The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 1999 Decided July 9, 1999
No. 98-1277
Warshawsky & Company,
Petitioner
v.
National Labor Relations Board,
Respondent
Ironworkers Local 386,
Intervenor
On Petition for Review of an Order of the
National Labor Relations Board
Michael W. Duffee argued the cause for petitioner. With
him on the briefs was John N. Raudabaugh.
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Linda Sher, Associate General Counsel, John D.
Burgoyne, Acting Deputy Associate General Counsel, and
David Habenstreit, Supervisory Attorney.
Terrance B. McGann argued the cause for intervenor.
With him on the brief was Travis J. Ketterman. Collins P.
Whitfield entered an appearance.
Before: Wald, Silberman, and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Dissenting Opinion filed by Circuit Judge Wald.
Silberman, Circuit Judge: Warshawsky & Company peti-
tions for review of an order of the National Labor Relations
Board dismissing a secondary boycott complaint filed against
Ironworkers Local 386. We grant the petition.
I.
Warshawsky (the Company) sells automobile parts and
accessories and is currently constructing a warehouse and
mail order facility in LaSalle, Illinois. The Company retained
G.A. Johnson & Sons, Inc. as its general contractor for the
project. Johnson in turn subcontracted with various other
companies, all of whom maintained collective bargaining con-
tracts with the building trade unions that represent their
employees. Throughout the period relevant to this case,
Johnson and the subcontractors worked at the LaSalle site
from approximately 7 a.m. to 3:30 p.m. every weekday, and
occasionally on Saturday. In March of 1997, Warshawsky
retained Automotion, Inc. to install rack and conveyor sys-
tems at the site. In response, Iron Workers Local 386, which
represents Automotion's employees and had no dispute with
Johnson or any of the subcontractors, engaged in "area
standards" picketing of Automotion at the construction site on
March 5. The union stopped later that day after being told
that Automotion was not yet working at the site. One week
later, Warshawsky's Vice President of Human Resources sent
the union's business agent a letter stating that a "reserve
gate" had been established at the site for Automotion, and
that any subsequent picketing of Automotion should be con-
ducted only when Automotion was working on the site: Mon-
day through Friday from 4 p.m. to 6 a.m., and all day Sunday.
Automotion began work at the site according to this schedule
on the same day.
The next morning, at around 6:40 a.m., various union
agents stationed themselves in close proximity to the LaSalle
site on a road that was used primarily by persons going to
and from the site. The site itself was not open to members of
the general public. As employees of Johnson and its subcon-
tractors approached the construction site in their automobiles,
the union agents distributed the following handbill:1
AUTOMOTION, INC.
IS DESTROYING
THE STANDARD OF
WAGES FOR
HARD-WORKING
UNION MEMBERS
AUTOMOTION, INC.
PAYS SUBSTANDARD
WAGES AND FRINGE BENEFITS.
IGNORING THE AREA STANDARDS
THREATENS THE EFFORTS AND SACRIFICES
OF ALL UNION MEMBERS.
___________________________________________________________________
___________________________________________________________________
Iron Workers Local 386 is currently engaged in a labor dispute concerning the
failure of Automotion, Inc. to pay the area standard wages and fringe benefits.
We are appealing only to the general public. We are not seeking any person
to cease work or to stop making deliveries.
The union agents also spoke briefly with the employees to
whom they gave the handbill, although we have no direct
evidence of what was said.
This activity lasted for about four hours, and resulted in
the employees of Johnson and its subcontractors refusing to
enter the site and refusing to perform services for their
employers. The union agents engaged in the same conduct at
the same times on four of the next six days, resulting each
__________
1 The actual handbill is in an appendix to our opinion. As will be
apparent, the caveat at the bottom is in very small print indeed.
day in employees of Johnson and its subcontractors refusing
to work. None of that conduct occurred while Automotion, or
any of its employees, suppliers, or subcontractors, were work-
ing at the site.
The General Counsel, responding to an unfair labor prac-
tice charge filed by Warshawsky, issued a complaint alleging
that the union's conduct violated s 8(b)(4)(i)(B) and (ii)(B) of
the National Labor Relations Act.2 The union's answer ad-
mitted that its agents handbilled and spoke to employees of
Johnson and its subcontractors, but characterized that con-
duct as a "lawful informational picket." The parties subse-
quently stipulated to the facts as set forth above and agreed
that those facts would serve as the complete record of the
case to be submitted to the ALJ for his decision without a
hearing. The ALJ granted the union's motion to amend its
answer two days before briefs were to be filed, which War-
shawsky but not the General Counsel opposed, to substitute
__________
2 Those sections provide that it is an unfair labor practice for a
labor organization or its agents
(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an indus-
try affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, trans-
port, 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 producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of section 159 of this title
...
29 U.S.C. s 158(b)(4)(i)(B), (ii)(B) (1994) (emphasis added).
the word "handbilling" for "picket."3
The ALJ determined that because there was no direct
testimony as to what was said by the union agents to the
neutral employees and nothing else in the record supported
an inference that the union "induced" or "encouraged" the
work stoppage, the General Counsel had not met his burden
of proof. The ALJ's decision appears to have been strongly
influenced by his conclusion that the handbilling engaged in
by the union--as opposed to picketing--was "pure expres-
sive" activity and is therefore entitled to some measure of
First Amendment protection. Although he described the
handbill as strident in tone, according to him it did no more
than truthfully advise members of the "public" (i.e., the
neutral employees of Johnson and its subcontractors) of
Automotion's wages and benefits. He accordingly discounted
the suspicious timing of the handbilling--that it took place
when Automotion's employees were not present. And he also
concluded that the apparent connection between the handbill-
ing and the work stoppage was insufficent as a matter of law
to prove inducement.
The Board affirmed the ALJ's findings and conclusions and
adopted the order dismissing the complaint. See Iron Work-
ers Local 386 (Warshawsky & Co.), 325 N.L.R.B. No. 141
(May 14, 1998). Chairman Gould concurred separately. He
thought that the case was a close one; the evidence arguably
could support an inference that the union "was indeed making
an appeal, through a careful wink and a nod, for the employ-
ees to engage in a work stoppage." He noted particularly the
timing of the handbilling when the only recipients would be
__________
3 Warshawsky argues that the ALJ erred in granting the
motion because the last-minute change from "picket" to "handbill-
ing" prejudiced Warshawsky, and that even if the motion were
properly granted, the ALJ erroneously failed to consider the origi-
nal answer as evidence that the union's conduct constituted picket-
ing. Because we conclude that the union's conduct violated the
statute even accepting the amended answer, and without even
considering the original answer as evidence of picketing, we need
not address these contentions.
neutral employees, the text of the handbill, and the resulting
work stoppage. But based on Board precedent limiting the
"nod, wink, and a smile" theory, see Building & Constr.
Trades Council of Tampa (Tampa Sand & Material Co.), 132
N.L.R.B. 1564, 1565-66 (1961), he concluded that the facts of
the instant case, involving a handbill with a disclaimer, to-
gether with an absence of evidence as to the content of the
conversations between the union and the employees, did not
satisfy the General Counsel's burden of proving unlawful
inducement or encouragement.
II.
As noted, the ALJ (whose opinion the Board adopted)
relied significantly on the First Amendment in concluding
that the union did not induce or encourage the employees of
the neutral employers to engage in a secondary strike. In
the ALJ's words, the looming constitutional issue meant that
"analysis must proceed with care." The ALJ's reasoning is
not all that clear to us; it is as if the First Amendment acts
as a deus ex machina directing his factfinding.4 He presum-
ably thought that to prohibit a union from engaging in "area
standards" handbilling of neutral employees might violate the
union's First Amendment rights, and therefore the constitu-
tional avoidance canon suggests that the words "induce or
encourage" in s 8(b)(4)(i) should be interpreted, and applied,
narrowly so as not to proscribe the handbilling involved in
this case. We think the First Amendment is not at all
implicated and once it is put aside, the Board's finding can be
judged in accordance with the standard substantial evidence
test.
__________
4 Our dissenting colleague is no more forthcoming as to just
how the First Amendment affects her analysis. It would appear
that she is of the view that circumstantial evidence should be
thought less probative than direct evidence in this setting, but she
does not explain why. Cf. Crawford-El v. Britton, 93 F.3d 813, 818
(D.C. Cir. 1996) (en banc) ("[T]he distinction between direct and
circumstantial evidence has no direct correlation with the strength
of the plaintiff's case."), rev'd on other grounds, 118 S. Ct. 1584,
1595 (1998).
The Supreme Court has emphatically said that "[t]he prohi-
bition of inducement or encouragement of secondary pressure
by s 8(b)(4)[i] carries no unconstitutional abridgment of free
speech," International Brotherhood of Elec. Workers, Local
501 v. NLRB, 341 U.S. 694, 705 (1951). And in Electrical
Workers, the Court also recognized that "[t]he words induce
or encourage are broad enough to include in them every form
of influence and persuasion." Id. at 701-02 (emphasis add-
ed). It follows that the First Amendment does not protect
communications directed at--and only at--the neutral em-
ployees merely because the form of communications is hand-
billing and conversations.5 Indeed, the Board's brief con-
cedes that a violation of the Act would have been established
"if the handbilling had [explicitly] requested neutral employ-
ees to cease work, or if the record showed that the union had
orally induced or encouraged such a work stoppage...."
The Board (both the ALJ and the Board's brief) relies
heavily on the Supreme Court's decision in Edward J. DeBar-
tolo Corp. v. Florida Gulf Coast Building & Construction
Trades Council, 485 U.S. 568 (1988), in which the Court did
pivot on the First Amendment--using the canon of constitu-
tional avoidance--to construe the secondary boycott provi-
sions of the Act not to reach peaceful handbilling directed to
consumers at a shopping mall. There the union's primary
dispute was with a construction company retained to build a
department store in the mall. See id. at 570. The handbill
asked customers not to shop at any stores in the mall until
the mall owner (DeBartolo) promised that all of its tenants
would use only contractors who pay fair wages, and made
clear that the union was seeking only a consumer boycott.
The Board found that the handbilling "coerced" the mall
tenants, in the words of s 8(b)(4)(ii)(B), by putting economic
pressure on them through the appeal to consumers. The
Supreme Court rejected the Board's interpretation of
s 8(b)(4)(ii)(B) to reach such consumer directed handbilling in
__________
5 The dissent, post at 3, misconstrues this rather unexceptiona-
ble statement.
part to avoid the serious constitutional question that would
arise.
We think DeBartolo, and the constitutional issue the
Board's statutory interpretation would have presented there,
is fundamentally different because, as the Supreme Court
observed, the mall's potential customers were being urged "to
follow a wholly legal course of action, namely, not to patron-
ize the retailers doing business in the mall." Id. at 575
(emphasis added). The issue in the case was whether that
sort of appeal to the consumers--which obviously implicates
the First Amendment--could be thought to threaten, coerce,
or restrain the mall tenants to cease doing business with
another (DeBartolo) within the meaning of s 8(b)(4)(ii)(B).
By contrast, the conduct sought by a union that directly
induces or encourages a secondary strike is itself unlawful
under s 8(b)(4)(i). See 29 U.S.C. s 158(b)(4)(i)(B) (providing
that it is an unfair labor practice for a labor organization or
its agents "to engage in ... a strike ... [the object of which
is] forcing or requiring any person ... to cease doing busi-
ness with any other person"). The obvious implication of
DeBartolo, consistent with the Court's prior precedent, is that
an appeal limited to employees of a neutral employer which
reasonably could be found to be an inducement to engage in a
secondary strike is quite another matter; it does not raise
any constitutional problems.
The ALJ, again drawing on DeBartolo, suggested a related
basis for his decision. DeBartolo involved the construction of
the so-called publicity proviso of 8(b)(4), which states that
nothing in s 8(b)(4)
shall be construed to prohibit publicity, other than pick-
eting, for the purpose of truthfully advising the public,
including consumers and members of a labor organiza-
tion, that a product or products are produced by an
employer with whom the labor organization has a pri-
mary dispute and are distributed by another employer,
as long as such publicity does not have an effect of
inducing any individual employed by any person other
than the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the establish-
ment of the employer engaged in such distribution.
29 U.S.C. s 158(b)(4) (1994). The Board in DeBartolo had
argued the proviso was an exception to the secondary boycott
provisions, and therefore if a union was engaging in public
handbilling, but handbilling that did not qualify under the
proviso because it was not calling attention to a "distributor"
of goods with whom a union has a labor dispute, it was
implicitly banned (as coercive). The Court rejected that
construction--in part, as we noted, for constitutional rea-
sons--pointing out that the proviso was not an exception to a
broad handbilling ban, but rather a clarification as to the
meaning of the section's bar on coercion. See DeBartolo, 485
U.S. at 582.
The ALJ, keying on the Supreme Court's description of the
proviso as serving a clarification function, pointed to the
language "public, including consumers and members of a
labor organization," 29 U.S.C. s 158(b)(4) (emphasis added),
and reasoned that handbilling appeals to union members are
entitled to the same constitutional protection as those direct-
ed to consumers. They are, after all, as Congress recognized,
both parts of the public. Therefore the constitutional
grounds for construing the handbilling restriction narrowly as
it relates to consumer handbilling apply equally to handbilling
directed at union members.6 We think that reasoning is
flawed. It ignores the Supreme Court's cases which draw a
distinction between urging consumers to engage in a lawful
boycott and inducing union members to engage in an unlawful
secondary strike.
* * * *
We come then to the Board's finding that the union did not
"induce" the neutral employees to stop work. Petitioner
__________
6 The ALJ thought the same holds true (as in this case) for a
union's handbilling of members of a different labor organization.
argues that the Board's finding is not supported by substan-
tial evidence, which is another way of saying that no reason-
able factfinder could have made such a finding. See Allen-
town Mack Sales & Serv. v. NLRB, 118 S. Ct. 818, 822 (1998).
This is not a credibility case; there was no testimony. Nor
did the Board employ any presumptions, so we need not
consider whether such would have been reasonable. See id.
at 828. The case turns only on the reasonableness of the
inferences the Board did, and did not draw, from the raw
stipulated facts. And "[w]hen the Board purports to be
engaged in simple factfinding, unconstrained by substantive
presumptions or evidentiary rules of exclusion, it is not free
to prescribe what inferences from the evidence it will accept
and reject, but must draw all those inferences that the
evidence fairly demands." Id. at 829.
We think that the evidence does "fairly demand" the infer-
ence that the union sought to induce the neutral employees to
walk off the job site. The handbills themselves, the time,
place, and manner of their distribution, the simultaneous
conversations between the union agents and the neutral em-
ployees, and the subsequent response of those employees all
combine to paint only one plausible picture. The ALJ unrea-
sonably took each piece of evidence, analyzed it separately--
not even accurately in our view--and concluded that no one
piece sufficed, never asking whether the totality of facts
pointed in only one direction.
To start with the handbill, the union argued that it specifi-
cally stated that "we are appealing only to the general public.
We are not seeking any person to cease work or to stop
making deliveries." But that caveat is contained in only very
small print at the bottom of the handbill. The Board has not
in the past credited similar disclaimers in the face of circum-
stances suggesting that the disclaimer is merely a legal cover.
See National Ass'n of Broad. Employees, Local 31, 237
N.L.R.B. 1370, 1376 (1978) (concluding that purported dis-
claimer at bottom of handbill was a "self-serving disavowal"
given the manner in which the handbill was distributed),
enforced, 631 F.2d 944 (D.C. Cir. 1980); see also Catalytic,
Inc. v. Monmouth & Ocean County Building Trades Council,
829 F.2d 430, 432, 435 (3d Cir. 1987) (dismissing disclaimer on
handbill virtually identical to disclaimer at issue here as a
"carefully vague and legalistic statement" whose tone may
actually have sent a signal to the neutral employees to cease
work); cf. International Brotherhood of Elec. Workers, Local
453 (Southern Sun Elec. Corp.), 252 N.L.R.B. 719, 723 (1980)
(stating that union's self-serving disclaimer of picketing for
recognitional purposes is not determinative of whether union
was engaged in lawful picket).
As the ALJ put it, the main language of the handbill
contained a strident attack on Automotion's substandard
wages and, most significantly, the lugubrious prediction that
"Ignoring the Area Standards Threatens the Efforts And
Sacrifices Of All Union Members" (emphasis added), which
clearly tells the recipients of the handbill that they should
regard this matter as one in which they as union members
have a stake. And being so informed there is only one
possible action they can take that will contribute to the cause.
Indeed, Congress itself indicated that this sort of handbill
would be at least evidence of inducement, if not necessarily
conclusive evidence. The publicity proviso assumes that
handbills, or like publicity, advising members of a labor
organization that a secondary employer is distributing prod-
ucts produced by an employer with whom the union has a
primary dispute can have the "effect of inducing" a secondary
employee not to perform services. 29 U.S.C. s 158(b)(4)
(emphasis added). That the proviso does not afford a defense
in this case7 has no bearing on whether this generic type of
handbilling is at least evidence of inducement.
Second, the handbilling was de facto directed only at the
neutral employees. It took place on an access road to the
construction site (the common situs) only at times when the
__________
7 The proviso cannot constitute a defense for the union in this
case most obviously because there was a work stoppage. The ALJ
thought that it did not apply also because the handbills did not
advise the public that Warshawsky was distributing Automotion's
"products" (or perhaps that Warshawsky could not even be thought
a "distributor").
employees of Johnson and its subcontractors--the neutral
employees--were reporting for work and during which, as the
union knew, Automotion was not working. The ALJ himself
determined at one point in his opinion that "the stipulated
facts leave scant room for any conclusion that the handbills
had been intended for anyone other than persons reporting
for work at the LaSalle project" and that "[t]here is no basis
in the stipulation that would allow even an inference that
handbills had been actually distributed to anyone else." War-
shawsky, 325 N.L.R.B. No. 141, at 6 (emphasis added). Inex-
plicably, the ALJ later drew precisely that forbidden infer-
ence, remarking that nothing in the evidence ruled out the
possibility that the union handbilled non-employees who may
have tried to enter the construction site (a mystery food
vendor or some construction-site tourists?). See id. at 9.
Based on the ALJ's own initial finding, which seems unassail-
able, we do not see how his latter inference can possibly be
justified.
Then there are the conversations between the union agents
and the employees. The ALJ was apparently under the
impression that because there is no testimony as to the
content of those conversations, the fact that they took place is
of no moment or significance. But we think that conclusion
is, as an evidentiary matter, ridiculous. It may well be that
those conversations, standing alone, would be of little rele-
vance--but they did not stand alone. A reasonable factfinder
would have evaluated the existence of the conversations in
light of the evidence already set forth: a handbill distributed
exclusively to the very employees who later ceased work and
which calls attention to the efforts and sacrifices of all union
members. In such a case, the mere fact of a conversation
between the alleged inducers and those allegedly being in-
duced can speak volumes. See, e.g., International Ass'n of
Bridge, Structural & Ornamental Iron Workers, Local No.
433 v. NLRB, 598 F.2d 1154, 1159-60 (9th Cir. 1979) (enforc-
ing Board's order finding unlawful inducement in part based
on conversations at neutral employer's office gate between
union agent and neutral employees who failed to report for
work later that day, even though there was no testimony
regarding the content of the conversations). We also think
the Board's and the union's reliance on precedent holding a
union not to have violated the Act based on conversations
between a union and neutral employees, see, e.g., Carpenters
Local 316 (E & E Dev. Co.), 247 N.L.R.B. 1247, 1248-49
(1980); Gould, Inc., 238 N.L.R.B. 618, 622 (1978), enforced,
638 F.2d 159, 163 n.2 (10th Cir. 1980); Tampa Sand, 132
N.L.R.B. at 1565-66, is misplaced. In each of those cases,
the Board focused on testimony that the union officials specif-
ically told the neutral employees that each employee's deci-
sion whether or not to walk off the job was his or her own to
make. It is precisely the absence of such evidence here--
neutralizing, as it were, any inference of inducement--that
renders the fact of the conversations so telling.
Moreover, the union agents who talked to the neutral
unionized employees are particularly within the control of the
union, a fact which in similar circumstances has led the Board
to draw an adverse inference against the union for failing to
produce evidence about the content of conversations involving
union members. See Ironworkers Dist. Council of the Pacific
Northwest (Hoffman Constr. Co.), 292 N.L.R.B. 562, 578
(1989); Carpenters Local 316 (Thornhill Constr.), 283
N.L.R.B. 81, 84 (1987); Local 3, Int'l Brotherhood of Elec.
Workers (Hunts Point Elec. Wiring Serv., Inc.), 271 N.L.R.B.
1580, 1585 & n.6, 1586 (1984); see also International Union,
United Auto., Aerospace & Agric. Implement Workers of Am.
v. NLRB, 459 F.2d 1329, 1335-1342 (D.C. Cir. 1972). The
Board and the union's protest that the General Counsel had
the burden of proof and is therefore to blame for failing to
produce this evidence strikes us as flatly inconsistent with
this principle. A reasonable factfinder must ask, as do we:
What save for inducing or encouraging words could the union
agents possibly have said to the recipients of the handbills?
"Have a nice day"? "How 'bout them Cubs?"? Any "non-
inducement" words would be inconsistent with the setting,
and to suppose the union agents uttered them would be sheer
speculation. By contrast, the inference that the union orally
induced the employees to cease work has, as we have shown,
a substantial evidentiary base.
We come last to the actual work stoppage that occurred
after the handbilling and conversations. Here again, the ALJ
reasoned that, under Board precedent, a work stoppage alone
is not sufficient proof of inducement. See, e.g., Gould, 238
N.L.R.B. at 622-23; Teamsters, Local Union No. 688 (Levitz
Furniture Co.), 205 N.L.R.B. 1131, 1132-33 (1973); Tampa
Sand, 132 N.L.R.B. at 1568; cf. United Scenic Artists, Local
829 v. NLRB, 762 F.2d 1027, 1033 (D.C. Cir. 1985) (union's
intent, and not the effect of its actions, is the critical aspect of
finding an unlawful secondary "object"). Chairman Gould
made the same point in concluding, despite his misgivings,
that the union did not violate the Act. However correct this
proposition is, it certainly cannot be taken to mean, as the
ALJ implied, that the fact of a work stoppage has no eviden-
tiary value in proving a case of inducement. To the contrary,
the Board has found that a union's handbilling constituted
unlawful inducement in part because of its effect in producing
a work stoppage, see International Ass'n of Bridge, Sructural
& Ornamental Iron Workers, Local No. 433 (R.F. Erection),
233 N.L.R.B. 283, 287 (1977), enforcement granted in part
and denied in part, 598 F.2d 1154 (9th Cir. 1979); see also
Catalytic, 829 F.2d at 435 ("The simple cause-and-effect of
the appearance of the leafletters and work stoppages elo-
quently testified to the purpose of the enterprise."), and has
also relied on the absence of a work stoppage as evidence that
a union did not engage in unlawful inducement, see, e.g.,
United Scenic Artists, Local 829 (Theatre Techniques, Inc.),
243 N.L.R.B. 27, 28 (1979), rev'd on other grounds, 655 F.2d
1267 (D.C. Cir. 1981); Levitz Furniture, 205 N.L.R.B. at 1133
(refusing to presume from "one isolated instance when a
delivery was not made" that the union's handbilling was in
effect a signal picket).8 We think the Board's approach in
__________
8 The Board has even suggested (though admittedly in dicta) in
distinguishing handbilling from picketing that handbilling is only
"lawful" when unaccompanied by a work stoppage. See Local 917,
International Brotherhood of Teamsters (Industry City Assocs.),
307 N.L.R.B. 1419, 1419 n.3 (1992) (citing Hospital & Serv. Employ-
ees Union, Local 399 (Delta Air Lines, Inc.), 293 N.L.R.B. 602, 603
(1989)).
these prior cases is consistent with our view of what a
reasonable factfinder would have been obliged to do in this
case: to consider a work stoppage as probative evidence of
inducement, even if not sufficient evidence taken alone.
We suppose it is possible to infer that the neutral employ-
ees "spontaneously" walked off the job after receiving the
handbills and talking with the union agents. The real ques-
tion is whether it is a reasonable inference to draw.9 We
think not. As we observed, the ALJ employed a kind of
"divide and conquer" evidentiary strategy, dissecting the
General Counsel's case into evidentiary fragments that stand-
ing alone would be insufficient to prove inducement, but
neglecting to consider what we think is the overpowering
evidentiary force of those parts put together. For the Board
to focus on evidentiary fragments and to ignore the aggregate
weight of the evidence is no more permissible than ignoring
evidence that contradicts its conclusion. See Universal Cam-
era Corp. v. NLRB, 340 U.S. 474, 487-88 (1951).
* * * *
We have no difficulty, reviewing the whole record, in
concluding the Board's finding is defective; it lacks substan-
tial evidence.
__________
9 We, unlike the dissent, do not think it matters that the
stipulated facts did not specify whether all or only some of the
employees stopped work or the exact length of the conversations
with the union agents. Nor, for that matter, did the ALJ.
A P P E N D I X
AUTOMOTION, INC.
IS DESTROYING
THE STANDARD OF
WAGES FOR
HARD-WORKING
UNION MEMBERS
AUTOMOTION, INC.
PAYS SUBSTANDARD
WAGES AND FRINGE BENEFITS.
IGNORING THE AREA STANDARD
THREATENS THE EFFORTS AND SACRIFICES
OF ALL UNION MEMBERS.
___________________________________________________________________
___________________________________________________________________
Iron Workers Local 386 is currently engaged in a labor dispute concerning the
failure of Automotion, Inc. to pay the area standard wages and fringe benefits.
We are appealing only to the general public. We are not seeking any person
to cease work or to stop making deliveries.
Wald, Circuit Judge, dissenting: In my view, the majority
goes too far afield from the record and established restraints
on our appellate review powers in order to overturn the
Board and find that the union committed a violation of section
8(b)(4). An opinion upholding the decision of the Board in
this case, which I support, on the other hand would have had
only a limited impact; at most, it would have sent a message
to future companies that they ought not agree to be bound by
too sparse factual records. Instead, the majority issues a
surprisingly broad-based opinion which reverses the Board,
finds a union in violation of federal labor law,1 and sets forth
new constitutional law restricting the reach and protection of
the First Amendment.
The relevant facts of this case are easily summarized.
Warshawsky & Company ("the Company") is engaged in the
warehousing and sale of auto parts and accessories. In 1997,
the Company decided to build a warehouse and mail order
facility in LaSalle, Illinois. The Company hired a general
contractor who, in turn, hired various subcontractors, each of
which maintained collective bargaining agreements with vari-
ous unions representing employees working on the construc-
tion site ("construction employees"). These employees
worked at the construction site Monday through Friday, 7
a.m. to 3:30 p.m. and on occasional Saturdays as well.
In March 1997, the Company directly retained Automotion
Inc. ("Automotion") to install certain rack and conveyor sys-
tems at the construction site. Shortly thereafter, Ironwork-
ers Local 386 ("Union"), which had no labor dispute with
either the general contractor or any of the subcontractors,
__________
1 In so finding, the majority does not take seriously enough the
proposition that unions, as well as individuals, are innocent until
proven guilty, and that courts must therefore be cautious in con-
cluding that a union has violated federal labor law. See NLRB v.
Ironworkers Local 433, 850 F.2d 551, 555 (9th Cir. 1988) ("What is
at issue is a finding that [the union] violated federal law. This is a
serious conclusion, one we do not lightly reach.").
engaged in area standards picketing against Automotion.
The Union discontinued this picketing after being informed
that Automotion was not yet working on the site. Subse-
quently, an agent of the Company sent the Union a letter
stating that Automotion employees would be scheduled to
work on the site Monday through Friday from 4 p.m. to 6
a.m. and all day Sunday. The letter requested that any
future picketing of Automotion be conducted only when Auto-
motion employees were on site.
On March 13, 1997, at around 6:40 a.m., various agents of
the Union were stationed in close proximity to the entrance of
the construction site. During about a four hour period, the
Union agents distributed copies of a handbill to construction
employees as they approached the construction site. A copy
of the handbill appears as an appendix to the majority's
opinion. Union agents distributed the same handbill at the
same location and at approximately the same time on March
14, 17, 18, and 19. Employees of Automotion were not at the
site on any of these occasions. Certain construction employ-
ees (number unknown, see below) refused to enter the con-
struction site on each of the days on which the Union
handbilled.
On March 13, 1997, the Company filed an unfair labor
practice charge alleging illegal secondary activity on the part
of the Union. On March 25, 1997, the Regional Director
issued a complaint charging that the Union had violated
section 8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act, which, in relevant part, makes it unlawful for a union to
"induce or encourage" any individual employed by a neutral
employer (i.e., one with whom the union has no primary labor
dispute) to engage in a work stoppage, where the union's
object is to force the neutral to cease doing business with an
employer with whom the union does have a primary dispute.
Before the Administrative Law Judge ("ALJ"), the parties
presented a joint motion accepting a stipulation of facts and
agreeing to waive a hearing. The stipulation contained a
copy of the handbill distributed by the Union. The stipula-
tion also provided that "various" agents of the Union were
stationed on a road used primarily by individuals going to and
from the construction site. The stipulation provided that the
Union agents gave copies of the handbill to individuals enter-
ing the site and that the agents "briefly spoke" with these
individuals. Finally, the stipulation provided that "the indi-
viduals" on the first day, and then "various individuals" on
subsequent days refused to enter the construction site and
perform work for their respective employers. Based on the
stipulation of facts, which constituted the entire record, and
on the briefs, the ALJ dismissed the complaint against the
Union, concluding that "a preponderance of the ... evidence
fails to establish that the failure of some of [the construction]
employees to report for work ... had been other than a
spontaneous reaction by those employees to the [Union's]
lawful actions of publicizing, other than through picketing or
through conduct tantamount to picketing, undisputed facts
about Autom[o]tion's wages and benefits." Iron Workers
Local 386 (Warshawsky & Co.), 325 N.L.R.B. No. 141 (May
14, 1998) at 4-5. The Board subsequently adopted the opin-
ion of the ALJ, with Chairman Gould writing a concurring
opinion. The majority opinion today reverses the Board and
insists that it lacked "substantial evidence" for its conclusion
that a violation of section 8(b)(4) had not been proven. I
dissent from that holding on two basic grounds.
First, in order to reach its result, the majority creates new
constitutional law restricting the scope and protection of the
First Amendment. In taking the ALJ to task for considering
the First Amendment in his analysis of whether the Union
violated section 8(b)(4), the majority opines that "the First
Amendment does not protect communications directed at--
and only at-- ... neutral employees...." Majority opinion
("Maj. op.") at 7. This novel proposition, I believe, is simply
wrong.
In his opinion, the ALJ correctly noted that in order to
establish a violation of section 8(b)(4)(i)(B) and (ii)(B), the
General Counsel had to prove by a preponderance of the
evidence both that the Union induced or encouraged individu-
als employed by the Company to engage in a work stoppage
and that the Union had the object thereby of forcing the
Company to cease dealing with Automotion. The ALJ was
guided in his attempt to discern the intent and motive of the
Union by the Supreme Court's decision in Edward J. DeBar-
tolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades
Council, 485 U.S. 568 (1988) (DeBartolo II).
DeBartolo II is a case where the Supreme Court, under the
canon of constitutional avoidance, construed section 8(b)(4) as
not prohibiting the distribution of handbills to consumers
"press[ing] the benefits of unionism to the community and the
dangers of inadequate wages to the economy and the stan-
dard of living of the populace."2 Id. at 576. In so holding,
the Supreme Court emphasized the difference, constitutional-
ly speaking, between pickets and handbills, the former consti-
tuting a mixture of conduct and communication and the latter
constituting pure expressive speech:
[P]icketing is a "mixture of conduct and communication"
and the conduct element "often provides the most per-
suasive deterrent to third persons about to enter a
business establishment." Handbills containing the same
message ... are "much less effective than labor picket-
ing" because they "depend entirely on the persuasive
force of the idea."
Id. at 580 (quoting NLRB v. Retail Store Employees (Safeco),
447 U.S. 607, 619 (1980) (Stevens, J., concurring)). In reach-
ing its decision in DeBartolo II, the Court defined the so-
called "publicity proviso" to section 8(b)(4) as constituting a
clarification of section 8(b)(4). The publicity proviso provides,
inter alia, that section 8(b)(4) did not prohibit "publicity,
other than picketing, for the purpose of truthfully advising
the public, including consumers and members of a labor
organization, that a product or products are produced by an
employer with whom the labor organization has a primary
dispute and are distributed by another employer." 29 U.S.C.
s 158(b)(4) (1994). The handbills in DeBartolo II did not fall
__________
2 The handbills in DeBartolo II were distributed to patrons of a
mall in order to protest the alleged substandard wages paid by a
company hired by the mall owner to construct a department store
there.
specifically under the publicity proviso; however, the Su-
preme Court, in interpreting the proviso as a clarification of,
rather than an exception to, section 8(b)(4), found that other
forms of handbilling (i.e., in addition to those that fall within
the terms of the proviso) would not necessarily be prohibited
under section 8(b)(4).
Like the handbills in DeBartolo II, the handbills in the
instant case were not covered by the publicity proviso.3 And
while the handbills in DeBartolo II were distributed to con-
sumers at a shopping mall, the ALJ nevertheless found the
reasoning of DeBartolo II to be "important to the resolution
of the instant case":
[T]he fact that the [Supreme Court found the publicity]
proviso [to be] an express "clarification," rather than an
exception, is some indication that Congress contemplated
other, unstated, clarifications which would inform resolu-
tion of issues arising under Section 8(b)(4) of the Act's
stated prohibitions. Second, such unstated clarifications
arise in the context of the publicity proviso's ... defini-
__________
3 The handbilling in this case did not fall under the publicity
proviso because, on its face, the proviso deals only with handbilling
that does not result in a work stoppage. Additionally, the ALJ
found that the handbilling here did not fall under the publicity
proviso because the handbills did not advise the public that the
Company was distributing Automotion's products. The full text of
the proviso is, as follows:
[Nothing in section 8(b)(4)] shall be construed to prohibit
publicity, other than picketing, for the purpose of truthfully
advising the public, including consumers and members of a
labor organization, that a product or products are produced by
an employer with whom the labor organization has a primary
dispute and are distributed by another employer, as long as
such publicity does not have an effect of inducing any individual
employed by any person other than the primary employer in
the course of his employment to refuse to pick up, deliver, or
transport any goods, or not to perform any services, at the
establishment of the employer engaged in such distribution.
29 U.S.C. s 158(b)(4) (1994).
tion of "the public" which embraces both "consumers and
members of a labor organization[.]" Inasmuch as the
proviso serves as a clarification, rather than an exception,
the reach of the prohibition which it interprets, explains,
and clarifies must, of necessity, take into account publici-
ty of disputes which is directed to members of labor
organizations, without too readily concluding that such
publicity constitutes unlawful inducement or encourage-
ment.
Warshawsky & Co., 325 N.L.R.B. No. 141, at 6 (emphasis
added).
Of course, as the ALJ acknowledged, handbilling does not
enjoy unfettered exemption under section 8(b)(4), in that
"[e]specially in the context of common situs situations, labor
organizations must make reasonable efforts to minimize the
impact of their messages on neutral employers and their
employees." Id. at 7. However, he continued, this does not
mean that "those labor organizations [in the context of a
common situs] are ... required to abandon altogether com-
munication of their messages." Id. Citing again to DeBarto-
lo II, the ALJ noted the following:
[T]he Supreme Court recognized the constitutional and
statutory protection extended to handbill messages pro-
testing failures to satisfy area wage and fringe benefit
standards--those which "press[ ] the benefits of unionism
to the community and the dangers of inadequate wages
to the economy and the standard of living of the popu-
lace." [DeBartolo II,] 485 U.S. at 576. Therefore, when
evaluating the lawfulness of [handbill] messages, even
when disseminated to members of a labor organization at
a common situs, analysis must proceed with care.
Id. The ALJ's point was that the Supreme Court has
recognized the constitutional and statutory protection of
handbills, like those in the instant case, which press the
benefits of unionism and the dangers of inadequate wages to
the community. The Supreme Court also defined the publici-
ty proviso as a clarification, an explanation, of section 8(b)(4).
The publicity proviso in turn defines the public as including
members of labor organizations. Accordingly, the analysis of
whether a union has violated section 8(b)(4) as a result of
communicating via handbills with members of other labor
organizations must proceed with some care. In other words,
one ought not too easily assume that a union has an illegal
intent or motive when handbilling neutral employees; a union
has a First Amendment right, even if not an unfettered right,
to express its ideas to all members of the public.
Surprisingly, the majority seems to be saying that the First
Amendment is not implicated at all when a union communi-
cates solely with neutral employees. There is no support for
this belief. The majority jumps from the Supreme Court's
holding that the prohibition under section 8(b)(4) of the
inducement or encouragement of a secondary work stoppage
does not constitute an unconstitutional abridgement of free
speech, see International Bhd. of Elec. Workers v. NLRB,
341 U.S. 694, 705 (1951), to its conclusion that any kind of
union speech directed to neutral employees carries no First
Amendment protection. This, in my view, puts the cart
before the horse. It is of course true that if the General
Counsel had actually proven that a union induced and encour-
aged employees of a neutral employer to engage in a work
stoppage with the object of forcing a neutral employer to
cease dealing with the primary, then that union could not
complain that its First Amendment rights had been violated.
But it does not follow from this proposition that no communi-
cation to neutral employees is protected speech or, as the
majority implies, that the ALJ erred in interpreting "induce"
or "encourage" narrowly in order to avoid First Amendment
concerns. See Maj. op. at 6 ("[The ALJ] presumably thought
that ... the constitutional avoidance canon suggests that the
words 'induce or encourage' in s 8(b)(4) should be interpret-
ed, and applied, narrowly so as not to proscribe the handbill-
ing involved in this case. We think the First Amendment is
not at all implicated....").
The majority places great reliance, in this regard, on its
ability to distinguish the facts of DeBartolo II from those
here. Again, without any affirmative support that I can find,
the majority thinks it adequate to point out that DeBartolo II
involved handbills directed to consumers as opposed to the
handbills here, directed to neutral employees. It reasons
that when a union handbills consumers and they subsequently
refuse to patronize a neutral employer, these consumers are
following a wholly legal course of action, namely, withholding
their buying power. In contrast, it argues, when a union
handbills neutral employees, the only course of action open to
these employees is illegal to them under section 8(b)(4); that
is, neutral employees, when informed through a handbill that
a primary employer pays substandard wages, can only re-
spond sympathetically by engaging in an illegal work stop-
page.4 This single-option assumption is, however, mistaken.
Members of labor organizations--even employees of neu-
trals--are people too. They also consume. They also may be
potential future joint venturers with or employees of the
offending company. They certainly are members of their
communities with an interest in knowing which employers in
the area pay substandard wages. The majority assumes that
any time a union expresses its ideas to neutral employees,
that union has an illegal intent under section 8(b)(4) and the
neutral employees can only "contribute to the cause" by
engaging in an illegal work stoppage under section 8(b)(4), an
assumption without support in this record or in ordinary
experience and without which, the distinction the majority
attempts to draw between DeBartolo II and the instant case
simply dissolves. In my view, the ALJ was completely
justified in construing section 8(b)(4) narrowly and in assess-
ing the situation with appropriate concern for the First
Amendment rights of union members.
My second ground for dissenting is that I believe the
majority errs in concluding that the stipulated record reason-
ably compels the conclusion that the Union had an illegal
intent and motive under section 8(b)(4). It is settled law that
the burden of proof is on the General Counsel to prove each
and every element of a section 8(b)(4) violation, see Local
__________
4 Indeed, the majority says, being "informed [of the message on
the handbill] there is only one possible action [neutral employees]
can take that will contribute to the cause." Maj. op. at 11.
Union No. 501, Int'l Bhd. of Elec. Workers v. NLRB, 756
F.2d 888, 898 n.8 (D.C. Cir. 1985) ("The general counsel and
the charging party bear the burden of proving a secondary
boycott violation ..."), and that courts owe substantial defer-
ence to the findings of the Board, see Laro Maintenance
Corp. v. NLRB, 56 F.3d 224, 228 (D.C. Cir. 1995) ("The
court's review of the Board's factual conclusions is highly
deferential ...").5 The majority nevertheless reverses the
Board for failing to draw all inferences from purely circum-
stantial evidence in favor of the party with the burden of
proof. This result is quite unprecedented; it is akin to
reversing a jury verdict in a civil case because the jury, based
on purely circumstantial evidence, declined to find in favor of
the plaintiff. In reality, this case is quite simple: the Compa-
ny (and the General Counsel) made a fatal strategic error in
waiving a hearing before the ALJ and in agreeing to be
bound by a stipulated record that did not sufficiently support
(let alone compel) the conclusion that the Union violated
section 8(b)(4).
To begin with, the majority unfairly wrests more (negative)
substance from the stipulation of facts than is actually there.
In truth, the stipulation is quite spare. The stipulation
contains a copy of the handbill given to the construction
__________
5 The deference owed to the Board's findings is even greater
where, as here, the critical question involves the intent and motive
of the Union. As we have repeatedly warned:
The court's review of the Board's determination with respect to
motive is even more deferential [than the court's review of
Board findings more generally]. Motive is a question of fact
that may be inferred from direct or circumstantial evidence.
In most cases only circumstantial evidence of motive is likely to
be available. Drawing such inferences from the evidence to
assess an employer's [or union's] ... motive invokes the exper-
tise of the Board, and consequently, the court gives "substan-
tial deference to inferences the Board has drawn from the
facts," including inferences of impermissible motive.
Laro Maintenance Corp., 56 F.3d at 229 (quoting Gold Coast
Restaurant Corp. v. NLRB, 995 F.2d 257, 263 (D.C. Cir. 1993))
(citations omitted).
employees. The handbill mentions nothing about the neutral
employer (i.e., does not say that the Company had engaged in
any wrongdoing by hiring Automotion) and, instead, contains
a specific proviso stating that the Union was engaged in a
labor dispute with Automotion (again, not the neutral employ-
er) and that the Union was "not seeking any person to cease
work or to stop making deliveries." Second, the stipulation
states that "various" agents of the Union "were stationed at
certain locations along Murphy Road ... a road used primari-
ly by individuals going to and from the La Salle facility
construction project." From this stipulation, we know only
that Union agents (number unknown) were stationed along a
road used primarily (but not exclusively) by individuals enter-
ing the construction project. The stipulation also states that
the agents gave copies of the handbill to the individuals
entering the construction project and "briefly spoke with"
these individuals. From this, we know only that the agents
spoke with the employees, but we have no evidence whatsoev-
er of the content of the conversations, nor do we know how
long these conversations were; "briefly" could mean five
seconds, merely enough time to say, "We are members of the
Iron Workers Local 386, please read this handbill," or five
minutes, enough time to request that the employees not
engage in a work stoppage, to request that the employees
engage in a work stoppage, or, indeed, to talk about the Cubs.
Finally, the stipulation states only that "the individuals" (on
the first day) and then "various individuals" (on the subse-
quent days) refused to enter the construction project and
perform work for their respective employers. We know from
this only that more than one employee refused to work, but
we do not know whether the number amounted to 10 out of
50; 50 out of 100; or 200 out of 200. The exact number and
ratio of employees who refused to work would certainly shed
a great deal of light on what one ought infer from the other
facts of the case, but, alas, we have no access to that
information on this record.
The majority speaks about the need to draw "reasonable"
inferences, see Maj. op. at 10, but then proceeds to draw
every possible inference against the Union. For example,
with respect to the handbill itself, the majority finds that the
legal disclaimer on the handbill is of no evidentiary moment
because "that caveat is contained in only very small print at
the bottom of the handbill." Maj. op. at 10. In contrast, the
ALJ found the disclaimer to constitute some "evidence that
'[the Union] effectively took steps to neutralize [any] implied
inducement or encouragement of employees' of other employ-
ers." Warshawsky & Co., 325 N.L.R.B. No. 141, at 9 (quot-
ing Service & Maintenance Employees Union No. 399 (The
William J. Burns Int'l Detective Agency) 136 N.L.R.B. 431,
437 (1962)). The ALJ's inference with respect to the dis-
claimer is, at the very least, reasonable. The disclaimer is
perfectly readable and although all boilerplate language is
somewhat legalistic, that does not mean that it is without any
effect.6
__________
6 The cases which the majority cites for discounting the existence
of the disclaimer are clearly distinguishable. In National Ass'n of
Broad. Employees, Local 31, 237 N.L.R.B. 1370 (1978), the Board
simply found that the existence of a legal disclaimer on a handbill
did not override the otherwise clear indication that the handbilling
involved there was an integral part and extension of picketing being
conducted simultaneously by the same union. Catalytic, Inc. v.
Monmouth & Ocean County Building Trades Council, 829 F.2d 430
(3d Cir. 1987), is not even a Board case; it is a review of a district
court injunction against a labor union. Moreover, counsel for the
union in that case admitted at oral argument that the union
handbilling constituted a "signal." Finally, the court of appeals'
finding that the disclaimer on the flyer constituted a "signal" was
preceded immediately by the statement that the union's argument
against the findings of the district court "ignore[d] the wide latitude
open to triers of fact to make factual determinations on the basis of
rational inferences which arise from the nature, location, and effect
of picketing." Id. at 436 (quoting American Radio Ass'n, AFL-
CIO v. Mobile Steamship Ass'n, Inc., 419 U.S. 215, 232 (1974)). Of
course, the trier of fact in the instant case made the opposite factual
determination, that the disclaimer constituted credible evidence
against an illegal intent under section 8(b)(4). Finally, in Interna-
tional Bhd. of Elec. Workers, Local 453 (Southern Sun Elec. Corp.),
252 N.L.R.B. 719 (1980), the Board simply noted that a self-serving
disclaimer that picketing was for a recognitional purpose was not
The majority also infers that because the Union handbilled
only neutral employees, it must have had an illegal intent
thereby. But the ALJ's inference from this same fact is
equally compelling, or, again, at least reasonable. The Com-
pany chose to segregate Automotion employees from the
construction employees; by scheduling Automotion employ-
ees at odd hours, the Company made it impossible for the
Union to communicate its message to both Automotion and
construction employees at the same time. The ALJ found
that because the Automotion employees were presumably
already aware that their wages were below area standards,
nothing was to be gained by the Union in reinforcing this
knowledge. On the other hand, the construction employees
were less likely to have been aware that Automotion's wages
were below area standards. The ALJ determined that the
Union had a legitimate (non-illegal) interest in informing the
construction employees of Automotion's substandard wages
and that it was not required to republish this fact to Automo-
tion employees simply to avoid the appearance of an improper
motive under section 8(b)(4).
The majority's final inference of intent to induce is drawn
from the fact that a conversation between Union agents and
employees took place and that some kind of a work stoppage
ensued. But what the majority infers from that sequence
paints too bleak a picture for the Union. The majority
conveniently ducks the question of how many of the neutral
employees, in response to the handbill and the words spoken
by Union agents, turned around and went home on the days
that the Union handbilled. See Maj. op. at 3-4. If in fact we
knew that all, virtually all, or even a substantial number of
the employees spoken to refused to work each day, then,
perhaps, the majority's inference that the work stoppage was
due to the Union's words might be justified. However, we do
not know from the record how many employees in fact turned
__________
determinative of the union's object in picketing. This unremarkable
proposition does not mean that legal disclaimers have no evidentia-
ry weight at all, it simply means that the mere existence of such a
disclaimer does not necessarily win the day for the union.
around and went home. More specifically, we do not even
know the ratio of employees who went home to employees
who stayed and went to work. The stipulation tells us
nothing and the ALJ only found that a preponderance of the
evidence failed to "establish that the failure of some of those
employees to report for work ... had been other than a
spontaneous reaction by those employees to the [Union's]
lawful actions...." Warshawsky & Co., 325 N.L.R.B. No.
141, at 4-5 (emphasis added). The majority has to assume
something totally absent from the record, namely, that all,
virtually all, or at least a substantial number of the employ-
ees, refused to work, in order to infer from that that "any
'non-inducement' words would be inconsistent with the set-
ting, and to suppose the union agents uttered them would be
sheer speculation."7 Maj. op. at 13. Absent this first as-
sumption that the conversations and handbills affected more
employees than not, to guess at the contents of these brief
car-side conversations is sheer speculation. It is not unfath-
omable, for example, that the Union agents merely recon-
veyed orally the gist of the handbill they were distributing.
Clearly, had a hearing been held, testimony as to the content
of the conversations could have been elicited. Without such
__________
7 The majority cites again to Catalytic for the proposition that the
"simple cause-and-effect of the appearance of leafletters and work
stoppages eloquently testified to the purpose of the enterprise."
829 F.2d at 435. Again, Catalytic is not a Board case. It is a case
where the court affirmed the findings of the district court, after
trial, that a union had violated section 8(b)(4) and that an injunction
was proper. The court in Catalytic rejected the union's arguments
against the findings of the district court because they "ignore[d] the
wide latitude open to triers of fact to make factual determinations
on the basis of rational inferences which arise from the nature,
location, and effect of picketing." Id. at 436 (quoting American
Radio Ass'n, AFL-CIO v. Mobile Steamship Ass'n, Inc., 419 U.S.
215, 232 (1974)). In any event, it is decidedly not the law that the
effect of a work stoppage requires the conclusion of a section 8(b)(4)
violation. To be sure, a work stoppage may constitute evidence of
inducement, and the ALJ never said otherwise, but a work stoppage
alone is not sufficient proof thereof. See Teamsters, Local Union
No. 688 (Levitz Furniture Co.), 205 N.L.R.B. 1131 (1973).
testimony, it is the General Counsel's burden to prove the
Union's speech fell on the inducement side, not the Union's
burden to prove it did not.8
In the end, the majority's decision requires an acceptance
of the proposition that the evidence here, entirely circumstan-
tial, is so overwhelming against the Union that it brooks of
only one conclusion, a conclusion that is at odds with the
judgment of both the ALJ and the unanimous Board and one
which must be reached in the face of accepted legal principles
that the General Counsel bears the burden of proof and that
courts owe substantial deference to the Board's findings.
Ultimately, Chairman Gould's concurrence said it right:
[T]he Respondent's conduct here, although arguably con-
sistent with an attempt to induce a work stoppage,
ultimately lacks a sufficient basis to support such a
finding [of a section 8(b)(4) violation]. The "nod, wink,
and a smile" theory cannot prevail in these circumstances
where the handbill explicitly stated that the Respondent
was not seeking a work stoppage, and where the record
fails to show what the Respondent said to the employees
as they approached the jobsite and received the hand-
bills. In the final analysis, a finding of a violation must
__________
8 The majority attempts to shift this burden to the Union by
citing a string of cases, see Maj. op. at 13, which stand for the
proposition that when a party who has relevant information in her
control fails to produce that evidence, that failure may give rise to
an inference that the evidence is unfavorable to her, see, e.g.,
International Union, United Automobile, Aerospace & Agric. Im-
plement Workers of Am. v. NLRB, 459 F.2d 1329, 1335-42 (D.C.
Cir. 1972). It is true that had a hearing been held, and the Union
had refused to call its agents to testify (or its agents refused to
testify) as to the contents of the conversations, then the ALJ might
have been justified in drawing an inference that the missing testi-
mony would have been damaging to the Union. Here, however,
there was no hearing and no such phantom testimony. The Union
did not fail to provide evidence in its control; it merely agreed,
jointly with the Company, to a stipulation of facts. There is
absolutely no justification for drawing an inference against the
Union merely because it agreed to a joint stipulation of facts.
be based on something more than the mere fact that the
employees ceased work in response to the Respondent's
conduct.
Warshawsky & Co., 325 N.L.R.B. No. 141, at 2.
I respectfully dissent.