International Brotherhood of Electrical Workers Local Union 357, AFL-CIO (Desert Sun Enterprises Lim

National Labor Relations Board - Board Decisions

Dec 27, 2018

367 NLRB No. 61 (N.L.R.B. 2018)

367 NLRB No. 61
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Brotherhood of Electrical Workers,
Local Union 357, AFL–CIO and Desert Sun En-
terprises Limited d/b/a Convention Technical
Services. Case 28–CC–115255
December 27, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On July 28, 2014, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Respond-
ent, the General Counsel, and the Charging Party each
filed exceptions and a supporting brief, and the Respond-
ent filed an answering brief to the Charging Party’s ex-
ceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the judge’s recommended Order as modified and
set forth in full below.3
On October 9, 2013, the Respondent Union sent a let-
ter to an alliance of craft unions seeking their approval
and cooperation in its intended area-standards picketing
of the Charging Party, the primary employer in the dis-
pute.4 That day, the Respondent also sent copies of the
same letter to a neutral employer, the Las Vegas Conven-
tion and Visitors Authority (LVCVA). LVCVA is the
authority that manages the convention center where the
Charging Party provides portable electrical services and
where many neutral employers perform work. In the
parlance of the Board’s secondary-boycott precedent, the
convention center is a “common situs”—a site where an
employer with which a union has a labor dispute per-

1 Associated Builders and Contractors, Inc. (ABC); the Building and
Construction Trades Department, AFL–CIO (BCTD); and, jointly, the
Council on Labor Law Equality (COLLE) and the Associated General
Contractors of America (AGC) filed amicus curiae briefs. The Re-
spondent filed a combined response to the ABC and COLLE/AGC
briefs, and the Charging Party filed a response to the BCTD brief.
2 Member Emanuel is recused and took no part in the consideration
of this case.
3 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the Board’s standard remedial language.
4 Specifically, the letter read:
Please be advised that [the Respondent] is requesting a strike sanc-
tion against [Charging Party] Convention Technical Services. This is
for any all jobs because of not paying area standards. Your cooperation
in this matter would be greatly appreciated.
forms work, but where one or more neutral employers
that have nothing to do with that dispute also perform
work. The letter to neutral employer LVCVA is the sub-
ject of the complaint allegation in this case that the Re-
spondent violated Section 8(b)(4)(ii)(B) of the National
Labor Relations Act.5
For over 50 years, the Board has held that if a union
notifies neutral employers at a common situs that it in-
tends to picket the primary employer, the union “has an
affirmative obligation to qualify its threat by clearly indi-
cating that the picketing would conform to Moore Dry
Dock standards, or otherwise be in uniformity with
Board law.”6 E.g., Electrical Workers Local 98 (MCF
Services), 342 NLRB 740, 749 (2004) (internal quotation
marks and footnote omitted), enfd. 251 Fed. Appx. 101
(3d Cir. 2007). Here, the General Counsel and the Re-
spondent Union entered into a stipulation of facts that
proved the Respondent had not qualified its threat to
picket in the letter it sent to neutral employer LVCVA as
required by this precedent. The judge accordingly grant-
ed the General Counsel’s motion for summary judgment
and found that the Respondent thereby violated Section
8(b)(4)(ii)(B) of the Act.7 Unusually, both the General
Counsel and the Respondent argued to the judge and then
to the Board that the Board should overrule its decades-
old unqualified-threat rule. We decline to do so, and we

5 In relevant part, Sec. 8(b)(4)(ii)(B) makes it an unfair labor prac-
tice for a labor organization or its agents “to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting commerce,
where . . . an object thereof is . . . forcing or requiring any person . . . to
cease doing business with any other person.”
6 The four Moore Dry Dock criteria, set forth in Sailors Union of the
Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950), aid the Board in
evaluating whether union picketing lawfully pressured the primary
employer at the common situs or unlawfully pressured a neutral (or
“secondary”) employer that performs work at the same location. Team-
sters Local 560 (County Concrete Corp.), 360 NLRB 1067, 1067
(2014). Such picketing is presumptively lawful if “(a) the picketing is
strictly limited to times when the situs of the dispute is located on the
secondary employer’s premises; (b) at the time of the picketing the
primary employer is engaged in its normal business at the situs; (c) the
picketing is limited to places reasonably close to the situs; and (d) the
picketing discloses clearly that the dispute is with the primary employ-
er.” Id. at 1067 fn. 3. Even if the picketing is presumptively lawful
under these criteria, the Board will still find it unlawful if other evi-
dence shows the union intended to enmesh the neutral employer in the
dispute. Id. at 1067–1068.
7 The judge imprecisely described the violation as a violation of
Sec. 8(b)(4)(i) and (ii)(B), as the General Counsel alleged in the com-
plaint. Sec. 8(b)(4)(i), however, covers conduct directed at employees,
whereas the facts here only involve a coercive letter sent to a neutral
employer, conduct covered by Sec. 8(b)(4)(ii). Because no party spe-
cifically challenged this point in its exceptions and the distinction is
immaterial to the remedy, we do not formally reverse the mistaken
finding here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
adopt the judge’s grant of summary judgment and find
that the Respondent violated Section 8(b)(4)(ii)(B).8
Having carefully reviewed our precedent9 and adverse
decisions from the United States Courts of Appeals for
the Ninth10 and District of Columbia11 Circuits, we
acknowledge that the Board has yet to clearly explain the
unqualified-threat rule. Nevertheless, we firmly believe
that this longstanding rule represents a reasonable inter-
pretation of Section 8(b)(4)(ii)(B) and is necessary to
further important policy objectives.
Underlying our rule is Congress’s deep concern with
ensuring that neutral employers remain free from entan-
glement in the labor disputes of others. Indeed, “the
concern that motivates all of § 8(b)(4) [is] ‘shielding . . .
unoffending employers and others from pressures in con-
troversies not their own.’” Edward J. DeBartolo Corp.
v. NLRB, 463 U.S. 147, 156 (1983) (quoting NLRB v.
Denver Building & Construction Trades Council, 341
U.S. 675, 692 (1951)). Section 8(b)(4) “was drafted
broadly to protect neutral parties, the helpless victims of
quarrels that do not concern them at all. Despite criti-
cism from President Truman as well as from some legis-
lators that the secondary boycott provision was too
sweeping, the Congress refused to narrow its scope. . . .
Congress intended its prohibition to reach broadly.”
Longshoremen ILA v. Allied International Inc., 456 U.S.
212, 225 (1982) (internal quotation marks and citations
omitted). Accordingly, as the agency charged with en-
forcing the Act, the Board must ensure that neutral par-
ties receive the broad protection Congress intended they
should have “from pressures in controversies not their
own.”

8 Charging Party Convention Technical Services argues in its excep-
tions and in subsequent motions to supplement the record that the pick-
eting the Respondent threatened had the objective of pressuring the
Charging Party to recognize the Respondent Union as the representa-
tive of the Charging Party’s employees, not of pressuring the Charging
Party to pay area standards, as the Respondent’s letter to the LVCVA
stated. Whether payment of area standards or recognition was the
Respondent’s ultimate goal vis-à-vis the primary employer has no
bearing on the General Counsel’s complaint allegation that the Re-
spondent violated Sec. 8(b)(4)(ii)(B) by unqualifiedly threatening to
picket with the object of forcing a neutral employer (LVCVA) to cease
doing business with the primary employer. We accordingly reject the
Charging Party’s exceptions and motions.
9 See, e.g., Sheet Metal Workers Local 15 (Brandon Regional Medi-
cal Center), 346 NLRB 199, 199, 202–203 (2006), enf. denied 491
F.3d 429 (D.C. Cir. 2007); Teamsters Local 456 (Peckham Materials
Corp.), 307 NLRB 612, 619 (1992); Food & Commercial Workers
Local 506 (Coors Distributing), 268 NLRB 475, 477–479 (1983).
10 Plumbers Local 32 v. NLRB, 912 F.2d 1108, 1110-1111 (9th Cir.
1990); NLRB v. Ironworkers Local 433, 850 F.2d 551, 555–558 (9th
Cir. 1988).
11 Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429, 430–432,
434–436 (D.C. Cir. 2007).
A union’s broadly worded and unqualified notice, sent
to a neutral employer, that the union intends to picket a
worksite the neutral shares with the primary employer is
inherently coercive. Without any details, such a notice is
ambiguous about whether the threatened picketing will
lawfully target only the primary employer or will unlaw-
fully enmesh the neutral employer. The neutral would
understandably question why the union is sending a
strike notice to an employer with no role in the dispute,
and this question would reasonably lead it to at least sus-
pect, if not believe, that its business would be targeted by
the picketing and that it would be prudent to cease doing
business with the primary employer to avoid losses. It
would be unrealistic to expect neutral employers, many
with little experience in arcane common-situs picketing
law, to assume the union would avoid enmeshing them in
the picketing. Thus, an unqualified picketing threat
communicated to a neutral at a common situs is an am-
biguous threat, and such an ambiguous threat enables a
union to achieve the proscribed objective of coercing the
neutral employer to cease doing business with the prima-
ry employer—the very object a union seeks to achieve
when it makes a blatantly unlawful threat to picket or
unlawfully pickets a neutral. Accordingly, as our dis-
senting colleague refuses to acknowledge, it is reasona-
ble to conclude that when a union sends to a neutral an
unqualified and therefore ambiguous notice of its intent
to picket a common situs, it does so with an object to
coerce the neutral to cease doing business with the pri-
mary employer. A union may still lawfully inform a
neutral of its intent to picket as long as it qualifies the
notice by clearly indicating that its picketing will comply
with legal limitations on such picketing.
In holding that unqualified common-situs picketing
threats sent to a neutral employer violate Section
8(b)(4)(ii)(B), we do not presume that the union’s threat
is a threat to picket in an unlawful manner. Rather, we
base our holding on the rationale set forth above: that,
taken together, the locale of the threatened picketing (a
worksite shared by the primary employer and one or
more neutral employers), the target of the picketing
threat (one of the neutrals), and the threat’s unqualified
and therefore ambiguous nature (leaving the neutral un-
certain whether picketing at the common situs will be
lawfully confined to the primary or will unlawfully en-
mesh the neutral) support a finding that an object of the
threat is to unlawfully coerce the neutral within the
meaning of Section 8(b)(4)(ii)(B).12 We recognize that a

12 Although we have found that ambiguity in employers’ facially
neutral work rules is not necessarily indicative of unlawful interference
with employees’ Sec. 7 rights, Boeing Co., 365 NLRB No. 154 (2017),
we view the ambiguity in unqualified threats to picket a common situs
ELECTRICAL WORKERS, LOCAL UNION 357 (DESERT SUN) 3
threat to engage in lawful picketing must itself be lawful.
See NLRB v. Servette, Inc., 377 U.S. 46 (1964) (threat to
engage in lawful handbilling was itself lawful). But pro-
hibiting unions from issuing an unqualified threat to en-
gage in common situs picketing that may or may not be
lawful does not infringe on a union’s ability to make a
clear threat to engage in lawful picketing. Indeed, the
burden imposed on the threatening union is minimal. We
do not expect unions to necessarily cite Moore Dry Dock
or use any specific legalese. The union need only make
clear in some manner that it will comply with legal limi-
tations on common situs picketing so as to not entangle
neutrals.
We believe, contrary to our dissenting colleague, that
the Board’s longstanding unqualified-threat rule strikes
the only balance that will adequately protect neutrals as
intended by Congress, and we respectfully continue to
stand by it. We therefore affirm the judge’s finding that
the Respondent’s unqualified threat to picket sent to neu-
tral LVCVA violated Section 8(b)(4)(ii)(B).
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical
Workers, Local Union 357, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object
of forcing The Las Vegas Convention and Visitors Au-
thority to cease doing business with Desert Sun Enter-
prises Limited d/b/a Convention Technical Services.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business offices and all meeting halls within its juris-
diction copies of the attached notice marked “Appen-
dix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places

to be much different. There is no inherently coercive element in a
facially neutral rule. Ambiguity as to its potential application only goes
so far as to demonstrate that the rule could in certain circumstances
interfere with Sec. 7 rights. On the other hand, an affirmative threat to
apply economic pressure by picketing is facially coercive, and if not
qualified, would necessarily coerce the neutral employer to which it is
directed, in contravention of Congressional policy underlying Sec.
8(b)(4).
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
where notices to employees and members are customari-
ly posted. In addition to physical posting of paper notic-
es, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its members by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Within 14 days after service by the Region, sign
and return to the Regional Director for Region 28 suffi-
cient copies of the notice for posting by The Las Vegas
Convention and Visitors Authority and by Desert Sun
Enterprises Limited d/b/a Convention Technical Ser-
vices, if willing, at all places where their notices to em-
ployees are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 27, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
The National Labor Relations Act makes clear that a
union violates Section 8(b)(4)(ii)(B) only when it
“threaten[s], coerce[s], or restrain[s]” a neutral employer.
In this case, the majority finds a threat where there is
none. Instead of applying the statute as it is plainly writ-
ten and dismissing the complaint, my colleagues instead
reaffirm a roundly—and rightly—criticized Board line of
precedent holding that a union unlawfully threatens to
picket a neutral employer simply because the union fails
to comply with certain “formalistic rules” in its commu-
nications regarding a primary labor dispute.1 As this
case illustrates, such an approach contradicts the statute,
ignores the realities of labor relations, and leads to unjust
results. Under a faithful application of the statute, the

1 NLRB v. Ironworkers Local 433, 850 F.2d 551, 557 (9th Cir.
1988) (criticizing application of “formalistic rules” to govern commu-
nications in labor relations, where parties and context can drastically
affect perceived meaning).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
facts presented here simply do not establish an unlawful
picketing threat, and Board precedent to the contrary
should be overruled.
I.
In October 2013, IBEW Local 357 (Union) learned
that an employer it was in a dispute with—Desert Sun
Enterprises (Employer)—was performing work at the
Las Vegas Convention Center. Thereafter, the Union
sent a letter to the Southern Nevada Building and Con-
struction Trades Council (Council)—another labor or-
ganization—stating that the Union was “requesting a
strike sanction against [the Employer]. . . . for any and all
jobs because of not paying area standards.” The Union’s
letter was also courtesy-copied to certain members of the
Board of Directors for the Las Vegas Convention and
Visitors Authority (LVCVA), a neutral entity that was
not involved in the dispute between the Union and the
Employer. The LVCVA manages the Las Vegas Con-
vention Center and other exhibition halls where the Em-
ployer performs some work.
The relevant question now before the Board is whether
the LVCVA was threatened with picketing by the Union
in violation of Section 8(b)(4)(ii)(B)—based entirely on
a letter that was addressed to another entity, made no
mention of the LVCVA in its body, and did not even
include the word “picketing.” Because the statutory lan-
guage makes clear that to find a violation there must be
threatening or coercive conduct, and because the evi-
dence here fails to show that the LVCVA reasonably
would have perceived a threat of picketing directed
against it, there clearly was no violation here under any
reasonable application of the Act.
As I now explain, Board precedent that would indicate
a different result—based on the Union’s failure to in-
clude a Board-required boilerplate recitation in its letter –
is not supportable considering the plain language of the
Act and the actual circumstances in which labor-relations
communications occur.
II.
Section 8(b)(4)(ii)(B) of the Act makes it an unfair la-
bor practice for a union “to threaten, coerce, or restrain”
a neutral entity with the object of causing the neutral to
cease doing business with an employer that the union is
engaged in a dispute with and which is the primary target
of its picketing or other pressure. Because picketing a
neutral entity is itself a form of unlawful pressure under
Section 8(b)(4)(i)(B), when a union states its intent to
picket a neutral, to urge it to cease doing business with
the primary employer, this statement constitutes a threat
in violation of Section 8(b)(4)(ii)(B).2
Board law has long held that whenever a union in-
forms a neutral employer that it intends to picket a com-
mon situs (one at which both the neutral and primary
employer do business), it must assure the neutral that any
such picketing will satisfy the legal criteria, as set forth
in the Moore Dry Dock decision, for ensuring that the
picketing targets only the primary employer and not the
neutral. See Sailors' Union of the Pacific (Moore Dry
Dock), 92 NLRB 547 (1950) (finding presumption of
lawful common situs picketing where such picketing is
limited to times when primary employer is present and
engaged in its normal business at the site, and where the
picketing occurs close to the site and identifies that the
dispute is with the primary employer). Failure to make
those assurances results automatically in a violation of
Section 8(b)(4)(ii)(B).
This rule, which before today the Board has never
made any meaningful effort to justify, has faced signifi-
cant federal-appellate court criticism, particularly by the
District of Columbia and Ninth Circuits.3 In agreement
with those circuit courts, I would find that the Board’s
Moore Dry Dock assurances rule must be overruled as
contrary to the Act. Indeed, it is long past time for the
Board to come to grips with this reality.
III.
Congress carefully delineated the types of proscribed
means for getting a neutral employer to cease doing
business with a primary employer. A union may not
“threaten, coerce, or restrain.” The Act does not bar all
conduct that might dissuade the neutral employer or even
all conduct that conceivably could be interpreted as a
threat; rather, by dint of Congress’s chosen terms, to
constitute a violation the union must communicate an
intent to cause harm or engage in some other form of
compulsion.4 See Black's Law Dictionary (10th ed.
2014) (defining “coerce” as “to compel by force or
threat”); id. (defining “threat” as “a communicated intent

2 See, e.g., Amalgamated Packinghouse, 218 NLRB 853 (1975).
3 See Sheet Metal Workers' Int'l Assn., Local 15 v. NLRB, 491 F.3d
429 (D.C. Cir. 2007); NLRB v. Ironworkers Local 433, supra.
4 Undoubtedly, Sec. 8(b)(4) is intended to insulate neutral employ-
ers from pressure. The Supreme Court has found that Congress intend-
ed this section to sweep broadly with respect to the types of disputes
from which neutrals should be insulated and has concluded that even
political disputes were covered. See Int'l Longshoremen's Assn. v.
Allied Intl, Inc., 456 U.S. 212, 225 (1982). But Congress has specified,
in no uncertain terms, the kinds of pressure against neutrals it has pro-
scribed. And it has not been suggested that these proscribed forms of
pressure—that is, in the case of Sec. 8(b)(4(ii)(B), “threats,” “coer-
cion,” or “restraint”—should be interpreted more broadly than the
ordinary meaning of these terms.
ELECTRICAL WORKERS, LOCAL UNION 357 (DESERT SUN) 5
to inflict harm or loss on another or on another's proper-
ty”); id. (defining “restraint” as “[c]onfinement, abridg-
ment, or limitation . . . [p]rohibition of action”). As the
Ninth Circuit has explained, “the mere failure of a union
agent to invoke a particular incantation or to announce
that picketing will be conducted in a lawful manner” is
manifestly not a valid proxy for finding that the union’s
statement communicates an actual intent to harm the neu-
tral.5 Indeed, given the various ways a union might noti-
fy a neutral of common-situs picketing, and the wide
range of settings in which such a statement might be
made, only by considering the factual circumstances as a
whole can we decide whether a statement might reasona-
bly be found to threaten unlawful picketing.6 Thus,
“[t]he primary question is not whether particular words
were used, or a disclaimer issued, but how, given the
context of the conversation, the union's statements should
reasonably be understood.”7 In sum, a union’s mere fail-
ure to provide express assurances to a neutral employer
is insufficient to establish a violation of the Act. Rather,
the Board must examine all the relevant circumstances as
a whole to determine whether the neutral employer
would reasonably have concluded that it was being
threatened with unlawful secondary picketing.
Taking that approach, rather than the Board’s miscon-
ceived Moore Dry Dock assurances rule, this is an easy
case. The Union’s act of copying the LVCVA on its
letter to the Council simply notified the LVCVA of a
possible “strike sanction” against the primary employer’s
“jobs” and offered no additional detail as to the nature of
possible picketing, nor mentioned the Convention Center
as a target of any picketing.8 Further, there is no evi-
dence of past behavior by the Union vis-à-vis the
LVCVA, or any other neutral employer, that would rea-
sonably imply (or even remotely suggest) that picketing
would be directed against the LVCVA. Without any
further factual context to show why the neutral employer
would have perceived the potential “strike sanction” here
as a threat to target it with picketing, the Board should
find that this vague letter is not a threat or otherwise co-
ercive and thus does not violate Section 8(b)(4)(ii)(B).
IV.
The majority reaffirms the Board’s per se rule that any
statement by a union communicating an intent to picket

5 NLRB v. Ironworkers Local 433, supra, 850 F.2d at 557.
6 See id. at 556 (“requirement that union representatives parrot par-
ticular words or phrases . . . is troublesome given the informal, non-
legalized reality of day-to-day labor relations”).
7 Id. at 557.
8 See Ironworkers Local 433, supra, 850 F.2d at 556 (reference to
picketing “the job” would reasonably be understood to refer to picket-
ing that targeted primary employer).
in a common-situs situation, but lacking Moore Dry
Dock assurances, violates Section 8(b)(4)(ii)(B). My
colleagues attempt to overcome the obvious difficulty of
such an approach—that is, how to find that the mere ab-
sence of certain assurances concerning the nature of pro-
spective picketing will always and everywhere amount to
the requisite “threat[s]” or “coerc[ion]”—by tautology:
According to the majority, the absence of Moore Dry
Dock assurances alone results in an “ambiguous threat”
to picket a common situs, which will “inherently co-
erc[e]” neutral employers to cease doing business with
the primary employer. But the notion that the absence of
Moore Dry Dock assurances renders a statement inher-
ently coercive does not withstand scrutiny.
The Board is frequently called upon to assess the coer-
civeness of a party’s conduct, and in doing so, generally
examines all the relevant circumstances. However, to be
inherently coercive, an action must tend to have a com-
pulsive effect under any and all circumstances.9 There is
no good reason to conclude that the absence of the
Moore Dry Dock assurances will automatically tend to
lead every neutral to perceive a threat of unlawful picket-
ing in every union’s communication, regardless of the
content and context of the communication. The very
idea that any such notification announcing prospective
picketing at a common situs (regardless of how it is
phrased) made under any conditions (regardless of the
relationship or history between the parties) will tend to
be viewed as a threat flies in the face of common sense.
See Ironworkers Local 433, supra, 850 F.2d at 557 (10-
year working relationship between union and employer
representatives meant they would have “no difficulty in
understanding each other” as to intended nature of any
picketing). Indeed, a union representative who may not
have a lawyerly facility with labor law will be unlikely to
be objectively perceived as uttering a picketing threat
simply because he or she failed to recite a proper legal
formulation. See id. at 556 (in assessing whether unlaw-
ful picketing threat will be perceived, one must consider
that parties may “not communicate in the carefully pre-
pared, carefully couched legal formulae of lawyers”).
Indeed, as the courts have found, in some cases it will
be unambiguously clear that the union does not intend to
target the neutral with its picketing, despite the lack of
affirmative assurances regarding the nature of the picket-

9 Cf. Miranda v. Arizona, 384 U.S. 436, 457–458 (1966) (custodial
police interrogation inherently coercive absent certain protective
measures because “an interrogation environment is created for no pur-
pose other than to subjugate the individual to the will of his examiner. .
. [and] [t]his atmosphere carries its own badge of intimidation. . . [in
which] no statement obtained from the defendant can truly be the prod-
uct of his free choice”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ing.10 The fact that such cases exist alone gives the lie to
the majority’s conclusion that unqualified mentions of
picketing are inherently coercive.11
And even to the extent that, in the absence of Moore
Dry Dock assurances, there might sometimes be genuine
uncertainty as to the nature of the picketing the union
intends at the common situs, such uncertainty cannot
properly be categorized as an “ambiguous threat,” as my
colleagues suggest. Rather, in those situations, it be-
comes even more important to examine all the circum-
stances to determine whether there has been a violation
of the Act. To avoid making unlawful a forecast of
picketing that the statute actually permits, one must make
a careful determination of whether the union’s statement
established any reasonable basis for perceiving a threat
of unlawful picketing.
Nor is there any merit to the majority’s assertion that
without Moore Dry Dock assurances, neutrals at a com-
mon situs will be instantly wary of a union’s motives for
sending a picketing notice to them and will likely cease
doing business with the primary employer to avoid the
perceived possibility of being subject to picketing pres-
sure. A neutral’s over-reaction does not make such a
statement a threat if that statement is not objectively
threatening. Moreover, even if some neutrals, in some
circumstances, might reasonably perceive a threat in the
absence of Moore Dry Dock assurances, such a situation
is far from universal.12 In many cases, the neutral will

10 See Ironworkers Local 433, supra, 850 F.2d at 556 (“It is apparent
from the context of the entire conversation that … a reasonable em-
ployer would have so understood [that any picketing would target the
primary employer]. In fact, the secondary employer, according to the
testimony of its general manager, did understand that the union was
threatening to picket [the primary employer].”) By way of further
example, in Sheet Metal Workers' Intl Assn., Local 15 v. NLRB, 491
F.3d 429, 431 (D.C. Cir. 2007), the union wrote to the neutral: “We
understand that Energy Air [the primary employer] is performing
HVAC mechanical work on [two] Beall's Department Store [the neutral
employer] construction projects. . . . The union will be compelled to
publicize our dispute with Energy Air by the way of leafleting, protest-
ing and the possibility of picketing at the sites. If you have any ques-
tions I can be contacted at . . . .” The text of this missive focused on the
union’s interest in picketing the primary employer. Moreover, it invit-
ed questions from the neutral—not exactly the sort of thing a party
intending to insinuate unlawful picketing would do. Accordingly,
rejecting the Board’s per se approach to notifications of common-situs
picketing, the District of Columbia Circuit found that there was no
threat of unlawful picketing. Id. at 436.
11 Notably, Sec. 8(b)(4)(ii)(B) may not be interpreted to prohibit a
statement that plainly expresses one’s intention to engage in lawful
picketing, because lawful picketing is itself protected. See NLRB v.
Servette, Inc., 377 U.S. 46, 57 (1964).
12 The majority seems to assume that there could be no motives for a
union’s telling a neutral that it intends to picket a common situs other
than to imply imminent picketing directed at the neutral. This is not so,
as a union may legitimately wish to leverage a neutral employer’s good
will, or its desire to appear worker-friendly, by pointing out its labor
not perceive a threat, where, say, the union and employer
have a long history of communicating over such matters,
or where the words used, without mentioning the Moore
Dry Dock criteria, make clear that the primary employer
is being exclusively targeted.
That is not to say that the absence of Moore Dry Dock
qualifications, combined with other circumstances, will
never support an inference of a threat to picket a neutral
employer. For example, where the facts as a whole—
perhaps including evidence of prior unlawful picketing
or other evidence that a union was attempting to imply,
through vagueness, an intent to picket unlawfully—a
threat may be found. But the point is that a finding of a
violation must be made on a case-by-case basis, based on
the reasonable interpretation of the entirety of the union’s
statement, in the context in which it is made.13
Instead of taking this opportunity to revise the Board’s
Moore Dry Dock-assurances doctrine in response to the
thoughtful criticisms brought by both the courts of ap-
peals and the General Counsel, my colleagues have failed
to correct a rule that cannot be reconciled with the statute
or with labor relations reality. Because the Act makes a
threat, coercion, or restraint a necessary element of a
Section 8(b)(4)(ii)(B) violation, the Board should dismiss
the complaint here and should reverse misguided Board
precedent that requires a contrary result.
Dated, Washington, D.C. December 27, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

dispute with a company the neutral works with or alongside, in the
hopes that the neutral employer will voluntarily support the union’s
cause.
13 Notably, in other contexts the courts have rejected the Board’s im-
position of per se rules in order for parties to be deemed in compliance
with the Act where such rules go beyond what the statute itself pro-
scribes. See, e.g., Local 357, Int'l Bhd. of Teamsters v. NLRB, 365 U.S.
667 (1961) (where plain language of the Act unambiguously requires
discrimination to make out a violation, Board may not impose per se
rule requiring certain union hiring hall provisions where they do not
necessarily support inference of discriminatory referrals).
ELECTRICAL WORKERS, LOCAL UNION 357 (DESERT SUN) 7
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unqualifiedly threaten to picket with the
object of forcing The Las Vegas Convention and Visitors
Authority to cease doing business with Desert Sun En-
terprises Limited d/b/a Convention Technical Services.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
357, AFL–CIO
The Board’s decision can be found at
www.nlrb.gov/case/28-CC-115255 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Nathan Higley, Esq. and Larry A. Smith, Esq., for the General
Counsel.
Michael A. Urban, Esq. (The Urban Law Firm), for the Re-
spondent.
Gregory E. Smith, Esq. and Amy Baker, Esq. (Lionel Sawyer &
Collins), for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. This case
was tried before me in Las Vegas, Nevada, on May 6, 2014.
The captioned charge was filed on October 22, 2013, by Desert
Sun Enterprises Limited d/b/a Convention Technical Services
(Charging Party or Convention Technical Services), and an
amended charge was filed by the Charging Party on Janu-
ary 14, 2014. On January 31, 2014, the Regional Director for
Region 28 of the National Labor Relations Board (Board) is-
sued a complaint and notice of hearing alleging a violation by
International Brotherhood of Electrical Workers, Local Union
357, AFL–CIO (Respondent or Union) of Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as amended (Act).
The Respondent, in its answer to the complaint, duly filed,
denies that it has violated the Act as alleged.
Since the close of the hearing, briefs have been received
from counsel for the General Counsel (General Counsel) and
counsel for the Respondent. Upon the entire record, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Convention Technical Services has been a limited liability
company with an office and place of business in Las Vegas,
Nevada, engaged in furnishing portable electrical services in
the convention industry. It annually purchases and receives at
its Las Vegas facility goods and services valued in excess of
$50,000 directly from points outside the State of Nevada. It is
admitted and I find that at all times material herein Convention
Technical Services has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
The Las Vegas Convention and Visitors Authority (the
LVCVA) is a governmental entity that manages the Las Vegas
Convention Center (LVCC) which includes common-situs ex-
hibition halls where employees dispatched by the Respondent
and other labor organizations perform work. The LVCVA
annually purchases and receives at the LVCC facilities goods
valued in excess of $50,000 directly from points outside the
State of Nevada. It is admitted and I find that at all times mate-
rial herein the LVCVA has been a person within the meaning of
Section 2(1) and Section 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Respondent is, and at all
times material has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Re-
spondent has violated Section 8(b)(4)(i) and (ii)(B) of the Na-
tional Labor Relations Act by the conduct of Respondent’s
business agent in advising the LVCVA that he, on behalf of the
Respondent, was seeking strike sanction authorization from the
Southern Nevada Building and Construction Trades Council
against Convention Technical Services “for any and all jobs
because of not paying area standards,” without further advising
the LVCCA that if a picket line was established at the LVCC
the Respondent intended to comply with the standards set forth
in Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB
547 (1950).
B. Facts and Analysis
At the outset of the hearing the General Counsel and Re-
spondent entered into a Stipulation of Facts. The Stipulation of
Facts, in pertinent part, is as follows:
On October 9, 2013, Max Carter, Assistant Business Manager
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
of Respondent, reported to Al Davis, Business Manager and
Financial Secretary of Respondent, that Employer [Conven-
tion Technical Services] was performing work on the ABC
Kids Show at the LVCC. Davis told Carter to get a strike
sanction against Employer for Employer’s alleged failure to
pay area standard wages and benefits.
Also on October 9, Max Carter prepared the strike sanction
request letter, Al Davis signed it, and Carter sent it to the
Southern Nevada Building and Construction Trades Council.
He also sent the letter to selected members of the Board of Di-
rectors for the LVCVA.
Later the same day, October 9, 2013, the Trades Council sent
its approval of a strike sanction against Employer to Carter.
Respondent’s strike sanction request letter and the Trades
Council’s approval of this request did not inform anyone that,
if it established a picket line, it would comply with the stand-
ards contained in Sailors Union of the Pacific (Moore Dry
Dock), 92 NLRB 547 (1950).
The strike sanction request letter referred to above, on IBEW
Local 357 letterhead and addressed to Darren Evans, Southern
Nevada Building and Construction Trades Council, is as fol-
lows:
Dear Darren,
Please be advised that Local Union #357 of the International
Brotherhood of electrical Workers is requesting a strike sanc-
tion against Convention Technical Services. This is for any
and all jobs because of not paying area standards. (Original
emphasis.)
Your cooperation in this matter would be greatly appreciated.
Sincerely,
/s/ Al Davis
Al Davis
Business Manager/Financial Secretary
IBEW Local #357
cc. LVCVA Board Members
The foregoing Stipulation of the General Counsel and the
Respondent constitutes an admission of each of the essential
allegations of the complaint. Accordingly, upon receipt in evi-
dence of the Stipulation, over the objection of the Charging
Party,1 the General Counsel moved for Summary Judgment. I
verbally granted the General Counsel’s motion on the record.
The purpose of the foregoing sequence of events was to

1 The Charging Party refused to enter into the Stipulation and takes
the position that the Stipulation is incomplete. Accordingly, the Charg-
ing Party sought to introduce additional evidence in support of its ar-
gument that the Respondent’s conduct was unlawful and masked a
secondary intent. The Charging Party’s proposed evidence is summa-
rized as follows: That the Charging Party had a collective-bargaining
agreement with another union; that the Regional Office’s investigation
of the charge was inadequate; and that as a result of the strike sanction
request letter sent by the Respondent to the LVCVA board members
“the strike threat caused a group of [the Charging Party’s] employees to
be taken from the show floor and replaced by other employees from the
Respondent.” I denied the Charging Party’s request to present such
evidence.
place the issue directly before the Board in view of the fact that
both the General Counsel and the Respondent believe that cur-
rent Board law is no longer viable as a result of the refusal of
the D.C. Circuit and the Ninth Circuit to enforce Board deci-
sions requiring Moore Dry Dock assurances in similar circum-
stances.
The Board in Sheet Metal Workers Local 15 (Brandon
Regional Medical Center), 346 NLRB 199, 202 (2006),
enf. denied 491 F.3d 429 (D.C. Cir. 2007), in agreement
with the analysis of the administrative law judge, found
that the union had violated the Act as a result of its fail-
ure to provide Moore Dry Dock assurances to a second-
ary employer under circumstances similar to those here-
in. While the Board discussed the matter in a different
context, it summarized the current status and rationale of
Board law on this issue, pertinent to the instant case, as
follows, at page 199:
The purpose of the Board’s requirement that unions provide
secondary employers with Moore Dry Dock assurances in
connection with an announcement to picket a common situs is
to assure the secondary that the picketing will be confined to
the primary employer. Electrical Workers Local 98 (MCF
Services), 342 NLRB 740, 749–750, 752 (2004).
The D.C. Circuit rejected the Board’s approach and denied
enforcement of the Board’s order. In doing so it took notice of
the Ninth Circuit’s earlier rejection of current Board law in this
area and adopted the reasoning of the Ninth Circuit in NLRB v.
Ironworkers Local 433, 850 F.2d 551 (9th Cir.1988). In that
case the Ninth Circuit, in denying enforcement of a Board order
under similar factual circumstances, stated that “there is still
considerable merit to the general legal principal that people
should be presumed to be acting lawfully until proven other-
wise,” and that there was “no justification for requiring [Moore
Dry Dock assurances] in the absence of evidence that the union
intends to picket in an unlawful manner or that its conduct or
statements would reasonably be so understood.” Id at 557. See
also another Ninth Circuit case denying enforcement of a simi-
lar Board order: Plumbers Local 32 v. NLRB, 912 F.2d 1108
(9th Cir. 1990).
The briefs of the General Counsel and Respondent in support
of a reversal of Board precedent and dismissal of the instant
complaint are persuasive in setting forth legal and policy justi-
fications for the dismissal of the complaint. However, as I am
required to follow current Board law and as the General Coun-
sel and Respondent will be submitting briefs to the Board on
appeal, it is unnecessary to recount in this decision their argu-
ments and legal and policy reasons favoring the adoption of
circuit court precedent.
Accordingly, on the basis of the foregoing, and consistent
with current Board law, I find that the Respondent has violated
Section 8(b)(4)(i) and (ii)(B) of the Act as alleged.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The Respondent has violated Section 8(b)(4)(i) and
ELECTRICAL WORKERS, LOCAL UNION 357 (DESERT SUN) 9
(ii)(B) of the Act as alleged.
REMEDY
Having found that the Respondent has violated Section
(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it be
ordered to cease and desist from such violation and to post an
appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER2
The Respondent, International Brotherhood of Electrical
Workers, Local Union 357, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Unqualifiedly threatening to picket with the object of
forcing The Las Vegas Convention and Visitors Authority, or
any other employer to cease doing business with Desert Son
Enterprises Limited d/b/a Convention Technical Services.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
business offices and meeting halls within its jurisdiction copies
of the attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees/members are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employ-
ees/members by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time

2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
since October 22, 2013.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 28, 2014
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten, coerce, or restrain The Las Vegas
Convention and Visitors Authority where an object thereof is to
force or require The Las Vegas Convention and Visitors Au-
thority to cease doing business with Desert Son Enterprises
Limited d/b/a Convention Technical Services or any other per-
son.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION 357
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CC-115255 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.