NATIONAL LABOR RELATIONS BOARD

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.

Congress intended Section

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

DECISION AND ORDER

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

The General Counsel

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).

NATIONAL LABOR RELATIONS BOARD