IBEW Local 134 Summit Design + Build) (13-CC-225655)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE: December 20, 2018

TO:

Peter S. Ohr, Regional Director

Region 13

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: International Brotherhood of Electrical Workers,

Local 134

(Summit Design + Build)

Case 13-CC-225655

560-2575-6700

560-2575-6767-2500

560-7540-2000

The Region submitted this case for advice as to whether the Union violated

Section 8(b)(4)(i) and/or (ii)(B) by erecting a large, stationary banner proclaiming a

labor dispute with the general contractor, as well as a large, inflatable cat clutching a

construction worker by the neck, near the entrance to a construction site. We conclude

that the Region should issue a Section 8(b)(4)(i)(ii)(B) complaint, absent settlement,

and urge the Board to reconsider its decisions in Carpenters Local 1506 (Eliason &

Knuth of Arizona),1 Sheet Metal Workers Local 15 (Brandon Medical Center)

(Brandon II),2 and Carpenters Southwest Regional Councils Locals 184 & 1498 (New

Star),3 and find that the Union’s activity was tantamount to unlawful secondary

picketing, and signal picketing that unlawfully induced or encouraged neutral

employees to cease working, or at least constituted unlawfully coercive non-picketing

conduct.

FACTS

Summit Design + Build (“Summit”) is engaged in the business of construction

consulting as well as planning and engineering residential and office work spaces.

Summit is the general contractor for a project at 620 N LaSalle Street in Chicago,

Illinois. Summit subcontracted the electrical work at the project to Edge Electric

(“Edge”). The International Brotherhood of Electrical Workers, Local 134 (the

1 355 NLRB 797 (2010).

2 356 NLRB 1290 (2011).

3 356 NLRB 613 (2011).

work spaces.

Summit is the general contractor for a project at 620 N LaSalle Street in Chicago,

Illinois. Summit subcontracted the electrical work at the project to Edge Electric

(“Edge”). The International Brotherhood of Electrical Workers, Local 134 (the

1 355 NLRB 797 (2010).

2 356 NLRB 1290 (2011).

3 356 NLRB 613 (2011).

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“Union”) has a primary labor dispute with Edge over Edge’s failure to pay area

standard amounts in wages and benefits. On August 8, 2018,4 the Union wrote to

Summit to state that the Union would engage in picketing and/or handbilling at the

LaSalle job site in order to pressure Edge to pay area standards wages and benefits.

By letter dated August 10, Summit replied that it was unaware if Edge payed area

standards, and that Edge would not be at the job site until at least August 15.

On August 13, the Union posted agents near the job site entrance at 620 N

LaSalle Street wearing orange vests that said “observer” on them. On August 14, the

Union erected a large yellow banner that read “LABOR DISPUTE: SHAME SHAME,”

and beneath those words, “SUMMIT DESIGN AND BUILD.” The Union also set up a

large, inflatable fat cat, approximately 10-15 feet tall, clutching a construction worker

by the neck. The banner and the cat were located approximately 15 feet from the

entrance to the job site. Also on August 14, Summit emailed the Union to inform it

that Edge would not be at the site until August 16, and that Summit would be

implementing a reserved gate system to avoid enmeshing neutral businesses in the

Union’s dispute with Edge. The Union returned to the job site and engaged in the

bannering and erection of the cat on August 15 and August 16. The Union agents also

distributed a handbill from August 14-16, which stated that the Union was in a labor

dispute with Summit. On at least August 13-15, two subcontractors refused to enter

the premises as a result of the labor dispute

usinesses in the

Union’s dispute with Edge. The Union returned to the job site and engaged in the

bannering and erection of the cat on August 15 and August 16. The Union agents also

distributed a handbill from August 14-16, which stated that the Union was in a labor

dispute with Summit. On at least August 13-15, two subcontractors refused to enter

the premises as a result of the labor dispute.

The Union admits that its activity was aimed at Summit, and that it does not

have a primary labor dispute with Summit.

ACTION

We conclude that the Region should issue a Section 8(b)(4)(i) and (ii)(B)

complaint, absent settlement, and urge the Board to reconsider its decisions in,

Carpenters Local 1506 (Eliason & Knuth of Arizona), Sheet Metal Workers Local 15

(Brandon Medical Center (Brandon II), and Carpenters Southwest Regional Council

Locals 184 & 1498 (New Star). In those decisions, the Board narrowed its definition of

picketing, and thereby the scope of unlawful activity prohibited by Section 8(b)(4), and

determined that certain union conduct, including the erection of stationary banners

and an inflatable rat at neutral employers’ facilities, was lawful nonpicketing

secondary activity under the Act. Specifically, the Region should argue: (1) that the

Union’s erection of a large banner misleadingly claiming a labor dispute with the

neutral, as well as the Union’s use of a large inflatable cat clutching a construction

4 All remaining dates are in 2018.

mployers’ facilities, was lawful nonpicketing

secondary activity under the Act. Specifically, the Region should argue: (1) that the

Union’s erection of a large banner misleadingly claiming a labor dispute with the

neutral, as well as the Union’s use of a large inflatable cat clutching a construction

4 All remaining dates are in 2018.

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worker by the neck at a private construction jobsite, was tantamount to unlawful

secondary picketing; (2) that the posting of the banner and cat constituted unlawful

signal picketing; and (3) that even if this conduct was not tantamount to picketing, it

was nevertheless unlawfully coercive and not shielded by the First Amendment

because the Union was engaged in labor and/or commercial speech, both of which are

entitled to lesser constitutional protection, and also because the banners were

knowingly false speech unprotected by the First Amendment.

I.

General Principles

A.

Secondary picketing and other coercive conduct within the meaning

of Section 8(b)(4)(i) and (ii)(B)

Section 8(b)(4)(i) and (ii)(B) makes it unlawful for a labor organization or its

agents: (i) to induce or encourage employees to withhold their services from their

employer or (ii) to threaten, coerce, or restrain any person engaged in commerce,

where an object of the conduct is to force or require any person to cease doing

business with any other person.5 Concern over unions pressuring neutral, secondary

employers prompted Section 8(b)(4)(B), which is meant to simultaneously protect

unions’ right to exert legitimate pressure on employers with whom they have a

primary labor dispute, and to shield neutral businesses from labor disputes not their

own.6

The Board has found a wide array of conduct aimed at employees of neutral

employers to constitute unlawful inducement or encouragement to cease work in

violation of Section 8(b)(4)(i)(B)

meant to simultaneously protect

unions’ right to exert legitimate pressure on employers with whom they have a

primary labor dispute, and to shield neutral businesses from labor disputes not their

own.6

The Board has found a wide array of conduct aimed at employees of neutral

employers to constitute unlawful inducement or encouragement to cease work in

violation of Section 8(b)(4)(i)(B). While traditional picketing at the premises of a

neutral employer has long been held to violate Section 8(b)(4)(i)(B),7 the Board and

5 29 U.S.C. § 158(b)(4)(i) & (ii)(B).

6 NLRB v. Operating Engineers Local 825 (Burns & Roe, Inc.), 400 U.S. 297, 302-303

(1971); see also NLRB v. Denver Building and Construction Trades Council, 341 U.S.

675, 692 (1951).

7 Laborers Eastern Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB

1251, 1253 (2006) (patrolling and picketing at construction site when only neutrals’

employees would be present establishes unlawful inducement and encouragement);

Service Employees Local 525 (General Maintenance Co.), 329 NLRB 638, 638-39 &

n.10 (1999) (picketing at neutral employers’ premises has the “foreseeable

consequence” of unlawfully inducing or encouraging neutral’s employees to withhold

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courts have also held that union activity at a neutral’s premises that falls short of

traditional picketing may still send a “signal” to a neutral’s employees that they

should withhold their services

(picketing at neutral employers’ premises has the “foreseeable

consequence” of unlawfully inducing or encouraging neutral’s employees to withhold

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courts have also held that union activity at a neutral’s premises that falls short of

traditional picketing may still send a “signal” to a neutral’s employees that they

should withhold their services. For example, in Electrical Workers Local 98 (Telephone

Man), a union agent stationed himself at the neutral gate at a construction site with a

sign hanging around his neck that read “observer” and, when “conveniently flipped

over,” revealed language indicating that the primary employer did not pay

appropriate wages.8 The Board concluded that the agent was not a benign observer

but was rather engaged in unlawful signal picketing.9 Similarly, in Sheet Metal

Workers Local 19 (Delcard Associates), the Board affirmed the ALJ’s conclusion that a

union engaged in unlawful signal picketing by posting an agent in a rat costume near

a neutral gate.10 By using a rat costume, the union “intentionally sought to create the

impression that this was an unfair job,” and thereby unlawfully induced and

encouraged neutral employees to cease work.11

In determining what exactly constitutes unlawful “threat[s], coerc[ion], or

restrain[t]” under Section 8(b)(4)(ii)(B), the Supreme Court has determined that while

handbilling at a neutral employer’s business is lawful, picketing urging a boycott of

the neutral employer is coercive and therefore unlawful.12 That is because, the Court

their labor), affirmed, 52 Fed. App’x 357 (9th Cir. 2002); see also Electrical Workers

Local 501 v. NLRB (Samuel Langer), 341 U.S. 694, 699-704 (1951) (peaceful picketing

at construction site where neutral was present was unlawful inducement or

encouragement to neutral’s employees to withhold their labor).

8 327 NLRB 593, 593 (1999).

9 Id

their labor), affirmed, 52 Fed. App’x 357 (9th Cir. 2002); see also Electrical Workers

Local 501 v. NLRB (Samuel Langer), 341 U.S. 694, 699-704 (1951) (peaceful picketing

at construction site where neutral was present was unlawful inducement or

encouragement to neutral’s employees to withhold their labor).

8 327 NLRB 593, 593 (1999).

9 Id.

10 316 NLRB 426, 437-38 (1995), affirmed in relevant part, 154 F.3d 137 (3d Cir.

1998).

11 Id. at 438. See also Warshawsky & Co. v. NLRB, 182 F.3d 948, 953-54 (D.C. Cir.

1999) (handbilling decrying primary employer’s substandard wages and benefits, that

took place on access road to construction site at times when only neutral employees

would be present, constituted unlawful inducement and encouragement), certiorari

denied, 529 U.S. 1003 (2000).

12 Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades

Council (DeBartolo II), 485 U.S. 568, 579-80 (1988) (citing NLRB v. Retail Clerks

Local 1001 (Safeco Title Ins. Co.), 447 U.S. 607, 607 (1980)).

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explained, “picketing is a mixture of conduct and communication and the conduct

element often provides the most persuasive deterrent to third persons about to enter a

business establishment.”13 Handbilling, by contrast, relies solely on the persuasive

force of the idea within the handbill, rather than the confrontational element inherent

in picketing.14

The Board and courts have historically defined picketing in a very broad and

flexible manner.15 Patrolling and the carrying of picket signs have never been

prerequisites to establish picketing.16 The Board and courts have found a variety of

conduct to be picketing or tantamount to picketing, including: planting signs in a

snowbank and then watching the signs from a parked car17; posting stationary agents

with signs near an employer’s entrance18; disorderly conduct in front of a neutral’s

business, including attaching a banner to the neu

ver been

prerequisites to establish picketing.16 The Board and courts have found a variety of

conduct to be picketing or tantamount to picketing, including: planting signs in a

snowbank and then watching the signs from a parked car17; posting stationary agents

with signs near an employer’s entrance18; disorderly conduct in front of a neutral’s

business, including attaching a banner to the neutral’s building19; and the massed

13 DeBartolo, 485 U.S. at 580 (internal citations and quotation marks omitted).

14 Id.

15 See Eliason & Knuth, 355 NLRB at 815 (Members Schaumber and Hayes,

dissenting). See also Lumber & Sawmill Workers Local Union No. 2792 (Stoltze Land

& Lumber), 156 NLRB 388, 394 (1965); Mine Workers District 2 (Jeddo Coal Co.), 334

NLRB 677, 686 (2001); Service Employees Local 87 (Trinity Maintenance), 312 NLRB

715, 743 (1993), enforced memorandum, 103 F.3d 139 (9th Cir. 1996); Lawrence

Typographical Union 570 (Kansas Color Press), 169 NLRB 279, 283 (1968), enforced,

402 F.2d 452 (10th Cir. 1968).

16 Eliason & Knuth, 355 NLRB at 814-15 (citing, inter alia, Service Employees Local

87 (Trinity Maintenance), 312 NLRB at 743, 746); Cf. DeBartolo II, 485 U.S. at 571

(“the union peacefully distributed the handbills without any accompanying picketing

or patrolling”) (emphasis added).

17 NLRB v. Teamsters Local 182 (Woodward Motors), 314 F.2d 53 (2d Cir. 1963),

enforcing, 135 NLRB 851 (1962).

18 Jeddo Coal Co., 334 NLRB at 686. See also Laborers Local 389 (Calcon Const.), 287

NLRB 570, 573 (1987) (union agents standing near stationary sign or sitting in

parked van with sign on outside of van, constitutes picketing); Painters District

Council 9 (We’re Associates), 329 NLRB 140, 142 (1999) (“where groups of men are

gathered around a sign … they are engaged in picketing”) (internal citations omitted).

19 Trinity Maintenance, 312 NLRB at 746.

, 287

NLRB 570, 573 (1987) (union agents standing near stationary sign or sitting in

parked van with sign on outside of van, constitutes picketing); Painters District

Council 9 (We’re Associates), 329 NLRB 140, 142 (1999) (“where groups of men are

gathered around a sign … they are engaged in picketing”) (internal citations omitted).

19 Trinity Maintenance, 312 NLRB at 746.

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gathering of strikers and community members without picket signs or placards in a

neutral hotel’s parking lot where strikebreakers were staying.20

Other conduct that the Board has found was not picketing but nevertheless

coercive within the meaning of Section 8(b)(4)(ii)(B) includes broadcasting a message

at extremely high volume through loudspeakers facing a neutral condominium

building21; throwing bags full of trash into a building’s lobby22; and 20-70 union

members marching in an elliptical pattern without signs while some distributed

handbills.23 In the latter case, the Board noted that the union’s conduct had

“overstepped the bounds of propriety and went beyond persuasion so that it became

coercive to a very substantial degree.”24

B. In the Sphere of Labor Relations, the Government has a Substantial

Interest in Justifying Some Restraints on First Amendment Freedoms

The Supreme Court has long recognized that in the “special context of labor

disputes,” speech is “subject to a number of restrictions.”25 In Section 8(b)(4),

Congress sought to prohibit the “substantive evil” of the secondary boycott, and the

Supreme Court has recognized that the First Amendment does not shield conduct

20 Mine Workers (New Beckley Mining), 304 NLRB 71, 72 (1991), enforced, 977 F.2d

1470 (D.C. Cir. 1992).

21 Carpenters (Society Hill Towers Owners’ Assn.), 335 NLRB 814, 820-23 (2001),

enforced, 50 F. App’x 88 (3d Cir. 2002)

he secondary boycott, and the

Supreme Court has recognized that the First Amendment does not shield conduct

20 Mine Workers (New Beckley Mining), 304 NLRB 71, 72 (1991), enforced, 977 F.2d

1470 (D.C. Cir. 1992).

21 Carpenters (Society Hill Towers Owners’ Assn.), 335 NLRB 814, 820-23 (2001),

enforced, 50 F. App’x 88 (3d Cir. 2002).

22 Service Employees Local 525 (General Maintenance Co.), 329 NLRB 638, 664-65,

680 (1999), affirmed, 52 F. App’x 357 (9th Cir. 2002).

23 Service Employees Local 399 (William J. Burns Agency), 136 NLRB 431, 436-37

(1962) (two members of the Board majority would, in fact, have labeled the union’s

conduct “picketing”).

24 Id.

25 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.

748, 763 n.17 (1976).

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that falls afoul of that prohibition.26 As the Tenth Circuit has observed, “[t]he

constitutional right of free speech and free press postulates the authority of Congress

to enact legislation reasonably adapted to the protection of interstate commerce

against harmful encroachments arising out of secondary boycotts.”27

In a similar vein, commercial speech is also entitled to less constitutional

protection, especially where it does not implicate the public interest.28 In DeBartolo

II, the Supreme Court declined to read Section 8(b)(4)(ii)(B) as prohibiting a union’s

handbilling that pressed the advantages of unionization to the public.29 In so holding,

the Court noted that the union’s handbilling did not constitute commercial speech,

inasmuch as the handbills did not “advertis[e] the price of a product or argu[e] its

merits.”30 However, the Court did not analyze the parameters of commercial speech,

and it acknowledged that if a union did engage in commercial speech, that speech

would be entitled to lesser constitutional protection.31

Additionally, it is well-established that intentionally false speech is not entitled

to Fi

uch as the handbills did not “advertis[e] the price of a product or argu[e] its

merits.”30 However, the Court did not analyze the parameters of commercial speech,

and it acknowledged that if a union did engage in commercial speech, that speech

would be entitled to lesser constitutional protection.31

Additionally, it is well-established that intentionally false speech is not entitled

to First Amendment protection.32 For example, in San Antonio Hospital v. Southern

26 International Bhd. of Elec. Workers, Local 501 v. NLRB (Samuel Langer), 341 U.S.

at 705 (secondary picketing, as well as phone call emphasizing the purpose of the

picketing, not protected by the First Amendment); see also Safeco, 447 U.S. at 616

(“[a]s applied to picketing that predictably encourages consumers to boycott a

secondary business, § 8(b)(4)(ii)(B) imposes no impermissible restrictions upon

constitutional protected speech”).

27 United Brotherhood of Carpenters and Joiners of America v. Sperry, 170 F.2d 863,

869 (10th Cir. 1948) (placement of neutral employer on blacklist, promulgation of the

blacklist, and picketing the neutral employer unprotected by the First Amendment).

28 Virginia Citizens Consumer Council, 425 U.S. at 762-64.

29 DeBartolo II, 485 U.S. at 575-76. The Court also applied the canon of constitutional

avoidance because a finding that a union’s handbilling violated Section 8(B)(4)(ii)(B)

would pose serious questions as to the constitutionality of that provision. See id.

30 Id. at 576.

31 Id.

32 New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see also Virginia

Citizens Consumer Council, 425 U.S. at 771 (citing Gertz v. Robert Welch, Inc., 418

stitutional

avoidance because a finding that a union’s handbilling violated Section 8(B)(4)(ii)(B)

would pose serious questions as to the constitutionality of that provision. See id.

30 Id. at 576.

31 Id.

32 New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see also Virginia

Citizens Consumer Council, 425 U.S. at 771 (citing Gertz v. Robert Welch, Inc., 418

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California District Council of Carpenters, the Ninth Circuit upheld a district court

order that enjoined the union from using the word “rat” in a stationary banner held

by union agents posted in front of the hospital.33 In that case, the union had a

primary labor dispute with one of the subcontractors employed by the hospital in an

expansion project, and stationed agents near the entrance to the hospital with a

banner that read, inter alia, “THIS MEDICAL FACILITY IS FULL OF RATS.”34

While the union argued that “rat” has a “deep historical meaning in the context of

labor disputes,” the court nevertheless determined that the union knew that the

average member of the public would most likely deduce that the hospital had a rodent

problem.35 Because the union’s banner had crossed the line from permissible speech

to fraudulent speech, it forfeited First Amendment protection.36

II.

The Board’s Decisions in Eliason & Knuth, Brandon Medical Center

(Brandon II), and New Star

In recent years, the Board has restricted the circumstances under which it will

find a union to have engaged in conduct tantamount to picketing, thereby narrowing

the intended reach of Section 8(b)(4). In Eliason & Knuth, the Board majority

concluded that a union’s posting of agents holding large, stationary banners

proclaiming “labor dispute” and “shame on [the employer]” in front of neutral

businesses did not violate Section 8(b)(4)(ii)(B).37 In particular, the Board majority

stated its view that stationary bannering is not tantamount to picketing

ng

the intended reach of Section 8(b)(4). In Eliason & Knuth, the Board majority

concluded that a union’s posting of agents holding large, stationary banners

proclaiming “labor dispute” and “shame on [the employer]” in front of neutral

businesses did not violate Section 8(b)(4)(ii)(B).37 In particular, the Board majority

stated its view that stationary bannering is not tantamount to picketing. Thus, for the

U.S. 323, 340 (1974)); Central Hudson Gas & Elec. Corp. v. Public Service

Commission of New York, 447 U.S. 557, 563 (1980) (citing, inter alia, Friedman v.

Rogers, 440 U.S. 1, 13, 15-16 (1979)).

33 125 F.3d 1230 (1997), rehearing and suggestion for rehearing en banc denied, 137

F.3d 1090 (9th Cir. 1998).

34 Id. at 1233.

35 Id. at 1236.

36 Id. at 1238 (“[t]he policy of this state which characterizes the use of false or

fraudulent statements in picketing as unlawful is within the permissible limits which

a state may impose upon industrial combatants without impairing the right of free

speech”) (internal quotation marks and citations omitted).

37 355 NLRB at 797.

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first time, the Board held that the “carrying of picket signs and persistent patrolling”

were necessary predicates to establish picketing.38 In doing so, the Board majority

acknowledged prior case law that articulated a broader definition of picketing, i.e., the

posting of union agents at a business entrance to keep away employees and/or

customers.39 Nevertheless, the Board majority purportedly reconciled that broader

precedent by noting that in many of those cases, the display of stationary signs was

preceded by union agents’ ambulatory picketing, during which they often used

traditional picket signs.40 Moreover, the Board majority noted that many of those

cases pre-dated the Supreme Court’s decision in DeBartolo II, and a definition of

picketing that relied solely on the posting of a union agent near the entrance to an

oting that in many of those cases, the display of stationary signs was

preceded by union agents’ ambulatory picketing, during which they often used

traditional picket signs.40 Moreover, the Board majority noted that many of those

cases pre-dated the Supreme Court’s decision in DeBartolo II, and a definition of

picketing that relied solely on the posting of a union agent near the entrance to an

employer’s place of business was incompatible with DeBartolo II’s holding that

handbilling near an entrance was lawful.41 In addition to concluding that the

bannering was not equivalent to picketing, the Eliason Board also determined that

the bannering was not otherwise coercive within the meaning of Section 8(b)(4)(ii)(B)

because, e.g., it did not block ingress or egress to neutral businesses or otherwise

disrupt the neutral businesses’ operation.42 Finally, applying the doctrine of

constitutional avoidance, the Board determined that a finding that the bannering was

unlawful would raise serious First Amendment issues, and so it declined to read

Section 8(b)(4)(ii)(B) as proscribing the banner displays.43

38 Id. at 802.

39 Id. at 803-804 (citing, e.g., Stoltze Land & Lumber Co., 156 NLRB at 394 (posting

union agents to confront customers and employees near employer’s entrance,

picketing); Kansas Color Press, 169 NLRB at 283 (strikers, who sat in their cars at

entrance to employer’s premises, and would confront members of public arriving at

premises, were engaged in picketing); Iron Workers Pacific Northwest Council

(Hoffman Construction), 292 NLRB 562 n.2 (1989) (groups of union agents gathered

around a sign constitutes picketing), enforced, 913 F.2d 1470 (9th Cir. 1990); Jeddo

Coal, 334 NLRB at 686 (union agents standing with picket signs without patrolling,

constitutes picketing).

40 Eliason & Knuth, 355 NLRB at 804.

41 Id. at 803.

42 Id. at 805-806 (citing Society Hill Towers Owners’ Assn., 335 NLRB at 820-23).

43 Id

RB 562 n.2 (1989) (groups of union agents gathered

around a sign constitutes picketing), enforced, 913 F.2d 1470 (9th Cir. 1990); Jeddo

Coal, 334 NLRB at 686 (union agents standing with picket signs without patrolling,

constitutes picketing).

40 Eliason & Knuth, 355 NLRB at 804.

41 Id. at 803.

42 Id. at 805-806 (citing Society Hill Towers Owners’ Assn., 335 NLRB at 820-23).

43 Id. at 807-11.

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Dissenting Members Schaumber and Hayes, meanwhile, would have found the

bannering to be unlawful.44 They argued that Section 8(b)(4)(ii)(B) was meant to

broadly shield neutral, innocent employers from “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.”45 The dissent pointed to the extensive body of law in which the Board and

courts have defined labor picketing flexibly and broadly.46 Thus, the dissent argued

that bannering was the “confrontational equivalent of picketing” that sought to induce

the public to react with “emotions” and “fear of retaliation” rather than by appealing

to the public’s reason.47 Moreover, the dissent explained, the sheer size of the banners

obviated the need for traditional patrolling and created a physical, or at least a

“symbolic[ally] confrontational barrier” to those seeking access to the neutral’s

premises.48 Disagreeing with the majority’s contention that an expanded definition of

picketing was inconsistent with the Supreme Court’s decision in DeBartolo II, the

dissent noted that the Board had long adhered to an expanded definition of picketing,

even in the wake of DeBartolo II.49 The dissent argued that DeBartolo’s holding was

limited to finding that handbilling at a neutral employer’s facility was lawful,

inasmuch as the success of handbilling turns solely on persuasion.50 Because a

banner, by contrast, contains much less speech than a handbill, and mimics the

that the Board had long adhered to an expanded definition of picketing,

even in the wake of DeBartolo II.49 The dissent argued that DeBartolo’s holding was

limited to finding that handbilling at a neutral employer’s facility was lawful,

inasmuch as the success of handbilling turns solely on persuasion.50 Because a

banner, by contrast, contains much less speech than a handbill, and mimics the

confrontational aspects of a picket line, its success depends on intimidation, rather

44 Id. at 811-21 (Members Schaumber and Hayes, dissenting).

45 Id. at 813 (emphasis removed, internal quotation marks omitted) (citing Carpenters

Kentucky District Council (Wehr Constructors), 308 NLRB 1129, 1130 n.2 (1992)

(quoting Sheet Metal Workers Local 48 v. Hardy Corp., 332 F.2d 682, 686 (5th Cir.

(1964))).

46 Id. at 814-15.

47 Id. at 815 (citing NLRB v. United Furniture Workers, 337 F.2d 936, 940 (2d Cir.

1964)).

48 Id.

49 Id. at 817-18 & n.30 (citing Trinity Maintenance, 312 NLRB at 743; Jeddo Coal Co.,

334 NLRB at 686).

50 Id. at 817-18.

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than mere persuasion.51 Finally, the dissenters disagreed with the majority’s

application of the doctrine of constitutional avoidance. They explained that, since the

bannering was tantamount to picketing, no constitutional concerns were raised, as it

is settled law that secondary picketing is not entitled to First Amendment

protection.52 Moreover, even if secondary bannering were entitled to some First

Amendment protection, the dissent noted that the government has a substantial

interest in regulating labor relations that justifies some restrictions on free speech.53

In this regard, the dissent observed that, unlike with handbilling, the conduct

element of secondary bannering predominates over the speech element, and therefore

First Amendment concerns are not as strongly implicated.54

In 2011, the Board extended the holding of Eliason & Knuth to hold that

antial

interest in regulating labor relations that justifies some restrictions on free speech.53

In this regard, the dissent observed that, unlike with handbilling, the conduct

element of secondary bannering predominates over the speech element, and therefore

First Amendment concerns are not as strongly implicated.54

In 2011, the Board extended the holding of Eliason & Knuth to hold that a

union’s use of a large, inflatable rat was neither picketing, nor otherwise coercive.55

In Sheet Metal Workers Local 15 (Brandon Medical Center) (Brandon II),56 the union

had set up a large, inflatable rat on a truck approximately 100 feet from the neutral

hospital’s front door.57 The same three member Board majority that issued the

51 Id.

52 Id. at 820 (citing Safeco, 447 U.S. at 616).

53 Id. 820-21 (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 763 n.17 (1976)).

54 Id. at 821.

55 Brandon II, 356 NLRB at 1292.

56 356 NLRB 1290 (2011). In the original Board decision in that case, the Board

concluded that the union violated Section 8(b)(4)(ii)(B) by staging a “mock funeral” on

public property in front of a hospital, including patrolling while carrying a fake casket

and accompanied by a union member dressed as the Grim Reaper. Sheet Metal

Workers Local 15 (Brandon Regional Medical Center) (Brandon I), 346 NLRB 199

290 (2011). In the original Board decision in that case, the Board

concluded that the union violated Section 8(b)(4)(ii)(B) by staging a “mock funeral” on

public property in front of a hospital, including patrolling while carrying a fake casket

and accompanied by a union member dressed as the Grim Reaper. Sheet Metal

Workers Local 15 (Brandon Regional Medical Center) (Brandon I), 346 NLRB 199

(2000), enforcement denied, 491 F.3d 429 (D.C. Cir. 2007). However, because the

Board determined that finding the rat to be unlawful would simply be a cumulative

violation with the mock funeral, it declined to pass on the lawfulness of the rat at that

time. Brandon Regional Medical Center, 346 NLRB at 200, n.3. The Board’s Brandon

II decision issued after the D.C. Circuit denied enforcement of Brandon I.

57 Brandon II, 356 NLRB at 1290.

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decision in Eliason & Knuth held in Brandon II that the union’s large inflatable rat

did not constitute picketing where the rat was located at a significant distance from

the hospital entrance, and where its attendants did not physically or verbally accost

hospital patrons. The Board found that there was insufficient confrontation to render

the conduct unlawful.58 Notably, the Board majority acknowledged that “the size of a

symbolic display combined with its location and threatening or frightening features

could render it coercive within the meaning of Section 8(b)(4)(ii)(B).”59

Member Hayes dissented in Brandon II, as he had done in Eliason & Knuth, and,

contrary to the Brandon II majority, found that the union’s use of an inflatable rat

balloon, “a well known symbol of labor unrest,” was tantamount to picketing.60

Member Hayes concluded that the message for “pedestrians or occupants of cars

passing in the shadow of a rat balloon, which proclaims the presence of a ‘rat

employer,’” was “unmistakably confrontational and coercive.”61 Given its frequent use

in labor disputes, Member Hayes also concluded that the union’s use of a

balloon, “a well known symbol of labor unrest,” was tantamount to picketing.60

Member Hayes concluded that the message for “pedestrians or occupants of cars

passing in the shadow of a rat balloon, which proclaims the presence of a ‘rat

employer,’” was “unmistakably confrontational and coercive.”61 Given its frequent use

in labor disputes, Member Hayes also concluded that the union’s use of a rat balloon

was a signal to third parties of an invisible picket line they should not cross.62 As

such, the union’s intent in using the rat as a symbol of labor strife was to evoke from

those confronted by the rat the same kind of reaction as if they had been confronted

by a traditional picket line.63 The predominant characteristic of the rat, like

picketing, was to “intimidate by conduct, not to persuade by communication.”64

Also in 2011, the Board held in Carpenters Southwest Regional Councils Locals

184 & 1498 (New Star) that a union did not violate Section 8(b)(4) by erecting banners

at 19 different neutral employers’ premises claiming labor disputes with the neutrals

and proclaiming “shame” on them.65 In addition to applying Eliason & Knuth and

58 Id. at 1292. As he did in Eliason & Knuth, Member Hayes dissented in Brandon II.

59 Id. at 1294.

60 Id. at 1296.

61 Id.

62 See id.

63 See id.

64 Id.

65 356 NLRB 613, 614 (2011).

laiming labor disputes with the neutrals

and proclaiming “shame” on them.65 In addition to applying Eliason & Knuth and

58 Id. at 1292. As he did in Eliason & Knuth, Member Hayes dissented in Brandon II.

59 Id. at 1294.

60 Id. at 1296.

61 Id.

62 See id.

63 See id.

64 Id.

65 356 NLRB 613, 614 (2011).

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determining that the banners did not constitute picketing and did not coerce the

neutral employer under Section 8(b)(4)(ii)(B), the Board also concluded that the

display of the banners at two construction sites did not induce or encourage neutral

employees to cease working in violation of Section 8(b)(4)(i)(B).66 The Board explained

that the presence of the union’s banners at construction sites closed to the public did

not automatically mean they were directed at neutral employees, inasmuch as

passing motorists could see the signs from the adjacent road, and because people in

addition to the neutral employees entered the construction site, such as the owners

and managers of the different contractors, as well as the property owners and the

entity for whom the building was being built.67 Moreover, even assuming the banners

were directed at neutral employees, the Board would still not have found them to

have constituted unlawful inducement of neutral employees because a union might

want to simply “educate” neutral employees about the labor dispute, rather than ask

them to stop working.68

Member Hayes also dissented in New Star

entity for whom the building was being built.67 Moreover, even assuming the banners

were directed at neutral employees, the Board would still not have found them to

have constituted unlawful inducement of neutral employees because a union might

want to simply “educate” neutral employees about the labor dispute, rather than ask

them to stop working.68

Member Hayes also dissented in New Star. In addition to noting that the union’s

banners were coercive under Section 8(b)(4)(ii)(B) because they were the

“confrontational equivalent” to picketing, Member Hayes would have found that the

banners also unlawfully induced or encouraged employees of the neutral to cease

work in violation of Section 8(b)(4)(i)(B).69 In this regard, Member Hayes argued that

even if the union’s conduct fell short of traditional picketing, the union nevertheless

engaged in signal picketing that effectively requested that neutral employees refrain

from entering and working at the site.70 In particular, given that the banners did not

correctly identify which employer the union had a primary labor dispute with,

Member Hayes rejected as implausible the majority’s position that the union was

simply seeking to educate neutral employees about the labor dispute.71

66 Id.

67 Id. at 617.

68 Id.

69 Id. 619 (Member Hayes, dissenting).

70 Id.

71 Id. at 620 & n.4.

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III.

The Region Should Argue that the Union’s Use of the Banner and

Inflatable Cat, Separately and Together, was Tantamount to Traditional

Picketing and also Constituted Signal Picketing

The Region should use this case as a vehicle to urge the Board to reconsider its

decisions in Eliason & Knuth, Brandon II, and New Star and conclude that the

Union’s conduct here was tantamount to traditional picketing and moreover

constituted signal picketing

ner and

Inflatable Cat, Separately and Together, was Tantamount to Traditional

Picketing and also Constituted Signal Picketing

The Region should use this case as a vehicle to urge the Board to reconsider its

decisions in Eliason & Knuth, Brandon II, and New Star and conclude that the

Union’s conduct here was tantamount to traditional picketing and moreover

constituted signal picketing. Thus, the Region should argue that the Union’s erection

of a stationary banner that misleadingly proclaimed a labor dispute with Summit, as

well as its use of a large, inflatable cat clutching a construction worker by the neck,

violated Section 8(b)(4)(i) and (ii)(B).

Specifically, the Region should argue that the Board’s decisions in Eliason &

Knuth and Brandon II, restricting the definition of picketing to circumstances where

union agents carry picket signs while patrolling, were wrongly decided,

inappropriately departed from the Board’s previously broad and flexible definition of

picketing, and should be overruled. The dissenters in those cases were right because

the placement of union agents with large banners or inflatables at the entrances to

neutral businesses sought to dissuade the public from entering through coercive

conduct, rather than through a persuasive message, and therefore should have been

considered tantamount to picketing under well-established law.72

Applying the more reasonable definition of picketing that was in effect before

Eliason & Knuth and Brandon II, the Union’s conduct here violated the Act

ntrances to

neutral businesses sought to dissuade the public from entering through coercive

conduct, rather than through a persuasive message, and therefore should have been

considered tantamount to picketing under well-established law.72

Applying the more reasonable definition of picketing that was in effect before

Eliason & Knuth and Brandon II, the Union’s conduct here violated the Act. The

Union posted agents holding a big banner, and a large, intimidating inflatable cat

clutching a worker by the neck, at the entrance to the construction site, with the

undisputed aim of forcing Summit to cease using its electrical subcontractor Edge,

with whom the Union had a primary dispute.73 The Union agents’ holding of a large,

misleading banner—the functional equivalent of a picket sign—and the posting of a

large, hostile-looking cat strangling a worker at the entrance to the site, were each

tantamount to picketing because each created a symbolic, confrontational barrier to

72 Eliason & Knuth, 355 NLRB at 815-16; Brandon II, 356 NLRB at 1296-97.

73 See, e.g., Stoltze Land & Lumber, 156 NLRB at 394 (“[t]he important feature of

picketing” is posting union agents near the entrance to a neutral’s business); Jeddo

Coal Co., 334 NLRB at 686 (same); Trinity Maintenance, 312 NLRB at 743 (same);

Kansas Color Press, 169 NLRB at 283 (same).

Case 13-CC-225655

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anyone seeking to enter or work at the construction site.74 Unlike the handbilling in

DeBartolo II, the Union here did not simply seek to persuade the public about the

justice of their cause by disseminating information in a non-confrontational manner

such as a handbill, but rather sought to dissuade anyone from entering the site

through intimidation and coercion.75 The Region should emphasize that any member

of the public needing to transact business at the site would—upon encountering a

large, frightening cat gripping a worker by the neck, and a large banner proclaimi

heir cause by disseminating information in a non-confrontational manner

such as a handbill, but rather sought to dissuade anyone from entering the site

through intimidation and coercion.75 The Region should emphasize that any member

of the public needing to transact business at the site would—upon encountering a

large, frightening cat gripping a worker by the neck, and a large banner proclaiming

“LABOR DISPUTE: SHAME SHAME”—most likely stay away from the construction

site due to a desire to avoid confrontation, rather than because of the strength of the

Union’s message or to engage with the Union agents in an effort to understand their

grievances.76 Indeed, the efficacy of the Union’s approach was demonstrated by the

refusal of two other subcontractors to perform work on three of the days the Union

stationed its agents at the construction site.77

Additionally, because the Union here engaged in conduct that was tantamount to

picketing, the Region should stress that First Amendment concerns are not

74 See Eliason & Knuth, 355 NLRB at 815 (Members Schaumber and Hayes,

dissenting) (banners’ “imposing mass and length obviate the need for any patrolling”);

Brandon II, 356 NLRB at 1296 (Member Hayes, dissenting) (display of inflatable rat

“now frequent in labor disputes, constitutes a signal to third parties that there is, in

essence, an invisible picket line that should not be crossed”).

75 Id. at 817-18.

76 See id. at 816 (“[a]version and avoidance are characteristic behaviors of persons

being threatened, restrained, or coerced”).

77 If the Region learns that individual employees employed at the construction site

refused to work in response to the Union’s activity, such a finding would further

support the Section 8(b)(4)(ii)(B) allegation

hat should not be crossed”).

75 Id. at 817-18.

76 See id. at 816 (“[a]version and avoidance are characteristic behaviors of persons

being threatened, restrained, or coerced”).

77 If the Region learns that individual employees employed at the construction site

refused to work in response to the Union’s activity, such a finding would further

support the Section 8(b)(4)(ii)(B) allegation. See Teamsters Local 315 (Santa Fe), 306

NLRB 616, 631 (1992) (successfully inducing secondary employees to withhold their

labor in violation of Section 8(b)(4)(i)(B) establishes violation of Section 8(b)(4)(ii)(B)

as well), enforced, 20 F.3d 1017 (5th Cir. 1994); Plumbers Local 398 (Robbins

Plumbing), 261 NLRB 482, 487 (1982) (same). Such evidence is unnecessary to

establish a violation of Section 8(b)(4)(i)(B). See Painters District Council 9 (We’re

Associates), 329 NLRB at 143; Operating Engineers Local 150 (Hamstra Builders),

304 NLRB 482, 484 (1991).

Case 13-CC-225655

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implicated, inasmuch as it is settled law that the First Amendment does not shield

unlawful secondary picketing.78

The Region should also argue that the Board’s decision in New Star, concluding

that bannering at the private entrance to a construction site did not unlawfully

induce neutral employees to cease work in violation of Section 8(b)(4)(i)(B), was

wrongly decided and should be overruled. Dissenting Member Hayes was correct that

the stationing of large banners proclaiming a labor dispute with the neutral, near the

entrance to a construction site, was a clear attempt to signal neutral employees to

strike.79 Prior to New Star, the Board had consistently found similar union conduct at

construction sites to be signal picketing in violation of Section 8(b)(4)(i)(B).80

The Region should thus argue that the Union’s conduct here was tantamount to

picketing that violated Section 8(b)(4)(i)(B).81 In addition, applying the Board’s pre-

New Star precedent involving signal picketing, the Union’s placement of a l

o New Star, the Board had consistently found similar union conduct at

construction sites to be signal picketing in violation of Section 8(b)(4)(i)(B).80

The Region should thus argue that the Union’s conduct here was tantamount to

picketing that violated Section 8(b)(4)(i)(B).81 In addition, applying the Board’s pre-

New Star precedent involving signal picketing, the Union’s placement of a large,

frightening cat and a misleading banner at a construction site was intended as a

signal to neutral employees to not enter or work at the jobsite.82 Indeed, for three of

78 DeBartolo II, 485 U.S. at 579-80; Safeco Title Ins. Co., 447 U.S. at 607.

79 See 356 NLRB at 618 (Member Hayes, dissenting).

80 See, e.g., Telephone Man, 327 NLRB at 593; Delcard Associates, 316 NLRB 437-38.

See also Warshawsky & Co. v. NLRB, 182 F.3d at 953-56.

81 See Laborers Eastern Regional Organizing Fund (Ranches at Mt. Sinai), 346 NLRB

at 1253; Service Employees Local 525 (General Maintenance Co.), 329 NLRB at 638-39

& n.10; Electrical Workers Local 501 v. NLRB (Samuel Langer), 341 U.S. 69 at 699-

704.

82 See Delcard Associates, 316 NLRB at 437-38 (observer in rat costume unlawfully

induced or encouraged neutral employees to halt work; “rat” connotes destruction of

wages); Telephone Man, 327 NLRB at 593 (observer posted at neutral gate in reality

engaged in unlawful signal picketing). Although the handbill the Union distributed

contained language indicating that the Union was not requesting a cessation of work,

that language is insufficient to remedy the otherwise unlawful signal created by the

inflatable cat and banner, especially because employees might turn away without

even reading the handbill

er posted at neutral gate in reality

engaged in unlawful signal picketing). Although the handbill the Union distributed

contained language indicating that the Union was not requesting a cessation of work,

that language is insufficient to remedy the otherwise unlawful signal created by the

inflatable cat and banner, especially because employees might turn away without

even reading the handbill. See, e.g., Teamsters local 917 (Industry City), 307 NLRB

1419, 1422-23 (1992) (picket signs asserting area wages dispute and calling for

boycott of neutrals “patently sought to induce employees to cease working” despite

statement disclaiming intent to induce work stoppage).

Case 13-CC-225655

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the four days the Union engaged in this conduct, the Union knew Edge and its

employees were not present at the construction site. Nor were the Union’s actions

meant to educate neutral employees about its primary labor dispute, since the banner

failed to name Edge.83 As such, the Union’s conduct constituted signal picketing that

violated Section 8(b)(4)(i)(B).

IV.

The Region Should Alternatively Argue that Even if the Union Engaged in

Non-Picketing Conduct, that Conduct was Nevertheless Unlawfully

Coercive

In the alternative, the Region should argue that the Union’s activity, even if not

tantamount to picketing, was nevertheless unlawful coercion or restraint within the

meaning of Section 8(b)(4)(B)

that

violated Section 8(b)(4)(i)(B).

IV.

The Region Should Alternatively Argue that Even if the Union Engaged in

Non-Picketing Conduct, that Conduct was Nevertheless Unlawfully

Coercive

In the alternative, the Region should argue that the Union’s activity, even if not

tantamount to picketing, was nevertheless unlawful coercion or restraint within the

meaning of Section 8(b)(4)(B). Thus, consistent with longstanding Board law finding

that broadcasting a message at extremely high volume through loudspeakers,84

throwing bags full of trash into a building’s lobby,85 and massed marching without

signs,86 was unlawfully coercive, the Union’s conduct here—the posting near the job

site entrance of the large, misleading banner and the intimidating, violent cat

strangling a construction worker—“overstepped the bounds of propriety and went

beyond persuasion so that it became coercive to a very substantial degree.”87

If the Board finds that the conduct was not tantamount to picketing, but was

nevertheless unlawfully coercive, it will need to address the First Amendment issues

raised by such a finding. As to that issue, the Region should argue that the Union’s

conduct is entitled to lesser First Amendment protection because it is labor and/or

commercial speech. The Government has a heightened interest in regulating labor

speech because of its direct effect on interstate commerce.88 Commercial speech is

deserving of its “subordinate position in the scale of First Amendment values,”

83 See New Star, 356 NLRB at 620 & n.4 (Member Hayes, dissenting).

84 Society Hill Towers Owners’ Assn., 335 NLRB at 820-23.

85 General Maintenance Co., 329 NLRB at 664-65, 680.

86 William J. Burns Agency, 136 NLRB at 436-37.

87 Id.

88 See notes 25-27 and accompanying text.

on in the scale of First Amendment values,”

83 See New Star, 356 NLRB at 620 & n.4 (Member Hayes, dissenting).

84 Society Hill Towers Owners’ Assn., 335 NLRB at 820-23.

85 General Maintenance Co., 329 NLRB at 664-65, 680.

86 William J. Burns Agency, 136 NLRB at 436-37.

87 Id.

88 See notes 25-27 and accompanying text.

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because much of it is not in the public interest.89 Here, the Union’s coercive conduct

sought to enmesh a neutral business and therefore spread labor discord in exactly the

way Congress sought to prohibit. To the extent this conduct involved “speech,” it was

labor speech, and was therefore entitled to lesser First Amendment protection. And,

given the dearth of information provided by the Union to the public about what

exactly its supposed labor dispute with Summit was, i.e., it did not state that it was

pressing for better area wages, or even identify Edge, the subcontractor with whom

the Union actually had a dispute, the image conveyed to the public by the frightening,

violent cat clutching the construction worker’s neck and the large banner was that

Summit is a “bad” business that should not be patronized. As such, the Union’s

”speech” constituted commercial speech arguing the merits of a business, as opposed

to pressing the benefits to the public of union area wages and standards, and it is

entitled to lesser constitutional deference for that reason as well. Finally, the Region

should argue that because the Union did not have a labor dispute with Summit, the

Union’s handbills and banner claiming otherwise were false speech undeserving of

First Amendment protection.90

Accordingly, the Region should issue complaint, absent settlement, consistent

with the foregoing.

/s/

J.L.S.

ADV.13-CC-225655.Response.Summit.

89 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). Cf

Union’s handbills and banner claiming otherwise were false speech undeserving of

First Amendment protection.90

Accordingly, the Region should issue complaint, absent settlement, consistent

with the foregoing.

/s/

J.L.S.

ADV.13-CC-225655.Response.Summit.

89 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). Cf. Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. at 761 (the advertisement

at issue did not seek to “editorialize on any subject, cultural, philosophical, or

[po]litical”).

90 See notes 32-36.

(b) (6), (b) (7)(C