Southwest Regional Council of Carpenters

National Labor Relations Board - Administrative Judge Opinions

Feb 18, 2004

31-CC-002113 (N.L.R.B. Feb. 18, 2004)

JD(SF)–14–04
Ventura, Los Angeles, Orange
and San Diego Counties, Calif.

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

SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS

and

CARPENTERS LOCAL NO. 209,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
Case 31–CC–2113

and

CARIGNAN CONSTRUCTION COMPANY

and

CARPENTERS LOCAL NO. 209,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
(Covi Concrete Construction, Inc.)
Case
(Formerly
31–CC–2114
21–CC–3326)

and

SHEA PROPERTIES, LLC

Katherine Braun Mankin, Los Angeles, Calif., for the
General Counsel.
Gerald V. Selvo, of DeCarlo, Connor & Selvo,
Los Angeles, Calif., for Respondent.
Mark T. Bennett of Merrill, Schultz & Wolds, Ltd.,
San Diego, Calif., for Charging Party Shea Properties, LLC.

DECISION

JAMES M. KENNEDY, Administrative Law Judge: This case was tried in Los
Angeles, California on September 23-24, 2003, 1 based upon separate complaints consolidated
on August 29. The Acting Regional Director for Region 31 issued the complaint in 31-CC-2113
on August 8 (amended August 12), based upon an unfair labor practice charge filed June 16 by
Carignan Construction Company (amended July 21). The Acting Regional Director for Region
21 issued the complaint in 31-CC-2114 on August 27, based upon an unfair labor practice
1 All dates are 2003 unless otherwise stated.

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charge filed by Shea Properties, LLC., on July 21. It was subsequently transferred to Region 31
for hearing and given its current docket number. In general, the complaints allege that
Respondents’ bannering activities have violated §8(b)(4)(ii)(B) of the Act, the ban on threatening
or coercing neutral employers and other persons in labor disputes not their own. 2 The
Respondents assert the activities are privileged as free speech under both the First Amendment
of the United States Constitution and the publicity proviso found in §8(b)(4).
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to orally argue and to file briefs. The General Counsel,
Charging Party Shea Properties and Respondent have all filed briefs which have been carefully
considered. Based upon the entire record of the case, including a formal stipulation of facts, as
well as my observation of the witnesses and their demeanor, I make the following:
Findings of Fact
I. Jurisdiction
The stipulation establishes that the entities involved in these disputes are all employers
who meet the Board’s non-retail standards for the assertion of jurisdiction. They are all
engaged in commerce as each of them purchases products from outside the state in excess of
$50,000. Thus each of them is an employer or person engaged in commerce within the
meaning of §2(1), (2), (6) and (7) of the Act. Furthermore, the stipulation establishes that both
Respondents, are labor organizations within the meaning of §2(5) of the Act.
II. Introduction
The facts are not in significant dispute, although the General Counsel has presented
some testimony said to be proof of the unlawful objective. Insofar as the bannering itself is
concerned, the stipulation describes those incidents.
In essence there are two primary disputes. The first is Local 209’s dispute with M&M
Interiors, a nonunion subcontractor performing steel stud and drywall services at an auto mall
construction project in Thousand Oaks. There, the owner of several auto dealerships, Silver
Star Motor Company, had hired a general contractor, Carignan Construction, to build and/or
remodel two of its businesses at the auto mall, the Cadillac and Saab dealerships. Carignan
had arranged for M&M to install steel studs and to attach the wallboard.
The second dispute, ranging from San Diego to Los Angeles/Pasadena, was between
Local 209 and another nonunion contractor, Covi Concrete, Inc. Covi had been, was believed
to have been, or was being considered as, the concrete installer on a number of projects. It had
been hired or was believed to have been hired by various property developers or construction
managers, including Shea Properties, LLC., Capital & Counties, USA, Inc.,3 Wermers
Multifamily Corp., and 621 Associates, Inc. In addition, Shea Homes was providing consulting
services to the Worldwide Church of God at its Ambassador College campus in Pasadena. The
record does not clearly disclose what relationship Shea Homes has to Shea Properties although
they both appear to be part of the same family of companies.
2 Although both §8(b)(4)(i) and (ii) conduct are commonly seen together, here there is no
allegation here that the Respondents’ conduct violated §8(b)(4)(i). That portion of the statute
prohibits labor unions from inducing and encouraging neutral employees to engage in
proscribed strikes.
3 Capital & Counties is a large California property developer headquartered in San
Francisco.

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In each case, Local 209 and the Southwest Council are opposed to the use of nonunion
contractors who, they say, fail to pay their employees on construction projects wages and
benefits equal to the area standards as negotiated under the Southwest Council master
collective bargaining agreement. Local 209 and the Southwest Council have chosen to voice
their objections in a manner that focuses on the contracting authority, such as a project owner, a
general contractor hired by the owner or, where such an entity exists, a professional project
manager. (Professional project managers are usually under the direct control of a project owner
and are sometimes responsible for choosing various contractors, a task typically performed by
the lead contractor, frequently known as the general, or the prime, contractor. Unlike general
contractors, project managers usually perform no construction work with their own employees.)
A subsidiary issue raised by the complaint is whether the Southwest Council is
responsible for the bannering at the Thousand Oaks dealerships. The Council admits that it,
together with Local 209, has a primary dispute with M&M. Furthermore there is evidence that a
Council official, business representative Patrick Stewart, supervised the bannering at that
location. Nevertheless, the Council asserts that it is not legally responsible for the bannering; if
any entity is legally responsible, it is Local 209. Carignan’s Thousand Oaks complaint also
alleges that the two Unions' conduct constitutes "signal picketing" and that it is unprotected,
"fraudulent" speech. Those allegations are not found in the Shea Properties complaint, though
the facts closely track those seen in the other.
III. The Documentary Evidence
The complained of conduct was preceded both by letters and visits from union officials.
Charging Party Shea properties presented a package of letters written by Hal Jensen a Local
209 business agent, on June 27 to a number of construction employers. The record is silent
with regard to whether Jensen sent similar letters concerning the Thousand Oaks project.
Nonetheless, the letters are informative regarding the two Unions' purpose. The letters are
virtually identical, except for the substitution of the names of different neutrals and different
primaries.
The following is an exemplar written on June 27 to the H. G. Fenton Company and
reads, in pertinent part:
It has come to our attention that general contractor Wermers Construction [a neutral] may be
currently bidding on one or more of your upcoming projects. Please be informed that
Carpenters Local 209 has a labor dispute with several subcontractors employed by
Wermers both in the past and currently, including Covi Concrete [the primary]. These
subcontractors do not meet area labor standards -- they do not pay prevailing wages to all
their employees, including fully paying for health benefits and pension.
* * *
... we are asking that you use your managerial discretion to not use Wermers as a general
contractor unless all their carpentry craft subs generally meet area labor standards for
carpentry work.
We want you to be aware that our new and aggressive public information campaign will
encompass all parties associated with projects where Wermers Construction is involved and
carpentry subs who do not meet area labor standards are employed. That campaign will
include highly visible lawful banner displays and distribution of handbills at the jobsite and
premises of property owners, developers, and other involved firms. It will also include lawful
picketing and demonstration activity. We certainly prefer to work cooperatively with all
involved parties rather than to have an adversarial relationship with them.

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Later, when the bannering actually began, the banner bearers carried flyers for
distribution to passersby who sought further information. These, too, are virtually identical
except for substituting different neutrals as appropriate to the situs of the bannering.
The flyer begins with a headline: "Shea Properties. For Desecration of the American
Way of Life." The headline is followed by the drawn figure of a rat eating an American flag. The
text following that drawing reads:
A rat is a contractor that does not pay all of its employees prevailing wages, including either
providing or making payments for health care and pension benefits.
Shame on Shea properties for contributing to erosion of area standards for Carpenter craft
workers. Covi Concrete is a sub contractor for general contractor Wermers on Shea
Properties and Capital & Counties mixed-use project located in the City of Pasadena. Covi
does not meet area labor standards for all its Carpenter craft workers, including fully paying
for family health benefits and pension.
Carpenters Local 209 objects to substandard wage employers like Covi working in the
community. In our opinion the community ends up paying the tab for employee health care
and low wages tend to lower general community standards, thereby encouraging crime and
other social ills.
Carpenters Local 209 believes that Shea Properties has an obligation to the community to
see that area labor standards are met for construction work at all their projects, including
any future work. They should not be allowed to insulate themselves behind "independent"
contractors. For this reason Local 209 has a labor dispute with all the companies named
here.
PLEASE TELL SHEA PROPERTIES THAT YOU WANT THEM TO DO ALL THEY CAN TO
CHANGE THIS SITUATION AND SEE THAT AREA LABOR STANDARDS ARE MET FOR
CONSTRUCTION WORK ON THEIR PROJECTS.
Finally, there is evidence that Southwest Council representatives visited the sites where
bannering was occurring, or was about to occur. The employers collected the business cards of
at least eleven business representatives or special representatives. These may be found in
G.C.Exhs. 6 and 7. 4 these cards include the names of Patrick Stewart, Chuck Elkins and Bill
Baxter. 5 There is testimony regarding statements made by these three which will be discussed
below. On at least one of the business cards distributed by special representative Doug
McMurray someone has written the phrase "call Hal Jensen." That card bears a June 2 date.
Jensen is the same individual who signed the exemplar letter quoted supra, signing it as a Local
209 business representative.
VI. The Bannering
In each of the locations, Local 209 established banners near the sites which, by design,
named the companies with which the primary disputants were doing business. In secondary
boycott terms, it chose to name the neutrals, not the primaries. These banners were some 20
feet long and 4 feet high. Two or three individuals held them in a stationary manner near the
construction sites or the putative construction sites. They did not engage in any patrolling, a
traditional feature of picketing; in fact, the banner was so large as to have rendered patrolling
4 Additional business cards may be seen in C.P.Exh. 3, but they are duplicative.
5 Some of the witnesses mistakenly identified Baxter as business representative Robert
Almond. The error was corrected by stipulation.

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physically challenging. Those individuals also carried leaflets that described the nature of Local
209’s dispute with the named neutral, either M&M or Covi. There is no evidence that the pickets
said anything to passersby about Local 209’s purpose except to hand out the leaflet.
The banners were white and said in large red lettering, about two feet high, “Shame on
(name of neutral)”. That phrase was bounded on the left and right margins by the smaller,
slanted, phrase, “Labor Dispute” in black letters. Neither M&M nor Covi is mentioned on the
banner in any way. The banners were displayed at the Auto Mall beginning June 2 and at the
various Covi locations beginning July 17. The bannering was continuing at the time of the
instant hearing in September.
More specifically, the facts at each site are:
The Auto Mall in Thousand Oaks
Aware of a possible labor dispute, Silver Star and Carignan created a reserve gate
solely for the use of M&M. They informed the union of the reserve gate by faxed letter on
May 13. On June 2, Local 209 placed its banner on the public sidewalk, about 180 feet from the
reserve gate. The banner is approximately 60 feet from the nearby freeway boundary and is
visible to all northbound freeway users. The banner is almost 200 feet from the project’s
construction entrance; is 200 feet from Carignan’s trailer; 240 feet from the customer entrance;
150 feet from the sidewalk entrance; and 100 feet from Silver Star’s temporary office trailer.
The photographs show the banner to be on a street corner facing street traffic. It is clearly
aimed at the general public.
The bannering has continued, through at least the date of this hearing, even though
M&M has long since left the jobsite and even though the union has been informed of their
departure.
In this incident, although Local 209 is the local union carrying out the bannering, the
actual union official in charge was one of Respondent Southwest Council’s business
representatives, Patrick Stewart. Because of Stewart’s involvement, the complaint was directed
both at Local 209 and the Southwest Council.
The Shea Sites
Although I have grouped the following bannering incidents under the heading "Shea
Sites", in fact not all of them involve Shea directly, although each is covered in the Shea
complaint. As will be seen, it was enough for Local 209 to have believed that Shea, or one of
the Shea entities, might become involved in a specific project. Where that was so, neutrals
other than Shea were named on some of the banners. The others who were named are Capital
& Counties USA and Wermers Multifamily Corporation.
The Shea Properties Office. The stipulation recites that Shea Properties, which is a
Delaware corporation, has an office in Aliso Viejo, a town in Orange County. Its business is to
build, manage and sell commercial real estate and apartments in Southern California. As will be
seen below, one of its projects was the construction and subsequent leasing of the City Lights
apartment complex, also in Aliso Viejo.
According to the stipulation, about July 17 and for three days thereafter, Local 209
displayed a 20-foot long white banner with two foot high red capital letters stating "SHAME ON
SHEA PROPERTIES." That phrase was bounded on each side in smaller black lettering by the
words "LABOR DISPUTE." The banner was displayed from 10 a.m. to 3 p.m. and was
accompanied by three individuals who were either members of or employed by Local 209. A

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diagram shows the banner to have been placed on a public sidewalk bordering Aliso Viejo
Parkway, facing the street. It was located next to the entrance to a large parking lot fronting the
office building in which Shea Properties had its business office. The banner was 200 feet from
the building’s entrance.
Shea Properties’ City Lights Apartment Complex. After three days the banner was
relocated to the City Lights complex and since that time has been displayed on Tuesdays
through Fridays from approximately 10 a.m. to 3 p.m. It, too, was accompanied by three
individuals who were either members of or employed by Local 209. There, the banner, as
shown by a diagram and photographs, was placed on a sidewalk next to the complex’s
entrance, facing Horizon Street. The sign was placed at an angle so that it was directed both at
the driveway and street traffic. While the distance to the nearest complex building (the
recreation building, housing the leasing office), is not covered by the stipulation, the photograph
shows the building to be immediately behind the banner beyond a grass strip and decorative
fountain. Another photo shows the banner in a slightly different location, still in front of the same
building, but perhaps 20 feet away from the parking entrance. In that location it faced out to the
street. These locations placed the banner from between 60 to 100 feet from the leasing office.
No construction was underway at the City Lights complex. There, Shea Properties was
principally performing property management and apartment leasing.
Wermer’s Multifamily Corporation office. The Wermer’s office is located in northern San
Diego, not far from the Miramar Marine Corps Air Station. The stipulation recites that beginning
on July 17, and continuing, Local 209 placed a “SHAME ON WERMERS” banner at the office
and that it appears Tuesdays through Fridays from 9 a.m. to 3 p.m. The stipulation states that
the banner is 30-40 yards from the front entrance to the building, next to the building driveway
leading to the parking lot. Its employees, customers, tenants and visitors all use the driveway
and lot. Located in a park-like setting, its building is, in the words of the stipulation, ‘surrounded
by other office buildings,’ although the photographs do not show them. The building itself
seems to be ‘surrounded’ by grass and trees.
Capital & Counties USA (Los Angeles). The stipulation recites that Capital & Counties
has an ownership interest in the office building located at 800 West Sixth Street in downtown
Los Angeles. 6 This is a large office building located on the southeast corner of the intersection
of South Flower Street and West Sixth. It has many tenants. The building’s sidewalk entrance
is in the corner abutting the intersection. To enter the building at that location from Flower, one
must walk up six or seven steps to an outdoor lobby or plaza. 7 An espresso coffee outlet is
located there. Passing through the plaza, one must then take an escalator to the to the main
lobby on the second floor. The building also has an underground parking garage. The single
garage entrance is on Flower Street about 60-70 feet south of the intersection. Once parked in
the garage, a visitor or tenant may enter the building directly, probably by elevator, without
coming outside.
The stipulation recites that since July 17 and continuing, Local 209 has placed a SHAME
ON CAPITAL COUNTIES banner, having the same format as the others. It is displayed at least
on Tuesdays through Fridays. It has been placed on the curb of the Flower Street sidewalk,
about 15 feet (the width of the sidewalk) from the steps to the entry plaza. That location places
it about 40 feet from the garage entrance. Three members or employees of Local 209

6 There is testimony from the building manager, Denise La Doux, who works for Charles
Dunn Real Estate Services, Inc., the managing agency, that Capital & Counties is a silent
partner in the building and that the managing partner is an entity she referred to as “Waltco.”
7 There is also a level entry to the plaza from the Sixth Street side of the corner.

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accompany the banner. Sidewalk passersby can only see the back of the banner, though
persons on the other side of Flower or across the intersection can see the front. It is, of course,
visible to drivers on Flower, including those heading to the garage entrance, but probably not
from Sixth, since it is a one-way eastbound street and the building would shield the banner from
those drivers. 8
There is no construction occurring at this office building.
Capital & Counties USA Colorado Boulevard site (Pasadena). The hearing record
regarding the ownership and construction interests on the property in question is a bit unclear.
The city block having its northeast corner at the intersection of Colorado Boulevard and
Madison Avenue is the site of some significant construction. On the corner itself is an historic 8-
story bank building, once the site of the First Trust Bank. At the time of the bannering it had
become the Bank of the West. At some point, Capital & Counties appears to have acquired an
ownership interest in that building. To the north, on Madison Avenue is a an historic parking
structure and much of the remainder of that block is under construction. That project is the site
of the Trio Apartments. An entity known as 621 Associates is the owner-developer of that
project.
Duane Bradley, the senior development manager for Shea Properties testified about the
Trio project interests. He said, “Capital & Counties, through another entity called 525 Colorado
Associates, is partners with I believe it's called Shea Trio Pasadena Associates that those two
entities comprise the ownership entity for the Trio project, which is 621 Colorado Boulevard
Associates.” He observed that Shea Properties is the managing partner of Shea Trio Partners.
Moreover, Wermer’s has been assigned the task of being the construction manager for the
project. Wermer’s has two management officials on the site, Sheila Manning and Brian
Cazares. Manning is the project coordinator and Cazares is the senior project manager.
Manning testified that in May, a union official she believed to be Robert Almond (it was
actually Bill Baxter) and another came to the construction trailer. After some issues about using
the restroom, one of them asked her if the concrete contractor had been chosen for the project.
She said one had not, also noting it was not up to Wermer’s to decide. One of the men asked
who would be making the decision and she replied, “Shea Properties.” She said he told her,
“. . . he wanted to get a message to Shea that the Carpenters Union would like a union
carpenter to do the concrete portion of the project. He proceeded to inform me that what took
place at the City Lights project was child's play compared to what would take place at Trio if a
non-union carpenter contractor was chosen.” She quotes him as going on to say: “he continued
to say that Wermers would feel pain if a non-union contractor was chosen on site.” She also
said that the Union did not want Covi Concrete to be doing the project. (If this conversation
occurred in May, it would not have been in reference to the July bannering at City Lights.)
Cazares testified that sometime between mid-April and June, Almond (actually Bill
Baxter) and Chuck Elkins came to the jobsite trailer and were in the process of speaking to
Manning and asking who was in charge. He overheard their request and came out to tell them it
was he. They asked who was bidding the concrete and Cazares replied that the bid hadn’t
been released yet, so he couldn’t say. When they asked who the likely bidders would be he
listed six, including Covi Concrete. Almond responded saying Covi would not be a good choice.
Cazares testified Almond said:

8 The only complaints received about the banner came from drivers exiting the garage who
said the banner hampered their ability to see oncoming traffic.

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. . . there was an ongoing labor dispute with Covi Concrete for not reaching fair area
standards, labor standards and pay and fringe benefits and stuff like that. So I, you
know, I told them that they are not the only non-union bidder on the list, although my list
was stronger with union bidders, and we talked further about it and he told me that,
again, how could he get a message to whoever the powers that be that make the
decision -- who's going to make the decision on the contract, which he thought it was us,
and I told him it's not us, it's Shea Properties. So I went through the whole process with
him on how we're the construction manager, we get the bids and we qualify them, and
then we give them to Shea Properties and no --in kind of a random list with their
numbers and their bids and their insurance qualifications and then Shea Properties picks
the contractor and I told them about that process.
* * *
What he said, to the best of my knowledge, you know, that I can remember, he said that,
you know, to get a message to either of the -- the powers that be who makes the
decisions that, if, you know, we chose Covi Concrete for this scope of work on the
project, that he would make -- that they would make the lives of everyone on this project
miserable.
In mid-June, Shea Properties chose Covi Concrete for the work. On June 20, Almond
and Elkins visited the site to see where the concrete situation stood. Cazares says he told them
of Covi’s selection at that time. Cazares testified Almond, clearly perturbed, said, “. . . that ‘was
a bad choice.’ He goes, you know, ‘moving forward all hell's going to break loose on this
project.’ Cazares went on to testify that Almond then mentioned the City Lights project, saying
“what they had done out there in regards to, you know, bannering [at City Lights],9 that it would
be dwarfed by what's going to happen at Trio.” Once again, since this conversation occurred on
June 20, it preceded the Shea bannering in Aliso Viejo which according to the stipulation did not
begin until July 17.
The stipulation recites that on July 17, Local 209 placed a “SHAME ON CAPITAL
COUNTIES” banner in front of the bank building. The banner contained the slanted “Labor
Dispute” language seen on the other banners. The banner did not mention Shea, Wermers or
the Trio project immediately behind the bank. The banner itself was placed at curbside fronting
Colorado Boulevard adjacent to the Madison Avenue stoplight/streetlight pole at the crosswalk.
This location placed it out of view for anyone working at or visiting the Shea/Wermers jobsite
trailer half a block up Madison or the Trio project itself. It was aimed only at vehicles passing
through the intersection or persons using the crosswalk. This banner, too, is being displayed
Tuesdays through Fridays from 10 a.m. to 3 p.m., and is held upright by banner bearers.
Ambassador College Campus. The Ambassador College Campus in Pasadena is the
headquarters of the Worldwide Church of God. The main building appears to occupy a city
block. Its entrance is on Green Street. The Church owns a large parcel of land and is in the
process of selling it to developers. To assist it, it has hired as a consultant Shea Homes. Shea
Homes has a connection to Shea Properties, but the connection is not clearly described in the
record. According to Shea Homes’ assistant community development manager, Brian Riggs,
Shea Homes is:
serving as a consultant to the Worldwide Church of God. The property is presently not
entitled. We are seeking approvals through the city to get it approved to sell off to other
builders and so my job consists of design with architects, consultants, designers,
meeting with the Worldwide Church of God, since they are the property owners. So we

9 Bracketed material corrects unintelligible transcription.

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have meetings with them regularly. We have meetings with a number of other
consultants that we work with. PR firm, traffic engineer. So it's planning and designing
of this future community.
He said current plans call for this planned community to consist of 1431 residential
dwellings. As the consultant to the Church, Shea Homes has established an office in one of the
campus buildings. The project itself, at the time of the hearing, was some time in the future. No
approvals had then been granted and no construction was underway. Indeed, the property had
yet to be transferred to the developers. Riggs said Shea Homes hoped to be one of the
successful purchasers of part of the property, but it would have to bid like any other developer.
Riggs recalled that sometime in early July, two union business agents, Harry Beggs and
Ron Diament, came to his office. He took their business cards, but did not really learn which
was which. They asked if he was familiar with Covi Concrete. Riggs replied he was not. They
asked if he was familiar with a labor dispute the Carpenters Union had with Covi and Shea
Properties. Riggs said he had heard of it, but didn’t really know about it; he had heard
something about the occurrences at the Trio Apartments project, but knew nothing about any
other projects. They asked if Shea Homes and Shea Properties were affiliated. Riggs replied
that both had the same owners, but they sold different products and were separate legal
entities. At that point one of the union officials said that the Union saw it differently and he could
expect some banners soon.
The stipulation recites that on July 21, Local 209 placed a “SHEA PROPERTIES” banner
facing Green Street in front of the Ambassador College campus. For the first 4 days, the
banner was located about 60 feet from the main building. Beginning July 21, the banner was
moved further west to its current location, about 100 feet beyond the original spot.
Once stationed for the day, there is no evidence that the banners at any of the sites
were moved in any fashion. Thus, it is fair to conclude that these banners do not include the
element of patrolling, an expected characteristic of picketing. Furthermore, there is no evidence
that the banner bearers said anything whatsoever to passersby. Their speech was minimal and
apparently limited to whatever niceties might be uttered when handing a flyer to someone who
had requested it. Finally, there is no evidence whatsoever, beyond the bannering itself, that any
attempt was made to induce workers to refuse to perform their normal work. Hence, it is fair to
conclude that no work, whether within or without any of the sites, was disrupted.
Analysis and Conclusions
This complaint alleges a limited violation of §8(b)(4)(B), the secondary boycott
prohibition of the Taft-Hartley Act. Generally speaking, that statute prohibits labor unions from
enmeshing persons in labor disputes not their own. It has been observed that sometimes
determining whether a person is a primary disputant or a secondary disputant (neutral) is a
difficult task. 10 Rules and presumptions have been established over the years to assist in
making that determination. 11 Moreover, the Congress, recognizing that nearly all primary
disputes are likely to have secondary effects, attempted to strike a balance between free
speech and misconduct, by including the so-called publicity proviso.
The pertinent portion of the statute is set forth below. As can be seen, the statute
approaches these kinds of disputes by determining the object of the picketing or other conduct,
not strictly because of its effect upon persons. Moreover, the Congress, through another
10 National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 645 (1967)
11 See, for example, Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950),
which establishes certain presumptions where picketing occurs at a common situs.

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proviso, has recognized that labor unions are entitled to engage in a traditional primary strike;
i.e., a strike against the person with whom it actually has a dispute and the person who can
actually resolve the disagreement.
The statute itself, broken down here for easier comprehension, reads as follows:
Sec. 8(b)(4). It shall be an unfair labor practice for a labor organization or its agents—
(i) to engage in, or to induce or encourage any individual 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, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities or to perform any services; or
(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry
affecting commerce,
where in either case an object thereof is--
(A) [omitted]
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise
dealing in the products of any other producer, processor, or manufacturer, 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 certified as the representative of such employees under the provisions of
section 9 [section 159 of this title]:
(C) [omitted]
(D) [omitted]
[First proviso] Provided, That nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or primary picketing; 12
[Second proviso] Provided, That nothing contained in this subsection (b) [this subsection] shall
be construed to make unlawful a refusal by any person to enter upon the premises of any
employer (other than his own employer), if the employees of such employer are engaged in a
strike ratified or approved by a representative of such employees whom such employer is
required to recognize under this Act [subchapter]:
[Third proviso] Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the
purpose of truthfully advising the public, including consumers and members of a labor
organization, that a product or products are produced by an employer with whom the labor
organization has a primary dispute and are distributed by another employer, as long as such
publicity does not have an effect of inducing any individual employed by any person other than
the primary employer in the course of his employment to refuse to pick up, deliver, or transport
any goods, or not to perform any services, at the establishment of the employer engaged in
such distribution; . . . .
The instant complaint has been deliberately restricted by the omission of the (i)
inducement language. Thus the General Counsel has chosen to concede that the conduct here
was not aimed at inducing or encouraging employees to cease work. Instead, the complaint
12 Indeed, the right to engage in a primary strike is specifically preserved in Section 13 of the
Act: “[Right to strike preserved] Nothing in this Act [subchapter], except as specifically
provided for herein, shall be construed so as either to interfere with or impede or diminish in any
way the right to strike or to affect the limitations or qualifications on that right.

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focuses solely on union conduct which “threatens, coerces or restrains” persons engaged in
commerce. Furthermore, in whatever form it takes, the threat, coercion or restraint, must have,
as one of its objects, forcing a neutral to cease doing business with a primary.
And, assuming such an object exists, that conduct may nevertheless be permitted if it
meets the criteria set forth in the third, or publicity, proviso recited above, i.e., if the conduct is
other than picketing and it truthfully advises the public, consumers or union members, that there
is a primary dispute and if the conduct does not have the effect of inducing individuals employed
by neutral employers to not perform their work at their own establishment.
Beyond that, since Respondents have, in their banners, invoked the expression “labor
dispute,” it is appropriate to note that §2(9) of the Act defines that term. It states: “The term
‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment,
or concerning the association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and employee.” 13
I have Italicized the last portion of the definition to note that it encompasses not only
primary disputants but others who stand at some distance from the primary disputants — that is,
neutrals or secondaries, as contemplated under §8(b)(4)(B).
Due to the stipulation the facts here require little parsing to determine what the various
relationships are. First, the primary disputant in the Thousand Oaks bannering is M&M
Interiors. There, Carignan Construction, a neutral who does business with M&M is not even
named on the banner. Instead, the neutral project owner, Silver Star (the Cadillac and Saab
dealer), is named. That company is one step further away from the controversy than the
general contractor, Carignan.
Similarly, the Shea Properties–Capital & Counties–Wermer’s bannering is occurring
some distance away from the designated primary, Covi Concrete. Two of those locations
occurred at company office buildings where no construction was even contemplated, much less
occurring. One of those was the Wermer’s headquarters office in San Diego. The other was at
the downtown Los Angeles office building partly owned by Capital & Counties, though the
record does not reflect whether Capital & Counties has offices there. Others in almost the same
category are the Ambassador College (in Pasadena) and the City Lights Apartment complex (in
Aliso Viejo). At Ambassador College, Shea Homes (not Shea Properties) only has a planning
office. At none of these sites is construction actually in progress.
It would appear that the Trio Apartments in Pasadena is the principal project with which
Local 209 has its issues. It is there that Covi Concrete actually made an appearance. (The
record is not clear whether Covi had anything to do with the construction of City Lights, though it
seems likely.) In any event, Shea Properties and Capital & Counties are partners in the Trio
project. It can be said that Local 209 is treating Shea Properties and Capital & Counties as if
they were the same.
All of the named neutrals are uninvolved with 209’s dispute with Covi or M&M. Their
only connection to that dispute is indirect. It is possible that as project owners they have some
influence over the selection of the primary employer. Silver Star could ask (but probably not
require) Carignan not to use M&M as a subcontractor. Similarly, Wermer’s and Shea Homes
could ask, but probably not require, Shea Properties and/or Capital & Counties not to use Covi
Concrete. At the Trio project, as partners in 621 Associates, Shea Properties and Capital &
Counties themselves could actually decide who to use as the concrete supplier. There, they
13 Section 2(9) of the NLRA was lifted verbatim from §13(c) of the Norris-LaGuardia Act
(1932).

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were only one step from the primary and held the decision-making power to avoid recrimination
simply by exercising their own discretion in a way which would satisfy Local 209’s concerns.
And, I suppose, such a decision would have resulted in no bannering of the sites more distant,
such as the office buildings and the City Lights Apartments.
The first legal question to be answered is whether the publicity proviso is applicable to
the bannering here. Both Respondents argue that the proviso fully permits the conduct. They
note that there was no patrolling as normally seen in picket lines; the banners do not look like
picket signs and they were not placed in locations likely to have an effect on persons seeking
entry to those facilities where construction projects were actually underway. Instead, the
banners are more like billboards – they are stationary and aimed at the general public.
Moreover, their message is unlike those seen on picket lines. Picket line messages include
phrases such as “On Strike,” “Unfair,” “Non-Union,” “Doesn’t Meet Area Standards,” and the
like. This message simply says “Shame On [name of neutral]” while adding the phrase “Labor
Dispute.”
The General Counsel asserts that there is no labor dispute at any of the sites and
therefore the message is false (and even ‘fraudulent,’ though I am unclear how ‘fraudulent’ is an
accurate characterization 14 or how it adds anything to the legal argument.) Nonetheless, it is
appropriate to observe that the “labor dispute” language is not false. In actuality, it is a true
statement. Local 209 and the Council do have labor disputes with M&M and Covi which are
ongoing. Yet the §2(9) definition of labor dispute specifically includes both primaries and
neutrals as persons who are involved in a labor dispute. This is, of course, as it should be.
Whenever there is a labor dispute, both primaries and secondaries will be affected to some
degree. The primary, of course, is the main target. Yet, secondaries can be directly, indirectly
or only incidentally affected. Nonetheless they are parties to any labor dispute as defined by
§2(9). Therefore, the General Counsel’s charge that the banners are false when they announce
“labor dispute” is inconsistent with the statutory definition. 15 Certainly the publicity proviso
permits truthful speech.
Before attempting to apply the publicity proviso to the facts occurring here, it is
appropriate to look to the legislative history of the proviso and some Supreme Court discussions
both leading to the proviso and occurring subsequently. In fact, the discussion must begin with
a Supreme Court case decided before the publicity proviso was added to the Act in 1959,
International Brotherhood of Electrical Workers, Local 501 v. NLRB (Samuel Langer), 341 U.S.
694 (1951). 16 That case discussed the secondary boycott prohibitions as established by the
Taft–Hartley Act in 1947. The statute as originally written, then §8(b)(4)(A), utilized the phrase
14 For a statement to be legally fraudulent, it must be uttered by a person who knows the
statement is false, that the person intends the listener to rely upon it, and the listener in fact
does so and that very reliance results in a foreseeable detriment to the listener. None of these
requirements of fraud has been demonstrated here.
15 There are, of course, cases which hold, quite logically, that if language on a picket sign is
untrue, that falsity is evidence that the picket line has a purpose other than its claimed purpose.
This is important in determining the object of the picketing. For example, if a sign asserts that
the employer is not meeting area standards, when in fact it does, then an inference may be
drawn that the picketing has another purpose, (e.g., recognitional, work assignment), perhaps
barred by §8(b)(7) or §8(b)(4)(B), (C) or (D). See, for example, Hotel, Motel and Club
Employees, Local 568 (Restaurant Management), 147 NLRB 1060 (1964); Service Employees
Int’l Union, Local 87 (Trinity Building Maintenance), 312 NLRB 715 (1993).
16 As an aside, Langer and the more famous NLRB v. Denver Building & Construction
Trades Council, 341 U.S. 675 (1951) were decided the same day.

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"induce or encourage" as the test for whether a union was engaging in prohibited activity. In
Langer the court held that the phrase found in §8(b)(4)(A) "induce or encourage" was broad
enough to include "every form of influence or persuasion" upon neutral employees to obtain
their work stoppage. Id. at 701.
When the 1959 amendments were being considered, the original House version would
have prohibited publicity as well as picketing in secondary situations. Certainly, the Langer
decision would have permitted such an interpretation.
Some pre-1959 cases seem to have followed that model, but the courts uniformly
rejected that type of analysis. See, for example, United Warehouse & Wholesale Employees
Local 261 v. NLRB (Perfection Mattress & Spring Company), 282 F.2d 824 (D.C. Cir. (1960);
NLRB v. Int'l Union of Brewery Workers (Adolph Coors Co.), 272 F.2d 817 (5th Cir. 1959);
NLRB v. Business Machine & Office Appliance Mechanics Conference Board (Royal Typewriter
Co.), 228 F.2d 553 (2d Cir. 1955), cert. denied, 351 U.S. 962 (1956). Shortcomings were also
found regarding direct contact with the neutral employer’s management. See the discussion by
Justice Brennan in NLRB v. Servette, Inc., 377 U.S. 46 at 53-54 (1964). As a result, the 1959
amendments were the product of a joint conference between the House and the Senate.
Senator Kennedy was the conference committee chairman and Senator Goldwater was one of
the participants. During the debate, Senator Kennedy stated concerning the proviso:
The right to appeal to consumers by methods other than picketing asking them to
refrain from buying goods made by nonunion labor and to refrain from trading with a
retailer who sells such goods.
Under the Landrum-Griffin bill it would have been impossible for a union to inform the
customers of a secondary employer that that employer or store was selling goods which
were made under racket conditions or sweatshop conditions, or in a plant where an
economic strike was in progress. We were not able to persuade the House conferees to
permit picketing in front of that secondary shop, but we were able to persuade them to
agree that the union shall be free to conduct informational activity short of picketing. In
other words, the union can hand out handbills at the shop, can place advertisements in
newspapers, can make announcements over the radio, and can carry on all publicity
short of having an ambulatory picketing in front of a secondary site. (Emphasis
supplied.) 17
On September 14, the day the Act was signed into law by the President, Senator
Goldwater inserted in the Congressional Record his analysis of the amendments in which he
said of the publicity proviso:
This new amendment in the conference report also makes secondary consumer
boycotts illegal subject to certain narrow and limited exceptions. Thus, under previous
law a labor union having a dispute with the producer, company A, could lawfully picket
the distributor, company B, who carried company A's products for sale, for the purpose
of inducing consumers not to patronize company B, subject to certain restrictions
imposed by the Board. Under the new amendment, such picketing becomes illegal, but
the union is permitted to engage in publicity -- by means other than picketing -- truthfully
advising the public that company B the distributor -- the secondary employer -- is
distributing goods produced by company A, the producer with whom such labor union
has a primary dispute. But even this permitted -- but limited -- type of union activity
becomes unlawful if such publicity has an effect of inducing any individual employed by

17 II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at
1432.

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any person other than the producer, company A, 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 secondary employer who is engaged in such distribution, that is, the
distributor, company B. 18
In addition, Senator Douglas on that day inserted in the Congressional Record, a speech
he had made a week earlier to a state AFL-CIO convention describing the 1959 amendments.
With regard to the publicity proviso he said:
While picketing at secondary-boycott site is outlawed, the House bill went further and
would even have prevented the passing out of handbills or ads in newspapers. This
provision in the House bill was changed so that handbills, radio programs,
advertisements, etc., aimed at the public, including consumers, would at least be
permitted in the secondary situations. I think that is proper and an exercise of our
constitutional right of free speech. 19
The sum of these remarks is a remarkably clear legislative intention to permit unions in a
small way to engage in at least one kind of secondary activity, publicity. Moreover, the proviso
specifically states that a union engaged in a secondary publicity campaign may publicize it not
only to the general public but also to "consumers and members of a labor organization."
Of course the proviso is self-limiting. It will not protect publicity from the secondary
boycott prohibitions if the publicity has the effect of causing employees of neutrals to refuse to
work. In a very real sense the inducement language now found in §8(b)(4)(i) resurfaces within
the proviso under the “effect” analysis. Obviously, if the publicity has the effect of inducing
neutral employees from working, the effect is proof that publicity alone was not the purpose; the
purpose included a call for action. While the reasoning may be circular in a sense, it is
nonetheless the balance Congress struck. It allows for free speech up to the point it becomes a
call for action. Such a balance is also seen in the publicity proviso to §8(b)(7)(C), the prohibition
against prolonged recognitional picketing. In this regard, Local Joint Exec. Bd. Hotel Workers
(Crown Cafeteria), 135 NLRB 1183 (1962) [Crown II] (adopting the Jenkins/Fanning dissent in
Crown I, 130 NLRB 570, at 574ff. (1961)] and Hod Carriers Local 840 (C.A. Blinne Constr.), 135
NLRB 1153 (1962) are instructive. They hold that a union may have an unlawful purpose but if
the picket sign language comports with the statute, the publicity proviso will permit the picketing.
The complaint here, as noted, invokes §8(b)(4)(ii)(B), not §8(b)(4)(i)(B). Seemingly that
discards any theory that employee inducement is a part of the case. However, it has long been
held that (i) inducement of neutral employees qualifies as (ii) restraint and coercion of a neutral
employer. United Food and Commercial Workers Union (Carpenters Health & Welfare Fund),
334 NLRB 507 (2001); Teamsters Local 315 (Santa Fe), 306 NLRB 616, 631 (1992); Plumbers
Local 398 (Robbins Plumbing), 261 NLRB 482, 487 (1982); Teamsters Local 126 (Ready Mixed
Concrete), 200 NLRB 253, 254 fn. 6 (1972). Therefore, no matter what the truncation of the
complaint’s allegation is intended to mean, both (i) and (ii) conduct are implicated. For that
reason, evidence of employee inducement must be considered even if a remedy can only run to
(ii) conduct. It is worth noting, therefore, that there is no evidence whatsoever of (i) employee
inducement independent of the banners. The absence of such evidence is significant in
determining the Respondents’ object.
18 Op. cit. at 1857.
19 Op. cit. at 1834.

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The record does contain testimony from two Wermer’s managers that union agent
Baxter made remarks in the months before the bannering that seem to qualify as (ii) threats.
These include remarks such as “what’s happened in the past will seem like child’s play”,
“Wermers will feel pain”, “we will make the lives of everyone on the project miserable,” and “all
hell’s going to break loose.”
I am unable to find that these remarks qualify as threats, restraint or coercion as
contemplated by (ii). On their face they are hyperbole and must be taken as such. But, they
are defective in another way. Most refer in the past tense to events which hadn’t yet occurred.
For example, Manning quotes Baxter as referring in May to matters at City Lights that did not
occur until July. If she is accurately referring to some other incident that had occurred prior to
May, the record does not reflect what it was. Moreover, if she is honestly doing so, there is no
way to evaluate it here. I can only conclude in that circumstance that there is insufficient proof
to determine whether in context Baxter’s supposed reference was coercive. It may well be that
Baxter was referring to lawful past conduct of some kind. Because of its context, such a
reference would render the remarks inoffensive. The same can be said of Cazares’ testimony.
Accordingly, I cannot find these remarks to be (ii) conduct.
While it may be observed that the proscriptive language of §8(b)(4)(B) contains no
language specifically speaking to picketing (because its injunction reaches conduct beyond
simple picketing), the publicity proviso clearly does, not only by its wording but by the intent of
its framers. Therefore, the threshold publicity proviso question is whether the bannering is
picketing. The General Counsel seems relatively unconcerned with the question. It simply
assumes that persons standing with signs are pickets.
Indeed, it argues that the bannering is “signal picketing”, although I am uncertain how to
take that assertion. All picketing may fairly be said to constitute some kind of “signal.” As the
Supreme Court observed in Local 761, International Union of Electrical, Radio & Machine
Workers v. NLRB (General Electric), 366 U.S. 667, 674 (1961):
Almost all picketing, even at the situs of the primary employer and surely at that of the
secondary, hopes to achieve the forbidden objective, whatever other motives there may
be and however small the chances of success. [citation omitted] But picketing which
induces secondary employees to respect a picket line is not the equivalent of picketing
which has an object of inducing those employees to engage in concerted conduct
against their employer in order to force him to refuse to deal with the struck employer.
Labor Board v. International Rice Milling, [341 U.S. 665 (1951)]. [Internal quotation
marks omitted.]
Most signal picketing is prearranged, (“When you see the business agent wave his sign
or handbill (no matter what it says), stop working and leave the job.”) There is no suggestion
here that the banners were a prearranged signal. If they were a signal, it was singularly
unsuccessful. In any event, as noted, it is the object of the picketing upon which the statute
focuses, not the impact.
Furthermore, the Respondents did no patrolling; instead, they stationed their banners
significant distances from construction locations. Indeed, no evidence has been presented that
the banners had any effect whatsoever upon neutral employees at any of the locations.
Moreover, the banners were put up after work had begun and were removed before normal
quitting times. Great lengths were taken to avoid active construction workers and thereby

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induce them not to work. Consistently, the banners were located in places where the public, but
not workers, could see them. 20 Finally, the banner had no traditional message aimed at
employees. Rather, it was “Shame on [named neutral].
I conclude from those facts that bannering, as described here, is not picketing. Neither
is it the functional equivalent of picketing. It is more in the nature of billboard advertising. Had
this message been placed on an outdoor billboard, no one could legitimately complain. Had it
been stated during a public speech, no one could legitimately complain. Had the accusation
been made in a television or radio program, no one could make a valid complaint. The banner
message is an expression of displeasure: Silver Star (Cadillac/Saab) dealerships, Shea
Properties, Wermer’s, Capital & Counties — ‘shame on you for your unsatisfactory behavior’ —
whatever it might be. Even before 1959, an appeal to “embarrassment and persuasion” of a
neutral was permissible. NLRB v. Business Machine & Office Appliance Mechanics Conference
Board (Royal Typewriter Co.), 228 F.2d 553 at 560 (2d Cir. 1955), cert. denied, 351 U.S. 962
(1956). Nothing has changed since then. A claim of shameful deeds is not any different and is
likewise permissible.
And, although the message expresses the Unions’ disdain, it does not amount to an
appeal to any person to act upon it. There is no call for joinder. At best it is a request for the
named neutral, if it wants to redeem itself in the Unions’ eyes, to exercise its business discretion
in a manner that does not offend. Indeed, the early letters made such a request. Such
entreaties are perfectly lawful. See NLRB v. Servette, Inc., 377 U.S. 46 (1964), where the
Supreme Court so held saying:
The Board adopted the finding of the Trial Examiner that "the managers of McDaniels
Markets were authorized to decide as they best could whether to continue doing
business with Servette in the face of threatened or actual handbilling. This, a policy
decision, was one for them to make. The evidence is persuasive that the same authority
was vested in the managers of Kory." 133 NLRB 1506. The Board held that on these
facts the Local's efforts to enlist the cooperation of the supermarket managers did not
constitute inducement of an "individual" within the meaning of that term in subsection (i);
the Board held further that the handbilling, even if constituting conduct which
"threaten[s], coerce[s], or restrain[s] any person" under subsection (ii), was protected by
the [publicity] proviso to amended 8(b)(4). 133 NLRB 1501.
More specifically, the Court said at 51-52:
In the instant case, . . . the Local, in asking the managers not to handle Servette items,
was not attempting to induce or encourage them to cease performing their managerial
duties in order to force their employers to cease doing business with Servette. Rather,
the managers were asked to make a managerial decision which the Board found was
within their authority to make. Such an appeal would not have been a violation of
8(b)(4)(A) before 1959, and we think that the legislative history of the 1959 amendments
makes it clear that the amendments were not meant to render such an appeal an unfair
labor practice.
Then Justice Brennan concluded:
20 If a union takes care to avoid enmeshing neutrals, that is evidence that it has no cease
doing business object. See, e.g., Electrical Workers (IBEW) Local 302 (ICR Electric), 272
NLRB 920 (1984).

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If subsection (i), in addition to prohibiting inducement of employees to withhold
employment services, also reaches an appeal that the managers exercise their
delegated authority by making a business judgment to cease dealing with the primary
employer, subsection (ii) would be almost superfluous. Harmony between (i) and (ii) is
best achieved by construing subsection (i) to prohibit inducement of the managers to
withhold their services from their employer, and subsection (ii) to condemn an attempt to
induce the exercise of discretion only if the inducement would "threaten, coerce, or
restrain" that exercise. Id., at 54.
Servette is a clear holding that a union may appeal to management’s business discretion
to cease doing business with another; what it may not do is that which is barred by (ii),
“threaten, coerce or restrain” management to accomplish that purpose. 21
A Board panel majority recently restated these principles in responding to former
Chairman Hurtgen’s dissent in United Food and Commercial Workers Union Local 1776
(Carpenters Health & Welfare Fund), 334 NLRB 507 (2001):
Our dissenting colleague would find, in effect, that all picketing at a secondary site, no
matter what the circumstances, is inherently coercive. He argues that all picketing is
coercive, the Union picketed the Carpenters (i.e., the Council), the Council is a neutral
employer, and therefore the Union restrained or coerced a neutral employer in violation
of Section 8(b)(4)(B). We reject his syllogism. Section 8(b)(4)(ii)(B) does not outlaw
picketing at a secondary site per se. See NLRB v. Fruit & Vegetable Packers Local 760
(Tree Fruits Labor Relations Committee), 377 U.S. 58, 68 (1964) (union’s secondary
picketing of retail stores confined to persuading customers to cease buying the product
of primary employer did not violate Section 8(b)(4)(ii)(B)). As the Court in Tree Fruits
stated:
When Congress meant to bar picketing per se, it made its meaning clear; for
example, § 8(b)(7) makes it an unfair labor practice, “to picket or cause to be
picketed . . . any employer. . . .” In contrast, the prohibition of § 8(b)(4) is keyed
to the coercive nature of the conduct, whether it be picketing or otherwise.
Thus, even where the employees of a primary employer (the Fund) may be reached at
the primary’s premises, picketing at the premises of a neutral, secondary employer (here
the Council) is not per se a violation of the Act. The test for determining whether such
picketing is lawful is the objective of the secondary activity, as gleaned from the
surrounding circumstances. As the U.S. Court of Appeals for the District of Columbia
Circuit stated in Seafarers International Union v. NLRB, 265 F.2d 585, 591 (D.C. Cir.
1959):
The mere fact that [the neutral, secondary employer] felt some pressure from the
picketing of the [primary employer’s leased ship on the neutral’s premises] is not
dispositive of the problem under Section 8(b)(4). The critical consideration is that
the pressure thus put on [the neutral] was not different from that felt by servicers
or suppliers under the most ordinary circumstances when a customer of theirs is
picketed.
21 Even before the 1959 amendments, the Supreme Court had said “. . . a union is free to
approach an employer to persuade him to engage in a [secondary] boycott, so long as it refrains
from the specifically prohibited means of coercion through inducement of employees.” Local
1976, Carpenters v. NLRB (Sand Door), 357 U.S. 93, 99 (1958).

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Here, I find that the “shame on” banners are, if anything other than publicity, only an
appeal to neutral management to exercise its discretion in the future to not do business with
M&M or Covi. This purpose may be discerned from both the early letters and the handbills
distributed by the banner bearers. The banner message itself did not go even that far. Thus,
even if a cease doing business object may be detected here, though evidence of such an object
is nearly nonexistent, no (ii) threat, restraint or coercion has been shown.
I find therefore that Respondents’ bannering at the sites in question is protected by the
publicity proviso to §8(b)(4) and that the conduct does not violate the Act. The complaints will
be dismissed.
Based on the foregoing findings of fact and analysis, I hereby make the following
Conclusions of Law
1. All of the named employers are persons engaged in commerce within the meaning of §2(1),
(2), (6) and (7) of the Act.
2. Local 209 and the District Council are labor organizations within the meaning of §2(5) of the
Act
3. Respondents have not engaged in unfair labor practices within the meaning of §8(b)(4)(ii)(B)
of the Act as alleged.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 22
ORDER
The complaints are hereby dismissed in their entirety.

______________________________
James M. Kennedy
Administrative Law Judge

Dated: February 18, 2004

22 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.