Mid-Atlantic Regional Council of Carpenters (Goodell, DeVries, Leech & Dann, LLP)

National Labor Relations Board - Board Decisions

Nov 2, 2010

356 N.L.R.B. 61 (N.L.R.B. 2010)

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 61
Mid-Atlantic Regional Council of Carpenters and
Goodell, Devries, Leech & Dann, LLP and
Starkey Construction Company, Inc. Case 5–
CC–1289
November 2, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,
PEARCE, AND HAYES
This case concerns whether the Respondent, Mid-
Atlantic Regional Council of Carpenters (the Union),
violated Section 8(b)(4)(ii)(B) of the Act by displaying a
large stationary banner proclaiming a “labor dispute” at
the location of a secondary employer.1 The judge found
the violation, concluding that the banner display consti-
tuted “coercive picketing” with an object of forcing the
secondary employer to cease doing business with the
primary employer.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
reject the judge’s conclusions consistent with our recent
decisions in Carpenters Local 1506 (Eliason & Knuth of
Arizona), 355 NLRB 797 (2010); Carpenters Local 1506
(Associated General Contractors), 355 NLRB 1137
(2010); and Carpenters Local 1506 (Held Properties),
356 NLRB 21 (2010). In Eliason, supra, we concluded
that the union’s display of large stationary banners did
not violate Section 8(b)(4)(ii)(B) of the Act. We find
that the banner display in this case was, for all relevant
purposes, the same as the conduct found lawful in Eli-
ason. We further find, for the reasons set forth in Held
Properties, supra, that the banner display was not ren-
dered unlawful because it was preceded at the secondary
location by area-standards picketing using traditional
picket signs that named only the primary employer,
Starkey Construction.2 In accord with these decisions,
1 On March 2, 2006, Administrative Law Judge Eric M. Fine issued
the attached decision, which was supplemented by two errata. The
Union filed exceptions and a supporting brief, and the American Feder-
ation of Labor and Congress of Industrial Organizations and its Build-
ing and Construction Trades Department filed an amici curiae brief in
support of the Union’s exceptions. The General Counsel and Charging
Party filed answering briefs, and the Union filed a reply brief.
2 The General Counsel’s stated position at the hearing was that
“there’s nothing unlawful about the area-standards picketing that oc-
curred before the banner was erected,” and that he was not “rely[ing]
on any conduct that came before the bannering to allege that the banner
conduct was unlawful.” In light of this disclaimer, the judge clearly
went beyond the General Counsel’s theory of the case in relying on the
prior picketing (which included the display of a large inflatable rat) to
find the banner display unlawful. See Paul Mueller Co., 332 NLRB
1350 (2000) (judge improperly proceeded to find violation of the Act
on theory expressly disclaimed by the General Counsel).
we find that the Union’s banner display in this case did
not violate Section 8(b)(4)(ii)(B).3
ORDER
The complaint is dismissed.

MEMBER HAYES, dissenting.
Moreover, while the judge repeatedly cited the prior picketing, he
did not carefully analyze the nature of that activity or explain his ra-
tionale for finding that the subsequent banner display constituted “coer-
cive picketing” or otherwise coercive activity. The banner named only
the secondary employer—the law firm of Goodell, DeVries, Leech &
Dann. The Union’s dispute with the law firm concerned the use of
Starkey in the expansion of the firm’s offices. But the picketing that
occurred between May 26 and July 15, 2005, involved traditional picket
signs naming Starkey, and concluded more than 3 weeks before the
banner display began on August 9. Although subsequent picketing
occurred between July 18 and August 5, it related to a wholly separate
dispute involving neither the law firm nor Starkey and the picket signs
used in the later picketing named only an entirely separate employer,
Wilhelm Commercial Builders, which had been retained by another
tenant in the building.
Despite these facts, and without analyzing the precise nature of the
prior picketing or its timing, the judge found that the Union’s banner
display, naming only the law firm, “was a continuation of its prior
picketing activity,” and constituted “picketing” and coercive conduct.
We find that the judge’s decision provides no logical link between the
prior picketing and his finding that the banner display was unlawful.
We conclude, therefore, that there is nothing in his decision that might
persuade us to deviate from our holdings in Eliason and Held Proper-
ties.
3 We reject the judge’s reliance on the testimony of Thomas Goss as
evidence of coercion. Goss, a joint owner of the law firm, testified that
the Union’s banner display had the potential to cause damage to the
firm’s business. The judge, in fn. 4 of his decision, cites as authority
the Supreme Court’s decision in NLRB v. Retail Store Employees, 447
U.S. 607, 611 (1980) (Safeco), that the “potential damage to a second-
ary employer is one element in assessing whether a union’s conduct is
coercive” under 8(b)(4). But that case involved picketing, not a banner
display, and therefore is not relevant to the question of coercion in this
case. In Safeco, the Court distinguished between permissible product
picketing and impermissible secondary picketing, but as we held in
Eliason, the banner display here was not picketing of any sort. See also
Eliason, supra at 806, fn. 30 (“stationary holding of banners announc-
ing a labor dispute, even if such conduct is intended to and does in fact
cause consumers freely to choose not to patronize the secondary em-
ployer, does not constitute such direct, coercive interference with the
employer’s operations or a threat thereof.”) Accordingly, we find it
unnecessary to rule on the Union’s request that the record be reopened
to allow cross-examination of Goss regarding the potential damage to
the law firm that the Union’s banner display may have had.
The judge only briefly mentioned the General Counsel’s theory that
the Union’s banner display was coercive because it constituted “signal
picketing” and expressly did not reach his theory that the banner dis-
play constituted fraudulent speech because the banner did not name
Starkey as the employer with whom the Union had a primary dispute.
The General Counsel did not except to the judge’s treatment of these
theories, although the Union does dispute the signal-picketing theory.
In any event, we note that these two theories were fully addressed and
rejected by the Board in Eliason, supra at 805–806 (signal picketing)
and 811 (fraudulent speech).
356 NLRB No. 19

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
The bannering activity at issue in this case is essential-
ly the same as in Eliason & Knuth, 355 NLRB 797
(2010). For the reasons fully set forth in the joint dissent
in that case, I would find a violation here.4 The banner-
ing involves the placement of union agents holding a
large banner proximate to the premises of a neutral em-
ployer who is doing business with an employer who is
the primary target in a labor dispute with the Respondent.
The predominate element of such bannering is confronta-
tional conduct, rather than persuasive speech, designed to
promote a total boycott of the neutral employer’s busi-
ness, and thereby to further an objective of forcing that
employer to cease doing business with the primary em-
ployer in the labor dispute. Like picketing, this banner-
ing activity is the precise evil that Congress intended to
outlaw through Section 8(b)(4)(ii)(B), and the proscrip-
tion of this conduct raises no constitutional concerns. I
therefore dissent from my colleagues’ failure to enforce
the Act as intended.

James C. Panousos, Esq., for the General Counsel.
Daniel M. Shanley, Esq., of Los Angeles, California and Brian
F. Quinn, Esq., of Washington, D.C. for the Respondent.
Eric Hemmendinger, Esq., of Baltimore, Maryland, for the
Charging Party .
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Baltimore, Maryland, on December 21, 2005. The charge
was filed on August 15, 2005, by Goodell, DeVries, Leech &
Dann, LLP (referred to as Goodell or the Charging Party)
against the Mid-Atlantic Regional Council of Carpenters (re-
ferred to as the Union, the Council, or as Respondent).1 The
complaint issued on November 17, alleging the Union engaged
in picketing and fraudulent unprotected speech since August 9,
in violation of Section 8(b)(4)(ii)(B) of the Act by attempting to
cause Goodell and Constantine Commercial Construction, Inc.,
(Constantine), and other persons engaged in commerce to cease
doing business with Starkey Construction Co., Inc. (Starkey).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated that: Goodell, a Maryland limited lia-
bility partnership jointly owned by David W. Allen, Richard M.
Barnes, Bonnie J. Beavan, Thomas J. Cullen Jr., E. Charles
Dann Jr., Donald L. DeVries, Jr., Charles P. Goodell Jr., Thom-
4 Unlike in Eliason, the bannering here was preceded by picketing.
While I would find the bannering unlawful even in the absence of
picketing, the occurrence of picketing soon before or after bannering
serves to underscore the common coercive aspects of the two activities.
1 All dates are in 2005 unless otherwise indicated
as M. Goss, Amy B. Heinrich, Jeffrey J. Hines, Kelly Hughes-
Iverson, Kamil Ismail, Sidney G. Leech, Michael L. Lisak,
Craig B. Merkle, Thomas V. Monahan Jr., Susan T. Preston,
Thomas J. S. Waxter, III, and Linda S. Woolf, is engaged in
providing legal representation and legal services at its Balti-
more, Maryland facility from where during the past 12 months
it derived gross revenues in excess of $250,000, and performed
services valued in excess of $50,000 in states other than the
State of Maryland. Starkey, a corporation, with a facility in
Cockeysville, Maryland, has been engaged as a drywall con-
tractor in the construction industry, providing commercial
building construction services, and during the past 12 months
has purchased and received at its Cockeysville, Maryland facili-
ty goods valued in excess of $50,000 directly from points out-
side the State of Maryland. Constantine, a corporation with a
Timonium, Maryland facility has been engaged as a general
contractor in the construction industry, providing commercial
building construction services, and during the past 12 months
has purchased and received at its Timonium, Maryland facility
goods valued in excess of $50,000 directly from points outside
the State of Maryland. At all material times, Goodell, Starkey,
and Constantine are each employers engaged in commerce, and
persons engaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(1), (2), (6), and (7) of
the Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The information set forth immediately below was derived
from the parties’ written stipulation:

Beginning in January 2005, Goodell sought to expand
its offices located at the Alex Brown Building, One South
Street, Baltimore, Maryland. Goodell contracted with
Constantine to perform the construction. Constantine sub-
contracted the drywall work for the construction to Stark-
ey. The Union was not recognized or certified as the col-
lective bargaining representative of any employees em-
ployed by Constantine and/or Starkey, nor has the Union
demanded recognition as the collective bargaining repre-
sentative or sought to organize any employee employed by
Constantine and/or Starkey. The Union does not dispute
the wages paid by Constantine or Goodell to their employ-
ees; therefore, the Union has no primary dispute with Con-
stantine or Goodell. The Union’s primary labor dispute is
with Starkey. The Union does dispute the wages paid by
Starkey to its employees who are or were working on
Goodell’s project.
On or about August 9, 2005, and continuing to the pre-
sent, with the exception of about one week in November
2005, the Union displayed at the job site, a banner approx-
imately 20 feet by 4 feet in size. The banner is white, with
“Shame On Goodell DeVries, Leech & Dann, LLP” ap-
pearing in capital letters approximately eleven (11) inches
high in black. At both ends of the banner, the words
“LABOR DISPUTE” appeared in red capital letters ap-
proximately eight (8) inches high. Since on or about Au-
gust 9, 2005, the banner was displayed on a public side-
walk at South Street, directly outside the Alex Brown

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 63
Building approximately 25 to 30 feet north from the four
main entrances to the building. Other than the South Street
entrances, public access to the Alex Brown Building and
Goodell’s offices may be gained only by the Alex Brown
Building’s parking garage on Commerce Street and a ser-
vice entrance also located on Commerce Street to the north
of the parking garage.

The banner was displayed at the jobsite on weekdays, gener-
ally five times a week, from approximately 9 a.m. to 3 p.m. The
banner was accompanied by no less than two but no more than
four individuals who were either members of local unions affil-
iated with the Union or employed by the Union. The banner
was printed only on the front side. At all material times, the
banner displayed by the Union was held stationary and upright
by the banner bearers in a straight line, with the bottom of the
banner touching the ground. In each instance, the banner was
erected at the beginning of the day and it did not move, but
remained stationary at the particular place on location, until it
was taken down at the end of the day. The Union’s banner
holders also had handbills available, although they have not
sought out pedestrians to whom to distribute these handbills.
One handbill was available until on or about October 28, 2005,
and the other handbill was available after that date. 2 The Gen-
eral Counsel does not contend the factual representations made
in the handbills are false. The General Counsel does not con-
tend the handbills or their distribution violates the Act. The
banners were accompanied by normally three of the Union’s
agents, banner holders, who remained at all times during the
display. The banner holders held up the banner and gave flyers
to any inquiring member of the public. The banner holders did
not engage in chanting, yelling, marching, or similar conduct.
At no material time did the Union’s representatives physically
block the ingress or egress of any person wishing to enter or
leave the Alex Brown Building. The Union admits the place-
ment of the banner was selected to maximize exposure to the
general public and all persons, including passing motorists and
pedestrians, who might be in the area, and the location on
which the banner was erected was a major approach way to
Goodell for persons doing business with Goodell.
On or about October 25, 2005, the Union’s counsel was noti-
fied by Goodell by letter that Starkey completed its work at
Goodell on October 19, 2005. The Union continued its banner
activity and its hand bill activity as described above after Octo-
ber 25, 2005.
There were two witnesses who testified during this proceed-
ing. They were Thomas Goss, an attorney and a partner in the
Goodell law firm, and George Eisner, the Union’s director of
organizing.33 Eisner credibly testified the Union began picket-
ing activity against Starkey on May 26 at the One South Street
location and this picketing ended on July 15. The Union then
began picketing at the same site against Wilhelm Commercial
2 The parties submitted both handbills into evidence as joint exhibits.
3 Upon observation of their demeanor, the content of their testimony,
and the record as a whole, I have credited Goss and Eisner’s testimony
to the extent discussed herein. Goss’ recollection was not clear as to
dates as that of Eisner’s, and I have credited Eisner over Goss as to the
sequence of events, as Eisner’s recollection was clear and specific.
Builders, Incorporated (Wilhelm) on July 18 and that the pick-
eting against Wilhelm ended on August 5. Wilhelm was not
involved in the construction work for Goodell. Rather, Wilhelm
performed work for another tenant in the building. The picket-
ers wore signs about 3 feet by 4 feet in size made of yellow
cardboard. The Starkey sign read, “Starkey Construction Com-
pany, Incorporated does not pay the area standard wages and
benefits, the Mid-Atlantic Regional Council of Carpenters."
The sign also contained smaller print stating, "We have a labor
dispute with the above-named company. We are appealing only
for the public, the consumer. We are not seeking to induce any
person to cease work or refuse to make delivery." The Wilhelm
picket sign was identical to the Starkey sign, except that the
company name on the sign was Wilhelm Commercial Builders,
Incorporated. Eisner testified the banner concerning Goodell
went up on August 9 at the One South Street site. He credibly
testified the Goodell banner was not displayed at the site at the
same time there was picketing activity there against Starkey or
Wilhelm.
Upon observation of their demeanor, the content of their tes-
timony, and the record as a whole, I have credited Goss and
Eisner’s testimony to the extent discussed herein. Goss’ recol-
lection was not clear as to dates as that of Eisner’s, and I have
credited Eisner over Goss as to the sequence of events, as Eis-
ner’s recollection was clear and specific.
Goss credibly testified the Union’s picketing activity against
Starkey at One South Street involved the use of a large inflata-
ble rat, about a story and a half tall, sitting in the back of a large
pickup truck. There were also people walking in an oval line
near the door of the building. The line was about 30 feet in
length. There was a person in the middle chanting and then
there was a response. The words were, “Who's the rat? Starkey.
Where's the rat? South Street.” The chanting was repeated, and
the words would change on occasion. Goss credibly testified he
remembered the name of the Goodell law firm being used in a
chant on one occasion. Goss testified there were around 20
people in the picket line, but the number varied depending on
the weather. Goss testified there was some picketing activity
every day during the time period of the picketing, although
there were some days when the rat was not there. Goss testified
the picketers against Starkey were there from around 9:30 a.m.
and were gone by 3 p.m. Goss credibly testified while the Un-
ion was engaged in this activity there was room for only single
file pedestrian traffic for people walking northbound on South
Street. He also testified there was only room for one person at a
time to get into the building.
As set forth above, the picketing against Starkey and Wil-
helm ceased on August 5, and on August 9, the Union posted
the banner, as described above, against Goodell close to the
main entrance of the building where Goodell has its offices.
Goss testified the Goodell banner was about one block from the
Baltimore City Courthouse (the Courthouse) where the Goodell
law firm practices and members of the firm try cases on a regu-
lar basis in front of juries. He testified the banner was visible to
pedestrians, cars, and buses. Goss testified there is a restaurant
in the building where the law firm has its offices. Goss credibly
testified he has observed judges regularly eating there, and
people with juror tags eating there. Goss testified that at a trial

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
the jurors are introduced to the attorneys by their name and the
name of the firm. Goss testified he is very concerned about the
banner and the impact it might have on jurors. He testified the
banner could reflect against the attorney and could be damaging
to his clients. Goss credibly testified one of his partners com-
pleted a 2½ week trial at the Courthouse during the last month
prior to the unfair labor practice trial. 4
Eisner testified the bannering activity against Goodell was
continuing as of December 21, the day of the unfair labor prac-
tice trial. Eisner testified the Union chose the language on the
Goodell banner based on advice of counsel in that the use of the
language had been approved in numerous decisions before
administrative law judges, and in some federal court cases.55 He
testified the banner is not self standing. Eisner testified he
thought building management would remove the banner if the
Union left it unattended and the banner has never been left
unattended by union personnel.
Eisner testified the purpose of the banner is to inform the
public that Goodell chose contractors who did not pay area
standard wages and fringes on Goodell’s construction project.
He testified the Union’s goal once the public learned this in-
formation was for the public to call Goodell and ask them to
correct the problem as requested in the Union’s handbill. He
admitted there was no way for members of the public to receive
this message from looking at the banner itself, and they could
only learn it by requesting a copy of the Union’s handbill from
one of the banner holders. Eisner at first denied it was the Un-
ion’s intention to put pressure on Goodell. He then admitted the
Union wanted the law firm to change its behavior by hiring area
standard contractors. He testified he did not care whether or not
they were union contractors as long as they paid area standards
wages and fringes. Eisner testified Goodell can hire Starkey if
Starkey paid area standards wages. Eisner testified if a contrac-
tor does not pay area standard wages the Union would not want
them to work in the building or for Goodell.
4 Goss testified the last case Goss had that went to trial at the Court-
house was in 2003. However, Goss testified he was currently involved
at the Courthouse in cases where plaintiffs are alleging injury due to
asbestos. Goss represents the defendants in these cases who, at various
times, are contractors, suppliers, and manufacturers. Goss testified a
number of claimants are workers in the construction industry, including
some members of the Carpenters’ Union. Goss testified he has been
involved in early stages of this litigation at the Courthouse since the
banner was posted, but that no jury has been selected at the time of the
unfair labor practice trial. Upon the Union’s objection, I excluded
Goss’ testimony about the asbestos litigation from the record at the
unfair labor practice trial, but allowed Goss to testify to the above by
way of question and answer offer of proof. I now reverse my ruling and
have admitted this credited testimony as part of the record. In this re-
gard, the Union’s banner activity against Goodell is open ended as it
was on going at the time of the unfair labor practice trial on December
21, although the parties stipulated that Starkey, with whom the Union
had its primary dispute, had left the site in mid-October. Moreover, the
potential damage to a secondary employer is one element in assessing
whether a Union’s conduct is coercive within the meaning of Sec. 607,
611 (1980). I have credited Goss’ testimony that he was concerned
about the impact the banner would have
5 Prior litigation of bannering activities by Carpenters Union affili-
ates will be discussed in the Analysis section of this decision
A. Positions of the parties
The General Counsel argues the Union has engaged in two
different types of coercive conduct prohibited by Section
8(b)(4)(ii)(B). First, the Union’s posting of a large banner ac-
companied by several individuals near the entrance to
Goodell’s premises creates a symbolic and confrontational
barrier tantamount to a picket line. The General Counsel argues
the Union’s conduct is traditional or signal picketing. The Gen-
eral Counsel also argues the Union is using unprotected speech
on the banner by seeking a consumer boycott of the neutral
Goodell. The General Counsel argues the Union’s posting is
coercive on two grounds: (1) it was made with reckless disre-
gard for the truth so as to mislead the public into believing the
Union had a labor dispute with Goodell over the treatment of
Goodell’s own employees; and (2) it constitutes defamation by
implication. The General Counsel argues the Union's conduct is
not free speech protected under the First Amendment to the
U.S. Constitution.
The Union argues finding a violation of the Act would con-
stitute a violation of the Union’s First Amendment rights. The
Union asserts five article III courts and six administrative law
judges have rejected the General Counsel’s “constitutionally
insensitive theories.” The Union argues these decisions includ-
ing one of the ninth circuit hold that interpreting Section
8(b)(4)(ii)(B) to prohibit the Union’s activity here would pose a
significant risk of infringing First Amendment rights, and spe-
cial deference by the Board should be given to the ninth circuit
and district judge’s rulings since these cases involve First
Amendment questions. The Union argues Respondent’s display
of its banner does not rise to the level of a threat, coercion, or
restraint necessary for a finding of an unlawful secondary boy-
cott. The Union contends with no patrolling, ambulatory picket-
ing, blocking, violence, confrontation, intimidation, chanting,
shouting, or other misconduct to weigh against the Union’s free
speech rights there is no support under controlling Supreme
Court precedent to find the Union’s conduct violative of the
Act. The Union states the banner is posted on a public side-
walk. It is held up by two to four banner holders as it cannot be
left unattended because it is not self standing and would be
confiscated by local authorities or the property owner. The
Union contends neither the banner nor the handbills advocate a
consumer boycott against the Goodell. The Union argues the
banner is not signal picketing because it does not constitute a
signal for any other union action. The Union argues the General
Counsel improperly focuses on the language of the banner,
noting that the term “shameful” does not constitute a threat.
The Union argues the concentration on the language on the
banner, as opposed to the conduct of the Union, constitutes a
collision with the First Amendment. It is asserted the term “la-
bor dispute” on the banner is truthful, and has been found to be
such by reviewing authorities since secondary employers are
parties to a labor dispute as defined in Section 2(9) of the Act.

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 65
B. Analysis
1. Prior court cases and the decisions of other administrative
law judges
As set forth above, one court of appeals, and four district
courts have addressed the Carpenters Unions’ bannering activi-
ties in Section 10(l) injunctive proceedings, and several other
administrative law judges have rendered decisions in unfair
labor practice trials on this issue, which are currently on appeal
before the Board.66 In Kentov v. Sheet Metal Workers Local 15,
418 F.3d 1259, 1262–1263 (2005), a case where the General
Counsel was seeking Section 10(l) injunctive relief, and the
union there was defending by asserting its First Amendment
rights, the court stated:

Section 10(l) of the NLRB authorizes district courts to grant
temporary injunctive relief pending the Board’s resolution of
certain unfair labor practice charges, such as secondary boy-
cotts, which are likely to have a disruptive effect upon the
flow of commerce. 29 U.S.C Section 160(l); Dowd v. Int’l
Longshoremen’s Ass’n, 975 F.2d 779, 782, 782–83 (11th) Cir.
1991). A Section 10(l) proceeding is ancillary to the Board’s
administrative proceedings, and the ultimate determination of
the merits of the unfair labor practice case is reserved for the
Board subject to review by the courts of appeals under Sec-
tion 10(e) and (f) of the NLRA. See Dowd, 975 F.2d 779.

Thus, while a request for injunction in this case under Section
10(l) of the Act was denied by a district judge, that decision is
ancillary to the underlying unfair labor practice litigation and is
not binding on me. See also, NLRB v. Denver Building & Con-
struction Trades Council, 341 U.S. 675, 681-682 (1951). Simi-
larly, the decisions in other 10(l) proceedings and by other ad-
ministrative law judges are not binding on me as I am required
to follow Board law. See, Ford Motor Co., 230 NLRB 716, 718
fn. 12 (1977), enfd. 571 F.2d 993 (7 Cir. 1978), affd. 441 U.S.
6 See, Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir.
2005); Gold v. Mid Atlantic Regional Council of Carpenters, 407 F.
Supp. 2d 719 (D.MD. 2005); Benson v. UBCJA, Locals 184 and 1498,
337 F.Supp. 2d 1275 (D. Utah 2004); Overstreet v. Carpenters Local
1506, 2003 U.S. Dist. Lexis 19854 (S.D. Ca, 2003); and Kohn v.
Southwest Regional Council of Carpenters, 289 F.Supp. 2d 1155 (C.D.
Ca. 2003) denying the General Counsel’s requests for 10(l) injunctive
relief in Carpenters bannering activity cases. Gold v. Mid Atlantic Re-
gional Council of Carpenters, supra, involved a request before a district
judge for injunctive relief for the Union’s activity that is the subject of
the current unfair labor practice trial. The Union also cites six adminis-
trative law judge decisions that have dismissed complaints concerning
Carpenters Union bannering activity. They are: Southwest Regional
Counsel of Carpenters, et al., JD(SF)–14–04, 2004, (February 18,
2004); Southwest Regional Council of Carpenters, JD(SF)–76–04
(November 12, 2004); Carpenters Local No. 1506, JD SF–01–05 (Jan-
uary 6, 2005); Carpenters Locals 184 & 1498, JD (SF)–02–05 (January
13, 2005); Southwest Regional Council of Carpenters, JD(SF)–29–05
(April 5, 2005); and Southwest Regional Council of Carpenters,
JD(SF)–59–05 (August 22, 2005). Of note, two other administrative
law judges have found the Carpenters’ bannering activity to be viola-
tive of the Act. See Carpenters, JD(SF)–30–03, (May 9, 2003); and
Southwest Regional Council of Carpenters, JD(SF)–24–04 (April 2,
2004). The Board has not yet ruled on these cases.
488 (1979).
2. The alleged unfair labor practices
Section 8(b)(4)(ii)(B) of the Act provides, in relevant part:

(b) It shall be an unfair labor practice for a labor organization
or its agents—4)(ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is—
(B) forcing or requiring any person to cease using, selling,
handling, transporting or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person . . . .: Provided, That
nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary
strike or primary picketing; . . .
Provided further, That for the purposes of this paragraph (4)
only, nothing contained in such paragraph shall be construed
to prohibit publicity, other than picketing, for the purpose of
truthfully advising the public, including consumers and mem-
bers of a labor organization, that a product or products are
produced by an employer with whom the labor organization
has a primary dispute and are distributed by another employ-
er, as long as such publicity does not have an effect of induc-
ing any individual employed by any person other than the
primary employer in the course of his employment to refuse
to pick up, deliver, or transport any goods, or not to perform
any services, at the establishment of the employer engaged in
such distribution.

It is stated in Service Employees Local 87 (Trinity Mainte-
nance), 312 NLRB 715, 742 (1993), enfd. 103 F.3d 139 (9th
Cir. 1996), in reference to Section 8(b)(4)(B) of the Act that:

As the Supreme Court has explained, the above-quoted provi-
sion of the Act reflects ‘the dual congressional objectives of
preserving the right of labor organizations to bring pressure to
bear on offending employers in primary labor disputes and of
shielding unoffending employers and others from pressure in
controversies not their own.’ NLRB v. Denver Building
Trades Council, 341 U.S. 675, 692 (1951). Thus, while Sec-
tion 8(b)(4)(B) of the Act leaves unfettered a labor organiza-
tion’s traditional right to engage in direct action against an
employer, with which it is engaged in a primary labor dispute,
including the right to induce the primary employer’s employ-
ees to engage in a strike or refusal to handle goods, the provi-
sion’s more ‘narrowly focused’ purpose is to ‘restrict the area
of industrial conflict insofar as this could be achieved by pro-
hibiting the most obvious, widespread, and . . . dangerous
practice of unions to widen that conflict’ and coerce neutral
employers not concerned with the primary dispute. Carpen-
ters Local Angeles County District Council Local 1976 v.
NLRB, 357 U.S. 93, 100 (1958).

It was further noted in Service Employees Local 87 (Trinity
Maintenance), supra at 743 that “it is no less a violation of
Section 8(b)(4)(B) of the Act for a labor organization to disrupt
the business of an unoffending neutral employer, which has no
business relationship with the primary employer, in the hope
that said neutral will be pressured into interceding in a labor
dispute between the labor organization and the primary em-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
ployer. Iron Workers Local 272 (Miller & Solomon), 195
NLRB 1063 (1972); Hearst Corp., supra at 322.”7
In Mine Workers (New Beckley Mining), 304 NLRB 71, 73
(1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992), the Board set
forth the following principles

It is well settled that picketing (or other coercive conduct) vio-
lates Section 8(b)(4) if the object of it is to exert improper in-
fluence on a neutral party. NLRB v. Denver Building Trades
Council, 341 U.S. 675, 689 (1951), Electrical Workers IBEW
Local 501 v. NLRB, 756 F.2d 888, 892 (D.C. Cir. 1985). Alt-
hough our inquiry must be based on the intent, rather than on
the effects of the union’s conduct, International Rice Milling
Co. v. NLRB, 341 U.S. 665, 672 (1951), the union’s intent is
measured as much by the necessary and foreseeable conse-
quences of its conduct as by its stated objective. Longshore-
man ILA Local 799 (Allied) International, 257 NLRB 1075
(1981). Thus we look to the ‘totality of the circumstances’ to
determine whether the Union’s conduct demonstrates an un-
lawful purpose. Electrical Workers IBEW Local 501, supra at
893.

It was stated in Mississippi Gulf Coast Building, 222 NLRB
649, 654 (1976), enfd. 542 F.2d 573 (5th Cir. 1976), concern-
ing common situs picketing, that

In a case commonly referred to as the Moore Dry Dock case,8
the Board set forth certain standards for the determination of
presumptively valid picketing against primary employers as
follows:

[I]n the kind of situation that exists in this case, we believe
that picketing of the premises of a secondary employer is pri-
mary if it meets the following conditions: (a) The picketing is
strictly limited to times when the situs of dispute is located on
the secondary employer's premises; (b) At the same time of
the picketing the primary employer is engaged in its normal
business at the situs; (c) The picketing is limited to the places
reasonably close to the location of the situs; and (d) The pick-
eting discloses clearly that the dispute is with the primary em-
ployer. Conversely the absence of the above criteria or condi-
tions reflect invalid picketing.

It is clear in the instant case that the Union’s posting of a
large banner near the entrance to the offices of Goodell was for
the purpose of causing Goodell to cease doing business with
Starkey, or at a minimum of causing Goodell to intervene on
the Union’s behalf in the Union’s dispute with Starkey. See
Service Employees Local 87 (Trinity Maintenance), supra at
743. First, the Union continued the display of its banner long
after the Union was informed that Starkey ceased performing
work at the site. Moreover, the Union’s banner failed to dis-
close the Union’s dispute was with Starkey. In fact, the Union
did not even mention Starkey’s name on its 20 by 4 foot ban-
ner, where only Goodell’s name appears.9
7 See Los Angeles Newspaper Guild Local 69 (Hearst Corp.), 185
U.S. 303 (1970).
8 See Sailors Union (Moore Dry Dock ), 92 NLRB 547 (1950).
9 The Union’s handbills, available at the site are further evidence of
its purpose of causing Goodell to cease doing business or at a minimum
Moreover, union official Eisner admitted the purpose of the
banner was to inform the public that Goodell chose contractors
who did not pay area standards and fringes. Eisner admitted the
Union wanted Goodell to change its behavior by hiring only
area standards contractors, of which Starkey was not one. Thus,
the purpose of the Union’s bannering activity was to put pres-
sure on secondary employer Goodell to cease doing business
with primary Starkey, or to exert pressure on Starkey to alter its
wage and benefit policies. The Union’s purpose was one pro-
scribed by Section 8(b)(4)(B) of the Act in that it sought to
broaden its dispute with Starkey by placing pressure on second-
ary employer Goodell.
The question then becomes was the Union’s bannering activ-
ity picketing or other coercive conduct proscribed by Section
8(b)(4)(ii)(B) of the Act. In NLRB v. Fruit & Vegetables Pack-
ers Local 760 (Tree Fruits), 377 U.S. 58 (1964), the issue be-
fore the Court was whether unions violated Section
8(b)(4)(ii)(B) of the Act when they limited their secondary
picketing of retail stores to an appeal to customers of the stores
not to buy the products of certain firms against which one of
the unions was on strike. The unions used picketers wearing
placards who also distributed handbills at Safeway stores ask-
ing customers not to purchase a certain brand of apples, which
the Court noted was only one of numerous food products sold
in the stores. The pickets were given instructions that they were
forbidden from asking customers not to patronize the stores. In
refusing to find a violation of the Act, the Court stated:
There is nothing in the legislative history prior to the con-
vening of the Conference Committee which shows any con-
gressional concern with consumer picketing beyond that with
the ‘isolated evil’ of its use to cut off the business of a second-
ary employer as a means of forcing him to stop doing business
with the primary employer. When Congress meant to bar pick-
eting per se, it made its meaning clear; for example, Section
8(b)(7) makes it an unfair labor practice ‘to picket or cause to
be picketed . . . any employer . . .” In contrast, the prohibition
of Section 8(b)(4) is keyed to the coercive nature of the con-
duct, whether it be picketing or otherwise. 377 U.S. at 68.

. . . .

When consumer picketing is employed only to persuade cus-
tomers not to buy the struck product, the union’s appeal is
closely confined to the primary dispute. The site of the appeal
is expanded to include the premises of the secondary employ-
er, but if the appeal succeeds, the secondary employer’s pur-
intervene in the Union’s dispute with Starkey. The Union objects in the
handbills to Starkey’s alleged failure to meet area standards in wages
and benefits. The handbills solicit the public to call Goodell and tell
them to do all they can to .change the situation. Thus, the handbills
show it was the Union’s intent to pressure Goodell to cease doing busi-
ness with Starkey as long as Starkey failed to meet the Union’s de-
mands. I do not find the fact that the handbill mentioned Starkey by
name determinative of the impact of the Union’s banner which did not
mention Starkey. By the terms of the parties’ stipulation the message on
the banner was clearly designed to reach a much larger segment of the
public than that of the Union’s handbills, which were only distributed
to passersby upon their specified requests made to union agents.

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 67
chases from the struck firms are decreased only because the
public has diminished its purchases of the struck product. On
the other hand, when consumer picketing is employed to per-
suade customers not to trade at all with the secondary em-
ployer, the latter stops buying the struck product, not because
of a falling demand, but in response to pressure designed to
inflict injury on his business generally. In such case the union
does more than merely follow the struck product; it creates a
separate dispute with the struck employer. 377 U.S. at 72.

In NLRB v. Retail Clerks Local 1001, 447 U.S. 607, 611
(1980), a union reached an impasse during contract negotiations
with Safeco, a title insurance company. The Union then picket-
ed five title companies that derived 90 percent of their income
by distributing Safeco’s products. In concluding the union’s
picketing violated Section 8(b)(4) of the Act, the Court plurali-
ty stated, “the Union’s secondary appeal against the central
product sold by the title companies in this case is reasonably
calculated to induce customers not to patronize the neutral par-
ties at all.” Id. at 615. The Court plurality found the picketing
violated the Act because the picketing if successful presented
the title companies with a choice between survival and sever-
ance of their ties with Safeco thereby violating the statutory ban
on the coercion of neutrals with the object of forcing them to
cease doing business with the primary employer. In addressing
the first amendment issue, the Court plurality stated:

Although the Court recognized in Tree Fruits that the Consti-
tution might not permit ‘a broad ban against peaceful picket-
ing,’ the Court left no doubt that Congress may prohibit sec-
ondary picketing calculated to ‘to persuade the customers of
the secondary employer to cease trading with him in order to
force him to cease dealing with, or to put pressure upon the
primary employer.’ 377 U.S., at 63. Such picketing spreads
labor discord by coercing a neutral party to join the fray. In
Electrical Workers v. NLRB, 341 U.S. 694, 705 (1951), this
Court expressly held that a prohibition on ‘picketing in fur-
therance of (such) unlawful objectives’ did not offend the
First Amendment.10 See American Radio Assn. v. Mobile S.S.
Assn., 419 U.S. 215, 229–231 (1974); Teamsters v. Vogt, Inc.,
354 U.S. 284 (1957). We perceive no reason to depart from
that well-established understanding. As applied to picketing
that predictably encourages consumers to boycott a secondary
business, Sec. 8(b)(4)(ii)(B) imposes no impermissible re-
strictions upon constitutionally protected speech. Id. at 616.

Justice Stevens wrote a concurring opinion in NLRB v. Retail
Clerks Local 1001, supra at 618–619, finding the picketing
violated Section 8(b)(4) of the Act. Justice Stevens stated:

I have little difficulty in concluding that the restriction at issue
10 In Electrical Workers v. NLRB, supra, there was a dispute where a
contractor used a nonunion electrical subcontractor on a job. The elec-
trical workers union only used a single picket, who carried a placard
which read, “This job is unfair to organized labor: I.B.E.W. 501 A.F.
L.” The picketing caused carpenters union members to walk off the job,
and the general contractor replaced the nonunion sub on the job. The
Court held the Union’s conduct of peaceful picketing induced a sec-
ondary boycott in violation of Sec. 8(b)(4) of the Act, and was not
protected speech under Sec. 8(c) of the Act.
in this case is constitutional. Like so many other kinds of ex-
pression, picketing is a mixture of conduct and communica-
tion. In the labor context, it is the conduct element rather than
the particular idea being expressed that often provides the
most persuasive deterrent to third persons about to enter a
business establishment. In his concurring opinion in Bakery
Drivers v. Wohl, 315 U.S. 769, 776–777, Mr. Justice Douglas
stated:
Picketing by an organized group is more than free
speech, since it involves patrol of a particular locality and
since the very presence of a picket line may induce action
of one kind or another, quite irrespective of the nature of
the ideas which are being disseminated. Hence those as-
pects of picketing make it the subject of restrictive regula-
tion.’
Indeed, no doubt the principal reason why handbills contain-
ing the same message are so much less effective than labor
picketing is that the former depend entirely on the persuasive
force of the idea.
The statutory ban in this case affects only that aspect
of the union’s efforts to communicate its views that calls
for an automatic response to a signal, rather than a rea-
soned response to an idea. And the restriction on picketing
is limited in geographical scope to sites of neutrals in the
labor dispute. Because I believe that such restrictions on
conduct are sufficiently justified by the purpose to avoid
embroiling neutrals in a third party’s labor dispute, I agree
that the statute is consistent with the First Amendment.

Thus, Justice Stevens pointed out in his concurrence in a case
involving consumer picketing that picketing sends a signal for
an automatic response to customers or the general public, as
well as to union members who may be working at a common
site.
In Edward J. DeBartolo Corp. v. Florida Gulf Coast Build-
ing Trades Council, 485 U.S. 568, 580 (1988), the union had a
primary dispute with a construction contractor hired by one of
the tenants in a mall to build a department store. The union
distributed handbills at the mall informing customers that one
of the stores in the mall was being built by contractors who
paid their employees substandard wages and benefits and ask-
ing customers not to shop at any of the stores in the mall until
the mall’s owner promised all construction at the mall would be
done by contractors who pay their employees fair wages and
fringe benefits. In finding the union’s activity to be lawful, the
Court noted, “The handbills involved here truthfully revealed
the existence of a labor dispute and urged potential customers
of the mall to follow a wholly legal course of action, namely,
not to patronize the retailers doing business in the mall. The
handbilling was peaceful. No picketing or patrolling was in-
volved.” Id. at 575–576. The Court held, “The case turns on
whether handbilling such as involved here must be held to
‘threaten, coerce, or restrain any person’ to cease doing busi-
ness with another, within the meaning of Section
8(b)(4)(ii)(B).” Id. at 578. The Court stated

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
But more than mere persuasion is necessary to prove a viola-
tion of Section 8(b)(4)(ii(B): that section requires a showing
of threats, coercion, or restraints. Those words, we have said,
are ‘nonspecific, indeed vague,’ and should be interpreted
with ‘caution’ and not given a ‘broad sweep,‘ Drivers, supra
362 U.S., at 290, 80 S.Ct., at 715;” and in applying Section
8(b)(1)(A) they were not to be construed to reach peaceful
recognitional picketing. Neither is there any necessity to con-
strue such language to reach the handbills involved in this
case. There is no suggestion that the leaflets had any coercive
effect on customers of the mall. There was no violence, pick-
eting, or patrolling and only an attempt to persuade customers
not to shop in the mall. 485 U.S. at 578.

The Court in DeBartolo distinguished NLRB v. Retail Store
Employees, supra, stating that the picketing there threatened the
neutral with ruin or substantial loss. 485 U.S. at 579. The Court
ended the DeBartolo decision with the following pronounce-
ment seemingly limiting the breadth of its decision to the type
of handbilling in that case. The Court stated

At the very least, the Kennedy-Goldwater colloquy falls far
short of revealing a clear intent that all nonpicketing appeals
to customers urging a secondary boycott were unfair practices
unless protected by the express words of the proviso. Nor
does that exchange together with the other bits of legislative
history relied on by the Board rise to that level.
In our view, interpreting Section 8(b)(4) as not reach-
ing the handbilling involved in this case is not foreclosed
either by the language of the section or its legislative his-
tory. That construction makes unnecessary passing on the
serious constitutional questions that would be raised by the
Board’s understanding of the statute. 458 U.S. at 588.

Thus, in NLRB v. Fruit & Vegetables Packers Local 760,
(Tree Fruits), 377 U.S. 58, 68 (1964), the Court stated conduct
proscribed by Section 8(b)(4) of the Act is not limited to picket-
ing. The Court stated “the prohibition of Section 8(b)(4) is
keyed to the coercive nature of the conduct, whether it be pick-
eting or otherwise.” There the Court found consumer picketing
at secondary employer to convince customers not to buy a
struck product is closely confined to the primary dispute. In
refusing to find a violation of the Act the Court distinguished
the situation where picketing was designed to persuade custom-
ers not to trade at all with the secondary employer, finding that
in that instance the union does more than follow the struck
product but creates a separate dispute. Similarly, in NLRB v.
Retail Clerks Local 1001, 441 U.S. 607 (1980), the Court found
consumer picketing designed to cause customers not to patron-
ize a secondary employer at all to be violative of Section
8(b)(4) of the Act. While this case involved consumer picket-
ing, Justice Stevens, in a well cited concurring opinion, stated,
“The statutory ban in this case affects only that aspect of the
union’s efforts to communicate its views that calls for an auto-
matic response to a signal, rather than a reasoned response to an
idea. And the restriction on picketing is limited in geographical
scope to sites of neutrals in the labor dispute.” Id. at 618–619.
As Justice Stevens recognized, the presence of a picket line,
sends a signal not just to union members working at a jobsite,
but to consumers in general, who may or may not be union
members, relatives of union members, or who just may have an
aversion to crossing a picket line regardless of the message
being disseminated by those on the line. Justice Stevens also
pointed out that it is the location of the picketing at a secondary
employer’s site that is important. It is also not necessarily the
fear of confrontation, but the symbol of what a picket line rep-
resents that can be found to be coercive under Section 8(b)(4)
of the Act. For, in Electrical Workers v. NLRB, 341 U.S. 694
(1951), a union’s use of a single picketer was found to have
violated Section 8(b)(4) of the Act. In Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building Trades Council, 485 su-
pra, the Court held handbilling at a mall in that instance did not
violate Section 8(b)(4) of the Act. However, the Court noted
the handbills informed customers that one of the stores in the
mall was being built by contractors who paid substandard wag-
es and benefits, and asked customers not to shop at the mall
until the mall’s owner promised all construction would be done
by contractors who paid their employees fair wages and bene-
fits. In finding the conduct was not violative of the Act, the
Court stated, “The handbills involved here truthfully revealed
the existence of a labor dispute.”
In Sheet Metal Workers’ Local 15 (Brandon Regional Medi-
cal Center), 346 NLRB 199, 200 (2006), the Board found the
Respondent union violated Section 8(b)(4)(ii)(B) by holding a
mock funeral procession at a jobsite. The Board majority stated

We agree with our concurring colleague as to the reasons why
this conduct was picketing. However, to the extent that she
implies that picketing requires a physical or symbolic barrier,
we do not necessarily agree. Since the funeral procession was
such a barrier, we need not pass on whether such a barrier is a
sine qua non of picketing. It may be that other conduct, short
of a barrier, can be ‘conduct’ that is picketing or at least ‘re-
straint or coercion’ within the meaning of Section
8(b)(4)(ii)(B).

In fact, the Board and courts have long held that conduct other
than picketing constitutes coercive conduct within the meaning
of Section 8(b)(4)(B) of the Act. In Kentov v. Sheet Metal
Workers Local 15, 418 F.3d 1259, 1264 fn. 6 (11th Cir. 2005)
the court stated:

Coercion under Section 8(b)(4)(ii) broadly includes “nonjudi-
cial acts of a compelling or restraining nature, applied by way
of concerted self-help consisting of a strike, picketing, or oth-
er economic retaliation and pressure in the background of a
labor dispute.” Carpenter Kentucky District Council (Wehr
Constructors), 308 NLRB 1129, 1130, fn. 2 (1992), (quoting
Sheet Metal Workers Local 48 v. Hardy Corp., 332 F.2d 682,
686 (5th Cir. 1964)).

The ninth circuit applied similar principles in Associated Gen-
eral Contractors v NLRB, 514 F.2d 433, 438 (9th

Cir. 1975),
stating

We believe that when Congress used “coerce” in Section
8(b)(4)(B) it did not intend to proscribe only strikes or picket-
ing, but intended to reach any form of economic pressure of a
compelling or restraining nature. (Citations omitted.)

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 69
In Wehr Constructors, supra at 1130, the filing of internal un-
ion disciplinary charges was found to be coercive conduct. In
Service Employees Local 32B-32J v. NLRB, 68 F.3d 490, (D.C.
Cir. 1995), the court enforced a Board order finding that a un-
ion’s demand for arbitration was coercive within the meaning
of Section 8(b)(4) of the Act. In Sheet Metal Workers Local 80
(Limbach Co), 305 NLRB 312, 314–316 (1991), enfd. in rele-
vant part 989 F.2d 515 (D.C. Cir. 1993), a union’s disclaimer of
interest in representing certain employees was found to be co-
ercive under Section 8(b)(4). In Ets-Hokins Corp., 154 NLRB
839, 842 (1965), enfd. 405 F.2d 159 (9th

Cir. 1968), a threat to
cancel a collective-bargaining agreement with a neutral em-
ployer was found to be coercive. In Carpenters (Society Hill
Towers Owner’s Assn.), 335 NLRB 814, 826–829 (2001), enfd.
50 Fed. Appx. 88 (3d

Cir. 2002), broadcasts at a jobsite at ex-
cessive volumes were found to violate the Act; and in Service
Employees Local 399 (William J. Burns Agency), 136 NLRB
431, 436–437 (1962), a mass gathering was found to violate the
Act although no picketing was conducted.
The Board has also long held conduct does not require
marching back and forth to found to be unlawful picketing. In
Lawrence Typographical Union No. 570 (Kansas Color Press),
169 NLRB 279, 283 (1968), enfd. 402 F.2d 452 (10 Cir. 1968),
a respondent union hung a sign on a trailer facing a plant from
which the union sought recognition. Prior to September 19,
1966, strikers engaged in ambulatory picketing. However, fol-
lowing September 19, the same strikers continued to show up at
the plant, four at a time, parked their cars near the trailer, and
spent their entire shift sitting in their cars, standing in the vicin-
ity, making trips to the trailer, walking in front of the plant and
across one of its entrances. In finding this conduct constituted
unlawful picketing it was stated (id. at 283) that:

[T]he Board and the courts have held that patrolling in the
common parlance of movement and the carrying of placards,
are not a sine qua non of picketing. Thus, in Lumber and
Sawmill Workers Local Union No. 2797, (Stoltze Land &
Lumber Co.), 156 388, 394, the Board notes that the defini-
tions of the words ‘picket’ and ‘picketing,’ set forth in Black’s
and Bouvier’s Law Dictionaries and in Webster’s New Inter-
national Dictionary (2d ed.), do not include ‘patrolling or the
carrying of placards (as) a concomitant element.’ And Mr.
Justice Black, in speaking of ‘picketing . . . in 8(b)(4)(ii)(B),’
describes the concept of ‘patrolling’ as encompassing ‘stand-
ing or marching back and forth or round and round… general-
ly adjacent to someone else’s premises . . .’ (Emphasis sup-
plied.) N.L.R.B. v. Fruit and Vegetable Packers & Ware-
housemen Local 760 (Tree Fruits), 377 U.S. 58 at 77 (concur-
ring opinion).
In N.L.R.B. v. Local 182, IBT (Woodward Motors),
314 F.2d 53 (C.A. 2), the court of appeals agreed with the
Board that a union picketed when it representatives sta-
tioned themselves in automobiles parked on the shoulder
of a highway adjacent to a struck plant and placed picket
signs in a snow bank, explained the merits of the dispute
to inquiring persons, and occasionally got out of their cars
to stop deliverymen from coming on the premises. What
the court said in rejecting the Union’s contention that its
agents’ conduct did not constitute picketing, is precisely
applicable to the instant case. The court stated (314 F.2d at
57–58):
Webster’s new International Dictionary (2d Ed.) says that the
verb ‘picket’ in the labor sense means ‘to walk or stand in
front of a place of employment as a picket’ and that the noun
means ‘a person posted by a labor organization at an approach
to the place of work . . . .” Movement is thus not requisite, alt-
hough there was some. The activity was none the less picket-
ing because the Union chose to bisect it, placing the material
elements in snow banks but protecting the human elements
. . . by giving them comfort of heated cars. 11

So in the instant case, Respondent’s conduct was no less picket-
ing because it placed a sign on the Komfy Korner which indi-
cated the purpose of the gathering of the strikers in front of the
Company’s premises or made that purpose apparent by handing
out ‘On Strike’ handbills to all strangers entering the Compa-
ny’s premises or on occasion by placing these handbills (which
were the equivalent of the picket signs reduced in size) against
the window of their parked car so as to be visible to those enter-
ing the premises, and placed the pickets in or around the auto-
mobiles adjacent to the Company’s premises.
In the Lumber & Sawmill Workers Union case, supra, the
Board applied the following test (156 NLRB at 394)

The important feature of picketing appears to be the posting
by a labor organization or by strikers of individuals at the ap-
proach to a place of business to accomplish a purpose which
advances the cause of the union, such as keeping employees
away from work or keeping customers away from the em-
ployer’s business.

See Mine Workers District 2, 334 NLRB 677, 686 (2001), hold-
ing that patrolling and patrolling with carrying placards are not
essential elements of picketing. Rather, “the essential feature of
picketing is the posting of individuals at entrances to a place of
work.” Moreover, the Board has found a union has engaged in
picketing activity by the posting of stationary signs. See Con-
struction & General Laborers Local 301, 260 NLRB 1311,
1312 (1982); and Teamsters Local 182, 135 NLRB 851 fn. 1
(1962), enfd. 314 F.2d 53, 57–58 (2d Cir. 1963), where the
Board stated “the act of placing the usual picket signs in the
snow bank abutting Employer’s premises constituted picketing
within the meaning of the Act. These signs were watched by
Respondent’s agents from a car parked on the shoulder of an
adjacent highway to make sure they were not removed or de-
stroyed during the entire working day.” See also Painters Dis-
trict Council 9 (We’re Associates), 329 NLRB 140, 142 (1999),
and the cases cited therein, holding that “It is well settled that
11 The Second Circuit went on to state in Woodward Motors that
this was still ‘more than speech and establishes a locus in quo that
has far more potential for inducing action or nonaction than the
message the pickets convey.’ Building Service Employers’ Int’l
Union Local 262 v. Gazzam, 339 U.S. 532, 537, 70 S.Ct. 784, 787,
94 L.Ed.1045 (1950). At the very least the Board did not act unrea-
sonably in constructing ‘picket’, a statutory term relating to a sub-
ject within its area of special competence, to include what the Un-
ion did here. (Citations omitted.) See NLRB v. Local 182, IBT
(Woodward Motors), supra at 58.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
patrolling either with or without signs is not essential to a find-
ing of picketing.”
Similarly, in Kentov v. Sheet Metal Workers Local 15, 418
F.3d 1259, 1265 (11th Cir. 2005), the court held

Although the Union did not carry traditional picket signs, it is
well-settled that the existence of placards on sticks is not a
prerequisite to a finding that a union engaged in picketing.
E.g., Mine Workers Dist. 2 (Jeddo Coal Co.), 334 NLRB 677,
686 (2001); Service Employees Local 87 (Trinity Building
Co.), 312 NLRB 715, 743 (1993). Instead, ‘(t)he important
feature of picketing appears to be posting by a labor organiza-
tion… of individuals at the approach to a place of business to
accomplish a purpose which advances the cause of the union,
such as keeping employees away from work or keeping cus-
tomers away from the employer’s business.’ Lumber &
Sawmill Workers Local Union No. 2797 (Stoltze Land &
Lumber Co.,) 156 NLRB 388, 394 (1965).12

In Kentov v. Sheet Metal Workers Local, supra, the court noted
union representatives patrolled in front of a hospital for about 2
hours carrying a large coffin, and played funeral music from
large speakers. The funeral procession was orderly, and ingress
and egress to the hospital was not blocked. The court held “our
focus is whether the Union threatened, coerced or restrained the
hospital within the meaning of the NLRA.”Id. at 1263–1264.
The court held, “This activity could reasonably be expected to
discourage persons from approaching the hospital, to the same
degree, if not more, as would five union agents carrying picket
signs.” The court stated

One of the Union’s objectives in staging the procession was to
exert pressure on the hospital to cease doing business with the
non-union contractors, with whom the Union had a primary
labor dispute. Under these facts, we hold that there is reasona-
ble cause to believe that the Union violated Section
8(b)(4)(ii)(B) of the NLRA.13Id at. 1265–1266.

In Nashville Bldg. & Construction Trades Council, 188
NLRB 470, 471 (1971), an 8(b)(4)(ii)(B) violation of the Act
was found. There, Castner-Knott, a retail store, contracted with
McCrory, a nonunion contractor to build one of Castner-
Knott’s facilities. In that case, the Board held “Respondent
(union) went beyond the limits permitted by the Act when it in
effect picketed Castner-Knott’s customer entrances with ap-
peals for a general consumer boycott, with an object of forcing
or requiring Castner-Knott to cease doing business with nonun-
ion contractors, particularly, McCrory.” The Board noted, “Re-
spondent’s appeals were not limited to such Castner-Knott
merchandise as was produced, or distributed to Castner-Knott,
12 In Kentov v. Sheet Metal Workers Local 15, supra at 1264, fn. 7,
the court distinguished Overstreet v. Carpenters & Joiners of America,
Local 1506, 409 F.3d 1199 (9th

Cir. 2005) from the facts in Kentov. I
do not find here that the Kentov court was adopting the ninth circuit’s
rationale in Overstreet, as opposed to explaining why the Overstreet
decision was not dispositive of the facts in Kentov.
13 While the union in Kentov raised a First Amendment defense, the
court in Kentov found their holding was buttressed by a recent holding
of an administrative law judge that the union’s conduct constituted a
secondary boycott. Id. at 1266, fn. 8.
by McCrory. Indeed, no such merchandise existed. Nor were
the appeals made merely by publicity other than picketing. It is
clear, therefore that neither of the exempting provisos referred
to above is applicable in this case.” The Board cited NLRB v.
Fruit & Vegetable Packers & Warehousemen Local 760 (Tree
Fruits), 377 U.S. 58 for the proposition of proscribing

. . . . such consumer picketing as we have here, since the pick-
eting was not limited to the merchandise produced or distrib-
uted to the retail store by another person with whom the union
had a legitimate primary labor dispute. The Court stated (at
p.63) that a ‘union appeal to the public at the secondary site
not to trade at all with the secondary employer goes beyond
the goods of the primary employer, and seeks the public’s as-
sistance in forcing the secondary to cooperate with the union
. . .

In Meat & Allied Food Workers Local 248, 230 NLRB 189 fn.
3 (1977), enfd. 571 F.2d 587 (7th Cir. 1978), it was stated

It is well established that the union engaging in consumer
product picketing has the burden of insuring that its actions do
not affect the secondary employer’s business beyond the sale
of the primary product, and that a union cannot shift its bur-
den of struck product identification to the public. Atlanta Ty-
pographical Union No. 48 (Times-Journal, Inc.), 180 NLRB
1014 (1970); see also Bedding, Curtain & Drapery Workers
Union, Local 140, United Furniture Workers of America,
AFL–CIO (U.S. Mattress Corp.), 164 NLRB 271 (1967). In
the instant case both McDonald’s and the Sentry Stores sold
meats other than that produced by MIMPA members. Refer-
ences to scab meat or scab beef were not sufficient to advise
customers as to the products they were not to buy, or the
name of the primary employer. Contrary to our dissenting col-
league’s assertion, the distribution of leaflets which identified
the primary employer and the struck product do not cure the
picketing. ‘The realities of the situation demand that the legal-
ity of the Union’s appeal be judged by a reading of the signs.
The prohibitions of 8(b)(4)(B) are applicable unless the picket
signs themselves adequately inform potential customers of the
actions they are asked to take.’ Atlanta Typographical Union,
supra at 1016.

See also San Francisco Typographical Union No. 21, 188
NLRB 673, 680 (1971), enfd. 465 F.2d 53 (9th

Cir. 1972),
holding that permissible product picketing is limited to prod-
ucts adequately identified on the picket sign, and cannot en-
compass the entire business of the secondary employer; and
Salem Building Trades Council, 163 NLRB 33, 36 (1967),
enfd. 388 F.2d 987 (9th

Cir. 1968), where a violation was found
where picketing was not sufficiently identified to the primary
employer, and where the construction had ended but the picket-
ing had a goal of preventing secondary employers from engag-
ing in future business with the primary employer who was the
construction contractor.
I find the Union engaged in an unlawful secondary boycott
against Goodell in violation of Section 8(b)(4)(ii)(B) by engag-
ing in coercive picketing beginning on August 9, and continu-
ing thereafter when it posted a 20 by 4 foot banner near the
entrance to Goodell’s office building reading, in large print,

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 71
“Shame On Goodell DeVries, Leech & Dann, LLP” appearing
with the words “LABOR DISPUTE,” manned by two to four
union agents. The evidence reveals the Union engaged in am-
bulatory picketing at the site, during the time period of May 26
to July 15, against primary employer Starkey, with picket signs
reading, “Starkey Construction Company, Incorporated does
not pay the area standard wage and benefits, the Mid-Atlantic
Regional Council of Carpenters.” The signs also contained the
statement, “We have a labor dispute with the above-named
company. We are appealing only for the public, the consumer.
We are not seeking to induce any person to cease work or re-
fuse to make delivery.” The Union’s picketing activity against
Starkey included a large inflatable rat about a story and one half
tall, sitting in a truck. Picketers walked in an oval line chanting,
“Who’s the rat? Starkey. Where’s the rat? South Street.” Goss
credibly testified he heard Goodell’s name being used in the
chant on one occasion. The Union continued its picketing activ-
ity at the site, during the period of July 18 to August 5. The
Union used the same picket sign, but substituted the name Wil-
helm for Starkey.14 Thus, the Union engaged in aggressive
ambulatory picketing near the entrance to Goodell’s office
building during the period of May 26 to August 5.
On August 9, the Union ceased its ambulatory picketing at
the site, but continued with its course of conduct by posting a
large sign near the entrances to Goodell’s office building nam-
ing secondary Goodell the target of its labor dispute, while
omitting reference to Starkey, the primary employer. The ban-
ner was accompanied by two to four union agents. While the
Union was notified on October 25, that Starkey had completed
its work at the site, the Union’s posting of the banner continued
thereafter, and was ongoing at the time of the unfair labor prac-
tice trial on December 21. I find the Union’s banner was a form
of picketing and that it was a continuation of its prior picketing
activity, and that it was coercive conduct against a secondary or
neutral employer in violation of Section 8(b)(4)(ii)(B) of the
Act. In NLRB v. Fruit & Vegetables Packers Local 760 (Tree
Fruits), 377 U.S. 58, 77 (1964), Justice Black, in a concurring
opinion concerning picketing stated the concept of “patrolling”
encompasses “standing or marching back and forth or round
and round . . . generally adjacent to someone else’s premises
. . .” (Emphasis supplied.) Similarly, the Board and some
courts have held that patrolling and carrying placards are not
essential elements of picketing. See Mine Workers District 2,
334 NLRB 677, 686 (2001); Painters District Council 9 (We’re
Associates), 329 NLRB 140, 142 (1999); Laborers Local 301,
260 NLRB 1311, 1319 (1982); Lawrence Typographical Union
No. 570 (Kansas Color Press), 169 NLRB 279, 283 (1968),
enfd. 402 F.2d 452 (10th Cir. 1968); Lumber & Sawmill Work-
ers Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388,
394; and Teamsters Local 182, 135 NLRB 851 fn. 1, enfd. 314
F.2d 53, 57–58 (2d Cir. 1963). Cf. Sheet Metal Workers Local
14 Eisner testified Wilhelm did not perform work for Goodell’s con-
struction, but was working for another tenant in the building. I do not
find this to be determinative, as members of the public would have no
way of knowing this, and all passersby would observe was the Union
engaging in ambulatory picketing at the site during the period of May
26 to August 5.
15 (Brandon Medical Center), 346 NLRB 199, 200 (2006); and
K Mart Corp., 313 NLRB 50, 53 (1993), which viewed the
totality of union’s conduct which included the posting of ban-
ners as picketing.
I also find the Union’s picketing by use of its large banner
manned by union agents near the entrance to Goodell, a neutral
employer’s offices, was coercive in that by the terms of its sign,
the Union was seeking a total consumer boycott of Goodell’s
services. The banner states Goodell was the subject of a labor
dispute without further explanation to the public. The banner
did not name primary employer Starkey, and it remained posted
and attended by agents of the Union long after Starkey’s work
had been completed at the site. In similar circumstances, the
Board has held that a union is engaged in an unlawful consumer
boycott of the secondary employer, because the union is not
confining its dispute to the product sold or produced by the
primary employer, and as far as the public is aware the Union is
seeking a total boycott of the services of secondary or neutral
employer Goodell. See, Meat & Allied Food Workers Local
248, 230 NLRB 189 fn. 3 (1977), enfd. 571 F.2d 587 (7th

Cir.
1978); Nashville Building Trades Council, 188 NLRB 470, 471
(1971); San Francisco Typographical Union No. 21, 188
NLRB 673, 680 (1971), enfd. 465 F.2d 53 (9th Cir. 1972); and
Salem Building Trades Council, 163 NLRB 33, 36 (1967),
enfd. 388 F.2d 987 (9th

Cir. 1968).15 The Union’s conduct had
an even greater impact on Goodell than just loss of future busi-
ness, because as Goss credibly testified clients of Goodell who
continued to use the law firm’s services had the possibility of
having those services compromised in litigation at the nearby
Courthouse as a result of the Union’s actions.
If the Board were to conclude the Union did not engage in
picketing here, I would still find that the posting of its large
banner, accompanied by two to four union agents, coming on
the heels of lengthy ambulatory picketing at the site, and omit-
ting from the banner that Starkey was the subject of it labor
dispute, constituted coercive conduct against Goodell. The
posting of a banner at Goodell’s premises that is much larger
than the ordinary picket sign, accompanied by two to four un-
ion agents, constitutes a form of conduct by the Union that is
more compelling than handbilling, for otherwise the Union
would have merely handbilled. Rather, a large sign manned by
union agents stating “shame on” Goodell with the words “labor
dispute,” could only be read by passersby that the Union was
seeking a boycott of Goodell’s services. In this regard the ban-
ner, as does the traditional picket sign, sent a signal to members
of the public not to use Goodell’s services since the banner
failed to truthfully advise the public that the Union’s primary
dispute was with Starkey, or even name Starkey. Since by the
terms of the parties’ stipulation, the banner could be held in
place by two union agents, using up to four union agents at a
time was clearly designed to accomplish more than a mere
posting, but rather was designed to create a presence at the site.
I find the banner was coercive by design in that the Union was
15 The Union’s distribution of handbills naming Starkey as the sub-
ject of its distribute does not remedy the omission of Starkey’s name
from the Union’s banner. See, Local 248 Meat & Allied Food Workers,
supra, at 189 fn. 3.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
intentionally mimicking traditional picketing close to the en-
trance of Goodell’s office building, and thereby sending the
same signal as picketing to consumers to avoid Goodell’s ser-
vices. I find the Union’s conduct here was more coercive in
certain ways than a traditional picket line, which can be
manned by as little as one person, in that by the shear size of
the banner it could be read by many more people than the tradi-
tional picket sign. I find the Union’s bannering activity is in-
genious conduct by the Union designed to replicate traditional
picketing at the site of a neutral employer, with the purpose of
coercing Goodell by loss of business and by compromising
Goodell’s product, which is legal services, into refraining from
doing business with Starkey. It is plainly coercive conduct by
the Union, designed to circumvent the secondary boycott provi-
sions of the Act. See Kentov v. Sheet Metal Workers Local 15,
418 F.3d 1259, 1265–1266 (11th Cir. 2005).
In sum, I find the Union’s conduct in posting of the large
banner, accompanied by two to four union agents, at the prem-
ises of a neutral employer Goodell, while omitting name of the
company with which the Union had a primary labor dispute
from the banner was coercive conduct designed to enmesh
Goodell in the Union’s labor dispute with Starkey and was
conduct violative of Section 8(b)(4)(ii)(B) of the Act, whether
or not it is concluded the Union was engaged in formal picket-
ing by its actions, although I have also concluded the Union did
engage in picketing by its actions. It is by now clear that coer-
cive conduct within the meaning of that section of the Statute is
not limited to picketing. See NLRB v. Fruit & Vegetables Pack-
ers Local 760 (Tree Fruits), 377 U.S. 58, 68 (1964); Service
Employees v. NLRB, 68 F.3d 490 (D.C. Cir. 1995); Kentov v.
Sheet Metal Workers Local 15, 418 F.3d 1259, 1264 fn. 6
(2005); Sheet Metal Workers Local 15 (Brandon Regional
Medical Center), 346 NLRB 199, 200 (2006), Associated Gen-
eral Contractors v. NLRB, 514 F.2d 433, 438 (1975); Carpen-
ters (Society Hill Towers Owner’s Assn.), 335 NLRB 814, 826–
829 (2001), enfd. 50 Fed.Appx. 88 (3d

Cir. 2002); Carpenters
Kentucky District Council (Wehr Constructors), 308 NLRB
1129, 1130 fn. 2 (1992); Service Employees Local 32B-32J v.
NLRB, 68 F.3d 490, (D.C. Cir. 1995), Sheet Metal Workers
Local 80 (Limbach Co), 305 NLRB 312, 314–316 (1991), enfd.
in relevant part 989 F.2d 515 (D.C. Cir. 1993); Ets-Hokins
Corp., 154 NLRB 839, 842 (1965), enfd. 405 F.2d 159 (9th

Cir. 1968); and Service Employees Local 399 (William J. Burns
Agency), 136 NLRB 431, 436–437 (1962). Since I find the
Union’s posting a large banner at the site of a neutral employer,
manned by union agents, while omitting the name of the prima-
ry employer from the banner is an effort to replicate a more
traditional picket line and was conduct designed to coercively
enmesh Goodell in the Unions’ dispute with Starkey, I do not
find the statutory prohibition of that conduct runs counter to the
First Amendment. In fact, the Union has handbills at the site
which truthfully advise the public of its dispute with Starkey
asking to consumers to contact Goodell regarding that dispute.
The General Counsel has not issued complaint against the Un-
ion for the distribution of those handbills at the site because it is
that conduct which was sanctioned by the Supreme Court’s
DeBartolo decision.
The Union, in its brief, places great reliance on the court’s
two to one majority decision in Overstreet v. Carpenters Local
1506, 409 F.3d 1199, 1208 (9th Cir. 2005), (Overstreet), deny-
ing the Region’s request for 10(l) injunctive relief in a Carpen-
ters Union bannering case.16 The court majority in Overstreet
stated, “We conclude that interpreting Section 8(b)(4)(ii)(B) to
prohibit the Carpenters’ activity would pose a ‘significant risk’
of infringing First Amendment rights.” Id. at 1212. The court
majority stated, “In the absence of any clear basis for constru-
ing Section 8(b)(4)(ii)(B) as covering bannering generally,
Overstreet can prevail only if the Carpenters’ actions in particu-
lar were sufficiently ‘intimidating,’ DeBartolo, 485 U.S. at 580,
to ‘threaten, coerce or restrain’ potential customers of the Re-
tailers.” Id. at 1213.17 The court majority also found the Gen-
eral Counsel erred by labeling the Carpenter’s conduct as “sig-
nal picketing” stating that conduct constitutes an implicit in-
struction to union members, including employees of secondary
businesses, and free speech protections do not apply to a mere
signal to members, or to members of affiliates to engage in an
unfair labor practice such as a strike proscribed by Section
8(b)(4)(ii)(A). The court majority stated that to turn the defini-
tion of signal picketing to include any passerby would turn the
specialized concept of any signal picketing into a category syn-
onymous with any communication requesting support for in a
labor dispute. Id. at 1215–1216. The court majority in Over-
street also rejected the General Counsel’s argument that the
Union’s only using the name of the retailer and the term labor
dispute on the Union’s banner was fraudulent because it im-
plied to the public that the Carpenters had a primary labor dis-
pute with the retailers. The court majority concluded the term
labor dispute is not limited to a dispute with a primary employ-
er citing the definition for labor dispute in Section 2(9) of the
Act. The court majority concluded that since the union had a
labor dispute with the retailer for using contractors paying be-
low rate, the unions’ banner did not contain false statements.
I respectfully take issue with several of the conclusions
reached by the court majority in Overstreet. In making the as-
sertion that the General Counsel could only prevail only if the
Carpenters’ actions in particular were sufficiently ‘intimidat-
ing,’ to ‘threaten, coerce or restrain’ potential customers of the
Retailers,” the court majority failed to address whether the loss
of business as a result of the signal and/or presence of banner-
16 As set forth above, while that decision is instructive, it is not bind-
ing on me because I am bound by Board law, and the statutory scheme
calls for litigation before Board as reviewed Association Local 15, 418
F.3d 1259, 1262–1263 (2005); and NLRB v. Denver Bldg. & Construc-
tion Trades Council, 341 U.S. 675, 681–682 (1951). Mover, the Over-
street case involved facts different from those in the present case as the
court majority noted the Carpenters Union there placed banners at
significant distances from the majority of involved retail establish-
ments, scores if not hundreds of feet, and there was no finding there by
the court that the union had engaged in ambulatory picketing at the site
before posting the banners.
17 In making this assertion, the court majority in Overstreet rejected
the contention that the union’s bannering activity constituted picketing.
However, for the reasons and case law set forth above, I have reached
an opposite result concluding the bannering activity here did constitute
picketing, and even if not it constituted more conduct coercive than
handbilling.

CARPENTERS MID-ATLANTIC REGIONAL COUNCIL (STARKEY CONSTRUCTION) 73
ing activity would coerce or restrain a neutral employer. See,
Kentov v. Sheet Metal Workers’ Local 15, supra at 1265—
1266. For example, it was not the picketing alone that was
found to violate the Act in NLRB v. Retail Clerks Local 1001,
447 U.S. 607, 611 (1980). There, the Court plurality stated,
“the Union’s secondary appeal against the central product sold
by the title companies in this case is reasonably calculated to
induce customers not to patronize the neutral parties at all.” Id.
at 615. It was the totality of the conduct that was considered by
the Court, including the message, that warranted the finding of
a statutory violation. This is illustrated by the prior finding In
NLRB v. Fruit & Vegetables Packers Local 760 (Tree Fruits),
377 U.S. 58 (1964), holding consumer picketing against neutral
employers limited to appeals to customers not to purchase spec-
ified products was found not to violate the Act. In both instanc-
es, there was picketing, but it was not the picketing that deter-
mined whether a violation occurred. Rather, it was the impact
of that picketing based on the message as to whether it coerced
or restrained the neutral employer which was the determining
factor with the goal of causing that employer to cease doing
business with the primary employer. See Meat & Allied Food
Workers Local 248, 230 NLRB 189 fn. 3 (1977), enfd. 571
F.2d 587 (7th Cir. 1978); Nashville Building Trades Council,
188 NLRB 470, 471 (1971); San Francisco Typographical
Union No. 21, 188 NLRB 673, 680 (1971), enfd. 465 F.2d 53
(9th Cir. 1972); and Salem Building Trades Council, 163
NLRB 33, 36 (1967), enfd, 388 F.2d 987 (9th Cir. 1968).
I find, as set forth above, that the posting of a large sign
manned by two to four union agents near the entrance of a
business naming that business as the subject of a labor dispute
sends a signal to members of the public that the Union is pick-
eting that business, and unless otherwise explained by the sign,
seeking a total boycott of that business.18 I attribute more to the
general public than the Overstreet majority was willing to do,
in that I find that most passersby understand the symbolic con-
cept of picketing, and that many will react to that concept rather
than the actual message being broadcast. I find the posting of a
large sign at the situs of a dispute, manned by union members,
is conduct that is a form of picketing and would be recognized
as such by the general public. I find the posting of the sign
would send a signal to most members of the public that the
Union was asking them to honor a picket line against the named
entity. As Justice Stephens stated in NLRB v. Retail Clerks
Local 1001, 441 U.S. 607, 618–619 (1980), a case involving
consumer picketing, “the very presence of a picket line may
induce action of one kind or another, quite irrespective of the
nature of the ideas which are being disseminated.” Justice Ste-
vens went on to state, “The statutory ban in this case affects
only that aspect of the union’s efforts to communicate its views
that calls for an automatic response to a signal, rather than a
reasoned response to an idea.”
I also respectfully take issue with the Overstreet majority’s
application of the term “labor dispute” to secondary employers
18 Since I find the Union’s omission of the Starkey’s name from its
banner was a component of its coercive conduct towards Goodell, I do
not need to address the General Counsel’s alternative contention in the
complaint that such omission constituted fraudulent speech.
in the 8(b)(4) context. In Sheet Metal Workers Local 7 345
NLRB 1322, 1324 (2005), the Board gave the following defini-
tion of the term “labor dispute” as referred to under Section
8(b)(4)(ii)(B) of the Act:

The Act draws a distinction between picketing directed at a
primary employer—an employer with whom the union has a
labor dispute—and picketing directed at a neutral or second-
ary employers who have no dispute with the union in order to
force those employers to stop doing business with the primary
employer. Section 8(b)(4)(ii)(B) ‘makes it unlawful for a la-
bor organization or its agents to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting
commerce, where an object thereof is forcing or requiring any
person to cease doing business with any other person.’ (Cita-
tions omitted.)19

In my view the Board’s definition is consonant with the Su-
preme Court’s statement regarding the purpose of Section
8(b)(4) of the Act, which was enacted through amendments to
the Statute, and subsequent to the definition in Section 2(9) of
the Act. Thus, the Court has stated that Section 8(b)(4) reflects,
“the dual congressional objectives of preserving the right of
labor organizations to bring pressure to bear on offending em-
ployers in primary labor disputes and of shielding unoffending
employers and others from pressure in controversies not their
own.” NLRB v. Denver Building Trades Council, 341 U.S. 675,
692 (1951). Thus, the dissent in the Overstreet case asserted the
Regional Director had sufficient likelihood of prevailing on the
fraudulent speech claim to warrant a granting of a preliminary
injunction under the ALJ’s finding and decision. The dissent
stated:

Many people, because of their sympathies or their obligations
as union members, will not patronize firms whose employees
are engaged in disputes over union recognition or terms of
employment. See, Overstreet v. United Brotherhood of Car-
penters and Joiners of America, Local Union No.1506, supra
at 1219.

The dissent noted the union continued to post its banners long
after the firms had finished their work and left, “so the banners
and their ‘shame’ message were present even when there was
no work going on at the sites to which the union had any objec-
tion.” Id at 1219. The dissent noted, citing the opinion of the
administrative law judge in that case, that the only message that
could reasonably be conveyed to readers of the banners was
19 In Sheet Metal Workers’ Local 7 supra at 1324, the Board repeated
the Moore Dry Dock standards, for lawful primary picketing, one of
which is “the picketing discloses clearly that the dispute is with the
primary employer.” In the instant case, the Union cites Service Employ-
ees Local 399 (Delta Air Lines), 293 NLRB 602 (1989), for the propo-
sition that omitting the name of the primary employer from the Union’s
banner was lawful. However, the Board has made clear the standards
set forth in the Delta Airlines case apply only to lawful handbilling.
See, Service Employees Local 254 (Womens & Infants Hospital), 324
NLRB 743, 749 (1997), noting, “the carrying or wearing signs and
placards places Respondent’s activities beyond the mere dissemination
of ideas. Whether intended or not, the signs may induce action by em-
ployees or students without regard to their message.” See also, Team-
sters Local 917 (Industry City), 307 NLRB 1419 fn. 3 (1992).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
that the respondent unions had primary labor disputes with
neutrals named on the banners and that those neutrals were not
treating their employees properly. The dissent quoted the ad-
ministrative law judge in concluding the union had the intent of
causing targeted neutral employers such discomfiture through
the banners that persons would cease doing business with pri-
mary employers or influence other neutral employers or per-
sons to cease doing business with primary employers.
In sum, I find the Union is engaged in an unlawful secondary
boycott in violation of Section 8(b)(4)(ii)(B) of the Act against
Goodell by the posting of a large banner, manned by two to
four union agents, near the entrance to Goodell’s premises la-
beling Goodell, a neutral employer, as the subject of a labor
dispute, omitting Starkey’s name from the banner, and main-
taining that banner long after Starkey, the employer with which
the Union had the dispute had ceased work at the site. The Un-
ion’s conduct was picketing or other coercive conduct as it sent
a strong signal to members of the public to engage in a boycott
of Goodell’s services, particularly here where the Union’s large
banner failed to explain that its labor dispute was with Starkey,
the primary employer. The Union’s conduct occurred against
the backdrop in which it had previously had engaged in lengthy
and aggressive ambulatory picketing at the site, and it not only
served as a signal to potential customers who used the law
firms services, but it impacted on the ability of the law firm to
perform those services for clients who remained loyal to the
law firm.
CONCLUSIONS OF LAW
1. Respondent, Mid-Atlantic Regional Council of Carpen-
ters, by picketing at the Alex Brown Building, One South
Street, Baltimore, Maryland, from August 9, 2005, and thereaf-
ter, with a banner which failed to identify Starkey Construction
Co., Inc. as the employer with which the Union had a primary
labor dispute, engaged in coercive conduct with an object of
placing pressure on Goodell, DeVries, Leech & Dann, LLP,
and other persons, to cease doing business with Starkey Con-
struction Co., Inc., in violation of Section 8(b)(4)(ii)(B) of the
Act.
2. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]