The opinion
BARNES, Circuit Judge
(concurring in part and dissenting in part):
I agree with the majority opinion except in one respect, wherein it agrees with the Board majority that the wording of the signs and handbills of Local 770 adequately satisfied the “truth” requirement of § 8(b) (7) (C). I do not believe that the Board could conclude from the record that the “purpose” of Local 770 was of “truthfully advising the public.”
The Board majority claimed:
“[Tjhere is absolutely no evidence to indicate that the failure to draft the picket language in more limited terms was based upon an intent to deceive the public.” 138 N.L.R.B. 478 , 486, n. 15.
However, the union was required to change the wording in its newspaper advertising layout in order to obtain newspaper space. Thereafter, it did not change the wording of its signs and handbills. The union’s unwillingness to change the wording of its signs and handbills after this occurrence readily leads me to conclude that the union did intend to deceive the public. This is a purpose other than that required in § 8(b) (7) (C).
The Board argued:
“It is unreasonable to expect that, as suggested by our dissenting colleagues, a union involved in a recognitional and bargaining dispute with an employer and concerned with its own problems should be required to assume the burden of informing the public that the employer may or does have a contract or contracts with other unions.” 138 N.L.R.B. 478 , 486, n. 15.
*438 Such a burden does not seem unreasonable to me. I think that was what the Congress intended. The statute imposes the burden of giving only truthful advice. The union could easily avoid the problem by wording its signs and handbills as Local 324 did. It is not too much, to my mind, to burden the union with stating the truth; no more, and no less, rather than a half-truth where, as here, it knows that the employer has union contracts with other unions. I agree with the following comment of the Board minority:
“If the statutory requirement that the publicity must be truthful is to have any meaning, Respondents must be the insurer of accuracy to the extent that they know the facts.” 138 N.L.R.B. 494 , n. 45.
The majority opinion here accurately observes that the phrase “non-union” is a form of shorthand statement that has long been used by union pickets. Yet, that observation does not meet the issue here, which is the effect on picketing of this new legislation. One purpose was, I believe, to insure accurate “shorthand.”
The majority here believes, and the Board majority opinion implies, that the language of the signs and handbills would indicate to the average man that the store was non-union only as to retail clerks. I would not say this is an unreasonable conclusion (even though I would not make it), where, as here, the union name with a reference to “retail clerks” appears at the bottom of the signs and handbills. However, I do not see why it is any less reasonable to conclude that a substantial number of persons, even a substantial minority of non-union members, would consider the words “nonunion” to mean that the employer had no union contracts whatsoever. If it is foreseeable to the union that a substantial number of persons would be deceived, I believe the requirement of “truthfully advising the public” is not satisfied. The union’s purpose here was more than to truthfully advise. It was to intentionally hope that at least a substantial minority of the public would be deceived. There might, and probably would, always be someone who would be deceived, so de minimis possibilities of deception should not require a conclusion that the union’s purpose was other than to truthfully advise the public. But if, as here, it is probable that a substantial number of persons would be deceived, and if the union knows this yet does nothing to change the wording of its signs and handbills, I believe we must conclude that the union’s purpose was one other than of “truthfully advising the public.”
If such a conclusion were reached, the question of an appropriate remedy would then arise. However, since the majority here need not reach that issue, I do not.