Labor-mgmt rlt law

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Read Kentov ex rel. NLRB v. Sheet Metal Workers’ Int’l Ass’n Local 15, AFL-CIO, 418 F.3d 1259 (11th Cir. 2005) and United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 355 N.L.R.B. 797 (2010). Both readings are linked from the Course Schedule page.

1. a short, not to exceed five-hundred (500) word, memorandum distinguishing the holdings in Kentov ex rel. NLRB v. Sheet Metal Workers’ Int’l Ass’n Local 15, AFL-CIO, 418 F.3d 1259 (11th Cir. 2005) and United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 355 N.L.R.B. 797 (2010). 

2. an even shorter, not to exceed two-hundred and fifty (250) word, memorandum in which you share your collective opinion as to whether as a practical (as opposed to legal) matter the unions’ actions in these two cases were likely to be successful or not.

ROCHELLE KENTOV, Regional Director of the 12th Region of the National Labor
Relations Board, for and on behalf of the National Labor Relations Board,

Plaintiff-Appellee, versus SHEET METAL WORKERS’ INTERNATIONAL
ASSOCIATION LOCAL 15, AFL-CIO, Defendant-Appellant.

No. 04-14126

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

418 F.3d 1259; 2005 U.S. App. LEXIS 16461; 177 L.R.R.M. 3025; 151 Lab. Cas.
(CCH) P10,524; 18 Fla. L. Weekly Fed. C 788

August 8, 2005, Decided
August 8, 2005, Filed

PRIOR HISTORY: [**1] Appeal from the United
States District Court for the Middle District of Florida. D.
C. Docket No. 04-01730-CV-JDW-TBM.

DISPOSITION: AFFIRMED and REMANDED.

COUNSEL: For Sheet Metal Workers’ International
Association Loc, Appellant: Michael T. Anderson, Arlus
Jeremhiah Stephens, Davis, Cowell & Bowe, LLP,
Washington, DC; Richard P. Siwica, Egan, Lev &
Siwica, Orlando, FL.

For Rochelle Kentov, Appellee: Judith I. Katz, Margaret
E. Luke, Esq., National Labor Relations Board,
Wwashington, DC; Steven Sokolow, NLRB, Deputy
Assistant General Counsel, Washington, DC.

Amicus for Greenpeace USA: Jamin B. Raskin,
American University, Washington College of Law,
Washington, DC.

Amicus for Associated Builders and Contractors, Inc.:
Maurice Baskin, Venable, LLP, Washington, DC.

Amicus for Galencare, Inc.: Tammie Leigh Rattray, Ford
& Harrison, LLP, Tampa, FL.

JUDGES: Before TJOFLAT and KRAVITCH, Circuit
Judges and LIMBAUGH, District Judge.*

* Honorable Stephen Limbaugh, United States
District Judge for the Eastern District of Missouri,
sitting by designation.

OPINION BY: KRAVITCH

OPINION

[*1261] KRAVITCH, Circuit Judge:

Sheet Metal Workers’ International Association
Local 15, AFL-CIO (“the Union”), appeals the district
[**2] court’s grant of a petition for a temporary
injunction under Section 10(l) of the National Labor
Relations Act (“NLRA”), filed by Rochelle Kentov, the
Regional Director of the Twelfth Region of the National
Labor Relations Board (“the Board”).

I. Background

The Union has a labor dispute with Massey Metals,
Inc. (“Massey”) and Workers Temporary Staffing
(“WTS”), in connection with their use of non-union labor
for an ongoing construction project at Brandon Regional

Page 1

Medical Center (“the hospital”). 1 Massey is a sheet metal
fabrication and installation contractor and WTS is a
staffing agency that supplies labor employees to Massey.

1 The hospital is a 277 bed acute care facility
with approximately 1,500 employees.

On March 15, 2004, the key event giving rise to the
instant case occurred. For about two hours, the Union
staged a mock funeral procession in front of the hospital.
Specifically, the procession entailed four representatives
carrying a large object resembling a coffin back and forth
on a [**3] sidewalk along Oakfield Drive, crossing
South Moon Avenue which leads directly into the
hospital’s main entrance and intersects with Oakfield
Drive. 2 Oakfield Drive and South Moon Avenue
intersect about 100 feet from the hospital’s main entrance.
The four representatives were accompanied by another
Union representative, who wore an oversized grim reaper
costume and carried a large sickle. As the procession
passed in front of the hospital, the “grim reaper” marched
along with the “pallbearers.”

2 The event was documented by a videotape
which is part of the record. The parties agree that
the video fairly depicts what occurred.

As part of the procession, the Union broadcasted
somber funereal music over loud speakers mounted on a
flatbed trailer that was positioned nearby. In addition,
four other Union representatives, some wearing t-shirts
bearing the Union logo, distributed handbills to persons
entering and leaving the hospital. The handbills
accurately detailed allegations from state court lawsuits
concerning [**4] four recent patient deaths at the
hospital. 3 They were entitled: “Going to Brandon
Regional Hospital Should Not be a Grave Decision.”
Each handbill contained the statement: “A public service
message from the Sheet Metal Workers’ International
Association.”

3 There is no allegation that the handbills were
false or misleading.

The mock funeral procession was orderly. Traffic
was not blocked and pedestrians [*1262] were not
obstructed. The individuals handing out leaflets were
orderly and did not interfere or impede with the egress or
ingress of any individuals to or from the hospital. No
citations or arrests were made. Some passers-by walked
up to the Union representatives to inquire about the

purpose of the demonstration. One person who received a
handbill talked to a Union representative about the
allegedly improper care her husband was receiving as a
patient in the hospital.

A hospital security officer reported that a wife of a
patient at the hospital who had died that morning became
upset at seeing the demonstration [**5] and would not
walk out to her car because doing so required her to pass
by the demonstration. Another individual who had a
family member being treated inside the hospital
complained to security officers about the demonstration
because he did not think it was appropriate.

Following the event in question, on March 17, 2004,
the hospital filed an unfair labor practice charge with the
Board, alleging, inter alia, that the Union’s conduct
constituted an unlawful secondary boycott, in violation of
Section 8(b)(4)(ii)(B) of the NLRA, 29 U.S.C. §
158(b)(4)(ii)(B), in that it coerced or restrained the
neutral secondary employer hospital and its patients and
visitors with an object of forcing or requiring the hospital
to cease doing business with Massey and WTS, with
whom the Union has a primary labor dispute.

On July 27, 2004, the Board’s Regional Director filed
a petition in the United States District Court for the
Middle District of Florida, seeking an interim injunction
under Section 10(l) of the NLRA, 29 U.S.C. § 160(l),
pending completion of the Board’s administrative
proceedings against the Union. The district court granted
the [**6] petition, finding reasonable cause to believe
that the Union had engaged in unfair labor practices in
violation of Section 8(b)(4)(ii)(B) and that interim
injunctive relief was just and proper. 4 The Union now
appeals, raising two issues: (1) whether the district court
erred in granting the interim injunction; and (2) even if an
injunction is proper, whether this particular injunction is
overbroad.

4 In pertinent part, the injunction “enjoined and
restrained [the union] from threatening, coercing
or restraining [the hospital] by staging street
theater, processions, picketing, patrolling and/or
any manner of conduct calculated to induce
individuals not to patronize the hospital, when
conducted with an objective of forcing or
requiring [the hospital] to cease handling or
otherwise dealing in the products or services of or
to cease doing business with [Massey] and/or
[WTS].” The injunction did not prohibit peaceful

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177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524

handbilling without picketing, patrolling, or
procession.

II. Standard of Review

[**7] We review the district court’s findings of fact
for clear error and its conclusions of law for error. Arlook
v. S. Lichtenberg & Co., Inc., 952 F.2d 367, 372 (11th
Cir. 1992). Finally, we review the district court’s grant of
the requested relief for abuse of discretion. Id.

III. Discussion

Section 10(l) of the NLRA authorizes district courts
to grant temporary injunctive relief pending the Board’s
resolution of certain unfair labor practice charges, such as
secondary boycotts, which are likely to have a disruptive
effect upon the flow of commerce. 29 U.S.C. § 160(l);
Dowd v. Int’l Longshoremen’s Ass’n, 975 F.2d 779,
782-83 (11th Cir. 1992). A Section 10(l) proceeding is
ancillary to the Board’s administrative proceedings, and
the ultimate determination of the merits of the unfair
labor practice case is reserved for the Board, subject to
review by the courts of [*1263] appeals under Sections
10(e) and (f) of the NLRA. See Dowd, 975 F.2d 779.

In reviewing the grant of a Section 10(l) injunction,
we consider only: (1) whether the Board has shown
“reasonable cause to believe” that a union has [**8]
violated the NLRA as alleged, and if so, (2) whether
injunctive relief is “just” and “proper.” See Id. at 783. In
Dowd, this court explained:

When confronted with a petition for
injunction under section 10(l), the function
of the District Court is not to determine
whether an unfair labor practice has in fact
been committed, but simply to determine
whether there is reasonable cause to
believe that a violation of the [National
Labor Relations] Act has occurred. The
district court’s inquiry into reasonable
cause is limited to evaluating whether the
Board’s theories of law and fact are not
insubstantial and frivolous. This
deferential review is appropriate at the
injunction stage even where the theory
underlying the petition is ‘untested’ or
‘novel,’ in order to preserve the legal issue
for Board determination. In addition to
demonstrating reasonable cause to believe

that an unfair labor practice has occurred,
the Board must show that equitable relief
is ‘just and proper’ under the
circumstances.

Id. (internal citations and quotation marks omitted).

Applying this deferential review here, we first
examine whether there is reasonable cause [**9] to
believe that the Union violated Section 8(b)(4)(ii)(B) of
the NLRA, which prohibits secondary boycotts. Section
8(b)(4)(ii)(B) states that it is “an unfair labor practice for
a labor organization . . . to threaten, coerce, or restrain
any person engaged in commerce . . . where . . . an object
thereof is . . . forcing or requiring any person to . . . cease
doing business with any other person.” 29 U.S.C. §
158(b)(4)(ii)(B). This provision aims to prohibit a union
that has a labor dispute with one employer (the primary
employer) from exerting pressure on another neutral
employer (the secondary employer), where the union’s
conduct is calculated to force the secondary employer to
cease doing business with the primary employer. See
National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612,
620-27, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967). As the
Supreme Court has explained, Section 8(b)(4)(ii)(B)
implements “the dual congressional objectives of
preserving the right of labor organizations to bring
pressure to bear on offending employers in primary labor
disputes and of shielding unoffending employers and
others from pressures in controversies not their own.”
NLRB v. Denver Bldg. & Constr. Trades Council, 341
U.S. 675, 692, 95 L. Ed. 1284, 71 S. Ct. 943 (1951).
[**10]

A violation of Section 8(b)(4)(ii)(B) consists of two
elements: (1) a union engages in conduct that threatens,
coerces, or restrains an employer or other person engaged
in commerce; and (2) an object of the union’s conduct is
to force or require an employer or person not to handle
the products of, or to do business with, another person.
See 29 U.S.C. § 158(b)(4)(ii)(B). The satisfaction of the
second element is not in dispute here, as the Union
concedes that at least one of its objectives in staging the
mock funeral procession was to pressure the hospital to
cease doing business with WTS and Massey. 5 Therefore,
our focus is on whether [*1264] the Union threatened,
coerced, or restrained the hospital within the meaning of
the NLRA. 6

5 Any other objectives that the Union may have

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177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524

had, such as publicizing allegations of improper
patient care, do not control the secondary boycott
analysis. See Denver Bldg. & Constr. Trades
Council, 341 U.S. at 689; Pye v. Teamsters Local
Union No. 122, 61 F.3d 1013, 1023 (1st Cir.
1995).
6 Coercion under Section 8(b)(4)(ii)(B) involves
“nonjudicial acts of a compelling or restraining
nature, applied by way of concerted self-help
consisting of a strike, picketing, or other
economic retaliation and pressure in the
background of a labor dispute.” Carpenters
Kentucky State Dist. Council (Wehr Constr.,
Inc.), 308 N.L.R.B. 1129, 1130 n.2 (1992)
(quoting Sheet Metal Workers Local 48 v. Hardy
Corp., 332 F.2d 682, 686 (5th Cir. 1964)).

[**11] The Union’s principal defense is that the
First Amendment protected its activities. To advance this
argument, the Union relies on the Supreme Court’s
decision in Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 99 L. Ed.
2d 645, 108 S. Ct. 1392 (1988). There, a union peacefully
distributed truthful handbills to customers near
businesses in a shopping mall which urged customers not
to shop at any of the stores until the mall owner publicly
promised that all construction work would be done using
contractors who pay their employees fair wages.
DeBartolo, 485 U.S. at 570. The union’s primary labor
dispute was with the construction company, but it sought
to exert pressure on the mall owner through a consumer
boycott to cease doing business with the non-union
construction company. Id. at 569. The issue became
whether the union’s handbilling violated Section
8(b)(4)(ii)(B). Id. at 573-74.

Recognizing the serious First Amendment problems
involved in construing the NLRA to prohibit the union’s
handbilling, the Court applied the constitutional
avoidance doctrine, reasoning that interpreting Section
8(b)(4)(ii)(B) [**12] to not reach the handbilling
conformed with congressional intent. Id. at 575-76. The
Court never answered the constitutional question of
whether the First Amendment protected the union’s
handbilling, but simply held that the handbilling was not
coercive within the meaning of Section 8(b)(4)(ii)(B). Id.
at 578, 588.

DeBartolo dealt only with a union’s peaceful
handbilling in the absence of any accompanying

picketing or patrolling. Therefore, the Union’s reliance on
that case is misplaced. Indeed, in DeBartolo, the Court
carefully distinguished peaceful expressive handbilling
from picketing and patrolling, which it reasoned are
“qualitatively different from other modes of
communication” and more likely to be found coercive
under the NLRA.7 Id. at 580. Citing to Justice Stevens’s
concurrence in NLRB v. Retail Store Employees, 447
U.S. 607, 65 L. Ed. 2d 377, 100 S. Ct. 2372 (1980)
(Safeco), the Court explained:

[Picketing is] a mixture of conduct and
communication and the conduct element
[*1265] often provides the most
persuasive deterrent to third persons about
to enter a business establishment.
Handbills [**13] containing the same
message…are much less effective than
labor picketing because they depend
entirely on the persuasive force of the
idea.

Id. (internal quotation marks and citations omitted). Thus,
apart from peaceful, truthful handbilling, the Court
recognized that many other forms of union secondary
pressure do not raise First Amendment concerns.

7 To further support its First Amendment
argument, the Union cites to the Ninth Circuit’s
recent decision in Overstreet ex rel. NLRB v.
United Bhd. of Carpenters & Joiners of Am.,
Local 1506, 409 F.3d 1199, 2005 WL 1346720
(9th Cir. June 8, 2005). As with its citation to
DeBartolo, the Union’s reliance on Overstreet is
misplaced. Overstreet involved a union’s use of
stationary banners, without any accompanying
patrolling or picketing. The Overstreet court
repeatedly noted that the union did not engage in
any picketing or patrolling and acknowledged that
picketing and patrolling may be enjoined.
Overstreet, 409 F.3d 1199, 2005 WL at *9-12
(noting that “as in DeBartolo, the Carpenters’
bannering does not involve patrolling . . .); see
also Benson v. United Brotherhood of Carpenters
& Joiners of America, Locals 184 and 1498, 337
F. Supp. 2d 1275, 1278-79 (also involving
stationary union bannering and distinguishing it
from union picketing and patrolling).

[**14] In doing so, DeBartolo reaffirmed

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177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524

longstanding Supreme Court precedent that the Board can
regulate union secondary picketing under Section
8(b)(4)(ii)(B) without implicating the First Amendment.
E.g., International Longshoremen’s Ass’n v. Allied Int’l,
Inc., 456 U.S. 212, 226, 72 L. Ed. 2d 21, 102 S. Ct. 1656
(1982) (“we have consistently rejected the claim that
secondary picketing by labor unions in violation of §
8(b)(4) is protected activity under the First
Amendment.”); Safeco, 447 U.S. 607, 616 (1980)
(plurality opinion) (“As applied to picketing that
predictably encourages consumers to boycott a secondary
business, § 8(b)(4)(ii)(B) imposes no impermissible
restrictions upon constitutionally protected speech”); Int’l
Brotherhood of Electrical Workers, Local 501 v. NLRB,
341 U.S. 694, 705, 95 L. Ed. 1299, 71 S. Ct. 954 (1951)
(prohibition against secondary picketing “carries no
unconstitutional abridgement of free speech”). These
decisions are grounded in the recognition that the “labor
laws reflect a careful balancing of interests” and under
those laws “conduct designed not to communicate but
coerce” merits less protection under the First
Amendment. [**15] Allied Int’l, Inc., 456 U.S. at 226.

Here, the question is whether the Union’s activity
was equivalent to secondary picketing and patrolling
which can be regulated under Section 8(b)(4)(ii)(B), or
more like peaceful handbilling, which raises First
Amendment concerns. We readily conclude that there is
reasonable cause to believe that the Union’s conduct falls
in the former category as being the functional equivalent
of picketing, and therefore, the First Amendment
concerns in DeBartolo are not present in this case.
Although the Union did not carry traditional picket signs,
it is well-settled that the existence of placards on sticks is
not a prerequisite to a finding that a union engaged in
picketing. E.g., Mine Workers Dist. 2 (Jeddo Coal Co.),
334 N.L.R.B. 677, 686 (2001); Service Employees Local
87 (Trinity Building Co.), 312 N.L.R.B. 715, 743 (1993).
Instead, “the important feature of picketing appears to be
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
[**16] from the employer’s business.” Lumber &
Sawmill Workers Local Union No. 2797 (Stoltze Land &
Lumber Co.), 156 N.L.R.B. 388, 394 (1965).

Here, the Union representatives patrolled for
approximately two hours near the entrance of the
hospital, carrying a large coffin and accompanied by a

Union representative dressed as the grim reaper complete
with a large sickle. During the procession, the Union
played somber funereal music from large speakers. This
activity could reasonably be expected to discourage
persons from approaching the hospital, to the same
degree, if not more, as would five union agents carrying
picket signs. Like traditional secondary picketing, the
Union’s procession was a “mixture of conduct and
communication” intended to “provide the most persuasive
deterrent to third persons about to enter” the hospital.
[*1266] DeBartolo, 485 U.S. at 582. One of the Union’s
objectives in staging the procession was to exert pressure
on the hospital to cease doing business with the
non-union contractors, with whom the Union had a
primary labor dispute. Under these facts, we hold that
there is reasonable cause to believe that the Union
violated Section 8(b)(4)(ii)(B) of the NLRA. 8 [**17]

8 Our holding is buttressed by the fact that the
Administrative Law Judge (“ALJ”) in the
underlying unfair labor practice case recently
issued a decision, Sheet Metal Workers’ Int’l
Local 15 (Brandon Regional Medical Center),
Case 12-CC-1258 et al. (December 7, 2004), in
which it found that the Union’s activities on
March 15, 2004 constituted a secondary boycott.
See Rivera-Vega v. ConAgra, Inc., 70 F.3d 153,
161 (1st Cir. 1995) (district court’s finding of
reasonable cause was “confirmed by the fact that
the administrative law judge, who held a hearing
and took evidence of the NLRB’s allegations”
concluded that the violations occurred).

In addition, interim injunctive relief was just and
proper. Notably, after the Board commenced the
administrative action, the Union’s counsel notified the
Board that, following a two week hiatus, the Union
intended to engage in similar activities. Furthermore, the
Union had a track record of engaging in secondary
pressure against the hospital. [**18] 9 Injunctive relief
was just and proper to prevent the potential adverse
impact of secondary boycotts at the hospital and to
preserve the status quo pending the Board’s final action.

9 In January 2003, the Union placed a 12-15 foot
inflated rat balloon near the hospital’s main
entrance. Concurrently, the Union distributed
handbills that proclaimed “There’s a ‘Rat’ at
Brandon Regional Hospital.” The handbills
depicted a rat in a patient’s room and complained

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of WTS’s allegedly unlawful conduct. Due to this
activity, in March 2003, the hospital filed an
unfair labor practice charge against the Union,
alleging that the Union had engaged in a unlawful
secondary boycott, in violation of the NLRA. In
April 2003, the Board and the Union entered into
a settlement agreement in which the Union agreed
not to make false or misleading statements about
the hospital, not to use a large inflated rat to
discourage consumers from using the hospital,
and not to in any other manner coerce the hospital
with an object of forcing the hospital to stop
doing business with WTS or other persons. The
Union’s actions on March 15, 2004 that are at
issue in this appeal resulted in a setting aside of
the settlement agreement. Accordingly, the
Regional Director issued an administrative
complaint alleging that the Union’s conduct on
March 15, 2004 was unlawful, as well as the
earlier conduct in January 2003. On December 7,
2004, an administrative law judge (“ALJ”) issued
a decision in the underlying unfair labor practice
case, finding that the Union had violated the
NLRA on both occasions. See supra, note 8.

[**19] Finally, we address the Union’s argument
that the injunction is unconstitutionally overbroad. The
Union maintains that even if its mock funeral procession
did not implicate the First Amendment, the breadth of the
interim injunction does. In particular, the Union contends
that the injunction forbids any nonhandbilling activity
and does not provide sufficient distance limitations. As a
preliminary matter, the Board concedes that its 10(l)
petition did not seek to enjoin all “street theater” and
invites us to modify the injunction to remove that term. In
light of this concession, we remand to the district court to
modify the injunction by deleting the phrase “street
theater.” See Schaub v. West Michigan Plumbing &
Heating, Inc., 250 F.3d 962, 971-72 (6th Cir. 2001)
(modifying injunction which exceeded relief sought).

Even with this modification, the Union argues that
the injunction goes too far. We disagree. After the
modification, the injunction provides in pertinent part

that the Union is:

[*1267] enjoined and restrained from
threatening, coercing or restraining [the
hospital] by staging processions,
picketing, patrolling and/or any manner of
conduct calculated [**20] to induce
individuals not to patronize the hospital,
when conducted with an objective of
forcing or requiring [the hospital] to cease
handling or otherwise dealing in the
products or services of or to cease doing
business with [Massey] and/or [WTS] . . .

Citing to DeBartolo, the injunction specifically excludes
from its prohibition peaceful handbilling without
picketing, patrolling, or procession. Contrary to the
Union’s contention, the injunction does not encompass all
non-handbilling activity, but rather encompasses only
coercive conduct that has a secondary objective at the
approach to the neutral hospital. The Supreme Court has
made it clear that coercion within the meaning of Section
8(b)(4)(ii)(B) is not protected by the First Amendment.
See, e.g., DeBartolo, 485 U.S. at 579-80. Indeed, the
wording of the injunction is comparable to that of Section
8(b)(4)(ii)(B) orders that courts routinely enforce. E.g.,
Pye v. Teamsters Local Union No. 122, 61 F.3d 1013,
1018 n.4 (1st Cir. 1995); Dowd v. Int’l Longshoremen’s
Ass’n, 781 F. Supp. 1565, 1575 (M.D. Fla. 1991), aff’d,
975 F.2d 779 (11th Cir. 1992). [**21] Furthermore, the
injunction is in accordance with longstanding remedies in
this context that do not contain distance limitations. See
Safeco, 447 U.S. at 619 (Stevens, J., concurring); Jeddo
Coal Co., 334 N.L.R.B. at 689; Trinity Building Co., 312
N.L.R.B. at 756, enf’d, 103 F.3d 139 (9th Cir. 1996).
Under these circumstances, the interim injunction, as
modified, is appropriate.

For the foregoing reasons, we AFFIRM the judgment
of the district court but REMAND for modification of the
injunction to delete the phrase “street theater.”

AFFIRMED and REMANDED.

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177 L.R.R.M. 3025; 151 Lab. Cas. (CCH) P10,524

United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and
Eliason & Knuth of Arizona, Inc.; United Brotherhood of Carpenters and Joiners of

America, Local Union No. 1506 and Northwest Medical Center; United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1506 and Ra Tempe Corporation.

Cases 28-CC-955, 28-CC-956, 28-CC-957

NATIONAL LABOR RELATIONS BOARD

355 N.L.R.B. 797; 2010 NLRB LEXIS 321; 189 L.R.R.M. 1041; 2010-11 NLRB Dec.
(CCH) P15,306; 355 NLRB No. 159

August 27, 2010

SUBSEQUENT HISTORY:
[*1] Companion case at United Bhd. & Joiners, Local Union No. 1506, 2010 NLRB LEXIS 364 (Sept. 22, 2010)

JUDGES: By Wilma B. Liebman, Chairman; Craig Becker, Member; Mark Gaston Pearce, Member

OPINION:

DECISION AND ORDER

Introduction

This case presents an issue of first impression for the Board: does a union violate Section 8(b)(4)(ii)(B) of the
National Labor Relations Act when, at a secondary employer’s business, its agents display a large stationary banner
announcing a “labor dispute” and seeking to elicit “shame on” the employer or persuade customers not to patronize the
employer. Here, the Union peaceably displayed banners bearing a message directed to the public. The banners were
held stationary on a public sidewalk or right-of-way, no one patrolled or carried picket signs, and no one interfered with
persons seeking to enter or exit from any workplace or business. On those undisputed facts, we find that the Union’s
conduct did not violate the Act.

The language [*2] of the Act and its legislative history do not suggest that Congress intended Section 8(b)(4)(ii)(B)
to prohibit the peaceful stationary display of a banner. Furthermore, a review of Board and court precedent demonstrates
that the nonconfrontational display of stationary banners at issue here is not comparable to the types of conduct found to
“threaten, coerce, or restrain” a neutral employer under Section 8(b)(4)(ii)(B) — picketing and disruptive or otherwise
coercive nonpicketing conduct.

Our conclusion about the reach of the prohibition contained in Section 8(b)(4)(ii)(B) is strongly supported, if not
compelled, by our obligation to seek to avoid construing the Act in a manner that would create a serious constitutional
question. n1 Governmental regulation of nonviolent speech–such as the display of stationary banners–implicates the
core protections of the First Amendment. The crucial question here, therefore, is whether the display of a stationary

Page 1

banner must be held to violate Section 8(b)(4)(ii)(B) or, instead, “whether there is another interpretation, not raising
these serious constitutional concerns, that may fairly be ascribed to” the statutory provision. Edward J. DeBartolo Corp.
v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 577, 108 S. Ct. 1392, 99 L. Ed. 2d 645
(1988). [*3]

n1 See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,
485 U.S. 568, 575, 577, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988); NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 500, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979).

As we indicated above, the answer to the question posed by the Supreme Court in DeBartolo is clear in this case.
Nothing in the language of the Act or its legislative history requires the Board to find a violation and thus present for
judicial review the constitutionality of Section 8(b)(4)(ii)(B) as applied to the peaceful display of a stationary banner.
Rather, the display of a stationary banner, like handbilling and even certain types of picketing, n2 is noncoercive
conduct falling outside the proscription in Section 8(b)(4)(ii)(B). n3

n2 See NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129
(1964) (Tree Fruits) (applying canon of constitutional avoidance to hold that Sec. 8(b)(4)(ii)(B) does not bar all
forms of peaceful consumer picketing); NLRB v. Drivers Local Union No. 639, 362 U.S. 274, 80 S. Ct. 706, 4 L.
Ed. 2d 710 (1960) (Curtis Bros.) (applying canon to hold that peaceful picketing for recognition by minority
union did not violate the pre-Landrum-Griffin Sec. 8(b)(1)(A)). In both Tree Fruits and Curtis Bros., as well as
in DeBartolo, supra, the Supreme Court rejected the Board’s view that unions had committed unfair labor
practices.

[*4]

n3 The General Counsel has sought injunctive relief in federal district court under Sec. 10(l) of the Act in
four cases involving display of banners. Despite the deferential standard applied to applications for such relief,
the district court in each of those cases rejected the contention that display of banners violated the Act. In the
one case where the decision was tested on appeal, the United States Court of Appeals for the Ninth Circuit
affirmed the district court’s decision. See Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005),
affirming Overstreet v. Carpenters Local 1506, 2003 U.S. Dist. LEXIS 19854, 2003 WL 23845186 (S.D. Cal.
2003); Gold v. Mid-Atlantic Regional Council of Carpenters, 407 F.Supp.2d 719 (D. Md. 2005); Benson v.
Carpenters Locals 184 & 1498, 337 F.Supp.2d 1275 (D. Utah 2004); Kohn v. Southwest Regional Council of
Carpenters, 289 F.Supp.2d 1155 (C.D. Cal. 2003).

For both of those reasons, we dismiss the allegations.

On the entire record, the Board makes the following

FINDINGS [*5] OF FACT

I. JURISDICTION n4

n4 On November 12, 2003, Eliason & Knuth of Arizona, Inc. filed a charge in Case 28-CC-955. On
December 3, 2003, Northwest Hospital, LLC filed a charge in Case 28-CC-956. On December 17, 2003, RA
Tempe Corporation filed a charge in Case 28-CC-957. Pursuant to these charges, the General Counsel of the

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National Labor Relations Board issued an order consolidating cases, a consolidated complaint, and a notice of
hearing on January 23, 2004. The consolidated complaint alleges that the Respondent-Union, the United
Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 (“the Union”), engaged in and was
engaging in unfair labor practices in violation of Sec. 8(b)(4)(ii)(B) of the Act. Copies of the charges, the
consolidated complaint and notice of hearing were served on the Union. Thereafter, the Union filed a timely
answer denying the commission of any unfair labor practices.

On March 1, 2004, the parties filed with the Board a joint motion to transfer the proceeding to the Board
and for approval of the parties’ stipulation of facts. The joint motion stated in relevant part that the parties agreed
that the unfair labor practice charge, the complaint and consolidated complaint, the answer, the statement of
issues presented, the stipulation of facts, and the parties’ position statements constituted the entire record in the
case. The parties further stipulated that they waived a hearing before an administrative law judge and the
issuance of findings of fact, conclusions of law, and order by an administrative law judge and that they desired
to submit the case for findings of fact, conclusions of law, and Order by the Board. On June 30, 2004, the Board
approved the stipulation and transferred the proceeding to the Board for issuance of a decision and order.
Thereafter, the General Counsel, the Union, and Charging Parties Eliason & Knuth and RA Tempe Corporation
filed briefs. (Charging Party Northwest Hospital, LLC did not file a brief, but stated in the stipulation of facts
that it adopts the position taken by the General Counsel).

[*6]

The parties have stipulated to the status of all relevant companies as persons and/or employers engaged in
commerce and in industries affecting commerce within the meaning of Section 2(1), (2), (6) and (7) and 8(b)(4) of the
Act. n5 The parties also stipulated that the Union is a labor organization within the meaning of Section 2(5) of the Act.
Based on these stipulations, we find that the Board possesses jurisdiction over this matter.

n5 Appendix A provides the relevant locations and incorporations of the companies at issue.

II. THE ALLEGED UNFAIR LABOR PRACTICES

A. Facts

At all material times, the Union has been involved in primary labor disputes with four employers engaged in
construction: Eliason & Knuth (E&K), Delta/United Specialties (Delta), Enterprise Interiors, Inc. (Enterprise), and
Hardrock Concrete Placement Co. Inc. (Hardrock). The Union asserts that those companies (the primary employers or
“primaries”) do not pay their employees wages and benefits that accord with area standards.

In furtherance [*7] of its labor disputes with the primary employers, the Union engaged in peaceful protest
activities at three locations: the Thunderbird Medical Center in Phoenix, Arizona; the Northwest Medical Center in
Tucson, Arizona; and the RA Tempe restaurant in Tempe, Arizona. The stipulation does not indicate whether the Union
also had labor disputes with Banner Medical, Northwest Hospital, or RA Tempe (the companies operating at the sites of
the union activities and to which the primaries were providing services) regarding the treatment of their employees or
with Bovis Lend Lease, Layton Construction Company of Arizona, or R.D Olsen Construction (the general contractors
who directly retained the primaries to perform work for the secondaries). For purposes of this opinion, therefore, we
assume that no such disputes existed. n6 These companies (the secondary employers or “secondaries”) had no
collective-bargaining relationship with the Union, and the Union was not seeking to organize their employees. As
described in Appendix B, one location of the protest activities was the facility of a secondary employer where a primary
was performing construction work (Banner Medical). Another location was [*8] the facility of secondary employer
Northwest Medical Center. The primary employer was not present when the banner was displayed there, but was

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performing work at a facility owned by Northwest’s parent company. The third location was a restaurant operated by
secondary employer RA Tempe. As at Northwest, the primary employer was not present when the banner was
displayed, but was performing work at a facility owned by RA Tempe’s parent company.

n6 The relationships between the facilities’ owners and their general contractors are set out in Appendix A.

At each of those locations, as described in detail in Appendix B, the Union placed and maintained a banner on a
public sidewalk or public right-of-way outside of the secondary Employer’s facility, facing away from the facility such
that the banner’s message could be seen by passing motorists. The banners were held parallel to the sidewalk at the edge
of the street so they in no way blocked the sidewalks. The banners were 3 or 4 feet high and from 15 to 20 feet long [*9]
and, at the Thunderbird and Northwest Medical Centers, read: “SHAME ON [secondary employer]” in large letters,
flanked on either side by “Labor Dispute” in smaller letters. At RA Tempe, the middle section of the banner read,
“DON’T EAT ‘RA’ SUSHI.” The banners were placed between 15 and 1,050 feet from the nearest entrance to the
secondaries’ establishments. n7 At each location, several union representatives (normally two or three) held the banner
in place. The parties stipulated that the number of union representatives accompanying the banner (a maximum of four)
was limited to the number needed to hold it up with staggered breaks. The parties also stipulated that at all material
times the banners were held stationary.

n7 At the Thunderbird Medical Center, the banner was 80 feet from an entrance to a parking lot and 510
feet from an entrance to the facility. At Northwest Medical Center, the banners were 1,550 and 450 feet from
roads entering the facility. At Northwest, the banners were 1,550 and 450 feet from roads entering the facility. In
light of these stipulated facts, it is misleading for the dissent to state that the banners were “in close proximity to
main entrances” to these facilities and “at the entrance to the neutral premises.” Finally, at RA Tempe restaurant,
the banner was 15 feet from the door of the restaurant.

[*10]

In addition to displaying the banners at those locations, the union representatives offered flyers to interested
members of the public. The handbills explained the nature of the labor dispute referred to on the banners. Specifically,
the handbills explained that the Union’s underlying complaint was with (depending upon the location) E&K, Delta,
Hardrock, or Enterprise, and that the Union believed that, by using the services of one of those contractors, Banner
Medical, Northwest Hospital, or RA Tempe was contributing to the undermining of area labor standards. n8

n8 The text of the handbill distributed by the Union’s representatives at the RA Tempe restaurant is attached
as Appendix C. The handbills distributed at the facilities of other secondaries named other primary and
secondary employers, but otherwise varied only minimally in their wording.

The parties stipulated that the union representatives did not chant, yell, march, or engage in any “similar conduct.”
The parties stipulated that the representatives [*11] did not block persons seeking to enter or exit any of the
secondaries’ facilities. The parties stipulated that the representatives “did no more than hold up the banner and give
flyers to any interested member of the public” and, apart from the unresolved question of whether the display of a
banner is confrontational, “did not engage in any other activity that is considered confrontational within the context of
this matter.” n9

n9 The dissent asserts facts not in the record when it states that the activity at issue was part of the Union’s
“long-running campaign to enmesh property owners in its labor dispute.”

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B. Contentions of the Parties

The General Counsel and Charging Parties argue that the Union’s banner displays violated Section 8(b)(4)(ii)(B)
because they constituted coercive conduct that had an object of forcing the neutral employers to cease doing business
with the primary employers. They contend, first, that posting individuals at or near the entrances of the secondaries’
facilities to hold banners [*12] declaring a labor dispute constituted picketing, and was therefore coercive. Second, the
General Counsel and Charging Parties contend that the banners were coercive because they contained “fraudulent”
wording that misled the public into believing that the Union had a primary labor dispute with the secondaries regarding
the treatment of their employees and that the secondaries should be boycotted. This alleged deception purportedly
constituted “economic retaliation” against the secondaries, which the General Counsel asks us to deem coercive and
proscribed.

The Union argues that the secondary boycott provisions of Section 8(b)(4) are not intended to reach the display of a
stationary banner. Relying on the Supreme Court’s decision in DeBartolo, the Union argues that the Court has instructed
the Board to avoid, if possible, construing 8(b)(4)’s statutory language, “threaten, coerce, or restrain,” in a manner that
would raise serious questions under the First Amendment. The Union argues that although picketing has been found to
constitute unlawful coercive conduct under Section 8(b)(4), the banner displays here did not constitute picketing,
because there was no patrolling or confrontational [*13] conduct. To the contrary, the Union argues that the banner
displays were peaceful at all times and should be considered a form of pure “speech” similar to handbilling, which the
Court in DeBartolo found lawful. Accordingly, the Union argues that the complaint should be dismissed.

Discussion

Absent any binding precedent directly on point, analysis of whether Section 8(b)(4)(ii)(B) prohibits the activity
involved here must begin with the text of the statute and must consider its legislative history, the policies underlying the
prohibition, and cases involving other types of secondary protest activity, i.e., picketing, handbilling, and similar
expressive activity. As explained below, none of the foregoing authority leads to the conclusion that the holding of a
stationary banner “threaten[s], co-erce[s], or restrain[s]” and that conclusion is reinforced by our duty to avoid creating
serious constitutional questions.

A. Application of Section 8(b)(4)(ii)(B) to the Present Case

Section 8(b)(4)(ii)(B) of the Act states, in pertinent part, that it shall be an unfair labor practice for a labor
organization or its agents:

(ii) to threaten, coerce, or restrain any person [*14] engaged in commerce or in an industry affecting
commerce, where . . . an object thereof is —

(B) forcing or requiring any person to . . . cease doing business with any other person . . . .

Congress adopted this provision and the other provisions of Section 8(b)(4) with the objective of “shielding unoffending
employers” from improper pressure intended to induce them to stop doing business with another employer with which a
union has a dispute. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S. Ct. 943, 95 L.
Ed. 1284 (1951). Congress did not, however, intend to prohibit all conduct of labor organizations that might influence
or persuade such “unoffending employers” to support the unions’ cause. The Supreme Court explained:

Whatever may have been said in Congress preceding the passage of the Taft-Hartley Act concerning the
evil of all forms of ‘secondary boycotts’ and the desirability of outlawing them, it is clear that no such
sweeping prohibition was in fact enacted in § 8 (b)(4)(ii)(A). The section does not speak generally of

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secondary boycotts. It describes and condemns specific union conduct directed to specific objectives.

Carpenters Local 1976 v. NLRB (Sand Door), 357 U.S. 93, 98, 78 S. Ct. 1011, 2 L. Ed. 2d 1186 (1958). [*15] n10
Thus, the Court made clear that “a union is free to approach an employer to persuade him to engage in a boycott, so
long as it refrains from the specifically prohibited means of coercion” specified in Section 8(b)(4). Id. at 99. Congress
did not go so far as to “protect these other persons or the general public by any wholesale condemnation of secondary
boycotts,” the Court continued, “since if the secondary employer agrees to the boycott, or it is brought about by means
other than those proscribed in § 8 (b)(4)(ii)(A), there is no unfair labor practice.” Id.

n10 The Court’s opinion refers to Sec. 8(b)(4)(A), not 8(b)(4)(B), because in 1958 the former paragraph was
the location of the statutory language addressed by the Court. The language was moved, with modifications
immaterial to this discussion, to Sec. 8(b)(4)(B) as part of the Landrum-Griffin amendments of 1959.
Labor-Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, § 704(a), 73 Stat. 519, 543
(hereinafter cited as LMRDA), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, at 1, 24-25.

[*16]

Since the recodification of Section 8(b)(4) and the addition of Subsection 8(b)(4)(ii) in 1959, the Supreme Court
has continued to construe the scope of the expanded statutory prohibition in a manner consistent with its approach in
Sand Door. n11 Most importantly for our purposes here, the Supreme Court has held that Congress did not intend to bar
all forms of union protest activity directed at a secondary employer even when the object of the activity is to induce the
secondary to cease doing business with a primary employer. In DeBartolo, the Supreme Court held that “more than
mere persuasion is necessary to prove a violation of § 8 (b)(4)(ii).” DeBartolo, supra, at 578. Specifically, the Supreme
Court held that distribution of handbills urging consumers not to patronize a secondary employer with the object of
inducing the secondary to cease doing business with a primary employer is not unlawful. “The loss of customers
because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of
picketers, is the result of mere persuasion, and the neutral who reacts is doing no more than what its customers honestly
[*17] want it to do.” Id. at 579. Thus, the Supreme Court’s construction of Section 8(b)(4) generally, and Section
8(b)(4)(ii)(B) in particular, leaves us to determine whether the display of stationary banners on public sidewalks or
rights of way is intimidation or persuasion.

n11 Thus, while the dissent is correct that Congress overturned the precise holding in Sand Door in the
Landrum-Griffin amendments by making the execution of “hot cargo” agreements (agreements between a union
and an employer not to handle nonunion goods) unlawful, Congress did not in any way reject the Court’s logic.
Congress outlawed the specific practice found lawful in Sand Door, but it did not adopt a sweeping prohibition
of all secondary boycotts in 1959 any more than it had in 1947. If that is what Congress had intended, as the
dissent suggests, Congress would have so provided in either 1947 or 1959, but it did not do so. In subsequent
cases, therefore, the Supreme Court continues to follow the logic of Sand Door by holding that Sec. 8(b)(4) does
not bar actions that fall outside its precise prohibitions even if they aim to induce a secondary employer to cease
doing business with a primary employer. See, e.g., Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S.
369, 385-390, 89 S. Ct. 1109, 22 L. Ed. 2d 344 (1969); Tree Fruits, supra, 377 U.S. at 62-63, 71-73; NLRB v.
Servette, Inc., 377 U.S. 46, 55-57, 84 S. Ct. 1098, 12 L. Ed. 2d 121 (1964).

[*18]

1. The text of the Act and its legislative history establish that Congress did not intend to bar display of stationary
banners

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In answering the question before us, we turn first to the text of the Act. In order for conduct to violate Section
8(b)(4)(ii)(B), the conduct must “threaten, coerce, or restrain.” n12 There is no contention that the Respondent
threatened the secondary employers or anyone else. Nor is there any contention that the Respondent coerced or
restrained the secondaries as those words are ordinarily understood, i.e., through violence, intimidation, blocking
ingress and egress, or similar direct disruption of the secondaries’ business. A reading of the statutory words “coerce” or
“restrain” to require “more than mere persuasion” of consumers is compelled by the Supreme Court’s holding in
DeBartolo. 485 U.S. at 578. Here, however, there is nothing more.

n12 An 8(b)(4)(ii)(B) violation has two elements. First, a labor organization must “threaten, coerce, or
restrain” a person engaged in commerce. Second, the labor organization must do so with “an object” of “forcing
or requiring any person to . . . cease doing business with any other person.” NLRB v. Retail Store Employees,
447 U.S. 607, 611, 100 S. Ct. 2372, 65 L. Ed. 2d 377 (1980) (Safeco). Both elements must be proven to establish
a violation. For the reasons discussed below, we find that the peaceful display of a stationary banner does not
threaten, coerce, or restrain a secondary employer within the meaning of Sec. 8(b)(4)(ii), and therefore does not
violate that section of the Act. Accordingly, we need not decide whether the Union’s banner displays had an
unlawful object.

[*19]

Turning to the legislative history, we find no indication that Congress intended to give the words of the Act
anything but their ordinary meaning. Nothing in the legislative history suggests that Congress intended to prohibit the
peaceful, stationary display of a banner on a public sidewalk. Had Congress intended the prohibition to apply so
broadly–“to bar any and all nonpicketing appeals, through newspapers, radio, television, handbills, or otherwise,” the
Supreme Court reasoned in DeBartolo–“the debates and discussions would surely have reflected this intention.” Id. at
584. Yet not only do the debates not reflect such an intention, the indications of congressional intent that exist in the
legislative history suggest the opposite. The Supreme Court found no “clear indication . . . that Congress intended . . . to
proscribe peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of a neutral employer.” Id. at
583-584. The focus of Congress was picketing, not “peaceful persuasion of customers by means other than picketing,”
the Court found. Id. at 584. The Court cited the explanation of the cosponsor of the House bill, Representative Griffin,
“that the bill [*20] covered boycotts carried out by picketing [the premises of] neutrals but would not interfere with the
constitutional right of free speech. 105 Cong. Rec. 15673, 2 Leg. Hist. 1615.” Id. Indeed, in 1959, as part of the
Landrum-Griffin amendments to the Act, Congress adopted the so-called publicity proviso to Section 8(b)(4), which (as
explained by Senator John Kennedy, the chairman of the conference committee) authorized unions to “carry on all
publicity short of having ambulatory picketing in front of a secondary site.” Id. at 587, quoting 105 Cong. Rec.
17898-17899 (Sept. 3, 1959) (reprinted in II Legislative History of the Labor-Management Reporting and Disclosure
Act of 1959 1432 (1959) (hereinafter Leg. Hist.)). n13 The DeBartolo Court specifically cited Senator Kennedy’s
remark as an important indication of the meaning of Section 8(b)(4)(ii)(B). Id. at 587. Equally important is an analysis
of the language in the conference bill presented to the House by Representative Griffin and in the Senate by Senator
Goldwater which explained that the conference had adopted the House version of the provision at issue “prohibiting
secondary consumer picketing . . . ‘with clarification [*21] that other forms of publicity are not prohibited.'” Id. at 586.
n14

n13 The publicity proviso of Sec. 8(b)(4) states in relevant part that nothing contained in [Sec. 8(b)] shall be
construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public . . . that a
product or products are produced by an employer with whom the labor organization has a primary dispute and
are distributed by another employer . . . .

29 U.S.C. § 158(b)(4) (emphasis added). In DeBartolo, following the principles set forth in earlier
decisions, the Court explained that the proviso did not create an exception to the prohibition in Sec. 8(b)(4) that

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would otherwise have proscribed non-picketing forms of persuasion, but rather added an interpretive gloss to
ensure that it was read as “not covering nonpicketing publicity.” 485 U.S. at 582-583.

n14 In contrast to the authoritative constructions cited by the Supreme Court, the dissent cites selected
comments on the floor, a form of legislative history that the Supreme Court has found to be a highly unreliable
indicator of congressional intent. Zuber v. Allen, 396 U.S. 168, 186, 90 S. Ct. 314, 24 L. Ed. 2d 345 (1969)
(“Floor debates reflect at best the understanding of individual Congressmen.”)

[*22]

The terms of the Act and its legislative history thus make clear that Congress did not generally intend to bar display
of a stationary banner. We could reach a different conclusion in this case only if we were to determine that the banner
displays here were picketing of the form Congress intended to bar through Section 8(b)(4)(ii)(B) or were otherwise
directly disruptive of the secondary employers’ operations in a manner that should be classified as coercion. As
discussed below, the display of stationary banners was neither proscribed picketing nor was it otherwise coercive. n15

n15 Our finding that no picketing occurred makes it unnecessary to address Charging Party Eliason &
Knuth’s argument that the banner displays constituted unlawful secondary activity, even though it occurred on a
common situs under the criteria set out by the Board in Sailor’s Union (Moore Dry Dock), 92 NLRB 547 (1950).

2. Holding a stationary banner is not proscribed picketing

The General Counsel argues that the display [*23] of the stationary banners is equivalent to conduct that the Board
has found to constitute unlawful picketing. We disagree.

The Act does not define “picketing,” n16 and the legislative history does not suggest that Congress understood the
term to encompass the mere display of a stationary banner. Further, we must evaluate the sweep of the suggestion in the
legislative history that Congress intended to bar picketing in light of both the express statutory terms that bar only
actions that “threaten, coerce, or restrain” n17 and, as we discuss below, the protections of the First Amendment. Under
our jurisprudence, categorizing peaceful, expressive activity at a purely secondary site as picketing renders it unlawful
without any showing of actual threats, coercion or restraint, unless it falls into the narrow exception for consumer
product picketing defined in Tree Fruits. Moreover, the consequences of categorizing peaceful expressive activity as
proscribed picketing are severe. The activity is stripped of protection and employees participating in it can be fired. See,
e.g., Motor Freight Drivers Local 707 (Claremont Polychem. Corp.), 196 NLRB 613, 614 (1972) (strikers [*24] who
picketed in violation of Sec. 8(b)(7)(B) not entitled to reinstatement); Hardee’s Food Systems, Inc., 294 NLRB 642, 646
(1989)(“Actions that violate Section 8(b) are not protected by the Act even if those actions would otherwise be
protected by Sections 7 and 8(a).”), review denied sub nom. Laborers Local 204 v. NLRB, 904 F.2d 715, 284 U.S. App.
D.C. 259 (D.C. Cir. 1990). The activity becomes an unfair labor practice and the Board is required, upon a finding of
“reasonable cause” to believe such activity has occurred, to go into federal district court and seek a prior restraint
against the continuation of the activity. See 29 U.S.C. § 160(l). And, finally, a labor organization engaged in such
activity is subject to suit in Federal court where damages can be awarded. See 29 U.S.C. § 187. For each of these
reasons, we must take care not to define the category of proscribed picketing more broadly than clearly intended by
Congress. n18

n16 Sec. 8(b)(4) does not use the term picket or picketing. As the Second Circuit observed in NLRB v.
United Furniture Workers of America, 337 F.2d 936, 939 (2d Cir. 1964), “[t]he term ‘to picket’ made its first
appearance in the national labor relations act in the 1959 amendments. Although Sec. 8(b)(7)(B) can be invoked
only when ‘picketing’ is present, the legislative history indicates no awareness that the new section presents a
threshold definitional problem.”

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[*25]

n17 Indeed, in Tree Fruits, the Supreme Court made clear that “the prohibition of § 8(b)(4) is keyed to the
coercive nature of the conduct, whether it be picketing or otherwise.” 377 U.S. at 68.

n18 The dissent’s suggestion that we are “motivated in part by the consequences of finding an 8(b)(4)
violation, which [we] view as too ‘severe,'” is a distortion of our reasoning. In construing ambiguous terms in a
statute proscribing a category of activity, it is entirely appropriate for an administrative agency or court to
consider the sanctions that Congress has attached to the proscribed conduct to be relevant to the breadth of the
proscription intended by Congress. See, e.g., U.S. v. 221 Dana Avenue, 261 F.3d 65, 74 (1st Cir. 2001) (“federal
forfeiture statutes must be narrowly construed because of their potentially draconian effect”); Martin’s Herend
Imports v. Diamond & Gem Trading USA, 112 F.3d 1296 (5th Cir. 1997) (“Given the draconian nature of this ex
parte remedy, . . . we believe that it should be narrowly construed.”) We suggest no more above.

[*26]

The Supreme Court has made clear that “picketing is qualitatively ‘different from other modes of communication.'”
Babbit v. Farm Workers, 442 U.S. 289, 311 fn. 17, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979) (quoting Hughes v. Superior
Court, 339 U.S. 460, 465, 70 S. Ct. 718, 94 L. Ed. 985, 57 Ohio Law Abs. 298 (1950). Thus, expressive activity that
bears some resemblance to picketing should not be classified as picketing unless it is qualitatively different from other
nonproscribed means of expression and the qualitative differences suggest that the activity’s impact owes more to
intimidation than persuasion. Precisely for this reason, the term picketing has developed a core meaning in the labor
context. The Board and courts have made clear that picketing generally involves persons carrying picket signs and
patrolling back and forth before an entrance to a business or worksite. See, e.g., Mine Workers District 2 (Jeddo Coal
Co.), 334 NLRB 677, 686 (2001); Service Employees Local 87 (Trinity Building Maintenance), 312 NLRB 715, 743
(1993), enfd. 103 F.3d 139 (9th Cir. 1996); see also NLRB v. Retail Store Union, Local 1001, 447 U.S. 607, 100 S. Ct.
2372, 65 L. Ed. 2d 377 (1980)(“Safeco”) (Justice Stevens, [*27] concurring) (picketing “involves patrol of a particular
locality”) (quoting Bakery Drivers v. Wohl, 315 U.S. 769, 776-777, 62 S. Ct. 816, 86 L. Ed. 1178 (1942) (Justice
Douglas, concurring)); Overstreet v. Carpenters Local 1506, 409 F.3d 1199, 1213 (9th Cir. 2005) (“Classically,
picketers walk in a line and, in so doing, create a symbolic barrier.”) (Emphasis supplied.)

The core conduct that renders picketing coercive under Section 8(b)(4)(ii)(B) is not simply the holding of signs (in
contrast to the distribution of handbills), but the combination of carrying of picket signs and persistent patrolling of the
picketers back and forth in front of an entrance to a work site, creating a physical or, at least, a symbolic confrontation
between the picketers and those entering the worksite. This element of confrontation has long been central to our
conception of picketing for purposes of the Act’s prohibitions. In NLRB v. Furniture Workers, 337 F.2d 936 (2d Cir.
1964), the Board had found that the union had engaged in unlawful recognitional picketing by affixing picket signs to
poles and trees in front of the plant, while designated union members sat in their cars [*28] nearby. The court
remanded, finding it unclear whether the Board had “considered the extent of confrontation necessary to constitute
picketing.” Id. at 940. A year later, in Alden Press, Inc., 151 NLRB 1666, 1668 (1965), the Board adopted the Second
Circuit’s view in Furniture Workers that “‘[o]ne of the necessary conditions of ‘picketing’ is a confrontation in some
form between union members and employees, customers, or suppliers who are trying to enter the employer’s premises.'”
(Quoting 337 F.2d at 940). See also Sheet Metal Workers’ Local 15 v. NLRB, 491 F.3d 429, 438, 377 U.S. App. D.C. 38
(D.C. Cir. 2007) (“mock funeral” procession outside a hospital did not constitute picketing, because the participants did
not “physically or verbally interfere with or confront Hospital patrons” or create a “symbolic barrier”). To fall within the
prohibition of Section 8(b)(4)(ii)(B), picketing must entail an element of confrontation.

The banner displays here did not constitute such proscribed picketing because they did not create a confrontation.
Banners are not picket signs. Furthermore, the union representatives held the banners stationary, without [*29] any

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form of patrolling. Nor did the union representatives hold the banner in front of any entrance to a secondary site in a
manner such that anyone entering the site had to pass between the union representatives. The banners were located at a
sufficient distance from the entrances so that anyone wishing to enter or exit the sites could to do so without confronting
the banner holders in any way. n19 Nor can it be said that the Union “posted” the individuals holding the banners at the
“approach” to a secondary’s place of business in a manner that could have been perceived as threatening to those
entering the sites. The message side of the banner was directed at passing vehicular traffic, rather than at persons
entering or leaving the secondaries’ premises, and the union representatives faced in the same direction. There is no
evidence that the banner holders kept any form of lists of employees or others entering the site or even interacted with
passersby, other than to offer a handbill–an undisputably noncoercive act. Thus, members of the public and employees
wishing to enter the secondaries’ sites did not confront any actual or symbolic barrier and, “[j]ust as members of the
public [*30] [and employees] can ‘avert [their] eyes’ from billboards or movie screen visible from a public street, they
could ignore the [union representatives] and the union’s banners.” Overstreet, 409 F.3d at 1214. Like the mock funeral
at issue in Sheet Metal Workers, the display of stationary banners here “was not the functional equivalent of picketing as
a means of persuasion because it had none of the coercive character of picketing.” Sheet Metal Workers, supra at 438. In
short, the holding of stationary banners lacked the confrontational aspect necessary to a finding of picketing proscribed
as coercion or restraint within the meaning of Section 8(b)(4)(ii)(B).

n19 The RA Tempe banner, while closer to the secondary’s entrance than the other banners, was
nevertheless placed on the sidewalk, facing the street, i.e., parallel to the sidewalk rather than running across the
sidewalk, and as close to the street as possible without being in it. The sidewalk remained completely clear for
anyone wishing to enter the restaurant, which could be done without ever seeing the front of the banner or
confronting the union agents, who were facing the street and separated from the portion of the sidewalk that
would be used to enter the restaurant by a bench, several trees, a street light, or newspaper dispensers (depending
on the precise placement of the banner that day).

[*31]

In order to sweep the display of stationary banners into the prohibition contained in Section 8(b)(4)(ii)(B), the
General Counsel proposes a broad definition of picketing that strips it of its unique character and is at odds with the
Supreme Court’s decision in DeBartolo. The General Counsel argues that “picketing exists where a union posts
individuals at or near the entrance to a place of business for the purpose of influencing customers, suppliers, and
employees to support the union’s position in a labor dispute.” The General Counsel adds, “the posting of individuals in
this fashion is inherently confrontational within the meaning of the Act.” Yet shortly after DeBartolo was decided, the
Board explained that the decision held “that Section 8(b)(4)(ii)(B) of the Act does not proscribe peaceful handbilling
and other nonpicketing publicity urging a total consumer boycott of neutral employers.” Service Employees (Delta Air
Lines), 293 NLRB 602, 602 (1989). The Board has thus already rejected the General Counsel’s overbroad definition of
picketing.

Accepting the General Counsel’s broad definitions of picketing and confrontation, as not requiring either the [*32]
use of traditional picket signs or any form of patrolling, n20 would bar distribution of handbills to consumers and would
thus defy the holding in DeBartolo. In proposing this clearly overbroad definition of picketing, the General Counsel
ignores the imperative, created by the words of the Act as well as the principle of constitutional avoidance, to
distinguish between actions the impact of which rests on persuasion and actions whose influence depend on coercion.
The General Counsel argues that the holding of stationary banners “amounts to a call to action on the part of the public
against the neutral entities named on the banners, sufficient to trigger the type of response by the public that is typically
elicited by traditional picket signs.” But DeBartolo and the Board’s decision in Delta Air Lines permit just such a call to
action so long as it is not reinforced with intimidation. The stipulated facts in this case suggest no such intimidation. n21

n20 The dissent incorrectly suggests that our holding is inconsistent with those in Mine Workers District 2

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(Jeddo Coal), 334 NLRB 677 (2001), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center),
346 NLRB 199 (2006), enf. denied 491 F.3d 429, 377 U.S. App. D.C. 38 (D.C. Cir. 2007), but concedes that the
activity in the former case involved carrying traditional picket signs and in the latter, patrolling (although the
D.C. Circuit disagreed with the latter finding). In response to the dissent’s arguments about the Board’s “recent
unanimous holding” in Brandon, Chairman Liebman points out that she joined that decision in a separate
concurrence, emphasizing that she found the mock funeral procession to be unlawful expressly because it
involved ambulatory patrolling.

[*33]

n21 Our rejection of the General Counsel’s argument that the conduct at issue here constituted picketing
makes it unnecessary for us to reach one of his two arguments concerning the truthfulness of the words
“LABOR DISPUTE” on the banners. The General Counsel argues that those words, combined with the location
of the banners at the secondary sites, misleadingly suggested to consumers that the Union had a primary labor
dispute with the secondaries and thus called on consumers to boycott the secondaries entirely. But the General
Counsel makes this argument only to demonstrate that the conduct did not fit within the product picketing
exception to the prohibition of secondary picketing created by Tree Fruits. Because we hold that the conduct
was not picketing, this argument is inapposite. Moreover, the General Counsel’s citation of pre-DeBartolo cases
to suggest that this alleged misrepresentation took the banner displays outside the safe haven created by the
publicity proviso is beside the point after DeBartolo, which made clear that conduct falling outside the proviso is
not therefore proscribed. Even assuming the phrase was misleading (incorrectly, for reasons explained below),
the General Counsel presents no colorable argument that misleading speech is coercive.

[*34]

We acknowledge that prior Board decisions have used broader language to define picketing. In Lumber & Sawmill
Workers Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965), cited prominently by the dissent, the
Trial Examiner, in a decision affirmed by the Board, stated, “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.” Despite that broad language, however, in Stoltze Land, the activity in question was immediately
preceded at the same location by traditional, ambulatory picketing (which was lawful prior to the union being
decertified); n22 union representatives continued the practice they had begun during the traditional picketing of taking
down the license numbers of vehicles entering the premises even after the picketing ended and was replaced with
distribution of handbills; and the union disciplined members who worked for Stoltze for “crossing a picket line” even
after the traditional picketing [*35] had been ostensibly replaced by distribution of handbills. See id. at 389-392.
Moreover, Stoltze preceded DeBartolo and, taken literally and out of context, its definition of picketing, as well as its
holding that “handbilling . . . was . . . picketing” is flatly inconsistent with the Supreme Court’s later holding. 156 NLRB
at 393. n23

n22 The case was decided under Sec. 8(b)(7)(B), which proscribes recognitional picketing by a union which
has lost a valid election in the preceding 12 months. Contrary to the dissent’s suggestion, we do not propose that
a different definition of picketing be used under Sec. 8(b)(4) and (7). Rather, we point out that many of the cases
cited in the dissent were decided under Sec. 8(b)(7) in order to explain how the activity at issue in those cases
could have been preceded at the same location (as it was in many of them) by lawful primary picketing as we
describe further below.

n23 Other Board decisions (many of which are relied on by the dissent) have cited the Stoltze “posting”
definition. See, e.g., Kansas Color Press, 169 NLRB 279, 283 (1968); Teamsters Local 282 (General

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Contractors Assn. of New York), 262 NLRB 528, 540 (1982); Laborers (Calcon Constuction Co.), 287 NLRB
570, 573 (1987); Mine Workers District 2 (Jeddo Coal), 334 NLRB 677, 686 (2001). Those decisions, however,
either preceded DeBartolo or made no attempt to reconcile the “posting” definition with DeBartolo.
Furthermore, the cases, like Stoltze itself, are factually distinguishable, as we explain above.

[*36]

We also acknowledge that there are prior Board decisions finding picketing during periods when there was no
patrolling or other ambulation. However, each of the prior cases is distinguishable from the banner displays at issue
here. In many of the prior cases, the display of stationary signs or distribution of handbills was preceded at the same
location or accompanied at other locations by traditional, ambulatory picketing. See, e.g., Woodward Motors, 135
NLRB 851, 856 (1962) (an 8(b)(7) case where traditional picketing ended 2 weeks before stationary display of picket
signs began); Lawrence Typographical Union No. 570 (Kansas Color Press), 169 NLRB 279, 282 (1968) (an 8(b)(7)
case where strikers ceased traditional picketing and immediately began distributing handbills bearing the same message
as prior picket signs); Construction & General Laborers Local 304 (Athejen Corp.), 260 NLRB 1311, (1982) (picketers
would “drift” from gate to gate and sometimes place signs they had previously carried on cones, barricades or fence);
Tamaha Local. 1329, United Mine Workers of America (Alpine Const. Co.), 276 NLRB 415, 431 (1985) [*37] (Section
8(b)(7) case where, after traditional picketing ceased, union assigned “security guards” to picket shacks outside
entrances to mines); Iron Workers Pacific Northwest Council (Hoffman Construction), 292 NLRB 562 fn. 2 (1989),
enfd. 913 F.2d 1470 (9th Cir. 1990) (group of union members “gathered around a [picket] sign” near a neutral gate
while ambulatory picketing took place simultaneously at the primary gate); United Mine Workers District 2 (Jeddo
Coal), 334 NLRB 677, 679-681 (2001) (traditional picketing at other sites and picket signs referred to crossing “picket
lines”); cf. NLRB v. Furniture Workers, 337 F.2d 936, 937 (2d Cir. 1964) (8(b)(7) case where fixed picket signs were
preceded by traditional picketing). The Board pointed out the relevance of this distinguishing fact in Kansas City Color
Press, supra, 169 NLRB at 284, observing: “[f]ollowing in the footsteps of the conventional picketing which had
preceded it, this conduct was intended to have, and could reasonably be regarded as having had, substantially the same
significance for persons entering the Company’s premises.” n24 In [*38] many of the prior cases, the display was of
traditional picket signs of the same type used in ambulatory picketing. Athejen, supra at 1316, 1319; Woodward, supra
at 851 fn. 1 & 856; Jeddo, supra at 679; Hoffman, supra at 571, 583 & fn. 18; Calcon, supra at 570-571. And in many of
the prior cases, union representatives were stationed near the stationary picket signs conspicuously to observe and, in
some cases, record who entered the facility. Teamster Local 282 (General Contractors Assn. of New York), 262 NLRB
528, 530, 541 (1982); Kansas Color Press, supra at 282. n25 Finally, in many of the prior cases, there was evidence that
the stationary signs or posted union representatives had the effect of inducing employees to refuse to make deliveries to
the target site. See, e.g., Woodward, 135 NLRB at 857. The prior cases are thus distinguishable. n26

n24 Significantly, many of these cases, like Stoltze, were brought under Sec. 8(b)(7) rather than 8(b)(4) and
thus the unions were attempting to continue the intended effects of their prior, lawful, primary
picketing–inducing members working inside the subject establishment to cease work–by other means. Thus,
these cases are properly understood as involving signal picketing, which we discuss below.

[*39]

n25 Here, in contrast, the orientation of both the banners and the union representatives toward busy streets,
rendered such observation highly impractical.

n26 In Mine Workers (New Beckley Mining), 304 NLRB 71, 72 (1991), enfd. 977 F.2d 1470, 298 U.S. App.
D.C. 195 (D.C. Cir. 1992), the Board found that a mass early morning gathering of 50-140 people at a motel
housing an agent retained to supply striker replacements and the replacements themselves, accompanied by
shouting and name calling, constituted “a form of picketing” and therefore violated Sec. 8(b)(4)(ii)(B). We

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question whether that activity was properly characterized as “picketing.” Regardless, as observed in Sec. A.3
below, the sheer number of participants, together with the confrontational nature of their conduct, rendered it
coercive, and therefore unlawful, when coupled with a forbidden objective. Service Employees Local 525
(General Maintenance Co.), 329 NLRB 638 (1999) enfd. 52 Fed.Appx. 357 (9th Cir. 2002) (unpub.), cited by
the dissent, also involved a massed assembly of 40 to 50 individuals and is similarly inapposite.

[*40]

The General Counsel nevertheless contends that, even if the banners did not constitute proscribed picketing, they
constituted “signal picketing,” that is, “activity short of a true picket line, which acts as a signal that sympathetic action”
should be taken by unionized employees of the secondary or its business partners. Electrical Workers Local 98
(Telephone Man), 327 NLRB 593 fn. 3 (1999).

Signal picketing is activity short of picketing through which a union intentionally, if implicitly, directs members
not to work at the targeted premises. n27 “It is the mutual understanding among union employees of the meaning of
these signals and bonds, based on either affinity or the potential for retribution, that makes these signals” potentially
unlawful. Overstreet, supra at 1215. Thus, “[t]he entire concept of signal picketing . . . depends on union employees
talking to each other, not to the public.” Id. (emphasis in the original); see also Kohn v. Southwest Regional Council of
Carpenters, 289 F. Supp.2d 1155, 1165 fn. 5 (C.D. Cal. 2003) (“‘signal picketing’ generally refers to activity designed to
induce employees to strike, not [*41] activity designed to inspire a consumer boycott”).

n27 Consistent with the core danger of signal picketing, the typical signal picketing case includes an
allegation that the union violated Sec. 8(b)(4)(i)(B), which prohibits a union from inducing or encouraging
employees of a neutral employer to engage in a refusal to work. See, e.g., Jeddo Coal, Telephone Man, Hoffman,
and Calcon, supra. There is no 8(b)(4)(i) allegation here.

Here, nothing about the banner displays themselves or any extrinsic evidence indicates any prearranged or
generally understood signal by union representatives to employees of the secondary employers or any other employees
to cease work. The only banner that was held within 75 feet of any form of entrance to a facility or to a facility parking
lot bore a message clearly directed only to the public: “DON’T EAT ‘RA’ SUSHI.” None of the banners called for or
declared any form of job action (in contrast to typical picket signs declaring “on strike”). In addition, the [*42]
handbills distributed by the union representatives holding the banners expressly stated, “WE ARE NOT URGING ANY
WORKER TO REFUSE TO WORK NOR ARE WE URGING ANY SUPPLIER TO REFUSE TO DELIVER
GOODS.”

Signal picketing does not and cannot include all activity conveying a “do not patronize” message directed at the
public simply because the message might reach, and send a signal to, unionized employees. Such a broad definition of
the proscribed category of nonpicketing activity would be inconsistent with DeBartolo, Tree Fruits, and many other
prior decisions. As the Ninth Circuit observed in Overstreet, “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.” Overstreet, supra at 1215.

Moreover, the notion that the banners operated not as ordinary speech, but rather as a signal automatically obeyed
by union members must be subject to a dose of reality. The General Counsel asks us to simply and categorically
assume, even in the absence of additional evidence of intent or effect, that when agents [*43] of a labor organization
display the term “labor dispute” on a banner proximate to a workplace, it operates as such a signal. Our experience with
labor relations in the early 21st century does not suggest such a categorical assumption is warranted. Here, moreover,
the record is devoid even of evidence that any union members worked for any of the secondary employers or otherwise
regularly entered the premises in the course of their employment. In these circumstances, we decline to place labor

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organizations’ speech into such a special and disfavored category.

In the absence of evidence that the Union did anything other than seek to communicate the existence of its labor
dispute to members of the general public n28 — which could, of course, as in DeBartolo and Tree Fruits, include
employees of the secondaries and of others doing business with them–we find that the expressive activity did not
constitute proscribed signal picketing merely because it involved the use of banners.

n28 The Board’s prior decisions finding signal picketing each involved such additional evidence of the
union’s effort to induce or encourage a work stoppage or refusal to handle goods or perform services. See, e.g.,
Hoffman Construction, supra at 562 fn. 2 (agents posted around a stationary sign near a neutral gate while
ambulatory picketing occurred at the primary gate “constitute[d] a ‘signal’ to the employees of secondary and
neutral employers;” at some locations, union representatives talked to employees approaching the gates, and
employees turned around and left); Teamsters Local 182 (Woodward Motors), 135 NLRB 851 fn. 1, 857 (1962),
enfd. 314 F.2d 53 (2d Cir. 1963) (8(b)(7)(B) violation found where, following an extended period of ambulatory
picketing, the union placed picket signs in a snow bank while union representatives sat in nearby cars; the
representatives stopped approaching delivery trucks to speak to the drivers, after which the drivers left without
making deliveries); Teamsters Local 282 (General Contractors Assn. of New York), 262 NLRB 528, 530, 541
(1982) (union representatives stationed themselves at the delivery entrances to construction sites and approached
trucks making deliveries and explained that union was engaged in a job action and trucks turned back); Calcon
Construction, 287 NLRB 570, 572-574 (1987) (picket signs laid on the ground “at or near” jobsite entrances
were designed “to induce employees of [secondary] subcontractors. . . to withhold their labor from the site,”
because the alleged “pickets” were present at the commencement of the workday); Jeddo Coal, supra at 686-687
(conduct was part of a multisite campaign that included ambulatory picketing and the use of traditional picket
signs at other sites).

[*44]

3. The banner displays were not disruptive or otherwise coercive

The Board has found non-picketing conduct to be coercive only when the conduct directly caused, or could
reasonably be expected to directly cause, disruption of the secondary’s operations. Blocking ingress or egress is one
obvious example of such coercive conduct. In a variety of other instances, the Board and the courts have recognized that
disruptive, non-picketing activity directed against secondaries can constitute coercion. For example, a union that
engaged in otherwise lawful area-standards publicity violated Section 8(b)(4)(ii)(B) by broadcasting its message at
extremely high volume through loudspeakers facing a condominium building that had hired the primary employer as a
subcontractor. Carpenters (Society Hill Towers Owners’ Assn.), 335 NLRB 814, 820-823 (2001), enfd 50 Fed.Appx. 88
(3d Cir. 2002) (unpub.). n29 The common link among all of these cases is that the union’s conduct was or threatened to
be the direct cause of disruption to the secondary’s operations. There was no such disruption or threatened disruption
here. The banner holders did not move, shout, impede access, or [*45] otherwise interfere with the secondary’s
operations. n30

n29 See also General Maintenance, supra, 329 NLRB at 664-665, 680 (hurling filled trash bags into the
building’s lobby); Service Employees Local 87 (Trinity Maintenance), 312 NLRB 715, 746-748 (1993), enfd.
mem. 103 F.3d 139 (9th Cir. 1996) (use of bullhorns directed at building’s tenants); Mine Workers (New Beckley
Mining), 304 NLRB 71, 71-72 (1991), enfd. 977 F.2d 1470, 298 U.S. App. D.C. 195 (D.C. Cir. 1992) (mass
early morning gathering of 50-140 people at motel housing agent providing striker replacements, with shouting
and namecalling); Service Employees Local 399 (William J. Burns Agency), 136 NLRB 431, 436-437 (1962)
(mass gathering and marching without signs at entrance to exhibit hall impeded access and was therefore
coercive, whether or not it constituted “picketing”).

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n30 Our colleagues knock down a straw man when they suggest that in cases not involving picketing we
would require the General Counsel to prove that conduct “directly caused, or could reasonably be expected to
cause, significant disruption of the secondary’s operations” before we would find it coercive within the meaning
of Sec. 8(b)(4)(ii)(B). Of course, the General Counsel need not wait for harm to be inflicted. The Act clearly
proscribes forms of coercion other than picketing that threaten such harm. But the common thread running
through the Board cases finding such coercion is that it is exerted directly against the secondary employer or its
agents. In other words, if union agents block ingress or egress, they directly interfere with the employer’s
operations. Unless the direct interference is not significant, i.e., it is de minimis, the Board will find it coercive.
Cf. Metropolitan Regional Council of Carpenters (Society Hill Towers Owners’ Assn.), 335 NLRB 814 fn. 1
(2001) (brief picketing at reserve gate not unlawful). Similarly, mass assemblies accompanied by shouting and
name calling around the home or other lodging of employer agents that cause the agents to fear for their safety
directly exert a coercive force against the employer. As Senator Dirksen, a member of the Conference
Committee that approved the language in Sec. 8(b)(4)(ii)(B) explained the distinction, the amendment “makes it
an unfair labor practice for a union to try to coerce or threaten an employer directly (but not to ask him) in
order– . . . [t]o get him to stop doing business with another firm.” 105 Cong. Rec. 19849 (Sept. 14, 1959), II
Leg. Hist 1823 (quoted in NLRB v. Servette, Inc., supra, 377 U.S. at 54 fn. 12). Our point above is merely that
the peaceful, stationary holding of banners announcing a labor dispute, even if such conduct is intended to and
does in fact cause consumers freely to choose not to patronize the secondary employer, does not constitute such
direct, coercive interference with the employer’s operations or a threat thereof.

[*46]

In sum, we find that the peaceful, stationary holding of banners announcing a “labor dispute” fell far short of
“threatening, coercing, or restraining” the secondary emloyers.

4. The dissent’s position is untenable

Our colleagues’ position rests on three clearly erroneous foundations. First, the dissent suggests that all “secondary
boycotts” are unlawful. But the plain text of Section 8(b)(4) says nothing of the kind and the Supreme Court as well as
the Board have repeatedly held to the contrary. n31 Most clearly, in DeBartolo, the Court held that the Act did not bar
the distribution of handbills urging a consumer boycott of a secondary employer. Had Congress intended the broad
prohibition suggested in the dissent–“to bar any and all non-picketing appeals, through newspapers, radio, television,
handbills, or otherwise,” the Supreme Court reasoned in DeBartolo–“the debates and discussions would surely have
reflected this intention.” 485 U.S. at 584. Yet the Court found no “clear indication . . . that Congress intended . . . to
proscribe peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of a neutral employer,” i.e., a
secondary boycott. [*47] Id. at 583-584. See also Delta Air Lines, supra. Thus, as we explained above, a consumer
boycott of a secondary employer is unlawful only if it is induced by picketing or coercion.

n31 See sec. A, supra.

Second, the dissent asserts that the banner displays were coercive, but one searches the dissent in vain for any
explanation of why American consumers would be coerced by this common form of expressive activity. The dissent
asserts that the banners “sought to invoke ‘convictions or emotions sympathetic to the union activity.'” But that is
persuasion, not coercion. The dissent further asserts that the banner “sought to invoke . . . ‘fear or retaliation if the picket
is defied,'” but can point to no evidence whatsoever suggesting such a coercive intent or effect. n32 The dissent cites the
size of the banners and the presence of union agents. Union agents, of course, are also present during what the Supreme
Court has held to be the noncoercive distribution of handbills. [*48] Thus, the dissent’s finding of coercion is based
solely on the size of the message. But the banners were no larger than necessary to be seen by passing motorists and, in
any event, there is no reason why a large banner would intimidate anyone passing by in a car or even on foot.

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n32 Indeed, the dissent here quotes language in United Furniture Workers, supra, 337 F.2d at 940, from a
passage in which the court is not stating its holding, but rather describing a party’s contention that picketing
necessarily involves an element of confrontation.

Display of banners is not a novel form of public expression. See cases cited below, sec. B. Anyone who walks
down the sidewalks of our cities, opens a newspaper, watches the news, or surfs the web is likely to have encountered
this form of public expression. n33 Indeed, banners are a commonplace at Fourth of July parades and ordinarily precede
high school marching bands. The very ordinariness of banners in our open society undermines the dissent’s [*49]
contention that they are coercive.

n33 See, e.g.,
http://www.umc.org/atf/cf/%7BDB6A45E4-C446-4248-82C8-E131B6424741%7D/umns_237_080516_468.jpg,
retrieved 05-17-10; http://farm4.static.flickr.com/3572/3362798476_dffd19e0ae.jpg, retrieved05-17-10;
http://www.electjarrod.com/sitebuildercontent/sitebuilderpictures/TeaPartyBanner_0026.jpg, retrieved 05-17-10.

Finally, unable to advance any reason why the peaceful display of stationary banners would coerce consumers, the
dissent posits that holding a stationary banner is picketing, but does so only by expanding the category of picketing far
beyond its ordinary meaning and existing precedent and in a manner sharply at odds with DeBartolo. While the dissent
quotes bits and pieces from our prior precedents, often from dicta, n34 it does not establish that the Board has adopted a
clear and consistent definition of picketing that encompasses the peaceful display of stationary banners and, certainly,
not the definition proposed in his dissent today. We address [*50] and distinguish each of the prior precedents cited by
the dissent above.

n34 To support their overbroad construction, our colleagues repeatedly cite broad language, but from cases
whose actual holdings applied only to picketing or forms of coercion not at issue here. See, e.g., infra at sec.
I.B.1. (quoting Soft Drink Workers Local 812 v. NLRB, 657 F.2d 1252, 1267 fn. 27, 212 U.S. App. D.C. 10
(D.C. Cir. 1980) (picketing), and Kentucky State District Council of Carpenters (Wehr Constructors, Inc.), 308
NLRB 1129, 1130 fn. 2 (1992) (disciplinary charges against union member); sec. I.B.2. (citing Laborers Eastern
Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB 1251, 1253 fn. 5 (2006) (patrolling back and forth
in front of entrances)); sec II.A. (citing Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 667, 686 (2001)
(“six individuals stood at the entrance to the . . . facility, three of them carrying picket signs”); secs. I.B.2, and
II.A. (citing Service Employees Local 87 (Trinity Maintenance), 312 NLRB 715, 746-753 (1993) (multiple
instance of traditional picketing combined with large groups of people marching in circular motion at entrances,
blocking doors, making excessive noise, and entering the secondaries’ buildings).

[*51]

Resting on these erroneous foundations, the proposition advanced in the dissent could not be more stark or more in
tension with the express terms and fundamental purposes of the Act, Supreme Court precedent, and the core protections
of the First Amendment. In the dissent’s view, it would be unlawful for a single union supporter to stand alone outside a
store, restaurant, or other establishment that the union seeks to encourage to cease doing business with a business that
the union believes is undermining labor standards and politely ask consumers, “Please don’t shop here” The dissent
posits that “the posting of union agents at the site of a neutral employer is coercive within the meaning of Section
8(b)(4)(ii)(B).” There is no basis for concluding that the United States Congress intended such a broad reading of
Section 8(b)(4). Indeed, the dissent’s position flies in the face of any reasonable understanding of the term “coercion,” is
at war with the Supreme Court’s holdings in DeBartolo, and would cut to the heart of the First Amendment in a manner
that we believe it is our constitutional duty as members of the Executive Branch to avoid, as we now explain.

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B. Application of [*52] the “Constitutional Avoidance” Doctrine

Our conclusion that the holding of a stationary banner does not violate Section 8(b)(4)(ii)(B) is supported, if not
mandated, by the constitutional concerns that animated the Supreme Court’s decision in DeBartolo and its precursors.
To prohibit the holding of a stationary banner would raise serious constitutional questions under the First Amendment,
as the Federal courts (notably, the Ninth Circuit in Overstreet, supra) have concluded. Under the framework established
in the series of decisions culminating in DeBartolo, supra, we cannot so hold unless it is unavoidable, which it clearly is
not in this case. n35

n35 Member Schaumber suggests that as members of the Executive Branch, state actors bound to uphold
and abide by the Constitution, it is not our duty to avoid trenching on the First Amendment by defining peaceful,
expressive activity to be unlawful. We disagree and believe that the Board has the authority, indeed, that the
Board has a duty, to construe the Act, if possible, so as not to violate the Constitution. However, inasmuch as
both the majority and the dissent analyze the constitutional implications of our respective positions, as was also
the case in Handy Andy, Inc., 228 NLRB 447 (1977), (cited by Member Schaumber), we need not address the
specifics of Member Schaumber’s argument against application of the constitutional avoidance doctrine.

[*53]

In DeBartolo, the primary labor dispute was between an alliance of construction unions and a builder engaged in
the construction of a new store at an existing shopping mall; the mall itself and the other mall stores were secondaries.
The unions distributed handbills at each of the mall’s entrances calling for a consumer boycott of the entire mall. The
Board construed Section 8(b)(4)(ii)(B) to prohibit that conduct, holding that the unions’ handbilling was coercion or
restraint within the meaning of that provision. n36 The Supreme Court rejected that interpretation, applying the canon
of constitutional avoidance, in which the Court will construe a statute in order to avoid constitutional questions arising
from an otherwise acceptable construction of the statute, if an alternative interpretation is possible and not contrary to
the intent of Congress. n37

n36 Florida Building Trades Council, 273 NLRB 1431 (1985), enf. denied 796 F.2d 1328 (11th Cir. 1986).

n37 See also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979)
(holding that Board lacked jurisdiction over lay faculty members at Catholic high school).

[*54]

The Court began by explaining why the canon of constitutional avoidance came into play:

[T]he Board’s construction of the statute . . . poses serious questions of the validity of § 8(b)(4) under the
First Amendment. The handbills involved here truthfully revealed the existence of a labor dispute and
urged potential customers of the mall to follow a wholly legal course of action, namely, not to patronize
the retailers doing business in the mall. The handbilling was peaceful. No picketing or patrolling was
involved. On its face, this was expressive activity . . . .

DeBartolo, supra, 485 U.S. at 575-576. The Court then went on to examine the language of Section 8(b)(4)(ii)(B),
describing the key terms of the provision–“threaten, coerce, or restrain”–as “nonspecific, indeed vague” and observing
that they “should be interpreted with ‘caution’ and not given a ‘broad sweep.'” 485 U.S. at 578, quoting Curtis Bros.,
supra, 362 U.S. at 290. The Court found no “necessity to construe such language to reach the handbills involved . . . .”
Id. Because neither the language of Section 8(b)(4) nor its legislative history “foreclosed” [*55] an interpretation of the
statute as not reaching the handbilling at issue, the DeBartolo Court rejected the Board’s contrary construction and so

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avoided the “serious constitutional questions” it raised. 485 U.S. at 588.

Even in the application of the prohibition of Section 8(b)(4)(ii)(B) to picketing, the Court stated in its earlier Tree
Fruits decision, it has “not ascribed to Congress a purpose to outlaw peaceful picketing unless ‘there is the clearest
indication in the legislative history’ . . . that Congress intended to do so. . . .” Tree Fruits, supra at 63 (quoting Curtis
Bros., supra, 362 U.S. at 284). The Court explained that its “adherence to this principle of interpretation reflect[s]
concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.” Id. n38

n38 In Tree Fruits, supra, the court reached the conclusion that Sec. 8(b)(4) did not reach “product
picketing,” i.e., picketing directed at consumers with the ultimate aim of persuading secondary merchants not to
sell the product of an employer with whom the union has a primary dispute. In order to avoid the constitutional
question presented by the Board’s interpretation of Sec. 8(b)(4), the Court declined to read the publicity proviso
to imply that, because it expressly protected “publicity [] other than picketing,” Congress intended that all
consumer picketing at a secondary site was unprotected. Tree Fruits, 377 U.S. at 71-72. The Court rejected the
idea “that such picketing necessarily threatened, coerced or restrained the secondary employer.” Id. at 71
(emphasis added); see also Servette, supra, 377 U.S. at 54 (“The publicity proviso was the outgrowth of a
profound Senate concern that the unions’ freedom to appeal to the public for support of their case be adequately
safeguarded.”).

[*56]

1. Holding a banner is speech

The banners in this case conveyed the message that the named entities merited “shame” or should be shunned
because of their connection to a labor dispute. Thus, the banners plainly constituted actual speech or, at the very least,
symbolic or expressive conduct. The First Amendment protects both. See Virginia v. Black, 538 U.S. 343, 358, 123 S.
Ct. 1536, 155 L. Ed. 2d 535 (2003) (holding that cross-burning was symbolic expression protected by the First
Amendment). n39

n39 See also Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (holding that
flag burning is protected by First Amendment, and observing that “conduct may be ‘sufficiently imbued with
elements of communication to fall within the scope of the First and Fourteenth Amendments'”); Tinker v. Des
Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (students
wearing black armbands to protest Vietnam War were engaged in protected symbolic speech). Although the
Supreme Court has held that “[t]he government generally has a freer hand in restricting expressive conduct than
it has in restricting the written or spoken word,” it may not “proscribe particular conduct because it has
expressive elements . . . . A law directed at the communicative nature of conduct must, like a law directed at
speech itself, be justified by the substantial showing of need that the First Amendment requires.” Texas v.
Johnson, supra, 491 U.S. at 406 (internal citation omitted, emphasis in the original).

[*57]

There is no basis for treating a banner display differently from the other forms of expressive activity that the
Supreme Court has concluded implicate the First Amendment. In upholding the freedom of unions to engage in
picketing asking consumers not to purchase a particular product from a secondary, the Tree Fruits Court, for example,
observed that a “broad ban against peaceful picketing might collide with the guarantees of the First Amendment.” 377
U.S. at 63. The Court expressly rejected the argument that no type of picketing could be permitted under Section 8(b)(4)
“because, it is urged, all picketing automatically provokes the public to stay away from the picketed establishment” and
members of the public will not “read the [picket] signs and handbills.” Id. at 71. n40

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n40 In Curtis Bros., similarly, the Court pointed to the “sensitive area of peaceful picketing” in which
Congress carefully targeted “isolated evils.” 362 U.S. at 284. Upholding the right of unions to engage in peaceful
recognitional picketing, the Court recognized such picketing as a legitimate method of persuasion. Id. at 287
(legislative history of pre-Landrum-Griffin Sec. 8(b)(1)(A) “negat[es] an intention to restrict the use by unions
of methods of peaceful persuasion, including peaceful picketing”).

[*58]

It is beyond dispute that media such as signs and banners are forms of speech. See, e.g., City of Ladue v. Gilleo,
512 U.S. 43, 48, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994) (striking down municipal ban on residential signs and
observing that “signs are a form of expression protected by the Free Speech Clause” of the First Amendment); Brown v.
California Dep’t of Transp, 321 F.3d 1217, 1226 (9th Cir. 2003) (preliminary injunction granted on First Amendment
grounds against policy prohibiting anti-war “expressive banners” on highway overpasses); Stewart v. District of
Columbia Armory Bd., 863 F.2d 1013, 1019, 274 U.S. App. D.C. 324 (D.C. Cir. 1988) (district court erred in dismissing
First Amendment complaint alleging the removal of a 3-by-15 foot religious banner displayed by football patrons
during a game). Here, therefore, neither the character nor size of the banners stripped them of their status as speech or
expression.

Similarly, the spareness of the message conveyed by the banners in no way removed them from the First
Amendment’s protection. Although the banners in this case may have conveyed less information than a typical handbill,
they clearly communicated ideas. n41 Here, moreover, [*59] union representatives also distributed handbills while
displaying the banners. n42 In any event, as the Ninth Circuit pointed out in Overstreet, on essentially identical facts,
the use of “catchy shorthand, not discursive speech does not remove the banners from the scope of First Amendment
protections, as cases regarding well known short slogans demonstrate.” 409 F.3d at 1211, citing Cohen v. California,
403 U.S. 15, 25-26, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (applying ordinary First Amendment principles to the
slogan “Fuck the draft” on a jacket), and Cochran v. Veneman, 359 F.3d 263 (3d Cir. 2004), vacated and remanded on
other grounds sub nom. Johanns v. Cochran, 544 U.S. 1058, 125 S. Ct. 2512, 161 L. Ed. 2d 1107 (2005) (applying
same principles to billboard phrase “Got Milk?”). n43

n41 See City of Ladue, supra at 55 (“They may not afford the same opportunities for conveying complex
ideas as do other media, but residential signs have long been an important and distinct medium of expression.”).
In the present case, insofar as the banners were large enough to be read by persons not entering the employer
facilities (passing drivers, for example), they functioned as billboards, obviously a form of protected speech.
Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).

[*60]

n42 At very least, therefore, the banners served as a means of attracting attention to the handbillers and to
their effort to communicate the Union’s message in more detail.

n43 In Cohen, supra, the Supreme Court rejected the view that “the Constitution, while solicitous of the
cognitive content of individual speech has little or no regard for that emotive function which practically
speaking, may often be the more important element of the overall message sought to be communicated.” 403
U.S. at 26.

In short, the Court has found that the First Amendment protects conduct or statements as repugnant as
cross-burning and as crude as “Fuck the draft.” Surely a union banner bearing the message “Shame on []” or “Don’t Eat”
implicates similar constitutional concerns.

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Yet our dissenting colleagues assert that prohibiting banner displays would raise no First Amendment concerns for
two reasons. First, observing that the Supreme Court has upheld proscriptions on traditional secondary picketing, they
assert that the differences between a banner display and traditional picketing [*61] are “legally insignificant.” We
disagree for the reason explained above–picketing involves conduct that creates a confrontation. The Supreme Court
has recognized that that distinction between picketing and other forms of communication is indeed significant under the
First Amendment:

While picketing is a mode of communication it is inseparably something more and different. Industrial
picketing “is more than free speech, since it involves patrol of a particular locality and since the very
presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the
ideas which are being disseminated.”

Hughes v. Superior Ct. of Cal., 339 U.S. 460, 464-465, 70 S. Ct. 718, 94 L. Ed. 985, 57 Ohio Law Abs. 298 (1950)
(quoting Bakery & Pastry Drivers Local 802 v. Wohl, 315 U.S. 769, 775, 776, 62 S. Ct. 816, 86 L. Ed. 1178 (1943)
(Douglas, J., concurring); see also Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308, 326, 88 S. Ct. 1601,
20 L. Ed. 2d 603 (1968) (Douglas, J., concurring) (“Picketing is free speech plus, the plus being physical activity that
may implicate traffic and related matters. Hence the latter aspects of picketing maybe regulated.”), overruled on other
grounds, Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976). [*62] Like the distribution of
handbills at issue in DeBartolo, therefore, the stationary display of a banner is different from picketing and its
prohibition would raise serious constitutional questions.

Second, citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982),
our colleagues contend that a substantial governmental interest in “economic regulation” justifies the “incidental”
constraint on First Amendment freedoms that would result from reading Section 8(b)(4) to prohibit stationary banner
displays. While overturning a state court verdict against the organizers of a consumer boycott involving picketing in
Claiborne, the Court, in dictum, cited as an example of permitted constraints those on “[s]econdary boycotts and
picketing by labor unions.” As we have demonstrated, however, the banner displays here were not picketing. And read
in isolation and too broadly, the reference to “[s]econdary boycotts” in the Claiborne dictum would remove the
foundation from the Court’s subsequent decision in DeBartolo. In any event, Claiborne also cautioned that “the
incidental restriction on alleged First Amendment freedoms [must be] no greater [*63] than is essential to the
furtherance” of the government’s interest. Id. at 912 fn. 47 (quoting United States v. O’Brien, 391 U.S. 367, 88 S. Ct.
1673, 20 L. Ed. 2d 672 (1965)). Thus, the Claiborne dictum cannot be read to suggest that a prohibition of the peaceful
display of stationary banners would not “pose [] . . . serious questions under the First Amendment” when Congress did
not clearly state that it is “essential to the furtherance” of the purpose of Section 8(b)(4)(ii)(B) and we therefore follow
the Court’s approach in DeBartolo. Id., 485 U.S. at 575; Claiborne, 458 U.S. at 912 fn. 47.

2. Section 8(b)(4)(ii)(B) need not be read to prohibit banners

Because the Union’s display of banners was expressive activity, the canon of constitutional avoidance applies here
in interpreting Section 8(b)(4)(ii)(B). The question, then, is whether that section “is open to a construction that obviates
deciding whether a congressional prohibition on [banners] on the facts of this case would violate the First Amendment.”
DeBartolo, supra, 485 U.S. at 578. Such a construction is possible, just as it was possible in DeBartolo to construe [*64]
the Act as permitting handbilling and in Tree Fruits to construe it as permitting product picketing. Nothing in the crucial
words of Section 8(b)(4)(ii)(B) –“threaten, coerce, or restrain”– compels the conclusion that they reach the display of a
banner, either as picketing or as otherwise coercive conduct.

In the absence of textual support, Section 8(b)(4)(ii)(B) can be read as necessarily prohibiting the display of a
stationary banner only if the legislative history indicates a clear intention by Congress to do so. But the legislative
history indicates no such intention. As we have shown, the object of Congress’ concern was confrontational,
“ambulatory picketing”-in Senator Kennedy’s phrase–not the stationary display of banners. The Ninth Circuit’s decision
in Overstreet explains the obvious difference:

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Classically, picketers walk in a line and, in so doing, create a symbolic barrier. . . . In contrast, bannering
involves no walking, in line or otherwise, of union members.

409 F.3d at 1213 (emphasis in original).

The Federal courts have explained persuasively why it is reasonable to construe Section 8(b)(4)(ii)(B) as not
reaching [*65] the display of a stationary banner. The Ninth Circuit in Overstreet, citing DeBartolo and emphasizing
“the need to avoid creating a ‘significant risk’ to the First Amendment,” considered whether the conduct involved any of
the following: (1) the creation of “a symbolic barrier” through patrolling or other conduct in front of the entrances to the
neutrals’ premises; (2) the creation of a “physical barrier” blocking those entrances; or (3) other behavior that was
threatening or coercive, such as taunting of passersby, the massing of a large group of people, or following patrons or
would-be patrons away from a neutral’s premises. 409 F.3d at 1209, 1211. Similarly, the court in Kohn noted that the
individuals holding the banner did not “patrol, shout, block entrances, or otherwise act aggressively.” 289 F. Supp.2d at
1168; see also Benson, 337 F. Supp.2d at 1278 fn. 16 (same). Each of the actions cited by the Ninth Circuit might well
constitute coercion and thereby trigger the statutory prohibition, but none of them occurred here. n44

n44 Compare Laborers Eastern Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB 1251 (2006)
(demonstrators walking back and forth in front of entrance were engaged in picketing).

[*66]

In addition to the Ninth Circuit’s decision in Overstreet, the decision of the United States Court of Appeals for the
District of Columbia Circuit in Sheet Metal Workers’ Local 15 v. NLRB, supra, strongly supports our construing Section
8(b)(4)(ii)(B) in order to avoid serious constitutional questions. In that case, the court–applying the doctrine of
constitutional avoidance, pursuant to DeBartolo-held that a union’s mock funeral procession did not violate Sec.
8(b)(4)(ii)(B). Citing the Ninth Circuit’s Overstreet decision with approval, the court explained that the funeral was “not
the functional equivalent of picketing . . . because it had none of the coercive character of picketing.” 491 F.3d at 438.
Union members “did not physically or verbally interfere with or confront. . . patrons coming and going,” nor did they
“‘patrol’ the area in the sense of creating a symbolic barrier.” Id. n45

n45 In reversing the Board’s finding of a violation, the court noted that the mock funeral did not take place
in front of hospital entrances or even “immediately adjacent” to them, but rather 100 feet away from the main
entrance. Id.

To support their argument that the display of banners was coercive and outside the First Amendment’s
protection, our colleagues cite the 11th Circuit’s “obvious disagreement” with the D.C. Circuit in Kentov v. Sheet
Metal Workers Local 15, 418 F.3d 1259 (11th Cir. 2005), which affirmed a district court’s Sec. 10(l) injunction
against the same “mock funeral procession” involved in Sheet Metal Workers, supra. Contrary to the D.C.
Circuit, the 11th Circuit found reasonable cause to believe that the mock funeral was “the functional equivalent
of picketing.” Id. at 1265 (reasonable cause being the less demanding standard applicable under Sec. 10(l)). The
dissent’s reliance on Kentov is misplaced. The court in Kentov found that the union “patrolled” for 2 hours
accompanied by somber funeral music, and that the procession was a mixture of conduct and communication
“like traditional secondary picketing.” Id. The court specifically distinguished Overstreet, supra, on the basis that
it involved stationary banners “without any accompanying patrolling or picketing.” Id. at 1264 fn. 7 (emphasis
added). The court similarly distinguished DeBartolo. Id. at 1264 (noting that DeBartolo involved “peaceful
handbilling in the absence of any accompanying picketing or patrolling”).

[*67]

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Finally, we find no merit in the General Counsel’s and Member Schaumber’s contention that the Union, by naming
only the secondary Employers on the banners proclaiming a “labor dispute,” fraudulently misrepresented to the public
that it had a primary labor dispute with the neutral employers. By making this allegedly false claim, the General
Counsel asserts, the Union forfeited any First Amendment protection and coerced the secondary employers in violation
of Section 8(b)(4)(ii)(B).

We reject the predicate of the argument for two reasons. First, by using the phrase “labor dispute,” the Union’s
banners (and its handbills) did not in any way specify the nature of the labor dispute at issue. The expansive definition
of “labor dispute” contained in Section 2(9) of the Act easily encompasses both primary and secondary disputes. n46 Cf.
Burlington Northern R.R. Co. v. Brotherhood of Maint. of Way Employees, 481 U.S. 429, 443, 107 S. Ct. 1841, 95 L.
Ed. 2d 381 (1987) (the Norris-LaGuardia Act’s nearly identical definition of “labor dispute” covers disputes with
secondaries); Jacksonville Bulk Terminals v. International Longshoremen’s Assn., 457 U.S. 702, 712, 102 S. Ct. 2672,
102 S. Ct. 2673, 73 L. Ed. 2d 327 (1982) (the Norris-LaGuardia Act’s [*68] definition “must not be narrowly
construed”). The banners did not state or imply that the “labor dispute” was a primary labor dispute. Thus, the Union
banners correctly used a statutory term. Cf. Marquez v. Screen Actors Guild, 525 U.S. 33, 46-48, 119 S. Ct. 292, 142 L.
Ed. 2d 242 (1998) (union did not breach duty of fair representation by negotiating union-security clause that tracked
statutory language). Moreover, as the Ninth Circuit pointed out in Overstreet, supra, 409 F.3d at 1217, members of the
public viewing the banners were unlikely to be familiar with the technical distinction in labor law between a primary
and secondary dispute – and would likely have read the term “labor dispute” as indicating, correctly, that the Union had
a dispute with the entity named that related to labor. In other words, the banners did not communicate a false message
whether read by a trained labor lawyer or an ordinary member of the public. There is a second shortcoming in the
argument. A false statement does not lose the protection of the First Amendment. Young v. American Mini Theatres,
Inc., 427 U.S. 50, 67 fn. 26, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976) (“The mere fact that an alleged defamatory
statement is [*69] false does not, of course, place it completely beyond the protection of the First Amendment.”); Gertz
v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (“The First Amendment requires that
we protect some falsehood in order to protect speech that matters.”). Member Schaumber strains to characterize the
banners as fraud. But fraud requires a subjective intent to deceive, n47 and here there is no evidence in the stipulated
record that the union agents responsible for creating and displaying the banners had any such intent. For each of these
reasons, a holding that the banner displays violated Section 8(b)(4)(ii)(B) because of their purported falsity would raise
serious constitutional questions of its own.

n46 Sec. 2(9) reads: “The term “labor dispute” includes any 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.”

[*70]

n47 See, e.g., Fleet Nat’l Bank v. Anchor Media Television, 45 F.3d 546, 554 (1st Cir. 1995); Brown v.
Forest Oil Corp., 29 F.3d 966, 969 (5th Cir. 1994).

Conclusion

The Union’s display of stationary banners did not “threaten, coerce, or restrain” the secondary employers.
Accordingly, we find that the Union did not violate Section 8(b)(4)(ii)(B) of the Act.

ORDER

The complaint is dismissed.

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DISSENT BY:

SCHAUMBER; HAYES

DISSENT:

MEMBER SCHAUMBER and MEMBER HAYES, dissenting.

Introduction

The National Labor Relations Act protects the right of employees to invoke economic weaponry, including strikes
and picketing, to bring pressure to bear on employers with whom they have a primary labor dispute. However, the Act
also recognizes the significant disruption and economic harm that can follow when labor disputes embroil neutral
parties. Congress addressed these competing interests by enacting and subsequently amending the provisions of Section
8(b)(4), n1 which prohibit a range of coercive secondary boycott activity. n2 The Board has hewed over the years to the
legislative [*71] purpose underpinning Section 8(b)(4) by applying the statutory language flexibly and pragmatically to
prevent often creative attempts to circumvent the scope of the Act’s prohibitions.

n1 Sec. 8(b)(4)(ii)(B) states, in pertinent part, that it shall be an unfair labor practice for a labor organization
or its agents-

(ii)to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting
commerce, where . . . an object thereof is-

(B)forcing or requiring any person to . . . cease doing business with any other person . . . .

n2 See NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S. Ct. 943, 95 L.
Ed. 1284 (1951) (Sec. 8(b)(4) was adopted to serve “the dual congressional objectives of preserving the right of
labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding
unoffending employers and others from pres sures in controversies not their own.”).

The Respondent Union in this case, as part of its long-running [*72] campaign to enmesh property owners in its
labor dispute with certain nonunion contractors, employed a creative variation on classic picketing: the display of large,
stationary banners at the premises of the neutrals. These banners, held aloft by union agents, misleadingly accuse the
neutral employer of having a labor dispute with the union. Whether labeled “stationary picketing,” “bannering,” or
something else, the express terms of the statute and its legislative history, as well as decades of Board precedent,
demonstrate that the conduct in this case is a form of secondary coercion that Congress intended to outlaw by its
adoption of Section 8(b)(4)(ii).

Settled precedent plainly would prohibit the display by the Respondent of signs affixed to pickets bearing exactly
the same message as the banners at the premises of the neutral employers. However, because the Respondent’s agents
remained stationary and held a banner rather than pickets, our colleagues conclude that the Respondent’s conduct was
lawful. In so holding, our colleagues rely on a strained definition of statutory language, and selective and ambiguous
excerpts from the legislative history. They also unpersuasively attempt [*73] to distinguish a substantial body of Board
and court precedent defining conduct proscribed by Section 8(b)(4)(ii) as including activity other than traditional
ambulatory picketing. Our colleagues admit to being motivated in part by the consequences of finding an 8(b)(4)
violation, which they view as too “severe.” However, when Congress has determined that certain conduct in support of
secondary boycotts should be constrained because it constitutes a threat to the economy and national interest, it is not
our role to second guess the means Congress chose to implement that policy determination.

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The majority does not limit its holding to the facts of this case, which were submitted on a stipulated record.
Instead, our colleagues capitalize on the opportunity to narrowly circumscribe the Board’s historically expansive
definition of “picketing.” Further, in assessing whether any conduct that does not involve traditional picketing is
proscribed by Section 8(b)(4)(ii), the majority will now require a showing that the union’s conduct “directly caused, or
could reasonably be expected to directly cause, disruption of the secondary’s operations.” This new standard
substantially augments union [*74] power, upsets the balance Congress sought to achieve, and, at a time of enormous
economic distress and uncertainty, invites a dramatic increase in secondary boycott activity.

To justify its new and narrow construction of Section 8 (b)(4), the majority also relies on the Supreme Court’s
admonition to avoid an interpretation that would raise serious constitutional questions under the First Amendment.
However, even assuming arguendo that the Board, as an administrative agency, may engage in a constitutional analysis
of the Act it administers, the prohibition of the coercive secondary conduct at issue here, like the prohibition against
traditional secondary picketing, simply does not implicate constitutional concerns.

Therefore, we respectfully dissent.

Facts

Bannering can be, and frequently is, accompanied by other coercive “corporate campaign” activity away from or at
the premises of the neutral employer. Since the parties did not stipulate to any such conduct in this case, we assume
none occurred. Most of the undisputed facts are otherwise fully set forth in the majority decision. Briefly, the
Respondent displayed large banners held by three or four union agents at the premises [*75] of neutrals Banner
Medical, Northwest Hospital, and RA Tempe. These banners all proclaimed the existence of a “LABOR DISPUTE” and
identified the neutral employer as the disputant in the following terms: “SHAME ON BANNER THUNDERBIRD
MEDICAL CENTER,” “SHAME ON NORTHWEST MEDICAL CENTER,” and “DON’T EAT RA SUSHI.”

In fact, the Respondent’s dispute was with primary employers Eliason & Knuth, Delta, Enterprise, and Hardrock,
nonunion construction contractors that the Respondent alleges do not pay their employees wages and benefits that
accord with local standards. The only “dispute” between the Respondent and the neutral employers was that the primary
employers at times performed work at facilities owned by the neutrals, although no such work was ever performed at
the Northwest Hospital or RA Tempe sites.

At Banner Medical Center, the Respondent’s agents were stationed on the public sidewalk just off the hospital’s
lawn and about 80 feet, or 5 car lengths, from the driveway entrance into the Medical Center’s main parking lot. They
held a banner measuring 16-feet long by 4-feet high. It is clear from photographs in the record and aerial photographs
on public internet map sites that the [*76] banner was positioned as close as possible to private property at a point
where it would be seen by most people entering onto the hospital’s premises.

At Northwest Hospital, union agents held up two banners measuring 20-feet long by 3-feet high on public rights of
way immediately adjacent to the Hospital’s premises. The banners faced vehicular traffic and were clearly visible to
employees, patients and visitors to the hospital and to contractors working there. As with the banner at Banner Medical
Center, many persons would confront the banners and posted union agents immediately prior to entering onto the
Hospital’s property.

At RA Tempe restaurant, the banner measured 15-feet long by 3-feet high and was held by two or more union
agents posted at the sidewalk curb approximately 15 feet from the front door and large windowed facade of the
restaurant. The banner faced the street. Individuals going to the restaurant would be confronted by the sign and posted
agents from the sidewalk across the street and from their cars as they drove by just prior to parking. Individuals parking
curbside adjacent to the banner would have to walk around or duck under the banner in order to enter the [*77]
restaurant.

Analysis

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I. Both the Text of the Act and Well-Established Board Precedent Prohibit Bannering as a Means of Promoting a
Secondary Boycott.

An 8(b)(4)(ii)(B) violation consists of two elements. First, a labor organization must “threaten, coerce, or restrain” a
person engaged in commerce. Second, the labor organization must do so with “an object” of “forcing or requiring any
person to . . . cease doing business with any other person.” San Francisco Building Trades Council (Goold Electric),
297 NLRB 1050, 1055 (1991). Both elements are satisfied in this case.

A. The Respondent Engaged in the Bannering to Compel Neutral Employers to Cease Doing Business
With the Primary Employers with Whom It Had a Labor Dispute

In reverse order of the statutory language, we first briefly address whether the Union’s bannering had a secondary
objective, an issue the majority does not reach. An unlawful “cease doing business” object is demonstrated by conduct
that is intended to or is likely to disrupt or alter the business dealings between the primary employer and a neutral. n3 A
union violates Section 8(b)(4)(B) if “any object of [its coercive activity] is to [*78] exert improper influence on
secondary or neutral parties.” n4

n3 NLRB v. Operating Engineers Local 825, 400 U.S. 297, 304-305, 91 S. Ct. 402, 27 L. Ed. 2d 398 (1971);
Iron Workers Local 272 (Miller & Solomon), 195 NLRB 1063 (1972).

n4 Electrical Workers IBEW Local 501 v. NLRB, 756 F.2d 888, 892, 244 U.S. App. D.C. 179 (D.C. Cir.
1985); NLRB v. Denver Building Trades Council, 341 U.S. 675, 689, 71 S. Ct. 943, 95 L. Ed. 1284 (1951).

Here, the Respondent does not seriously dispute that an object of its bannering was to force or require the neutral
employers to cease doing business with the primary employers. In any event, there is overwhelming evidence of a cease
doing business object in this case. First, letters sent by the Respondent to neutrals Banner Medical and Northwest
Hospital prior to the bannering threatened protest activity at their facilities if the primary employers performed work for
them. Second, the banners displayed at each of the neutral employers’ locations broadly proclaimed a “labor dispute”
without identifying [*79] the primary employers. Third, the bannering at times took place when the primary employers
were not performing work at the site of the protest. Finally, the handbills distributed in conjunction with the bannering
solicited the public to request the neutral employers to “change this situation” of substandard wages and benefits for the
primary employers’ employees. In order to “change this situation,” the neutral employers would be required to sever
their relationship with the primaries. In sum, the prebannering letters, the banners themselves, and the handbills all
manifest the Respondent’s objective of promoting a total customer boycott of the neutral employers in order to force
them to “cease doing business” with the targeted primary employers n5

n5 NLRB v. Retail Store Employees, Local 1001, 447 U.S. 607, 614 fn. 9, 100 S. Ct. 2372, 65 L. Ed. 2d 377
(1980) (Safeco) (appeal for total boycott of a neutral employer is evidence of unlawful cease doing business
object); see also Long Shoremen ILA Local 799 (Allied International), 257 NLRB 1075, 1084-1085 (1981),
enfd. 702 F.2d 1205, 227 U.S. App. D.C. 17 (D.C. Cir. 1983) (unlawful object may be inferred from the
necessary and foreseeable consequences of exclusively secondary activity).

[*80]

B. The Bannering Threatened, Coerced, or Restrained the Neutral Employers Within The Meaning of The Act

1. The statutory language and legislative history demonstrate a congressional intent to shield neutral employers
from coercive secondary activity beyond traditional ambulatory picketing

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The dispositive issue in this case is whether the Respondents’ bannering activity threatened, coerced, or restrained
persons within the meaning of Section 8(b)(4)(ii). In interpreting that statutory text, courts have made clear that the
terms threaten, restrain or coerce “[do] not describe any sort of measurable physical conduct suggested by the ordinary
meaning of those words, but [are] rather . . . term[s] of legislative art designed to capture certain types of boycotts
deemed harmful by Congress.” n6 Accordingly, 8(b)(4)(ii)’s proscription “broadly includes nonjudicial acts of a
compelling or restraining nature, applied by way of concerted self-help consisting of a strike, picketing, or other
economic retaliation or pressure in the background of a labor dispute.'” n7

n6 Soft Drink Workers Union Local 812 v. NLRB, 657 F.2d 1252, 1267 fn. 27, 212 U.S. App. D.C. 10 (D.C.
Cir. 1980) (citing NLRB v. Fruit & Vegetable Packers & Warehousemen Local 760 (Tree Fruits), 377 U.S. 58,
71, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964)).

[*81]

n7 Carpenters Kentucky District Council (Wehr Constructors), 308 NLRB 1129, 1130 fn. 2 (1992) (quoting
Sheet Metal Workers Local 48 v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964) (emphasis sup plied)), cited
with approval in Kentov v. Sheet Metal Workers Local 15, 418 F.3d 1259, 1264 fn. 6. (11th Cir. 2005); Laborers
Local 1140 (Gilmore Construction), 127 NLRB 541, 545 fn. 6 (1960), enf. as modified 285 F.2d 397 (8th Cir.
1960), cert. denied 366 U.S. 903, 81 S. Ct. 1047, 6 L. Ed. 2d 203 (1961) (prohibition reaches not only picketing
but also strikes and “other economic retaliation”).

Moreover, the legislative history of Section 8(b)(4) demonstrates both that Congress intended the Section to be
applied flexibly and sensibly, drawing upon the Board’s unique expertise, to protect neutrals from a broad range of
coercive secondary activity, and that the Section’s prohibitions were not limited to secondary activity that involved
violence, intimidation, blocking ingress and egress, or similar direct disruption of the secondaries’ business. [*82] n8
As Senator Taft, the Senate sponsor of the Taft-Hartley amendments and Chairman of the Senate Committee on Labor
and Public Welfare, explained:

It has been set forth that there are good secondary boycotts and bad secondary boycotts. Our committee
heard evidence for weeks and never succeeded in having anyone tell us any difference between different
kinds of secondary boycotts. So we have so broadened the provision dealing with secondary boycotts as
to make them an unfair labor practice. n9

The resulting secondary boycott provision, former Section 8(b)(4)(A), was understood by both its proponents and its
opponents to “prohibit [] peaceful picketing, persuasion, and encouragement, as well as non-peaceful economic action,
in aid of the forbidden objective” n10 because “Congress thought that [secondary boycotts] were unmitigated evils and
burdensome to commerce.” Wadsworth Building, supra. n11

n8 See, e.g., Teamsters Local 25 v. NLRB, 831 F.2d 1149, 1153 (1st Cir. 1987) (Sec. 8(b)(4)(ii)(B) is “broad
and sweeping,” and “pragmatic in its application, looking to the coercive nature of the conduct, not to the label
which it bears.”); accord: Pye v. Teamsters Local 122, 61 F.3d 1013, 1024 (1st Cir. 1995) (“Coercion under
Section 8(b)(4)(ii)(B) is a broad concept, and the NLRB has not hesitated to include varied forms of economic
pressure within the conceptual ambit.”) (upholding Sec. 10(1) injunction against union mass shopping at neutral
retail stores).

[*83]

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n9 2 Leg. History Labor Management Relations Act of 1947 (LMRA) 1106 (93 Cong. Rec. 4323).

n10 Carpenters (Wadsworth Building), 81 NLRB 802, 812 (1949), enfd. 184 F.2d 60 (10th Cir. 1950), cert.
denied 341 U.S. 947, 71 S. Ct. 1011, 95 L. Ed. 1371 (1951) (cited with approval in Electrical Workers v. NLRB,
341 U.S. 694, 704, 71 S. Ct. 954, 95 L. Ed. 1299 (1951)).

n11 The Supreme Court’s decision in Tree Fruits, supra, is not to the contrary. The Court held in that case
that Sec. 8(b)(4)(ii)(B) did not prohibit picketing at the site of a neutral employer against a struck product of the
primary employer. Such picketing normally is “confined to [the union’s] dispute with the primary employer,
since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the
primary employer’s goods.” Id. at 63. But there is no claim that the Respondent’s bannering was struck product
picketing under Tree Fruits. Rather, the banners sought to cause a total consumer boycott of the neutrals, and “a
union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the
goods of the primary employer, and seeks the public’s assistance in forcing the secondary employer to cooperate
with the union in its primary dispute.” Tree Fruits, supra at 63-64. Such “appeals” are prohibited by Sec.
8(b)(4)(ii)(B). Id. Moreover, the Tree Fruits doctrine has limited application in cases, such as this, involving
construction industry employers: “Unlike the products at a grocery store, the work of a subcontractor merges
with the work of the general contractor and the developer. Consequently, publicity directed against a
subcontractor embroils the general contractor and developer in the labor dispute.” Solien v. Carpenters District
Council of Greater St. Louis, supra, 623 F. Supp. at 601.

[*84]

Moreover, when unions found and exploited limitations in the coverage of former Section 8(b)(4)(A), Congress
closed the loopholes through amendments broadening the scope of the secondary boycott prohibition. n12 These
included the addition in 1959 of Section 8(b)(4)(ii)(B), proscribing “direct pressures” on neutral employers like those
used in this case. The legislative history discloses that this amendment simply perfected “the intention of Congress as
far back as 1947 to outlaw all forms of the secondary boycott . . .” and to protect “the rights of the innocent third parties
who have no dispute with either the union or the primary employer, but who are subjected to coercion, threats, picketing
and possible loss of jobs simply because the union bosses are permitted to use them as a lever in the quest for greater
power. . . .[No organization] can be allowed to deprive other individuals of freedom from coercion, economic or
otherwise.” n13 Accordingly, the legislative history supports finding that Congress intended various means of
promoting secondary boycotts, including outwardly peaceful picketing akin to the bannering activity here, to be covered
by the definition of proscribed [*85] activity. n14

n12 2 Leg. History Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) 1079 (Cong. Rec.
(Senate) April 21, 1959, remarks of Sen. Goldwater).

n13 2 Leg. History LMRDA 1630 (Cong. Rec. (House) 14354 (Aug. 12, 1959, remarks of Rep. Riehlman).

n14 While the legislative history does not specifically mention bannering, this is hardly surprising given
that unions’ widespread use of bannering to promote secondary boycotts substantially postdates the passage and
amendment of that statutory provision. For that same reason, the Supreme Court’s interpretation of this
legislative history in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades
Council, 485 U.S. 568, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988) (DeBartolo II) to distinguish between
proscribed picketing and permitted handbilling cannot be regarded as conclusive of whether bannering should be
proscribed to the same extent as picketing.

2. Consistent with the legislative history and statutory text, the Board and courts [*86] have developed a broad and

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flexible definition of proscribed secondary picketing

The Board has long held that the use of traditional picket signs and/or patrolling is not a prerequisite for finding that
a union’s conduct is the equivalent of traditional picketing. The coercion element is satisfied when a union posts its
agents “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.” n15 The posting of
union agents at the site of a neutral employer is coercive within the meaning of Section 8(b)(4)(ii)(B) because it creates
“a confrontation in some form between union members and the employees, customers, or suppliers who are trying to
enter the employer’s premises.” n16

n15 Lumber & Sawmill Workers Local Union No. 2797 (Stoltze Land & Lumber), 156 NLRB 388, 394
(1965). See also Laborers Eastern Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB 1251, 1253 fn.
5 (2006), and cases cited therein.

n16 NLRB v. United Furniture Workers, 337 F.2d 936, 940 (2d. Cir. 1964).

[*87]

Thus, traditional picketing, where union agents patrol in an elliptical pattern while carrying placards affixed to
sticks, is but one example of the type of coercive union activity covered by Section 8(b)(4)(ii). n17 The prohibition
against coercive secondary activity sweeps more broadly and has been held to encompass patrolling without signs, n18
placing picket signs in a snowbank and then watching them from a parked car, n19 visibly posting union agents near
signs affixed to poles and trees in front of an employer’s premises, n20 posting banners on a fence or stake in the back
of a truck with union agents standing nearby n21 and, as mentioned above, simply posting agents without signs at the
entrance to a neutral’s facility. n22

n17 See generally Service Employees Local 87 (Trinity Maintenance), 312 NLRB 715, 743 (1993), enfd.
mem. 103 F.3d 139 (9th Cir. 1996).

n18 Service Employees Local 399 (Burns Detective Agency), 136 NLRB 431, 436-437 (1962).

n19 NLRB v. Teamsters Local 182 (Woodward Motors), 314 F.2d 53 (2d Cir. 1963), enfg. 135 NLRB 851
(1962).

[*88]

n20 NLRB v. United Furniture Workers, supra. The court remanded the case to the Board to consider
whether “the extent of confrontation necessary to constitute picketing” was present. Significantly, the court did
not question the Board’s determination that movement is not required to establish picketing and specifically
agreed that “a picket may simply stand rather than walk.” Id. at 939. Rather, the court was concerned that there
was no indication that the union agents who sat in their cars after affixing the signs were visible to employees
and customers entering the plant or clearly identifiable as union representa tives. Those concerns are not present
in this case.

n21 Mine Workers Local 1329 (Alpine Construction), 276 NLRB 415, 431 (1985), remanded on other
grounds 812 F.2d 741, 259 U.S. App. D.C. 25 (D.C. Cir. 1987)

n22 Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 686 (2001).

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Further, “movement . . . [is] not a sine qua non of picketing,” nor is the “carrying of placards” a necessary element.
n23 Instead, the [*89] essential elements of picketing are: (1) the posting of union agents reasonably identifiable as
such; and (2) placement of the union agents within the immediate vicinity of the employer’s premises. Accord: NLRB v.
Teamsters Local 182, supra, 314 F.2d at 57-58 (to “picket in the labor sense means to walk or stand in front of a place
of employment as a picket” and a “picket” is “a person posted by a labor organization at an approach to the place of
work.”) (internal quotations omitted).

n23 Lawrence Typographical Union No. 570 (Kansas Color Press), 169 NLRB 279, 283 (1968), enfd. 402
F.2d 452 (10th Cir. 1968). The Board there recognized that it would “exalt form over substance” to limit the
definition of picketing to situations where the union patrols with placards-precisely the error the majority
commits.

3. Bannering has the same coercive impact as traditional picketing

Here, the Respondent sought to bring about a consumer boycott of the neutrals through the posting [*90] of its
agents, with massive banners, adjacent to the entrance of the neutrals’ premises. This conduct was the confrontational
equivalent of picketing, and thus proscribed by Section 8(b)(4)(ii) within the meaning of the statute, legislative history,
and precedent discussed above. Customers about to enter the neutral premises encountered union agents, readily
identifiable as such, posted by the Respondent and holding large signs, albeit ones stretched between two poles rather
than affixed to a single picket, misleadingly claiming the existence of a “labor dispute” with the neutral employers. The
banners sought to invoke “convictions or emotions sympathetic to the union activity” as well as “fear of retaliation if the
picket is defied,” NLRB v. United Furniture Workers, supra, 337 F.2d at 940 (internal quotation omitted). The display in
front of the neutral’s premises called for the same “automatic response to a signal” that traditional labor picketing
evokes, and as such it is proscribed by Section 8(b)(4). n24

n24 Safeco, supra, 447 U.S. at 619 (concurring opinion of Justice Stevens). Justice Stevens distinguished
picketing–where the mere presence of the picketers sends an intimidating “signal” to those about to enter an
establishment–from handbilling, which depends entirely on the persuasive force of the ideas expressed therein
to produce a re sponse. This concept is analytically distinct from the concept of signal picketing, where a union’s
conduct is directed at employees of a neutral employer urging them to strike, rather than at customers of the
neutral urging a boycott. Service Employees Local 254 (Women’s & Infants Hospital), 324 NLRB 743 (1997).
The General Counsel did not allege signal picketing directed at employees in this case.

[*91]

Admittedly, there are differences between picket signs and banners, but those differences do not suggest the latter
are any less likely to threaten, restrain, or coerce. On the contrary, banners are much larger and contain less speech.
They are held by union agents, just as picket signs often are, but their imposing mass and length obviate the need for
any patrolling to create a physical or, at the very least, symbolic confrontational barrier to those seeking access to the
neutral employer’s premises. Those agents holding the banners are not, as the Ninth Circuit has suggested, “human
signposts.” n25 They are sentient, watchful supporters of the boycott campaign, whose presence will provoke a far
different reaction from passersby than the stanchions on a billboard. Oddly, the Ninth Circuit itself admits to this
reaction when rationalizing that members of the public can “avert [their] eyes” from the banner and agents. n26
Aversion and avoidance are characteristic behaviors of persons being threatened, restrained, or coerced. Indeed, it is
clearly the intent of the agents engaged in bannering activity to have members of the public avoid them by avoiding the
premises of the neutral [*92] employers, thus facilitating the secondary boycott objective. n27

n25 Overstreet v. Carpenters Local 1506, 409 F.3d 1199, 1214 (9th Cir. 2005).

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n26 Id.

n27 The majority seems to suggest that the distance of the bannering activity from the building entrances for
Banner Medical and Northwest Hospital has some relevance to the confrontational nature of this conduct. Of
course, the union agents in those situations could get no closer to the buildings without trespassing on private
property. They displayed their banners in close proximity to main entrances to the neutral Employer’s premises,
at which point they would confront many or most persons who would ultimately enter the buildings in question.

The majority asserts that it was “highly impractical” for these union agents to observe customers as they
entered the neutral premises due to the placement of the banners. At least as to Banner Medical Center and RA
Tempe, we respectfully disagree. Union agents at those locations were stationed 80 feet from the parking lot
entrance road and 15 feet from the restaurant’s front door, respectively. Even if those agents normally faced the
street (an issue the stipulation does not explicitly address), they could easily observe persons entering and
leaving the neutral premises simply by turning their heads. Indeed, their attempt to confront and deter persons
from entering onto the premises was logically directed towards those about to enter the premises.

[*93]

In sum, the size and placement of the banners, the stationing of union agents to hold them, and other direct
similarities to picketing are all factors contributing to the confrontational impact of bannering, sharply distinguishing
that conduct from handbilling’s mere persuasion. The coercive impact was further heightened by the misleading
message the banners conveyed. By naming only the neutral employers, the banners naturally and forseeably created the
impression that the Respondent had a primary labor dispute with the neutral employers over the employment terms and
conditions of the neutral’s employees. In fact, however, the Respondent did not have a labor dispute with the neutral
employers. See San Antonio Community Hospital v. Southern California District Council of Carpenters, 125 F.3d 1230,
1235 (9th Cir. 1997) (hospital did not have labor dispute with union where union’s primary labor dispute was with
subcontractor working on hospital expansion project).

Having been misled into believing that the neutrals were unfair to their employees, potential customers would be
more likely to support the union’s boycott than they would if the banners truthfully indicated [*94] that the neutrals
“must be dealing with other companies that deal with yet other companies that don’t treat their employees right.”
Overstreet v. Carpenters Local 1506, 409 F.3d 1199, 1220 (9th Cir. 2005) (dissenting opinion). The result, of course,
would be to increase pressure on the neutral employers to cease doing business with the unidentified primary employer
targets. n28

n28 Member Schaumber observes that Board law requires unions to clearly identify the dispute with the
primary employer and the neutral employer’s relationship to the primary. See Solien v. Carpenters District
Council of Greater St. Louis, 623 F. Supp. 597, 603-604 (E.D. Mo. 1985) (union cannot benefit from “publicity
proviso” to Sec. 8(b)(4) if it misleadingly identifies neutral as disputant); Sailors’ Union of the Pacific (Moore
Dry Dock), 92 NLRB 547, 549 (1950) (common situs picketing unlawful unless picketing clearly discloses that
dispute is with primary). The Respondent’s failure to comply with these well-settled standards supports an
inference that it intended to mislead readers of the banners by creating the false impression that it had a primary
labor dispute with them.

[*95]

II. THE MAJORITY ABANDONS PRECEDENT AND REWRITES SECTION 8(B)(4), OPENING THE DOOR TO
A SUBSTANTIAL EXPANSION OF SECONDARY ACTIVITY THAT CONGRESS INTENDED TO LIMIT

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Rather than apply the settled understanding of “threaten, coerce, or restrain” established by decades of Board and
court precedent, much of which is discussed above, the majority either ignores that precedent or claims it has been
invalidated by the Supreme Court’s decision in DeBartolo II, supra. Our colleagues are undeterred in their assertions by
the fact that the Board has steadfastly adhered to its precedent after DeBartolo II and by the fact that nothing in the high
court’s decision negates the Board’s historic definition of coercive picketing. The majority then fashions out of whole
cloth a new definition of coercive picketing that effectively guts the protections afforded neutrals by Section
8(b)(4)(ii)(B). The standard they adopt today simply cannot be squared with the language or purpose of that statutory
provision.

A. The Majority Ignores or Misapplies Precedent Governing Coercive Picketing

The majority begins its analysis by citing Carpenters Local 1976 v. NLRB (Sand Door), 357 U.S. 93, 99, 78 S. Ct.
1011, 2 L. Ed. 2d 1186 (1958), [*96] for the proposition that Section 8(b)(4) did not enact a “wholesale condemnation
of secondary boycotts,” but instead allows such boycotts if the employer agrees to it or if it is brought about by means
other than those proscribed by” that provision of the Act. We readily accept the notion that Section 8(b)(4) did not
outlaw all union activity with a secondary objective. However, the holding of Sand Door–that Section 8(b)(4) did not
prohibit boycotts with the employer’s agreement–was legislatively overruled only a year later by the enactment of
Section 8(e) in the Landrum–Griffin Act of 1959. See National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 634, 87
S. Ct. 1250, 18 L. Ed. 2d 357 (1967). Thus, while the Court’s observation that Section 8(b)(4) did not outlaw all
secondary activity remains valid, the scope of the proscription intended by Congress was clearly broader than the Court
in Sand Door foresaw.

The majority then asserts that the terms “threaten, coerce, or restrain” must be given their “ordinary meaning,”
which in their view requires proof of “violence, intimidation, blocking ingress or egress, or similar direct disruption of
the secondaries’ business.” While as a matter of [*97] statutory construction, the plain and ordinary meaning of words
generally controls in this context, we have been instructed that these terms do not “describe any sort of measurable
physical conduct suggested by the ordinary meaning of those words,” but are rather “legislative terms of art designed to
capture certain types of boycotts deemed harmful by Congress.” Soft Drink Workers Local 812 v. NLRB, supra. Further,
as previously stated, it is beyond peradventure that peaceful picketing to promote a total secondary boycott is proscribed
by Section 8(b)(4)(ii)(B).

Our precedent makes clear that the peaceful display of stationary signs by union agents posted at a neutral’s
premises, in support of a secondary object, is among the class of confrontational actions Congress condemned.
Nevertheless, the majority now holds that both patrolling and the carrying of traditional picket signs are essential
elements for a finding that coercive picketing occurred. That precise argument has been repeatedly and consistently
rejected by the Board and reviewing courts. See, e.g., Stoltze, supra (patrolling not essential); Mine Workers (New
Beckley Mining), 304 NLRB 71 (1991), [*98] enfd. 977 F.2d 1470, 298 U.S. App. D.C. 195 (D.C. Cir. 1992) (picket
signs or placards not essential). While the majority makes an unpersuasive attempt to distinguish cases such as Stoltze,
New Beckley, and Kansas Color Press, supra, on their facts, our colleagues effectively concede that the Respondent’s
bannering would meet the definition of coercive picketing set forth in those cases. In each, the Board found that the
posting of stationary union agents was coercive and violated Section 8(b)(4)(ii)(B). While it its true that the unions in
those cases also engaged in other coercive conduct, the Board did not rely on that conduct in its determination that the
posting was unlawful. n29

n29 For example, in Woodward Motors, supra, the majority claims that the fact that “traditional” picketing
(i.e., patrolling with signs on sticks) ended 2 weeks before the stationary display of signs began somehow
distinguishes that case from the bannering at issue here. But the ambulatory picketing played no part in the
Board’s analysis of whether the stationary display of signs also constituted picketing. Further, in enforcing the
Board’s Order, the Second Circuit rejected the union’s contention that the stationary display of signs was not
picketing, and found instead that movement was not a “requisite” of picketing. NLRB v. Local 182, supra, 314

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F.2d at 58.

[*99]

Unable to distinguish away precedent, the majority attempts a different tack and argues, in effect, that the Stoltze
standard is no longer good law because it was overruled in DeBartolo II. Unfortunately for our colleagues, history
demonstrates otherwise. The Board has adhered to the Stoltze standard in decisions issued both before and after
DeBartolo II. n30 In Jeddo Coal, for example, union agents holding picket signs stood at the entrance to a neutral
facility. The respondent union defended its actions on the grounds that there could be no 8(b)(4)(ii)(B) violation because
there was no evidence of patrolling-precisely the reasoning advanced by the majority. But the Board rejected that
position in a unanimous opinion that specifically relied upon the fact that “neither patrolling nor patrolling combined
with the carrying of placards are essential elements to a finding of picketing; rather, the essential feature of picketing is
the posting of individuals at entrances to a place of work.” 334 NLRB at 686. It cannot be gainsaid: the majority’s
decision flatly contravenes post-De Bartolo II precedent.

n30 See, e.g., Service Employees Local 87 (Trinity Maintenance), supra, 312 NLRB at 743 (post-DeBartolo
II case recognizing that posting is sufficient to find picketing and that patrolling or carrying signs not required);
Jeddo Coal), supra (same).

While Stoltze involved unlawful recognitional picketing in violation of Sec. 8(b)(7), the Board has
repeatedly relied upon its definition of picketing in deciding. 8(b)(4) cases. See, e.g., Ranches at Mt. Sinai,
supra, and cases cited therein. Any suggestion by the majority that Stoltze and its progeny should be confined to
Sec. 8(b)(7) cases–or that the same conduct could be picketing in that context but not under Sec. 8(b)(4)–cannot
be reconciled with existing precedent.

[*100]

Nor is the majority’s decision consistent with the Board’s recent unanimous holding in Brandon Regional Medical
Center n31 that a union “mock funeral procession” at a neutral hospital to pressure the hospital to cease doing business
with a nonunion contractor violated Section 8(b)(4)(ii)(B). The procession involved union agents walking back and
forth on the public sidewalks in front of the hospital’s main entrance while carrying a “faux casket and accompanied by
a [union] member dressed as the Grim Reaper.” The union agents also distributed leaflets that detailed several
malpractice lawsuits that had been filed against the hospital. Although the marchers did not carry any picket signs, the
Board held that the funeral procession was picketing all the same. The majority fails to explain why picket signs were
not necessary to establish picketing in Brandon, but are necessary now. n32

n31 Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB 199 (2006), enf. denied
491 F.3d 429, 377 U.S. App. D.C. 38 (D.C. Cir. 2007).

n32 Far from reconciling their views on Sec. 8(b)(4) with Brandon, our colleagues rely only on the court of
appeals decision denying enforcement. The court viewed the procession as a combination of noncoercive street
theater and handbilling, in that the union members did not physically or verbally interfere with or confront
hospital patrons and did not “creat[e] a symbolic barrier . . .” by patrolling. In so finding, the court reasoned that
the mock funeral procession took place 100 feet away from the hospital entrance, and thus satisfied the time,
place, and manner requirements for limits on the abortion protests upheld by the Supreme Court in Hill v.
Colorado, 530 U.S. 703, 734, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000), and Masden v. Women’s Health
Center, 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994). As such, the court concluded that the funeral
procession was protected by the First Amendment from regulation under Sec. 8(b)(4)(ii)(B).

We respectfully disagree with the opinion of the Brandon court and with our colleagues’ summary reliance

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upon it rather than longstanding extant Board precedent. First, the standards applicable in an abortion protest
context are obviously different from those where the conduct in question constitutes secondary activity subject
to regulation by the Board. Second, the mock funeral procession constituted coercive picketing because the
participants patrolled on the public right of way immediately adjacent to the hospital’s property, and crossed the
driveways and sidewalks commonly used by customers to enter the premises. Brandon, 346 NLRB at 203. As
with the bannering activity in the present case, while the procession took place at a distance from the hospital
building entrance, it was conducted at the entrance to the neutral premises.

[*101]

Our colleagues posit that these post-De Bartolo II Board decisions are entitled to no precedential deference because
the Board in those cases “made no attempt to reconcile the ‘posting’ definition with DeBartolo.” With all due respect,
there was no need for such reconciliation. The Board was well aware of DeBartolo II when it decided these cases in
1993, 2001, and 2006. The DeBartolo II Court held that peaceful handbilling, not accompanied by picketing, urging a
consumer boycott of a neutral employer did not violate Section 8(b)(4)(ii)(B). The Court reasoned that such handbilling
is not coercive because it depends entirely on the persuasive force of the idea, and is thus distinguishable from
picketing, which depends on intimidation to achieve its purpose.

There is no suggestion that the handbilling that occurred in this case violated the Act. Rather, the question
presented is whether Respondent’s bannering was unlawful. Nothing in DeBartolo II even hints that the Supreme Court
intended to change the Board’s longstanding and flexible definition of picketing, or the well-established understanding
that posting an individual at a neutral’s premises is sufficient to [*102] establish 8(b)(4)(ii)(B) coercion. Indeed, the
court specifically endorsed the view that Section 8(b)(4)(ii)(B) proscribed stationary as well as ambulatory activity by
its emphasizing that “[n]o picketing or patrolling was involved” in that case (emphasis added). See 485 U.S. at 575-576.

Our position finds further support in the 11th Circuit’s 2005 decision in Kentov v. Sheet Metal Workers Local 15,
418 F.3d 1259 (11th Cir. 2005) (DeBartolo II “dealt only with a union’s peaceful handbilling in the absence of any
accompanying patrolling or picketing”) (emphasis added). In obvious disagreement with the subsequent decision of the
D.C. Circuit in Brandon, the court of appeals affirmed a lower court’s issuance of a Section 10(l) injunction against the
union’s mock funeral protest, finding reasonable cause to believe that this conduct violated Section 8(b)(4)(ii)(B).
Specifically relying on Jeddo Coal, Trinity Building, and Stoltze, the court “readily” concluded that the mock funeral
was “the functional equivalent of picketing, and therefore, the First Amendment concerns in DeBartolo are not present
in this case.” Id. at 1265. [*103]

Indeed, the Supreme Court has endorsed the Board’s broader and flexible view of picketing in a line of cases dating
back many decades. See Tree Fruits, supra, 377 U.S. at 76 (Black, J., concurring)(emphasis added) (“‘Picketing,’ in
common parlance and in § 8(b)(4)(ii)(B),” includes the concept of “patrolling, that is, standing or marching back and
forth or round and round on the streets, sidewalks, private property, or elsewhere, generally adjacent to someone else’s
premises[.]”); Thornhill v. State of Alabama, 310 U.S. 88, 101 fn. 18, 60 S. Ct. 736, 84 L. Ed. 1093 (1940) (picketing
includes merely observing workers or customers, persuading “employees or customers not to engage in relations with
the employer. . . through the use of banners . . .” and may include threatening employees or customers . . . . by the mere
presence of the picketer” which “may be a threat of, (i) physical violence, [or] (ii) social ostracism, being branded in the
community as a ‘scab'”) (emphasis added). There is no indication that the DeBartolo II Court thought it was overturning
these principles, and there is no justification for the majority to do so now. n33

n33 Service Employees Local 399 (Delta Airlines), 293 NLRB 602 (1989), a case on which the majority
relies, is not to the contrary. There too, the disputed union conduct was limited to handbilling and nonpicketing
publicity in the form of newspaper advertisements, both urging the public to boycott a neutral. “There was no
violence, picketing, patrolling, or work stoppage.” Id. at 603 (emphasis added). The Board’s determination that
this conduct was lawful, consistent with DeBartolo II, does not even question, much less overturn, the

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established principle that the posting of union agents at the premises of a neutral can constitute prohibited
picketing under Sec. 8(b)(4)(ii)(B).

[*104]

B. The Majority’s New Standard Undercuts 8(b)(4) Protections

The majority requires proof that union agents patrol the neutral’s premises with traditional picket signs before they
will find that proscribed peaceful picketing has occurred. Absent such conduct, they will find a 8(b)(4)(ii)(B) violation
only if the union engages in conduct that “directly caused, or could reasonably be expected to directly cause, disruption
of the secondary’s operations.” This new standard lacks any support in, indeed, it is controverted by, the statutory text
and Board precedent. The statutory text requires only that the union activity “restrain, coerce, or threaten;” no proof of
actual or potential loss or damage is necessary to find that the means used to promote a secondary boycott is proscribed.
And Board law, which, until today, encompassed a broad range of coercive activity beyond traditional picketing, was
faithful to that statutory text. It required no specific, much less objectifiable, quantum of disruption to establish a
violation.

Indeed, the Board has found violations of Section 8(b)(4)(ii)(B) where there was no evidence of picketing or proof
of loss or damage to the neutral’s [*105] operations whatsoever. For example, in General Maintenance Co., supra, 329
NLRB at 664-665, 680, the Board held that the union violated Section 8(b)(4) by, among other things, a mass assembly
of 40-60 union agents at the home of the owner of a neutral entity. n34 The owner was away, but his 9 year old son and
housekeeper were present. The Board found that this conduct, which was not accompanied by any shouting or name
calling, violated Section 8(b)(4)(ii)(B) because the union “reasonably could foresee that the visit would harass and
embarrass [the owner] in front of his neighbors and, thus, would have a coercive effect.” Id. at 682. There was no
evidence of picketing and the employer’s operations were entirely unaffected, but the Board found a violation all the
same. n35

n34 The many other violations found by the Board in that case included hurling trash bags into the lobby of
a neutral office building. The majority appears to concede that such tactics violate Sec. 8(b)(4)(ii)(B).

n35 The majority allows that a mass assembly of this type would “exert a coercive force against the
employer” – but only if it was accompanied by shouting and name calling that caused “employer agents” to fear
for their safety. The majority never explains how this conduct fits within their “disruption of operations”
standard. Moreover, our colleagues apparently would allow such mass assemblies if unaccompanied by shouting
and name calling, or if aimed not at an agent, but his or her family. There is no justification for restricting Sec.
8(b)(4) in this manner.

[*106]

Cases such as General Maintenance Co. demonstrate the folly of imposing a new requirement of proof of
disruption of operations to establish an 8(b)(4) violation in the absence of traditional picketing, and of attempting to
delimit coercive conduct to a narrow class of secondary activity. And, as discussed above, consistent with the statutory
text, the Board has never required a showing of specific or likely damage for secondary boycott activity to be deemed
unlawful. See, e.g., New Beckley Mining, supra, 304 NLRB 71 (mass gathering at motel of shouting strikers seeking to
oust replacement employees was a form of coercive picketing; sufficient that crowd was gathered in furtherance of labor
dispute and its shouted messages were directed to removal of replacements from motel); Carpenters (Society Hill
Towers Owner’s Assn.), 335 NLRB 814, 820-823 (2001), enfd. 50 Fed. Appx. 88 (3d. Cir. 2002) (broadcasting union
message at excessive volume at condominium unlawful; “the Board has found violations of Section 8(b)(4)(ii)(B) where
unions’ secondary activities, short of picketing, have interfered with the use of private facilities [*107] by patrons and

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tenants of neutrals) (emphasis added). The majority’s newly fashioned standard cannot be reconciled with this
precedent.

The primary justifications offered by our colleagues for refuting the Congressional imperatives underpinning
Section 8(b)(4) and rejecting the Board’s heretofore broad and flexible definition of coercive conduct are newly divined
policy considerations at odds with our statutory mandate. Thus, our colleagues observe that the consequences of an
8(b)(4) violation are “severe,” as the conduct “becomes” an unfair labor practice and is subject to injunctive relief and a
suit for damages, while employees who participate are not protected by the Act from discipline or discharge.

These considerations have no place in the Board’s decisionmaking unless the general language in the Act’s
Preamble “to promote collective bargaining” is to be construed so broadly as to swallow enforcement of the specific
provisions of the Act. Congress struck the secondary boycott weapon from the hands of organized labor in 1947
because it determined that the cost to society was too high. That decision was bitterly contested at the time, but it is
settled law now. The fact that [*108] Congress imposed severe sanctions for violations of Section 8(b)(4) only
reinforces the significance of the harm it perceived to flow from the untrammeled spread of labor disputes into interstate
commerce. It is our duty to carry out that Congressional objective, not to second-guess the severity of the remedies
Congress imposed. We have no authority to constrain the reach of Section 8(b)(4) to shield one of our stakeholders from
the Act’s proscriptions.

Our colleagues’ new narrow definition of picketing and their new requirement for a showing of actual or threatened
disruption before other secondary activity will be found unlawful unquestionably augments union power. Unless the
General Counsel can prove that disruption could be expected to occur in the neutral’s business directly as a result of the
union’s secondary boycott activity or that such a disruption has, in fact, occurred, the Board will no longer authorize the
General Counsel to seek injunctive relief or subsequently find a violation. However, the majority fails to adequately
explain the contours of their new standard, and their efforts to do so raise more questions than they answer. Is proof of
disruption alone sufficient, [*109] or must the General Counsel also establish that actual “harm” to the neutral’s
operations was threatened or inflicted, as the majority appears to suggest at one point? Will disruption of other
businesses owned by the neutral count? What form of proof will the majority require to establish the requisite likelihood
of future harm? Our colleagues leave these and a host of other questions to another day, jeopardizing not just the
existence of numerous vulnerable small businesses already battered by the economy, but also the livelihoods of their
many employees

The standard adopted by the majority substantially increases the leverage of unions that may be tempted to exploit
the threat of coercive secondary activity, and creates new incentives to utilize such tactics. Communications, such as the
letters that were sent by the Respondent, routinely will be sent to neutral Employers warning of “vigorous” public
protests unless the neutral ceases doing business with a primary employer. Neutral employers will be understandably
reluctant, given the vague but heightened burden of proof imposed by my colleagues, to invoke the Board’s processes,
and will instead simply cease doing business with the [*110] primary employer before bannering commences.

In short, the majority’s decision is inconsistent with the text of the statute, its legislative history, decades of
precedent, and sound and well-established policy. There is simply no reasoned basis for their constrained reading of
8(b)(4), which will have a lasting and significant economic impact on scores of businesses across the country.

C. A Finding That Bannering To Promote A Secondary Boycott Violates Section 8(b)(4)(ii)(B) Does Not Raise
Constitutional Concerns

The majority invokes the judicial doctrine of constitutional avoidance to conclude that the Board may not interpret
Section 8(b)(4) to prohibit bannering. This arguably requires consideration of whether a finding that union bannering
violates Section 8(b)(4)(ii)(B) would potentially conflict with the free speech clause of the First Amendment and, if so,
“whether there is another interpretation, not raising these serious constitutional concerns, that may fairly be ascribed to”
the statutory provision. n36 In DeBartolo II, the Court applied this rule of construction in holding that peaceful

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secondary handbilling is not coercive and therefore does not violate Section 8(b)(4)(ii)(B) [*111] . In earlier cases, the
Court found that no constitutional concerns were raised by holding that secondary picketing was violative of Section
8(b)(4). n37 DeBartolo II did not disturb these findings. Thus, even assuming arguendo that the Board, as an
administrative agency, must engage in the same constitutional analysis used in DeBartolo II by the high court, no
constitutional issue is raised by barring secondary bannering to the same extent as traditional secondary picketing
because the differences between the two activities are legally insignificant, as we have explained. n38

n36 DeBartolo II, supra, 485 U.S. at 577. Member Schaumber notes that the Board has stated that reliance
on constitutional avoidance principles improperly “arrogate[s] to this [agency] the power to determine the
constitutionality of mandatory language in the Act we administer. . . . [A] power that the Supreme Court has
indicated we do not have.” Handy Andy, Inc., 228 NLRB 447, 452 (1977); see also Hudgens v. NLRB, 424 U.S.
507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976) (in which the Supreme Court castigated the Board for venturing
into a First Amendment analysis, rather than applying the terms of the Act). While the Board’s statement in
Handy Andy may be interpreted as too categorical, in Member Schaumber’s view, the majority’s analysis
demonstrates all too clearly the danger of an administrative agency invoking constitutional avoidance principles.
Rather than construe the text as written and impart the Board’s expertise and experience in assessing the coercive
impact of secondary activity, the majority is able, under the guise of constitutional avoidance principles, to
effectively reverse decades of Board precedent and narrowly construe statutory text to permit coercive
secondary conduct Congress sought to outlaw.

[*112]

n37 Safeco, supra at 616 (1980); Electrical Workers v. NLRB, 341 U.S. 694, 705, 71 S. Ct. 954, 95 L. Ed.
1299 (1951).

n38 Member Schaumber observes that the First Amendment does not shield the coercive bannering in this
case for the further reason that it falsely and fraudulently claimed that the Respondent had a labor dispute with
the neutral employers. By displaying the banners in a manner that would cause most, if not all, readers to be
misled into believing that the Respondent had a primary labor dispute with the neutrals, the Respondent crossed
the line separating protected hyperbole from fraudulent misrepresentation. San Antonio Community Hospital v.
Southern California District Council of Carpenters, supra, 125 F.3d at 1236-1237. As such, the fraudulent
nature of the banners’ messages remove them from any First Amendment protection. Id.; see also Madigan v.
Telemarketing Associates, Inc., 538 U.S. 600, 612, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003) (“the First
Amendment does not shield fraud”); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620,
637, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980) (“fraudulent misrepresentations can be prohibited”). This is
especially true in the labor context, where as noted above, Board law consistently requires unions to carefully
distinguish between the primary employer and neutrals in their communications.

[*113]

Furthermore, we disagree with our colleagues’ interpretation of the Supreme Court’s rulings about the breadth of
First Amendment protections involved here. For instance, while they correctly state that the Supreme Court struck down
the particular cross-burning law at issue in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003),
the Court also held that states could constitutionally ban cross-burning when done with the intent to intimidate. Section
8(b)(4)(ii)(B) is addressed to confrontational union conduct that “threatens, coerces, or restrains,” i.e., obviously
including conduct that intimidates. More importantly, none of the individual free speech cases cited by our colleagues
involves economic regulation, in which the Court has recognized a substantial governmental interest justifying some
constraints on First Amendment freedoms, particularly in the “special context of labor disputes.” n39 In this respect,

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[g]overnmental regulation that has an incidental effect on First Amendment freedoms may be justified in
certain narrowly defined instances. See United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed.
2d 672. A nonviolent and totally voluntary boycott may have a disruptive [*114] effect on local
economic conditions. This Court has recognized the strong governmental interest in certain forms of
economic regulation, even though such regulation may have an incidental effect on rights of speech and
association. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834; NLRB
v. Retail Store Employees, 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377. . . .Secondary boycotts and
picketing by labor unions may be prohibited, as part of “Congress’ striking of the delicate balance
between union freedom of expression and the ability of neutral employers, employees, and consumers to
remain free from coerced participation in industrial strife.” NLRB v. Retail Store Employees, supra, at
617-618 (BLACKMUN, J., concurring in part). See Longshoremen v. Allied International, Inc., 456 U.S.
212, 222-223, 102 S. Ct. 1656, 72 L. Ed. 2d 21, and n. 20. n40

n39 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763 fn. 17, 96 S.
Ct. 1817, 48 L. Ed. 2d 346 (1976).

n40 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982). The
majority characterizes the Court’s description of the scope of con stitutional protection for boycott activity in the
labor context as “dictum” and demands that it be read narrowly. We believe the Court’s discussion of its own
precedent is entitled to greater weight than the majority acknowledges. And while our colleagues also note the
Court’s caution that governmental regulation that has an “incidental effect on First Amendment freedoms” must
restrict those freedoms no more than is essential to the furtherance of the Government’s interest in imposing such
regulation, id. at 912 fn. 47, prohibiting secondary bannering plainly furthers the important governmental
interest in protecting neutrals from “coerced participation in industrial strife.” Id. at 912.

[*115]

Clearly, both bannering and picketing involve elements of speech. However, the expressive element represented by
the brief, obtuse, and misleading written message on a union banner-such as “Don’t Eat RA Sushi” in one of the cases
before us-is less than the expressive element in picket signs, usually accompanied by vocal protests, and it is certainly
less than in handbills. Even if the banner’s message is entitled to some weight under the First Amendment’s protections
for free speech, it does not warrant greater weight than in traditional secondary picketing situations. Because the
confrontational conduct element in secondary bannering predominates over the speech element, we may find it unlawful
under Section 8(b)(4) without raising any serious concern for impairment of the freedom of speech.

Conclusion

Section 1 of the Act declares the national labor policy of eliminating obstructions to commerce caused by labor
disputes. The Wagner Act sought to achieve that purpose without imposing any restraint on unions’ use of economic
pressure to achieve secondary objectives. This arrangement proved unworkable, and so Congress added the Taft-Hartley
amendments in 1947. Those amendments, [*116] which were a response, in part, to abuses of union power, brought
needed balance to American labor relations and needed protection to neutral employers, their employees, and
customers.

Section 8(b)(4)(ii)(B) deprived unions of a substantial weapon. No longer could they further their cause in a dispute
with a primary employer by picketing “‘to persuade customers of a secondary employer to cease trading with him in
order to force him to cease dealing with, or to put pressure upon the primary employer.’ Such picketing spreads labor
discord by coercing a neutral party to join the fray.” n41

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n41 Safeco, supra at 616 (internal citations omitted).

Today, the majority puts that neutral party right back into the fray. Ignoring decades of precedent establishing that
bannering is coercive, our colleagues hold that it is mere persuasion and thus lawful. In the process, the majority reaches
out to narrow the protection established by Section 8(b)(4) through a new and narrow definition of picketing and a
[*117] startling new standard that exempts other types of secondary activity from the Act’s reach unless it causes or can
be expected to cause some unknown quantum of “disruption of the secondary’s operation.” Their holding is not
compelled by any construction of Section 8(b)(4) and its legislative history, nor by any valid concerns about a conflict
with First Amendment protections. Our dissent is compelled by a serious concern that their standard will assuredly
foster precisely the evil of secondary boycott activity and expanded industrial conflict that Congress intended to restrict
by enacting 8(b)(4)(ii)(B). We will not be alone in finding this decision to be most troubling and ill-advised.

For all the foregoing reasons, we respectfully dissent.

APPENDIX:

APPENDIX A

The following companies are persons and/or employers engaged in commerce and in industries affecting commerce
within the meaning of the Act. They are grouped by the location of the relevant bannering.

BANNER THUNDERBIRD MEDICAL CENTER

–Banner Health System (Banner Health), an Arizona nonprofit corporation, with an office and place of business in
Phoenix, Arizona, has been engaged in the hospital/health care business [*118] and owns and operates the Banner
Thunderbird Medical Center in Glendale, Arizona.

–Eliason & Knuth (E&K), a Nebraska corporation, with an office and place of business in Phoenix, Arizona, has
been engaged as a contractor installing drywall, metal studs and interior finishes in commercial and residential
construction projects at various job sites located throughout Maricopa County, Arizona.

–Layton Construction Company of Arizona (Layton) is an Arizona corporation with an office and place of business
in Phoenix. Banner Health engaged Layton to be the general contractor on the remodeling of a building at its
Thunderbird Medical Center. Layton subcontracted with E&K to perform construction work on this building.

NORTHWEST HOSPITAL

–Triad Hospitals, Inc. (Triad), a Delaware limited liability corporation, owns and operates medical facilities in 17
states, including Northwest Hospital, LLC (Northwest Hospital) in Tucson, Arizona and the Oro Valley Hospital that
was under construction in Oro Valley, Arizona.

–Delta/United Specialties (Delta), a Tennessee corporation, with an office and place of business in Memphis,
Tennessee, has been engaged as a contractor performing interior finish [*119] work.

–Hardrock Concrete Placement Co. Inc. (Hardrock), an Arizona corporation, with an office and place of business
in Phoenix, Arizona, has been engaged as a contractor performing concrete work.

–Bovis Lend Lease, Inc. (Bovis), a Florida corporation has an office and place of business in Charlotte, North
Carolina. Triad engaged Bovis to be the general contractor for the constriction of its Oro Valley Hospital. Bovis
subcontracted with Delta and Hardrock to perform construction work on this hospital.

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RATEMPE

–RA Sushi Holding Corporation (RA Sushi), a Delaware corporation, is a wholly owned subsidiary of Benihana
National Corporation (Benihana), also a Delaware corporation. RA Sushi owns RA San Diego Corporation, a Delaware
corporation, which is engaged in the restaurant business and was constructing the RA San Diego restaurant in San
Diego, California. RA Sushi also owns RA Tempe Corporation (RA Tempe), a Delaware corporation, which operated a
restaurant in Tempe, Arizona.

–Enterprise Interiors, Inc. (Enterprise), a California corporation, with an office and place of business in Orange,
California, has been engaged as a contractor performing interior finish work.

–R.D. [*120] Olsen Construction (R.D. Olsen) is a California limited partnership with an office and place of
business in Irvine, California. Benihana, the parent of RA Sushi Holding, engaged R.D. Olsen to be the general
contractor for the construction of the RA San Diego restaurant. R.D. Olsen subcontracted with Enterprise to perform
construction work on this restaurant.

APPENDIX B

The specific circumstances of the bannering at each location were as follows:

(1) Banner Medical

At the Thunderbird Medical Center, where primary employer E&K was engaged as a construction subcontractor in
a building remodeling project, the Union displayed a banner measuring 16 feet by 3 feet with the inscription “SHAME
ON BANNER THUNDERBIRD MEDICAL CENTER” in large letters in the center of the banner, flanked on the left
and right sides with the words “LABOR DISPUTE” in smaller letters. Two to three union representatives held the
banner and distributed handbills to pedestrians who asked about the banner. The banner was erected on a public
sidewalk in front of Banner Medical’s parking lot, approximately 80 feet from the entrance to the parking lot and 510
feet from the front door of the Thunderbird Medical Center, [*121] facing automobile traffic on a public street.

Banner Health owns and operates the Thunderbird Medical Center.

(2) Northwest Hospital

At the location of neutral Northwest Hospital, the Union displayed two banners with the inscription “SHAME ON
NORTHWEST MEDICAL CENTER” in large letters in the center of the banner, flanked on the left and right sides with
the words “LABOR DISPUTE” in smaller letters. Both banners measured 20 feet by 3 feet and were placed on public
rights of way facing automobile traffic on public streets. Two to three union representatives held each banner and had
handbills available to distribute to pedestrians who inquired about the banner. One of the banners was displayed 1,050
feet from a vehicle entrance to Northwest Hospital and the other banner was displayed 450 feet from a vehicle entrance
to the facility and 300 feet from its front door entrance. The primary employers, Delta and Hardrock, were never present
at Northwest Hospital during the bannering. They were working 11 miles away at the Oro Valley Hospital construction
project, which was owned by Northwest Hospital’s parent corporation, Triad.

(3)RATempe

The bannering in the third case took place at [*122] the RA Tempe restaurant in Tempe, Arizona. The banner
displayed at this neutral site measured 15 feet by 3 feet. It was set up on the curb side of a public sidewalk – i.e.,
immediately adjacent to the street – 15 feet from the restaurant’s front door entrance, facing away from the entrance and
towards the street. Two to three union representatives held the banner and distributed handbills to interested passersby.
Rather than declaring shame on this neutral employer, the banner stated “DON’T EAT RA SUSHI” with the “LABOR
DISPUTE” wording on both sides. The primary employer, Enterprise, was never present while the bannering took place

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355 N.L.R.B. 797; 2010 NLRB LEXIS 321, *119;

189 L.R.R.M. 1041; 2010-11 NLRB Dec. (CCH) P15,306

at RA Tempe. Rather, Enterprise was performing construction work at the RA San Diego restaurant, which was owned
by RA Sushi, the entity that also owned RA Tempe.

APPENDIX C

The text of the handbills distributed at the RA Sushi restaurant:

SHAME ON R A SUSHI

FOR DESECRATION OF THE AMERICAN

WAY OF LIFE

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

Shame on R A Sushi for contributing to erosion of area standards for San [*123] Diego carpenter craft workers.
Carpenters Local 1506 has a labor dispute with Enterprise that is a subcontractor for R D Olsen on R A Sushi’s newest
restaurant. Enterprise does not meet area labor standards, including providing or paying for health care and pension to
all its carpenter craft employees.

Carpenters Local 1506 objects to substandard wage employers like Enterprise working in the community. In our
opinion the community ends up paying the tab for employee health care and because low wages tend to lower general
community standards, thereby encouraging crime and other social ills.

Carpenters Local 1506 believes that the R A Sushi has an obligation to the community to see that area labor standards
are met when doing their construction work. They should not be allowed to insulate themselves behind “independent”
contractors.

PLEASE CALL R A SUSHI AT [phone number] AND TELL THEM THAT YOU WANT THEM TO DO ALL
THEY CAN TO CHANGE THIS SITUATION AND SEE THAT AREA LABOR STANDARDS ARE MET FOR
CONSTRUCTION WORK DONE AT THEIR FACILITIES.

The members and families of Carpenters Local 1506 thank you for your support. Call [phone number] for [*124]
further information.

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

Legal Topics:

For related research and practice materials, see the following legal topics:
Labor & Employment LawCollective Bargaining & Labor RelationsStrikes & Work StoppagesLabor & Employment
LawCollective Bargaining & Labor RelationsUnfair Labor PracticesSecondary ActivityLabor & Employment
LawCollective Bargaining & Labor RelationsUnfair Labor PracticesStrikes

Page 40
355 N.L.R.B. 797; 2010 NLRB LEXIS 321, *122;

189 L.R.R.M. 1041; 2010-11 NLRB Dec. (CCH) P15,306

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