Southwest Regional Council of Carpenters and Carpenters Local 1506

National Labor Relations Board - Administrative Judge Opinions

Apr 2, 2004

31-CC-002115 (N.L.R.B. Apr. 2, 2004)

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

SOUTHWEST REGIONAL COUNCIL OF
CARPENTERS

and

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

and

HELD PROPERTIES, INC. Case No. 31-CC-2115

and

THE LASER INSTITUTE FOR DERMATOLOGY
& EUROPEAN SKIN CARE Case No. 31-CC-2117

Katherine B. Mankin, Esq., of Los Angeles, CA,
appearing on behalf of the General Counsel

Gerald V. Selvo, Esq., for DeCarlo, Connor & Selvo,
of Los Angeles, CA, appearing on behalf of the Respondents.

Jonathan A. Goldstein, Esq,, for Goldstein, Kennedy & Petito,
of Los Angeles, CA, appearing on behalf of Held Properties, Inc.

Karen L. Stephenson, Esq., for Katten, Muchin, Zavie & Rosenman,
of Los Angeles, CA, appearing on behalf of The Laser Institute
for Dermatology & European Skin Care.

DECISION

BURTON LITVACK: ADMINISTRATIVE LAW JUDGE

Statement of the Case

Held Properties, Inc., herein called Held, filed the original and amended unfair labor
practice charges in Case No. 31-CC-2115 on September 10 and September 18, 2003,
respectively, and the original and amended unfair labor practice charges in Case No. 31-CC-
2117 were filed by The Laser Institute for Dermatology & European Skin Care, herein called
Laser Institute, on September 11 and September 18, 2003, respectively. Based upon
investigations of the above unfair labor practice charges, on September 23, 2003, the Regional
Director of Region 31 of the National Labor Relations Board, herein called the Board, issued a
Consolidated Complaint, alleging that Southwest Regional Council of Carpenters, herein called

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Respondent Regional Council, and Carpenters Local Union No. 1506, United Brotherhood of
Carpenters and Joiners of America, herein called Respondent Local 1506 and together called
Respondents, engaged in, and are engaging in, an unfair labor practice within the meaning of
Section 8(b)(4)(ii)(B) of the National Labor Relations Act, herein called the Act. Each
Respondent filed an answer, denying the commission of the alleged unfair labor practice.
Pursuant to a notice of hearing, a trial was held before the above-named administrative law
judge on November 3, 20031 in Los Angeles, California. At the trial, all parties were afforded
the right to call witnesses, to cross-examine witnesses, to offer into the record all relevant
documentary evidence, to argue legal positions orally, and to file post-hearing briefs. The latter
documents were filed by counsel for the General Counsel, counsel for Held, and counsel for
Respondents, and each brief has been closely examined. Accordingly, based upon the entire
record herein, including the post-hearing briefs and my observation of the testimonial demeanor
of the witnesses, I make the following:

FINDINGS OF FACT

I. Jurisdiction

At all times material herein, Held, with an office and primary place of business located in
Los Angeles, California, has been engaged in business as a property management real estate
brokerage and a licensed contractor. During the 12-month period immediately preceding the
issuance of the consolidated complaint, in connection with its above-described business
operations, Held purchased and received goods and products, valued in excess of $50,000,
directly from suppliers located outside the State of California. Respondents admit that Held is,
and has been at all times material herein, an employer engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

At all times material herein, Laser Institute, which has an office and principle place of
business, located at 2021 Santa Monica Boulevard, Santa Monica, California, has been
engaged in the business of providing a spectrum of services for skin care and beauty. In
connection with its business operations, during the 12-month period immediately preceding
issuance of the consolidated complaint, Laser Institute purchased and received goods and
products, valued in excess of $50,000, directly from suppliers located outside the State of
California. Respondents admit that, at all times material herein, Laser Institute has been an
employer engaged in commerce or in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

II. Labor Organizations

Respondent Regional Council and Respondent Local 1506 each admits that, at all times
material herein, it has been a labor organization within the meaning of Section 2(5) of the Act.

III. The Issues

The consolidated Complaint alleges that, since in or about February 2003, Held has
been engaged as a general contractor to perform expansion/construction work at an office suite
located in an office building at 2021 Santa Monica Boulevard in Santa Monica, California, which
is owned by Medical Associates, d/b/a Medical Centre of Santa Monica, herein called Medical

1 Unless otherwise stated, all events herein occurred during 2003.

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Associates; that the lessee of the above office suite in the building located at 2021 Santa
Monica Boulevard, is Laser Institute; that, in connection with the construction work, Held
contracted with Gingerich Construction to perform drywall services in the office suite; that, at all
times material herein, Respondents have been engaged in a primary labor dispute with
Gingerich Construction; that, at no material time herein, have Respondents been engaged in a
primary labor dispute with Held, Laser Institute, or Medical Associates; and that, from
September 8, 2003 through, at least, September 23, 2003, Respondents engaged in conduct,
violative of Section 8(b)(4)(ii)(B) of the Act, by, in furtherance of their labor dispute with
Gingerich Construction, displaying a banner at the building located at 2021 Santa Monica
Boulevard, which states: “LABOR DISPUTE” and “SHAME ON LASER INSTITUTE FOR
DERMATOLOGY & EUROPEAN SKIN CARE.” The consolidated complaint further alleges that
the displaying of the above banner constituted signal picketing and that, in the above-described
circumstances, the language of the banner constituted fraudulent, unprotected speech.
Respondents deny the commission of the alleged unfair labor practice and contend that
displaying the banner did not constitute picketing and that the wording of the banner was
privileged by the first amendment to the Constitution of the United States.

IV. The Alleged Unfair Labor Practice
A. The Facts2

Santa Monica Boulevard, a portion of which runs through Santa Monica, California, is a
major Los Angeles area east-west thoroughfare, which is subject to heavy vehicular traffic in
both directions, and St. John’s Hospital is located near the intersection of 21st Street and Santa
Monica Boulevard in Santa Monica on the north side of Santa Monica Boulevard. Directly to the
west of the hospital and adjacent to it is the office building, located at 2021 Santa Monica
Boulevard, herein called the 2021 building, which is owned by Medical Associates; to the west
of the 2021 building and separated by a plaza area, in which are two planted areas, is another
office building, the address of which is 2001 Santa Monica Boulevard; and separate parking
structures are located behind the 2021 building and the office building at 2001 Santa Monica
Boulevard. There are three entrances to the 2021 building-- a front entrance off the public
sidewalk on Santa Monica Boulevard, an entrance from the plaza, which leads into the lobby
area, and an entrance to the second floor of the building from the parking garage. Directly
across Santa Monica Boulevard from the 2021 building is a public parking lot.

Held manages the 2021 building and enforces all lease agreements for Medical
Associates, and there are between 30 and 50 tenants, presumably either all doctors or others
offering medical services, in the building. Dr. Ava Shamban, who has a medical degree and is a
board-certified dermatologist, is the lessee of a suite of offices located on the sixth floor of the
2021 building, does business under the name, The Laser Institute For Dermatology & European
Skin Care, and is engaged in providing a “spectrum” of services for skin care and beauty. All
clients, visitors, and suppliers of Laser Institute must enter the 2021 building through the lobby
and take the elevator to the sixth floor.3 Pursuant to a lease expansion agreement between
Laser Institute and Medical Associates, in or about February, acting as a general contractor,
Held commenced performance of an expansion/construction project at the Laser Institute’s
office suite, herein called the jobsite. The purpose of this project was to increase the square

2 The facts herein are based upon stipulations of the parties and uncontroverted testimony.
In this circumstance and, inasmuch as neither appeared to be inherently incredible, I credit and
rely upon the testimony of Robert Held and Dr. Ava Shamban.
3 There is no direct entrance from the parking garage to the sixth floor of the 2021 building.

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footage of the existing office space of Laser Institute’s office suite. In connection with the
expansion project, Held contracted with various subcontractors, including Gingerich
Construction, to perform construction work; the latter’s contract concerned the performance of
drywall services for the expansion project.4 Gingerich Construction’s employees worked at the
jobsite from August until October 15, and their normal hours of work were from midnight through
10::00am.5 Neither Held nor Laser Institute employs individuals working as carpenters.

While Respondent Regional Council denied such a dispute, Respondent Local 15066
admitted that it has been engaged in a primary labor dispute with Gingerich Construction. In
this regard, early in the morning on September 3, Robert Held, the president of Held, received a
telephone call, informing him that there was picketing activity at the 2021 building. He
immediately drove to the 2021 building, and, arriving at approximately 10:00, Held observed “40
plus or minus people picketing counter-clockwise on the [plaza], making a lot of noises and
disturbances. Creating a distraction for the patients and staff.” The individuals were marching
in the plaza area “between the two buildings and in front of both entrances” to the 2021 building,
and they were carrying placards, which read, “GINGERICH--UNFAIR to CARPENTERS UNION
1506-- NOT PAYING AREA STANDARD WAGES AND FRINGE BENEFITS” and yelling
“Gingerich is a rat.” Inasmuch as the picketing appeared to be disrupting the traffic flow into the
entrances to the 2021 building, Held telephoned the police, and police officers eventually arrived
at the site of the picketing. Twenty minutes later, Held met with one of the pickets, Rick Whittey,
and a police officer. Whittey7 handed Held a business card, which read, “ Rick Whittey,
Business Representative—Southwest Regional Council of Carpenters, United Brotherhood of
Carpenters & Joiners of America,” and Held asked him “. . . why he was picketing. . . . He told
me that he wanted for me to quit doing business with Gingerich and start doing business with
only union contractors, union carpenters. . . . I told him that I used both union and non-union
and I pick the lowest [sic] qualified contractor.” Also, as a police officer had gone up to Laser
Institute’s offices and confirmed that Gingerich Construction’s employees were no longer
working that day, Held asked Whittey why he was picketing, “. . . and he said that he needed
proof that they were not there. I told him that [Gingerich Construction’s employees] usually
worked from midnight until about 10:00 in the morning.” During cross-examination, Held
admitted not confirming his statement to Whittey with a letter and recalled Whittey using the
term, area standards, during their conversation. On the latter point, Held recalled Whittey
saying that “he thought that Gingerich was not paying the same wages that a union was.”

4 Held, Laser Institute, Medical Associates, and Gingerich are persons engaged in
commerce or in industries affecting commerce within the meaning of Section 8(b)(4) of the Act.
5 There is no evidence that Respondents ever attempted to ascertain the working hours for
Gingerich Construction’s employees.
6 The parties stipulated that Respondent Local 1506 does not negotiate its own collective-
bargaining agreements and that all collective-bargaining agreements, which are binding upon
affiliates of Respondent Regional Council, including Respondent Local 1506, are negotiated by
Respondent Regional Council itself. Nevertheless, there is no record evidence to suggest that
Respondents are anything but separate entities.
7 The parties stipulated that Whittey is a business representative employed by Respondent
Regional Council; that, with respect to the bannering, Whittey worked as an agent of
Respondent Local 1506 but did not occupy any of the offices in Local 1506; that, while working
as an agent for Respondent Local 1506, Whittey’s full salary was paid by Respondent Regional
Council; and that, when performing work for Respondent Local 1506, the latter did not
reimburse Respondent Regional Council for Whittey’s time.

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The parties stipulated that, commencing five days later, on September 8, and continuing
until October 15, from approximately 9:00am until 3:00pm on each Monday through Friday
during this time period, Respondent Local 1506 displayed a banner on the public sidewalk on
the north side of Santa Monica Boulevard between 20th Street and 21st Street in Santa Monica.
The banner, which was approximately 20 feet by four feet in size, was erected each day directly
in front of the plaza area between the building at 2001 Santa Monica Boulevard and the 2021
building. At this location, the banner was in front of the plaza entrance to the 2021 building and
50 feet from the front door entrance, and Respondents admit that the placement of the banner
was selected so as to maximize exposure to the general public, including passing pedestrians,
clients, patients, vendors, and motorists.8 As it had no base or “feet,” each day, at least three
bearers, who were either employed by or were members of Respondent Local 1506, were
necessary in order to hold the banner erect, and, except for staggered break periods, these
three individuals performed their display functions throughout the entire day. Once the banner
was erected at the beginning of each day, it was not moved, and it remained stationary until
taken down. There is no record evidence that Rick Whittey or any individual, employed by
Respondent Regional Council, ever was in the vicinity of, or participated in, the displaying of the
banner.

The banner itself was white and on it were the words “LABOR DISPUTE” in black two-
foot capital letters and “SHAME ON LASER INSTITUTE FOR DERMATOLOGY” in red two-foot
capital letters. Also, the banner bearers distributed handbills to pedestrians, who passed by the
banner. The handbills, one white and one teal in color, depict a rat gnawing through an
American flag and read, in part, as follows:

A rat is a contractor that does not pay all of its employees prevailing wage,
including either providing or making payments for health care and pension benefits. . . .

Held Properties, Inc. has contracted with Gingerich Construction to do tenant
improvements for The Laser Institute For Dermatology. . . . Gingerich Construction is
self-performing the drywall and acoustical work. Gingerich Construction does not
meet area labor standards for that work—they do not pay prevailing wages to all of their
employees doing that work, including fully paying for family health care and pension.

Carpenters Local 1506 objects to substandard employers like Gingerich
Construction working in the community. . . .

Carpenters Local 1506 believes that The Laser Institute for Dermatology has
an obligation to the community to see that contractors who perform work on buildings
they occupy meet area labor standards. They should not be allowed to insulate
themselves behind “independent” contractors. For this reason, Local 1506 has a labor
dispute with all of these companies.9
Dr. Shamban experienced consternation and some humiliation because of the wording on the

8 As St. John’s Hospital is located adjacent to the 2021 building, this area is a particularly
heavy vehicular and pedestrian traffic area
9 The only difference between the two handbills is in the second paragraph. Thus, on one
handbill, the paragraph begins “[Laser Institute] has contracted with Gingerich Construction
. . . ,” and, on the other handbill, the paragraph begins “[Held] has contracted with Gingerich
Construction.”

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banner and the picture and language of the handbills. “The effect of this banner on my practice
has been a besmirching of my reputation. I have nothing to be ashamed of which is something
that I had to repeat on may occasions to my patients, to people who saw it on the street, to
employees of the hospital, to enumerable people who called on the telephone. . . . I am a well-
known figure in the community and people were extremely concerned that I was abusing my
employees in some way.”

B. Legal Analysis

At the outset, while Respondent Regional Council specifically disclaimed amenability,
Respondent Local 1506 admitted that it was responsible for the displaying of the above-
described banner at the 2021 building from September 8 through October 15. The amended
complaint alleges that Respondents together acted in violation of Section 8(b)(4)(ii)(B) of the Act
by displaying the banner, and, in her post-hearing brief, counsel for the General Counsel
avouches an agency theory for Respondent Regional Council’s liability. In this regard, I note
that Respondents are separate and distinct labor organizations within the meaning of Section
2(5) of the Act and that a labor organization is not automatically responsible for the actions of its
affiliate. Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212 (1979). Nevertheless, in 1947,
Congress specifically amended the Act, in part, to make both unions and employers subject to
the common law rules of agency, “. . . and the Board has a clear statutory mandate to apply the
ordinary law of agency to its proceedings.” Mine Workers District 2, 334 NLRB 677, 684 (2001);
California Saw & Knife Works, 320 NLRB 224, 250 (1995). Counsel for the General Counsel
relies upon the following facts for her assertion that Respondent Regional Council was, and
remains, responsible for Respondent Local 1506’s displaying of the banner-- that Respondents
admit Rick Whittey, employed by Respondent Regional Council, was on loan to Respondent
Local 1506 and was present at the picketing on September 3, that Whittey held himself out as
the person in charge of said picketing, and that Respondent Local 1506 was not required to
reimburse Respondent Regional Council for Whittey’s time. However, while Respondent
Regional Council negotiates collective-bargaining agreements on behalf of Respondent Local
1506 and while it may be true that, under the Act, agency principles must be construed
expansively when dealing with issues of responsibility for acts and conduct, there is no record
evidence that Whittey, acting on behalf of Respondent Regional Council, actually planned or
assisted Respondent Local 1506 in its act of displaying the banner at issue herein, and there is
no record evidence that he or any other paid employee of Respondent Regional Council
controlled, or was present during, the displaying of the banner. Further, the placards, held aloft
by the pickets on September 3, and the handbills, distributed by the banner bearers, mention
only Respondent Local 1506 as having a labor dispute with Gingerich Construction and claiming
responsibility for the picketing and displaying of the banner. The Board has recently held that
an agency relationship, between labor organizations, arises only where one labor organization
“has the right to control” the conduct of its asserted agent, the other labor organization,
regarding the matters “entrusted to [it].” Overnite Transportation Co. (Dayton, Ohio Terminal),
334 NLRB 1074, 1078 (2001). Herein, there is no record evidence that Respondent Regional
Council specifically loaned its employee Whittey to Respondent Local 1506 in order for him to
plan or assist in the displaying of the banner or that Respondent Regional Council controlled,
advocated, instigated, supported, condoned, or was aware of Respondent Local 1506’s acts
and conduct. In short, I do not believe that the mere fact Whittey continued to be paid by
Respondent Regional Counsel during his work as Respondent Local 1506’s agent is sufficient
to make Respondent Local 1506 the agent of Respondent Regional Council for the displaying of

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the instant banner.10 Accordingly, as to whether the displaying of the banner may have been
violative of Section 8(b)(4)(ii)(B) of the Act, I shall recommend that the consolidated complainant
be dismissed as to Respondent Regional Council.

Turning to the alleged unfair labor practice herein, a violation of Section 8(b)(4)(ii)(B) of
the Act, said provision of the Act reads as follows:

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 . . . of . . . a primary labor dispute . . . .

As the Supreme Court has explained, the above-quoted provision of the Act reflects “the duel
congressional objectives of preserving the right of labor organizations to bring pressure to bear
upon 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 Section 8(b)(4)(ii)(B) of the Act leaves unfettered a labor
organization’s traditional right to engage in direct action against an employer, with which it is
engaged in a primary labor dispute, the provision’s more “narrowly focused” purpose is to
“restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most
obvious, wide-spread, and . . . dangerous practice of unions to widen that conflict” and coerce
neutral employers not concerned with the primary labor dispute. Carpenters Los Angeles
County District Council Local 1976 v. NLRB, 357 U.S. 93, 100 (1958). There are essentially two
elements necessary to establish a violation of Section 8(b)(4)(ii)(B) of the Act. First, a labor
organization must engage in conduct, which threatens, coerces or restrains any person.
Second, an object of the foregoing conduct must be to force or require any person to cease
dealing with or doing business with any other person. Electrical Workers Local 761 v. NLRB,
366 U.S. 667, 673 (1961); Food & Commercial Workers Local 1776 (Carpenters Health Fund),
334 NLRB 507 at 507 (2001); Service Employees Local 87 (Trinity Maintenance), 312 NLRB
715, 742-743 (1993). In the latter regard, it is not necessary that such be the “sole object” of the
alleged unlawful conduct. Denver Building Trades Council, supra at 689. Further, 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 employer. Iron Workers Local 272 (Miller & Solomon), 195 NLRB
1063 (1972); Los Angeles Newspaper Guild Local 69 (Hearst Corp.), 185 NLRB 303, 322

10 I have considered the fact that Whittey’s business card identified him as a business
agent of Respondent Regional Council. However, this fact may be susceptible of many
interpretations and is not itself sufficient to establish an agency relationship between
Respondents for the picketing or displaying of the banner.

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(1970).

Clearly, the classic form of conduct, which restrains or coerces employers within the
meaning of Section 8(b)(4)(ii), involves picketing, a type of action, which “may induce action of
one kind or another irrespective of the nature of the ideas which are being disseminated,”11
with individuals patrolling at the entrances to a jobsite or a business while carrying placards,
attached to sticks. Painters District Council No. 9 (We’re Associates), 329 NLRB 140 (1999);
Teamsters Local 315 (Atchison, Topeka & Santa Fe Railway Co.), 306 NLRB 616 (1992). In
contrast, the instant matters concern the erection and stationary displaying of a banner, by
Respondent Local 1506, on the sidewalk in front of the entrances to an office building in which a
suite of offices, the jobsite, was located.. While conceding that the latter’s conduct herein may
not have constituted “traditional picketing,” counsel for the General Counsel notes that Section
8(b)(4)(ii)(B) proscribes “. . . all conduct where it was the union’s intent to coerce, threaten, or
restrain third parties to cease doing business with a neutral employer . . .” and argues that
Respondent Local 1506 engaged in two different types of Section 8(b)(4)(ii) proscribed acts and
conduct herein-- signal picketing, which is activity “short of a true [traditional] picket line” but
which acts as a signal to neutrals that sympathetic action is desired, and the use of “fraudulent
language,” designed to deceive the public into believing it had a primary labor dispute with
Laser Institute, on its banner. Having considered counsel’s arguments and those of counsel for
Held, I find neither theory particularly convictive or compelling. With regard to the General
Counsel’s signal picketing theory, I believe that counsel has misunderstood and misapplied this
Board concept. At the outset, rather than individuals patrolling at entrances to a jobsite with
placards, what is termed “signal picketing” usually involves more subtle activity—for example,
the stationing of union business agents some distance away from, but not at, the neutrals’
entrance to a jobsite or the placing of placards near such an entrance, positioned so that
anyone approaching is able to read the printed message. Iron Workers Pacific NW Council
(Hoffman Constr.), 292 NLRB 562, 571- 572 (1989); Laborers Local 389 (Calcon Construction),
287 NLRB 570, 571- 572 (1987); Operating Engineers Local 12 (Hansel Phelps Construction
Co., 284 NLRB 246, 248 (1987); Teamsters Local 182 (Woodward Motors), 135 NLRB 851, 851
at n. 1, 857 (1962). While it is true that the United States Court of Appeals for the Ninth Circuit
has broadly defined the message of such activity as a signal to “neutrals” for desired
sympathetic action,12 the Board defines the message of signal picketing, in Section 8(b)(4)(i)
terms, as conduct intended “. . . as a signal to induce action by those to whom the signal is
given.” Teamsters Local 688 (Levitt Furniture Co. of Missouri), 205 NLRB 1131, 1133 (1973).
Moreover, in Laborers Local 389, supra at 574, the Board found that picket signs, which had
been stuck in or lying on the ground near a neutrals’ gate, were “. . . designed . . . to induce
employees of subcontractors and other secondary employers who were unionized to withhold
their labor from the site;” in Iron Workers NW Council, supra at 583, the Board noted that the
effect of men gathered around a picket sign near a neutrals’ entrance “constituted a signal to the
“employees” of secondary and neutral employers to withhold their services; and, likewise, in
Plumbers Local 274 (Stokely-VanCamp, Inc.), 267 NLRB 1111, 1114 (1983), the Board noted
that retired members, who were patrolling the sides of a street near an entrance for neutral
employers, acted as a signal to the employees of the neutrals not to enter into the jobsite and
work.13 What is clear from the foregoing is that signal picketing is, in reality, conduct, which

11 Teamsters Local 802 v. Wohl, 315 U.S. 769, 776 (1942) (Douglas, J. concurring).
12 Iron Workers Local 433 (R.F. Erectors) v. NLRB, 598 F.2d 1154, 1158 at n. 6 (9th Cir.
1979)
13 In Iron Workers Local 433 (R.F. Erectors), 233 NLRB 283, 287 (1977), the Board
Continued

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“induces or encourages” craft employees not to cross a picket line and perform services for their
respective employers on jobsites-- put another way, Section 8(b)(4)(i) proscribed conduct.
While signal picketing may also arise to the level of Section 8(b)(4)(ii) conduct, it does so only
derivatively as the “inevitable consequence of successfully inducing or encouraging employees
of secondary employers to refuse to perform their work tasks . . . .” Food & Commercial
Workers Local 1776, supra, at 509, n. 8; Teamsters Local 315, supra, at 631. In my view, the
foregoing establishes that conduct, which is described as signal picketing, does not directly
threaten, coerce, or restrain persons engaged in commerce or in industries affecting commerce
within the meaning of Section 8(b)(4)(ii). Accordingly, as Respondent Local 1506’s intent, by
displaying its banner on the public sidewalk in front of the 2021 building’s plaza area, was to
maximize its exposure to the general public, including passing pedestrians, patients, clients,
vendors, and motorists and as the General Counsel alleged this as constituting only Section
8(b)(4)(ii) violative conduct, counsel’s signal picketing theory is without merit.

Turning to the General Counsel’s second theory for establishing the threatening and
coercive nature of Respondent Local 1506’s display of the banner, that the language of the
banner was fraudulent and designed to deceive the general public, counsel for the General
Counsel argues that the banner failed to name the primary employer, with whom the labor
organization was engaged in a labor dispute, Gingerich Construction, and that “... it proclaimed
the existence of a labor dispute and painted the named neutral as deserving “shame” from the
community due to the dispute.” In short, counsel argues, “the natural and foreseeable
[impression] the public would draw from [Respondent local 1506’s] language was that [it] had a
primary labor dispute with [Laser Institute]. The conclusion, as a result, is that the public was
being called upon to boycott [Laser Institute].” Contrary to counsel, I do not believe the
language on the banner was, in fact, false. In this regard the language of the banner proclaims
the existence of a labor dispute between Respondent Local 1506 and Laser Institute and
describes the latter in disparaging terms. As to the existence of a labor dispute, while
Respondent Local 1506 admitted it had a primary labor dispute with Gingerich Construction, the
latter’s work was being performed for the benefit of Laser Institute, and it might convincingly be
argued that Dr. Shamban possessed some degree of sway over the selection of the drywall
subcontractor, which was performing the drywall work on her suite of offices and that she was
unsympathetic to the terms and conditions of employment under which the Gingerich
Construction employees worked. Moreover, the handbills, which were distributed by the banner
bearers, explained the labor dispute in detail. Section 2(9) of the Act defines a “labor dispute”
as including “. . . any controversy concerning terms, tenure, or conditions of employment . . .
regardless of whether the disputants stand in the proximate relation of employer and employee,”
and the almost identical provision of the Norris-LaGuardia Act, 29 U.S.C. 113(c) has been
interpreted as covering “secondary” employers. Smith’s Management Corp. v. International
Brotherhood of Electrical Worker, Local Union No. 357, 737 F.2d 788 (9th Cir. 1984).14 In this
regard, I believe that few, if any, members of the general public, who passed by the banner,
were cognizant of the Act’s definition of a labor dispute or, if such had been the wording of the
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decision underlying the above-cited Ninth Circuit decision, the Board noted that the intended
effect of the actions of the respondent’s agents was to signal to the employees of the neutral
employers not to enter onto the jobsite.
14 I recognize that, for purposes of Section 8(b)(4)(B), it is erroneous to conclude “. . . that
neutrals must be totally disengaged from a labor dispute. That is not the law.” Service
Employees Local 525 (General Maintenance Co.), 329 NLRB 638, 640 (1999). However, at this
point, I am only concerned with the truth or falsity of Respondent Local 1506’s language on the
banner.

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banner, would have understood the distinction between a primary and a secondary labor
dispute. As to the banner’s deprecating language regarding Laser Institute, I think the general
public understood that labor disputes are often heated and invoke distortions and imprecatory
language. Linn v. Plant Guard Workers of America, 383 U.S. 53, 58 (1974). Moreover, I note
that counsel for the General Counsel elicited testimony from Dr. Shamban, describing her
consternation and embarrassment caused by the language of the banner. However, as appeals
leading to “embarrassment and persuasion” of a neutral are permissible (NLRB v. Business
Machine & Office Appliance Mechanics Conference Board (Royal Typewriter Co.), 228 F.2d
553, 560 (2nd Cir. 1955), cert denied 351 U.S. 962 (1956)), a statement that a neutral engaged
in shameful acts and conduct appears to be likewise acceptable.15 Accordingly, I do not
believe that the language of the banner constituted coercion or restraint within the meaning of
Section 8(b)(4)(ii).

Notwithstanding my conclusions that the theories of counsel for the General Counsel are
without merit, I believe that Respondent Local 1506 did, in fact, engage in Section 8(b)(4)(ii)
proscribed conduct as, in the instant circumstances, the displaying of the banner constituted
picketing or, at least, a form of picketing. Thus, notwithstanding the above-described classic
description of picketing, patrolling alone, patrolling combined with the carrying of placards
attached to sticks, or confrontation do not appear to be essential elements for a finding of
picketing. Rather, the Board has traditionally held that “. . . the important feature of picketing
appears to be the posting by a labor organization . . . 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 customers away from the employer’s business.” Service
Employees Local 87, supra at 743; Laborers Local 389, supra at 573; Lumber & Sawmill
Workers Local Union No. 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965).16
Herein, Respondent Local 1506’s banner bearers erected and displayed their banner directly in
front of the 2021 building’s plaza, where the only building entrance leading to its lobby is
located, and a mere 50 feet from the sidewalk entrance to the building, and the location of the
banner was close to the location of the picketing activity on September 3. Further, viewing the
record evidence in a light most favorable to Respondent Local 1506, assuming arguendo the
latter stationed its banner at the above location in order to advance its cause of publicizing a
labor dispute with Laser Institute, the location of the activity nevertheless mandates a
conclusion that Respondent Local 1506’s acts and conduct fall within the Board’s broad
parameters for the act of picketing, and I so find.

15 I am cognizant that Royal Typewriter predates the 1959 amendments to the Act;
however, I have found no Board or court decision overruling its continued viability.
16 Counsel for Respondent Local 1506 argues that this definition is “no longer good law” as
handbilling, which, the Supreme Court, in Edward J. DeBartolo Corp. v. Florida Golf Coast Bldg.
& Constr. Trades Council, 485 NLRB 568 (1988), found, does not threaten, coerce, or restrain
within the meaning of Section 8(b)(4)(ii), falls within it and as it makes the object of the conduct
an element of the definition and disregards the first amendment to the Constitution-- an error of
law. I am not sure I understand counsel’s latter assertion. He cited no authority in support, and
his First Amendment argument assumes that the Board was defining unlawful picketing. In any
event, a union’s cause or purpose for picketing does not have to involve the First Amendment.
As to his DeBartolo argument, it is true that the Board’s definition of picketing seemingly
incorporates handbilling and that the Supreme Court differentiated between handbilling and
picketing. However, considering handbilling as an exception does not, in my view, vitiate the
validity of the Board’s definition.

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In defense, counsel for Respondent Local 1506 argues that the Board’s definition of
picketing incorrectly emphasizes its object and should to take into account the nature of the
activity and, on this point, canonically asserts that patrolling with picket signs and confrontation
must be present for a labor organization’s conduct to be considered picketing. At the outset, as
counsel assuredly recognizes, I am bound by Board law and, accordingly, must adhere to the
Board’s definition of picketing, and, while noting counsel’s contention, I do not believe that one
may reasonably contend that an individual, who is passively carrying a placard and standing in
a stationary manner at an entrance to a jobsite, is not engaged in picketing. Contrary to
counsel’s determinate view of picketing, the Board’s definition is purposefully broad, designed to
encompass conduct seemingly not fitting within the classic notion of picketing, including the
longstanding concept of signal picketing, which, as stated above, sometimes involves the mere
placement of a picket sign near an entrance to a jobsite. Further, requiring patrolling with picket
signs would mean that conduct, which is not classic picketing but which, the Board has
concluded, oversteps the bounds of propriety and goes beyond persuasion so as to become
“coercive to a very substantial degree,”17 would no longer be proscribed by Section 8(b)(4)(ii).
On this point, in Mine Workers District 29 (New Beckley Mining Corp.), 304 NLRB 71, 72 (1991),
which involved an estimated crowd of between 50 and 140 persons gathered in the parking lot
and surrounding areas of a motel in the early morning hours, notwithstanding the absence of
patrolling or picket signs, the Board found the “mass activity” to be a form of picketing
proscribed by Section 8(b)(4)(ii). Counsel for Respondents’ narrow view of picketing would
eviscerate the coercive nature of such lesser forms of picketing. Moreover, the Board has
never required intrusive or imperious behavior to be elements of picketing. In this regard, in
Service Employees Local 254 (Womens and Infants Hospital, 324 NLRB 743, 749 (1997), a
labor organization argued that, individuals, who were wearing signs and carrying placards and
who were peacefully standing at parking lot entrances and pedestrian entrances to a college
campus and distributing handbills, were not engaged in picketing. Notwithstanding the lack of
evidence of confrontational behavior, the Board adopted an administrative law judge’s
conclusion that picketing had occurred as “the carrying and/or wearing of signs and placards
place[d r]espondent’s activities beyond the mere dissemination of ideas.” Next, counsel
compares the erection and displaying of the banner to handbilling, which under DeBartalo,
supra, unaccompanied by picketing, does not itself constitute picketing, and characterizes it as
a “disciplined, passive, and direct display of information,” a “pure speech” activity entitled to full
First Amendment protection. However, I agree with counsel for the General Counsel that
Respondent Local 1506’s banner was more akin to a picket sign than a handbill in that its
display was sententiously more dramatic. On this point, Respondent Local 1506’s 20 foot wide
and four foot high banner dwarfed the size of a leaflet, and its two foot high message was
obviously designed to more rapidly catch the attention of pedestrians and motorists, who
passed by, than the lengthy message on the handbill, which the banner bearers distributed. In
fact, as in Service Employees Local 254, supra, one may reasonably argue that, given its size,
the banner itself was far more significant to Respondent Local 1506’s objectives than the idea,
which the words on the banner conveyed. Further, while one may, of course, avoid the
message of a handbill by not choosing to accept it; there could be no such choice with the
obtrusive message on the banner displayed by Respondent Local 1506. Accordingly, for the
above reasons, I believe that Respondent Local 1506’s arguments are without merit and that
the latter’s displaying of its banner constituted picketing in another guise.18

17 Service Employees Local 399 (William J. Burns International Detective Agency), 136
NLRB 431, 437 (1962).
18 My finding is wholly dependent upon the Board’s definition of picketing and the fact
matrix herein, and I express no opinion or make any finding regarding the display of the banner
Continued

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Having concluded that Respondent Local 1506 engaged in picketing, I must next
determine whether an object of its acts and conduct was to force Held, Laser Institute, or any
other person to cease doing business with Gingerich Construction. At the outset, in cases
involving picketing, allegedly violative of Section 8(b)(4)(B) of the Act, an office building, such as
the 2021 building, has been classified, by the Board as a common situs ((Service Employees
Local 87, supra; Building Service Employees Local 254 (Lechmere Sales), 173 NLRB 280
(1968)), and, based upon its admission and the handbills, which were distributed to pedestrians
by the banner bearers, Respondent Local 1506’s primary labor dispute was with Gingerich
Construction. Clearly, then, for purposes of this section of the Act, Held, Laser Institute, and
every other tenant of the 2021 building were neutral, secondary employers with regard to
Respondent Local 1506’s primary labor dispute with Gingerich Construction. However, the
Board and courts have held that, “. . . picketing at the premises of a neutral, secondary
employer . . . is not per se a violation of the Act.” Food & Commercial Workers Local 1776,
supra at 508- 509. Thus, a union’s secondary picketing of retail stores, which is confined to
persuading customers to cease buying the product of the primary employer, does not violate
Section 8(b)(4)(II)(B) of the Act. NLRB v.Fruit & Vegetable Packers Local 760, supra.19 “The
test for determining whether such picketing is lawful is the objective of the secondary activity, as
gleamed from the surrounding circumstances.” Food & Commercial Workers Local 1776, supra
at 509. Further, the substitution of violent coercion in place of peaceful persuasion, such as
herein involved, would not itself remove the acts and conduct from the proscription of Section
8(b)(4)(ii)(B), for “it is the object of union [coercion] that is proscribed by that section, rather than
the means adopted to make it felt.” International Rice Milling Co. v. NLRB, 341 U.S. 665, 672
(1951). Adhering to these principles, while I believe that, by erecting and displaying its banner,
Respondent Local 1506”s intent may have been to protest Gingerich Construction’s failure to
pay the labor organization’s area standard wages and fringe benefits to its employees and
Laser Institute’s apparent lack of interest as to whether Gingerich was, in fact, paying prevailing
area standard wages and fringe benefits, Respondent Local 1506’s acts and conduct clearly
also had an unlawful cease doing business objective. As to this, during the incident on
September 3, asked why Respondent Local 1506 was picketing at the 2021 building, Rick
Whittey, acting in his capacity as an agent for the former, told Robert Held “. . . that he wanted .
. . me to quit doing business with Gingerich and start doing business with only union contractors
. . . .” Moreover, that Respondent Local 1506’s erection and displaying of its banner, which, I
believe, was a form of picketing, failed to conform to the Moore Dry Dock20 standards for
picketing at a common situs, such as the 2021 building, is further evidence of a secondary
object.21 In this regard, notwithstanding that Robert Held informed Whittey the Gingerich
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in any other location or at any other distance from the 2021 building entrances.
19 Likewise, in Carpenters District Council of Detroit (The Douglas Company), 322 NLRB
612 at 612 (1996), the union’s jobsite picketing was “engaged in solely for the lawful purpose of
protesting [the primary’s] failure to meet area standards.” As the picket signs correctly identified
the primary and as there was no evidence of a secondary object, the Board found that the
picketing did not violate Section 8(b)(4)(B) of the Act.
20 Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950).
21 The four criteria require that (1) the picketing be strictly limited to times when the situs of
the dispute is located on the secondary employer’s premises; (2) the primary employer be
engaged in its normal business at the situs at the time of the picketing; (3) the picketing be
limited to places reasonably close to the location of the situs; and (4) the picketing disclose
clearly that the dispute is with the primary employer. If the picketing conforms to these criteria,
Continued

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employees worked, each day, from midnight to 10:00am; Respondent Local 1506 erected and
displayed its banner each day when no Gingerich Construction employees were working inside
the Laser Institute office suite, and, of course, the banner failed to disclose that Local 1506’s
primary dispute was with Gingerich Construction.22 In these circumstances, including Whttey’s
admission and the nature of Respondent Local 1506’s conduct, I believe the latter’s displaying
of the banner at the 2021 building had a clear secondary objective-- that of placing pressure
upon Laser Institute and the other tenants of the 2021 building to, in turn, place pressure upon
Held to force it to cease doing business with Gingerich Construction. In these circumstances, I
find that Respondent Local 1506’s acts and conduct were violative of Section 8(b)(4)(ii)(B) of the
Act. Service Employees Local 87, supra.

CONCLUSIONS OF LAW

1. Held is, and has been at all times material herein, an employer engaged in commerce
or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. Laser Institute is, and has been at all times material herein, an employer engaged in
commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7)
of the Act.

3. Respondent Local 1506 is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.

4. Held, Laser Institute, Medical Associates, and Gingerich Construction are, and have
been at all times material herein, persons engaged in commerce or in businesses affecting
commerce within the meaning of Section 8(b)(4) of the Act.

5. From September 8 through and including October 15, 2003, by picketing at the 2021
building by means of a banner, which failed to identify Gingerich Construction as the employer
with which it had a primary labor dispute, at times when Gingerich Construction employees were
not working at the Laser Institute’s suite of offices, Respondent Local 1506 engaged in said acts
and conduct for an object of placing pressure upon Laser Institute and the other tenants of the
2021 building to, in turn, place pressure upon Held to force it to cease doing business with
Gingerich Construction.

6. The aforementioned unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.

THE REMEDY

Having found that Respondent Local 1506 has engaged in certain unfair labor practices
within the meaning of Section 8(b)(4)(ii)(B) of the Act, I shall recommend that Respondent Local
1506 be ordered to cease and desist from engaging in said acts and conduct and to take certain
affirmative actions designed to effectuate the purposes and policies of the Act.
_________________________
it is presumed to be lawful primary picketing. Oil Workers Local 1-591 (Burlington Northern
Railroad), 325 NLRB 324, 327 at n. 11 (1998).
22 Bluntly put, while the wording on the banner was not untruthful, in the circumstances of
this case, the display of the banner constituted picketing. Thus, Respondent Local 1506’s
failure to name the primary employer on its banner evidenced a secondary object.

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23

ORDER

Respondent, Carpenters Local Union No. 1506, United Brotherhood of Carpenters and
Joiners of America, its officers, agents, and representatives, shall

1. Cease and desist from

Picketing, or by any like or related conduct, including erecting and displaying a
banner, threatening, coercing, or restraining Held, Laser Institute, Medical Associates, or
any other person engaged in commerce or in an industry affecting commerce where an
object of thereof is to place pressure upon Laser Institute or any other person to, in turn,
place pressure upon Held to force it to cease doing business with Gingerich
Construction.

2. Respondent Local 1506 shall take the following affirmative actions necessary to
effectuate the policies of the Act

(a) Within 14 days after service by the Region, post at its office in Los Angeles,
California copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being signed by Respondent Local 1506's
authorized representative, shall be posted by Respondent Local 1506 immediately upon receipt
and maintained for 60 consecutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall be taken by Respondent
Local 1506 to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, Respondent Local 1506 has gone
out of business or closed the facility involved in these proceedings, it shall duplicate and mail, at
its own expense, a copy of the notice to all current members and former members as of
September 8, 2003.

(b) Sign and return to the Regional Director sufficient copies of the notice for posting by
Held and Laser Institute, if willing, at all places where notices to employees are customarily
posted.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
24 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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IT IS FURTHER ORDERED that the consolidated complaint be, and the same hereby is,
dismissed insofar as it alleges that Respondent Regional Council engaged in any acts and
conduct violative of the Act.

Dated, San Francisco, California; April 2, 2004

-----------------------------------------------
Burton Litvack
Administrative Law Judge

JD(SF)–24–04
SANTA MONICA, CA

APPENDIX

NOTICE TO MEMBERS

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.

WE WILL NOT, by picketing or any other like or related conduct, including displaying a banner,
threaten, coerce, or restrain the following neutral entities:

Held Properties, Inc. (Held) and The Laser Institute For Dermatology & European Skin
Care (Laser Institute)

or any other person engaged in commerce or in an industry affecting commerce where an
object thereof is to place pressure upon Laser Institute or any other person to, in turn, place
pressure upon Held to force it to cease doing business with Gingerich Construction.

CARPENTERS LOCAL UNION NO. 1506,
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA
(Labor Organization)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (310) 235-7123.