Appendix — Ironworkers Local 386 v. Warshawsky & Co.

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

APPENDIX A — OPINION OF THE

ITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

FILED JULY 9, 1999

WARSHAWSKY & COMPANY, PETITIONER v.

NATIONAL LABOR RELATIONS

BOARD, RESPONDENT; IRONWORKERS

LOCAL 386, INTERVENOR

No. 98-1277

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

CIRCUIT

182 F.3d 948; 1999 U.S. App. LEXIS 15135: 161

L.R.R.M. 2772:

138 Lab. Cas. (CCH) P10,491

July 9, 1999, Decided

PRIOR HISTORY: [**1] On Petition for Review of an

Order of the National Labor Relations Board.

CORE TERMS: handbill, handbilling, work stoppage,

proviso, conversation, picketing, publicity, site, wage,

inducement, disclaimer, consumer, secondary, distributed,

induce, evidentiary, motive, mall, subcontractors,

construction site, general counsel, clarification, message,

labor organization, cease work, circumstantial evidence,

labor dispute, induced, boycott, picket

COUNSEL: 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.

JUDGES: Before: WALD, SILBERMAN, and

HENDERSON, Circuit Judges. Opinion for the Court

filed by Circuit Judge SILBERMAN. Dissenting Opinion

filed by Circuit Judge WALD.

OPINIONBY: SILBERMAN

OPINION: [*949] SILBERMAN, Circuit Judge:

Warshawsky & Company petitions 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.

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 [**2] & Sons, Inc. as its general

contractor for the project. Johnson in turn subcontracted

with various other companies, all of whom maintained

collective bargaining contracts 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

systems 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 conducted

only when Automotion was working on the site: Monday

through Friday from 4 p.m. to 6 a.m., and all {**3] 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 subcontractors approached the construction site in

their automobiles, the union [*950] agents distributed

the following handbill: n1

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 [**4] said.

nl 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.

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 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 working at the site.

The General Counsel, responding to an unfair labor

practice charge filed by Warshawsky, issued a complaint

alleging that the union's conduct violated § 8(b)(4)(i)(B)

and (ii)(B) of the National Labor Relations Act. n2 The

union's answer admitted that its agents handbilled and

spoke to employees of Johnson and its subcontractors, but

characterized that conduct as a "lawful informational

[**5] picket." The parties subsequently 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 Warshawsky but not

the General Counsel [*951] opposed, to substitute the

word "handbilling"” for "picket." n3

n2 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 industry affecting commerce to

engage in, a strike or a refusal in the course of his

employment 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 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. § 158(b)(4)(i)(B), (ii)(B) (1994) (emphasis

added).

[**6]

n3 Warshawsky argues that the ALJ erred in granting

the motion because the last-minute change from

"picket" to "handbilling" preyudiced Warshawsky, and

that even if the motion were properly granted, the ALJ

erroneously failed to consider the original answer as

evidence that the union's conduct constituted picketing.

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.

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 expressive” activity and is therefore

entitled to some measure of First Amendment protection.

Although he described the [**7] 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

——————————ee

connection between the handbilling and the work

stoppage was insufficient 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 /ron

Workers 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 employees to engage in a work

stoppage." He noted particularly the timing of the

handbilling when the only recipients would be 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 [**8] <&

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, together 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.

Il.

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. n4 He presumably 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 constitutional

avoidance canon suggests that the words "induce or

encourage" in [*952] § 8(b)(4)(i) should be interpreted,

and applied, narrowly so as [**9] 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.

n4 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-Ei v. Britton, 320

U.S. App. D.C. 150, 93 F.3d 813, 818 (D.C. Cir. 1996)

(en banc) ("The distinction between direct and

circumstantial evidence has no direct correlation with

the strength of the plaintiff's case."), rev'd on other

grounds, 523 U.S. 574, 118 S. Ct. 1584, 1595, 140 L.

Ed. 2d 759 (1998).

The Supreme Court has emphatically said that "the

prohibition of inducement or encouragement of secondary

pressure by § 8(b)(4)[i] carries no unconstitutional

abridgment of free speech," [**10] Jnternational

Brotherhood of Elec. Workers, Local 501 v. NLRB, 341

U.S. 694, 705, 95 L. Ed. 1299, 71 S. Ct. 954 (1951). And

in Electrical Workers, the Court also recognized that "the

words induce or encourage are broad enough to include in

them every form of influence and persuasion." Jd. at 701-

02 (emphasis added). It follows that the First Amendment

does not protect communications directed at--and only at-

-the neutral employees merely because the form of

communications is handbilling and conversations. n5

Indeed, the Board's brief concedes that a violation of the

Act would have been established “if the handbilling had

[explicitly] requested neutral employees to cease work, or

if the record showed that the union had orally induced or

encouraged such a work stoppage...."

n5 The dissent, post at 3, misconstrues this rather

unexceptionable statement.

The Board (both the ALJ and the Board's brief) relies

heavily on the Supreme Court's decision in Edward J.

DeBartolo Corp. v. Florida Gulf Coast [**11] Building

& Construction Trades Council, 485 U.S. 568, 99 L. Ed

2d 645, 108 S. Ct. 1392 (1988), in which the Court did

pivot on the First Amendment--using the canon of

constitutional avoidance--to construe the secondary

boycott provisions of the Act not to reach peaceful

handbilling directed to consumers at a shepping 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

§ 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 § 8(b)(4)(ii)(B) to

reach such consumer directed handbilling in 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 [**12] 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 patronize the retailers doing

business in the mall." Jd. 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 §

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 § 8(b)(4)(i). See 29 USC. §

158(b)(4)(iB) (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 business 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

[**13] not raise any constitutional problems.

[*953] 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 § 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. § 158(b\(4) (1994). The Board in DeBartolo

had argued the proviso was an exception to the secondary

I i i eg a ee cn a

a 7

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

[**14] 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 reasons--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. § 158(b)(4) (emphasis

added), and reasoned that handbilling appeals to union

members are entitled to the same constitutional protection

as those directed 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.

n6 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 [**15] to engage in an

unlawful secondary strike.

n6 The ALJ thought the same holds true (as in this

case) for a union's handbilling of members of a

different labor organization.

** * &

We come then to the Board's finding that the union did

not "induce" the neutral employees to stop work.

Petitioner argues that the Board's finding is not supported

by substantial evidence, which is another way of saying

that no reasonable factfinder could have made such a

finding. See Allentown Mack Sales & Serv. v. NLRB, 522

U.S. 359, 118 S. Ct. 818, 822, 139 L. Ed. 2d 797 (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

118 S. Ct. 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 "when the

Board purports to be engaged in simple factfinding,

unconstrained by substantive presumptions or evidentiary

rules of exclusion, [**16] 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

inference 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 [*954]

between the union agents and the neutral employees, and

the subsequent response of those employees all combine

to paint only one plausible picture. The ALJ unreasonably

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

specifically 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 circumstances suggesting that

the disclaimer [**17] 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

disclaimer at bottom of handbill was a "self-serving

disavowal" given the manner in which the handbill was

distributed), enforced, 63] F.2d 944 (D.C. Cir. ] 980);

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 [**18] 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 products 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 USC. § 158(b)(4) (emphasis

added). That the proviso does not afford a defense in this

case n7 has no bearing on whether this generic type of

handbilling is at least evidence of inducement.

n7 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").

[**19]

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 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 "there is no basis in the

stipulation that would allow even an inference that

handbills had been actually distributed to anyone else."

Warshawsky, 325 N.L.R.B. No. 14], at 6 (emphasis

added). Inexplicably, the ALJ later drew precisely

[*955] that forbidden inference, remarking that nothing

in the evidence ruled out the possibility that the union

handbilled non-employees who may have tried to enter

the constiuction site (a mystery food vendor or some

construction-site tourists?). See id. at 9. Based on the

ALJ's own initial finding, which seems unassailable, we

do not see how his latter inference can possibly be [**20]

justified.

WANS AES,

Sue Bah ins -

ENTS RLS PONE LENE OS RA LS

eee

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 relevance--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

induced 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)

(enforcing 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 [**21] 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

specifically told the neutral employees that each

employee's decision 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 [**22] 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.

8], 84 (1987); Local 3, Int'l Brotherhood of Elec.

Workers (Hunts Point Elec. Wiring Serv., Inc.), 27]

N.L.R.B. 1580, 1585 & n.6, 1586 (1984); see also

International Union, United Auto., Aerospace & Agric.

Implement Workers of Am. v. NLRB, 148 U.S. App. D.C.

305, 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 "“noninducement” 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.

{*956] We come [**23] 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 NLRB. 1131, 1132-33 (1973);

Tampa Sand, 132 N.L.R.B. at 1568; cf. United Scenic

Artists, Local 829 v. NLRB, 246 U.S. App. D.C. 48, 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

evidentiary 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 /nternational

Ass'n of Bridge, Structural & Ornamental Iron Workers,

Local No. 433 (R.F. Erection), 233 N.L.R.B. 283, [**24]

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

elcquently 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 NLRB. 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). n8 We think the Board's approach in 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.

n8 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 9/7, International

Brotherhood of Teamsters (Industry City Assocs.), 307

N.L.R.B. 1419, 1419 n.3 (1992) (citing Hospital &

Serv. Employees Union, Local 399 (Delta Air Lines,

Inc.), 293 N.L.R.B. 602, 603 (1989)).

[**25]

We suppose it is possible to infer that the neutral

employees "spontaneously" walked off the job after

receiving the handbills and talking with the union agents.

The real question is whether it is a reasonable inference to

draw. 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 standing 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 Camera

Corp. v. NLRB, 340 U.S. 474, 487-88, 95 L. Ed. 456, 71

S. Ct. 456 (1951).

se * *

We have no difficulty, reviewing the whole record, in

concluding the Board's finding is defective; it lacks

substantial evidence.

n9 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.

[**26}

[*957] APPENDIX

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.

DISSENTBY: WALD

DISSENT: [*958] 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 [**27] violation of federal labor

law, nl and sets forth new constitutional law restricting

the reach and protection of the First Amendment.

nl 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 concluding that a

union has violated federal labor law. See NLRB v.

Ironworkers Local 433, 850 F.2d S551, 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.").

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 various unions representing

[**28] employees working on the construction 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 systems at the construction site. Shortly

thereafter, Ironworkers Local 386 ("Union"), which had

no labor dispute with either the general contractor or any

of the subcontractors, engaged in area standards picketing

against Automotion. The Union discontinued _ this

picketing after being informed that Automotion was not

yet working on the site. Subsequently, 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 Automotion

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

[**29] 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 employees (number

unknown, see below) refused to enter the construction 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 (iiB) 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.

{*959] Before the Administrative Law Judge ("ALJ"),

the [**30] 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 stipulation 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 entering

the site and that the agents "briefly spoke" with these

individuals. Finally, the stipulation provided that "the

individuals". 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

[**31] facts about Automotion'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 opinion 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

individuals employed [**32] 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. DeBartolo Corp.

v. Florida Gulf Coast Bldg. and Constr. Trades Council,

485 U.S. 568, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (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 "pressing the benefits of unionism to the

community and the dangers of inadequate wages to the

economy and the standard of living of the populace." n2

Id. at 576. In so holding, the Supreme Court emphasized

the difference, constitutionally speaking, between pickets

and handbills, the former constituting a mixture of

conduct and communication and the latter constituting

pure expressive speech:

Picketing is a "mixture of conduct and communication"

and the conduct element "often provides the most

persuasive deterrent to third persons about to enter a

business establishment." Handbills [**33] containing

the same message ... are "much less effective than labor

picketing" [*960] 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, 65 L. Ed. 2d 377, 100 S. Ct.

2372 (1980) (Stevens, J., concurring)). In reaching its

decision in DeBartolo II, the Court defined the socalled

"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. § 158(b)(4)

(1994). The handbilis in DeBartclo II did not fall

specifically under the publicity proviso; however, the

Supreme 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 [**34] of the

proviso) would not necessarily be prohibited under

section 8(b)(4).

n2 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.

Like the handbills in DeBartolo II, the handbills in the

instant case were not covered by the publicity proviso. n3

And while the handbills in DeBartolo II were distributed

to consumers at a shopping mall, the ALJ nevertheless

found the reasoning of DeBartolo II to be "important to

the resolution of the instant case":

The 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

resolution 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

.- definition [**35] 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 publicity of disputes which is directed to

members of labor organizations, without too readily

concluding that such publicity constitutes unlawful

inducement or encouragement.

Warshawsky & Co., 325 NLRB. No. 141, at 6

(emphasis added).

n3 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. § 158(b)(4) (1994).

[**36]

Of course, as the ALJ acknowledged, handbilling does

not enjoy unfettered exemption under section 8(b)(4), in

that "especially 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 communication of their

messages." Id. Citing again to DeBartolo II, the ALJ

noted the following:

[*961]

The Supreme Court recognized the constitutional and

statutory protection extended to handbill messages

protesting 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 populace."

[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 [**37] — 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 publicity 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

communicates 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 [**38] abridgement of free speech, see

International Bhd. of Elec. Workers v. NLRB, 341 US

694, 705, 95 L. Ed. 1299, 71 S. Ct. 954 (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 encouraged 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 communication to

neutral employees is protected speech or, as the majority

impiies, 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 § 8(b)(4)

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...."). [**39]

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

respond sympathetically by engaging in an illegal work

[*962] stoppage. n4 This single-option assumption is,

however, mistaken. Members of labor organizations--

even employees of neutrals--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 [**40]

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 assessing the situation with appropriate

concern for the First Amendment rights of union

members.

n4 Indeed, the majority says, being "informed [of the

message on the handbiii] there is only one possible

action [neutral employees] can take that will contribute

to the cause." Maj. op. at 11.

My second ground for dissenting is that I believe the

majority errs in concluding that the [**41] stipulated

record reasonably 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 Union No. 501, Int'l Bhd of

Elec. Workers v. NLRB, 244 U.S. App. D.C. 179, 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

deference to the findings of the Board, see Laro

Maintenance Corp. v. NLRB, 312 U.S. App. D.C. 260, 56

F.3d 224, 228 (D.C. Cir. 1995) ("The court's review of

the Board's factual conclusions is highly deferential Ff 3

nS The majority nevertheless reverses the Board for

failing to draw all inferences from purely circumstantial

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

Company (and the General Counsel) made a fatal [**42]

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).

n5 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 expertise of the Board, and consequently, the court

gives "substaniial 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, 301 U.S. App.

D.C. 357, 995 F.2d 257, 263 (D.C. Cir. 1993))

(citations omitted).

[**43]

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 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 employer) and that the

Union was_ [*963] "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 primarily 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 entering 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" [**44]

these individuals. From this, we know only that the agents

spoke with the employees, but we have no evidence

whatsoever 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 subsequent 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" [**45] 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

employers." Warshawsky & Co., 325 N.L.R.B. No. 141, at

9 (quoting 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 disclaimer 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. n6

n6 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 sam ion.

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 "ignored 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." Jd at 436

(quoting American Radio Ass'n, AFL-CIO v. Mobile

Steamship Ass'n, Inc., 419 U.S. 215, 232, 42 L. Ed. 2d

399, 95 S. Ct. 409 (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 International 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 determinative of the union's object in

picketing. This unremarkable proposition does not

mean that legal disclaimers have no evidentiary weight

at all, it simply means that the mere existence of such a

disclaimer does not necessarily win the day for the

union.

i? *46]

[*964] 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 Company chose to segregate Automotion

employees from the construction employees; by

scheduling Automotion employees 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 Automotion 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 [**47] 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 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., [**48] 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

employees, refused to work, in order to infer from that

that "any 'non-inducement’ words would be inconsistent

with the setting, and to suppose the union agents uttered

them would be sheer speculation." n7 Maj. op. at 13.

Absent this first assumption [*965] 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 unfathomable,

for example, that the Union agents merely reconveyed

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 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. n&

n7 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

"ignored 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." Jd at 436 (quoting American

Radio Ass'n, AFL-CIO v. Mobile Steamship Ass'n, Inc.,

419 U.S. 215, 232, 42 L. Ed. 2d 399, 95 S. Ct. 409

(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).

ig *49]

n$ 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. Implement Workers of Am. v. NLRB, 148 U.S.

: App. D.C. 305, 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 testimony

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.

[**50]

In the end, the majority's decision requires an

acceptance of the proposition that the evidence here,

entirely circumstantial, 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:

The Respondent's conduct here, although arguably

consistent 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

ee ne

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 be

based on something more than the mere fact that the

employees ceased work in response to the Respondent's

[**51] conduct.

Warshawsky & Co., 325 N.L.R.B. No. 141, at 2.

I respectfully dissent

APPENDIX B — OPINION OF THE

NATIONAL LABOR RELATIONS BOARD

MAY 14, 1998

Iron Workers Local 386 and Warshawsky & Company

Case 33-CC-1202

NATIONAL LABOR RELATIONS BOARD

1998 NLRB LEXIS 287; 158 L.R.R.M. 1180; 1997-98

NLRB Dec.

(CCH) P16,500; 325 NLRB No. 141

May 14, 1998

CORE TERMS: handbill, picketing, handbilling,

subcontractors, message, site, wage, proviso, publicity,

picket, fringe benefits, inducement, labor organization,

distributed, signal, encouragement, secondary,

construction project, clarification, warehouse, induce,

mail order, industry affecting commerce, recipients,

inasmuch, general contractor, work stoppage, handbillers,

confined, coercion

PRIOR-HISTORY: [*1] Original ALJ-Decision can be

found at: 1997 NLRB LEXIS 433.

DECISION AND ORDER

By Sarah M. Fox, Member; Wilma B. Liebman, Member.

William B. Gould IV, Chairman, concurring.

COUNSEL: Debra L. Stefanik, for the General Counsel.

Terrance B. McGann (Whitfield & Gregorio), of

Chicago, Illinois, for the Respondent.

Michael W. Duffee and Tracy A. Peterson (Matkov,

Salzman, Madoff & Gunn), of Chicago, Illinois, for the

Charging Party.

NOTICE: This opinion is subject to formal revision

before publication in the Board volumes of NLRB

decisions. Readers are requested to notify the Executive

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.

OPINION:

On June 3, 1997, Administrative Law Judge William J.

Pannier III issued the attached decision. The General

Counsel and the Charging Party filed exceptions and

supporting briefs, and the Respondent filed an answering

brief.

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 exceptions and briefs and has decided [*2] to

affirm the judge's rulings, findings, and conclusions and

to adopt the recommended Order.

ORDER

The recommended Order of the administrative law

judge is adopted and the complaint is dismissed.

Dated, Washington, D.C. May 14, 1998

Sarah M. Fox, Member

Wilma B. Liebman, Member

CONCURBY : GOULD

CONCUR:

Chairman William B. Gould IV, concurring.

I agree with my colleagues’ finding that the Respondent,

Iron Workers Local 386, did not violate Section 8(b)(4)(i)

and (ii)(B) of the Act by handbilling the construction site.

I write separately, however, because I believe that the

instant facts present a close case and therefore warrant a

careful examination to determine the lawfulness of the

Respondent's conduct.

The facts are not in dispute. Warshawsky & Company

was constructing a warehouse and a mail order facility.

G.A. Johnson and Son, the general contractor for the

project, hired several subcontractors who main-rained

collective-bargaining agreements with various unions. In

addition, in March 1997, nl Warshawsky hired

Automation, Inc., a nonunion contractor, to perform

certain installation work at the project.

On March 12, Automation commenced working at the

construction project. The Respondent was informed that,

unlike the general contractor and the subcontractors who

worked at the construction site from 7 a.m. to 3:30 p.m.,

Automation would be working at the site from 4 p.m. to 6

a.m. From March 13 through 19, the Respondent, starting

at 6:30 a.m. each day, distributed handbills to employees

of the general contractor and the subcontractors as they

approached the entrance to the construction site. The

handbill stated:

AUTOMATION, INC. IS DESTROYING THE

STANDARD OF WAGES FOR HARD-WORKING

UNION MEMBERS

AUTOMATION, 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 labor

dispute concerning the failure of Automation. 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 handbillers also spoke to the employees as they

approached the site, but there is no evidence revealing

what was said to the employees. After talking with the

Respondent's [*4] agents and receiving the handbills,

employees of the general contractor and the

subcontractors refused to enter the construction site and

report for work with their respective employers.

As I stated above, the foregoing facts present a close

issue of whether the Respondent induced employees of

the general contractor and subcontractors to cease

performing work. Although there is no direct evidence of

such inducement, the facts arguably suggest that the

Respondent was indeed making an appeal, through a

careful wink and a nod, for the employees to engage ina

work stoppage.

* Such an argument is raised by the following facts. The

Respondent chose to handbill the site when its audience

would consist solely of the neutral employees.

Additionally, the handbill's message--although

disclaiming any interest in a work stoppage--reasonably

conveyed the Respondent's desire to engage the neutral

employees in the Respondent's dispute with Automation.

Consistent with such an appeal, the neutral employees

refused to report to work on receiving the Respondent's

handbills.

In view of the foregoing facts, | am concerned that the

Respondent's conduct was, in effect, a thinly veiled

attempt to evade the [*5] Act's prohibition of inducing a

work stoppage by the neutral employees. However, a

careful consideration of the facts and the relevant case

law persuades me that the record is insufficient to support

a finding of a violation of the Act.

In reaching this conclusion, I rely primarily on Building

& Construction Trades Council of Tampa (Tampa Sand &

Material Co.), 132 NLRB 1564, 1565 (1961). There,

union business agents commented to employees "that they

had the right, as individuals, not to handle [the primary's]

product." A union agent also informed employees that

that he had "no preference with respect to a course of

conduct," but that "they had no job protection if they left

their jobs, and that if replacements were requested, he

would have to send them." The Board found that the

union agents’ remarks did not constitute an inducement or

encouragement for employees to engage in a work

stoppage, but rather were a declaration of what the law

would permit. The Board stated that to attach a

presumption of guilt to such a declaration would carry the

"nod, wink, and smile" theory too far. Accordingly, the

Board fcund that the remarks did not violate Section

[*6] 8(b)(4)(i)(B) of the Act.

_ Like the conduct at issue in Tampa Sand, the

Respondent's conduct here, although arguably consistent

with an attempt to induce a work stoppage, ultimately

lacks a sufficient basis to support such a finding. 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 job-site and received

the handbills. n2 In the final analysis, a finding of a

violation must be based on something more than the mere

fact that the employees ceased work in response to the

Respondent's conduct. n3 Accordingly, I find that the

General Counsel has failed to establish that the

Respondent induced or encouraged employees to engage

in a work stoppage in violation of Section 8(b)(4)(i) and

(1i)(B) of the Act as alleged.

n2 The instant case is distinguishable from Service

Employees Local 254 (Women & Infants Hospital), 324

NLRB No. 126 (Oct. 15, 1997), where the Board found

that certain picketing and handbilling violated Sec.

8(b)(4)(ii)B). There, the respondent's business agent

admitted that the purpose of the picketing and the

handbilling was to force the neutral hospital to cease

doing business with the primary. Here, as noted above,

there is no direct evidence of an unlawful purpose, and

the handbills specifically state that the Respondent was

not seeking the neutral employees to cease doing any

work. [*7]

n3 See generally Carbon Fuel Co. v. Mine Workers, 444

U.S. 212 (1979).

Dated, Washington, D.C. May 14, 1998

William B. Gould IV, Chairman

ALJ: WILLIAM J. PANNIER II]

ALJ-DECISION:

DECISION

Statement of the Case

WILLIAM J. PANNIER III, Administrative Law Judge:

This matter has been presented upon Joint Motion to

Accept a Stipulation of Facts, waiving hearing. On March

25, 1997, nl the Regional Director for Region 33 of the

National Labor Relations Board, herein called the Board,

issued a Complaint and Notice of Hearing, based upon an

unfair labor practice charge filed on March 13, alleging,

as amended, violations of Section 8(b)(4)(i), (ii)(B) of the

National Labor Relations Act, as amended, 29 U.S.C. Sec.

15] et seq., herein called the Act. All parties have been

afforded full opportunity to join, and have joined, in the

Stipulation of Facts and have filed briefs. Based upon that

Stipulation of Facts, which constitutes the entire record,

and upon the briefs which were filed, I make the

following findings of fact and conclusions of law.

nl Unless stated otherwise, all dates occurred during

1997.

I. Motion to Amend Answer

Paragraph 7(c) of the Complaint alleges that, "The

conduct by Respondent described above in paragraphs

7(a) and (b) took place on the dates described in

paragraph 7(a) only at times when individuals employed

by Johnson and its Union subcontractors were reporting to

work." The Respondent, Iron Workers Local 386, stated

in answer to that allegation, "The Respondent admits that

it engaged in a lawful informational picket on March 13,

14, 17, 18 and 19, 1997. Answering further, the

Respondent admits that the informational picket began

between 6:00 a.m. and 7:00 a.m. on the listed dates."

(Underscoring supplied.)

After the Stipulation of Facts had been submitted and

received, and shortly before briefs were due, Respondent

filed a Motion to Amend Answer, seeking to substitute

the word "handbilling" for the word "picket" wherever the

latter appears in its answer to paragraph 7(c) of the

Complaint, representing that "picket" had been "a

typographical error." That motion has not been opposed

by the General Counsel. However, the Charging Party,

Warshawsky & Company, herein called Warshawsky,

filed an opposition to the motion, arguing that it is

material, is [*9] belated, and that it would be prejudiced

were the motion to be granted. Even should the motion be

granted, further argues Warshawsky, the answer to

paragraph 7(c) still should be considered an admission "as

evidence on the issue of picketing.”

It is long-settled that a party is bound by admissions of

its counsel. Oscanyan v. Arms Co., 103 U.S. 261, 263-264

(1880). Thus, "a statement in a pleading constitutes a

‘judicial’ admission that is binding on the party making the

admission." (Citation omitted.) D.A. Collins Refractories,

272 NLRB 931, 932 (1984). However, the Board

continued in that case, such "judicial" admissions lose

their binding effect whenever an amended pleading is

filed, though "the statement still stands as an admission if

introduced in evidence as such" (footnote 3), but still "is

subject to explanation and rebuttal by the party making

the admission."

While it seems somewhat of a stretch to apply the

adjective "typographical" to Respondent's "error,"

regarding the conduct identified in its answer to paragraph

7(c), it does seem that insertion of the word "picket" had

been an error. Neither paragraphs 7(a) [*10] nor (b) of

the Complaint, describing the predicate alleged conduct to

which paragraph 7(c) makes reference, allege that there

had been actual picketing. Only "appeal[s}" that included

"signal picketing and passing out of handbills" are alleged

as conduct in which Respondent had engaged. As

described in Section III, infra, by definition "signal

picketing" is a substitute for actual picketing -- a form of

constructive picketing. Accordingly, the conduct to which

the Complaint's paragraph 7(c) points, in paragraphs 7(a)

and (b), makes no mention whatsoever of actual

picketing.

As to the substance of those latter two paragraphs, in its

Answer, Respondent denied flatly that its appeals had

included even "signal picketing and the passing out of

handbills[.]" In consequence, both the allegations serving

as the predicate for paragraph 7(c) and Respondent's

answer to those predicate allegations serve to support the

Motion's assertion that use of the word "picket" had been

an "error."

In addition, the Stipulation of Facts, signed on behalf of

all parties, includes no description of conduct which

constituted picketing. As described in Section II, infra,

only handbilling had been conducted [*11] onthe

March days enumerated in the Complaint as ones on

which unlawful secondary conduct assertedly had

occurred. In light of the Stipulation, to conclude that there

had been an "informational picket" on those dates would

be a conclusion at odds with the facts. Obviously, one stil]

could conclude that there had been "signal picketing" on

those dates -- and that Respondent had intended its

handbilling to serve as a substitute for picketing. But, any

such conclusion should be based upon the facts of what

occurred, not upon what appears to have been an error in

selection of words. After all, no less than subpoenas,

pleadings should not be reduced to "a Donny Brook fair

and every lawyer a Don Quixote tilting at windmills for

the feel of the fighting." Winn & Lovert Grocery Co. v.

NLRB, 213 F.2d 785, 786 (Sth Cir. ] 954).

Therefore, I grant Respondent's Motion to Amend

Answer by substituting the word "handbilling" for

"picket" in the portion of the original answer to paragraph

7(c) of the Complaint. Even though the Motion was made

after the Stipulation of Facts had been filed and received,

Warshawsky has not moved to reopen the record should

the motion be [*12] granted. Nor has it enumerated any

specific differences that it would have sought in the

Stipulation of Facts should the Motion be granted. And

none is suggested from scrutiny of that Stipulation and

comparison of it to the allegations of the Complaint. That

is, there is no particularized showing which would

support a conclusion that substitution of "handbilling" for

"picket" in a single paragraph of the Answer would

necessitate revision of, or additions to, the Stipulation of

Facts which has been submitted. Cf. Liberty Natural

Products, 314 NLRB 630 (1 994). Accordingly, there is no

basis for concluding that any party is prejudiced by

granting Respondent's Motion to Amend Answer.

Il. The Alleged Unfair Labor Practices

This case presents issues of whether handbills and the

manner in which they were distributed during five days in

March violated Section 8(b)(4)(1), (ii)(B) of the Act.

The situs of the dispute in this case is located at the

intersection of Murphy Road and J.C. Whitney Way in

LaSalle, Illinois, where a warehouse and mail order

facility is being constructed by Warshawsky, a Delaware

corporation, with its principal place of business in

Chicago, [*13] Illinois, engaged in the warehousing

and sale of auto parts and accessories. n2 At all times

material hereto, the LaSalle site has been maintained as a

construction project only and has not been open to

members of the general public.

n2 In the conduct of its normal business operations

during the 12-month period preceding execution of the

Stipulation of Facts, a representative period, Warshawsky

has derived gross revenues in excess of $500,000 and,

moreover, has purchased goods valued in excess of

$50,000 which it received directly from sources outside of

the State of Illinois and, also, has sold goods valued in

excess of $50,000 which it shipped from its Illinois

facility directly to sources outside of the State of Illinois.

Therefore, at all material times, Warshawsky has been

engaged in an industry affecting commerce within the

meaning of Sections 2(2), (6) and (7) of the Act.

To construct that facility, Warshawsy has engaged, as

the general contractor responsible for construction of the

LaSalle warehouse and mail [*14] order facility, G. A.

Johnson & Son, Inc., herein called Johnson, an Illinois

corporation, with its principal place of business in

Evanston, Illinois, engaged in the construction business.

n3 In turn, Johnson has subcontracted certain construction

work at the LaSalle site to certain subcontractors: Five

County Glass & Mirror, Inc.; R. G. Construction

Services, Inc.; Hilltop Heating & Sheet Metal, Inc.: J. B.

Contracting Co.; Dan Car Sprinkler Co.; Scurto Cement

Construction, Ltd.; Star Erectors, Inc.; and, Schweickert

Masonry. n4 Johnson and those subcontractors performed

work at the LaSalle site during the hours of approximately

7:00 a.m. and 3:30 p.m., Mondays through Fridays, as

well as occasionally on Saturdays.

n3 In the course of conducting those operations during

the 12-month period preceding execution of the

Stipulation of Facts, a representative period, Johnson

purchased goods valued in excess of $50,000 which it

received directly from sources outside of the State of

Illinois. Therefore, at all material times Johnson has been

an employer engaged in commerce within the meaning of

Sections 2(2), (6) and (7) of the Act. [*15]

n4 Each of those subcontractors are employers engaged

in commerce within the meaning of Sections 2(2), (6) and

(7) of the Act.

All of the above-named subcontractors maintain

collective-bargaining contracts with various building

trades unions which represent the employees of those

subcontractors who are working on Warshawsky’'s LaSalle

warehouse and mail order facility project. At no time

material hereto has Respondent nS been engaged in a

labor dispute with Johnson nor with any of the above-

named subcontractors whose employees are working on

that project.

n5 At all material times Respondent has been a labor

organization within the meaning of Section 2(5) of the

Act.

During March, Warshawsky retained Automotion, Inc.,

herein called Automotion, to install certain rack and

conveyor systems at its LaSalle warehouse and mail order

facility project. On March 5 Respondent engaged in area

standards picketing of Automotion at that project.

However, [*16] upon being informed that Automotion

was not yet working at that site, Respondent ceased its

picketing at the LaSalle project, apparently on the same

day as it had begun picketing there.

By letter dated March 12, Warshawsky's Vice President,

Human Resources, Clyde D. Rundle, notified

Respondent's Financial Secretary/Business Agent Daniel

F. Aussem né6 that, inter alia, Automotion, "its employees

and suppliers, will be present at [Warshawsky's] project in

LaSalle, Illinois on Monday through Saturday only

between the hours of 4:00 p.m. and 6:00 a.m., and all day

Sunday until further notice and will not be present at said

project at any other time.” The letter continued by

promising, "You will be advised not less than 24 hours in

advance of any changes to this schedule"; by requesting

that Respondent "confine any picketing of Automotion. .

.to the above listed times"; and, by warning that, "Any

picketing of Automotion. . .at times when it is not

scheduled to be present at this site will result in the filing

of. . charges with the. . Board as well as an action in

federal court for any damages resulting from such

unlawful activity." There is no evidence as to how that

letter was transmitted [*17] to Respondent nor as to

when, if ever, it had been received by Respondent.

n6 An admitted agent of Respondent within the

meaning of Section 2(13) of the Act.

Automotion commenced work for Warshawsky at

LaSalle on March 12 during times conforming to those set

forth in Rundle's above-described letter to Respondent of

that same date. At all times between March 12 and 19

Automotion, its employees and subcontractors were

present at Warshawsky's LaSalle warehouse and mail

order facility construction project only during the times

set forth in that letter.

At approximately 6:40 a.m. on March 13 various

admitted agents of Respondent were stationed at certain

locations along Murphy Road, a road used primarily by

individuals going to and from the Warshawsky project,

near J.C. Whitney Way, in close proximity to the

entrance to Warshawsky's project. Those agents were

there for approximately three to four hours on March 13.

They returned there about 6:30 a.m. on March 14, 17, 18

and 19 for approximately three to four hours on each

[*18}] date. At no time on any of those dates did

Respondent or its agents appear at Warshawsky's LaSalle

construction project at times when Automotion, its

employees, suppliers and subcontractors were present at

that site.

As to the actions of Respondent's agents while at the

project, they engaged in two types of conduct directed to

employees of Johnson and those of its subcontractors as

those employees attempted to drive their vehicles into

Warshawsky's construction site. First, Respondent's

agents "briefly spoke with. . .[those] individuals," but, the

parties stipulated, "There is no evidence that reflects the

content of those conversations."

Second, in addition to speaking with those individuals,

Respondent's agents distributed a copy of a handbill to

each of them. That handbill states:

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

At the bottom of the handbill appears the following

statement:

Iron Workers Local 386 is currently engaged in a labor

dispute concerning the failure of Automotion, [*19]

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 first six above-quoted lines in the handbill are in

approximately 11/32" type size. The next six lines are in

approximately 6/32" or 3/16" type size. The disclaimer at

the bottom is in much smaller 4/32" type size.

Following the above-described discussions and receipt

of handbills on March 13, individuals employed by

Johnson and by its subcontractors refused to enter

Warshawsky's LaSalle warehouse and mail order facility

construction project, thereby refusing to perform services

there for their respective employers. Simiiarly, on March

14 and 17 through 19, the parties stipulated, "Various

individuals employed by Johnson and the. .

-Subcontractors continued to refuse to enter onto the

LaSalle facility construction project or to perform

services for their employers from March 13 through 19,

1997."

The General Counsel and Warshawsky contend that the

foregoing facts establish that, by its handbilling at the

LaSalle project, Respondent unlawfully induced and

encouraged employees of Johnson and of its

subcontractors [*20] to refuse in the course of their

employment to perform services for their own neutral

employers -- thereby threatening, coercing and restraining

those neutral employers -- for the ultimate object of

forcing and requiring Warshawsky to cease doing

business with Automotion. For the reasons set forth in

Section III, infra, I conclude that a preponderance of the

above-described evidence fails to establish that the failure

of some of those employees to report for work, on March

13, 14 and 17 through 18, had been other than a

spontaneous reaction by those employees to Respondent's

lawful actions of publicizing, other than through picketing

or through conduct tantamount to picketing, undisputed

facts about Automotion's wages and benefits.

III. Discussion

To the extent pertinent here, Section 8(b)(4)(1),(ii)(B) of

the Act makes it unlawful 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 commerce to engage in, a strike

or a refusal in the course of his employment to use,

manufacture, process, transport, or otherwise handle or

work on any goods, articles, materials, [*21] 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 --

*es**F

(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. ...

Thus, to establish a violation of that section of the Act,

there must be evidence showing, or from which it can be

inferred, both that a respondent engaged in unlawful

conduct, within the meaning of Section 8(b)(4)(i) or (ii)

and, second, evidence showing, cr from which it can be

inferred, that such conduct had an object proscribed by

Section 8(b)(4)(B) of the Act. That is, a preponderance of

the evidence must establish both unlawful conduct and

unlawful action.

" In their briefs each of the parties refers to one or the

other of the Supreme Court's decisions in Edward J.

DeBartolo Corp. v. NLRB, 463 U.S. 147 (1 983), herein

referred to as DeBartolo I, and in Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568 (1988), [*22] herein referred to

as DeBartolo II, though for different reasons. The results

of those two cases are not dispositive of the ultimate

issues presented in the instant case, however, though

some of the reasoning utilized to reach those results in the

DeBartolo cases does have application to the instant

situation.

In the first place, both DeBartolo cases addressed only

(ii) conduct: threats, coercion or restrain of "any person

engaged in commerce or in an industry affecting

commerce[.]" Not addressed in either case was the (i)

conduct of "induce[ing] or encourage[ing] any individual

employed by any person engaged in commerce or in an

industry affecting commerce[.]" That distinction is

significant. For, as the Court pointed out in DeBartolo II,

“induce[ing] or encourage[ing]' employees of the

secondary employer to strike is proscribed by [Sec.]

8(b)(4)(i). But more that mere persuasion is necessary to

prove a violation of [Sec.] 8(b)(4)(ii)(B): that section

requires a showing of threats, coercion, or restraints." 485

U.S., at 578. in contrast to (ii) conduct, which is confined

to situations involving "economic pressure of a

compelling or restraining [*23] nature,” Associated

General Contractors of California, Inc. v. NLRB, 514

F.2d 433, 438 (9th Cir. 1975), "The words ‘induce or

encourage’ are broad enough to include in them every

form of influence and persuasion." International

Brotherhood of Electrical Workers v. NLRB, 341 U.S.

697, 701-702 (1951).

The allegations of the instant case, therefore, address a

type of conduct, under Section 8(b)(4)(i) of the Act,

which did not confront the Supreme Court in either

DeBartolo case. Moreover, whenever inducement or

encouragement of a neutral or secondary employer's

employees occurs “in the presence of a secondary

employer{, it] constitutes coercion of that secondary

employer within the meaning of the statute." (Citation

omitted.) Newspaper & Mail Deliverers (New York

News), 269 NLRB 102, fn. 2 (1984). Inasmuch as the

Supreme Court was not confronted with an allegation of

(i) conduct in the DeBartolo cases, neither did it have the

opportunity to address the (ii) allegation of those cases in

the context of (i) conduct.

Secondly, unlike the situation in DeBartolo I -- and, for

that matter, [*24] ina significant part of the analysis in

DeBartolo II -- the instant case does not present a

situation where the so-called publicity proviso of Section

8(b)(4) is at issue. In pertinent part, that proviso states:

Provided further, That for the purposes of this paragraph

(4) only, nothing contained in such paragraph 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[.]" [Underscoring supplied.]

A comparison of the underscored portions of that proviso

with the facts of the instant case discloses several reasons

why the proviso does not apply to the situation presented

[*25] here.

As set forth in Section II, supra, the parties stipulated

that "individuals employed by Johnson and [by its]

subcontractors refused to enter into [W arshawsky's]

LaSalle facility construction project and perform services

for their respective employers" on March 13 and, also,

during succeeding work days when handbilling occurred

there. So, even assuming that Warshawsky distributes

products "produced" by, in essence, construction

employees of Automotion -- a conclusion reached by the

Supreme Court in DeBartolo I ("that construction

workers, like truck drivers, may perform services that are

essential to the production and distribution of consumer

goods.") on the basis of an assumption ("we may assume

here") based, in turn, upon DeBartolo's "willingness to

concede that Wilson distributes products that are

‘produced’ by High" (463 U.S., at 155) -- the stipulated

facts establish that Respondent's handbilling did "have an

effect of inducing. . .individual[s] employed by. .

-person{s} other than [Automotion] in the course of [their]

employment. . .not to perform. . .services[s]" for their

own employers at the LaSalle project.

Beyond that, the handbills [*26] were confined to

publicizing the asserted fact that Automotion's wages and

fringe benefits did not rise to the level of the standards for

the LaSalle area. At no point did they claim the fact that

Warshawsky, or any of the other employers at the LaSalle

site, was, or would be, distributing Automotion's product.

In consequence, Respondent failed to engage in the very

conduct to which the publicity proviso addresses its

protection.

Respondent argues that Murphy Road "was not used

exclusively by employees of Johnson and other

subcontractors," but is a "public road. . .used by

individuals with no association to the LaSalle Facility and

who received the identical handbill received by

employees of neutral employers." Those asserted facts are

not truly supported by the parties' Stipulation of Facts.

Even if they were supported by it, however, the handbills'

limited message deprives Respondent's conduct of

protection under the publicity proviso, because those

handbills were not publicizing distribution by

Warshawsky, nor by any other employer, of a product

produced by Automotion.

In fact, the stipulated facts leave scant room for any

conclusion that the handbills had been intended for

anyone [*27] other than persons reporting for work at

the LaSalle project. There is no basis in the Stipulation

that would allow even an inference that handbills had

been actually distributed to anyone else. There is no

express stipulation to that effect. The Stipulation of Facts

recites only that copies of the handbill had been given "to[

] individuals employed by Johnson and its union

subcontractors as those individuals attempted to drive

their vehicles into the LaSalle facility construction

project." The handbilling occurred only during mornings

when those individuals were reporting, or were most

likely to report, for work. There is no evidence that

handbilling occurred during the afternoons and evenings

when "individuals with no association to the LaSalle

Facility" presumably were no less likely to be traveling

Murphy Road than during mornings.

Given the totality of the foregoing considerations, it

cannot be concluded that the publicity proviso applies to

the allegedly unlawful March conduct in which

Respondent and its agents engaged at Warshawsky's

LaSalle warehouse and m .il order facility construction

project. Even so, that conclusion does not conclude

further analysis of Respondent's conduct. [*28] In

DeBartolo II, the Supreme Court held that the publicity

proviso is an express "clarification" by Congress of the

reach of Section 8(b)(4)'s prohibitions, rather than being

an exception to those prohibitions: "We agree with that

conclusion," (485 U.S., at 584), by the Court of Appeals,

that the proviso had been "drafted as an interpretive,

explanatory section’ and not as an exception to an

otherwise all-encompassing prohibition on publicity in

[Sec.] 8(b)(4)." 485 U.S., at 574. That holding is

important to resolution of the instant case.

First, the fact that the proviso is an express

“clarification,” rather than an exception, is some

indication that Congress contemplated other, unstated,

clarifications which would inform resolution 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 above-quoted

definition 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, [*29] explains and clarifies must, of

necessity, take into account publicity of disputes which is

directed to members of labor organizations, without too

readily concluding that such publicity constitutes

unlawful inducement or encouragement.

As will be discussed below, that appears to be a

conclusion which the Board has reached and adhered to

for some time. The significant point here is that, in its

expressed clarification of the publicity proviso, Congress

did include "members of a labor organization" within the

scope of the publicity proviso's exclusion of publicity

"advising the public[.]" Moreover, Congress did not

confine that inclusion to members of the labor

organization engaged in that publication. That is, it did

not confine the interpretive and explanatory language to a

labor organization's own members. Rather, the language

is sufficiently broad to allow the clarification to reach

publicity directed to members of any labor organization or

organizations. Consequently, the fact that Respondent

distributed handbills to members of other labor

organizations does not, standing by itself, necessarily

establish that Respondent had engaged in unlawful (i)

inducement or encouragement. [*30]

It also is significant that Respondent did not engage in

actual picketing on any of the five March dates

enumerated in the Complaint as being ones on which

unlawful activity allegedly had taken place. Instead, on all

five dates Respondent's conduct had involved distributing

handbills, without any picketing or patrolling. Endorsing

a concurring opinion of Justice Stevens in an earlier

Decision, the Supreme Court stated in DeBartolo II,

picketing is "a mixture of conduct and communication"

and the conduct element "often provides the most

persuasive deterrent to third persons about to enter a

business establishment." Handbills containing the same

message, he observed, are "much less effective than labor

picketing" because they "depend entirely on the

persuasive force of the idea." [485 U.S., at 580, quoting

from the concurring opinion in NLRB v. Retail Store

Employees, 447 U.S. 607, 619 (1980)]

That, also, was the point made earlier by Justice Douglas

when he stated that "the very presence of a picket line

| may induce action of one kind or another quite

irrespective of the nature of the ideas which are being

disseminated." [*31] Bakery & Pastry Drivers &

Helpers Local 801 v. Wohl, 316 U.S. 769, 776-777. Not

only is a handbill generically different from picketing, the

Court pointed out in DeBartolo II, but statements in

handbills constitute "expressive activity" the legislative

proscription of which "would pose a substantial issue of

validity under the First Amendment." 485 U.S., at 575-

576.

' Of course, that does not mean that handbilling enjoys

unfettered exemption under Section 8(b)(4) of the Act,

regardless of the message being communicated and the

means by which it is conducted. "We do not suggest that

communications by labor unions are never of the

commercial speech variety and thereby entitled to a lesser

degree of constitutional protection." DeBartolo Il, 485

U.S., at 576. Under the First Amendment, Congress can

validly oblige labor organizations to confine the pressure

which they bring "on offending employers in primary

labor disputes" to means which shield “unoffending

employers and others from pressures in controversies not

their own." NLRB v. Denver Building and Construction

Trades Council, 34] U.S. 675, 692 (1951). [*32]}

Especially in the context of common situs situations,

labor organizations must make reasonable efforts to

minimize the impact of their messages upon neutral

employers and their employees. But, in doing so, those

labor organizations are not required to abandon altogether

communication of their messages.

Both the Board and the Circuit Courts of Appeals have

extended the statutory prohibition of Section 8(b)(4)(i),

(ii)(B) to handbilling when conducted in such a manner as

to be tantamount to actual picketing. For example, where

the handbills are distributed by persons who are actually

picketing, or by persons who are not themselves actually

picketing but whose handbilling is accompanied by others

who are picketing, the handbilling has been regarded as

an integral component of the totality of that labor

organization's picketing and, accordingly, has been

measured by the principles applied to "the mixture of

conduct and circumstances," DeBartolo I] supra, which

constitute picketing. See, e.g., San Francisco Building

Trades Council (Goold Electric), 297 NLRB 1050, 1057

(1991).

* Even without actual picketing, however, the

circumstances [*33] under which handbilling may occur

can be such that the handbilling constitutes, in reality, no

more than sheep's clothing for the actual wolf of

picketing. Such activity is regarded as "signal picketing" -

- "the term used to describe activity short of a true picket

line that acts as a signal to neutrals that sympathetic

action on their part is desired by the union." (Citation

omitted.) Operating Engineers Local 12 (Hensel Phelps),

284 NLRB 246, 248, fn. 3 (1987). Signal picketing occurs

whenever a labor organization is "not merely engaged in

communicating the information set out in the handbills,

but [is] actually seeking in distributing such handbills to

convey a ‘signal’ to induce those confronted by its agents

to take the kind of action which traditional picket lines are

expected to evoke." Teamsters Local No. 688 (Levitz

Furniture Co. of Missouri, Inc.), 205 NLRB 1131, 1133

(1973).

At first blush, those definitions might appear so broad

as to embrace naturally any and all handbilling at a

common site, where employees of several employers are

working, and whenever some of those employees of

neutral employers refuse to [*34] report for work after

having received handbills. Indeed, that might appear to

have been the conclusion reached upon too hasty a

reading of Catalytic, Inc. v. Monmouth & Ocean County

Building Trades Council, 829 F.2d 430 (3d Cir. 1987),

cert. denied, 485 U.S. 1020 (1988): "The simple cause-

and-effect of the appearance of leafletters and work

stoppages eloquently testified to the purpose of the

enterprise" and "demonstrated that Local 825 sought to

persuade other craft unions to violate their contractual no

strike obligations." Still, the handbills or leaflets in that

case were distributed in a no-strike contractual provision

situation, carried a message broader than the one covered

by Respondent's handbill in that they actually protested

assignment of mobile crane work to "non-building

trades," and charged the primary employer with being

"unfair" for having done so.

Here in contrast, so far as the evidence reveals, there is

no contractual obligation undertaken by Respondent to

Warshawsky, nor to Johnson or to its subcontractors.

Resolution of the ultimate issue here is confined to the

extent to which, consistent with the First [*35]

Amendment and the Act, Congress can restrict expressive

activity in a labor-management setting. Further, as

pointed out above, the Catalytic handbills protested a

work assignment to a particular employer. By contrast,

Respondent's handbill protests no more than wages and

fringe benefits provided by Automotion; no mention is

made in that handbill of Warshawsky's choice of

Automotion to perform the rack and conveyor systems

installation at LaSalle. Finally, no charge of unfairness, or

of any other negative conduct, is made against

Warshawsky, or any other employer aside from the

primary employer Automotion, in Respondent's handbill.

To be sure, it may be argued that such distinctions give

rise to no truly meaningful differences between the

situation in Catalytic and that presented in the instant

case, inasmuch as an appeal for support is implicit in any

message to union members concerning an employer's

failure to satisfy area standards. However, in DeBartolo II

the Supreme Court recognized the constitutional and

statutory protection extended to handbill messages

protesting failures to satisfy area wage and fringe benefits

standards -- those which "press[ ] the benefits of [*36]

unionism to the community and the dangers of inadequate

wages to the economy and the standard of living of the

populace.” 485 U.S., at 576. Therefore, when evaluating

the lawfulness of such messages, even when disseminated

to members of a labor organization at a common situs,

analysis must proceed with care.

' That some handbill recipients may interpret purely area

standards messages as some form of appeal for refusals to

perform work is not the determinative consideration. For,

a reader's or, for that matter, listener's "subjective

interpretation" of such a message is not the critical

consideration under Section 8(b)(4)(B) of the Act. Rather,

the Board has held that "the critical considerations are the

specific language used and surrounding conduct and

events." (Citation omitted.) Teamsters Local 82

(Champion Exposition), 292 NLRB 794, 795 (1989).

An example of application of that approach -- and one

which is instructive for the issues posed in the instant case

-- is a situation involving a business agent's statements to

neutral employees that "they had the right, as individuals,

not to handle [the primary's] products," which [*37]

arose in Building & Construction Trades Council of

Tampa (Tampa Sand and Material Co.), 132 NLRB 1564,

1565 (1961). The Board dismissed the complaint that

case, concluding that, "To read inducement and

encouragement into the mere statement that the men could

make an individual choice as to handling [the] products is

to attach a presumption of guilt to a declaration of what

the law will permit," inasmuch as, "The law does not

require that a union refrain from making the law known to

its members." (/32 NLRB, at 1566.)

Similarly, in Gould Inc., Switchgear Division, 238

NLRB 618 (1978), enfd., 638 F.2d 159 (10th Cir. 1980),

cert. denied sub nom., Brown Boveri Electric, Inc. v.

NLRB, 452 U.S. 930 (1981), there had been actual

picketing with signs stating, "Information: Houchin

Electric does not have an agreement with Local Union

584, IBEW" (238 NLRB, at 619), and the respondent's

business manager had told employees "that whatever

action the employees took would be their individual

choice and action." (238 NLRB, at 622.) [*38]

Approximately 85 of 90 first-shift employees walked out.

Nevertheless, the Board agreed that there had been no

“union authorization or union inducement within the

meaning of Section 8(b)(4)(i) of the Act,” relying upon

the holding of Tampa Sand. The employees’ walkout was

regarded as having been spontaneous. Consequently, the

fact that readers of handbills may choose to cease

working upon receipt of those handbills is not, standing

alone, sufficient to establish that those employees had

been induced or encouraged to do so within the meaning

of Section 8(b)(4)(i) of the Act. More must be shown than

simply a work cessation by some recipients for a

conclusion that unlawful inducement or encouragement

has occurred.

That "more" is what is supplied whenever signal

picketing is concluded to have occurred. It has been

concluded to have occurred whenever one or more of

several objective factors have been present:

accompanying placards which, though not actually carried

by persons who are patrolling, have been placed in

proximity to the handbillers and can be easily seen by

persons accepting the handbills, NLRB v. Local 182,

International Brotherhood of Teamsters [Woodward

Motors], 314 F.2d 153 (2d Cir. 1963) [{*39] (placards

placed in a nearby snow bank); Laborers Local 389

(Calcon Construction), 287 NLRB 570, 573 (1987) (signs

placed near entrances so they could be read by handbill

recipients); accompanying mass activity by crowds which

exceed the numbers reasonably necessary for solelv

expressive activity, Service Employees Local 87(Trinity

Maintenance), 3/2 NLRB 715, 746, 748 (1993); Mine

Workers (New Beckley Mining), 304 NLRB 71, 71-73

(1991); United Mine Workers of America, Dist. 12

(Truax-Traer Coal Company), 177 NLRB 213, 217-218

(1969); accompanying appeals not to report for work or

about a need for employees of neutral employers to, in

effect, make common cause with handbillers, Teamsters

Local 315 (Santa Fe), 306 NLRB 616, 630-631); Local 3,

IBEW (General Dynamics Communications Company),

264 NLRB 705, 705-706 (1982) ("total job" policy);

accompanying actions or statements which serve to show

a handbilling union's willingness to support and to make

efforts to protect employees of neutral employers who

{*40] will refrain from working in support of the

ostensibly handbilling labor organization, Service

Employees Local 87(Trinity Maintenance), supra, 3/2

NLRB at 750 (seeking strike sanctions); Truck Drivers

and Helpers Local Union No. 728 (Genuine Parts

Company), 119 NLRB 399 (1957) (pledging "combined

economic power and resources" to protect employees of

neutral employees against retaliatory measures for

participating in a "hot cargo" program); untruthful

statements in the handbills about the nature of the dispute,

Service Employees Local 87(Trinity Maintenance), supra,

312 NLRB at 745; and, a history or pattern of secondary

harassment, Local 3, IBEW(General Dynamics

Communications), supra.

As quoted in Section II, supra, the handbill distributed

by Respondent's agents at Washawsky LaSalle project is

confined only to Automotion. It makes no mention of any

other employer and states no complaint about

Warshawsky having chosen to assign rack and conveyor

systems installation to Automotion. Beyond that, neither

the General Counsel nor Warshawsky have challenged the

truthfulness of the handbill's [*41] protest: that

Automotion's wages and fringe benefits do not rise to the

level which is standard in the LaSalle area. Cf., Great

American, 322 NLRB No. 7, slip op., at 2-4 (August 27,

1996); Service Employees Local 254(Janitronic, Inc.),

271 NLRB 750, 751-752 (1984). Nor is there an

independent basis in the Stipulation of Facts for

concluding that the handbill's statements, about

Automotion's wages and fringes, had been untruthful.

- True, the handbill's message is phrased stridently. Even

SO, it would seem that protection of even a strident

message about "the dangers of inadequate wages to the

economy and the standard of living of the populace,"

DeBartolo II, 485 U.S., at 576, is protected by the First

Amendment and by the Act. Stridency, alone, is no basis

for depriving area standards messages of such protection.

Seizing upon the handbill's statement that "IGNORING

THE AREA STANDARDS THREATENS THE

EFFORTS AND SACRIFICES OF ALL UNION

MEMBERS,” the General Counsel contends that

Respondent had been asking union employees "not to

‘ignore’ the area standards violation," thereby implicitly

advocating [*42] a work stoppage. By its very terms,

however, the unstated subject of that statement is

Automotion, not the persons to whom handbills were

being distributed. Read in context of the handbill's other

Statements, moreover, that becomes even more plain: that

it is Automotion which is "DESTROYING" the area

standard by "IGNORING" that standard -- not, as the

General Counsel would have it, that recipients of

handbills should not ignore that conduct of Automotion.

In light of the foregoing considerations, the Complaint

is left with a handbill that does no more than truthfully

advise recipients of facts about Automotion's wages and

fringe benefits. If labor organizations are not obliged

under Section 8(b)(4)(i), (ii)(B) to "refrain from making

the law known to [their] members," Bldg. & Constr.

Trades Council of Tampa(Tampa Sand), supra, then

similar logic would appear to apply to making the facts

known to their members. Furthermore, inasmuch as labor

organization members are regarded as part of "the public"

in the publicity proviso, and as that proviso is a

clarification, rather than an exception, to the prohibitions

of Section 8(b)(4) of the Act, there is no basis for

distinguishing [*43] between dissemination of facts to a

labor organization's own members and those who are

members of other labor organizations.

After all, had Respondent chosen, instead of

handbilling, to publicize Automotion's failure to satisfy

area standards through the media, that area standards

protest would have reached members of other labor

organizations. Yet, surely no one can contend that Section

8(b)(4)(i),(ii)(B) would be violated through "newspaper,

radio, and television" protests, DeBartolo IJ, 485 U.S., at

583, merely because those protests are read, heard or seen

by members of labor organizations other than those who

were members of Respondent.

Moving beyond the wording of the handbill, much is

made of the fact that handbilling did not occur whenever

Automotion's employees were working on the project, but

instead were distributed only when employees of Johnson

and of its subcontractors were reporting, and were

scheduled to report, for work during mid-March. But, that

begs the point. Presumably, Automotion's employees

were not ignorant about their wages and fringes.

Presumably, they were aware of the relationship between

their wages and fringe benefits, [*44] on the one hand,

and those which prevailed elsewhere in the area.

Seemingly, nothing was to be gained by reinforcing that

knowledge of Automotion's employees by distributing the

handbills to them. It had been the employees of Johnson

and of its subcontractors who were less likely to have

been aware of the facts about Automotion's wages and

fringe benefits. And under Tampa Sand, Respondent was

not required to refrain from informing Johnson's and its

subcontractors’ employees of those facts.

Of course, there is no evidence that Respondent

conveyed its message to any member of "the public"

beyond those persons who were attempting to enter

Warshawsky's project during those five mornings in mid-

March. Nonetheless, there is no evidence that

Respondent's agents confined distribution of their

handbills only to employees of Johnson and of its

subcontractors. So far as the evidence shows, anyone who

Started to enter the site was given a handbill, regardless of

whether such persons were or were not employees and,

further, regardless of whether such persons were or were

not on the payrolls of Johnson and of its subcontractors.

Beyond that, nothing in Section 8(b)(4), or elsewhere in

their disputes as broadly as possible to qualify as "public"

publication. Dissemination to the butcher, the baker and

the candlestick maker is not necessary for handbilling to

be beyond the prohibition of that section of the Act. More

narrowly, labor organizations need not refrain from

publicizing the facts of an area standards message to

members of labor organizations unless, as a condition of

doing so, they also republish those same facts to the

employees who already are seemingly aware that their

wages and fringe benefits do not rise to the standard of

the area in which they are working.

The fact that Respondent chose to handbill only at a

common situs where Automotion employees were

working, but not during times when Automotion's

personnel actually was working, can be some evidence of

a secondary object in certain situations. See, Sailors'

Union of the Pacific(Moore Dry Dock Co.), 92 NLRB 547

(1950). Even so, that fact is not determinative when it is

handbilling, the dissemination of ideas, which is involved,

rather than the mixture of conduct and communication

involved where there is picketing. DeBartolo II supra.

[*46] Beyond that, it should not escape notice that, at the

bottom of the handbill, recipients were informed

specifically that Respondent was "not seeking any person

to cease work or to stop making deliveries." That is some

evidence that "Respondent effectively took Steps to

neutralize [any] implied inducement or encouragement of

employees" of other employers. Service & Maintenance

Employees Union, No. 399(The William J. Burns

International Detective Agency, Inc.), 136 NLRB 431, 437

(1962).

True, that wording is much smaller than the type used

for the handbill's principal message printed above.

Nonetheless, it should not be overlooked that Respondent

"was not required to actively discourage [a] sympathy

strike in order to disestablish any connection to

secondary activity." Gould Inc., supra, 238 NLRB at 622.

There is no evidence that, in conjunction with the

handbilling, Respondent or its agents had made appeals of

a nature which, as discussed above, could serve as

indicators of signal picketing. That is, there is no evidence

that Respondent appealed for employees of Johnson and

of its subcontractors not to report for work or [*47] to

make common cause with Respondent. There is no

evidence that Respondent made any effort, such as by

seeking strike sanctions or pledging efforts to protect

anyone who turned away from the LaSalle site, to shield

Johnson's and its subcontractors' employees from

discipline should they refuse to report for work at the site.

In any apparent effort to supply such evidence, reliance

is placed upon the stipulated fact that Respondent's agents

"briefly spoke with. . .individuals employed by Johnson

and its union subcontractors" to whom handbills were

handed. Yet, there is no evidence as to what had been said

during any of those brief exchanges. Without such

evidence, the Board has held that the occurrence of

communications between a labor organization and

employees does not, of itself, serve to establish unlawful

inducement or encouragement. Painters Local 829

(Theatre Techniques, Inc.), 243 NLRB 27, 28 (1979).

"Evidence that a union official merely spoke to a neutral

employee during the course of a labor dispute is not

evidence of an unlawful object." Local 12. Operating

Engineers (Cal Tram Rebuilders. Inc. ), 267 NLRB 272,

274, fn. 4 (1983). [*48] Nor, standing alone, should it be

sufficient to establish unlawful inducement or

encouragement, inasmuch as, "The burden of establishing

every element of a violation under the Act is on the

General Counsel." Western T; ug and Barge Corp., 207

NLRB 163, fn. 1 (1973).

Much is made of the stipulated fact that Respondent had

“engaged in area standards picketing of Automotion"” on

March 5. However, there is no allegation that the Act had

been violated by that brief period of picketing. Moreover,

it is further stipulated that that picketing had ceased "after

[Respondent] was informed that Automotion, Inc. was not

yet working at that site.” If anything, Respondent's

cessation of picketing tends more to indicate that the

object of its conduct at Warshawsky's project had been

primary, than to indicate that its object had been a

secondary one.

Implicit in a message "that Automotion, Inc. was not yet

working at that site" is an obvious, but unstated,

concomitant communication that Automotion eventually

will be “working at that site." That Respondent then chose

to withdraw its pickets is some indication, though not a

determinative one, of primary object. For, had its [*49]

true object been to induce and encourage neutral

employer's employees to withhold their services, to in

Warshawsky to work on the project. Beyond that, that one

day of picketing was concededly "area standards

picketing." Of itself, such picketing is not encompassed

by the prohibition of Section 8(b)(4)(B). See, e.g., Gould

Inc., supra.

There is no evidence that Respondent has a history, or

has engaged in a pattern, of secondary harassment of

neutral employers and their employees. There is no

evidence of independent threats, coercion or restraints

directed to "any person engaged in commerce or in an

industry affecting commerce," within the meaning of

Section 8(b)(4)(ii) of the Act. Thus, given the

considerations set forth above, it cannot be concluded that

Respondent's mid-March handbilling, and the

circumstances under which it had been conducted, rose to

[*50} a level which allows it to be fairly characterized as

statutorily proscribed "signal picketing.”

Beyond that, the totality of the evidence will not support

a conclusion that there had been inducement or

encouragement within the meaning of Section 8(b)(4)(i)

of the Act nor, given the absence of such evidence, that

there had been threats, coercion or restraints encompassed

within the meaning of Section 8(b)(4){ii) of the Act. The

handbill's message was a truthful one. It mentioned no

employer other than Automotion, without protesting

Warshawsky's selection of Automotion to perform the

LaSalle rack and conveyor systems installation work.

Neither in the handbill nor, so far as the record discloses,

by any other means did Respondent appeal for support by

employees of other employers working at the site. There

is no evidence of support being offered to employees of

neutral employers who might choose to refuse to report

for work at the project. There is no evidence that

handbillers patrolled, as would pickets, nor that they

engaged in any other activity conveying that, in reality,

they were picketing. There is no contention that the

numbers of handbillers had been disproportionate to that

[*51] which was needed to ensure distribution of

handbills. In sum, there is no basis for concluding that it

would have been "reasonable for anyone approaching

[Warshawsky's LaSalle] premises to conclude that

picketing rather than handbilling was being conducted."

(Footnote omitted.) Teamsters Local No. 688 (Levitz

Furniture), supra, 205 NLRB at 1133.

Therefore, a preponderance of the evidence fails to

establish that Respondent engaged in statutorily

prohibited conduct and, also, fails to establish that its

handbilling had been for a Statutorily prohibited object.

Accordingly, I shall dismiss the Complaint.

Conclusions of Law

Iron Workers Local 386, a labor organization, has not

violated the Act in any manner alleged in the Complaint.

Upon the foregoing findings of fact and conclusions of

law, and upon the entire record and pursuant to Sec. 10(c)

of the Act, I hereby issue the following recommended: n7

n7 If no exceptions are filed as provided by Sec. 102.46

of the Board's Rules and Regulations, the findings,

conclusions and recommended Order shall, as provided in

Sec. 102.48 of the Rules, be adopted by the Board and all

objections to them shall be deemed waived for all

’ IT IS HEREBY ORDERED that the Complaint be, and

it hereby is, dismissed in its entirety.

Dated, Washington D.C. June 3, 1997

William J. Pannier III, Administrative Law Judge

{

;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.