Locals 803 and 1506

National Labor Relations Board - Administrative Judge Opinions

Aug 22, 2005

21-CC-003337 (N.L.R.B. Aug. 22, 2005)

JD(SF)–59–05
Los Angeles, CA

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

SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA

and Case 21-CC-3337

RICHIE’S INSTALLATIONS, INC.,

CARPENTERS LOCAL UNION NO. 803,
UNITED BROTHERHOD OF CARPENTERS
AND JOINERS OF AMERICA

and Case 21-CC-3343

DEARDEN’S

and

LGC BUILDERS, INC., FULLMER,
KCB BUILDERS, AND GMA
Parties in Interest

CARPENTERS LOCAL UNION NO. 1506,
UNITED BROTHERHOD OF CARPENTERS
AND JOINERS OF AMERICA

and Case 21-CC-3345

CATHOLIC HEALTHCARE WEST d/b/a
SAN GABRIEL VALLEY MEDICAL CENTER

and

PACIFIC BUILDING GROUP
Party in Interest

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CARPENTERS LOCAL UNION NO. 1506,
UNITED BROTHERHOD OF CARPENTERS
AND JOINERS OF AMERICA;
SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA
(Brady Company of San Diego)

and Case 21-CC-3348

GUIDANT CORPORATION

Ami Silverman, Esq. of Los Angeles, California,
on behalf of the General Counsel.

Daniel Shanley, Esq., DeCarlo and 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; Carpenters Local 1506, United
Brotherhood of Carpenters and Joiners of America.

Ronald Klepetar, Esq., Jenkins and Gilcrest
of Los Angeles, California,
on behalf of Charging Party Richie’s Installations, Inc.

John D. Collins, Esq.,
Sheppard, Mullin, Richter, and Hampton
of San Diego, California,
on behalf of Charging Party Dearden’s.

Stephen Lueke, Esq.
Ballard, Rosenberg, Golper and Savitt
of Universal City, California,
on behalf of Charging Party Catholic Healthcare West.

Scott J. Witlin, Esq.
Ogletree, Deakins, Nash, Smoak and Stewart
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 upon separate complaints consolidated on
December 7, 2004 by the Regional Director for Region 21. The complaint in 21-CC-3337
issued on January 30, 2004, based upon an unfair labor practice charge filed on
November 4, 2003 by Richie’s Installations, Inc. (Richie’s). The complaint in 21-CC-3343

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issued on May 5, 2004 based upon an unfair labor practice filed on March 10, 2004 by
Dearden’s. The complaint in 21-CC-3345 issued on June 8, 2004, based upon an unfair labor
practice filed on April 13, 2004 by Catholic Healthcare West d/b/a San Gabriel Valley Medical
Center (CHW). The complaint1 in 21-CC-3348 issued on November 30, 2004, based upon an
unfair labor practice filed by Guidant Corporation (Guidant) on October 7, 2004 and amended
on November 22, 2004. Generally, the complaints allege that Respondents’ 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.

Findings of Fact2

Upon the entire record herein, including the stipulation, and the briefs from the General
Counsel, Respondents and Charging Parties, I make the following findings of fact.

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
employers engaged in commerce.

Charging Party Dearden’s, a California Corporation with offices located at 700 South
Main Street, Los Angeles, California and 117 North Broadway, Santa Ana, California, has been
engaged 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 non-profit 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 facility, 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 upon 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.

1 I granted General Counsel’s motion to sever complaint paragraphs 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 non disputed facts in this
case. Witnesses were called regarding the sole disputed facts concerning the location of
banners at Dearden’s downtown 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.

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II. Labor Organizations

Based upon the parties’ stipulation, I find that Respondents and each of them is a labor
organization within the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

The facts in this case are not in significant dispute. General 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 bannering 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
three to four 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 THE NEUTRAL) LABOR
DISPUTE 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
maintained in a stationary position. There was no chanting, marching, yelling or similar conduct
while the banners were displayed. Handbills were distributed by Respondents’ representatives
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 Argent, Dearden’s, CHW and Guidant
work sites.

To facilitate the organization of this decision, the facts concerning 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, California. 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 collective 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 Orange, 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 12:00 noon and was held in place by
two to four of Respondents’ representatives. The banner was located on the sidewalk in front of

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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, electronics, 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 representative of any employees employed by Dearden’s, Dearden Properties,
Rancho, or Arco. Respondents’ primary labor dispute is with LGC Builders, Fullmer, KCB
Builders and GMA. From on about March 9, 2004, to about April 14, 2004 Respondent
Local 803 displayed a white banner about 20 feet long and 4 feet high. The center of the
banner contained two 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 figure 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 CONSTRUCTION DOES NOT MEET AREA LABOR STANDARDS, INCLUDING
PROVIDING FOR FAMILY HEALTH CARE AND PENSION FOR ALL OF ITS
EMPLOYEES.

CARPENTERS LOCAL 803 OBJECTS TO SUBSTANDARD CONTRACTORS LIKE
GMA CONSTRUCTION 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 COMMUNITY
STANDARDS, THEREBY ENCOURAGING CRIME AND OTHERS SOCIAL 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”

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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
CONSTRUCTION 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, California facility. The banner was held by at least two of
Respondents’ representatives in front of the Santa Ana facilities’ public parking lot, about 30-40
feet from the store’s public entrance.

D. The CHW Site

CHW is affiliated with Pacific Medical Buildings, a developer 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 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 about March 11, and March 17 to 19, 2004 Respondent Local 1506 established
a banner on the side walk in front of CHW’s regional office in Pasadena, California. The banner
was similar in size and color to the banners 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.
4 See General Counsel’s exhibit 1 and Joint exhibit 7.
5 It appears from the testimony of Ronny Ben-Simon, president of Dearden’s, that from
March 9 to March 18, 2004 the banner holders kept the sign in the shade at the Main Street site
from about 10:00 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 p.m. until 4:00 p.m. While Southwest Regional Council business
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.
6 See Joint exhibits 9 and 10.

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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
Temecula 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.
Respondents have not been recognized or certified as the representative of Guidant or Xnergy
employees.

On about October 4, 2004 about mid January 2005 Respondents 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 10:00 a.m. to 2:00 p.m. In addition
Respondent’s representatives had handbills8 to pass out to pedestrians who asked about the
banner. The handbills 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 prevailing wages, including
either providing or making payments for family health care and pension benefits.

Shame on Guidant for contributing to erosion of area standards 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 hoes 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 employers like E F Brady-San
Diego working in the community. In our opinion the community ends up paying the tab
for employee health care and the low wages paid tend to lower general community
standards, thereby encouraging crime and other social ills.

Carpenters Local 1506 believes that Guidant has an obligation 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
7 See Joint exhibits 11 and 12.
8 See Joint exhibit 13.

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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 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 banner holders were told by both Guidant representatives
and the police that they were trespassing on Guidant property by standing 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 General Counsel’s complaints allege that Respondents have violated section
8(b)(4)(i) and (ii)(B), in the joint stipulation General Counsel argues that Respondents’
bannering 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 performing 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 interests 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 engaged 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. . . . 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 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 members of a labor organization, that product or products
are produced by an employer with whom the labor organization has a
primary dispute. . . .

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In order to establish a violation of Section 8(b)(4)(ii)(B) of the Act, General Counsel must
establish that a labor organization has engaged in conduct that threatens, coerces or restrains.
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, regardless of whether the
disputants stand in the proximate relation of employer and employee.

A. The Issues

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. 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 provisos to Section 8(b)(4) of the Act and the First Amendment
to the United States Constitution and cite the Supreme Court’s decision in Edward J. DeBartolo
v. Florida Gulf Coast Building and Construction Trades Council (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 Section 10(l) injunctive relief before the United
States District Courts and one appeal of a District Court denial of Section 10(l) relief to the
United States Court of Appeals for the Ninth Circuit.

In five unfair labor practice decisions, the ALJs found that the bannering did not
constitute coercive picketing: Judge Kennedy in Southwest Regional Council of Carpenters, et
al., (Carignan construction Co.) JD(SF)-14-04, Judge Meyerson in Southwest Region Council of
Carpenters, et. al., (New Star General Contractors, Inc.) JD(SF)-76-04, Judge Rose in
Carpenters Locals 184 and 1498 (Grayhawk Development, Inc. JD(SF)-02-05 and Judge
Anderson in Carpenters Local Union No. 1506, et. al. (Sunstone Hotel Investors, LLC.), JD(SF)
01-05 and Southwest Regional Council of Carpenters, et. al., (Held Properties, Inc.) JD(SF)-29-
05. In two unfair labor practice decisions, Judge Parke in Local Union No. 1827, United
Brotherhood of Carpenters and Joiners of America (United Parcel Service), JD(SF)-30-03 and
Judge Litvack in Southwest Regional Council of Carpenters (Held Properties), JD(SF)-24-04
concluded bannering was coercive conduct 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 Advice which are only positions of the General Counsel.
These memoranda likewise do not bind me.

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In each of three petitions for Section 10(l) injunctive relief, Kohn v. Southwest Regional
Council of Carpenters, 289 F. Supp. 2d 1155 (C.D. CA 2003), Benson v. United Brotherhood of
Carpenters and Joiners of America, Locals 184 and 1498, (337 F. Supp. 2d 1275 (D. Utah,
2004), and Overstreet v. Carpenters Local Union No.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
protected under DeBartolo II. Likewise, in the appeal to the United States Court of Appeals for
the Ninth Circuit in Overstreet v. Carpenters Local Union No. 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 Section 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 work sites 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
prohibited 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 prohibition 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 question of whether secondary
bannering, unaccompanied by other coercive conduct, violates Section 8(b)(4)(ii)(B).

General Counsel and Charging Party CHW cite several Board cases for the proposition
that patrolling is not an essential element of picketing and that stationary sign holders may be
signal pickets. Lumber and Sawmill Workers Local 2797 (Stoltze Land & Lumber Co.), 156
NLRB 388, 394 (1965); Lawrence Typographical Union No. 570, 169 NLRB 279, 283 (1968);
United Mine Workers Union, District 12 (Traux-Traer Coal Co.), 177 NLRB 213, 218 (1969);
IBEW Local 98 (Telephone Man), 327 NLRB 593 (1999); District Council 9, Painters and Allied
Trades (We’re Associates), 329 NLRB 140, 142 (1999); United Mine Workers Union, 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 job
site down (Traux-Traer Coal Co., supra). Also in K-Mart Corp., 313 NLRB 50 (1993), a case
involving banners, the Board affirmed the decision of the ALJ who found that the placement of
three foot by six foot and three foot by twelve foots banners together with handbilling of
consumers by 12 to 28 union supporters at the entrance to a K-Mart store violated 8(b)(4)(ii)(B)
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.

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of the Act. The ALJ 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, blocking access to shopping carts
and lying in front of oncoming vehicles in the parking lot.

In Overstreet v. United Brotherhood of Carpenters and Joiners of America, Local Union
No. 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 secondary businesses. This is not inconsistent with the above cited Board cases
since each case contained some elements of traditional picketing or other coercion. The Court
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 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 IBEW 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 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,
newspaper ads or handbills than traditional picketing, whether ambulatory or a substitute for
patrolling pickets. Other than de minimus 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 entrances, confrontation with employees,
chanting, marching or other coercive conduct in conjunction with the bannering. Contrary 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 element 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 “signal picketing” were defined
so broadly, then the handbilling in DeBartolo would have been deemed signal picketing.
Overstreet, supra at slip opinion page 12.

Having found that Respondents bannering does not constitute 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 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. General Counsel
contends that the banners are misleading to the extent that they imply that a primary labor
dispute exits between Respondents and the neutral employers named thereon without
identifying the primary employers with whom the Respondents have a labor dispute.

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Respondents contend that the Act makes clear that a labor dispute may exist with a
neutral or secondary employer. Section 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 Appeals in Overstreet agreed. The Overstreet Court found that since the Unions had a “labor
dispute” with the secondary retailers within the meaning of Section 2(9) of the Act, the use of the
term “labor dispute” was not fraudulent. Overstreet, supra, slip opinion at page 14.

I am baffled by 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
General 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 protected by both the First Amendment
to the United States Constitution 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.

Conclusions of Law

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 practices within the meaning of
Section 8(b)(4)(i),(ii)(B) of the Act.

Based on these findings of fact and conclusions of law and on the entire record, I issue
the following recommended Order11.

11 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the finding, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.

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ORDER

The complaints are hereby dismissed in their entirety.

Dated, San Francisco, California, August 22, 2005.

_______________________
John J. McCarrick
Administrative Law Judge