

Mark Theodore, Esq., and Adam C. Abrahms, Esq.
Proskauer Rose, of Los Angeles, California,
for Charging Party Hilton Hotels Corporation.

DECISION

Statement of the Case

CLIFFORD H. ANDERSON, Administrative Law Judge. I heard the above-captioned
case in trial on October 19, 2004, in Los Angeles, California, pursuant to an order consolidating
JD(SF)–29–05
Los Angeles, California

cases and notice of hearing issued by the Regional Director of Region 31 of the National Labor
Relations Board on August 17, 2004.1

The two instant complaints arose as follows: On April 2, 2004, Held Properties, Inc. (the
Charging Party Held) filed a charge with the Board docketed as Case 31-CC-2126 against the
Southwest Regional Council of Carpenters (Respondent Counsel) and its Local 1506
(Respondent Local 1506). The Regional Director for Region 31 of the National Labor Relations
Board (the Director) issued a complaint respecting the charge on April 29, 2004.

On April 7, 2004, the Hilton Hotels Corporation (Charging Party Hilton and, together with
Charging Party Held, the Charging Parties) filed a charge with the Board docketed as Case 31-
CC-2127 against Southwest Regional Council of Carpenters and its Local 1506 (Respondent
Local 209 and, together with Respondent Council and Respondent Local 1506, the
Respondents). The Director issued a complaint respecting the charge on May 14, 2004.

The Respondents filed timely answers to the complaints. As will be set forth in
significant detail below, the consolidated complaints allege and the answers deny that
Respondents at various time and places in the Los Angeles areas, violated Section 8(b)(4)(ii)(B)
of the National Labor Relations Act (the Act) by means of the display of large banners.

Findings of Fact

Upon the entire record herein, including helpful briefs from the Respondents, the
General Counsel, and Charging Parties Held and Hilton, I make the following findings of fact.2

I. Jurisdiction3

Charging Party Held, with an office and primary place of business at 1880 Century Park
East, Suite 500, Los Angeles, California, has been engaged in business as a property
management, real estate brokerage and a licensed contractor. At all relevant times it has
annually purchased and received goods, supplies, and materials valued in excess of $50,000
from sources located outside the State of California and enjoyed gross revenues in excess of
$1,000,000.

Charging Party Hilton, with an office and primary place of business at 9335 Civic Center
Drive, Beverly Hills, California, has been engaged in the hotel business. At all relevant times it
1 The order consolidated five additional complaints filed by charging parties not involved
herein. Those cases were severed at the hearing and subsequently have not been and are not
now part of the instant consolidated matter. The instant matter was scheduled for additional
days of trial in February 2005 however the parties reached agreement on stipulated facts
obviating the need for further hearings and submitted a joint motion to receive stipulations, close
the record and set time for the filing of post-hearing briefs. I granted the motion on
February 17, 2004. The due date for submission of post-hearing briefs was March 23, 2005.
Charging Party Hilton filed a motion for summary judgment respecting Case 31-CC-2127
with the Board which the Board denied on October 18, 2004.
2 As a result of the pleadings, substantial individual written stipulations covering each
charge, and additional post hearing stipulations, there were few disputes of fact regarding
collateral matters. No witnesses testified. Where not otherwise noted, the findings herein are
based on the pleadings and the stipulations.
3 All jurisdictional facts were stipulated and Board jurisdiction was admitted by all parties.

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has annually purchased and received goods, supplies, and materials valued in excess of
$50,000 from sources located outside the State of California and enjoyed gross revenues in
excess of $500,000.

Based on the above, there is no dispute and I find the Charging Parties, and each of
them, are, and have been at all times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

II. Labor Organizations

The record establishes, there is no dispute, and I find that each of the Respondents is a
labor organization within the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. Evidence4

For ease of understanding, the events respecting each Charging Party will be set forth
separately.

1. Charging Party Held – Case 31-CC-2126

Commencing in or about February 2003, pursuant to a lease agreement between Held
and its tenant Mercantile National Bank (the Bank), Held was engaged as a general contractor
to perform and oversee commercial construction work at the office building located at 1880
Century Park East, Los Angeles, California (the Bank jobsite). During the period April 1, 2004,
through mid-August 2004, the Bank conducted its business operations at 1840 Century Park
East, Los Angeles, California (the Bank’s original location). In mid-August 2004, the Bank
moved its business operations to the Bank jobsite.

Under the terms of the lease with the Bank, Held selected the subcontractors to perform
construction work at the Bank jobsite. In connection with the construction at the Bank jobsite,
Held, as the general contractor, engaged Gingerich Construction (Gingerich) as a subcontractor
to perform drywall services at the Bank jobsite. Held, the Bank and Gingerich are, and have
been at all material times, persons engaged in commerce or in an industry affecting commerce
within the meaning of Section 8(b)(4)(B) of the Act.

At all material times, the Respondents were not recognized or certified as the collective-
bargaining representatives of any employees employed by Held or the Bank, nor have the
Respondents demanded recognition as the collective-bargaining representative of or sought to
organize any employees employed by Held or the Bank.

The Respondents do not dispute the wages paid by Held or the Bank to their employees.
The Respondents primary labor dispute is with Gingerich. The Respondents do dispute the
wages paid by Gingerich to its employees who were working on Held’s, the Bank’s and other
projects.

4 The evidence set forth herein is taken essentially verbatim from the stipulations of the
parties.

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At all material times Mr. Rich Whittey is and has been a business representative
employed by the Respondent Council. At all material times Rich Whittey has been an agent of
Respondent Council within the meaning of Section 2(13) of the Act. Mr. Whittey is, at times an
agent of Local 1506. He is not an officer of Respondent Local 1506. He receives no
compensation from Respondent Local 1506. His full salary is paid by Respondent Council. The
Respondent Local 1506 did not and does not reimburse Respondent Counsel when he spends
time performing work for Local 1506.

On March 30, 2004, Charging Party Held, by its legal representative, sent Whittey a
letter stating in part:

This letter is to put you and your Union on notice that Gingerich is not working at 1880
Century Park East having left the premises shortly after your Union began picketing.
Any work performed by Gingerich will be performed during the evening hours between
8 p.m. and 6 a.m. Therefore, if your Union is solely interested in influencing Gingerich
and not Held Properties you should hereafter conduct your picketing activities during the
hours when Gingerich is coming to or leaving the job site or working at the job site.

From on or about April 1, 2004, and continuing through mid-August 2004, Respondent
Local 1506 began displaying at the jobsite a banner approximately 20 by 4 feet in size. The
banner was white with “SHAME ON MERCANTILE NATIONAL BANK” appearing in capital
letters approximately two feet high in red. At both ends of the banner, the words “LABOR
DISPUTE” appear in black capital letters approximately one foot high.

The banner was displayed four days a week from approximately 9 a.m. to 2 p.m. The
banner was accompanied by two to three individuals who were either members of or employed
by Respondent Local 1506.

The banner was located at all times on the sidewalk of Century Park East, Los Angeles,
California, on the west side of the street, opposite and 174 feet diagonally northwest of the
jobsite and 167 feet diagonally southwest of the Banks original location.

Employees and visitors to the offices located in the same building as the jobsite may
enter the building by the front door or from the parking structure, which has a rear entrance
directly into the building. There is one driveway leading to the parking structure for the jobsite.
This driveway is located on Century Park East adjacent to and immediately south of the
building. The parking structure is located behind the jobsite.

At all relevant times, construction employees were allotted parking spaces in the parking
structure. Anyone entering from the North must pass directly in front of the banner. Anyone
entering from the South will not pass directly in from of the banner but will see it. Century Park
East is a major thoroughfare in Century City, which is a densely commercial section of West Los
Angeles, with numerous high-rise buildings with professional legal, accounting and commercial
offices. The Century City Westfield Shopping Mall, a large commercial center with shops,
restaurants, and theatres, is adjacent to the office buildings.

At all material times, the banner was held stationary and upright by the banner bearers,
with the bottom of the banner touching the ground. The banner did not have “feet” and could
not stand upright on its own. Once the banner was erected at the beginning of the day, it did
not move, but remained stationary at the particular place on locations, until it was taken down at
the end of the day. The banner was accompanied by the number of bearers required to
physically hold it up and take staggered breaks, normally three in number, who remained

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stationary at all times during the display, except during their breaks. The banner bearers also
had handbills available. The General Counsel does not contend that the factual representations
made in the handbill are either false or true. The General Counsel does not contend that the
handbill or its distribution violates the Act. However this does not reflect the position of the
Charging Parties.

The handbills were captioned: “SHAME ON MERCANTILE NATIONAL BANK For
Desecration of the American Way of Life [Capitalization in the original.]” Under the caption was
the political cartoon-style, hand-drawn image of a rat eating the American Flag. Under the
image, the text stated:

A rat is a contractor that does not pay all of its employees prevailing wage, including
either providing or making payments for health care and pension benefits. Employees
who work for a rat contractor are also rats.

Mercantile National Bank is developing, owns, manages or will be a tenant at 1880
Century Park East, in the city of Los Angeles. Held Properties is generally in charge of
construction at this project. Held Properties has contracted with Gingerich Drywall to
do the drywall work. Gingerich Drywall does not meet area labor standards for work-
they do not pay prevailing wages to all of their employees during that work, including
fully paying for family health care and pensions.

Carpenters Local 1506 objects to substandard employers like Gingerich Drywall
working in the community. In our opinion the community ends up paying the tab for
employee health care and the low wages paid tend to lower general community
standards, thereby encouraging crime and other social ills.

Carpenters Local 1506 believes that Mercantile National Bank has an obligation to the
community to see that contractors who perform work on buildings they develop, own,
manage or lease meet area standards. They should not be allowed to insulate
themselves behind “independent” contractors. For this reason Local 1506 has a labor
dispute with all these companies.

PLEASE CALL [name omitted] PRESIDENT AND CEO OF MERCANTILE NATIONAL
BANK AT [telephone number omitted] AND TELL HIM THAT YOU WANT THE
COMPANY TO DO ALL IT CAN TO CHANGE THIS SITUATION AND SEE THAT
CONTRACTORS WHO PERFORM CONSTRUCTION WORK ON BUILDINGS THEY
DEVELOP MEET AREA LABOR STANDARDS.

The members and families of Carpenters Local 1506 thank you for your support. Call
[telephone number omitted] for further information. [Capitalization and bolding in
original.]

At all material times, the banner holders did no more than hold up the banner and/or give
handbills. They did not engage in chanting, yelling, marching, or similar conduct. At all material
times, the banner holders did not physically block the ingress or egress of any person wishing to
enter or leave the jobsite.

The Respondents admit that the placement of the banner was selected so as to
maximize exposure to the general public and all persons, including passing motorists and
pedestrians, who might be in the area.

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The parties February 2005 stipulation of facts further stipulates that the Respondent
Council along with Respondent Local 1506 is responsible for all the banners displayed as
described above.
2. Charging Party Hilton – Case 31-CC-2127

Commencing on or about January 19, 2004, the Mian Corporation (Mian), a franchisee
of Respondent Hilton, engaged R.D. Olsen (Olsen) to act as general contractor to perform
construction work at 2000 Solar Drive, Oxnard, California (the Oxnard jobsite). In connection
with the construction, Olsen engaged Covi Construction (Covi) to perform various construction
services, including pouring concrete, at the Oxnard jobsite. Hilton has no contract with Covi and
receives no services, directly or indirectly, from Covi. Hilton has no legal authority or ability to
select or control the contractors or subcontractors which Mian selects for any construction at the
Oxnard jobsite. Hilton, Mian, Olsen and Covi are, and have been at all material times, persons
engaged in commerce or in an industry affecting commerce within the meaning of Section
8(b)(4) of the Act.

At all material times, the Respondents were not recognized or certified as the collective-
bargaining representatives of any employees employed by Hilton, Mian or the Olsen, nor have
the Respondents demanded recognition as the collective-bargaining representative of or sought
to organize any employees employed by Hilton, Mian or the Olsen.

The Respondents do not dispute the wages paid by Hilton, Mian or Olsen to their
employees. The Respondents primary labor dispute is with Covi. Covi has no employees
working on any Hilton-owned projects. The Respondents do dispute the wages paid by Covi to
its employees who were working on Mian’s, Olsen’s and other projects.

Beginning on April 2, 2004, and continuing until approximately late September 2004,
Respondent Local 209 displayed, at the location described below, a banner approximately 20 by
4 feet in size. The banner was white with “SHAME ON HILTON CORPORATION” appearing in
capital letters approximately two feet high in red. At both ends of the banner , the words
“LABOR DISPUTE” appear in black capital letters approximately one foot high. The parties
agree Respondent Local 209 is responsible for displaying the banner and other conduct
described in this section.

The banner was displayed four days a week, Tuesday through Friday, from
approximately 9:00 a.m. to 3:00 p.m. The banner was accompanied by two to three individuals
who were either members of or employed by Respondent Local 209. The banner was located
at all times on the sidewalk immediately in front of Hilton’s Worldwide Headquarters located at
9335 Civic Center Drive, Beverly Hills, California, between the walkway that leads to the front
door of the building and the entrance to the driveway that leads to Charging Party Hilton’s
parking lot. The banner was located between 3-22 feet from the driveway and approximately 20
feet from the edge of the walkway and 100 feet from the front door of Charging Party Hilton’s
office building.

The driveway is used by Charging Party Hilton’s visitors and employees. The banner
was located such that all employees, customers and visitors would have to either walk or drive
past the banner and banner bearers to enter or exit the Hilton Worldwide headquarters. No
construction is taking place at the site of the bannering. The banner location is approximately
55 miles from the Oxnard jobsite. No representative, agents, or employees of Covi have ever
worked at or had business at Hilton World Headquarters.

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The location of the banner at the banner site was such that all pedestrians and drivers
and passengers in vehicles seeking to enter Hilton’s Worldwide Headquarters would have to
pass by the banner, and also so that all individuals traveling in either direction in the vicinity of
9335 Civic Center Drive, Beverly Hills, California would see it.

At all material times, the banner was held stationary and upright by the banner bearers.
The banner could not stay upright on its own. Once the banner was erected at the beginning of
the day, it did not move, but remained stationary at the particular place on location, until it was
taken down at the end of the day. The banner bearers also had handbills available. The
handbills were distributed only to those who inquired. The General Counsel does not contend
that the factual representations made in the handbill are either false or true. The General
Counsel does not contend that the handbill or its distribution violates the Act.

The handbills were captioned: “SHAME ON Hilton Corporation For Desecration of the
American Way of Life [Capitalization in the original.]” Under the caption was the political
cartoon-style, hand-drawn image of a rat eating the American Flag. Under the image, the text
stated:

A rat is a contractor that does not pay all of its employees prevailing wage, including
either providing or making payments for health care and pension benefits. Employees
who work for a rat contractor are also rats.

Shame on the Hilton Hotel Corporation who is franchising the Hilton Garden Inn
owned by Mian Corporation, located in the city of Oxnard, for contributing to erosion of
area standards for carpenter craft workers. Covi Concrete is a sub contractor for
general contractor R D Olsen on the Hilton Garden Inn in Oxnard. Covi does not meet
area labor standards for all its carpenter craft workers, including fully paying for family
health care and pensions.

Carpenters Local 209 objects to substandard employers like Covi working in the
community. In our opinion the community ends up paying the tab for employee health
care and the low wages paid tend to lower general community standards, thereby
encouraging crime and other social ills.

Carpenters Local 209 believes that Hilton Hotel Corporation has an obligation to the
community to see that area standards are met for construction work at all their projects,
including any future work. They should not be allowed to insulate themselves behind
“independent” contractors. For this reason Local 209 has a labor dispute with all the
companies named here.

PLEASE TELL THE HILTON HOTEL CORPORATION THAT YOU WANT THEM TO
DO ALL THEY CAN TO CHANGE THIS SITUATION AND SEE THAT AREA LABOR
STANDARDS ARE MET FOR CONSTRUCTION WORK ON FRANCHISED HOTELS.

The members and families of Carpenters Local 209 thank you for your support. Call
[telephone number omitted] for further information.
[Capitalization and bolding in original.]

The banners were accompanied by the number of bearers required to physically hold
them up and take staggered breaks, normally three in number, who remained stationary at all
times during the display doing so, except during their breaks. At all material times, the banner
holders did no more than hold up the banner and give fliers to any interested member of the

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public. At no material time did the banners physically block the ingress or the egress of any
person wishing to enter or leave Hilton Worldwide Headquarters.

Respondent 209 admits that the placement of the banner was selected so as to
maximize exposure to the general public and all persons, including passing motorists and
pedestrians, who might be in the area.

At all material times, Mr. Hal Jensen is and has been a business representative
employer by the Respondent Counsel. At all times Jensen has been an agent of Respondent
Local 209 within the meaning of Section 2(13) of the Act. He receives no compensation from
Local 209. His full salary is paid by the Respondent Counsel. Respondent Local 209 did not
and does not reimburse the Respondent Counsel when Jensen spends time performing work for
Local 209.

On or about April 2, 2004, Jensen had a telephone conversation with Charging Party
Hilton’s attorney, Adam Abrahms, regarding the banner at the banner site. During this
telephone conversation, Jensen was informed that Hilton did not have the authority or ability to
affect any dispute with Covi, nor could it control which contractors and subcontractors Mian
selected. Jensen also stated that he had the authority to remove the banner and that if Hilton
were able to “get rid” of Covi, they would pull it down.

The parties’ February 2005 stipulation of facts further stipulates that the Respondent
Council along with Respondent Local 209 is responsible for all the banners displayed as
described above.

B. Complaint Allegations

1. Charging Party Held – Case 31-CC-2126

The General Counsel’s complaint in Case 31-CC-2126 at paragraph 6 alleges that
Respondent Counsel and Respondent Local 1506’s display of their banner, as described above,
constitutes signal picketing and fraudulent unprotected speech. Complaint paragraphs 7 and 8
further allege that the bannering threatened, coerced and restrained Charging Party Held and/or
the Bank and other persons engaged in commerce or in industries affecting commerce and that
an object of Respondent Counsel and Respondent Local 1506’s conduct was to force or require
Charging Party Held and/or the Bank and other persons to cease doing business with
Gingerich. Finally the complaint alleges that by these actions Respondent Counsel and
Respondent Local 1506 are engaging in conduct within the meaning of Section 8(b)(4)(ii)(B) of
the Act.

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2. Charging Party Hilton – Case 31-CC-2127

The General Counsel’s complaint in Case 31-CC-2127 at paragraph 6 alleges that
Respondent Counsel and Respondent Local 209’s display of their banner, as described above,
constitutes signal picketing and fraudulent unprotected speech. Complaint paragraphs 7 and 8
further allege that the bannering threatened, coerced and restrained Charging Party Hilton
and/or Mian and/or RD Olsen and other persons engaged in commerce or in industries affecting
commerce, and that an object of Respondent Local 209’s conduct was to force or require
Charging Party Hilton and/or Mian and/or RD Olsen and other persons to cease doing business
with Covi Concrete. Finally the complaint alleges that by these actions Respondent Counsel
and Respondent Local 209 are engaging in conduct within the meaning of Section 8(b)(4)(ii)(B)
of the Act.

C. Analysis and Conclusions

1. Simple Overview of the Applicable Law

The United States Constitution’s First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.

The activities of labor organizations in engaging in various forms and types of picketing,
handbilling and other actions contain different mixtures of speech and non-speech conduct.
Congress in Sections 8(b)(4) and 8(b)(7) of the Act has regulated labor organization conduct in
various ways. All federal law, including the National Labor Relations Act, must be viewed with
the “free speech” protection of the First Amendment in mind. This is so because the Supreme
Court has established as a cardinal principle or rule of statutory construction that where an
otherwise acceptable construction of a statute would raise serious constitutional problems, the
Court will construe the statute to avoid such problems unless such construction is plainly
contrary to the intent of Congress. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

Section 8(b)(4)(ii)(B) of the Act reads, in part, as follows:

Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents . . . .

(4)(ii) To threaten, coerce, or restrain any person engaged in commerce or in a
business affecting commerce where . . . an object thereof is . . . .

(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the product of any other producer,
processor, or manufacturer, or to cease doing business with any other
person . . . . Provided, That nothing contained in this clause (B) shall be
construed to make unlawful, where not otherwise unlawful, any primary
strike or primary picketing . . . .

Provided Further, That for the purpose of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public . . . of . . . a primary
labor dispute . . . .

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The statutory language has been characterized by the Court as reflecting “the duel
congressional objectives of preserving the right of labor organizations to bring pressure to bear
upon offending employers in primary labor disputes and of shielding unoffending employers and
others from pressure in controversies not their own.” NLRB v. Denver Building Trades Council,
341 U.S. 675, 692 (1951).

As the quoted language of the Act provides there are separate elements necessary to
establish a violation of Section 8(b)(4)(ii)(B). First, a labor organization must engage in conduct,
which threatens, coerces or restrains. Picketing, a traditional means of expression by a labor
organization has been found coercive in a variety of settings and circumstances. Not all labor
organization conduct is threatening, coercive, or restraining within the meaning of Section
8(b)(4)(ii)(B). Thus in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and
Construction Trades Council (DeBartolo II), 485 U.S. 568 (1988), the Court held that the
peaceful distribution of handbills by a labor organization without any accompanying picketing or
patrolling, was not coercive and therefore did not violate Section 8(b)(4) of the Act.

A necessary element of a violation of this section of the Act is that the conduct at issue is
prohibited secondary as opposed to the permitted primary picketing. The case law and analysis
respecting “secondary” versus “primary” activity is famously complex and a very substantial
body of case law deals with these issues.

Another aspect or element of a violation of Section 8(b)(4) of the Act deals with the labor
organizations motive or object. By the terms of the statute, an object of the conduct must be to
force or require any person to cease dealing with or doing business with any other person.
Electrical Workers Local 761 v. NLRB, 366 U.S. 667, 673 (1961); Food & Commercial Workers
Local 1776 (Carpenters Health Fund), 334 NLRB 507 at 507 (2001); Service Employees Local
87 (Trinity Maintenance), 312 NLRB 715, 742-743 (1993).

Finally, the second proviso, or “Provided Further” language of the statute quoted above,
makes it clear that “publicity, other than picketing, for the purpose of truthfully advising the
public . . . of . . . a primary labor dispute” may not be prohibited by and therefore is not a
violation of Section 8(b)(4) of the Act. Yet another body of law addresses this distinction.

2. Positions of the Parties

a. The Nature of the Conduct Involved

The General Counsel and Charging Parties argue that the incidents of bannering
engaged in by Respondents as alleged in the complaints and described above were within the
prohibitions of Section 8(b)(4)(ii)(B) of the Act. Legally equivalent or akin to picketing, they
argue, Respondent’s bannering conduct is coercive and restrained persons admittedly engaged
in commerce or in a business affecting commerce. Further, they argue the impermissible object
of the conduct is essentially admitted and in all events on the stipulated facts must be found
under well established law to constitute conduct, which, under the terms of the statute,
attempted to force or require the persons involved to cease doing business with the other
named persons.

The Respondents do not attempt to defend their actions under a “picketing” analysis.
Rather, the Respondents challenge the government’s initial characterization of the conduct.
Thus, the Respondents argue their actions were not picketing but were rather simply a benign
display of stationary banners. And, as such, they argue the conduct was non-coercive within the

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meaning of Section 8(b)(4)(ii)(B) of the Act and, further, was not conduct that Congress meant
to prohibit in passing this portion of the statute into law. The Respondents seek to analogize the
conduct involved here as not picketing but rather more like the maintenance of a billboard
publicizing a labor dispute, an action the General Counsel has conceded in related cases to be
without the prohibitions of the Act. In making this argument the Respondents advance the
Court’s decision in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction
Trades Council (DeBartolo II), 485 U.S. 568 (1988).

b. The Decisional History of the Issue and the Question of Binding Precedent

Apparently the bannering at issue herein has been undertaken by various Carpenters’
locals in recent times and a number of such occurrences have been the subject of actions under
the Act. All the parties have cited earlier determinations in cases quite similar to those before
me. Each side advances the determinations favorable to its position as conclusive while
discounting or dismissing contrary findings. It is appropriate to review the holdings cited.

The stipulations of the parties respecting each charge and allegation contains the
statement:

[The] Respondent asserts that, in engaging in and/or maintaining the conduct described
above, it relied on two memoranda from the office of the General Counsel, Division of
Advice: United Brotherhood of Carpenters (Best Interiors), 1997 WL 731444 (Advice
memo, March 13, 1997) and Rocky Mountain Regional Conference of Carpenters
Standard Drywall), 2000 WL 174630 (Advice memo, April 3, 2000), as well as the
decisions in Kohn v. Southwest Regional Council of Carpenters, 289 F. Supp. 2d 1155
(C.D. CA 2003) and Overstreet v. Carpenters Union Local 1506, 2003 U.S. Dist. LEXIS
19854 (S.D. CA 2003).

On brief counsel for the Respondents cites a third District Court decision: Benson v. United
Brotherhood of Carpenters and Joiners of America, Locals 184 and 1498, Case No. 2:04-CV-
00782 PGC (D Utah September 27, 2004).

In addition to the authorities cited immediately above, the “banner issue” at the heart of
the instant cases has been the subject of several administrative law judge unfair labor practice
decisions: Carpenters Locals 184 and 1498 (Grayhawk Development, Inc.) JD(SF)-02-
05(2005)(Judge James L. Rose); Carpenters Local Union No. 1506 (Sunstone Hotel Investors
LLC), JD(SF)-01-05 (2005)(Judge Clifford H. Anderson); Southwest Regional Council of
Carpenters, et al (New Star General Contractors, Inc.), JD(SF)-76-04 (2004)(Judge Gregory Z.
Meyerson); Southwest Regional Council of Carpenters, et al (Carnigan Construction Company),
JD(SF)-14-04 (2004)(Judge James M. Kennedy); Local Union No. 1827, United Brotherhood of
Carpenters And Joiners Of America (United Parcel Service), JD(SF)-30-03 (2003)( (Judge Lana
H. Parke); Southwest Regional Council of Carpenters (Held Properties): JD(SF)-24-04(2003)
(Judge Burton Litvack).

The cited decisions of the United States District Courts address the unfair labor practice
element of this case in the context of an action brought under Section 10(l) of the Act under
which the District Court is asked to make a finding that there is reasonable cause to believe that
Section 8(b)(4)(B) has been violated. In the cases cited, the United States District Courts were
not convinced that reasonable cause existed and made contrary finding that the bannering and
associated handbilling did not rise to the level of threats, coercion, or restraint within the
meaning of Section 8(b)(4)(b) of the Act. The decisions of the United States District Courts,
however, are not binding precedent on an administrative law judge deciding an unfair labor

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practice case, but they provide knowledgeable and experienced guidance on constitutional
issues by Article III Courts.

The cited decisions of the six administrative law judges have reached different results in
considering the arguments of the contending parties herein. These decisions however are not
binding on me and are, in fact, before the Board for decision on exceptions in each case. The
memoranda of the General Counsel’s Division of Advice are simply prosecutorial positions
which the General Counsel may modify or reverse. They also are not binding on me.

While none of the decisions and memoranda noted are binding on me, the legal analysis
of the various learned jurists and legal scholars, in the decisions and briefs submitted to me, in
their totality, skillfully illuminate a subtle area in a traditionally difficult area of the law. The issue
cries out for a definitive resolution by higher authority, which will doubtless soon be forthcoming.
In the meantime, given the as-yet-incomplete resolution of the question, it is necessary to
consider the arguments of the parties and reach a determination without guiding precedential
determination by higher authority.

3. The General Counsel’s Threshold Arguments

a. The Respondents’ Conduct Amounts to Signal Picketing

The General Counsel notes on brief at 10 that signal picketing describes “activity, short
of a true [traditional] picket line, which acts as a signal to neutrals that sympathetic action on
their part is desired by the union.” Iron Workers Local 433 (R.F. Erectors) v. NLRB, 598 F.2d
1154, 1158 n. 6 (9th Cir. 1979), enforcing 233 NLRB 283 (1977).” The General Counsel argues
that the large banners at issue herein, considering their highly visible location and their “flanking
agents” constitute a “similarity to a picket line [that] is not coincidental.” (GC brief at 12.) The
government further argues that the banner language using the term “labor dispute” and naming
only neutral employers sent out a “call to action” (GC brief at 12.) that signaled that they desired
a boycott of the named employers.

If the Board determines that certain conduct is a signal as described above, it evaluates
that conduct as if it had manifested in the traditional fashion, i.e. as if it were regular picketing.
On the facts of the instant cases, the General Counsel’s argument is that, since the banners are
but signals, any consideration of the complaint allegations respecting violations of Section
8(b)(4) of the Act should not founder on the fact that banners were displayed rather than
traditional patrolling pickets with signs. The General Counsel thus uses the term “signal” to
establish that the conduct is picketing rather than non-picketing conduct.

I reject the General Counsel’s signal picketing arguments herein. While there is no
doubt that the use of the term ranges through the decisional law without specific definition and
has been used more broadly, the origins of the doctrine, like the meaning of the word “signal”
itself, require a show or pretense, a mark, device or course of conduct carrying some special
meaning or import beyond what occurred. Thus cases involving a signal analysis often involve
prior arrangement between agents of a labor organization and jobsite employees to take action
when some agreed upon action is taken. Or non-traditional or non-picketing conduct occurs
which is found to be a pretense or device, which is understood to be and is reacted to by
employees on the site as if a traditional patrolling picket was present.

I do not find the banners at issue herein nor the conduct of the Respondents’ agents
attending them to either have engaged in actions or to have constituted in their physical
presence which constitute a signal in the sense described above. The banners simply are not a

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signal or pretense for any other union action or conduct. On this stipulated factual record, in
each separate case and situation as described above, I simply find none of the symbolic,
substitutional or prearranged elements required to make the bannering more than it appeared.
Rather, I find they simply are what the banners are and that the banners placed and maintained
by the Respondents must stand or fall on their own in the settings and circumstances of their
display as described in the factual stipulations, supra.

b. The Respondents’ Banners Contain Fraudulent and therefore Unprotected
Coercive Speech

The General Counsel argues on brief at 15 that the banners’ language was improper for
three reasons. First, the banners without exception failed to name the primary employer with
whom Respondent’s have their disputes and named only neutral employers. Second, the
banners “proclaimed the existence of labor disputes and painted the neutrals as deserving
‘shame’ from the community due to the dispute.” Third, the Respondents deceived the public
that they had labor disputes with neutral employers and either explicitly or implicitly requested
consumer boycotts of the neutrals. The General Counsel concludes: “This clearly amounted to
coercive ‘economic retaliation’ within the meaning of the Act.” (GC brief at 16.) The government
seeks by characterizing Respondent’s communications as fraudulent to defeat any argument
that the conduct was constitutionally protected.

The Respondents argue that the General Counsel simply does not understand the Act,
which explicitly by its terms makes it clear that a labor dispute may exist with a neutral or
secondary employer. Thus they point out that Section 2(9) of the Act defines a “labor dispute”
as including “. . . any controversy concerning terms, tenure, or conditions of employment . . .
regardless of whether the disputants stand in the proximate relation of employer and employee.”
The almost identical provision of the Norris-LaGuardia Act, 29 U.S.C. 113(c), has been
interpreted as covering “secondary” employers. Smith’s Management Corp. v. International
Brotherhood of Electrical Worker, Local Union No. 357, 737 F.2d 788 (9th Cir. 1984).

The Respondents further argue that the banners under challenge, which are designed to
be displayed to the motoring public cannot be expected to contain more than a short slogan and
that the absence on the banners of primary and secondary disputant distinctions are
unnecessary and impractical. Handbills were available to the public from the banner attendees
which, specify in detail the type and nature of the Respondents’ disputes with the various
employers and the employers’ relationships to one another.

While not determinative of the outcome herein, I agree with counsel for the Respondents
who has received the support of recent Federal District Court decisions in this regard, as cited
supra, that the banner references to “labor dispute” in association with the names of the neutrals
as described above are not fraudulent, but rather, true in the sense that they are consistent with
the quoted definitional language of Section 2(9) of the Act. I also find that the fact that the
Respondents’ agents standing with the banners had handbills available on request, which
explained the intricacies of the relationship of the employer and the Respondents, supports the
Respondents’ arguments here.

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4. The Heart of the Case - The Characterization of Banner Displays as Picketing or
Other Conduct

a. Arguments

As noted above, the use of virtually identical banners by various constituent locals of the
United Brotherhood of Carpenters and Joiners of America has produced a series of Section
8(b)(4)(ii)(B) unfair labor practice prosecutions and associated Section 10(l) proceedings in
United States District Courts. The results to date: Kohn v. Southwest Regional Council of
Carpenters, 289 F. Supp. 2d 1155 (C.D. CA 2003); Overstreet v. Carpenters Union Local 1506,
2003 U.S. Dist. LEXIS 19854 (S.D. CA 2003); and Benson v. United Brotherhood of Carpenters
and Joiners of America, Locals 184 and 1498, Case No. 2:04-CV-00782 PGC (D Utah
September 27, 2004), while divided in result, intermediate and not yet resolved in a definitive
precedential way, have served admirably to crystallize the heart of the issue in dispute. The
cases to date have hinged on the question of whether Respondents’ bannering conduct
qualifies under Section 8(b)(4)(ii) of the Act as conduct which would “threaten, coerce, or
restrain.”

The cases cited, supra, have considered and compared the conduct at issue with
patrolling pickets, hand billing and the maintenance of a billboard – all occurring with similar
language in similar locations. In the three District Court cases, Kohn v. Southwest Regional
Council of Carpenters, 289 F. Supp. 2d 1155 (C.D. CA 2003); Overstreet v. Carpenters Union
Local 1506, 2003 U.S. Dist. LEXIS 19854 (S.D. CA 2003); and Benson v. United Brotherhood of
Carpenters and Joiners of America, Locals 184 and 1498, Case No. 2:04-CV-00782 PGC (D.
Utah September 27, 2004), and in the ALJ decisions of Judge Rose in Carpenters Locals 184
and 1498 (Grayhawk Development, Inc.) JD(SF)-02-05(2005); Judge Kennedy in Southwest
Regional Council of Carpenters, et al., (Carnigan Construction Company), JD(SF)-14-04, and
Judge Meyerson in Southwest Regional Council of Carpenters, et al (New Star General
Contractors, Inc.), JD(SF)-76-04, the jurists held that the bannering conduct at issue was not
directly analogous to patrolling picketing and concluded that under the Court’s teachings in
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council
(DeBartolo II), 485 U.S. 568 (1988), the bannering conduct fell outside the reach of Section
8(b)(4)(ii) of the Act.

The distinctions argued by Respondents and noted by various of the cited jurists
between traditional picketing and the bannering here are the absence in the bannering
instances of patrolling and any elements of exhortation or confrontation by Respondents’
agents. Further, they noted the significant differences between the physical appearance of the
gigantic banners as compared to diminutive traditional picket signs, as well as the general public
message and physical location and orientation of the banners.

Judge Litvack in Southwest Regional Council of Carpenters (Held Properties), JD(SF)-
24-04 and Judge Parke in Local Union No. 1827, United Brotherhood of Carpenters And
Joiners Of America (United Parcel Service), JD(SF)-30-03, found the Respondents’ conduct
herein to be more akin to traditional picketing5 which they note the Board views quite broadly.
As a result of this finding, each further found the bannering was violative of Section 8(b)(4)(ii)(B)
of the Act.

5 The Court in DeBartolo II, supra, distinguished the peaceful handbilling under
consideration therein from picketing. (485 U.S. at 571.)

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b. Analysis and Conclusion

Based on the record as a whole, the stipulations of the parties, the briefs of the parties
and the learned analysis and conclusions of the judges in the decisions cited supra, I find that
the bannering under challenge herein differs from traditional picketing in several significant
ways. Thus, unlike traditional picketing, no patrolling or exhortation by pickets or confrontation
between union agents and employees, customers or employer agents occurred. The
Respondents’ agents were both relatively unobtrusive behind the oversize banners and were
essentially passive.

Further, unlike the traditional language of picket signs urging employees to stop work
and/or customers not to patronize, the banners herein simply labeled the identified disputant as
shameful. A word derisive perhaps, but not one immediately cognizable as a traditional labor
organization picket sign admonition which is easily held to be a threat, coercion or restraint.
Additionally, the banners were directed more to and towards the public-at-large than to the
employees and/or the onsite customers of the identified entities. Finally the record is totally
devoid of any evidence of the impact, if any, of the challenged conduct on the bannered entities
customers or employees or any other measure.

From all the above, I find and conclude that the bannering involved herein is simply not
the legal equivalent of picketing for purposes of Section 8(b)(4)(B) analysis. In these regards I
am persuaded by and here adopt the conclusion on the same issue of Judge James Kennedy in
Southwest Regional Council of Carpenters, et al (Carnigan Construction Company), JD(SF)-14-
04, There, on similar facts, he held:

I conclude from those facts that bannering, as described here, is not picketing. Neither
is it the functional equivalent of picketing. It is more in the nature of billboard advertising.
Had this message been placed on an outdoor billboard, no one could legitimately
complain. Had it been stated during a public speech, no one could legitimately
complain. Had the accusation been made in a television or radio program, no one could
make a valid complaint. (JD slip op. at 16)

Having reached this critical threshold conclusion, I further find and conclude that the
bannering engaged in by the Respondents is not sufficiently akin to traditional picketing that the
banners constituted threats, coercion or restrain within the meaning of Section 8(b)(4)(ii) of the
Act. Rather, I find that to avoid serious constitutional problems as discussed by the Court in
DeBartolo II, supra, 485 U. S. 568 (1988), the conduct alleged as a violation of the Act in the
complaints herein must be held to fall outside the restrictive intentions of Congress
encapsulated in Section 8(b)(4)(ii)(B) of the Act. Given that I have concluded that the
Respondents’ bannering did not violate Section 8(b)(4)(ii)(B) of the Act, it follows that the
Respondent’s have not violated the Act as alleged and the complaints shall be dismissed.

In reaching this determination, I find the issue is subtle and calls out for definitive
resolution by higher authority. The decisions of Judge Parke in Local Union No. 1827, United
Brotherhood of Carpenters And Joiners Of America (United Parcel Service), JD(SF)-30-03
(2003) and Judge Litvack in Southwest Regional Council of Carpenters (Held Properties):
JD(SF)-24-04 (2004) correctly note that the Board has tended to view various types of labor
organization protest actions as conduct as akin to picketing and does not lightly find such
conduct beyond the reach of Section 8(b)(4)(ii)(B) of the Act. The Board’s decisions are binding
on administrative law judges in unfair labor practices cases including this judge in the instant
case. I do not find, however, that the current Board decisional law definitively resolves the
specific issue at hand. And I am very mindful of the teachings of the Court in DeBartolo II,

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supra, that the Board must always review its definitions and analytical approach with a view to
avoiding interpretations of the Act which conflict with constitutional prohibitions. Where the
distinction between constitutionally protected free speech and regulatable labor organization
conduct is subtle, the recent precedents divided and the matter not as yet resolved by higher
authority, special cautions must be applied by all judges, including administrative law judges, so
as to avoid applying unsettled law in such a way as to improperly restrict constitutionally
protected conduct.

Conclusions of Law

On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.

1. The Charging Parties are, and each has been at all times material, employers
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Respondents are, and each has been at all relevant times, labor
organizations within the meaning of Section 2(5) of the Act.

3. The Respondents did not violate the Act as alleged in the complaints and the
complaints shall be dismissed in their entirety.

ORDER

Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.6

The allegations of the complaints, and each of them, shall be and they hereby are
dismissed in their entirety.

Dated: April 5, 2005, San Francisco, California.

ca
_______________________
Clifford H. Anderson
Administrative Law Judge
6 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.