International Brotherhood of Electrical Workers, Local Union 98 (Fairfield Inn & Suites; Libertine R

National Labor Relations Board - Administrative Judge Opinions

May 28, 2019

04-CC-223346 (N.L.R.B. May. 28, 2019)

JD-45-19
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 98,
Respondent
and Case 04-CC-223346

SHREE SAI SIDDHI SPRUCE, LLC, d/b/a
FAIRFIELD INN & SUITES BY MARRIOTT,
Charging Party

Lea Alvo-Sadiky, Esq.,
for the General Counsel.
William T. Josem, Esq., and
Cassie R. Ehrenberg, Esq.,
Philadelphia, PA, for the Respondent.
Wally Zimolong, Esq., Philadelphia,
PA, for the Charging Party.
DECISION
STATEMENT OF THE CASE
Robert A. Giannasi, Administrative Law Judge. This case was tried on April 9,
2019, in Philadelphia, Pennsylvania. The complaint, as amended, alleges that
Respondent violated Section 8(b)(4)(ii)(B) of the Act by posting large inflatable rats near
the entrance of the Charging Party’s hotel (hereafter Fairfield Inn or hotel), along with
handbilling and related activity, on three separate occasions in late June 2018; and by
using a bullhorn at a high volume, again in front of the hotel and an adjacent restaurant
connected to the hotel, along with related activity, on a separate occasion in late June
2018. The complaint alleges that the Respondent’s dispute was with a non-union
employer who had worked on the renovation of the hotel and was no longer on the
premises, thus showing a secondary object affecting the hotel and restaurant. The
Respondent denied the essential allegations in the complaint. At the hearing,
Respondent admitted that its conduct had a secondary object, thus presenting the sole
issue of whether its conduct was undertaken by unlawful means—that it amounted to a
threat, restraint or coercion under subsection (ii).
JD-45-19
2
The parties filed post-hearing briefs, which I have read and considered. Based
on those briefs and the entire record in the case, including the testimony of the
witnesses and my observation of their demeanor, I make the following
FINDINGS OF FACT5
I. Jurisdiction
It is admitted that Respondent is a labor organization within the meaning of
Section 2(5) of the Act. Charging Party Fairfield Inn operates a hotel located at 261 S. 10
13th Street in Philadelphia, Pennsylvania. Shree Sai Siddhi Spruce Restaurant LLC
d/b/a Libertines (hereafter Libertines or the restaurant) is a restaurant located on the
first floor of the Fairfield Inn. The Wankawala Organization LLC (Wankawala) manages
the Fairfield Inn. Tri-M Group (Tri-M) is a non-union electrical contractor with whom
Respondent had a dispute during the renovation of the hotel and restaurant before they 15
opened. It is admitted that Fairfield Inn, Tri-M, Wankawala, and Libertines are
employers within the meaning of Section 2(2), (6) and (7) of the Act.
II. Alleged Unfair Labor Practices
20
Background and Overview
The Fairfield Inn occupies the entire block along the east side of South 13th
Street in Center City Philadelphia between Manning Street on the north and Spruce
Street on the south. The hotel entrance is roughly at the middle of 13th Street. The 25
Libertine restaurant occupies part of the ground floor to the corner of 13th Street and
Spruce. It is open for breakfast from 6 am to 9 am, but primarily for hotel guests. It is
open to the public for dinner. Libertine’s outside entrance is located to the right of the
hotel entrance as one looks toward the east from across 13th Street. But that entrance
is locked and cannot be accessed by the public during the morning and afternoon 30
hours. Hotel guests access the restaurant for breakfast from the inside of the hotel
itself. The outside entrance is utilized at dinnertime, which begins at about 5 pm, at
which time, weather permitting, patrons may sit at tables aligned on the sidewalk
outside the restaurant on both sides of the hotel entrance. Overnight, the tables and
chairs are stacked, secured and stored along the sidewalk next to the hotel building. In 35
the morning they are unsecured, unstacked and set up, although they are not ordinarily
utilized until dinnertime.1
The hotel and restaurant occupy a historic building of 12 floors that was built in
1923. It was formerly a hotel, but, for about a 2-or 3-year period through May of 2018, 40
the building underwent extensive renovations, supervised by Wankawala. The electrical
work was performed by Tri-M, a non-union contractor with whom Respondent had a

1 The Libertine restaurant has a permit from the City of Philadelphia that allows the use of tables and
chairs on the sidewalk in front of the hotel and restaurant, providing there is no obstruction of pedestrians
using the sidewalk.
JD-45-19
3
dispute. In aid of that dispute, the Respondent engaged in protests against Tri-M during
the renovations.
After the renovations were completed and the hotel and restaurant opened on
June 15, 2018, Tri-M was no longer on the site. But Respondent wanted to publicize its 5
dispute and the fact that the hotel and the restaurant had utilized a non-union electrical
contractor in the renovations. In carrying on its publicity campaign, Respondent
engaged in handbilling, distributing flyers to pedestrians, hotel guests or visitors, and
other members of the public who walked along 13th Street on June 26, 27 and 28, 2018,
from about 8 am to about 2 pm on each day. It also distributed flyers in the same area 10
on June 29, 2018, from about 5 pm to about 8 pm.
The flyers or handbills were captioned, “You can’t put lipstick on a pig,” and
featured a cartoon pig covered with dollar bills. They continued as follows (G.C. Exh.
2):15
The Wankawala Organization would like you to believe that by
renovating this property at 261 S. 13th Street, Fairfield Inn and Suites by
Marriott, things are going to change. Don’t let the fresh paint fool you!
These are the same people who operated this property as the 20
“Parker Spruce Hotel” which was a well-known hourly/daily rental hotel,
with a track record of being a menace to this community.
These blood suckers have continued the same piggish
behavior by being cited several times for not having permits and had
many safety violations during their “renovation.” (Really?)25
PIGS WILL ALWAYS BE PIGS!!!
These greedy pigs hired contractors at DISCOUNTED rates
compared to the fair wage and benefit package recognized in this area.
Will they pass that savings on to you, the consumer…NOT LIKELY!
30
DO NOT BE A FACILITATOR TO THE VIOLATOR!!!
Please contact owner Mihir Wankawala @215-454-6508 to tell him that
you won’t support his violation of the area wages and standards
35
This message is intended for the general public. Please don’t stop work, deliveries or
litter. Distributed by IBEW Local 98.
Union Organizer and Business Representative John Donohue, an admitted agent
of Respondent, led and participated in the activity at the hotel and restaurant. It is 40
stipulated that he did not wear or carry anything that identified himself as affiliated with
the Respondent during his activity.
45
JD-45-19
4
The Amended Complaint Allegations
Paragraph 6(a) of the amended complaint alleges that, on about June 26, 2018,
Respondent (i) posted a large inflatable rat near the entrance of the Hotel; and (ii)
patrolled on the sidewalk in front of the Hotel and Restaurant.5
Paragraph 6(b) alleges that, on about June 27 and 28, Respondent (i) posted two
large inflatable rats near the entrance of the Hotel; (ii) moved tables and chairs
belonging to the Hotel and Restaurant to accommodate the rats; and (iii) patrolled on
the sidewalk in front of the Hotel and Restaurant.10
Paragraph 6(c) alleges that, on about June 29, Respondent (i) used a bullhorn at
a high volume to disparage the Hotel and Restaurant; and (ii) posted several stationary
signs reading “DO NOT BUY HERE.”
15
These specific allegations form the basis for the General Counsel’s further
allegation that such conduct amounted to picketing or coercion with a secondary object
in violation of Section 8(b)(4)(ii)(B).
The Activity of June 26, 27 and 2820
The Facts
On the morning of June 26, Respondent placed an inflatable rat on the public
sidewalk between the hotel’s 13th Street entrance and the locked entrance to the 25
restaurant. The rat was about 12 feet tall, remained stationary about 10 to 12 feet to
the right of the hotel entrance, and had no messages written on or attached to it. See
G.C. Exh. 3(b). Four of Respondent’s officials, including Donohue, accompanied the
rat and distributed the flyers mentioned above. The General Manager of the Fairfield
Inn, Jack Lawrence-Evans, confronted Donohue and asked him what he was doing 30
there, mentioning that there was no construction going on at the location. Donohue
told Evans that Respondent’s officials had a First Amendment right to be there and
protest, an explanation Evans later gave to people who asked the same question of
him. According to Evans, Donohue later passed out flyers to guests who were entering
and exiting the hotel, walking back and forth within a span of 15 to 20 feet in front of 35
the entrance. When asked whether Donohue did anything “besides walking back and
forth,” Evans testified that Donohue talked to him and others but offered nothing more.
Here is his entire answer to the question (Tr. 34):
There were different periods of time that he was engaged with 40
myself or engaged with our valet, employees that were there from a
third-party valet, but just handing out flyers and, you know, just telling
people, you know, that we were shut down, you know, four times,
that—just different variations that he recited from the actual pamphlet
that was being handed out.45
JD-45-19
5
On the second day, June 27, Donohue and other officials of Respondent arrived
at the hotel and set up either the same rat or a smaller 8-foot tall rat at the same
location as the day before. But, on this occasion, according to Evans, Donohue moved
2 sets of tables and chairs that were in front of the restaurant to accommodate the width
of the rat.2 Also, on the second day, the Respondent set up a second inflatable rat, this 5
one standing about 8 feet tall. That rat remained stationary on the sidewalk at the
corner of 13th Street and Spruce, near the end of the restaurant, with two officials of
Respondent standing next to it and one across the street. According to Evans,
Donohue was still out in front of the hotel entrance handing out flyers like he was the
day before. 310
On the third day, June 28, the Respondent again showed up in the morning with
two 8-foot tall rats. But there were landscapers present on this day who were unloading
their truck with plants and placing them at the hotel entrance and along the sidewalk,
including where the first rat had previously been stationed. There was some dispute as 15
to where Respondent was to set up that rat and eventually it was placed on the other
side of the hotel entrance towards Manning Street. The second rat was initially placed
where it was the day before at the corner of 13th Street and Spruce. Evans called the
police on this occasion and provided them with evidence of the restaurant’s permit for
outdoor seating. As a result, and in accordance with a police request, Respondent 20
moved the first rat even further away from the hotel entrance to the corner of Manning
Street and 13th Street. At that point, the rat was at the curb facing west across 13th
Street. The second rat was moved away from the corner of 13th Street and Spruce and
placed further down Spruce Street to the end of the hotel building itself. Tr. 50-53, G.C.
Exhs. 4, 5(a), 5(b), 7(a) and 7(b). Evans testified that, on this day like the day before, 25
Donohue moved 2 sets of tables and chairs to accommodate the first rat and they were
moved some 2 and ½ to 3 feet. Tr. 52. But that testimony is not credible because, as
the General Counsel concedes (G.C. Br. 8 n. 7), the tables and chairs were not even
set up until after the rat was moved to Manning Street. According to Evans, on this day,
Respondent’s officials again distributed handbills, but he gave no details, except to 30
testify that that some stayed with the one rat on Spruce Street and Donohue walked
back and forth between the hotel entrance and Manning Street. Tr. 53.4

2 The small round tables permit seating for 2 people and thus 2 chairs.
3 Evans testified that, during the first two days, he received “complaints” from guests, but he was not
specific about them and he appeared simply to be offering his view of what they were seeing while the
activity was going on. He testified, at one point, that the guests were “obviously seeing a large rat” and
they “were being handed flyers as they walked in and out of the building.” Tr. 35. He also testified that
the guests asked him what the Respondent’s officials “were doing here,” to which he responded that the
officials had a First Amendment “right to protest.” Tr. 36. Evans also testified that, on the second day,
some guests asked “what was going on . . . and why they were there.” Tr. 44.
4 Evans testified that he called the police each morning of the Respondent’s activity. His concern
appeared to be about the activity as a general matter, except that he also complained about Donohue
moving tables and chairs to accommodate the rats. The police came each time, but there is no evidence
that they intervened to prohibit Respondent’s activity. As indicated above, on the third day, the police
asked Respondent’s officials to move the rats further away from the locations where the Restaurant had a
permit to have outside dining and the Respondent did so.
JD-45-19
6
The above is based in part on evidence provided by a thumb drive entered into
evidence that shows a video of about 3 hours of activity back and forth along 13th Street
with the camera facing north toward Manning Street. R. Exh. 3. I have viewed the
video in its entirety and it provides the most reliable evidence of that happened that day
with respect to the first rat. The video shows considerable pedestrian traffic along the 5
sidewalk in front of the hotel, as well as guests and hotel personnel standing around the
hotel entrance. It also shows that officials of Respondent stood almost always near the
rat distributing handbills to pedestrians and sometimes hotel guests. During the roughly
3 hours they were present at the location, some of Respondent’s officials, including
Donohue, who was the most identifiable of the group, occasionally left their positions 10
around the rat and walked elsewhere along the sidewalk on 13th Street. But they did not
have signs or other indicia identifying themselves or their purpose. They appeared to
be walking to the other end of 13th Street where the second rat was located along
Spruce Street. Some of the video probably also captured them coming from the second
rat back to the first one. Although Donohue often appears in the video, it does not show 15
him regularly distributing flyers while walking back and forth between the hotel entrance
and Manning Street, as suggested by Evans in his testimony. Indeed, the video shows
only one clear instance of Donohue handing out a flyer at the hotel entrance, and, on
that occasion, he walked from his position near the rat to the hotel entrance where he
handed a flyer to a hotel guest, said a few words, and then returned to his former 20
position.
Analysis
Handbilling consumers in support of a union’s dispute does not constitute a 25
threat, restraint or coercion under subsection (ii) of Section 8(b)(4)(B). DeBartolo Corp.
v. Gulf Coast Trades Council, 485 U.S. 568 (1988). In DeBartolo, the Supreme Court
first noted that it was proper to consider whether, in the case before it, Section 8(b)(4)
was “open to a construction that obviated deciding” whether the congressional
prohibition “would violate the First Amendment.” Id. at 578. The Court then cited its 30
previous authority in NLRB v. Fruit & Vegetable Packers Local 760, 377 U.S. 58 (1964)
(Tree Fruits), for the proposition that Congress did not intend, in Section 8(b)(4)(B), to
proscribe all peaceful consumer picketing at secondary sites. It continued as follows
(Id. at 580):
35
There is even less reason to find in the language of Section 8(b)(4)(ii), standing
alone, any clear indication that handbilling, without picketing, “coerces”
secondary employers. The loss of customers because 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 40
reacts is doing no more than what its customers honestly want it to do.
The question here is whether the presence of a stationary inflatable rat, with no
message attached, along with protected handbilling, amounts to picketing or otherwise
“coerces” secondary employers, as alleged by the General Counsel. The most relevant45
Board cases to the situation in this case, Carpenters Local 1506 (Eliason & Knuth of
Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Medical
JD-45-19
7
Center), 356 NLRB 1290 (2011), support the finding that there was no unlawful
picketing or coercion here.
In Eliason, the union’s protest involved stationary banners 3 or 4 feet high and
from 15 to 20 feet long that contained messages shaming secondary employers for 5
utilizing an entity with whom the union had a dispute. The banners were on a public
sidewalk and held in place by several union officials, some of whom handbilled
pedestrians with flyers that explained the dispute mentioned in the banners. On these
stipulated facts, and using the Supreme Court’s DeBartolo decision as a touchstone, a
Board majority found that the bannering did not amount to unlawful picketing or coercion 10
under subsection (ii) of Section 8(b)(4)(B). The Board first considered whether the
bannering amounted to picketing, defining what makes picketing coercive: The
combination of carrying picket signs and persistent patrolling of picketers back and forth
in front of a work site creating a physical or at least a symbolic confrontation between
the picketers and the worksite. The Board then found that the bannering in the case 15
before it was not picketing because it did not create a confrontation and was not
accompanied by any form of patrolling. Thus, “members of the public wishing to enter
the secondaries’ sites did not confront any actual or symbolic barrier.” 355 NLRB at
802-803. The Board also addressed whether the bannering amounted to non-picketing
coercion, which is defined as “conduct which directly caused, or could reasonably be20
expected to directly cause disruption of the secondary’s operations.” Noting that there
was no blocking of ingress or egress or any other disruption of the operations of the
secondary employers by the union, the Board found no violation on this score as well.
Id. at 805-806.
25
Describing use of the banners as speech (355 NLRB at 808-810), the Board
found support for its ultimate finding in Eliason by invoking the “constitutional
avoidance” doctrine discussed in the Supreme Court’s DeBartolo decision. It stated that
“to prohibit the holding of a stationary banner would raise serious constitutional
questions under the First Amendment.” Id. at 807. Among the cases cited by the Board 30
in its discussion of the Supreme Court’s First Amendment jurisprudence in this respect
was Texas v. Johnson, 491 U.S. 397 (1989). Id. at 808 n. 39. In that case, the Court, in
overturning a flag burning conviction, stated that, while government may proscribe
expressive conduct, it may not “proscribe particular conduct because it has expressive
elements.” 491 U.S. at 407 (emphasis in original).35
In Brandon Medical, the Board considered a handbilling case involving a
stationary inflatable rat such as the ones in this case at a hospital with which the union
did not have a primary dispute. The Board found that use of the rat did not violate
Section 8(b)(4)(ii)(B). The inflatable rat in Brandon was some 16 feet tall and 12 feet 40
wide and had a sign identifying the employer with whom the union had a dispute. The
sign stood on a flatbed trailer some 100 feet from the hospital’s front door. Applying the
reasoning in the Eliason case, the Board in Brandon found that use of the rat did not
amount to picketing or non-picketing coercion. It found that use of the rat did not
contain an element of confrontation in terms of an actual or symbolic barrier as visitors 45
arrived at the hospital. Nor was there any blocking of ingress or egress or similar
disruption of hospital business. 356 NLRB at 1291-1292. Finally, the Board noted that
JD-45-19
8
the “rat balloon itself was symbolic speech,” but “nothing in the location, size or features
of the balloon . . . were likely to frighten those entering the hospital, disturb patients or
their families, or otherwise interfere with the business of the hospital” sufficient to
amount to unlawful coercion under subsection (ii) of Section 8(b)(4)(B). Id. at 1292.5
5
Like the banner in Eliason and the inflatable rat in Brandon II, here, the inflatable
rats were stationary. Like the banner in Eliason and the inflatable rat in Brandon II, the
rats in this case were simply a way for Respondent to draw attention to its handbilling,
and, unlike the banner in Eliason, the rats in this case had no message on them.
Although the term rat has a derogatory connotation, suggesting someone who turns 10
against another, or, in the context of a labor dispute, a scab or an anti-union person or
entity, the inflatable rats in this case were more like cartoon caricatures. The rats did no
more than visually reinforce the same message contained in the handbills—that non-
union labor was used in the renovations. This was essentially speech in another form.
And, as the Supreme Court has recognized, federal labor policy favors uninhibited and 15
robust speech by both management and labor, including use of a pejorative and very
unflattering definition of a “scab.” Letter Carriers v. Austin, 418 U.S. 264 (1974) (libel
conviction over the use of the definition overturned).
Neither the placement of the rats, which were always on public sidewalks, nor the20
Respondent’s activity in connection with the rats amounted to picketing or coercion
within the definition of those terms as set forth in Eliason and Brandon II. For the most
part the handbillers remained near the rats. Only one person, Donohue, was alleged, at
times, to have walked “back and forth” in front of the hotel entrance while handbilling.
Although he moved away from the stationary rat nearby, he carried no sign and did not 25
engage in anything that could be called a confrontation. There is no evidence that
Donohue established an actual or symbolic barrier that interfered with pedestrians on
the sidewalk or the egress or ingress of people utilizing the hotel. Nor did he or the rats
cause disruption of the operations of either the hotel or the restaurant. More
particularly, there is no evidence that the stationary rats interfered with pedestrian traffic 30
or people entering or exiting the hotel. It is clear from the thumb drive video exhibit (R.
Exh. 3) on the third day of the protest, which covered some 3 hours, that the rat in the
video had little or no effect on the public. Most pedestrians walked right by the rat
without even pausing to look at it.6

5 The above is considered Brandon II. In its original decision in that case, Brandon I, the Board found
that the union violated the Act by staging a “mock funeral” in front of the hospital while carrying a fake
casket accompanied by a union member dressed as the Grim Reaper. However, it declined to pass on the
additional allegation that use of the inflatable rat was a violation. The Court denied enforcement of the
Board’s decision on the mock funeral issue. Sheet Metal Workers Local 15 (Brandon Medical Center)
(Brandon I), 346 NLRB 199 (2000) enf. denied, 491 F.3d 429 (D.C. Cir. 2007). Thus, the Board
addressed the open inflatable rat issue in Brandon II, as discussed above.
6 The General Counsel asserts (G.C. Br. 8) that the thumb-drive video (R. Exh. 3) shows that
pedestrians had to walk around the rat. Although, at one point, for a short period of time before the rat
was moved, there might have been some pedestrians who had to walk around the rat, a full viewing of the
3-hour video confirms that the rat posed no significant obstacle to the free flow of pedestrian traffic on the
third day of the protest. Indeed, there were other obstacles on the sidewalk on that day that caused
pedestrians to walk around them, including landscapers who were installing plants around the hotel
JD-45-19
9
At its essence, Respondent’s protest activity on June 26, 27 and 28 amounted to
peaceful handbilling, which, under the Supreme Court decision in DeBartolo, is
protected and lawful. Accordingly, I reject the General Counsel’s contention that the
presence of a stationary inflatable rat near the handbilling or the handbilling itself, either
separately or in combination, constituted picketing or coercion. 5
Much of the General Counsel’s brief is devoted to showing that the placement of
the inflatable rats, along with the handbilling, constituted picketing or at least coercion.
But, those arguments run counter to Eliason and Brandon II, as shown above. The
General Counsel frankly takes the view that those cases were wrongly decided, and, in 10
reliance on the dissents, that the decisions should be overruled (G.C. Br. 19-20)—a
position endorsed by the Charging Party. But I am, of course, bound to apply existing
Board law, which I have done.
The General Counsel appears to urge a violation even under the Eliason-15
Brandon II rationale because Respondent’s officials moved the restaurant’s tables and
chairs to accommodate placement of one of the rats on the public sidewalk in front of
the hotel and the restaurant and because its officials allegedly “patrolled” back and forth
while handbilling. But neither of these factors turned what was legitimate handbilling
activity into unlawful coercion.20
First of all, there is no evidence that Respondent moved any tables and chairs to
accommodate the rat on the first day. According to Evans, Donohue did move 2 sets of
tables and chairs on the second day to accommodate the rat that was stationed along
the sidewalk parallel to 13th Street. Donohue did not move any tables and chairs on the 25
third day, despite Evans’ testimony that he did, since, as the General Counsel conceded
and the video exhibit (R. Exh. 3) clearly shows, hotel personnel did not even set up the
tables and chairs until the rat was moved to Manning Street. In any event, there were
no restaurant patrons sitting outside during the hours of the rat’s presence and the
outside restaurant entrance was not open. Nor is there any evidence that the 30
movement of the tables and chairs caused any particular problems. The minimal and
temporary rearrangement of moveable furniture had no significant effect on secondary
employers. This was thus de minimis and did not amount to coercion either separately
or in conjunction with the presence of the rat. See Laborers’ International Union of
North America, Local 872 (Westgate Las Vegas Resort & Casino), 363 NLRB No. 168, 35
slip op. 4-5 (2016), citing Eliason, 355 NLRB at 807 fn. 30 and Southwest Regional
Council of Carpenters (Richie’s Installations, Inc.), 355 NLRB 1445 (2010).
Nor was there any patrolling as that term is normally understood. The dictionary
definition refers to policemen, soldiers or security officers walking a beat around or 40
through a specific area to enforce order or control access. See Random House
Webster’s Unabridged Dictionary, Second Edition. And, in the context of labor disputes,

entrance and along the sidewalk, as well as hotel personnel, guests and others who were standing along or
congregating on the sidewalk. Even focusing solely on those walking around the rat, however, the impact
would have been de minimis, as was the moving of tables and chairs to accommodate the rat, which is
discussed in text hereafter.
JD-45-19
10
persistent patrolling, usually by more than one person, is viewed as part of picketing
that involves confrontation and provides some kind of physical or symbolic barrier
preventing people from crossing the barrier. Patrolling in that sense would be
systematic, intimidating and coercive. See Eliason, cited above, 355 NLRB at 802-803.
5
But that is not what Donohue was doing while he was handbilling, and only
Donohue is alleged to have engaged in persistent patrolling. Although there were video
and still pictures introduced into evidence in this case, there were none showing
persistent patrolling by Respondent while handbilling in front of the entrance to the
hotel. Evans testified that, on the first day, Donohue alone walked back and forth in 10
front of the hotel entrance within a span of 15 to 20 feet while handbilling, but did
nothing more except talk with people for “different periods of time.” He carried no sign
and there is no suggestion of a physical or symbolic barrier in Donohue’s handbilling
that prevented people from crossing it. Nor was there evidence of any confrontation or
intimidation. Evans also offered conclusory testimony that, on the next day, Donohue 15
did the same thing he did on the first day. Evans further testified that, on the third day,
Donohue was again walking back and forth between the hotel entrance and Manning
Street distributing flyers. But, as shown above, the 3-hour video of the third day does
not support that testimony. The single clear instance of Donohue handbilling in the
video shows that he left his position near the rat to hand a flyer to a hotel guest at the 20
hotel entrance then returned to his former position. There was nothing remarkable
about that brief encounter and it could hardly be called patrolling. Even accepting
Evans’ testimony in full, however, his testimony is a slim reed upon which to support a
finding that Donohoe was engaged in persistent patrolling. Nor was Donohue’s conduct
otherwise coercive. See Sheetmetal Workers Local 15 v. NLRB, 491 F.3d 429, 438 25
(D.C. Cir. 2007), cited above at footnote 5 (mock funeral procession added element of
street theater to handbilling but was not picketing, patrolling or otherwise coercive).7
The June 29 Activity
30
The Facts
On June 29, Respondent again protested in front of the hotel and the restaurant.
This time, it was Donohue alone. He arrived at about 5 pm, and he was
unaccompanied by an inflatable rat. He did, however, have with him a portable35
bullhorn, which he used to deliver essentially the same message about Respondent’s
dispute that was set forth in the flyers, which he distributed as well on this occasion. As
indicated above, at this time of the day, the restaurant’s entrance on 13th Street was
accessible, and tables and chairs were set up to accommodate patrons who wanted to
be seated outside. The tables and chairs were lined up both along the curb and along 40
the building with space for pedestrians in between. Donohue placed several stationary

7 The General Counsel cites Service Employees Local 399 (William J. Burns Agency), 136 NLRB
431, 436-437 (1962) for a contrary position (G.C. Br. 13). But that case is clearly distinguishable and the
differences between that case and this one highlight why what Donohue was doing was not “patrolling.”
In Burns, some 20-70 union members were marching in an elliptical pattern in front of the entrance to the
secondary’s premises. Here, only one person, Donohue was handing out handbills or flyers while
walking back and forth in front of the hotel entrance.
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11
signs along the sidewalk on the 13th Street side adjacent to the curb, although they did
not disturb the tables and chairs. The signs read, “Do not Buy here.” When Donohue
first arrived, there were a few patrons outside sitting at the tables adjacent to the
restaurant. Those patrons soon left and there were none outside thereafter. But the
windows to the restaurant were open and there were patrons inside throughout the time 5
Donohue was present at the location. He left at about 8 pm.
During Donohue’s time at the location, he walked back and forth along 13th
Street, mostly in the bike lane on the street, but sometimes on the sidewalk, speaking
through the bullhorn. He paused at the end of each block and spoke through the 10
bullhorn from there. The message he delivered about the use of a non-union company
during the renovations was loud and continued for the roughly 3 hours Donohue was
present at the location. He repeatedly asked people to take a handbill and his voice
could be heard by the patrons inside the restaurant and by workers in the kitchen at
some distance from the outside of the restaurant where Donohue was situated. Hotel 15
guests also could hear Donohue; some complained to Fairfield management and had to
either be moved or given complimentary gifts as a result.8
Analysis
20
Donohue’s broadcast messages over the period of about 3 hours on June 29
were excessively loud and amounted to unlawful coercion. This is confirmed by the
video and sound exhibit, as well as the uncontradicted testimonial evidence that shows
that the bullhorn messages were loud enough to be heard well inside the restaurant.
The uncontradicted testimonial evidence also confirms that hotel guests found the 25
sound excessively loud. Some complained, and their complaints had to be
accommodated by hotel management. The loudness of the messages, their effect on
patrons and guests of neutral entities and their duration clearly support a finding that
Respondent disrupted the operations of secondary employers and thus engaged in
coercion. Since the secondary object of Donohue’s activity is admitted, I find that the 30
Respondent’s conduct in this respect on June 29, 2019, violated Section 8(b)(4)(ii)(B) of
the Act. See Carpenter’s (Society Hill Towers’ Ass’n.), 335 NLRB 814, 815, 820-823,
826-829 (2001), enforced, 50 Fed, Appx. 88 (3d Cir. 2002), a case that was cited with
approval and distinguished in Eliason, 355 NLRB at 806.
35
Respondent attempts to distinguish Society Hill Towers because, in that case,
unlike here, there was evidence that the amplified sound exceeded those permitted
under the City of Philadelphia’s noise regulations and the amplified sound took place in
a residential area. R. Br. 21. Neither of those factors provide a defense here. The
violation of the noise ordinance was not the only or the exclusive rationale for the 40
decision in Society Hill; the rationale included the impact of the excessive noise on

8 The above findings are based on the testimony of Evans, the general manager of the Fairfield Inn,
and Derek Davis, the manager of the Libertine restaurant. The findings are also based on my viewing of
2 DVD discs reflecting a few minutes of Donohue’s activity with the bullhorn, which were received in
evidence as Exhibits 9(a) and 9(b), as well as 2 still photographs taken by Evans received in evidence as
G.C. Exhs. 8(a) and 8(b).
JD-45-19
12
residents. See discussion at pp. 826-829 of 335 NLRB. Nor was the decision restricted
to sound amplification only in residential areas. The rationale of the decision was the
impact of the excessive noise on people either patronizing or using the secondary
employer’s facility or premises. The impact there was on residents—here, on hotel
guests and restaurant patrons.5
Conclusions of Law
1. By using a bullhorn to broadcast excessively loud messages while
handbilling in front of the Fairfield Inn and Libertine restaurant on June 29, 2018, where 10
an object was to force those entities to cease doing business with Tri-M, Respondent
violated Section 8(b)(4)(ii)(B) of the Act.
2. The above violation constitutes an unfair labor practice affecting
commerce.15
3. The Respondent has not otherwise violated the Act.
On these findings of fact and conclusions of law, and on the entire record herein,
I issue the following recommended920
ORDER
Respondent, International Brotherhood of Electrical Workers, Local 98, its
officers, agents, successors and assigns, shall25
1. Cease and desist from:
(a) Using a bullhorn to broadcast excessively loud messages while
handbilling in front of the Fairfield Inn and Libertines restaurant where an object is to 30
force those entities to cease doing business with Tri-M.
(b) In any like or related manner violating Section 8(b)(4)(ii)(B) of the Act.
2. Take the following affirmative action necessary to effectuate the policies of 35
the Act:
(a) Within 14 days after service by the Region, post at its business offices and
meeting places copies of the attached notices marked as “Appendix”.10 Copies of the

9 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purposes.
10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD-45-19
13
notice, on forms provided by the Regional Director of Region 4, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to members are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as email, posting on an 5
intranet or an internet site, and/or other electronic means, if Respondent customarily
communicate with members by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any
other material.
10
(b) Within 21 days after service by the Region, file with the Regional Director
a sworn statement of a responsible official on a form provided by the Region attesting
to the steps the Respondent has taken to comply.
(c) Within 14 days after service by the Region, sign and return to the Regional 15
Director sufficient copies of the notices for posting by Fairfield Inn and Libertines, if
they are willing, at all places where their notices to the public and patrons customarily
are posted.
It is also ordered that the complaint allegations of violations not found herein are 20
dismissed.
Dated, Washington, D.C May 28, 2019
25
Robert A. Giannasi
Administrative Law Judge
30
°e6#.44:°.i'C-G1----1,.--..L-,e--•'•--%-
JD-45-19
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
WE WILL NOT Use a bullhorn to broadcast excessively loud messages while handbilling in
front of the Fairfield Inn and Libertines restaurant where an object is to force those entities to
stop doing business with Tri-M.
WE WILL NOT, in any like or related manner, violate Section 8(b)(4)(ii)(B) of the Act.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 98
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215)-597-7601, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CC-223346 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E.,
Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215)597-5354.