Laborers Eastern Region Organizing Fund (Ranches at Mt. Sinai

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1251 (N.L.R.B. 2006)

LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI)
346 NLRB No. 105
1251
Laborers’ Eastern Region Organizing Fund and The
Ranches at Mt. Sinai
Laborers’ Eastern Region Organizing Fund and Con-
crete Structures, Inc. Cases 29–CC–1422 and 29–
CP–662
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 14, 2005, Administrative Law Judge Steven
Davis issued the attached decision. Laborers’ Eastern
Region Organizing Fund (Respondent) filed exceptions,
a supporting brief, and an answering brief to General
Counsel’s limited exceptions. The Ranches at Mt. Sinai
(The Ranches) filed exceptions, and Concrete Structures,
Inc. (CSI) filed limited exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision and a limited exception.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions, ex-
cept as modified herein, and to adopt the recommended
Order. For the reasons set forth below, we find it unnec-
essary to pass on the judge’s finding that the Respon-
dent’s use of an inflated rat constitutes signal picketing.
Instead, we base our conclusions solely on other evi-
dence of unlawful picketing activity.
I. FACTS
As more fully set forth in the judge’s decision, CSI
pours concrete for building foundations and curbs, em-
ploying approximately 30 workers. The Respondent
does not deny that throughout 2002 it made monthly de-
mands for recognition to CSI’s president, Americo Ma-
galhaes, who refused the Respondent’s demands.
In July 2002,2 the Respondent engaged in conduct di-
rected against CSI for about 2 weeks while CSI was en-
gaged in a project at the Mills Pond Elementary School
in Smithtown, New York. Although the Respondent’s
agents attempted to put a 15-foot tall inflated rat at the
entrance of the school, the police required that the rat be
set up immediately across the street from the school. A

1 To the extent that the Respondent excepted to the judge’s credibil-
ity findings, we have carefully examined the record and find no basis
for reversing the judge’s conclusions. The Board’s established policy
is not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951).
2 All dates are 2002, unless otherwise noted.
sign was attached to the rat reading “Concrete Struc-
tures.” The Respondent’s agents were described as
“walking back and forth” across the entrance and as pac-
ing back and forth near the rat. The record does not indi-
cate the exact duration of this conduct. In addition, the
Respondent’s agents were also seen talking to pedestri-
ans, parents, and others and distributing Laborer’s Local
66/Eastern Region handbills (as reproduced in the
judge’s decision) warning that CSI performed shoddy
work at the school.
The Respondent repeated this activity against CSI in
September at a construction site at Harborview Town-
houses in Roslyn, New York. The Respondent’s agents
unsuccessfully attempted to place a 30-foot tall rat with a
“Concrete Structures” label at the turnoff to the entrance,
but before they could install it, the police made them
move it to a location 15–20 feet away, in the median just
across from the entrance. At the Harborview site, the
Respondent at first had two or three agents positioned in
front of the gates, walking back and forth and distribut-
ing handbills to CSI employees and others working on
the site, as well as to pedestrians and homeowners. The
handbills alleged shoddy work by CSI and identified the
Respondent as the author. Apparently, the Respondent’s
agents later relocated a short distance away. The record
does not detail how long they patrolled at the entrance.
In March, CSI began performing work for The
Ranches, where 186 homes were being constructed on a
33-acre site in Mt. Sinai, New York. On October 28, the
Respondent inflated a 30-foot tall rat at the main en-
trance, on which it attached a sign reading “Concrete
Structures.” The credited testimony indicates that three
of the Respondent’s agents positioned themselves at the
entrance gates, walking back and forth across the en-
trance, doing so whether or not cars were immediately
approaching the entrance. The Respondent’s agents ar-
rived at the entrance daily3 at about 7:30 a.m., when CSI
and other contractors reported for work. The sales office
did not open until 10 a.m. The Respondent’s agents re-
mained at the entrance each day for about 8 hours, walk-
ing back and forth in front of the rat and distributing
handbills to passing cars, which read:

3 The Respondent admits that this conduct continued to November 6
and resumed on November 13 to 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1252
The Ranches at Mount Sinai
BUYER BEWARE
The “old charm” of Long Lake Development4 is not all
it’s cracked up to be!
Long Lake Development has hired Concrete Structures
for concrete work on this project.
Concrete Structures has a history of poor work, such as
cracking in the concrete of the Mill Pond E.S. in Smith-
town after just two weeks.
If you are considering buy [sic] a house at this location
call Americo Magalhaes @ (631)588-7612
Ask him for a guarantee that the concrete will not crack
or crumble after two months.
Justice in Concrete
(631) 733–0756
This is directed to the public. We are not asking any-
one to cease work or stop deliveries.
Labor Donated
Joseph Dauman, an employee of another contractor
working at the Mt. Sinai site, testified that when he ap-
peared for work at the jobsite the Respondent’s agents
“formed” at the entrance, apparently temporarily block-
ing his ingress. They then separated and allowed him to
drive through. Dauman testified that the Respondent’s
agents specifically made note of his license plate and
immediately placed a telephone call after he drove past.
On October 30, the Respondent’s regional coordinator,
Byron Silva, sent a letter to The Ranches’ management
alleging that CSI had committed violations of The Occu-
pational Safety and Health Act (OSHA) and New York
State prevailing wage laws. Silva’s letter stated that “[i]t
is our contention that Concrete Structures is not the most
reputable contractor for your project. . . . We ask that
this project be awarded to a contractor that is responsi-
ble.” The letter stated that the Respondent had launched
and would continue a very public campaign against CSI,
a clear reference to the Respondent’s conduct at the en-
trance to the Mt. Sinai jobsite.
On November 6, CSI President Magalhaes met with
Silva and another union representative. Silva told Ma-
galhaes that they wanted him to sign a union contract.
Magalhaes refused, but told them that he also did work at
the residential rate. Silva said that if he would pay the
residential rate and call them within the week, they
would remove the inflated rat. Following the meeting,
the Respondent removed the rat, but then replaced it on

4 Long Lake Development was a contractor in a prior construction
project, and was not working on The Ranches site in Mt. Sinai. Addi-
tionally, another similar handbill was distributed which omitted “The
Ranches at Mount Sinai,” and which listed a contact name other than
Magalhaes.
about November 13, after Magalhaes had not called dur-
ing the prior week.
On November 13, The Ranches informed Magalhaes
that the contract with CSI was being terminated because
the picketers had not been removed. CSI left the jobsite
that day. Two days later, the remaining concrete pouring
work was awarded to another contractor whose employ-
ees were represented by a union. After The Ranches sent
a letter to the Respondent confirming that this was done,
the inflated rat and the handbillers were removed.
II. JUDGE’S ANALYSIS
The judge found that the Respondent’s conduct at the
jobsites amounted to picketing. In this context, he found
that the Respondent’s demand that The Ranches use a
“responsible” contractor was the equivalent of asking
The Ranches to sever its relationship with CSI. The
judge concluded that the Respondent violated Section
8(b)(4)(i) and (ii)(B) at The Ranches by engaging in this
conduct. The judge also concluded that because the Re-
spondent’s picketing at The Ranches as well as at two
other jobsites was for a recognitional object and ex-
ceeded 28 days over a 4-month period, during which
time the Respondent did not file a petition for an elec-
tion, the Respondent’s actions were unreasonable within
the meaning of Section 8(b)(7)(C).
III. DISCUSSION
1. Section 8(b)(4)(i)(B) prohibits the inducement and
encouragement of any individual to cease working where
an objective, inter alia, is forcing any other employer to
recognize or bargain with a labor organization that is not
the certified representative of its employees. Section
8(b)(4)(ii)(B) prohibits the coercion of a neutral em-
ployer in furtherance of such an objective.
It is clear that the Respondent’s activity had a secon-
dary objective. That is, the Respondent’s activity was
aimed at a neutral, The Ranches, in pursuit of a recogni-
tional dispute with primary CSI. The Respondent’s
agent, Silva, repeatedly told Magalhaes that he wanted
CSI to sign a union contract and, as indicated, the Re-
spondent does not dispute this finding. Further, the Re-
spondent’s October 30 letter to The Ranches, in which it
demanded that The Ranches replace CSI with a “respon-
sible” contractor, indicates that it wanted to pressure The
Ranches to cease doing business with CSI with an objec-
tive of forcing CSI to recognize the Respondent.
Having determined that the Respondent’s object was
secondary, the next question is whether the Respondent’s
activity amounted to picketing and, therefore, was
8(b)(4) conduct in furtherance of this recognitional ob-
jective. We find that it was.
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1253
Picketing may be found to occur where a small number
of persons actively engage in patrolling—back and forth
movement—establishing a form of barrier at the site in
question. Sheet Metal Workers Local 15 (Brandon Re-
gional Medical Center), 346 NLRB 199 (2006).5
Here, only two or three of the Respondent’s agents
were identified as being present onsite and they carried
no traditional picket signs at any of these locations.
Nonetheless, under the precedent cited, no minimum
number of persons is necessary to create a picket line.
The issue is not how many persons participated, but
rather the activities in which they were engaged. Here,
the Respondent’s agents patrolled the area in front of the
jobsite entrances, and in so doing, they marked their ter-
ritory, creating a barrier. In finding the conduct by the
Respondent to constitute “patrolling,” we stress that the
testimony regarding each of the three worksites in this
case specifically indicated that the Respondent’s agents
walked back and forth across the sites’ entrances. The
Respondent has not attempted to dispute this description,
or to contend that it occurred only when a handbiller was
approaching an intended recipient of a handbill. In the
absence of any evidence that the movement by the Re-
spondent’s agents could reasonably be described as
something other than what it appeared to be, i.e., patrol-
ling, we find that the Respondent’s agents’ back and
forth movements at each of these locations effectively
formed a barrier at the entrance to the sites that could be
viewed as a form of picketing.

5 While the picketing in this case involved patrolling, the Board has
held that “neither patrolling alone nor patrolling combined with the
carrying of placards are essential elements to a finding of picketing;
rather the ‘important’ or essential feature of picketing is the posting of
individuals at entrances to a place of work.” Service Employees Local
87 (Trinity Maintenance), 312 NLRB 715, 743 (1993), enfd. mem.103
F.3d 139 (9th Cir. 1996), citing Laborers Local 389 (Calcon Construc-
tion Co.), 287 NLRB 570, 573 (1987); Teamsters Local 282 (General
Contractors Assn. of New York), 262 NLRB 528, 529 (1982), Carpen-
ters Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388 (1965);
see also Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 677,
686 (2001). The Board has also held that other conduct, apart from
patrolling with placards, can be activity that constitutes picketing or at
least “restraint or coercion” within the meaning of Sec. 8(b)(4)(ii)(B).
See, e.g., Brandon Regional Medical Center, supra, 346 NLRB at 200.
Member Liebman, for the reasons expressed in her concurrence in
Brandon Regional Medical Center, supra, emphasizes that picketing is
differentiated from handbilling or other forms of mere persuasion by its
association with some form of conduct that effectively creates a physi-
cal or symbolic barrier. In her view, picketing is defined not by the
mere presence of individuals, but by conduct that results in a coercive
confrontation. See Chicago Typographical Union No. 16 (Alden
Press), 151 NLRB 1666, 1669 (1965) (“The Board has held that not all
patrolling constitutes picketing in the statutory meaning of that term . . .
. ‘One of the necessary conditions of ‘picketing’ is a confrontation in
some form’ . . . .”).
The fact that the Respondent did not use picket signs is
not controlling. Jeddo Coal Co., 334 NLRB at 686.
Moreover, one respondent agent momentarily blocked at
least one employee of a neutral contractor—Joseph
Dauman—from entering The Ranches’ worksite.
Dauman had not slowed to accept a handbill, or other-
wise indicated a willingness to communicate with the
Respondent’s agents. When Dauman failed to heed the
Respondent’s agents, Dauman saw them taking note of
the information on his license plate, which could be used
to identify him, and then immediately communicating
with someone by phone. Such intentional restraint of
another person’s freedom of movement, with the appar-
ent collection of information regarding those who
crossed onto the site, amounted to coercive confronta-
tion. Operating Engineers Local 17 (Hertz Equipment
Rental), 335 NLRB 578, 584 (2001); Big Horn Coal Co.,
309 NLRB 255, 258 (1992). That coercion was unlawful
under Section 8(b)(4)(ii)(B).
The Respondent’s patrolling at The Ranches also con-
stituted an unlawful inducement under Section
8(b)(4)(i)(B). In an attempt to argue the contrary, the
Respondent claims that its protest was primarily directed
at the public, and not at employees of contractors work-
ing onsite. However, the evidence establishes that the
Respondent’s agents arrived onsite each day at The
Ranches location 2-1/2 hours before the sales office
opened, at a time when only employees of contractors
would encounter them. Thus, their activities, including
patrolling and the blocking of the entrance, were plainly
directed at employees of neutral companies. As noted
above, the Respondent also temporarily blocked em-
ployee Dauman’s entry to the jobsite, thereby inducing
him not to work, in violation of Section 8(b)(4)(i)(B).
Under these circumstances, we find that the Respon-
dent’s protest activities at The Ranches constituted
unlawful picketing under Section 8(b)(4)(i) and (ii)(B).6
Having found the alleged violations on this basis, it is
therefore unnecessary to consider the further implications
of the Respondent’s use of an inflated rat, and we do not
pass on the judge’s conclusion that the Respondent’s
deployment of the rat itself constituted signal picketing.
2. As described above, the judge also concluded that
the Respondent violated Section 8(b)(7)(C) at all three
jobsites by engaging in recognitional picketing for an

6 We find it unnecessary to rely on the judge’s discussion of the Re-
spondent’s conduct in relation to The Ranches’ implementation of a
reserve gate system at the Mt. Sinai site. Our finding that the Respon-
dent engaged in prohibited conduct is supported by the Respondent’s
initial picketing at this site, which occurred prior to the creation of the
reserve gate system and by Silva’s October 30 letter to The Ranches
stating a proscribed cease-doing-business objective with respect to this
neutral employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
unreasonable period of time in the absence of an election
petition. We have applied Section 8(b)(7)(C) to bar rec-
ognitional picketing exceeding 30 consecutive days, rely-
ing on the clear statutory language. Retail Wholesale
Union District 65 (Eastern Camera & Photo Corp.), 141
NLRB 991, 999 (1963). However, the Board has held
that recognitional picketing for fewer than 30-
consecutive days may also be unlawful, where the pick-
eting, albeit intermittent, spans a period longer than 30
days. Electric Workers Local 265 (RP&M Electric), 236
NLRB 1333 (1978), enfd. 604 F.2d 1091 (8th Cir.
1979).7 In this case, the judge found that the Respon-
dent’s recognitional picketing intermittently conducted at
the three separate jobsites over a period covering 4
months was unreasonable, even though the picketing
occurred on only 28 specific days during that period.
Under the precedent, we agree that the duration of the
Respondent’s picketing was unreasonable within the
meaning of Section 8(b)(7)(C).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers’ Eastern Region
Organizing Fund, its officers, agents, and representatives,
shall take the actions set forth in the Order.
Richard Bock, Esq., for the General Counsel.
Lowell Peterson, Esq. (Meyer, Suozzi, English & Klein, P.C.),
of New York, New York, for the Respondent.
Steven M. Coren, Esq. (Coren & Braun, Esqs.), of New York,
New York, for the Charging Party.
Richard B. Ziskin, Esq. (The Ziskin Law Firm, LLP), of Com-
mack, New York, for Charging Party The Ranches at Mt.
Sinai.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge in Case No. 29–CC–1422 filed by The Ranches at Mt.
Sinai (The Ranches) on March 17, 2003, and based upon a
charge in Case No. 29–CP–662 filed by Concrete Structures,
Inc. (Concrete) on November 15, 2002, a complaint, as
amended at the hearing, was issued on April 9, 2003 against
Laborers’ Eastern Region Organizing Fund (Respondent or the
Union).
The complaint alleges essentially that the Respondent
erected a large inflatable rat and distributed handbills at three
construction jobsites where Concrete performed work, with an
object of forcing Concrete to recognize and bargain with it as
the collective-bargaining representative of Concrete’s employ-
ees in violation of Section 8(b)(4) and (7)(C) of the Act. It is

7 See also Operating Engineers Local 4 (Seaward Construction Co.),
193 NLRB 632 (1971), and Butchers’ Union Local 120 (M. Moniz
Portugese Sausage Factory), 160 NLRB 1465, 1469 (1966).
further alleged that the Respondent’s conduct at The Ranches
jobsite had as its object forcing or requiring The Ranches to
cease doing business with Concrete in violation of Section
8(b)(4)(i) and (ii)(B).
The Respondent’s answer denied the material allegations of
the complaint and asserted certain affirmative defenses, includ-
ing that its activities, which did not involve picketing, consti-
tuted expressive acts protected by the First Amendment to the
United States Constitution, and the publicity provisos of Sec-
tion 8(b)(4) and (7) of the Act.
Prior to the opening of the hearing, the Respondent filed a
Motion for Summary Judgment with the Board. On November
18, 2003, the Board denied the motion and remanded the case
for hearing. The Board noted that the General Counsel argued
that he should be given the opportunity to present evidence to
establish that, in the construction industry, the rat is commonly
understood to communicate the same message as actual picket-
ing. The Board stated that “we agree with the General Counsel
that, in view of the novelty of this issue, a fully developed re-
cord would assist in our determination whether the Respondent
committed the unfair labor practices alleged.”
On February 28, March 1 and 2, 2005, a hearing was held
before me in Brooklyn, New York.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Ranches, a domestic corporation, having its office and
place of business at 760 Route 25A, Mt. Sinai, New York, has
been engaged in the construction of a residential housing de-
velopment. During the past year, The Ranches purchased and
received at its Mt. Sinai facility, products, goods, and materials
valued in excess of $50,000 directly from firms located outside
New York State.
Concrete, a domestic corporation having its office and place
of business at 2380 Pond Road, Ronkonkoma, New York, has
been a concrete contractor in the construction industry. During
the past year, Concrete purchased and received at its Ronkon-
koma facility, products, goods, and materials valued in excess
of $50,000 directly from firms located outside New York State.
The Respondent admits, and I find that The Ranches and
Concrete are employers engaged in commerce within the mean-
ing of Sections 2(2), (6), and (7) and 8(b)(4)(B) of the Act, and
that it is a labor organization within the meaning of Section (5)
of the Act.

1 Following the close of the hearing, I received, pursuant to agree-
ment reached at the hearing, R. Exhs. 18 and 19, a translation of a
videotape and a reduced image of a picket sign, respectively. Those
exhibits have been included in the Respondent’s exhibit file.
The General Counsel’s unopposed motion to correct the transcript is
granted. Appendix B contains the corrections [omitted from publica-
tion].
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1255
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case essentially involves the question of whether hand-
billing accompanied by the presence of a large, inflated rat
balloon at a construction site by a union having a labor dispute
with a company performing work at that jobsite, constitutes
unlawful signal picketing in violation of the Act. The Respon-
dent did not utilize agents wearing or carrying picket signs at
any of the jobsites involved herein, but a sign stating “Concrete
Structures” was displayed on the rat.2
The Respondent is an organizing fund whose function is to
organize nonunion companies and engage in organizational
activities on behalf of the Laborers’ International Union of
North America (LIUNA). General Building Laborers’ Local
Union No. 66, whose jurisdiction generally includes concrete
and related work, is an affiliate member of LIUNA through the
Mason Tenders District Council.
B. The Jobsites
1. Mills Pond Elementary School
Concrete performs such work as pouring concrete for build-
ing foundations, curbs and sidewalks. It employs about 30
workers. Americo Magalhaes, the president of Concrete, testi-
fied that in 2002, he was asked each month by Byron Silva, the
respondent’s regional coordinator, to sign a contract with Local
66. In June or July 2002, Silva again asked him to sign a con-
tract, and Magalhaes refused.
In July 2002, Concrete’s employees were employed at a con-
struction site at the Mills Pond Elementary School in Smith-
town, New York. The Respondent’s answer admits that for
about 2 weeks in July 2002 at this jobsite, it erected a 15-foot
inflatable rat with a sign positioned on the rat’s midsection
stating “Concrete Structures,” and distributed handbills contain-
ing a photograph of a cracked concrete curb, which stated:
Watch Your Steps
Your children may get hurt walking on the new curves [sic]
just built two weeks ago and they are already cracked.
Who is responsible for all this mess????
CONCRETE STRUCTURES
Who is responsible to have a RAT in front of Mill Pond
School???
CONCRETE STRUCTURES
Call Americo Magalhaes
Owner of Concrete Structures
At 631–588–7613 and ask:
Americo was the foundation of the school built the same
way???
Americo How much money [sic] the taxpayers have to pay to
fix the problem???
Americo Why [sic] our children have to be exposed to this
dangerous situation.

2 The rat presents an imposing figure. The rats here were 15- or 30-
feet high. The body of the rat is gray with pink eyes, ears and nose. It
sits on its haunches with its front paws outstretched and claws ex-
tended. Its mouth is open, baring its teeth.
Laborer’s Local 66
Laborer’s Eastern Region
Justice in Concrete
631–753–0756
This dispute is only with the above named employer Concrete
Structures. We are not asking other employees of other em-
ployers to stop, [sic] nor are we asking any members of the
public to participate.
Labor Donate [sic]
On July 15, the Respondent attempted to place the rat at the
entrance to the jobsite, but was required by the police to set it
up on a road opposite and across the street from the school
construction site, where handbilling occurred. Silva testified
that the purpose of the handbills was to call the attention of the
taxpayers and parents of the students to the fact that Concrete
was working at the jobsite. He stated that it was not the Re-
spondent’s intent to cause people to cease work or to cause
anyone to refuse to make deliveries.
Magalhaes stated that the Union’s agents paced back and
forth near the rat while giving handbills to pedestrians, includ-
ing school board members and parents of students. On July 16,
Silva asked Magalhaes to sign a contract with Local 66, saying
that the rat would remain at the jobsite, and the handbilling
would continue.
At a meeting on July 17, Silva gave Magalhaes a sample col-
lective-bargaining agreement of Local 66 effective from July 1,
1999, to June 30, 2002. During that meeting, Magalhaes was
not asked any questions concerning the quality of the work
performed by his company. The Respondent’s answer admits
that in about mid-August 2002, Silva demanded that Concrete
recognize, bargain with and sign a contract with a local union
affiliated with the Respondent.
2. Harborview Townhouses
In September 2002, Concrete’s employees were employed at
a construction site at the Harborview Townhouses in Roslyn,
New York. The Respondent’s answer admits that for about 2
days in September 2002, it distributed handbills and erected a
30-foot inflatable rat with a sign positioned on the rat’s midsec-
tion stating “Concrete Structures.” The purpose of the hand-
bills, according to Silva, was to alert the public to the fact that
Concrete was working at the site. The handbills stated:
Check Your Bill
Has Marriott Charged You Too Much?
Marriott International has a history of charging
Customers for such frivolous items as electricity!
Recently, Marriott paid over $400 million to stockholders
After accounting problems were discovered.
They are also using Concrete Structures on their Port Wash-
ington, NY project, who is a contractor with a history of
shoddy work.
Call CEO JW Marriott @ (301) 380-1825 and ask him if you
are paying for his mistakes and Concrete Structures shoddy
work!
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1256
Justice in Concrete
Laborers’ Eastern Region Organizing Fund
631–753–0756
This dispute is only with the above employer, Concrete Struc-
tures, Inc. We are not asking other employees of other em-
ployers to stop work. Nor are we asking any member of the
public to participate.
Labor Donated
The Respondent attempted to erect the rat at the corner of the
jobsite, but was required to move it, so that it sat on the median
strip of a public street 250 feet from the jobsite entrance, and
about one-quarter mile from the jobsite itself, which was lo-
cated inside a golf course.3 Magalhaes testified that he saw two
or three union agents pace back and forth at the rat, distributing
handbills to pedestrians, homeowners, and those driving past
the site.4
3. The Ranches at Mt. Sinai
In March 2002, Concrete began work at The Ranches at Mt.
Sinai, New York, at which 186 residential homes were being
built on a 33 acre site. TiBi Contracting, Inc. a general contrac-
tor for The Ranches, entered into contracts with 20 to 30 sub-
contractors, including Concrete, to perform work at the site.
On October 28, 2002, the Respondent erected a 30-foot high,
12- to 15-foot wide inflated rat at the main, front entrance, with
a sign positioned on the rat’s midsection stating “Concrete
Structures.” The sign was placed on the rat, according to Silva,
to identify “who the problem was with,” and to have Concrete
sign a contract with Local 66. Accompanying the rat were two
union agents who distributed handbills to motorists. At least
one of the handbillers wore a Laborers’ Union jacket with the
writing “Organizer” on it. Silva’s notes of that day stated that
we “set up the line around 8:30.” Silva testified that he decided
to use a rat and handbillers because he expected that it would
be “effective” since potential home purchasers visiting The
Ranches would immediately notice the rat, and would inquire
as to what was happening. The purpose of the demonstration
was to draw attention to the fact that Concrete was working at
the site. Motorists entering the site had to slow down in order to
turn onto the site, passing the rat. Two handbills were distrib-
uted. One of them stated:
The Ranches at Mount Sinai
BUYER BEWARE
The “old charm” of Long Lake Development5
Is not all its [sic] cracked up to be!
Long Lake Development has hired Concrete Structures for
concrete work on this project.

3 Silva testified that the rat was positioned one-quarter mile from the
entrance.
4 Magalhaes later testified that no pedestrians walked in the vicinity
of the rat.
5 According to an official of Tibi, Long Lake Development was a
prior construction project in another area which did not involve Tibi,
and was not involved with The Ranches project.
Concrete Structures has a history of poor work, such as crack-
ing in the concrete of the Mill Pond E.S. in Smithtown after
just two weeks.
If you are considering buy [sic] a house at this location call
Americo Magalhaes @ (631) 588–7613
Ask him for a guarantee that the concrete will not crack or
crumble after two months.6
Justice in Concrete
(631) 733–0756
This is directed to the public. We are not asking anyone to
cease work or stop deliveries.
Labor Donated (Emphasis in original)
The other handbill was identical to this one, except the words
“The Ranches at Mount Sinai” were omitted, and the reader
was asked to call Nick Cassis, an official of TiBi, and not Ma-
galhaes.
Silva testified that immediately after the erection of the rat,
he was asked by Local 66 President Robert Bonanza whether
“we have a picket line.” Silva replied, “[W]e had only (2 guys)
hand bill and the rat.” Bonanza told Silva that an agent of Local
282 Teamsters which represents drivers who deliver concrete,
told him that one of his contractors, Scalamandre Corp., was
delivering concrete to the site, and he wanted to know whether
there was a problem, and what the situation was at the jobsite.
In addition, a Scalamandre official told Silva that he was con-
cerned about losing the job, and asked him what was going on.
Silva told him that he did not ask anyone to stop work, and that
“everything is fine, go do your job.” Silva stated that the
Scalamandre representative drove him around the project,
showing him that the project was nearly finished, and that Con-
crete had only a few units to complete. Silva’s notes stated that
the Local 282 agent said that the “company [Scalamandre] is
going to honor the line even if it is informational. . . .,” but then
was advised that Local 282 drivers would not make deliveries
only in the event that a picket line was established. Silva’s
notes indicate that he did not want to do anything to hurt a “un-
ion company.”
Magalhaes testified that he advised his unionized concrete
supplier that an inflated rat was present and the laborers were
picketing, and asked if the supplier’s drivers would cross the
“picket line.” The supplier advised that the drivers would not
enter the jobsite if an inflated rat was present, and Magalhaes
obtained another supplier. There is some question as to this
testimony since no company, other than Scalamandre, was
identified as delivering concrete to Concrete Structures. I note
that Seville Ready Mix was listed on Antonucci’s letter of Oc-
tober 31 as one of the contractors which should use the neutral
reserved gate, and therefore it presumably was not a supplier of
Concrete.
On October 30, Silva sent the following letter to Ranches of-
ficial Cassis:

6 Silva testified that on October 29, he was informed that a resident
of The Ranches, Jenny Otto, who is also a member of Local 66, told the
Respondent’s organizers that she had problems with the concrete work
at her house.
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1257
The Laborers’ Eastern Region represents over 40,000
construction workers who live and work in New Jersey,
Delaware and New York.
We are presently engaged in a Long Island campaign
of the concrete industry to monitor concrete contractors to
ensure compliance with those laws that govern and di-
rectly affect the health and safety of these construction
workers, as well as the communities they work in, and the
overall completion of these public works projects.7 To
achieve this objective, we have been investigating any ir-
regularities and working closely with awarding agencies to
promote safety and fairness in all projects.
We believe the workers’ and public’s interest is best
served when public contracts are awarded to the lowest,
responsible bidder. In our experience a non-responsible
bidder can be a burden to the awarding agency.
Through our research and job-site investigations, we
have discovered concrete contractors we believe to have
blatant disregard for the prevailing wage laws as well as
health and safety issues surrounding construction.
Among other issues that are commonly faced on con-
struction sites, our investigation shows that the concrete
industry contractors habitually do not pay their workers
the prevailing wage, as required by law. They also do not
seem to use workers who are experienced and trained, a
dangerous start to any project. Perhaps this is why they
end up with cost over-runs, lawsuits, shoddy work, and in-
jured workers.
We have included a packet of information regarding
Concrete Structures, Inc. It is our contention that Concrete
Structures Inc. is not the most reputable contractor for
your project based on the evidence provided in this packet.
There are other instances that we are in the process of in-
vestigating that way [sic] show additional violations of
other laws made by this contractor.
We ask that this project be awarded to a contractor that
is responsible. We feel obligated to inform you that we
have launched and will continue to execute a publicity
campaign against such inferior contractors for their many
questionable practices and will do so at any site in which
they have been hired to work.
Please review this information and contact us with any
comments or questions. We look forward to working with
you to insure compliance and accountability by all con-
struction contractors. Your cooperation would be greatly
appreciated. [Emphasis in original.]
Attached to the letter was a two page document entitled “Se-
rious Questions Regarding Concrete Structures’ Past and Fu-
ture.” It asserted that, according to a New York State Depart-
ment of Labor list, Concrete was fined for not complying with
the prevailing wage law, and that it “bilked workers and tax-

7 Silva testified that this campaign had been ongoing for about one
year, and that the Respondent sent similar letters, with similar attach-
ments, regarding other contractors to public officials, general contrac-
tors and developers.
payers out of hard earned dollars.”8 The letter also asserted that
Concrete had serious safety violations of the Occupational
Safety and Health Act (OSHA), with fines of $6900, which
shows “a general trend of lawlessness that could jeopardize the
completion of your project.” The Respondent obtained this
information from the OSHA website which listed Concrete’s
violations in 1997, 1999, and 2000.
The letter also referred to photographs of cracked concrete at
the Mill Pond School which “jeopardized the structural integ-
rity of the building and surrounding area, posing a long term
hazard to its future occupants.” It noted that the cracks ap-
peared only days after it was poured by Concrete. Finally, the
letter stated that companies owned by Magalhaes in Connecti-
cut, including one named Concrete Structures, “went under.” It
claimed that according to Dun and Bradstreet, Concrete Struc-
tures of New York “has a history of failing to pay its bills on
time. Financial stress such as this could hinder the completion
of a project if concrete deliveries are slowed or stopped because
of a contractor’s failure to pay his bills.”
Silva testified that, in asking that a different contractor be
awarded the contract, he was aware that the contract had al-
ready been awarded to Concrete, and that it had been working
at the jobsite for many months and had nearly completed the
job. Nevertheless, he did not regard Concrete as a responsible
contractor because it had OSHA violations and its concrete
work was shoddy. His purpose in writing the letter was to ad-
vise The Ranches what he knew about Concrete, and also that
“we’re trying to sit down with [Magalhaes] and discuss our
issues,” but not necessarily to have him sign a contract with the
Union.
Robert Antonucci, the project manager for TiBi and vice
president of construction for The Ranches, testified that on
October 29, he noticed that the employees of two subcontrac-
tors, Three Brothers Electric and Triangle Building, were not at
work, and that S.A. Anderson was not making deliveries of
supplies to subcontractor Master Cooling. Antonucci learned
from his superintendent that the employees of those three com-
panies arrived at the entrance of the jobsite but did not enter it
because there were “union problems.”
On October 31, Antonucci sent a letter to the Respondent
which stated, in relevant part:
Our company has been advised that the Laborers Eastern Re-
gion Organizing Fund and/or Laborers Local 66 has com-
menced picketing on October 28, 2002 at the above-
mentioned location.
The letter advised that one reserved gate had been estab-
lished for the exclusive use of Concrete and its employees,
suppliers, customers and visitors, and another, neutral reserved
gate had been established for the residents of The Ranches and
other contractors and their employees, including Master Cool-
ing, Three Brothers Electric, and Triangle Building Products.

8 The Respondent obtained from the New York State Department of
Labor, a list of “non-willful” violators of the prevailing wage law,
listing Concrete Structures, Inc.. The violation date is 1992. Magalhaes
claimed that Concrete has been in business only since 1994, which
casts some doubt on whether this listing refers to the company at issue
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1258
Silva denied receiving the letter. Fabio Morales, one of the
organizers, was handed the letter but he refused to accept it.
However, Silva read the signs on both reserved gates. Antonu-
cci testified that the Respondent did not request permission to
enter the premises or erect a rat or demonstrate at that part of
the jobsite where Concrete was working.
On November 1, The Ranches established and maintained
two gates at the jobsite. Gate 1, in the rear of the property, was
reserved for the exclusive use of Concrete and its employees,
suppliers, customers and visitors. Gate 2, at the main, front
entrance to the site, was reserved for the exclusive use of the
residents of The Ranches and all others doing business with
The Ranches, and their employees, suppliers, delivery persons,
customers and visitors. After the establishment of the reserved
gates, the employees of Three Brothers and Triangle Building
entered the jobsite and resumed work. Antonucci stated that
since Triangle’s drivers would not enter the site at gate 2 where
the rat was situated, its driver used gate 1, which was the gate
reserved for Concrete. In addition, the employees of S.A.
Anderson would not deliver materials to the site, so they met
subcontractor Master Cooling off site and transferred the mate-
rials to its truck. Master Cooling then brought the materials
onto the site and performed the work. Antonucci did not recall
seeing any Respondent agent speak to any employees of the
subcontractors, but he did see them talking to people entering
the jobsite and attempting to speak to occupants of vehicles
entering the site.
The Respondent’s answer admitted that, from November 1 to
15, following the establishment of the reserved gates, it main-
tained the rat and engaged in handbilling at gate 2, in the same
manner as it had as set forth above, on October 28.
According to Antonucci, all the workers and construction
vehicles used gate 2 to enter the premises. Silva stated that
following the establishment of the reserved gates, he noticed
that Concrete’s employees and vehicles continued to use gate 2
at the main entrance of the jobsite although they were supposed
to use gate 1, at the rear of the jobsite. He testified that the Re-
spondent maintained the rat at the main entrance because that
gate was being used by Concrete, and also because the Respon-
dent had no picket line, and thus he saw no need to observe the
reserved gate system. He did not notify The Ranches that Con-
crete was using the wrong gate. Silva maintained that the hand-
billers did not chant, patrol, or block traffic, pedestrians, or the
entrance to the jobsite. He instructed the handbillers to offer a
handbill to pedestrians and drivers, but if one was refused, not
to insist that it be taken. He noted that if the handbiller was on
one side of the street and a car on the other side, the handbiller
had to cross the street to offer a handbill.
According to Magalhaes, the Respondent’s agents walked
back and forth in front of the rat at the main entrance gate 2,
and were present 8 hours per day, from about 7:30 a.m. when
the construction workers arrived, until 5 or 6 p.m., handbilling
the homeowners whose homes were already built, and also
prospective homebuyers who visited the site when the sales
office was open between 10 a.m. and 5 p.m., or later by ap-
pointment. The actual worksite at which Concrete’s employees
were working was about 500 feet from the entrance to the job-
site. Antonucci stated that on occasion the agents walked back
and forth across the entrance to the jobsite, interfering with
homeowners entering and leaving, and at other times, just stood
next to the rat.
Joseph Dauman, a heavy equipment apprentice for nonunion
Suffolk Paving Corporation, worked at The Ranches jobsite for
about eight days. He testified that the Union’s agents did not
walk back and forth across the entrance, but “formed” in the
entrance and then separated to permit cars to pass. When he
drove through the main entrance gate, the Respondent’s agents
looked at his vehicle’s license plate and made a phone call after
he entered.
On November 4, Antonucci sent a letter to Concrete owner
Magalhaes which stated:
Please be advised that your contract will be terminated on
November 8, 2002. The cause for terminate [sic] is that you
are unable to perform as per your contract. I understand that
the union picketers in front have caused your delays, but we
have a project to complete. I have filed an injunction to have
them move to a reserved gate but they have not. Be advised
that we will also seek to recover any and all damages that
have been caused by this labor disruption.
After receiving the letter, Magalhaes spoke to Antonucci
about the Respondent’s conduct. In their conversation, they
both referred to the Respondent’s actions as “picketing,” and its
agents as “picketers.”
Magalhaes also called Respondent official Silva, requesting
a meeting in order to obtain some accommodation which would
enable Concrete to finish the project. At that time, Concrete had
been working at the jobsite for about 1 year, and had about 10
percent to 15 percent of the job left to complete. On November
6, Magalhaes met with Silva, Bonanza, the president of Local
66, and others. Magalhaes testified that the Respondent’s repre-
sentatives “put pressure on me to sign a contract. . . . They said
to me that they wanted me to join the union and sign a contract
and I told them that I wouldn’t.” Magalhaes asked them why
they wanted him to sign a contract if they believed that his
work was inferior. Magalhaes testified that Silva simply
“shrugged.” Silva stated that he told Magalhaes that the Union
could train his workers if their work was of poor quality. Ma-
galhaes told them that, in addition to the commercial work at
The Ranches, he also did residential work for which there was
no union rate. The agents asked him to set a residential rate and
call them within 1 week during which time they would remove
the rat. The Respondent withdrew its rat and engaged in no
handbilling at the jobsite during the following week. However,
when Magalhaes failed to call the Respondent, the rat was
again erected and the handbilling resumed.
Silva conceded that the Respondent sought to represent the
employees of Concrete, and admits asking Magalhaes on No-
vember 6 to sign a contract with Local 66, explaining that he
was trying to reach an agreement with Magalhaes.
On November 13, Antonucci sent another letter to Magal-
haes advising him as follows:
Last week when we spoke, you stated that the picket-
ers outside my gate would be gone. They were gone for
about one week. As of 2:30 p.m. this afternoon, they re-
turned to my job site.
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1259
As you are aware, I stated to you that your contract
would be terminated if they returned. This letter is to in-
form you that as of November 13, 2002 at approximately
2:30 p.m. your contract is hereby terminated and we will
be bringing in another concrete contractor at your expense.
Please note that all additional costs and damages will
be deducted from your contract.
Concrete left the jobsite on November 13, and shortly there-
after, the Respondent removed its rat and the handbillers. Anto-
nucci stated that when the rat and handbillers departed, there
was no further issue concerning the delivery of supplies or
whether contractors would work at the site.
On November 15, Silva was told by Local 66 President Bo-
nanza that Teamster concrete supplier Scalamandre advised that
since Concrete was no longer on the project, it would be com-
pleting its contract with The Ranches. Scalamandre requested
that Bonanza ask Silva to remove the rat. Silva’s supervisor,
David Johnson, told Silva that if the Respondent obtained a
letter from The Ranches saying that Concrete “no longer will
work in the project, we could take the rat down.” A letter to that
effect was faxed to the Respondent, and the rat and the hand-
billers were removed that day. Silva testified that he removed
the rat because Scalamandre explained to Bonanza that since
Concrete was gone it (Scalamandre) did not want to “get hurt”
because it was afraid of losing its contract with The Ranches.
Silva expressed the belief that the Respondent could help
Scalamandre by removing the rat, and if it did not, Scalamandre
might blame the Respondent because of its presence at the pro-
ject. Silva explained that although it still had a dispute with
Concrete, there was no reason to wait before it removed the rat.
Silva stated that after the Respondent left the jobsite, he did not
pursue any issue concerning Concrete’s work at other jobsites.
In about 2 weeks, Concrete returned to work at The Ranches.
However, the Respondent did not return since it was busy with
other matters.
C. Allegations of Poor Work by Concrete
Silva stated that he took the photograph of the cracked con-
crete curb at the Mills Pond School which was included in the
handbill distributed there, and referred to in The Ranches hand-
bill. He admittedly did not know how or why the curb, which
was poured by Concrete, was cracked, but stated that it should
not have cracked after having been poured only a few weeks
before. He expressed his belief that the crack may have been
caused by poor workmanship—too much water in the concrete,
an improper excavation, or the subgrade was not firmly com-
pacted. He conceded that it could have been cracked if a vehi-
cle ran into it.
Magalhaes denied that Concrete cracked the curb pictured in
the handbill, or performed shoddy work. Antonucci stated that,
in his 10-year experience with Concrete, during which it had
poured concrete for 600 housing units, he was not aware that
any concrete poured by it had cracked. However, he stated that
following the erection of the rat he received many complaints
regarding concrete work at The Ranches project. No complaints
had been received prior to the rat’s arrival. However, it should
be noted that documents received in evidence establish that The
Ranches received complaints concerning cracked cement steps
on July 30, 2002, before the erection of the rat. Whether those
cracks were the fault of Concrete has not been established. In
addition, The Ranches had received a complaint concerning
alleged structural damage to a concrete platform and steps at
Long Lake in August 2002, which it referred to Concrete. A
question was raised at the hearing, which has also not been
resolved, as to whether Concrete poured that platform and
steps.
D. Opinions Regarding the use and Effect of the Rat
at Construction Sites
1. The General Counsel’s evidence
Concrete’s president Magalhaes has been in the construction
industry for 11 years. A rat and handbilling have taken place at
every other job his company has engaged in. He stated that in
the construction industry the presence of a rat is synonymous
with a “picket.” Magalhaes stated that before the construction
unions used an inflated rat, they would place 50 to 60 people on
a line at the entrance to a jobsite, with or without picket signs.
However, once the rat was employed, fewer people were
needed because people approaching the area “automatically”
knew that the rat represents a picket line. Magalhaes gave his
opinion that employees represented by a union would not enter
or work at a jobsite having an inflated rat.
The Ranches’ official, Antonucci, stated that he has seen a
rat at jobsites, although this was the first time one was used at
one of his projects. He testified that the presence of a rat indi-
cates that the job is being picketed, which is why he stated in
his letters to Concrete that pickets were at the site. After the
erection of the rat at The Ranches, he received a call from a
contractor and a building inspector, asking why the project was
being picketed.
Michael Loturco, the vice president of LNV Site Develop-
ment, a nonunion contractor who has been in the construction
industry for 30 years, testified that a rat was erected at several
jobs that he was involved with. He stated that the presence of a
rat is synonymous with a picket line, which to him indicates
that the demonstrating union wants the job to become union-
ized, and that it is attempting to interfere with deliveries, make
the job slow or shut down, and intimidate the nonunion work-
ers. He further stated that he cannot get deliveries from his
unionized precast concrete manufacturer whether there is a
traditional picket line with pickets wearing signs, or just a rat,
adding that the employees of those companies will not enter a
jobsite in either case.
Todd Panzner, the president of Panzner Environmental
Corp., a nonunion company performing asbestos abatement and
demolition, has been in the construction industry for 30 years.
He has observed demonstrations where the union displays a rat
with handbills only, and jobsites where a rat is accompanied by
patrolling pickets wearing picket signs. In Panzner’s opinion,
there is no difference in effect between either type of action,
and he believes that the rat symbolizes that a nonunion com-
pany is working at the targeted jobsite.
Panzner cited an instance involving his work at a Garden
City, Long Island renovation project. Laborers Union Local 78
erected a rat with handbillers, but no traditional picketing at the
office building of the project owner, Albanese Development,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1260
which was across the street from the jobsite. No one refused to
work at the jobsite and no one refused to make deliveries. This
might be explained by the fact that Panzner was the first trade
at the jobsite, being involved with demolition and asbestos
removal of the existing structure. Panzner spoke with Local 78
president Edison Sevarino before the rat was inflated. Sevarino
said that he wanted the job performed by union labor. At a
meeting with Sevarino, Panzner offered to employ some union
laborers but Sevarino wanted the job to be completely staffed
with workers represented by Local 78. A rat was also erected at
that time at a location owned by Albanese in Manhattan, at
which Panzner was not working and had never worked.
At a jobsite in Levittown, Long Island in April, 2004, Local
66 erected a rat, and engaged in handbilling and traditional
picketing with 10 to 12 pickets carrying signs that said that the
union was opposed to Panzner working at the site. Other trades
which were working at the jobsite did not stop work. Panzner
worked at the jobsite for 6 weeks, and was then removed by the
nonunion general contractor.
James Sutherland, the president and owner of Highland Cor-
poration, a nonunion carpentry subcontractor, has been in the
construction industry for 30 years. He has seen rats erected at
jobs that his company performed, and at jobs he was involved
with. Sutherland believes that the rat indicates to the trades
working at a jobsite that there is a “labor problem” there. He
stated that the rat’s message is the same as that conveyed by a
conventional picket line and picket sign. Sutherland expressed
his opinion that the message given by a rat with handbillers is
the same as the message expressed by traditional picketing with
picket signs.
David Wenger, the president of L.D. Wenger Corp., a gen-
eral contractor, has been in the construction industry for 25
years. He first saw a rat erected at one of his projects in the
summer of 2004, and has seen them for 10 years. He stated that
they are more visible than two or three people wearing picket
signs. In his opinion, a rat signifies that there is a labor dispute
on the job. In Wenger’s opinion based on his experience, there
was no difference between the message given by a rat accom-
panied by handbillers and pickets carrying picket signs inas-
much as they have the same effect on workers attempting to
enter a jobsite. However, he also stated that an inflated rat
would not prevent work from being done at nonunion construc-
tion sites, but that deliveries made by a union truckdriver may
not be made, depending on the driver.
Wenger testified that in the summer of 2004, he was the gen-
eral contractor for a pool restoration in the Town of Brook-
haven in Long Island. During the progress of the job, Local 66
first picketed the job with a picket line and picket signs. Then it
negotiated with Wenger in an effort to have him use all union
labor on the project. Thereafter, Local 66 erected a rat with
handbillers, but on occasion would alternate, on different days,
the use of pickets and the rat with handbillers. When it used the
rat, a picket sign was posted on the rat. Wenger stated that the
impact was the same—the mechanical and electrical trades
people would not work regardless of whether traditional picket-
ing took place or the rat was present with handbillers.
During the same period of time, Wenger won a contract in-
volving the construction of a library in the Town of Babylon,
Long Island. After the bids for the project were opened, but
before Wenger was awarded the contract, a rat was erected on a
flat bed truck, accompanied by a handbiller. The handbills were
in protest of Wenger’s bid being accepted. No work was being
performed at that time. Prior to this demonstration, a represen-
tative of Local 66, Andrew Culpepper, asked Wenger whether
he intended to sign a contract with that union. Wenger replied
that the project was a prevailing wage job, and that he would
not sign such a contract. He told Culpepper that he was not
anti-union, and asked for the names of union contractors so that
he could consider them.
Ruth Mulford, the regional vice president of the New York
chapter of the Associated Builders and Contractors (ABC),
testified that she has seen an inflated rat at about 30 to 40 job-
sites in the past couple of years, and rats have been erected
outside her office where no construction work has been ongo-
ing, in support of a union’s belief that ABC is antiunion. ABC
has a large, inflated cat balloon which it used at a jobsite in
response to a picket line comprising 2000 people and four rats.
The cat was used as a symbol that the nonunion companies
being targeted would not be intimidated by that mass demon-
stration.
Mulford stated that when a rat is erected at a jobsite, she of-
ten receives calls from ABC’s member contractors expressing
fear that they will lose their contracts. It is her opinion that the
rat causes people to be afraid for their safety since it looks “on-
erous,” but added that when the rat is accompanied by only two
handbillers, there were no concerns about safety. She further
stated that an inflated rat has the same meaning as picketing—
an inference that there will be trouble, problems or possibly
violence at the jobsite. Mulford testified that with the early use
of the rat, it was accompanied by large numbers of demonstra-
tors, but lately only one or two people are present with the rat.
Mulford said that the reaction of the contractors to the rat
varied with their experience. Some general contractors take no
action such as establishing reserved gates or calling the police,
and work continues at the jobsite. In other instances, the gen-
eral contractor will terminate its contract with the subcontractor
because it does not wish to have work stoppages or disruption
at the jobsite. She stated that unionized trades will not enter the
worksite in the presence of a picket line or a rat with handbill-
ers, and that the meaning of both types of demonstrations is the
same. Mulford’s interpretation of the presence of an inflated rat
is that organized labor is protesting that “scab labor” is per-
forming work at the jobsite, and that the company which is the
object of the picketing is doing work that should be done by a
company having a contract with a union, or that it is in viola-
tion in some way.
Eric Andrews, an employee of Valentine Electric, Inc. which
does not have a contract with a union, stated that in his 6-1/2
years performing electrical work, he has worked at one jobsite
at which a rat was erected, and has seen rats at other sites he
has not worked on. He believes that the presence of a rat is the
same as a traditional picket line with pickets wearing picket
signs. The jobsite at which he was working involved the erec-
tion of a rat by an electrical workers union accompanied by
pickets. Workers who were represented by unions refused to
cross the picket line, and no deliveries were received.
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1261
Joseph Dauman has worked in the construction industry for 3
years, and has seen the rat erected at jobsites about eight times.
He stated that the rat represents a “union line” or picket line,
and sends the same message if it stands alone, or is accompa-
nied by people carrying picket signs, indicating that a nonunion
employer is working at the jobsite. Dauman testified that when-
ever he is at a jobsite containing a rat, he calls his employer and
advises that a rat is present, because he is concerned about the
safety of himself and his family. He suggested that a rat or
picket line is intended to frighten people. He stated that the
“reaction” by unionized employees when they observe a rat at a
jobsite is that they “tend” not to enter the area and deliver mate-
rials.
2. The Respondent’s evidence
The Respondent’s answer admits that it has been engaged in
a labor dispute with Concrete, and denies that it has been en-
gaged in a labor dispute with The Ranches. The Respondent
also admits that (a) it has not been certified by the Board as the
collective-bargaining representative of the employees of Con-
crete, and (b) no valid petition has been filed in which it sought
to represent the employees of Concrete.
The Respondent did not tell anyone entering The Ranches
that the purpose of its presence was to advise the public that the
Respondent did not have a contract with Concrete. The Re-
spondent denies that it has engaged in picketing at any of the
three jobsites, and contends that all of the handbills, which
were directed at the public and not at construction workers,
truthfully stated what it believed were the facts concerning
Concrete’s work.
The Respondent owns 10 rats. Locals 66 and 78 own two
each. Respondent official Silva testified that he has used the rat
about 300 times during the past 6 years. About 250 of those
occasions have been at construction sites. An inflated rat is
used in two different contexts: First, at jobsites to call to the
public’s attention to the fact that it has a “problem” with a
company or person, and second, away from the jobsites, as an
aid in protesting social issues.
With respect to the latter, social type of demonstration, the
Respondent erected a rat to protest the public comments by
baseball player John Rocker concerning New Yorkers and im-
migrants, and in support of a community organization which
protested a group in Farmingville, Long Island, which sought
the deportation of undocumented workers. The rat was also
present in the Respondent’s support of legislation to build a
West Side Stadium. In those instances, no work was being per-
formed and no deliveries were being made, and in any event,
there was no intent to interfere with such activities if they took
place.
The rat, accompanied by handbillers, has also been erected at
meetings of boards of education in order to inform the parents,
teachers and other members of the public of the identity of the
company expected to be awarded a construction contract. Silva
testified that the rat was not erected in order to protest the
awarding of the contract to a particular contractor, but to inform
the public that the contractor would be a “problem” if it is
working at the school. Such problems include where the con-
tractor does not have a “good record” and might put the stu-
dents at risk. Silva stated that his purpose is not to cause a
change in the contractor, which would not be done in any event.
The rat has also been erected at the home of the contracting
employer, and at office buildings where the contractor main-
tains its office, for the purpose of calling the attention of the
public or its neighbors to the issue.9
Silva testified that in none of the above instances is the pur-
pose of the rat to induce or encourage anyone to stop work or to
refuse to make deliveries.
The Respondent also erects a rat with about two handbillers
at jobsites where construction work is taking place. Its purpose
in doing so is to call the attention of the public to “what’s going
on.” He stated that, as in the above cases, it is not the purpose
of such a demonstration to prevent anyone from working or to
interfere with deliveries to the jobsite. He conceded, however,
that because the rat is huge, and is visible 30 to 50 yards away,
he could not determine whether a union-represented driver,
viewing the rat, simply drives past it without entering the job-
site.
Silva stated that the Respondent’s purpose in erecting a rat at
the Mills Pond, Harborview and The Ranches jobsites was to
bring to the attention of the public that Concrete was working at
the job site, and in order to “sit down with [Magalhaes] and
discuss our issues,” and have him sign a contract.
Silva distinguished between a picket line and a rat with
handbillers, but without accompanying pickets. He stated that a
picket line is established at a jobsite where there is a union
presence in which the picket line seeks to bring the “problem”
to the attention of the other building trades construction unions.
In those cases, the Respondent advises the local unions having
jurisdiction in that area, and those unions then contact the
building trades unions. When a trucker approaches the site, the
pickets speak to the driver and explain the situation at hand. If
there is a picket line, which is comprised of people walking in
circles wearing picket signs and chanting, the pickets try to
obtain the support of the other trades to stop work by asking
them to cease work or refuse to make deliveries. Although the
drivers are not required to honor the picket line, they generally
do not cross the line. Silva further testified that a picket line
does not necessarily have as its purpose to cause a company to
sign a contract with a union. It could be used to obtain better
benefits for the workers. Silva believes that people would not
enter a site at which a picket line was erected since they tend to
support each other. However, he noted that the union member
decides, on an individual basis, whether he will cross the picket
line. Union member John Dougherty corroborated Silva’s tes-
timony that the purpose of a picket line is to attempt to stop
people from entering, and ensure that union contractors do not
enter. As to those picket lines he observed, the message he
received was that “something was wrong,” that there are viola-
tions on the job or the contractor was not paying the correct
wages.
On the other hand, according to Silva, a rat accompanied by
handbillers simply seeks the support of the public. According to
him, such a demonstration does not constitute picketing. There

9 Where the Respondent has handbilled without a rat, the handbillers
attracted no attention, and were mistaken for solicitors for a restaurant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1262
are no picket signs or chanting and the entrances are not pa-
trolled. Silva does not call any other unions for assistance. The
purpose and effect is not to shut down the job or have the union
workers refuse to enter the jobsite. Similarly, the rat does not
have the effect of stopping deliveries, and no deliveries are
stopped. The drivers making deliveries generally say that they
must enter the jobsite and the union agents say that is all right,
since they are not asking anyone to refuse to enter. Silva does
not believe that the rat causes nonunion workers to stop work
when it is placed at a nonunion site.
Silva testified that in deciding whether to erect a rat, he con-
siders that fact that people must stop and ask what is happening
at the location. He conceded that a traditional picket line also
has the effect of having people stop, and it too has as its pur-
pose bringing attention to a labor dispute. He stated that people
in the union construction industry view a rat at a construction
site as signifying that there is a “problem,” and they try to iden-
tify what kind of a problem it is—whether it is accompanied by
a picket line or simply a demonstration. Those individuals usu-
ally stop and ask what the issue is, the handbillers explain what
is happening, and then the drivers make their own decision as
to whether to enter the jobsite, as the handbillers do not prevent
anyone from working. He conceded that those in the “nonunion
sector” believe that a rat is “just a straight picket line,” but they
do not have the knowledge to determine the meaning of the
rat’s presence at the site. He believed that people would stop
and drive into a jobsite if they were given a handbill.
Moreover, the Respondent does not use the rat exclusively. It
has utilized an inflated skunk, gorilla, and a cat holding a rat.
Silva does not believe that there is any distinction in the mean-
ing or use of any of the props the Respondent uses.
Salvatore Speziale, an official with Local 78, Laborers’ Un-
ion which is involved with the removal of asbestos and hazard-
ous waste, stated that Local 78 owns at least three rats, and also
one which has a gorilla’s head on a rat’s body, which was used
interchangeably with the rat balloons. Local 78 erected a mini-
mum of one to three rats per day with two handbillers, rarely at
construction sites, but mostly at office buildings and at building
owners’ residences. He stated that the union never targeted
contractors with the use of a rat.
Speziale stated that the message given by the rat’s presence
is that there is a “problem” at that location where someone is
being “exploited.” In addition, the purpose of the demonstration
is to embarrass the building owner who hired the irresponsible
contractor performing the work. He identified an irresponsible
contractor as one who is nonunion, “bottom of the barrel,” and
does not pay proper wages or fails to pay their workers on time,
did illegal waste removals and failed to follow the Department
of Environmental Protection guidelines. Speziale obtained such
information from employees or from government filings, and
used that material in handbills. He conceded that some union
contractors also do not follow the rules, and at times, the union
will handbill them with a rat. He advises the building owners as
to the reputations of their “irresponsible contractors,” and in-
forms them of any violations they have committed. Occasion-
ally, building owners asked him for a list of union contractors
and such a list was supplied.
Speziale stated that the rat’s purpose is also to inform the us-
ers of the building that, if asbestos was being removed illegally,
they may be exposed to harmful asbestos fibers. He added that
the union was benefited in such an endeavor because the ten-
ants and others call the building owner and Government agen-
cies. In addition, the employees performing the work call the
union to complain about hazardous working conditions. As a
result, the problems in the contractor’s performance of the work
are corrected, usually by the contractor itself. Speziale denied
that the purpose of the protest is to cause a replacement by a
union contractor because such a change would involve new
filings with the Government agencies, a very time-consuming
process which would rarely be done. A byproduct of this proc-
ess is that once the improper practices are exposed, the building
owner must pay more money in order to have the contractor
perform the job in a proper manner, and possibly pay fines for
the violations, and the job will take more time. Therefore, ac-
cording to Speziale, the owner will, in the future, contract with
a Local 78 contractor in order to avoid these problems.
Speziale testified that a picket line has the effect of causing
union members to refuse to enter the jobsite and to stop work.
In contrast, he believes that erecting a rat does not serve as a
signal to employees not to provide services, and cannot be
termed a picket line. He stated that Local 78’s use of a rat never
caused anyone not to work at a jobsite, and did not cause any-
one to refuse to make deliveries, although he conceded that he
could not know if someone who intended to enter the site did
not do so when he saw the rat. He noted that the union has em-
ployed a rat at offices in which many union workers were em-
ployed, such as at Rockefeller Center, and no employees ceased
work there. Occasionally, however, a construction worker em-
ployed in that building asked what was going on, was given a
flyer and told that the demonstration was just informational,
and its purpose was to advise the public of the matter.
Charles Rynkiewicz, the assistant director of market devel-
opment for Laborers Union Local 79, testified that the rat itself
signifies that there is a labor issue because in his experience,
where a rat is erected, people will approach and ask what the
issue is concerned with. His union erects rats at jobsites to ad-
vise the public that unsavory employment practices including
dangerous conditions, low wages, exploitation of employees
and undocumented employees are being utilized. He stated that
in a majority of the cases, the person or party being protested
against is the “rat.” He terms a “rat contractor,” from a con-
struction worker’s point of view, as a nonunion contractor, an
employer which is not making benefit payments, does not pay
his employees on time, utilizes unsafe work conditions, or ex-
ploits undocumented workers. He added that although such
practices are also engaged in by union contractors, a majority of
contractors engaging in such conduct are nonunion. Occasion-
ally Local 79 has erected a rat against a Local 79 contractor
where it is protesting its actions. In that case, a rat was placed at
the contractor’s offices and several jobsites.
In using the rat, Rynkiewicz attempts to get the community
involved in the protest, either by delaying zoning variances that
may be under consideration, or having the local community
board protest the project. A rat is used because it attracts more
attention than handbillers operating alone, and causes people to
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1263
approach to learn what the issue is, and also to sign petitions
protesting the contractor’s improper practices. Occasionally,
when a rat is employed, the union’s officials are interviewed by
the media, and thus obtain wide publicity in their campaign
concerning the developer or contractor and its employment
practices. If the objectionable contractor was no longer present
at the jobsite, the rat would be removed. If the targeted com-
pany was nonunion, and the erection of the rat caused the con-
tractor’s removal from the job, such an action would ultimately
benefit Local 79 members if the general contractor retained a
Local 79 company to replace the nonunion employer.
Rynkiewicz also used the rat with handbillers in support of
employees scheduled to vote in an NLRB election.
Rynkiewicz stated that the presence of a rat with handbillers
does not cause jobs to be shut down or prevent deliveries from
being made. The handbillers do not ask anyone not to enter a
jobsite, and the handbillers do not ask anyone to cease work.
Local 79 does not use the rat with pickets, essentially because it
does not need pickets to draw attention to the issue since the rat
is visible far from the site. He stated that pickets must make a
personal approach, at the job entrance, asking a worker or visi-
tor not to cross the picket line. No such personal appeal is used
when a rat is displayed. If he was “going after” a specific job,
and wanted that job to “go union,” and he believed that it would
be appropriate to encourage employees to refuse to work or to
stop deliveries there, he would set up a picket line, whose pur-
pose is to ask employees not to work at that job, to stop deliver-
ies and slow down the job.
John Dougherty, a member of Local 79, has been in the con-
struction industry since 1992. He has handbilled at construction
sites about 30 times at which a rat was erected. On those occa-
sions, he observed that construction workers and other employ-
ees enter the jobsite and report to work. He did not see employ-
ees refuse to enter the jobsite. While handbilling, he did not try
to stop deliveries. He simply gave pedestrians a handbill and
explained what the handbill says. He is not supposed to offer a
handbill to the occupant of a vehicle, or to speak to a driver. He
stated that, as a construction worker, the presence of a rat at a
jobsite does not automatically mean that there is a picket line
there. The rat’s presence is meant to attract the public’s atten-
tion, and then handbills are distributed to educate the reader. In
those instances where he handbilled with the rat present at con-
struction sites, Local 79 had a dispute with the contractor at that
site, and people seemed to know that when a rat is erected, a
union is involved.
Analysis and Discussion
The General Counsel argues that the evidence supports a
finding that the Union’s activities, including the erection of the
rat combined with handbilling, constitutes picketing at the three
jobsites at issue. He asserts that the rat operated as a “signal” to
induce employees viewing it to refuse to cross the “line” where
the rat was situated, and refuse to work at the three jobsites.
The Respondent asserts that its activities were not picketing
and were not coercive. It does not contend that its activities
were lawful because they were purely primary or that they had
no recognitional object. Rather, it asserts that its conduct was
not picketing, but instead constituted expressive acts protected
by the First Amendment and the publicity provisos of Section
8(b)(4) and (7). With regard to the latter claim, the Supreme
Court has stated that the publicity proviso is an “interpretive,
explanatory section” and not an “exception to an otherwise all-
encompassing prohibition on publicity in Section 8(b)(4).”
DeBartolo II, infra at 574. In addition, the Respondent did not
tell anyone entering The Ranches that the purpose of its pres-
ence was to advise the public that the Respondent did not have
a contract with Concrete. Accordingly, I reject the Respon-
dent’s defenses based on the publicity provisos of Section
8(b)(4) and (7).
Section 8(b)(4)(i) and (ii)(B)
Section 8(b)(4) states as follows:
It shall be an unfair labor practice for a labor organization or
its agents—
(4)(i) to engage in, or to induce or encourage any indi-
vidual employed by any person engaged in commerce or
in an industry affecting commerce to engage in, a strike or
a refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials or commodities or to per-
form any services; or (ii) to threaten, coerce, or restrain
any person engaged in commerce or in an industry affect-
ing commerce, where in either case an object thereof is —
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufac-
turer, or to cease doing business with any other person, or
forcing or requiring any other employer to recognize or
bargain with a labor organization as the representative of
his employees unless such labor organization has been cer-
tified as the representative of such employees . . . . Pro-
vided further, That for the purposes of this paragraph (4)
only, nothing contained in such paragraph shall be con-
strued to prohibit publicity, other than picketing, for the
purpose of truthfully advising the public, including con-
sumers and members of a labor organization, that a prod-
uct or products are produced by an employer with whom
the labor organization has a primary dispute and are dis-
tributed by another employer, as long as such publicity
does not have an effect of inducing any individual em-
ployed by any person other than the primary employer in
the course of his employment to refuse to pick up, deliver,
or transport any goods, or not to perform any services, at
the establishment of the employer engaged in such distri-
bution.
The statute reflects “the dual congressional objectives of pre-
serving the right of labor organizations to bring pressure to bear
on offending employers in primary labor disputes and of shield-
ing unoffending employers and others from pressure in contro-
versies not their own.” NLRB v. Denver Building Trades Coun-
cil, 341 U.S. 675, 692 (1951).
Section 8(b)(4)(i) and (ii)(B) proscribes not only picketing
but all conduct where a union coerces, threatens or restrains
third parties to cease doing business with the primary employer
with which it has a dispute, or induces or encourages employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
ees of those neutral employers to stop work, although this need
not be the union’s sole objective. Whether a particular activity
is prohibited by Section 8(b)(4) depends on the “coercive na-
ture of the conduct, whether it be picketing or otherwise.”
NLRB v. Fruit & Vegetable Packers Local 670, 377 U.S. 58, 64
(1964).
“To establish a violation of the Act, there must be evidence
showing, or from which it can be inferred, both that a respon-
dent engaged in unlawful conduct, within the meaning of Sec-
tion 8(b)(4)(i) or (ii) and, second evidence showing, or from
which it can be inferred, that such conduct had an object pro-
scribed by Section 8(b)(4)(B) of the Act. That is, a preponder-
ance of the evidence must establish both unlawful conduct and
unlawful action.” Iron Workers Local 386 (Warshawsky &
Co.), 325 NLRB 748 (1998), rev. 182 F.3d 948 (D.C. Cir.
1999).
In DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const., 485
U.S. 568, 580 (1988) (DeBartolo II), the Supreme Court held
that a union’s peaceful distribution of area standard handbills
urging a consumer boycott of neutral employers did not consti-
tute restraint or coercion under Section 8(b)(4)(ii)(B). The
Court noted that there would be serious doubts about whether
Section 8(b)(4) could constitutionally ban peaceful handbilling
not involving nonspeech elements. Due to First Amendment
considerations, the Court interpreted the phrase “threaten, co-
erce, or restrain” with caution, and not with a broad sweep to
exclude non-picketing activities partaking of free speech. Ac-
cordingly, the mere persuasion of customers not to patronize
neutral establishments does not, in and of itself, coerce the
establishments within the meaning Section 8(b)(4)(ii)(B).
The Respondent, relying on DeBartolo II, asserts that its
conduct consisted of no more than occurred in that case—
peaceful handbilling not involving picketing or patrolling. The
Respondent argues that its handbilling represented no more
than the expression of ideas, involving no nonspeech conduct
since the rat was stationary, no picketing took place, and its
agents did not patrol the area around the rat. The Union further
argues that it conducted its activities at public thoroughfares at
times and in circumstances in which the public would be likely
to receive leaflets, at times when no construction workers en-
tered or left any of the jobsites, and at times when no construc-
tion work was being performed. The Respondent asserts that its
handbills were clearly directed at the public, addressing issues
such as Concrete’s quality of work and the effect of its work on
taxpayers. According to the Respondent, the rat is a pure sym-
bol, a pure expression, similar to its handbills.
The General Counsel argues, however, that the Respondent’s
actions went beyond peaceful handbilling. He asserts that its
activities, taken as a whole and especially considering the
enormous rat posted at the entrance to the jobsites, constituted a
“signal” to approaching employees that they should not enter
the worksites. He argues, therefore, that the Respondent en-
gaged in “signal picketing” of the three facilities.
Handbilling has been distinguished from picketing in that
picketing usually entails a patrolling of a facility, and is aimed
at inducing those who approach the location of the picketing to
take some sympathetic action such as to decide not to enter the
facility involved. It is such patrolling and picketing which pro-
vokes people to respond without inquiring into the ideas being
disseminated and which distinguishes picketing from handbill-
ing and other forms of communication. Picketing, a form of
conduct which “may induce action of one kind or another irre-
spective of the nature of the ideas which are being dissemi-
nated” is “more than free speech” since it induces or encour-
ages employees, and restrains or coerces employers within the
meaning of the statute. Bakery & Pastry Drivers & Helpers
Local 802, IBT v. Wohl, 315 U.S. 769, 776 (1942). The Su-
preme Court has said that “[t]he prohibition of inducement or
encouragement of secondary pressure by Section 8(b)(4)(i)
carries no unconstitutional abridgment of free speech.” In addi-
tion, “the words ‘induce or encourage’ are broad enough to
include in them every form of influence and persuasion.” Elec-
trical Workers Local 501 v. NLRB, 341 U.S. 694, 701 (1951).
As the Supreme Court stated in DeBartolo II, “picketing is ‘a
mixture of conduct and communication’ and the conduct ele-
ment ‘often provides the most persuasive deterrent to third
persons about to enter a business establishment.’ Handbills
containing the same message . . . are ‘much less effective than
labor picketing’ because they ‘depend entirely on the persua-
sive force of the idea.” 485 U.S. at 580, quoting from the con-
curring opinion in NLRB v. Retail Store Employees, 447 U.S.
607, 619 (1980).
The First Amendment does not protect confrontational con-
duct such as picketing. Cox v. State of Louisiana, 379 U.S. 536,
555 (1965), where the Court stated: “We emphatically reject
the notion that the First and Fourteenth Amendments afford the
same kind of freedom to those who would communicate ideas
by conduct such as patrolling, marching, and picketing on
streets and highways, as these amendments afford to those who
communicate ideas by pure speech.” Accordingly, the Court
has “consistently rejected the claim that secondary picketing by
labor unions in violation of Section 8(b)(4) is protected activity
under the First Amendment.” Longshoremen Assn v. Allied
International, Inc., 456 U.S. 212, 226 (1982).
An element of confrontation is needed for conduct to be co-
ercive within the meaning of Section 8(b)(4)(B). Chicago Ty-
pographical Union No. 16 (Alden Press), 151 NLRB 1666,
1669 (1965). Here, of course, no actual, traditional picketing
took place. The Union’s agents did not patrol carrying a typical
picket sign. Nor did they hold in place any sign or banner ex-
pressing the nature of the dispute, although the rat did bear a
sign on its body saying “Concrete Structures.”
The “important” feature of picketing is the posting of indi-
viduals at entrances to a place of work. Service Employees Lo-
cal 87 (Trinity Maintenance), 312 NLRB 715, 743 (1993);
Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lum-
ber Co.), 156 NLRB 388, 394 (1965); Laborers Local 389
(Calcon Construction), 287 NLRB 570, 573 (1987); Mine
Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 687
(2001).
“Picket signs or placards, while serving as indicia of picket-
ing, are in no sense essential elements for a finding that picket-
ing occurred.” Mine Workers (New Beckley Mining), 304
NLRB 71, 72 (1991), where a large number of individuals
gathered to protest a hotel’s registration of strike replacements.
Picketing has also been found, without the presence of picket
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1265
signs, in the totality of a union’s actions which included a per-
son dressed as a rat who disrupted traffic, parading, chanting,
handbilling, a publicly performed skit and question and answer
session, balloons and banners criticizing the neutral employer,
and a massed rally. K Mart Corp., 313 NLRB 50, 53 (1993).
See We’re Associates, Inc., 329 NLRB 140, 143 (1999).
Indeed, a violation of Section 8(b)(4)(ii)(B) has also been
found in the absence of picketing. Carpenters (Society Hill
Towers Owners Assn.), 335 NLRB 814, 826–828 (2001), where
a union used loud amplified broadcasts aimed at tenants of a
building. See also Service & Maintenance Employees Union
No. 399 (William J. Burns International Detective Agency), 136
NLRB 431, 437 (1962).
In determining whether a union is engaged in lawful DeBar-
tolo II handbilling or in unlawful picketing, the Board considers
whether, under the totality of the circumstances, a union is
using confrontational conduct, rather than speech, to induce a
sympathetic response. The question is whether the Respon-
dent’s conduct justifies a finding that it was not merely engaged
in communicating the information set forth in its handbills, but
was actually seeking in displaying the rat and distributing its
handbills to convey a “signal” to induce those confronted by its
agents to take the kind of action which traditional picket lines
are expected to provoke. Teamsters Local 688 (Levitz Furniture
Co.), 205 NLRB 1131, 1133 (1973); Operating Engineers Lo-
cal 12 (Hensel Phelps), 284 NLRB 246, 248 fn. 3 (1987).
Based on the above, I reject the Respondent’s arguments that
no violation may be found because no picketing or signal pick-
eting occurred, or that signal picketing may be found only
where the union’s activity, including handbilling, is a continua-
tion of traditional picketing which had previously been engaged
in. See Ironworkers Local 29 (Hoffman Construction Co.), 292
NLRB 562 (1989); Mine Workers Local 1329 (Alpine Con-
struction Co.), 276 NLRB 415, 431 (1985), cited by the Re-
spondent.
I believe that the evidence warrants a finding that the Re-
spondent’s actions “would reasonably be understood by the
employees as a signal or request to engage in a work stoppage.”
Teamsters Local 122 (August A. Busch & Co.), 334 NLRB
1190, 1191 (2001).
The Union’s use of the rat constituted confrontational con-
duct intended to persuade third persons not to do business with
Concrete. A rat is a well-known symbol of a labor dispute and
is a signal to third persons that there is an invisible picket line
they should not cross. The Board has noted that the term “rat”
means to “go nonunion.” Marquis Elevator Co., 217 NLRB
461 fn. 2 (1975). A “rat” is a synonym for the word “scab,”
which has been defined as a strike replacement, or someone
who refuses to join a union. Occidental Chemical Corp., 294
NLRB 623, 636 fn. 24 (1989); Marquis Elevator Co., 217
NLRB 461 (1975).
In view of the Board’s remand order that evidence should be
received regarding whether, in the construction industry, the rat
is commonly understood to communicate the same message as
actual picketing, a summary of such evidence, set forth in detail
above, is appropriate here. Concrete’s president Magalhaes,
The Ranches’ official, Antonucci, and nonparty construction
company officials Loturco, Panzner, Sutherland, and Wenger
all testified that, based on their extensive experience in the
construction industry, the presence of the rat is synonymous
with, and has the same effect as a union picket line. They stated
that the rat sent a message that there was a “labor problem,” a
“labor dispute,” or a “nonunion” company was being targeted
by a union. In addition, employees Andrews and Dauman testi-
fied that the rat represents a picket line. As set forth above,
Antonucci’s letters to Magalhaes mentioned that the Respon-
dent was picketing, which represented his interpretation of the
presence of the rat.
Indeed, Respondent’s official Silva and the Respondent’s
other witnesses testified that the rat meant that a “union is in-
volved,” and that there is a “problem” or a “labor issue” at the
site, including that an irresponsible contractor, who is some-
times nonunion, and is termed a “rat contractor” is working. In
this regard, the rat is immediately recognizable as a traditional
union picket protesting the presence of the targeted contractor,
and as such calls for the viewer to refuse to enter the area where
the rat is stationed.
The enormous size of the rats used here, 15 feet at Mills
Pond, and 30 feet at Harborview and The Ranches, representing
and emphasizing as they did, the Respondent’s labor dispute,
accentuated the confrontational nature of its conduct. The rat
highlighted the Respondent’s objectives to a greater degree
than the handbill’s message. Although a person approaching the
jobsite may choose to ignore the message in the handbill by not
accepting it, he could not avoid seeing the gigantic rat in his
path. The Respondent’s display of the rat near the entrance to
the worksites was the functional equivalent of picketing—it
sent a signal to those who approached the entrance that a labor
dispute was occurring and that action on their part was desired.
Neutral employees could assume that a picket line existed be-
cause of the enormous rat accompanied by the Respondent’s
handbilling agents, and could be expected to refuse to enter the
site or make deliveries.
Inducement is shown in that the rat and handbilling began
each day at The Ranches at 7:30 a.m., when the construction
trades arrived. The fact that the Respondent may have remained
at the site until late in the day after the trades had departed in
order to handbill residents and prospective owners is of no
moment. If the Respondent’s purpose in erecting the rat was the
inducement and encouragement of employees, that purpose
came within the purview of Section 8(b)(4)(i) of the Act.
In addition, there was evidence that employees did not work
and deliveries were not made at The Ranches. Thus, I credit the
testimony of The Ranches’ official, Antonucci, that on October
29, 1 day after the rat and handbillers appeared, the employees
of three subcontractors refused to enter the jobsite because
there were “union problems.” Following the establishment of
the reserved gate on November 1, employees of two of the
subcontractors resumed work, but the employees of S.A.
Anderson refused to deliver materials to the site.
There was also credible evidence of patrolling at all three
jobsites. Concrete’s president, Magalhaes, testified that the
Union’s representatives walked back and forth near the rat
while giving handbills to those approaching the Mills Pond,
Harborview and The Ranches worksites. In addition, Antonucci
testified that on occasion the Union’s agents walked back and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
forth across the entrance. Further, employee Dauman testified
that, although he did not see the agents walk back and forth
across the entrance, they “formed” in the entrance, apparently
blocking it momentarily, and then separated to permit cars to
pass. He added that they looked at his vehicle’s license plate
and then made a phone call as he entered the site. Such con-
duct, in itself would clearly satisfy the confrontational element
required for picketing.
The Respondent’s witnesses drew a careful distinction be-
tween picketing, which has as its intended effect the stoppage
of work and deliveries, and handbilling with a rat, which is
intended to communicate various messages to the public but is
not intended to interfere with work or deliveries. Although the
Respondent is acutely aware of the difference between the two
demonstrations, the intended audience may not be. Thus, even
according to Silva’s testimony, the “nonunion sector” would
believe that a rat is “just a straight picket line.”
Under these circumstances, I cannot find, as urged by the
Respondent, that the rat was utilized to draw attention to its
handbills, or simply to convey information to the public. The
fact that the rat was also used in social or political protest situa-
tions and to support certain legislation is irrelevant to this in-
quiry. The use of the rat in those contexts is not proscribed by
the Act. I find that its use here is proscribed.
A violation of 8(b)(4)(i) necessarily constitutes a violation of
8(b)(4)(ii)(B). Food & Commercial Workers Local 1776 (Car-
penter’s Health & Welfare Fund), 334 NLRB 507, 509 fn. 8
(2001). In addition, the October 30 letter of Silva to The
Ranches provides proof of a secondary object. In the letter,
Silva asked that the project be awarded to a “responsible” con-
tractor. He testified that he did not regard Concrete to be a re-
sponsible contractor, and admitted that the purpose of the letter
was, in part, to have Concrete sign a contract with the Union. In
this connection, Respondent’ witness Speziale testified that an
irresponsible contractor is one that is nonunion. In order to
comply with the Respondent’s request that it use a responsible
contractor, The Ranches would have to sever its relationship
with any bidder or contractor the Union deemed irresponsible.
Inasmuch as the Respondent believes that Concrete is irrespon-
sible, it follows that its object was to force The Ranches to
cease doing business with Concrete.
Although not necessary to the ultimate conclusion in this
case, in the interest of completion I will address the Moore Dry
Dock issue raised by the complaint. Sailors’ Union of the Pa-
cific (Moore Dry Dock Co.), 92 NLRB 547 (1950). The Gen-
eral Counsel alleges that the Respondent engaged in improper
common situs picketing at The Ranches by picketing at gate 2,
the main entrance gate reserved for users other than Concrete
and its suppliers and visitors. The Respondent asserts, and the
evidence supports a finding, that there was a breach of the re-
served gate system. Thus, Ranches’ official, Antonucci, testi-
fied that all the contractors’ employees used gate 2, and that
Triangle Building’s driver used gate 1, the gate reserved for
Concrete’s suppliers, since its driver did not want to enter gate
2, where the rat was situated. In view of that testimony, I credit
Silva’s testimony that he observed Concrete’s trucks using gate
2.
Accordingly, the evidence supports a finding that the re-
served gate system was tainted by the use of the main gate 2 by
all subcontractors including Concrete. Electrical Workers Local
323 (J. F. Hoff Electric Co.), 241 NLRB 694 (1979). However,
despite the taint of the neutral gate, there is ample evidence in
this case, as set forth above, to find that the Respondent’s dis-
play of the rat and handbilling at that entrance had a secondary
objective. Thus, although the Respondent may have engaged in
proper Moore Dry Dock picketing, a violation may still be
found if other evidence exists of a prohibited object. Electrical
Workers Local 369 (Garst-Receverur Construction Co.), 229
NLRB 68 (1977).
The Respondent argues that this case is similar to those in
which banners were displayed with a message. In those cases,
the unions displayed large banners at the entrances of neutral
employers, accompanied by handbilling, but no patrolling or
picketing. The banners were held stationary by union agents
with the message “SHAME ON” [the name of the secondary
employer] and also say “Labor Dispute.” The handbills request
the recipient to ask the named business to contact the primary
employer and ask it to stop its illegal conduct. The courts that
considered this issue in a 10(l) context, relying on DeBartolo II,
decided that the banners, unaccompanied by any threats, picket-
ing, or other coercive behavior, did not warrant injunctive re-
lief. Benson v. Carpenters Local 184, 337 F.Supp.2d 1275 (D.
Utah 2004); Kohn v. Southwest Regional Council of Carpenters
Local 209, 289 F.Supp.2d 1155 (C.D. Cal 2003). In those
cases, the unions engaged in no non-speech conduct. DeBartolo
II permits a union to affect the business operations of neutral
employers as long as it does so only with speech—without
picketing, patrolling or violence. The union’s pure speech con-
duct did not violate Section 8(b)(4)(ii)(B). Where a union’s
demonstration is limited to the display of signage and the dis-
tribution of handbills, there is no evidence of any nonspeech
conduct in the form of patrolling, confrontation or violence.
Unlike the facts here, in those cases, the unions did not en-
gage in any conduct which would cause the banners to be con-
sidered picketing. The unions’ actions there did not involve
confrontation between union agents and employees, customers
or employer agents since the unions’ agents were passive. They
simply held the banners and did not move. Nor were the ban-
ners accompanied by patrolling or other nonspeech activity
which could be considered confrontational.
In conclusion, I find that the Respondent’s actions at The
Ranches, as set forth above, violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
Section 8(b)(7)(C)
Section 8(b)(7) states: It shall be an unfair labor practice for
a labor organization or its agents—
To picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with
a labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept
or select such labor organization as their collective-bargaining
representative, unless such labor organization is currently cer-
tified as the representative of such employees:
LABORERS EASTERN REGIONAL ORGANIZING FUND (RANCHES AT MT. SINAI) 1267
(C) where such picketing has been conducted without
a petition under section 9(c) being filed within a reason-
able period of time not to exceed thirty days from the com-
mencement of such picketing. . . . Provided further, That
nothing in this subparagraph (C) shall be construed to pro-
hibit any picketing or other publicity for the purpose of
truthfully advising the public (including consumers) that
an employer does not employ members of, or have a con-
tract with, a labor organization, unless an effect of such
picketing is to induce any individual employed by any
other person in the course of his employment, not to pick
up, deliver or transport any goods or not to perform any
services.
Section 8(b)(7) places limitations on “picketing for an object
of ‘recognition or bargaining’ . . . or for an object of organiza-
tion for more than a reasonable time. Picketing for other pur-
poses is not proscribed by this Section.” Laborers Local 840
(C.A. Blinne Construction Co.), 135 NLRB 1153, 1156 (1962).
Thus, picketing to protest Concrete’s alleged poor work would
not violate Section 8(b)(7). But if either recognition or organi-
zation is found to be “an” object, not necessarily the sole object
of the picketing, Section 8(b)(7) prohibits it. Plumbers Local 32
(Bayley Construction), 315 NLRB 786 (1994). The fact that the
Respondent has used the rat in other, political or community
protest demonstrations, has no bearing on the inquiry here. The
Act does not proscribe its use in those contexts. If the Respon-
dent’s actions here, including the use of the rat contravenes
Section 8(b)(7), such activity must be found to be unlawful.
A recognitional objective is clearly shown in the Respon-
dent’s demand for recognition made to Concrete’s president,
Magalhaes, immediately preceding, and during the erection of
the rat, Electrical Workers Local 265 (RP & M Electric), 236
NLRB 1333 (1978), and its tender of a contract to him. Operat-
ing Engineers Local 101 (St. Louis Bridge), 297 NLRB 485,
491 (1989). Retail Clerks Local 899 (State-Mart, Inc.), 166
NLRB 818 (1967).
The Respondent clearly had a recognitional objective in its
display of the rat at all three jobsites. Prior to and during the
erection of the rat at Mills Pond, Silva asked Magalhaes to sign
a contract with Local 66, and while the rat was displayed, ten-
dered to him a sample agreement. In addition, while the rat was
displayed at The Ranches, Silva asked Magalhaes to sign a
contract with Local 66. Further, Silva admitted that the Re-
spondent’s purpose in erecting the rat at all three sites was to
persuade Concrete to sign a contract, and conceded that the
Respondent sought to represent the employees of Concrete.
Indeed, the Respondent removed the rat at The Ranches during
a one week period within which Magalhaes was to consider
signing the contract tendered by it. When he refused to sign it,
the rat was immediately reinstalled at the jobsite.
Based on my findings, above, that the Union’s conduct con-
stituted picketing, and that such picketing was done with a rec-
ognitional object, the only question remaining is whether the
Respondent picketed without a petition being filed within a
reasonable period of time.
The Respondent did not file a petition, and the statute does
not define the term “reasonable period of time,” but the Board
has found that the 30-day limitation is an “outside limitation.”
RWDSU, District 65 (Eastern Camera & Photo Corp.), 141
NLRB 991, 999 (1963). The Board has held that picketing for
less than 30 days can be of unreasonable duration and a viola-
tion in the union’s “constancy” of its recognitional demand
when it picketed intermittently for only nine days during an
eight week period. Operating Engineers Local 4 (Seaward
Construction Co.), 193 NLRB 632 (1971). A violation has also
been found where mass picketing accompanied by violence
took place for less than 30 days. Operating Engineers Local
101 (St. Louis Bridge Construction Co.), 297 NLRB 485
(1989), and where there is intermittent picketing for periods of
less than 30 days for more than 1 year. Electrical Workers Lo-
cal 113 (I.C.G. Electric), 142 NLRB 1418, 1422 (1963).
I find that here, through its activities including the erection
of the rat and handbilling, the Respondent picketed at Mills
Pond for 14 days, at Harborview for 2 days, and at The
Ranches from October 28 through November 6, and then for 12
days, from November 13 through 15. Accordingly, the Respon-
dent picketed for a total of 28 days during a period of 4 months,
from July to November 2002. Silva asked Magalhaes to sign a
contract in July and in November, thus demonstrating that the
Respondent’s recognitional object continued during the entire
time that the rat and handbilling activities occurred.
Under these circumstances, especially inasmuch as the stat-
ute provides that the picketing may not be conducted without a
petition being filed for a reasonable period of time not to ex-
ceed 30 days, I find that the Respondent’s picketing for 28 days
during a 4-month period continued for an unreasonable period
of time. I accordingly find that its picketing violated Section
8(b)(7)(C) of the Act.
CONCLUSIONS OF LAW
1. By picketing at The Ranches in Mt. Sinai, New York,
from Ranches from October 28 through November 6, 2002, and
from November 13 through 15, with an object of forcing The
Ranches to cease doing business with Concrete Structures, Inc.,
the Respondent violated Section 8(b)(4)(i) and (ii)(B) and Sec-
tion 2(6) and (7) of the Act.
2. By picketing at the Mills Pond Elementary School in
Smithtown, New York, the Harborview Townhouses in Roslyn,
New York, and at The Ranches in Mt. Sinai, New York for a
recognitional object for more than a reasonable period of time,
the Respondent violated Section 8(b)(7)(C) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
ORDER
The Respondent, Laborers’ Eastern Region Organizing
Fund, Monroe Township, New Jersey, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Inducing or encouraging, by picketing, any individual
employed by The Ranches, or any other person engaged in
commerce, or in an industry affecting commerce, to engage in a
strike or a refusal in the course of his or her employment to
perform services where an object thereof is to force The
Ranches, or any other person, to cease doing business with
Concrete Structures, Inc.
(b) Threatening, coercing or restraining, by picketing, The
Ranches, or any other person engaged in commerce, or in an
industry affecting commerce, where an object thereof is to
force The Ranches, or any other person, to cease doing business
with Concrete Structures, Inc.
(c) Picketing, or causing to be picketed, Mills Pond Elemen-
tary School, Smithtown, New York, the Harborview Town-
houses, Roslyn, New York, and The Ranches, Mt. Sinai, New
York, where an object of such picketing is forcing or requiring
Concrete Structures, Inc. to recognize or bargain with the Re-
spondent as the collective-bargaining representative of the em-
ployees of Concrete Structures, Inc., at a time when the Re-
spondent is not certified as such representative and where such
picketing has been conducted without a petition under Section
9(c) of the Act being filed within a reasonable period of time
not to exceed 30 days from the start of such picketing.
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its un-
ion office in Monroe Township, New Jersey, copies of the at-
tached notice marked “Appendix A.”11 Copies of the notice, on
forms provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Within 14 days after service by the Region, mail copies
of the attached notice marked Appendix A, at its own expense,
to all of its members. The notice shall be mailed to the last
known address of each member after being signed by the Re-
spondent’s authorized representative.
(c) Sign and return to the Regional Director sufficient copies
of the notice for posting by Mills Pond Elementary School,

11 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Smithtown, New York, the Harborview Townhouses, Roslyn,
New York, and The Ranches, Mt. Sinai, New York, if willing,
at all places where notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT induce or encourage, by picketing, any indi-
vidual employed by The Ranches, or any other person engaged
in commerce, or in an industry affecting commerce, to engage
in a strike or a refusal in the course of his or her employment to
perform services where an object thereof is to force The
Ranches, or any other person, to cease doing business with
Concrete Structures, Inc.
WE WILL NOT threaten, coerce or restrain, by picketing, The
Ranches, or any other person engaged in commerce, or in an
industry affecting commerce, where an object thereof is to
force The Ranches, or any other person, to cease doing business
with Concrete Structures, Inc.
WE WILL NOT picket, or cause to be picketed, Mills Pond
Elementary School, Smithtown, New York, the Harborview
Townhouses, Roslyn, New York, or The Ranches, Mt. Sinai,
New York, where an object of such picketing is forcing or re-
quiring Concrete Structures, Inc. to recognize or bargain with
us as the collective-bargaining representative of the employees
of Concrete Structures, Inc., at a time when we are not certified
as such representative and where such picketing has been con-
ducted without a petition under Section 9(c) of the Act being
filed within a reasonable period of time not to exceed 30 days
from the start of such picketing.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
LABORERS’ EASTERN REGION ORGANIZING FUND