Local Union No. 1506, United Brotherhood of Carpenters and Joiners of America (Sunstone Hotel Invest

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1330 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 219
1330
Carpenters Local Union No. 1506, United Brother-
hood of Carpenters and Joiners of America and
Sunstone Hotel Investors, LLC, d/b/a Marriott
Warner Center Woodland Hills

Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and
Carignan Construction Company

Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and Greg-
ory D. Bynum & Associates, Inc.

Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and Odys-
sey Development Services

Carpenters Local No. 743, United Brotherhood of
Carpenters and Joiners of America and The Ba-
kersfield Californian. Cases 31–CC–2121, 31–
CC–2122, 31–CC–2123, and 31–CC–2124
September 30, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
This case concerns whether the Respondents 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) of the Act because they were not picketing
and did not otherwise constitute threats, coercion, or
restraint 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 Union’s 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) (Eliason). In Eliason, we considered three dis-
tinct locations where banners were displayed. At each

1 On January 6, 2005, Administrative Law Judge Clifford H. Ander-
son issued the attached decision. The General Counsel, Charging Party
Marriott Warner Center Woodland, and Charging Party Bakersfield
Californian each filed exceptions and a supporting brief. The Respon-
dents Unions filed a joint answering brief. On December 8, 2005, the
Board rejected Marriot Warner Center Woodland Hills’ request that the
Board accept its late-filed reply brief. Marriot Warner Center Wood-
land Hills, 345 NLRB 1334 (2005).
location, the precise placement of the banner, its distance
from entrances to the secondaries’ premises, and its ori-
entation in relation to streets, sidewalks and entrances
differed. We described the locations of the banners, in-
cluding their distance from entrances with some detail in
order to make clear that the banner displays did not block
ingress or egress and did not create any form of confron-
tation between the union agents holding the banners and
individuals wishing to enter or exit the facilities. Eli-
ason, 355 NLRB No. 159, slip op. at 2, 6–7 fn. 19. In
particular, we noted that “[t]he banners were placed be-
tween 15 and 1,050 feet from the nearest entrance to the
secondaries’ establishments.” Id. at 2. We observed that
“[t]he banners were located at a sufficient distance from
the entrances so that anyone wishing to enter or exit the
sites could do so without confronting the banner holders
in any way.” Id. at 6.
In this case, the banners at several locations were
placed less than 15 feet from the entrances to the prem-
ises of the secondaries. The parties stipulated that one
banner was located 10 feet from the entrance to the Mar-
riott hotel in Woodland Hills; another banner was “next
to” the access road leading to the Paragon Spa (although
400 feet from the entrance to its parking lot and 450 feet
from the entrance to the Spa itself); another banner was 4
feet from the entrance to the foyer and 10 feet from the
main entrance doorway of an office building containing
the offices of Odyssey Development Services; and an-
other banner was 8 feet from the front steps and 15 feet
from the front door of The Bakersfield Californian build-
ing. There is no evidence in the record that suggests in
any manner that the locations of those banners impaired
ingress or egress or otherwise forced any form of con-
frontation between the banner holders and those entering
or exiting the premises. We do not find that the locations
of those banners distinguish this case from Eliason.
Given the serious constitutional questions that would be
raised by the prohibition of banner displays as well as the
serious consequences attaching to such a prohibition un-
der Federal labor law (both of which we discussed in
Eliason), we are unwilling to draw an arbitrary line at
some distance from the entrance to a secondary’s prem-
ises and hold that stepping over that line somehow trans-
forms peaceful, expressive activity into coercion in the
absence of some further evidence of coercion. A bill-
board is not coercive when placed 100 feet from the
street and it does not become so simply because it is
moved closer to the street. A union agent passing out
leaflets 100 feet from the entrance to a facility is not co-
ercive and does not become so simply because he or she
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1331
moves closer to the entrance.2 Combining these facts,
when union agents hold a stationary banner and at the
same time distribute leaflets, we reach the same conclu-
sion concerning the relevance of their location relative to
entrances to a secondary’s facility.3
Absent the use of traditional picket signs, patrolling,
blocking of ingress or egress, or some other evidence of
coercion, we conclude that, as in Eliason, the display of
banners in this case was not coercive and therefore did
not violate Section 8(b)(4)(ii)(B).
Accordingly, for the reasons stated in that decision, we
find that Section 8(b)(4)(ii)(B) does not prohibit the ban-
ner 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 Carpenters Local 1506 (Eliason &
Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010). For
the reasons fully set forth in the joint dissent in that case,
I would find a violation here. The bannering involves
the placement of union agents holding 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 Respon-
dents. The predominate element of such bannering is
confrontational conduct, rather than persuasive speech,
designed to promote a total boycott of the neutral Em-
ployers’ businesses, and thereby to further an objective
of forcing those Employers to cease doing business with
the primary Employers in the labor dispute. Like picket-
ing, this bannering activity is the precise evil that Con-
gress intended to outlaw through Section 8(b)(4)(ii)(B),
and the proscription of this conduct raises no constitu-

2 Since the Supreme Court’s decision in DeBartolo Corp. v. Florida
Gulf Coast Building Trades Council, 485 U.S. 568, 577 (1988) (DeBar-
tolo), the Board has not held that distribution of handbills violates Sec.
8(b)(4)(ii)(B) merely because of its proximity to the entrance to a sec-
ondary’s premises. In fact, in one case denying injunctive relief against
a banner display under Sec. 10(l), the District Court reasoned, “Indeed,
peaceful activists making fervent efforts to pass out handbills directly
in front of a building entrance could create a symbolic barrier much
more confrontational than the banner at issue here, but such activity
would presumably be legal under DeBartolo.” Gold v. Carpenters
Mid-Atlantic Regional Council, 407 F.Supp.2d 719, 727–728 (D.Md.
2005).
3 We also find that the positioning of several of the banners at issue
in this case facing the street and on the “inside” edge of the sidewalk
(with the sidewalk between the banner and the street) does not distin-
guish the conduct at issue from that found lawful in Eliason, supra, for
the reasons stated in Carpenters Local 1506 (AGC), 355 NLRB No.
191 (2010).
tional concerns. I therefore dissent from my colleagues’
failure to enforce the Act as intended.
Katherine Braun Mankin, Esq, for the General Counsel.
Daniel M. Shanley, Esq. (DeCarlo & Connor), of Los Angeles,
California, for the Respondents.
Matthew T. Wakefield, Esq., Ballard Rosenberg (Golper &
Savitt), of Universal City, California, for Charging Party
Sunstone.
Wayne A. Hersh, Esq., Berger Kahn, of Irvine, California, for
Charging Party Carignan.
Daniel K. Klingenberger, Esq. (Hogan & Klingenberger), of
Bakersfield, California, for Charging Party Bynum.
Mark W. Robbins, Esq. (Littler Mendelson, P.C.), of Los Ange-
les, California, for Charging Party Bakersfield Californian.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned case in trial on October 19, 2004, in Los
Angeles, California, pursuant to an order consolidating cases
and notice of hearing issued by the Regional Director for Re-
gion 31 of the National Labor Relations Board (the Board) on
August 17, 2004.1
The five consolidated complaints arose as follows: On Octo-
ber 24, 2003, Sunstone Hotel Investors, LLC, d/b/a Marriott
Warner Center Woodland Hills (Charging Party Sunstone) filed
a charge with the Board docketed as Case 31–CC–2121 against
Local Union No. 1506, United Brotherhood of Carpenters and
Joiners of America (Respondent Local 1506) and amended that
charge on November 3, 2003. The Regional Director for Re-
gion 31 of the National Labor Relations Board (the Director)
issued a complaint respecting the charge on December 23,
2003.
On October 27, 2003, Carignan Construction Company
(Charging Party Carignan) filed a charge with the Board dock-
eted as Case 31–CC–2122 against Local Union No. 209, United
Brotherhood of Carpenters and Joiners of America (Respondent
Local 209). The Regional Director issued a complaint respect-
ing the charge on November 14, 2003.
On October 31, 2003, Gregory D. Bynum & Associates, Inc.
(Charging Party Bynum) filed a charge with the Board dock-
eted as Case 31–CC–2123 against Respondent Local 209. The
Regional Director issued a complaint respecting the charge on
December 16, 2003.
On October 31, 2003, Odyssey Development Services
(Charging Party Odyssey) filed a charge with the Board dock-
eted as Case 31–CC–2124 against Respondent Local 209. The
Regional Director issued a complaint respecting the charge on
December 2, 2003.
On May 20, 2004, Bakersfield Californian (Charging Party

1 The order consolidated two additional complaints involving Cases
31–CA–2126 and 31–CA–2127 filed by charging parties not involved
herein. Those two cases were severed at the hearing and subsequently
have not been and are not now part of the instant consolidated matter.
Charging Party Bakersfield Californian filed a Motion for Summary
Judgment respecting Case 31–CC–2130 with the Board that it denied
on October 18, 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
Bakersfield Californian) filed a charge with the Board docketed
as Case 31–CC–2130 against Local Union No. 743, United
Brotherhood of Carpenters and Joiners of America (Respondent
Local 743). The Regional Director issued a complaint respect-
ing the charge on July 14, 2004.
The Respondents filed timely answers to the complaints. As
will be set forth in significant detail below, the consolidated
complaints allege and the answers deny that Respondent Lo-
cal 209, Respondent Local 743, and Respondent Local 1506
(collectively the Respondents), at various time and places in the
Bakersfield and Los Angeles areas, violated Section
8(b)(4)(ii)(B) of the National Labor Relations Act (the Act) by
means of the display of large banners.
FINDINGS OF FACT
On the entire record herein, including helpful briefs from the
Respondents, the General Counsel, and Charging Parties Sun-
stone, Carignan, Bynum, and Bakersfield Californian, I make
the following findings of fact.2
I. JURISDICTION
Charging Party Sunstone, with offices in Woodland Hills,
California, has been engaged in the Hotel business. At all rele-
vant times it has annually purchased and received goods, sup-
plies, and materials valued in excess of $50,000 from firms
which in turn purchased the goods, supplies, and materials from
outside the State of California.
Charging Party Carignan, with offices in Westlake Village,
California, has been engaged as a general contractor in the con-
struction industry doing commercial construction. It annually
purchases and receives goods, supplies, and materials in the
State of California valued in excess of $50,000 directly from
sources outside the State.
Charging Party Bynum owns property on Truxtun Avenue in
Bakersfield, California (the Truxtun property), which it leases
to Paragon Salon Spa. As part of a construction improvement
project in 2003, Charging Party Bynum contracted with S. C.
Anderson to act as a general contractor for those improvements.
Anderson in turn engaged Frye Construction as a subcontractor
to provide framing, drywall and plastering at the Truxton prop-
erty. Frye, a California corporation, with offices in Bakersfield,
California, annually purchases and receives goods, supplies,
and materials in the State of California valued in excess of
$50,000 directly from sources outside the State.
Charging Party Odyssey, with offices in Pasadena, Califor-
nia, has been engaged as a consulting service for city and urban
planning reviews. At all relevant times it annually provided
services valued in excess of $50,000 to customers outside the
state of California and/or to customers which made purchases
directly outside the State.
Charging Party Bakersfield Californian, with an office in
Bakersfield, California, operates a daily newspaper. It annually
purchases and receives goods, supplies, and materials in the
State of California valued in excess of $50,000 directly from

2 As a result of the pleadings and substantial individual written stipu-
lations covering each charge, there were few disputes of fact regarding
collateral matters. Where not otherwise noted, the findings herein are
based on the pleadings and the stipulations.
sources outside the State.
Based on the above, there is no dispute and I find the Charg-
ing Parties, Frye Construction and each of them, are, and have
been at all times material, employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The record establishes, there is no dispute, and I find that
each of the Respondents are, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events
For ease of understanding, the events respecting each Charg-
ing Party will be set forth separately.
1. Charging Party Sunstone—Case 31–CC–2121
As part of its operation of the Marriott in Woodland Hills,
California (the Hotel), Sunstone began renovating public areas
on the Hotel premises including the lobby, restaurant and the
bar (the Hotel jobsite). In connection with the renovation, Sun-
stone hired R. D. Olson as general contractor to oversee all
aspects of the Hotel jobsite’s renovation. In turn, Olson en-
gaged Enterprise Interiors as a subcontractor to perform dry-
wall work at the Hotel jobsite. There is no dispute that Sun-
stone, Olson and Enterprise are and have been at all material
times persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4) of the Act.
At all relevant times, Respondent 1506 was not recognized
or certified as the collective-bargaining representative of any
employees employed by Sunstone or Olson. Nor has Respon-
dent 1506 demanded recognition as the collective-bargaining
representative or sought to organize the employees employed
by Sunstone or Olson. Further, Respondent 1506 does not
dispute the wages paid by Sunstone or Olson to their employ-
ees. Respondent 1506 does dispute the wages paid by Enter-
prise to its employees who were working on Sunstone’s, Ol-
sen’s and other projects.
On October 16, 2003, an agent of Sunstone sent a letter to an
agent of Respondent 1506 with the following text:

Please be advised that effective today, October 16, 2003, at
4:00 p.m. a “reserved gate” system has been established at our
[Hotel jobsite]. Gate No. 1, located at Vassar Street near Ox-
nard, is being established for the sole and exclusive use of the
employees, suppliers, and visitors of Enterprise Interiors. All
other entrances to the [Hotel jobsite] shall be referred to as
Gate No. 2. No one connected with Enterprise Interiors shall
use Gate No. 2.

Any picketing activity which your union may direct against
Enterprise Interiors must be conformed to their designated en-
trance at Gate No. 1 during the times which that company is
on property: Monday through Friday, 7:30 a.m. to 2:00 a.m.
[sic]. Picketing activity at any entrances other than Gate No.
1, and picketing at Gate 1 at any times in which Enterprise In-
teriors is not at our Hotel, will constitute unlawful secondary
activity in violation of the National Labor Relations Act.
Moreover, any unlawful picketing may result in legal action
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1333
being commenced against your union to enjoin the activity
and to recover any and all damages suffered thereby.

We trust that any picketing activity which might occur shall
be done in a lawful and peaceful manner. We anticipate your
cooperation in honoring the reserved gate system.

Charging Party Sunstone established gates 1 and 2 as described
in the letter.
On October 24, 2003 and continuing approximately to the
end of the year, Respondent 1506 displayed at the Hotel jobsite
a white banner approximately 18 feet long by 4 feet tall. The
banner was blank on its back and white on its front side, with
two lines of red capital letters approximately 2 feet high across
the bulk of the banner stating:

SHAME ON
WARNER CENTER MARRIOTT
At each end of the banner, in black capital letters approximately
1 foot high with text slightly canted upwards toward the upper
banner edge appeared the two-line entry:
LABOR
DISPUTE
The banner was framed on its top and sides and the frame
had three base legs to which it was attached by ties. The frame
arrangement itself had three base pieces or legs, which allowed
it to stand. The bottom edge of the banner was approximately 8
inches off the ground. The banner was accompanied by two or
three members and/or employees of Respondent 1506.
The banner was displayed approximately 4 days a week from
about 9 a.m. to 2 p.m.: Once erected each day, the banner was
not moved but remained stationary until it was taken down at
day’s end. The banner was displayed in the same place on all
occasions: on the sidewalk of Oxnard Street immediately in
front of the Hotel. This location is approximately 10 feet to the
right of the entrance to the Hotel driveway which was desig-
nated as gate 2 in the letter quoted above, and which location is
also approximately 10 feet from the pedestrian entrance to the
Hotel property and 50 feet from the front door of the Hotel.
The driveway in question is used by Hotel visitors, guests,
and employees to access the Hotel parking structure and the
Hotel interior. It is the Hotel’s only parking structure. Con-
struction workers are not allowed to use the parking structure.
Rather they were limited to public parking on the street.
The location of the banner was such that only its blank back
side was visible from the inside of the hotel lobby. The front or
printed side was visible to all persons entering the Hotel prop-
erty with the exception of those workers using gate 1—as des-
ignated in the quoted letter above—and delivery persons enter-
ing via the loading dock driveway running between Warner
Centers Towers and the Hotel. The banner was also visible to
the occupants of vehicles approaching the Westfield Promenade
Mall restaurants and movie theaters also located on Oxnard
Street a major thoroughfare in Woodland Hills.
There is no dispute that Respondent 1506’s agents selected
the location of the banner so as to maximize exposure to the
general public and all persons, including passing motorists and
pedestrians, who might be in the area.
The banner was accompanied by a number of bearers, nor-
mally two or three in number, who physically held it in place
but remained stationary at all times during the display period
save for staggered break periods. The banner holders had hand-
bills available for those who were interested, but did not seek
out pedestrians to distribute the handbills nor did they engage
in chanting, yelling, marching, or similar conduct. The banner
holders did not physically block the ingress or egress of any
person wishing to enter or leave the Hotel. There is no conten-
tion by the General Counsel that the handbills’ representations
were false or that the handbills or their distribution violated the
Act.
The handbills were captioned: “SHAME ON WARNER
CENTER MARRIOTT For Desecration of the American Way
of Life. [Capitalization in the original.]” Under the caption was
the political cartoon-style, hand-drawn image of a rat eating the
American Flag. Under the image, the text stated:

A rat is a contractor that does not pay all of its em-
ployees prevailing wage, including either providing or
making payments for health care and pension benefits.
Employees who work for a rat contractor are also rats.
R. D. Olson has received a contract to do new con-
struction to the Warner Center Marriott at 21850 Oxnard
St. in the city of Woodland Hills. R. D. Olson has con-
tracted with Enterprise, Inc. to do the drywall. Enter-
prise, Inc. does not meet area labor standards for that
work—it does not pay prevailing wages to all of their em-
ployees doing that work, including fully paying for family
health care and pension.
Carpenters Local 1506 objects to substandard employ-
ers like Enterprise, Inc. working in the community. In
our opinion the community ends up paying the tab for em-
ployee health care and the low wages paid tend to lower
general community standards, thereby encouraging crime
and other social ills.
Carpenters Local 1506 believes that Warner Center
Marriott has an obligation to the community to see that
contractors who perform work on their buildings meet area
standards. They should not be allowed to insulate them-
selves behind “independent” contractors. For this reason
Local 1506 has a labor dispute with all these companies.

PLEASE CALL [Warner Center Marriott General
Manager] VICTOR MILLS AT [telephone number
omitted] AND TELL HIM THAT YOU WANT HIM
TO DO ALL THAT HE CAN TO CHANGE THIS
SITUATION AND SEE THAT CONTRACTORS
WHO PERFORM CONSTRUCTION WORK ON
THE WARNER CENTER MARRIOTT MEET AREA
LABOR STANDARDS.
The members and families of Carpenters Local 1506
thank you for your support. Call [telephone number omit-
ted] for further information. [Capitalization and bolding in
original.]

2. Charging Party Carignan—Case 31–CC–2122
Commencing in or about November 2002, Charging Party
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1334
Carignan (Carignan) was engaged as a general contractor to
perform construction work at the Auto Mall in Thousand Oaks,
California (the Auto Mall jobsite), under contract to Westlake
Motors, Inc. d/b/a Nissan of Thousand Oaks (Nissan), a sub-
sidiary of Silver Star Automotive Group (Silver Star), the
owner of several automotive dealerships at the Auto Mall.
Carignan as the Auto Mall jobsite general contractor con-
tracted with various subcontractors to perform construction
services at the Auto Mall jobsite including C&H Construction
Company to perform framing and drywall work at the Auto
Mall jobsite. Carignan, Nissan, Silver Star, and C&H Con-
struction are and have been at all times material, persons en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 8(b)(4) of the Act.
At all relevant times, Respondent 209 was not recognized or
certified as the collective-bargaining representative of any em-
ployees employed by Carignan, Nissan, or Silver Star. Nor has
Respondent 209 demanded recognition as the collective-
bargaining representative or sought to organize the employees
employed by Carignan, Nissan, or Silver Star. Further, Re-
spondent 209 does not dispute the wages paid by Carignan,
Nissan, or Silver Star to their employees. Respondent 209’s
primary labor dispute is with C&H Construction. Respondent
209 does dispute the wages paid by C&H Construction to its
employees who were working on Carignan, Nissan, Silver Star,
and other projects.
From on or about April 30, 2003, and continuing to June 25,
2004, Respondent Local 209 displayed at the jobsite a banner
approximately 20 feet by 4 feet in size. The banner was dis-
played on weekdays, four to five times a week, from approxi-
mately 9 a.m. to 3 p.m. The banner was blank on its back side
and white on its front side, with two lines of red letters ap-
proximately 2 feet high capitalized, as set forth below, across
the bulk of the banner:

SHAME ON
NISSAN OF THOUSAND OAKS

At each end of the banner, in black capital letters approximately
1 foot high with text slightly canted upwards toward the upper
banner edge appeared the two-line entry:

LABOR
DISPUTE
The banner was framed on its top and sides, but the frame but
did not have “feet” and, thus, could not stand upright on its
own. Rather it was held upright and stationary just touching
the ground by three or four accompanying banner bearer mem-
bers or employees of Respondent 209. Once the banner was
erected at the beginning of a given day, it was not moved and
remained stationary are the place of erection until it was taken
down and removed at the end of the day. The banner bearers
necessary to hold up the banner, normally three in number,
remained with the stationary banner at all times save for breaks.
The banner was located on a public sidewalk at the corner of
Cord and Auto Mall Drive in Thousand Oaks, California. At
this location the banner was approximately 110 feet from the
main dealership entry, approximately 160 feet from the service
drive entry, and approximately 100 feet from the construction
gate. The banner was also highly visible from Highway 101, a
major traffic artery in Southern California.
There is no dispute that Respondent 209’s agents selected the
location of the banner so as to maximize exposure to the gen-
eral public and all persons, including passing motorists and
pedestrians, who might be in the area.
The banner holders had handbills available for those who
were interested, but did not seek out pedestrians to distribute
the handbills nor did they engage in chanting, yelling, march-
ing, or similar conduct. The banner holders did not physically
block the ingress or egress of any person wishing to enter of
leave the Auto Mall. There is no contention that the handbills’
representations were false or that the handbills or their distribu-
tion violated the Act.
The handbills were captioned: “SHAME ON NISSAN OF
THOUSAND OAKS For Desecration of the American Way of
Life. [Capitalization in the original.]” Under the caption was
the political cartoon-style, hand-drawn image of a rat eating the
American Flag. Under the image, the text stated:

A rat is a contractor that does not pay all of its em-
ployees prevailing wage, including either providing or
making payments for health care and pension benefits.
Shame on Nissan of Thousand Oaks for contributing
to erosion of area standards for carpenter craft workers.
C&H Construction was a subcontractor for Carignan
Construction on the Nissan Dealership project. C&H
Construction 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 employ-
ers like C&H Construction working in the community. In
our opinion the community ends up paying the tab for em-
ployee health care and the low wages paid tend to lower
general community standards, thereby encouraging crime
and other social ills.
Carpenters Local 209 believes that Nissan of Thou-
sand Oaks has an obligation to the community to see that
area standards are met at all their projects, including any
future work. They should not be allowed to insulate them-
selves behind “independent” contractors. For this reason
Local 209 has a labor dispute with all the companies
named here.
PLEASE TELL NISSAN OF THOUSAND OAKS
THAT YOU WANT THEM TO DO ALL THAT
THEY CAN TO CHANGE THIS SITUATION AND
SEE THAT AREA LABOR STANDARDS ARE MET
FOR CONSTRUCTION WORKERS ON THEIR
DEALERSHIPS.
The members and families of Carpenters Local 209
thank you for your support. Call [telephone number omit-
ted] for further information. [Capitalization and bolding in
original.]

3. Charging Party Bynum—Case 31–CC–2123
Charging Party Bynum (sometimes Bynum) owns the Trux-
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1335
tun property, which it leases to Paragon Salon Spa. As part of a
construction improvement project in 2003, Charging Party
Bynum contracted with S. C. Anderson to act as a general con-
tractor for those improvements. Anderson in turn engaged Frye
Construction as a subcontractor to provide framing, drywall and
plastering at the Triton property. Bynum, Anderson, and Para-
gon are and have been at all material times, persons engaged in
commerce or in an industry affecting commerce within the
meaning of Section 8(b)(4) of the Act.
At all relevant times, Respondent 209 was not recognized or
certified as the collective-bargaining representative of any em-
ployees employed by Bynum, Anderson, or Paragon. Nor has
Respondent 209 demanded recognition as the collective-
bargaining representative or sought to organize the employees
employed by Bynum, Anderson, or Paragon. Further, Respon-
dent 209 does not dispute the wages paid by Bynum, Anderson,
and Paragon to their employees. Respondent 209’s primary
labor dispute is with Frye. Respondent 209 does dispute the
wages paid by Frye to its employees who were working on
Bynum, Anderson, and Paragon and other projects.
Frye completed its construction work at the Truxtun property
in March 2003. All subcontractors completed their construc-
tion work at the Truxtun property by approximately April 22,
2003. Paragon began its occupancy of the property on April
22, 2003.
On July 8, 2003, Respondent Local 209 sent a letter to S. C.
Anderson captioned: “RE: NOTICE OF LABOR DISPUTE—
FRYE CONSTRUCTION” [Capitalization in original] with the
following text:

It has come to our attention that Frye Construction
may be currently bidding on one or more of your upcom-
ing projects. Please be informed that Carpenters Local
209 has a labor dispute with Frye Construction. Frye does
not meet area labor standards – it does not pay prevailing
wages to all its employees, including fully paying for
health benefits and pension.
Local 209 has made a solid commitment of personnel
and resources to protect and preserve area standard wages,
including providing or making payments for family health
care and a dignified retirement for all area carpentry craft
workers. Therefore we are asking that you use your
managerial discretion to not allow Frye to perform any
work on any of your projects unless and until it generally
meets area labor standards fit for all of its carpentry craft-
work.
We want you to be aware that our new and aggressive
public information campaign against Frye will encompass
all parties associated with projects where Frye is em-
ployed. That campaign will include highly visible lawful
banner displays and distribution of handbills at the jobsites
and premises of property owners, developers, general con-
tractors, and other firms involved with projects where Frye
is employed. It will also include lawful picketing and
demonstration activity. We certainly prefer to work coop-
eratively with all involved parties rather than to have an
adversarial relationship with them.
If you agree to comply with the request we have made
in this letter, or if our information about Frye being in-
volved with any of your projects is incorrect, please call
undersigned immediately. Doing so will provide the
greatest protection against your firm becoming publicly
involved in this dispute through misunderstanding or error.

On or about October 9, 2003, and continuing almost without
interruption until April 1, 2004, Respondent 209 located a ban-
ner of the same type as that described respecting Respondent
Local 209 and Charging Party Carignan immediately above.
The banner’s message differed only in that the red text stated:
SHAME ON
PARAGON SPA
All other aspects of the banners sighting, management, and
display was identical to that described respecting Carignan
above save the banner was placed at 9:30 a.m. at the beginning
of the day and was displayed 4 days per week. The banner
bearer’s conduct was also identical to the conduct of those in-
dividuals respecting Carnigan as described above.
The banner was located at all times approximately 30 to 40
feet from Truxtun Avenue, Bakersfield, California. Truxtun is
the main artery between east and west Bakersfield. The banner
was visible and legible to all traffic traveling east on Truxtun
Avenue. The banner was visible to traffic traveling west on
Truxtun, but it may not have been legible. The banner was
located on the grass next to the access road that runs from
Truxtun road into Paragon’s parking lot. Paragon has no en-
trance directly off Truxtun Avenue. Almost all employees,
clients, customers, visitors, and delivery persons enter Paragon
via the access road off Truxtun Avenue, which leads directly
into the parking lot and, from there, to the door of Paragon.
The banner was located approximately 400 feet from Paragon’s
parking lot and approximately 450 feet from the door into
Paragon. The parking lot is also used by employees, patients,
visitors, and persons making deliveries to Interim Health Care,
which is locating in a building approximately 40 feet west of
Paragon.
At all relevant times, the banner holders did no more than
hold up the banner and give fliers to any interested members of
the public and did not engage in chanting, yelling, marching or
similar conduct. Nor did they physically block the ingress or
egress of any person wishing to enter or leave the paragon.
The fliers were captioned: “SHAME ON Paragon Spa For
Desecration of the American Way of Life [Capitalization in the
original.]” Under the caption was the political cartoon style
hand drawn image of a rat eating the American Flag. Under the
image, the text stated:

A rat is a contractor that does not pay all of its em-
ployees prevailing wages, including either providing or
making payments for health care and pension benefits.
Shame on Paragon Salon and Day Spa for contribut-
ing to erosion of area standards for carpenter craft work-
ers. Frye Construction was a subcontractor for S. C.
Anderson on Paragon Spa’s project located in the city of
Bakersfield. Frye Construction does not meet area labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1336
standards for all its carpenter craft workers, including fully
paying for family health benefits and pension.
Carpenters Local 209 objects to substandard employ-
ers like Frye Construction working in the community. In
our opinion the community ends up paying the tab for em-
ployee health care and the low wages paid tend to lower
general community standards, thereby encouraging crime
and other social ills.
Carpenters Local 209 believes that Paragon Salon
and Day Spa has an obligation to the community to see
that area standards are met at all their projects, including
any future work. They should not be allowed to insulate
themselves behind “independent” contractors. For this rea-
son Local 209 has a labor dispute with all the companies
named here.
PLEASE TELL PARAGON SALON AND DAY
SPA THAT YOU WANT THEM TO DO ALL THAT
THEY CAN TO CHANGE THIS SITUATION AND
SEE THAT AREA LABOR STANDARDS ARE MET
FOR CONSTRUCTION WORK ON THEIR
PROJECTS.
The members and families of Carpenters Local 209
thank you for your support. Call [telephone number omit-
ted] for further information. [Capitalization and bolding in
original.]
4. Charging Party Odyssey—Case 31–CC–2124
Charging Party Odyssey (sometimes Odyssey) as part of its
consulting service was employed as a consultant in or about
April 2000 for Pacer Communities, LLC (Pacer), owner and
developer of a 53-unit condominium project in Pasadena, Cali-
fornia (the Odyssey jobsite). The work was concluded in ap-
proximately April 2002. Development of the project began in
February 2003 and construction at the Odyssey jobsite began in
March 2003.
In connection with construction at the Odyssey jobsite, Pacer
engaged J. A. Hill Corporation (Hill) as the general contractor.
Hill in turn engaged Covi Concrete (Covi) as a subcontractor to
construct a subterranean parking structure at the Odyssey job-
site. Odyssey, Pacer, Hill, and Covi are, and have been at all
times material, persons engaged in commerce or in an industry
affecting commerce within the meaning of Section 8(b)(4) of
the Act.
At all relevant times, Respondent 209 was not recognized or
certified as the collective-bargaining representative of any em-
ployees employed by Odyssey, Pacer, or Hill. Nor has Re-
spondent 209 demanded recognition as the collective-
bargaining representative or sought to organize the employees
employed by Odyssey, Pacer, or Hill. Further, Respondent 209
does not dispute the wages paid by Odyssey, Pacer, or Hill to
their employees. Respondent 209’s primary labor dispute is
with Covi. Respondent 209 does dispute the wages paid by
Covi to its employees who were working on Odyssey’s,
Pacer’s, or Hill’s and other projects.
On June 2, 2003, an agent of Local 209 sent a letter to an
agent of Odyssey captioned: “RE: NOTICE OF LABOR
DISPUTE—COVI CONCRETE” [Capitalization in original]
with the following text:

It has come to our attention that Covi Concrete may be
currently bidding on one or more of your upcoming pro-
jects. Please be informed that Carpenters Local 209 has a
labor dispute with Covi Concrete. Covi does not meet area
labor standards—it does not pay prevailing wages to all its
employees, including fully paying for health benefits and
pension.
Local 209 has made a solid commitment of personnel
and resources to protect and preserve area standard wares,
including providing or making payments for family health
care and a dignified retirement for all area carpentry craft
workers. Therefore we are asking that you use your
managerial discretion to not allow Covi to perform any
work on any of your projects unless and until it generally
meets area labor standards fit for all of its carpentry craft-
work.
We want you to be aware that our new and aggressive
public information campaign against Covi will encompass
all parties associated with projects where Covi is em-
ployed. That campaign will include highly visible lawful
banner displays and distribution of handbills at the jobsites
and premises of property owners, developers, general con-
tractors, and other firms involved with projects where
Covi is employed. 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.
If you agree to comply with the request we have made
in this letter, or if our information about Covi being in-
volved with any of your projects is incorrect, please call
undersigned immediately. Doing so will provide the
greatest protection against your firm becoming publicly
involved in this dispute through misunderstanding or error.

Attached to the letter was an attachment representing that labor
union activity is exempt from California trespass law and that
the Carpenters’ activities are protected.
On June 4 and 5, 2003, Odyssey responded to Respondent
209 by letters informing them that Odyssey had completed its
work on the project and that it had no power to compel Pacer as
the developer or Hill as general contractor to discontinue em-
ployment of subcontractor Covi. Odyssey further indicated it
was not a party to the dispute Respondent 209 had with Covi.
On June 13, 2003, and continuing until approximately mid-
December 2003, Respondent 209 displayed a banner of the
same type as that described respecting Respondent Local 209
and Charging Party Carignan immediately above. The banner’s
message differed only in that the red text stated:
SHAME ON
ODYSSEY
All other aspects of the banner’s sighting, management, and
display were identical to that described respecting Carignan
above. The banner bearers’ conduct was also identical to the
conduct of those individuals respecting Carnigan as described
above.
From June 13, 2003, until early November 2003, the banner
was displayed on the sidewalk approximately 4 feet from the
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1337
entrance to the foyer and about 10 feet to the main entrance of
the doorway of the building located at 51 Dayton Street, Pasa-
dena. The main entrance to the building serves as the entrance
to Odyssey and other businesses, including Pasadena Advertis-
ing, Tolkien Group, Green Street Advertising, and Henry
Johnstone Interior Design.
In early November 2003, the banner was moved, and from
early November until mid-December 2003, the banner was
displayed on the sidewalk at the corner of Fair Oaks and Day-
ton in Pasadena, California, approximately 75 yards from the
entrance to the foyer of 51 Dayton Street, Pasadena, California.
The banner site is approximately 2 to 3 miles from the Odyssey
jobsite and is designated as an historical landmark by the Na-
tional Register of Historic Places and is within the historic
neighborhood called Old Pasadena, which is known for its res-
taurants, shops, and street life. Fair Oaks is a major thorough-
fare in Pasadena.
Respondent’s banner holders also had handbills available, al-
though they did not seek out pedestrians to distribute the hand-
bills to. The General Counsel does not contend that the factual
representations made in the handbill are either false or true.
The General Counsel does not contend that the handbill or its
distribution violates the Act.
The handbills were captioned: “SHAME ON Odyssey De-
velopment Spa For Desecration of the American Way of Life.
[Capitalization in the original.]” Under the caption was the
political cartoon style hand-drawn image of a rat eating the
American Flag. Under the image, the text stated:

A rat is a contractor that does not pay all of its em-
ployees prevailing wages, including either providing or
making payments for health care and pension benefits.
Shame on Odyssey Development Service for contrib-
uting to erosion of area standards for carpenter craft work-
ers. Covi Concrete is a subcontractor for Hill Contract-
ing on Pacer Communities mixed use project located in
the city of Pasadena. Odyssey was Pacer’s consultant in-
terfacing with the city. 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 employ-
ers like Covi working in the community. In our opinion
the community ends up paying the tab for employee health
care and the low wages paid tend to lower general com-
munity standards, thereby encouraging crime and other
social ills.
Carpenters Local 209 believes that Odyssey has an ob-
ligation to the community to see that area standards are
met for construction on projects, where they are involved
including any future projects. 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 ODYSSEY DEVELOPMENT
THAT YOU WANT THEM TO DO ALL THAT
THEY CAN TO CHANGE THIS SITUATION AND
SEE THAT AREA LABOR STANDARDS ARE MET
FOR CONSTRUCTION WORK ON PROJECTS
THEY ARE INVOLVED IN.
The members and families of Carpenters Local 209
thank you for your support. Call [telephone number omit-
ted] for further information. [Capitalization and bolding in
original.]
5. Charging Party Bakersfield Californian—Case 21–CC–2130
Charging Party Bakersfield Californian (sometimes Bakers-
field Californian) in its publication of a daily newspaper utilizes a
building at 1707 Eye Street, Bakersfield, California. The build-
ing is located on the northwest corner of the intersection of Eye
Street and 17th Street. The building is bounded on the east by
Eye Street, on the south by 17th Street, on the west by “H” Street
and on the north by an alley. The front door entrance to the
building is in the middle of the east side of the building facing
Eye Street. There are six steps leading to the front door entrance.
In January 2004, Charging Party Bakersfield Californian be-
gan remodeling its building (the Bakersfield Californian jobsite).
It retained BFGC Architects Planners Inc. (BFGC) as construc-
tion manager/design consultant to oversee all aspect of the re-
modeling. On the recommendation of BFGC, Bakersfield Cali-
fornian contracted with Frye Construction as a subcontractor to
perform drywall services at the Bakersfield Californian jobsite.
Bakersfield Californian, BFGC, and Frye are, and have been at
all times material, persons engaged in commerce or in an industry
affecting commerce within the meaning of Section 8(b)(4) of the
Act.
At all relevant times, Respondent 743 was not recognized or
certified as the collective-bargaining representative of any em-
ployees employed by Bakersfield Californian or BFGC. Nor has
Respondent 743 demanded recognition as the collective-
bargaining representative or sought to organize the employees
employed by Bakersfield Californian or BFGC. Further, Respon-
dent 743 does not dispute the wages paid by Bakersfield Califor-
nian, and BFGC to their employees. Respondent 209’s primary
labor dispute is with Frye. Respondent 743 does dispute the
wages paid by Frye to its employees who were working on Ba-
kersfield Californian’s, BFGC’s, and other projects.
On March 11, 2004, Respondent 743 sent a letter to BFGC and
on April 8, 2004, sent a letter to Bakersfield Californian. The
letters were essentially identical. They were captioned: “RE:
NOTICE OF LABOR DISPUTE—FRYE CONSTRUCTION”
[Capitalization in original] with the following text:

It has come to our attention that Frye Construction may
be currently bidding on one or more of your upcoming pro-
jects. Please be informed that Carpenters Local 743 has a
labor dispute with Frye Construction. Frye does not meet
area labor standards—it does not pay prevailing wages to all
its employees, including fully paying for health benefits and
pension.
Local 743 has made a solid commitment of personnel
and resources to protect and preserve area standard wares,
including providing or making payments for family health
care and a dignified retirement for all area carpentry craft
workers. Therefore we are asking that you use your mana-
gerial discretion to not allow Frye to perform any work on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1338
any of your projects unless and until it generally meets area
labor standards fit for all of its carpentry craftwork.
We want you to be aware that our new and aggressive
public information campaign against Frye will encompass
all parties associated with projects where Frye is employed.
That campaign will include highly visible lawful banner
displays and distribution of handbills at the jobsites and
premises of property owners, developers, general contrac-
tors, and other firms involved with projects where Frye is
employed. It will also include lawful picketing and demon-
stration activity. We certainly prefer to work cooperatively
with all involved parties rather than to have an adversarial
relationship with them.
If you agree to comply with the request we have made in
this letter, or if our information about Frye being involved
with any of your projects is incorrect, please call under-
signed immediately. Doing so will provide the greatest pro-
tection against your firm becoming publicly involved in this
dispute through misunderstanding or error.

On April 23, 2004, Respondent local 743 displayed at the job-
site a banner approximately 20 feet by 4 feet in size. The banner
was blank on its back and white on its front side with two lines of
red letters approximately 2 feet high capitalized as set forth be-
low across the bulk of the banner:
SHAME ON
THE BAKERSFIELD CALIFORNIAN
At each end of the banner, in black capital letters approximately 1
foot high with text slightly canted upwards toward the upper
banner edge appeared the two-line entry:
LABOR
DISPUTE
The banner was displayed on April 23, 2004, on the public
sidewalk in front of the flagpoles, directly in front of the front
steps leading to the front door approximately 8 feet from the
steps and 15 feet from the front door entrance of The Bakersfield
Californian jobsite. The language on the banner never changed.
At no time did the banner identify Frye as the employer with
whom Local 743 had a primary labor dispute.
On April 27, 2004, and continuing through June 24, 2004, the
banner was displayed at the Norwest corner of 17th and Eye
Streets within 15 feet of the front steps and 25 feet from the front
door entrance.
The banner was displayed at the jobsite on weekdays, gener-
ally 5 days a week, from approximately 9 a.m. to 3 p.m. which
included days and times when no employees nor representatives
of Frye were at the jobsite. The banner was accompanied by at
least three individuals who were either members of or employed
by Local 743 who were required to physically hold the banner
and who remained stationary at all times save during their break
periods. These individuals had handbills available, but did not
seek out pedestrians to distribute the handbills. Rather they held
up the banner and gave handbills only to any interested member
of the public. They did not chant, yell, march, or engage in simi-
lar conduct.
The General Counsel does not contend that the factual repre-
sentations in the handbill are false or true nor does the General
Counsel contend the handbills or their distribution violate the
Act. The handbills were captioned: “SHAME ON The Bakers-
field Californian For Desecration of the American Way of Life.
[Capitalization in the original.]” Under the caption was the po-
litical cartoon style hand drawn image of a rat eating the Ameri-
can Flag. Under the image, the text stated:

A rat is a contractor that does not pay all of its employ-
ees prevailing wages, including either providing or making
payments for health care and pension benefits.
Shame on The Bakersfield Californian for contribut-
ing to erosion of area standards for carpenter craft workers.
Frye Construction is a contractor and BFGC Architects
Planners, Inc. is the Construction Manager on The Ba-
kersfield Californian project located in the city of Bakers-
field. Frye Construction does not meet area labor standards
for all its carpenter craft workers, including fully paying for
family health benefits and pension.
Carpenters Local 743 objects to substandard employers
like Frye Construction working in the community. In our
opinion the community ends up paying the tab for employee
health care and the low wages paid tend to lower general
community standards, thereby encouraging crime and other
social ills.
Carpenters Local 743 believes that The Bakersfield
Californian has an obligation to the community to see that
area standards are met for construction work at all their pro-
jects, including any future work. They should not be al-
lowed to insulate themselves behind “independent” contrac-
tors. For this reason Local 209 has a labor dispute with all
the companies named here.
PLEASE CALL RICHARD BEENE CEO OF THE
BAKERSFIELD CALIFORNIAN AT [telephone number
omitted] AND TELL HIM THAT YOU WANT HIM TO
DO ALL HE CAN TO CHANGE THIS SITUATION
AND SEE THAT AREA LABOR STANDARDS ARE
MET FOR CONSTRUCTION WORK ON THEIR
PROJECTS.
The members and families of Carpenters Local 743
thank you for your support. Call [telephone number omit-
ted] for further information. [Capitalization and bolding in
original.]

At all times the banner was visible to every customer and visi-
tor to The Bakersfield Californian as all customers and visitors
enter the building by the front door entrance. It was likewise
visible to all employees of The Bakersfield Californian, construc-
tion workers engaged in the remodel of the jobsite and all other
persons who entered the building using the front door. The back-
side of the banner was visible from inside the building but the
side so facing the building was blank.
Respondent 743’s placement of the banner was selected so as
to maximize exposure to the general public and all persons, in-
cluding passing motorists and pedestrians, who might be in the
area or entering the building.
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1339
B. Allegations
1. Charging Party Sunstone—Case 31–CC–2121
The General Counsel’s complaint in Case 31–CC–2121 at
paragraph 8 alleges that Respondent Local 1506’s display of its
banner, as described above, constitutes signal picketing and
fraudulent unprotected speech. Complaint paragraphs 9 and 10
further allege that the bannering threatened, coerced, and re-
strained Charging Party Sunstone and other persons engaged in
commerce or in industries affecting commerce, and that an object
of Respondent Local 1506’s conduct was to force or require
Charging Party Sunstone and other persons to cease doing busi-
ness with Enterprise. Finally, the complaint alleges that by these
actions Respondent Local 1506 engaged in conduct within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
2. Charging Party Carignan—Case 31–CC–2122
The General Counsel’s complaint in Case 31–CC–2122 at
paragraph 6 alleges that Respondent Local 209’s display of its
banner, as described above, constitutes signal picketing and
fraudulent unprotected speech. Complaint paragraphs 7 and 8
further allege that the bannering threatened, coerced and re-
strained Charging Party Carignan and/or Nissan and/or Silver
Star and other persons engaged in commerce or in industries
affecting commerce and that an object of Respondent Local
209’s conduct was to force or require Charging Party Carignan
and/or Nissan and/or Silver Star and other persons to cease doing
business with C&H. Finally the complaint alleges that by these
actions Respondent Local 209 is engaging in conduct within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
3. Charging Party Bynum—Case 31–CC–2123
The General Counsel’s complaint in Case 31–CC–2123 at
paragraph 6 alleges that Respondent Local 209’s display of its
banner, as described above, constitutes signal picketing and
fraudulent unprotected speech. Complaint paragraphs 7 and 8
further allege that the bannering threatened, coerced and re-
strained Charging Party Bynum and/or Paragon and/or Anderson
and other persons engaged in commerce or in industries affecting
commerce, and that an object of Respondent Local 209’s conduct
was to force or require Charging Party and other persons to cease
doing business with Frye. Finally the complaint alleges that by
these actions Respondent Local 209 is engaging in conduct
within the meaning of Section 8(b)(4)(ii)(B) of the Act.
4. Charging Party Odyssey—Case 31–CC–2124
The General Counsel’s complaint in Case 31–CC–2124 at
paragraphs 7(b) and (c) alleges that Respondent Local 209’s
display of its banner, as described above, constitutes signal pick-
eting and fraudulent unprotected speech. Complaint paragraphs 8
and 9 further allege that the bannering threatened, coerced and
restrained Charging Party Odyssey and other persons engaged in
commerce or in industries affecting commerce and that an object
of Respondent Local 209’s conduct was to force or require
Charging Party Odyssey and other persons to cease doing busi-
ness with Covi. Finally, the complaint alleges that by these ac-
tions Respondent Local 209 is engaging in conduct within the
meaning of Section 8(b)(4)(ii)(B) of the Act.
5. Charging Party Bakersfield Californian—Case 31–CC–2130
The General Counsel’s complaint in Case 31–CC–2130 at
paragraphs 6(b) and (c) alleges that Respondent Local 743’s
display of its banner, as described above, constitutes signal pick-
eting and fraudulent unprotected speech. Complaint paragraphs 7
and 8 further allege that the bannering threatened, coerced and
restrained Charging Party Bakersfield Californian and other per-
sons including TBC and BFGC engaged in commerce or in in-
dustries affecting commerce and that an object of Respondent
Local 743’s conduct was to force or require Charging Party Ba-
kersfield Californian and other persons including TBC and
BFGC to cease doing business with Frye. Finally the complaint
alleges that by these actions Respondent Local 209 is engaging in
conduct within the meaning of Section 8(b)(4)(ii)(B) of the Act.
C. Analysis and Conclusions
1. Simple overview of the applicable law
The United States Constitution’s First Amendment provides:

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

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

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

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

(4)(ii) To threaten, coerce, or restrain any person en-
gaged in commerce or in a business affecting commerce
where . . . an object thereof is . . . .
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in
the product of any other producer, processor, or manu-
facturer, or to cease doing business with any other per-
son . . . . Provided, That nothing contained in this
clause (B) shall beconstrued to make unlawful, where
not otherwise unlawful, any primary strike or primary
picketing . . . .
Provided Further, That for the purpose of this para-
graph (4) only, nothing contained in such paragraph shall
be construed to prohibit publicity, other than picketing, for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
the purpose of truthfully advising the public . . . of . . . a
primary labor dispute.

The statutory language has been characterized by the Court as
reflecting “the duel congressional objectives of preserving the
right of labor organizations to bring pressure to bear upon of-
fending employers in primary labor disputes and of shielding
unoffending employers and others from pressure in controver-
sies not their own.” NLRB v. Denver Building Trades Council,
341 U.S. 675, 692 (1951).
As the quoted language of the Act provides there are sepa-
rate elements necessary to establish a violation of Section
8(b)(4)(ii)(B). First, a labor organization must engage in con-
duct, which threatens, coerces or restrains. Picketing, a tradi-
tional means of expression by a labor organization has been
found coercive in a variety of settings and circumstances. Not
all labor organization conduct is threatening, coercive, or re-
straining within the meaning of Section 8(b)(4)(ii)(B). Thus, in
DeBartolo Corp. v. Florida Gulf Coast Trades Council (De-
Bartolo II), 485 U.S. 568 (1988), the Court held that the peace-
ful distribution of handbills by a labor organization without any
accompanying picketing or patrolling, was not coercive and
therefore did not violate Section 8(b)(4) of the Act.
A necessary element of a violation of this section of the Act
is that the conduct at issue is prohibited secondary as opposed
to the permitted primary picketing. The case law and analysis
respecting “secondary” versus “primary” activity is famously
complex and a very substantial body of case law deals with
these issues.
Another aspect or element of a violation of Section 8(b)(4)
of the Act deals with the labor organizations motive or object.
By the terms of the statute, an object of the conduct must be to
force or require any person to cease dealing with or doing busi-
ness with any other person. Electrical Workers Local 761 v.
NLRB, 366 U.S. 667, 673 (1961); Food & Commercial Workers
Local 1776 (Carpenters Health Fund), 334 NLRB 507, 507
(2001); Service Employees Local 87 (Trinity Maintenance), 312
NLRB 715, 742–743 (1993).
Finally, the second proviso, or “Provided Further” language
of the statute quoted above, makes it clear that “publicity, other
than picketing, for the purpose of truthfully advising the public
. . . of . . . a primary labor dispute” may not be prohibited by
and therefore is not a violation of Section 8(b)(4) of the Act.
Yet another body of law addresses this distinction.
2. Positions of the parties
a. The nature of the conduct involved
The General Counsel and the Charging Parties argue that the
various incidents of bannering engaged in by Respondent’s as
alleged in the complaints and described above were within the
prohibitions of Section 8(b)(4)(ii)(B) of the Act. Legally
equivalent or akin to picketing, they argue, Respondent’s ban-
nering conduct is coercive and restrained persons admittedly
engaged in commerce or in a business affecting commerce.
Further, they argue the impermissible object of the conduct is
essentially admitted and in all events on the stipulated facts
must be found under well-established law to constitute conduct,
which, under the terms of the statute, attempted to force or
require the persons involved to cease doing business with the
other named persons.
The Respondents do not attempt to defend their actions un-
der a “picketing” analysis. Rather, the Respondents challenge
the government’s initial characterization of the conduct. Thus,
the Respondents argue their actions were not picketing but were
rather simply a benign display of stationary banners. And, as
such, they argue the conduct was noncoercive within the mean-
ing of Section 8(b)(4)(ii)(B) of the Act and, further, was not
conduct that Congress meant to prohibit in passing this portion
of the statute into law. The Respondents seek to analogize the
conduct involved here as not picketing but rather more like the
maintenance of a billboard publicizing a labor dispute, an ac-
tion the General Counsel has conceded in related cases to be
without the prohibitions of the Act. In making this argument the
Respondents advance the Court’s decision in DeBartolo Corp.
v. Florida Gulf Coast Building Trades Council, above.
b. The decisional history of the issue and the question of
binding precedent
Apparently the bannering at issue herein has been under-
taken by various Carpenters’ locals in recent times and many of
such occurrences have been the subject of actions under the
Act. All the parties have cited earlier determinations in cases
quite similar to those before me. Each side advances the de-
terminations favorable to its position as conclusive while dis-
counting or dismissing contrary findings. It is appropriate to
review the holdings cited.
The stipulations of the parties respecting each charge and al-
legation contains the statement:

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

On brief counsel for the Respondents cites a third District Court
decision: Benson v. Carpenters Locals 184 & 1498, Case No.
2:04-CV-00782 PGC (D Utah September 27, 2004).
In addition to the authorities cited immediately above, the
“banner issue” at the heart of the instant cases has been the
subject of several administrative law judge unfair labor practice
decisions: Carpenters Southwest Regional Council (New Star
General Contractors, Inc.), JD(SF)–76–04 (Judge Gregory Z.
Meyerson); Carpenters Southwest Regional Council (Carnigan
Construction Co.), JD(SF)–14–04 (Judge James M. Kennedy);
Carpenters Local 1827 (United Parcel Service), JD(SF)–30–03
(Judge Lana H. Parke); Carpenters Southwest Regional Council
(Held Properties): JD(SF)–24–04 (Judge Burton Litvack).
The cited decisions of the United States district courts ad-
dress the unfair labor practice element of this case in the con-
text of an action brought under Section 10(l) of the Act under
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1341
which the district court is asked to make a finding that there is
reasonable cause to believe that Section 8(b)(4)(B) has been
violated. In the cases cited, the United States district courts
were not convinced that reasonable cause existed and made
contrary finding that the bannering and associated handbilling
did not rise to the level of threats, coercion, or restraint within
the meaning of Section 8(b)(4)(b) of the Act. The decisions of
the United States district courts, however, are not binding
precedent on an administrative law judge deciding an unfair
labor practice case.
The cited decisions of the four administrative law judges
split equally between the arguments of the contending parties
herein. These decisions however are not binding on me and
are, in fact, before the Board for decision on exceptions. The
memoranda of the General Counsel’s Division of Advice are
simply prosecutorial positions respecting which the General
Counsel may modify or reverse. They are not binding on me.
While none of the decisions and memoranda noted are bind-
ing on me, the legal analysis of the various learned jurists and
legal scholars, in the decisions and briefs submitted to me, in
their totality, skillfully illuminate a subtle area in a traditionally
difficult area of the law. The issue cries out for a definitive
resolution by higher authority, which will doubtless soon be
forthcoming. In the meantime, given the as-yet-incomplete
resolution of the question, it is necessary to consider the argu-
ments of the parties and reach a determination without guiding
precedential determination by higher authority.
3. The General Counsel’s threshold arguments
a. The Respondents conduct amounts to signal picketing
The General Counsel notes on brief at 18 that signal picket-
ing is described as “activity, short of a true [traditional] picket
line, which acts as a signal to neutrals that sympathetic action
on their part is desired by the union.” Iron Workers Local 433
(R.F. Erectors) v. NLRB, 598 F.2d 1154, 1158 fn. 6 (9th Cir.
1979), enfg. 233 NLRB 283 (1977). The General Counsel
argues that the large banners at issue herein, considering their
highly visible location and their “flanking agents” constitute a
“similarity to a picket line [that] is not coincidental.” The Gov-
ernment further argues that the banner language using the term
“labor dispute” and naming only neutral employers sent out a
“call to action” that “signaled that they desired a boycott of the
named employers.” (GC Br. at 20.)
If the Board determines that certain conduct is a signal as de-
scribed above, it evaluates that conduct as if it had manifested
in the traditional fashion, i.e., as if it were regular picketing.
On the facts of the instant cases, the General Counsel’s argu-
ment is that, since the banners are but signals, any considera-
tion of the complaint allegations respecting violations of Sec-
tion 8(b)(4) of the Act should not founder on the fact that ban-
ners were displayed rather than traditional patrolling pickets
with signs. The General Counsel thus uses the term “signal” to
establish that the conduct is picketing rather than non-picketing
conduct.
I reject the General Counsel’s signal picketing arguments
herein. While there is no doubt that the use of the term ranges
through the decisional law without specific definition and has
been used more broadly, the origins of the doctrine, like the
meaning of the word “signal” itself, require a show or pretense,
a mark, device or course of conduct carrying some special
meaning or import beyond what occurred. Thus cases involv-
ing a signal analysis often involve prior arrangement between
agents of a labor organization and jobsite employees to take
action when some agreed upon action is taken. Or non-
traditional or nonpicketing conduct occurs which is found to be
a pretense or device, which is understood to be and is reacted to
by employees on the site as if a traditional patrolling picket was
present.
I do not find the banners at issue herein nor the conduct of
the Respondents’ agents attending them to either have engaged
in actions or to have constituted in their physical presence
which constitute a signal in the sense described above. The
banners simply are not a signal or pretense for any other union
action or conduct. On this stipulated factual record, in each
separate case and situation as described above, I simply find
none of the symbolic, substitutional or prearranged elements
required to make the bannering more than it appeared. Rather,
I find they simply are what the banners are and that the banners
placed and maintained by the Respondents must stand or fall on
their own in the settings and circumstances of their display as
described in the factual stipulations, supra.
b. The Respondents’ banners contain fraudulent and therefore
unprotected coercive speech
The General Counsel argues on brief at 23 that the banners’
language was improper for three reasons. First, the banners
without exception failed to name the primary employer with
whom Respondent’s have their disputes and named only neutral
employers. Second, the banners “proclaimed the existence of
labor disputes and painted the neutrals as deserving ‘shame’
from the community due to the dispute.” Third, the Respon-
dents deceived the public that they had labor disputes with
neutral employers and either explicitly or implicitly requested
consumer boycotts of the neutrals. The General Counsel con-
cludes: “This clearly amounted to coercive ‘economic retalia-
tion’ within the meaning of the Act.” The Government seeks
by characterizing Respondent’s communications as fraudulent
to defeat any argument that the conduct was constitutionally
protected.
The Respondents argue that the General Counsel simply
does not understand the Act, which explicitly by its terms
makes it clear that a labor dispute may exist with a neutral or
secondary employer. Thus, they point out that Section 2(9) of
the Act defines a “labor dispute” as including “any controversy
concerning terms, tenure, or conditions of employment . . .
regardless of whether the disputants stand in the proximate
relation of employer and employee.” The almost identical pro-
vision of the Norris-LaGuardia Act, 29 U.S.C. §113(c), has
been interpreted as covering “secondary” employers. Smith’s
Management Corp. v. Electrical Workers Local 357, 737 F.2d
788 (9th Cir. 1984).
The Respondents further argue that the banners under chal-
lenge, which are designed to be displayed to the motoring pub-
lic, “can hardly be expected to contain more than a pithy, pow-
erful slogan.” (R. Br. at 10.) Thus, the Respondents argue that
the absence on the banners of primary and secondary disputant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
distinctions on which the Government seeks to rely are unnec-
essary and are impractical. Counsel for the Respondents argues
further that the handbills available to the public from the banner
attendees specify in detail the type and nature of the Respon-
dents’ disputes with the various employers and their relation-
ship to one another.
While not determinative of the outcome herein, I agree with
counsel for the Respondents who has received the support of
recent Federal district court decisions in this regard, as cited
supra, that the banner references to “labor dispute” in associa-
tion with the names of the neutrals as described above are not
fraudulent, but rather, true in the sense that they are consistent
with the quoted definitional language of Section 2(9) of the
Act. I also find that the fact that the Respondents’ agents stand-
ing with the banners had handbills available on request, which
explained the intricacies of the relationship of the employer and
the Respondents, supports the Respondents’ arguments here.
4. The heart of the case—the characterization of banner dis-
plays as picketing or other conduct
a. Arguments
As noted above, the use of virtually identical banners by
various constituent locals of the United Brotherhood of Carpen-
ters and Joiners of America has produced a series of
8(b)(4)(ii)(B) unfair labor practice prosecutions and associated
Section 10(l) proceedings in United States district courts. The
results to date: Kohn v. Carpenters Southwest Regional Coun-
cil, 289 F.Supp. 2d 1155 (C.D. CA 2003); Overstreet v. Car-
penters Local 1506, 2003 U.S. Dist. LEXIS 19854 (S.D. CA
2003); and Benson v. Carpenters Locals 184 and 1498, Case
No. 2:04-CV-00782 PGC (D Utah September 27, 2004), while
divided in result, intermediate and not yet resolved in a defini-
tive precedential way, have served admirably to crystallize the
heart of the issue in dispute. The cases to date have hinged on
the question of whether Respondents’ bannering conduct quali-
fies under Section 8(b)(4)(ii) of the Act as conduct which
would “threaten, coerce, or restrain.”
The cases cited, supra, have considered and compared the
conduct at issue with patrolling pickets, hand billing and the
maintenance of a billboard—all occurring with similar lan-
guage in similar locations. In the three District Court cases,
Kohn v. Carpenters Southwest Regional Council, 289 F. Supp.
2d 1155, above; Overstreet v. Carpenters Local 1506, 2003
U.S. Dist. LEXIS 19854, above; and Benson v. Carpenters
Locals 184 and 1498, above, and in the ALJ decisions of Judge
Kennedy in Carpenters Southwest Regional Council, above,
and Judge Meyerson in Carpenters Southwest Regional Council
(New Star General Contractors, Inc.), JD(SF)–76–04, the ju-
rists held that the bannering conduct at issue was not directly
analogous to patrolling picketing and concluded that under the
Court’s teachings in DeBartolo Corp. v. Florida Gulf Coast
Building Trades Council (DeBartolo II), 485 U.S. 568 (1988),
the bannering conduct fell outside the reach of Section
8(b)(4)(ii) of the Act.
The distinctions argued by Respondents and noted by vari-
ous of the cited jurists between traditional picketing and the
bannering here are the absence in the bannering instances of
patrolling and any elements of exhortation or confrontation by
Respondents’ agents. Further, they noted the significant differ-
ences between the physical appearance of the gigantic banners
as compared to diminutive traditional picket signs, as well as
the general public message and physical location and orienta-
tion of the banners.
Judge Litvack in Carpenters Southwest Regional Council
(Held Properties), JD(SF)–24–04 and Judge Parke in Carpen-
ters Local 1827 (United Parcel Service), JD(SF)–30–03, found
the Respondents’ conduct herein to be more akin to traditional
picketing3 which they note the Board views quite broadly. As a
result of this finding, each further found the bannering was
violative of Section 8(b)(4)(ii)(B) of the Act.
b. Analysis and conclusion
Based on the record as a whole, the stipulations of the par-
ties, the briefs of the parties and the learned analysis and con-
clusions of the judges in the decisions cited supra, I find that
the bannering under challenge herein differs from traditional
picketing in several significant ways. Thus, unlike traditional
picketing, no patrolling or exhortation by pickets or confronta-
tion between union agents and employees, customers or em-
ployer agents occurred. The Respondents’ agents were both
relatively unobtrusive behind the oversize banners and were
essentially passive.
Further, unlike the traditional language of picket signs urging
employees to stop work and/or customers not to patronize, the
banners herein simply labeled the identified disputant as
shameful. A word derisive perhaps, but not one immediately
cognizable as a traditional labor organization picket sign admo-
nition which is easily held to be a threat, coercion or restraint.
Additionally, the banners were directed more to and towards
the public-at-large than to the employees and/or the on-site
customers of the identified entities. Finally the record is totally
devoid of any evidence of the impact, if any, of the challenged
conduct on the bannered entities customers or employees or any
other measure.
From all the above, I find and conclude that the bannering
involved herein is simply not the legal equivalent of picketing
for purposes of Section 8(b)(4)(B) analysis. In these regards I
am persuaded by and here adopt the conclusion on the same
issue of Judge James Kennedy in Carpenters Southwest Re-
gional Council (Carnigan Construction Co.), supra, JD(SF)14–
04. There, on similar facts, he held:

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

Having reached this critical threshold conclusion, I further
find and conclude that the bannering engaged in by the Re-
spondents is not sufficiently akin to traditional picketing that

3 The Court in DeBartolo II, supra, distinguished the peaceful hand
billing under consideration therein from picketing. (485 U.S. at 571.)
CARPENTERS LOCAL 1506 (MARRIOTT WARNER CENTER WOODLAND HILLS) 1343
the banners constituted threats, coercion, or restrain within the
meaning of Section 8(b)(4)(ii) of the Act. Rather I find that to
avoid serious constitutional problems as discussed by the Court
in DeBartolo II, supra, 485 U.S. 568 (1988), the conduct al-
leged as a violation of the Act in the complaints herein must be
held to fall outside the restrictive intentions of Congress encap-
sulated in Section 8(b)(4)(ii)(B) of the Act. Given that I have
concluded that the Respondents’ bannering did not violate Sec-
tion 8(b)(4)(ii)(B) of the Act, it follows that the Respondent’s
have not violated the Act as alleged and the complaints shall be
dismissed.
In reaching this determination, I find the issue is subtle and
calls out for definitive resolution by higher authority. The deci-
sions of Judge Litvack in Carpenters Local 1827 (United Par-
cel Service), JD(SF)–30–03 and Judge Parke in Carpenters
Southwest Regional Council (Held Properties): JD(SF)–24–04
correctly note that the Board has tended to view various types
of labor organization protest actions as conduct as akin to pick-
eting and does not lightly find such conduct beyond the reach
of Section 8(b)(4)(ii)(B) of the Act. The Board’s decisions are
binding on administrative law judges in unfair labor practices
cases including this judge in the instant case. I do not find
however that the current Board decisional law definitively re-
solves the specific issue at hand. And I am very mindful of the
teachings of the Court in DeBartolo II, supra, that the Board
must always review its definitions and analytical approach with
a view to avoiding interpretations of the Act which conflict
with constitutional prohibitions. Where the distinction between
constitutionally protected free speech and regulatable labor
organization conduct is subtle, the recent precedents divided
and the matter not as yet resolved by higher authority, special
cautions must be applied by all judges, including administrative
law judges, so as to avoid applying unsettled law in such a way
as to improperly restrict constitutionally protected conduct.
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following
CONCLUSIONS OF LAW
1. The Charging Parties are, and each has been at all times
material, a employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Respondents are, and each has been at all relevant
times, labor organizations within the meaning of Section 2(5)
of the Act.
3. The Respondents did not violate the Act as alleged in the
complaint and the complaints shall be dismissed in its entirety.
On these findings of fact and conclusions of law, and on the
basis of the entire record, I issue the following recommended4
ORDER
The allegations of the complaints, and each of them, shall be
and they are dismissed in their 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 shall be waived for all purposes.