Southwest Regional Counsel of Carpenters (Richie's Installations Inc.)

National Labor Relations Board - Board Decisions

Oct 7, 2010

355 N.L.R.B. 1445 (N.L.R.B. 2010)

CARPENTERS SOUTHWEST REGIONAL COUNCIL (RITCHIE’S INSTALLATIONS)

355 NLRB No. 227
1445
Southwest Regional Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America and Richie’s Installations, Inc.

Carpenters Local No. 803, United Brotherhood of
Carpenters and Joiners of America and
Dearden’s and LGC Builders, Inc., Fullmer,
KCB Builders, and GMA, Parties in Interest.

Carpenters Local No. 1506, United Brotherhood of
Carpenters and Joiners of America and Catholic
Healthcare West d/b/a San Gabriel Valley
Medical Center and Pacific Building Group,
Party in Interest.

Carpenters Local No. 1506 United Brotherhood of
Carpenters and Joiners of America; Southwest
Regional Council of Carpenters, United Broth-
erhood of Carpenters and Joiners of America
(Brady Company of San Diego) and Guident
Corporation. Cases 21–CC–3337, 21–CC–3343,
21–CC–3345, and 21–CC–3348
October 7, 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, coer-
cion, 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,2 and conclusions,

1 On August 22, 2005, Administrative Law Judge John J. McCarrick
issued the attached decision. The General Counsel filed exceptions and
a supporting brief. The Respondents Unions filed a joint answering
brief.
We correct an inadvertent error by the judge, who stated that the
banner at the premises of secondary employer Guidant Corporation
read “Shame on Argent.” The record shows that the banner, consistent
with the handbill, read “Shame on Guidant.”
2 We find merit in the exception of the General Counsel that the
judge erred in dismissing the complaint allegation in Case 21–CC–3348
that the Respondent Unions violated Sec. 8(b)(4)(i)(B). In Case 21–
CC–3348, the General Counsel alleged that certain conduct of the Un-
ions at the premises of Charging Party Guidant Corporation served to
induce and encourage employees to cease performing work. On June
13, 2005, the judge granted the General Counsel’s motion to sever the
and to adopt his recommended Order dismissing the
complaint.
We find that the Unions’ conduct in this case was, for
all relevant purposes, the same as the conduct found law-
ful in our recent decisions in Carpenters Local 1506 (Eli-
ason & Knuth of Arizona, Inc.) (Eliason), 355 NLRB No.
159 (2010); Carpenters Local 506 (Marriott Warner
Center Woodland Hills), 355 NLRB 1346 (2010); and
Carpenters Local 1506 (AGC San Diego Chapter), 355
NLRB 1151 (2010) (AGC).
In both Eliason and AGC, the parties stipulated that
union agents held the banners stationary; the Board con-
cluded in both cases that the display of stationary ban-
ners did not constitute picketing or other “threatening,
coercing or restraining” conduct proscribed by Section
8(b)(4)(ii)(B). In this case, the General Counsel argues
in his exceptions that the banner displays constituted
picketing because the banners were moved in several
instances. The judge, however, correctly found that the
movement was de minimis. The parties stipulated that the
individuals holding the banners “did not engage in . . .
marching, or similar conduct.” Moreover, as the judge
found, the movement was not continuous or even sus-
tained. Rather, the movement was simply to carry a ban-
ner to the place where it was then displayed, to move a
banner from one place to another to avoid alleged tres-
pass or other alleged obstruction, and to keep those hold-
ing the banner out of the sun. Given that the General
Counsel does not argue that the movement was not so
limited, we agree with the judge’s conclusion that these
momentary movements of the banners were de minimis,
do not constitute the type of patrolling that is an element
of picketing, and do not distinguish this case from either
Eliason or AGC.

relevant complaint paragraphs and remand the matter to the Regional
Director for approval of an informal settlement agreement between the
parties. Accordingly, we do not adopt the judge’s dismissal of this
allegation because it was no longer before him for his decision.
The General Counsel in his exceptions argues that at one location
“the banner was a continuation of Respondents’ earlier picketing,
which various witnesses testified had occurred at this site.” The Gen-
eral Counsel does not, however, point to any specific testimony or any
other evidence in the record. The judge made no finding of prior pick-
eting and the General Counsel did not except to that failure (despite
specifically excepting to the judge’s failure to find other facts). The
limited testimony about prior picketing does not specify the dates of the
picketing, the precise location of the picketing, or the nature of the
picketing. Without an exception to the failure to find prior picketing,
specifying what the judge should have found concerning prior picketing
(for example, when it occurred, precisely where it occurred, and what
type of picketing it was), and pointing to testimony or other evidence in
the record supporting such findings, we cannot reach the General
Counsel’s legal argument.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1446
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 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 Respondents.
The predominate element of such bannering is confronta-
tional conduct, rather than persuasive speech, designed to
promote a total boycott of the neutral employers’ busi-
nesses, and thereby to further an objective of forcing
those employers to cease doing business with the primary
employers in the labor dispute. Like picketing, this ban-
nering activity is the precise evil that Congress intended
to outlaw through Section 8(b)(4)(ii)(B), and the pro-
scription of this conduct raises no Constitutional con-
cerns. I therefore dissent from my colleagues’ failure to
enforce the Act as intended.

Ami Silverman, Esq., for the General Counsel.
Daniel Shanley, Esq. (DeCarlo & Connor), of Los Angeles,
California, on behalf of Respondents, Southwest Regional
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America; Carpenters Local 803, United
Brotherhood of Carpenters and Joiners of America; Carpen-
ters Local 1506, United Brotherhood of Carpenters and
Joiners of America.
Ronald Klepetar, Esq. (Jenkins & Gilcrest), of Los Angeles,
California, on behalf of Charging Party Richie’s Installa-
tions, Inc.
John D. Collins, Esq. (Sheppard, Mullin, Richter, & Hampton),
of San Diego, California, on behalf of Charging Party
Dearden’s.
Stephen Lueke, Esq. (Ballard, Rosenberg, Golper & Savitt), of
Universal City, California, on behalf of Charging Party
Catholic Healthcare West.
Scott J. Witlin, Esq. (Ogletree, Deakins, Nash, Smoak & Stew-
art), of Los Angeles, California, on behalf of Charging
Party Guidant.
DECISION
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Los Angeles, California, on June 13–14, 2005,
based on separate complaints consolidated on December 7,
2004 by the Regional Director for Region 21. The complaint in
Case 21–CC–3337 issued on January 30, 2004, based on an
unfair labor practice charge filed on November 4, 2003, by
Richie’s Installations, Inc. (Richie’s). The complaint in Case
21–CC–3343 issued on May 5, 2004, based on an unfair labor
practice filed on March 10, 2004, by Dearden’s. The complaint
in Case 21–CC–3345 issued on June 8, 2004, based on an un-
fair labor practice filed on April 13, 2004, by Catholic Health-
care West d/b/a San Gabriel Valley Medical Center (CHW).
The complaint1 in Case 21–CC–3348 issued on November 30,
2004, based on an unfair labor practice filed by Guidant Corpo-
ration (Guidant) on October 7, 2004, and amended on Novem-
ber 22, 2004. Generally, the complaints allege that Respon-
dents’ bannering activities violated Section 8(b)(4)(i) and
(ii)(B) of the Act. Respondents filed timely answers to the
complaints denying any wrongdoing and contend that their
activity is protected by the first amendment of the United States
Constitution.
On the entire record herein, including the stipulation, and the
briefs from the General Counsel, Respondents, and Charging
Parties, I make the following
FINDINGS OF FACT2
I. JURISDICTION3
Charging Party Richie’s, a California corporation, is engaged
in the installation and assembly of furniture and has annually
provided services valued in excess of $50,000 directly to em-
ployers engaged in commerce.
Charging Party Dearden’s, a California corporation with of-
fices located at 700 South Main Street, Los Angeles, California,
and 117 North Broadway, Santa Ana, California, has been en-
gaged in the retail sale of furniture, electronics, appliances, and
jewelry. In the course of its business Dearden’s has annually
had gross revenues in excess of $500,000 and has purchased
and received goods in excess of $50,000 directly from points
located outside the State of California.
Charging Party CHW, a California nonprofit corporation
with a facility located at 438 West Las Tunas Drive, San
Gabriel, California, and a regional office located in Pasadena,
California, has been engaged in the operation of an acute care
hospital. In the course of its business at the San Gabriel facil-
ity, CHW has annually had gross revenues in excess of
$250,000 and has purchased goods valued in excess of $50,000
directly from points located outside the State of California.
Based on the above, as well as the parties’ stipulation, there is
no dispute that each of the Charging Parties 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
Based on the parties’ stipulation, I find that Respondents and

1 I granted the General Counsel’s motion to sever complaint pars.
8(a)–(d) and remanded them to the Regional Director for approval of an
informal Board settlement
2 The parties entered into a stipulation of facts that sets forth the
nondisputed facts in this case. Witnesses were called regarding the sole
disputed facts concerning the location of banners at Dearden’s down-
town Los Angeles facility and the location of the banner at Guidant’s
Temecula facility.
3 Jurisdictional facts were part of the stipulation noted above and all
parties stipulated to facts reflecting Board jurisdiction.
CARPENTERS SOUTHWEST REGIONAL COUNCIL (RITCHIE’S INSTALLATIONS) 1447
each of them is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are not in significant dispute. The Gen-
eral Counsel has presented testimony dealing with the location
of banners to establish the ambulatory nature of the bannering.
A. Common Facts
There are certain facts that are common to each of the sites
where Respondents conducted bannering activities. The banner-
ing took place at the Argent, Dearden’s, CHW, and Guidant
facilities. Argent, Dearden’s, CHW, and Guidant contracted
with general contractors or suppliers who in turn subcontracted
work to subcontractors with whom Respondents had primary
labor disputes: LGC Builders, Inc., Fullmer, KCB Builders,
GMA, Pacific Building Group, Brady Company of San Diego
(Brady’s), and Richie’s. At the Argent, Dearden’s, CHW, and
Guidant facilities Respondents caused stationary white banners
to be placed which were about 3 to 4 feet high and 20 feet long.
The banners which faced out toward public streets had large
black lettering at either end together with larger red letters in
the center which read:

LABOR SHAME ON (NAME OF) LABOR
DISPUTE THE NEUTRAL) DISPUTE

The banners were held in place by at least two of Respondents’
representatives and no more individuals than was necessary to
physically hold the banners. The banners were generally main-
tained in a stationary position. There was no chanting, march-
ing, yelling or similar conduct while the banners were dis-
played. Handbills were distributed by Respondents’ representa-
tives at the Dearden’s, and Guidant facilities to passersby who
asked about the banners. It was stipulated that Respondents’
bannering and handbilling activity pertained to the persons with
whom they had a primary dispute performing work at the Ar-
gent, Dearden’s, CHW, and Guidant worksites.
To facilitate the organization of this decision, the facts con-
cerning each site where the banners were displayed will be
discussed separately.
B. The Argent Site
Argent is a mortgage lender with an office in Orange, Cali-
fornia. Argent procured office furniture from Herman Miller,
Inc. (Miller), a manufacturer of office furniture. Miller engaged
Charging Party Richie’s to install its furniture at the Argent
facility. Respondents are not recognized or certified as the col-
lective-bargaining representative of any employees employed
by Argent or Miller. Respondents’ primary labor dispute is with
Richie’s. Beginning about October 14, 2003, Respondent
Southwest Regional Council of Carpenters (Regional Council)
established and maintained a banner in front of Argent’s Or-
ange, California facility. The white banner was about 20 feet
long and 3 feet high. In the center of the banner in red capital
letters about 18 inches high were the words “SHAME ON
ARGENT MORTGAGE.” At each end of the banner in black
capital letter about 6 inches high were the words “LABOR
DISPUTE.” The banner was displayed daily from about 9:30
a.m. to about 12 noon and was held in place by two to four of
Respondents’ representatives. The banner was located on the
sidewalk in front of the jobsite, Argent’s Orange, California
facility. The sidewalk leads from the parking structure used by
tenants and customers of the Orange County building where
Argent is located.
C. The Dearden’s Sites
Charging Party Dearden’s is a retailer of furniture, electron-
ics, appliances and jewelry at its offices in Los Angeles and
Santa Ana, California. Dearden Properties and Rancho Amigos
Investors, Inc. (Rancho), lessors of commercial real property,
agreed to construct a warehouse for Dearden’s. On October 14,
2003, Dearden Properties’ and Rancho contracted with general
contractor Arco National Construction Company (Arco) to
build the warehouse. Arco in turn considered for hire or hired
subcontractors LGC Builders, Fullmer, KCB Builders, and
GMA to work on Dearden’s warehouse. Respondents are not
recognized or certified as the collective-bargaining representa-
tive of any employees employed by Dearden’s, Dearden Prop-
erties, Rancho, or Arco. Respondents’ primary labor dispute is
with LGC Builders, Fullmer, KCB Builders, and GMA. From
on or about March 9, 2004, to about April 14, 2004, Respon-
dent Local 803 displayed a white banner about 20 feet long and
4 feet high. The center of the banner contained 2 foot high red
capital letters which stated, “DEARDENS FURNITURE
PROFITS FROM IMMIGRANT LABOR ABUSE.” At each
end of the banner in smaller black capital letters were the words
“LABOR DISPUTE.”
Local 803 representatives also had handbills that were given
to pedestrians who asked about the banner. The banner was
distributed in both the English and Spanish languages. The
handbill states:

DEARDEN’S FURNITURE
OPENS OUR COMMUNITY TO MORE
IMMIGRANT LABOR ABUSE

(A cartoon appears below the caption depicting a standing fig-
ure in front of three prostrate individuals)

IT’S NOT RIGHT FOR HARD WORKING SOUTHERN
CALIFORNIANS TO HAVE TO PAY THE BILLS FOR
CONTRACTORS WHO ARE RIPPING OFF OUR
COMMUNITY AND CONTRIBUTING TO THE
EROSION OF AREA STANDARDS FOR SOUTHERN
CALIFORNIA CARPENTERS CRAFT WORKERS. GMA
CONSTRUCTION IS SUBCONTRACTING WORK FOR
ARCO CONSTRUCTION, (AN OUT OF STATE
COMPANY), ON THE DEARDENS FURNITURE
DISTRIBUTION WAREHOUSE. GMA CONSTRUC-
TION DOES NOT MEET AREA LABOR STANDARDS,
INCLUDING PROVIDING FOR FAMILY HEALTH
CARE AND PENSION FOR ALL OF ITS EMPLOYEES.

CARPENTERS LOCAL 803 OBJECTS TO SUB-
STANDARD CONTRACTORS LIKE GMA CON-
STRUCTION WORKING IN THE COMMUNITY. IN
OUR OPINION, THE COMMUNITY ENDS UP PAYING
THE TAB FOR EMPLOYEE HEALTH CARE AND THE
LOW WAGES THEY PAY TEND TO LOWER GENERAL
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1448
COMMUNITY STANDARDS, THEREBY ENCOUR-
AGING CRIME AND OTHERSOCIAL ILLS.

CARPENTERS LOCAL 803 BELIEVES THAT
DEARDEN’S FURNITURE HAS AN OBLIGATION TO
THE COMMUNITY TO SEE THAT AREA LABOR
STANDARDS ARE MET FOR CONSTRUCTION WORK
ON BUILDINGS THEY WILL OCCUPY. THEY SHOULD
NOT BE ABLE TO INSULATE THEMSELVES BEHIND
“INDEPENDENT CONTRACTORS. FOR THIS REASON
LOCAL 803 HAS A LABOR DISPUTE WITH ALL
THESE COMPANIES.

PLEASE CALL RONNIE BENSIMON AT DEARDEN’S
FURNITURE 213–362–9600 AND TELL HIM THAT
WANT THEM [sic] TO DO ALL THEY CAN TO
CHANGE THIS SITUATION AND SEE THAT AREA
LABOR STANDARDS ARE MET FOR THEIR CON-
STRUCTION PROJECT.

THE MEMBERS AND FAMILIES OF CARPENTERS
LOCAL 803 THANK YOU FOR YOUR SUPPORT. FOR
MORE INFORMATION CALL (714) 978–6232.

We are not urging any workers to refuse to work nor are we
urging any suppliers to refuse to deliver any goods.

The banner was initially displayed at the corner of Main and
7th Streets near Dearden’s 7th Street entrance in Los Angeles
on March 9, 2004, at about 9:30 a.m. The banner was located
near the curb of the public sidewalk at a truck loading zone.
Because they were in a loading zone, the banner was moved
between Dearden’s entrances on Main street. In order to keep
the banner and its holders in the shade, the banner was moved
back to the 7th Street location later on March 9, 2004.4 Later on
March 9, representatives of the Southwest Council directed the
sign holders to keep the banner at the Main street location after
complaints from Dearden’s that the banner was being moved
between the location on Main Street and the site on 7th

Street.5
From April 14, 2004, to an unknown date Respondent Local
803 displayed the same banner at Dearden’s Santa Ana, Cali-
fornia facility. The banner was held by at least two of Respon-
dents’ representatives in front of the Santa Ana facilities’ public
parking lot, about 30 to 40 feet from the store’s public entrance.
D. The CHW Site
CHW is affiliated with Pacific Medical Buildings, a devel-
oper of a medical building in San Gabriel, California. CHW has
at least a 30-percent equity interest in the San Gabriel medical
building. Pacific Building Group is the general contractor for
the San Gabriel medical building. Respondent Local 1506 had a

4 See GC Exh. 1; Jt. Exh. 7.
5 It appears from the testimony of Ronny Ben-Simon, president of
Dearden’s, that from March 9 to 18, 2004, the banner holders kept the
sign in the shade at the Main Street site from about 10 a.m. to 1:30 p.m.
until it came into full sun then moved to the shade on 7th Street site
from about 1:30. until 4 p.m. While Southwest Regional Council Busi-
ness Representative Gilbert Badillo testified that the sign remained at
the Main Street site from sometime after March 9, 2004, onward, he
was not present at the Dearden’s Los Angeles store every day. Since
Ben-Simon was present each day, I credit his testimony.
primary dispute with Pacific Building Group. Local 1506 has
not been recognized or certified as the representative of CHW
or Pacific Medical Building employees. On or about March 11,
and 17–19, 2004 Respondent Local 1506 established a banner
on the sidewalk in front of CHW’s regional office in Pasadena,
California. The banner was similar in size and color to the ban-
ners at Argent and Dearden’s. It bore the same labor dispute
language and in large red letters said “SHAME ON
CATHOLIC HEALTHCARE WEST.”6 The sign was held in
place by two representatives of Local 1506.
E. The Guidant Site
Guidant is a manufacturer of medical devices and has facility
in Temecula, California. Guidant retained Xnergy as general
contractor to construct a lab/medical clean room at its Temec-
ula facility. Xnergy in turn hired Brady to perform work on the
lab/medical clean room project. Respondents Local 1506 and
Southwest Council have a primary dispute with Brady. Re-
spondents have not been recognized or certified as the represen-
tative of Guidant or Xnergy employees.
On or about October 4, 2004, about mid-January 2005 Re-
spondents established a banner near the sidewalk of Guidant’s
Temecula facility.7 The banner was similar in size, color, and
language to the banners described above. The banner stated that
there was a “LABOR DISPUTE” and in larger red letter in the
center of the banner said “SHAME ON ARGENT.” The banner
was held in place by two individuals from about 10 a.m. to 2
p.m. In addition, Respondent’s representatives had handbills8 to
pass out to pedestrians who asked about the banner. The hand-
bills stated:

SHAME ON
GUIDANT
For desecration of the American
Way of Life

(There was a cartoon of a rat eating an American flag.)

A rat is a contractor that does not pay all of its employees pre-
vailing wages, including either providing or making payments
for family health care and pension benefits.

Shame on Guidant for contributing to erosion of area stan-
dards for local carpenter craft workers. Carpenters Local 1506
has a labor dispute with E F Brady-San Diego that is a sub-
contractor for Xnergy. E F Brady-San Diego does not meet
area labor standards, including providing or fully paying for
family health care and pension for all of its carpenter craft
employees.

Carpenters Local 1506 objects to substandard wage employ-
ers like E F Brady-San Diego 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 gen-
eral community standards, thereby encouraging crime and
other social ills.

Carpenters Local 1506 believes that Guidant has an obliga-

6 See Jt. Exhs. 9 and 10.
7 See Jt. Exhs. 11 and 12.
8 See Jt. Exh. 13.
CARPENTERS SOUTHWEST REGIONAL COUNCIL (RITCHIE’S INSTALLATIONS) 1449
tion to the community to do all it can to see that area labor
standards are met for construction of their buildings.

PLEASE TELL GUIDANT THAT YOU WANT THEM TO
DO ALL THEY CAN TO
CHANGE THIS SITUATION AND SEE THAT AREA
LABOR STANDARDS ARE MET FOR
CONSTRUCTION OF THEIR BUILDINGS.

The members and families of Carpenters Local 1506 thank
you for your support
Call (858) 621–2670 for further information.

WE ARE NOT URGING ANY WORKER TO REFUSE TO WORK NOR ARE
WE URGING ANY SUPPLIER TO REFUSE TO DELIVER GOODS.

On or about October 4, 2004, Respondent’s representatives
held the above-described banner on the sidewalk facing the
street in front of Guidant’s Temecula facility. Initially, the sign
was put together on the Guidant lawn adjacent to the sidewalk
at the site where it was displayed. On October 4 and 5, the ban-
ner holders were told by both Guidant representatives and the
police that they were trespassing on Guidant property by stand-
ing on the grass. Accordingly, on October 5, the sign was
thereafter assembled off Guidant property about 100 feet from
where it was displayed and walked down to the display location
where it remained stationary.
Analysis and Conclusions
While the General Counsel’s complaints allege that Respon-
dents have violated Section 8(b)(4)(i) and (ii)(B), in the joint
stipulation the General Counsel argues that Respondents’ ban-
nering activity violated only Section 8(b)(4)(ii)(B) of the Act
by enmeshing neutral employers. There is no argument and
indeed no evidence that Respondents’ conduct sought as its
object to induce or encourage any employees to cease perform-
ing work. Accordingly, I shall dismiss complaint allegations
alleging a violation of Section 8(b)(4)(i)(B) of the Act.
In regulating labor union’s picketing, handbilling and other
activities involving both speech and action, Congress balanced
the interests of a union’s right to freedom of speech under the
first amendment to the United States Constitution and the inter-
ests in protecting neutral employers from being enmeshed in
primary disputes in which they had no interest. That balancing
is reflected in the language of the pertinent portions of Section
8(b)(4) of the Act:

Sec. 8(b) It shall be an unfair labor practice for a labor
organization 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 manufacturer,
or to cease doing business with any other person. . . . Pro-
vided, That nothing contained in this clause (B) shall be
construed to make unlawful, where not otherwise unlaw-
ful, any primary strike or primary picketing. . . .

Provided further, that for the purpose 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 product or products are pro-
duced by an employer with whom the labor organization has a
primary dispute.

In order to establish a violation of Section 8(b)(4)(ii)(B) of
the Act, the General Counsel must establish that a labor organi-
zation has engaged in conduct that threatens, coerces or re-
strains. Traditional picketing has been found coercive. Next it
must be established that the conduct is secondary rather than
primary picketing. Finally the object of the conduct must be to
force any person to cease doing business with another person.
Last truthfully advising the public, other than by picketing, of a
primary dispute may not be enjoined.
Section 2(9) of the Act defines a labor dispute as:

[A]ny controversy concerning terms , tenure, or conditions of
employment, or concerning the association or representation
of persons in negotiating, fixing, maintaining, changing, or
seeking to arrange terms or conditions of employment, re-
gardless of whether the disputants stand in the proximate rela-
tion of employer and employee.
A. The Issues
The General Counsel and the Charging Parties contend that
the bannering described above violated Section 8(b)(4)(ii)(B) of
the Act. They argue that the bannering activity is essentially
picketing or “signal picketing” designed to restrain or coerce
Argent, Dearden’s, CHW, Guidant, and other neutral employers
with an object of requiring them to cease doing business with
Richies' installation, Brady and other persons. The General
Counsel argues that the bannering was not truthful and is not
protected by the provisos of Section 8(b)(4) of the Act or the
United States Constitution.
Respondents counter that the bannering is neither picketing
nor coercive but rather activity protected under both the provi-
sos to Section 8(b)(4) of the Act and the first amendment to the
United States Constitution and cite the Supreme Court’s deci-
sion in DeBartolo v. Florida Gulf Coast Building Trades Coun-
cil (DeBartolo II), 485 U.S. 568 (1988), in support of this
proposition.
B. The Case Law
This is not a case of first impression. The bannering activity
undertaken by various Carpenters’ locals has been the subject
of seven unfair labor practice decisions before administrative
law judges, three actions for 10(l) injunctive relief before the
United States district courts and one appeal of a district court
denial of 10(l) relief to the United States Court of Appeals for
the Ninth Circuit.
In five unfair labor practice decisions, the administrative law
judges found that the bannering did not constitute coercive
picketing: Judge Kennedy in Carpenters Southwest Regional
Council (Carignan Construction Co.), JD(SF)–14–04; Judge
Meyerson in Carpenters Southwest Region Council (New Star
General Contractors), JD(SF)–76–04; Judge Rose in Carpen-
ters Locals 184 & 1498 (Grayhawk Development), JD(SF)–02–
05; Judge Anderson in Carpenters Local Union 1506 (Sunstone
Hotel Investors), JD(SF)–01–05; and Carpenters Southwest
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1450
Regional Council (Held Properties, Inc.), JD(SF)–29–05. In
two unfair labor practice decisions, Judge Parke in Local 1827,
Carpenters (United Parcel Service), JD(SF)–30–03; and Judge
Litvack in Carpenters Southwest Regional Council (Held Prop-
erties), JD(SF)–24–04 concluded bannering was coercive con-
duct akin to traditional picketing not protected by the proviso.
These decisions are not binding upon me. Respondents on brief
also cite memoranda of the General Counsel’s Division of Ad-
vice which are only positions of the General Counsel. These
memoranda likewise do not bind me.
In each of three petitions for 10(l) injunctive relief, Kohn v.
Carpenters Southwest Regional Council, 289 F.Supp. 2d 1155
(C.D. CA 2003), Benson v. Carpenters, Locals 184 & 1498,
(337 F.Supp. 2d 1275 (D. Utah, 2004), and Overstreet v. Car-
penters Local 1506, 2003 U.S. Dist. LEXIS 19854 (S.D. CA
2003), the district courts found there was not reasonable cause
to believe that Section 8(b)(4) of the Act had been violated
since the bannering was not like traditional picketing but pro-
tected under DeBartolo II. Likewise, in the appeal to the United
States Court of Appeals for the Ninth Circuit in Overstreet v.
Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005), the
court found no reasonable cause to believe that Section 8(b)(4)
of the Act had been violated. While neither the United States
district courts’ nor the United States Court of Appeals for the
Ninth Circuit decisions in the context of 10(l) proceedings are
not binding precedent on an administrative law judge in an
unfair labor practice proceeding, they provide reasoned and
experienced guidance on constitutional issues.
The threshold issue for resolution is whether the bannering
activity of Respondents at the various worksites constitutes
picketing or its functional equivalent such that it constituted
prohibited coercive conduct not protected under a Debartolo II
analysis.
In Debartolo II, the Supreme Court found that a union’s
handbilling neutral retailers without picketing did not threaten,
coerce, or restrain any person engaged in commerce as prohib-
ited by Section 8(b)(4)(ii) of the Act. The court characterized
the handbilling without coercive conduct as “mere persuasion”9
and narrowly construed the Act, limiting a broad restriction on
handbilling to avoid conflict with the first amendment’s prohi-
bition on limitations of free speech.10
Since DeBartolo II, the Board and Federal courts have held
that secondary handbilling, when not accompanied by picketing
or other coercive conduct is not prohibited by Section
8(b)(4)(ii)(B). However, the Board has yet to rule on the ques-
tion of whether secondary bannering, unaccompanied by other
coercive conduct, violates Section 8(b)(4)(ii)(B).
The General Counsel and Charging Party CHW cite several
Board cases for the proposition that patrolling is not an essen-
tial element of picketing and that stationary sign holders may
be signal pickets. Lumber & Sawmill Workers Local 2797
(Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965);

9 DeBartolo II, supra at 580.
10 Contrary to counsel for Charging Party CHW’s assertion, I find
nothing in DeBartolo II to suggest that handbilling or its functional
equivalent has been characterized as “commercial speech” not entitled
to the full protection of the first amendment’s free speech guarantee.
Lawrence Typographical Union No. 570, 169 NLRB 279, 283
(1968); Mine Workers District 12 (Traux-Traer Coal Co.), 177
NLRB 213, 218 (1969); Electrical Workers Local 98 (Tele-
phone Man), 327 NLRB 593 (1999); , Painters District Council
9 (We’re Associates), 329 NLRB 140, 142 (1999); Mine Work-
ers District 2 (Jeddo Coal Co.), 334 NLRB 677 (2001). In each
of these cases there had been previous traditional picketing that
involved patrolling with typical picket signs (Stoltze Land &
Lumber Co.; Lawrence Typographical Union No. 570; Jeddo
Coal Co., Telephone Man; We’re Associates, supra), or some
other form of coercion, including threatening to use up to 200
men to shut a jobsite down (Traux-Traer Coal Co., supra). Also
in K-Mart Corp., 313 NLRB 50 (1993), a case involving ban-
ners, the Board affirmed the decision of the administrative law
judge who found that the placement of 3-foot by 6-foot and 3-
foot by 12-foot banners together with handbilling of consumers
by 12 to 28 union supporters at the entrance to a K-Mart store
violated Section 8(b)(4)(ii)(B) of the Act. The administrative
law judge found the union’s conduct went beyond peaceful
persuasion and was accompanied by other coercive conduct
including a demonstration by up to 50 union supporters in the
K-Mart parking lot, parading, chanting with a bullhorn, block-
ing access to shopping carts, and lying in front of oncoming
vehicles in the parking lot.
In Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th
Cir. 2005), the court, citing DeBartolo II, 485 U.S. at 587,
found that the Legislative History of Section 8(b)(4)(ii)(B) of
the Act clearly proscribes only “ambulatory picketing” of sec-
ondary businesses. This is not inconsistent with the above cited
Board cases since each case contained some elements of tradi-
tional picketing or other coercion. The Ccourt in Overstreet
emphasizes that traditional picketing includes “walking in a
line, and, in so doing create a symbolic barrier.” Slip opinion
page 10. The court rejected the General Counsel’s contention
that the Union’s bannering constituted coercive picketing.
The court in Overstreet also rejected the argument that the
banners amounted to “signal picketing” finding that “signal
picketing” involves some prearranged sign to employees of a
neutral, including union members, to cease performing work.
The Board’s decisions are in accord. See Electrical Workers
Local 98 (Telephone Man), supra, where a union agent on the
pretext of being a neutral gate observer, regularly flashed what
amounted to a picket sign to employees of neutrals entering the
gate.
C. Discussion
I reject the General Counsel’s argument that the Respondent’
bannering herein constituted picketing or signal picketing. I
find that the bannering is more akin to use of billboards, news-
paper ads, or handbills than traditional picketing, whether am-
bulatory or a substitute for patrolling pickets. Other than de
minimis movements of the banners at the Guidant and
Dearden’s locations occasioned by orders of the police or in
order to stay out of the heat of the midday, there was no record
evidence of patrolling traditionally associated with picketing,
nor was there any other evidence of blocking access to en-
trances, confrontation with employees, chanting, marching or
other coercive conduct in conjunction with the bannering. Con-
CARPENTERS SOUTHWEST REGIONAL COUNCIL (RITCHIE’S INSTALLATIONS) 1451
trary to the assertion of counsel for Charging Party Guidant, I
find no evidence of prior traditional picketing or other coercive
conduct by the Unions at the Guidant facility.
Further, I find that the Respondents’ bannering had no ele-
ment of a prearranged signal to employees of neutrals to cease
engaging in work. As the court in Overstreet noted,

To broaden the definition of “signal picketing” to include
“signals” to any passerby would turn the specialized concept
of “signal picketing” into a category synonymous with any
communication requesting support in a labor dispute. If “sig-
nal picketing” were defined so broadly, then the handbilling
in DeBartolo would have been deemed signal picketing.
[Overstreet, supra, slip op. at 12.]

Having found that Respondents bannering does not consti-
tute picketing or its functional equivalent, I conclude that it is
not a threat, coercion or restraint within the meaning of Section
8(b)(4)(ii)(B) of the Act.
Next, the General Counsel argues that the banners contain
information that is fraudulent and not protected by the proviso
to Section 8(b)(4) or the first amendment. The General Coun-
sel contends that the banners are misleading to the extent that
they imply that a primary labor dispute exits between Respon-
dents and the neutral employers named thereon without identi-
fying the primary employers with whom the Respondents have
a labor dispute.
Respondents contend that the Act makes clear that a labor
dispute may exist with a neutral or secondary employer. Sec-
tion 2(9) of the Act defines a labor dispute more broadly than a
primary dispute and may encompass secondary employers. All
of the lower Federal courts who considered the 10(l) petitions
in the bannering cases as well as the 9th

Circuit Court of Ap-
peals in Overstreet agreed. The Overstreet court found that
since the unions had a “labor dispute” with the secondary re-
tailers within the meaning of Section 2(9) of the Act, the use of
the term “labor dispute” was not fraudulent. Overstreet, supra,
slip op. at 14.
I am baffled by the General Counsel’s characterization of the
banners as fraudulent. I concur with the Respondents position
as supported by the decisions of the above courts that the Gen-
eral Counsel’s contention is in conflict with the Act’s definition
of “labor dispute.” The signs’ language referring to a “labor
dispute” with the named neutral employers are true statements
consistent with the Act’s 2(9) definition of a labor dispute pro-
tected by both the first amendment to the United States Consti-
tution and the proviso to Section 8(b)(4) of the Act.
Having reached these conclusions, I find that the bannering
engaged in by the Respondents herein did not violate Section
8(b)(4)(ii)(B) of the Act. Accordingly, the complaints shall be
dismissed.
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. Each of the named Charging Parties and employers are
persons engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondents are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents have not engaged in unfair labor prac-
tices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act.
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended11
ORDER
The complaints are dismissed in their entirety.

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the finding, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections shall be waived for all pur-
poses.