Laborers' International Union of North America, Local 872

National Labor Relations Board - Board Decisions

Apr 29, 2016

363 NLRB No. 168 (N.L.R.B. 2016)

363 NLRB No. 168
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.
Laborers’ International Union of North America,
Local 872 and NAV-LVH, LLC d/b/a Westgate
Las Vegas Resort & Casino. Case 28–CC–
148007
April 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On August 21, 2015, Administrative Law Judge Jef-
frey D. Wedekind issued the attached decision. The
Charging Party filed exceptions and a supporting brief.
The Respondent filed cross-exceptions and a brief that
both supported its cross-exceptions and answered the
Charging Party’s exceptions. The Charging Party filed
an answering brief to the Respondent’s cross-exceptions,
and the Respondent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,2

1 There are no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(b)(4)(i)(B) of the Act by inducing
or encouraging the employees of the Charging Party or any other sec-
ondary employer to stop working. Nor are there exceptions to the
judge’s dismissal of the allegation that the Respondent violated Sec.
8(b)(4)(ii)(B) by displaying banners on public property. The General
Counsel did not file exceptions or any briefs in this matter.
2 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In dismissing the complaint, we agree with the judge that the appro-
priate legal standard for evaluating whether nonpicketing conduct is
“coercive” and therefore in violation of Sec. 8(b)(4)(ii)(B) of the Act is
whether the conduct “directly caused, or could reasonably be expected
to directly cause, disruption of the secondary’s operations.” Carpenters
Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 805
(2010) (display of banners at secondary employer’s business did not
violate Sec. 8(b)(4)(ii)(B)); Sheet Metal Workers Local 15 (Brandon
Medical Center), 356 NLRB 1290, 1292 (2011) (display of inflatable
rat at secondary employer’s worksite did not violate Sec.
8(b)(4)(ii)(B)). We further agree, for the reasons stated in the judge’s
decision, that none of the Respondent’s conduct in setting up and dis-
playing the inflatables at issue was unlawful under this standard. Con-
trary to the Charging Party’s assertions, the Respondent’s placement of
inflatables on utility cutouts on the Charging Party’s property did not
constitute per se coercive conduct, particularly given that the Respond-
ent stopped placing the inflatables on the cutouts immediately after the
and conclusions and to adopt the recommended Order
dismissing the complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. April 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Elise F. Oviedo, Esq., for the General Counsel.
David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), for
the Respondent Union.
Myrna L. Maysonet, Esq. (Greenspoon Marder, P.A.), for the
Charging Party Company.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. In early
2015, the Westgate Las Vegas Resort & Casino contracted with
Nigro Construction, LLC to perform renovation work at the
facility. Nigro, in turn, subcontracted with A&B Environmen-
tal, LLC, to do the abatement. Shortly thereafter, Laborers

Charging Party marked them as private property. See Carpenters
Southwest Regional Council (Richie’s Installations), 355 NLRB 1445,
1445, 1449 (2010) (no coercion found where a banner was relocated in
response to notification from a secondary employer and police that the
union banner holders were trespassing by standing on the secondary’s
property). In finding that the Respondent’s conduct was not coercive,
we agree with the judge that it is unnecessary to rely on the testimony
of Respondent Director of Organizing Mike DaSilva that on March 6,
2015, the first day of the Respondent’s protest, a water district employ-
ee told him there was no problem placing an inflatable on a nearby
utility cutout because the utility workers were not working there, and
that a metro police detective told him “you guys are good” after view-
ing the locations of the various banners and inflatables set up that
morning. The judge properly found that “the Union’s conduct did not
violate the Act even without the testimony.”
Finally, we agree with the judge that because the Respondent did not
engage in picketing or disruptive or otherwise coercive nonpicketing
conduct in violation of Sec. 8(b)(4), we need not reach the question of
whether the Respondent’s conduct had an unlawful secondary object.
See Eliason, above at 800 fn. 12. Furthermore, because we are dismiss-
ing the complaint, we need not reach the Respondent’s alternate de-
fenses predicated on the First Amendment and the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb—2000bb-4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Local 872, which was not the bargaining representative of any
of the three companies’ employees, began protesting at the
Westgate by stationing large banners and inflatables at various
locations around the perimeter of the property. The banners
were about 4 feet high and 20 feet long, and stated “LABOR
DISPUTE: NIGRO DEVELOPMENT SUPPORTS
IMMIGRANT LABOR ABUSE BY HIRING A&B
ENVIRONMENTAL AT THE WESTGATE.” Each banner
was framed with white PVC pipe and held upright by one or
two individuals standing behind or beside it. The inflatables
were typically placed near the banners and included a rat, cock-
roach, and anthropomorphized pig and cat, all standing erect on
their hind legs, about 18–20 feet tall.
The complaint alleges that, by the foregoing conduct, Local
872 engaged in unlawful secondary “picketing” against West-
gate in support of the Union’s dispute with Nigro and A&B.
The General Counsel concedes that the Union had a right under
Board precedent to station large banners and inflatables at the
Westgate. However, the General Counsel contends that the
Union’s conduct went too far, violating the secondary boycott
provisions in Section 8(b)(4)(i)(ii)(B) of the National Labor
Relations Act, because some of the inflatables, banners, and
banner holders blocked pedestrian sidewalk access ramps and
vehicular ingress and egress at the Westgate facility and/or
trespassed onto Westgate’s property, thereby creating confron-
tation with both the public and Westgate employees.1
The Union denies that it blocked ingress and egress or tres-
passed. Further, it contends that, even if it did, the blocking or
trespass was relatively brief or very minor and noncoercive.
Finally, it contends that Section 8(b)(4)(ii)(B) of the Act, on its
face and/or as applied, violates the First Amendment and the
Religious Freedom Restoration Act (RFRA).
A hearing on the matter was held on June 23 in Las Vegas.2
Thereafter, on August 14, the General Counsel, Westgate, and
Local 872 filed briefs. Having carefully considered those briefs
and the entire record, for the reasons set forth below I find that

1 See GC Exhs. 1(e) (the Mar. 31 complaint) and 2 (the June 23
amendments thereto); and Tr. 36–42. In relevant part, Sec.
8(b)(4)(i)(ii)(B) of the Act states:
(b) It shall be an unfair labor practice for a labor organization or its
agents—
. . . .
(4)(i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal in the course of his employ-
ment to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities or to perform
any services; or (ii) to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce, where in either
case an object thereof is—
. . . .
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other produc-
er, processor, or manufacturer, or to cease doing business with any
other person . . . Provided, That nothing contained in this clause (B)
shall be construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing[.]
2 The Board’s jurisdiction is uncontested and established by the ad-
mitted facts (Tr. 28–29).
the evidence fails to support the alleged violations under extant
law.3
FINDINGS OF FACT
The Westgate is located a block east of the north end of the
Vegas strip. It is bordered on the west by Paradise Road, on the
north by Karen Avenue, and on the east by Joe W. Brown
Drive. It includes a 3000-room hotel, a full casino, multiple
restaurants, and 250,000 square feet of convention space, sur-
rounded by 36 acres of land. It employs approximately 1800–
2200 employees. Most of the employees are represented by
one of seven different unions. As indicated above, however,
none are represented by Local 872.
Local 872 began protesting at the Westgate on Friday, March
6. It resumed on Monday, March 9, and continued every day
thereafter, excluding weekends, until March 24.4 The protest
typically started around 6:30 a.m. each day, when the Union
arrived at the Westgate property and began setting up the in-
flatables and banners, and concluded in the afternoon. Up to
seven inflatables and approximately the same number of ban-
ners were stationed around the perimeter of the property. Of
these, two of the banners and five of the inflatables are at issue
here.
A. The Banners
1. Banner on traffic island near front entrance
The front/main entrance to the Westgate facility is on the
west side of the property facing Paradise Road. It is accessed
by a circular driveway and adjacent walkway beginning where
Paradise Road is intersected from the west by Riviera Boule-
vard.
The front entrance walkway is used by both patrons and
employees of the Westgate. If they approach from the west
using the sidewalk on the north side of Riviera Boulevard, they
have two options to get there. One option is to turn right when
they reach the corner of Riviera and Paradise and use the
crosswalk to get to the south side of Riviera Boulevard (a dis-
tance of about 80 feet). They would then turn left and use the
south-side crosswalk to cross Paradise Road and proceed di-
rectly onto the walkway.
A second option is to continue straight at the corner of Rivi-
era and Paradise and use the north-side crosswalk that crosses
Paradise Road. That crosswalk leads to a triangular traffic
island (►) that bisects the driveway exit lanes that head NW

3 Specific citations to the transcript, exhibits, and briefs are included
where appropriate to aid review, and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant and appropriate
factors have been considered, including the demeanor and interests of
the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts;
inherent probabilities; and reasonable inferences that may be drawn
from the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622,
633 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied
522 U.S. 948 (1997).
4 It is not clear from the record why the protest ended. No petition
for interim injunctive relief was filed under Sec. 10(l) of the Act (Tr.
40).
LABORERS LOCAL 872 (NAV-LVH, LLC) 3
and SW out of the Westgate property. After walking onto the
traffic island, they would turn right and walk off the island on
the south side and cross both the SW exit lanes and the entrance
lanes (likewise a distance of about 80 feet). They would then
turn left and proceed onto the front entrance walkway.
The traffic island is public property and Westgate has no
control over it. It is rather large, approximately 35-feet long on
each side, and also serves as the base for a traffic light pole that
extends over Paradise Road. Like the public sidewalks, the
island has sloped ramps to permit access by an individual using
a wheelchair or mobility scooter. The ramp on the west side of
the island faces the pedestrian crosswalk on Paradise Road and
is approximately 5-feet wide. The ramp on the north side of the
island leads to a crosswalk that cuts across the NW exit lane
and onto the public sidewalk that runs north along the western
boundary of the Westgate property.
The ramp on the south side leads to the crosswalk that cuts
across both the SW exit lanes and the entrance lanes and onto
the walkway that leads to the Westgate front entrance (as well
as onto the public sidewalk that continues south along the bor-
der of the property). 5
The subject banner was placed on the western edge of the
traffic island facing Paradise Road and Riviera Boulevard. It
was stationed there, with a banner holder standing behind it on
each end, on the very first day, March 6, and thereafter through
March 16. Due to its length, it extended from the northern tip
of the traffic island down to about one-half to three-quarters
(depending on its exact placement) into the west-side access
ramp (which is just south of the center of the island). See the
photographs taken on March 6 and 12 (GC Exhs. 3(h), 6(d),
and 7(b)). Thus, an individual in a wheelchair or mobility
scooter crossing over from the north side of Riviera Boulevard
would likely have encountered difficulty using the west-side
access ramp onto the traffic island with the banner there.
However, there is no evidence that the two banner holders
refused to shift or angle the banner to allow an approaching
wheelchair or mobility scooter to use the ramp. In fact, no
individual in a wheelchair or mobility scooter ever used the
north-side crosswalk to the traffic island while the banner was
there. Nor is there any evidence that anyone used the alterna-
tive, south-side crosswalk because the union banner was on the
traffic island.6

5 Unfortunately, the exhibits and testimony do not provide a full or
satisfactory view or description of the subject location (3000 Paradise
Road). I have therefore consulted and taken judicial notice under FRE
201 of the Google map and satellite images of the site. See generally
Bud Antle, Inc., 359 NLRB No. 140, slip op. at 1 fn. 3 (2013), reaffd.
361 NLRB No. 87 (2014); U.S. v. Perea-Rey, 680 F.3d 1179 fn. 1 (9th
Cir. 2012); Cloe v. City of Indianapolis, 712 F.3d 1171, 1177 fn. 3 (7th
Cir. 2013); and Pahls v. Thomas, 718 F.3d 1210 fn. 1 (10th Cir. 2013).
6 According to Phillip Froehlich, vice president of the Western Re-
gion for Westgate Resorts, on March 9 and 10 the foregoing banner
was instead stationed just north of the traffic island, across the NW exit
lane, on the public sidewalk. And, as on the traffic island, it was placed
in such a way that it extended partially onto the ramp at the curved end
of the sidewalk leading south toward the island. (Tr. 68–80.) Howev-
er, I discredit this testimony. First, unlike with the other locations at
issue, it is not corroborated by any photographic evidence. Second, it is
2. Banner on sidewalk near southwest corner
Beginning on March 6, the Union also stationed one of the
banners on the public sidewalk about 800 feet south of the
Westgate front entrance, near the southwest corner of the prop-
erty. It was placed just north of a driveway that employees use
to access a parking lot next to the Westgate Event Center. As
discussed below, the Union also placed an inflatable rat in the
driveway itself on March 6.
However, like the banner on the traffic island, the banner
was placed near the outer/western edge of the sidewalk, facing
the traffic on Paradise Road. Thus, pedestrians could pass be-
hind it. See GC Exh. 3(j).7 See also GC Exh. 6(b), (c) (photo-
graphs showing the same banner on March 12). Further, unlike
the banner on the traffic island, there is no credible evidence
that it blocked the ramp on the curved end of the sidewalk lead-
ing south across the employee driveway.8
B. The Inflatables
1. Inflatable rat in Event Center employee driveway
The Westgate Event Center can be accessed by using the
same circular driveway and walkway that leads to the front
entrance of the hotel and casino. However, as indicated above,
there is also another driveway entrance further south down
Paradise Road at the rear of the event center. The entrance is
primarily for Westgate’s banquet personnel, who park in a lot
next to the building. It is therefore gated to prevent the public
from parking there. The gate is about 50 feet into the two-lane
driveway. The gate is usually closed and locked with a chain
and padlock, unless Westgate unlocks it in the morning. Even
when the gate is unlocked, however, it is kept closed. When
employees enter, they must get out of their car to manually
open and close the gate.

inconsistent with the testimony of both Gregory Laughman, executive
director of security at the Westgate, and Mike DaSilva, Local 872 di-
rector of organizing. Laughman testified that the banner was still on
the traffic island on March 9 and 10; that the banner did not move to
the north sidewalk until March 16; and that he did not notice any ob-
struction of pedestrian ingress or egress as of that date (Tr. 199–200).
DaSilva likewise testified that he did not move the banner off the island
until March 16 (Tr. 288). See also GC Exh. 6(d) (a photograph show-
ing the banner on the traffic island on Mar. 12), and Tr. 122, 127 (the
testimony of Oscar Villarreal, Jr., one of the two banner holders). In
any event, even if the banner was partially blocking the sidewalk ramp
on March 9 and 10 or some later date, as on the traffic island there is no
evidence that the banner holders refused to shift or angle the banner to
allow an approaching wheelchair or mobility scooter to use the ramp.
Nor is there any evidence that anyone was unable to get by to cross the
NW exit lane, access the traffic island, and continue south across the
SW exit and entrance lanes to the front entrance walkway.
7 Again, in making the foregoing findings, I have consulted the
Google map and satellite images of the location (3060 Paradise Road),
including but not limited to those entered into the record (GC Exh.
12(a)–(d)). The satellite images indicate that the sidewalk is about 6
feet wide, adequate to accommodate the banner, banner holders, and
pedestrians.
8 Although Security Director Laughman testified that the banner
blocked the sidewalk ramp (Tr. 193), I discredit that testimony as it is
not consistent with the photographic evidence or corroborated by any
other witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The subject inflatable rat was placed on the driveway at the
NW outer edge where it flares out for cars to make a gradual
right turn to exit and proceed north on Paradise Road. The rat
was set back from the road about 8 feet, behind a white stripe
that runs across the driveway from the public sidewalk (appar-
ently to designate where exiting cars should stop to allow pe-
destrians to cross the driveway from the sidewalk). Thus, it did
not block the pedestrian crossing. However, it was on West-
gate property and partially blocked the driveway exit. Never-
theless, it was placed far enough over that it would not have
prevented a car from exiting straight out with a hard right turn.
See GC Exhs. 3(i), 11(d)–(f), and 12(a)–(d).9 And it was sta-
tioned there only on the first day, March 6, when the gate was
locked and there was no traffic going in or out.10
2. Inflatables on utility cutouts
The rest of the subject inflatables were stationed on so-called
“utility cutouts” around the perimeter of the Westgate property.
The utility cutouts are areas abutting the public sidewalk where
local utility companies are provided an easement to service or
repair the utilities for the property as needed. The sizes of the
cutouts vary, but they are generally no larger than necessary for
the utility companies to easily and safely access the utility box-
es or lines. However, they are large enough to station inflata-
bles on them and avoid blocking the public sidewalk itself.
On March 6, and again on March 9, 10, and 11, the Union
placed a total of four inflatables on the cutouts: a rat and a
cockroach on two cutouts on the north side (Karen Avenue);
and a pig and a cat on two cutouts on the west side (Paradise
Road). See GC Exhs. 3(c), (e), (f), (g), and 11(a)–(c), (g)–(o).
At the time the Union did so, there were no obstructions or
signs indicating that the cutouts were private property and off
limits to anyone other than the utility companies. Nor did any
of the utility companies ask the Union to remove the inflatables
from the cutouts.11 On March 12, however, Westgate put a

9 As above, in making the foregoing findings, I have consulted the
Google map and satellite images of the location, including but not
limited to those in the record (GC Exh. 12(a)–(d)). The satellite images
indicate that the flared out portion of the driveway is about 6 feet wide
where the rat was placed, wide enough to accommodate the body of the
rat. Although the rat also had a tail, the photograph of the rat (GC Exh.
3(i)) shows that its tail was curled toward the sidewalk and therefore
mostly off the driveway.
The photographs also show the Union’s white van parked in front of
the rat and partially blocking the pedestrian crossing. However, the
General Counsel does not allege that this constituted an 8(b)(4) viola-
tion. See Tr. 61–67 and the General Counsel’s posthearing brief.
10 I credit Local 872 Organizing Director DaSilva’s testimony that
the rat was stationed in that location only on March 6 (Tr. 274–275).
Although Security Director Laughman testified, in response to a lead-
ing question by counsel for the General Counsel, that he saw the rat in
the employee driveway entrance on March 9 (Tr. 192), his testimony is
not corroborated by photographic evidence or any other witness. See
also Westgate’s posthearing brief at 3 fn. 2 (acknowledging that the rat
was moved to another location on March 9). In any event, Laughman
admitted that he did not see anyone enter or exit the driveway during
the period the rat was stationed there (Tr. 218).
11 Local 872 Organizing Director DaSilva testified that he spoke to a
water district employee who happened to be working near one of the
west-side utility cutouts on March 6, and the employee said there was
chain around each of the cutouts with a sign saying “private
property.” See GC Exh. 6(e)–(h), (j), (l). The Union, therefore,
did not put any of the inflatables on the cutouts that day or
thereafter.
Analysis
The Board in numerous cases has held that the display of sta-
tionary union banners at a secondary/neutral employer’s prem-
ises notifying the public of a labor dispute does not constitute
picketing or disruptive or otherwise coercive nonpicketing con-
duct violative of Section 8(b)(4)(ii)(B) of the Act. See, e.g.,
Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355
NLRB 797 (2010) (finding that union did not violate Section
8(b)(4)(ii)(B) by stationing similar large banners with up to
four holders within 15 feet from entrances); and Carpenters
Local 1506 (Marriott Warner Center), 355 NLRB 1330 (2010)
(following Eliason and likewise finding no 8(b)(4)(ii)(B) viola-
tion, notwithstanding that union stationed the banners with two
or three holders less than 15 feet from entrances). The Board
has reached the same conclusion with respect to stationary un-
ion inflatables. See Sheet Metal Workers Local 15 (Brandon
Regional Medical Center), 356 NLRB 1290 (2011) (finding
that union did not violate Section 8(b)(4)(ii)(B) by stationing a
similar large inflatable rat within 100 feet from entrances).
The General Counsel argues that the foregoing decisions are
distinguishable because the displays in those cases did not
block ingress and egress or create confrontation with individu-
als seeking to enter or exit the premises. However, as discussed
above, none of the banners or inflatables here actually blocked
or significantly impaired ingress or egress or created confronta-
tion. Although one banner partially blocked a wheelchair or
mobility scooter access ramp, it was on a public traffic island
80 feet away from the front entrance walkway, and an alterna-
tive route of equal distance was readily available. Further,
there is no evidence that anyone was actually blocked, im-
paired, or delayed in accessing the front entrance walkway
because of the placement of the banner. As for the rat in the
event center employee driveway, it was placed in the far NW
corner where the exit lane flared out, and would not have pre-
vented a car from exiting. Further, the entrance gate was
locked that day, and therefore no employees actually used, or
were expected to use, the driveway to enter or exit. Thus,
whatever blockage occurred at either location was insignificant
and de minimis. See Eliason, 355 NLRB at 807 fn. 30 (block-
ing ingress or egress is not coercive if it is “not significant, i.e.
it is de minimis”). Compare also SW Regional Council of Car-
penters (Richie’s Installations, Inc.), 355 NLRB 1445 (2010)
(finding no 8(b)(4)(ii)(B) violation, notwithstanding that the
union occasionally moved the banners, as the movement was

no problem putting an inflatable in the cutout as they were not working
there (Tr. 260–261, 264, 278–284, 304). DaSilva also testified that a
metro police detective told him “you guys are good” after the detective
and two uniformed officers walked around and looked at all the banners
and inflatables that morning (Tr. 281–284, 295). Although DaSilva’s
testimony is uncorroborated, it is also uncontroverted, and there is no
other compelling reason on the record to discredit it. However, I would
find that the Union’s conduct did not violate the Act even without the
testimony.
LABORERS LOCAL 872 (NAV-LVH, LLC) 5
“de minimis”).
The General Counsel also argues that the Board’s prior deci-
sions are distinguishable because the rat in the event center
driveway and the other inflatables on the utility cutouts were on
Westgate’s property. However, the relevant inquiry in evaluat-
ing whether nonpicketing conduct violates Section
8(b)(4)(ii)(B) is whether it “directly caused, or could reasona-
bly be expected to directly cause, disruption of the secondary’s
operations.” Eliason, 355 NLRB at 807; Brandon Regional
Hospital, above at 1292. Here, as discussed above, neither the
event center driveway nor the utility cutouts were being used
by Westgate or utility company personnel at the time. Thus,
none of the inflatables at those locations directly disrupted, or
threatened to directly disrupt, Westgate’s operations. Moreo-
ver, the rat was stationed at the event center only one day, and
the Union ceased placing the inflatables on the cutouts when
Westgate clearly marked the cutouts as private property on
March 12.12 Thus, the Union’s conduct cannot reasonably be
characterized as unlawful harassment or repeated trespass. See
520 S. Michigan Avenue Assoc., Ltd. v. UNITE HERE Local 1,
760 F.3d 708 (7th Cir. 2014) (discussing circumstances where
nonpicketing conduct may constitute harassment or repeated
trespass violative of 8(b)(4)(ii)(B)).13
As indicated above, the complaint alleges that Local 872’s
foregoing conduct also violated Section 8(b)(4)(i)(B) of the
Act, which prohibits a union from inducing or encouraging a
secondary/neutral employer’s employees to stop working.
However, as discussed above, both of the subject banners faced
Paradise Road, the major public road running past the Westgate
front entrance, and did not call for an employee strike or any
other form of job action. Further, there is no evidence that any
of the banner holders spoke to any Westgate employees or that
any Westgate employees actually stopped work. As for the rat

12 Westgate’s counsel sent a letter to the Union on March 10 notify-
ing it that the inflatables were on private property (GC Exh. 4(a)).
However, the record is unclear whether the Union had received the
letter before putting the inflatables up on March 11. See Tr. 90.
13 Westgate’s post hearing brief (pp. 5–6, 16, 20, 30) makes much of
Union Organizing Director DaSilva’s admission at the hearing that the
inflatables were intended to “piss off” Westgate (Tr. 296–297). How-
ever, it is the “characteristics of the conduct itself” that determines
whether the conduct is coercive. Carpenters Local 1827 (UPS, Inc.),
357 NLRB 415, 417 (2011).
in the event center employee driveway, the gate inside the
driveway was locked with a chain and padlock, and thus no
employees used, or were expected to use, the driveway that
day. See SW Regional Council of Carpenters (New Star Gen-
eral Contractors, Inc.), 356 NLRB 613 (2011) (rejecting a
similar 8(b)(4)(i)(B) allegation involving stationary union ban-
ners for similar reasons). See also Eliason, 355 NLRB at 806,
and Brandon Regional Hospital, 356 NLRB at 1294 (rejecting
contention that the stationary union banners and inflatable rat at
issue in those cases constituted unlawful “signal picketing”).
Accordingly, for all the foregoing reasons, I find that the ev-
idence fails to support the alleged violations.14
CONCLUSION OF LAW
Laborers Local 872 did not violate Section 8(b)(4)(i)(ii)(B)
as alleged in the complaint.
ORDER
The complaint is dismissed.15
Dated, Washington, D.C., August 21, 2015

14 In light of my findings that Local 872’s conduct did not constitute
picketing or disruptive or otherwise coercive nonpicketing conduct
covered by Sec. 8(b)(4), it is irrelevant whether the conduct had a sec-
ondary object prohibited by that section. Thus, it is unnecessary to
address the General Counsel’s argument that the Union’s continued
placement of the banner on the traffic island after March 11, when
Westgate set up a reserved gate for Nigro and its subcontractors (Tr.
93–94), was sufficient to establish a secondary object under the test set
forth in Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950).
See UPS, above at 420. For the same reason, it is likewise unnecessary
to reach the Union’s First Amendment and RFRA defenses to the al-
leged 8(b)(4)(ii)(B) allegations under the Supreme Court’s recent deci-
sions in Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015), and
Burwell v. Hobby Lobby Stores, 134 S.Ct. 2751 (2014). Finally, I also
decline to reach the Union’s requests for attorney’s fees under 42
U.S.C. Sec. 1988(b) and for other affirmative relief, as the requests
were made for the first time in the Union’s posthearing brief and the
General Counsel and Westgate have not had an opportunity to respond.
15 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.