Carpenters Local Unions Nos. 184 and 1498 (Grayhawk Development)

National Labor Relations Board - Board Decisions

Sep 21, 2010

355 N.L.R.B. 1117 (N.L.R.B. 2010)

CARPENTERS LOCALS 184 & 1498 (GRAYHAWK DEVELOPMENT)
355 NLRB No. 188
1117
United Brotherhood of Carpenters and Joiners of
America, Locals 184 and 1498 and Grayhawk
Development, Inc. and DMB Associates, Inc.

United Brotherhood of Carpenters and Joiners of
America, Locals 184 and 1498 and Crescent
Real Estate Funding XII, LP

United Brotherhood of Carpenters and Joiners of
America, Locals 184 and 1498 and Okland Con-
struction Company, Inc. Cases 28–CC–973, 28–
CC–975, 28–CC–977, 28–CC–978, 28–CC–979,
and 28–CC–980
September 21, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
This case concerns whether the Respondent Unions
violated Section 8(b)(4)(ii)(B) of the Act by displaying
large banners proclaiming a “labor dispute” at locations
associated with several secondary employers.1 The judge
found that these banner displays did not violate Section
8(b)(4)(ii)(B) because they were not picketing or suffi-
ciently akin to it to constitute threats, coercion, or re-
straint within the meaning of that section. He therefore
dismissed the complaint.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt his recommended Order dismissing the com-
plaint.
We find that the Unions’ conduct in this case was, for
all relevant purposes, the same as the conduct found law-
ful in our recent decision in Carpenters Local 1506 (Eli-
ason & Knuth of Arizona, Inc.), 355 NLRB No. 159
(2010). Accordingly, for the reasons stated in that deci-
sion, we find that Section 8(b)(4)(ii)(B) does not prohibit
the banner displays in this case.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER HAYES, dissenting.
The bannering activity at issue in this case is essen-
tially the same as in Eliason & Knuth, 355 NLRB No.
159 (2010). For the reasons fully set forth in the joint

1 On January 13, 2005, Administrative Law Judge James L. Rose is-
sued the attached decision. The General Counsel and Charging Party
Crescent Real Estate Funding XII, LP each filed exceptions and a sup-
porting brief. The Respondents filed an answering brief to the General
Counsel’s exceptions and the General Counsel filed a reply brief.
dissent in that case, I would find a violation here. The
bannering involves the placement of union agents hold-
ing large banners proximate to the premises of neutral
employers who have done or are doing business with
employers who are the primary targets in a labor dispute
with the Respondents. The predominate element of such
bannering is confrontational conduct, rather than persua-
sive speech, designed to promote a total boycott of the
neutral employers’ businesses, and thereby to further an
objective of forcing those employers to cease doing busi-
ness with the primary employers in the labor dispute.
Like picketing, this bannering activity is the precise evil
that Congress intended to outlaw through Section
8(b)(4)(ii)(B), and the proscription of this conduct raises
no Constitutional concerns. I therefore dissent from my
colleagues’ failure to enforce the Act as intended.

David A. Kelly, Esq., for the General Counsel.
Daniel Shanley, Esq., of Los Angeles, California, for the Re-
spondent.
James W. Stewart, Esq., of Salt Lake City, Utah, for Charging
Parties Grayhawk Development, Inc. and DMB Associates,
Inc.
Thomas J. Kennedy, Esq., of Phoenix, Arizona, for Charging
Party Crescent Real Estate Funding XII, LP.
John S. Chindlund, Esq., of Salt Lake City, Utah, for Charging
Party Okland Construction Co., Inc.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter is
before me on a stipulation entered into by the above-named
counsel and the General Counsel’s consolidated complaint
which alleges that certain activity of the Respondent Unions
violated Section 8(b)(4) (ii)(B) of the National Labor Relations
Act.
The complaint allegations and facts set forth in the stipula-
tion are substantially identical to other cases which are now
before the Board following decisions by administrative law
judges. Having issued complaints in these matters, the General
Counsel was compelled by statute to seek injunctive relief un-
der Section 10(l) of the Act before the appropriate Federal dis-
trict court. I have been referred to three district court decisions
including the one considering the facts of this case,1 all of
which concluded that there was no probable cause to believe
the General Counsel would prevail on the merits and denying
an injunction. I have also been referred to four other adminis-
trative law judge decisions, two of which found violations of
the Act2 and two which did not.3

1 Benson v. Carpenters Locals 184 & 1498, Case No. 2:04-CV-
00782 PGC (USDC, Dist of Utah, Central Div. Sept 27, 2004); Kohn v.
Carpenters Southwest Regional Council, 289 F.Supp. 1155 (USDC
WDCal 2003); Overstreet v. Carpenters Local 506, 2003 U.S. Dist.
LEXIS 1984 (USDC SoDCal 2003).
2 Carpenters Local 1827 (United Parcel Service), 2003 WL
21206515 (NLRB Div. of Judges 2003); and Carpenters Southwest
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
The essential facts in all these cases are the same. Near the
place of business of the Charging Parties, the Respondent Un-
ions placed large (about 5’ x 20’) white signs with red lettering
reading, “Shame on (name of the Charging Party)” and in
smaller blue letters, on both sides, the words “Labor Dispute.”
The signs were put up and taken down daily (from about 9 a.m.
to about 3 p.m.), but during the day were not moved. The signs
were attended by two to four union representatives since they
would not stand on their own. These representatives also had
handbills which they passed out if asked naming the employer
with whom the Unions had a primary dispute and the nature of
the dispute. (There is no allegation or contention by the Gen-
eral Counsel that the handbills were untruthful or unlawful.)
There was no patrolling by any of these representatives. There
were no confrontations with employees of the Charging Parties
or members of the general public entering or leaving the Charg-
ing Parties’ places of business. There were no allegations that
business of the Charging Parties was in any way affected nor
that employees of the Charging Parties refused to work.
The Union’s primary dispute was not with any of the Charg-
ing Parties but with construction companies doing business
with the Charging Parties. Thus there is little question that if
by placing these large signs the Unions were engaged in “pick-
eting” then they violated Section 8(b)(4)(ii)(B). Thus the only
significant issue here is whether placing a stationary sign near
the place of business of a neutral employer constitutes “picket-
ing” within the meaning of the Act. I conclude, with a majority
of judges deciding this issue, it does not.
On the stipulation and briefs of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
At all material times Grayhawk Development, Inc. has been
engaged in the business of real estate development and man-
agement with offices and place of business at Scottsdale, Ari-
zona, in connection with which it annually purchases and re-
ceives goods directly from outside the State of Arizona valued
in excess of $50,000. At all material times Grayhawk has been
a person or an employer engaged in interstate commerce and in
an industry affecting commerce within the meaning of Section
2(1), (2), (6), and (7) and Section 8(b)(4) of the Act.
At all material times DMB Associates, Inc. has been engaged
in the business of real estate development and management
with offices and place of business at Scottsdale, Arizona, in
connection with which it annually purchases and receives
goods directly from outside the State of Arizona valued in ex-
cess of $50,000. At all material times DMB has been a person
or an employer engaged in interstate commerce and in an in-
dustry affecting commerce within the meaning of Section 2(1),
(2), (6), and (7) and Section 8(b)(4) of the Act.
At all material times Crescent Real Estate Funding XII, LP, a
Delaware limited partnership, has owned and operated an office

Regional Council (Held Properties, Inc.), 2004 WL 762435 (NLRB
Div. of Judges 2004).
3 Carpenters Southwest Regional Council Local 209, 2004 NLRB
Lexis 74; and Carpenters Southwest Regional Council Locals 184 &
1498, JD(SF)-76-04 (Nov. 12, 2004).
building in Phoenix, Arizona, in connection with which it an-
nually derives gross annual revenues valued in excess of
$50,000 and provides lease office space to the United States
Government valued in excess of $50,000. At all material times
Crescent has been a person or an employer engaged in inter-
state commerce and in an industry affecting commerce within
the meaning of Section 2(1), (2), (6), and (7) and Section
8(b)(4) of the Act.
At all material times Okland Construction Company, Inc. has
been engaged in the construction industry as a general contrac-
tor with an office and place of business at Salt Lake City, Utah,
in connection with which it annually purchases and receives
goods directly from outside the State of Utah valued in excess
of $50,000 and annually performs services in states other than
Utah valued in excess of $50,000. At all material times Okland
has been a person or an employer engaged in interstate com-
merce and in an industry affecting commerce within the mean-
ing of Section 2(1), (2), (6), and (7) and Section 8(b)(4) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America,
Locals 184 and 1498 (the Unions or the Respondents) are ad-
mitted to be, and I conclude are, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondents have a dispute with two general contractors
which operate out of Utah—Okland Construction Company,
Inc. and New Star General Contractors. The essence of these
disputes is summarized in handbills and letters sent to various
entities in the Phoenix area, including the Charging Parties.
The Unions contend that these two contractors have engaged in
unfair labor practices by dominating a labor organization re-
ferred to as Utah Carpenters Association.
In support of this dispute, the Unions placed the large signs
described above near entrances to the places of business of the
Charging Parties—about 100 feet from the front door of Gray-
hawk’s main office (moved to 140 feet); about 51 feet (moved
to 130 feet) from an intersection of a road leading to the DMB
parking lot and 25 feet from the edge of the lot; about 35 feet
from the street-side pedestrian entrance to Crescent’s office;
and, at an intersection of a public highway and the road leading
to the Phoenix Zoo. The signs were always on public property
and faced away from the places of business. They were at-
tended by two to four union representatives who also distrib-
uted handbills to anyone asking for one. There was no patrol-
ling. There was no blocking of ingress or egress. There was no
shouting of union slogans or attempts to cause anyone not to
enter the Charging Parties’ places of business. No employees
of the Charging Partieshh or others refused to do any work as a
result of these signs.
All parties here concede that if placing the signs did not
amount to picketing by the Unions, and the message was truth-
ful, then the Unions’ actions would not be violative of Section
8(b)(4)(ii)(B) under the authority of Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building Trades Council (DeBar-
CARPENTERS LOCALS 184 & 1498 (GRAYHAWK DEVELOPMENT) 1119
tolo II), 485 U.S. 568 (1988). However, the General Counsel
contends that by placing an essentially unmovable sign near a
neutral employer’s place of business, along with attendants, the
Unions were engaged in picketing and further, that the message
on the signs was false and defamatory—that the Unions’ labor
dispute was not with any neutral, but the words “labor dispute”
on the signs could be read that it was.
B. Analysis and Concluding Findings
Section 8(b)(4) is the secondary boycott proscription making
it unlawful for a labor organization, so far as material to the
allegations here, “(ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce”
with an object of “(B) forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise dealing in
the products of any other processor, or manufacturer, or to
cease doing business with any other person.”
There are, however, three provisos which make permissible
conduct which otherwise could be construed as unlawful. Ma-
terial here is the third: “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 con-
sumers 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 an-
other employer, as long as such publicity does not have an ef-
fect 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 per-
form any services at the establishment of the employer engaged
in such distribution.”
The Supreme Court analyzed this proviso in DeBartolo II
and concluded that a union’s handbilling a shopping center in
an effort to persuade customers not to shop there because of a
dispute with one business, absent any confrontation or with-
holding of services by employees of neutrals, was not unlawful
as the Board had found. Reviewing the legislative history of
this publicity proviso amendment to Section 8(b)(4) the Court
quoted Senator John F. Kennedy’s comments in part: “a 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 ambulatory picketing in
front of the secondary site.” 485 U.S. at 587. In DeBartolo II
there was no allegation of picketing.
Since picketing would take this case out of the publicity pro-
viso and the reasoning of DeBartolo II, the essence of the Gen-
eral Counsel’s argument is that placing a large stationary sign
near the entrances to the neutrals’ places of business was tan-
tamount to picketing. And counsel for the General Counsel
cites Service Employees Local 87 (Trinity Maintenance), 312
NLRB 715 (1993), for an exposition on picketing: “It is also
true, however, that neither patrolling alone nor patrolling com-
bined 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.”
In Chicago Typographical Union Local 16 (Alden Press),
151 NLRB 1666 (1965), the Board quoted with approval this
language of the second circuit: “One of the necessary condi-
tions of ‘picketing’ is a confrontation in some manner between
union members and employees, customers or suppliers who are
trying to enter the employer’s premises.” NLRB v. Furniture
Workers, 337 F.2d 936, 940 (2d Cir. 1964). Here there was no
confrontation of any kind between those who were watching
the banner (and handbilling) and any employee, customer or
supplier.
Here no one was stationed at the entrance to neutral employ-
ers’ places of business. The Unions’ representatives in atten-
dance stayed with the banner (primarily to keep it from falling
down) and passed out handbills to anyone asking. They did not
patrol. They did not confront. They did not give signals.
At the 10(l) hearing counsel for the General Counsel con-
ceded that had the Unions placed a billboard with the same
message, such would not have been picketing. Thus it appears
that the substance of the General Counsel’s argument is that a
sign, even though stationary, amounts to picketing if there is
someone present to watch it; and, the General Counsel cites a
number of cases wherein the Board found there was picketing
even though the banners were stationary—placed in snow
banks or traffic cones. In these cases, however, the banners
were capable of being carried by a patrolling picket and are
inapposite to this situation. The banners here, though removed
every day, were not easily capable of being carried by patrol-
ling pickets. I therefore reject the General Counsel’s argument
and I conclude that the mere presence of a union representative,
even one who occasionally passes out handbills, is not suffi-
cient to make a stationary sign a picket within the meaning of
Section 8(b)(4)(ii)(B).
The General Counsel also argues that even if the Unions’ ac-
tivity here was not tantamount to traditional picketing, it was
“signal picketing” and therefore unlawful. In the cases cited by
the General Counsel, “signal picketing” is typically a prear-
ranged action and typically occurs at a common site. E.g., Iron
Workers Local 433 (R. F. Erectors) v. NLRB, 598 F.2d 1154
(9th Cir. 1979). Neither is involved here. To conclude a sta-
tionary sign is a “signal picket” would require concluding that a
billboard is likewise a “signal picket” however the General
Counsel has conceded that a billboard would be permissible.
The General Counsel finally argues that the language on the
banner was false and defamatory “by implication” and there-
fore even if erecting the sign was not picketing, it was not per-
mitted under the 8(b)(4)(ii)(B) proviso. This two-pronged ar-
gument is based on the assertion that the Unions did not have a
labor dispute with the neutral employers, thus adding the words
“labor dispute” to the banner was false. And the words were
“defamation by implication” since the public would foreseeably
conclude that it was the secondary employer with whom the
Unions had a dispute.
I reject these arguments. Section 2(9) of the Act reads: “The
term ‘labor dispute’ includes any controversy concerning terms,
tenure, or conditions of employment, or concerning the associa-
tion or representation of persons in negotiating, fixing, main-
taining, changing, or seeking to arrange terms or conditions of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.”
In fact the General Counsel tacitly concedes that this defini-
tion is sufficiently broad to include secondary employers within
a dispute a union might have with a primary. So the General
Counsel argues that using the words “labor dispute” on the sign
falsely presents that the Unions have a dispute with the neutral
employer, citing a hornbook on torts and cases resolving pri-
vate rights. I conclude that the cited authority is not germane to
the public rights issues here and are not persuasive to alter the
clear language of Section 2(9).
Finally, to accept the General Counsel’s construction of Sec-
tion 8(b)(4)(ii)(B) would raise serious First Amendment free
speech issues. In DeBartolo II, the Supreme Court warned
against such a possibility, holding that construction of this stat-
ute in a way not clearly contrary to the congressional intent and
which does not impinge on free speech is the proper resolution
of the issue over a construction which does.
In short, I conclude, with a majority who have decided this
issue, that placing an essentially unmovable sign, even though
attended, is not itself a sufficient condition to find there was
picketing nor was use of the words “labor dispute” in this con-
text untruthful. Therefore, the Unions’ actions were within the
publicity proviso and they did not violate Section 8(b)(4)(ii)(B)
of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
This consolidated complaint is dismissed in its entirety.

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