# Appendix — Ironworkers Local 386 v. Warshawsky & Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0483%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1003

## 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.

I.

Warshawsky (the Company) sells automobile parts and
accessories and is currently constructing a warehouse and
mail order facility in LaSalle, Illinois. The Company
retained G.A. Johnson [**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

10

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

11

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

12

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

13

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

14

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 -
en

e

ENTS RLS PONE LENE OS RA LS

eee

15

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.

16

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

17

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

18

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}

19

[*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

20

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.

21

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

22

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.

23

' 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

24

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

25

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

26

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,

27

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

28

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

29

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).

30

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

31

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

32

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

|

33

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

34

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,

35

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

36

* 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

37

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

38

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.

39

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

4]

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.

42

* 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.

43

_ 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).

44

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.

45

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

46

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,

47

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

48

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.

49

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

50

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

51

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

52

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

53

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

54

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.

55

" 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,

56

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.

57

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

58

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

59

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

60

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.

61

' 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).

62

* 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

63

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.

64

' 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.

65

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,

66

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.

67

- 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

68

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-

Te

69

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
the Act, [*45] obliges labor organizations to publicize ©
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

70

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

71

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 picketin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0483%3A2. Public record. Not legal advice.